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Chapter 2

The Many Faces of Aristophanes

The Rise of a Judicial Theater

Diderot: Pioneer, Model, Victim?

Be careful what you wish for. Just three years after imagining a more topical, judicial brand of theater in Le Fils naturel, Diderot became one of its first victims. On May 2, 1760, Palissot’s Les Philosophes had one of the best attended premieres in the history of the Comédie-Française.¹ As its critics stressed again and again, this prodigious success had less to do with its artistic merit (consisting as it did of an unimaginative rewriting of Molière’s Les Femmes savantes) than with its overt caricature of Diderot and Rousseau, among others. To this day, Palissot’s play is largely remembered as a particularly effective salvo in the then raging battle between the philosophes and their adversaries.² Certainly, it was perceived as such at the time, as shown by the fact that the dozens of pamphlets that greeted its premiere split, almost without exception, along expected ideological lines (with anti-philosophes loving the plays and Encyclopédistes hating it).³ This is, in fact, what makes Louis Coste d’Arnobat’s response to it so fascinating. In his pamphlet, he imagines Diderot reconciling with Palissot with these words: “I showed you the very genres you could select. Is it not to my genius that you owe the sublime idea of this drama, which I place between comedy and tragedy? Who other than I could have discovered the fallow space that separated the old comedy from the comédie larmoyante?”⁴ A self-dubbed “friend of everyone,” Coste d’Arnobat is better able to look past the animosity and partisanship of the rival factions and to notice, as a result, the similarities between Palissot’s play and Diderot’s theories. Against every interpretation—old and new—of Les Philosophes, Coste d’Arnobat thus presents Palissot less as a rival of Diderot than as his disciple, the pioneer of a new theater built on insights garnered from reading Le Fils naturel.

Neither Diderot nor Palissot would have been likely to agree with this filiation, of course, yet Coste d’Arnobat is right, in my view, not only to portray Les Philosophes as a new kind of theater, falling somewhere between classical comedy, tragedy, and the tearjerkers of Nivelle de la Chaussée, but also to seek its roots in Diderot’s thought. In fact, I contend that Palissot’s play, by denouncing the transgressions of real-life individuals explicitly named on stage, was the first to bring to life the judicial theater that Diderot had only begun to envision in Le Fils naturel. As is often the case with pioneering works, Palissot’s play proved to be especially controversial and influential, revealing dilemmas and pitfalls intrinsic to judicial theater and forcing its proponents to confront many vital questions. Among these: Who commissions a judicial play? Who legitimizes it and, by extension, its accusations? Can it expose any crime? Target any individual? What role should the audience play? And how will such a theater interact with justice, understood both as an abstract ideal and as an existing institution? These questions inspired a wide array of plays and projects for a judicial theater, with vastly divergent functions, including as an instrument of absolutist rule, a government watchdog, a sovereign court in which to appeal recent trials, and an intrusive system of moral policing.

“An Act of Justice”: Palissot or the New Aristophanes

What could possibly connect Palissot’s play to the dramatic vision of his favorite bête noire, Diderot? One response seems obvious: as in Le Fils naturel, Palissot includes real, living people as characters, in violation of the classical convention of setting plays in a historical or geographical elsewhere. Indeed, most participants in the quarrel noted the novelty (and, for many, the scandal) of seeing, on an official stage, such a transparently satirical play,⁵ which left little doubt as to the real-life identity of the character Dortidius by attributing to him Diderot’s published works (including Le Fils naturel). Palissot and his partisans were quick to mention, however, that Molière had done the very same thing, notably in Les Femmes savantes (the model for Les Philosophes), with the fictitious Trissotin a clear caricature of Charles Cotin. In response, the philosophes repeatedly drew attention to a key distinction between Molière and Palissot: “If the faults that Palissot attacks are merely ridiculous, he has the right to translate them to the stage; Molière, after all, placed well-known marquis and writers on it. But if he imputes dishonorable vices to his characters, if he identifies them personally, calls them, so to speak, by their name, it isn’t in Molière that one should seek past examples.”⁶ What made Palissot’s play so unique, they argued, so different from the satires of Molière, was not just the transparency of its attacks but also their target: odious vices punishable by law—crimes such as stealing and blasphemy—rather than harmless ridiculous traits, such as Cotin’s (alleged) vanity and poetic ineptitude.

Even Élie-Catherine Fréron, a known accomplice of Palissot, condemned the playwright, somewhat disingenuously perhaps, for straying from the moderation shown by Molière: “It seemed, especially at the premiere, as if Palissot had set out to render odious the individuals he wanted to portray in his play, instead of only rendering them ridiculous. It would have been easy to do the latter, for it would have earned him unanimous plaudits. Indeed, it isn’t for having put our philosophers on stage that he has been condemned; it is for having presented them in a guise more revolting than comical.”⁷ To be fair, Palissot’s play was not entirely lacking in comic antics (Crispin’s quadrupedalism comes to mind), but friends and foes alike were struck by its acerbic, denunciatory tone, as well as by Palissot’s transformation of the stock character of the philosophe, a traditional object of ridicule in eighteenth-century comedies, into a seditious criminal.⁸ In fact, the play was frequently condemned for the virulence and gravity of its attacks on the philosophes, which were submitted as evidence that the author’s “intent to harm” had supplanted the classical aim of comedy: to improve morals.⁹ As a result, critics engaged in a telling debate on Les Philosophes’s genre, in an attempt to determine whether a play which so clearly lacked “that playful tone that rebukes without causticity, / and strikes a ridiculous trait while preserving honor” could still be labeled a comedy.¹⁰ Most concluded that it could not and that it heralded a new kind of theater in France.

Palissot could have contested the validity of this criticism, as some of his supporters did, but he opted instead for a surprising apologia of his play’s indignant tone: “To the accusations of maliciousness leveled against me, I will respond only with Mr. Diderot’s wise and remarkable words: ‘I know it is often said of works where the authors gave in to their indignation: This is horrible! One should not treat people so harshly! … [Yet] posterity only sees folly, vice, and malice covered with ignominy, and it rejoices at this act of justice…. Only a reprehensible weakness keeps us from showing the intense and profound hatred for baseness, envy, and duplicity that all honest men must feel.’”¹¹ Palissot’s homage is undoubtedly lacking in sincerity, seeking, as it does, to expose Diderot’s hypocrisy, but it reveals more than Palissot likely intended, in that it hints at a basic homology between his play and the artistic vision of the men it lampooned. Indeed, the vast majority of philosophes agreed that the theater ought to condemn vices with the full force of indignation, instead of cheerfully mocking ridiculous traits—precisely the tone and target that now saw Palissot’s play facing widespread criticism.

In rejecting classical comedy’s embrace of ridicule, the philosophes challenged its raison d’être. In his Lettre à d’Alembert, Rousseau explains that comic playwrights, such as Molière, chose to portray vices in exaggerated forms—as ridiculous traits—because they aimed above all to elicit laughter. They justified this pursuit of laughter as vital to comedy’s moral purpose—the oft-invoked “castigat ridendo mores”—since laughter proved that the spectators had correctly identified the ridiculous character’s vice, distanced themselves from it, and begun as a result to preserve themselves from it. In his famous critique of Molière’s Misanthrope, Rousseau dismantles this moral program by contesting its premise that ridiculous traits and vices are essentially linked, the former a direct symptom of the latter. On the contrary, he contends that they often exist in opposition to one another.¹² In the words of Mercier, “the virtuous man … is sometimes made to look ridiculous, while the vicious man, more adept, avoids this fate by concealing his every act.”¹³ Comedies teach spectators to become that skilled man who fears and eschews external behaviors perceived as ridiculous, the better to indulge in his inner vices: “comic hyperbole does not render objects detestable, it only makes them ridiculous, and from this results a great harm: we come to fear ridicule so much that vice no longer scares us.”¹⁴ Comedies thus provide a lesson in duplicity, transforming one vice into two. Nowhere is this more evident than in Diderot’s Neveu de Rameau, when the titular character explains his love of classical comedy: “When I read Tartuffe, I tell myself: be a hypocrite, if you wish, but do not speak like a hypocrite. Keep the vices that are useful to you, but avoid a tone or an appearance that would make you look ridiculous.”¹⁵ Molière’s Tartuffe, French theater’s most illustrious condemnation of hypocrisy, therefore results, paradoxically, in even greater hypocrisy on the part of its spectators.

