Alice only recognizes Bashir after he returns to the role scripted for him in the Bush administration memo. In other words, Bashir becomes a subject by performing a role for which he was cast by way of misrecognition. His subjectivity is brought into being through a performance of coercive mimeticism, a practice that Rey Chow describes by way of a revision to Althusser’s scène théoretique:
It is to say, “Yes, that’s me” to a call and a vocation—“Hey, Asian!” “Hey, Indian!” “Hey, gay man!”—as if it were a crime with which one has been charged; it is to admit and submit to the allegations (of otherness) that society at large has made against one. Such acts of confession may now be further described as a socially endorsed, coercive mimeticism, which stipulates that the thing to imitate, resemble, and become is none other than the ethnic or sexual minority herself.63
In acts of coercive mimeticism, the minoritarian subject believes that by responding to the hail of minority status through self-referential performances, she is “liberating” herself from subordination. But while she may achieve some modicum of recognition and relief, she is inadvertently contributing to the maintenance of the dominant structures of ideology, interpellation, and racialization. This is particularly dangerous when the law is involved because, as Antonio Viego observes, “If misrecognition is a serious harm, then we must be concerned that legal recognition may go wrong, misrecognizing already subordinated groups and codifying that misrecognition with the force of law and the intractability of stare decisis, . . . [whereby] the price of protection is incarceration.”64 If Bashir demands recognition from Alice for his time in Guantánamo, the price extracted in the preceding scene is his figurative return to the interrogation chamber. In other words, when we perform as properly situated subjects in order to be recognizable as such by the law, we run the risk of transforming our bodies into prisons.
Between Performance and Law
That subjection occurs through the enactment of protocols that are theatrical in nature is unsurprising given that the law and dramatic performance both radically blur the space between law and the aesthetics of performance. My understanding of the law as a living entity, one that is realized through legal habitus and interpretive performances, is indebted to a progressive strand of US jurisprudence that conceives of the law as, in the words of a young lawyer who later became Supreme Court Justice Louis Brandeis, a “living law.”65 But it is equally influenced by Schmitt’s argument that “all law is situational law.”66 If legal positivism conceives of the law as a system of closed norms, a legal realist and/or critical race theory approach submits that the law is messy, imprecise, imperfect, and always relational to the situation or context in which it is enacted and applied. Because “the legal idea cannot translate itself independently,” writes Schmitt, it requires an intermediary (in the form of the judge, lawyer, or law enforcement officer), which amplifies the always already political nature of legal determination.67 In this way, the legal functionary’s job has a familiar resemblance to that of an actor.
Because the law is an embodied art, theatricality is a constitutive component of the law. Judges and legal functionaries interpret the law in much the same way as an actor interprets (and necessarily improvises) a script or character. In some ways, constitutional and statutory law, as well as administrative policy, is not unlike a dramatic text. Just as Lidless does not become a performance until the script is given a production, the executive memo “straight from the top” only becomes law in its fullest sense when an agent of the law (Alice) enacts it. As Hobbes wrote, “law is a command, and a command consisteth in declaration, or manifestation of the will of him that commandeth, by voice, writing, or some other sufficient argumentation of the same.”68 The law should thus be properly understood as the union of performance and performativity.
The law has become no less theatrical in the transition from monarchial sovereignty to popular democracy. This is primarily because democracy retains and even amplifies the representational aspects of monarchism. Hobbes provides us with a particularly useful explanation of the theatrical nature of representative politics by describing two forms of persons: the “natural” person (someone “considered as his own”) and the “feigned or artificial person.”69 He notes that the term person is rooted in the Latin persona, which “signifies the disguise, or outward appearance of a man, counterfeited on the stage.”70 Hobbes surprisingly declines the antitheatrical sentiment common to Western political thought (paradigmatically modeled in Plato’s Republic), as neither the terms “counterfeited” nor “outward appearances” are used in a pejorative fashion.71 Instead, he draws a clear equivalence between the mode of artificial personage that occurs in a legal setting and that which occurs on the stage:
And from the stage, [person] hath been translated to any representer of speech and action, as well in tribunals, as theaters. So that a person, is the same that an actor is, both on the stage and in common conversation; and to personate, is to act or represent himself, or another; and he that acteth another is said to bear his person, or act in his name; (in which sense Cicero useth it where he says, Unus sustineo tres personas; mei, adversarii, et judicis, I bear three persons; my own, my adversary’s, and the judge’s;) and is called in divers occasions, diversely; as a representer, or representative, . . . an actor, and the like.72
Whether the representative is monarch or a member of the House of Representatives, this political figure realizes the unity of the state through the representative practice of acting on behalf of the state’s subjects: “A multitude of men, are made one person, when they are by one man, or one person represented.”73 Read thus through Hobbes, political theater and legal theatrics should not be understood as a distraction from the real stuff of law and politics. Performance and theatricality are central components of both.
The theatricality of the law is distinctly important in the case of the US justice system, an importance intensified by the historical events that inspired Lidless. The US political and legal system is, for better or worse, representative: politicians and lawyers act as representatives of their constituents or clients. So if Hobbes observed a blurring between the theatrical and the legal forms of representation, the lawyer’s art as a performer becomes a key means for countering forms of critical injustice. Take for example Guantánamo advocates Mark P. Denbeaux and Jonathan Hafetz’s introduction to a volume of interviews with Guantánamo lawyers: “[The detainees] were all held in secret and denied communication with their families and loved ones. Most, if not all, were subjected to extreme isolation, physical and mental abuse, and, in some instances, torture. Many were innocent; none was provided an opportunity to prove it. These are their stories. The stories are told by their lawyers because the prisoners themselves were silenced.”74 The prisoners, who are “silenced” by the US state, have no immediate recourse to speak their own stories to the general public, to their families, or even in a court of law. The situation necessitates the imperfect solution of having others perform in their stead, revealing representational advocacy to be a limited form of artificial personage that might realize greater conditions of justice for the detainees. That Denbeaux and Hafetz conceive of the lawyer’s art in the language of narrative storytelling is important because they seem to suggest that the narrative conventions employed by the advocates are equally important to their job as the factual record that they are presenting to both the public and the courts. In this sense, aesthetic practices (narrative, dramatic structure, character) can play powerful roles in a representative act meant to intervene in and reformat the conditions produced within the law. This power is not only the province of the lawyer, who adopts aesthetic traditions in the execution of his or her representative act, as the artist can deploy/wield it as well.
A Race So Different distinguishes itself from previous interdisciplinary approaches to law and aesthetics that commonly note that the primary difference between the two is that the law has a “real” impact on the world, while aesthetics registers as less impactful. For example, in Juana María Rodríguez’s otherwise beautiful analysis of an asylum hearing in a US court, she argues, “Both law and literature are intrinsically concerned with language,