Law, Literature, Theatre: The Fiction
of Common Judgment
Christian Biet*
Law and literature, law and theatre: it is this ‘and’ that constitutes the focus of our
research. This process of linking two, a priori unrelated disciplines, has a short but double
history. Two different lines of thought on the relationship between law and literature,
born on opposite sides of the Atlantic, have in recent years started to join up.
More than 30 years ago, mostly in the USA and Canada, professional jurists (Richard
Weisberg, amongst others) began to use their legal background as a starting point to
compare law and literature, analysing how law as a discipline is closely linked to literary
fiction. This line of criticism, undertaken by jurists using literature, also outlined a corpus
of textual references: a canon that included Kafka, Melville, Camus, Dostoyevsky, and
even Shakespeare. In so doing, it tried to show how law and literature had the common
aim of provoking (preferably positive) reflection on all the big philosophical and
sociological questions, in order to understand and perhaps even attempt to resolve them.
The discipline ‘law and literature’ was initially envisaged as a more effective way of
teaching law: a more lively, more seductive teaching method, that grappled with the
complex phenomena present in literary fiction, and was more relevant to students’ own
experience. Whilst studying the two areas in combination allows us to understand the
questions that law and literature pose themselves and each other, it also reveals how law
and literature, together, can respond to the difficult questions that the world continually,
dramatically, poses itself. This viewpoint, led by jurists with some form of literary training,
who linked the two disciplines from a legal point of view, was mainly adopted in northern
Europe (the United Kingdom, Sweden, Germany, Holland etc). Thanks to increasing
numbers of well-trained researchers both in the UK and across the world, Shakespeare
quickly became a source of extraordinary cases, rich enough to provide material for
numerous articles on law and literature. At the same time the reference corpus was in a
state of continual expansion, with contemporary literature receiving particular attention.
(2011) 5(2) Law and Humanities 281–292
281
* Paris Ouest Nanterre La Défense/IUF, France. This article completes the conference papers published in
Law and Humanities (volume 5, issue 1, summer 2011). Many thanks to Jessica Goodman for her translation.
Finally, law itself had a significant impact on this modern literature, and on contemporary
theatre, cinema and visual arts, creating a state of constant reflection.
At the same time, in Holland, Italy, France, and even sometimes in England (and
indeed, in other European countries, and in the USA with Howard Bloch’s Medieval
French Literature and Law,1 a complementary but opposite phenomenon was unfolding.
Here, it was not jurists who drove the movement, and the scientific approach had nothing
to do with a pedagogical practice designed to make law more comprehensible through the
use of literature. This time, literary scholars and historians, historians of art, of cinema
and of the theatre, and even philosophers, began from the standpoint of their own
disciplines (generally from literature and more especially from the theatre) to show how
the structure of so many literary fictions is based on a precise and documented
consideration of legal fictions. They also demonstrated how art finds the cracks in the
edifice of the law, worming its way into the gaps to produce a rigorous critical judgment
on both law and the world. Furthermore, since the early adopters of this perspective were
both literary scholars and historians, often academics working on the medieval and early
modern period, they were able immediately to understand to what extent the study of
social phenomena through literary fictions could make use of legal knowledge.
In some senses, this critical perspective, particularly evident from the 1990s onwards,
came out of European and American historical studies based on juridical and judicial
questions,2 which integrated the artistic and literary object as a central element of their
reflection. In other words, law, in its most basic state, relies on the construction of an ‘as
if’; on necessary fictions that produce the coherence of a set point of view and create order
in society. Literature, then, beginning from the as if of law, borrows legal fictions and
brings them to life, drawing them into question and giving those they address (readers and
spectators) a space for reflection, and doubt. Both fields, then, practise the art of as if, of
distancing and fictionalisation, in order to produce an effective and possible truth, which
brings together citizens, readers or spectators who agree upon the effectiveness of this
truth. We need to pretend, and to admit the pretence, just as we need to mediate the real
to prevent it being ugly, savage and violent. Except the as if of the law allows man to
institute legal fictions that citizens accept as principles of certitude, designed to allow
society to function, whereas artistic and literary as ifs most often serve to destabilise
certainty, particularly legal certainty, and create fictions that are in their essence uncertain.
