Dr Benjamin Thorne, Lecturer in Law, Kent Law School & Dr Sean Mulcahy, Research Officer, Gender, Law and Drugs Program, La Trobe University

Arts, particularly performance, have been used as mode of enquiry, analysis, empowerment, healing, and agency to explore law. Law and performance is a rich but complex terrain of research, and for this piece we refer to law and performance in quite a specific and narrow sense of theatrical performances that attempt to explore, interrogate, or disrupt understandings of law and its entanglements with society.

Performance as a framework to explore law – as institution, as justice, as power, as governance, as violence, as silence, as absence – has arguably expanded and disrupted conventional ways of thinking about law and its numerous interplays with society. It often seeks to create something from ‘scratch’, particularly words: a reimagination of a historical trial, a fictional trial as response to a void of judicial justice for a given grievance, or a zooming in on the aftermath consequences of individuals who have encountered law, as well as many other examples. These performances often create a new script to tell their stories. However, what has received less attention is the connections between the words produced by law, spoken in a courtroom and eternalised through technologies producing transcripts and/or audio-visual recordings, their afterlives existences as language and potential as performance.

There has been some study of the performance of verbatim court transcripts. Jacqueline O’Connnor’s Documentary Trial Plays in Contemporary American Theatre explores American legal and legislative proceedings that have been transformed into contemporary performances utilising transcripts, commentary, and interviews. O’Connor argues that the dramatic representations of legal transcripts advances audiences’ understanding of the law’s power and its tension with civil rights and justice. Terry Stoller’s chapter on verbatim and political plays in Tales of the Tricycle Theatre and Will Hammond and Dan Steward’s collection of interviews in Verbatim Verbatim: Contemporary Documentary Theatre explore these issues from the perspective of British playwrights and theatre-makers. These works also examine the ethical issues that arise when portraying real people on stage.

To be clear, the verbatim of legal words is not being suggested here as an alternative or challenge to existing ways of engaging performance to further understandings of law. What is being discussed is what role, if any, verbatim words produced by law, could have in contributing towards discussion on performance and law, and the existence of the afterlives of these legal words.

One of the claimed benefits of performing law is the importance of the creative process, the freedom to use language, create words, and the power of grammar and punctuation strategically placed on the page in order to have the most potency to challenge or complicate understandings of law. But what about when the creativity of written words is hamstringed? When words, in all of their legal nostalgia, formality and unnecessary complexities are already fixed, indented onto the page? In terms of performance and law, are these words void, dull signifiers on a piece of paper, testimony or possible relic to a moment of the past, to be used to forensically examine the legal process for objective interpretations of history? Or are they a canvas, waiting to be spoken, interpretated, and performed as ways of knowing and meaning making?

In 2017 to mark the 70^th anniversary of the publication of Primo Levi’s ‘If this is A Man’, a live reading of the book was commissioned. This book depicts Levi’s experience of living through the Nazi concentration camps. This live reading, the entirety of the book, was at the Royal Festival Hall in London, and read by an ensemble of international lawyers including Philip Sands, journalists, actors, survivors and victims families of a sadly all too long of a list of 20^th century atrocities. Benjamin attended this reading. Apart from the short intervals for the mandatory overpriced small pot of ice cream eaten with an even smaller wooden ‘spoon’, the reading lasted for almost 8 hours uninterrupted. Sat there in the auditorium of the Festival Hall, towards the rear of the theatre, one feeling that struck a really deep cord with him was the originality of this reading, of this performance. These words being spoken, all of them, were Levi’s telling his story of the horrors of the camps, a deeply personal story of the historical inhumanity of man. At the same time, these words felt so alive, so of the moment of the individuals speaking them. These orators were not only eloquently repeating the words penned by Levi, something else was also happening. They were simultaneously speaking from within themselves, communicating meaning belonging to them.  There was ownership of these words by the speaker. Through the reader’s own interpretation of Levi’s words, there was meaning making and ways of knowing taking place.

There was also another layer of meaning making taking place, between the speaker and the audience. Audience members were not only interpreting the words of Levi, but also interpreting the performance by those speaking his words. This multi-layered process of meaning making and ways of knowing transcended the words on the paper, but did not diminish or detract from the experience within the written source. This was a dynamic and unpredictable process of movements between and across the words, the speaker and the audience. Added to this, was the materiality and aesthetics of this performance of Levi’s text, whereby the spoken words were interspersed with live violin, cello and piano performances. Also, the spatiality of the Festival Hall in all of its grandeur and how this and the aesthetics of the performance were part of the storytelling and meaning making process. What then are the possibilities and potential if we apply these same ideas to verbatim court transcripts?

