Collective Dissent as Legal Consciousness in Contemporary British Theatre

Abstract

This article explores legal consciousness in contemporary British theatre. It is concerned with the messages conveyed about law in society as experienced through participant-observation and textual analysis. The interpretation of meaning will take place within the legal consciousness framework of collective dissent developed by Halliday and Morgan. Using this framework, this article will show that dissent is a reoccurring theme in these performances, with the legitimacy of state law under challenge. Alternative visions of law are pluralistic in nature. By applying a collective dissent narrative to this study, the article tests and further develops collective dissent as an analytical tool for examining legal consciousness for cultural legal studies. Through this framework, it also advances the study of theatrical performance for cultural legal studies in terms of what dramaturgic images, observational and textual, say about the relationship between law and society; specifically, to determine what theatrical performance of British contemporary theatre says about the law in this snapshot of time and place.

The study of popular culture in law has proliferated in the last 20 years, with a primary focus on film and television, and little on theatre. While there is overwhelming literature in theatre studies as it relates to law, this tends to be a textual or cinematic exploration, an exploration of law as theatre, or explorations about certain subjects of law such as ownership of copyright (e.g. McDonagh, 2014; Shetsvova, 1989a, 1989b, 1989c). Less common is the socio-legal investigation of theatre performance and what it offers its audience about society’s relationship to law, order and justice. This article seeks to fill that gap by exploring the meanings given to the story of the interrelationship between theatre and social constructions of law. In particular, it is concerned with the messages conveyed by contemporary British theatre about law in society as experienced through participant-observation and textual analysis. The interpretation of meaning will take place within the legal consciousness framework of collective dissent developed by Halliday and Morgan (2013).

Collective dissent provides an appropriate schema from which to examine legal consciousness in theatrical performance. These plays form a collective. Patterns emerge from a series of plays performed within a specific period of time suggesting collective agency for the purpose of altering the current structures of the law. They offer an opportunity to explore the use of collective dissent as an analytical tool for examining legal consciousness in the field of cultural legal studies and to further develop collective dissent discourse within legal consciousness scholarship. In addition to this contribution, this article also seeks to advance the study of theatrical performance for cultural legal studies in terms of what dramaturgic images, observational and textual, say about the relationship between law and society; specifically, to determine what theatrical performance of British contemporary theatre says about the law during the instance of time and place bounded by this study.

This article will first situate the relevance of theatre to the study of law within legal consciousness scholarship, and in particular, to the relatively new concept of collective dissent developed by Halliday and Morgan. It will then introduce the methodology used for the collection of data, describing the participant observational nature of the study as augmented by textual analysis. Third, it will analyse theatrical data in relation to the three elements of collective dissent: the illegitimacy of state law; alternative vision to the current state of the law; and strategic use of the law. In its conclusion, this article will summarise the findings of this analysis of the data by offering (i) a critique of the collective dissent narrative developed by Halliday and Morgan, suggesting structural changes to its framework, and (ii) a coda regarding the legal consciousness emanating from these contemporary British plays.

Collective Dissent as Legal Consciousness

Ewick and Silbey’s seminal work on legal consciousness is well known within socio-legal literature and requires no introduction. However, given this article’s argument that the legal consciousness evinced by this study sits outside the Ewick and Silbey schemas, it is necessary to recall those schemas. Their three distinct forms of legal consciousness reflect the way in which individuals experience, deal with or interact with the law in everyday life, all within a hegemonic conception of law where law dominates their actions and experiences (Ewick and Silbey, 1998: 247; Hertogh, 2004: 476).

These schemas are: (i) before the law which is situated within ideal conceptions of the rule of law; (ii) with the law which considers society’s interaction with the rules and structures of state law for competitive advantage over others and for self; and (iii) against the law which sees society’s cynicism towards state law through individual acts of resistance to the law (1989: 45–49, 224, 226–227, 244). These reflect the experiences of law by those who are affected in some way by law, whether or not they recognise that law is impacting their life (1989: 22, 28–29). As Cowan states, legal consciousness is focused on the subjective experience rather than an instrumental consideration of law’s impact on society (2004: 929, 930–936).

Law, for Ewick and Silbey, refers to formal institutions, actors and actions (Silbey, 2005b: 336, 2018: 692). By exploring how people interact with the law, Ewick and Silbey move away from the formal institution of the law to the broader concept of legality. Legality, Silbey says, is created through ‘the meanings, sources of authority, and cultural practices that are commonly recognized by actors as legal or associated with law, regardless of who employs them or for what ends’ and in so doing, ‘people may invoke and enact legality in ways neither approved nor acknowledged by the law’ (Silbey, 2018: 692, 2005b: 336). Legality is how people construe the law through their everyday living (Silbey, 2005b: 337). In other words, interactions with the law construct versions of legality for these individuals. For Ewick and Silbey, legality is made-up of all three schemas, operating in an inter-dependent and fluid manner where the various elements of the three narratives can be called upon as needed in response to an individual’s particular interaction with the law in the circumstance of the moment (1989: 248; Silbey, 2005a: 349–350, 2005b: 342). It sits within a framework of legitimacy; the versions of legality created by individuals’ interactions with the law rely on a heuristic embedded within the apparatus of the state which recognises law as legitimately emanating from the power of the state (Silbey, 2005b: 337).

