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Law & Literature
ISSN: 1535-685X (Print) 1541-2601 (Online) Journal homepage: http://www.tandfonline.com/loi/rlal20
Theatricalizing Law
Marett Leiboff
To cite this article: Marett Leiboff (2018) Theatricalizing Law, Law & Literature, 30:2, 351-367,
DOI: 10.1080/1535685X.2017.1415051
To link to this article: https://doi.org/10.1080/1535685X.2017.1415051
Published online: 17 Jan 2018.
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Theatricalizing Law
Marett Leiboff
Abstract, To theatricalize law is to ask lawyers to be aware and responsive
to the world that creates them and to be conscious of worlds beyond words.
For the theatrical reminds us that law has to see as well as to interpret, and
that seeing occurs through the body, even more so than the intellect. Reviewing
the work of some of the key scholars whose work engages with the concept
of theatricalizing law, this article challenges the presumption of
dramatic verities and certainties as the mark of an effective critical form in
law. Instead, to think law theatrically challenges knowledge, expectations,
beliefs, certainties, assumptions, and prejudices, and this article concludes
with an example of the challenge wrought by a simple theatricalization in
which a set of images that could and did mean anything were played, allowing
the audience to make their choices because they were unguided. And
then the most exceptional and meaningless of the images were explained,
and the horror imbricated in them revealed. This theatricalization did its job,
and the text revealed in ways that law as drama could not, as this article
reveals, as a theatricalization of its own.
Keywords, post-dramatic theater,
Vel’ d’Hiv, The Empty Space,
Peter Brook, jurisography, Jerzy
Grotowski, Hans-Thies Lehmann,
Hannah Arendt, theatricality,
theater, antitheatricality,
theatrical jurisprudence, bodily
responses, theatricalizing law,
staging law and justice
TO BE ENRAGED
“theasthai […] is to look with one’s mouth wide open, i.e. ‘to gape’ or
‘stare.’” One becomes nothing but an eye, raptly gazing more than
distinguishing matters clearly […] the mode of seeing that underlies
both theoria and the word “theatre” amounts, on a certain level, to
marveling from a standpoint far from meaning – ecstatic vision, or
gawking without understanding. Olga Taxidou has put it well: “the
difference between philosophy and theoria is the body with all its
senses. Possibly the difference between philosophy and theoria is
that theoria needs to be experienced through the body – the senses,
that is, the aesthetic.”1
There could be nothing more damning for law than the mark of the theatrical,2
as
shaped through its classical Platonic, Christian, and Enlightenment inheritance
Law & Literature, vol. 30, issue 2, pp. 351–367. issn 1535-685X, electronic issn 1541-
2601.
© 2018 by The Cardozo School of Law of Yeshiva University. All rights reserved.
http://dx.doi.org/10.1080/1535685X.2017.1415051.
351
LAW & LITERATURE  VOLUME 30  NUMBER 2
which abnegates theater and the theatrical,3
as a danger to reason and intellect,
and thus a failure of the ideal of law.4
Plato, Hans-Thies Lehmann suggests, is
enraged by theater in the form of tragedy,5
but regardless, the ideal that Plato
expresses results in legal assumptions that treat the theatrical with contempt, as
code for speciousness,6
or as the mark of the histrionic,7
as we see in the two instances,
the ﬁrst from argument by counsel in a 2015 Australian superior court case,
and the second contained in a brief judgment, again from an Australian superior
court, 15 years earlier:
That means that without having to go through the utterly artiﬁcial,
and we would submit unconvincing, notion of staging theatricals
about who would have done what with increasing difﬁculties of
assessing the probabilities of who would have done what, the matter
raised by the non-disclosure is at the level of underwriting decisionmaking,
raised in the forensic contest and it is the insurance decision-making,
the underwriting decision which is at the heart of 28
(3), and the disappointed insured puts forward their best case.
HIS HONOUR: I have listened to lengthy submissions, some of
which have a degree of the theatrical, some at times hysterical, and
nearly always irrelevant. The position has been reached where I
must say that Mrs Von Risefer has not listened to what the Courts
have told her on previous occasions and she is plainly abusing the
process of the Courts. This application is an abuse of that process. It
is only compassion for litigants who face eviction from their home
that induces me to refuse the respondent’s application for indemnity
costs.
In each, submission and judgment, we are left in little doubt – we see the sneer, the
smirk, the sigh of exasperation at play. Barrister and judge speak to the antitheatrical
prejudice, the dismissal of theater as subaltern and dangerous but through the
adoption of the language of theater, debased as it is, engages in the most theatrical
gesture, as it were, in order to negative a witness, a submission or a proposed course
of action. That the Platonic ideal of justice through word and reason, through law
contra the theatrical, is found in this kind of everyday law, the law of insurance, the
allocation of property rights, might seem surprising, for the image of the theatrical
is rarely applied to law of this kind. The theatrical is seen to play out in the most
visible forms of law: the criminal trial, the trial of high stakes that occurs in socalled
“theatres of justice.”8
For Hannah Arendt, the “staging” of the trial of Adolf
Eichmann in Israel in 1961 militated against law and justice,9
made worse by the
bodily reaction of witnesses as “show.” Horsman writes that the trial as show
appalled her, “not just the ﬁgure of Eichmann but also his Israeli prosecutors and
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352
even the dramatic gestures of some of the holocaust survivors who took the witness
stand during the trial.”10
But in spite of herself, Arendt was overcome by her own
bodily responses – Plato might have been enraged, but Arendt laughed, which
“caught her by surprise and overcame her,” and permeated her writing about the
1961 trial.11
Arendt’s Eichmann in Jerusalem (1963) might bear the mark of this laughter,
but it is not a laughter of joy. Instead, this is a sneering laughter that points to the
criticism of the modes of legality that occurred in the trial, and by extension, to the
Israeli government. Despite her own treatment in Nazi Germany because of her
Jewishness, Arendt adhered to forms of justice that accorded to Weberian perfection,
and she could not abide the theatrical disruption she witnessed, and led to her
sneering account of the trial. She despised what she saw as theater, and so too the
Australian barrister and judge within the forms that law takes – submissions on
the law and a decision on the law.
