Judging Performance

A new book has just come out from Princeton Press entitled Judges and Their Audiences: A Perspective on Judicial Behavior. Written by Lawrence Baum, it claims to show how decision making by judges is motivated in large part by how judges imagine their audience will regard their judicial decisions. Based in social psychology as well as empirical evidence, Baum shows how the potential or actual response by a variety of audiences (public, bar, court colleagues) influences a judge’s decision. This seems to be yet another example of legal literature that takes as its premise the situational performance that is the stuff of law.  See Law as Performance by Jack Balkin and Sandy Levinson; De-scribing Law: Performance in the Constitution of Legality by Bernard Hibbitts; Your Second Life? Good Will and the Performativity of Intellectual Property in On-Line Digital Gaming by Andrew Herman, Rosemary Coombe and Lewis Kaye. Struggling with this concept myself these days, I wonder what exactly the term “performativity” adds to the discussion about law as an enacted practice, as a discourse of gestures, language, choreographed position and power. But perhaps that is enough.

Comments

[Dean C. Rowan]

"I wonder what exactly the term 'performativity' adds to the discussion about law as an enacted practice." I often wonder about this, too, even in arenas outside the law. At its core, performativity--like its older cousin, "speech act"--is about as tautological as you can get, and reflects the sad decline of the once hopeful promise of work we associate with deconstruction.

What, by the way, is "an enacted practice"?

[JSilbey]

I understand "enacted practice" to be a routine or process (the process for filing a lawsuit, for example) that is not fully manifested or knowable until it is done. And even then, its normative boundaries (what counts as the "right" way to do it or the "wrong" way) are regularly in flux because it is done over and over, and thus the way to do it regularly changing. In saying this, I think I am rehearsing (without going back to study it) Michel DeCerteau's The Social Practices of Everyday Life, so forgive me if I am a bit sloppy.

"Performativity" I consider more an issue of identity formation -- performance theory goes to how our selves are constructed by our relation to our audience. Speech Act theory goes less to identity (construction of the self) and more to social meaning. It has been a while since I read JL Austin, but I thought his exploration of speech acts was more about the relationship between hermeneutics and epistemology -- how texts mean in various ways (saying versus doing) and how in each instance they can form different communities and relations of people (in part through assertion of knowledge).

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