Öffentlichkeitand the Law's Behind the Scenes: Theatrical and Dramatic Appearance in European and U.S. American Criminal Law

Abstract

In the present situation, law'sÖffentlichkeit, or its principal “openness to the public,” needs to be distinguished from its being the object of publicity as dominated by modern media. Law's public openness has historically been dependent on, and determined by, two theatrical modes of appearance: The theatrical-proper and the dramatic. Paradoxically, in both cases the jurisdictional “openness to the public” works not only through forms of visibility but also forms of invisibility. These two theatrical modes—and their dynamic play with visibility and invisibility—have been portrayed in works of art that have influenced the way general audiences imagine the law to work. These works also correlate with the different histories and public appearances and openness of the European and the Anglo-American systems of law. Historically speaking, the European system has been more theatrically inclined, in the context of a distinctly imperial trajectory that has been dominated by the desire to stage the law and to follow correct procedure. The Anglo-American one, by contrast, is more dramatically inclined, and has followed a distinctly anti-imperial trajectory—whether anti-royal or anti-state—influenced by the desire to stage trials in which peers determine the dramatic outcome. Although both systems are basically open to the public, they both work via a dynamic of protective invisibility. Yet due to current developments, the elements of invisibility in both systems tend to predominate over the elements of visibility. This suggests that both systems are moving toward a form of legal closure that is averse to the original theatrical and dramatic appearance and openness of law.