The theatrical as jurisprudence

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

To put matters somewhat starkly: for European theatrical discourse, the sensory is admitted only as the double – the inherently deficient double, at that – of logos … Hatred of the theatre forms a red thread running through the history of European philosophy and theology (as well as theatre theory). The anti-theatrical prejudice reaches from ancient philosophy and Plato’s contempt 2for theatrokratia, over to the Church Fathers, up to Rousseau, and into the present day. Philosophy and theology behold their own distorted image in the theatre, which they must chase out of the polis of logos (or out of the Church) in order to save thinking, order, morality, ethics, propriety and/or belief. ⁴

Lehmann could have added, by extension, law and jurisprudence as embodying an antitheatrical legality. The irritation and disappointment that lies within his words might surprise on a number of levels, for as well as the charge against philosophy and theory they contain, they also reveal an image of theatre that seems to hold the very opposite of its denunciation. ⁵ Lehmann captures precisely the mood that sits behind theatrical jurisprudence, a practice, as it will be seen, that is impatient with the presumption that the philosophical and abstract ought be conceived as jurisprudential perfection. Also manifest in its social mode, ⁶ and critical forms of jurisprudence that ignore and discard the sensory and the material in favour of new variations of abstraction, the philosophical functions against which everything else must justify or offer as exception. The material, and that which is lived and is present that the theatrical embodies, is conceived as secondary at best and subaltern at worst. Those alternative and critical jurisprudences that engage with the sensory and material, in Andreas Phillipopoulous-Mihapopoulos’ spatiality, ⁷ and from Olivia Barr’s jurisprudence of movement to James Parker’s auditory jurisprudence, ⁸ are among the jurisprudential exceptions that show just what the theatrical can reveal of law and its interpreters. That is not to say that there isn’t extraordinary jurisprudential scholarship that draws on themes and concepts analogous to the theatrical, ⁹ and theatre has produced an extraordinary set of insights into law in return, in particular through Alan Read’s exploration of law and performance. ¹⁰ But when pressed, jurisprudence, and through it law, turns back into the philosophical and theoretical. This wouldn’t matter except that rather than do 3what jurisprudence ought, as a prudence through which the jurisprudent deploys wisdom and good sense, and through that, takes care of law, it is as likely to become a game, a conceptual straightjacket, a set of rules without more. Moreover, the jurisprudent, as the legal self responsible for law, is rarely asked to consider who they are and the conditions of their responsiveness towards law, for the imbrication of philosophy within jurisprudence (and through it, law) makes an assumption that doctrine and principle embed wisdom, and thus its practitioners will hold within them without more the mark of responsibility needed to work with and be responsible for law. It might, but as Lehmann shows us, the imprint of logos is no guarantee of anything other than doctrine and dogma.