In this framework, law and literature do not work together. They do not necessarily
combine to ensure the functioning of social, political, philosophical and legal systems,
because literature and art by their nature aim to illustrate the weak points of the law,
making them visible to all. Rather than proposing a possible resolution, art serves to bring
282 Law and Humanities
1 University of California Press, 1977.
2 Natalie Zemon-Davis, The Return of Martin Guerre (Harvard College, 1983); Carlo Guinzburg’s work on
sorcery, etc.
the artistic and legal fields into contradiction through the law’s application to precise
cases, assuming the right to judge the law, just as it assumes the right to judge the world,
and let the world judge.
If these two critical approaches are different and even opposed, they are not
necessarily irreconcilable, because they correspond, in fact, to the two functions of art
and literature: first, the creation of links, with the aim of achieving a sort of harmony; and
second, a critical function, which draws into question social, aesthetic and political links,
and even the very possibility of harmony, in the name of the contradictions it observes
and develops. The fact that the link between art and society is first addressed by jurists is
not in itself surprising. However, in studying how art—even when it presents itself as
civic-minded and the producer of harmony—works through the law, by playing with the
law, and by examining how rules do or do not apply in certain cases, jurist-critics
understand how the relationship between art and the law can be both conflictual and
immensely thought-provoking. It is here that their perspective overlaps with that of the
historians and literary scholars.
However, I do not want the ‘critical’ value of art in relation to the law to be
misunderstood. The aim of this study’s theoretical and critical practice is not to produce
what would be a very basic discourse, simply describing the satire of legal practice (judges
and lawyers) created by literature. Rather, it is a question of analysing the manner in
which literary fiction, both in the fictions it creates and in the practices it espouses,
penetrates the gaps or even the fault lines of the law. Neither do I suggest that literature
and art aim at breaking down any sort of juridical fortress built of hieratic dogma. On the
contrary, literature insinuates itself into the law; becomes familiar with it and works on
it from the inside (authors, at least until the twentieth century, were often themselves
lawyers or at least students of law) in order to complicate and problematise it, using it to
provoke reflection, rather than aiming to destroy it. Often, literature and art effectively
reverse the judicial process by following its structure: by reflecting the functions of the
trial, and borrowing its modes, its ideas and its vocabulary. If law and the judicial process
aim to move from the least to the most known, from uncertainty to certainty, then art
pursues (in all senses of the term, including the legal one) this process of examination and
elucidation in order to draw it into doubt and to overturn it.
In some senses, then, literature invades the domain of the law, and usurps a number
of its functions. Furthermore, this is a critical interaction, since it aims to shed light on
the internal and external contradictions of the law itself. Conversely, literature can also
consolidate the law, using it as a model to restore social links and harmony, such as in the
classic detective novel or film: in this situation, its structure mimics that of the
investigation of a legal case. However, very generally, literature and art search out the
moments at which the law, in its process of elucidation and its passage towards relative
but effective certitude, hesitates, vacillates, and is lost or struck by ambiguity. And at the
moment when the law is pronounced, when judgment is passed, art seems to take up the
Law, Literature, Theatre: The Fiction of Common Judgment 283
case once more, making it more uncertain and ever more ambiguous, in order that its
audience becomes the judge, forced to express itself in a state of uncertainty and
discomfort. The readers or spectators, as if they were the guilty parties, the defendants, the
victims or the witnesses in a judicial machine determined to produce an apparently
certain judgment (or in any case, to produce a truth accepted as judicially performed),
become in their turn judges of the uncertainty of the case, cultivators of this uncertainty,
judges forced to doubt because their judgment has no other practice than that exercised
in literary and artistic fictions. In other words, they are mock judges.
Therefore if literature, as we have stated, often allows legal theoreticians, like historians,
the chance of better understanding and defining their own practice, this is precisely
because literature itself has a very specific relationship with the law. A relationship of
similitude, certainly, since they deal with the same world, the same society, the same
themes: marriage, inheritance, social links and their breakdown; the same ‘subjects’: real
or fictional in law, fictional or apparently real in literature; and are constructed in
continual relationship to the past, to successively produced texts that respond to one
another according to the evolutionary norms in a given field. But literature and law also
have a relationship of opposition, since literature displaces the law, plays with it and uses
fiction to draw it onto ground that otherwise it could not or would not consider.
