Laughter and the Word — Stern

Con­ven­tional wisdom holds that modernity ushered in an end to the age of the legal spec­tacle. Public gallows and whipping posts gave way to the forced seclusion of supermax prisons. The charisma of medieval sov­er­eigns receded, in turn, before the spell cast by per­sonal smart­phone devices, with which the con­tem­porary hero of clas­sical eco­nomics makes “orders” from the privacy of bed. Cul­tural his­to­rians have long con­trasted the increasing vis­i­bility of sci­en­tific trials in modernity to their legal coun­ter­parts, tracing how labs trans­formed from chambers tucked in the base­ments of museums into public demon­stra­tions of fact. At least since Foucault’s Dis­ci­pline and Punish (1975), however, it has been a truism in cul­tural studies that legal pro­ce­dures took the opposite course: while sen­tencing and exe­cution remained public after 1300, his­to­rians have con­tended, other aspects of the process retreated from sight, preparing the ground for the emer­gence of an elusive yet ubiq­uitous, Kafkaesque style of law whose force is all the more sin­ister for remaining hidden.

Enter Julie Stone Peters’ Law as Per­for­mance. In this com­manding, for­mi­dably enter­taining, and metic­u­lously argued study, Peters argues that law has never been reducible to divine will, the whim of a sov­ereign, or the expression of eccle­si­as­tical or secular power. Nor did it ever vanish from the public eye. For the sources she examines, from court records to hand­books by ancient, medieval and early modern philoso­phers of rhetoric to visual rep­re­sen­ta­tions of trial pro­ceedings and more, Peters demon­strates that at least until 1678, law in Europe remained a scene: of passion, per­suasion, seduction, vio­lence, and comedy, dependent—however ambivalently—on tech­niques from the dra­matic arts. Her book chal­lenges a scholarly con­sensus that the emo­tionally charged trials of the later middle ages tapered out into rituals of sac­rifice and redemption per­formed before passive spec­tators. Instead, she shows, early modern courts remained intense, even anarchic spaces where audi­ences helped guide judicial opinion, and the­o­rists of law con­tinued to emphasize ret­ri­bution, deter­rence, and the use of vio­lence to treat social wounds.

Peters’ study not only unearths neglected sources that crys­tallize European law’s inter­pen­e­tration with the arts before the 17th century. It also inves­ti­gates the long jurispru­dential tra­dition of con­fronting the impor­tance of the­atrical tech­niques to what she calls law’s “art of the real” ^[1]. She shows that the ambiva­lence legal the­o­rists expressed about the rel­e­vance of affect to the doing of law was not peripheral to jurispru­dence but, on the con­trary, at the dead center of these the­o­rists’ attempts to dif­fer­en­tiate their dis­ci­pline. By exposing the role of art in law’s capacity to engage reaches of expe­rience not con­ven­tionally asso­ciated with rational thought, Peters recasts the law’s rep­u­tation for dis­passion as a stage effect achieved through the very artistic means it dis­avows. Hers is that rare inter­vention that responds to an enduring problem by changing its terms. It presses the question, “What is the law’s rela­tionship to art?” into another: “What kind of art is law?”

“[T]he problem,” Peters con­tends in her dis­cussion of the clas­sical foun­da­tions of early modern jurispru­dence, “is not that theatre rouses emo­tions dan­gerous to the status quo (as in the textbook ver­sions of Plato and Aris­totle); it is that it rouses emo­tions that are insuf­fi­ciently dan­gerous” (53). The claim bears repeating: the problem for legal the­o­rists of antiquity was not that art rouses dan­gerous emo­tions, Peters argues, but that art is insuf­fi­ciently dan­gerous. Peters is doing more here, I would suggest, than taking on Pop­perian readings of Plato that con­strain his per­spective on poetry to his warnings about the­atro­cracy (rule by theater) in the Laws. Attending closely to the sources behind this consensus—i.e. Plato’s Laws, Aristotle’s Rhetoric in concert with his writings on music, and the works of three other widely respected Greek orators—she shows that Plato’s exile of the poets coex­isted with an emphasis both he and his con­tem­po­raries placed on the political utility of affect. The implicit sug­gestion here is that clas­sical rhetoric, read on its own terms, paints the law—somewhat coun­ter­in­tu­itively, given its noto­rious monotony—as suf­fi­ciently dan­gerous theater, theater capable of gal­va­nizing cit­izens to act. This, suf­fi­ciently dan­gerous theater works for the same reason art works: it uses tech­niques of showing, rather than saying, to move audi­ences, engaging the uncon­scious layers of expe­rience oper­ative in judgement. It should come as no sur­prise, then, that the body—through tears, screaming, laughter, and even, in the case of 15th century German townswoman, Catharina Arndes, who sum­moned the courage to moon a judge, partial nudity—played a starring role in early modern trials.

