Staging Law Outdoors

The study of law suggests that its performances, largely through the format of trials, take place behind the closed doors of its offices and courtrooms. Little of the exterior would seem to intrude upon its routines and, vice versa, little of what might constitute law’s performativity occurs outside of its bounded architectural habitat. Yet this has not always been the case. Numerous examples of outdoor performances provide a rich study into the siting of legal performance. They direct our attention away from the familiar environments in which law’s monumental and bureaucratic presence is most directly felt. Hitherto, no study has taken place of those institutional performances that historically took place in the outdoors. The argument presented in this chapter is that it was the outside that provided the initial stage and staging of law. Asserting the presence of law across the various and remote parts of the realm required performances of its majesty on the very surface of the earth. It required acts heralding, inscribing and publicising common law as the law of the land and so it was the land that had to become the physical platform and the scene of its delivery. The evolution of common law depended upon the rudiments of landscape, on the plotting of the countryside, and on the elemental matter of the earth. Such features formed a stage on which the emergence of common law not only took place but was very much performed.

It is as well to note that from the perspective of a pre-common law history, customs that were eventually assimilated into early common law were already, and in the main, matters of the land. The materiality of the earth established customs as regional, local, agrarian, riparian, of the forest and of the soil. Feudal relations revolved around land usage. For early common lawyers, the spirit and antiquity of customary laws initially festered in and were inherited with the territory. For Coke, it was earth that held the memory of the law. Interred in England’s soil were the bones of common law sages that had survived ‘the worm of oblivion’.Footnote ¹ Rights and customs not only subsisted in the soil. They were also activated and reactivated through heavily symbolic performances that took place upon the land. Consider, as an initial example, the ritual practices around livery of seisin in which land was passed from one title-holder to another in ‘solemn ceremony’.Footnote ² Completion of conveyance could not be perfected until both parties met on the land and ‘a carve of land be delivered to the other party’. The symbolic transfer of a carve or clod of land (sometimes substituted by a twig) is what entitled the new owner to be ‘seized of the land’. It was, however, the grounds of the property itself that mattered and that became both stage and medium for the transmission and transfer of all the rights and appurtenances that inhered therein.

In shifting the legal stage from inside to out, the claim is that a new perspective on law emerges. It is a perspective that has links to an observation made by Julie Stone Peters that often, and in spite of the law’s control of its own performances, a more earthly and insurgent drama manages to break through the legal artifice. This is given exemplary expression in her account of a judicial trial by battle held in 1571.Footnote ³ The duel is performed on Tothill fields, where scaffolds were erected for onlookers and a dais raised for the judges and the Chief Justice of Common Pleas, who had decamped and reconstituted their court in open air. The outdoors is, quite obviously, a highly practical venue for men of steel to take ten paces back and ‘fight until the stars appear in the evening’. It is, nevertheless, symbolic of law’s return to outdoor locations. It ought to be remembered that the Court of Common Pleas ordinarily sat in its fixed location at Westminster Hall. However, prior to the constitution of the Curia Regis by Henry II, and, certainly, prior to Conquest, the court sat al fresco. Other descriptions of Naylor’s flamboyant character and the theatricality of his retinue are well attended to by Peters.

One point, however, deserves further attention. On his way to Tothill fields, Nayler (along with his retinue) pauses outside Westminster Hall. None of the accounts give any reason for the pause, and, perhaps, it was simply a matter of respect for the institution. Nevertheless, a pose was adopted, one that constituted a rhetorical caesura in theatrical form and allowed the retinue to view the court of law from the outside. There was, in other words, a symbolic reorganisation of legal resources, reducing the law to a mere phenomenon of architecture. So that what might appear as performative obeisance could also be regarded as an audacious and impudent objectifying of law, as if by adopting an external position, and marching past the building, there is an assertion (or an attempt at an assertion) of an exteriority to law. The outside – the earthy and the quotidian – may threaten and challenge legal authority. It also threatens the presumption that law is an immobile and intransitive institution that fails to move either in time or in tune with the earth. An appreciation of outdoor legal performances might be read, or unearthed, not simply as a corrective counter memory to institutional stagecraft but as a part of its repertoire that, while forgotten, subsists deeply rooted within the genealogy and ontology.

