indignant spectators into a critique of the recent acquittal of the powerful Comte de Morangiès,101 or when the audience of Crispin rival de son maître vented its anger at Louis Valentin Goëzman’s treatment of Pierre-Augustin Caron de Beaumarchais by repeatedly calling out the judge’s name whenever a character mentioned bribery, chicanery, or judicial ineptitude.102 Nor did audiences limit their judgment to existing trials. For them, the theater was both an appellate court, reviewing prior legal decisions, and a trial court, where accusations against political figures under no formal litigation could be formulated and debated. For instance, in the same period as the examples above, the powerful and controversial Chancellor René Nicolas Charles Augustin de Maupeou became the target of frequent indictments by theatergoers.103
Like his idols Voltaire and Diderot and unlike the more radical Mercier, Meister stops short of fully embracing the slide toward a more judicial theater. He criticizes spectators for daring to judge with such limited knowledge of the evidence104 and for showing such insolence toward their superiors—conduct deserving of a trip to the Bastille.105 Yet he immediately adds: “Even while acknowledging their fault, I must confess that I like seeing myself transported to Rome or Athens for an instant, to admire how much a taste for the arts, and especially for the theater, predisposes the mind to enjoy freedom.”106 Here we see, again, the attraction that philosophes like Meister felt for antiquity and for its vision of the dramatic arts as uniquely able to inspire and support a free, popular judgment. By the 1770s, many spectators, consciously or not, shared this judicial vision of the theater. Whether through applications or at the invitation of actors, they found in the theater a way to judge ongoing or recent trials. This mode of reception, while not, of course, entirely new, experienced so marked a growth that Meister flagged it as a novel, “usurped” right. Indeed, it became a common enough practice that, together with the dream, from Palissot to Mercier, of a rebirth of Aristophanes, it attracted the attention of some concerned authors, including Rousseau, who argued that the rise of a judicial conception of theater posed a grave threat to the very rule of law.
Acting Above the Law: Rousseau and the Case Against Judicial Theater
Who, in the end, really judges? This ambiguity, which I noted above, stems from one of the most troubling flaws in Mercier’s judicial theater: the difficulty in tracing the legitimacy of any of its participants. In 1768, the abbe Joseph-Marie Gros de Besplas condemned the rise of judicial theater for precisely that reason: “Illicit personal attacks on stage have seen citizens brought before a tribunal of judges without the authority to judge anyone.”107 What, indeed, gave random spectators the right to judge a fellow citizen? Similarly, Latour denounced the playwrights’ illegitimacy, noting that this distinguished them from official judges, imbued with the king’s authority and entrusted with investigating all accusations before they became public, to ensure that they were honest, disinterested, and supported by evidence.108 In the absence of anyone with the legitimate authority to separate the wheat from the chaff, all accusations would be entertained equally and publicly, including the most calumnious ones. Slander’s threat was made even greater, Latour noted soon after rebuking Diderot for his praise of Aristophanes, by the theater’s tendency to exaggerate faults and embroider narratives, so as to please its audience.109 As expected, the partisans of judicial theater responded by defending the natural legitimacy of the people, as the voice of the nation, and by asserting that when assembled, the public possessed an innate ability to distinguish the truth. So long as the people sat in judgment, calumny would never triumph; true, it might find a public expression on stage, as in Palissot’s Philosophes, but it would then be roundly jeered, and the false accuser discredited.110
The legitimacy of judicial theater thus depends on its audience, and on the latter’s validation of the onstage accusations. Yet it is well known that while the philosophes praised public opinion as infallible and virtuous, they harbored a profound ambivalence toward the people. This was particularly true in the theater, where public opinion, so easy to applaud as an abstract concept, took on a far more concrete and threatening presence—that of a boisterous, volatile, socially diverse audience.111 To be fair to Mercier, he proved far more consistent than most in his praise of the people, yet even he occasionally expressed unease at the presence in the polysemic “people” of the “populace,” whose violent, erratic, hasty, often inaccurate judgments terrified him. This unease explains why Mercier sometimes painted, alongside his idealistic image of the “people” as an infallible judge, a strikingly different portrait: of a dangerous force to harness and command, or of a naïve child to mold and enlighten.112 Such disparaging portrayals of the people naturally undermined the concept of judicial theater, playing into the hands of its critics, who, like Rousseau, stressed the dangers of placing the right to judge in the hands of everyday people.
Rousseau’s name here may come as something of a surprise, given his oft-proclaimed admiration for a system of justice founded on free and public accusation, as in ancient Rome.113 Individual privacy ranks well below collective transparency in Rousseau’s list of priorities, and he often defends those who bring a criminal or sinner to the people’s attention, even or perhaps especially when they do so outside of the legal system. For instance, in his Lettre à d’Alembert, he praises the gossipy women of Geneva for the surveillance and severe censorship that they exercise over their fellow citizens.114 Yet in the very same text, he opposes the introduction of comedies in Geneva on the grounds that they will invariably come to do precisely what he earlier applauds Genevan women for doing: publicly denouncing specific individuals by name.
As for comedy, let us not think of it: it would cause among us the most awful disorders. It would serve as an instrument of factions, parties, and vendettas. Our city is so small that even the most general comedy of manners would soon degenerate into satires and personal attacks. The example of ancient Athens, a city incomparably more populated than Geneva, offers a striking lesson. It is in the theater that the exile of many great men and the death of Socrates were prepared. It is because of its passion for the theater that Athens perished. These disasters justify all too well the sorrow Solon showed at Thespis’s first performances.115
This passage contains a thoughtful, multifaceted critique of judicial theater, to which I will return, but one aspect of Rousseau’s originality is immediately apparent. In an inversion of the standard historical progression described by Voltaire, Marmontel, and Jean-Jacques Barthélemy, according to whom the fall of Athenian democracy and the resulting decline in civic participation caused the disappearance of judicial theater, Rousseau argues instead that it was judicial theater that led to the demise of democracy and public engagement in Athens. For the philosophes, judicial theater is a fundamentally republican institution, whereas for Rousseau, it poses a grave threat to true republics (Athens and, by extension, Geneva) because it weakens their unity by dividing the people into factions and parties.
Interestingly, in portraying judicial theater as responsible for the collapse of Athenian democracy, Rousseau, like his adversaries, borrows from Brumoy’s influential anthology, simply from different passages. Indeed, in Le Théâtre des Grecs, Brumoy contends that judicial theater served both as a fulcrum for Athenian democracy and as the root of its downfall. Satirical comedies were, he argues, indispensable, since “the republic of Athens sustained itself solely through the perpetual discord among those who handled its affairs, a unique counterweight that involved finding the cure in the sickness, and whose impetus came from eloquence and the theater.”116 Here, Brumoy perfectly sums up the claim, later reprised by Voltaire, Marmontel, and Barthélemy, that Aristophanes’s judicial theater operated as a system of checks and balances. According to this interpretation, satirical comedies were designed to preserve a relative equality among citizens by publicly exposing any political figure given to such lofty ambitions as to threaten to replace the democratic regime by a dictatorship. The phrase “finding the cure in the sickness” hints, however, at Brumoy’s ensuing criticism: while such plays provide a momentary remedy to democratic instability (caused by the lack of a fixed, legitimate ruler), they are also partly to blame for the very existence of this malady.
