2.1 Law as Theatre

The trope of law-as-theatre, writes Julie Stone Peters, is older than the figure of Justice as blind, but just as devastatingly ambivalent. Instead of insisting that Justice, to be impartial, should not see, it insists that Justice, to be effective, should be seen. But the trope of law as theatre is not just an analogy; it is also an antithesis. Justice defines itself against the theatre. Theatre is compromised by its desire to please, its repertoire of tricks and sleights, its masks, wigs and bags of blood. The ‘dispassionate reason, objectivity, discipline, and the sovereignty of the truth’ that is law, argues Peters, should have no truck with such arts, for obvious reasons.Footnote ¹ But this pristine, dispassionate, abstract Law cannot avoid meddling with showmanship. It must condescend to embody itself, to make itself visible, ‘to showcase justice, visibly represent its own force and dignity … deploy the passions of the crowd, produce a theatre for vengeance’ (8–9). So the analogy and the antithesis coexist simultaneously, registering two opposing attitudes. On the one hand, there is ‘legal theatricality (law needs theatre); and legal antitheatricality (law must avoid theatre at all costs)’. The trope, Peters writes, ‘marked these out as antinomies, but also revealed them as, often, perilously proximate. Recognising law as a performance practice, it identified theatre as both a source of law’s power and an embarrassment’ (9). Peters’ latest book, Law as Performance, argues that these antinomies are not just anecdote material, but lie at the definitional heart of legal theory in the West. ‘“What is law?”’ Peters asks, ventriloquising legal philosophers since law began. ‘“Not theatre!”’ she choruses back, still in their voices. But then she adds, mischievously, in her own: ‘Except when it is’ (9, my italics).

In this strikingly original and erudite study, Peters uses the terms ‘theatre’ and ‘performance’ more or less interchangeably, which is not to say that she is not conscious of and discriminating about these words’ different etymologies and semantic range. Early cultures, as she notes, did not have a single word for what we call ‘performance’. Indeed, as Luke Wilson has pointed out, the terms ‘perform’ and ‘performance’ in sixteenth-century legal English are primarily set in conceptual opposition to the ‘promise’ of which they signify the fulfilment.Footnote ² Peters scrutinises a range of other words: ‘hypokrisis’, ‘actio’, ‘pronunciatio’ and ‘delivery’, along with a range of words for audiences and spectators (17). We could say, broadly, then, that Peters is interested in theatre in its performative aspect. As soon as we come on to the history of law as ‘theatre’, however, another term becomes important: rhetoric. Chapter 1, vividly describing the theatricality of the Athenian law courts, identifies hypokrisis as the art of acting, but also as that of legal oratory. So we have two terms, ‘theatre’ and ‘rhetoric’, both of which are associated with, indeed largely defined by, a third term: live ‘performance’ before an audience. And yet neither ‘theatre’ nor ‘rhetoric’ coincides completely with ‘performance’. If performance is an aspect of theatre, so is dramatic composition. And if, as pronunciatio, performance is an aspect of rhetoric, then so is the discovery of persuasive arguments, known as inventio. It is to these compositional or inventive aspects of early modern theatre and rhetoric – which are also in various ways held to compromise the rational and dispassionate workings of the law – that this chapter will in due course turn.

My aim, in this response to Peters’ timely, powerful work, is both to acknowledge its transformative force for legal studies and at the same time to introduce some distinctions that may be of some value in distinguishing discussions of the ‘theatricality’ of law (in the sense of reconstructing law as live performance) from the emergence of a modern understanding of ‘theatre’ as the production of coherent and powerful fictions enacted by characters. The early modern period (1500–1650) is described, in chapter 5 of Peters’ study, as ‘the age of theatre’. If Peters shows how judicial proceedings draw on the performative aspects of rhetoric and theatre, I hope, conversely, to show how, in the ‘age of theatre’, theatre’s distinctive fictionality – every bit as important as the fictionality of ‘the rise of the novel’ – drew on the fiction-generating power of probable argument and inferential reasoning, as taught in legal rhetoric.Footnote ³ First, however, to attend to the argument of Law as Performance.

2.2 Law as Performance

Julie Stone Peters is well known as an academic crosser of literary and legal disciplinary boundaries, combining the writing of prize-winning books on early modern book history with being at the cutting edge of contemporary debates on women’s rights and law as a media spectacle.Footnote ⁴ Yet her work is characterised not so much by boundary crossing as by the investigation of boundaries as generators of antitheses which in turn give rise to definitional desire and disavowal. Peters’ work bracingly confronts all that is disavowed in the definitional boundaries that sustain and produce institutional knowledge. When I used to teach early modern literature and law, I would start my students off with Peters’ 2005 PMLA article, ‘Law, Literature and the Vanishing Real: The Future of an Interdisciplinary Illusion’. This article opened with a bold satire on professional critical desire, an imagined scenario in which literature professors demanded of their legal counterparts real-world effectiveness against injustice, while law professors craved from their literary peers some amalgamation of a razor-sharp deconstruction of truth as metaphor with a warmly empathetic response to human ‘story telling’ and ‘narrative’. The implication was that the illusions of interdisciplinarity that went by the name of ‘law and literature’ were fantasies shaped by what professionals in each discipline felt their own discipline lacked, each distorting the other into the desired antithesis and complement.Footnote ⁵

