Abstract
Introduction
The tralatitious tradition of early common law was self-consciously a static and supposedly seamless one. Despite the popular satirical argot of lawyers as tramplers, perpetually in motion, chasing fees, the law itself was specifically designated as dead letters. The litera mortua that Francis Bacon (1630: fol A2r) famously references in his excavation of legal maxims are the bookish, Gothic black letter texts of an unchanging, melancholic, juristic perpetuity, frozen in time, hypostatic rather than quick in form. The statute, from the Latin stare, is something that stands, an immobile representation, a status, a statue, an unchanging form. The code is etymologically a block of wood and the immutable Tables of Law were inscribed on bronze, while commandments, as we well know, are set in stone. Sir Edward Coke (1610/1671: fol 5.a), no less, supports the point in observing that the profession of law was sedentariam vitam, a seated and sedimented form of life, and further remarks that for this reason, common lawyers were ‘not commonly long-lived’.
The profession of law, according to another early commentator, ‘wastes the greatest part of the verdour and vigour of youth’, and elsewhere the advice for neophytes is of ‘temperance…restraint’ and avoidance of all excess. Physical passivity, a reverence embodied in downcast eyes and dull decorum, seems to have been the prevalent desideratum by which to mirror a law that once writ moves on, ‘nor all your piety nor wit shall lure it back to cancel half a line, nor all your tears wash out a single word’. It is this textualist, fundamentally literary perception of a sedentary profession, lost in books, dormant in libraries, locked up in linguistic obscurity that comes under sustained critical scrutiny in the new materialism and for current purposes in Marett Leiboff’s (2020) recent opus Towards a Theatrical Jurisprudence. It is a work that seeks to recover the sensible life of the law, the art of the legal actor as thespian, the play and the performance of the trampler being wrested from its sillographic sense and returned to an active theatrical mode of emancipated encounter and embodied presence.
Openings
Ironically, for someone who would move beyond books, the narrative starts with a memory and a tactile text. Over 30 years old, stained, battered, pages coming loose and edges worn away, the disintegrating text is a copy of Jerzy Grotowski’s (2002 [1968]) Towards a Poor Theatre. The work is emblematic of post-dramatic theatre and sets out to establish a performative method that moves beyond the acting out of an essentially literary text towards a more transgressive, sensual enactment of the presence of both players and audience. Representation is replaced by montage, confrontation, noticing, connecting and responding to embodiments of injustice. A meeting takes place without any necessary props, staging or script. Affect rules, bodies manifest in encounters, the excitations of flesh, incarnadine action and the prudence of knowing exposure.
The text returned to, after three decades of hibernation, is found decomposing in a box that had survived numerous moves. The frayed cover revives a flood of haptic memories, flashbacks to Leiboff’s time as a drama student and latterly part of a theatrical troupe. There are notes and scribblings, marginalia on pages that are now detached from the spine and in an ordering of their own according to the poetry of chance. With self-effacing skill and diffident artistry, Leiboff inscribes the motif of poor theatre into her autobiographical sketch of the rediscovery of her antique copy of the book. More than that, her act of reclamation is of an artefact that is falling apart, of a text that is literally unwinding, shredding, atomizing and turning to dust. The work is becoming fragments, joining the earth and entering life in the very moment that its materiality dematerializes from ocular view. The recollection of the original purchase, use, annotation and then decay of the book serves the purpose of embodying and also dramatizing the encounter with the past, with knowledge and the exposure or ‘self-sacrifice’ of a reader who opens up to the event of the text, just as the work opens up to her.
The notion of self-sacrifice, taken from Grotowski, relates principally to the intensity that the actor brings to living their part in the here and now of the dramaturgical event. The ‘holy actor’ gives of herself, self-sacrifices for her audience in the sense of baring herself and in the proper etymology of holiness, she makes herself ‘whole’ for the audience and she becomes the intensity of affect that is the misery, joy, injustice or other humour of the play. The thespian or probably more accurately the histrion, like the disheveled book, is entering life, falling apart so as to become different through a total act, a revelation deep in the body, a laying bare at the level of the organism so as to embody the affectivity of subjectivity, to hold corporeally, as an image, as a material form, the feeling, the love, despair, hope or misery that is to open to view in the dialectic between actor, action and audience members. In sum, the sedentary, passive and inactive, cerebral image of the lawyer as an abstract manipulator of black letter rules divorced from time, place, bodies and persons is excitingly displaced by an incarnadine inscription of meetings, occasions, encounters, actors and actions which of course include that between Leiboff and Grotowski, reader and book opening in mutual recognition and in expansion into the novel domain of poor law or theatrical jurisprudence.
