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Öffentlichkeit and the Law's Behind the Scenes: Theatrical and Dramatic Appearance in European and U.S. American Criminal Law
Published online by Cambridge University Press: 06 March 2019
Abstract
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In the present situation, law's Öffentlichkeit, or its principal “openness to the public,” needs to be distinguished from its being the object of publicity as dominated by modern media. Law's public openness has historically been dependent on, and determined by, two theatrical modes of appearance: The theatrical-proper and the dramatic. Paradoxically, in both cases the jurisdictional “openness to the public” works not only through forms of visibility but also forms of invisibility. These two theatrical modes—and their dynamic play with visibility and invisibility—have been portrayed in works of art that have influenced the way general audiences imagine the law to work. These works also correlate with the different histories and public appearances and openness of the European and the Anglo-American systems of law. Historically speaking, the European system has been more theatrically inclined, in the context of a distinctly imperial trajectory that has been dominated by the desire to stage the law and to follow correct procedure. The Anglo-American one, by contrast, is more dramatically inclined, and has followed a distinctly anti-imperial trajectory—whether anti-royal or anti-state—influenced by the desire to stage trials in which peers determine the dramatic outcome. Although both systems are basically open to the public, they both work via a dynamic of protective invisibility. Yet due to current developments, the elements of invisibility in both systems tend to predominate over the elements of visibility. This suggests that both systems are moving toward a form of legal closure that is averse to the original theatrical and dramatic appearance and openness of law.
- Type
- Law's Visuality, Theatricality, and Affectivity
- Information
- German Law Journal , Volume 18 , Issue 2: Special Issue Law's Pluralities , 01 March 2017 , pp. 399 - 422
- Copyright
- Copyright © 2017 by German Law Journal, Inc.
References
1 M. Malsch & J.F. Nijboer, De zichtbaarheid van het recht 4–7 (2005). The figure of 90% they give is from 2005; the situation has not changed since then.Google Scholar
2 George Fisher, Plea Bargaining's Triumph 163–64 (2003).Google Scholar
3 Malsch & Nijboer, supra note 1.Google Scholar
4 Malsch & Nijboer, supra note 1, at 100–06.Google Scholar
5 In the Dutch context, the issue was addressed by, for instance, Y. Buruma, Invloed van de media op de rechtspraak, Trema 305–12 (1979); M.S. Groenhuijsen, Openbaarheid en publiciteit in strafzaken, 27.5 Delikt & Delikwent 417 (1997).Google Scholar
6 The theatrical nature of the law's appearance through court is evidenced in many scholarly studies. See, e.g., Julie Stone Peters, infra note 8. See also Resnik, Judith & Curtis, Dennis, Representing Justice (2011); the work of law historian Pierre Legendre, La 901e conclusion: Étude sur le théâtre de la Raison, Leçons I (1998); theatre scholar Jody Ender, Murder by Accident (2009); and media theorist Yasco Horsman, Theaters of Justice: Judging, Staging, and Working Through in Arendt, Brecht, and Delbo (2010). Horsman, in turn, based his work on arguments brought forward by Hannah Arendt. On Arendt and law, see Hannah Arendt and the Law (Marco Goldoni and Christopher McCorkindale eds., 2012).Google Scholar
7 Kafka's novel was written under the title Der Process in 1914–1915, and then published by Max Brod as Der Prozess. The most recent version (Historisch-kritische Ausgabe, Stroemfeld Verlag, 1995) uses the original title again. Sidney Lumet, Twelve Angry Men (Orion-Nova Productions 1957).Google Scholar
8 Julie Stone Peters, Theatrocracy Unwired: Legal Performance in the Modern Mediasphere, 26.1 Law & Literature 58 (2014).Google Scholar
9 Id. Google Scholar
10 Id. at 39.Google Scholar
11 R v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, [1923] All ER Rep. 233.Google Scholar
