Performing Copyright: Part One

The English Renaissance of Theatrical Law and Legal Theatre: Seneca, Shakespeare and the Inns of Court

This is the first of a series of posts marking the publication of my book Performing Copyright: Law, Theatre and Authorship (Oxford: Hart, 2021). In these pieces I explain the book’s core themes and key case studies, addressing how theatre’s authorship and performance practices have helped shape - and have been shaped by - historical and contemporary copyright law. My book is available here.

The English Renaissance of Theatrical Law and Legal Theatre: Seneca, Shakespeare and the Inns of Court

It goes without saying that theatre involves performance, but what is perhaps less appreciated is that law too is ‘a performative mode of practice’.[1] The tasks that lawyers and judges perform – often during the theatre of the trial – shape the boundaries of the law. With regard to copyright, the practice of law affects the way works of theatre are perceived – and owned – as objects of property.[2]

Before I delve into questions of theatrical authorship and ownership in copyright law, in this first post I take a step back in time, to the ‘English Renaissance’ of the late 16th and early 17th centuries, in order to evaluate the early modern foundation of the relationship between law and theatre in England. What I demonstrate, and what has often gone unappreciated, is that the fruits of the labour of English dramatists and lawyers blossomed and matured together during the Elizabethan period. Although different realms of discourse, law and theatre interacted closely at this period of English history as never before or since, influencing one another in intense and unexpected ways.

Lawyers translated Roman plays and wrote their own, influencing English theatre profoundly; meanwhile, theatrical practices and rhetoric infused the law’s methods of advocacy. Of great importance is the fact that the bastion of legal learning – the Inns of Court - was viewed in the 16th and 17th centuries as the ‘third university’ of England, after Oxford and Cambridge. The scholars who entered the Inns found a thriving, relatively secular space for thought - not just a venue for legal training but a forum for philosophical debate, literary activities and the performance of plays.[3]

Understanding the practices of theatre was an integral part of legal education. Even the focused legal training practices at the Inns shared characteristics with that of actor-tutelage. These included the (often contrasting) use of written texts and performance styles, evident in both the coaching of lawyers and of actors; meanwhile, the exercises used by lawyers in moots often resembled theatrical scripts.[4] Trainee barristers translated the works of Ovid and Cicero from Latin into English, and these translations became a formative influence on the development of early modern English legal rhetoric and reasoning.

While the enduring impact of theatrical tropes and mannerisms in the legal field is obvious to anyone who observes a trial at the Old Bailey, the influence of lawyers on Elizabethan drama itself is less well-known. Buoyed by the Inns’ liberal atmosphere, lawyers such as Barnaby Googe, George Turberville and Sir Thomas North translated - and staged - plays by Roman philosophers such as Lucius Annaeus Seneca and Plutarch that shaped English renaissance theatre in innumerable ways.[5]

These translations and stagings are of incalculable importance not least because Seneca became the heroic classical-authorial figure of the period. As the Elizabethan market for printed books and play-texts expanded steadily, the plays of Seneca were among the most commonly printed and read, becoming so popular that in England among the literary class there was said to be a ‘Senecan vogue’.[6] William Shakespeare was one of the writers influenced by Seneca’s Roman plays.[7]

In fact, in a recent book Perry makes the claim that taking Seneca seriously ‘unsettles conventional wisdom about Shakespeare’ because Shakespeare’s magisterial tragedies were, in part, a product of the Elizabethan Senecan vogue.[8] Perry’s aim is ‘to recover the ways that Shakespeare, in his tragedies, engaged with the inherited resources of Senecan tragedy’.[9] Part of this inheritance concerns stage-elements that are distinctively Roman (rather than Greek). Key aspects of Senecan drama were co-opted into English theatre, including the use of violence (and even gore) on stage, as well as the presence of supernatural figures (ghosts, demons, etc). 

More profoundly, Perry argues that Senecan tragedy was the essential influence on perhaps Shakespeare’s most celebrated work: Hamlet.