It is in this register that I will be taking this essay. The theatrical, as it were,
has been crowded out by the prominence of the meta-trial, of the Eichmann type,
which can be all consuming of the ﬁeld, that is, that they seem and are seen to represent
law, and function as all law insofar as law might in some way speak to theater,
and vice versa. Instead, my purpose here is to take us back to the less visible
and more prosaic law that embeds the antitheatrical along with the physicality that
resides in its alterity – the smirk, the laugh, the sigh of exasperation. For when I
talk of law, I need to emphasize that it is not the popularly imagined trial, criminal
or otherwise,12
or the execution of judgment to which I refer, nor plays about law.
Or, indeed, spectacle or performance or image, in Peter Goodrich’s terms:
The trial has been a focus of studies of the theatricality of law, usually
framed within a literary argot and method […] law in ﬁlm has
become a signiﬁcant focus of interdisciplinary legal study, but again
the subject is usually law as acted out in entertainment dramas […]
the spectacle of law as relayed through the monumental, written,
embodied, and enacted performances of lawyers themselves, gains
little express recognition or examination. Modern historians and
humanists address certain features and moments of the legal spectacle
with a wealth of erudition, specialism, and insight, but their
focus is generally the spectacle and not the law […] the show trial,
as historical act and ﬁlmic genre, rather than the legal mise en
scene, the juristic import and expression […].13
This latter sentiment, which I will inevitably make less lyrical and more prosaic,
touches on my concern here that it is through the work of law in its texts and their
reading by lawyers – judgments that hold the law as case law – and the awareness
of the stories of lives contained within and that are plugged into them. It is these
LEIBOFF  THEATRICALIZING LAW
353
and the need for their reading to achieve justice,14
what Goodrich calls the
“theatrical arrangements that precede appearance and audition,”15
that needs
attention, in a world that seems to be ready-made, a law of Google, and a law of the
self.16
For justice requires lawyers to do more than read and apply law – it requires
that they have an awareness that will enable them to seek justice, to counteract
that image of law embedded through the logics that derive from Plato and Arendt
and beyond, that enters the body, through the theatrical.
THEATER
I can take any empty space and call it a bare stage. A man walks
across this empty space whilst someone else is watching him, and
this is all that is needed for an act of theatre to be engaged.17
[Tragedy and theatre are] base poiesis, merely the result of artisanal
“doing” and not real activity in the higher, intellectual sense.
[…] If artistic mimesis in general already proves deﬁcient and
involves only what is sensory, then matters stand even worse when
it is concretely embodied in acting; inasmuch as it occurs through
speaking as another, mimesis endangers the stability of the citizen’s
personal identity.18
It is not hard to see why the term “theater” and “the theatrical” as a concept can be
conﬂated with related terms that are familiar to anyone who has experienced literary
drama and plays at school or elsewhere. What we learn quickly enough is that
the literary quality and characteristic of these forms becomes the prime site of
attention, as literature. The idea of spectacle and staging and play and performance,
the latter a word and concept I have been avoiding, not least the sense in
which performance has become overborne by performatives of all varieties (as Alan
Read remarks, “We are all performers now”19
), and the means through which being
is created or resisted.20
The demand of expectation inbuilt in common parlance
relating to accomplishment in a range of instances (“he performed well”; “she needs
to improve her performance”) are all bound up in the notion that there is a representable
text that demands conformity. We ﬁnd this meaning imbricated in the
Oxford English Dictionary’s deﬁnition: where theatre can be ‘staged,’ ‘performed,’
and/or ‘acted,’ and through which drama becomes play, and play drama. Owing to
its etymology, from the Latin for “play” and the Greek for “deed, action, play, especially
tragedy, and to do, act, perform,”21
the contemporary deﬁnitions of drama are
fundamentally antitheatrical, or at best untheatrical:
A composition in prose or verse, adapted to be acted upon a stage, in
which a story is related by means of dialogue and action, and is
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354
represented with accompanying gesture, costume, and scenery, as
in real life; a play, melodrama, the dramatic branch of literature;
the dramatic art, and a series of actions or course of events having a
unity like that of a drama.22
Drama, then, is storytelling, etymologically now far removed from its origins as
doing and playing.23
Drama, thus deﬁned, is conceived as a work of the mind rather
than the work of the body, the “artisanal” as mere cipher, who will stage, perform,
or accomplish, that is, that which is theater and theatrical, as a central conceit of
antitheatricality.
To negate the body is precisely Arendt’s complaint of theatricality – as a debasement
that occurs through unreasoning bodies that might be enraged or laugh. But
as Lehmann makes clear, the theatrical body is something far more than mere
cipher, or unreasoning: “Body, rhythm, breathing, the here and now of the unthinkable
presence of the body, its eroticism, these undermind the Logos. This body is at
the same time the place of suffering and pain, the mute body […].”24
This mute
body that thinks before the reasoning mind comes into play operates at a higher
level of function that operates beyond the limitations of text-based drama,25
and
functions in a space “on the borderline of logic and reason, on the threshold between
what is thinkable and beyond reasoning.”26
For reasons that are historically misplaced,
Lehmann argues, European theater tradition has been dominated by text
and word,27
and “assigned the highest place in theatre.”28
The caesura marking a
return to a theater beyond the text is traced at least to Antonin Artaud in the
1930s,29
or indeed to earlier experiments at the end of the 19th century and into the
early 20th century through the work of Vsevolod Meyerhold and others.30
To be
brief, as Peter Brook’s famous epithet reminds us, all you need for theater is an
empty space with two people, one to do and the other to watch or participate. To do
this requires presence, attention, and awareness, not only in that place, but also in
the preparation of the self so that the theasthai is rendered beyond a meaningless
gawp.
Plays, drama, spectacle – none of these things is needed for theater. Thea, in all
its manifestations, is the etymological starting point for theory, a way to see for
theater and all its derivations.31
But so too is theasthai. For as Lehmann reminds
us in the opening epigraph with which I started this essay, and as we have seen
with Arendt’s accidental laughter, seeing occurs through the body as much as it
does through the intellect, and each shapes the other. This is not spectacle or bare
show, or mere entertainment. To be caught in the body is to be responsive and
responsible. I will return to how this might be made manifest below, but I get ahead
of myself.
