Theatricalizing Law

ABSTRACT

To theatricalize law is to ask lawyers to be aware and responsive to the world that creates them and to be conscious of worlds beyond words. For the theatrical reminds us that law has to see as well as to interpret, and that seeing occurs through the body, even more so than the intellect. Reviewing the work of some of the key scholars whose work engages with the concept of theatricalizing law, this article challenges the presumption of dramatic verities and certainties as the mark of an effective critical form in law. Instead, to think law theatrically challenges knowledge, expectations, beliefs, certainties, assumptions, and prejudices, and this article concludes with an example of the challenge wrought by a simple theatricalization in which a set of images that could and did mean anything were played, allowing the audience to make their choices because they were unguided. And then the most exceptional and meaningless of the images were explained, and the horror imbricated in them revealed. This theatricalization did its job, and the text revealed in ways that law as drama could not, as this article reveals, as a theatricalization of its own.

Keywords:

• post-dramatic theater
• Vel’ d'Hiv
• The Empty Space
• Peter Brook
• jurisography
• Jerzy Grotowski
• Hans-Thies Lehmann
• Hannah Arendt
• theatricality
• theater
• antitheatricality
• theatrical jurisprudence
• bodily responses
• theatricalizing law
• staging law and justice

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

Notes

1. Hans-Thies Lehmann, Tragedy and Dramatic Theatre, trans. Erik Butler (Abingdon: Routledge, 2016), 27 (references excluded from the quotation).

2. Jonas Barish, The Antitheatrical Prejudice (Berkeley: University of California Press, 1981); Martin Puchner, Stage Fright: Modernism, Anti-Theatricality, and Drama (Baltimore: Johns Hopkins University Press, 2002); cf. David Kornhaber, “Introduction: Drama and Philosophy 2.0,” Modern Drama 56, no. 4 (2013): 419–33; cf. David Kornhaber, The Birth of Theater from the Spirit of Philosophy: Nietzsche and the Modern Drama (Evanston: Northwestern University Press, 2016).

3. Samuel Weber, Theatricality as Medium (New York: Fordham University Press, 2004), ix–xi; Julie Stone Peters, “Legal Performance Good and Bad,” Law, Culture & the Humanities 4, no. 2 (2008): 179–200; cf. Martin Puchner, The Drama of Ideas: Platonic Provocations in Theater and Philosophy (Oxford: Oxford University Press, 2010).

4. Martin Puchner, “Afterword: Please Mind the Gap between Theatre and Philosophy,” Modern Drama 56, no. 4 (2013): 540–53, at 542: “Philosophy […] is not an object of study, like theatre, but an intellectual practice.”

5. Lehmann, Tragedy and Dramatic Theatre, 24: “Plato's rage against (more than his critique of) tragedy.”

6. Bret Walker SC (Senior Counsel) in argument in Atradius Credit Insurance N.V. v Prepaid Services Pty Limited & Ors; Prepaid Services Pty Ltd v Optus Mobile Pty Ltd & Ors [2015] HCATrans 155 (June 19, 2015). The Australian High Court is the ultimate court of appeal, and not to be confused with the lower level British courts.

7. Von Risefer & Anor v Permanent Trustee Company [2000] QCA 374 (September 13, 2000), Thomas J.

8. For example, “Theaters of Justice and Fictions of Law” [Special Issue], Cardozo Studies in Law and Literature 11, no. 2 (1999); Leslie J. Moran, Gary Watt, Linda J. Mulcahy, and David J. Isaac, “A Review of Ruth Herz, The Art of Justice: The Judge's Perspective,” Law and Humanities 7, no. 1 (2013): 113–28, at 116; Yasco Horsman, Theaters of Justice: Judging, Staging, and Working Through in Arendt, Brecht, and Delbo (Stanford: Stanford University Press, 2010).

9. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil [1963], intro. Amos Elon (New York: Penguin, 2006); Horsman, Theaters of Justice, 135; cf., e.g., Shoshana Felman, “Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust,” Critical Inquiry 27, no. 2 (2001): 201–38; Michael Bachmann, “Theatre and the Drama of Law: A ‘Theatrical History’ of the Eichmann Trial,” Law Text Culture 14 (2010): 94–116.