Literature is spectacle, and thus it unveils, plays, evokes the abstract foundations of the
ideas to which it gives concrete expression, exemplifies the internal contradictions of the
law, dramatises the contradictions between the law and social practices, underlines that
legal fictions are also, literally, fictions, and that they have a historical, and not transcendental
source, and most importantly confronts legal rules and certainties outside the terrain
of the law. But it also takes into account legal procedures, sometimes even mimicking
them. It uses the formality of legal cases as a starting point, but allows them to escape
from this framework, proposing alternative interpretations, outside the law being
referenced. Finally, if law and judgment aim to provide a final, clear and unequivocal
ruling, in concrete cases—whether real or fictional—after having set out the principles
and examined the circumstances, literature often only appears to pass judgment—if it
even does so at all. In other words, and this is its strength, it develops an interpretative
polyvocality, which can undermine any verdict which is established. If the job of the judge
is not necessarily to know whether a certain complainant has the right to win his trial, but
rather to examine whether the law allows him to do so, within certain rules, and within
the framework of a particular competence, literature moves beyond this framework,
asking instead what is ‘just’, and therefore who ought to win. If the judgment of law looks
for a real verdict from a regulated interpretative enterprise, literature can suspend the
verdict, leave it to the reader or spectator, make it sufficiently difficult to formulate, or
present it as ambiguous in order that readers doubt the verdict, debate it, or consider it
iniquitous.
284 Law and Humanities
And so, in observing how law and its practice are really anchored in the dramaturgy
and the narrativity of texts, the challenge is not to show that literature is the mirror of its
time, but rather to understand the ways in which it intervenes not only in social, political
and economic processes, but also at the centre of the judicial field. In doing so, literature
reflects on the social judicial phenomenon and on its practices, questioning the rules and
the fictions of the law—in other words, the tools of the law itself—to the point at which
fictional works force a reflection on the law as an object of thought.And by adapting legal
procedures aesthetically (and therefore to their profit), by twisting them to fit their
dramaturgy and narrative structures, literary fictions place the law at the centre of their
practice, at the same time as they overturn it. Conversely, the judicial exercise employs
literary figures and procedures to express its cases. The link between law and literature is
therefore not necessarily conflictual, and is even sometimes vitally constitutive to one or
both fields.
If literature, then, proceeds by a process of aesthetic rewriting, by reconsidering the
rules, cases, and practices of the law in a new context, it thereby intervenes in the social
field and comments upon the law: on questions of marriage and inheritance (in comedy),
on questions of crime and public or private offences (in tragic histories and tragedy), and
on questions of political or penal laws (in tragedy and, later, on all levels in the novel).
Literature is therefore able to examine laws in a critical, ironic, aesthetic manner, using a
fictional mode to pose questions that the law does not resolve, or only seems to have
resolved. This is where literature plays a vital role: in lifting the veil on the law through
the examination of concrete cases and the values they uphold, in using fiction to expose
the contradictions inherent to the law, and in provoking crises that directly draw into
question the most fundamental judicial rules. The most important thing, then, is to show
that laws are interpretable, by creating heroes, and by constructing plots designed to draw
the law into debate.
In its direct and concrete representation of how laws are put into practice in the lives
of its characters and in its fictional world, literature interprets, and therefore suggests that
laws can be heterogeneous and contradictory; that they have a historical, and not
necessarily transcendental origin, and that they too are based on a pre-existing fiction, in
other words on an agreement or contract between the parties to whom they apply. Laws,
in fact, appear to be ripe for discussion, and merely relative because they can be so easily
accepted, transgressed or overturned. Whilst the principle of the law is that it should
function as a sort of social cement, literature dramatises the simple fact that the cohesion
it provides is not necessarily effective, because laws themselves are heterogeneous or
conflictual—that, for example, under the Ancien Régime, they are the result of canonical
rights, custom, or monarchic law. The plots of plays and novels never stop insisting upon
the fact that this apparent cohesion can disintegrate, that it can be just as artificial as the
principles upon which the laws are based, and that it is possible to learn how to
Law, Literature, Theatre: The Fiction of Common Judgment 285
manoeuvre the law by playing on its heterogeneity and artificiality. By examining the
circumstances in the cases that literature produces, by evaluating the faults, errors and
behaviour of its fictional characters, by drawing into question their different loyalties and
positionings, literature pulls the law out of its regulated practice and its theoretical field,
in order to open it to other social or subjective considerations. By revealing the historical
nature of these supposed absolutes and the non-permanence and the instability of the
values at the root of the law, by analysing law’s roots in history, custom and time, literary
fiction makes the variations in philosophical thought aesthetically perceptible through a
representation of the plasticity of its doctrines. Fiction, therefore, relativises the law.