Their work, while seminal, is not without criticism. For example, Hertogh sees the need to move away from critical legal consciousness espoused by Ewick and Silbey (2018: 8, 12). He argues that their assumption of state law having primacy in the lives of a state’s citizens does not fully capture a society’s relationship with law (2018: 9–11). His work about legal consciousness of Dutch experiences required the alternative explanatory framework of legal alienation to move away from such restrictive forms of legal consciousness (2018). It is for similar considerations that this work too moves away from the Ewick and Silbey schemas of legal consciousness and their resulting conceptions of legality to a consideration of collective dissent.

The messages of legal consciousness expressed by the dramaturgic performances of this study cannot be explained through the schemas of before the law, with the law and against the law. Although broadly concerned with state law and its presence in society as an initial premise, the data from these performances do not fall neatly into any of these forms of legal consciousness. Legitimate state law underlies Ewick and Silbey’s work and the schemas speak to that legitimacy. That is not the case in this study. There is a rejection of state law in these performances. This rejection needs to be accounted for in order to understand the messages about legal consciousness conveyed by this data. Collective dissent with its focus on the illegitimacy of state law provides an alternative explanatory framework for this purpose. Furthermore, Ewick and Silbey focus on the individual and the meanings individuals apply to what they perceive to be law. These are individual constructions of legality that offer a micro view of legality. This is limiting argues Mezey who sees the need to consider legal consciousness through sites of ‘mass initiation and inscription’ where law is indirectly inscribed through mass public transmission such as television, film and novels (2001: 161–162). Theatre too offers broader transmission through the collective agency of the playwrights’ voices. The collective is the focus of this study, providing further reason for the need of an alternative framework better suited to its demands.

Fritsvold’s idea of the illegitimacy of state law became a starting point for this alternative framework. Fritsvold argues for the need to expand Ewick and Silbey’s schemas to include a category of under the law to deal with anti-hegemonic views of the illegitimacy of state law (2009). Halliday and Morgan are also interested in an expanded form of legal consciousness involving notions of illegitimacy of state law. They persuasively argue that the Ewick and Silbey schemas do not account for the legal consciousness offered by a view of law as illegitimate. The cultural theory framework of Mary Douglas, which examines four cultural biases of social organisation (deferential collectivism; dissenting collectivism; individualism; and isolation/fatalism), represent for Halliday and Morgan cultural discourses about legality (2013: 11). In other words, they provide for them four narratives on legality, three of which can be categorised within Ewick and Silbey’s three schemas as follows: deferential collectivism – before the law; individualism – with the law; and isolation/fatalism – against the law (2013: 12). Dissenting collectivism remains unaccounted say Halliday and Morgan, and therefore represents a gap in the legal consciousness literature (2013: 12–13).

In their consideration of collective dissent, Halliday and Morgan see Fritsold’s under the law category as one-dimensional, necessitating a category that moves beyond only individual conceptions of illegitimacy of state law. They developed a form of legal consciousness, a fourth narrative, ‘which expresses a collective rejection of the authority of state law’ (2013: 6, 15). Their collective dissent narrative, or schema as Ewick and Silbey would say, critiques or wholly rejects the authority of state law through collective voices of dissent. They say that collective dissent suggests collective agency for the purpose of attempting to alter the structure of power in law (2013: 13). Morgan and Kuch later suggest that the objective of this narrative is the creation of alternate visions of law rather than positioning legality as latent and unchallenged power (2015: 567). In responding to the illegitimacy of state law, the collective dissent narrative justifies direct disruptive action, brands certain crimes as legitimate, rejects the traditional dichotomy of the legal as right and the illegal as wrong, has a sense of morality outside of state law which underpins an alternative legality for the disregard of state law, and plays the law against itself in order to promote subjective values of right and wrong, justice and ethics (Halliday and Morgan, 2013: 15–20). It focuses on practices of counter-hegemony through collective agency (Halliday, 2019).

There are three principal components to collective dissent. The first sees formal state law as illegitimate. The second looks for alternate conceptions of law beyond that provided by the state and aligned to concepts of justice, fairness and ethics. The third involves strategic action in the sense of a willingness to engage in game-playing with state law, which may occur either despite the illegitimacy or because of it (Halliday and Morgan, 2013: 15–16). Collective dissent is the composite of these three elements which create a form of legal consciousness that extends beyond Ewick and Silbey’s schemas. There is a small but growing body of work by Halliday, Morgan, and others on collective dissent that is developing in legal consciousness studies (e.g. Barone, 2019; Gill and Creutzfeldt, 2018; Halliday and Kitzinger et al., 2015; Morgan and Kuch, 2015).

The collective dissent narrative resonates with the messages expressed by the theatrical performances of this study where images of illegitimacy of state law and responses to such illegitimacy have established patterns of action to be explored. It is the data which have called attention to the narrative’s relevance because it is through the narrative’s framework that the data can be explained and analysed. The Ewick and Silbey schemas with their conceptions of legality firmly embedded within a state law heuristic, which do not speak to illegitimacy of state law, are insufficient for this purpose. The alternative visions of law drawn from the dramaturgic performances are not an alternative legality as suggested by any of the Ewick and Silbey schemas which operate within legitimacy of state law. They are born from a rejection of illegitimacy.

Further, collective dissent sits within a broader legal consciousness context. It speaks not only to illegitimacy of law but also to collective agency, two aspects missing from the Ewick and Silbey conception of legality as based on their three schemas. For Halliday and Morgan, their conception of legality was too restrictive for their study of radical environmental activists, resulting in their development of a collective dissent narrative. Graca provides another example of its restrictiveness in her study of the legal consciousness of Portuguese women, examining domestic abuse in the context of the nature of cultural factors at play rather than through the lens of legality (Graca, 2018: 432). Similarly, in this study, Ewick and Silbey’s notions of legality are eschewed due to the nature of the data which emerge from these plays. The data speak to illegitimacy and collective agency, which together compel an exploration through a collective dissent narrative. The playwrights are creating a collective voice of protest and action resulting in collective agency through dramaturgic performance.