I have moved to accounting for the difference between the forms of theater and
drama, before considering the meaning of theater, for a very good reason. FransWillem
Korsten, for instance, has begun to use the term “theatre proper” when
LEIBOFF  THEATRICALIZING LAW
355
referring to its meaning,32
that is, the etymologically perfect form of theater used in
the OED: the “Latin theatrum, the Greek place for viewing, especially a theatre, to
behold or sight, view, a spectator.”33
This is why I intervened with Lehmann’s more
expansive accounting of theasthai, and the difference between the theatrical and
dramatic, and for reasons that are reiterate Goodrich’s concern that “Law is a theater
that denies its theatricality, an order of images that claims invisibility, a series
of performances that desire to be taken as the dead letter of prose and so the dead
hand of the law.”34
This is far from surprising, though, for to think in terms of
Korsten’s “theatre proper” is to limit the thing that the theatrical can do for law and
for lawyers (and judges). Without having a real sense in theater and theatrical function,
it is necessary to move beyond the limits of etymology into theater as I have
already sketched – a place of the body, a place of responsibility, and a place in which
response is shared.
This means returning the theatrical to its place within theater, with the position
of theater scholars as a term of art within theater,35
that has sought to re-orient
Goffman’s idea of a theater (as drama, it must be said),36
and Richard Schechner’s
performance theory, which have opened theater and its concepts wide, beyond the-
ater.37
To narrow theater and the shape of theatricality, returning it from the world
at large, is to think beyond the idea of “showing doing” that is embedded within
Schechner,38
and asking that we try not to think about our conduct as dramatic
scripts in the world (they are nothing of the sort). I use theater concepts to reorient
in order to think about the productive capacity of theater to help us think in law
about ways to see, and how we might train our bodies to use theater beyond sneering
and sighing and laughing, to become more responsive lawyers and legal interpreters,
to think in terms of a postdramatic law.
This also means I will be asking that we are skeptical of the OED’s “theatre” definitions
which are still mired in a late 19th-century imaginary. We are told of most
of the deﬁnitions that “This entry has not yet been fully updated (ﬁrst published
1912).” That is not to say that there have not been inclusions since 1912, but the
deﬁnition holds onto meanings that were shaped in the 19th century and have not
moved on. “Theatricality,” contrary to its usage noted above, is conﬁned to “A tendency
to theatricality and effusiveness” (1880); and “The absurd theatricalities with
which the […] campaign is now mainly carried on” (1889). It is not hard to see where
a judge or member of the bar would get their own image of the theatrical, but these
deﬁnitions also defer to an idea of theater within a narrow dimension, that is, that
it is a place, a building, that constitutes a theater, and so, too, the audience that
watches.
But the OED also synonyms theater with drama to mean: “Dramatic works
collectively” and “theatrical or dramatic entertainment […] an action or work of
art that has the quality of (good, etc.) drama or theatrical technique […] dramatic
effect or sensation, spectacle, outward show without serious inward
intent.” And this is telling, because the words “theater” and “drama” are
LAW & LITERATURE  VOLUME 30  NUMBER 2
356
constantly misapplied, treated as being synonymous, but most importantly
result in misconceptions and errors that turn “drama into theatre.” The most
extraordinary of these errors is found in the entry for Artaud’s “theatre of
cruelty” that strips it of theater and reinstantiates it as drama: “a collective
term for plays in which the dramatist seeks to communicate a sense of pain,
suffering, and evil through the portrayal of extreme physical violence.”39
That
is a profound misconception and misdescription of the theatre of cruelty – it is
theater (not drama) that seeks to penetrate or pierce our complacency, to make
us respond, into the unconscious, through the body. Artaud warned against
such a literal reading: “as soon as I said ‘cruelty’ everyone took it to mean
‘blood.’ But a ‘theatre of cruelty’ means theater that is difﬁcult and cruel for
myself ﬁrst of all.”40
Moreover, the theater of cruelty requires no “drama” at
all. As the exemplary mode of theater, it is capable of functioning within
Brook’s empty space: “Theatre can reinstruct those who have forgotten the communicative
power or magic mimicry of gesture, because a gesture contains its
own energy, and there are still human beings in theatre to reveal the power of
those gestures.”41
The conﬂation of terms, along with the inaccuracies built into
the deﬁnition, do precisely what Goodrich notes is wrong about legal interpreters
– that in law we believe words always to be correct (acknowledging the
rule of statutory construction, that dictionary deﬁnitions are only opinions of
words), but this deﬁnition of theater of cruelty in the OED demands conformity
with expectation – drama as literature, and theater as excess and unacceptable,
as a body that has gone too far.
This deﬁnition, as in law, is remade to conform to expectations, in which the
bodily cannot be comprehended. The theater of cruelty is the exemplary form
through which the theatrical occurs – not perhaps the “theatre proper” of Korsten,
but the theatrical as it was remade, through Artaud. As Lehmann points
out, it is the theatrical (not drama) that makes self-awareness manifest through
anagnorisis, that is, that moment of awareness or realization. Rather than
operating as a dramatic self-awareness, in the postdramatic theater, this point
of perception is meant to disrupt expectations:
We stand [now] before a theatre that seeks less to “serve up” a work
than to provoke renewed critical engagement and to elicit judgment
and discussion of its relation to performance […] anagnorisis often
does not occur in a dramaturgical capacity in contemporary theatre;
rather, it takes place as a caesura that regularly punctuates our
understanding of the theatrical process.42
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,
LEIBOFF  THEATRICALIZING LAW
357
even as it displays a certain opacity that resists full perceptive penetration
[wahrnehmende Durchdringung] just as much as it refuses
complete rationalization.43
This, of course, is precisely the thing that law is afraid of, what Arendt feared, and
that our imagined belief in the ability of words to armor and defend against this
kind of rupture that this kind of anagnorisis requires of us. As Christian Biet
remarks, in its intervention in politics and the polis, theater:
complexiﬁes the data it introduces in an ephemeral presence, or an
ephemeral present, before and with co-present individuals. In doing
that, it brings life to these judgements, gives them a body and ﬂesh
of a different kind than that of images.44
The belief in a perceptual possibility is bound up within law, but of course it is
something that normally is imagined as a form of the unconscious or the invisible.