Two features to the shift that Leiboff advocates merit attention or noticing. The first is the sense of return, to an earlier self, to an old and dog eared book, to the imaginal site of a previous career as an actrice, joining and infusing this theatrical practice to her contemporary space and place as lawyer and jurisprude, co-author, among other ventures, of a textbook in jurisprudence, titled Legal Theories (Leiboff and Thomas, 2014). As Vico (1993: 126) puts it, knowledge is a unity, a holy whole, holistic and it becomes ours, embodied, personal, an incorporated practice only when we go back and learn it again and for ourselves. We first learn law, Vico opines, in his inaugural orations On Humanistic Education for reasons of filial devotion, for financial advancement, out of admiration for iconic juridical figures, for honour, office and respect, but such studies are generally undertaken ‘unwillingly, with disdain and do not cultivate them seriously or with enthusiasm’ (1993: 126). Others have said the same of legal education: ‘here there are tears, here there is misery’ is common enough, but few take the next step beyond mere criticism, complaint and lament, to acknowledge, from experience, that we have to return and learn law for ourselves, make it ours. Similarly, we have to discard the ‘abnormal growth of abstract intellectualism’ that disciplining harbours and express instead of a passive relationship to knowledge and to law, an engagement that uses the agitations of the soul to take responsibility for our practices, the actions and manifestations of our own law.
Leiboff returns, is excited, notices hidden connections, untrodden paths, fanged noumena, tendrils and rhizomes not previously viewed. She sets out, in other words, step two, on the track of her own jurisography, a humanistic, sensible jurisprudence and a poor theatre of law. What this means is also in important respects a return to earlier traditions, to manuals of gesture, training in chirography, the consciousness of the bodily exposure of oratory, timbre and tone and the viscera of any encounter, of any meeting, of life lived in the present tense. 1 The ancients, as Vico adverts, ‘possessed, so to speak, universities for the body’, and those corporeally instantiated institutions of pedagogy continued within the rhetorical curriculum and were part of the training of the lawyer in modes of delivery, the postures, ambulations, gestures, hand movements and fingered expressions (indigitations) that play a primary experiential part in any interaction. The lawyer, as an actor, makes something out of things (Vico, [1990]: 74). She imagines, invents, acts and in so doing delivers, or in the older argot, renders justice. The key here is the gesture, the lawyer’s res gestae being the act of indication, the mode of bringing to being and presence, with its root in the Latin gest – cognate with jest – meaning movement and event. The res gestae are gestures, motions, becoming human through the medium of the body and the eloquence of delivery. As Agamben (2000: 57) depicts it, ‘the gesture…opens the sphere of ethos as the more proper sphere of that which is human’. Gesture in this sense is not only the modality of getting presence noticed, of delivering affect, but also the way in which we create social, institutional, official and juridical spaces. It is not, of course, the only means, but it is the vehicle of the overwhelming bulk of communications. Especially in law we gest justice. For Leiboff, recalling now that the tradition has lost its gestures, limited its theatrical art, anaesthetized its sense of practice and numbed its doctrinal categories and substantive procedures, it is time to look alive and inhabit law sensuously, in gesture, performance, haptic and turbulent modes of jurisographic being and responsibility for our diverse roles, as pedagogues, as activists, as lawyers, consciously creating the office and practices that are our (necessarily limited) expressions of law. 2
Bodies of Law
Those who have plodded in Plowden in search of some law have both acted and have felt either elation or disappointment at the wealth of material details, anecdotes, literary allusions and other impurities, embellishments or lived experiences that they record and relay. 3 The Reports read ‘as spectacle, as a survey of place, being and presence…they scold and they charm, sharing the warm breath of the lifeworlds out of which they are shaped’ (Leiboff, 2020: 43). There is richness, depth and dynamism to the early genres of law reporting to which Plowden forms the tail end, on the cusp of the transition to early modern rationalization and the move to abstraction that culminates in the official law reporting of the 19th century and that we inherit today. The drama of trial is cauterized and the reportage of appellate decisions is now stripped of life, highly abstract, generally lacking any relay of the arguments of counsel, the back and forth of courtroom debate and are rapidly reduced to rules and a putatively syllogistic logic of determination. The substance of the contemporary reports is largely intratextual, citation and quotation being to earlier decisions rather than to the lifeworld of the parties.