In fact, the vast majority of philosophes condemn le ridicule not only as the wrong target (in the play) but also as the wrong response (in the pit), on the grounds that laughter is intrinsically immoral. Louis-François Nouel de Buzonnière, author of the revealingly titled Essai sur les moyens de rendre la comédie utile aux mœurs, deplores that while laughing at a comedy, “each says to himself: I do not resemble this man here, I am more excellent than he. It follows that comedy, whose aim it is to improve morals, makes them worse, since it helps spread and strengthen egotism.”¹⁶ Laughter inevitably divides and excludes, instilling in the spectators an undeserved sense of superiority. The debate about the proper tone and target of comedy thus takes part in a broader conflict about laughter. In the 1750s and ’60s, this war opposed the chevaliers du bel esprit, a small but prolific group of noblemen, self-appointed protectors of Gallic wit, raillery, and levity, and the philosophes, who favored a solemn, militant tone and worldview and condemned the culture of aristocratic laughter for its inequality, superficiality, cruelty, and conservatism.¹⁷ Palissot belonged to the former; Rousseau and Diderot to the latter. While Rousseau’s unease with laughter is legendary, Diderot’s rejection of it may come as more of a surprise, given his penchant for mystification and persiflage. Yet as Jean Goldzink has shown, Diderot builds his vision of the theater in Le Fils naturel on the deliberate and explicit exclusion of laughter.¹⁸

In lieu of classical comedies, the philosophes championed a new kind of theater, tasked with representing modern vices accurately and exposing their social costs on stage. Stripped of any comic hyperbole, such plays would elicit righteous indignation and popular condemnation, instead of laughter, thereby impressing on guilty souls in the parterre the true depravity of their vice.¹⁹ Even Rousseau, in spite of his general opposition to the theater, appears willing to make an exception for militant plays of the sort: “Certainly, plays based, like the Greeks’, on the past misfortunes of the fatherland or on the present-day flaws of the people could provide their spectators with useful lessons.”²⁰ Indeed, the philosophes hoped that a more solemn tone and lifelike depiction of vices would return the theater to its social function in ancient Greece: a scathing denunciation of the most shameful and detrimental flaws among its spectators. It is of course ironic to find this hope realized in the writings of Palissot. As a chevalier du bel esprit, he had sworn to combat the evolution from wit to serious, solemn topics, yet he seems to have succumbed to it. One of his earliest plays, Le Cercle, had ridiculed the philosophes, but in the style of Molière, harmlessly mocking their vanity, eccentricities, and intellectual poppycock, without accusing them of odious crimes. His next work, Petites lettres sur de grands philosophes, had adopted a far more personal and denunciatory tone, with much of his indignation leveled specifically at the recently published Fils naturel. In fact, there may be no better indication of the influence of Diderot’s aesthetic treatise than the part it played in converting a man who had set out to disprove it. Three years later, Palissot would write Les Philosophes in the accusatory tone of his Petites lettres, rather than the more jocular one of Le Cercle (despite one scene in common, tellingly the most classically comedic of the play, showing a Rousseau-like figure crawling on all fours). Palissot was unlikely to admit it, but his career had followed the precise path that the philosophes had traced for the theater.

Of course, the aim here is not to reclaim Palissot as a closet philosophe (even if he was less ideologically rigid than his reputation today suggests).²¹ Nor is it to question the sincerity of his hatred for bourgeois drama and for one of its founding texts, Le Fils naturel. Yet although Palissot truly disdained the maudlin and verbose bourgeois drama that he saw (like many today) as Diderot’s principal contribution to French theater, he appears to have found other aspects of Le Fils naturel more to his liking—first, the notion that the theater could and should function as a tool of social activism, seeking to transform the here and now through the overt reenactment of contemporary issues and figures on stage; and second, the notion that the theater ought to target dangerous transgressions instead of harmless, ridiculous traits, in a solemn, indignant tone that Palissot ties explicitly, if sarcastically, to Le Fils naturel.²² When combined, these two notions transform the theater from a superficial divertissement (classical comedy, in Diderot’s eyes) or a moralistic sermon (bourgeois drama, in Palissot’s) into—in the words of Diderot, reprised by Palissot in defense of his play—a veritable “act of justice.” Indeed, in its denunciation of grievous crimes committed by real people (the philosophes stood accused of sedition and irreligion), Palissot’s play truly inaugurated a new “judicial theater,” the likes of which, the author of “Les Si et les mais” had reminded us, was not to be found in Molière.

To understand this new genre, the participants in the quarrel turned instead to the theater they deemed its closest equivalent—the satirical plays of Aristophanes. Both philosophes and anti-philosophes harked back almost obsessively to the Greek playwright and in particular to his most notorious play, The Clouds, in which he had publicly attacked his own philosopher-foe, Socrates. For Palissot’s victims to liken him to Aristophanes was anything but unexpected—and not just because such a comparison carried the added benefit of equating them with Socrates! “Aristophanes” was one of the epithets most commonly used to belittle authors suspected of personal attacks, reflecting the near universal contempt in which the Greek was held for most of the early modern period.²³ To the vast majority of seventeenth-century thinkers, the plays of Aristophanes embodied not just one but three features of bad comedy. Their narrow topicality limited the universality of their moral and philosophical lessons and of their beauty.²⁴ Their satirical barbs were inspired by base, personal passions, such as hatred and vengeance, transforming the arts into a toxic battlefield of egos.²⁵ And last but not least, their brand of humor was crude and indecent, clearly intended for the Athenian rabble.²⁶ As a result, nearly every seventeenth-century thinker traced the birth of true comedy, the moral and sophisticated plays of Menander, to the passage of a law forbidding the representation of actual people on stage. They believed their own century to be carrying out a similar refinement of the theater, even praising Molière as “the French Menander.” Not surprisingly, then, the philosophes seized on the opportunity to portray Palissot’s play as a regression to the barbaric origins of the dramatic arts: “Isn’t it shameful for France to have, in a way, ended up where Greece began?”²⁷ Like many others, the anonymous author went on to note that Aristophanes, by accusing Socrates of odious crimes, had laid the ground for the subsequent trial and execution of a wise and innocent man—a fate that, Voltaire worried, might now befall the modern philosophes.²⁸

If the accusation was all too predictable, the response was anything but. Unlike prior satirists, who had denied any resemblance to Aristophanes, Palissot welcomed the comparison, decreeing with his customary modesty that his play had singlehandedly brought the theater back to its first institution.²⁹ Many of his allies followed suit. In a sign of the profound changes then taking place in the perception of the theater and of its social function, a large number of authors actually praised Les Philosophes for reviving the judicial theater of ancient Greece and, more specifically, Aristophanes’s The Clouds. There had been, it is true, a few earlier attempts by Aristophanes’s translators, chief among them Anne Dacier³⁰ and Pierre Brumoy,³¹ to defend the subject of their labor. Yet while these attempts sketched the broad outline of a more flattering portrait of Aristophanes, which Palissot and his partisans would later appropriate, strip of all ambiguity, and disseminate, they remained as ambivalent as they were scarce. Certainly, no one before the anti-philosophes dared push Aristophanes’s rehabilitation so far as to wish for his rebirth, and all struggled, above all, to justify his writing of The Clouds (Dacier does not even attempt to do so, while Brumoy merely argues that Aristophanes’s play, while a vengeful, spiteful act, was not directly responsible for the death of Socrates more than two decades later). The anti-philosophes went much further: they argued that the play was the result of Socrates’s many flaws, not of Aristophanes’s. For instance, Ignace Hugary de Lamarche-Courmont asserted that Socrates had been “an agitator, an enemy of the State and of humanity, a false philosopher,” as well as a dangerous atheist.³² Of course, these accusations were precisely those leveled against the philosophes, so that, in defending Aristophanes, Lamarche-Courmont also vindicated Palissot.