12 The very phrase “new despotism” was not new: It was brought forward by Alexis de Tocqueville in 2 Alexis De Tocqueville, Democracy in America (1840), and in his case, he hinted at the potential that democracy would end up in securing the lives of people against any risk.Google Scholar
13 Peter Goodrich, Specters of Law: Why the History of the Legal Spectacle Has Not Been Written, 3.1 U.C. Irvine L. Rev. 773, 811 (2013).Google Scholar
14 Id. at 779.Google Scholar
15 Id. at 811.Google Scholar
16 Lumet, supra note 7.Google Scholar
17 Still: Victoria Brathwaite, Orson Welles: “The Trial”, The Museum of Film History, https://eng3122.wordpress.com/group-5-main/1960-to-1965/thetrial/.Google Scholar
18 Still: Great Movie Moments: ‘12 Angry Men’ – Turn Your Back, PopOptiq, http://www.popoptiq.com/great-movie-moments-12-angry-men-turn-your-back/.Google Scholar
19 Damakaska, Mirjan R., The faces of justice and state authority (1986) was a landmark study, which was as favorable to the American System as was John Langbein to the European, or German one: John Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 823–28 (1985). I was also inspired by Hein Kötz, Civil Justice Systems in Europe and the United States, 13 Duke J. Comp. & Int'l L. 61 (2003).Google Scholar
20 Horowitz, Donald L., Foreword: Compared to What?, 13 Duke J. Comp. & Int'l L. 1, 2 (2003), http://scholarship.law.duke.edu/djcil/vol13/iss3/2. The distinction in play was central to Damaska, The faces of justice and state authority (1986). Damaska described the continental and Anglo-Saxon or American model as an opposition between an adversarial vs. inquisitorial system with two different ideals of officialdom—the coordinate one and hierarchical one—that had procedural implications: Concentration on proceedings vs. methodical succession. The two systems were characterized, moreover, by different objectives of the legal process in their relation to a reactive state vs. activist state that in turn used legal processes to resolve conflicts or to enforce state policy—in the sense of policy-implementing.Google Scholar
21 See Brecht's notes to his opera Aufstieg und Fall der Stadt Mahagonny from 1927, published as an essay later; see Brecht, Bertolt, Brecht on theatre (1964).Google Scholar
22 See Benjamin, Walter, What is Epic Theatre?, in Understanding Brecht 1 (Stanley Mitchell ed. & Anna Bostock trans., 2003).Google Scholar
23 Yasco Horsman, Theaters of Justice 15–45 (2010) (focusing on Arendt's dealing with the Eichmann case).Google Scholar
24 It is possible that Welles explicitly wanted to pun on the issue of fascist showtrials. See Anne-Marie Scholz, “Josef K von 1963…”: Orson Welles' ‘Americanized’ Version of The Trial and the changing functions of the Kafkaesque in Postwar West Germany, 4.1 Eur. J. Am. Stud. (2009), http://ejas.revues.org/7610.Google Scholar
25 On conceptual untranslatability, see Dictionary of Untranslatables: A Philosophical Lexicon (Barbara Cassin ed., Emily Apter, Jacques Lezra & Michael Wood trans. and eds., 2015).Google Scholar
26 On this, see Brundage, James, Medieval Canon Law 120–53 (2013).Google Scholar
27 Pierre LEGENDRE, Dominium Mundi: L'EMPRIRE du Management 79 (2007); Pierre LEGENDRE, Le Balafre: Discours a de jeunes etudiants sur la science et l'ignorance 69–82 (2007); Pierre Legendre, Argumenta & Dogmatica: Le Fiduciaire suivi de Le silence des mots (2012).Google Scholar
28 Legendre studied the issue from his earliest work onwards in Pierre Legendre, La penetration du droit romain dans le droit canonique classique (1964).Google Scholar
29 There is abundant literature on Justinian's codification. See, e.g., Johnston, David, Roman Law in Context, 2012; Peter Stein, Roman Law in European History (2003); Caroline Humfress, Law and Legal Practice in the Age of Justinian, in the Cambridge Companion to the Age of Justinian 161–84 (Michael Maas ed., 2005).Google Scholar
30 Digestorum, seu Pandectarum libri quinquaginta, Lugduni apud Gulielmu[m] Rouillium (1581). Biblioteca Comunale “Renato Fucini” di Empoli.Google Scholar
31 William Turpin, Formula, Cognitio And Proceedings Extra Ordinem, 46.3 Revue Internationale Des Droits De L'antiquite 499, 499 (1999), http://local.droit.ulg.ac.be/sa/rida/file/1999/TURPIN.pdf.Google Scholar
32 Walter Benjamin, Franz Kafka: On the Tenth Anniversary of his Death, in Illuminations 111, 124 (Hannah Arendt ed., 1981).Google Scholar