Law as Performance is similarly bracing in that it confronts and dismantles what is argued to be a defining distinction between law and theatre from the legal point of view. Law has a theatrical dimension, but theatre must know its ancillary place. Law cannot, must not, be reduced to mere theatre. So the official story goes – but Peters shows that, in the end, in the publicity of the court, in those moments in which two advocates argue and present evidence (using every technique of rhythmic speech, appropriate gestures, timely revelations, emotively human props or mocking rituals) mere theatre is exactly what law is. Quintilian, contrasting the listener’s experience with that of the reader, writes that, for the former, ‘everything is alive and stirring, we welcome every fresh thought as it is born with joy and anxiety, and are moved not only by the fortunes of the trial, but the risks of the speakers … In reading, on the other hand, judgement is surer, because a listener’s reactions are frequently distorted by personal inclination or by the noisy cries of the applauding audience’.Footnote ⁶ Peters foregrounds the extent to which law has depended, across the centuries and across different jurisdictions, on these live, collective audience responses rather than on solitary readerly judgement. Auditory and sensory reactions and distractions (whether anticipated by forensic technique or unexpectedly emerging in the trial) shape legal decisions that, once codified or assimilated to the body of knowledge called law, are promptly abstracted and insulated from the crowd-pleasing compromises of their origins.

This analogy-as-antithesis (law as performance, but also everything but) energises Peters’ wide and erudite sweep across Western legal history, 2,000 years of trials, ranging, geographically, from Athens to Rome through Bologna, Toulouse, Innsbruck, Lisieux and Bamberg as well as Paris and London. She begins with ancient confrontations and codependencies, some quite familiar (Plato versus Aristotle; Quintilian’s textbook Cicero), and, moving through legal treatises and trial records of the high and late Middle Ages, reaches sixteenth-century France and the Netherlands and, finally, London with its much-investigated Inns of Court. What distinguishes Peters’ treatment from earlier studies of these confrontations between law and theatre is her methodology. She highlights those aspects of forensic theory and practice that most explicitly acknowledge theatrical uses of bodily movement, signs of emotion, physical props. She is sceptical of legal-historical narratives that accept at face value reforming accounts of a law which has wrested control of trial procedure from the contingency of the publicly accessible live event. She looks, in the official record, for what it does not want to tell us: indications of what the space felt like; the sensory sway of the crowd; the jostling, the cacophony, the emotionally heightened, embodied experience of witnessing the trial’s unfolding in a public space. Legal historians, she notes, have looked to literary texts for this kind of colour, but complex poetic artefacts do not tell us much about real people in real situations. She reads between the lines of ancient, medieval and early modern theoretical texts as well as medieval texts of legal reform and archival records of trials.

Theoretical treatises of forensic oratory, from the Greeks to the Romans, provide explicit instructions in hypokrisis, actio and pronunciatio – how to speak, how to move the body, how to deploy clients and props to most pathetic effect. The early modern period sees the fullest pedagogical revival and development of these techniques, but Peters persuasively insists that medieval legal-rhetorical theory from the eighth to the fourteenth centuries was far from underestimating the importance of actio and pronunciatio, far from uninterested in the body, the visceral, the embarrassing, the emotive. As she comes on to the high and late Middle Ages, Peters confronts and challenges the methodological assumptions of histories that have treated official legal ideology as empirical and experiential. Scholars have identified two moments in early European legal history in which power shifts away from the contingency of communal and public arenas of justice and towards a more authoritatively controlled, scripted and regulated process. The first of these ostensibly occurred when the church and jurists took over in the twelfth century and law ‘became a privileged tool in the hands of experts’ (146). The second, taking place in the late fifteenth and early sixteenth centuries, was influentially characterised by John H. Langbein as the transition, across several European jurisdictions, from public, accusatory criminal procedures to one based on the law of the Roman canon inquisition, an ‘Inquisitionsprozess’.Footnote ⁷ In both cases, Peters argues, the success of attempts to script judicial procedures and to control public access to them has been assumed from the aspirational texts of the reformers, the motivations and aims of which tell a very different story. In 1455, Thomas Basin, Bishop of Lisieux, proposed a scheme for a perfectly functioning trial procedure involving the silent exchange of written documents to replace the noisy, disorderly and temporally distended public trials of the Norman customary courts. Yet his proposals themselves alert us to the inescapable presence of the crowd in places of trial, before and after he wrote. This, Peters shows, is true across Europe in this period, whether those places of trial be outdoor or indoor. And with the presence of this public audience comes the contingency and reversibility of live theatre.

One of the three propositions with which Peters opens her book is that performance, though essential to law, cannot be completely controlled by a script. It ‘has a tendency to take on a life of its own’ (5). In challenging these narratives of procedural shifts from public accusation to private Inquisitionsprozess, Peters reads between the lines of trial records for those moments of the autonomous life of performance, moments in which the official theatrical script fails to deliver its desired effects. The trial and defrocking of Jan Hus in 1415, for example, degenerates into a Noises Off-like farce of revealed backstage business as the ecclesiastical judges engage in a decidedly unslick, not to say cumbersome, series of costume changes. In order to perform the judicial ritual of defrocking Hus, the bishops had first to get him into his frocks, which meant several senior clergy wrestling the heretic into the elaborate vestments of ecclesiastical high office – alb, amice, stole, cincture, maniple and chasuble – only in order to wrestle them all back off again. And while they were about it, Hus took the opportunity to subvert the iconography of the event by elevating his arms and addressing the crowd in full sacerdotal regalia, possibly appearing to be performing the Mass in the person of Christ himself.