Theater, through our bodies, makes this present in ways that are both dangerous
and misunderstood. It is this kind of theater and its practices that has
something to tell us in law, but one which has been largely overlooked in favor
of the literary as drama, the political as theater, the theoretical as drama,
though there has been a lively engagement with theater through Alain Bad-
iou,45
Artaud, via Jacques Derrida,46
or the immensely signiﬁcant work that
has derived through Pierre Legendre,47
through Goodrich’s work,48
and the
spectacle,49
the unconscious,50
and the mask.51
But there is theater too, theater
of the kind I have been playing out in this essay. There are limited instances of
the theatrical at play. Peter Rush creates the exemplary theater experience,52
while my theatricalizations are sometimes read as stories, as a reframing as
drama, in ways I did not expect.53
That is not to say that the dramatic and the
play as sites of law and as critical interventions as justice are inconsequential.
On the contrary. From the immense literature spawned by Georg W. H. Hegel’s
reading of Antigone and Walter Benjamin’s Trauerspiel,54
from Maria Aristodemou
to Julen Extabe, Paul Rafﬁeld’s readings of law within William Shakespeare
as drama and theater,55
and the critical readings of law through the
play as text, such as Honni van Rijskijk’s readings of Sarah Kane’s play Blasted
(1995),56
or the transcript of trials and judgments reinscribed as play – testimonial
or tribunal theater – amply reveals the play and place of play and drama
as a critical account of law and concerns of justice. Along with political theater,
Augusto Boal’s spect-actor and his legislative theater,57
this theater all tells us
something about law, as too its ﬁlmic double; the move into theatrocracy important
as a political challenge, but it is the theatrical anagnorisis that largely
been overlooked in thinking about law,58
and that to my mind provides that
thing to challenge. To think law theatrically, then, is to think it as a means
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358
through which we are challenged in our beliefs, certainties, assumptions, and
prejudices, to be challenged to think what we are and who we are.
READING
During a talk to a group at a university I once tried to illustrate how
an audience affects actors by the quality of its attention. I asked for
a volunteer. A man came forward, and I gave him a sheet of paper
on which was typed a speech from Peter Weiss’s play about Auschwitz,
The Investigation. […] The volunteer was too struck and too
appalled by what he was reading [and …] something of his seriousness
and concentration reached the audience and it fell silent. Then
at my request he began to read out loud. […] Immediately the audience
understood.59
The Theatre Lab seeks a spectator-witness, but the spectator’s testimony
is only possible if the actor achieves an authentic act. If there
is no authentic act, what is there to testify to?60
The Frankfurt Auschwitz trials are barely remembered now, but when Brook got his
student to read the text of Peter Weiss’ play (that would now be called testimonial
theater), the events in Germany were fresh in people’s minds. In the early to mid-
1960s, along with the Eichmann trial, the conduct of life and death in Nazi Germany
and beyond was raw and live. Brook had no trouble getting his volunteer student
to read the text, with no acting or hamming, and the audience deeply
responding. In this epigraph, we also notice that something happened in silence,
too, that is, before any words were read. The student, whose silent read had already
said enough, changed the atmosphere, which caused an attentiveness and a
response – in the sense of forming a responsibility – in those present. In Jerzy
Grotowski’s terms, the young reader’s authenticity created a form of testimony in
those who spectate, whose responsibility is shaped through that encounter. Let me
now break the spell, for Brook did the same thing with another student, giving him
the names of the French and English from Shakespeare’s Henry V. It was terrible.
The second student hammed, putting on posh and declaiming, not reading. The
audience, needless to say, did not respond. In attempting to unpick the problem, the
answer of the students was simple. Auschwitz was in a near past, Agincourt aeons
before. Brook then got the student actor to read and audience to respond with the
Shakespearean text, as names as lived individuals, “as if the butchery had occurred
in living memory.”61
Brook describes a situation where the reader now read the
names as if they were live, and the audience concentrated hard. Now the names
hung with a heavy silence after each was read out, the reader responding to the
lives that had been lost, and the audience responded – as spectator-witnesses. It
LEIBOFF  THEATRICALIZING LAW
359
was now authentic, and marked a profound anagnorisis, not in any didactic or lyrical
sense, but through the bodies of those who read and responded. But these bodies
were not empty vessels; the theasthai of their silent responses were shaped through
another body, whose silence (or laughter or enragement), demanded a response.
The precise neurobiological basis for this response is now understood, but in the
1960s was yet to be uncovered. For I stress, this is a response of the body, ﬁrst and
foremost, despite the involvement of words. In the ﬁrst instance, there was silence
that drew in the audience, just as the words repelled in a vacuum but were
redeemed with a sense of being.
Of course, the 1960s are now 50 years ago, and the events of Nazi Germany that
were still so horriﬁcally fresh at the time now bear a stronger resemblance to Agincourt
in terms of time, place, and distance, at an intellectual level. New horrors
have taken over. Brook would tell actors to reach into what they know to make
Weiss’ play speak now, or Shakespeare’s. Without that point of connection, which
dramaturg Hana Worthen calls a nodal knot, there can be no ability for connections
between actors and audience to be made.62
In other work, I have shown how easily
the texts of law become something different once a generation or two loses sight of
the events of a past that are imbricated within law, reordering texts accordingly.
Without that point of connection, there is a tin ear. But of course, this is serious
when texts are altered to suit, when the point of an anagnorisis is misplaced and
reordered to suit politics or purpose. What this suggests is that the point of the theatrical
is that the way we read is a two-way street, one that demands an active and
conscious response or responsiveness.63
But for lawyers, the idea of the theatrical can be so easily misunderstood. In
2006, Sir Alan Moses, then a judge, presented a lecture entitled “The Mask and
the Judge” at Trinity College, Oxford, that was later published in Australia.
