© 2014 Guy Spielmann
Draft of a paper delivered at the international symposium "Performing the Law"
French Institute, London, Jan. 30-Feb. 1, 2014

The main point of my 2011 article "Judicial Spectacle Events as Reality and as Fiction" was that a court trial as we commonly know it meets all criteria for being analyzed as a spectacle event ("Judicial Spectacle Events as Reality and as Fiction", Law and Humanities, (U.K.), special issue on "Law and Literature," 5:1 (Summer 2011), p. 259-270.). This determination requires a notion of 'spectacle' that excludes the necessity of fiction and the association with entertainment and illusion. When we think of the performative dimension of the law, however, we need to carefully distinguish between two dimensions: actual performance in the "real world" of the courtroom on the one hand (with actual consequences on the parties involved), and on the other hand representation of such a performance, which can be fictionalized—in a show like Law and Order, for instance—or not—as in a news report or a documentary. Since most people never have the opportunity to participate in a trial, or even simply witness one first hand, representation (fictionalized or not) cannot be discounted in an attempt to grasp the spectaculous dimension of the law. We thus have to deal with a tripartite entity: the law as it is, as it should be and as it is perceived to be.

In the North American cultural context, a common iconographic representation of the notion of 'law' (as evidenced by an internet image search) also makes it a tripartite entity, but with a different composition: a drawing of an old-fashioned scale (or the full allegorical figure of a blind woman holding a scale in one hand, and a sword in the other) stands for justice; an image of a book or set of books stands for laws (a synecdoche); an image of a gavel stands for a judge's verdict, and, secondarily, a courtroom trial (a metonymy).

Such plurality seems unsurprising if we hold the law to be bound to 'Justice', which is primarily an ideal, an abstract notion that exists on the same level as 'truth' and 'beauty'—something whose concrete manifestation remains highly problematic.
When we say that "justice has been served," we mean that something has happened, or has been done, to the effect that a state of affairs obtains that we consider "just." In most cases, this means that a pre-existing state of justice had been compromised, and has now been restored, as if we held a fundamental, idealistic belief in 'justice' as a primordial state of affairs, much like universal harmony in the pagan Golden Age or innocence in the Garden of Eden.

At a more down-to-earth level, however, we realize that 'justice' is not an ontological property of the world we inhabit; it has to be established—in other words, defined—and then, in all likelihood, enforced, a complex matter that can only be accomplished in steps.
What needs to be determined first are the relationships between these three elements, which to us appear to be hierarchical: the occurrence of a trial is predicated on the existence of laws, and laws are predicated on the ontological premise that justice exists. This is a possible articulation, but not necessarily the only one, since it is conceivable that

1. a trial can take place without explicit or systematic reference to any law (e.g. "kangaroo courts" and "drumhead courts");

2. laws do not necessarily reflect justice (supposing again that 'justice' is an absolute);

3. in a way, justice can be served without involving laws or a trial.

In theocratic societies, a common principle is that justice can be meted out by a god, an omniscient being who directly punishes or rewards humans in accordance with laws that s/he has promulgated, or that are held to be self-evident or immanent. In the Greek Pantheon, the goddess Nemesis brought divine retribution as needed, and the Bible makes frequent references to God administering justice in a variety of ways (e. g. Job 37:23 : "Touching the Almighty, we cannot find him out: he is excellent in power, and in judgment, and in plenty of justice: he will not afflict."), more often than not by punishing the guilty. (e.g. Romans 1:18 : "For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men").

Pierre-Paul PRUD’HON (1758-1823), La Justice et la Vengeance divine poursuivant le Crime (1808).

A Germanic judicial duel in 15th-century, drawing by Clauss Pflieger, from Hans Talhoffer's 1459 Fechtbuch, Copenhagen, Kongelige Bibliotek, MS. Thott 290 2°. Click on image to enlarge
On a practical level, human courts in such societies have claimed to be passing judgment in the name of God, with the mediation of laws supposedly grounded in divine justice, and sometimes through practices that required a direct intervention from above, such as medieval "trials by ordeal" and "judicial duels" (aka "wagers of battle") in which guilt and lack thereof were determined by whether a suspect survived or remained unscathed.

