Part II - The Truth Factory

4 The Truth Factory Crafting Fact and Law

[G]reat legislation to protect civil rights and economic security and lead the world was debated and crafted under this dome.

Senator Amy Klobuchar, introducing President Joe Biden’s Inaugural Address (The Capitol Building, 20 January 2021)

[W]e must reject a culture in which facts themselves are manipulated and even manufactured.

President Joe Biden, Inaugural Address (The Capitol Building, 20 January 2021)

These two statements – one declaring pride in ‘crafted’ laws and the other expressing suspicion of ‘manufactured facts’ – elide an important detail: that every law is a social fact. Every time a new law is crafted, a new fact is manufactured. A. V. Dicey observed that legislative opinion is the result of facts more than philosophy, and ‘no facts play a more important part in the creation of opinion than laws themselves’.¹ The consideration that reconciles the statements made by Biden and Klobuchar is concern for how facts are made and by whom. Facts (including laws) which are established through reliable and rigorous processes conducted by accountable and capable people are unobjectionable. This, after all, is the very reason why we tend to trust facts established by scientific experts. It all comes down to the quality of the factory in which the fact is made, and this, to put it another way, is a question of whether the author has authority, for ‘[t]o understand why anyone is taken to be an epistemic authority – an authority on truth – it is vital to understand what authorises them’.² In the quotation at the top of this chapter, Senator Amy Klobuchar was referring to law-making as a craft carried out by the legislature. This is in a long tradition going back to Plato’s Laws, where he ‘compares the lawgiver to the shipwright who constructs a sturdy sea vessel’.³ The ship of state appears in another form as a significant expression of the constitution of First Nations people in Canada where, by valuing the process of making a cedar wood canoe, the canoe itself is credited with shaping the values that make the community that crafted it.⁴ We will touch again upon law-making in the legislative context, but most of our attention will be focused upon what I call the ‘Truth Factory’ of the legal trial. It is in that context that the skill of law-making is most like a craft, because it is here that the judge as artisan encounters and grapples with the social materials that are the practical contingencies of people’s lives.

Truth Factory is a convenient label to describe the fabricating activities of all systematic contexts in which truths are constructed, but when a legal trial works well it is actually more akin to a workshop in which expert artisans conduct their craft through bespoke processes of Artefaction. We will see later in this chapter that judicial law-making has frequently been likened to arts and crafts of various sorts, from minting coins to writing novels. Significant as this is for demonstrating the reality of the law’s fabricating processes, the aim of this chapter is to go deeper than drawing analogies between judicial art and handicrafts. The deeper aim is to challenge the assumption that the facts and truths established in law courts are ‘found’ and ‘discovered’. It is only by acknowledging that legal facts and legal truths are made by judicial crafts that we will come to appreciate the merits of those crafts and to discern the attributes of truth-making in courts that set the standard by which to judge the quality of truth claims in other contexts.

Post-truth

It is sometimes said that we live in a ‘post-truth’ world in which opinions based on personal emotions are preferred to the opinions of professional experts. The election of Donald Trump as US president in 2016 was identified as being caused by, as well as being a cause of, this truth-casual trend in modern politics. In that year, the same trend was also observable in the debate surrounding the UK referendum to leave the EU, although in relation to ‘Brexit’ the resort to emotion over cold reason was strong on both sides of the debate. It is primarily because of the prominence of truth-casual talk in US and UK politics around the events of 2016 that ‘post-truth’ was chosen as the ‘word of the year’ by the OED in 2016. The word may be new, or newly popularized, but the root of the idea is very old and ‘post-truth’ is not its first modern iteration. The American Dialect Society and the Merriam-Webster dictionary were ahead of the curve in calling out the rhetorical manipulation of truth claims when in 2005 and 2006 respectively they named ‘truthiness’ their word of the year. That word has a longstanding pedigree, but its twenty-first-century deployment as a description of false truth claims began when Stephen Colbert coined it on 17 October 2005 in the pilot episode of his satirical news television programme The Colbert Report. In that episode, with tongue firmly-in-cheek, he said