Each of the elements of this collective dissent narrative will be examined in relation to these dramaturgic performances, culminating not only in a conclusion about the messages conveyed by these performances, but also in an assessment of its analytical framework. First, however, the relevance of the application of the narrative to theatre generally needs to be situated.

Theatre as a Vehicle for Collective Dissent Analysis

Theatre studies refer to contentious performance as a form of protest (Shalson, 2017: 7–8). Shalson sees the relevance of theatre, and more specifically, contentious performance, to political social movements. She says: ‘Contentious performances involve public expressions of dissent against prevailing systems, and they demand change. Such instances of making claims are contentious, of course, because not everyone shares the same interests.…Contentious performances are thus performances that address contested issues and whose audiences are consequently fractured’ (2017: 7–8). This translates well into a legal consciousness framework, and in particular, within a collective dissent narrative. Contentious performances and collective dissent have similar goals; for contentious performances, the target is the government and for collective dissent, the target is the authority of state law and its failures. Both deal with challenges to the status quo, and arguably, may even seek to undermine it. As a frame of analysis, they each crystalise a critical message about the efficacy of a political or legal system, respectively.

Dissent is revealed through the collective voices of playwrights. Their voices are powerful tools in shaping the legal consciousness of their audience. The theatre is a form of social action that may contribute to the reduction of law’s power by recognising its ineffectiveness, oppression and failures (Halliday, 2019: 873). As Joe Kelleher states:

The political-ready quality of theatre includes its liveness and sociality, the simple fact that it happens now and that it gathers people, who may well be strangers to each other, around issues of disagreement but also of common concern. There is further political potential in the theatre’s capacity to pretend, to say and show things that are not so and hence to propose alternative realities to how things are at present. There is potential too in the ways that theatre, among many other art forms, speaks ‘for’ us and ‘of’ our worlds, not to mention the worlds of others. The theatre ‘represents’ us, both in the sense of showing us images of ourselves and in the sense of standing in and standing up for us, like a delegate or a substitute or – indeed – a political representative. Theatre represents our lives to us in ways that can persuade us to make judgements on the quality and fidelity of those representations and to make critical judgements too on the lives that are so represented. (2009: 10)

Vandenbroucke and Meeks, in their empirical study about the psychological benefits of attending theatrical productions, support this contention that theatre enlightens worldviews (2018). Words, actions and images of the theatrical performance provoke discussion, debate and reflection (Vandenbroucke and Meeks, 2018: 375–376, 379–380). As one theatre goer says: ‘You can’t not think critically about what you are watching and experiencing….Why would that character do that? What just happened and why did that happen? And even if you’re not happy with what happens, what was the playwright thinking?’ (2018: 380)

Through the live performance of theatre where words and images blend on the stage, stories are told and heard. Stories are constructions of our society and of our relationship with law when law is invoked (Sherwin, 2012–2013: 15). The impact of images on the consciousness and understanding of the spectator makes theatre an important medium for messages about law (Silbey, 2012–2013: 177–178). Its function is two-fold: it not only reveals the legal consciousness of contemporary British theatre through the collective voices of playwrights, it also shapes the legal consciousness of the spectator, and together, arguably conveys the collective consciousness of a community. Theatre, therefore, becomes an important source for the manifestation of legal consciousness.

A Participant-Observer Approach to Law in Theatre

In arguing the importance of a study about the relationship between law and images, Mulcahy recognises criticisms of socio-legal scholarship in cultural legal studies that refer to the lack of appropriate analytical frameworks or methodologies in studies which explore the relationship (2017: 122–126) In this article, legal consciousness through a collective dissent narrative satisfies the analytical framework criticism. This section speaks to the other criticism of methodology, answering the criticism by offering a combination of participant observation and textual analysis as a source of data.

This study is an exercise in cultural anthropology where the fieldwork site is the theatre and more specifically, the arena of the spectator, the words of the playwright and the staging of the action. This is in line with Marcus and Okely’s view that we need to expand our view of what the field is (Marcus and Okely, 2007: 362). The theatre is about the words created by the playwright, interpreted by the director and performed by actors (McDonagh, 2014). As a result, both text and oration are relevant to interpretation; both participant observation and textual analysis provide the data. Each has particular roles to fulfil. Textual analysis supports the observational data, as described in the section below.

Participant observation has multi-roles in this study. It was used to identify the locus of the study: the objective was to explore the relationship between theatre and law as expressed through live performance. It was the participant’s experience as audience member, which resonated for this study. The live performance augments the text. It makes vivid the message of the playtext: the scene, the gestures of the actors, the tone of voice, the reaction of the other characters, the tempo to the dialogue all serve to emphasise the message. In his discussion of a performance of Penal Colony, Alan Read proposes that audience members are engaged and pulled into the production by its stage setting, suggesting that the setting of a play is not passive but has a function of actively engaging the audience (2016: 50). Staging, arguably, can also be message. A performance of the words brings them to life resulting in a lived experience for the spectator.

As is typical of the ethnographic method, the author did not enter the project with a decisive research question: it is the general that guides the exploration and it will be the observed patterns that determine the focus (Geertz, 1973: v–vi; Llewellyn and Hoebel, 1941: 10; Malinowski, 1984: 9). Her general aim was to explore the meanings given to the story of the interrelationship between theatre and society’s conception of the law during a moment in time. As for the nature of law relevant for this relationship, ‘law’ was approached expansively to include conceptions of justice, legal system, legal process, and dispute resolution processes. The reason for this expansive approach was dictated by the project’s methodology. More than this, the author was not clear.