In a secular context, a similar result can be observed in the notion of "Poetic Justice," "the ideal justice in distribution of rewards and punishments supposed to be appropriate in a poem or other work of imagination; (now also more generally) the fact of experiencing a fitting or deserved retribution for one's actions." (OED)

Another variation, a fully agentic one, belongs the Western post-Enlightenment vision of despotism, where justice essentially amounts to a ruler's whim and is carried out by henchmen rather than lawmakers and judges, as graphically depicted in Regnault's Oriental fantasy painting, Execution without trial under the Moorish kings in Granada (right), and in numerous fictional stories in which a king (or queen) casually orders someone imprisoned or executed ("Off with his head!")
While democratic societies normally condemn this particular way of administering justice as the shameful stigma of a totalitarian system, it is sometimes deemed inevitable in exceptional cases: U.S. Secretary of State Hillary Clinton during a press conference on May 2, 2011 stated that "Osama bin Laden is dead and […] justice has been served," after the Al-Qaeda leader had been terminated in Pakistan by a Navy Seals commando—obviously without benefit of a fair trial by a jury of his peers. In the United States, this action could be framed in the tradition of Wild West vigilantism or, critics would say, of lynching, both characterized as means to allegedly serve justice better by circumventing the process of law.

Henri Regnault (1849-1871) Exécution sans jugement sous les rois maures de Grenade (1870)
Click on image to enlarge

Click on image to enlarge

Although such examples have become exceedingly rare nowadays, the conceit of "direct" law enforcement remains strong in popular culture.
In 1974, Death Wish, an enormously successful Hollywood thriller, featured a mild-mannered, socially liberal architect who, when the police fails to solve the murder of his wife and rape of his daughter, takes to the streets of New York City at night, shooting as many muggers and miscellaneous street punks as he can encounter (quite a few, as it turns out), and thus becoming a kind of folk hero whose efficiency in dispatching bad guys has a significant effect on the crime rate . The film's tag line "Vigilante, city style—Judge, Jury, and Executioner" unambiguously summarized the message.

Three years later, the same kind of direct justice was embodied by the British comics character Judge Dredd, an American law enforcement officer in a hyper-violent dystopian future, who is licensed to arrest, sentence, and execute suspects at the crime scene, uttering his signature catchphrase "I am the law!"

Click on image to enlarge

American television viewers have been exposed to several versions of this conceit: Street Justice was the title of a series created by David Levinson, Mark Lisson and David H. Balkan, aired in syndication from September 29, 1991 until May 29, 1993 (43 episodes). Its hero was Adam Beaudreaux, a former member of the U.S. Army Special Forces who had become a metropolitan police detective, and enrolled the help of Grady Jameson, a street-wise martial arts expert operating outside the confines of the law.

A similar offering, named Swift Justice, created by Dick Wolf and Richard Albarino, aired on the fledgling United Paramount Network (aka UPN, 1995-2006) from March 13, 1996 to July 31, 1996 (13 episodes). This detective show featured "Mac Swift" a former NYPD detective and Navy SEAL, who, as a private investigator with unorthodox methods, solves cases that elude the police force.

More recently, the American series Dexter introduced a new type of vigilante : a police forensic analyst by day who turns into a serial killer after hours, murdering criminals who somehow have escaped prosecution, but following a strict set of rules, "the Code of Harry" (named after Dexter's foster father, officer Harry Morgan), which in effect substitute for both the legal and judiciary system.

The common denominator between these diverse programs is the conviction that the due process of law does not amount to justice being served, because it is overly lengthy, excessively complicated and/or too easily distorted by procedural hurdles, so that obviously guilty individuals are not adequately punished.

What transpires a contrario from these fantasies (and the frustrations underlying them) is the essential feature of a truly democratic, ideal justice system: a double exigency for spectacle.

The generally negative association between justice (or the law) and spectacle can only be attributed to a misconception of spectacle as implying fakery, illusion or fiction. More accurately, a spectacle event must be defined as the conjunction at a given time and place of two complementary actions: performing and spectating. A theatrical performance, a circus show, a political rally, a religious service, a wedding, a night at a disco, the State of the Union presidential speech in the US and the Queen's Speech to Parliament in the U.K. all qualify as spectacle events.
As much as spectacle may indeed, on occasion, be linked to mere entertainment and gratuitous visual excess, such associations do not define it: what matters is that a performance takes place at some point, somewhere, and that someone is in attendance to witness it. Although many different notions of performance exist, the best and simplest remains Richard Schechner's "showing doing," which I would elaborate as "self-consciously accomplishing an action, according to a predetermined pattern or script, in a single, discrete time/space frame, to the attention of someone else who is physically present in the same space at the same time."
Given the historical dominance of studies about performance and performing, spectating has often been neglected (or treated separately, which raises other issues) and misunderstood as a form of viewing, perhaps because of etymology. In addition to the fact that spectators do not only watch (they also listen, and in some type of spectacle events, other senses may be solicited as well), they do not always even pay continuous attention to the performance, so that they are basically characterized not by any specific activity, but by their very presence, which is needed to validate the performance. Whatever the other party does would not qualify as a performance if no one was in attendance; being there represents the minimal degree of attention necessary—and indispensable—to make "showing doing" possible (you can only show your doing to someone). This requirement accounts for the crucial role that spectacle plays in social transactions.
The first instance of spectacle is necessary to concretize the abstraction that is 'law' into text; in other words, to transform natural or divine law into positive law. This can be best understood with the model designed by School of Paris semioticians to account for the development of narratives.

