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Silence and Attunement in Legal Performance

Published online by Cambridge University Press:  10 October 2019

Sean Mulcahy*
Centre for Theatre and Performance, Monash University School of Law, University of Warwick


Whilst the law maintains a right to silence, the sensorial and performative dimensions of that silence are seldom considered. This paper adopts an interdisciplinary approach, informed by legal theory and scholarship in the performing arts, such as theatre, performance studies, and music, as a way of understanding how silence plays in the court. The paper offers a typology to navigate the interpretation of silence in legal performance—both verbal and environmental—and to frame discussion of silence’s impact on the legal audience. The author concludes that silence is used and experienced in a similar way in legal and theatrical performance, namely as a means of attunement. The paper contributes new insights into the existing scholarship on acoustic jurisprudence and invites listening to the gaps in speech, the pauses, the background noise, and the silence in the court.


Bien que la loi protège le droit au silence, les dimensions sensorielles et performatives de ce silence ne sont que très rarement prises en compte. Cet article adopte une approche interdisciplinaire fondée sur la théorie juridique, les études sur la performativité, la musique et les arts de la scène, comme le théâtre, afin de comprendre comment le silence à un effet dans les tribunaux. L’article propose une typologie sur l’interprétation du silence dans les performances juridiques—qu’elles soient verbales ou environnementales—et pour encadrer la discussion par rapport à l’impact du silence sur le public juridique. L’auteure conclut que le silence est utilisé et vécu de la même manière dans les représentations juridiques et théâtrales, à savoir comme un moyen d’harmonisation. L’article contribue à l’élaboration de nouvelles connaissances en jurisprudence acoustique et invite à écouter les lacunes dans le discours, les pauses, le bruit de fond et le silence dans les tribunaux.

Copyright © Canadian Law and Society Association / Association Canadienne Droit et Société 2019 

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1 Noted in Stubbs, Julie and Tolmie, Julia, “Race, Gender, and the Battered Woman Syndrome: An Australian Case Study,” Canadian Journal of Women and the Law 8 (1995), 149.Google Scholar

2 The length of the work is the average length of canned music or muzak pieces, popularized over the first part of the twentieth century. Cage was vocally resistant to muzak and its intrusion into public spaces, such as elevators, public transport, and the suspension of broadcasts. See Kurzon, Dennis, “Peters Edition v Batt: The Intertextuality of Silence,” International Journal for the Semiotics of Law 20 (2007), 301.CrossRefGoogle Scholar

3 “John Cage,” The Art Story, accessed 4 June 2018,

4 Gann, Kyle, No Such Thing as Silence: John Cage’s 4’33” (New Haven: Yale University Press, 2010), 11. It is worth noting here the etymological relation of audience to hearing.Google Scholar

5 Malhotra, Sheena and Rowe, Aimee, Silence, Feminism, Power: Reflections at the Edges of Sound (Basingstoke: Palgrave Macmillan, 2013), 14.CrossRefGoogle Scholar

6 Balkin, Jack and Levinson, Sanford, “Law as Performance,” in Law and Literature: Current Legal Issues, ed. Freeman, Michael and Lewis, Andrew (Oxford: Oxford University Press, 1999), 729.Google Scholar

7 Rogers, Nicole, “The Play of Law: Comparing Performances in Law and Theatre,” Queensland University of Technology Law and Justice Journal, 8, no. 2 (2008), 431.Google Scholar

8 Schechner, Richard, Performance Theory (London: Routledge, 2003), 179. See alsoGoogle Scholar Turner, Victor, Dramas, Fields and Metaphors: Symbolic Action in Human Society (Ithaca: Cornell University Press, 1974).Google Scholar

9 Legal performance is readily recognized as social performance by a number of performance scholars, including Fischer-Lichte, Erika, Theatre, Sacrifice, Ritual: Exploring Forms of Political Theatre (London: Routledge, 2005) andGoogle Scholar Conquergood, Dwight, “Lethal Theatre: Performance, Punishment and the Death Penalty,” Theatre Journal, 54, no. 3 (2002).CrossRefGoogle Scholar