The duel at Tothill fields is not the only mention of outdoor events in Peters’ book. Elsewhere she emphasises the embedded and public nature of outdoor trials held ‘at hills, at columns, crosses, statues, or bridges; in tents … or in the open market square’.Footnote ⁴ Reference is made to ‘Law Days’ – days set apart from the quotidian – held outside the city of Hereford and on Cutthorne Mound outside Southampton.Footnote ⁵ These outdoor courts join a vast typology of other legal events, whose provenance lies in caliginous ages, and that were held outdoors. Common law, in part, owes its institutional character to customary formalities of open-air moot hills, ‘thing’ assemblies, wapentakes and burghemots. Even those institutions that were eventually harboured within architecturally safe environments, such as piepowder, manorial and hundred courts and halimots, were initially held as outdoor public events. In these theatrical environments, the use of the earth becomes loaded with significance in order to construct a sense of make-believe.

In more general terms, we might note that as platform and as ground, the stage is more than a merely terranean under-structure, and provides the legal drama with more than the boards upon which actors tread.Footnote ⁶ In any performance, it is the stage that allows for the allocation of props, bodies and action during performance and becomes as significant as dialogue, character or plot. More essentially, it provides a medium for foundation. This sense of the stage as a medium for foundation emerges in Martin Puchner’s analysis of theatre’s existential problem with locality and place.Footnote ⁷ Puchner draws links between theatre’s concern for ground and the philosophical project of foundations for metaphysical norms. The rostrum, raised above the level of the floor, situated in indoor theatre venues, as Puchner notes, had the effect of uprooting theatre from its initial open-air environments (as, for example, the flat floor of amphitheatres in ancient Greece), on which performances were held. In the process of lifting performances onto an indoor raised platform, the dynamic and foundational relationship between the earth and theatre had become lost.

The legal equivalent of Puchner’s analysis would be to draw a link between the stages on which legal performances were housed, and Hans Kelsen’s formulation, in his Pure Theory of Law, of the Grundnorm (as the most basic and ultimate foundation of law) thereby linking performative action to a foundational principle.Footnote ⁸ The Grundnorm is more often than not translated as basic norm. A literal translation, however, from the German might render Grund as ground. In its earliest forms to which this essay refers, the Grundnorm was taken up as the most material of grounds, namely that of the platform of earth itself. It was the earth – humus and loam – that provided the common law with the most basic foundational norm. It was its Grund and source, and the stage from which all other norms arose. It is less a ‘pure theory of law’ than a soiled theory. In both legal and non-legal senses of the word, performance relies upon a foundational platform, and it is the choice of venue and stage that becomes key. The concern here is to retrieve the ground as an alternative sense of law’s foundation and stage. In doing so, there is the further claim that any analysis of legal performance loses its sense of the material ecology (the relationship between law and the natural environment) that is locked into the emergence of common law unless it takes into account the notion of the outdoor stage and the peculiarity of al fresco rituals.

Theatre of the Assizes

The ecology of common law emerges most notably through those outside performances that marked the transition from disparate religious and sovereign practices to a sense of a common law. In particular, it is the itinerant assize courts and eyres of medieval England that provide the historical background. The assize courts were the primary mechanism for assimilating local customary rules and observances practised in the various shires of medieval England into common law. As Paul Raffield neatly summarises: ‘As well as exercising the functions of a court of law (in civil and criminal matters), the eyre served as an itinerant form of central government, exercising a supervisory and regulatory role over local government and local customs.’Footnote ⁹ Both were comprised of a corps of justice-errants periodically sent out from Westminster to ride the preset routes of provincial circuits, collect taxes and hear pleas. Initially, twenty-one judges toured the country divided into the four inaugural circuits. These four circuits were later increased to eight in order to ‘facilitate perambulation by Royal agents’.Footnote ¹⁰ Such judicial visitations and incursions into areas remote from London, the centre of judicial and legislative power, established what Frederic Maitland called ‘the great council of the nation’.Footnote ¹¹ The circuit courts of assizes and eyres were launched during the twelfth century as a means of replacing the seigniorial courts (the private franchise jurisdiction of manor lords determined by the collective of arcane rights of sake and soke, toll and team, and ingfangthief).Footnote ¹² In replacing these baronial and private manor courts (courts that largely relied on local customary laws), circuit courts instituted a machine for colonising boroughs and shires, bringing them structurally closer to the Curia Regis, the King’s Court. They took over adversarial causes between warring barons, as well as other similar private duels. The assizes, in particular, became the first resort for cases that had hitherto fallen under the jurisdiction of manor lords, or sheriffs. In more conceptual terms, the assizes provided a key institution in the state monopolisation of hitherto private feuds, and in the more general pacification of social relations.