On this, it is worth recalling Thomas Nashe’s famous comment that the lost ur-Hamlet was nothing other than ‘English Seneca’. Sadly, we cannot know that vanished text. Nonetheless, in the surviving, later versions of Hamlet the Senecan influence remains evident, most explicitly in the way that Polonius uses Seneca’s name as a synonym for tragedy, while also alluding to Seneca’s importance to lawyers at the Inns:

“Seneca cannot be too heavy nor Plautus too light. For the law of writ and the liberty, these are the only men.” [Hamlet, Act II, Scene ii]

Yet, Shakespeare’s playful, even mocking, engagement with Seneca in these lines belies an underlying truth: Shakespeare was building on Senecan insights and structures, he was not dismissing them out of hand. Shakespeare’s ‘creative repurposing of what he and his contemporaries found in Senecan tragedy created a scaffolding, as it were, upon which much of Hamlet’s modern criticism has been erected’.[10]

Why does it matter to view Hamlet as not only Shakespearean, but Senecan? The reason is that literary criticism, from Coleridge onward, has often viewed Hamlet as the archetype of the individual human self. Our fascination with the character of Hamlet is that his ‘inwardness transcends plot and becomes the main point of interest in the play he inhabits’.[11] For some critics, this insularity means the legacy of Hamlet is that the title character has become nothing less than the essence of Western individualism in modern literary thought.[12]

Accepting the point that Hamlet’s self-centred character was a bold step forward for literature and drama, Perry argues persuasively against the common presumption ‘that Hamlet is too modern and/or sophisticated to be Senecan’.[13] The interior world of Hamlet’s character, so entrancing to modern and post-modern critics, relies on Seneca’s philosophical insights and Senecan theatrical modes. Perry observes antecedents for Hamlet in ‘the desire of some Senecan protagonists for autonomy and dominion and their nagging sense of being ineluctably constrained by variously prescribed roles’ – qualities we find realised in Hamlet himself.[14] Thus, the influence of Senecan tragedy’s self-assertive characters – and Senecan monologues about the self - helped Shakespeare construct what we now consider to be Hamlet’s modern character. This is important because to the extent that modern critics examine Shakespeare’s literary and dramatic forbears, they often prefer to view Hamlet in light of the works of the Greek classical writers, such as Sophocles, and to relegate the input of the Romans, like Seneca. By emphasising that Senecan tragedy must be viewed as contributing significantly to the intramural sophistication of Hamlet, Perry illuminates the way the modern sensibility is rooted in the Roman inheritance.

On this Roman inheritance it is not only the lawyers’ influential translations of Seneca that are of great significance to the history of English renaissance theatre: Elizabethan lawyers were enthusiastic writers and performers of plays of their own creation.[15] In fact, the very first ‘English tragedy’ – Gorboduc – was authored jointly in 1561 by two lawyers, Thomas Norton and Thomas Sackville, and was performed for the first time at Inner Temple by actors from the Inns.[16] Gorboduc was a dramatization of the age-old civil war between the sons of King Gorboduc, Ferrex and Porrex, who were vying for control of the English throne; but it was also a political comment on the contemporary succession of Elizabeth I, and a contribution to the debate over whether the Queen should marry.[17]

Major dramatists of the period took note. The Inns were referenced (and satirised) by Ben Jonson in the late 16th century in Every Man out of His Humour; while Shakespeare’s Comedy of Errors and Twelfth Night were performed at the Inns in 1594 and 1602 respectively.[18] Indeed, a deep fascination for law and legality is visible in Elizabethan play-texts, particularly those of Shakespeare. The agon of the trial is central to plays such as Measure for Measure, The Merchant of Venice, and King Lear. Playwrights’ use of the legal process in their works of drama was not a mere framing device; and nor was the theatrical medium a mere ‘plaything’ for budding legal practitioners. Lawyers, such as Norton and Sackville, found in theatre a language of persuasion as well as a masking device for bringing contemporary political concerns into the public domain via historical analogy. Meanwhile, writers, especially Shakespeare, penetrated even deeper below the surface - or artifice - of law than the lawyers themselves: Shakespeare’s history plays explore the conditions for how a functional and just legal order can be established.[19]

In my next post I will explore the nature of this new legal order during the sixteenth and seventeenth centuries, in the then-ongoing ‘enclosure’ transition from ownership in common to private property. This is important not just with regard to the right to own land privately, but also in the context of monopoly rights to print texts that later, during the early eighteenth century, evolved into a system we would recognise as modern copyright law. On this, I consider Shakespeare’s contemporary, the great English jurist Sir Edward Coke. During the English renaissance Coke helped transform the common law by framing it as ‘artificial reason’. I note that theatrical rhetoric and mythologising, from Seneca to Shakespeare, played a crucial role in constructing this artifice. My book is available here.

