Dramatic Justice: Trial by Theater in the Age of the French Revolution

By Yann Robert

For most of the seventeenth and eighteenth centuries, classical dogma and royal censorship worked together to prevent French plays from commenting on, or even worse, reenacting current political and judicial affairs. Criminal trials, meanwhile, were designed to be as untheatrical as possible, excluding from the courtroom live debates, trained orators, and spectators. According to Yann Robert, circumstances changed between 1750 and 1800 as parallel evolutions in theater and justice brought them closer together, causing lasting transformations in both.

Robert contends that the gradual merging of theatrical and legal modes in eighteenth-century France has been largely overlooked because it challenges two widely accepted narratives: first, that French theater drifted toward entertainment and illusionism during this period and, second, that the French justice system abandoned any performative foundation it previously had in favor of a textual one. In Dramatic Justice, he demonstrates that the inverse of each was true. Robert traces the rise of a "judicial theater" in which plays denounced criminals by name, even forcing them, in some cases, to perform their transgressions anew before a jeering public. Likewise, he shows how legal reformers intentionally modeled trial proceedings on dramatic representations and went so far as to recommend that judges mimic the sentimental judgment of spectators and that lawyers seek private lessons from actors. This conflation of theatrical and legal performances provoked debates and anxieties in the eighteenth century that, according to Robert, continue to resonate with present concerns over lawsuit culture and judicial entertainment.

Dramatic Justice offers an alternate history of French theater and judicial practice, one that advances new explanations for several pivotal moments in the French Revolution, including the trial of Louis XVI and the Terror, by showing the extent to which they were shaped by the period's conflicted relationship to theatrical justice.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Sep 17, 2018
• ISBN: 9780812295658

Book preview

Dramatic Justice

Dramatic Justice

Trial by Theater in the Age of the French Revolution

Yann Robert

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2019 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America on acid-free paper

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Library of Congress Cataloging-in-Publication Data

Names: Robert, Yann, author.

Title: Dramatic justice: trial by theater in the age of the French Revolution / Yann Robert.

Description: 1st edition. | Philadelphia: University of Pennsylvania Press, [2019] | Includes bibliographical references and index.

Identifiers: LCCN 2018018632 | ISBN 9780812250756 (hardcopy: alk. paper)

Subjects: LCSH: Theater—Political aspects—France—History—18th century. | Justice, Administration of—France—History—18th century. | France—History—Revolution, 1789–1799.

Classification: LCC PN2633.R63 2019 | DDC 792.094409033—dc23

LC record available at https://lccn.loc.gov/2018018632

For Lori, Claire, and Nicolas, with love

Contents

Introduction

PART I. THEATER AS JUSTICE

Chapter 1. Fixing the Law: Reenactment in Diderot’s Fils naturel

Chapter 2. The Many Faces of Aristophanes: The Rise of a Judicial Theater

PART II. JUSTICE AS THEATER

Chapter 3. Players at the Bar: The Birth of the Modern Lawyer

Chapter 4. Judges, Spectators, and Theatrocracy

Chapter 5. From Parterre to Pater: Dreaming of Domestic Tribunals

PART III. THE REVOLUTION’S PERFORMANCE OF JUSTICE

Chapter 6. Performing Justice in the Early Years of the Revolution

Chapter 7. The Curtain Falls on Judicial Theater and Theatrical Justice

Notes

Bibliography

Index

Acknowledgments

Introduction

The year is 1793, and the king stands on trial. Gathered by the hundreds in a profoundly theatrical space—the salle du manège, formerly used for equestrian shows—spectators feasting on oranges and liqueurs observe the judges below, loudly jeering, applauding, and debating their every word. But what are they really watching? Are the men below actually judges? For months now, the deputies of the National Convention have tried, many reluctantly, to perform this role, to act as judges, despite lacking the training or credentials for it. They cannot even claim to be impartial: most have already publicly affirmed Louis XVI’s guilt, giving the trial a seemingly scripted denouement (only the punishment remains unknown). Spectators, actors, and a script—it is easy to see why the proceedings against the king have traditionally been portrayed as a show trial, an early example of the political parodies of justice that the Jacobins would stage during the Terror to eliminate rival factions.