It was by sending the judges on circuit that the assizes more deeply settled common law upon a geographical and sublunary terrain. To cite Maitland and Pollock’s felicitous phrasing, ‘the English circuit system struck its roots deep into the soil’.Footnote ¹³ Or, as William Dugdale put it: their task was to distribute justice jura per pagos, in each town throughout the country.Footnote ¹⁴ In its turn away from the centre of power, the institution of the assizes created a minor revolution in legal technique. It may have been untelevised, but this itinerant spectacle of the assizes reoriented law’s theatrical performance towards a drama of social action defined by topography and the surface of the land rather than the grand architectonic structure of court buildings. Of course, the elementary attributes of the body politic remained. The central conceit of Crown authority remained intact, and the King acted deus ex machina.  Circuit judges, representing regal authority, were deployed ‘front of stage’ to perform in character. The act, of course, depended on the suspension of disbelief that judges carried the memory of the law in their breasts. In this fashion, according to Francis Bacon in his Speech for the Summer Circuits 1617, they ‘preserve[d] laws pure’.Footnote ¹⁵

What is important to note, however, is that the performance of law took place on a wider stage than those provided by the assize courts themselves. In striking its roots deep into the soil, assize performances were not restricted to those that took place in courts located in towns. Indeed, assize trials and the court buildings in which they were held were no more than nodal points in an organised network of communication that extended over the entire social and geographic terrain. And, while it cannot be denied that assize trials were theatrical and even melodramatic events, while they performed the ultimate function of decision-making, it was the itinerancy of the regional circuits themselves that provided a larger, more significant stage for the presentation of law.

For Bacon, this outdoor stage of the circuits was first and foremost conditioned by cosmic forces. If the earth provided the law with a stage, then planetary and horoscopic energies ensured its integrity. Astronomy conspired to pattern the circuits in its own image according to which the Crown took on the characteristics of an all-seeing mechanism, a primum mobile in a Pythagorean/heliocentric system that set the whole mechanism of the circuits in motion. As Bacon puts it; ‘You that are Judges of the Circuits are as it were the planets of the Kingdom … Do therefore as they do; move always and be carried with the motion of your first mover, which is your sovereign.’Footnote ¹⁶ Bacon’s sentiments are not simply metaphorical and are to be taken as symptomatic of the Pythagorean ethos of the Elizabethan and Jacobean era.Footnote ¹⁷ In their circuits and revolutions, microcosm resembled macrocosm and revealed the greater order of the universe.

Put differently, the assize court trial was no more than a play set within a much grander play that communicated a more grandiloquent message. Each individual assize trial was no more than the equivalent of Hamlet’s Mouse Trap mirroring the larger plot. With its own interchangeable cast of stock characters (malevolent defendants, mischievous troublemakers, inept solicitors, hapless officials), the trial merely confirmed the words of the main script that was acted out on the move and on the paths and routes between shires and assize towns.