The ethnographic method is an all-encompassing one; it is a methodology which provides the situ of a project, allows for expansive and detailed data collection, presents an opportunity to discover patterns and nuances of action, establishes a method of data reporting, and shapes data analysis by the patterns exposed (De Girolamo, 2013: 16–27; Marcus, 2009: 16). Patterns convey messages and provide a reflection of the lived experience as Gulliver says (1979: 173). As the data of the performances were examined in this study, patterns emerged. These patterns coalesced around a handful of themes under which the plays were initially categorised, including statelessness, social and legal disillusionment, crime, imprisonment and punishment, vigilantism, images of state law, rules, legislation, conflict resolution, contract arrangements, morality, and justice (social and legal). It became clear that underlying these themes was an image of state law as ineffectual at providing social order and thus subject to challenge. It was the live performance which guided the discovery of a collective voice of failure, protest, helplessness, oppression and rejection of state law.

The Plays

It is the ethnographic method that shaped the site of the fieldwork. During the period October 2014 and June 2015, the author observed 45 plays in London. The plays included newly premiered dramas, new musicals, revivals of classics, re-interpretations of classics, and revivals of musicals. In terms of the initial selection process, it is a purposive sampling. The intent was to canvass a broad cross section of theatre during the relevant time period. Once the period of participant observation was completed, it became evident from the plays attended that new dramatic plays formed the largest majority of plays observed. From these plays, further selection occurred in order to set analytical boundaries for this study.

As a result, only those written by British or Irish playwrights, set in a seemingly contemporary setting, and were original works (as opposed to adaptations based on film or books or revivals of previously performed plays or based on true stories), having their London premiere within the observation period are included in the study. Also, only those which have published playtexts are included for methodological purposes and to ensure accessibility to those who may wish to read the text. Most are UK premieres, with the exception of four. Most are written by English playwrights, except three. All were performed in a theatre which was financially subsidised through art council funding at the time, located in London and accessible by public transport. The theatres at which these plays were performed include The Hampstead Theatre, The Royal Court Theatre, The National Theatre, The Young Vic, The Orange Tree Theatre and The Almeida Theatre, all generally outside the remit of the commercial West End. This means that of the 45 plays which were the subject of the ethnographic observation, 19 meet these specific criteria. From these, the dominance of the contemporary voice commenting on law and society that came to the fore and the patterns discerned result in a collection of 14 plays which provide the data for this article’s analysis of collective legal consciousness of dramaturgic performance.

During each performance, the author wrote notes of observations resonating with conceptions of justice, legal system, legal process, and dispute resolution processes, reflecting a broad approach to the study. Subsequent to the observation, the author also read and analysed the playtext to explore it for references to observed patterns and to compare the textual reading against the author’s observation of the live performance. Generally, where the author made a note during the performance, the reference in the playtext is relevant to the emerging themes. It is rare that a relevant section of the playtext was not noted during a performance. This may suggest a vibrancy to the performances or a clarity of messages as suggested by Kelleher earlier (2009: 10). This is relevant to note as it is the live performance which has primacy for an audience member at that moment in time when sitting in the audience. This primacy is further emphasised for those audience members who do not subsequently engage with the textual version of the images experienced. ¹ It was such engagement with the theatre which helped uncover the patterns in the data and expose the themes of dissent, in addition to revealing a collective agency established through the works of these contemporary British playwrights.

Having situated theatre as an appropriate vehicle for a collective dissent analysis, and having introduced the methodology implemented, the article turns to the application of the narrative to the plays observed.

Collective Dissent: Three Elements

In this section, data from these performances will be examined in light of the three elements of the narrative. It will begin with an exposition of state law as illegitimate. This will ground the discussion of the second element which seeks alternative visions of law through disruptions to state law, underpinned by concepts of justice, fairness and morality. The section will conclude with a discussion about the third element which involves a consideration of strategic action taken to manipulate state law in the face of its illegitimacy.

(i) Illegitimacy of State Law

The legal systems at the heart of these plays appear to be positivist in nature: state authority, state-established rules, breach of state rules and punishment are suggested (e.g. Austin, 1970). There are references to legislation and contractual arrangements confirming a presence and awareness of rules and norms. The conduct of characters is frequently in breach of the rules and norms of society as established by the state, and which forms the Rawlsian social contract (Rawls, 1999). State law is inadequate for society, fails its citizens and is ultimately rejected. These plays explore this trajectory and the need for it to be redressed.

Policing in urban society is a recurring theme in these plays. In Wildefire, a play by Rory Mullarkey, law is not respected by either the police or criminals (2015). In carrying out their duties, police engage in the tactics used by criminals: use of force, intimidation, bribery and violence. Beating an accused in custody, telling a battered spouse to encourage another beating so that a proper charge can be laid, paying informers and accepting bribes are examples of actions taken by the police (Williams, 2015: 28, 35, 50, 60). Policing is fraught with violence and disrespect. The police, it seems, can only do its job through breaches of rules and norms, reflecting a perversity of values and suggesting a dystopian society. There is a lack of respect for law by all in society where there is lawlessness in a legal institution and attendant lack of protection from state authority.

