Performing the laws: Popular trials and social knowledge

In the seventh book of the Laws Plato justifies censorship of the theatrical companies by acknowledging that "we are ourselves authors of a tragedy, and that the finest and best we know how to make. In fact, our whole polity has been constructed as a dramatization of a noble and perfect life; that is what we hold to be in truth the most real of tragedies. Thus you are poets, and we also are poets in the same style, rival artists and rival actors, and that in the finest of all dramas, one which indeed can be produced only by a code of true law-or at least that is our faith. So you must not expect that we shall lightheartedly permit you to pitch your booths in our market square with a troupe of actors whose melodious voices will drown our own." Plato tells us that a society reproduces itself through performance before spectators in a public space, where the community comes to be by being brought into the realm of appearance through an act at once aesthetic, ethical, political, and rhetorical. The drama portrays the substance of common life-the values binding the community-for "if your sentiments prove to be the same as ours, or even better, we will grant you a chorus, but if not, I fear, my friends, we never can." The drama has as its text the laws, which are themselves the record of prior dramatizations, and which are altered as well through the act of performance. The performance of the laws then becomes a singularly powerful locus of social control, for it is the very means by which the members of the community know who they are. This passage gives us the conception of the social whole of which the popular trial is the representative part, each the opposing pole of a synecdoche continually active in the reproduction of society. The laws exist outside of performance, yet the performance of the laws is essential for their becoming realized in lawful living. In Aristotle's terminology, the mode is epideictic; according to HansGeorg Gadamer, understanding occurs through application; following Thomas Farrell, the social knowledge essential for public decision making is grounded in the consensus achieved before and by specific audiences, confirmed by recurrent practices, capable of generating future social practices, and inescapably normative in its implications; in our common experience, the laws are as good as we judge them to be when watching or reading about their performance in court. One week it was Baby M, the week before it was high school textbooks, before that it was the Walker trial, von Bulow, Hinckley, Angela Davis, the Catonsville Nine, the Chicago Seven, the Rosenbergs, Sacco-Vanzetti, Dreyfus, Dred Scott, Tom Paine, Thomas Wentworth, Martin Luther, Socrates.... My purpose is not to review the hundreds of trials that have become signposts in the history of the West, nor to catalog the many more trials that constitute a significant percentage of the daily storytelling by our mass media. The scope of my subject (of performing the laws) is indeed extensive, although our awareness of the rhetorical value of popular trials has been somewhat retarded. In this essay, I will advance three propositions toward the end of understanding how popular trials function as rhetorical processes shaping the social construction of reality: First, popular trials constitute a major genre of public discourse; second, the function of this genre is primarily to adjudicate discourses; and third, the genre fulfills this function by applying specific generic constraints to more diffuse public debates. If we accept these claims, an additional suggestion follows as well, which is that the trials and the laws themselves are more profoundly rhetorical and less autonomously legal than supposed by either rhetorical or legal scholars.