This paper discusses the historical centrality and contemporary resurgence of performance - "restored behavior" - in the creation and perpetuation of law and legal values [delivered at the 1996 Performance Studies Conference, Northwestern University, Evanston, IL, March 1996].
Most of you will recall Charles Lamb's famous claim that Shakespeare's plays were "less calculated for performance on a stage, than those of almost any other dramatist." Lamb believed - and persuaded many others to believe - that theatric presentation distorted and debased Hamlet, Lear and other masterpieces, which were best appreciated by contemplative reading.
This classic - dare I say, notorious - literary recommendation of text over performance is paralleled in traditional American jurisprudence. American lawyers, judges and law professors have historically preferred to regard law as a set of texts: an accumulation of precedents, statutes and rules. For most of us, the best and most authoritative law is literally "black letter". We look for the real meaning of contracts and agreements in their "fine print". We tell our clients to textualize their intentions and promises in writing, if they wish to make those legally cognizable. "Text" has frequently been employed as a metaphor for law as a whole; some legal scholars have lately extended this by analogizing law to "literature".
At the same time, legal performance - the "restored behavior" of the law - has been marginalized and deprecated. It's variously been viewed as particular to "primitive" legal systems heavily dependent on ritual, as a contemporary phenomenon confined to the courtroom, as vaguely-vulgar or deceitful, or as relevant to law only in a metaphorical sense (law as "theater", or "game"). Even in this last, ostensibly-innocuous aspect legal performance has proven remarkably contentious: to quote a former Dean of the Harvard Law School, "A courtroom is not a stage; and witnesses and lawyers, and judges and juries and parties, are not players. A trial is not a drama...."
It almost seems that legal performance is a legal embarrassment. Not only have law's elders felt compelled to deny its existence, but they've tried to hide it from the children. For example, law schools generally require law students to take legal writing courses, but de-emphasize actual advocacy. Together, denial and avoidance have largely succeeded in moving performance into the proverbial blind spot of our professional perceptions, to the point where legal performance is paradoxically better appreciated by the public - watching OJ or at least Perry Mason on TV - than by many lawyers and legal scholars.
Law's traditional elevation of text over performance is striking, but - like Lamb's bias towards reading Shakespeare - it is neither arbitrary nor accidental. It reflects the circumstances of a highly-literate American culture which in the last two centuries has become extremely comfortable with print as an intellectual medium, and relatively distrustful of voice and gesture. It embodies the self-serving prejudices of the white male Protestants who have traditionally dominated the American legal establishment, and who have imported into their own professional lives (and forcibly impressed on others) their social and religious reverence for text and their accompanying suspicion of the theatric. It betrays the bar's acceptance of the common presumption that performance is identical to theater, and that theater is identical to entertainment, and as such is a trivial and unseemly enterprise. Finally, it complements prevailing legal epistemology, which for over two hundred years has consciously favored certainty, fixity, objectivity and rationality, "scientific" values that seem better represented by text than by performance.
Cultural, social and epistemological conditions are changing, however. To begin, we're moving from an age of literacy to an age of post-literacy, where culturally-critical information is presented not merely in print, but through audio-visual media which by definition extend the reach and multiply the power of performance. Furthermore, the power of text-oriented gender, racial, ethnic and religious elites in the United States is diminishing; women, African-Americans, and others who by force or by choice have retained a relatively-greater respect for performance as a site of identity and resistance, are increasingly assuming positions of social and political authority. Our respect for performance itself is growing as our notion of the theatric expands and deepens, thanks partly to the efforts of scholars in performance studies. Lastly, a new postmodern legal epistemology is developing which embraces values highly compatible with performance: indeterminacy, change, subjectivity and feeling.
In these circumstances, performance is playing a more evident and a more legitimate role in American law - witness, most obviously, the new legality and growing acceptability of courtroom television. Unfortunately, lawyers and law professors have thusfar failed to ground the recent invigoration of legal performance in any general consideration of the law-performance relationship. Today, I'd like to suggest a few fundamental connections between the two phenomena. Some will likely be obvious to a performance studies audience; others, I imagine, will not. Of course, these aren't the only connections that might be suggested, and I hope that others will emerge in the course of discussion. I should also emphasize that performance is not necessarily the only mechanism by which law works or in which it becomes; text is also implicated at many junctures. My goal here is therefore not to deny the significance of legal text, but simply to challenge its monopoly of our attentions.