These were paths already wired into the landscape. In one, admittedly eccentric reading these routes were ley lines that followed the flows and currents of druidic energies.Footnote ¹⁸ Ancient trackways made good through customary usage and the assertion of customary rights and which already gave rise to many various usages that would be assimilated into common law were ready-made for the transition from customary to common law and provided a geographical platform for the most visible and outward appearance of law as it moved cross-country. Since the court travelled with the judges, the journey along the circuits was the journey and performance of the law. Crime committed on the road and in the presence of a judge ‘was done as in the presence of the Prince … As that if a justice of assize shall happen by any of his circuit to be slain, the Law adjudgeth it to bee Lese Crimen Majestasis’.Footnote ¹⁹

Accordingly, if the Lord Chancellor might be regarded as having provided directions, instructing the errant judges from the centre of legal power, and if the countryside provided the stage, then the paths might be regarded as replete with its own set of stage furniture. Positional and ‘on-set markers’ were provided by stone crosses, oak trees, tumps and megaliths that sat at significant junctions and presented itinerant judges with locations for ad hoc roadside hearings along the way. The itinerancy of law officiated on these once pagan sites of significance. It colonised, for the purposes of its own staging, sites of geological, lithic and arboreal weight.

The journey itself was designed as a spectacle performed and accounts of assize judges on the move are worth considering in detail. Setting off from Holborn, a retinue (or a posse comitatus) of valets, clerks and guards travelled with the judge, riding pack horses from assize town to assize town: ‘When they moved, crimson and gold, burnished steel and floating ancient [pennants] gladdened the eye: at the same time the ear was addressed by the blare of trumpets.’Footnote ²⁰ Barristers followed in their own coaches, or on horseback, or even on foot: ‘Royal justices with attendant trains of clerks and officers … passed from shire to shire drawing after them as they went a great crowd of recogniters, parties, essoiners and others.’Footnote ²¹ Even on route and in between court sessions, judges were on show. According to the ‘Historical Memorials’ of William Dugdale: ‘When riding judges and serjeants are to wear a coat of good broad cloth with sleeves, and faced with velvet. They have used of late to lace the Sleeves of the Serjeant Coat, thick with lace. And they are to have a Sumpter, and ought to ride with six men at the least.’Footnote ²²

With the country providing its stage, the scenography to common law’s performance was provided by the English landscape. Take the description of his journey by John Alderson Foote, a late nineteenth-century circuit judge: ‘It was a goodly land and fair through which His Majesty’s judges followed those well worn ways.’Footnote ²³ His approach into Salisbury for assizes is marked by the sudden rise of its cathedral spire over the southern uplands, by wild roses and ‘everlasting hills’. Mounted on the English stage, the setting provided an idyllic geography. This landscape becomes an illusion, a matter of stagecraft and part of the designated proscenium. There is even lighting and sound design where the circuit is described as ‘bathed in sunshine’ and Devizes silently sleeps. What emerged, as the backdrop to this theatre, is the make-believe scenery of ‘merrie’ England as a rural idyll, ‘time worn’ and ‘everlasting’, against which the myth of common law appeared. Foote’s account mirrors the more doctrinally nuanced observations made by Coke on his way to the Norwich Assizes:

Not only did the scenography represent a bucolic idyll, the English countryside – with its furniture and props of rivers and streams – gently reflecting the decorum of justice. Merrie England was justice because it was equal, proportionate and temperate. Distance and lighting hid the defects of quotidian life, mob unhappiness. Space, as it is with any element of scenography, was synthesised into an illusion of place. Where the usual elements of stagecraft employ perspectival technique, painted backcloths or Piranesian trompe l’oeil, these judicious descriptions of landscape served to create the sense of a place situated in time immemorial in order to stage the romance of common law.

