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ABSTRACT
Based on fieldwork at criminal courts in the metropolitan area of Lisbon, the article examines the performativity of criminal justice. The written and unwritten rules of criminal trial procedures are analysed as judicial scripts that guide the “making” of Justice. The formalities of the criminal trial, like those that prescribe the correct behaviour of defendants in Portuguese courts, are tied to the liminality of their social standing and their betwixt-and-between position in the court and in society. Script compliance is discussed as a central element within the production of criminal justice. Finally, the article suggests a performative view of justice, drawing on Butler's ideas regarding the enactment and construction of notions of gender.
Notes on contributor
Peter Anton Zoettl is a postdoctoral researcher at the Centre for Research in Anthropology, University of Minho (CRIA-UM), Portugal. His main research interests lie in the fields of visual and legal anthropology. He has carried out research (in Portugal, Brazil, Germany, and lusophone Africa) on the social uses of images and the employment of film and photography as a medium for the representation of anthropological knowledge; the power relations immanent in image production and consumption; dynamics of power and performativity within the juridical field; juvenile marginality, offending and justice; marginality, empowerment and artistic practices; indigenous minorities, indigenous image production, indigenous rights and justice.
Notes
1. Johan Huizinga, Homo Ludens: A Study of the Play-Element in Culture (London: Routledge, 1980), 82, 76.
2. Milner S. Ball, “The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater,” Stanford Law Review 28, no. 1 (1975): 100, 86.
3. John E. Simonett, “The Trial as One of the Performing Arts,” Amercian Bar Association Journal 52 (1966): 1145.
4. Ball, “The Play's the Thing,” 82.
5. Dwight Conquergood, “Lethal Theatre: Performance, Punishment, and the Death Penalty,” Theatre Journal 54, no. 3 (2002): 343.
6. Pat Carlen, “Remedial Routines for the Maintenance of Control in Magistrates’ Courts,” British Journal of Law and Society 1, no. 2 (1974): 101–17; Pat Carlen, “The Staging of Magistrates’ Justice,” British Journal of Criminology 16, no. 1 (1976): 48–55; Nigel Eltringham, “Spectators to the Spectacle of Law: The Formation of a ‘Validating Public’ at the International Criminal Tribunal for Rwanda,” Ethnos 77, no. 3 (2012): 425–45.
7. David Evans, “Theatre of Deferral: The Image of the Law and the Architecture of the Inns of Court,” Law and Critique 10, no. 1 (1999): 1–25; Clare Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (Aldershot, UK: Ashgate, 2003); Julienne Hanson, “The Architecture of Justice: Iconography and Space Configuration in the English Law Court Building,” arq: Architectural Research Quarterly 1, no. 04 (1996): 50–59; Linda Mulcahy, “Architects of Justice: the Politics of Courtroom Design,” Social & Legal Studies 16, no. 3 (2007): 383–403; Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (New York: Routledge, 2011); Katherine Fischer Taylor, In the Theater of Criminal Justice: The Palais de Justice in Second Empire Paris (Princeton, NJ: Princeton University Press, 1993).
8. While I hope that complementing my observations from Portugal with isolated references to German trials (and other authors' findings, mainly from England) will help to elucidate the diversity in the ways criminal trials are staged, the main reason for having chosen both jurisdictions is that I know them at first hand.
9. See Judith Butler, “Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory,” Theatre Journal 40, no. 4 (1988): 519–31.
10. Fieldwork for this research was undertaken during three months each at the criminal courts of first instance of Amadora, the courts of first instance and appeal of Sintra (both near Lisbon, Portugal), and the local and regional courts of Berlin, Germany.
11. Código de Processo Penal (CPP), DL 78/1987, Art. 329. All quotations originally in Portuguese have been translated by the author unless otherwise stated. As nearly all of the defendants I encountered in Sintra, Amadora, and Berlin were male, I will henceforth use the masculine gender form.
