Per­forming Law — Peters

I will start in medias res with an incident that doesn’t appear in my book but might have: a witch­craft epi­demic in Basque country in 1612. At the Tri­bunal of Logroño, nearly 2000 people have con­fessed. In the midst of her con­fession, sixteen-year-old María Lar­ralde points out the high window in the audience chamber: there are, at that very moment, seven people from her coven sus­pended in mid-air! look! they are all there, at that very hearing, “staring and ges­tic­u­lating”! Inquisitor Alonso de Salazar Frías is skep­tical: the window is the size of a folio, and the room (he declares) “so low, so small, and so narrow, that with the altar for the cel­e­bration of Mass and the table for the Tri­bunal there [is] scarcely space left for anyone.” And yet (others swear), more than forty witches, “together with the devil,” are “flying through the air from a league and a half away” toward the inter­ro­gation room, deter­mined “to wreak vengeance” on Salazar. Now (cry the witches) they are “enter[ing] the audience chamber” through the windows, now they are here, in the audience chamber itself: how can the law with­stand their force? They are unafraid of even God Himself ^[1].

This incident, which I hope to deal with in a less cursory way else­where, rep­re­sents some of the central claims of my book. My post here will focus pri­marily on those, along with the book’s implicit the­o­retical con­cerns and method­ologies. First, however, I want to express my grat­itude to Jesús Velasco for the invi­tation to share, through Iberian Con­nec­tions, the deeper con­nec­tions of our aca­demic work: con­nec­tions between ped­agogy and praxis, public and private, the cog­nitive and the affective, text and per­for­mance, mind and body. In the spirit of his invi­tation, I hope to talk about two things on March 1st that may appear to be outside of my book but are for me bound up with it: first, how the book might speak to law today, in all its vio­lence and with all its dreams of trans­for­mation; second, the book’s origins in broader intel­lectual quests, the per­sonal struggles that lie behind these, and my attempts to translate those struggles into some form of action.

What is my book about?

My book is, from one per­spective, the history of a legal idea. It traces per­for­mance as a critical legal concept with a long and important legacy, one that has been invisible to modern schol­arship. This concept says: law must not merely be done, it must be seen to be done; but if it is mere spec­tacle, it is not truly law. And so the concept also reg­isters two anti­thetical attitudes—legal pro-theatricality and legal anti-theatricality—that issue in a con­sti­tutive oppo­sition: if law is the­atrics, it’s not real law. My book is also about the practice of law as per­for­mance: the ways that embodied, often the­atrical, practices—in court­rooms and audience chambers, under scaf­folds, church but­tresses, and in the streets—make law, often without much help from doc­trine. In exam­ining law as a per­for­mance practice through the early modern period, my book attempts to offer an alter­native to tra­di­tional legal history’s treatment of law as the product of edicts, doc­trines, insti­tu­tions, or (occa­sionally) socio-economic struc­tures. At the same time, it offers an alter­native to law and literature’s focus on law as text or on law’s textual rep­re­sen­tation. My book is not about the­atrical rep­re­sen­ta­tions of law: instead, it is about legal per­for­mance as a form of (some­times highly the­atrical) representation.

In my project, therefore, I do not talk about plays or the­atres. Instead, I talk about events and prac­tices and ideas that have been left out of legal history but that, I argue, are essential to under­standing it. This project of recovery requires a his­to­ri­o­graphic method dis­tinct from the two arguably dom­inant strains of legal his­to­ri­og­raphy. Tra­di­tional legal history usually offers us a progress nar­rative: liberal con­cepts grad­ually take hold; bru­tality dis­ap­pears; law becomes kinder and more humane. Radical legal history counters with a nar­rative in which so-called progress con­ceals the sav­agery of the modern indus­trial state. While my book traces what I call a “tra­dition” of thought and a set of con­cerns that recur throughout the period, my account is not tele­o­logical but instead con­siders law as a site of moment-by-moment encounters that may or may not fit into a broader his­torical schema.

The scene with which I began rep­re­sents some of the book’s central claims: that per­for­mance is not merely a fact of law but a site of struggle; that while it some­times bol­sters power, it also some­times con­founds power, resisting law’s dominion through its own eman­ci­patory logic. The sig­nif­i­cance of such scenes—I try to show—lies not only in their out­comes (a trial lost or won), or in the doc­trines they rep­resent, or even in the broad social con­flicts that appear in them. It lies in the expressive power of per­for­mance, which may determine out­comes or artic­ulate doc­trine, but may also produce slippery, incon­gruous, con­tra­dictory, meanings —meanings as con­tra­dictory as the people who act them, as texts, as our own actions and desires.

But what is it really about? 