The anti-philosophes dismissed another standard critique of Aristophanes’s theater: that its primary ambition lay in amusing the rabble through lewd puns, burlesque caricatures, and farcical acts of shocking boorishness. Here, they could draw on Brumoy’s hugely influential anthology, Le Théâtre des Grecs, for decades if not centuries the foremost introduction to Greek drama for would-be Hellenists.³³ In a lengthy preface, Brumoy admonishes his predecessors, Dacier and Jean Boivin, for their overly literal translations of Aristophanes’s plays, including the many instances of lowbrow humor.³⁴ He prides himself on presenting his readers with a morally and aesthetically pleasing Aristophanes, a feat of whitewashing that he accomplishes by alternating between translations of acceptable verses and vague syntheses of the indecent episodes in the satirist’s oeuvre (as a result, The Clouds spans only forty-four pages in Brumoy’s collection). In so doing, Brumoy obliterates a good deal of the comic verve that had made Aristophanes such a popular playwright in his own time, but renders him more palatable to a period increasingly ill at ease with the idea that laughter was an acceptable end, in and of itself, for the theater. Brumoy thus rewrites The Clouds in a more solemn tone, transforming the play so that it read less like a grotesque caricature—but a relatively harmless one, precisely because of its comical excess—and more like a grave denunciation.

If Aristophanes was not motivated by personal vendetta or greed, nor by a longing for popular laughter and acclaim, why did he even write a satirical comedy? The anti-philosophes found an answer, and a justification, in an alternate depiction of Aristophanes as a protector of the common good. In this reading, already present in Dacier’s preface, Aristophanes was nothing like the cruel jester, casting ridicule on private citizens, that most believed him to be, but was rather a serious and courageous poet, who had earned the esteem of his contemporaries by using his dramatic talent to expose the threat that specific individuals posed to society and its laws. This view of Aristophanes remained, however, largely marginal and ambivalent (even within Dacier’s work), for two main reasons. First, it seemed impossible to reconcile with his most notorious play, The Clouds, so beloved and innocent was the victim, Socrates. And second, it offered no clear distinction between the comedies of Aristophanes and the satirical tracts so common, and so reviled, in early modern France. As Romain Piana notes, satire had little support in the seventeenth and eighteenth centuries because it had no place in a society that understood justice as emanating from a sovereign being. However pure their intentions (to protect the state), the satires of Aristophanes, like those of lesser libelers, remained the works of private citizens, without official authority, and as such, illegitimate acts of justice. To quote Piana, “only through the transfer of an authority akin to the divine auctoritas can diabolical calumny be avoided.”³⁵ This awareness of the razor-thin line between legitimate denunciation and slander inspired, according to Piana, Brumoy’s major contribution to a more positive portrayal of Aristophanes. In his preface, Brumoy argued that Aristophanes wrote for the state—not only in defense of it but also on its behalf. Rather than a mere private citizen, Aristophanes was a censor, an official employed by the state, and thus legitimized by it, for its protection. The anti-philosophes embraced and developed this vision of Aristophanes with unparalleled vigor and certainty. Unlike Dacier and Brumoy, they even extended it to The Clouds, arguing that, as in all his other plays, Aristophanes had been charged by the state with exposing and punishing the machinations of a seditious freethinker, Socrates.

Not only did this new performance history for The Clouds offer Palissot and his allies yet another opportunity to nettle the philosophes, for whom Socrates was a model and idol, it also enabled them to turn one of the most frequent criticisms of Palissot’s play—that it amounted to little more than a piece of government propaganda—into a positive. Indeed, many pamphlets responding to Les Philosophes made a special note of the government’s unusual involvement in promoting its performance. Stories abounded, claiming that the foreign minister, Étienne François, Duc de Choiseul, had coerced the royal censors and that Fréron had threatened the reluctant actors. In his Correspondance littéraire, Grimm emphasized for his foreign readers how unprecedented this state-endorsed performance truly was.³⁶ While the monarchy had always kept a close watch on the theater, banning topical plays and encouraging allegorical depictions of its own grandeur, never before had it used its authority with such penal intent by ordering the performance of a play to punish individuals it considered a threat. To counter the philosophes’ outcry, Palissot could point to the example of The Clouds and assert that the state’s support, far from devaluing his act, actually gave it its legitimacy. He did so, notably, by inventing a fascinating dialogue between Aristophanes and Brumoy, in which the Greek playwright chastises his translator (unfairly, as we have seen) for not understanding the true nature of his state-sponsored denunciations: “My plays were not secret, obscure satires; they were performed on solemn days, before the assembled people and magistrates. They were intended to serve as punishment for those crimes against society upon which the Law had not imposed a penalty.”³⁷ Palissot sees the presence and involvement of the magistrates—some anti-philosophes believed they had commissioned The Clouds; others, that they had examined it before the premiere—as evidence that Socrates had been tried and found guilty by the government, not by Aristophanes, whose play merely enacted the sentence.³⁸ (In that sense, the execution of Socrates twenty-three years later can be read as a reenactment, made necessary by the failure of the first dramatic enactment to silence Socrates). As Palissot notes, this means that Aristophanes’s judicial theater was not intended to function as a trial, which allows for debate and the possibility of the accused’s innocence, but as a special “punishment” for crimes against society, a judicial shaming with the same legitimacy as the public execution of a criminal, because it too emanated from the government.

In fact, Palissot goes on to claim, judicial theater served as an alternative to the official justice system by allowing the state to combat transgressions that posed a threat to society but were not included in the legal code. For Palissot, the raison d’état is the raison d’être of judicial theater: extralegal actions are sometimes necessary for the good of society and are completely legitimate, so long as they are undertaken by the proper authority. Fascinatingly, in a footnote to the passage above, Palissot links this vision of the theater, once again, to his archrival Diderot. He cites a passage from De la Poésie dramatique, published two years before the premiere of Les Philosophes, in which Diderot calls for the government to revive the judicial theater of Aristophanes because it is a more humane and effective way to punish certain transgressors than legal recourse, which risks transforming them into martyrs: “What is Aristophanes? An original jester. An author of this sort must be precious to the government, if it knows how to use him. It is to him that the fanatics who occasionally disturb society must be abandoned. If we expose them on stage, they won’t fill our prisons.”³⁹ Diderot champions here a new kind of theater, modeled on the satirical comedies of ancient Greece. He dreams of plays that are not superficial divertissements but state rituals, used by the government to punish real crimes (not ridiculous traits), especially those posing a threat to society, yet outside the purview of the legal system. Les Philosophes, Palissot slyly argues, had fulfilled Diderot’s wishes; like The Clouds, it had condemned a sect of fanatical freethinkers sapping the foundations of the state. In so doing, it had restored the theater to its former role as a punitive arm of the government, working in tandem with the justice system.

