Democratic Acts: Theatre of Public Trials

This essay began as a story about a class on the theatre of the law. But the story I tell here is about more than that class. It is also about pedagogy outside the classroom, how my subject matter found its way into my lived experience, and how my experience transformed my worldview. What began as an academic project—an investigation of the intersection of theatre, ritual, and trial—became for me increasingly personal and political. At a time of a great crisis in American democracy, this experience, rooted in a theatre class, urged me to redefine my notion of civic responsibility and led me to recognize multiple ways democracy is performed.

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In the fall of 2000, I asked my friend Jessie Allen if she would like to teach a class with me.¹ When we were both actors, Jessie's penchant for performed intellectual discourse had balanced my desire for a theatre of enchantment. Now Jessie is a lawyer. Together we decided to look at law, particularly public trials, as theatre, merging our professional and academic expertise. We would use the tools of dramatic, performance, and legal theory to analyze how the law functions in our society.

This was not a traditional class, but a small, interdisciplinary group study at Empire State College, the State University of New York's alternative college for adult students. The group was open to any student who could handle advanced critical material and work independently. Some were midcareer performing artists exploring the boundaries of their art forms. Others were in the social sciences or prelaw. None had a background in performance theory.

As the class was getting underway, I was called to jury duty. A conflict emerged; having come of age in the '60s with an ingrained mistrust of the legal system, I resisted the notion of enacting what we were teaching about. I felt complicit working within what I believed to be an often unjust system of justice. But, ultimately, this confluence of theory, pedagogy, and personal experience—my active engagement with the workings and misworkings of the justice system—led me to recognize the theatre, the streets, and the courtroom as potential stages for enacting democracy, even as each is also sometimes a platform for grotesque enactments of autocracy. These stages pointed me to the central discovery of this project: the importance of enactment to the theory and ideals of democratic structure, and—even when our experience in daily life falls short of democracy—the value of continuing to perform the rituals of democracy, act out its dramas on the stage, in the courtroom, and in the streets, in order to maintain and expand what democracy we have.

In light of this experience I consider here the following questions:

What do the implied intersections among law, ritual, and theatre tell us about the civic functions of performance? What happens when we look at public, performed trials—a part of our civic structure—as theatre? What are the performative aspects of these trials that allow spectators various ways into them, and give these performances such weight? And how might an understanding of these help us to perform more actively and effectively as citizens? I will use the tools of dramatic analysis and elements of performance theory to analyze the trial as performance and the courtroom as a stage, and in this way illuminate the potential democratic impulse in both theatre and jurisprudence.

I offer three perspectives onto this stage, two stemming directly from the work of the class and the third from my own experience as participant/observer:

Class Action I, in the classroom, examines some of the readings the class undertook, in order to provide certain theoretical arguments about the correspondences between theatre, ritual, and law, and to make a case for understanding the performance of public trials as ritual and theatre. Class Action II moves, as the students did, to observation and fieldwork, and investigates two contemporary case studies: the Amadou Diallo case and the Fairness...