1 Draft. Please do not quote without permission.

Performing the Law: Theatricality, Antitheatricality, and Legal History Julie Stone Peters Columbia University One might begin with Exodus, specifically the moment of the founding of the law on Mount Sinai.1 It is worth quoting here at length: And it came to pass on the third day in the morning, that there were thunders and lightnings, and a thick cloud upon the mount, and the voice of the trumpet exceeding loud; so that all the people that was in the camp trembled. And Moses brought forth the people out of the camp to meet with God; and they stood at the nether part of the mount. And mount Sinai was altogether on a smoke, because the Lord descended upon it in fire: and the smoke thereof ascended as the smoke of a furnace, and the whole mount quaked greatly. And when the voice of the trumpet sounded long, and waxed louder and louder, Moses spake, and God answered him by a voice. And the Lord came down upon mount Sinai, on the top of the mount: and the Lord called Moses up to the top of the mount; and Moses went up. . . . And God spake all these words, saying, 2 I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage. . . . And all the people saw the thunderings, and the lightnings, and the noise of the trumpet, and the mountain smoking: and when the people saw it, they removed, and stood afar off. This is, in fact, a story about the founding of a legal order with a spectacular sound and light show. Thunder resounds, lightning blazes, trumpets blare, and smoke fills the air on high. Suddenly, flames burst forth and the mountain quakes and we have the stage direction: enter God from the heavens (the original deus ex machina), onto a kind of raised stage. The trumpet gives a long blast, getting louder and louder. And the dialogue between God and Moses begins, as Moses climbs onto the stage. Just in case you do not know who actors are, God announces himself: I am the Lord thy God. And then he lays down the law: Thou shalt have no other gods before me. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God. . . . These first two commandments tie together two crucially related ideas: 1) the

monopoly on (legal) authority (here framed in theological terms as a command for monotheism); and 2) the prohibition on the production of likenesses, whether of divine or earthly things. The third commandment explicitly links these ideas. God insists on a 3 representational monopoly because he does not want competition (he is a jealous God, as he points out). That is, to worship images or likenesses is to become a dazzled spectator in the theatre of human representations and thus to betray ones fidelity to the theatre of divine representations; and so to worship there is to defy both Gods representational monopoly (his theatrical monopoly) and his legal monopoly. In fact, it is to betray Gods legal monopoly precisely by betraying his theatrical monopoly. Performance as a mode of founding law here does several things. First, it is a replay of violence, mastered or managed as rational authority. Before his spectacular presentation of the law, God ominously reminds the assembled Jews: Ye have seen what I did unto the Egyptians (Exodus 19:4). This reminder is prologue to the thunder and lightning and smoke show, aestheticizes the violent scene of Egyptian slaughter, preserving its power but transforming its horror into the register of the sublime. Second, by replaying the scene of violence as sublimity, God underwrites his justification for authority. He does this by simultaneously offering both a threat and a promise, implicitly saying: I didnt hurt you this time, but behave or else!; and if you behave, look what splendor I can offer you. Third, performance makes authority visual, palpable, bodily (accessible to the senses), and thus offers a seductive alternative to idol-worship. Indeed, it is better than idol worship, for where idols are static and unresponsive (even if they are sometimes made of gold), God speaks and thunders forth and flashes lightning. Fourth, at same time (and paradoxically), performance establishes the mystical or occult nature of legal authority (what Montaigne referred to as the fondement mystique de lautorit:2 a bit like what Frank L. Baums Wizard of Oz does when he says, Pay no attention to that man behind the curtain!). 4 God achieves this act of concealment (or occultation) both through performance

and through what we might think of as counter-performance within performance. Just before he sends Moses to announce the upcoming show (Go unto the people, . . . [a]nd be ready against the third day: for the third day the LORD will come down in the sight of all the people upon mount Sinai [19:10-11]), God says to Moses: Lo, I come unto thee in a thick cloud, [so] that the people may hear when I speak with thee (19:9). This explanation for his appearance concealed in a thick cloud presents a kind of antitheatrical economy that is suggestive for Gods overall method of performing his authority: it is, in fact, only visual concealment that will allow the people to hear him. This anti-theatrical economy is in fact something of an oxymoron: it is through concealment that he will appear; it is through theatre that he will perform against his own theatricalization. Here, he offers a poetics for understanding the performance to follow, which reproduces this oxymoron of concealed appearance: the economy in which visual self-concealment enables presence as sublime revelation. When he then at last appears before the people as a whole, he appears in the simultaneously terrifying and aweinducing form of the sound-and-light show (a Wagnerian Gesamtkunstwerk of sorts). This mode of appearance says, effectively: dont dare to look too closely. And it is, in fact, successful: for all the people saw the thunderings, and the lightnings, and the noise of the trumpet, and the mountain smoking: and when the people saw it, they removed, and stood afar off. In Exodus, performance simultaneously demonstrates legal authority, rationalizes violence at the origins of law, and produces a notion of the mystical foundations of law, beyond reach of human senses. But we have other legal myths that offer us alternative 5 stories of what legal performance does, for instance the trial of Orestes in Aeschylus Oresteia. This is also a mythological text about the founding of a legal order. But unlike the giving of the law in Exodus, the trial of Orestes purports to found authority that we might think of as horizontal rather than vertical: offering not a system of top-down mandate, but one in which legal powers are distributed throughout the system. Athena