This is a powerful reading, brilliantly illustrative of the book’s central thesis. Peters’ wide-ranging exploration of the antinomies of law-as-theatre (the analogy that sparks antitheses) seems to pay off again and again. Peters’ book will undoubtedly be generative for legal, social and cultural historians as well as literary scholars of early modern England. To take two recent examples of work on English law and literature by younger scholars: Clare Egan’s study of provincial libels emphasises how carefully the court of Star Chamber framed libellous words in order to make ‘sure the material contained was not laughed at in the court itself’, testifying to the unruly power of performance to disrupt legal proceedings.Footnote ⁸ Lucy Clarke’s work on the role of performance in constituting magisterial authority at a local level is similarly supported and enriched by Peters’ central trope of law as performance.Footnote ⁹

Yet this ingenious central rhetorical trope, illuminating as it is, may nevertheless be a little too neat for its own good. In equating theatre first with performance and second with rhetoric, Peters’ book may be eliding complex and incommensurable differences that matter. I do not think these elisions detract in any serious way from the book’s central argument about the theatricality of law in ancient, medieval and early modern Europe. But I do think that noticing them helps explain why what Peters has to say about law ‘in the age of theatre’ (the early modern period) seems largely unilluminating about what was distinctive and new in that period’s achievements in theatre itself, as opposed to in the theatricality of law. And the period’s achievements in theatre – that is, in dramatic writing – would have, in the long run, a more significant legacy for poetic and legal meaning-making in the West.

2.3 Not Just Performance: Rhetorical Invention and Theatrical Fictionality

It is, then, worth unpacking the differences between early modern theatre, rhetoric and performance, not because these are ever entirely separable practices but because, on the contrary, their necessary interaction and interdependence cannot be properly appreciated unless we consider their separate qualities and see how they work together. I will sketch out how we might supplement Peters’ account of law’s theatricality in terms of rhetorical pronunciatio and courtroom performance with another account of how theatre, borrowing and adapting legal rhetoric’s techniques of inventio, became imbued with powerful qualities of fictionality and credibility, acquiring a new capacity to elicit an audience’s imaginative participation in the bringing alive of invented stories and fictional characters.Footnote ¹⁰

The Renaissance of theatre in early modern Europe was the effect of a revival of forensic rhetoric as well as topics-logic or dialectic. We could, to borrow Katrin Ettenhuber’s term, say it was the effect of a revival of ‘the rhetorico-logical art of language’ adapted to the practice of composing and enacting powerfully enduring theatrical fictions.Footnote ¹¹ On the rhetoric side, then, we’re not talking solely about those aspects of rhetoric that Peters identifies most closely with theatre and performance (hypokrisis, actio, pronunciatio). Rather more significant for the composition of dramatic plots was rhetoric as inventio and dispositio, the invention and emplotment of arguments. The dramatic masterpieces composed in the sixteenth century are less vehicles for improvisatory performance than invitations to an audience to infer a whole fictional world, incorporating back story and offstage. These plays aim, through ingenious plot composition, to elicit a profound and complex emotional response to a whole enacted, invented narrative. This was a truly new achievement in the European vernaculars: nothing like it had existed since the drama of the ancient world. I have already mentioned Peters’ third opening proposition – that ‘performance can take on a life of its own’. This proposition pinpoints precisely how ‘law-as-performance’ is unlike the theatre of the European Renaissance. For in the ‘age of theatre’ dramatists desired performance less to take of an improvised life of its own (as it had traditionally done) than to bring into being the more complex poetic life of the play in the audience’s imaginations.Footnote ¹² When Hamlet tells the players to ‘let those that play the clowns speak no more than is set down for them’ because talented improvisers can obscure ‘some necessary question of the play then to be considered’, he expresses theatre’s new concern that the precise poetic under-specification that invites audience to conjecture and imagine (‘some necessary question of the play’) should not be drowned out by unscripted performance practice.Footnote ¹³

2.4 Renaissance Theatre’s New Fictionality: from Italy to England, 1500–1650

So what, precisely, was new about theatre in sixteenth-century Europe? Most of what we take for granted about much theatre today – the fact of theatre’s fictionality, the fact that plays and TV and movie dramas enact stories about invented characters whose motives and feelings interest us, the fact that we imagine a ‘world of the play’ beyond the stage or fictional spaces beyond what the camera shows us and that we infer or project a coherent order of events on to the mix of representational effects that we see – all these ordinary assumptions of theatrical, cinematic and televisual drama, are the legacies of sixteenth-century innovations in theatre. And it all started in Italy. ‘Italy’, as Louise Clubb has written, ‘was unique in producing the technology of modern theatre’. And she goes on:

Adapting the plot structures of Latin comedy, Ludovico Ariosto and his imitators and followers produced comedies that were modern, recognisable fictions of contemporary Italian urban life, ‘presenting fiction on-stage so as to capture and embody in the vernacular the causality and illusion of quotidian reality’.Footnote ¹⁵

