Published online by Cambridge University Press: 10 October 2019
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.
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44 Ibid, 203.
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53 Ibid, 85.
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59 As documented in the contempt of court judgment, DPP v Johnson  VSC 583 (20 December 2002) –, .
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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
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70 Sontag, Styles of Radical Will, 11. See “Article 50 ‘Brexit’ Cases,” UK Supreme Court, published 24 January 2017, https://www.youtube.com/watch?v=Q6YcixV_0Sc&feature=youtu.be&t=108”
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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.
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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
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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
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109 Fischlin and Heble, The Other Side of Nowhere, 11.