A History of Law as Performance

In 1573, the King of France staged a trial between two celebrity lawyers as entertainment for visiting Polish ambassadors. The case—about a priest in disguise, his bastard son, and some greedy relatives—sounds like an improbable law school hypothetical, but turns out to have been a real case. The most flamboyant of the two lawyers won, and the verdict served as legal precedent.

In Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe, Julie Stone Peters, the H. Gordon Garbedian Professor of English and Comparative Literature (LAW'97), traces the history of legal performance. She investigates how performance literally created law, in civic arenas, courtrooms, judges' chambers, marketplaces, scaffolds, and streets. In doing so, Peters recovers a largely overlooked, but profoundly influential tradition of jurisprudential thought about law as a performance practice.

Peters elaborates on the book with Columbia News, along with how this tradition of law as performance practice is still occurring today, perhaps more intensely than ever before.

How did you come up with the idea for this book?

I’d been thinking about it for a long time, but one moment in particular crystallized it. I’d been called for jury duty, and was sitting on a hard bench in a sea of potential jurors in the Manhattan Criminal Courthouse, when one of the lawyers came bounding up the aisle, jumped on a bench, and spun to face us: “You may think this is just like what you’ve seen on TV, but this is no TV show, ladies and gentlemen! This is real life!”

I thought: That’s almost exactly what the lawyer said in the 1572 case report I read the other day—just replace “TV” with “theater.” Cicero more or less said that, too, and Augustine, and, in fact, countless others, from ancient Athens onward. When legal philosophers ask, “What is law?” they come up with answers like “a system of rules.” But when judges and lawyers declare, “This is law, not theater”—as they have throughout history—they’re also defining law by saying that when law becomes theater, it isn’t really law. These may be spontaneous outbursts, but they actually contain an implicit theory of law.

People like Cicero may have declared that law isn’t theater, but they also spent a lot of time writing instructions on how to act in the courtroom, and how to use performance to win your case. Later theorists elaborated for their own courts, and these writings make up an important tradition of legal thought. Yet in all the tomes of legal history I’ve read, no one mentions any of this. In fact, traditional legal historians mostly ask such questions as, “What is the origin of the jury system?” or “Were there medieval precursors of the right to privacy?”

These are interesting questions, but they treat legal doctrines and institutions as abstract, disembodied ideas, ignoring the scenes of conflict in which they were forged, with all the emotion and drama—ignoring all the ways people used performance as a form of legal persuasion. Waiting for jury selection, I looked at the defendant, who was young and scared, and I thought: what’s happening in this room is the stuff of law, how law is made. Why is all of this left out of legal history?

Can you provide some examples from the book of how performance literally created law?

Spectacular royal ceremonies and parades through the streets with heralds and trumpets were essential to producing and proclaiming medieval and early modern law. But courtroom performance also made law, as it does today. In ancient Athenian courts, litigants gave speeches to an audience of hundreds of jurors, with spectators cheering or hissing from the sidelines. The great orator Demosthenes worked hard to train himself in performance (with private lessons from an actor), and when he crushed his enemy in court with his brilliant performance, his interpretation of the law became the law.

When revolutionaries took over Westminster Hall in London in 1649, they staged the trial of King Charles I as a replication of the Last Judgment. That sacred scene helped legitimize the king’s execution and instituted the legal regime that eventually generated our own Bill of Rights.

These major show trials are important. One thesis of the book, however, is that law is made not only by public figures like Demosthenes or Charles I, but also by people history has forgotten, who create law through face-to-face clashes with judges, juries, police officers, guards. Even when the legal regime is overwhelmingly powerful, ordinary people can successfully use law as a means of protest, with real legal consequences. So, for instance, when an archbishop sent representatives to take legal possession of a nunnery near Hamburg in 1482, a townswoman named Catharina Arndes met them at the gates and lifted up her skirts—mooning the law as a form of protest—and sent the ecclesiastics fleeing in terror, securing the nunnery’s legal autonomy.

So this tradition of law as a performance practice is ongoing today, in terms of courtroom theatrics?

More intensely than ever. Our culture of ubiquitous cameras and ever-swelling media has turned law and politics (at least the part that’s visible) into one vast spectacle. We glance at our phones, and they’re streaming celebrity trials, crime scene footage, police dashcam videos, prison reality shows. But it’s also important to recognize the history that lies behind all of this. Many of the most important legal questions we ask ourselves echo a long tradition of questions about the power of performance for law.

Should sensational or emotional videos be allowed in the courtroom? Should jurors treat the demeanor of witnesses and defendants as evidence? Should judges give more lenient sentences to those who appear to be remorseful? If so, how are they to know if the remorse is sincere or just an act? Should cameras be required in police interrogation rooms instead of practicing secret interrogation (as often happens now)? My book is a prehistory of our own culture of legal performance, which is the subject of my next project.

What’s the last great book you read, and why?

A few weeks ago, I might have said Thomas Mann’s Buddenbrooks. A student of mine wrote a wonderful story about her experience of reading the novel in the company of an obsessive online discussion group, and I wanted to share in her sense of discovery. But a friend recently told me of a beautiful passage describing sleep in Julio Cortázar’s and Carol Dunlop’s Autonauts of the Cosmoroute, the diary of their 1982 voyage in a VW van down the “uncharted territory” of the Paris-Marseilles freeway. So I bought the book, and it is now among my most treasured texts. It’s a surreal, insouciant, joyous travelogue; a story about how to live outside of ordinary time; and a tale of love, the kind that is a never-ending daily adventure.

What’s your favorite book that no one else has ever heard of?

To name a few: La Veniexiana, or The Venetian Woman (1535), an anonymous play in Venetian dialect (preserved in a single manuscript), whose erotically liquid movement makes you feel as if you’re slowly gliding through the canals of Venice. It’s a dazzling celebration of women’s desire and its victory over law, so it’s, in a sense, about the irrepressibility of performance in the face of law. I can’t help but feel that the play was written by a Veniexiana herself, that is, one of the many brilliant courtesans who frequented Venice’s academies.

In a completely different sphere, Austin Reed’s The Life and the Adventures of a Haunted Convict (circa 1840-1859), the earliest known prison memoir by an African American writer (discovered in 2009): brilliant, searing, and unforgettable. And one more: Joseph Shipley’s A Dictionary of Word Origins (1945), an etymological romp through a metaphorical labyrinth.

What are you teaching this fall?

Representing Law—a graduate seminar on the relationship between recent legal texts and the cultural representation of law. Film and Law—an undergraduate class on law in popular film. And possibly, a Shakespeare course at the Metropolitan Detention Center in Brooklyn.

You're hosting a dinner party. Which three academics or scholars, dead or alive, would you invite, and why?

Dinner parties are much more fun if they’re unpredictable with no agenda, so I’d choose the most eclectic bunch I could imagine and see what happens! First, maybe the healer, herbalist, and diviner “Tempel Anneke” (Anna Roleffes), who was burned as a witch in Braunschweig, Germany in 1663, in part because she was literate and drew her knowledge of healing from books containing magic spells. I think she’d get along famously with Montague Summers, the eccentric, early-20th-century occultist, sexologist, flagellist, and queer Catholic priest.

I’d also invite Zora Neale Hurston. I’d love to hear her talk about the relationship of her anthropological work on voodoo to the history of religious magic. She’d bring her superb ethnographic eye and wry, but empathetic view of religion to the table. Maybe she would take out her camera and film it all, and then describe our wild dinner in her gorgeous prose.