Justice as ›performance‹? The historiography of legal procedure and political criminal justice in Weimar Germany

Abstract

Forensic theatre, courtroom drama: metaphors about the theatricality of legal procedure abound in scholarly writing. And yet, despite manifest structural similarities between stage and tribunal, historians as well as scholars of politics, law and culture have been slow to take seriously the performativity of law. In asking why, my contribution explores some of the challenges posed by a cultural history of the legal process as performance. After surveying appropriations of Performance Studies concepts by scholars of law, I formulate a working definition of the performativity of judicial procedure. Part two develops a tripartite matrix for categorizing interpretations of the nexus between performance and the legal process: surface/structural similarities; the performance of justice’s impartiality (and by extension the state’s legitimacy); and, brushing these against the grain, counter-performances of fundamental dissent. Empirically, this contribution draws on the politicization and aestheticization of trials in interwar Germany. In Weimar’s starkly polarized politics, performative aspects of trials such as performer-audience interaction and the creation/affirmation of community through sacrifice were particularly salient. Taking the performativity of justice seriously, my contribution argues, can help us better understand the deep impact of legal procedure on political culture.