LITMIR.BIZ

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them with an ethos and a legitimacy that they swore to lend only to clients they believed innocent. The reformers’ calls for the order’s abolition, in the belief that all men should be free to plead, coupled with their invention of a universal right to counsel, turned lawyers into representatives—men chosen for their eloquence, and with a duty to defend any party, even the patently guilty. This shift from a model locating truth in the lawyer’s identity to one locating it in his speech elicited deep anxieties. Many feared that it would forever transform lawyers—not into liars (who still care about the truth, if only to hide it and claim they speak it), but worse, into actors (whose sole concern is persuasion, not truth, since everyone understands that they neither endorse their characters’ words as truthful nor accept responsibility for them). What could then prevent ambitious youths from seeking unjust cases and employing histrionics and hyperbole for the sake of celebrity (as many believed was already happening)? What if a trial’s verdict came to hinge more on the oratorical prowess and boldness of two lawyer-actors than on the merits of the case? Chapter 3 studies these anxieties, as well as the various attempts at appeasing them, extending to the very recent controversy on the way that French attorneys advertise their services.

      The Jacobins also showed a surprising unease with the mode of judgment introduced by the Revolution. Especially striking is the number of deputies who demanded that the king respond in writing to a long list of accusations, and that he either only appear before his judges after they had read his answers or that he never appear at all.³¹ Some deputies objected that both options meant the king’s judges would assess his guilt before seeing and hearing him speak,³² but this was almost certainly the point, considering the Jacobins’ repeated warnings that a live debate would only yield confusion, hesitation, and misplaced compassion.³³ Such warnings, reminiscent of those by reactionaries before the Revolution, reveal the strength and persistence of the fears that greeted the shift toward a more theatrical mode of judgment in criminal cases. As I argue in Chapter 4, pre-Revolutionary judges most resembled authors, composing a single narrative in private through the careful analysis of written words. The legitimacy of their judgments rested upon this textual process and exclusive authorship: magistrates were a titled elite, (supposedly) handpicked by the king to serve as vessels for his divine justice, a mission they fulfilled by obeying hermeneutic rules from above, rather than subjective emotions from within. By contrast, the liberal conception of trials as a live, adversarial performance assigned a different role to judges, closer to that of dramatic spectators. Instead of anointed authors extracting an objective truth from snippets of text, judges would now be ordinary men who watched two preexisting, fictionalized narratives and picked the most credible through an instinctual, emotional response. This new mode of judgment led to widespread fears, even among reformers, that abandoning the notion of objective truth and the validation of exclusive titles and rules would leave judges vulnerable to accusations of arbitrariness, inconsistency, and credulous sentimentality. Other critics drew on Plato’s famous denunciation of “theatrocracy” to warn that the conceit that all possess the right and the ability to judge, born in the theater and now making its way into the courtroom, would soon spread to the whole of society, delegitimizing judgment itself and ending in anarchy. These fears, I contend at the end of Chapter 4, inspired some lasting compromises, from the imposition of new limits on the timing and nature of judging, leading to what I have dubbed “modern delayed judgment,” to the unique fusion of roles—at once author, actor, and spectator—that characterizes French magistrates today.

      Belying their reputation as directors of show trials and apostles of transparency, Jacobin deputies also expressed anxiety at the sizeable audience watching the king’s trial. They worried, of course, about being jeered. What if naïve spectators succumbed to the royalist claqueurs in the courtroom, or to the attempts outside it to paint the king as the victim in a sentimental drama?³⁴ More surprisingly, the Jacobins also criticized signs of approval, such as applause, for fear they would make it seem as if the trial was not an impartial act of justice but a partisan conflict that could be influenced by vocal factions in the crowd.³⁵ Better, they concluded, that the spectators be few in number, or entirely silent, or even absent, in keeping with Robespierre’s order to “flee the spectacle of our debates.”³⁶ In reaching these conclusions, the Jacobins were tapping into a preexisting undercurrent of antitheatrical anxiety, as they had when discussing lawyers and judges. Indeed, as I show in Chapter 5, even committed reformers worried that making criminal proceedings public would trigger a lawsuit culture. Was it not likely, after all, that public trials would come to supplant theatrical productions, luring spectators through sensationalism and sentimentalism and perverting justice by turning the litigants into caricatural monsters and martyrs? Would the frequent viewing of trials inspire some spectators to seek the spotlight for themselves by initiating needless proceedings? Might it not even increase crime, as spectators discovered rare transgressions or, inversely, the pervasiveness and thus normality of certain offenses? In response to these fears, there appeared in countless texts the same idyllic portrayal of primeval justice, in which a beloved patriarch settles disputes amicably, without spectators, procedures, judges, or lawyers. The simplicity and legitimacy of a trial based on biological ties, shared moral values, and the faithful, unrehearsed reenactment of the original conflict moved thinkers such as Montesquieu, Rétif, and Sylvain Maréchal to call for the revival of “domestic tribunals,” the term they used to refer to a system in which fathers possess the right to try and convict their children in their own homes, in lieu of a public trial. As the popularity of this private conception of justice illustrates (various forms of “domestic tribunals” would in fact be instituted during the Revolution), the Jacobin deputies were far from the first to harbor mixed feelings about the publicity of liberal justice. Rather, they drew on half a century of cultural ambivalence, a forgotten history that, from the start, simultaneously recognized the benefits of a more dramatic justice and feared its impact on spectators and society.

      The Revolution’s Performance of Justice

      In short, Chapters 3, 4, and 5 study the fears elicited by the rise of a more theatrical vision of justice as they crystalized around, challenged, and transformed three central characters in legal proceedings: lawyers, judges, and spectators. Chapter 6 focuses on the attempt in the early years of the Revolution to devise a performance of justice that would implement long-desired liberal reforms while shielding its participants from the harmful consequences of theatricality detailed in the preceding chapters. With the National Assembly hesitant to tackle too soon the complex and contentious establishment of an accusatorial justice system, it was on the dramatic stage that this new performance of justice initially made itself most visible. Dust had barely settled on the ruins of the Bastille when the theater was inundated with judicial plays. Some, labeled “aristophanic” in the press, reenacted the secret transgressions and ambitions of living public figures. Others, part of a popular genre I have dubbed “courtroom dramas,” consisted of meticulous reenactments of recent or ongoing trials. Such plays served the usual functions of judicial theater—exposing and deterring crime, training spectators to become involved citizens and jurors, redressing miscarriages of justice, and enabling catharsis and reconciliation—but they also took on an additional role as “trial runs” for potential new performances of justice. By experimenting with the diverse ways proceedings could unfold—who spoke, when, for how long, as a series of monologues or as fragmented, heated disputes?—they set the stage for a series of little-known debates in the National Assembly on the proper “dramaturgy” of trials. Moved by the example of these judicial reenactments and by antitheatrical anxiety, the deputies proved reluctant to see proceedings (as most liberal reformers had) as a competition between two narratives studiously rehearsed and performed by litigants and their representatives. Instead, they championed lively, unstructured trials, more likely to reproduce the passion and spontaneity of the initial conflict.

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