Intending to Act

Yale Journal of Law & the Humanities Volume 14 | Issue 2 Article 6 January 2002 Intending to Act Lorna Hutson Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Lorna Hutson, Intending to Act, 14 Yale J.L. & Human. (2002). Available at: https://digitalcommons.law.yale.edu/yjlh/vol14/iss2/6 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Hutson: Intending to Act Intending to Act Luke Wilson, Theaters of Intention.-Dramaand Law in EarlyModern England Stanford: Stanford University Press, 2000. Pp. x, 362. $49.50. Lorna Hutson Theaters of Intention has the makings of a major book. Its farreaching claims about the relationship between law and theater in early modern England are both intricately argued and meticulously substantiated. It is a demanding book, too; partly, of course, because of the often-attested resistance of common-law terminology to being translated into layman's terms, but also, I think, because, as Wilson points out, "discussions of intention" themselves must derive from "a range of disciplinary contexts." ' The book proposes that what the institutions of law and theater primarily share in early modern England is a preoccupation with the problems of representing human action as intentional. Neither the discipline of literary criticism, nor that of legal history, however, has ever exactly theorized intention as a problem relating to the representation of action in this way. So the book's complexity arises from the fact that the relationship of similarity and difference between early modern legal and theatrical investments in representing intentional action can only be explored by using the analytical tools of a range of disciplines: literary criticism, poststructuralist literary theory, theater studies, legal history, sociology, anthropology, philosophy of language, and the history of classical rhetoric, to name just a few. The idea that both the law and the theater might have an interest, in a certain historical moment, in representing human action as intentional is powerfully innovative in itself. It forces one to think of intention not as necessarily antecedent to and causative of human action, but as a problem. The idea runs against our common sense 1. LUKE WILSON, THEATERS OF INTENTION: DRAMA AND LAW IN EARLY MODERN ENGLAND 7 (2000). Published by Yale Law School Legal Scholarship Repository, 2002 1 Yale Journal of Law & the Humanities, Vol. 14, Iss. 2 [2002], Art. 6 Yale Journal of Law & the Humanities [Vol 14:449 ways of talking both about dramatic fiction and about legal liability. In the case of drama, especially Shakespearean drama, the remarkable post-Bradleyan and post-poststructuralist tenacity of character criticism attests to our investment in ascribing intentions to the agents of dramatic plot, rather than seeing their actions as rhetorically instrumental within the fiction (New Historicism, seeing characters as cultural symptoms rather than poetic achievements, hardly challenges this kind of common sense). Similarly, our tendency to think of homicide cases as mysteries on the models of Agatha Christie and Inspector Morse urges us to organize our ideas about evidence, proof, and legal liability around a reconstruction of motives and intentions-the revelation of the guilty mind that planned it all. In both instances it is assumed that actions-sometimes only retrospectively signified (by corpses, murder weapons, ghosts)-have agents, and that agents have intentions. So what does it mean to talk about the representation of intentional action as a problem for legal practice and dramatic composition in the sixteenth century? Well, for one thing, such an approach forces us to discard the usual logic of cause and effect-the idea that actions derive from intentions. Instead, we must replace it with an appreciation of the work done by intention as a retrospective fiction that makes sense of action, or as a way of allocating liability, of connecting action with an agent. Even putting the idea this way makes it obvious how close the connection must be between legal discourse and literary composition. In sixteenth-century common law, Wilson shows, it became necessary to ascribe intention in order to prove guilt (in the case of homicide), or (in the case of "assumpsit") in order to ascertain the existence of the implied promise on which any legal action must depend. At the same time, theater was moving from the syllogistic structure of the morality play, and from the ritualistic actor-audience relationship embodied in the clown, towards the illusory mimesis of Shakespearean drama. The mimetic structure of Shakespearean drama is based, as Joel Altman and others have argued, on rhetorical hypothesis, and so involves the elaboration of the circumstances of a particular story, rather than the morality play's proof of a general thesis.2 Shakespearean drama therefore requires that the audience be persuaded that the characters (no longer either allegorical personifications of morality drama or descendants of the fool of ancient ritual) harbor intentions, and thence that the dramatic action can be made sense of in terms of a reconstruction of those intentions, a working out of what each speaker and agent "meant" by saying or 2. See JOEL ALTMAN, THE TUDOR PLAY OF MIND: RHETORICAL INQUIRY AND THE DEVELOPMENT OF ELIZABETHAN DRAMA (1978). https://digitalcommons.law.yale.edu/yjlh/vol14/iss2/6 2 Hutson: Intending to Act 20021 Hutson doing a certain thing. A sixteenth-century legal concern with the way fictions of intention allocate liability, therefore, might intersect with the concern of an emergent professional drama to create plots that engage the audience in the belief that the dramatis personae are more than transparent agents of authorial intention. I have to say that Wilson does not state the law/theater relationship in quite these terms; I am inferring it from the argument that his book conducts largely at the level of detailed correspondences between specific cases and textual cruxes in plays. Wilson begins with an exploration of the ways in which intention is conceptualized in Hamlet and in contemporary legal discourse concerning homicide. Critics have long been aware of the presence of legal language in the gravediggers' ludicrous discussion of Ophelia's suicide in Act 5, which garbles Plowden's report of the argument for the defence in the famous case of Hales v. Pedtt This case was brought by Margaret Hales, widow of Sir James Hales, a justice of the Court of Common Pleas, who had committed suicide in 1554 by drowning. Margaret Hales's case was that she should not have had to forfeit her late husb (...truncated)