10 Leader, Kate, “Closed-Circuit Television Testimony: Liveness and Truth-telling,” Law Text Culture, 14 (2010), 314.Google Scholar Other noteworthy texts on legal performance include Alan Read, Theatre and Law (London: Palgrave Macmillan, 2015); Peter Robson, “Theatre and Law in the Twenty-First Century” in Cultural Legal Studies: Law’s Popular Cultures and the Metamorphosis of Law, ed. Cassandra Sharp and Marett Leiboff (Abingdon: Routledge, 2015), 113–132; Marett Leiboff, “Theatricalizing Law,” Law and Literature, 30, no. 2 (2018).

11 Peters, Julie, “Legal Performance: Good and Bad,” Law, Culture and the Humanities, 4, no. 2 (2008), 198. See alsoCrossRefGoogle Scholar Goodrich, Peter, “Spectres of Law: Why the History of the Legal Spectacle has Not been Written,” UC Irvine Law Review 1, no. 3 (2011), 808. This is discussed further inGoogle Scholar Peters, Julie Stone, “Law as Performance: Historical Interpretation, Objects, Lexicons, and Other Methodological Problems,” in New Directions in Law and Literature , ed. Ankler, Elizabeth and Meyler, Bernadette (New York: Oxford University Press, 2017), 193209.Google Scholar

12 Rogers, “The Play of Law”; Peters, “Legal Performance Good and Bad.” I should note that my focus is on performance and theatricality in the court, rather than performativity of the kind discussed by John Austin in his theory of speech acts. Parker’s critique of Austin is that his focus on performative utterances ironically tends to ignore the performative dimensions of speech: Parker, James, Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi (New York: Oxford University Press, 2015), 121. “Legal performance” could also capture performances in law-making chambers, legal offices, and other arenas that are subject to legal regulation.CrossRefGoogle Scholar

13 Peters, “Law as Performance: Historical Interpretation,” 196. To that, it might be added the creative and dramatic elements of legal process.

14 Parker, James, “Gavel,” in International Law’s Objects, ed. Hohmann, Jessie and Joyce, Daniel (Oxford: Oxford University Press, 2018).Google Scholar

15 Parker, Acoustic Jurisprudence, 205–206.

16 Sontag, Susan, Styles of Radical Will (London: Secker & Warburg, 1969), 2223;Google Scholar John Pratt, “Mind the Gap: An Examination of the Pause in Modern Theatre” (PhD diss., Edith Cowan University, 2012), 88. I am reminded of Hamlet’s flippant dismissal of “words, words, words” (Hamlet, II.ii.183).

17 Jaworski, Adam, Silence: Interdisciplinary Perspectives (Berlin: Mouton de Gruyter, 1997), 381, 392.CrossRefGoogle Scholar See also the comment of Simone Voegelin that “when I am talking [about silence], the very thing I am describing is erased by my voice”: Listening to Noise and Silence: Towards a Philosophy of Sound Art (New York: Continuum, 2010), 90.

18 See, e.g., Malhotra and Rowe, Silence, Feminism, Power, 13; Ertur, Basak, “Matters of Silence,” Law and Literature 29 (2017), 175;CrossRefGoogle Scholar Biber, Katherine, “How Silent is the Right to Silence?,” Cultural Studies Review 18, no. 2 (2012), 148.CrossRefGoogle Scholar

19 See, e.g., Nam June Paik’s work Zen for Film,

20 Quoted in Pratt, “Mind the Gap,” 55.

21 Quoted in Mulcahy, Sean, “Acting Law | Law Acting: A Conversation with Dr Felix Nobis & Prof Gary Watt,” Exchanges 4, no. 2 (2017), 193.Google Scholar

22 Rappaport, Bret, “‘Talk Less’: Eloquent Silence in the Rhetoric of Lawyering,” Journal of Legal Education 67, no. 1 (2017), 289.Google Scholar