Using an approximation of legal typology to recover what most lawyers have tended to overlook, it's clear first of all that law is made in performance. Many of you know this from personal experience if you've ever been married, or if you've ever made a will. Writings are obviously involved in both procedures, but without performances the writings have no legal value; the performances therefore not only frame and generate the writings, but authenticate them. Law is also made in performance every time governmental bodies consider and approve legislation. This legislation is obviously written, but it is produced, informed, structured and legitimized by time-honored rituals of reading, debating, and voting. The most important way in which law is made in performance, however, is far less positivistic than either of these observations. If we consider law as an enforced standard, rather than a written rule, it is clear that law cannot be brought into being but for performance. A rule which is not performed is arguably no law. Performance, conversely, can effectively make law even where there is no written rule. In this context, legal scholars would say that law is "custom", but what is custom if not "restored behavior"?
Second, it's clear that law is applied in performance. The classic - although certainly not the only - setting for the performative application of law is the trial, where juries are asked to establish the facts of a case and then implement the appropriate law as stated by the trial judge. Optimally, the performance of applying the law provides a unique opportunity for recalling, popularizing, approving and democratizing the law. A properly-conducted trial reminds judge, jury, counsel and the public of law's content, its morality, its dignity and its power. A properly-conducted trial popularizes the law by disseminating and demonstrating it to a lay audience. A properly-conducted trial gives participants the opportunity and the cathartic satisfaction of approving the law by serving as the instruments of deliberation and decision. A properly-conducted trial democratizes the law by calling the community to witness, and by making it collectively responsible for the law's effectuation. Of course, not all trials are properly conducted - that's a point to which I'll return later.
Third, law is interpreted in performance. The primary official site for the performed interpretation of law is the appellate courtroom. The performative elements of the appeal are somewhat less obvious than the performative elements of the trial, and are rarely discussed by legal scholars. After all, appellate cases are mostly conducted through written briefs, with attorneys having limited opportunity for oral argument. There are no witnesses here, and no juries. But as anyone who has seen the US Supreme Court in session must admit, the appeal is still a performance, a restored highly-ritualized behavior which involves lawyers, judges and spectators and which can be invalidated and delegitimized if the rules of that performance are not respected. At least one appellate judge, who happens to be the Chief Justice of the US Supreme Court, has lately acknowledged and attempted to enrich the performative aspect of appeal by designing a new costume for himself, featuring gold armbands on the traditional black robe.
Fourth, law is fulfilled in performance. This is true in at least two senses. Most explicitly, trial sentences and other judicial rulings frequently require that parties do something that itself qualifies as a "restored behavior." Imprisonment, for instance, requires going into a certain space, wearing certain clothes, and acting in a certain manner. Less severe sentences may be equally performative: a growing number of criminal sentences mandate performances of shame or self-degradation, where the convicted individual must post a stigmatizing sign on his property, drive around with a special bumper sticker, or do community service in specified attire. Even ostensibly-esoteric constitutional cases can have distinctly-performative consequences: in 1965, for instance, the US Supreme Court ordered arresting police officers to give a so-called "Miranda warning" ("You have the right to remain silent", etc.), a performance designed not only to inform the person being seized, but to diffuse some of the tension involved in the situation and channel the attention of the parties so as to restrain violence. Somewhat less explicitly but more generally, law is also fulfilled in performance when a citizen acts in a statutorily-prescribed manner (such as keeping to the right when driving), or when a party honors the obligations of a contract. In both instances, law literally establishes the script which individuals must follow, or face the consequences.
Fifth, law is taught in performance. The law classroom, still dominated by the dialogic Socratic method, is one of academia's most overtly-performative environments. In this context, law professors who are just now becoming sensitized to the legal power and potential of performance find themselves in the position of Moliere's M. Jourdain, who was delighted to discover that he had been speaking prose all the time. Law is similarly taught and analyzed in performance whenever law professors participate in panels at scholarly conferences like this one.
These five connections between law and performance, identifiable if usually disregarded from the perspective of the law, may usefully be complemented by five others which appear if one examines the law-performance relationship from the perspective of your discipline, performance studies.