The first point of interest is the plodding, puddling and trampling which equate in part with the itinerancy of the early common law and in alternate aspects with the presence and consciousness of the body. Whether pottering Plowdenwards or travelling to court the initial indication is of motion, the prudential body being an ambulant corpus or as Olivia Barr (2016: 6) has it: ‘Why movement? Because, to put it bluntly, there is no law without movement. Without movement, common law simply would not be…common law moves and it moves in very particular ways through patterns of technical and material practice’. Eppur si muove, and yet it moves remains true of law and even where artificial intelligence and logged algorithms determine transitions and outcomes, there is still a mobile body that enters the code, that sets the algorithm and repairs its failings. The body then is the starting point, the nexus of training and the conduit of practice. It is the unconscious presupposition of law happening and so of every legal event. The absurdly intelligent being of corporeality has to be understood in its detail. It is as an exploding concatenation of neutrons, protons and electrons, atomic clusters, molecules, coming together, creating, reverting, mutating, reforming and inventing but also sensing, seeing, hearing, anticipating, intuiting, feeling, blushing, sweating, weeping and laughing beyond any conscious knowledge and intention.
Leiboff, or by now I think we can call her Marett, it will no doubt get quite intimate, gives the example of her intuitive avoidance of a car crash (2020: 32). She was driving on open road, following another car on the cusp of the speed limit, on a 1000 km journey. She suddenly senses an accident about to happen and before she sees anything or has an iota of visual or auditory confirmation she slams on the brakes and manages to stop short of the car ahead which meanwhile has climbed the verge, toppled and landed upside down on the road in front of her. She has used the gift of fear, she has listened to her feelings and her body has spared her an injury. It is an anecdote that Schopenhauer would approve: we are truly ourselves in accidents. I have had similar experiences. So, I am sure, have you. For Marett, it is a signal instance of the virtue of theatre and of the training of the body that it instils, and by the same token a damning critique of law’s anti-theatrical stance, its narcissistic and insecure opposition to experiential modes of apprehension, to the viscera of knowing, the unconscious, which is the body: ‘if we rely on our minds only, we make mistakes and dangerous errors. As the theatrical reminds us, what is abjured in law is the training of our bodies to be aware and responsive, to be able to notice’. And the body remembers. A decade later her response through action, before thought, remains vivid, close, viscerally intact in the shaking frame of flashback. The body was in control and recalls the corporeal sensations. We are saved by our madness, the genius of the senses, what Marett terms ‘an awareness beyond the self’ (2020: 37).
The question then is that of what the body responds to and when. Sir William Blackstone (2016: 218) long ago ordained that ‘the Judges of the Court upon testimony of their own senses, shall decide the point’. The Judge, for Blackstone, is still a sensible being and equipped with erudition and affects to engage in the action of judgment. Intriguingly, in his poem ‘A Lawyer’s Farewell to his Muse’, Sir William (1835: 316) notes the appearance and tones of lawyers and their dark discordant law. The arts of comedy, music and literature are lost and: ‘Instead of these a formal band / In furs and coifs around me stand / With sounds uncouth and accents dry / That grate the soul of harmony’. The object of the lyric is a hidden law, a costumed play of locked chests, tottering hands and thorny mazes with hope at a distance: ‘There, in a winding close retreat, / Is justice doom’d to fix here seat’. 4 The body again, confined, sedentary, shrouded in esoteric argot and habit, still present and meeting those who make it through the maze of law and rules. For Marett, this raises questions of how this body is trained, when she notices and what are the purposes of these encounters, of co-presence, of staging office visits, trysts in chambers, the day in court, in vivo, going live.