And yet … if the purpose of a show trial is to publicize the guilt of an accused, why, then, did the Jacobins fight so hard to have no trial at all, just a summary execution? Why did they repeatedly claim that the king had been found guilty during the 10 August insurrection—that he was, in fact, already dead—and that any trial would therefore amount to mere theater, an artificial repetition of the king’s condemnation at the hands of the people? Once the trial of the century had nevertheless begun, why did they interrupt it to forbid the performance of a play, L’Ami des lois, that made it possible for a broader audience to participate in the king’s judgment by reenacting key aspects of the case against him? It is true that L’Ami des lois and at least three other plays like it sided with the king, but if this was the sole reason behind the Jacobins’ anger, why did they extend their refusal to dramatize the king’s trial to performances aligned with their views, as when they rejected several proposals to commemorate the anniversary of the king’s beheading with theatrical reenactments of his trial and execution? Lastly and, perhaps, most tellingly, why was it the Jacobins, not the Girondins, who most frequently accused their enemies of practicing a theatrical mode of justice?

These questions, to which I return in Chapter 7, reveal the need to rethink the standard narratives on the evolution of both theater and justice in eighteenth-century France. As we will see, the first narrative holds that theater, under the influence of bourgeois drama, began to drift toward pure entertainment and illusionism in the decades preceding the Revolution—further and further away, therefore, from any direct, judicial involvement in current affairs. The second narrative, a mirror image of the first, maintains that the justice system moved away from theatricality, as it shifted from an iconic, visual foundation (royal displays) to a rational, textual one (codes of law). The plays and trials of the Revolution hardly fit these two narratives, however. For that reason, they are typically discounted as a historical blip, an anomaly caused by the Jacobins’ penchant for injecting politics everywhere, which blurred the line between theater and justice by turning the former into propaganda and the latter into show trials like the king’s. Yet if, as their reaction to the king’s trial and to its theatrical reenactments suggests, the Jacobins opposed the profound intertwining of justice and theater during the Revolution, where did it actually come from?

This book provides an answer, one that turns upside down the standard histories both of French theater and of French justice. Its first section (Theater as Justice) uncovers, starting in the 1750s, numerous plans and attempts, including successful ones, to transform the theater into an instrument of justice, exposing criminals by name, recreating transgressions on stage, and reenacting contemporary trials. The next section (Justice as Theater) reveals that many of the illustrious eighteenth-century figures who campaigned to reform the justice system explicitly modeled trials on the theater, even recommending that judges imitate the emotional, instinctual judgments of dramatic spectators and that lawyers seek private lessons from actors. The last section (The Revolution’s Performance of Justice) studies the realization of these parallel projects in the early years of the Revolution and the ensuing backlash as the Jacobins grew concerned that this new performance of justice placed greater emphasis on performance than it did on justice. This alternative history of justice and theater in France explains why the Jacobins attempted to limit the theatricality of the king’s trial and not, as is commonly believed, to turn it into a show trial. They understood Louis XVI’s trial as I do, not as a historical blip, but as its opposite: a culmination. In this account, the king’s trial does not mark a beginning (the start of a momentary, aberrant mixing of justice and theater) but a peak, at once the apex of a fifty-year evolution that saw the theater grow ever-more judicial and justice ever-more theatrical and the start of its decline.

It is this half century of unparalleled experimentation, a time when thinkers set out to reinvent the very nature of a dramatic performance, of justice, and of the performance of justice, that this book seeks to revive, not only for what it can teach us about the past by challenging accepted narratives on French theater, law, and the Revolution, but also for the light it shines on contemporary issues and anxieties. To list only a few: this book traces the rise of such modern-day fears as celebrity lawyers, willing, like actors, to parrot any claim; illegitimate judges, easily misled, like dramatic spectators, by their vanity and sentimentality; a lawsuit culture, giving rise to never-ending trials; and a sensationalist mass media that transforms justice into gossip, entertainment, and revenge. These fears developed, in France, from the growing (con)fusion between theater and justice in the eighteenth century, giving rise to debates and innovations that survive to this day, on the stage as in the courtroom.