The entry of the itinerant circuit into the assize towns deserves further attention since it is here that law’s dramatic realisation on the territorial stage reached its climax and was expressed with full pageantry. Any stage requires attention to design and layout. Proscenium arches, trapdoors, fly-towers and bridges are typical and indeed essential to the delivery of performance. So too are exit and entry points in determining the positioning and movement of actors. The outdoors, as any other stage, was similarly laid out for devising performance and the directions for exiting/entering geographical territory required ritual and ceremony. Crossing county borders, arriving in a town, were essentially acts of becoming visible. It was a play of transferring from one jurisdiction to another, from one atmosphere into another, but also an act of transferring from invisibility to the point of visibility. Most accounts of the entry of processions into assize towns tend to assume that the ceremony provided a prelude to the main business of hearing assizes at court.Footnote ²⁵ In this sense, they were no more than an insertion into an overall chain of events leading up to proper matters to be decided in court. It might be supposed that these outdoor civic performances established what Butler describes as: ‘the temporal conditions for making the speech act [that] precede[s] … the momentary occasion of its enunciation’.Footnote ²⁶ Nevertheless, such analyses miss the point that territorial borders and the geography of entry points were configured on the outdoor set as specifically dedicated liminal points. The minor geography was in fact the major stage, the point of entry and exit, as also the source of the customs that constituted the law of the land, the leges terrae, and the audience for, as well as recipient of the proto-liturgical pronouncements of the assize court itself.

The pageantry of these entrances mixed and enjoined judicial and civic performances as an essential part of staging the machinery of state-sponsored justice. From the twelfth century until as recently as 1972 (when the assize circuits were abolished), the county sheriff would meet the travelling justices at the county border with elaborate ceremony. ‘The sheriff with his posse comitatus used to receive the judges at their entrance into the city, and attend them till they were received by the sheriff and posse comitatus of the next county.’Footnote ²⁷ In his description of the assizes to Charles Villiers (the courtier and favourite of Charles II), Bacon stipulated the ‘attendance of the sheriffs of the counties, accompanied with the principal gentlemen, in a comely equipage, upon the judges of assize at their coming into the place of their sitting’.Footnote ²⁸  Whether Villiers was directly concerned with the ‘comely equipage’ of anyone other than the king is moot, but Bacon’s advice emphasises the theatrics of law’s arrival into town. Descriptions of assize processions are legion, and we need only summarise the large retinue of significant gentry, trumpeters and javelin men on horseback, followed by aldermen, tradesmen, magistrates and the sheriff, travelling in ceremonial carriages (the latter of which is used to collect and transport the visiting judge). The earliest use of the accompanying retinue may well have been to act as bodyguards for the justices. Local tenants and cottagers armed with halberds/javelins were employed for the task. Sheriffs were instructed to ‘have in readiness a strong and decent guard for receiving [the judges], which guard must consist of the potents, knights, esquires, and gentlemen of the county with their men arrayed in liveries, with a trumpet for their convoy’.Footnote ²⁹ They evolved, however, from a performance of protection to one of symbolic ritual. Under shrieval and mayoral arms and with the continued use of javelin men, trumpeters rode and blew on and announced the iconic presence of law. A description taken from John Wesley’s sermon before the assizes at Bedford concentrates on the minute solemnities necessary for civic values. ‘For these also, by means of the eye or ear, may more deeply affect the heart: and when viewed in this light, trumpets, staves, apparel, are no longer trifling or insignificant, but subservient, in their kind and degree, to the most valuable ends of society.’Footnote ³⁰

In terms of the development of common law, the border marked the point at which local, rural, franchises ceded rights, authority and jurisdiction to the royal judges. As Hale noted, the assizes brought the law ‘Home to the Parties in the Countries … near where they live’.Footnote ³¹ These ceremonies staged the occupation and colonising of the land, a patterning of authority in accordance with what ought to be held in general across all England. The pageants reversed the flow of law’s energy from sources of local customs (rooted in local soil) to a more centrally located hierarchical organisation of authority that took over the whole terrain. Thus, even in the localised and custom-driven context of civic authority, daily life and quotidian existence in assize towns had to surrender to the extraordinary appearance and arrival of law. A long-standing statute from the thirteenth century, for example, forbade the continuation of markets during the time of visiting assizes and eyres.Footnote ³²  The country had to be awoken for the show and individual locales had to make way for ‘the place of law’s appearance’.Footnote ³³