State Red by Atiha Sen Gupta is another play about police actions (2014). Although set within a family milieu and in the comfortable home of a police commissioner, it too challenges police actions. In this play, at issue is the shooting of a black man by a white police officer and the investigation of the shooting by the police. Was the shooting in self-defence or was it an intentional act? As the police officer (the police commissioner’s son) who witnessed the shooting seeks to finally tell the truth of the shooting as an intentional act (having suppressed the truth during internal police investigations), police power comes to the fore: his story is branded as an untruth; his credibility is threatened; the shooting is defended as good for society since the victim was said to be a criminal. There is disrespect for procedural and substantive instruments of law through police corruption.

State law is evident in the breach and through its ineffectiveness in Carmen Disruption, another play about life in urban society where characters seem to wander aimlessly from one crisis to another (Stephens, 2015). A majority of its characters are involved with crime. Law does not prevent crime nor protect against crime. For example, the police are irrelevant, mentioned briefly in anodyne fashion: they chat up women who ignore them; they conduct door-to-door inquiries without success; they deal with road accidents (Stephens, 2015: 5, 27, 31, 40, 42, 54). They are ignored when the protagonist suffers an assault and they are ignorant of certain criminal activity (Stephens, 2015: 21, 42). They are in the background of the action; they are not engaged in the violence and crime that surrounds the characters and they are not the focus of the performance. In fact, their presence in the face of the criminality of the characters only serves to emphasise their irrelevance in society. They are present but unhelpful in the day-to-day violent reality of these characters’ lives. State authority is either marginalised or rendered invisible.

These plays suggest a disillusionment within society; more particularly, a sense of negativity in society’s relationship with that which is encompassed by law and its references to rules and norms, state authority, formal and informal justice concepts, and legal process and systems. In his study of legal alienation, Hertogh touches upon legitimacy of state law (2018: 30). He says: ‘Having legitimacy means that those in the community being regulated believe that their authorities “deserve” to rule and make decisions that influence the outcomes of the members of the community’ (2018: 41). The dominant positivist view of the legal system is under challenge in these plays. The underlying values of its institutions, and its rules and norms are rejected, rendering them ineffective in maintaining order within a community. With this rejection, illegitimacy is born (Hertogh, 2018: 43). ² The theme of illegitimacy of state law permeates the plays studied here, and becomes crystallised as the next two strands of collective dissent are discussed. It will be seen that notions of the illegitimacy of state law provide a catalyst for alternative visions to law.

(ii) An Alternative Vision of Law

This second element of the collective dissent narrative speaks to the disruptive action arising from the depictions of state law’s illegitimacy, suggesting alternative conceptions of law underlined with an individual sense of justice, fairness or morality.

(a) Disruptive Action

Carmen Disruption illustrates not only the illegitimacy of state law, but also disruptive action arising from the illegitimacy through breaches of the rules of order (Stephens, 2015). State law is a passive participant in this play. It is an implied presence suggested through criminal action, including rape, assault, theft, stalking, accessory to crime and breach of privacy. Despite this prevalence of criminal activity in their society, the characters have no need for state law: they deal with rape, assault, theft, stalking and breach of privacy on their own without the assistance of state law. They reject law and the rights and obligations of law. They engage in retributive actions, they flee from violence, or they accept violence. They do not seek protection or action from state law. They act contrary to the law or turn away from it completely, operating outside the law.

Fiona Doyle’s Deluge well illustrates this sense of statelessness which challenges the positivist nature of state authority. It is a play about the plight of farmers struggling to survive on their land in the face of the hardships of nature and civil society. Their livestock is being killed and animal feed stolen. They carry guns and barricade themselves against intrusion (Doyle, 2015: 30, 36, 37, 41). These farmers are under siege. They owe money to nameless entities and are intimidated to pay their creditors (Doyle, 2015: 21, 41). The law does not protect them against the intimidation. They engage in insurance fraud to save their farms and are held captive and interrogated by faceless entities. State law is absent from their lives. They need this law for protection; it fails them. They take such action as is necessary to protect their land even if it means lying, cheating, or resorting to violence.

This independence from state law continues in several of the plays such as Wildefire, Islands, Deluge, and Wolf from the Door where state rules have no place within society. Rules are created by citizens for themselves, which are separate from those of the state: they establish their own legality. In Wildefire, it is the police which illustrate a closed community, rejecting state law for new rules needed to deal with the ‘enemy’ while similarly, criminals have their own societal rules (Williams, 2015: 37, 38, 68). Islands has a community of tax evaders and the financially powerful whereas Deluge has vulnerable farmers who need to resort to violence to protect their farms when faced with violence (Doyle, 2015; Horton, 2015: 12, 14). Rory Mullarkey’s middle-England revolutionaries in Wolf from the Door overthrow the current state to create their own legal rules for a new state: the first rule is ‘join us or we will kill you’ (2014: 32). One may not like the rules, but these new rules are established by a community for the community outside the purview of the formal institutions of state law. An alternative legality is created, a version of law that is better than state law; one that fulfils visions of what law should be, one that protects or one that gives advantages.

In Wolf from the Door disruption to state law occurs through violent revolution which is glorified. In the play, the protagonist says that the state’s laws do not work anymore (Mullarkey, 2014). The characters, ostensibly representing the upper and middle classes of society (for example, a bishop, an aristocrat, a choir master, a bank teller) see the need to overturn the government to ensure fairness, equality and proper governance. They do so through violence in order to establish what they believe will be a legitimate state reflecting these ideals. The new state, however, is an autocratic one where the ruler makes laws as the ruler sees fit and where the new ruler is unknowledgeable, his appointment serendipitous, and his laws ridiculous (Mullarkey, 2014: 35, 46). Hegemony of an illegitimate state prevails despite intentions to the contrary.

