as Brumoy goes on to explain, the creation of political factions, as lesser men realize that to wield power in a system founded on conflict and counterweight, they need to build alliances and secure the support of eloquent representatives. For Brumoy, such a deeply divisive and theatrical democracy is like a tree growing on putrid roots: while it needs them to survive, they will ultimately result in its collapse.
Brumoy’s account—judicial theater is needed to steady a wobbly democracy, yet alters its foundations in a way that ensures its future downfall—unfolds according to the logic of the supplement so dear to Rousseau (in fact, the phrase “finding the cure in the sickness” has a distinctly Rousseauian ring to it).117 For Rousseau as for Brumoy, satirical comedies herald the ascendancy of a toxic form of democracy, one rewarding factionalism over unity, artifice over transparency, and personal interests over the general will. This particular model of democracy resembles the “politics of contestation” characteristic of the English system, which some philosophes favored, but which Rousseau regarded with intense distrust and anxiety.118 In brief, the British style of politics operated largely in accordance with the doctrine of “majority rule,” with each eligible citizen encouraged to defend his private beliefs and interests in the political arena, in the belief that the most commendable politicians and causes would invariably accrue the greatest numerical support. Rousseau condemns this mathematical model in Du Contrat social for the same reasons that he opposes judicial theater: because it fosters discord among the people and leads to the creation of voting pacts, intrigues, and political parties. As is well known, Rousseau promotes an alternative form of democracy based on the general will, a pre- or a-political consensus that arises when each citizen voluntarily forfeits his private interests and votes in accordance with what he perceives to be in the best interest of the group. Political factions of any sort are incompatible with this vision; a party, even one that has the support of the majority, does not reflect the general will, but only the private interests and oratorical gifts of its members.119
Why does judicial theater (and not, say, the gossipy women of Geneva) cultivate this toxic, divisive vision of democracy? On a practical level, the unrivaled reach of dramatic denunciations makes them ideal weapons not only against, but also for, ambitious men, the latter eagerly seizing upon such an effective means to accuse and discredit rivals without the need for concrete evidence. The theater then becomes a political instrument that facilitates the rise of powerful factions, instead of a popular safeguard against it. On a more conceptual level, the very structure of theater mirrors the bad democracy that Rousseau fears. Its distinction of actors and spectators endangers the unity of the citizenry. Worse, it rewards representation, the expression of ideas that are not one’s own but those of a hidden other, with the most persuasive performer, not the sincerest one, sure to receive the most applause. In a perfect illustration of majority rule, success is determined by the number of spectators who applaud and by the intensity and duration of their acclamations. In short, theater teaches actors on the national stage (public officials) to tailor their message to the wishes of the majority over those of the whole community, and it teaches private citizens to seek likeminded allies, so as to produce the most noise possible and drown out the judgments of others. The resulting audience is the very inverse of the one that Mercier claims is created by judicial theater: divided, instead of united, and driven by private, instead of public, interests. In fact, this conflict-driven vision of judgment infects the justice system as well and creates a lawsuit culture, with Brumoy noting the Athenians’ “obsession with trials,”120 and Latour warning against the endless quarrels that would result from the establishment of a judicial theater in France.121 It would therefore be foolish to seek legitimacy and protection from calumny in the audience of judicial theater; on the contrary, the general public becomes a less legitimate judge—more slanderous, unruly, and divided—by attending judicial plays.
As we saw earlier, this negative image of the people also haunts the writings of many philosophes. It inspired Mercier and others to seek a compromise, one that would preserve the right of the audience to judge and yet endow its judgments with a more legitimate origin. They found this compromise in the notion that it was ultimately men of letters (in other words, them) who formed public opinion, before it was expressed by the people. Hence, Marmontel claims that the parterre’s judgments are worthy of trust because they originate from a small group of enlightened thinkers dispersed in the crowd, before being echoed and amplified by the common people, whose lack of education, prejudices, and vanity has left their minds malleable and open to the influence of their superiors.122 Similarly, Mercier often asserts that men of letters determine the popular response to a play (and to the accusations it contains), although his focus is on the playwrights rather than the audience. A gifted dramatist, he argues, will find that spectators are “a wax pliable to the hand that molds it” or, in another hackneyed metaphor, “a kind of instrument he can make resonate as he pleases”—with a likely intentional pun on the homophones “raisonner” and “résonner” (reason and resonate), since Mercier immediately adds that this allows the playwright to gain mastery over the spectators’ “reason.”123 In fact, men of letters have the ability to control more than just the reception of a particular play; they, as Mercier variously puts it, “hold the rudder of public opinion,” “govern the ideas of the nation,” and “form at last the national spirit.”124 In the wings or in the auditorium, they are the alchemists who distill popular opinion(s) into a purer, unanimous public opinion.
Yet if this compromise banishes the specter of an uncontrollable, divided people, it raises new issues in its place, particularly in the context of judicial theater. Can a judicial play still be compared to a trial if its author also determines its verdict? In this scenario, the playwright becomes a judge as well as an accuser, a status Mercier hints at when he praises men of letters as “substitutes for the magistracy” (a phrase he borrows from Jean-Baptiste-René Robinet).125 In fact, Mercier never addresses one of the most troubling differences between a judicial play and a trial, namely that a playwright, unlike an accuser in a court of law, can shape the narrative as he sees fit, depicting the accused in the most damning light, without the latter being able to respond or demand evidence. Placing the legitimacy of the accusation entirely on the side of the accuser risks reducing the role of the spectators to that of mere assenters, present to observe and sanction a punitive act carried out by a sociocultural elite (the supposedly enlightened men of letters)—a performance closer to Palissot’s vision than to a truly open-ended trial.126 Many philosophes, given their embrace of enlightened despotism, may have been agreeable to such a compromise, if it meant judicial theater was governed by independent, progressive men of letters (not Palissot) with the people’s best interest at heart. For Rousseau, however, shifting the responsibility for judgment (and the duty to fend off calumny) from the people to the theatrical establishment carried with it a different but equally dire threat.
In addition to fragmenting the people into factions, the judicial theater of ancient Greece, Rousseau writes in the passage from La Lettre à d’Alembert cited above, vindicated Solon’s sorrow upon encountering the dramatic arts for the first time. This (likely apocryphal) dispute between the wise lawmaker and the Greek dramatist and actor Thespis was widely known in the early modern period, especially in antitheatrical circles. As narrated in Plutarch’s Parallel Lives, Solon confronted Thespis following one of the actor’s performances, inquiring whether he felt any shame at telling so many lies before so many people. When Thespis denied wrongdoing, claiming his speeches and actions were but a game, Solon replied, “But in praising and endorsing these games, where one lies knowingly, we do not take care that we will soon find them in our contracts and our very affairs.”127 This famous warning raised philosophical issues dear to Rousseau, notably the Platonic anxiety that mimesis, even in jest, might come to saturate and distort reality, weakening the tacit contracts and conventions that hold communities together.
With respect to judicial theater, however, Solon’s admonition took on a more literal dimension: a warning that genuine “contracts,” the legal agreements serving as one of the foundations of the justice system, were compromised by the theater. Invoking Solon was a way for Rousseau to revive the lawmaker’s critique of the stage’s