establishes a court whose proceduresequal opportunity for litigants to speak, voting by citizensstand for rationality and equality. Here, unlike in Exodus, anti-theatrical performance (speeches carefully controlled by rules of procedure, marginalization of the overly histrionic Furies) serves to conceal the fundamental irrationality and violence at the root of legal system, although, as if in an echo of Exodus, Zeus stands behind the scenes with his thunderbolts (I have Zeus behind me, says Athena menacingly to the Furies, Do we need to speak of that?), ready to perform spectacular violence in the name of the law. Indeed, one could read the history of legal mythology as largely a mythology of legal performance. The story of the Judgment of Solomon offers a myth of law as a tragic drama, in which legal performance is the essential vehicle of the outing of truth. The Story of Tamar offers a myth of the legal subject as trickster, in which a theatrical disguise is used to bamboozle law into doing what is just. (Moral: legal truth is not always paired with justice.) The various versions of the trials of Jesus offer parables of anti-performance as resistance, in which Jesus refusal to speak (or to speak in the terms of his persecutors) sets counter-theatricality against theatricality, spirit against ritualism. These mythsthe giving of the law in Exodus, the trial scene in the Oresteia, the Judgment of Solomon, the Story of Tamar, and the trials of Jesusgive narrative form to 6 a recurrent trope in legal history: the trope likening law to drama and theatre and noting the centrality of its performance medium to its message. The ancient Greeks explicitly likened criminal trials (which were held in large public spaces, with mass juries of up to 1000 citizens) to their theatre festivals, which were, like trials, agons with winners and losers. In ancient narrative theory (revived in the late middle ages and central to Renaissance dramatic theory), trials and tragedies were thought to share techniques of rhetorical persuasion, methods of visual demonstration, and narrative structures: both were an imitation of an action, an agon (conflict), whose ideal structure contained anagnorisis (recognition), peripeteia (reversal), and catastrophe (unraveling).3 The trope of the relationship between law and theatre remained powerful for both early and late modern commentators. For the seventeenth-century Cardinal and

lawyer Giovanni Battista de Luca, law was a Theatrum veritatis et iustitiae (Theatre of Justice and Truth). For Jeremy Bentham, the courtroom was a judicial theatre or theatre of justice.4 This recurrent figure reminded audiences that trials were the reenactment of a conflict whose essential narrative form was dialogue, normally performed before live audiences by those specially trained to shed their own identities and represent others, exploiting iconic props as crucial clues to the unfolding of the narrative. Similarly, judicial punishment was often figured as a theatre.5 The trope identified torture and execution (as well as such lesser punishments as the stocks, the pillory, or the cucking stool) with theatrical spectacle, whose visual impact (like that of torture and execution) was central to its cautionary function. ** 7 That law is a performing art akin to theatre is thus a historical commonplace: hardly in need of reiteration. There has been, however, no sustained historical or theoretical account of what this commonplaceand performance more generally might mean for law.6 My goal, in the larger project of which this essay is a precis, is to understand the role of legal performance (as both instrument and concept) in the historical production and reception of law: to see how both legal performance itself and laws ambivalent relationship to its own theatricality matter to the way in which it produces itself, to its specific outcomes, to its broader effects, and to its meaning or institutional self-conception. In this essay, my more modest goal is to identify the broad dynamics of laws relationship to its own theatricality (a relationship at once historical and mythic), and to sketch the contours that a performance history of law might take, one that might produce an alternative legal historiography, more narrative and descriptively thick (in Clifford Geertz famous formulation), more sensitive to laws paratexts, both complement and corrective to the doctrinal or institutional historiography of law.7 At the risk of oversimplification, I would like to offer at the outset a rather sketchy description of what I mean by performance. This is not intended to stand as a definition: if it were, it could certainly bear deconstructing several dozen times over. Nor is it intended to incorporate the highly wrought discussion of performance and performativity that took place in critical theory during the past quarter of a century (from the linguistic, largely associated with J. L. Austin, to that associated with postmodern theories of the subject), whose relevance to my project I have

elsewhere outlined.8 Here I am less interested in a theoretical engagement with the idea of performance than in a historical engagement with performances effects in and on law. 8 Performance, then, for my purposes, entails the conscious or unconscious use of actions and effects that can act on spectators at a live event, but that are also capable of being reproduced through mass media (actions, movements in space, images, symbols, gestures, emotions, bodily expressions, and so on). To focus on performance is not only to stress the multiple sensory input and the temporal and kinetic quality of the event, and to focus on the kinds of effects that cannot usually be produced by verbal texts alone, but also to attend to the ways in which, in the moment of production, production and reception are reciprocal and mutually shaping. It is also to focus on the performances consciousness of being a performance, and what that means for it. This consciousness frames any given performance, sets its terms, conditions its production and reception, and helps to identify its central meaning. ** The trope of laws likeness to theatre expressed not only a recognition of the importance of performance to the mythology, meaning, and efficacy of the law, but a real and concreteone might almost say intimatehistorical-institutional relationship between law and theatre. Forensic oratory and drama emerged as institutions together in fifth-century Athens, and some of the most important dramatists were educated in the schools of rhetoric.9 It has been argued that antiphonal exchanges in the Athenian law courts, in front of the huge Athenian juries, were central in the development of Greek drama.10 Whether or not this was the case, the Greek theatre offered models for legal oratory that continued to be important in Roman forensic theory. Following Greek models, Quintilian offered explicit instructions on how lawyers should exploit theatrical 9 techniques (these instructions echoed again and again in late classical, medieval, and Renaissance oratorical manuals). The most important tools for the legal orator (according to Quintilian) were gesture, facial expression, emotion, and dramatic props