Prior to the Italian avant-garde experimentalism of the early sixteenth century, European vernacular theatre – the sacre rappresentazioni of fifteenth century Italy, say, or Corpus Christi or penitential drama of fifteenth-century England – was of course already doing profound and significant things with performance. The Corpus Christi plays, as Sarah Beckwith has persuasively demonstrated, performatively enacted the body of Christ as a divine jurisdiction exercised through community reconciliation.Footnote ¹⁶ Yet these culturally powerful forms of theatrical performance lacked fictionality – they lacked any capacity to invite the audience to infer or imagine an implied world offstage, or action happening between scenes. Late fifteenth-century English drama displays few techniques for ‘conveying offstage action and extramimetic locations’.Footnote ¹⁷ When actors go offstage, they do not enter an imagined elsewhere that is part of the play; they simply cease to be until their next performative appearance. Peter Womack, referring to the late fifteenth-century play Mankind, puts it thus:

This is not a criticism of fifteenth-century sacred drama, but a recognition of its distinctive kind of theatricality. As sacramental drama, there is no imaginative dimension to the offstage, writes Womack, because ‘the on-stage space is complete’ as an allegory of human salvation in which the audience is already implicated.Footnote ¹⁹ Womack’s analysis enables us to distinguish a late medieval theatrical culture, with its ‘always dominant discourse of the performance itself’, from the radically innovative fictionality of the early modern theatre that succeeded it. Early modern or Renaissance theatre offers us fictions and characters (Hamlet, Falstaff) to whom later generations have attributed a ‘continuing life’. Early modern theatre also produces fictional worlds, imagined theatrical space. One of the assumptions of modern theatregoers, as Womack says, is that of the metonymic relation of onstage and off. We assume that ‘if the stage is a drawing-room, the characters are entering it from the dining-room; if it is a street, the upstage door leads into somebody’s house’ and so forth.Footnote ²⁰ But this assumption – which Womack names ‘fictional adjacency’ – is predicated precisely on the further assumption that what a play presents is a coherent fictional world. And that, in turn, is an assumption inherited from the achievement of European theatre in the sixteenth century.

Peters shows compellingly how public pleading in legal trials inevitably has qualities of live theatre which open it to the contingencies of performance. Conversely, however, I want to show how sixteenth-century theatre became more powerful as fiction. The story I will tell is partial; it is focussed on what Italian comedy conveyed to England by way of a mastery of vivid techniques for engaging the audience’s imagination in the plot. Although this is just one strand of how European theatre developed in the sixteenth century, it is significant and pertinent partly because it drew on forms of argumentative proof originally formulated for the law courts, codified in Roman forensic rhetoric and adapted in the ‘forensic disposition’ of Roman New Comedy. Ludovico Ariosto, the great innovator of early modern theatre, made dazzling use of the ‘forensic disposition’ of Terence and Plautus’s comedies: that is, in actions that seem always to anticipate litigious consequences, in ‘argumentation that borrows the strategies of forensic discourse: above all, in a readiness to formulate attacks and defenses … to rehearse evidence and to supply proofs’.Footnote ²¹ Ariosto’s plots involved young men’s attempts to get access to courtesans or citizens’ daughters by various forms of entrapment, impersonation and credit fraud, deploying the kinds of proofs that Quintilian, after Aristotle, called ‘artificial’ or ‘technic’ – that is, the rhetorico-logical strategies subsumed under the general term of ‘arguments’.Footnote ²² We need to see these strategies not just as ‘let’s pretend’ versions of real legal strategies of proof, but as the resources of a new theatrical fictionality predicated on the audience’s readiness to infer, from characters’ uses of probable arguments, all the backstories, motives and hidden truths of the play’s story.

For example, Ariosto’s first comedy, La Cassaria (1508) involves a plot of legal entrapment adapted from Plautus’s Poenulus.Footnote ²³ To help a young man extract the courtesan he loves from the hands of her pimp, the young man’s servant, Volpino, plots to plant a coffer full of valuable merchandise in the pimp’s house so they can accuse him of stealing it. But by Act 4, the scheme has gone wrong: the young man’s father and owner of the coffer has come home early, so Volpino starts to improvise, accusing the pimp of stealing the old man’s coffer. The old man is deeply sceptical, reluctant to go to the authorities without more proof, but Volpino confidently lies. ‘If I come along with you, I’ll present the governor with so many indications and conjectures, so much proof (tali indizii e conietture et prove) that even if he didn’t want, he couldn’t help but believe you’.Footnote ²⁴ Volpino’s conjectures and indicia (a term Sir Thomas Smith was later to gloss in the English legal context as ‘tokens’ or ‘evidence’) turn out to be ingeniously detailed and vividly visualised narratives designed to elicit the false inferences which drive the engine of the comic plot.Footnote ²⁵ Important to grasp, however, is the homology between these comic uses of artificial proof to devise plausible but false narratives and the newly illusionistic power of theatre to make audiences think they have seen things they have not seen, and to infer and imagine the fictional world of the play. The poet does not lie, but the lies of his characters produce the knot of confusion and false surmise to which the audience must attend and in making sense of which it becomes imaginatively involved.

