Dramatic Justice. Yann Robert
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 inevitable usurpation of the tribunal—a reading substantiated by the reference in the same sentence to Socrates’s trial and execution, which had been prepared, many believed, by Aristophanes’s play. In fact, this understanding of Solon’s admonition was far from unique to Rousseau. It inspired Suard’s revealing, if slightly inaccurate, rewriting: “When Solon saw public theaters in Athens, he exclaimed: these diversions will soon speak louder than the laws.”128 Indeed, Suard goes on to repeatedly draw attention to the age-old rivalry between the arts and the laws: “An Englishman once said: make a people’s laws, and let me make its songs; we will see which one of us will govern it … the ancient Greeks likely agreed, since they gave songs and laws the same name (nomos).”129 Predictably for a man best known today for his part in censoring Le Mariage de Figaro, Suard endorses censorship as the sole practical response to the threat that judicial plays might come to wield an influence equal to or greater than the tribunals’.
Although Rousseau differs from Suard in the solution that he proposes (the interdiction of theater, rather than its censorship), he shares with him a profound distrust of judicial theater. In Rousseau’s eyes, a truly satirical theater cannot lastingly operate as a parallel institution to the legal system without infringing upon it, gradually at first, but inexorably, until, to quote Suard (mis)quoting Solon, comedies speak louder than the laws themselves. His contemporaries’ longing for a judicial theater betrays their blindness to the logic of the supplement, which means in this instance that a theater seeking to extend the reach of the tribunals will eventually come to supplant them. As evidence of this, Rousseau could point (as he does) to Socrates’s execution, often cited in the period as proof of the ease with which theatrical accusations could not only instigate a trial but also infiltrate and distort it through their influence on public opinion—an early example of what is known today as trial by media.130 To most eighteenth-century thinkers, in fact, Socrates symbolized the twin values of reason and law, and his death, the defeat of these values by the forces of theatricality. After all, had he not courageously refused during his trial to resort to the melodramatic appeals of the stage: “I respected you too much to try to touch you with my tears or with those of my children and my friends gathered about me. It is at the theater that one must arouse compassion through poignant images; here, only truth must make itself heard”?131 To antitheatricalists like Rousseau, there was no better illustration of the frailty of truth, reason, and a formal legal system when faced with a satirical, denunciatory play of the kind written by Aristophanes.
Judicial theater infringes upon and eventually supplants the justice system, instead of working in tandem with it, as Mercier envisions, because it gives undue power to individuals (playwrights and actors) without holding them accountable for it. Mercier defends their legitimacy because they are more enlightened than regular magistrates (a subjective claim) and more transparent in their accusations, since the latter are made publicly (unlike in eighteenth-century trials). Throughout La Lettre à d’Alembert, however, Rousseau reminds us that the theater is the very antithesis of transparency. In particular, he condemns actors for uttering words that are not their own (but the author’s) under an identity that is not their own (the character’s), leading them to lose their individualities, to literally “self-destruct.” This lack of transparency is especially troubling in judicial theater. Not only does it make it possible for actors to reenact slanderous accusations with impunity, by claiming their roles were assigned to them and do not necessarily reflect their own beliefs and values, but the true initiators of these accusations, the playwrights, are also offered the opportunity to conceal their identities, in name (under the cover of anonymity)