Theater as Justice

Few plays capture the intricate ties between Revolutionary drama and justice as fully as L’Ami des lois. Besides having interrupted the king’s trial, it illustrates several key strands of judicial theater—a neologism I use to refer to public spectacles that reenact contemporary events on stage so as to expose, judge, and punish a transgression. Through its overt, virulent denunciation of living public figures (Maximilien Robespierre and Jean-Paul Marat) and their secret crimes, L’Ami des lois transforms the theater into a tribunal, and the audience into a jury. Itself, therefore, a kind of trial, it further functions as the trial of a trial, reproducing key aspects of the proceedings against the king in an attempt to influence the verdict. Such a play would have been unthinkable only fifty years earlier. As unremarkable as it may seem today, the idea that the theater could be used to recreate current affairs on stage constitutes a significant (and yet understudied) turning point in the history of French drama. For most of the seventeenth and eighteenth centuries, indeed, classical dogma and royal censorship worked together to ensure that official theaters would only stage historically distant, geographically remote, or entirely fictitious stories.¹ The abbé d’Aubignac, for instance, urged playwrights to maintain a clear divide between the world on stage and the one outside the auditorium by seeking their plots in times or countries with which the spectators had nothing in common.² Of course, seventeenth-century dramatic practice occasionally strayed from the wishes of early modern theorists and censors,³ but all agreed on the importance of refraining from explicit depictions of the here and now, to such an extent, in fact, that many saw French classical theater as a continuation and highpoint of the evolution, begun in ancient Greece, from satirical plays denouncing actual events and individuals by name (Old Comedy) to more general and, as a result, fruitfully edifying critiques of abstract moral flaws (New Comedy).⁴

Starting in the 1750s, however, many reformers expressed an unprecedented desire for performances that would reproduce, with documentary-like precision, contemporary events and figures. At the heart of this evolution lies Denis Diderot’s Fils naturel.⁵ In Chapter 1, I engage in a close reading of this grippingly complex work, not only because it constitutes the earliest and most insightful exploration of reenactment, a theory central to my claims in this book, but also because, in typically Diderotian fashion, it ceaselessly challenges its own theory, thereby establishing a broad set of questions to which later, more historical chapters constantly return. Through the story of a patriarch who reaches for immortality by forcing his family to reenact a past event with flawless accuracy, Diderot sets out to discover what remains when one strips or tries to strip all theatricality from the theater. He attempts to imagine the conditions that would allow, and the consequences that would follow, a performance in which actors do not act (they are the characters), authors do not author (they strictly record), and beholders do not behold (they join or judge an event they deem real). Diderot even foresees the judicial implications of this new theory of reenactment, achieving the impressive feat of highlighting in a single work the diverse forms that judicial theater could—and would—take. In its initial form, a ruler (here, the patriarch) orders the reenactment of a transgression (an incestuous attraction) so as to condemn it again publicly, thereby deterring its repetition and enshrining his law in the souls of participants and spectators alike. The patriarch’s death, however, by revealing the inherent mutability of the scenic arts, heralds a different kind of judicial theater, a fluid, egalitarian performance enabling a community to come together, relive and review a recent transgression, and achieve through its verdict a cathartic resolution, a reconciliation, or even a revision of the law. Le Fils naturel thus juxtaposes two competing notions of both theater and justice—fixed and autocratic vs. mutable and collective—thereby identifying the two poles that would shape all subsequent forms of judicial theater.

Ironically, Diderot would become one of the earliest victims of this new judicial vision of the theater when he was explicitly denounced as a criminal in Charles Palissot’s infamous satire, Les Philosophes.⁶ In fact, Palissot even cited Diderot’s theories to defend a play that friends and foes alike instantly perceived as inaugurating a new kind of theater—one that would elicit ample discussion and imitation, as I show in Chapter 2. To grasp the implications of using theater as a space for legal accusations, eighteenth-century writers turned to the nearest equivalent known to them: the Old Comedy of ancient Greece. The once despised Aristophanes became the lens through which thinkers expressed excitement as well as unease at the evolution of theater into a popular tribunal. Some, such as Palissot, pointed to one side of Aristophanes (his authorship of The Clouds) and portrayed judicial theater as an official instrument of state discipline, targeting the people’s hidden vices. Countering with a different Aristophanes (the intrepid author of The Knights), others presented judicial theater instead as a means of transparency, which would expose the crimes of the ruling class and enable ordinary people to pass judgment on contemporary affairs, figures, and trials—an increasingly common practice in eighteenth-century France, which actors encouraged by inviting famous litigants and lawyers as guests of honor to their performances. Yet another group, led by Jean-Jacques Rousseau, summoned a third Aristophanes (Socrates’s killer) as proof that judicial theater inevitably results in slanderous accusations, trial by media, and the replacement of the rule of law by the rule of actors. These fears would haunt partisans of the new genre throughout the second half of the eighteenth century, leading many to conclude that the risk derived from the theater, not the judicial, in judicial theater. In the hope of curbing such dangerous theatricality and, with it, the threat of fictitious accusations with little oversight and accountability, they sought to bring their judicial spectacles ever closer to the perfect reenactment—sans actor, author, and beholder—invented by Diderot. For instance, in a plan at once fantastical and entirely typical of the period, Nicolas-Edme Rétif de la Bretonne called for the monarchy to establish thousands of committees of elders, tasked with spying on their neighbors and forcing the guilty ones to reenact their own offenses, as their friends and family watched and jeered.⁷