23 Quoted in Mulcahy, “Acting Law | Law Acting,” 194.

24 Jean-Luc Nancy suggests that listening may entail a greater sense of comprehension and sensorial appreciation than mere hearing may: Listening (New York: Fordham University Press, 2007), 63. See also Szendy, Peter, Listen: A History of Our Ears (New York: Fordham University Press, 2008), 141.Google Scholar

25 Biber, “How Silent is the Right to Silence?,” 163.

26 On law and the body, see Leiboff, Marett, “Towards a Jurisprudence of the Embodied Mind: Sarah Lund, Forbrydelsen and the Mindful Body,” Nordic Journal of Law and Social Research 2, no. 6 (2015), 8287.Google Scholar

27 Dawson, Richard, Justice as Attunement: Transforming Constitutions in Law, Literature, Economics and the Rest of Life (Abingdon: Routledge, 2014), 5.Google Scholar

28 Ibid, xvii, though noting that meaning itself “is in constant motion.” Peter Goodrich notes that “‘attunement’ suggests popular music (tune), electronics (tuning to frequencies of wavelengths which are unseen but observable by other means), psychological or social concentration (attuned, or sensitive to something unobservable), and transpersonal or religious ecstasy (at-one-ment)”: “The New Age Man: Merlin as Contemporary Occult Icon,” Journal of the Fantastic in the Arts 5, no. 1 (1992): 62. A similar discussion of the multiple meanings and etymologies of attunement can be found in Lisbeth Lipari, Listening, Thinking, Being: Toward an Ethics of Attunement (University Park: Pennsylvania State University Press, 2014), 206–207. I am grateful to Sara Ramshaw for bringing this latter work to my attention.

29 Ramshaw, Sara, Justice as Improvisation: The Law of the Extempore (Abingdon: Routledge, 2013), 41, 82, citingCrossRefGoogle Scholar Fitzpatrick, Peter, “Access as Justice,” Windsor Yearbook of Access to Justice 23, no. 1 (2005), 9, andGoogle Scholar Fitzpatrick, Peter and Joyce, Richard, “Copying Right: Cultural Property and the Limits of (Occidental) Law” in New Directions in Copyright Law: Protection of Traditional Knowledge and Culture, ed. Fiona Macmillan (Cheltenham: Edward Elgar, 2007), 173.Google Scholar

30 Ramshaw, Justice as Improvisation, 89.

31 Daniel Fischlin and Ajay Heble, The Other Side of Nowhere: Jazz, Improvisation, and Communities in Dialogue (Middletown: Wesleyan University Press, 2004), 11, quoted in Ramshaw, Justice as Improvisation, 89. See also Smith, F., The Experiencing of Musical Sound: Prelude to a Phenomenology of Music (New York: Gordon & Breach, 1979), 1718.Google Scholar

32 Stewart, Kathleen, “Atmospheric Attunements,” Environment and Planning D: Society and Space, 29 (2011), 445. I am grateful to Stacy Jones for bringing this work to my attention.CrossRefGoogle Scholar

33 Ibid, 449.

34 Cf. Nagatomo, Shigenori, Attunement Through the Body (Albany: State University of New York Press, 1992), 195.Google Scholar

35 Kim-Cohen, Seth, Against Ambience and Other Essays (New York: Bloomsbury, 2016), 134. I am grateful to James Parker for bringing this work to my attention.Google Scholar

36 Zarrilli, Phillip, “An Enactive Approach to Understanding Acting,” Theatre Journal 59, no. 4 (2007), 646.Google Scholar

37 Meghan O’Rourke, “The Noise Within,” New York Times Style Magazine, 12 November 2017, 149. For a further discussion of the concept of the “body-mind” see Zarrilli, Phillip, “Toward a Phenomenological Model of the Actor’s Embodied Modes of Experience,” Theatre Journal 56, no. 4 (2004), 661– 64.CrossRefGoogle Scholar

38 Zarrilli, Phillip, “Senses and Silence in Actor Training and Performance,” in The Senses in Performance , ed. Banes, Sally and Lebecki, Andre (New York: Routledge, 2007), 61.Google Scholar

39 Ibid, 61–62.

40 Ibid, 62.

41 Stewart, “Atmospheric Attunements,” 452. See also, in relation to musical improvisation, Ramshaw, Justice as Improvisation, 61–62, 67.