In the past year, I have been teaching cre­ative non­fiction writing work­shops to stu­dents at both Columbia and the Met­ro­politan Detention Center. I find myself asking the same question again and again about both the classic essays I share with them and their own writing: they tell me what an essay is about, and I ask, “but what is it really about?” Like most books, mine is “really about” many things. Here are two of them. First, it is about the fact that we do not actually live under the rule of law. The belief that we live under “the rule of law, not men” is perhaps the central the­ology of modern liberal soci­eties (far more enduring than our momentary political the­ologies). In this religion, the Rule of Law appears as a godlike sov­ereign, with a prov­i­dential plan whose far­sight­edness scorns our own tem­poral myopia. In its mortal guise, the Rule of Law comes to us as a seem­ingly benign system of rules: objective, impartial, dis­em­bodied. Judges—the priests of the law—merely apply these rules, unswayed by cir­cum­stance, their private pas­sions, their senses, caprices, or appetites.

Second, my book is about the fact that we do not live solely under the rule of force either. Law may rely on force, it may use vio­lence and terror as one of its prin­cipal tools of dom­i­nation, it may (as Robert Cover famously wrote) “tak[e] place in a field of pain and death” ^[2]. But force as state vio­lence must contend with counter-forces, among them the will of the crowd, which may respond to the per­sua­sions of drama, the seduction of the­atrics, or the sheer resistant force of acting up. The state may try to control these, but it does not always succeed. Plato reg­is­tered the power of the crowd in his warning that the spec­tators, if not tamed, would turn nomocracy (the rule of law) into the­atro­cracy (the rule of theatre). As my opening incident should suggest, even indi­viduals who come before the law as seem­ingly abject sub­jects may respond to legal force through dra­matic modes of resis­tance, some­times suc­cess­fully: those like Catharina Arndes who, in 1482, faced with a hostile eccle­si­as­tical court posse, lifted her skirts and pro­ceeded to moon them, till they fled in terror. One could give a ratio­nalist account of why, at the Tri­bunal of Logroño, María Lar­ralde con­jured the invisible spec­tacle of seven witches sus­pended in mid-air ges­tic­u­lating at her, but it seems clear that she was, in part, asserting her autonomy by cap­turing the scene. My book is thus about the potential power of bad behavior: its power not only to disrupt but to create law through action. It is about the fact that it is not only sov­er­eigns, judges, or leg­is­lators who enact law: so do ordinary people like María Lar­ralde. It is about law as tragedy but also as comedy.

“Con­tem­porary Critical Thought”?

Plato and the other the­o­rists I ref­erence explicitly have all been dead for at least 300 years. When I con­fessed to our host that of course more con­tem­porary the­o­rists have informed my thought (how could they not?), he urged me to muse here on the the­o­retical under­cur­rents of my book, and I rashly agreed. (He is veryper­suasive.) I thought, well, why not, I could maybe say, for instance, that if one writes a history of policing or pun­ishment, one cannot escape the shadow of Fou­cault, but that my attention to the insta­bility of legal power, the het­ero­geneity of law’s man­ifest expres­sions, and the play of the­atri­cality at law’s heart stands against the macro-analytic cri­tique of power that is central to his critical legacy. This is apparent in (for instance) Achille Mbembe’s revision of biopower as necrop­ol­itics or Michael Hardt and Antonio Negri’s evo­cation of biopower’s anti-capitalist antithesis: “alter­modernity.” Mbembe, Hardt, Negri, and others in this tra­dition may illu­minate the nexus of capital and vio­lence that uses law as its hand­maiden. But the quasi-technological macro-analysis that is their prin­cipal critical mode comes strangely close to repli­cating the chill­ingly dehu­man­izing social theory they denounce: the turn to problem-solving through social engi­neering that emerged from the nexus of the human sci­ences and the sci­en­tific state (with its power to “massify”), issuing in such inno­va­tions as indus­trial Tay­lorism, mass pop­u­lation transfers, death camps, and more. So, iron­i­cally, a text like Agamben’s Homo Sacer—with its protest against the per­petual state of exception and the world of camps in which only “bare life” is possible—in some ways reenacts the dehu­man­ization it pur­ports to critique.