Mercier’s “Divine Weapon”: A Third Aristophanes Is Born

Diderot thus found himself in a challenging position, the victim of a play that, in another context, he might have praised as a realization of his own judicial vision of the theater. Bertrand de Latour hinted at this dilemma when he argued that eighteenth-century philosophes, whom he despised almost as much as the theater, had a harder time defending themselves against satirical plays than previous targets such as Socrates, because they had previously celebrated the very art form now turned against them.⁴⁰ Indeed, after 1760, Diderot’s thoughts on judicial theater appear a jumble of contradictions. In all likelihood as a result of his onstage persecution, Diderot paints a far less eulogistic portrait of Aristophanes in his Mémoires pour Catherine II than he had in De la Poésie dramatique, calling him and his successor Palissot “perverse.”⁴¹ And yet, in the very same text, he tries to convince Catherine II never to use force against leaders of religious sects, a tactic which, Diderot claims, only gives them renewed resolve and a sense of righteousness, by arguing that fanatics should instead be portrayed with scorn and derision on public stages.⁴² So alluring was the dream of a state-run, satirical theater that even Diderot, the principal victim of the most egregious personal attack in pre-Revolutionary French theater, could still not bring himself to forget it completely. Or could he? In his Paradoxe sur le comédien, which he started writing in 1773, the same year as the Mémoires pour Catherine II, he abandons one of the key precepts from his own Fils naturel and praises “the protocol of the old Aeschylus”—as he calls the rule against putting real events and people on stage.⁴³

Such inconsistencies echo the ambivalence that the philosophes felt, more broadly, toward satire. Hence, Voltaire wrote lengthy treatises condemning the maliciousness and ineffectiveness of satire, notably his Mémoire sur la satire and Épître sur la calomnie, and slammed Aristophanes in his Dictionnaire philosophique, even stating that the Athenians, for having esteemed his plays, deserved their subsequent enslavement!⁴⁴ Yet he also relished the fame reaped from his own personal attacks on Rousseau and Fréron, including a satirical play, L’Écossaise, performed in response to Les Philosophes.⁴⁵ What’s more, most philosophes, including Voltaire, were drawn to the English use of satirical tracts as a vital protection against corrupt political figures. They argued, like Louis de Jaucourt, that “it is less dangerous for a few honorable individuals to be unfairly defamed than for no one to dare enlighten the nation on the conduct of the powerful.”⁴⁶ In fact, according to Volker Kapp, the term “satire” came to be understood in eighteenth-century France less and less in moral and personal terms and more and more as a means of civic involvement.⁴⁷ Voltaire both illustrates and extends this important distinction between private and public satire in his praise for the English model: “In England, it seems that the law gives each private individual the right to attack any official in his public character, but protects the reputation and the private conduct of all citizens.”⁴⁸ For Voltaire, the ideal form of satire is doubly public: it targets governmental figures, rather than private citizens such as rival authors, and it focuses exclusively on crimes that impact the common good, not on the purely private vices of those in power.⁴⁹

Not surprisingly, the philosophes made a similar distinction between different types of judicial theater. As we saw, years before Palissot’s play, they had imagined a judicial theater overseen by the state and using satirical accusations to discredit private individuals and beliefs it deemed dangerous. The performance of Les Philosophes, however, made it impossible to ignore that such a theater could just as easily serve as a weapon against thinkers and artists promoting positive social change as it could against religious fanatics. This compelled the philosophes reluctant to abandon the dream of a judicial theater to seek an alternative portrait of Aristophanes. To find one, they needed to look no further than their own Encyclopédie, where Jean-François Marmontel had painted the many faces of Aristophanes, including the vile satirist who wrote obscene comedies for the rabble (the seventeenth century’s vision), the state-commissioned censor who targeted private citizens (Palissot’s vision), and a third Aristophanes, the author of “political satires,” who exposed on stage the corruption of magistrates, the failings of generals, and the ill-conduct of rulers.⁵⁰ Written before Les Philosophes, Marmontel’s article shows the least aversion toward the second Aristophanes, recognizing, as Diderot once had, the benefits of a system in which state-appointed playwrights could punish dangerous vices beyond the reach of the law.⁵¹ Yet in the decades that followed Palissot’s play, and as the philosophes faced ever-growing scrutiny and hostility from the government, they increasingly turned their attention to the plays of the third Aristophanes, particularly The Knights, which had exposed the seditious machinations of the politician Cleon. Thanks to its specific focus on the criminal acts of the ruling class, this form of judicial theater more closely resembled the English satire praised by Jau-court and Voltaire and ensured that a play like Palissot’s would never again be performed.

For many philosophes, in fact, The Knights amounted to a near-perfect inversion of The Clouds (claimed as a model by Palissot). In the latter, a public official had used the theater to expose a dangerous private citizen, whereas in the former, a private citizen had used the theater to expose a dangerous public official. Unlike Palissot, who wished to add judicial theater to the monarchy’s disciplinary arsenal, the philosophes portrayed the early Athenian theater as a site of public engagement allowing enlightened authors to monitor and publicly denounce their rulers. So convinced, in fact, were many eighteenth-century thinkers of the essential link between civic participation and judicial theater that they argued that Athens’s transition from a democracy to an aristocracy after the Peloponnesian War, and the resulting decline in the citizenry’s political involvement, was the real reason behind the disappearance of Aristophanes’s “political satires.”⁵² Though the parallel was left unstated, all likely understood that, as in Athens, the centralization of power in seventeenth-century France (into an absolute monarchy) had led to conventions against the dramatization of current events and people. This does not mean, of course, that the philosophes—very few of whom believed in democracy—were opposed to this evolution. While some wrote glowingly of the verve, freedom, and tangible impact of plays like The Knights, lamenting that the shift away from targeting public officials had culminated in the timid theater of the seventeenth century, filled with “languid moral tirades” and “tedious aphorisms,”⁵³ others stuck to the classical view that the disappearance of political satires had purified the theater, turning it into a more aesthetically pleasing and morally edifying art form.⁵⁴ Nevertheless, the very fact that they centered their debates on Aristophanes as a private censor of the government, rather than as the government censor favored by Palissot, is quite telling, especially when read side by side with their praise for the British vision of satire. Together, they reveal a desire to open the government to greater supervision and control by the wisest of citizens—men of letters.

Even as they remained mostly torn about Aristophanes, the philosophes thus called attention to a more liberal function for judicial theater. This inspired some of the more politically progressive among them, notably Mercier, to formulate in explicit terms a proposal for the revival of satirical plays modeled on those of the third Aristophanes. At first glance, Mercier may appear just as ambivalent as the others. Scattered in his voluminous oeuvre, one finds frequent attacks against satire, most quite typical: it irritates instead of amends,⁵⁵ it transforms the republic of letters into a factious arena, bursting with inflated egos and petty vendettas,⁵⁶ and it distracts authors from addressing serious matters by engaging them in superficial squabbles.⁵⁷ Yet for Mercier, these flaws are not inherent in satire but are the result of its cooption and corruption by the government. Indeed, he believes, not without reason,⁵⁸ that the shallow, divisive satire common in his time received covert protection and financial support from the state, which feared that a united republic of letters might otherwise have the time and freedom to examine the conduct and expose the crimes of public officials.⁵⁹ Rather than prohibit satire and risk becoming its prey, the government neutralized it by turning it against its own authors, ensuring that they tore each other apart, like Palissot and the philosophes, instead of investigating and exposing their rulers’ transgressions. In response, Mercier reaches the bold and perhaps unprecedented conclusion that “the government must not concern itself with poetics.”⁶⁰ Men of letters must be entirely free from governmental meddling, whether through censorship or patronage, for satire to attain its purest, most disinterested form, of genuine benefit to society.

To this condition, Mercier adds another: “It is only permissible to wield the stylus of satire against those the laws cannot reach, that is, against those public figures who, having everything, honors, wealth, authority, power, would be too dangerous if they did not at least fear the mirror of truth. But to target a private individual, who has no influence on public affairs, is to avenge one’s vanity, to only see oneself, and to divert from its function a divine weapon.”⁶¹ Satire must not only be free of interference from the rich and powerful, it must choose them as its sole target. A “divine weapon,” it must spare private citizens but hang like the sword of Damocles above the heads of public figures. The plays of the third Aristophanes fulfill these conditions, and it is therefore not surprising to find Mercier calling for the rebirth of such a “salutary institution.” Were the judicial theater of antiquity revived in France, as Mercier believed it already had been in Britain, thanks to “the English Aristophanes,” Samuel Foote, “the essence of comedy would be to carry the torch of truth into the shadowy lair where evil men plot their crimes, to break through opulence and majesty to reach the would-be tyrant, and to drag him trembling into the light.”⁶² The exclusive targeting of criminals from the rarefied world beyond the reach of the law allows Mercier to sidestep the authoritarian implications of Palissot’s theater and defend the right to privacy of ordinary citizens (including the philosophes).