However, the reflective distance introduced by literature, the aesthetic mode of
commenting upon and interpreting the laws, does not necessarily induce radical doubt
either with regard to the law itself, or with regard to social rules. Very often, even as a
general rule, literary fiction gives itself the task of ending the crisis that it has provoked;
of replacing the veil that it has raised upon law and its roots. It is as if the very functioning
of literature provokes a sort of discomfiture: literature must dramatise the struggles and
the discrepancies of the law, in order to interest its reader and spectator, but it must
equally try to curb this discomfiture. This is a function of the search for political and
social harmony that literature and theatre enact. By restoring, in extremis, in the fifth act
or at the end of a story, the homogeneity of the law, or another homogeneity based on
another as if, and a possible social consensus on canonical value; by using the traditional
dynamic of comedy and the novel (the happy ending, or in any case an ending that is
conventional from a judicial point of view), literature often proposes that after the crisis,
a consensus is reborn. Whilst this might be a new consensus—projective, utopian or
critical—it is a social, legal, political and familial consensus that is able to stand up to the
fictional disorder that literature had previously created.
Literature is not necessarily disruptive or subversive here, because it does not present
itself as a discipline that proposes a new truth. Rather, it introduces a speculative, critical
doubt about the ‘just’, or about a ‘just’ that is not limited by the borders of determined
law. We can therefore identify a relationship of complicity between the two domains; a
sort of parallelism or alliance in the very fact that they have in common at least a part of
their rhetoric, their procedure and their qualification of cases. This parallel comes from
their common need to convince outsiders of the guilt or innocence of a cause: both
disciplines deal with what governs human behaviour, and with human behaviour itself as
it is subject to social rules. But we can also see, in literature’s appropriation of judicial
questions and legal cases, an effect of proposition, even a freer sort of jurisprudence that
takes into account the contradictions inherent in accepted norms, and allows them to be
questioned.
And so operating within its limits, which are those of all art—that is, in a distanced,
mock-reality, without immediate effect—literature uses the law to declare both its
freedom and its legitimacy, and allows itself to propose ‘just’ solutions to its observations
286 Law and Humanities
and its definition of human behaviour. By the distance that its writing creates, even with
regard to the legal profession, and with regard to moral, religious and political values,
literary fiction grants itself a stronger autonomy than other powers, by moving the limits
of legitimacy to its own advantage.
THE PRIVATE CONVICTION OF THE READER-JUDGE
Literature, the novel and comedy are, like the law, represented by sets of cases that
illustrate the difficulty of living as an individual, at the mercy of others and at the mercy
of circumstance. Each individual, responsible character is required to establish his or her
own fictional pathway within a narrative, or a plot, in a way that is both credible and
probable. Each pathway, strewn with faults and errors, is then judged by the authority
who reads this fiction, guided by a narrator who pleads for conviction or acquittal. This
is the principle, already described by Richard Weisberg, of the author-lawyer, to which I
would add the figure of the reader-judge. The reader judges not only according to legal
procedures, mimicked and borrowed in the text itself, but also according to his heart, his
soul, his own will; that is, based on his intime conviction (a sort of private, individual
belief) of what is ‘just’, and his version of ‘equity’ (whether in the Anglo-Saxon or
Aristotelian sense).3 Through this system of private conviction based on a ‘justice’ that
proclaims itself to be universal (or metaphysical); an idea of equity, and the notion of a
‘just’ that is individually, collectively and universally conceived, that draws in feeling,
intuition, and social and ideological concepts—with these tools literature is able to go
beyond the capacities of the law, awakening in its readers and spectators a series of
individual faculties which are felt and assumed as universal, but which in fact allow for
an infinite freedom of interpretation. In opposition to the mechanical and/or rational
judgment of facts that it mimics, literature installs ‘another’ judge, who takes facts into
account, and who considers them not only with regard to the law, but also with regard to
the idea that there is a ‘just’; with regard to his individual conception of justice. The reader
and spectator are also there to cast doubt on the evidence put in front of them and
employed by the author, to consider the different witness statements, to evaluate how the
Law, Literature, Theatre: The Fiction of Common Judgment 287
3 This is not to say, however, that the idea of the ‘intime conviction’ was so firmly established in French law
under the Ancien Régime that it actually came to replace it: the fairly rigid French system of proof—tempered
by the presence of several judges, by witness statements, by their alliances or disputes, or by the idea of the
irrefutable nature of binding proof, for example—is based on procedure and the work of great men, and is
often discussed and represented in literary fiction. But we also know that this codified system was put in
opposition to the English concept of ‘equity’, based on intime conviction, which judges individuals more than
facts. In order that a French version of this notion could appear in 1790, the law relating to the individual
had to be viewed in a new way. It was also necessary that the concept of the ‘intime’ should have a greater
institutional significance, and that ‘conviction’ should have a recognised value: the 18th century took it
upon itself to legitimise both.