I could maybe say too (I thought) that my book resists the kind of Althusserian ide­ology cri­tique that con­tinues to appear in legal studies. Althusser’s account of our inter­pel­lation into ide­ology has been par­tic­u­larly useful to legal cri­tique because the par­a­dig­matic moment of inter­pel­lation is a moment of inter­pel­lation into law: the police officer hails us; we answer; and that is how law sub­ju­gates us. Even critics of Althusser some­times replicate his account of inter­pel­lation as sub­ju­gation. Judith Butler’s cor­rective might be seen as par­tic­u­larly rel­evant to my project, since there per­for­ma­tivity is the central agent of inter­pel­lation, con­sti­tuting the subject through punitive social norms that look much like Althusser’s. Cer­tainly Butler’s early work offers a some­times rigid and mono­chro­matic account of how per­for­ma­tivity pro­duces sub­jects, one in which per­for­ma­tivity appears strangely dis­em­bodied. Both it and the social appear pri­marily as a kind of machinery for the pro­duction of the self, abstracted from spe­cific encounters with the resis­tantly material world in the var­ie­gated space and time of imme­diate expe­rience. Butler, of course, sig­nif­i­cantly revised the account offered in Gender Trouble. But in the dis­cus­sions of per­for­mance and per­for­ma­tivity that take their cue from it, per­for­ma­tivity appears pri­marily as a mech­anism of col­lective identity-formation. There, identity often seems locked into con­ven­tional demo­graphic cat­e­gories (pri­marily modern ones, some­times super­im­posed on the past). The subject, a per­for­ma­tively con­sti­tuted self, may replicate or resist them but cannot escape the coercion / resis­tance binary that ties the self to their terms.

But I would then (I thought) have to add that one can find in Butler’s later work on excitable speech or assemblies—however broad-brush it may some­times be—something closer to my own treatment of per­for­mance as col­lective rather than indi­vidual, outward rather than inward, renegade, hard to control, infi­nitely various, some­times incon­gruous or out­right weird. In this, it is con­sonant too with Jacques Rancière’s vision of the “eman­ci­pated spec­tator,” whose sub­jec­tivity is not the product of either ide­ology or con­ven­tional demo­graphics (even reac­tively), who side­steps sub­ju­gation in unpre­dictable ways, and who has the capacity to alter the “dis­tri­b­ution of the sensible.”

I might say all that and more: on how I have both absorbed and resisted the work of psy­cho­analysis, semi­otics, the anthro­pology of ritual, critical legal studies, media studies, affect theory, actor-network theory, cri­tique and post-critique, and many people with very French names. But I don’t really want to.

True, all this has often seduced me: the cosmic adventure that is theory, the high-speed crossing of ideas, the elation of it all. However, even while writing the above para­graphs, I felt what I often feel: resistant to such dis­cus­sions, —their abstraction, their grandiosity, their sweeping over­reach, their some­times inten­tional obscu­rantism. I know that those who claim to have dis­pensed with theory are deluding them­selves. I have written some essays that engage con­tem­porary critical thought head-on (for instance, “Legal Per­for­mance Good and Bad”). But in my usual scholarly modus operandi, I end up keeping such con­ver­sa­tions at arm’s length, not for any intel­lec­tually jus­ti­fiable reason, but rather from pro­clivity and sheer habit. I remain pig­headedly skep­tical, not only about big theory but about long-established his­torical views: the replacement of accusatorial with inquisi­torial pro­ce­dures? the Chris­tian­ization of exe­cution? the rise of the nation-state? Maybe, maybe not. I plunge myself into primary sources, fol­lowing their rich and tangled pathways, mean­dering with delib­erate ran­domness in the name of dis­covery, attending to pat­terns but also—maybe mostly—to what is most strange, in an attempt to estrange myself from what I think I know. And then I dwell there, trying to see, hear, smell, taste what it was like to be there, envi­sioning each nec­essary movement, each gesture or sigh. When I start, I start in medias res, as I do here, because that is how life happens.

But what is it really really about?

As my stu­dents quickly realize, the answer to the question, “but what is it really about?” is never enough. Because in attempting to answer it, one ends up asking, “but what is it really really about?” peeling away layers, never quite reaching the core. Or, to switch metaphors, perhaps “it” is like an archae­o­logical site: one keeps going down, but never reaches the bottom. Each of these layers con­tains an origin story: the book orig­i­nated from this inquiry, this question one has always had, this curiosity, this hunger, this longing, this pain. I have told origin stories about my book that lie near the surface: a moment in jury duty crys­tal­lized it all; or, my para­graph on Plato grew until I found myself deep in the ancient world, where I truly had no business being. (That one is in my Intro­duction). To adapt Tolstoy’s famous axiom on unhappy fam­ilies, each of these origin stories is true and untrue in its own way. When I see you on March 1st, I will not tell you the true origin story, the story of what my book is really really about, because I don’t know the true one, and maybe never will. But I will share with you an origin story that goes much deeper than jury duty or the temp­ta­tions of Plato, one that is wholly per­sonal (so it must stay just between us). But it is also one in which you may just see your own reflection: your love of wan­dering deep into the thickets of the past and of the library dust on your fingers, but your sense too that the past must speak to the present, which urgently calls to us.