Crucially, it also guarantees that Mercier’s judicial theater operates within the rule of law, in contrast with Palissot’s extralegal vision. For Mercier, satirical plays serve as an extension to the justice system, not as an alternative to it. As a result, he assigns an innovative and remarkably ambitious mission to playwrights, whose role is no longer to entertain but rather to ensure that the laws apply to everyone, even those who, due to their social status, have long been able to commit crimes with impunity: “The poet will feel the need for all individuals to become once more equal before the laws.”⁶³ This is why Mercier tends to depict satirical plays as trials and not, like Palissot, as punishments ordered by a supreme authority above the law. For instance, he calls judicial theater “a sovereign court”—a tribunal with jurisdiction over everyone, regardless of rank.⁶⁴ This sovereign court, Mercier explains, would open up a space where private citizens could come together, reveal and discuss purported abuses of power, and reach a verdict for or against their rulers.⁶⁵ It is not surprising that Mercier would locate this space in the theater. A unique site of assembly and direct participation—to quote Mercier, “a playhouse is our only meeting point where men can assemble and their voices rise together”⁶⁶—the theater was particularly well suited to endowing the people with the task of a sovereign judge, accepting or rejecting accusations leveled against the rich and powerful.

Judicial theater thus entailed a new mode of audience involvement. That the eighteenth century’s vision of dramatic judgment was changing, and how, can be seen in a fascinating campaign against applause. While it is possible to find a few condemnations of clapping in the first half of the eighteenth century, Diderot started an unprecedented movement against applause when he wrote in 1758: “the true applause you should seek to obtain is not the clapping that can suddenly be heard after a resounding verse, but the profound sigh that comes from the soul.”⁶⁷ The exact same argument was subsequently reprised by Mercier, Rétif, the celebrated actor Jean Mauduit-Larive, and countless others,⁶⁸ becoming so ordinary, in fact, that by 1785, Jean-Baptiste-Antoine Suard could state: “The question has often been raised whether it would be useful to eliminate applause and ovations from our spectacles.”⁶⁹ The reasons behind this aversion to applause (an unusual sentiment among actors and playwrights!) are diverse, but fall, I contend, under three categories, each associated with a different fear of fragmentation.

First, applause fragments the play. Hasty and loud, it interrupts poignant moments and speeches, breaking them into pieces before they have reached their full impact.⁷⁰ What’s more, clapping often highlights a single aspect of the performance, such as the acting of a given performer or a particularly witty line. In so doing, Louis Charpentier argues, applause divides the theatrical experience into a series of discrete reactions to isolated, formal elements.⁷¹ This fragmentation not only reveals an overly analytical relationship to the stage, it also cultivates it. Understanding a performance as a succession of elements to be applauded or hissed according to preexisting notions and rules inspires the spectators to engage in puerile debates about “the art of moving a spectator,” with the ironic result that none is actually moved.⁷² The same reasoning even leads Grimm to conclude that praise or applause for specific verses in a play constitutes in reality an involuntary critique of its overall emotional impact, since it shows that the performance failed to move the audience enough for it to abandon its fragmented and fragmenting vision of the theater.⁷³

Second, applause fragments the theatrical space, separating the audience from the stage. As Mercier explains, “it is when a deep and somber silence reigns in the auditorium, when the spectator, broken-hearted and teary-eyed, has neither the idea nor the strength to applaud that, immersed in a victorious illusion, he forgets the actor and the art.”⁷⁴ Applause is incompatible with the mode of reception praised in Le Fils naturel, in which the spectator forgets the theater and experiences the fiction on stage as a real, spontaneous event, for two reasons—first, as we saw earlier, because it directs the audience’s attention to the formal, artistic qualities of the performance, and second, because it is an arbitrary expression of a purely aesthetic response, which reminds neighboring spectators that they too are watching a dramatic production. By making it difficult, if not impossible, to forget the theater, applause prevents Diderot’s self-projection into the fiction: “The spectator, having given himself fully to the illusion, sees with displeasure that an unexpected sound pulls him out of Athens or Rome and coldly puts him back in his place.”⁷⁵ The poor neighbor of the serial clapper is expelled from the world of the fiction, thereby deepening the divide between stage and auditorium. In fact, for Mercier and other theatrical reformers, the practice of clapping became a sign of an immoral distance, born of a refusal to invest emotionally and personally in the content of the play. That anyone confronted with the reenactment of genuine injustices could choose to engage in aesthetic contemplations struck these reformers as evidence of the superficiality and heartlessness of their time.⁷⁶

Third, applause fragments the audience. Charpentier condemns it, and more broadly the analytical mindset that inspires it, for splintering the audience into cabals.⁷⁷ The enemies of applause often note that it is far less contagious than sincere displays of emotion such as tears and laughter. This is because a heartfelt emotional response to a play becomes itself a spectacle that generates emotions in neighboring spectators. To quote Marmontel, one cries first “from the direct impression of the touching object,” but soon also “from seeing others cry.”⁷⁸ Marmontel goes on to describe this sentimental contagion as “a kind of electricity,”⁷⁹ a popular metaphor that beautifully conveys the circulation of emotion from one spectator to the next, until all feel as one. By contrast, insofar as applause is perceived to express a subjective, analytical judgment, the sight or hearing of it appeals to the reason, not the emotion, of other spectators, and thereby invites disagreement. This claim stems from the belief, increasingly popular in the eighteenth century, that while all can sense beauty, none can fully define it or establish fixed rules to assess it. Consequently, judgments based on artistic conventions and models are likelier to breed conflict than ones based on sensation.⁸⁰ For this reason, Mercier and Marmontel, among others, proclaim the people gathered in the parterre a better judge than the elites in the galleries. The more popular, passionate parterre does not rely on rules or erudition but on “a superior instinct,” a spontaneous, emotional reaction to beauty that ensures the spectators feel and judge in unison. Applause has the opposite effect; it cultivates the analytical mindset of the elites, spreading the division and endless pedantic squabbles all too common in the galleries.⁸¹

Eighteenth-century theatrical reformers dreamt of a different mode of reception, free of the fragmentation revealed and fostered by applause. Nowhere was this ambition more evident than in their support for a judicial theater. Immediately after endorsing the theater as a “sovereign court,” Mercier states that it would bring the nation together in vocal denunciation of the political crimes and inequities of the day, its judgments so clear, direct and unanimous that they would resonate like the “thunder of posterity.”⁸² Indeed, more than any other genre, judicial theater presupposes an audience that is focused on content (not fixated on formal elements), participatory (not excluded from the stage), and united (not divided into cabals). Reenactments naturally encourage their spectators to pass judgment on the real figures and incidents depicted, rather than on how they are depicted. The audience’s task is not to evaluate a work of art, but to exonerate or condemn an actual human being. This negation of a critical, aesthetic relationship to the theater echoes the one in Le Fils naturel: it too entails the erasure of the dramatic audience as such and its replacement by participants in a ritual ceremony.