Here, we are not saying that a non-fiction book and a court transcript are the same thing; they are obviously two very different textual artifacts. However, what we are suggesting here is that performance of verbatim legal transcripts, like the reading of Levi, has potential as meaning making, ways of knowing, and the afterlife existence of legal language.

Taking the ideas of performance of verbatim text, discussed above in relation to Levi, and applying them to court transcripts opens a number of potential avenues for the ways in which verbatim legal theatre can contribute to discussions about law.

Firstly, the general public’s understanding and knowledge of law, at least in part, is commonly structured around pop culture and media references to the law, such fictional television crime dramas. The ‘factual’ substance of law and the detail of cases, whilst part of pop culture, are often peripheral to the creative impulses of these dramas, which leads to a loose understanding of legal facts and the operation of law itself. A prime example of this is the often mis-referenced placing of a gavel at the judge’s bench in pop culture representations of the English legal system. A performance based upon the word-for-word operation of law has the potential to ground creative legal storytelling within the reality of the courtroom.

Connected, there are also the pedagogical and educational benefits of performing verbatim legal transcripts. In the classroom, through creative practices, students can in a more accessible and possibly more meaningful way extend and strengthen their understanding of legal concepts and processes. Outside the classroom, verbatim legal theatre can educate the public about legal proceedings, and illuminate legal process in a new light.

On a more critical and/or reflective level, verbatim legal theatre allows for an exploration of the afterlives of these legal texts, often tucked away in dusty archives, or possibly more likely stored on a substantial server, with the attached bonus claim of helping widening ‘accessibility’ to the legal process. These textual testimonies to law, in the literal and metaphorical sense, can be re-imagined through aesthetic creativity and by those performing these legal words, often in ways that challenge the workings of law, its governance, its violence, or empower those who feel marginalised or forgotten by law.

Sean’s doctoral research on law and performance examined, in part, the emergence of verbatim legal theatre and, in particular, verbatim musilegal theatre, where legal transcripts (from both court and parliament) are adapted verbatim into musical score. One example is Donmar Warehouse’s Committee (2017), which took the proceedings of the UK Parliament’s Public Administration and Constitutional Affairs Committee inquiry into the collapse of children’s charity Kids Company and adapted them into song. Another example is Opera Australia’s Lindy (2002), which featured, in part, verbatim transcript from the trial of Lindy Chamberlain for the murder of her daughter set to opera. Sean’s research, recently published in Law Text Culture, explored how these musilegal adaptations amplified the inherent musicality of legal speech in court and parliament.

In Benjamin’s field of interest, transitional justice, performing arts are having an increasingly important contribution to understanding processes of justice, peace and recovery after conflict and/or mass violence. One example in this context of performing law is the project The Congo Tribunal (2015-2017). This project, through a range of art forms, imagined what court proceedings might look like and their implication in the context of international crimes committed in the Democratic Republic of Congo.

In Benjamin’s research, a current area of enquiry is the connections between archived material from the International Criminal Tribunal for Rwanda (ICTR), arts methods and community participation. The ICTR was located in the next-door country of Tanzania and maybe not so surprisingly many Rwandans felt detached and disenfranchised with a process that the international community purported was designed to aid Rwandan society. The 21 years existence of the ICTR (1994-2015) creative a rich archive of material from before, during, and after the genocide against the Tutis, including tens of thousands of pages of transcripts and thousands of hours of audio-visual material of court proceedings.

One of the things Benjamin is currently interested in exploring is the role performances of these transcripts could have to aid local knowledge production, ownership, dialogue and active participation of Rwandans, particularly young people born during/after the genocide.  Words can be very difficult to find, particularly when they entail painful and complex experiences and relationships. Participatory theatre, performing verbatim court transcripts from the ICTR, has the potential to be both a non-verbal form of communication, the embodied performance, and a pathway to dialogue. The performance of archived court transcripts has significant potential to bring these important historical events to life for Rwandans. The words in these transcripts cannot change; however, the people performing them can interpret and bring their own meaning to the way they perform these words.

Understanding verbatim court transcripts as canvases for performance, meaning making, and critical reflection has significant potential. This potential stretches across pedagogy, public awareness and engagement, and research. The critical reflection of those who perform law also casts light upon how those in positions of power utilise law for political and legislative gain, and the interplays of musical and legal rhythms. Applying performance to these legal words has potential to disrupt understandings of law and to empower those whose lived experiences are seized and narrated by law but simultaneously feel marginalised or abandoned by law. Thus, understandings of legal transcripts as historical artifacts requires a radical reimaging in order to fully realise the rich and diverse potential of performing verbatim court transcripts.