(where permitted), for instance blood-stained swords, fragments of bone taken from the wound, and garments spotted with blood, displayed by the accusers, wounds stripped of their dressings, and scourged bodies bared to view. 11 Accused persons should come to court wearing squalid and unkempt attire in order to give a vivid image of the crime scene.12 If props and costumes were important, the body and voice were also crucial instruments of forensic persuasion: no proof, wrote Quintilian, will ever be so secure as not to lose its force if the speaker fails to produce it in tones that drive it home. All emotional appeals will inevitably fall flat, unless they are given the fire that voice, look, and the whole carriage of the body can give them.13 This was to be achieved, as in theatre, through impersonations: [The victims] plea would awaken yet greater pity if they urged it with their own lips, so it is rendered to some extent all the more effective when it is, as it were, put into their mouth by their advocate: we may draw a parallel from the stage, where the actors voice and delivery produce greater emotional effect when he is speaking in an assumed role than when he speaks in his own character.14 Such impersonation was essential to the pity (and perhaps fear of an Aristotelian sort) to be awakened in the most important audience member, the judge: The bare facts are no doubt moving in themselves; but when we pretend that the persons concerned themselves are speaking, the personal note adds to the emotional 10 effect. For then the judge seems no longer to be listening to a voice bewailing anothers ills, but to hear the voice and feelings of the unhappy victims.15 The principal technique of the kind of impersonation that could arouse pity and fear in the audience was identification. We must identify ourselves with the persons [for] whom we complain, urged Quintilian (arguing Stanislavski avant la lettre), and must plead their case and for a brief space feel their suffering as though it were our own, while our words must be such as we should use if we stood in their shoes. I have often seen actors, both in tragedy and comedy, leave the theatre still drowned in tears after concluding the performance of some moving role.16 The victims case should, similarly, set our souls on fire with fictitious emotions.17 Quintilians theatrical teachings were the foundation for legal pedagogy in late antiquity and medieval Europe. And, at the same time that he was being taught in law schools in late medieval Europe, theatre being reborn as a European institution. Jody Enders has convincingly argued that legal institutions had at least as much to do with the rebirth of theatre as the church. Whether or not this is the case, theatre and forensic

oratory continued to be closely linked throughout the early modern period: in the French and Dutch Schools of Rhetoric that emerged in the fifteenth century, for instance (literary courts in which poets performed in rhetorical competitions that became training grounds for courts of law). That the name puythe poetic academies from which some of the earliest French dramatic activities emergedderives from the word for the hills on which the pre-Roman courts were held suggests the relationship between the dramatic and legal contests of the period.18 In the English Inns of Court, law students performed real legal disputations, fictional legal disputation (in moots), and a wide 11 array of theatrical works, from masques to legal satires to some of the earliest classical dramas performed in England.19 In the performances of the Basoche (the French legal apprentices famous both for courtroom histrionics and for satiric legal comedies), modern legal rhetorical techniques grew up alongside legal satire, which found its way into the repertoires of theatrical troupes.20 It is not a matter of mere rhetorical slippage, but rather an indicator of the deep consanguinity of the two institutions, that trials (or long legal disputations) often introduce or act as peripeteia in medieval drama: the trial of Mary and Joseph in the N-Town play, or the trials of Jesus in the York Plays.21 Throughout the medieval and early modern periods, combat plays (dialogue disputes often on legal themes) constituted an important dramatic genre, and combat spectacles could be hard to distinguish from legally determinative combats (still used occasionally for dispute resolution until late in the sixteenth century). ** I will return to the question of history in a moment. But I would first like to take stock. We have myths of legal performance, tropes of likeness, and the history of an intimate relationship between law and theatre as institutions. But there is a missing piece, perhaps the most important piece. Performance is important to law not only because law is a performance medium, fundamentally theatrical in nature. Performanceand its more weighted and institutionally specific alter-ego, theatricalityare also fundamental to laws self-conception. Here, theatricality may be seen as a loaded subset of performance. It is a term that invokes theatre, of course, but is used primarily to describe things that, by virtue of being like theatre, are not theatre. It historically