law generally weighs upon such situations. In other words, their role is, through the text
or the performance, to play with the word of the law, inserting their own words and their
own judgments, via the text constructed by the author: using the law, but also in some
ways working against it.
Literature, then, uses the law as a basis to construct projective spaces in which the
imagination can explore and surpass judicial norms, play upon their contradictions, and
represent situations that go beyond the judicial framework. This is the real interest in
working on the relationship between law and literature, and in exploring the behaviour
of literary fictions when compared to another sort of fiction: the legal fictions on which
the law is based. Literature introduces play in order to interest its readers, and pose them
important questions. It inveigles itself into legal games: just as we say there is interplay
between the different parts of a machine, there is a type of play between the different
elements of legal practice. The intervention of literature adds a third level of play,
analysing and revealing the discrepancies, the gaps and the uncertainty in the law itself.
And finally, by playing out these faults before an audience of readers or spectators,
literature draws them into the game: it provokes an autonomous, individual judgment,
by a modern subject, of a case represented in fiction by the literary object. This in turn
gives birth to the idea of a relative, sometimes uncertain judgment, often shot through
with doubt, and rooted in an idea of the ‘just’ that each period, each author, and most
particularly each reader, is charged with constructing for himself. It is in the context of
this critical and productive relationship that literature takes hold of the law, rarely in
order to comfort it, and most often to bring it, quite literally, into question.
LAW AND THEATRE: FROM CRITICISM
TO THE PRODUCTION OF IDEAS
I would now like to go one step further in this discussion of the alternative, substitutive,
or at least displaced and critical system that literature represents in its interaction with the
law. We will now consider literature not only in terms of the reading-pact it produces, in
which the reader is given the freedom to judge, but also in terms of the status of spectator
that it implies for its public of real, living readers. It is through the notions that we have
tried to construct here—complicity, pathos, sympathy/empathy, its apparent opposite,
distance—and even more importantly, through the process of theatrical appearance, and
thanks to ideas borrowed from the field of the law, that I hope to arrive at some sort of
definition. This will not be a definition of what the theatre should be, nor of the very
essence of theatre itself; rather it will define a sort of mechanism that, over time, repeats
itself, adjusts to its audience, and changes subtly, in order that a complex, contradictory,
and always heterogeneous identity should appear in the theatre, and take its place in the
aesthetic and social space.
288 Law and Humanities
From here, it will then be possible to reflect historically and horizontally on the fact
that the theatre has not only gradually and systematically constructed a representative
dramatic art based on ghostly illusion, but has also simultaneously come to produce a
performance, a figurative act, the visible manifestation of the collective experience of a
certain group of individuals (the artists and the audience) who create a temporal coproduction
based on more-or-less mediated facts.Within this production, the real and the
fictional, with a tangible porosity, oppose one another, brush against each other, and
mingle together. It is therefore apparent that the theatre has always offered the chance to
create, or to recreate, an illusion that is no longer dramatic, but which instead invites
participation, endangering the very place of its production, but at the same time finding
ways to avoid this danger through aesthetic and disciplinary artifice.
Theatre, then, can be defined as a representation and a performance, a play-event, a
place of aesthetic and social interaction which explores the dangers of play itself: a game
of representation, in essence, whose function and whose individual and collective
mechanisms consist of a constant series of representative interactions. This is a political,
aesthetic, legal and more or less mimetic performance, organised within the framework
of a present event. Theatre thus becomes an event which is profoundly social and
politically complex, rather than didactic, or indeed, its opposite: a self-reflexive, purely
aesthetic creation. This is because theatre uses all possible forms of questioning (images,
words, gestures, violent actions, etc) in order to be judged both in the context of the
aesthetic protocols that it sets up, and in the context of the polis that it calls together. In
the world of the theatre, justice comes face to face with ‘the just’, as it can be
contradictorily or paradoxically defined by the heterogeneous mass of spectators and
practitioners. In the world of performance in general, whether dramatic or epic, theatre
creates ‘play-events’, spaces of thought and feeling which allow those participating in this
co-presence to produce a judgment, which may or may not be applicable to the world
from which they came, and to which they will return after the performance, more or less
changed. Theatre itself speaks through the actors playing their roles. However, at the same
time it addresses the spectators by putting them in contact with the actors, and brings the
spectators into contact with one another. And these contacts are reciprocal, shared and
contradictory. It works like a field of heterogeneous forces, and at its very centre, the
performance (and at the centre of this centre, the stage), it creates echoes of the
problematic heterogeneity of the world that lies just beyond its edges.
