Law — Text — Performance
My recent academic publication arguing that law would be well-served by attending to the relationship between text and performance with greater sophistication.
This is the beginning of a chapter I recently published in an academic collection called Performing Law, edited by Peter Goodrich, Anna Jayne Kimmel, and Bernadette Meyler. I plan to write more about dramatic texts, speech, and literacy. This chapter thinks through those first two ideas at some length, hence my posting of it here.
Two propositions about the law: (1) Law is an endless flow of paperwork, a relentlessly, overwhelmingly textual practice. From contracts to briefs to opinions to treatises, law lives in its texts. There is no law without text. (2) Law produces authenticity and authority through performances. Witness testimonies, pleadings, and trials all enact law through the bodies of participants. There is no law without performance.
Legal texts; legal performances: These practices exist in a kind of opposition – the fixed finality of text; the fleeting ephemerality of performance – but also produce and reproduce each other. Legal texts record or script legal performances (transcripts, oaths); legal performances inspire or enact legal texts (testimonies, opinions read from the bench).
To understand law as dependent on both text and performance, we must study how law moves between these two domains. This chapter examines law’s textuality and its theatricality in tandem by probing legal performances as they move between texts and acts. By drawing on theater studies and the history of dramatic texts, I offer methods for reading legal texts as scripts that precede or follow legal performances. Examples from Anglo-American law reveal that legal documents’ typographical and formatting conventions encode law’s anxious reliance on performance. Paying close attention to the relationship between the law’s texts and its performances would better serve the law and, most importantly, justice.
[….]
An example from this history of theater’s evolution in print, discussed alongside a similar change in some legal print practices, demonstrates the potential of this analytic method. Prior to the consolidation of the conventions for printed drama just enumerated, dialogue-based genres did not reliably distinguish dramatic from narrative forms, instead intermingling them. As Julie Stone Peters explains in her history of printed European drama, “medieval verbal arts foregrounded their use of direct speech and indirect speech in combination, their conjoined use of both characters speaking in their own voices and an author’s or narrator’s voice describing the action.” The Renaissance consolidation of theater’s artistic identity went hand in hand with a new style in printed drama. The emergent style for dramatic texts minimized “the voice of the poet” and maximized characters’ direct speech, in part by distinguishing typographically between dialogue and other aspects of the script (stage directions, arguments, etc.). Those nondialogic elements retained traces of an authorial, narrative function, but without corrupting the dialogue, the essence of printed drama. The dramatic action (primarily spoken by characters) and the narrative circumstances (inscribed by stage directions and other textual materials) thus adopted distinct typographical forms.
Compare the history of reporting speeches in Britain’s Parliament. Not until 1909, when Hansard became an official report commissioned by each House of Parliament, were all members’ speeches printed fully in the first person. (Or, at least “substantially” verbatim.) Previously, printed parliamentary debates appeared as indirect speech, a form of narration that suggests, but is not true dialogue:
Mr. H. Berkeley believed that if this Bill became law it would have the effect of turning every pothouse into a theatre, and every theatre into a pothouse.
Mr. Brady also thought the passing of the Bill would reduce the drama to the lowest pitch it had ever stood at in the country.
Mr. Locke said, he was not disposed to accept mere assertions as an answer to his arguments.
Here we find a combination of direct and indirect speech. We can imagine the named members speaking, but only through an act of implicit translation from this printed form. The use of “believed” and “thought,” as well as “said” without quotation marks, all either interiorize or simply narrativize what was actually a set of speech acts, that is, a dialogue. One could imagine a naive reader thinking that Berkeley did not speak at all, but that the debate’s author omnisciently reports Berkeley’s “beliefs.” Why did parliamentary reports appear this way? In part because, until the 1890s, the reports were produced by cobbling together articles from multiple newspapers. The narrative style disguised the fact that the debates were summaries of summaries.
Modern Hansard transcribes Parliament’s debates more clearly, treating speech like speech. In other words, it looks more like a dramatic text – complete with speech prefixes in bold followed by a colon. Hansard today purports to represent directly what was said by MPs, and thus to increase the transparency of parliamentary actions and to improve citizens’ knowledge of government by making their representatives accountable for their speech. Parliamentary reports’ old narrative–dramatic style, with its indirect discourse, could only gesture at such accountability. It never adopted – as a standard or as a format – the direct connection between speech and the speaking subject upon which dramatic texts insist. Thus we see in the evolution of printed parliamentary debates the belated adoption of a process that theatrical texts underwent in the Renaissance. These changes in legislative reporting, defined in part by adopting drama’s print conventions, improved democratic transparency and accountability.
Changing how parliamentary reports transcribe spoken words and actions changes the legal character of those reports themselves. Such change is only possible after we have recognized the gap between the legal form and its (often disregarded) dramatic cousin. When we see what legal forms elide in their failure to be fully dramatic, we can identify the shortcomings of the former and the possibilities inherent in the latter. In this particular case, once one recognizes that parliamentary debates might be written as dramatic texts, the apparatus of a dramatic text becomes available to bring Parliament to book in a new, newly legible form. Many other legal texts may benefit from a similar analysis – but first we must locate the dramatic potential that their current form suppresses.
Read the whole thing here. (I think it’s available open access. If I’m wrong, feel free to message me and I’ll gladly send along a PDF.)