carries 12 with it the burden of what Jonas Barish famously termed the antitheatrical prejudice.22 This idea reaches back to Plato, associating actors with liars, hypocrites, and crossdressers, and the theatre generally with artifice, affectation, excess, melodrama, deception. To be an actor was to be histrionic was to be a hypocrite was to be a hysteric (with all the gendered connotations). Theatre was a challenge to God: a challenge to his sole power of world-making; and a blasphemous defiance of his order that women should be women and men should be men. Even in a more secular frame, theatre seemed irritatingly to call attention to itself, preen itself in the viewers gaze, effectively wave to the spectator and say, look at me! Theatre was not only idolatry, but both grossly ostentatious and narcissistic. While virulent religious antitheatricality lost some of its cultural force with the rise of secularism, the proliferation of theatres in the nineteenth century, and the growth of mass entertainment in the twentieth, theatricality has retained a good deal of its negative associations in popular and more learned discourses. Michael Fried, for instance, famously set theatricality in opposition to absorption (the work of arts containment within its own world, its refusal to cross the mimetic frame), arguing that modern art was successful to the extent to which it had suppressed its own theatricality.23 Theatricality in this sense thus haunts law. Law aspires to the condition of theatre, recognizing the power of theatricality as a tool: its pomp and ceremony, its masquerades, its spectacular effects, its manipulation of the passions, its electric connection to the crowd of spectators. But at the same time it reviles its own theatricality. Law exploits its performance medium, offering an exemplary spectacle of punishment, awing its subjects with its pomp and ceremony, replaying the crime, and dramatizing the defendants story 13 through impersonation. At the same time it rebukes or disavows its own theatricality. Theatre is laws twisted mirror, its funhouse double. Thus, laws antitheatricality (directed against itself) has been a powerful force in legal history, crucial to laws sense of its own legitimacy. Law has historically gained a performative power from its

exploitation of theatrical means. But it has also gained a kind of surplus legitimacy from its disavowal of these means: we are not exploiting theatrical tactics (claim the producers of the legal event), and this is precisely what shows our strict adherence to the law. Law oscillates between the antinomies of theatricality and antitheatricality, in a relationship of attraction-revulsion. Theatricality thus forms a deep ambivalence at the heart of lawa kind of fort-da in the Freudian sense: an object of attraction and revulsion, which one repeatedly draws to oneself and pushes away again. This ambivalence or fort-da (the movement between theatricality and anti-theatricality) is deeply inscribed in laws myths and tropes (as we have seen) and in its consciousness, but also in its history, its events, its doctrines, and its practices. ** We can return, then, to the history of the institutional relationship between law and theatre and recognize not only the two institutions reciprocity, but also their deep antipathy. Throughout their history, law has attempted to keep theatre in check, controlling performance venues, censoring plays, imprisoning actors.24 And theatre has persistently attempted to evade the laws control, springing up in the margins of the urban landscape (in the liberties of sixteenth-century London, for instance, or the eighteenthcentury Parisian foire), slipping past censorship with political innuendo and obscene 14 gesture, collecting crowds in the name of riot or rebellion, offering an alternative space of judgment in which to defy or transcend law. In the Laws, Plato described the relationship as one of rivalry, in which law had to suppress theatre in the interest of its own dramatizations. We are ourselves authors of a tragedy, says the hypothetical Athenian lawmaker to the tragic dramatist: Thus you are poets, and we also are poets in the same style, rival artists and rival actors, and that in the finest of all dramas, one which indeed can be produced only by a code of true law. . . . So you must not expect that we shall lightheartedly permit you to pitch your booths in our market square with a troupe of actors whose melodious voices will drown our own, and let you deliver your public tirades before our boys and women and the populace at largelet you address them on the same issues as ourselves, not to the same effect, but commonly and for the most part to the very contrary. Why, we should be stark mad to do so[!]25

The Athenian lawmakers views on the necessity of a prohibition on theatre were taken up in various forms throughout late antiquity and the middle ages, for instance in the sixth-century Digest of Justinian, which records an earlier fragment that imposed the penalty of infamia or civil death upon any citizen who has appeared on the stage to act or recite.26 Noting this fragment, Peter Goodrich argues that there was an ongoing competition between tragedy and the theater of civil law. Theatre was threatening because it offered trials that did not depend upon human intervention. It suggested an undecidability or openness to chance, to fate, to the limits of human knowledge, and so also to the ignorance that ceaselessly puts knowledge to work. It took law out of the hands of the magistrates and returned it to fate. It refused to decide.27 And so law had to 15 assert its power over performance: both in the form of the suppression of theatre and in the form of a monopoly, in which law was to be the only theatre in town. Goodrichs argument brings us back to Exodus first two commandments: mandating a monopoly on legal authority (Thou shalt have no other gods before me), and, as necessary supplement to the first, a monopoly on the representation of images and idols (Thou shalt not make unto thee any graven image, or any likeness of any thing).28 Goodrichs argument is a compelling one that nonetheless raises several questions. What of laws historical role in enabling theatre (setting up autonomous theatrical monopolies, funding companies)? What of the historical symbiosis I earlier described? It may be more fruitful to see legal control of theatre as an offshootan externalizationof laws regulation of its own theatricality, the corollary to its exploitation of its own theatricality. Here, it is useful to recall Platos despair at seeing Athens descend into a theatrocracy (or theatrical democracy), in which the mass audience of lay judges make the walls ring with the voice of their applause or censure of the alternate speakers, like the audience at a play.29 Plato can be seen here as expressing a split consciousness endemic to the law generally: a demand that the law have a monopoly on theatre (i.e. law should be the only entertainment forum in town); a rejection of rule by theatre (i.e. theatrocracy). We can see this split consciousnessthis ambivalence about legal theatricality in some of the earliest teachings of forensic oratory. While recognizing the uses of legal theatricality, Tacitus complained about the demand that it placed on lawyers:

unfortunately, courtroom audiences would no more put up with sober, unadorned oldfashionedness in a court of law than if you were to try to reproduce on the stage the 16 gesture of Roscius or Ambivius Turpio. In these fallen times, if the legal orator could not find something to engage [the judges] interest and prejudice him in your favour through piquant utterances or dramatic reenactments, he is against you.30 One was required to be theatrical, in a travesty of the majesty of the law. But, as the firstcentury Rhetorica ad Herennium counseled, one should not be too theatrical, or one might (heaven forfend) look like an actor (the lawyers gestures should not be conspicuous for either elegance or grossness, lest we give the impression that we are either actors or day labourers).31 The medieval church, while exploiting spectacular sound, light and costumes in ecclesiastical trials, along with the gory spectacle of earthly punishment, similarly both relied on and was nervous about the theatricality of the common lawyer and the susceptibility of legal audiences. Even while Thomas Basin, Bishop of Lisieux and professor of canon law at Caen in the later fifteenth century, recognized the pomp [of] oral trials and forensic oratory, which clearly puts on display a certain splendor and the magnificence of the courts, he wanted to replace oral with written pleadings. Just as actors could escape the control of the censor by interpolating dangerous material not in the text, so, Basin feared, could lawyers, so long as pleadings were oral.32 And [i]n many a Norman court, one sees that judges already determine cases according to the opinion of the majority of the spectators:33 an instance of theatrocracy necessary to be quashed. The idea of the theatrical, here, has its historically negative connotations: it is artifice, affectation, excess, melodrama, deception.34 According to the ninth-century collection of legislative acts, the Benedictus Levita, histriones (actors) and scurrae 17 (jesters) were not allowed to plead in court.35 For actors were, historically, liars. Sir Philip Sidney argued that poetryand by extension, theatreinvolved no more lying than law: [T]he poets give names to men they write of, which argueth a conceit of an actual truth, and so, not being true, proves a falsehood, he writes. But doth the

lawyer lie then, when under the names of John a Stile and John a Noakes he puts his case?36 But, pace Sidney, law, it was thought, was about accessing truth; theatre was about presenting lies.37 Law might be theatres cure, insofar as it could uncover the truth, but law was always to be wary of the theatre that lay in its heart. Legal Handbooks and Advice Manuals [This section will look at the dynamic between theatricality and antitheatricality in the legal handbooks and advice manuals that circulated in early modern Europe.] Doctrines: The Law of Evidence [This section will look at some of the ways in which the early modern law of evidence reflected the dynamic between theatricality and antitheatricality.] The Theatricality of the Modern [This section will look at the nexus of theatricality, textualism, and positivism in the nineteenth century. It will reflect on the importance of the birth of the modern newspress for law (and the concomitant rise of the media trial). It will look at the ways in which antitheatricality was used in the service of a rising positivism, in conjunction with European codification movements and European-wide reform of the rules of evidence. 18 But it will challenge the view that nineteenth-century modernity brought the final victory of a repressive textuality (harnessed to a rising positivism), or that it suppressed courtroom theatricality and (as Foucault and his followers have argued) transformed the theatre of punishment into an internalized regulatory order.] ** Lest we imagine that the dynamic between legal theatricality and antitheatricality is largely a pre-modern and early modern phenomenon, one that lost its power with the victory of modern rules of evidence and the norms of modern textualism, it is worth noting how persistent antitheatricality has remained for twentieth- and twentyfirstcentury commentators meaningful, of course, only in a world in which law is seen as irremediably theatrical. For Oliver Wendell Holmes, the lawyers task was to eliminat[e] . . . all the dramatic elements with which his clients story has clothed [the case], and retai[n] only the facts of legal import.38 A courtroom is not a stage, wrote the one-time Dean of Harvard Law School Erwin Griswold, and witnesses and lawyers, and judges and juries and parties, are not players. A trial is not a drama, and it is not held

for public delectation, or even public information. It is held for the solemn purpose of endeavoring to ascertain the truth.39 Or, in a more famous context, Hannah Arendt, complaining of the theatricality of the Eichmann trial, insisted: Justice does not permit . . . theatrics. It demands seclusion, [and] the most careful abstention from all the nice pleasures of putting oneself in the limelight.40 Or, more recently, in 2005 during the Michael Jackson trial, the bailiff reminded the audience (as the judge had many times): the courtroom is not a theatre.41 19 If early modern and modern evidence doctrines developed in relationship to this dialectic, one can find its imprint in doctrines that are still with us. Show trials are bad, but secret trials are bad as well.42 Criminal trials must be public (an inalienable right in the United States) and defendants in the Anglo-American system have a right to a jury trial: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.43 But they must not be too public: there must be no cameras in the courtroom, the courtroom must not be set up as a theatre, and juries must be shielded from the media.44 Evidence must be relevant: it must have direct narrative bearing on the unfolding plot of the trial. But it must not be too relevant (one cannot show a mutilated body), for then it would be prejudicial. Testimony should be live: the hearsay rule and the constitutional right of the accused to be confronted with the witnesses against him insist on bringing people (not just texts) on stage.45 But testimony should not be too lively: witnesses must stay in the box; video evidence, with its techniques of cinematic seduction, must be strictly controlled; certain things can be shown only in chambers. What the witnesses say and show should move juries, but it should not move them too much. One can thus see the dynamic between laws desire for theatre and its fear of it in the laws founding myths. One can see it shaping trials and their outcomes.46 One can see it in doctrines. One can see it in Quintilian, counseling the exploitation of theatrical devices but also warning that is unbecoming to use the tricks that arouse such merriment in farce, or to use the kinds of ribald jests [that] are employed upon the