The purpose of the mask was to shield the court, the judge, from their own personal
response to injustice, for the law to be applied.64
In 2014, he left the
Court of Appeal, moving to a press complaints role. In The Guardian’s view,
“He is the court of appeal judge who showed too much personality to advance
to the very summit of the judiciary.”65
As Connal Parsley reminds us (along
with the critical position of the mask and persona in law), the mask and persona,
in the Ciceronian sense, was to ensure a conformity and expectation of
being,66
and more recent work on the personhood in law turns us away from
the theatrical of the kind that is productive in law – that is, for lawyers to
move beyond the theatrical as a negative and the body of the interpreter as a
negative, and move towards the body as positive.
We can look to the work that Ann Genovese, Shaun McVeigh, and
Peter Rush have carried out on ofﬁce, responsibility, and the forms of training
that a jurisprudent should carry out for a more responsive exercise of writing
through jurisography. Their recommendation is to undertake training in
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360
responsibility through Pierre Hadot’s training in philosophy through the practice
of writing:
Since the nineteen eighties, law and humanities scholarship and
its various institutions have developed a number of distinct
modes of investigating forms of law and the ways in which we
might conduct lawful relations or belong to law. One way centres
on the question of how might a life be lived and lived well. This
question, which has links to the Greeks, and since, sits at the
centre of particular traditions of philosophy, history, and jurisprudence.
We call this the conduct of life tradition, and following
the historian Pierre Hadot, we are interested in how these disciplines
– especially philosophy – treat their daily tasks as
“spiritual exercises” or forms of training in how to live and meet
the obligations of their disciplinary, or later institutional, ofﬁce.
At least in part, jurisprudence, we argue, can be treated as a
training in persona and ofﬁce. For us, jurisography is a way to
train ourselves, as a form of discipline or exercise, to explain
how we think and act with the writing of jurisprudence. It is not
so much conceptually programmatic as a studied acknowledgement
of the relational duties of the writer and the jurisprudent,
and of the experiences of a life lived with law. The duties that
attach to the persona of jurisographer, we suggest, are to take
care of the many forms and sources of the material expression
and styles of jurisprudence that the jurisographer inherits, and,
to be clear, that they are not only inherited from jurists, judges
and jurisprudents. It is also to understand how the fragmentary
sources and forms of jurisprudence that people live with everyday
(the ofﬁcial, and the unofﬁcial) condition and contour the
conduct of their lawful relations in our own time (references
omitted).67
But one thing is missing here, in the forms of writing and the conduct of ofﬁce they
recommend. There is an assumption that responsibility will come through writing.
I suggest, instead, that it has to come through the body and to acknowledge that a
trained body will not laugh when they ought not, will not be outraged when they
ought not, and that the body will respond carefully – so long as the body (of lawyer,
judge, reader) is made responsive and responsible beyond the self. Olivia Barr’s
movement,68
and Andreas Philippopoulos-Mihalopoulos,69
in the places and spaces
of movement, ask us to notice how we walk and what that walk entails,70
and what
materialities afford, and through that the responsibilities that the jurist holds and
LEIBOFF  THEATRICALIZING LAW
361
enacts. Thus, law is a call to response and responsibility, to a form of training in life
and lifeworld to be an active lawyer.71
TRAINING THE BODY TO TAKE RESPONSIBILITY
In Poland there is a small company led by a visionary, Jerzy Grotowski,
that also has a sacred aim. The theatre, he believes, cannot
be an end in itself [… it] is a vehicle, a means for self-study, selfexploration,
a possibility of salvation. The actor has himself as his
ﬁeld of work [… and] does not hesitate to show himself exactly as he
is, for he realizes that the secret of the role demands his opening up
[…] so that the act of performance is an act of sacriﬁce […] his gift to
the spectator.72
The core of theatre is encounter. The man who makes an act of selfrevelation
is one who establishes contact with himself.73
I will now end with a series of epigraphs and a small story of a presentation. I am in
the process of ﬁnalizing the writing of a long-overdue book, Towards a Theatrical
Jurisprudence, and am indebted to Grotowski, the title of my book referencing the
one theater theorist who I took far too long to understand, including his seminal
book of writings. I leave you with a small sense of the Grotowskian encounter, and
the demands it makes on the spectator.
It is December 2015, and I present a piece at the Law Literature Humanities
conference at University of Technology (UTS), Sydney. My piece has been placed in
a law and literature panel. Theater is a hard nut to crack. I play a series of images,
prefaced by a few references from Lehmann and one or other of these remarks of
Grotowski. I play images that might be read, or misread, that have no text, and
very little to do with what I am saying. I refer to a brand-new defamation decision,
and the way that counsel in the case was able to remind the court of the Holocaust,
in the face of a defamation claim by a self-declared Holocaust denier. The court had
no trouble understanding this argument of counsel for the defense, which spoke to a
time before. The images ﬂowed, some making immediate sense, the Nazi’s entering
Paris, and others that seemed to make no sense at all. I asked a French colleague to
attend, as I knew she would know and immediately comprehend the images that
otherwise made no sense to a contemporary audience. These were of the Vel’ d’Hiv,
an infamous moment in French history (a roundup of Jews in Paris on 16–17 July
1942), that were recently denied as a French obligation by Marine Le Pen in 2017. I
write these ﬁnal words just as she was defeated as candidate for President of the
Republic. Despite her interventions, these images did not lie, and most of France
did not forget The Great Stain. Law, too, thinks that it is ﬁne to know rules, without
knowing, or understanding how to know something that Madame La Pen was
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relying on. We can look to theater to be reminded that an unknowing self has the
potential in law to do harm.