Audience attention, inferring causes and motives, thus begins, with Ariosto and his imitators, to contribute to a new imaginative participation in making theatrical fictions feel realistic or verisimile. Writing to an actor friend, the dramatist Giovanni Battista Giraldi Cinthio proposed, controversially, that a newly invented or fictive (finta) tragedy might even be more moving than one based on history, since the spectator of a fictive tragedy will be aware that the only way he can know the story is through this theatrical representation, and so will pay very close attention: ‘Aware that the action about to be represented can be known only through the representation’, Cinthio speculates, ‘the spectator no sooner tastes the plot and thinks that it might be ingeniously constructed (ingegnosamente composta) than he concentrates his attention and tries not to lose one word’.Footnote ²⁶ It is thus auditors’ own imaginative participation in following the intricate situations enacted before them – inferring connections, imagining motives, causes and emotions – that gives the fiction credibility and life. That a fiction should seem verisimile, like truth or like life, is not an effect of its ‘copying’ some concept of everyday ‘reality’, but rather of what Terence Cave calls ‘bold and highly precise forms of underspecification’ which afford ‘limited but suggestive indications about a character and his or her behaviour that would allow us, in the case of a real person, to infer their cognitive profile and anticipate their likely utterances or actions’.Footnote ²⁷ Or, as Benedict Robinson puts it, fictionality demands probability, because ‘every inference from actions to passions or from passions to actions depends on a socially constituted sense of what is probable’.Footnote ²⁸ In early Italian commedia erudita the complication of the intrigue invites auditors to be proactive in inferring and anticipating, so that although this theatre can seem to us to be mere plot and no psychology, its particular precise forms of under-specification were paving the way for the greater characterological interiority we associate with Shakespearean theatre. Cinthio accordingly derives effects of verisimilitude from the poet’s care in tying the ‘knot’ of the play, by which he says he means ‘the weaving together or composition of the story’ (la testura, ò la compositione della fauola) and then untying or resolving it so that, the story being brought to its end, the mind of the auditor or reader (l’animo di chi ascolta, ò di chi legge) is fully satisfied; false inferences will be naturally explicated and resolved without any deus ex machina other than the artifice of its unfolding. This does not always happen in ancient drama, says Cinthio, but Ariosto’s Cassaria, in that ‘it almost naturally unties itself, surpasses in artifice all his other comedies’.Footnote ²⁹ Note too that the kind of attentiveness Cinthio describes is that of audience and reader indiscriminately (chi ascolta, ò … chi legge), overriding Quintilian’s previously cited distinction between the groupthink of listening and the independent judgement of reading.

Moreover, this newly discovered theatrical power of inferential plotting and artificial proof intersected with a new way of producing imaginative or fictional space. In the Italians’ avant-garde comedy of the sixteenth century, when an actor goes offstage, he is not (as in Mankind) simply absenting himself as actor; for, as an invented character he is engaged in vividly producing the ‘elsewhere’ within the fiction – perhaps an interior space such as a young virgin’s bedroom or a convent full of excitable nuns, or another part of town, where there are pubs and market stalls, pigeon sellers and officers of the law. Of Ariosto in this respect, Louise Clubb writes, ‘what really electrified audiences in 1508 and 1509 were his settings, namely contemporary Italian cities: his second comedy, I Suppositi, brought onstage the bourgeois Ferrara of merchants, customs officers, and travelers, with the offstage court invoked as a guarantor of order’.Footnote ³⁰ The brilliant, illusionistic realism of Ariosto’s theatrical depiction of Ferrara had been remarked by the poet’s contemporaries too. In 1519 Tomà Lippomano wrote of Ariosto’s I Suppositi, ‘The comedy was such, that it feigned a Ferrara’ (che’l fu fento un Ferrara).Footnote ³¹ Critics have discussed the innovative sets, involving houses and doors, that contributed to the ‘citta ferrarese’.Footnote ³² But the city was also feigned or fictionalised in language, in speeches made by characters about their actions and whereabouts in between their appearances onstage. The mistaken impression often given by anglophone criticism of Italian Renaissance comedy is that its adherence to neo-Aristotelian ‘unities’ of time and place was a mechanical, rule-bound restriction of imaginative vitality. ‘Fixed-locale staging restricts the action in certain ways,’ writes Alan Nelson. ‘All conversations, including the most private must occur outdoors.’Footnote ³³ But if we reverse Nelson’s thinking we can see how the fixed locale staging makes the audience’s imagination work overtime. It contributes to the electrifying effect of seeing on stage ‘a Ferrara as precise as the real one’, producing a vivid sense of the city’s streets and shops and of the unseen the interiors of houses.

In Ariosto’s La Lena (1528) we have such an effect in Act 2, scene 3, when a servant, Corbolo, who has been dispatched by his young master to buy some nice fat quails or pigeons for a feast at Lena’s, describes his travails seeking vainly among the delicatessen shops (pizzicagnoli) in front of the Palazzo Ducale. The pigeons were all so scrawny, he says, they looked as though they had had the quartan fever, but then, at the porta del Cortile, the archway now known as the Volta del Cavallo, some of the Duke’s gamekeepers (uccellatori) were waiting to go into the Gorgadello – the local pub. One of these sold Corbolo a pair of decently plump pheasants on the condition that he would keep the transaction secret. ‘The statue of Duke Borso will not be quieter than me,’ promises Corbolo (‘Non è la statua / Del duca Borso là di me più tacita’), referring to the statue of the Este Duke towering above the very Volta del Cavallo beneath which we imagine this conversation to take place.Footnote ³⁴ This is an audacious joke: for it is the silence of the ruling Este family – in the form of the complicity of the ducal decrees which prohibit the sale and consumption of game – that creates the dearth of edible fowl in the shops by the Palazzo and fuels the lucrative black market exploited by the Duke’s gamekeepers. Corbolo’s narration of his voyage in search of the ingredients for the feast therefore presents to the Este family seated before the stage in the Sale Grande of the Palazzo Ducale not ‘an opulent, well-regulated Ferrara’, but a city ‘inferior to all others’, corrupt and full of secrets.Footnote ³⁵