I’m no fan of dictionaries or reference books. They’re elitist! Constantly telling us what is or isn’t true, or what did or didn’t happen. Who’s Britannica to tell me the Panama Canal was finished in 1914? If I want to say it happened in 1941, that’s my right! I don’t trust books – they’re all fact, no heart! … The truthiness is anyone can read the news to you. I promise to feel the news at you.⁵

This expresses comedically the problem that would later come to be known as ‘post-truth’ thinking, for at the heart of the phenomenon is the rejection of facts in preference for feelings and the prioritization of my right to judge ahead of the judgments of experts. In the years since that pilot episode of The Colbert Report, social media have established their place at the core of the post-truth phenomenon. The online court of popular opinion operates as a Truth Factory in which truth statements are generated out of the raw materials of participants’ personal points of view and emotional passions. This is the species of fact manufacture to which President Biden was objecting in his inaugural speech, as quoted at the top of this chapter. It was, of course, a thinly veiled rebuke to his predecessor, President Trump.

Legal Trial as Truth Factory

Social media have constituted the so-called court of popular opinion as a new Truth Factory, but the original Truth Factory is the legal trial. The law has traditionally claimed to be in the business of revealing hidden truth through its evidentiary processes – a claim that is clear in the legal vernacular of ‘disclosure’, ‘discovery’, ‘finding of fact’, and so forth – but it is more accurate to describe the legal trial as a process by which truth is made rather than discovered; fabricated rather than found. Law’s pretence of being in the business of revealing and discovering truth was illustrated in antiquity by the story of the trial of the courtesan Phryne. Accused of impiety, she was defended by Hypereides, who is numbered alongside such luminaries as Demosthenes, Isocrates, and Lycurgus as one of the great Attic orators (and might also have been numbered among Phryne’s lovers). According to one popular retelling, Hypereides’ defence of Phryne culminated with him stripping off her clothes in court to reveal her naked breasts as a demonstration of the naked truth of her innocence. This striking and strange performative mode of legal argument was designed to prove that this was a woman with nothing to hide. A more accurate performance of law’s processes would have had Hypereides gesturing to the law’s civilizing ambitions by covering Phryne’s naked nature with cloth. In the words of Thomas Carlyle, ‘the Pomp and Authority of Law … are properly a Vesture and Raiment’,⁶ or to quote my own previous reflections on Carlyle: ‘law is dress and dress is law’.⁷ The legal system doesn’t discover truths but seeks rather to cover civil disputes with the dignity of a well-crafted decision.

An enduring legal method for establishing reliable facts is the traditional oath ‘to tell the truth, the whole truth, and nothing but the truth’, which is believed to have its origins in thirteenth-century Old English. Ben Jonson quotes it in his 1625 play The Staple of News (Act V Scene II), and it is still a staple of legal performance across the Anglophone world today. The element ‘nothing but the truth’ purports to strip away artificial coverings from the natural, naked truth and is therefore in the tradition of Hypereides stripping Phryne before the court. The three-part oath is in the form of a rhetorically elegant tricolon with a rising ladder-like quality of gradatio or climax. This suggests that it might have endured due to its inherent elegance quite apart from any substantive appeal. It is a highly effective method for constraining witness testimony not only because the formulation practically excludes the witnesses’ opportunity to put forward a falsehood but also because a witness who breaks the oath commits perjury and may be punished with imprisonment. Effective though it is, it would be optimistic to suppose that the traditional tripartite oath can produce the actual truth of an event before the court.

Let us suppose that all the witnesses on every side were to present ‘the truth, the whole truth, and nothing but the truth’ to the best of their knowledge and belief. It is still inevitable that the factual matrix produced by the witnesses will contain inconsistencies caused by variations in point of view, psychological prejudice, and variations in the clarity of witnesses’ recollection and expression. Eyewitness accounts are notoriously unreliable despite the great extent to which courts rely upon them.⁸ The court will never receive absolute truth from witnesses. At best it can hope to follow the thread of each witness’s account. The task of the court faced with a tangle of these threads is not to pull them out to reveal an underlying naked truth but rather to weave the threads into a plausible account of what probably occurred. In most common law courts, probability is established in civil cases between citizens whenever an account of events is more likely true than not, which amounts to proof established on the basis of a higher than 50 per cent chance. This is proof ‘on the balance of probabilities’. Clearly, this ‘probable account’ is a very different creature to the ‘absolute truth’ of the event. In criminal cases brought by the state against a citizen the standard of proof is higher. In the United States, facts establishing criminal guilt must be proved ‘beyond a reasonable doubt’, which is based on the traditional requirement in England and Wales that guilt be proved ‘beyond all reasonable doubt’ (although judges in England and Wales now direct juries more prosaically that they ‘must be sure that the defendant is guilty’),⁹ but the law never demands perfect insight of any jury because the law knows that the absolute truth of an event can never be known.