10. Horsman, Theaters of Justice, 16.

11. Ibid., 17.

12. Kirsty Duncanson and Emma Henderson, “Narrative, Theatre, and the Disruptive Potential of Jury Directions in Rape Trials,” Feminist Legal Studies 22, no. 2 (2014): 155–74, who rely on Goffman's concept of dramaturgy, theater, and drama; Frans-Willem Korsten, “Öffentlichkeit and the Law's Behind the Scenes: Theatrical and Dramatic Appearance in European and U.S. American Criminal Law,” German Law Journal 18, no. 2 (2017): 399–422.

13. Peter Goodrich, “Specters of Law: Why the History of the Legal Spectacle has Not been Written,” UC Irvine Law Review 1, no. 3 (2011): 773–812, at 779–80 (references have been omitted; emphasis added).

14. But see Nicole Rogers, “The Play of Law: Comparing Performance in Law and Theatre,” QUT Law Review 8, no. 2 (2008): 429–43.

15. Goodrich, “Specters of Law,” 808.

16. Marett Leiboff and Mark Thomas, Legal Theories: Contexts and Practices, 2nd ed. (Sydney: Thomson Reuters, 2014): 17–20.

17. Peter Brook, The Empty Space (Harmondsworth: Penguin, 1968), 11.

18. Lehmann, Tragedy and Dramatic Theatre, 24.

19. Alan Read, Theatre & Law (London: Palgrave, 2016), 40.

20. Ibid., 41. I do not intend to consider the overly worn path of J. L. Austin's performatives here.

21. “theatre, n.,” OED Online (Oxford: Oxford University Press, March 2017).

22. “drama, n.,” ibid.

23. Cf. Korsten, “Öffentlichkeit and the Law's Behind the Scenes,” 404.

24. Hans-Thies Lehmann, “From Logos to Landscape: Text in Contemporary Dramaturgy,” Performance Research 2, no. 1 (1997): 55–60, at 57; also Hans-Thies Lehmann, Postdramatic Theatre, trans. and intro. Karen Jürs-Munby (Abingdon: Routledge, 2006).

25. Marett Leiboff, “Law, Muteness and the Theatrical,” Law Text Culture 14 (2010): 384–91; Marett Leiboff, “Towards a Jurisprudence of the Embodied Mind – Sarah Lund, Forbrydelsen and the Mindful Body,” Navein Reet: Nordic Journal of Law and Social Research 6, no. 2 (2015): 77–92.

26. Lehmann, “From Logos to Landscape,” 56.

27. Ibid.

28. Ibid.

29. Ibid., 57.

30. For example, Robert Leach, Vsevolod Meyerhold (Cambridge: Cambridge University Press, 1989).

31. Weber, Theatricality as Medium, 2–3.

32. Korsten, “Öffentlichkeit and the Law's Behind the Scenes.”

33. For an instance of the confusion of definitions, see Francis Bacon's complaint of the idol of the theater. The direction of his complaint was drama; Jürgen Klein, “Francis Bacon,” in The Stanford Encyclopedia of Philosophy (Winter 2016 ed.), ed. Edward N. Zalta, https://plato.stanford.edu/archives/win2016/entries/francis-bacon/: , 3.1.4; cf. Ragnhild Tronstad, “Could the World become a Stage? Theatricality and Metaphorical Structures,” SubStance #98/99 31, nos. 2–3 (2002): 216–24.

34. Goodrich, “Specters of Law,” 808.

35. Erika Fischer Lichte, “From Theatre to Theatricality – How to Construct Reality,” Theatre Research International 20, no. 2 (1995): 97–105; Josette Féral, “Theatricality: The Specificity of Theatrical Language,” SubStance #98/99 31, nos. 2–3 (2002): 94–108; Janelle Reinelt, “The Politics of Discourse: Performativity Meets Theatricality,” SubStance #98/99 31, nos. 2–3 (2002): 201–15; cf. Stone Peters, “Legal Performance Good and Bad,” 182.