Even more electrifying, however, were the implications of this inferential plotting for the imagining of what characters might be getting up to when not even present or embodied by actors onstage. La Lena offers a wonderful example of the libidinal possibilities of the inferential plot on the fixed locale stage in the little episode of a dispute over a barrel. In Act 4 of the comedy, all sorts of people – creditors, law officers, surveyors, tenants, relatives and friends – seem to have converged just inside and outside of the stage exit signifying the house of the eponymous Lena and her slothful, penurious husband, Pacifico. It seems that the house’s owner, their neighbour, Fazio, has decided to put it on the market (hence the surveyor) and the rumour of this has made Pacifico’s many creditors rush to the house to reclaim what is owed to them before sale. Among the disputed objects is a barrel which a relative of Pacifico’s claims he lent Pacifico last wine harvest to get rid of a bad smell, but now he’s worried it will be seized by debt collectors and wants it back. An altercation ensues, temporarily settled by Fazio, who says he’ll adjudicate the case later and orders the barrel to be rolled into his house. But the barrel is not – at least in the audience’s imagination – empty. For the audience must (if they have been paying any attention) infer that it contains the nearly naked body of a lustful young merchant’s son called Flavio who has, since the play’s opening, been trying to gain access to Fazio’s closely guarded daughter, Licina. Following the usual contours of Roman comedy, La Lena opens with Flavio on the doorstep of Lena’s house, promising Lena money if she could get him access to Licina. Annoyed that he does not have the cash, Lena makes Flavio undress so his clothes can be sent to the pawnbrokers. At this point, Flavio undresses and goes offstage – that is, into the imagined interior of Lena’s house. But when news comes in Act 3 of Fazio arriving with a surveyor to check out Lena’s house, a panicked discussion ensues about where to stow the naked Flavio so Fazio will not see him. It concludes with a plan to stuff him into an empty wine barrel that someone left in the house. The audience never sees this action; however, when they later see Fazio loftily ordering this same wine barrel to be trundled into his house, what the audience ‘knows’, or imagines they know, is that Flavio will soon be making love to Licina – though of course the actor playing Flavio has been unseen since Act 1 and will never reappear until the final applause at the end of the play. The whole momentous sexual encounter announced by servants in the last scene is created by the audience’s imagination, activated by their attentive following of the plot.

This unprecedented new potential for activating audiences’ imaginations – including their libidinal imaginations – was certainly not lost on English poets and playwrights later in the sixteenth century. Nor could they have failed to notice the logico-rhetorical basis of Italian theatrical fictionality and its affinity with forensic strategies of proof. Writing to lawyer William Fleetwood, to whom he dedicated his translation of Cinthio’s Epitia, George Whetstone condemned English playwrights for neglecting plot probability. The English playwright ‘groundes his worke, on impossibilities … not waying, so the people laugh, though they laugh them (for theyr follyes) to scorne’.Footnote ³⁶ Yet while Whetstone implicitly lauded the probability of Italian plots, he lamented their lewdness: ‘at this daye, the Italian is so lasciuious in his cōmedies, that honest hearers are greeued’. Whetstone wrote these words a decade or so after Fleetwood had likely been in the audience of one such comedy, George Gascoigne’s translation of Ariosto’s I Suppositi (1509) performed at Gray’s Inn in 1566.

Gascoigne’s choice of I Suppositi was a daring one: even now, his play seems surprisingly sexually permissive for the period, far less concerned with female chastity than any of Shakespeare’s plays. I Suppositi involves an amorous intrigue, announced in the opening words, when a Ferrarese citizen’s daughter comes onstage and confides to her nurse ‘in the street’ (because, the nurse says, indoor walls have ears!) that a household servant, Dulippo, who has been her lover for the past two years, is really a merchant’s son called Erostrato who wants to marry her. This shocking revelation is at once a joke about this avant-garde theatre’s not being able to show an interior scene and an announcement to the listening audience that in this new style of theatre their presence is going to be ignored. The nurse’s first words, as the two step out onstage before the listening audience, are ‘Here is no body, come foorth, Polynesta, let us looke about lest any man heare our talke.’Footnote ³⁷

The lawyers in the audience would surely have burst out laughing at this risqué opening. Nor, as they attended to the plot, could they have failed to notice the way that the play’s ingenious ‘untying of the knot’ of supposes, or false inferences, was itself dependent on proofs that were equally suppositious, conjectural and possibly false, even in their supposed legal denouement. The young Sicilian student Erostrato has, on arriving in Ferrara, changed identities with his servant Dulippo so that he can enjoy Polynesta while Dulippo keeps house in his place and courts her officially, fending off a rival suitor, a rich lawyer, Cleander. But when Cleander ups his offer of a dower, the boys need to fake a counter-offer, so they con a passing Sienese merchant into assuming the identity of Erostrato’s father, Philogano, and signing a bond. Naturally it all goes horribly wrong in Act 4, when the real Philogano arrives in Ferrara only to be denied admittance and confronted with a his Sienese doppelganger and his old servant claiming his son’s identity. He assumes the worst: his son must have been murdered by this gang of imposters.