[1] A Read, Theatre & Law (Basingstoke, UK: Palgrave Macmillan, 2016) 3. See also M Leiboff, ‘Law, Muteness and the Theatrical’ (2010) 14 Law Text Culture 384; M Del Mar, ‘The Education of Attention and Encounter in the Legal Academy’ in Z Bańkowski and M Del Mar (eds), The Moral Imagination and the Legal Life: Beyond Text in Legal Education (Farnham, UK: Ashgate, 2013) 33–63; G Calder, ‘Embodied Law: Theatre of the Oppressed in the Law School Classroom’ (2009) 1 Masks: An Online Journal for Law and Theatre 11; S Ramshaw, ‘Jamming the Law: Improvisational Theatre and the “Spontaneity” of Judgment’ (2010) 14 Law Text Culture 133.

[2] E Cooper, ‘Book Review: Becoming Property: Art, Theory and Law in Early Modern France and Copyright and the Value of Performance, 1770–1911’ (2020) 16 Law, Culture and the Humanities 504. See also D Miller, Copyright and the Value of Performance, 1770‒1911 (Cambridge: Cambridge University Press, 2018); E Cooper, Art and Modern Copyright: The Contested Image (Cambridge: Cambridge University Press, 2018); W Slaughter, Who Owns the News? A History of Copyright (Stanford: Stanford University Press, 2019) and A Kraut, Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance (Oxford: Oxford University Press, 2015).

[3] J Winston, Lawyers at Play: Literature, Law and Politics at the Early Modern Inns of Court, 1558‒1581 (Oxford: Oxford University Press, 2016) 50‒73.

[4] C Dente, ‘Rules and Textual Construction of the Vocational Practices of Actors and Lawyers in Early Modern England’ 1 Journal of Early Modern Studies (2012) 155-173, 156.

[5] Shakespeare relied heavily on the works of Plutarch – as translated by Sir Thomas North ‒ for the plot of Antony and Cleopatra. See further R Miola, Shakespeare’s Reading (Oxford: Oxford University Press, 2012) 106–09.

[6] DA Brooks, ‘Dramatic Authorship and Publication in Early Modern England’ (2003) 15 Medieval & Renaissance Drama in England 77. Printing technology, regulated by the Stationers’ Company, enabled the diffusion of these translations - see PWM Blayney, The Stationers' Company and the Printers of London, 1501–1557 (Cambridge: Cambridge University Press, 2013). See also L Febvre and H-J Martin, The Coming of the Book – The Impact of Printing, 1450‒1800 (London: Verso, 1997). 

[7] C Perry, Shakespeare and Senecan Tragedy (Cambridge: Cambridge University Press, 2020).

[8] Ibid., 73.

[9] Ibid., 1.

[10] Ibid., 73.

[11] Ibid., 77.

[12] The kind of ‘bardolatry’ that over-emphasises Shakespeare’s influence can be found in its most speculative, yet eloquent, form in H Bloom, Shakespeare: The Invention of the Human (New York: Riverhead Books, 1998).

[13] C Perry, Shakespeare and Senecan Tragedy (Cambridge: Cambridge University Press, 2020), 73.

[14] Ibid., 76.

[15] J Winston, Lawyers at Play: Literature, Law and Politics at the Early Modern Inns of Court, 1558‒1581 (Oxford: Oxford University Press, 2016) 50‒73.

[16] N Jones and PW White, ‘Gorboduc and Royal Marriage Politics: An Elizabethan Playgoer’s Report of the Premiere Performance’ 26 English Literary Renaissance (1996) 3.

[17[ J Winston, ‘Expanding the Political Nation: Gorboduc at the Inns of Court and Succession Revisited’ 8 Early Theatre (2005) 11.

[18] M Knapp and M Kabialka, ‘Shakespeare and the Prince of Purpoole: The 1594 production of “The Comedy of Errors” at Gray’s Inn Hall’ 4 Theatre History Studies (1984) 71. Twelfth Night was performed at Inner Temple in 1602, an event still celebrated by the Inns today, available at www.innertemple.org.uk/who-we-are/history/historical-articles/gorboduc-or-the-tragedy-of-ferrex-and-porrox/. 

[19] E Heinze, ‘Power Politics and the Rule of Law: Shakespeare’s First Historical Tetralogy and Law’s “Foundations”’ 29 Oxford Journal of Legal Studies (2009) 139.