Your work reminds us that, first of all, law is embodied in performance. Performance makes law a part of our physical selves. Performance literally realizes law by bringing it into the realm of the concrete; it specifies law by giving it a particular corporeal form; it animates law by making it an active part of our lives; it personalizes law by presenting it as the product of individuals. Law's embodiment in performance is not merely physical and outer-directed, however; it is also intellectual and inner-directed. Embodied performance provides a critical means for us to internalize the law; to not only become aware of it but to think it through by acting it out. Ultimately, the embodiment of law in performance authenticates and legitimizes law; we are more likely to accept and endorse a law in which performance literally allows us to take a part.
Second, law is memorialized in performance. I said earlier that trials were performances in which law is recalled; they and other performances are similarly occasions when the memory of law is invented and, if necessary re-invented. The performative embodiment of law makes this possible. Law in performance implicates a variety of physical senses and experiences; as those multiply, overlap and intensify, law becomes more engaging, and hence more embedded in both individual and communal memory. This is not to suggest that law's memorialization in performance is an inevitably-conservatizing act. The memorialization of law establishes parameters for recall, but it does not determine the precise nature of that recall. Indeed, every performed recollection of law is different, a fact which far from being problematic, helps to give law the flexibility it needs to remain relevant.
Third, law is located in performance. Unlike a legal text, a legal performance takes place both in space and in time. Performance gives law a here that makes the rules of distant legislatures near and a now which makes past precedents present. The here and the now of performed law command attention and respect while rendering law accessible to human understanding. The performance of law also locates law by creating a space and time for it which places it outside and above routine human experience. In this context, legal performance - like other types of performance - transforms the ordinary into the extraordinary, the self into other, and the transient into the timeless.
Fourth, law is celebrated in performance. Performance gives law an opportunity to be simultaneously honored and enjoyed. In performance, people can manifest their allegiance to and respect for law. They can at the same time enjoy its application in the community. This enjoyment can stem from several sources: physical participation, communal involvement, the engagement of the senses by argument or ritual, or the general association of performed law with the restoration of order. Another way to characterize the celebratory aspect of legal performance is to suggest that performance accentuates the ludic or playful quality of law: law not merely in the sense of game, but in the sense of a restorative, literally re-creative improvisation that can be shared with other members of the community.
Fifth and finally for present purposes, law is subverted in performance. Traditionally, we associate the performed subversion of law with demonstration, carnival, charivari and mock trials, but law can also be performatively-subverted within the formal legal process itself. For example, a bill in the legislature can be subverted by the counter-performance of a filibuster. Within trial argument, attorneys can subvert legally-admitted evidence by comically re-performing it, as Johnnie Cochrane did by donning the knit cap in the OJ Simpson case. I noted earlier that not all trials are properly conducted; contemptuous attorneys, disrespectful litigants, careless judges and nullifying jurors can subvert the entire trial process by refusing to adhere to the trial rules, or even by adhering to those rules too scrupulously. Such subversions ostensibly deauthenticate the law, but in a more general sense they support it by providing structured opportunities for the expression of dissent.
Identifying these connections between law and performance, and acknowledging their value, invites a range of responses.
For example, if legal performance is as pervasive as I suggest, scholars of both law and performance should explore law's numerous stylistic, aesthetic, and theatric facets. Unburdening ourselves of either our fascination with or our fear of legal texts (as appropriate), we should examine the rhetoric of law, the staging of law, the choreography of law, the costume of law, the gestures of law, the interplay of legal actors with the legal audience, etc., etc. There's no reason to limit these investigations to the courtroom; we should also study these phenomena in interrogation, plea-bargaining, discovery, settlement, client meetings, and the numerous other settings where law is performed. Somewhat more generally, scholars might use the pervasiveness of legal performance as a means of reconceiving law itself: instead of regarding law as "thing" (a text or a set of rules) we might view it as "(re)enactment" (localized routines of conventional words, gestures and other behaviors which establish order as much through their (re)articulation as through the abstract standards they represent and enforce).
