We are always told that courtroom drama represents but a tiny aspect of the legal profession, precisely because spectacular public trials have proven an irresistible draw for crowds since ancient times. In Law as Performance: Theatricality, Spectatorship, and the Making of Law in Ancient, Medieval, and Early Modern Europe, Julie Stone Peters traces the role of courtroom theatre within the millennial history of our human efforts to find justice in an imperfect world. She does so both with impressive erudition and with a verve that makes her book read as compellingly as a novel (Rumpole of the Bailey comes to mind). Sprightly prose, a wealth of engaging anecdotes and choice illustrations combine to turn the law and its history into a subject of endless fascination. Her saga begins at Tothill Fields, Westminster, in 1571, with 4,000 spectators gathered to see a trial by battle between George Thorne, a ‘bigge, broad, strong-set fellow’ fighting for the defence, and the supple fencing master Henry Nayler, representing the plaintiffs in a sixteenth-century version of a Roman gladiator’s outfit. But the anticipated contest between Nayler’s lithe David and Thorne’s burly Goliath (to borrow Stone Peters’ own evocative descriptions) never happened: the plaintiffs failed to show up, so the fight was suspended. Their case, it seems, had been settled the night before.

Henry Nayler’s gladiatorial garb, like the persistence of Latin phrases such as habeas corpus in our own legal vocabulary, reflected the unbroken influence of ancient Roman law on European legal tradition. Passed down from generation to generation, civil and ecclesiastical law continued to reflect Roman law’s underlying philosophies of justice and its educational methods, themselves inspired in turn by the sophisticated rhetorical culture of ancient Greece. These traditions persisted, quite simply, because they worked. The ancient art of rhetoric was fundamentally an art of persuasion, born of long empirical experience. Clear delivery, elegant dress, a clearly constructed argument, well-researched evidence and some carefully calibrated theatre could be counted on to convince the public, whether that public were a jury of citizens in ancient Athens, a gathering of Roman senators or Charlemagne’s court. Eloquence has never been tied to particular systems of government or concepts of legality; that is why it is both so useful and so suspect. Ancient Athenians complained, as Stone Peters notes, that their government was not a democracy but a theatrocracy. The Romans were, if anything, more overtly conscious than the Greeks of the connection between law and theatre, endlessly quoting Demosthenes, who, when asked to state the three most important elements of rhetoric, answered ‘Delivery, delivery, delivery’. As Stone Peters points out, delivery meant engaging not simply the ear but also the eye, putting on a visual show as well as an oratorical display – and then, as now, speaking without notes was guaranteed to make a favourable impression. The problem, of course, was that maddening discrepancy between persuasion and truth, between the appearance of justice and its reality. When Marcus Tullius Cicero took the stand for a client in ancient Rome, no matter the rights or wrongs of the cause, the other side never stood a chance. And, not surprisingly, jokes about greedy, unscrupulous lawyers are as old as the profession itself.

Advocates like Cicero disappeared with the Roman Empire, but by the twelfth century lawyers had begun to emerge again in Europe as a distinct professional class, their training, like the legal codes themselves, deeply indebted to Roman precedent. Trials, as public events, depended as heavily as ever not only on persuasive performances by individual lawyers but on the pomp and circumstance surrounding the trials themselves, the pageantry of authority. Most of the time, a successful performance was a polished performance, but Stone Peters also presents a vivid series of cases in which the standard rules were broken – to pointedly dramatic effect. A thirteenth-century digest of Saxon law, the Sachsenspiegel of Eike von Repgow, tells of an irate lady named Calefurnia, who, disgusted with the prohibition against women representing themselves in a court of law, lifted her skirts at the presiding judge to show the court her ‘de profundis’ as a measure of her disdain.

Intent on showing the continuities that have governed the Western legal tradition since ancient times, Stone Peters reminds her readers that most medieval trials were not the spectacular ordeals of burning iron or immersion in water. She does, however, concentrate at length on the elaborate procedures of trial and punishment carried out in cases of heresy and witchcraft, both of which reached their apogee not in the Middle ages but rather in the ‘enlightened’ early modern period. These performances, meant to reinforce existing power structures, did not always achieve their desired effect. As she describes it, the ritual defrocking of convicted Bohemian heretic Jan Hus, carried out in public view at the ecumenical Council of Constance in 1415, inadvertently presented Hus all the more persuasively to his supporters as imitating the passion of Jesus Christ (perhaps this is why the defrocking of another convicted heretic, Giordano Bruno, would take place behind closed doors before of a tiny audience of cardinal inquisitors).

The margins between theatre and lawcourt became especially hard to draw for the aspiring lawyers of early modern England, who exercised their rhetorical skills in mock school trials called ‘moots’ but also in their elaborate seasonal parties, their ‘revels’, which often took weeks of meticulous planning and as much, if not more, effort than the moots. Theatrical skills, Stone Peters concludes, were essential both to the honing of persuasive rhetoric and to condition these fledgling lawyers to act like lawyers, instructing them, quite literally, how to play their part in society. As Shakespeare’s Portia says before setting out in lawyer’s clothing, ‘I have within my mind/A thousand raw tricks of these bragging jacks/Which I will practice’. As the young lawyer Balthasar, she dazzles – and fools – the entire courtroom, proclaiming truth – ‘The quality of mercy is not strained’ – under her false disguise, providing consummate evidence for the acuity of Stone Peters’ persuasive analysis.