stage (where the battles of the courts are concerned, he sighed, it was so very hard to separate drama and proper legal oratory).47 And one can see it in a recent article that 20 epitomizes this history (in a spirit not far distant from Quintilian): Acting Effectively in Court. The essay insists: BE NATURAL. Dont let the jury know youre acting. The courtroom is not a stage. . . . Theater is make believe, while the world that revolves around our practice of law is harsh reality.48 But, advising would-be litigators to transfer techniques from theater to the courtroom, the article recommends: train your voice; block your movements and gestures; learn to express emotion; and (most effective of all) employ character voices, as in the following script, in which counsel for the defense addresses the jury: If you had been in Billy Bobs shoes that night at the Commodore Club you would have seen that Joe Willie had fire in his eyes and smelled the alcohol on his breath. If you had been in Billy Bobs shoes that night at the Commodore Club, you would have thought: (Now with a slight drawl) Joe Willie doesnt understand that Im in love with Beth. Beth told me how violent he gets when hes drinkin. How hes capable of just about anything. In other words, be theatrical. But not too theatrical. The oscillation between theatricality and antitheatricality is not just a supplement to law, but at its heartdefining it and shaping its self-conceptionbecause law is not just a series of rules and principles, doctrines and holdings, or even structuring institutions. It is made up of events, actors doing things, people watching things, performances persuasive and unpersuasive. Recognizing this more fully should change the way we readand writelegal history, shifting our focus from legal texts as purveyors of doctrine, and shifting our attention to understudied areas of law: not just trials, but 21 promulgation, policing, punishment. It might give us very different answers to the most central questions of legal theory and history: what is law? where are its boundaries? in what does its authority lie? At the same time, it might give a different set of answers to the question of how law achieves its effects, how it persuades (or fails to persuade) people of the legitimacy of its use of force, how it exerts (or fails to exert) power over us. Finally, it might help us to understand our own era of media spectacles, which at once

replays and refashions the theatricality-antitheatricality dialectic so important to the history of law. 1 Many thanks to Nathaniel Berman, who, in addition to making many suggestions, reminded me of the Exodus passage discussed here and pointed out its relevance to my project. I am also indebted to my indefatigable research assistant, Michelle Knoetgen. 2 This quote, taken slightly out of context, is from a sentence made famous by Derridas The Force of Law: The Mystical Foundation of Authority, in Deconstruction and the Possibility of Justice, ed. David Gray Carlson, Drucilla Cornell, and Michel Rosenfeld (New York: Routledge, 1991), which I discuss in a related essay: Legal Performance Good and Bad, Law, Culture, and the Humanities 4:2 (special issue on Visual Arts, Performing Arts, and the Law) (spring 2008), pp. 179-200. Montaigne actually writes: Or les loix se maintiennent en credit, non par ce quelles sont justes, mais par ce quelles sont loix. Cest la fondement mystique de leur authorit; elles nen ont poinct dautre. Montaigne, Oeuvres compltes, ed. Albert Thibaudet and Maurice Rat, Bibliothque de la Pliade (Paris: Gallimard, 1962), p. 1049 (Essais Book III, Ch 13, De lexperience). 3 On the institutional links between forensic oratory, legal proof, and the classical dramatic tradition generally, see Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton: Princeton University Press, 1986) pp. 7-111. On the importance of law for Greek tragedy, see Jean-Pierre Vernant and Pierre Vidal-Naquet, Tragedy and Myth in Ancient Greece, trans. Janet Lloyd (Sussex: Harvester Press, 1981), pp. 3-5 and throughout (influenced by the unpublished work of Louis Gernet). On the shared juridical and tragic meaning of agon, see Jacqueline Duchemin, L[agon] dans la tragdie grecque, 2nd ed. (Paris: Les Belles Lettres, 1968). 4 Luca, Theatrum veritatis et justitiae, 19 vols. (Rome, 1669-77). Bentham, Rationale of Judicial Evidence, in The Works of Jeremy Bentham, ed. John Bowring (London, Simpkin Marshall, 1843), vol. VI, p. 354. 5 See Richard Van Dlmen, Theatre of Horror: Crime and Punishment in Early Modern Germany, trans. Elisabeth Neu (Cambridge: Polity Press, 1990); and Mitchell B. 22 Merback, The Thief, the Cross, and the Wheel: Pain and the Spectacle of Punishment in Medieval and Renaissance Europe (Chicago: University of Chicago Press, 1999). 6 In Legal Performance Good and Bad, I discuss those few critics who have in fact