It is Neitzsche who somewhere asks ‘of what use is a book that does not lead beyond all books?’ Marett’s copy of Towards a Poor Theatre has done just that, fallen apart in her hands, lost its spine, come unbound, got foxed and feckless in joining life again. It is experience, the vividae rationes of the early modern sages, the wattle of the quotidian, the narrative of time, travel, encounter, as well as family and fortune that are the untutored resource of judgment as action and as inventive practice. Precedent is, of course, part of that experience. It is the record of meetings, the anecdotal and doctrinal culling of habit, custom, practices over time that Marett argues should retain the details, the characters, the persons, the rowdy maelstrom of conflict as the colour of judgment and the action in decision. Determination, the case – the fall – begins with the body and it makes sense to be conscious of corporeality. Someone is driving and Leiboff asks what do they notice and how responsive are they to what is felt prior to thought? In similar fashion, the analogy being of the essence of legal reasoning, what does the lawyer, the barrister, the judge notice, what does their body tell them and how could she be trained to be more attuned, less muffled, not so dormant and ignored, more responsive?
If all the law’s a stage and we but players on it, then there is a radical truth to the argument that a theatrical training will greatly enhance the responsiveness of judgment to the persons and events being judged. As Fortescue put it, better a good man than a good law. The biographical history of judges often makes the same point, as when Dr Johnson defended Lord Mansfield as more than a mere lawyer: ‘Mansfield, he said, was not a mere lawyer. When he came to town he drank champagne with the wits; and he was the friend of Pope’ (Buchan, 1999). It is, in lesser words, engagement, involvement and awareness that make for holistic lawyering and this requires a stripping down of the self to engage the haptic, sensuous sensibility of the flesh, unconscious receptivity that theatrical training can prepare and promulgate. Before taking up the ‘swords and shields’ of doctrine, as Marett (2020: 129–130) cogently notices, it makes sense to learn presence, inhabitation of the body, connection, and recognize, in the thespian spirit of Grotowski, that
book education is unable to generate the same kind of responsiveness that’s produced by noticing physically…The vitality of being and presence is paramount to correct the ills that [the lawyer] is trying to fix, to make the lives of people better, which is ultimately the point of law.
Transgression, Limits and Conclusions
The notion of a theatrical jurisprudence is a transgressive idea at several levels. To focus on the body, to notice the histrionics of lawyers, in their offices, online, in court, encoded on the cell phone, in social media, is to draw attention to the ludicrous in the legal and hence to confront and challenge (again) the positivistic conception of a disemboweled and disembodied legality. This opposes most directly the theological and juristic prohibitions of theatre, from Plato’s Gorgias to Tertullian’s De Spectaculis to the classical ban on taking to the stage in Roman law, to the later and various harangues and diatribes of Bossuet (1694), Collier (1698) and Rousseau (2004 [1758]). As Marett (2020: 52–53) brilliantly excoriates, there is a theology of withdrawal in the modernist legal tradition, a denial of the body inherited by legal positivism not only in its ‘verballing’ of law but in practice: the reports, or should I now say, judgments, have started to change their shape…taking on the characteristics of Victorian melodrama…judgment now bears all the hallmarks of a well-made play…Law is now normalised but is also unbearable.
To focus on the runner and not the baton, or in Marett’s figure, the driver and not the car is to embark upon a critique of juridical reason, a contestation of the limits of decision. The philosophy of law is here displaced by a theory of law. The distinction is between subtraction and sensible life, the gravity of philosophy weighing the subject, the jurist, down, whereas theory – theoria – is of the body and its senses, and hence open to play, to aesthetics, to experience and response. Theoria is a variant of the theatrical, a point often made by critics of theatrocracy but it is one that fails to apprehend theatre as a training of the body, as engagement and response (see Weber, 2004). Understood viscerally, the theatrical is a mode of inhabitation of being, an aesthetic that creates a scene, a presence, a meeting and an event. What is at issue is a disruption of closed systems, a challenge to the sedentary and escape from the sleep of reason or at least the complacency of sedimented norms. The body is a world, and the players take that world into the social, as open, exposed, vulnerable experimentations in the invention of affects and their disruption of quotidian lives and offices.
