The legitimacy of judicial theater thus depends on its audience, and on the latter’s validation of the onstage accusations. Yet it is well known that while the philosophes praised public opinion as infallible and virtuous, they harbored a profound ambivalence toward the people. This was particularly true in the theater, where public opinion, so easy to applaud as an abstract concept, took on a far more concrete and threatening presence—that of a boisterous, volatile, socially diverse audience.111 To be fair to Mercier, he proved far more consistent than most in his praise of the people, yet even he occasionally expressed unease at the presence in the polysemic “people” of the “populace,” whose violent, erratic, hasty, often inaccurate judgments terrified him. This unease explains why Mercier sometimes painted, alongside his idealistic image of the “people” as an infallible judge, a strikingly different portrait: of a dangerous force to harness and command, or of a naïve child to mold and enlighten.112 Such disparaging portrayals of the people naturally undermined the concept of judicial theater, playing into the hands of its critics, who, like Rousseau, stressed the dangers of placing the right to judge in the hands of everyday people.
Rousseau’s name here may come as something of a surprise, given his oft-proclaimed admiration for a system of justice founded on free and public accusation, as in ancient Rome.113 Individual privacy ranks well below collective transparency in Rousseau’s list of priorities, and he often defends those who bring a criminal or sinner to the people’s attention, even or perhaps especially when they do so outside of the legal system. For instance, in his Lettre à d’Alembert, he praises the gossipy women of Geneva for the surveillance and severe censorship that they exercise over their fellow citizens.114 Yet in the very same text, he opposes the introduction of comedies in Geneva on the grounds that they will invariably come to do precisely what he earlier applauds Genevan women for doing: publicly denouncing specific individuals by name.
As for comedy, let us not think of it: it would cause among us the most awful disorders. It would serve as an instrument of factions, parties, and vendettas. Our city is so small that even the most general comedy of manners would soon degenerate into satires and personal attacks. The example of ancient Athens, a city incomparably more populated than Geneva, offers a striking lesson. It is in the theater that the exile of many great men and the death of Socrates were prepared. It is because of its passion for the theater that Athens perished. These disasters justify all too well the sorrow Solon showed at Thespis’s first performances.115
This passage contains a thoughtful, multifaceted critique of judicial theater, to which I will return, but one aspect of Rousseau’s originality is immediately apparent. In an inversion of the standard historical progression described by Voltaire, Marmontel, and Jean-Jacques Barthélemy, according to whom the fall of Athenian democracy and the resulting decline in civic participation caused the disappearance of judicial theater, Rousseau argues instead that it was judicial theater that led to the demise of democracy and public engagement in Athens. For the philosophes, judicial theater is a fundamentally republican institution, whereas for Rousseau, it poses a grave threat to true republics (Athens and, by extension, Geneva) because it weakens their unity by dividing the people into factions and parties.
Interestingly, in portraying judicial theater as responsible for the collapse of Athenian democracy, Rousseau, like his adversaries, borrows from Brumoy’s influential anthology, simply from different passages. Indeed, in Le Théâtre des Grecs, Brumoy contends that judicial theater served both as a fulcrum for Athenian democracy and as the root of its downfall. Satirical comedies were, he argues, indispensable, since “the republic of Athens sustained itself solely through the perpetual discord among those who handled its affairs, a unique counterweight that involved finding the cure in the sickness, and whose impetus came from eloquence and the theater.”116 Here, Brumoy perfectly sums up the claim, later reprised by Voltaire, Marmontel, and Barthélemy, that Aristophanes’s judicial theater operated as a system of checks and balances. According to this interpretation, satirical comedies were designed to preserve a relative equality among citizens by publicly exposing any political figure given to such lofty ambitions as to threaten to replace the democratic regime by a dictatorship. The phrase “finding the cure in the sickness” hints, however, at Brumoy’s ensuing criticism: while such plays provide a momentary remedy to democratic instability (caused by the lack of a fixed, legitimate ruler), they are also partly to blame for the very existence of this malady. At once medicine and poison, judicial theater impedes the will to power of great men only to encourage, as Brumoy goes on to explain, the creation of political factions, as lesser men realize that to wield power in a system founded on conflict and counterweight, they need to build alliances and secure the support of eloquent representatives. For Brumoy, such a deeply divisive and theatrical democracy is like a tree growing on putrid roots: while it needs them to survive, they will ultimately result in its collapse.
Brumoy’s account—judicial theater is needed to steady a wobbly democracy, yet alters its foundations in a way that ensures its future downfall—unfolds according to the logic of the supplement so dear to Rousseau (in fact, the phrase “finding the cure in the sickness” has a distinctly Rousseauian ring to it).117 For Rousseau as for Brumoy, satirical comedies herald the ascendancy of a toxic form of democracy, one rewarding factionalism over unity, artifice over transparency, and personal interests over the general will. This particular model of democracy resembles the “politics of contestation” characteristic of the English system, which some philosophes favored, but which Rousseau regarded with intense distrust and anxiety.118 In brief, the British style of politics operated largely in accordance with the doctrine of “majority rule,” with each eligible citizen encouraged to defend his private beliefs and interests in the political arena, in the belief that the most commendable politicians and causes would invariably accrue the greatest numerical support. Rousseau condemns this mathematical model in Du Contrat social for the same reasons that he opposes judicial theater: because it fosters discord among the people and leads to the creation of voting pacts, intrigues, and political parties. As is well known, Rousseau promotes an alternative form of democracy based on the general will, a pre- or a-political consensus that arises when each citizen voluntarily forfeits his private interests and votes in accordance with what he perceives to be in the best interest of the group. Political factions of any sort are incompatible with this vision; a party, even one that has the support of the majority, does not reflect the general will, but only the private interests and oratorical gifts of its members.119
Why does judicial theater (and not, say, the gossipy women of Geneva) cultivate this toxic, divisive vision of democracy? On a practical level, the unrivaled reach of dramatic denunciations makes them ideal weapons not only against, but also for, ambitious men, the latter eagerly seizing upon such an effective means to accuse and discredit rivals without the need for concrete evidence. The theater then becomes a political instrument that facilitates the rise of powerful factions, instead of a popular safeguard against it. On a more conceptual level, the very structure of theater mirrors the bad democracy that Rousseau fears. Its distinction of actors and spectators endangers the unity of the citizenry. Worse, it rewards representation, the expression of ideas that are not one’s own but those of a hidden other, with the most persuasive performer, not the sincerest one, sure to receive the most applause. In a perfect illustration of majority rule, success is determined by the number of spectators who applaud and by the intensity and duration of their acclamations. In short, theater teaches actors on the national stage (public officials) to tailor their message to the wishes of the majority over those of the whole community, and it teaches private citizens to seek likeminded allies, so as to produce the most noise possible and drown out the judgments of others. The resulting audience is the very inverse of the one that Mercier claims is created by judicial theater: divided, instead of united, and driven by private, instead of public, interests. In fact, this conflict-driven vision of judgment