12. See, for example, Carlen, “The Staging of Magistrates’ Justice,” 52.
13. CPP, Art. 361.
14. Ibid., Art. 343(1).
15. Ibid., Art. 64.
16. See Mulcahy, Legal Architecture, 60.
17. Carlen, “The Staging of Magistrates’ Justice,” 50.
18. Mulcahy, “Architects of Justice,” 397.
19. Mulcahy, Legal Architecture, 52, 70–71.
20. Hanson, “The Architecture of Justice,” 56–57.
21. CPP, Art. 324.
22. John L. Austin, How to Do Things with Words (Cambridge, MA: Harvard University Press, 1975).
23. CPP, Art. 91.
24. Carlen, “Remedial Routines,” 103, 107.
25. Conquergood, “Lethal Theatre,” 360, 361.
26. Carlen, “Remedial Routines,” 104, 116, 111.
27. Carlen, “The Staging of Magistrates’ Justice,” 49, 53.
28. Roberto DaMatta, Carnavais, Malandros e Heróis: Para uma Sociologia do Dilema Brasileiro (Rio de Janeiro: Rocco, 1997), 96.
29. Carlen, “Remedial Routines,” 104; Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” Hastings Law Journal 38, no. 7 (1987): 828–29.
30. Ball, “The Play's the Thing,” 84.
31. Evans, “Theatre of Deferral,” 7, 17.
32. Mulcahy, Legal Architecture, 29.
33. Ibid., 59, 63.
34. Carlen, “The Staging of Magistrates’ Justice,” 54.
35. Huizinga, Homo Ludens, 76–77; Mulcahy, Legal Architecture, 38.
36. Mulcahy, Legal Architecture, 10.
37. Harold Garfinkel, “Conditions of Successful Degradation Ceremonies,” American Journal of Sociology 61, no. 5 (1956): 420–24.
38. See Mulcahy, Legal Architecture, 78.
39. Huizinga, Homo Ludens, 77.
40. Hanson, in her study on English law court architecture, has likewise tied the discrete and segregated territories of the courtroom to the “rite of passage” to which a defendant is submitted, “separat[ing] him or her in custodial space” until being either “reincorporated into society or expelled and re-categorised as a criminal.” Hanson, “The Architecture of Justice,” 57.
41. CPP, Art. 202.
42. Francis J. Pakes, Comparative Criminal Justice (Cullompton, UK: Willan, 2010), 64.
43. CPP, Art. 325.
44. Bruno Latour, The Making of Law: An Ethnography of the Conseil d'Etat (Cambridge, UK: Polity, 2010), 53f.
45. Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage Books, 1979), 38.
46. See for example Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (London, UK: Pluto Press, 1994).
47. Michel Foucault, The History of Sexuality (New York: Pantheon Books, 1978), 67; Michel Foucault, “The Order of Discourse,” in Untying the Text: A Post-structuralist Reader, ed. Robert Young (Boston, MA: Routledge & Kegan Paul, 1981), 55.
48. Foucault, Discipline and Punish, 44.
49. Ibid., 38, 34.
50. Michel Callon, “What Does It Mean to Say that Economics Is Performative?,” in Do Economists Make Markets? On the Performativity of Economics, ed. Donald A. MacKenzie, Fabian Muniesa, and Lucia Siu (Princeton, NJ: Princeton University Press, 2007), 316.
51. Butler, “Performative Acts,” 528.
52. Ibid.
53. Ibid.
54. Bourdieu, “The Force of Law,” 838, 839.
55. Butler, “Performative Acts,” 526.
56. Pierre Bourdieu, The Logic of Practice (Stanford, CA: Stanford University Press, 1992), 73, 35.
57. Bourdieu, “The Force of Law,” 828.
58. Butler, “Performative Acts,” 522.
59. CPP, Art. 324.
60. Conquergood, “Lethal Theatre,” 360, 343.
61. Butler, “Performative Acts,” 526.
62. Conquergood, “Lethal Theatre,” 347; Butler, “Performative Acts,” 522.
63. Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983), 232, 173.
64. Ball, “The Play's the Thing,” 108.
65. Huizinga, Homo Ludens, 77; Bourdieu, “The Force of Law,” 823.