Narrative semiotics has found it necessary to substitute for the traditional virtual/actual pair, the ternary articulation virtual/actual/realized […] Thus, subjects and objects prior to their junction are in a virtual position; their actualization and their realization take place in accordance with the two types of characteristic relations of the function; disjunction actualizes subjects and objects, conjunction realizes them. "Actualization" in Algirdas J. Greimas and Julien Courtès, Semiotics and Language: An Analytical Dictionary (1979, trans. Daniel Patte, Larry Crist et al, Bloomington, Indiana University Press, 1982).

In a first stage, Virtualization, disjointed abstract notions ("right" / "wrong" / "responsibility" / "penalty" / "evidence", etc.) are organized into a coherent system of values and relations (contradiction, contrariety, implication). In a second stage, Actualization, this system is expressed in possible legal texts that, in a democratic society, must be submitted to scrutiny and debate in what Habermas called Öffentlichkeit— "Public Sphere"—before the last stage, Realization, can be completed, i. e. a definitive formulation is agreed upon.
Such "Publizität" fully qualifies as a spectacle event: it takes place in a specific chronotope, a "parliamentary session" and requires a discussion that must follow a specific format to be valid, including notably the possibility of contradiction; in other words a performative exchange, as opposed to free-for-all debates that can otherwise be held informally in the town square, in coffee houses and myriad other contexts.
The second instance of spectacle is necessary whenever a law has been transgressed and a culprit is provisionally designated. Here again, the process can be broken down into three phases: Virtualization, wherein it is initially established that a law has been (or may have been) transgressed, so that a judiciary action should be set in motion; Actualization, wherein the case must be submitted to public scrutiny and debate before the last stage, Realization, can be completed, i. e. a definitive verdict is agreed upon.

An indispensable condition for "the law" to be completely legitimate in democratic societies is that both instances of spectacle be allowed to happen, each time according to the three stages identified above.

We can verify the strength of this condition by examining situations—again in reality and in fictional representation—where at least one essential component is missing, be it publicity (or "publicness," in the sense of Publizität), adversarial debate (i.e. a performing of contradictions in a case), or an unpredictable outcome:

- The Star Chamber of the English crown (1487-1641), which met behind closed doors to hold trials in which the accused had no right to a defense;
- The French Tribunal Révolutionnaire (6 april 1793 - 26 october 1795), an emanation of the Comité de salut public that, more often than not, issued quick sentences of death to those suspected of attempting to foil the Revolution ;
- Kafka's The Trial, a novel wherein the main character undergoes a baffling judicial process, not knowing exactly the charges and never being allowed to properly make his case in court.
The "Moscow trials" under Stalin's rule (1936-38), aka "Soviet show trials" of alleged counter-revolutionaries, which were staged with technical means of theater and cinema and whose outcome was certain from the start;
- George Orwell's fictional rendition of the Soviet show trials in 1984 (1948), through the episode of Goldstein's confession.
- The Star Chamber, a 1983 American movie in which a secret society of magistrates tries criminals that they believe have gotten away with murder in the regular courts.

Such examples show that if the double requirement for spectacle is not observed, and/or if the judicial process does not fulfill the criteria for spectacle (publicness, unpredictability of outcome), even if a trial takes place, then the result is an ersatz form of justice.

Why does spectacle remains necessary in a media-saturated society? And why is spectacle (in the neutral sense of a performance/spectation event) the condition for the process of law to be considered valid in a democratic system?

- A show is not a show if there is no audience in attendance. The "publicity" ("publicness") of proceedings not only guarantees their transparency and integrity, but determines their very existence; the laws as such are useless until a judicial performance takes place, and a true decision of justice cannot be made privately by a single individual.

- The possibility of unexpected, unpredictable differences from one event to the next is crucial to the notion of 'spectacle'; likewise, a fair trial only makes sense if the final outcome cannot be predicted.

Therefore, contrary to claims by proponents of critical theory (members of the "Frankfurt School", Debord, Baudrillard, Kellner) spectacle events may also function as guarantors of democracy rather than purely as means of alienating the masses.