The disruption of the status quo through the invocation of new rules by which an alternative legality is sought is a relevant aspect to this second branch of collective dissent. There is a need to replace the rules and norms of society, but not through revolution as is suggested in Wolf from the Door. In this example of revolutionary actions to overthrow the status quo, the action failed. A further illegitimate state was imposed. Instead, the dominant alternative vision is one which creates and relies on new rules that are invoked to replace illegitimate state law for the benefit of society. There is no concern about breaking the law to achieve this. These rules are malleable, applied to suit societal demands. The vision rests in legal pluralism, which sees the creation of new rules by a society in order to counter the effects of the illegitimate status quo.

(b) Sense of Justice, Fairness and Morality

Seeming to underlie the disruptive actions taken in response to the illegitimacy of state law are general concepts of justice, fairness and morality. As just described above, in Wolf from the Door, society is seen as unfair and unequal, promulgating hierarchies and slaveries, and demanding change as a result (Mullarkey, 2014: 12, 31). The change occurs through violent armed insurrection. The character leading the charge asks that the new government be ‘fair’ (Mullarkey, 2014: 45). In order to obtain fairness, violence is needed (Mullarkey, 2014: 32, 41).

A concept of fairness is one that underlies several of the plays. We see in Hope, a play about government cuts to social services, that the municipal government’s need to reduce its budget and by necessity affect the social programmes of the vulnerable is suggestive of a lack of fairness in the rules; state laws force budgetary reductions without consideration of the society they are impacting and despite public protest (Thorne, 2014). A sense of fairness as social justice underlies retributive conduct in the play: urine is poured over the head of a council member who lies about the reduction of services for vulnerable citizens; a call is made to burn buildings in protest to the budget reductions. Violence is invoked in the name of social justice (Thorne, 2014: 31, 32). In Bull, where a boxing ring represents an office of warring employees who seek to advance their careers by undermining colleagues, the concept of fairness is connected to concepts of power, where the domination by the strong over the weak is based on class and economic hierarchies, and where law (in the form of employment legislation) is unable to protect the vulnerable (Bartlett, 2013).

Justice is also connected to fairness. Islands presents a conundrum similar to Wolf from the Door and Deluge. It is about tax havens in a world where rules are flouted and are manipulated for the powerful few. The play conveys a lack of fairness in society regarding the way rules are used. For the citizens of Islands, the financial elite has taken justice out of society by manipulating the rules for greed (Horton, 2015). Financial collapse occurs and the financial suffering caused to the ‘little people’ as a result leads the ‘little people’ to violence – to seek retribution ‘without mercy’ on those who are the cause of the suffering (Horton, 2015: 51). With violence, Eve (representing the ‘little people’) kills Mary (the god of the tax haven): ‘To end this long night of our captivity, this degradation, and take back the riches of justice and freedom’ (Horton, 2015: 51, 52). Those witnessing this violence speak of the ‘fairer world’ as a result, and that ‘no-one’s above the law anymore – not multinationals, not celebrities, not politicians’ (Horton, 2015: 52). An alternative conception of law is sought which espouses these values. However, the rebellion fails and so too does this attempt to seek justice fail.

Fairness and justice are not the only concepts underlying the alternative vision of law for these playwrights. A form of morality is also invoked. Actions taken against illegitimate state law by disruptive action can be taken by someone who is ‘good’. In Stoppard’s The Hard Problem, the issue of behavioural choice is at the heart of a play in which the protagonist is a psychology researcher working within the confines of institutional structures (2015). In the play, certain research data is manipulated to provide a specific result. Punishment occurs as a result: the person who takes responsibility for the action loses her job and her reputation. Despite this, she remains a good person (Stoppard, 2015: 70–72).

This calls to mind, Kitty (the insurance fraudster) in Deluge: she does not see herself as a bad person for either engaging in insurance fraud or leaving her baby with the farm dogs because she did what she needed to do to survive in a world without state law (Doyle, 2015: 50–52). In these two plays, goodness is not impacted negatively by conduct that breaches the rules and norms of society. One can still be ‘good’ even if one acts against state law. A suggestion is made too in these plays that goodness or, arguably, morality resides outside of state law. This is also reflected in Wildefire where police actions reflect criminal values by their flouting state law in pursuit of the ‘greater good’ of apprehending criminals (Williams, 2015). For these plays, morality is what an individual says it is, without regard for any societal view of morality or as could be reflected in or supported by state law.

The concept of ‘do the right thing’ also underlies these plays and is linked to this idea of being good. In The Hard Problem, the recognition of the distinction between right and wrong requires moral intelligence, rather than legal intelligence (Stoppard, 2015: 51). In Deluge inner moral codes support breaches of legal rules (Doyle, 2015: 50–52). Police in Wildefire act on a belief in the moral justification of its actions (Williams, 2015: 28). Similarly in Wolf from the Door, a violent revolution is morally justified to deal with the injustices of society because violence is seen as the only way to effect change and ensure a more fair society (Mullarkey, 2014: 31–32). It appears that morality is put forward as an excuse for behaviour which is either contrary to or not fully compliant with state law.

These performances emphasise a distinction between the moral and the legal while at the same time, suggesting a connection between them. Morality seems to be constrained by the legal and yet the legal in these performances is often subservient to some view of morality. For example, state law does not permit the commission of a crime, but retributive violent acts in the name of justice are portrayed as a type of morality which is acceptable in these plays, such as Islands and Carmen Disruption. The nature of the required morality, however, remains questionable. The plays suggest a subjective and personalised concept of morality that seems to motivate disruptive action to state law and underlie its alternative vision of law.