If legal performance is as positive as I suggest, judges, lawyers and legislators should take steps to broaden law's material purview. Refusing to allow unedifying or unduly-spectacular legal performances (such as the OJ trial) to taint the entire genre, they should continue and even extend their experiments with new audio-visual formats which empower and encourage performance. For instance, TV, video and computers might be used not merely to record and broadcast existing legal performances, but to stimulate new ones. People might make their wills on videotape, or conclude contracts with each other - even over great distances - through the medium of virtual reality, relying on telepresence and symbolic object manipulation. Using pro-performative technologies will prompt new courtroom conventions, new ethical standards, and new interpretive techniques, but the law has the ability to adapt, just as it did when writing entered the legal arena, first as a record of performance, and then as an agent and text in its own right.
Identifying the many positive qualities of performance also invites lawyers and law professors to adopt a different stance towards performance as traditionally encountered in court and classroom. Instead of disrupting it, confining it or ignoring it via interruptive or close questioning, we might try to respect, manage and even facilitate it. This might prompt more positive professional relationships with witnesses and law students, and might be particularly empowering for members of marginalized gender, racial, ethnic and religious groups whose identities are very much bound up in performance, but whose voices have historically been muffled, even in ostensibly-performative legal settings. Law professors with an interdisciplinary bent might even introduce their students to performance studies - not merely in legal advocacy, or as a theatric overlay to legal reasoning, but as a discipline capable of casting new light on jurisprudence as a whole. Here, obviously, we need your help.
Acknowledging the positive values of legal performance ultimately invites us to change our approach to legal text. After all "text" and "performance" are not necessarily exclusive categories. In many respects, they inform and penetrate each other, creating what we unfortunately call an "intertextuality" of meaning. To this point, this intertextuality has for the most part resulted in the "textualization" of legal performance: the insertion of scripts and textual methodologies into legal performances as a means of structuring and channeling them.
However, if performance is as useful to law as I have suggested, why not turn the tables? We might "performatize" certain legal texts by, for example, reconsidering them as instruments of performance rather than documentary ends in themselves. Ironically, the various state and federal codes of evidence and procedure could probably profit the most from such an approach. Textual standards of admissibility and examination might be amended so as to encourage and facilitate performance, rather than constraining and limiting it as they tend to do now. Similarly, the current method of transcribing trial and deposition proceedings might be changed so as more accurately to communicate the gesture, tone and dialect of witnesses. Finally, we might revise our text-based interpretations of certain classic legal instruments to take account of their performative origins. As Jay Fliegelman has recently suggested, no less a document than the Declaration of Independence, originally composed for oral presentation (complete with marks for stress and breath - it was indeed a "declaration"), can benefit by being re-assessed as a performance rather than as a text.
We might also performatize legal texts by reconsidering them as instantiations of performance. As John Austin has noted, certain of these texts - for example, statutes and wills - are already instantiations of performance insofar as they make things happen by virtue of their illocutionary force alone ("we hereby ordain and establish...."). To say that legal texts have this kind of performative force, however, is not necessarily to recommend unadulterated performativity in legal practice. In law as in other contexts, truly effective change requires not only that something be done, but that it be seen, heard and felt to be done. Of course, the best strategy for ensuring this might be to surround text-based legal "speech acts" with a greater number of literal performances. Short of this, more legal writings might be crafted to evoke performances - using direct address, dialogue, or performative metaphors - thereby allowing them to serve their performative purpose while simultaneously giving them some of the socially- and psychologically-redeeming qualities of performance itself. The introduction of evocatively-performative elements might even increase the efficacy of performative legal statements: for instance, it's recently been determined that legally mandated warnings on cigarette packages are more effective when framed in direct address evoking a performed conversation than in abstract - albeit already illocutionary - language.
I would therefore end this paper - and this performance - with a literal call to action. The traditional text-centered model of law is inadequate: it masks many practical truths about the legal process while alienating many members of the community it is supposed to serve. It even compromises the impact and accuracy of legal texts themselves. To correct these problems, we need to "de-scribe" the law, recognizing and indulging the fundamental contribution of performance to the constitution of legality. Far from undermining law, "de-scribing" it could do much to enhance its reputation and ensure its success: after all, no matter how hard we might work to textualize it in writing, justice is something which ultimately must be done.
© Bernard J. Hibbitts, 1996