A Brief Digression on the Courts of Piepowder

The business of moving across the country required from the wandering judges a particular appreciation of other courts that would eventually be assimilated into the institutional repertoire of common law. In particular, the courts of piepowder (alternatively, the courts of pied poudres, pipoudler or pye poudre) deserve brief mention. These courts were held during market fairs and matters that fell within its jurisdiction were only those that were incidental to specific markets. Essentially, in the terms of the day, they were curia parvi ponderis summarli. Claims invariably were small and the presence of foreign traders at market fairs, meant justice needed to be speedy and simple. The courts (much to Blackstone’s appreciation) ministered justice with model efficiency and speed.Footnote ³⁴ They were, it is important to note, located at the gateways of urban or larger rural settlements. Two points on the materiality of the stage might here be made. First, it is the geographical positioning of the piepowder courts that brought them into contact with itinerant justices as the latter rode into and sat at the gates of the city. The particularities of the aforementioned spectacles are not worth repeating except to stress that it is the liminal point of gateways and boundaries that here provide a stage for the meeting of laws as well as the meeting of jurisdictions. The second point adds a footnote as it were. What is interesting about piepowder courts is that the discourse of elevation that attaches to the assizes surrenders to its opposite and retains, in a more material sense, the importance of earthly matter as material foundation for the staging of law. Courts of piepowder were, Blackstone says, ‘the lowest … court of justice’. Indeed, it is only once he provides an account of these courts that he then continue to write about other courts of the legal system by ‘ascending gradually to those of the most extensive and transcendent power’. Blackstone claims that the name (pluralised from piepowder and translated from pye-poudre, or cura pedis pulverizati) derives from the dusty feet (the pied poudre) of the suitors to the court. These travelling merchants, itinerant chapmen, shepherds, vagabonds and drovers were those who not only traversed geographical space but ‘by their motion raise pulvererm vel lutum (dust and mud)’. An alternative explanation for the name is given by Cowell and refers to the feet of the whole court; ‘it hath the name of dustie feet which we commonly get by sitting neere the ground’.

The staging of the assizes depended upon a cosmologically determined ecosystem of itinerant circuits. The earthly stage provided the landscape of ‘merrie’ England. Paths and natural furniture provide on-set markers. To this we ought to add that it was the very material quality of dust that determined jurisdiction. That is to say, the dust in question had a forensic value. The dusty foot, if we are to believe Blackstone’s etymology, belonged to those travellers from other urban areas plying their trades at the relevant marketplaces. It was the very material of the stage, namely the dust specific to a region, that marked the stranger as coming from another region. It might, however, be speculated that what applied to the traveller also applied to the wandering justices, who might equally have brought their own dusty boots into town. If dust on the traveller’s foot provided a marker of regional differences, it also provided, on the part of those judges who rode through the gateways of market towns, an erasure of those differences and a mixing of regional soils to provide a unified stage.

Feigning the Death of Performance

In one restricted and administrative sense, the functional performance of common law across the geographical stage of the country continued well into the twentieth century. Its continued existence, however, was more often than not considered a matter of nostalgia and anachronism. Towards the end of the nineteenth century, and perhaps under the spirit of utilitarian reform, assize processions had become enfeebled and assumed a mantle of mere pageantry. Many of the insignia of shrievalty that marked these quarterly street performances of the assizes were priced by Parliament, and had succumbed to money-saving reforms. It might be assumed that such reforms were purely driven by economic motivation. Hansard records, however, show that such reforms were ideological. In a House of Commons debate, Mr Edwin Jones is reported as declaring that there is ‘no pageantry in having twenty four decrepit old men moving before the judge, and preceded by an asthmatic trumpeter’.Footnote ³⁵ In the same debate and vein, Sir John Shelley derided the ‘idle paraphernalia of the number of men in red-coats, accompanied by trumpeters discoursing very ineloquent music’.Footnote ³⁶ Faced with the alternative proposition that aesthetics becomes and empowers the law, Shelley continued:

Arguments against the overt pageantry of conducting law, as Julie Stone Peters reminds us in her analysis of the Tothill duel, are not anti-performance. They merely posit a licit form of performance as being more a propos to the proper function of law. The alternative to the use of javelin men and asthmatic trumpeters would remain performative. The arguments presented in Parliament, however, typify the old split between the body politic (or body judicial) and the body natural. Masks are let slip and judges are believed to be as much a maladroit body as any other. The stage, from the perspective of reformers, was no longer considered necessary and judges on the road were no longer considered to be providing a performance. Visiting brethren were mere flesh and blood, separated from us only by cheek and jowl. Once out of their judicial robes, their fashions – an un-feathered, wide-awake hat and gentleman’s shooting jacket – are, or were, no different to the rest of fare-paying passengers on the railways. Even as an anachronism, the theatre of assizes continued to function in the historical imagination. The argument that pageantry is ersatz, comically out of touch and out of time, is a key part of the theatre of law. Indeed, what seems to substitute for the fetish of judicial dignity is a performance in which it is the physical body of the judge that becomes the object of obsession. Often, this reverse fetish is expressed through the comic. Anecdotes that relate incidents of mishaps during the assizes take the theatre of law into the realms of the absurd.Footnote ³⁸ Take the instance where Justice Rokeby had to be carried out of his digs at Trinity College (Cambridge) on a chair because the entrance to the college was too narrow for the ceremonial coach and horses.Footnote ³⁹ Or the same judge having to cope with a coach horse falling down dead during the procession: ‘just as the high sheriff met us, one of the horses in my coach fell down dead’.Footnote ⁴⁰ Another author derides the scene of assize judges smoking cigars while in procession and belching beer during sermons.⁵⁵ A peep backstage, or a comic interlude, allowed the mask of judicial authority to slip, but this slippage only served to enhance and reify what happened on the front stage. Laughter became the new medium of faith and kept the mystical theatre afloat. If pageantry highlights anachronism, it is because anachronism is key to the timelessness of ceremony and to the exceptional and non-ordinary spectacle of law.

The transhistorical transposition of circuit theatre (from the twelfth to the twentieth centuries) proceeded along the lines of all legal performances, reinforcing the conditions of faith and collective behaviour. It reasserted the common law myth of time immemorial. What disappears, however, during this relatively long history is the direct confrontation between law and the natural environment. It would seem as if the play had been performed and the stage had served its purpose. Common law had long since settled its purchase on the land. There is, in other words, a denial of the proper extent of law’s ecology. With the few exceptions of judicial memoirs from circuit judges in the late nineteenth and early twentieth centuries, the idea of common law’s dependency on nature is increasingly excluded. Land is externalised and subject largely to the topics of private law. Earth no longer exists as a stage, or a functional and active agent in law’s performance. What is lost is not simply a connection to the material ecology of law but a relationship between law and a sense of location with all the social, political and cultural memories that therein subsist.

The Persistence of the Outside

The outdoor stage, read somewhat historically and with only the barest of attention to the present, determined the performance of law. The question that arises is: what is lost to legal performance once the outside moves indoors and into the relative comfort of purpose-built architecture? Since 1972 the assize circuits have been discontinued along with their attendant performances. Law seems no longer to mobilise the natural environment, nor does it need to perform directly on it. Any analysis of current legal performances would have to attend to action taking place in a dust free, airless environment sequestered from the planetary impulses, cosmic energies and matters of the earth. That the third rock from the sun once provided the ground for legal stagecraft might seem to turn a purposeless and perverse study into a moribund topic. Nevertheless, given that the stage, in itself, is an actant, always performing and always staging its drama, there is no reason to suppose that its effect has disappeared.

Consider the symbolic elements of the relatively new building for the UK Supreme Court that deliberately redraws the curtains to reveal an ecology embedded in the legal imaginary. The court replaced the former House of Lords, was housed in the refurbished Middlesex Guildhall and opened in 2010. The building is state-of-the-art and, in its interior design, far removed from the ecological conditions and earthly stage of the assize circuits. The props, stage layout and scenography seemingly reflect an interior designed for businesslike functionality. Yet, in both the foyer and in Court number one at the Middlesex Guildhall, carpets have been laid depicting the natural sigils of the four nations of the United Kingdom; the rose of England, the leek of Wales, the thistle of Scotland and the flax of Northern Ireland. The carpet is a matter of pride, described in the various press releases and brochures as a ‘pop art carpet designed by Sir Peter Blake of Sergeant Pepper fame [that] brightens up the room with symbols representing the four nations of the United Kingdom’.Footnote ⁴¹ Nature has been brought inside as a synthetic representation of the Supreme Court’s territorial and conceptual jurisdiction. The carpet provides a stage for the highest appeal cases and remains an efficient and postmodern simulacrum of the stage that provided common law with its initial platform. The material ecology of the archaic and historic stage has been emblematised and distorted. Despite being simulated, the symbolic mobilisation of law’s ecological provenance remains visible. Judges, lawyers and a host of attendants continue to perform upon an extension of territory.