Indeed, judicial theater seeks to inspire its spectators to participate directly and personally in the events on stage. In an insightful article, Pierre Frantz has shown that Mercier aspired to write historical dramas able to compete with the dominant narrative structure of classical tragedies, which he accused of suppressing the part played in French history by the common people, first by deifying sovereigns and aristocrats, and second by promoting a fatalistic understanding of history designed to accustom its plebeian audience to assume a passive stance toward political events.⁸³ Likewise, judicial theater challenges (even more effectively, in my view) this classical vision of theater and history by desacralizing present-day leaders, not just historical ones, and by rendering manifest, through the judgments of its spectators, the people’s right and duty to participate directly in the unfolding history of the nation. According to Frantz, Mercier was also drawn to new dramatic genres like historical drama because of their narrative openness, which, unlike the formulaic, teleological structure of tragedies, freed the playwright to reenact a more authentic history, consisting of chaotic and random acts, performed by ordinary citizens as often as by monarchs. Judicial theater shares this conception of history, but goes even further by putting it into action, insofar as it gives everyday people the opportunity to write the history of their own time.

Lastly, judicial theater best unites its sundry spectators. Such a claim may seem odd, given the quarrel surrounding Palissot’s play, but Mercier and other partisans of judicial theater truly believed that unlike critical debates on aesthetic issues, which invariably divided audiences, emotional judgments on current affairs were far likelier to foster unanimity: “This tribunal often issues sentences of great accuracy and sometimes of a subtlety beyond all expectations. Above all, it discerns, by a sort of instinct, the friends as well as the enemies of the common good. It is courteous, but it performs justice when necessary.”⁸⁴ Spectators will argue over a clunky alexandrine but never over the guilt of a public enemy. That they listen to this “instinct” toward goodness has much to do with the electrical contagion described earlier, which amplifies their indignation and sorrow until it becomes impossible to ignore the voice of nature. In a deeply affected parterre, according to Mercier, “each spectator judges as a public individual, not as a private one: he forgets his personal interests and prejudices alike; he is just against himself.”⁸⁵ A spectator moved by public emotions and focused on public matters and figures will best be able to overcome the private interests and prejudices (such as the desire to be seen as a connoisseur, or to show off one’s membership in a particular cabal) that prevent the isolated, analytical spectator from listening to his instinct. Judicial theater thus enables the expression of a tangible public opinion, a potent, unified voice devoted to the cause of justice.

This vision of judicial theater mirrors Dorval’s by the end of Le Fils naturel. From a fixed, autocratic ritual used by the powerful (Lysimond, the crown, etc.) to impose their law and punish transgressors, judicial theater develops into an open-ended trial, a free forum enabling a community to come together and discover, debate, and decide current affairs. Just as Dorval ultimately rejects his father’s vision of reenactment as an instrument of permanence in favor of a more collaborative, evolutive model, Mercier criticizes the dramatic representation, notably in classical tragedies, of complete and inalterable events (since well known, historically distant, and portrayed as fate), preferring instead the reenactment of contemporary issues and figures, whose meaning and impact remain to be determined. Like Dorval, he welcomes this incompleteness because it encourages the spectators to intervene in the performance and transform it. Indeed, the play is only half of the judicial ritual imagined by Mercier; it levels an accusation but requires a verdict to complete it, lest it fail in its function. This verdict is no superficial aesthetic judgment, as with other plays; it is an integral part of the performance, serving as the play’s ending and determining its social impact and meaning, as either a courageous censure or a contemptible slander. Mercier is confident that the theater can grow to be strictly the former, so long as it is placed within the hands of enlightened, moral playwrights, tasked with the role of government watchdogs.

Judicial Theater: In Practice

Mercier’s vision of a judicial theater may seem fantastical, especially under an absolutist regime, yet there is much evidence, even beyond Palissot’s Philosophes, that the use of the theater as a tribunal became increasingly common in the final decades of the ancien régime.⁸⁶ Against Mercier’s expectations, however, the credit for this development does not really belong to enlightened men of letters. In fact, until the Revolution, no plays were performed, at least on a public stage, to denounce a government official. This was certainly not due to a lack of interest among eighteenth-century playwrights in assuming the role of intrepid “righters of wrongs.” Mercier, for instance, tried to practice what he preached by writing Charles II, a play that dramatized, quite transparently, a recent transgression by the notoriously debauched Comte d’Artois, but it was never staged.⁸⁷ Several others wrote plays reenacting recent trials, notably the famous Calas affair, both to retry and exonerate the wrongly condemned and to denounce the perverse or corrupt magistrates responsible. In so doing, they realized Mercier’s dream, in L’An 2440, of a dramatic recreation of Calas’s judicial murder⁸⁸—except for the fact that, once again, none of these plays were performed until the Revolution. Royal censorship would not have allowed it—nor, for that matter, any other judicial plays. Surprisingly, Fabre d’Églantine did succeed in having one performed in 1787. His Augusta was, according to the Correspondance littéraire, a thinly veiled reenactment of the infamous trial of the Chevalier de la Barre. Jakob Heinrich Meister underlined the production’s uniqueness (its “interesting audacity”) by claiming that it showed significant progress in the “morals” and “tolerance” of the French, but the play, poorly written to the point of confusion, did not outlast its premiere.⁸⁹ Not until the Revolution and the suspension of censorship would dramatists write plays denouncing corrupt officials in the expectation that they would be performed, with Jean-Louis Laya, in particular, often praised as a resurrection of the “true” Aristophanes (in an explicit contrast with Palissot, guilty of having revived the wrong Aristophanes).

If not the playwrights, however, what prompted the rise of a judicial theater in the final decades of the ancien régime? The answer: those features of the theater largely beyond the censors’ control, none more so than the vagaries of reception. The public, indeed, appears to have found quite enticing the opportunity offered by judicial theater to pass judgment on current affairs, figures, and trials. This interest likely arose from a confluence of factors. As Maza has shown, the remarkable popularity of trial briefs (formerly dry, legal documents meant for the judges’ eyes only, but increasingly mass-produced, highly melodramatic “memoirs” after 1760) led to a widespread obsession with legal matters, as well as a preference for creative works addressing current events directly.⁹⁰ In the same period, dramatic spectators grew more and more convinced that they had both a right and a duty to intervene loudly and frequently during performances, a belief strengthened by the new notion that their judgments served to give voice to a “public opinion.”⁹¹ As we saw earlier, many theatrical reformers not only welcomed this active participation, they called for it to focus on the content of plays, especially as it related to current affairs, rather than on the theater’s formal, aesthetic qualities. Much suggests that their wish was coming true: for instance, Logan Connors has noted the rise in ideological judgments and a “language of denunciation” in and about the theater.⁹² A fascination with justice, heightened participation, and a focus on topical content: together, they produced spectators eager to transform the theater into a tribunal where they could judge the present, whether the plays lent themselves to it or not.

One such instance came during a performance at the Comédie-Française of Mustapha et Zéangir, to which Victoire Salmon, a servant unfairly accused of poisoning her masters, had been invited as a guest of honor, along with her lawyer. The incident that ensued during Salmon’s first ever outing to the theater is particularly interesting, because it reveals the many ways that the theater had grown to perform a judicial function. It began when Salmon lost herself in the fiction, reacting to the duplicity of the play’s villain by crying aloud “He’s lying, he’s lying!” before turning to her lawyer and exclaiming “Ah! my god, papa; he’s a false witness!”⁹³ She thus assumed the role of a moral judge (rather than an art critic), expressing a grave indignation at a criminal act (perjury)—precisely the relationship to the stage favored by partisans of a judicial theater. Yet the intensity of her response, resulting, as every spectator knew, from the remembrance of her own torment at the hands of dishonest accusers, led the rest of the audience to cease watching the play entirely and focus instead on the lamentations of the spellbound Salmon. It is telling that the audience abandoned the artistic, general fiction on stage for the more authentic and topical reenactment by Salmon of her previous part as a persecuted defendant during her trial. Through its tears of compassion and cheers of support, the audience transformed her into a character in a new performance, part theater, part trial, in which it played the role of a judge, proclaiming her innocence and condemning her accusers in a unified voice (thereby supporting Mercier’s belief that one can judge a person’s virtue by observing his or her reactions to a theatrical performance, and that spectators may disagree about aesthetic questions but will all instinctually know signs of innocence when they see them).

