Towards a Theatrical Jurisprudence

Marett Leiboff

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317204060
• Edition: 1
• Topic: Media & Performing Arts
• Subtopic: Performance Art

This book brings the insights of theatre theory to law, legal interpretation and the jurisprudential to reshape law as a practice of response and responsibility.

Confronting a Baconian antitheatrical legality embedded in its jurisprudences and interpretative practices, Marett Leiboff turns to theatre theory and practice to ground a theatrical jurisprudence, taking its cues from Han-Thies Lehmann's conception of the post-dramatic theatre and the early work of theatre visionary Jerzy Grotowski. She asks law to move beyond an imagined ideal grounded in Aristotelian drama and tragedy, and turns to the formation of the legal interpreter ? lawyer, judge, jurisprudent ? as fundamental to understanding what's "noticed" or not noticed in law. We "notice" most easily through that which is written into the body of the legal interpreter, in a way that can't be replicated through law's standard practices of thinking and reasoning. Without more, thinking and reasoning are the epitome of antitheatricality legality; a set of theatrical antonyms, including transgression and instinct, offer instead a set of possibilities through which to reconceive assumptions and foundational concepts etched into the legal imaginary. And by turning to critical dramaturgy, the book reveals that the liveliness that sits behind theatrical jurisprudence isn't a new concept in law at all, but has a long pedigree and lineage that had been lost and hidden. Theatrical jurisprudence, which demands an awareness of self and beyond self, grounds a responsiveness that can't be found within doctrine, principle, or the technocratic, but also challenges us to notice what it is we think we know as well as what we know of lives in law that aren't our own.

The book will be of interest to scholars and students in the field of jurisprudence, legal theory, theatre and performance studies, cultural studies and philosophy.

1 The theatrical as jurisprudence

Taking aim

The theatrical – theatre – must seem the most unlikely candidate as a potential jurisprudence. Plays or drama as a literary genre might seem more appropriate a site of consideration as text holding within it accounts of law and of displays of morality apposite to the ideals of being,¹ or the burgeoning field of law and performance, with its accounts of the visibility and display of law and its practices as political praxis.² Theatre, and the place and the form of action that it entails, is popularly imagined as nothing but ersatz entertainment, and of attention seeking and display. For much of its history, theatre has been the subject of law’s attention, to be controlled and resisted as abject and untrustworthy, and potentially treacherous and destructive, precisely because it was – and is – a practice of the body and of the senses, and thus unruly and uncontainable. Bound up in what Jonas Barish has termed the antitheatrical prejudice,³ theatre has through history been maligned as subaltern and marginal, as the evil antithesis of the philosophical as the preferred and ideal form through which existence ought be shaped. Hans-Thies Lehmann recalibrates the problem of this antonymic within theatre, in terms that are profoundly useful for considering the assumptions of the jurisprudential and law:

To put matters somewhat starkly: for European theatrical discourse, the sensory is admitted only as the double – the inherently deficient double, at that – of logos … Hatred of the theatre forms a red thread running through the history of European philosophy and theology (as well as theatre theory). The anti-theatrical prejudice reaches from ancient philosophy and Plato’s contempt for theatrokratia, over to the Church Fathers, up to Rousseau, and into the present day. Philosophy and theology behold their own distorted image in the theatre, which they must chase out of the polis of logos (or out of the Church) in order to save thinking, order, morality, ethics, propriety and/or belief.⁴

1 For example, Julen Etxabe, The Experience of Tragic Judgment (Abingdon: Routledge, 2013); Maria Aristodemou, Law and Literature: Journeys From Her to Eternity (Oxford: Oxford University Press, 2000).

2 Julie Stone Peters, ‘Legal Performance Good and Bad’ (2008) 4.2 Law, Culture and the Humanities 179–200.

3 For example, Jonas Barish, The Antitheatrical Prejudice (Berkeley: University of California Press, 1981); Martin Puchner, Stage Fright: Modernism, Anti-Theatricality, and Drama (Baltimore, MD: Johns Hopkins University Press, 2002).

4 Hans-Thies Lehmann, Tragedy and Dramatic Theatre, trans. Erik Butler (Abingdon: Routledge, 2016), 28.

Lehmann could have added, by extension, law and jurisprudence as embodying an antitheatrical legality. The irritation and disappointment that lies within his words might surprise on a number of levels, for as well as the charge against philosophy and theory they contain, they also reveal an image of theatre that seems to hold the very opposite of its denunciation.⁵ Lehmann captures precisely the mood that sits behind theatrical jurisprudence, a practice, as it will be seen, that is impatient with the presumption that the philosophical and abstract ought be conceived as jurisprudential perfection. Also manifest in its social mode,⁶ and critical forms of jurisprudence that ignore and discard the sensory and the material in favour of new variations of abstraction, the philosophical functions against which everything else must justify or offer as exception. The material, and that which is lived and is present that the theatrical embodies, is conceived as secondary at best and subaltern at worst. Those alternative and critical jurisprudences that engage with the sensory and material, in Andreas Phillipopoulous-Mihapopoulos’ spatiality,⁷ and from Olivia Barr’s jurisprudence of movement to James Parker’s auditory jurisprudence,⁸ are among the jurisprudential exceptions that show just what the theatrical can reveal of law and its interpreters. That is not to say that there isn’t extraordinary jurisprudential scholarship that draws on themes and concepts analogous to the theatrical,⁹ and theatre has produced an extraordinary set of insights into law in return, in particular through Alan Read’s exploration of law and performance.¹⁰ But when pressed, jurisprudence, and through it law, turns back into the philosophical and theoretical. This wouldn’t matter except that rather than do what jurisprudence ought, as a prudence through which the jurisprudent deploys wisdom and good sense, and through that, takes care of law, it is as likely to become a game, a conceptual straightjacket, a set of rules without more. Moreover, the jurisprudent, as the legal self responsible for law, is rarely asked to consider who they are and the conditions of their responsiveness towards law, for the imbrication of philosophy within jurisprudence (and through it, law) makes an assumption that doctrine and principle embed wisdom, and thus its practitioners will hold within them without more the mark of responsibility needed to work with and be responsible for law. It might, but as Lehmann shows us, the imprint of logos is no guarantee of anything other than doctrine and dogma.