I would wager that the emphasis on bodily affect Peters recovers from these sources has impli­ca­tions for our so-called “post-truth” era of TikTok, on the one hand, and demo­c­ratic decline on the other. At the same time, it com­ple­ments a pow­er­fully influ­ential story about the nature of law while stretching it in key ways. In “Vio­lence and the Word” (1986), legal scholar Robert Cover draws on Elaine Scarry’s theory of torture to frame vio­lence as a legal tech­nique for marking the boundary of a subject’s nor­mative world. In torture, Cover main­tains, the subject cannot speak, can no longer sing the song of the polity, just make the noises of a body trying to survive. This is one way that, for Cover, torture exem­plifies what he calls the law’s “juris­pathic” impulse, a check on “jurisgenesis”—his hallmark concept, the making of meaning through nar­rative. Legal vio­lence, for Cover, stakes out the limits of a subject’s world by casting her voice out of the fold of speech and into the wilderness of sound.

Cover paints a picture of law as a rhythm of bur­geoning and con­tracting meaning, nar­rative pro­lif­er­ation that is con­stantly pruned back down by the law’s homi­cidal focus on the body. It’s here that Law as Per­for­mance inter­venes. In dis­cus­sions of legal spec­tacles, it’s become a com­mon­place to focus on spec­tacular pun­ish­ments in par­ticular, and there is cer­tainly no shortage of evi­dence for the violent uses of law to be found in the pages this book. At the same time, Peters demon­strates that the law’s rela­tionship to the body has never been reducible to the infliction of harm. It engaged the body in comic and ridiculous ways, too, elic­iting vis­ceral responses from audience members in turn. What Cover sit­uated as “outside” normativity—bodily expe­rience, in all its vul­ner­a­bility, anarchy, and way­wardness—Law as Per­for­mance estab­lishes in other words as part and parcel to the doing of law.

Acknowl­edging both the role of bodily irrev­erence in law’s art of reality and the violent excesses of this—indeed, suf­fi­ciently dangerous—art today is not, it seems to this reader, to succumb to cyn­icism. On the con­trary, it’s to resist the plea­sures of a naïve trust in the healing powers of nar­rative form. Time heals all wounds, but time is the wound, as the saying goes. Nar­ra­tives do harm. By under­mining a cat­e­gorical dis­tinction between legal meaning and legal vio­lence, Peters’ argument brings a vitally unsen­ti­mental per­spective to a moment in which, as Roberto Esposito has recently observed, a dialectic between a pro­gressive faith in the power of dynamic “move­ments” and con­ser­v­ative insis­tence on a static “rule of law” has threatened to monop­olize our political vocab­ulary. For both the right and the left today, law at large is said to be losing credibility—the left defends democracy even as it’s pes­simistic about the opinion of the majority to guide us safely through the threats of fascism, on the one hand, and climate change, on the other; while the right has lost faith in the very processes that reg­ister the opinion of the majority. At the same time, the insti­tution of the theater remains, for both camps, in full flower. We are living in a moment in which anyone with a smart­phone can amass an audience of hun­dreds in a few weeks’ time, in which the cor­po­ra­tions admin­is­trating these dis­plays sustain them­selves on a libidinal economy of affects called “likes,” and in which the tap of a thumb can be felt around the world. The ease of being seen—and being seen to be seen—through the affor­dances of social media today has indeed worked to bolster demo­c­ratic forms of life even as it’s helped to poison trust in their implementation.

Are we still medieval? That’s a question for our speakers. I have sug­gested that by sub­sti­tuting one ancient question—“what is the law’s rela­tionship to art?”—with another—“what kind of art is law?”—Law as Per­for­mance has opened up a fresh response to an urgent question of our time. How can it be that the crowd—the demos of democracy—is losing its voice at the very moment when, through the spread of social net­works, its voice has never been louder? It sounds like a paradox, but within the intel­lectual horizon of this book, there is no con­tra­diction. Per­for­mative tech­nologies like Twitter and TikTok are con­tinuous with law’s history, Peters shows, iter­a­tions of the “rule of the audience” we have always rec­og­nized (36). Whether we like to admit it or not, we are still like the ancient play­wrights, trapped in aes­thetic combat on virtual stages. It’s a ter­ri­fying vision, but it’s a gently comic one, too, and one of the many con­tri­bu­tions of this cap­ti­vating book is to revive the pos­si­bility of laughing with the law. The show must go on. That’s an order!