Why do people go to the theatre? First and foremost to come together, in the hope of
enjoying themselves, and of thinking together and individually. In this sense, it is a sort
of exchange: spectators pay so that their time will be occupied by watching the
participants, so that they will gain pleasure and the opportunity for reflection, and so
that, equally, this time will be occupied by seeing other spectators in the same place. In
other words, the audience expects something that corresponds to their various reasons for
attending (company, entertainment, food for thought), but that at the same time has the
Law, Literature, Theatre: The Fiction of Common Judgment 289
capacity to surprise them, and is not the exact replica of a preceding performance. The
audience wants to see and hear something which is similar, which is the same, but which
is also different, and surprising. To be, to speak, to think in a codified place, similar to what
they know, but also to spend time in a place that is somehow unknown. It wants
repetition, complicity, fulfilled expectations, but also surprise: the presence, then, of
elements which do not totally conform to that code; that transgress it, overturn it, or
modify it slightly.
We know that this is the pleasure of going to the theatre, just as much as the specific
aesthetic event that is offered. There is, then, in the ephemeral present of theatrical
experience, in performance and in the theatrical ‘séance’4 a sort of re-enactment of the
everyday, and the playing of a game that works in relationship to this everyday: a linking
phenomenon, and a game that critics play with this link, both within this place and within
its institutionalisation in the theatre.
How then can we describe and name this whole, using the words of theatrical
aesthetics and the words of the law? How can we express its movement without resorting
to the notion of ‘sharing’? How can we retain the image of a field of contradictory forces,
and of a necessary contradiction to the materialisation of theatre, while still taking into
account the ephemeral co-presence of the apparatus and their relationship? Perhaps by
returning once again to the phenomenon at work in the theatrical scene, which we might
call ‘appearance’.
In a theatrical scene, all the participants simultaneously appear before one another,
through a series of heterogeneous figurations and different postures. The actors, the
spectators, the practitioners, and also the characters and performers, appear both before
one another, and before their interlocutors, in order to produce an event, a performance
and a fiction which are the result of the multiple presence of these multiple ‘co-authors’.
This representation of multiple appearances gives way to multiple judgments; the
theatrical space lays bare the necessity of social ties as well as the necessity of disturbing
or challenging them. This is not meant as a reference to Lyotard’s definition in Au juste:
it is neither a mere ‘exposition’ (his definition of ancient theatre)5, nor a ‘donation’ (his
definition of modern theatre)6 but a putting into practice and into play of both the
apparatus and the participating individuals. They are brought into the same space and,
aware of their presence(s) and co-presence, they are induced to reflect on that very
presence. The theatre is experienced as immediate appearance, because it occurs in the
moment, in the ephemeral instant of the session, with all the risks associated with the
heterogeneity of the relationships that are at stake. Yet it is also a mediated appearance,
290 Law and Humanities
4 For a definition of ‘séance’, see Christian Biet and Christophe Triau, Qu’est-ce que le théâtre?, coll ‘Folio
essais inédit’ (Gallimard, 2006).
5 Jean-François Lyotard and Jean-Loupe Thébaud, Au juste: conversations (Christian Bourgois, 1979).
6 Not exactly in the sense used by Jean-Luc Nancy either, though the concept is not devoid of interest in a
reflection on theatrical aesthetics.
because within the scene, beyond the basic event of the gathering, another event is being
performed or represented: because this is ‘art’.