The turbulence of theory is precisely the aim of the theatrical and draws from the volatile narrative of the histrions who recognized the erotics of action, the volatility of bodily presence and the profanation inherent in the creativity of the playing (see Dupont, 2000). Theory, theatre, thespians and terpsicores threaten with their very presence. It is not that play is light and law is heavy, as theology and jurisprudence have historically argued or rather denounced, but that acting is in heterogeneous and multiple senses disruptive of the melancholic and generally immobile forms of legal representation at one remove already from the everyday passage of intimate and affective lives. To represent is to remove, to act is to remain, to infuse, inhere, embody and respond without leaving. The histrions were lively, they crossed the line, unsettled the audience by weaving among them and thereby transgressing the fourth wall and the theatrical scrim, so as to meet, excite, engage, notice and be noticed by those present. The cathartic and erotic effect of the performance of the histrions is well known, as also the fear and anti-theatricalism that was generated to counter such disruptive activism.
The atmosphere of law was historically that of a reserved reverence, of distant interlocution, formal expression and enigmatic affect. A matter of irenicism and books, esoteric locutions, pristine garb and dislocation. Such norms are, of course, transgressed all the time and particularly in the lower echelons of practice but the conscious attention to the theatre of juristic interactions serves to remind and reactivate a sense of the experience of legal thought and action. As Foucault (1977) observes in his preface to the topic, transgression is the action that engages and crosses a limit, a line that it crosses and recrosses, its space being the flash of its passage and the boundary that marks the uncrossable. The limit and transgression depend upon each other because the transgressive exists only in the flash of its passage across the zone of exclusion, only to return to the space it has crossed:…their relationship takes the form of a spiral which no simple infraction can exhaust. Perhaps it is like a flash of lightning in the night which…gives a dense and black intensity to the night it denies. (Foucault, 1977: 35)
Proposing a minor jurisprudence in the most positive of connotations, one which transgressively occupies the space between law and theatre, it is actor and acting that are the focus of exploration. Starting with the lawyer as actor, which of course was the original name for common lawyers, the persona of the jurist has to be broken down and built up again, as in theatre school. There are law schools which have played at such introductions to law with courses in acting and theatrics, rhetoric and advocacy, to build skills but seldom to explicitly propose or inculcate an ethical sense of self or of the figure of the holy lawyer, the subject who sacrifices herself to a cause beyond the self, a performance of the other. Such is Leiboff’s first principle of theatrical jurisprudence, a laying bare of subjectivity, an autobiographical expedition and an experimentation in self-exposure so as to recollect and activate the body as memory and receptor. A twitch, a grimace, a frown, a blush and in one of the examples that Marett gives, a smile, are symptoms of visceral corporeal recollection that mark meetings and if noticed inaugurate encounter and affective action (2020: 108).
The defining feature of the affective lawyer is a lively openness and sympathy, a haptic actor who apprehends and comprehends those that he meets, acts with, empowers and performs. The example used is that of Thomas Noon Talfourd, one of the lawyers in the foundational case – primæ impressionis – of Vaughan v Menlove (1837), and also a famous playwright, who later became a judge and died on the bench, during the course of giving judgment. 7 Beyond the obvious sense of self-sacrifice in the performance of his judicial function, Talfourd is the first in a series of exempla of ethical and engaged common lawyers who embed themselves, and give the word ‘embedding’ its proper due, in the community of those whose traumas, conflicts, weaknesses, angers and fears are the subjects and altercations of lawsuits. The poor theatre lawyer, the affective advocate, the self-sacrificing jurist is one who has done the work on herself and so can notice, be open to and take on the feelings, the wounds, the needs, the history and other biographical and situational encumbrances of their clients, of the subjects of judgment. The liveliness of the lawyer is theatrical, active, present and responsive. It is a jurisprudence of sympathy, ‘practiced humanity’, the assertion in the present that makes the real emerge and disturb the norm.