The question then turns on problems of proof: how, when witnesses in Ferrara support the claims of the imposters, is Philogano to prove his own identity? Philogano’s servant Litio spends a lot of Act 4 slandering Ferrara for its falsehood and lack of judicial safeguards: ‘have you not often heard tell of the falsehood of Ferrara’, he asks, berating a native of the city: ‘in deed your officers are most to blame, that suffer such faultes to escape unpunished’. The Ferrarese citizen defends the judicial system: ‘we have potestates, we have Judges, and above all, we have a most juste prince, doubt you not, but you shall have justice if your cause be just’; but Litio is again sceptical, for how will the matter be proved? ‘If there be many such witnesses in this country, men may go aboute to prove what they will in controversies here.’Footnote ³⁸

Litio’s scepticism has the last word, for the lawyer summoned to help Philogano is none other than the rival for Polynesta’s hand, Cleander. Cleander is as perplexed by the problems of proof as everyone else: ‘Yea, but how will ye prove that he is not Erostrato, having suche presumptions to the contrarie?’, he asks, ‘or how shal it be thought that you are Philogano, when an other taketh upon him this same name, and for proofe bringeth him for a witnesse, which hath bene ever reputed here for Erostrato?’Footnote ³⁹ The question seems irresolvable, certainly within the scope of the play, when it conveniently dawns on Cleander that Philogano’s servant Dulippo must be none other than the son, Carino, whom he lost at the battle of Otranto. Recognitions of this kind, as Terence Cave has shown, always have a strong whiff of scandal in their facile reliance on easily falsified signs and tokens.Footnote ⁴⁰ So it is no surprise that when Cleander exclaims, ‘What nedeth me more evident tokens? this is my sonne out of doubt whom I lost eighteen yeares since, and a thousand thousand times have I lamented for him: he shuld have also a mould on his left shoulder,’ Litio sceptically and obscenely replies, ‘He hath a moulde there in deede: and an hole in an other place too, I woulde your nose were in it.’Footnote ⁴¹ Ariosto’s prologue explicitly links the ‘evident tokens’ of this resolution to the deceptions made possible by suppozioni, or merely probable and possibly false inferences. The play, his prologue announces, is called Suppositi because it is full of ‘suppozioni’. The nuances of the Italian word suppositi range from supposition to substitution and further to ‘placed under, after or behind’. As the prologue slyly announces that children have been ‘per l’adrieto … suppositi’ (‘substituted in the past’, or ‘exposed from behind’) so sodomitical innuendos accumulate alongside disparaging references to logical sophistry. Supposes are evidently deeply scandalous, not to be trusted and neither is the brilliantly vivid fiction of the play.Footnote ⁴²

Gascoigne’s Supposes thus marked the arrival in English of a new kind of theatrical fictionality. When Shakespeare adapts the Supposes plot as the subplot of his The Taming of the Shrew, he acknowledges its illusionistic realism by having its powerful fictionality dispel the embryonic fiction of the induction, which dramatises the common anti-theatrical complaint that boys playing women’s parts incited men to lust. As Christopher Sly beckons the cross-dressed page Bartholomew to come to bed with him, the players intervene with a comedy – The Taming of the Shrew – which forever defers Sly’s lust for the boy player; Sly and the boy player simply disappear and with them the anti-theatrical prejudice. But in splicing the Supposes plot of clandestine courtship with a plot of successful wife-taming, Shakespeare defeats the anti-theatricalists by containing, disciplining and even ‘beshrewing’ the sexually permissive implications of the Ariosto–Gascoigne plot of erotic subterfuges.

The dazzling intelligence of Shakespeare’s solution to the scandal of Supposes should not prevent us from seeing its connection with the bumpy ride Gascoigne’s play had on first publication in 1573, when it was called in by the High Commission (who included William Fleetwood).Footnote ⁴³ Gascoigne published a ‘reformed’ version of the text in 1575 and in the same year reformed the plot of Supposes itself by rewriting it as a play called The Glasse of Government in which the amorous adventures and impostures of students in the city of Antwerp are detected and severely punished by a diligent magistrate. A whole scene is devoted to the magistrate’s forensic examination of the parasite Eccho, whom he suspects but cannot prove to have ensnared the students and made them customers of the prostitute – ‘I haue examined them’, he later worries, ‘but truly I can not finde hitherto any proofe against them, whereby they ought to be punished’. It is only by going over events in the first two acts with the boys’ tutor that the magistrate uncovers the lies – or ‘supposes’ – that give him ‘good cause to punish Master Eccho’ while the boys themselves meet ignominious ends, one hanged and the other whipped and left for dead in a village outside Geneva. The audience is finally invited not to applaud, but to wring its hands. Gascoigne dedicated this extremely grim play to William Fleetwood’s friend and fellow High Commissioner Sir Owen Hopton.Footnote ⁴⁴

The story I have been tracing is, as I have said, only one strand in the history of how the balance between the performative and the fictional in European theatre changed in the sixteenth century and how the rhetorico-logical strategies of argument, drawn from Cicero and Quintilian and from Roman New Comedy, informed new inferential plot structures which made audiences proactive in anticipating and imagining (or supposing) likely outcomes. The strand I have emphasised is that of commedia erudita, but there are, of course, many others. There is not scope here for more than a sketch of how Shakespeare’s playwriting built on the foundations I have described. Briefly, Shakespeare worked out an ingenious way of dissociating the inferential techniques of the Italian intrigue structure – so effective for engaging the audience’s imagination in producing the fiction – from unavoidably libidinal conclusions. Where in Italian comedy the emplotment can lead the audience to imagine sexual activity just offstage, Shakespeare’s circumstantial dramaturgy allows for such possibilities, but in place of sexual explicitness offers figurative proofs that require construal or that are irresolvably ambiguous along a fault-line between speculation and fact. Things may or may not have happened; there are doubts, suspicions, hallucinations – but it may all be just in someone’s head. A good example is Shakespeare’s Comedy of Errors, probably performed at Gray’s Inn in 1594, which features a husband locked out of his house, but ensures that while he nearly goes mad thinking his wife is playing him false, an interior scene shows the audience that she is chaste and innocent.

