In The Just and the Unjust (Harcourt Brace Jovanovich, New York, 1942, p. 9) James Gould Cozzens writes:
It might be argued that providing spectacles was not now, or ever, the office of a court of law. Good in theory, in practice these arguments overlooked the fact that spectators made anything they watched a spectacle, and those who performed public duties before an audience became willingly or unwillingly actors, and what they did, whether they wanted it or not, became drama. Involuntarily an actor, Abner could not be unconscious of his audience’s expectations, nor unaware that his audience was finding the performance, of which he was part, a poor show compared to what true drama, the art of the theater or the motion picture, had taught them to expect.
Art would not take all day Monday to get a jury. Art never dreamed of asking its patrons to sit hour after hour over an impossible-to-hear lawyers’ colloquy, with no action but the self-conscious walking down of person after person from the panel of petit jurors as the names were called.
Law is commonly described as drama, spectacle, and performance art. As Cozzens notes, one part of this identification is relatively facile: legal affairs are conducted and enacted in public spaces by its agents; they, in turn, keenly aware of the spectators’ gaze involuntarily play to these galleries; and so we have a public, dramatic performance of matters of–sometimes–life and death. In these passages, Cozzens makes note of this common suggestion and dismisses it. His rejection of this identification relies on a commonly noted feature of the law: it can be exceedingly and pointlessly tedious and inefficient.
Law’s spaces–its courts–are indeed dramatic venues as are its trappings: the robes of the judges, the declamations of the bailiffs; the solemn swearings in. But the procedures of law, the specifications of legal business can and is to be conducted, while setting up constraints for the behavior of legal actors both include and exclude too much. They make possible too much interference by legal actors with ‘directors’ cues’; they allow for all manner of interruption of the ‘main act.’ Sometimes all is pantomime as prosecutor and defense spar with the judge in a sidebar conference; sometimes procedural constraint blocks the introduction of dramatic new evidence; there is all too much sand that may be thrown in the wheels of a legal drama. Imagine, by way of an analogy, that a theater performance or a poetry reading is interrupted frequently to adjust the lighting or the sound: technicians rush on stage, the actors cease speaking and wait patiently, the poet halts mid-stanza. Too many of these and the spectators may well head for the exits.
But perhaps legal drama is distinct in that its interruptions and inefficiencies are only imagined as such; they are part of the drama and must be viewed as such. They are not bugs; they are a feature. If so, the nature of the legal drama has been perhaps misunderstood by Cozzens above. Not all drama or theater or all motion pictures entertain and edify in precisely the same way; some, in order to make us experience a distinctive qualitative aspect of life must incorporate those features. Perhaps law’s dramatic purpose in these tedious inefficiencies is to bring us face to face with their undying presence in our lives, to make us aware of just how much of our lives is lived in precisely that same fashion as the law conducts itself.