Law/Form/History: Shakespeare's Verdict in All Is True

The archetypal confrontation between the law and drama is also a confrontation between truth and lying. Solon, the Athenian lawmaker, blames Thespis, the first man of the theater, for his professional deceit, which threatens to pervade society:

Thespis, at this time, beginning to act tragedies, and the thing, because it was new, taking very much with the multitude, though it was not yet made a matter of competition, Solon, being by nature fond of hearing and learning something new, and now, in his old age, living idly, and enjoying himself, indeed, with music and with wine, went to see Thespis himself, as the ancient custom was, act; and after the play was done, he addressed him, and asked him if he was not ashamed to tell so many lies before such a number of people; and Thespis replying that it was no harm to say or do so in a play, Solon vehemently struck his staff against the ground: "Ay," said he, "if we honour and commend such play as this, we shall find it some day in our business." ¹

By responding anxiously to the hypocrisy of acting, Solon gives voice to the "antitheatrical prejudice," founded on the belief that theater confuses pointless play with purposeful business, just as an "ontologically subversive" stage debases privileged truth. ² Underlying his pronouncement, moreover, is an institutional antagonism between the law and theater in which the latter is conceived of as an invidious enemy of the former's custody of facts, of its authority to determine and act on what has happened. Solon fears the tenuous distinction between theater's inconsequential fiction and the real world's socially consequential fact.

This worry has a long history. Just one of many modern reenactments of Solon's encounter with Thespis appears in Alan M. Dershowitz's vehement call to exclude drama from the courtroom. Dershowitz objects to the importation of literary (and specifically dramatic) forms into the legal process because they are scripted and prejudicial, failing to accommodate or convey the relative chaos of the real world: "[The] critical dichotomy between teleological rules of drama and interpretation, on the one hand, and mostly random rules of real life, on the other, has profoundly important implications for our legal system. When we import the narrative form of storytelling into our legal system, we confuse fiction with fact and endanger the truth-finding function of the adjudicative process." ³ Like Solon's desire to exclude "play" from "our business," Dershowitz's insistence on a "critical dichotomy" between the form of drama and the "real life" of the law attempts to drive a disciplinary wedge between theater's corrupting fictions and the law's endangered facts. ⁴ His articulation of this dichotomy demonstrates how Solon's antitheatrical legacy structures current thinking about the proper relation between the law and literature. ⁵ The danger Dershowitz identifies lies in a formal or generic contagion that threatens to infect the legal system, converting its human beings into characters. His "real life" is best judged outside the lens of genre, his law most effective when kept discrete from the forms of literature.

The shifting coordinates of this institutional antagonism motivate the following reading. By focusing on the professional theater of the English Renaissance, I have selected a historical period when Solon's distinction between "play" and "our business" had become emergently untenable, when the claim that "all the world's a stage" had stretched metaphor to tautology. ⁶ In All Is True I have selected a text fascinated by the contest (which the play itself stages) between the expectations of literary form and the "mostly random rules of real life." This essay frequently implies, however, the near equivalence of the law and history. The connection lies in the advertised capacity of both disciplines to find facts, to determine what has happened and render it (legally or interpretively) actionable. The...