addressed the question of legal performance or laws theatrical nature. In addition to the texts I discuss there, two collections are worth noting: the papers given at the Cardozo Law School symposium entitled Theaters of Justice and Fictions of Law in the spring of 1999 (collected in Cardozo Studies in Law and Literature 11:1 and 11:2 [spring and winter 1999], dealing, however, primarily with law as theme in drama and the work of Pierre Legendre); and Dennis Kezar, ed., Solon and Thespis: Law and Theater in the English Renaissance (Notre Dame: University of Notre Dame Press, 2007, focused, however, almost wholly on law as represented in the drama). 7 See Geertz, Thick Description: Toward an Interpretative Theory of Culture, in Geertz, The Interpretation of Cultures (New York: Basic Books, 1973), pp. 3-30. 8 Legal Performance Good and Bad. 9 See Eden, pp. 7-8. On the education of dramatists in the schools of rhetoric, see Georgia Xanthakis-Karamanos, The Influence of Rhetoric on Fourth-Century Tragedy, Classical Quarterly, New Series, 29:1 (1979), p. 67. For a similar argument about the relationship between law and drama, see Daniel Larner, Justice and Drama: Historical Ties and Thick Relationships, Legal Studies Forum 22 (1, 2 & 3) (1998), pp. 3-%. 10 See Jody Enders Rhetoric and the Origins of Medieval Drama (Ithaca: Cornell University Press, 1992), p. 20, citing James J. Murphy ed., A Synoptic History of Classical Rhetoric (New York: Random House, 1972), pp. 4-5 (antiphonal exchanges are part of the same spirit [p. 5]). See also the more speculative comments in William Arrowsmith, The Criticism of Greek Tragedy, Tulane Drama Review 3:3 (March 1959), pp. 31-57. 11 Quintilian, The Institutio Oratoria of Quintilian, trans. H. E. Butler, 4 vols., Loeb Classical Library (Cambridge: Harvard University Press, 1969-79), vol. II, p. 403 (Book VI, I.30-31); quoted in Enders, pp. 61-2. 12 Ibid., vol. II, p. 403 (Book VI, I.30); quoted Enders, p. 61. 13 Ibid., vol. IV, pp. 243-5 (Book XI, II.2); quoted in Enders, p. 21. 14 Ibid., vol. II, pp. 399-401 (Book VI, I.26); quoted in Enders, p. 57. 15 Ibid., vol. II, p. 399 (Book VI, I.25-6); quoted in Enders, p. 57. 16 Ibid., vol. II, p. 437 (Book VI, II.34-5); quoted in Enders, p. 58. 17 Ibid., vol. II, p. 437 (Book VI, II.35); quoted in Enders, p. 58. 18 See Chas. B. Newcomer, The Puy at Rouen, PMLA 31:2 (1916), pp. 211-12. 19 See A. Wigfall Green, The Inns of Court and Early English Drama (New Haven: Yale University Press, 1931). And see Subha Mukherji, Law and Representation in Early Modern Drama (Cambridge: Cambridge University Press, 2006), pp. 174-92, on the constant traffic between the Inns and Londons larger theatrical culture. 20 On forensic rhetoric and the origins of medieval drama in France (including that

of the Basoche), see Enders. On the theatre of the Basoche, see also Howard Graham Harvey, Theatre of the Basoche: The Contribution of the Law Societies to French Mediaeval Comedy (Cambridge: Harvard University Press, 1941). 23 21 Stephen Spector, ed. The N-Town Play: Cotton MS Vespasian D. 8, 2 vols. (Oxford: Oxford University Press, 1991), vol. 1, pp. 139-52. Richard Beadle, ed., The York Plays, York Medieval Texts, Second Series (London: E. Arnold, 1982), pp. 242-83. 22 Barish, The Antitheatrical Prejudice (Berkeley: University of California Press, 1981). 23 Fried, Absorption and Theatricality: Painting and Beholder in the Age of Diderot (Berkeley: University of California Press, 1980). 24 Nadine D. Pederson, Toward an Urban Stage: Law and Performance in Paris, 15151559, CUNY Diss. 2004, notes that in early sixteenth-century Parisa foundational moment for European theatrethere were almost twice as many laws passed supporting theatre than suppressing it (p. v), but the laws passed supporting it in fact offer attempts to regulate theatre as institution. 25 Plato, in Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Cairns (Princeton: Princeton University Press, 1961), p. 1387 (Laws, trans. A. E. Taylor, Book VII, 817b-c). 26 The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, trans. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985), vol. I, p. 82 (Justinian Vol. I, Book 3, Chapter 2, section 1 [Julian, Edict 1]); quoted in Goodrich, Europe in America: Grammatology, Legal Studies, and the Politics of Transmission, 101 Columbia Law Review 101 (Dec. 2001) p. 2080. 27 Goodrich, Europe in America, p. 2080-81. See especially the following: The antagonism between law and theater is antique and continuing. It is historically the record of struggle between two different yet competing modes of portraying the discourse of fate, the drama of social life, of guilt and innocence. It is a competition over the proper mode of portraying the trajectory of life toward death, and its antiquity as well as its antinomy should allow a certain distance from the theme. Law has retained its pride of place as the primary and most serious form of social self reflection upon the public stages of the West. Law has survived the various forms of legitimate theater and not only has coexisted with the silver screen, but has benefited from it and its innumerable