The neoteric practice of sympathy is not merely affective; it is also ontographic and hermeneutic. The embedding of the subject is a mode of accessing the community and relationships and dynamics of dispute that inevitably extend far beyond the particular case and its protagonists. Carnal hermeneutics, as Kearney (2015) nominates such practice, seeks to make sense of sense, a synaesthesic endeavour which places the subject in the viscera of their networks and excavates the layers and the tendrils of contention. 8 It was Talfourd’s capacity to engage, to empathize and to feel the inequalities and burdens of class in Victorian England that informed his judging and made of him an exemplary lawyer and a jurisographer before its time. By the same token, using the extrovert theatrical method of dramatizing events and disputes, Marett painstakingly reconstructs the context and community of Vaughan v Menlove and engages with both the particulars of the case and the reasoning that purportedly gave rise to an objective standard for judging conduct, displacing the previous subjective criterion of good faith.
The case involved a hayrick that caught fire and the flames spread to adjoining property and burned down a neighbour’s house. Taking her body back, re-encountering the parties and events, Leiboff reconstructs a conflict between Robert Chambre Vaughan, a landed aristocrat of Burlton Hall, and a lower class freehold farmer, Thomas Menlove. The spontaneous combustion of the hayrick was exacerbated by strong winds and in any event, in Marett’s hypothesis, was probably not an accident but rather an act of protest upon the part of so-called ‘swingers’, dispossessed smallholders fighting against the loss of their livelihood to the mechanization of agriculture (2020: 78). The stories, like the flames, fan out and one of them is the misconception that the case stands for the origin of common law’s pervasive reasonable man. For what it is worth, the case on appeal made a cause of the prudent man. Referencing precedents that created liability for lost horses and fires that spread from one field to another, the Judge opines that ‘[t]he care taken by a prudent man has always been the rule laid down’. The prudent man is one of experience, of practical wisdom, ‘acquainted with things’ according to the etymological dictionary (Onions, 1966).
Where the reasonable man disappears from the scene and subtracts the details to achieve objectivity and abstraction, a rule and a ratio decidendi, the prudent man is one embedded in the events and relationships, connected to the narrative of the conflict and the personal in the antagonism. To restage the drama and the dramatis personæ is the goal of jurisography, the method of the minor jurisprudence to which Leiboff modestly attaches her theatricalizing project. In essence, the value and vitality of Theatrical Jurisprudence lies in the insistence upon prudence as presence and law as something staged, performed and acted out in lively and emotive modalities. The thespian lawyer is one who knows that theory is the body and that law and judgment are actions, spatial performances, atmospheric interventions and synaesthetic encounters. To this need only be added that where the thespian jurisprude looks forward so as to create an encounter, the jurisographer looks painstakingly back to reconstruct ‘law’s lost presence’, the denial of time and place in the name of an eviscerated and unbearable reason.
A final comment, a jurisography of the jurisographers. The holy lawyer, Talfourd, ‘the exception that proves nothing’, was a playwright and Serjeant at Law whose fame was such that his passing was much commented in the Australian press as a sympathetic judge (Leiboff, 2020: 131). Menlove’s son made his way to Australia and then New Zealand. The case that provides the exemplum of advocate and advocacy is Wik Peoples v State of Queensland, a case of land grabbing by colonists. It is in many senses as a choreography, as a response to people and land, that theatrical jurisprudence seeks to recuperate and stage the drama of law. By being no place, historically terra nullius, a distant island, Australia has a distinctively visceral relation to territory, to land as nomos, space as marked by the visage of its occupants. Jurisography, along with its siblings, Wild Law and Earth Jurisprudence, emerged from a sense of the presence of and responsibility for the transgressions that led to an occupied space. In one sense the antipode returns, crosses the line that separates England from its former sovereignty and creates a space of drama and exception, in which the maternal common law is the other. In a further sense, an exterior–interior, the antipode rewrites the origin and renews the tradition from a space beyond its limit, in contestation and disruption of the self-protective closure of a decaying system.