Yet the story did not end there. In a further twist, during the evening’s second play, the actress Mademoiselle Contat paused mid-declamation, turned to face Salmon, and addressed to her three verses praising the unique beauty of triumphant truth. The entire audience greeted this initiative with thunderous cheer, and the other actors broke out of character to join in the applause.⁹⁴ By expressing her belief in Salmon’s innocence, Contat not only transformed an unintentionally apropos performance into a deliberately topical one, she also reclaimed, in the process, the position of judge, restricting the spectators to the role of beholders assenting with another’s verdict. The night thus ended on a suggestion of the ease with which judicial theater could be used to influence, if not manipulate, the expression of a supposedly public judgment. (On that note, it is ironic that the verses chosen by Contat appear in a speech highly critical of public opinion, which is portrayed as fickle, gullible, and hasty to condemn without proof.)⁹⁵ While there is no reason to think of Contat’s intervention as anything but earnest, it exemplifies a broader desire among the theatrical establishment to retain control over these judicial events by staging them.

Indeed, the Salmon episode was far from an isolated, impromptu incident. It was, rather, one of the earliest attempts by a theatrical company to carry out a plan, found in both legal and dramatic pamphlets, to use the theater as a means to inspire public opinion to validate and thus legitimize the verdicts of recent trials. Hence, in Du Théâtre, Mercier had championed the reenactment of recently ended trials, so as to “confirm through the people’s applause the triumph of the laws.”⁹⁶ Similarly, Louis Philipon de La Madelaine had argued that a special area in public theaters ought to be reserved for those who had suffered the costs and indignities of a trial as the result of an unjust accusation, thereby allowing actors to parade them, and spectators to applaud them.⁹⁷ The troupe of the Comédie-Française invited Salmon precisely for that purpose—to display her innocence to spectators with the expectation that they would assent. The same applies to Catherine Estinès, also accused of being a poisoner and also, upon being exonerated, invited by a company in Toulouse to attend a play for the first time. Upon seeing the scaffold awaiting the play’s female protagonist, Estinès began shuddering visibly. This reaction at a fate that could have been hers sent a chill throughout the audience, although the same spectators later broke out in wild acclamations at the appearance of Estinès’s lawyers and at the play’s happy ending.⁹⁸ According to Armand Fouquier, the practice of inviting recently exonerated defendants became sufficiently common for their presence on a given night to be advertised on playbills—a telling inclusion, insofar as it suggests that the actors regarded these invitations as staged spectacles, comparable to the evening’s plays.⁹⁹ Such scriptedness—the fact that they were planned in advance, were repeated and repetitive, and had predictable outcomes—highlights one of judicial theater’s most significant ambiguities, largely ignored by Mercier, but seized upon, as we will see, by Rousseau and others to condemn it. In staged ceremonies like the ones for Salmon and Estinès, one starts to wonder who actually does the judging. When innocence has already been attributed by the legal and theatrical establishments (the first through a trial and the second through its invitation), does the audience serve any real function, beyond validating the verdicts of more influential arbiters?

Yet although spectators gladly participated in these ritual displays of persecuted but victorious innocence, other incidents suggest that they saw themselves as independent judges, with the right and duty not only to praise correct verdicts but also to speak out against unjust ones, and against the government officials responsible. Meister thus observes in 1774 that the parterre’s longstanding practice of creating “applications” had recently assumed a new judicial dimension, as spectators repeatedly distorted innocuous verses and situations into commentaries on the decisions of the tribunals: “Of late, the parterre of the Comédie-Française has usurped the right to applaud or hiss the court’s sentences.”¹⁰⁰ To praise (applaud) but also, and just as importantly, to condemn (hiss): Meister gives several examples of the latter, such as when a quip on “well-paid judges” in La Réconciliation normande was transformed by indignant spectators into a critique of the recent acquittal of the powerful Comte de Morangiès,¹⁰¹ or when the audience of Crispin rival de son maître vented its anger at Louis Valentin Goëzman’s treatment of Pierre-Augustin Caron de Beaumarchais by repeatedly calling out the judge’s name whenever a character mentioned bribery, chicanery, or judicial ineptitude.¹⁰² Nor did audiences limit their judgment to existing trials. For them, the theater was both an appellate court, reviewing prior legal decisions, and a trial court, where accusations against political figures under no formal litigation could be formulated and debated. For instance, in the same period as the examples above, the powerful and controversial Chancellor René Nicolas Charles Augustin de Maupeou became the target of frequent indictments by theatergoers.¹⁰³

Like his idols Voltaire and Diderot and unlike the more radical Mercier, Meister stops short of fully embracing the slide toward a more judicial theater. He criticizes spectators for daring to judge with such limited knowledge of the evidence¹⁰⁴ and for showing such insolence toward their superiors—conduct deserving of a trip to the Bastille.¹⁰⁵ Yet he immediately adds: “Even while acknowledging their fault, I must confess that I like seeing myself transported to Rome or Athens for an instant, to admire how much a taste for the arts, and especially for the theater, predisposes the mind to enjoy freedom.”¹⁰⁶ Here we see, again, the attraction that philosophes like Meister felt for antiquity and for its vision of the dramatic arts as uniquely able to inspire and support a free, popular judgment. By the 1770s, many spectators, consciously or not, shared this judicial vision of the theater. Whether through applications or at the invitation of actors, they found in the theater a way to judge ongoing or recent trials. This mode of reception, while not, of course, entirely new, experienced so marked a growth that Meister flagged it as a novel, “usurped” right. Indeed, it became a common enough practice that, together with the dream, from Palissot to Mercier, of a rebirth of Aristophanes, it attracted the attention of some concerned authors, including Rousseau, who argued that the rise of a judicial conception of theater posed a grave threat to the very rule of law.

Acting Above the Law: Rousseau and the Case Against Judicial Theater

Who, in the end, really judges? This ambiguity, which I noted above, stems from one of the most troubling flaws in Mercier’s judicial theater: the difficulty in tracing the legitimacy of any of its participants. In 1768, the abbe Joseph-Marie Gros de Besplas condemned the rise of judicial theater for precisely that reason: “Illicit personal attacks on stage have seen citizens brought before a tribunal of judges without the authority to judge anyone.”¹⁰⁷ What, indeed, gave random spectators the right to judge a fellow citizen? Similarly, Latour denounced the playwrights’ illegitimacy, noting that this distinguished them from official judges, imbued with the king’s authority and entrusted with investigating all accusations before they became public, to ensure that they were honest, disinterested, and supported by evidence.¹⁰⁸ In the absence of anyone with the legitimate authority to separate the wheat from the chaff, all accusations would be entertained equally and publicly, including the most calumnious ones. Slander’s threat was made even greater, Latour noted soon after rebuking Diderot for his praise of Aristophanes, by the theater’s tendency to exaggerate faults and embroider narratives, so as to please its audience.¹⁰⁹ As expected, the partisans of judicial theater responded by defending the natural legitimacy of the people, as the voice of the nation, and by asserting that when assembled, the public possessed an innate ability to distinguish the truth. So long as the people sat in judgment, calumny would never triumph; true, it might find a public expression on stage, as in Palissot’s Philosophes, but it would then be roundly jeered, and the false accuser discredited.¹¹⁰

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 infects the justice system as well and creates a lawsuit culture, with Brumoy noting the Athenians’ “obsession with trials,”¹²⁰ and Latour warning against the endless quarrels that would result from the establishment of a judicial theater in France.¹²¹ It would therefore be foolish to seek legitimacy and protection from calumny in the audience of judicial theater; on the contrary, the general public becomes a less legitimate judge—more slanderous, unruly, and divided—by attending judicial plays.