That is why the theatrical appearance,7 as defined here, is not only about one
individual or a group of individuals representing a notion or an entity before other
individuals or groups of individuals who are in charge of judging them (which can be an
aim for the theatre, but only one amongst others). Rather it is a reciprocal, diffracted and
heterogeneous relationship built around a conscious (formal, hence necessarily semantic)
proposal, included in a power struggle isolated in a time and place in the polis (the
theatrical session) and which, by necessity, is not meant to dictate a position or a single
solution. Using an aesthetic proposal as a starting point, this theatrical and judicial
appearance produces simultaneously, contradictorily and paradoxically, an heterogeneity of
judgments—this fear-inducing heterogeneity. And in holding this aim, just as it is an
aesthetic operation, practical and represented by moving bodies, by objects, sounds and
breaths that often support a text, it is also a specific, political operation in the space where
it takes place.
The theatrical appearance can thus be seen as an aesthetic-political operation in that
it represents for all present a social event akin to a gathering and necessarily pertaining
to the political. The political operation does not necessarily mean then that the theatre is
a blatant, political act or action; only that it is an operation of the political, a way of
accomplishing or actualising the political through its very presence in the polis. It is not
about the theatre carrying a specific message, but more about a process of materialisation,
taking place before an assembly of individuals who see, meet and exchange with one
another (to varying degrees of intensity). They are connected or not connected around
common values and references, and their interaction is pervaded with contradictions and
tensions.
To phrase it better, the theatre places the representations it offers (and above all its
own representation) into the political, into the polis, by depicting the zones and questions
that, for example, politics and the law merely stumble upon by accident or ignore entirely.
Furthermore, the question of the political in the theatre or of theatre as a political game,
designating and depicting the appearance of all before all, does not imply that the theatre
only witnesses, because, as acting or performance, it has a practical impact; it does
Law, Literature, Theatre: The Fiction of Common Judgment 291
7 The term appearance is to be understood in the sense of a ‘court appearance’ and also in the sense of
‘theatrical appearance’. The French term comparution refers principally to a judicial context and is therefore
used as a means of importing the judicial question into the theatrical arena. Here we take up a notion that
Jean-Christophe Bailly and Jean-Luc Nancy use in an altogether different context, and adapt it to our own
discourse. See Jean Christophe Bailly and Jean-Luc Nancy, La comparution: politique à venir (Christian
Bourgois, 1991).A first draft of this theoretical essay was published in French, with Christophe Triau, in ‘La
comparution théâtrale’ (2008) 88 Tangence 29. See Christian Biet, ‘Towards a Dramaturgy of Appearance.
An Aesthetic and Political Understanding of the Theatrical Event as Session’ (2009) 14(3) Performance
Research 102; Christian Biet, ‘Séance, assemblée, médiation spectaculaire et comparution théâtrale’ in La
permission et la sanction: théories légales et pratiques du théâtre (1400–1600) (Rodopi, 2010).
something to or in the world thanks to the co-presence of its apparatus. Within the
aesthetic-political proposals and productions themselves at work, it enacts something
pertaining to the process of judgment. Through this process, it thus complicates the data
it introduces in an ephemeral presence before and with co-present individuals. In so
doing, it brings life to these judgments, gives them a body and flesh that is not a mere
image.
A study of this nature consists not only in observing, analysing and interpreting the
conflictual or complementary links between art (here, literature and theatre) and law, but
also in producing, via the question of judgment, a series of critical notions applicable
both in the world of the judiciary, and in the world of theatre and aesthetics. This ethicopolitical
operation of appearance has allowed us to consider the legal ‘appearance’—
whether in its incarnation in a tribunal, or in the demonstration of authority entailed in
pronouncing a sentence, which is then overturned or displaced in the aesthetic field. In
the same way, having theorised the theatrical ‘appearance’, we can make a consistent
argument about the theatre as an aesthetic and judicial location, which involves the
presence of varied and contradictory individuals, and also allows for a generalised ‘copresence’.
The theatrical scene, in which everything appears, opens up the possibility of
mock, heterogeneous judgments, without any direct effect (the opposite of the law).With
no other direct effect than that of consciously sharing a co-presence, and complicating it,
the theatrical appearance—distinct in this sense from an appearance before a jury—is
therefore totally free. The jury, too, is made to appear; the game is made complex, every
relationship and every link between the assembled individuals is brought into question.
Consequently, this complex game can be thought of not only as a process based upon the
acceptance of codes, and on complicity, or on the transgression of this complicity; but
rather as a process of democratic and heterogeneous judgment, born out of the
representation of exceptional behaviour.
292 Law and Humanities
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However, users may print, download, or email articles for individual use.