Exploring Courtroom Discourse by Anne Wagner & Le Cheng

Author:Anne Wagner & Le Cheng
Language: eng
Format: epub
Publisher: Ashgate Publishing Limited
Published: 2011-06-12T16:00:00+00:00

The Stage and the Courtroom: Illusion and Reality

Pull a rabbit out of your hat. That’s the secret both to trial law and life.60

Comparisons Between Law and Magic

The comparison between law and magic and between the lawyer and the magician is not really so strange, as some commentators have pointed out (Marcovecchio 2010; Trombly 2010). In addition, in ancient times, the wizard, or the magus, often represented law and order. Fictional wizard characters, too, such as the Wizard of Oz (Baum 1973) and the various wizards (Saruman the White, Sauron, Gandalf the Grey) in J.R.R. Tolkien’s The Lord of the Rings 61 represent varying types of order amid chaos. Quite often in role-playing games today, the “wizard” character represents law and order, or justice. As an example, consider the role played by the wizard who “toads” (or eliminates) Mr. Bungle, the malefactor in the Lambda MOO (MUD Object Oriented online text-based game) Dibbell describes first in his Village Voice article “A rape in cyberspace” (Dibbell 1993) and then in his book My Tiny Life,62 an expansion of the Village Voice piece.

The struggle between the wizard/magician (that is, the religious purveyor of law and order) and the attorney to control the bases of authority is a very old one. We can compare it to a question that has bedeviled students of jurisprudence for centuries: is the authority for law supernatural or natural in origin? Does the sovereign rule by divine right or by the will of the people? As Ernst Kantorowicz notes in his influential work The King’s Two Bodies:

We need only replace the strange image of the Two Bodies by the more customary theological term of the Two Natures in order to make it poignantly felt that the speech of the Elizabethan lawyers derived its tenor in the last analysis from theological diction, and that their speech itself, to say the least, was crypto-theological. Royalty, by this semi-religious terminology, was actually expounded in terms of Christological definitions. The jurists, styled by Roman Law so suggestively “Priests of Justice,” developed in England not only a “Theology of Kingship”—this had become customary everywhere on the Continent in the course of the twelfth and thirteenth centuries—but worked out a genuine “Royal Christology.”63

To what extent can we compare the stage and the courtroom, and to what extent is what happens on stage as “real” as what happens in the courtroom?64 First, both the magician and the lawyer attempt to control the “performance”—both “practice” in the sense that the magician rehearses his tricks, his patter, the links between his illusions to create a complete performance, and the lawyer rehearses his or her opening and closing arguments, and the arc of the case to the extent that that is possible. No lawyer wants to be surprised at trial, so any attorney attempts to prepare as much as possible for any circumstance that might arise during the proceeding. Similarly, the magician practices over and over, trying to anticipate whatever might go wrong during a performance. Rehearsal is absolutely necessary (Abowitz 2008).

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