portraits of the drama and excitement of legal trial (2081). 28 Exodus 20:3-4. It is worth noting Gods later but related insistence on a monopoly on violenceThou shalt not kill (Exodus 20:13)equally necessary to the authority of his legal system. 29 Plato, p. 1435 (Laws, Book IX, 876b; and see Laws, Book III, 701a for theatocracy, which A. E. Taylor translates as sovereignty of the audience [p. 1294]). 30 Tacitus, Tacitus in Five Volumes, 5 vols., Loeb Classical Library (Cambridge: Harvard University Press, 1968-70), vol. I, p. 283 (A Dialogue on Oratory, Section 20); quoted in Enders, p. 117. 31 [Cicero], Ad C. Herennium de ratione dicendi, trans. Harry Caplan, Loeb Classical Library (Cambridge: Harvard University Press, 1954), pp. 202-203 (Book III:26); quoted in Enders, p. 24 (falsely attributed to Cicero). 32 See Basin p. 54; and Enders, p. 42. 33 Basin, Apologie ou Plaidoyer pour moi-mme, ed. Charles Samaran and Georgette de Gror (Paris: Belles-Lettres, 1974), pp. 50, 61; trans. Enders, p. 41. 24 34 For an excellent discussion of the far wider range of theatricality than I have indicated here, see Tracy C. Davis and Thomas Postlewaits introduction to Theatricality, ed. Davis and Postlewait (Cambridge: Cambridge University Press, 2003), pp. 1-39. 35 This collection may not represent actual decrees. See the discussion in E. K. Chambers, The Mediaeval Stage, 2 vols. (London: Oxford University Press, 1903), vol. I, pp. 37-8. See also Enders, p. 40 on the fifteenth-century campaign for the reform of legal oratory through its reduction to writing. 36 Sir Philip Sidney, An Apology for Poetry, ed. Geoffrey Shepherd (London: T. Nelson, 1965), p. 124; quoted in Eden, p. 3. 37 This antithesis is captured in Plutarchs anecdote about the confrontation between Solon (the lawmaker) and Thespis (the actor), which serves to open Dennis Kezars collection, Solon and Thespis: after attending one of Thespis plays, Solon asks Thespis if he was not ashamed to tell so many lies before such a number of people. Kezar ed., p. 1. 38 Holmes, Collected Legal Papers (New York: Harcourt, Brace and Company, 1921), p. 168 (The Path of Law).

Erwin N. Griswold, The Standards of the Legal Profession: Canon 35 Should not Be Surrendered, American Bar Association Journal 48 (1962), p. 616, col. 1. See similarly Alan M. Dershowitz: When we import the [dramatic] narrative form of storytelling into our legal system, we confuse fiction with fact and endanger the truth-finding function of the adjudicative process. Life is not a Dramatic Narrative, Laws Stories: Narrative and Rhetoric in the Law, ed. Peter Brooks and Paul Gewirtz (New Haven: Yale University Press, 1996), p. 101. 40 Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, revised ed. (New York: Penguin, 1994), p. 6. 41 Reporters Log: Michael Jackson Trial, BBC News, June 1, 2005. http://news.bbc.co.uk/2/hi/entertainment/4511991.stm. 42 I owe this point to Nathaniel Berman. 43 United States Constitution, Amendment VI. 44 See e.g. Estes v. Texas, 381 U.S. 532, 552 (1965) (television coverage infringed the defendants right to a fair trial, insofar as it involved a kind of staging of criminal proceedings [573] and returned the theater to the courtroom [571]). 45 United States Constitution, Amendment VI. And see Philip Auslanders important discussion of laws preference for liveness, as exemplified in the fate of the Prerecorded Video Trial, in Auslander, Liveness: Performance in a Mediatized Culture (New York: Routledge, 1999), pp. 112-131. 46 See, for instance, my discussion of the trial of Warren Hastings for colonial atrocities at the end of the eighteenth century. Theatricality, Legalism, and the Scenography of Suffering in the Trial of Warren Hastings and Richard Brinsley Sheridans Pizarro, Law and Literature 18:1 (spring 2006), pp. 15-45. Here, legal theatricality was selfconsciously at issue, becoming a demonstration of natural law, universalism, and humanitarianism (set in opposition to cramped text-bound legalism). The trial became, in a sense, a trial of legal theatricality against an antithetical legalism, in which public outrage at the prosecutors theatrical excesses was at least partial cause of Hastings full acquittal. 25 47 Quintilian, vol. II, p. 453 (Book VI, III.29); quoted in Enders, p. 24. 48 Donald B. Fiedler, Acting Effectively in Court: Using Dramatic Techniques, The Champion 25 (July 2001), pp. 19-21 (italics added). See similarly David Ball, Theater Tips and Strategies for Jury Trials (Notre Dame: National Institute for Trial Advocacy,
39

1994).