The process of establishing proof through probability is not a process of stripping away, but the quite opposite process of weaving a mesh of evidence (evidence, as the name suggests, being a visible or apparent thing) that will cover the circumstances so completely that one cannot prove it (that is ‘probe’ it) to be false. The court’s process is not to throw off the witnesses’ competing stories, but to weave the text of a new story that is proof against critical probation. The court, in short, establishes proof by weaving its account of what occurred so tightly that it will satisfactorily deflect doubts just as surely as waterproof clothing deflects water and bulletproof armour deflects bullets.¹⁰ The court’s verdict or decision cannot claim to narrate the truth, the whole truth, and nothing but the truth. It can only claim to be the most authoritative account among a range of alternative possibilities. The judge’s authority turns greater than 50 per cent probability into practical reality for legal purposes. Authority – not empirical veracity – is the ultimate assay of the truth of a judicial statement. Suppose that a judge is called upon to determine the colour of a car which the eyewitnesses agree was uniform monochrome, but which one witness swears was black and the other swears was white. The judge in such a case is permitted to find as a matter of fact that the car was grey. This is in effect to say that the judge does not know what colour the car was but will apply the law ‘as if’ the car was grey. For purposes of the legal trial, an authoritative judicial statement of probability has the effect of producing what amounts to a wholly new and freshly forged fact – a fact which in our example of the grey car, as in the example of very many real-life cases, may be strictly speaking inconsistent with all the evidence expressly offered by eyewitnesses. Indeed, judicial findings (makings) at trial are further removed from the past ‘reality’ of events by the fact that findings are influenced not only by the full range of evidence but also by what Robert P. Burns calls ‘normative and political ideals and determinations’, from which he concludes that ‘[t]he trial does not create a single most factually probable screenplay for a past event. It focuses instead on the past for moral-political reasons.’¹¹ The same is true of juries. Burns again:

[J]uries find a story acceptable – find it true – based on its consistency with its perception of what ought to be done in response to what is most important about the meaningful situation in which it is engrossed, the trial itself.¹²

Judge Benjamin Cardozo has called the deeming process of fact-finding a process of ‘make-believe’,¹³ but this needn’t imply that the facts found are fanciful or false. The judicial function of applying law to facts requires that facts – however empirically indeterminate they may be – must be finalized for the practical purposes of a trial. The law cannot be applied to the facts in the case until those facts have been fixed beyond dispute. Judges concerned to protect the supposed scientific dignity of the law have occasionally pretended that the law is not about make-believe at all. In this vein, one of the UK’s most senior judges once complained that ‘[t]here is something wrong with a state of the law which makes it necessary to create fairy tales’.¹⁴ His lordship protests too much. This is clear from the opening line of the same speech where he observed that ‘140 years after the Judicature Act 1873, the stitching together of equity and the common law continues to cause problems at the seams’. This might not be the standard opening line to a fairy-tale, but it certainly combines narrative and imagistic techniques. It sounds like the opening to some sort of tale. His lordship denied that the law spins a yarn as fairy tales do, but his choice of metaphor undoubtedly assumed that judges are in the synthetic business of tailoring, stitching up, patching, and trying to make the law into an integrated whole. Equally revealing of the fabricating nature of judicial craft is the observation made by another Justice of the Supreme Court of the United Kingdom, who noted in one case that ‘a number of first-instance judges were persuaded that three separate strands of legal doctrine, all largely associated with practice in the Chancery Division, should be spun or plaited together so as to produce a new rule’.¹⁵

