The Form and Substance of Doing Justice

Engaging closely with theories of performativity, particularly the work of J. L. Austin, Jacques Derrida, and Judith Butler, this chapter investigates the range of insights that performative theory allows for studying legal proceedings. The conceptual apparatus of performativity emerges from an inquiry into the relationship between force, authority, and conventionality—elements that are essential for legal theory. This special relation between law and performativity has been taken up by numerous scholars; the chapter draws on this work to conceptualize the performativity of legal proceedings. It hones in on an idea that Austin introduces in passing: performatives often masquerade as constatives. The masquerade of legal performatives as constatives is not accidental but rather a necessary function of law’s operation. The chapter elaborates on this idea of masquerade and its relevance for studying trials by drawing on Butler’s conceptualization of the centrality of conventionality (understood as a sedimented historicity) for performativity. It is proposed that the various performative operations of legal proceedings are often disguised as constative functions partially through the hyperconventionality of trial performance. In this analysis, political trials can be defined as legal proceedings whose performative structures are publicly exposed, thereby resisting the closure of inevitability.