In conclusion, there are two aspects to this second strand of the collective dissent narrative: first, the impact of state law’s illegitimacy and ultimate ineffectiveness; and second, concepts underlying this state of affairs. The alternative vision is a vision of disruption where state law is ignored, invisible or ineffective and where individuals turn to self-help for protection and self-preservation through newly developed rules and norms, suggesting a reliance on legal pluralism. Often underlying their actions is a sense of justice, fairness, or subjectively drawn concepts of morality. A separation is created as a result between state and individual, and between law and justice. As Halliday and Morgan state: ‘…legal pluralism…is a key element of society’s legal consciousness. In so far as dissenting collectivism is distrustful and skeptical towards structured systems of authority and rejects the inherent authority of formal state law in the name of an alternative and deeper legal and moral foundation, it has more than one sense of “law”’ (2013: 18).

(iii) Strategic Use of the Law

This third limb of the collective dissent narrative speaks to the use of law for either disruptive purposes or to benefit citizens’ interests. It speaks to a manipulation of the law for individual purposes.

There are examples of this strategic use of the law, or as Halliday and Morgan term it, ‘a gaming approach to state law’, in several of the plays where the playwrights deliver a stinging rebuke to law’s ability to be manipulated. Islands provides an excellent example of state rules rendered useless; the citizens of Haven, the tax haven for the powerfully rich, ignore or manipulate rules in their self-interest (here, personal financial gain), and control state agents who seek unsuccessfully to enforce state rules (Horton, 2015: 32). The state’s laws are manipulated or ignored and lead to violence by the oppressed against the oppressors, as described earlier.

Rules are also flaunted when they are not agreeable. Deluge presents this image when Kitty ignores the rules about insurance fraud to protect her property. In Carmen Disruption, an investor, in need of money to repay a multi-million pound loan, is given money by an elusive figure (suggestive of the criminal underworld) without hesitation and without the encumbrance of satisfying norms such as ensuring money laundering legislative requirements are met. ³ The investor and the lender are outside the realm of ordinary societal rules and norms. In Wildefire, state laws are used as a sword by the agents of the state (the police) and are also ignored by these same agents (Williams, 2015). The laws are malleable, invoked when necessary to further particular objectives at particular times.

State law and profiteers are complicit in the human hunt of Mike Bartlett’s Game where tranquiliser guns are used to shoot at caged individuals for a price: shooters desire a ‘hit’ and show satisfaction when the victim is rendered unconscious as a result of being shot by them (2015). The role of state law as the guardian of social order is challenged where state laws permit the shooting of these caged individuals, including children, for profit which is at the heart of the gaming. The caged individuals profit from being targets by being paid for their participation, and the company organising the ‘game’ is paid by the shooters for giving them the privilege of shooting fellow humans.

As long as no one is ‘harmed’, state law permits this dystopian game to proceed where humans are hunted, shot at and rendered unconscious when hit. When state law may impact the viability of the game, the law is avoided. Issues regarding the consent of players to the game are manipulated: consent of children to the game is inferred; testimony about potential harm is urged to be hidden. Law is about facts, says one character, urging another to lie or at minimum, to distort the truth during testimony in order to protect the game and hence the business of the game (Bartlett, 2015: 54–57). When the game is faced with the reality of the application of state law through court awards of compensatory damages, the game is voluntarily shut down to avoid payment. Insolvency laws are invoked to protect against payout (Bartlett, 2015: 68). At the play’s end, an inference is made that the game will continue another day in a more drastic form where pain and possibly death would be inflicted (Bartlett, 2015: 64).

While there is a recognition of the existence of state law in these plays, the law continues to be marginalised by the actions of the state’s citizens. They move around the law to avoid the law if it is contrary to their self-interest or they manipulate the law to suit their purposes. Law is malleable in accommodating the avoidance. Echoes of Ewick and Silbey’s with the law are heard here (1998: 129–164). Halliday and Morgan, however, argue that strategic use of the law arises because the law is seen as illegitimate. This distinguishes the third element of the collective dissent approach from Ewick and Silbey’s with the law category, which takes place within the context of legitimate state power. Collective dissent is a starker concept. The manipulation occurs within the context of a state in chaos, where normative structures and rules are not effective. The hegemonic nature of state law is reduced and its power abated by the citizen’s own use of power to overcome what they see to be the limitations and failures of state law.

Conclusion

The narrative of collective dissent offers a broader conception of legal consciousness than the often cited Ewick and Silbey schemas of before the law, with the law and against the law, which are too narrow for the messages from the dramaturgic performances explored here (1998). There is little beatification of the law or working with the law in the performances. The actions and words from the stage extend beyond a distrust and cynicism of state law. Conceptions of the legitimacy of state law are challenged and actions are taken in response to this challenge. A malaise underlying state law and a corresponding search for a suitable replacement for ensuring social order is a pattern disclosed by this study. The framework of collective dissent responds to the needs of the data with their focus on notions of illegitimacy of state law.

The playwrights together present a vision of society rebelling against state law. A collective is established through the prevalence and strength of the dissenting voices of playwrights shaping the legal consciousness of the audience. Together, as a collective, they speak to illegitimacy of state law, disruption to state law and alternative visions of legality that results. Collective agency occurs on two levels: at the first level, it occurs through the plays where the staged communities come together and act in dissent. On the second level, collective agency occurs through the relationship between playwrights and their audiences. Through the live performance and the experience of the audience as participant to the performance, a collective agency is created. The playwright voices of illegitimacy, disruption, evocation of justice, fairness or morality, and manipulation of state law coalesce to form collective agency for the purposes of this study. Arguably, these playwrights are part of a social movement: they are creating the principles on which citizens act. They do so within the context of the dramaturgic performance.