Uniting these disparate visions of judicial theater is the conviction that theater should not simply seek to entertain, or even to impart abstract moral lessons, but should instead aim for a direct involvement in, and impact on, the real world. Such engagement may come as a surprise, challenging as it does the standard history of the theater. This dominant narrative is perfectly illustrated in a diagram by Richard Schechner (depicting the history of British theater, but the French tradition follows the same trajectory, according to Schechner).

Figure 1. Diagram by Richard Schechner depicting the history of Western theater. Source: Richard Schechner, Performance Theory (London: Routledge, 2003), 133.

This braid illustrates Schechner’s seminal insight that instead of labeling performances as ritual or theater, one should see them as lying on a continuum between the two. To determine where a performance will fall, Schechner identifies a series of attributes, splitting them along two poles: entertainment and efficacy. These attributes include the performance’s objectives (fun or results), performers (acting or incarnating), spectators (critical outlook or direct participation), and authors (individual or collective creation).⁸ Although all performances combine attributes from both poles, if most belong on the left (the entertainment pole), the performance lies on the theatrical end of the spectrum. If, as is the case with judicial reenactments, they mostly fall on the side of efficacy, the performance more closely resembles a ritual.

Looking at Schechner’s braid, one would therefore anticipate finding judicial theater in the Middle Ages, and indeed, medieval spectacles included reenactments of trials and crimes, as well as overt denunciations of living figures.⁹ Inversely, one would least expect judicial theater in the eighteenth century, which has the highest score on the entertainment scale while hitting near bottom in efficacy. In fact, Schechner considers the eighteenth century and its development of bourgeois theater to be the chief culprit in the disappearance of the dominant efficacious mode of medieval performance.¹⁰ This view is widely reflected in modern scholarship on eighteenth-century drama. In most histories of French theater, Diderot and the eighteenth century are credited primarily as the inventors of bourgeois drama and as precursors to the more realist, illusionist fare of the nineteenth century.¹¹ Tellingly, these are precisely the two theatrical traditions most often condemned as mere entertainment¹²—not without cause, as their formal innovations further solidified the division between the world on stage and the one off it. Indeed, scholars from Michael Fried to Paul Friedland (a chronological spread, not an alphabetical one!) have shown that the eighteenth century devised a conceptual framework that would later enable the creation of a structural divide between theater and reality.¹³ Architectural and lighting reforms, new theories of realism and illusion, and Diderot’s invention of the fourth wall promoted a new conception of the world on stage as distinct from the spectators’, self-enclosed and complete, to be consumed silently rather than engaged directly. Friedland, in particular, presents this vision of the theater as evidence of a broader movement away from an older, ritualistic understanding of performance as embodiment: that is, as a presentation (not a representation) with the power to transform its participants and spectators.

