Fragile Performances: The Dialogics of Judgment in A Theory of the Trial

Abstract

Robert Bums's A Theory of the Trial offers a fresh, subtle, and erudite analysis of the Anglo American trial, one that subjects the insights of current scholarship on trials (both legal and sociolegal) to the rigors of a philosophically trained mind long-steeped in trial practice. At once wide ranging and tightly focused, the richness of this book lies in the seriousness with which Bums offers a careful, attentive description, ideally without presuppositions, of what we actually do in order to identify the spirit of the trial as a human practice (Bums 1999, 4). Like Poe's hero Dupin in Purloined Letter, who recovers a stolen letter slyly hidden out in the open in a barely disguised envelope, Bums looks with a disceming eye beyond the received view of the trial as a forum for actualizing the rule of law in the context of specific factual disputes (Bums 1999, 11), and suggests that the essence of the trial lies in its linguistic practices-an essence that, as Poe puts it, escape[s] observation by dint of being excessively obvious (1984, 694).1 Bums's theory is in many ways too capacious and carefully stated to invite easy summary. His foundational premise is that the trial is at bottom a consciously structured hybrid of languages and performances (Bums 1999, 3). The value of the trial, he suggests, lies in jurors' intense encounter with the