Legal judgments are all about making. Facts are made to enable law to be applied. This is done in order that decisions may be made, and this is done in order to make civil peace. Crucial to the ultimate aim of making peace is the need to persuade all immediate participants and the more remote public (or publics plural) of the authoritative and binding nature of judicial pronouncements. In other words, it all comes down to another type of making – what Cardozo called ‘make-believe’. Indeed, we can say that the legal trial is a process of make-believe from top to bottom, for as the overarching aim is to persuade the participants and the public and therefore ‘to make-believe’ in that sense, so also the lowest or foundational activity of determining facts (‘the car was grey’) depends upon a form of make-believe. Judges are said to be in the business of fact ‘finding’, but the reality is that legal facts are not found, they are fabricated. John Dewey alerts us to the lawyers’ craft of constructing the materials of a case to persuasive effect:

No lawyer ever thought out the case of a client in terms of the syllogism. He begins with a conclusion which he intends to reach, favorable to his client of course, and then analyzes the facts of the situation to find material out of which to construct a favorable statement of facts.¹⁶

The lawyer on this view is something like the supplier of building materials, with the craft of constructing the facts and making a judgment falling to the judge and jury. We tend to overlook the materiality of legal language by which tangible ideas are held in our minds, but it is present in such commonplace notions as the judge ‘finding’ X as a ‘matter of fact’, and ‘holding’ Y as a ‘matter of law’, before ‘handing down’ judgment. The Latin prefix ‘In re’ that precedes the official name of many legal cases in common law jurisdictions reminds us that we are always dealing ‘in matter’.¹⁷ The word ‘law’ itself, which is a cousin to ‘lag’, indicates a thing ‘laid down’. Taking law in that sense we find a new significance in one of the central technical tasks of all jurists – judge, lawyer, and scholar alike – which is the skill of ‘applying’ the law to the circumstances of the case. Considered in this way, this key juristic technique is not far removed from the textile craft of appliqué, by which patches of cloth are stitched onto a field of fabric. Although he didn’t say so, this is precisely the species of craft that Cardozo evoked when he wrote of an isolated part of the law being like a ‘little patch upon the web of human thought’.¹⁸

It must be emphasized again that fabrication needn’t imply falsehood. Even by the light of empirical science, the judge’s finding in our example of the car is justifiable on grounds not only of legal but also of psychological probability. Visual perception is such that a grey car on a dark background can appear white, and a grey car on a light background can appear black. That said, a fact established by a duly authorized judge according to the due process of a properly constituted legal trial does not require the authority of science because it has the authority of its own process backed up by the authority of the state. It demonstrates the self-sufficient status of a legally forged fact to note that the judge’s (or jury’s) decision on a matter of fact cannot be appealed to a higher court, still less appealed to any court of empirical science. As one Court of Appeal judge put it in the jurisdiction of England and Wales: ‘The trial is not a dress rehearsal. It is the first and last night of the show.’¹⁹ (A metaphor that helpfully confirms that trial entails crafts of covering up.)

Judge-Made Truth

In her 2008 PhD thesis, Trials, Truth-Telling and the Performing Body, Kate Leader emphasizes an anthropological view of the legal trial as a process concerned with the ‘production of juridical truth’;²⁰ a process that ‘does not “reflect” or reveal authority or “Truth”, but rather helps manufacture it’.²¹ She cites Pierre Bourdieu for the opinion that ‘[t]he trial as a live performance must be continually enacted; played out over and over and over again’ and that ‘[t]his repetition manufactures, almost as a by-product, the power of “The Law”’.²² When she identifies ‘juridical truth’ as ‘a field-specific construction’,²³ she is saying that the theatre of law is its own domain with its own means of Production.

Leader’s idea of ‘juridical truth’ as ‘field-specific’ suggests that judges are a truth-making community of the sort envisaged by the Neapolitan rhetorician-jurist-philosopher, Giambattista Vico. As a way into Vico’s work, I am indebted to John D. Schaeffer’s gloss of Vico’s On the Study Methods of our Time.²⁴ According to Schaeffer, Vico regarded the sensus communis (‘a community’s common sense’) ‘to be a synthetic faculty that both creates and judges. It focuses experience and knowledge on a case at hand, resulting in either arguments or figures of speech.’²⁵ That statement can be carried over to describe well the practical craft undertaken within the community of common law judges. Schaeffer notes further that Vico’s 1710 work, On the Most Ancient Wisdom of the Italians, went on to explain the guiding philosophy for this synthetic doctrine in terms of a sophisticated relation between making, knowing, and truth.²⁶ Vico called this the ‘verum-factum’ principle, by which he argued that the truth of a thing can only be known if one has made or can make the thing. Schaeffer elaborates:

Hence humans can know mathematical truth because they make mathematics, but since humans did not make the physical world they cannot know the truth about it; only God, who made the world, can know physics as true.²⁷

Applying Vico’s ideas to the common law trial leads to the conclusion that because law is made in a trial by lawyers, judges, and juries, humans are competent to know the ‘true’ in that context. Or, to put it metaphorically, we can say that because law is made in the Truth Factory of a trial, the people working in the factory are competent (on Vico’s view) to confirm the trial product as ‘a truth’. Robert P. Burns (adopting James Boyd White’s language of constitutive rhetoric) also emphasizes the contextual nature of communal truth construction in a legal trial. He writes that:

[A] trial’s linguistic practices, its constitutive rhetoric, are consciously structured to create an almost unbearable tension of opposites that shows forth the practical truth of a human situation. It is the burden of the trial to accomplish a practical resolution of those tensions in a highly contextual and specific way, one that actualizes the practical wisdom implicit in the common sense of the community.²⁸

The Show of Truth

There is a long pedigree to the idea that truth – or at least the best approximation of truth made to serve human purposes – might reside in the manufactured cover, decoration, or show rather than in the discovery of an underlying absolute or natural ideal of truth. The idea of the ‘made’ truth was established long before Nietzsche answered Pilate’s question, ‘What is truth?’ (John 18:37), by analogizing truth to the adorned surface of a manufactured coin. Nietzsche called truth:

A mobile army of metaphors, metonyms, and anthropomorphisms, in short, a sum of human relations which were poetically and rhetorically heightened, transferred, and adorned, and after long use seem solid canonical, and binding to a nation. Truths are illusions about which it has been forgotten that they are illusions, worn-out metaphors without sensory impact, coins which have lost their image and now can be used only as metal, and no longer as coins.²⁹

Cardozo employed a similar metaphor in the legal context when he observed that judges work in the ‘judicial mint’ to stamp ‘forms of conduct’ into ‘coinage of the realm’.³⁰ If the coinage is creditworthy it doesn’t matter for practical purposes that it differs in quality from the gold standard of absolute justice. It is said that justice must be done and must be seen to be done, but in practice it is inefficient and unnecessary to do justice if the appearance of justice is satisfactory.

The idea that a crafted representation might communicate the best practical version of truth was endemic in the thoroughly performative milieu of early modern England.³¹ One of the classical sources for the early modern idea of the true picture or natural art is Horace’s line ‘ficta voluptatis causa sint proxima veris’³² (‘fictions meant to please should approximate the truth’). Ben Jonson quotes this in his 1631 play The Staple of News³³ and as an epigraph to his 1616 play The Divell is an Asse. Another precedent for the idea that art might reveal the truth of nature is Petrarch’s notion that the office of the poet (officium poetae) is ‘to demonstrate and glorify the truth of things woven into the decorous cloud of fiction (veritatem rerum decora velut figmentorum nube contextam)’.³⁴ Ben Jonson explores the idea of the art of truth in his commonplace book Timber; or, Discoveries Made upon Men and Matter.³⁵ (Commonplace books were handheld data-storage devices in which their owners set down thoughts, snippets of conversation, quotations, and images – in some respects an early modern equivalent to the modern mobile phone.) Jonson’s epigraph to that work talks of woods (sylva) as things of nature, while the Timber of the book’s title is his term for stuff made from nature by human hands. The theme of ‘made nature’ is one he returns to throughout the collection. For example, in his entry ‘On picture’ (De pictura), Jonson expresses the notion that artifice has the potential to present the true, acknowledging that representative art is fabricated (‘being done by an excellent artificer’), but that despite this ‘[w]hosoever loves not Picture, is injurious to Truth: and all the wisdome of Poetry’.³⁶ Jonson reconciles the idea of true art with natural truth when he adds that ‘Picture is the invention of Heaven: the most ancient, and most a kinne to Nature’.³⁷ In a later section of notes on ‘the difference of wits’ (Ingeniorum discrimina), he writes that the ‘true Artificer will not run away from nature, as hee were afraid of her; or depart from life, and the likenesse of Truth’.³⁸