THE PRESENT
The cinema ﬂashed on to a screen images from the past. As this is
what the mind does to itself all through life, the cinema seems intimately
real. Of course, it is nothing of the sort. […] The theatre, on
the other hand, 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.74
These were not the only images I showed. There was a moment of confusion, where I
placed images of May 1968 as a link between those of Nazi Germany and what was
to come, and because that was the year in which Brook, Grotowski, and Schechner
published or contributed to publications inaugurating profound changes in the
understanding of theater in the West. But there was another reason, because these
images could be and were hard to read, seemingly speaking to World War II images
of Paris that had just ended. These images meant nothing for a reason. Some people
in the room knew, but I wanted the confusion to be palpable, to obtain that momentary
realization of being out of one’s depth, where a confusion of images appeared
that did not make sense. I felt fright and anticipation in the room. But then comfort –
of the worst kind – new and familiar horrors were restored as the images moved
again into the present. They became familiar. Charlie Hebdo, the Bataclan, raw and
alive, then and there. The images started to make sense, and those earlier unfamiliar
images had the potential to mean something that might have something to do with
the horrors unfolding in Europe in 2015. The other images, of May 1968, could now
be read, to an extent. The audience was silent. It was present. It was alive.
IT WAS DISTURBING
I then explained the most disturbing images of all. They were not from the present,
or May 1968, but of those events that animated those men and women who developed
theater in the 1960s. Here it was. A few images of men in the street and at a
train station. And of the Vel’ d’Hiv; images that looked so ordinary and everyday.
But they were not silent, for Jewish men were being arrested in the street and
deported, and the buses outside the Vel’ d’Hiv were waiting to deport those
entrapped there – to be deported from France. The words I spoke of the Vel’ d’Hiv
mattered. They probably will not be recalled by those there, and I will not repeat
them here, but they made the anagnorisis I sought manifest, in that experience and
encounter that make us notice injustice, and how to keep reminding ourselves how
law, without experience, creates the conditions of injustice.
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At these rare moments, the theatre of joy, of catharsis, of celebration,
the theatre of exploration, the theatre of shared meaning are one. But
once gone, the moment is gone and it cannot be recaptured slavishly
by imitation – the deadly creeps back, the search beings again.75
Here then, on the brink of an unwritten history, on the edge of the
positive unconscious of law, similar in kind to the encryption, is a
synecdoche, a mark of a hidden history of the juridical. We have literally
to look behind the scenes, into the emptiness that is ﬁlled by
images and imaginings, to apprehend the staging of law as a theatrical
and present drama.76
DISCLOSURE STATEMENT
No potential conﬂict of interest was reported by the author.
ORCID
Marett Leiboff http://orcid.org/0000-0003-1723-9870
1. Hans-Thies Lehmann, Tragedy and Dramatic Theatre,
trans. Erik Butler (Abingdon: Routledge, 2016),
27 (references excluded from the quotation).
2. Jonas Barish, The Antitheatrical Prejudice (Berkeley:
University of California Press, 1981); Martin Puchner,
Stage Fright: Modernism, Anti-Theatricality, and Drama
(Baltimore: Johns Hopkins University Press, 2002);
cf. David Kornhaber, “Introduction: Drama and Philosophy
2.0,” Modern Drama 56, no. 4 (2013): 419–
33; cf. David Kornhaber, The Birth of Theater from the
Spirit of Philosophy: Nietzsche and the Modern Drama
(Evanston: Northwestern University Press, 2016).
3. Samuel Weber, Theatricality as Medium (New York:
Fordham University Press, 2004), ix–xi; Julie Stone
Peters, “Legal Performance Good and Bad,” Law,
Culture & the Humanities 4, no. 2 (2008): 179–200;
cf. Martin Puchner, The Drama of Ideas: Platonic
Provocations in Theater and Philosophy (Oxford:
Oxford University Press, 2010).
4. Martin Puchner, “Afterword: Please Mind the Gap
between Theatre and Philosophy,” Modern Drama
56, no. 4 (2013): 540–53, at 542: “Philosophy […]
is not an object of study, like theatre, but an intellectual
practice.”
5. Lehmann, Tragedy and Dramatic Theatre, 24: “Plato’s
rage against (more than his critique of) tragedy.”
6. Bret Walker SC (Senior Counsel) in argument in
Atradius Credit Insurance N.V. v Prepaid Services Pty
Limited & Ors; Prepaid Services Pty Ltd v Optus Mobile
Pty Ltd & Ors [2015] HCATrans 155 (June 19, 2015).
The Australian High Court is the ultimate court of
appeal, and not to be confused with the lower level
British courts.
7. Von Risefer & Anor v Permanent Trustee Company
[2000] QCA 374 (September 13, 2000), Thomas J.
8. For example, “Theaters of Justice and Fictions of
Law” [Special Issue], Cardozo Studies in Law and Literature
11, no. 2 (1999); Leslie J. Moran, Gary Watt,
Linda J. Mulcahy, and David J. Isaac, “A Review of
Ruth Herz, The Art of Justice: The Judge’s Perspective,”
Law and Humanities 7, no. 1 (2013): 113–28, at
116; Yasco Horsman, Theaters of Justice: Judging,
Staging, and Working Through in Arendt, Brecht, and
Delbo (Stanford: Stanford University Press, 2010).
9. Hannah Arendt, Eichmann in Jerusalem: A Report on
the Banality of Evil [1963], intro. Amos Elon (New
York: Penguin, 2006); Horsman, Theaters of Justice,
135; cf., e.g., Shoshana Felman, “Theaters of Justice:
Arendt in Jerusalem, the Eichmann Trial, and the
Redeﬁnition of Legal Meaning in the Wake of the
Holocaust,” Critical Inquiry 27, no. 2 (2001): 201–38;
Michael Bachmann, “Theatre and the Drama of
LAW & LITERATURE  VOLUME 30  NUMBER 2
364
Law: A ‘Theatrical History’ of the Eichmann Trial,”
Law Text Culture 14 (2010): 94–116.
10. Horsman, Theaters of Justice, 16.
11. Ibid., 17.
12. Kirsty Duncanson and Emma Henderson, “Narrative,
Theatre, and the Disruptive Potential of Jury
Directions in Rape Trials,” Feminist Legal Studies 22,
no. 2 (2014): 155–74, who rely on Goffman’s concept
of dramaturgy, theater, and drama; Frans-Willem
Korsten, “O€ffentlichkeit and the Law’s Behind
the Scenes: Theatrical and Dramatic Appearance in
European and U.S. American Criminal Law,” German
Law Journal 18, no. 2 (2017): 399–422.