As we saw earlier, this negative image of the people also haunts the writings of many philosophes. It inspired Mercier and others to seek a compromise, one that would preserve the right of the audience to judge and yet endow its judgments with a more legitimate origin. They found this compromise in the notion that it was ultimately men of letters (in other words, them) who formed public opinion, before it was expressed by the people. Hence, Marmontel claims that the parterre’s judgments are worthy of trust because they originate from a small group of enlightened thinkers dispersed in the crowd, before being echoed and amplified by the common people, whose lack of education, prejudices, and vanity has left their minds malleable and open to the influence of their superiors.¹²² Similarly, Mercier often asserts that men of letters determine the popular response to a play (and to the accusations it contains), although his focus is on the playwrights rather than the audience. A gifted dramatist, he argues, will find that spectators are “a wax pliable to the hand that molds it” or, in another hackneyed metaphor, “a kind of instrument he can make resonate as he pleases”—with a likely intentional pun on the homophones “raisonner” and “résonner” (reason and resonate), since Mercier immediately adds that this allows the playwright to gain mastery over the spectators’ “reason.”¹²³ In fact, men of letters have the ability to control more than just the reception of a particular play; they, as Mercier variously puts it, “hold the rudder of public opinion,” “govern the ideas of the nation,” and “form at last the national spirit.”¹²⁴ In the wings or in the auditorium, they are the alchemists who distill popular opinion(s) into a purer, unanimous public opinion.

Yet if this compromise banishes the specter of an uncontrollable, divided people, it raises new issues in its place, particularly in the context of judicial theater. Can a judicial play still be compared to a trial if its author also determines its verdict? In this scenario, the playwright becomes a judge as well as an accuser, a status Mercier hints at when he praises men of letters as “substitutes for the magistracy” (a phrase he borrows from Jean-Baptiste-René Robinet).¹²⁵ In fact, Mercier never addresses one of the most troubling differences between a judicial play and a trial, namely that a playwright, unlike an accuser in a court of law, can shape the narrative as he sees fit, depicting the accused in the most damning light, without the latter being able to respond or demand evidence. Placing the legitimacy of the accusation entirely on the side of the accuser risks reducing the role of the spectators to that of mere assenters, present to observe and sanction a punitive act carried out by a sociocultural elite (the supposedly enlightened men of letters)—a performance closer to Palissot’s vision than to a truly open-ended trial.¹²⁶ Many philosophes, given their embrace of enlightened despotism, may have been agreeable to such a compromise, if it meant judicial theater was governed by independent, progressive men of letters (not Palissot) with the people’s best interest at heart. For Rousseau, however, shifting the responsibility for judgment (and the duty to fend off calumny) from the people to the theatrical establishment carried with it a different but equally dire threat.

In addition to fragmenting the people into factions, the judicial theater of ancient Greece, Rousseau writes in the passage from La Lettre à d’Alembert cited above, vindicated Solon’s sorrow upon encountering the dramatic arts for the first time. This (likely apocryphal) dispute between the wise lawmaker and the Greek dramatist and actor Thespis was widely known in the early modern period, especially in antitheatrical circles. As narrated in Plutarch’s Parallel Lives, Solon confronted Thespis following one of the actor’s performances, inquiring whether he felt any shame at telling so many lies before so many people. When Thespis denied wrongdoing, claiming his speeches and actions were but a game, Solon replied, “But in praising and endorsing these games, where one lies knowingly, we do not take care that we will soon find them in our contracts and our very affairs.”¹²⁷ This famous warning raised philosophical issues dear to Rousseau, notably the Platonic anxiety that mimesis, even in jest, might come to saturate and distort reality, weakening the tacit contracts and conventions that hold communities together.

With respect to judicial theater, however, Solon’s admonition took on a more literal dimension: a warning that genuine “contracts,” the legal agreements serving as one of the foundations of the justice system, were compromised by the theater. Invoking Solon was a way for Rousseau to revive the lawmaker’s critique of the stage’s inevitable usurpation of the tribunal—a reading substantiated by the reference in the same sentence to Socrates’s trial and execution, which had been prepared, many believed, by Aristophanes’s play. In fact, this understanding of Solon’s admonition was far from unique to Rousseau. It inspired Suard’s revealing, if slightly inaccurate, rewriting: “When Solon saw public theaters in Athens, he exclaimed: these diversions will soon speak louder than the laws.”¹²⁸ Indeed, Suard goes on to repeatedly draw attention to the age-old rivalry between the arts and the laws: “An Englishman once said: make a people’s laws, and let me make its songs; we will see which one of us will govern it … the ancient Greeks likely agreed, since they gave songs and laws the same name (nomos).”¹²⁹ Predictably for a man best known today for his part in censoring Le Mariage de Figaro, Suard endorses censorship as the sole practical response to the threat that judicial plays might come to wield an influence equal to or greater than the tribunals’.

Although Rousseau differs from Suard in the solution that he proposes (the interdiction of theater, rather than its censorship), he shares with him a profound distrust of judicial theater. In Rousseau’s eyes, a truly satirical theater cannot lastingly operate as a parallel institution to the legal system without infringing upon it, gradually at first, but inexorably, until, to quote Suard (mis)quoting Solon, comedies speak louder than the laws themselves. His contemporaries’ longing for a judicial theater betrays their blindness to the logic of the supplement, which means in this instance that a theater seeking to extend the reach of the tribunals will eventually come to supplant them. As evidence of this, Rousseau could point (as he does) to Socrates’s execution, often cited in the period as proof of the ease with which theatrical accusations could not only instigate a trial but also infiltrate and distort it through their influence on public opinion—an early example of what is known today as trial by media.¹³⁰ To most eighteenth-century thinkers, in fact, Socrates symbolized the twin values of reason and law, and his death, the defeat of these values by the forces of theatricality. After all, had he not courageously refused during his trial to resort to the melodramatic appeals of the stage: “I respected you too much to try to touch you with my tears or with those of my children and my friends gathered about me. It is at the theater that one must arouse compassion through poignant images; here, only truth must make itself heard”?¹³¹ To antitheatricalists like Rousseau, there was no better illustration of the frailty of truth, reason, and a formal legal system when faced with a satirical, denunciatory play of the kind written by Aristophanes.

Judicial theater infringes upon and eventually supplants the justice system, instead of working in tandem with it, as Mercier envisions, because it gives undue power to individuals (playwrights and actors) without holding them accountable for it. Mercier defends their legitimacy because they are more enlightened than regular magistrates (a subjective claim) and more transparent in their accusations, since the latter are made publicly (unlike in eighteenth-century trials). Throughout La Lettre à d’Alembert, however, Rousseau reminds us that the theater is the very antithesis of transparency. In particular, he condemns actors for uttering words that are not their own (but the author’s) under an identity that is not their own (the character’s), leading them to lose their individualities, to literally “self-destruct.” This lack of transparency is especially troubling in judicial theater. Not only does it make it possible for actors to reenact slanderous accusations with impunity, by claiming their roles were assigned to them and do not necessarily reflect their own beliefs and values, but the true initiators of these accusations, the playwrights, are also offered the opportunity to conceal their identities, in name (under the cover of anonymity) and in body (under the cover of fenced boxes). This, in Rousseau’s eyes, is what differentiates judicial theater from a Roman-like system of formal, public accusations, which he often praises and which rests entirely on the sincerity and personal involvement of the accuser—that is, on his or her answerability in cases of false allegations.¹³² In the absence of such accountability, it is inevitable that actors and playwrights will come to speak louder than the laws, for who would choose the lengthy, unpredictable, and personally taxing and risky option of a formal trial, when one could gain a swift, easy, and certain vengeance by using another to put forth a dramatic accusation? This is precisely what had happened in ancient Greece, according to Rousseau and the abbé Gros de Besplas, who claimed that “poets, musicians, actors, dancers, and set designers having risen to the highest ranks in Athens, the laws lost all power.”¹³³ Guilt and innocence were no longer determined in a courtroom, according to fixed laws and procedures, but by playwrights, actors, and other scenic artists.