Democracy’s Failures and the Art of Losing Causes: Maxwell’s Public Trials

Democracy’s triumphs occupy privileged space in our political imaginations. We tell and re-tell near miraculous tales of founding, of revolution, of rights asserted, and of inequities corrected. Yet stories of democracy’s failures, as Lida Maxwell astutely notes in her new book Public Trials: Burke, Zola, Arendt, and the Politics of Lost Causes (Oxford 2014), “stay with us for a different reason: they haunt us with the specter of the people betraying their own ideals—sanctioning injustice, inequality, and oppression rather than seeking justice, equality, and freedom” (3). These democratic failures of both law and the people, she observes, tend to be viewed by many theorists as evidence of democracy’s fatal and irreparable flaws—chief among them, the impotence and irrationality of a self-interested demos. Viewed in this way, democracy’s failures can then easily be judged as “lost causes” for which no remedy is available and no political action is effective. But what if we see failure differently? What happens if we resist the temptation to view the breakdown of both law and people as definitive? Is it possible to find in these “lost causes” of democracy, not fatalism and political immobilization, but rather various opportunities for contestation, resistance, and action? In short, what if we acknowledge that the injustice, inequality, and oppression that haunts us could have been otherwise?

In Public Trials, Maxwell draws together a compelling and powerful argument for re-conceiving the “lost cause narratives” of democratic failure, and her specific focus on public contestations over legal trials critically expands the terrain in which democratic life and practice is usually considered. Trials offer sharply etched renderings of some of our most pressing political dilemmas. As Andrew Murphy has argued, “political theory can take a new form when principles are inserted into the dramatic dialogue of a courtroom trial,” offering examples of embodied contestation and dissent.¹ Yet, despite these features, trials are not routinely seen as a “central part of politics” or examined by democratic theorists. Often characterized as an “inappropriate site for the people,” trials are viewed as de-politicized, rule-bound, and particular, tending toward the technocratic and inhabited by legalistic experts and practitioners. Scholars of transitional justice, such as Sonali Chakravarti, Martha Minow, and Margaret Walker, have noted the insufficiencies of trials to do justice when war crimes, mass rape, and genocide cannot be adequately encompassed in existing law. With a different kind of critique, democratic theorists such as Wendy Brown and Sheldon Wolin express deep suspicion of the law’s normalizing and regulatory tendencies. For example, Brown notes that attempts to use the courts to remedy inequality put into play a “profoundly antidemocratic element” as a “relatively accessible sphere of popular contestation” is transferred “to the highly restricted sphere of juridical authority.”²

By contrast, the four pivotal trials featured in Maxwell’s book reveal in vivid and provocative ways how fecund the genre of the trial can be for serious examinations of law, democracy, and democratic failure. She draws on nuanced and insightful readings of history, law, and literature to examine in turn: Edmund Burke’s coverage of the (in)famous impeachment and trial of Warren Hastings, the governor-general of the East India Company; Emile Zola’s writings on the Dreyfus Affair in France in the late nineteenth-century; Hannah Arendt’s coverage and assessment of the Adolf Eichmann trial in Jerusalem; the (absent) trial of alleged terrorist detainees at the center of Kathryn Bigelow’s film, Zero Dark Thirty. Challenging the fatalistic interpretation of democratic failures, Maxwell instead sees in each of these cases how losses (i.e., moments when law and the people fail to assure justice) could operate as possibilities for democratic awareness and critique as well as democratic action. The task of attending to “failure” in Maxwell’s perspective thus offers important opportunities for democracy and for democratic actors facing profound disappointment and loss...