36. Erving Goffman, The Presentation of Self in Everyday Life (New York: Doubleday, 1959), draws on a “staging” image of theater to make claims about the self in society, as sociology: “Scripts even in the hands of unpracticed players can come to life because life itself is a dramatically enacted thing. All the world is not, of course, a stage, but the crucial ways in which it isn't are not easy to specify,” 72. But see Greta Bird and Nicole Rogers, “Talking to Judges about the Art of Judging: An Annotated Performance Text,” Public Space: Journal of Law and Social Justice 3 (2009): art. 4, 1–18, and the accompanying multimedia performance.

37. Schechner is the founder of performance studies, which takes the concept of the lived encounter, within and beyond a theater space, that is, into the myriad forms of lived experience. Among his work in the field, see, for example, Richard Schechner: Performed Imaginaries (Abingdon: Routledge, 2015); Performance Theory: Essays on Performance Theory, 1970–1976 (London: Routledge, 2003); The Future of Ritual: Writings on Culture and Performance (London: Routledge, 1993); and Between Theater & Anthropology, foreword Victor Turner (Philadelphia: University of Pennsylvania Press, c.1985).

38. “‘Showing doing’ is performing: pointing to, underlining, and displaying doing”; Richard Schechner, Performance Studies: An Introduction (New York: Routledge, 2002), 22.

39. “Theatre of cruelty” as defined in “theatre, n,” OED Online. Antonin Artaud: Collected Works, trans. Victor Corti (London: Calder & Boyars, 1974), reveals Artaud's struggle to explain precisely what the term meant in the 1930s against the existing image of theater in France at the time.

40. Artaud, Antonin Artaud, 60.

41. Ibid., 61.

42. Lehmann, Tragedy and Dramatic Theatre, 163.

43. Ibid., 424.

44. Christian Biet, “Towards a Dramaturgy of Appearance: An Aesthetic and Political Understanding of the Theatrical Event as Session,” Performance Research: Journal of the Performing Arts 14, no. 3 (2009), 102–09, at 109.

45. Alain Badiou, Rhapsody for the Theatre, ed. and trans. Bruno Bosteels (London: Verso, 2013); Alain Badiou with Nicolas Truong, In Praise of Theatre (London: Polity, 2015); Martin Puchner, “The Theatre of Alain Badiou,” Theatre Research International 34, no. 3(2009): 256–66.

46. Jacques Derrida, “The Theater of Cruelty and the Closure of Representation,” Theater 9 no. 3 (1978): 6–19.

47. Cornelia Vismann, “‘Rejouer les crimes’ – Theater vs. Video,” Cardozo Studies in Law and Literature 11, no. 2 (1999): 161–77; Julie Stone Peters, “Theatricality, Legalism, and the Scenography of Suffering,” Law and Literature 18, no. 1 (2006): 15–45.

48. From an immense literature of Goodrich's work, see, for example: Pierre Legendre, Law and the Unconscious: A Legendre Reader, trans. and ed. Peter Goodrich (London: Palgrave, 1997); as well as: Goodrich, “Specters of Law”; “Screening Law,” Law and Literature 21, no. 1 (2009): 1–23; “Rhetoric and Somatics: Training the Body to Do the Work of Law,” Law Text Culture 5 (2000): 241–70; and “The Theatre of Emblems: On the Optical Apparatus and the Investiture of Persons,” Law, Culture & the Humanities 8, no. 1 (2012): 47–67.

49. For example, Christian Biet, “Law, Literature, Theatre: The Fiction of Common Judgment,” Law and Humanities 5, no. 2 (2011): 281–92.

50. Maria Aristodemou, Law and Literature: Journeys from Her to Eternity (Oxford: Oxford University Press, 2000), esp. “Theatre as Woman Re-Playing the Word: Towards the Triumph of the Flesh in Aeschylus’ Oresteia,” 58–80.