Part of what makes judicial theater so fascinating, then, is that it turns on its head the standard account of eighteenth-century theatrical history as a progression away from ritual and toward pure entertainment. Naturally, some studies already offer a more nuanced picture of eighteenth-century theater. Scholars working on Diderot and Louis-Sébastien Mercier have not failed to notice the two playwrights’ desire to use the theater to denounce and redress the social wrongs of their day.¹⁴ Yet the passages they study concern broad social wrongs, not individual ones. As a result, they overlook the far more radical promotion of a theater that would go beyond general moral or social lessons to intervene directly in specific injustices, reenacting them and opening them up to popular judgment. Inversely, scholars have occasionally noted the period’s interest in staging current events, but never as the primary subject of their research, and never in terms of the judicial function so often assigned to it. For instance, studies on society theater have revealed that the private troupes sometimes reenacted events from the performers’ lives.¹⁵ We also know that fairground theaters included vaudevilles, a term that in eighteenth-century France referred to brief songs with themes taken from current events.¹⁶ Even official theaters did not always respect the classical stance against the representation of figures and events from France’s past, with historical drama gaining in popularity as early as the 1730s.¹⁷ It should be noted, however, that these plays resurrected distant events, and as such differed from the reenactments I study, which entertain the paradoxical aim of reviving something not yet dead—an ongoing event, or a past recent enough to still be experienced as the present.¹⁸ Moreover, the examples above lack a clearly denunciatory function; they do not seek to put on trial and thereby transform the events and figures they reproduce.¹⁹ Yet it is the combination of these two visions of the stage—as an instrument of justice and as a reenactment of current affairs—that for many eighteenth-century thinkers gave judicial theater its most appealing quality: the ability to produce concrete and immediate results. Despite its popularity, the very notion of judicial theater has been obscured by the longstanding account of eighteenth-century theatrical history as one of deritualization, and by the attendant emphasis on bourgeois drama and realist reforms. Bringing this unique conception of performance to light encourages us to refine our vision not just of eighteenth-century drama but of theater itself, by challenging divisions we sometimes take for granted: actor and character, stage and auditorium, representation and reality, and theater and ritual.

Justice as Theater

This book also inverts the standard narrative on the evolution of justice in France. Sarah Maza provides perhaps the best synopsis of this narrative when she argues that the legal system shifted from a realm of display, of the visual, the iconic to the domain of the word, of textuality, of rationality.²⁰ Drawing from Michel Foucault, Jürgen Habermas, Joan Landes, and Marie-Hélène Huet—a list that leaves little doubt as to the narrative’s pedigree and influence—Maza contends that early modern justice rested on a traditional order of figuration centered on the spectacular display of the king’s body and authority, but that this order progressively gave way to a competing semiotic system, in which power resided in the written word of the law.²¹ In short, according to most modern scholars, justice was moving away from the theatrical and toward the textual.

However, as Katherine Taylor observes in the introduction to her study of nineteenth-century courtroom architecture, this narrative fits the evolution of justice as an abstract concept (a written code having replaced the king as the basis of justice), yet it is utterly inaccurate with respect to its actual practice.²² Trial proceedings, in fact, evolved in the opposite direction: not from theatrical to textual, but from textual to theatrical. Indeed, under the ancien régime, criminal proceedings were explicitly designed to be the least theatrical possible. They allowed neither spectators nor representation (i.e., lawyers acting for the litigants), thereby obviating two of the more obvious parallels between justice and theater. Nor was there, in any case, much of a spectacle to behold, given the proceedings never assembled the participants in one place and time for a climactic confrontation (the kind of performance we associate today with a trial). Instead, criminal cases followed what is known as the inquisitorial model, meaning they unfolded as a series of private interrogations conducted by deeply involved and powerful judges.²³ An examining magistrate questioned the litigants and witnesses separately and compiled a dossier containing transcripts of the interrogations, forensic reports, and trial briefs. The dossier was then sent over to the judges, who reached a decision by applying fixed rules and mathematical formulas to the enclosed documents. Each text was assigned a numerical value, and these fractions of proof were added together to compose a verdict. What could have inspired such a convoluted system, which limited judgment to a primarily textual and mechanical exercise by denying judges the opportunity to see and hear vital interrogations directly? Looming behind these restrictions was the specter of theatricality: magistrates had to be prevented from judging in the manner of dramatic spectators through an emotional reaction to watching live disputes. Representation and spectators, physicality and orality, agonistic debates and emotional appeals—in short, all the characteristics of a performance—were thus deliberately excluded from trial proceedings.²⁴