Shakespeare thus also dissociated the inferential technique of the Italian comic plot from its dependence on Italian innovation in scene design, on the fixed-locale stage and temporal unity. This is not to say that Shakespeare simply abandoned, because he did not need, the ‘rules’ of the neoclassical unities. As I have argued elsewhere, constraints of time and space on the Italian stage were not so much rules as prompts to new forms of inferential and imaginative activity recognisable as a new dramaturgical resource. Shakespeare and other dramatists of the 1590s and 1600s did not ignore or reject these. What Shakespeare did was to adapt the inferential value of temporal and spatial specificity by developing a drama in which time and place are ‘circumstances’, that is, topic questions structuring our experience of the play. Circumstantial questions of time, place, motive and manner are also constantly deployed by characters in ways which deliberately invite audiences to imagine their inner lives, and which give specificity and reality to the world of the play.Footnote ⁴⁵ This is rhetoric as inventio contributing to theatre’s fictionality.

2.5 Rhetoric as Invention: The Work of Similitude in Law as Performance

In her interpretation of the Dutch engraver Crispijn de Passe’s image of Rhetorica (c. 1599) Peters perhaps comes closest to an elision of the contribution of rhetoric as inventio with its contribution as performative technique. De Passe’s engraving shows a female figure holding a scroll, her head turned towards the viewer while her body is turned the other way, to the left of the image. The background is an urban scene, divided in two. On the right, two men earnestly argue a legal case, while on the left, a scene is being played at the theatre. Rhetorica’s striding out to the theatre on the left, stepping across what Peters identifies as Rome’s Cloaca Maxima, illustrates the image’s caption, which reads, ‘If I say what is to be said well, coloring the words, any cause is to be made good through my eloquence’ (223). In the scene’s division between law and theatrical performance, the latter – identified with Rome’s sewer – has won. In Peters’ interpretation, de Passe is identifying theatrical performance with law’s power to make the worse seem the better cause. But if the moral is that law-as-truth is being subverted by law-as-rhetoric, then surely subversion takes place as much at the level of rhetorical invention and theatrical fictionality as it does at the level of performance. It is by the skilful invention of arguments, by the rhetorico-logical art of language, that the worse may be made to seem the better cause. This art of rhetorico-logical argument is, as I have shown, also fundamental to the rise of a theatrical fictionality – a theatre of supposes and surmises. This is a theatre which, though it exploits the uses of deception and false inference to engage the audience’s imagination, is capable of dramatising and exposing law’s venality and is true in its depiction of human passions.

Julie Stone Peters’ colleague at Columbia Kathy Eden published a book in the same year as Peters’ Law as Performance, called Rhetorical Renaissance, and the cover of this book is adorned by another female figure of ‘Rhetorica’. This Lady Rhetorica, an image by Mantegna (1431–1506), is not stepping over a sewer to head to the theatre. She is a warrior queen brandishing an unsheathed sword. Among Renaissance humanists Lady Rhetorica could also, as Eden acknowledges, be portrayed less flatteringly as a courtesan, a meretrix. But even in that guise she was a mistress of debate, overthrowing powerful statesmen with her arguments, her skilful deployment of such forensic techniques of proof as status theory, refutation and similitude.Footnote ⁴⁶ Julie Stone Peters’ book is overpoweringly persuasive partly because of the way its central figure of similitude – ‘law as theatre’ – generates its own antithesis. She uses it to challenge older legal histories by a technique not unlike that used to such great effect in ‘Law, Literature and the Vanishing Real’. In the claims of philosophers of law, the texts of legal reformers, the efforts of officials to control the trial script and excluded the disorderly crowd, ‘performance’ emerges as something like the repressed in psychoanalysis. Law disavows its inevitable dependence on performance practice. This is a brilliant, powerful argument. We could, without discrediting it, however, also appreciate it as the effect of Peters’ rhetorical artistry, her exploitation of the affinity that similitude has, as a mode of proof, with techniques of refutation, sharpening, as it does, our perceptions of difference and dissimilitude. It is in Kathy Eden’s book that we learn of the development of similitude in Roman forensic rhetoric and in humanist preaching, law and poetry, from Socratic techniques of refutation.Footnote ⁴⁷ ‘“What is law? … Not theatre!” Except when it is.’ Julie Peters’ brilliant central antithesis, derived from the similitude of law as theatre shows that the power of rhetoric – and therefore its threat to law as pure, abstract truth – lies not just in theatrical performance, but in the invention of figures and tropes that shape arguments, form thoughts and produce imaginatively compelling fictions. I am entirely persuaded by what Peters says about law’s relation to theatrical performance from ancient, through medieval to early modern times. My act of desynonymy – insisting that rhetoric, theatre and performance are not substitutable for one another – while subtracting nothing from Peters’ dazzling argument, makes a bit of room for thinking about its implications for the history of literature, including theatre, and for the longer-term implications for trial by social media in the present day.