In this concluding section, an attempt is made to draw together the analysis of the data as against this collective dissent framework. In so doing, it offers first, a critique of the framework, and second, a coda regarding legal consciousness in these dramaturgic performances.

(i) Collective Dissent: A Critique

The illegitimacy of state law as drawn by Fritsvold, Hertog, Halliday and Morgan becomes a dominant and obvious theme of these performances. Although categorised within the first of three elements of Morgan and Halliday’s collective dissent narrative and evident as such, illegitimacy of state law permeates throughout the narrative. Illegitimacy underlies reasons for actions taken. It becomes the raison d’etre for the second of its elements: it compels a need to bring about a reality which is an alternative to the illegitimacy of state law. While Halliday and Morgan see it as the first of three distinct strands to a collective dissent narrative, the data suggest it has a greater relevance to the narrative than merely being one strand of it. It forms the basis for the narrative around which action and responses are compelled.

The second element of the narrative seeks to offer alternatives to the illegitimacy of state law. Concepts of morality, justice and fairness underlie the challenge to state authority and the need to disrupt it. While these concepts have a place in the dialogue, the need to create systems of order to respond to the illegitimacy and corresponding ineffectiveness of state law is the driving force in these theatrical performances. The alternative reality in this context is legal pluralism, by which to overcome illegitimate state law. This is how citizens can deal with the statelessness that is society; they rely on themselves for the delivery of a new legal order, driven by their views of justice, fairness and morality.

These views do not lead to a centralised alternative to state law. In the context of these plays, the alternative vision which is offered is not one-dimensional: it is not about an ideal relationship between law and society where the law works beneficially and effectively in creating order from disorder; it is about what society can offer or must deal with in light of the powerlessness of state law to protect or promote legal well-being in society. State law offers little – citizens are responsible for the creation of order in society. It is a stark pluralistic reality that is offered by these plays.

The third element of the Halliday and Morgan framework – strategic use of the law – does not have the same resonance in the plays as do illegitimacy and alternative vision of law. The primary actions of citizens in the face of state law is to overthrow the state or take matters into their own hands rather than manipulate the law for their own strategic purposes. Certainly, they disrupt the law. While it is evident that manipulation occurs in the context of illegitimacy and thus takes the discussion out of the Ewick and Silbey context and places it within the context of collective dissent, the general value of this third strand in furthering the narrative is not clear and may not be necessary for the development of the narrative.

It is the illegitimacy of state law and the alternative visions arising from actions taken as a result of the illegitimacy that are relevant. These two elements are strongly connected within the narrative, and arguably, they become the narrative. Once the illegitimacy is established as a frame, the questions become: what is the response to such illegitimacy and what compels the response. The issue of whether there is a manipulation of laws seen as illegitimate seems to have little impact other than emphasising the overall illegitimacy of state law. As such, it appears to rest outside this particular frame, becoming irrelevant for the study. Accordingly, it may well be that the narrative of collective dissent involves only two categories of exploration: illegitimacy of state law and alternative visions of law arising from the illegitimacy and their underlying values. While the elements of this third strand appear within the data for this study as discussed above, its relevancy and necessity for the collective dissent narrative is questionable and raises the need for further exploration and refinement of the narrative as a subject for future research.

(ii) Legal Consciousness in these Dramaturgic Performances: A Coda

As to what is gleaned from a collective dissent narrative in contemporary British theatre, these plays are illustrative of a collective consciousness about the relevance, effectiveness and weakness of society’s legal order and the impact of its inadequacies on society. They compel their audience to contemplate the status of law in society and more particularly, to contemplate the alternative to state law. Collective agency resides with the playwrights who create these plays as the voices of dissent, shaping the legal consciousness of the audience who experiences them. The playwrights also ask of their audience: what can replace state law when it is seen as illegitimate or at minimum, becomes ineffective? How can order be achieved in face of the inadequacies?

The data coming from these dramaturgic performances suggest a collective legal consciousness challenging traditional positivist views of state law, and its authority. The relationship between law and society is fraught with negativity: criminality plays a strong role, either directly in the dialogue or through the actions of the characters. The data support the Hobbsian view that man’s life is ‘nasty, brutish and short’ where a viable legal order is absent (Hobbes, 1651). The abuse or violation of state laws and the violence, inequity or distrust it generates provides a common thread in these plays.

A disillusioned society is evoked through the dramaturgic images presented by these plays. State law does not appear to be meeting the needs of society. Alternative, viable visions of law seem to rest on pluralist conceptions of order where rules are established by a community for a community. Justice, underpinned by a concept of fairness and a subjective view of morality, is present at times and is used as justification for anti-state action. The collective agency of performed theatre at issue in this article compels reflection and debate on the relationship between law and society in the context of collective experiences.

In conclusion, this article began with a statement regarding the relevance of the study to legal consciousness scholarship and cultural legal studies. Its valuable contribution lies, first, in its exploration of the applicability to cultural legal studies of the collective dissent narrative in legal consciousness scholarship, and its resulting critique of the narrative’s structural components for purposes of future application, thus adding to the growing complement of its use in socio-legal studies. Second, through the collective dissent narrative, an important contribution is made to the advancement of the study of theatrical performance for cultural legal studies, both substantively in terms of what dramaturgic images say about the relationship between law and society, and methodologically through its ethnographic method of data collection and analysis.