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