42 Zarrilli, “Senses and Silence in Actor Training and Performance,” 67.

43 Nagatomo, Attunement Through the Body, 196.

44 Ibid, 203.

45 Bogart, Anne and Lindau, Tina, The Viewpoints Book: A Practical Guide to Viewpoints and Composition (New York: Theatre Communications Group, 2005), 70–71, 114. The relation between silence and stillness is also discussed inGoogle Scholar Schafer, Murray, The Soundscape: Our Sonic Environment and the Tuning of the World (Rochester: Destiny Books, 1977), 254. This observation also has resonances with the work of theatre-maker Jerzy Grotowski on the body.Google Scholar

46 O’Rourke, “The Noise Within,” 149.

47 Voegelin, Listening to Noise and Silence, 79.

48 Voegelin feels that silence “enters me and pulls on me, inside out, stretching my nervous system through thin layers of skin, hooking my inner flesh to the very outskirts of my body”: Listening to Noise and Silence, 86.

49 It may have also been the confined space that triggered this taste of anxiety. The link between silence and terror, fear and other heightened emotional states is discussed further in Schafer, The Soundscape, 256; Voegelin, Listening to Noise and Silence, 85.

50 Prochnik, George, In Pursuit of Silence: Listening for Meaning in a World of Noise (New York: Doubleday, 2010), 27.Google Scholar

51 Lane Sainty, “Geoffrey Rush Accuser Eryn Jean Norvill Brings Calm to a Courtroom Drama,” Buzzfeed, 3 November 2018,

52 Voegelin, Listening to Noise and Silence, 117–18.

53 Ibid, 85.

54 Sontag, Styles of Radical Will, 13; Lyn Gardner, “Silence that Speaks Volumes in the Theatre,” The Guardian, 4 June 2010,”

55 Macbeth V.v.2381–2383.

56 “Eminem’s ‘Lose Yourself’ Played for Lawyers, Judge in New Zealand Court,” Newshub, published 2 May, 2017,

57 Parker, Acoustic Jurisprudence, 91.

58 Kurzon, “The Intertextuality of Silence,” 288–90.

59 As documented in the contempt of court judgment, DPP v Johnson [2002] VSC 583 (20 December 2002) [32]–[34], [46].

60 Parker, Acoustic Jurisprudence, 205; Kurzon, “The Intertextuality of Silence,” 291–92; Pratt, “Mind the Gap,” 56.

61 In reality television, there will often be a significant pause before a decision is handed down. In Ru Paul’s Drag Race, hostess-cum-judge Ru Paul commands “Silence!” of her fellow judges at the completion of deliberations and before the drag queens are brought in for judgment. See also Dolar, Mladen, A Voice and Nothing More (Cambridge: MIT Press, 2006), 157.CrossRefGoogle Scholar

62 Gardner, “Silence that Speaks Volumes in the Theatre.”

63 Mandela, Nelson, Long Walk to Freedom: The Autobiography of Nelson Mandela (London: Little, Brown & Co, 1994), 354, quoted in Dawson, Justice as Attunement, 228.Google Scholar

64 Rappaport, “Talk Less,” 289.

65 Mandela, Long Walk to Freedom, 354, quoted in Dawson, Justice as Attunement, 228.

66 Dawson, Justice as Attunement, 228.

67 Malhotra and Rowe, Silence, Feminism, Power, 13.

68 Gardner, “Silence that Speaks Volumes in the Theatre” (emphasis added). See also Pratt, “Mind the Gap,” 57.

69 Pratt, “Mind the Gap,” 11.

70 Sontag, Styles of Radical Will, 11. See “Article 50 ‘Brexit’ Cases,” UK Supreme Court, published 24 January 2017,

71 Pratt, “Mind the Gap,” 78. See also Rappaport, “Talk Less,” 299–300.

72 Sontag, Styles of Radical Will, 20.

73 Dolar, A Voice and Nothing More, 154.

74 For example, radio talk show host Rush Limbaugh complained strongly when pauses were cut from his radio broadcast against his will. See Alex Kuczynski, “Radio Squeezes Empty Air Space for Profit,” The New York Times, 6 January 2000. I am grateful to Christina Spiesel for bringing this to my attention. See also the discussion of radio silence in Voegelin, Listening to Noise and Silence, 114.