Other tropes that attach to the legal stage speak to the insistence of the earth in legal performance. In her analysis of the Supreme Court of India, Rahela Khorakiwala comments on its circular architecture.Footnote ⁴² She notes that while resembling a mamelon, the rotunda of the court building, seen from above, has been interpreted by some as a phallic architectural image.Footnote ⁴³ The rotunda connects architecture to the invisibility of women in the Indian judicial system. It is an expression of the unsatisfactory civic ordering of life. We can add to this. The dome – whether on the Indian Supreme Court or the Old Bailey – speaks to law’s love for discourses of elevation. The hemispherical idiom locks into a persistent tradition that begins with the hill upon which early lawyers would moot or, the mountain from which laws are received. Alternatively, and from the perspective of the inside, the dome is a hemispherical vault that makes manifest the heavens. In this sense, the dome is a proscenium arch that recalls an observation made by Francis Bacon that the assize circuits were patterned and choreographed according to laws of planetary movement.Footnote ⁴⁴ Lawyers that once circulated around the assizes now do so, ‘in motion all day’, beneath curvilinear vaults that bring the heavens inside.

More generally, Khorakiwala intimates, circularity organises the pathways of lawyers and ushers us towards an aspect of their performance that is as visible – perhaps more so – as those that occur in the courtroom. Little-analysed features of court architecture such as the corridor, function equally as much as the courtroom as places of legal theatre. As Mark Jarzombeck reminds us, the architectural history of the corridor is linked to the organisation and appearances of social interaction.Footnote ⁴⁵ Rules of etiquette required country houses to be built with separate corridors for masters and servants. Charles Barry’s design for the Houses of Parliament used corridors to segregate the Lords from the Commons. The Lord Chancellor had his own corridor just as judges in modern court buildings have theirs. As Jarzombeck notes of the Royal Courts of Justice on the Strand, the judges were able to access their corridor directly from their carriage via a magnificent stairway panelled with wainscot.Footnote ⁴⁶  Circulation as a medium of legal performance takes its cue from the bringing of the outside into the courthouse. Corridors are the modern pathways, or, as Le Corbusier calls them, ‘internal streets’ (rue interieure). Where assize judges once heard cases on the move, en route and on the roadside, lawyers, with their own retinue, now perform in corridors. More than utilitarian spaces, corridors are places of argument, of deals and bargains between competing parties. They have become the extension of the territorial pathways and rural circuits where the acting and the action take place.

Conclusion

Attending to the history of the legal stage, to its earthbound platform, its former material ecology and its fractured persistence, reveals a different performative history of law. Such a history cannot be inattentive to the deep nationalism at stake in the mythologising of the English country stage. A history of blood and soil is woven into the ecology of law. Equally, however, a sense of the stage on which law performs and has performed its drama reminds us that law is a specifically located institution and built upon local and geological fault-lines. The theatrical is often invoked as a matter of providing a scene of make-believe, a founding reference or the underside of legal rationality that masks the credo/fides quia absurdum.Footnote ⁴⁷ As a modest contribution and addendum to studies of legal performance, it can only be proposed that this underside be examined as that platform which exists beneath the sandal. As Freud discovered, ‘stones speak’.Footnote ⁴⁸ The materiality of the stage, its land, soil and scenery opens up the chance to consider the stage on which law performs as matter through which a richer ecology of law might be activated, other voices heard and its current forms mocked.