To be sure, even in the face of such precautions, some theatricality still crept into ancien régime justice. Civil trials and hearings at the Paris Parlement (in its role as a court of appeals) were not formally closed to the public and to lawyers in the way that criminal proceedings were, and certain cases drew considerable crowds and interest in the press. In such circumstances, lawyers sometimes borrowed narrative strategies from literary texts to make their pleas more dramatic, knowing this would make them the talk of the town. While criminal proceedings offered no such opportunity, lawyers could still seek to sway the judges and enhance their reputations by writing gripping accounts of the case, whether as pleas for a royal pardon or as trial briefs—documents that became remarkably popular and melodramatic in the eighteenth century.²⁵ As we will see, however, the judicial establishment, notably the Order of Barristers, vigorously opposed such practices. It is in fact telling that in criminal cases—even though, or rather because, they typically involved the most dramatic stories—what little theatricality existed was channeled through writing. While we may describe the narrative strategies in some trial briefs as dramatic, this did not make the trial or the briefs themselves theater, in the absence of spectators, actors, and oral delivery. Not until the 1750s and the Revolution (first in theory, then in practice) would live performance become the operating principle and foundation of justice.

Indeed, starting in the middle of the eighteenth century, reformers campaigned for the introduction of spectators, lawyers, and adversarial proceedings. In lieu of the inquisitorial model, they recommended adopting the accusatorial model characteristic, then as now, of Anglo-Saxon justice. In this model, a trial consists of a public clash between two rehearsed narratives. To ensure fairness, both parties are given the same advantages—speaking time, witnesses, knowledge of the case, and access to gifted orators (lawyers)—so that each may prepare the most persuasive narrative possible. These narratives are then delivered in a set form and sequence amounting to a veritable dramaturgy (testimony, direct and cross-examination, closing arguments, etc.). The result is a representation, not a repetition, of the original conflict, a staged translation that curbs its violence and makes it possible for a magistrate to pick a winning side. The judge’s duties are thus more limited in the accusatorial model. No longer does he play a leading role in the composition of a single, true narrative through his interrogations or analyses of written documents; instead, he simply selects one of two premade narratives as the truth. Excluded from the performance of justice, the judge becomes a silent spectator whose task it is to watch and assess, on the basis of subjective impressions, a spectacle staged for his benefit.

The accusatorial model thus clearly entails far more theatricality than the secret, textual trials of the ancien régime. One might have expected reformers to downplay this fact, but many embraced it instead, openly modeling their vision of legal proceedings on the theater. Long-forgotten debates from the period (May lawyers write or perform in plays? Should judges be barred from attending the theater? May actors testify in a tribunal? Should trial audiences be allowed to clap or hiss?) show the extent to which the reformers viewed the new proceedings through a theatrical lens. Indeed, this book is unique not only for studying the evolution of eighteenth-century legal practice as a shift toward theatricality, but also for revealing that thinkers of the period understood it precisely in those terms. For many reformers, theatricality was not, as we tend to think of it today, an accidental side effect or potential threat; it was the very core of liberal justice.

The term liberal warrants a note, as it was not used in its present-day acceptation in eighteenth-century France and is contested among political scientists today, who debate its applicability prior to the nineteenth century.²⁶ I employ it deliberately, as a useful anachronism, to refer to thinkers who espoused a set of key principles later associated with liberalism. These principles include publicity (as a deterrent and as a catalyst for greater public involvement), pluralism (especially in the form of free and adversarial debate), and individual rights (through equal protection before the law and alternatives to absolutism). In associating publicity, pluralism, and individual rights with a liberal worldview, I follow the example of such founding figures of modern liberalism as Benjamin Constant and John Stuart Mill. So ingrained has this association become, in fact, that many legal historians use the term liberal to describe the public and adversarial justice system championed by French reformers in the eighteenth century. Indeed, although this would likely surprise many political scientists, no scholars of history, law, or literature found it controversial, let alone unusual, when two recent studies presented early Revolutionary justice as the triumph of a liberal model.²⁷

Yet while I imitate legal historians by using liberal to describe eighteenth-century judicial reformers, I also seek, in the spirit (albeit not the manner) of political scientists, to complicate the term. In particular, I call attention to the way that it encourages a longstanding tendency to view the campaign to reform justice through the lens of a larger political conflict between two opposing conceptions of government and society. In this perspective, traditionalists defended the secretive, inquisitorial justice system of the ancien régime because it reflected the absolutist culture they supported, while liberal reformers, as apostles of publicity, pluralism, and individual rights, sought to open up and democratize the legal system.²⁸ With the Revolution, the liberal vision triumphed, and with it the reformers’ conception of justice, destroying in the process the unjust and antiquated system of the past. Not coincidentally, perhaps, this political account reproduces the accusatorial model favored by liberal reformers in that it opposes two symmetrical, clearly delineated parties and ends their clash by selecting one side as victor and its vision as the sole truth.