13. Peter Goodrich, “Specters of Law: Why the History of
the Legal Spectacle has Not been Written,” UC Irvine
Law Review 1, no. 3 (2011): 773–812, at 779–80 (references
have been omitted; emphasis added).
14. But see Nicole Rogers, “The Play of Law: Comparing
Performance in Law and Theatre,” QUT Law
Review 8, no. 2 (2008): 429–43.
15. Goodrich, “Specters of Law,” 808.
16. Marett Leiboff and Mark Thomas, Legal Theories:
Contexts and Practices, 2nd ed. (Sydney: Thomson
Reuters, 2014): 17–20.
17. Peter Brook, The Empty Space (Harmondsworth:
Penguin, 1968), 11.
18. Lehmann, Tragedy and Dramatic Theatre, 24.
19. Alan Read, Theatre & Law (London: Palgrave, 2016),
40.
20. Ibid., 41. I do not intend to consider the overly worn
path of J. L. Austin’s performatives here.
21. “theatre, n.,” OED Online (Oxford: Oxford University
Press, March 2017).
22. “drama, n.,” ibid.
23. Cf. Korsten, “O€ffentlichkeit and the Law’s Behind the
Scenes,” 404.
24. Hans-Thies Lehmann, “From Logos to Landscape:
Text in Contemporary Dramaturgy,” Performance
Research 2, no. 1 (1997): 55–60, at 57; also HansThies
Lehmann, Postdramatic Theatre, trans. and intro.
Karen J€urs-Munby (Abingdon: Routledge, 2006).
25. Marett Leiboff, “Law, Muteness and the Theatrical,”
Law Text Culture 14 (2010): 384–91; Marett Leiboff,
“Towards a Jurisprudence of the Embodied Mind –
Sarah Lund, Forbrydelsen and the Mindful Body,”
Navein Reet: Nordic Journal of Law and Social
Research 6, no. 2 (2015): 77–92.
26. Lehmann, “From Logos to Landscape,” 56.
27. Ibid.
28. Ibid.
29. Ibid., 57.
30. For example, Robert Leach, Vsevolod Meyerhold
(Cambridge: Cambridge University Press, 1989).
31. Weber, Theatricality as Medium, 2–3.
32. Korsten, “O€ffentlichkeit and the Law’s Behind the
Scenes.”
33. For an instance of the confusion of deﬁnitions, see
Francis Bacon’s complaint of the idol of the theater.
The direction of his complaint was drama; J€urgen
Klein, “Francis Bacon,” in The Stanford Encyclopedia
of Philosophy (Winter 2016 ed.), ed. Edward N.
Zalta, https://plato.stanford.edu/archives/
win2016/entries/francis-bacon/: , 3.1.4; cf. Ragnhild
Tronstad, “Could the World become a Stage?
Theatricality and Metaphorical Structures,” SubStance
#98/99 31, nos. 2–3 (2002): 216–24.
34. Goodrich, “Specters of Law,” 808.
35. Erika Fischer Lichte, “From Theatre to Theatricality –
How to Construct Reality,” Theatre Research International
20, no. 2 (1995): 97–105; Josette Feral, “Theatricality:
The Speciﬁcity of Theatrical Language,”
SubStance #98/99 31, nos. 2–3 (2002): 94–108;
Janelle Reinelt, “The Politics of Discourse: Performativity
Meets Theatricality,” SubStance #98/99 31,
nos. 2–3 (2002): 201–15; cf. Stone Peters, “Legal
Performance Good and Bad,” 182.
36. Erving Goffman, The Presentation of Self in Everyday
Life (New York: Doubleday, 1959), draws on a
“staging” image of theater to make claims about
the self in society, as sociology: “Scripts even in the
hands of unpracticed players can come to life
because life itself is a dramatically enacted thing.
All the world is not, of course, a stage, but the crucial
ways in which it isn’t are not easy to specify,”
72. But see Greta Bird and Nicole Rogers, “Talking
to Judges about the Art of Judging: An Annotated
Performance Text,” Public Space: Journal of Law and
Social Justice 3 (2009): art. 4, 1–18, and the accompanying
multimedia performance.
37. Schechner is the founder of performance studies,
which takes the concept of the lived encounter,
within and beyond a theater space, that is, into the
myriad forms of lived experience. Among his work
in the ﬁeld, see, for example, Richard Schechner:
Performed Imaginaries (Abingdon: Routledge, 2015);
Performance Theory: Essays on Performance Theory,
1970–1976 (London: Routledge, 2003); The Future of
Ritual: Writings on Culture and Performance (London:
Routledge, 1993); and Between Theater & Anthropology,
foreword Victor Turner (Philadelphia: University
of Pennsylvania Press, c.1985).
38. “‘Showing doing’ is performing: pointing to, underlining,
and displaying doing”; Richard Schechner,
Performance Studies: An Introduction (New York:
Routledge, 2002), 22.
LEIBOFF  THEATRICALIZING LAW
365
39. “Theatre of cruelty” as deﬁned in “theatre, n,” OED
Online. Antonin Artaud: Collected Works, trans. Victor
Corti (London: Calder & Boyars, 1974), reveals
Artaud’s struggle to explain precisely what the
term meant in the 1930s against the existing image
of theater in France at the time.
40. Artaud, Antonin Artaud, 60.
41. Ibid., 61.
42. Lehmann, Tragedy and Dramatic Theatre, 163.
43. Ibid., 424.
44. Christian Biet, “Towards a Dramaturgy of Appearance:
An Aesthetic and Political Understanding of
the Theatrical Event as Session,” Performance
Research: Journal of the Performing Arts 14, no. 3
(2009), 102–09, at 109.
45. Alain Badiou, Rhapsody for the Theatre, ed. and
trans. Bruno Bosteels (London: Verso, 2013); Alain
Badiou with Nicolas Truong, In Praise of Theatre
(London: Polity, 2015); Martin Puchner, “The Theatre
of Alain Badiou,” Theatre Research International
34, no. 3(2009): 256–66.