5 Jacques Rancière, The Emancipated Spectator [trans. Gregory Elliott] (London and New York: Verso, 2009).

6 Brian Tamanaha, ‘The Third Pillar of Jurisprudence: Social Legal Theory’ (2015) 56 William and Mary Law Review 2235–2277, in particular at 2271–2277.

7 Andreas Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere (Abingdon: Routledge, 2015).

8 Olivia Barr, A Jurisprudence of Movement: Common Law, Walking, Unsettling Place (Abingdon: Routledge, 2016); James EK Parker, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi (Oxford: Oxford University Press, 2015); and Peter Rush’s antecedent work: Peter Rush, ‘Killing Me Softly with His Words: Hunting the Law Student’ (1990) 1 Law and Critique 21–37.

9 Especially scholarship drawing on music and improvisation: Desmond Manderson, ‘Fission and Fusion: From Improvisation to Formalism in Law and Music’ (2010) 6.1 Critical Studies in Improvisation 1–10; Desmond Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice (Berkeley: University of California Press, 2000); Sara Ramshaw, Justice as Improvisation: The Law of the Extempore (Abingdon: Routledge, 2013).

10 Alan Read, Theatre and Law (Basingstoke: Palgrave Macmillan, 2016).

What it does guarantee, however, is the negation of the ‘sensory as double’, the physical and material, the visual and auditory, and its bamboozling and disorienting effects and interruption of the conditions that ground law’s presumptive orientation, that of reason and rationality. This is the theatrical in all of its disrupting and responsive modes found in theatre practice that took shape in the late nineteenth- before erupting in the twentieth century. Its practices are now grammatical and commonplace, but this theatrical avant-garde forced a move away from the image of theatre as drama (that is largely embedded within law’s logics and expectations, to be considered in the next chapter). Turning away from the inherited position that theatre was the basely artisanal presentation and representation of a literary drama created by an intellectual, author as playwright, in whom higher ideals would be generated, theatre practitioners created theatre that needed nothing more than body, space, and the responsiveness demanded through the presence of being created in a unique time and space.¹¹ This theatre requires no script, no drama, no words, no literature, no logos, no silly costumes or dress-ups, no characters in the ordinary sense, no ‘playing’, but it makes intense demands on anyone with its purview, through the challenges it creates and the responsiveness it demands. Its characteristics are encapsulated in a now famous concept coined by Lehmann – postdramatic theatre:¹²

Theatre is not to be defined as a dramatic process, but as one that is corporeal, scenic, musical, auditory and visual – in space and time: a material process that implies its own being – seen or participation, even as it displays a certain opacity that resists full perceptive penetration [wahrnehmende Durchdringung] just as much as it refuses complete rationalization.¹³

And there is the rub. Postdramatic theatre challenges, confronts, and forces us, as spectators (and as actors/performers/interpreters) to respond to that confrontation as a bodily response first; intellectual responses matter and move from this initial confrontation, disruption, and rattling of expectations, constituting the concept of ‘response’ embedded in theatrical jurisprudence. As Peter Brook remarks, theatre: ‘always asserts itself in the present. This is what can make it more real than the normal stream of consciousness. This is also what can make it so disturbing’.¹⁴ To disturb reveals, and it forces us to pay attention, usually to something most of us would prefer to avoid. Of a new 2016 production of A Midsummer Night’s Dream, the artistic director of the Sydney Theatre Company reminds us that repetition for the sake of it is pointless: ‘For us to do the umpteenth production of it in Sydney, we had to have something new to say.’¹⁵ It said lots – of power in the hands of a megalomaniac, and the vacuousness of fame for fame’s sake – bound up in text centuries old but brought directly into the present through a hint of a then US Presidential candidate dressed in a gold sequinned jacket in the form of Theseus/Oberon, and a Kim Kardashian-like vision in gold as a reimagined Hippolyta/Titania. And it forced its audience to pay attention, to notice the double through sound, its weight oppressing and suffocating in its demand to realise just what is at stake when power does the same.¹⁶ To ‘chase [theatre] out ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Preface
• Acknowledgments
• Before you turn the page …
• 1. The theatrical as jurisprudence
• 2. Law’s dramatic pretence
• 3. Law’s lost presence
• 4. The moral theatre
• 5. The encounter
• 6. Reclaiming the holy lawyer
• 7. Towards a theatrical jurisprudence
• Bibliography
• Index