In justice as in scholarship, however, sweeping binaries with fixed terms often risk distorting a story by obscuring crucial aspects of its particularity. Imposing a political frame (liberalism vs. absolutism) upon the campaign to reform justice conceals the fact that many politically liberal thinkers expressed a profound anxiety that their own ideals, transferred to the courtroom, would bring about an overly dramatic mode of justice. This led them to take entirely unexpected positions, as when Mercier endorsed lettres de cachet (letters signed by the king ordering that a subject be imprisoned or exiled without a trial), or when he and several others challenged such key liberal principles as the universal right to a lawyer, public trials, and a fixed, comprehensive code of laws. Troubled by the secrecy of the status quo and by the theatricality of accusatorial justice, figures from both sides of the campaign set out to find innovative solutions. In fact, I contend that many aspects of the justice system in France today, including current forms of legal representation and judgment, find their roots in these compromises. By adopting a theatrical rather than political lens, this book proposes therefore a new history of justice, chronicling the rise of a modern legal system in France less as a tale of conquest (the triumph of liberal values over judicial absolutism) and more as a constant negotiation between two visions of justice, one (the ancien régime’s inquisitorial model) too distant from the theater, the other (England’s accusatorial model) too close to it.

This simultaneous attraction and unease toward dramatic justice is particularly evident in the king’s trial, which revived disputes about the three reforms most desired by liberals—legal counsel for all, a new mode of judgment, and public trials—and yet also most feared for their theatricality, as I show in Chapters 3, 4, and 5, respectively. For instance, even as the National Convention gave Louis XVI not one but two attorneys, some Jacobin deputies fretted that lawyers might employ delaying tactics and manipulate naïve spectators into feeling compassion for the tyrant.²⁹ Even more interesting was Robespierre’s warning that if [Louis’s defenders] plead his case, they can hope to make it prevail; otherwise, you would only be giving the world a ridiculous play.³⁰ If all agreed that the king was guilty, even the Girondins, then they turned his trial into theater by asking lawyers to defend the clearly culpable. This argument reveals Robespierre’s unease with the transformation in the role of lawyers over his lifetime. As I show in Chapter 3, lawyers were once viewed as moral vouchers. Their membership in a selective Order of Barristers that excluded those prone to immorality or theatricality imbued 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. The closer the trial came to reenacting the conflict, the better the odds, they argued, that the litigants and witnesses would lose themselves in heated exchanges and speak with sincerity and emotion, instead of sticking to a prepared script and delivery—that is, instead of acting. In tribunals as in playhouses, therefore, the early Revolutionaries devised a new performance of justice grounded in the concept of reenactment, in the belief that only such a spectacle could be fair, adversarial, public—and yet untainted by theatricality.

This cultural faith in reenactment began to wane during the king’s trial and Ami des lois scandal, a turning point for both judicial theater and theatrical justice—and, for that reason, the perfect transition from Chapter 6 to 7. The success of L’Ami des lois and plays like it renewed the usual fears of slander, trial by media, and vigilantism. These plays even led the Jacobins to cast doubt on the usefulness of publicly denouncing suspected schemers, as they grew concerned that the drive to unmask only produced, paradoxically, more and more masks. This anxiety explains the popularity of a (hitherto unstudied) series of plays written against denunciation—a surprising corpus, since denunciation is normally held to be one of the Jacobins’ highest civic duties, and since it meant that the theater was here denouncing itself as a space of denunciation. Nor did the Jacobins find relief from their fears, as earlier Revolutionaries had done, in the fact that these denunciations took the form of reenactments. On the contrary, they argued that including reallife traitors and conspiracies on stage had the unintended consequence of keeping them and their anti-republican opinions alive. The same fears inspired them to question the value of reenactment in legal proceedings. In their eyes, trials that sought to resurrect past emotions and quarrels through lively, adversarial debates gave known conspirators a public stage and, thanks to the presumption of innocence, a legitimate voice with which to—quite literally—make their case against the Republic. Far from a source of certainty or catharsis, the spectacular reenactment of crimes and conflicts threatened the unity of the Republic by prolonging hatreds and ideologies best forgotten and by fueling a cycle of accusation and counteraccusation characteristic of a lawsuit culture. In response to these threats, the