46. Jacques Derrida, “The Theater of Cruelty and the Closure
of Representation,” Theater 9 no. 3 (1978): 6–19.
47. Cornelia Vismann, “‘Rejouer les crimes’ – Theater vs.
Video,” Cardozo Studies in Law and Literature 11, no. 2
(1999): 161–77; Julie Stone Peters, “Theatricality,
Legalism, and the Scenography of Suffering,” Law
and Literature 18, no. 1 (2006): 15–45.
48. From an immense literature of Goodrich’s work,
see, for example: Pierre Legendre, Law and the
Unconscious: A Legendre Reader, trans. and ed. Peter
Goodrich (London: Palgrave, 1997); as well as:
Goodrich, “Specters of Law”; “Screening Law,” Law
and Literature 21, no. 1 (2009): 1–23; “Rhetoric and
Somatics: Training the Body to Do the Work of
Law,” Law Text Culture 5 (2000): 241–70; and “The
Theatre of Emblems: On the Optical Apparatus and
the Investiture of Persons,” Law, Culture & the
Humanities 8, no. 1 (2012): 47–67.
49. For example, Christian Biet, “Law, Literature, Theatre:
The Fiction of Common Judgment,” Law and
Humanities 5, no. 2 (2011): 281–92.
50. Maria Aristodemou, Law and Literature: Journeys
from Her to Eternity (Oxford: Oxford University
Press, 2000), esp. “Theatre as Woman Re-Playing
the Word: Towards the Triumph of the Flesh in
Aeschylus’ Oresteia,” 58–80.
51. Connal Parsley, “The Mask and Agamben: The
Transitional Juridical Technics of Legal Relation,”
Law Text Culture 14 (2010): 12–39; Richard Mohr,
“Flesh and the Person,”Australian Feminist Law Journal
29 (2008): 31–52.
52. Peter Rush, “Killing Me Softly with His Words:
Hunting the Law Student,” Law and Critique 1, no. 1
(1990): 21–37.
53. Marett Leiboff, “Theatricalising Law in Three, 1929–
1939 (Brisbane),” Law Text Culture 20 (2016): 93–
135; Leiboff, “Towards a Jurisprudence of the
Embodied Mind”; Leiboff, “Law, Muteness and the
Theatrical.”
54. Julen Extabe, The Experience of Tragic Judgment
(Abingdon: Routledge, 2013).
55. Including Paul Rafﬁeld, Shakespeare’s Imaginary Constitution:
Late-Elizabethan Politics and the Theatre of
Law (Oxford: Hart, 2010).
56. Honni van Rijswijk, “Towards a Feminist Aesthetic
of Justice: Sarah Kane’s Blasted as Theorisation of
the Representation of Sexual Violence in International
Law,”Australian Feminist Law Journal 29
(2008): 107–24.
57. Augusto Boal, Theatre of the Oppressed, trans.
Charles A. and Maria-Odilia Leal McBride and
Emily Fryer (London: Pluto, 2008); Augusto Boal,
Legislative Theatre: Using Performance to Make Politics,
trans. Adrian Jackson (Abingdon: Routledge,
1998).
58. I will be bypassing the recent work on theatrocracy,
which speaks more to politics than to theater.
59. Brook, Empty Space, 27–28.
60. Marc Fumaroli, Jerzy Grotowski, and George
Reavey, “External Order, Internal Intimacy: An
Interview with Jerzy Grotowski,” TDR – The Drama
Review 14, no. 1 (1969): 172–77.
61. Brook, Empty Space, 27–29.
62. Hana Worthen, “For a Skeptical Dramaturgy,” Theatre
Topics 24 no. 3 (2014): 175–86.
63. Leiboff, “Theatricalising Law in Three.”
64. Alan Moses, “The Mask and the Judge” [Special
Issue: “The Art of Judging”], Southern Cross University
Law Review 12 (2008): 1–24.
65. Owen Bowcott and Roy Greenslade, “Here Comes
the Judge – The Maverick Aiming to Tame Britain’s
Raucous Press,” The Guardian May 16, 2014,
https://www.theguardian.com/theguardian/
2014/may/16/sir-alan-moses-ipso-proﬁle/./.
66. Parsley, “Mask and Agamben,” 16, 30–31.
67. Ann Genovese, Shaun McVeigh, and Peter D. Rush,
“Introduction,” Law Text Culture 20 (2016): 1–13, at 2.
68. Olivia Barr, A Jurisprudence of Movement: Common
Law, Walking, Unsettling Place (Abingdon: Routledge,
2016).
69. Andreas Philippopoulos-Mihalopoulos, Spatial Justice
Body, Lawscape, Atmosphere (Abingdon: Routledge,
2015).
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70. Barr, Jurisprudence of Movement, 7.
71. Also James E. K. Parker, Acoustic Jurisprudence: Listening
to the Trial of Simon Bikindi (Oxford: Oxford
University Press, 2015).
72. Brook, Empty Space, 66–67.
73. Jerzy Grotowski, Towards a Poor Theatre, ed. Eugenio
Barba, preface Peter Brook (London: Methuen, 1969).
74. Brook, Empty Space, 111.
75. Ibid., 151. Earlier in his account of the deadly theater,
Brook describes faithful productions that had
been kept alive for 40 or more years, but “none of
these had more than antiquarian interest, none had
the vitality of new invention,” ibid., 18.
76. Goodrich, “Specters of Law,” 811.
Marett Leiboff is Associate Professor at the School of Law, University of Wollongong,
New South Wales, Australia. Her research and scholarship center on the legal
theories of cultural legal studies, law, and humanities and theatrical jurisprudence,
with a particular focus on how the nonlegal formation of the lawyer affects and
inﬂuences practices of legal interpretation. She holds a postgraduate degree in theater
studies, undertaken long before she became a lawyer, and, without realizing it,
theatricalizes just about everything she does. She is in the process of ﬁnalizing the
writing of a long-overdue book, Towards a Theatrical Jurisprudence (Routledge,
2018).
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