Law in drag: trials and legal performativity.

• Author: Umphrey, Martha Merrill

To import Judith Butler's work into a conversation about law is to unfurl a provocative new map of a familiar landscape and to revel in the pleasure of traveling it, off-road, looking anew at landmarks so many have passed by for so long. She has a way of talking about law that pins down its complicity in a stubbornly enduring social order even as she breathes life into it as a domain for exploration and critique. The force of her thinking--for me, particularly her thinking about performativity --shatters conventional ideas about what law is by enabling us to ask how it is enunciated, what it produces, how it is "done." Can one think of law as a kind of subject formation in itself, one that authorizes itself via what Butler has called a "sovereign conceit" but that in fact is called into being in the very act of calling others to account?

Taking up performativity this way might seem slightly off-color. After all, as Butler has framed it, the interpellative process has a political edge to it. "Its purpose," as she proposes in Excitable Speech, "is to indicate and establish a subject in subjection." (1) One could hardly argue that law is a "subject in subjection." And yet, in what follows, I will try to elaborate on the ways in which at least one kind of legal operation, the trial, is implicated in an interpellative process (2) that destabilizes its own relation to state power, though neither fully nor innocently. Moreover, I will argue that the trial is a legal space ripe for critical analyses of identity formation, a place in which the norms that bring certain kinds of moral or moralized subjects into being are contested rather than assumed. In trials, alterity (that is, difference or otherness) within norms can be at least partially exposed because of the ways in which trials stage their own performative relation to "law."

Though I think one could make this claim as it relates to trials generally, I'd like to focus on one particularly self-reflexive trial--self-reflexive because of the way it self-consciously stages a fracturing of the meaning of "law"--by way of illustrating the incisiveness of the concept of performativity in complicating notions of the "juridical." While the arguments that follow should not be understood as a celebration of trials as radically transformative legal spaces, either for the law or for the social subjects that come before it, thinking about their performative enunciations of law does, in my view, open up a way to analyze moments of disruption and foreclosure in the ongoing citational processes that constitute social identity. (3)

Trials always begin with a story, but even in its barest outlines this one is perhaps more remarkable than most. In 1901, a sixteen-year-old woman named Evelyn Nesbit first met the great New York architect and aesthete Stanford White. (4) A striking beauty, she had pulled her family out of poverty by moving from Pittsburgh to New York to find success as a photographic model and budding stage performer. (5) White, in his late forties, had a penchant for young beauties and he drew Nesbit into an extravagant world of glittering champagne parties and private modeling sessions before either seducing or raping her (depending on the account) in the mirrored bedroom of his private penthouse suite in the first Madison Square Garden (a spectacular building of his design). (6) Though clearly traumatized by the event, Nesbit became White's mistress even as she was being courted by other wealthy playboys, including her future husband Harry Thaw. She relied on White for money, of course, but they also appear to have been deeply entranced by one another, and though their affections eventually waned, Nesbit would never--even during her testimony in Thaw's trials--fully renounce him. (7)

Born to a wealthy Pittsburgh family, Harry Thaw lived an eccentric and profligate life, as debauched in its own way as was White's. Having seen Nesbit onstage at around the same moment White came into her life, Thaw's attraction to her quickly turned into an obsession, and once she began to separate herself from White, Thaw leaped in as her protector and financial supporter. (8) Alternatively extravagantly loving and shockingly violent, his erratic behavior possibly the result of morphine addiction, Thaw begged Nesbit to marry him even as he badgered her with questions about her relations with White. In 1905, at the age of nineteen, Nesbit seems to have concluded that, under the circumstances, Thaw was her best bet. (9) They married, yet Thaw's jealousy of White continued unrelentingly. He engaged private investigators to tail White and report his continuing exploits to the notorious moral reformer Anthony Comstock and he forbade Nesbit from calling White anything but "the Beast". (10) Finally, on the hot evening of June 26, 1906, Thaw spotted White in the Garden's rooftop theater, walked calmly over, pulled out a pistol hidden under his heavy overcoat and shot him in the head. "I did it because he ruined my wife," (11) Thaw called out to the panicked crowd around him as Nesbit looked on with disbelief. (12)

When Thaw entered a courtroom in early 1907 to plead not guilty before an international press corps, a tightly packed audience, a gaggle of attorneys, a presiding judge and a jury of twelve men, he entered a space of law. Who was he, in relation to law? What kind of space was it, and how should we characterize its legality? What kinds of power flowed through and around him over the course of his two trials? We might say from a theoretical point of view that Harry Thaw stood "before the law." (13) While he was always a legal subject in a thin sense by virtue of his incorporation in the body politic of the United States, his public courtroom appearance amounted to a literal interpellation: hey, accused man, you are now recognized as such by the law, you have become a legal subject in the sense that you are conjured, constituted, brought into being on the law's terms by standing accused before the law. (14) This is a scene of thick legal subjectivization spectacularized. Imagined in a Kafkaesque way, the feeling is one of entrapment, of being caught in law's discursive and institutional nets even before the powerful performative moment of judgment. Imagined (perhaps) more benignly within a liberal framework, to come before the law is to be constituted as a legal subject through the operations of the "rule of law," with the ideological effect that the man in the courtroom becomes an individual, a sovereign subject presumed rational and capable of choosing between right and wrong, abstract and atomized, and equal to all other individuals coming before the law. (15)

And yet what do we mean by "law" here? If one wishes to take up an event--an adjudicative event, one that both speaks and enacts legal judgment--it seems as though invoking the abstraction "law" naturalizes certain imaginings of the operations of state power even as it obfuscates the dynamics of legal subjectivization. It is easy enough to elide this fantasy of law with others: the pre-enlightenment sovereign, (16) or the Lacanian Symbolic, (17) or the rule of law, and to forsake attending to the various faces of "law" that, in their camivalesque engagements with each other and with those that come before them, both enable and disrupt the exercise of various forms of power. From this perspective, in order to begin to say...