51. Connal Parsley, “The Mask and Agamben: The Transitional Juridical Technics of Legal Relation,” Law Text Culture 14 (2010): 12–39; Richard Mohr, “Flesh and the Person,” Australian Feminist Law Journal 29 (2008): 31–52.

52. Peter Rush, “Killing Me Softly with His Words: Hunting the Law Student,” Law and Critique 1, no. 1 (1990): 21–37.

53. Marett Leiboff, “Theatricalising Law in Three, 1929–1939 (Brisbane),” Law Text Culture 20 (2016): 93–135; Leiboff, “Towards a Jurisprudence of the Embodied Mind”; Leiboff, “Law, Muteness and the Theatrical.”

54. Julen Extabe, The Experience of Tragic Judgment (Abingdon: Routledge, 2013).

55. Including Paul Raffield, Shakespeare's Imaginary Constitution: Late-Elizabethan Politics and the Theatre of Law (Oxford: Hart, 2010).

56. Honni van Rijswijk, “Towards a Feminist Aesthetic of Justice: Sarah Kane's Blasted as Theorisation of the Representation of Sexual Violence in International Law,” Australian Feminist Law Journal 29 (2008): 107–24.

57. Augusto Boal, Theatre of the Oppressed, trans. Charles A. and Maria-Odilia Leal McBride and Emily Fryer (London: Pluto, 2008); Augusto Boal, Legislative Theatre: Using Performance to Make Politics, trans. Adrian Jackson (Abingdon: Routledge, 1998).

58. I will be bypassing the recent work on theatrocracy, which speaks more to politics than to theater.

59. Brook, Empty Space, 27–28.

60. Marc Fumaroli, Jerzy Grotowski, and George Reavey, “External Order, Internal Intimacy: An Interview with Jerzy Grotowski,” TDR – The Drama Review 14, no. 1 (1969): 172–77.

61. Brook, Empty Space, 27–29.

62. Hana Worthen, “For a Skeptical Dramaturgy,” Theatre Topics 24 no. 3 (2014): 175–86.

63. Leiboff, “Theatricalising Law in Three.”

64. Alan Moses, “The Mask and the Judge” [Special Issue: “The Art of Judging”], Southern Cross University Law Review 12 (2008): 1–24.

65. Owen Bowcott and Roy Greenslade, “Here Comes the Judge – The Maverick Aiming to Tame Britain's Raucous Press,” The Guardian May 16, 2014, https://www.theguardian.com/theguardian/2014/may/16/sir-alan-moses-ipso-profile/./.

66. Parsley, “Mask and Agamben,” 16, 30–31.

67. Ann Genovese, Shaun McVeigh, and Peter D. Rush, “Introduction,” Law Text Culture 20 (2016): 1–13, at 2.

68. Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling Place (Abingdon: Routledge, 2016).

69. Andreas Philippopoulos-Mihalopoulos, Spatial Justice Body, Lawscape, Atmosphere (Abingdon: Routledge, 2015).

70. Barr, Jurisprudence of Movement, 7.

71. Also James E. K. Parker, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi (Oxford: Oxford University Press, 2015).

72. Brook, Empty Space, 66–67.

73. Jerzy Grotowski, Towards a Poor Theatre, ed. Eugenio Barba, preface Peter Brook (London: Methuen, 1969).

74. Brook, Empty Space, 111.

75. Ibid., 151. Earlier in his account of the deadly theater, Brook describes faithful productions that had been kept alive for 40 or more years, but “none of these had more than antiquarian interest, none had the vitality of new invention,” ibid., 18.

76. Goodrich, “Specters of Law,” 811.

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Marett Leiboff

Marett Leiboff is Associate Professor at the School of Law, University of Wollongong, New South Wales, Australia. Her research and scholarship center on the legal theories of cultural legal studies, law, and humanities and theatrical jurisprudence, with a particular focus on how the nonlegal formation of the lawyer affects and influences practices of legal interpretation. She holds a postgraduate degree in theater studies, undertaken long before she became a lawyer, and, without realizing it, theatricalizes just about everything she does. She is in the process of finalizing the writing of a long-overdue book, Towards a Theatrical Jurisprudence (Routledge, 2018).