75 Pratt, “Mind the Gap,” 70; Mulcahy, “Acting Law | Law Acting,” 194.

76 Pratt, “Mind the Gap,” 57.

77 Quoted in Mulcahy, “Acting Law | Law Acting,” 194. Composers describe silence in a similar way. See Julie Sutton, “The Pause that Follows: Silence, Improvised Music and Music Therapy,” Nordic Journal of Music Therapy 11, no. 1 (2002), 30. See also the discussion of how actors and comedians time and charge their pause in Pratt, “Mind the Gap,” 57–65.

78 Quoted in Mulcahy, “Acting Law | Law Acting,” 194.

79 Pratt, “Mind the Gap,” 12, 29–30.

80 The same sort of idea exists in musical composition. See Ramshaw, Justice as Improvisation.

81 Biber, “How Silent is the Right to Silence?,” 163.

82 Pratt, “Mind the Gap,” 30, 68–70; Mulcahy, “Acting Law | Law Acting,” 194.

83 Jaworski, Silence, 22.

84 Pratt, “Mind the Gap,” 57.

85 Parker, Acoustic Jurisprudence, 205.

86 Ibid; Kurzon, “The Intertextuality of Silence,” 290.

87 Parker, Acoustic Jurisprudence, 183.

88 Cage, John, Silence: Lectures and Writings by John Cage (London: Boyars, 1978), 191.Google Scholar

89 Ibid, 8.

90 Dawson, Justice as Attunement, 28.

91 Stewart, “Atmospheric Attunements,” 451.

92 Brook, Peter, The Empty Space (London: Penguin, 2008).Google Scholar

93 Pratt, “Mind the Gap,” 3.

94 Quoted in Kat Crossley, “Working Hardly: Random Facts about the Gavel,” Survive Law (blog), 12 September 2012. See also Parker, Acoustic Jurisprudence, 133. This can be contrasted to the noisiness of other justice spaces, such as prisons. Indeed, there is “an auditory spatial disjuncture between courtroom and prison space”: McKay, Carolyn, The Pixelated Prisoner: Prison Video Links, Court “Appearance” and the Justice Matrix (Abingdon: Routledge, 2018), 79.CrossRefGoogle Scholar

95 See also Mulcahy, Linda, Legal Architecture: Justice, Due Process and the Place of Law (Abingdon: Routledge, 2011), 2931.Google Scholar

96 McKay, The Pixelated Prisoner, 79–80.

97 Gann, No Such Thing as Silence, 11.

98 Voegelin, Listening to Noise and Silence, 88–89; Schafer, The Soundscape, 257.

99 Voegelin, Listening to Noise and Silence, 101.

100 Dawson, Justice as Attunement, 89.

101 Ibid, 7; Sean Mulcahy, “Can a Literary Approach to Matters of Legal Concern Offer a Fairer Hearing than that Typically Offered by the Law?,” Law and Humanities 8, no. 1 (2014), 111–12.

102 Mulcahy, “Literary Approach to Matters of Legal Concern,” 7.

103 Dawson, Justice as Attunement, 5–7; Voegelin, Listening to Noise and Silence, 110–11.

104 The gavel is discussed further in Parker, “Gavel.”

105 Lipari, Listening, Thinking, Being, ch. 8.

106 White, James, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985), 174. See also Sutton, “The Pause that Follows,” 31.Google Scholar

107 Pratt, “Mind the Gap,” 70; Mulcahy, “Acting Law | Law Acting,” 194.

108 Voegelin, Listening to Noise and Silence, 87.

109 Fischlin and Heble, The Other Side of Nowhere, 11.

110 Crawford, Nathan, Theology as Improvisation: A Study of the Musical Nature of Theological Thinking (Leiden: Brill, 2013), 98.CrossRefGoogle Scholar

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