33 Franz Kafka, The Trial 60 (David Wyllie trans., 2003).Google Scholar
34 Stone Peters, supra note 8, at 58.Google Scholar
35 Kafka, supra note 33, at 134.Google Scholar
36 Jacques de Ville, On Law's Origin - Derrida reading Freud, Kafka and Lévi-Strauss, 7.2 Utrecht L. Rev. 11, 87 (2011), https://www.utrechtlawreview.org/articles/abstract/10.18352/ulr.163/. The quote is taken from Jacques Derrida, Before the Law, in Acts of Literature 181, 191 & 194, (Derek Attridge ed., 1992).Google Scholar
37 Derrida, supra note 36, at 212.Google Scholar
38 Dictionary of Untranslatables, supra note 25.Google Scholar
39 Emily Apter, Against World Literature (2013).Google Scholar
40 The Faculty of Law, University of Oxford, The Digest (March 2016), https://www.law.ox.ac.uk/legal-research-and-mooting-skills-programme/digest.Google Scholar
41 Langbein, John H., The German Advantage in Civil Procedure, Yale Law School Legal Scholarship Repository 823, 824 (1985), http://digitalcommons.law.yale.edu/fss_papers/536/.Google Scholar
42 Theodore F. T. Plucknett, A Concise History of the Common Law 13 64 (1956), http://oll.libertyfund.org/titles/2458; see also the common law lemma in The Oxford Companion to British History, 223–24 (John Cannon & Robert Crowford eds., 2015). Google Scholar
43 Lysander Spooner, An Essay on Trial by Jury (1852), giving his version of Article 39 of the Magna Charta, that in the most recent translation reads: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” English Translation of Magna Carta, British Library (Mar. 2016), http://www.bl.uk/magnacarta/articles/magnacarta-english-translation.Google Scholar
44 Avital Ronell, The Test Drive 9 (2005).Google Scholar
45 Dialogue on the American Jury: We the people in action, American Bar Association (2016), http://www.americanbar.org/content/dam/aba/administrative/public_education/resources/dialoguepart1.authcheckdam.pdf.Google Scholar
46 Always right, The Economist (Feb. 20, 2016), http://www.economist.com/news/obituary/21693161-originalist-chief-devout-and-colourful-end-was-79-obituary-antonin-scalia.Google Scholar
47 Rosa Raffaelli, Dissenting Opinions In The Supreme Courts Of The Member States, European Parliament 6 (Feb. 2016), http://www.europarl.europa.eu/document/activities/cont/201304/20130423ATT64963/20130423ATT64963EN.pdf.Google Scholar
48 This concerns the situation of 2012; Croatia became a member in 2013.Google Scholar
49 Raffaelli, supra note 47, at 29.Google Scholar
50 Id. at 39.Google Scholar
51 See Baer chapter in this volume.Google Scholar
52 The Economist, supra note 46.Google Scholar
53 W. O. Douglas, The Dissent: A Safeguard of Democracy, 32 J. Am. Judicature Soc'y 104 (1948).Google Scholar
54 To my knowledge, there is no research on this. There should be. As long as it is not there, this is my hunch, which is informed by the fact that for some time I asked friends, colleagues, and people I met on the street whether they could name the Dutch Justice on the European Court of Justice. They could not.Google Scholar
55 The original can be found at: https://www.denederlandsegrondwet.nl/9353000/1/j9vvihlf299q0sr/vi7ilzdchurk (last visited Mar. 1, 2017). The first article states: “Het Koninkrijk der Nederlanden omvat het grondgebied van Nederland, Nederlandsch-Indië, Suriname en Curaçao.”Google Scholar
56 On this see H.W. van den Doel, Het rijk van Insulinde: Opkomst en ondergang bvan een Nederlandse Kolonie (1996).Google Scholar
57 Gibson, James L. & Caldeira, Gregory A., Changes in the Legitimacy of the European Court of Justice, 1 Brit. J. Pol. Sci. 63 (1998); see also Hinajeros, Alicia, Social Legitimacy and the Court of Justice of the EU, 14 Cambridge Y.B. Eur. Legal Stud. 615 (2012). The Court of Justice of the European Union is based in Luxembourg, Luxembourg, by the way.Google Scholar
58 Fisher, supra note 2.Google Scholar
59 Stone Peters, supra note 8, at 43.Google Scholar
60 Stone Peters, supra note 8, at 43.Google Scholar
61 Stone Peters, supra note 8, at 42.Google Scholar
62 Stone Peters, supra note 8, at 48 & 49; Peter Goodrich, The Visial Line, 14.4 Parallax 53 (2008).Google Scholar
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