In an entry on poetry and picture immediately preceding De pictura, Jonson says that they are both ‘borne Artificers, not made. Nature is more powerfull in them then study’,³⁹ which is to say that the human nature of making is inherent in human arts of making. The same point (as we noted in Chapter 3) was made by Shakespeare’s Polixenes in The Winter’s Tale when he observed that ‘over that art, / Which … adds to nature, is an art / That nature makes’, so that ‘The art itself is nature’ (4.4.90–92, 97). Shakespeare, like so many of his contemporary poets and playwrights, frequently expressed (even as he so excellently demonstrated) the possibility of presenting natural truths through performative arts. Hence Hamlet’s famous advice to the players who visited Elsinore: ‘suit the action to the word, the word to the action; with this special observance, that you o’erstep not the modesty of nature’ (Hamlet 3.2.17–19). For Hamlet, and we might cautiously surmise for Shakespeare himself, ‘the purpose of playing … is, to hold, as ’twere, the mirror up to nature’ (3.2.24). So ubiquitous was the conceit of natural-seeming (or nature-demonstrating) art that in Timon of Athens Shakespeare sends it up in an exchange between a couple of cynical opportunists, a painter and poet, who are seeking Timon’s patronage:

Painter: It is a pretty mocking of the life.

Here is a touch; is’t good?

Poet: I will say of it,

It tutors nature: artificial strife

Lives in these touches, livelier than life. (1.1.44–48)

Is Law Declared or Made?

The early modern belief that art reveals nature goes some way to explaining why common law judges in that period could sincerely claim that their function was to declare law rather than to make law. Francis Bacon expresses the so-called declaratory theory of law in the following terms at the start of his essay Of Judicature: ‘Judges ought to remember, that their Office is Jus dicere, and not Jus dare; To Interpret Law, and not to Make Law, or Give Law’.⁴⁰ To modern minds, early modern judges’ disavowal of law-making can seem disingenuous, but they genuinely believed that their creative arts served to reveal a natural truth; that truth being, in the judicial context, the truth of an extant natural or common law. Allan Beever observes that judges were perfectly happy to recreate the law and call it declaration because they understood their role to be one of altering human-made ‘positive law in order to fulfil that law’s purpose, viz to realize the natural law’.⁴¹ Opposing that early modern line of thought, Jeremy Bentham epitomizes the turn to modernity and the intellectual enlightenment’s impatience with the playfulness of early modern equivocation. Bentham was bitterly opposed to fictions and utterly rejected their capacity to reveal natural truth. He complained in forthright terms that when judges purport to declare law, they are making new law:

The rule in question, was it then ever declared before? – If not, then in truth and effect, though not in words, the Judge, by whom this rule is declared to be a rule of law, does, in so declaring it, and acting upon it, take upon himself to make a law.⁴²

Whereas the early moderns would happily admit that they were artificially declaring the truth of the natural law, Jeremy Bentham called it a fiction to claim that judges do not make law, and vehemently asserted that judges ought not to make law. Rules, he said, must have been made by somebody, ‘for laws do not make themselves, any more than snares or scourges’.⁴³ Bentham was correct to conceive of judicial arts as something akin to artisanal crafts, but his unimaginative rejection of the possibility that those crafts might express truth ushered in the erroneous belief that enlightened thinkers would henceforth have to choose the reality that judges make law over the lie that judges merely declare law. That stark choice would never have occurred to early modern thinkers because they regarded their skill in declaring law as an art performed in pursuit of truth. Bentham is partly responsible, therefore, for relegating the declaratory theory to the realm of religious mysticism and for laying the historical ground on which Lord Denning would later stand when he said: ‘Judges do every day make law, though it is almost heresy to say so.’⁴⁴

‘Law Made, If Not Also Made Known, Is No Law’

The problem with the stark statements, ‘judges make law’ and ‘judges do not make law’, is that they do not take us very far unless we say what we mean by ‘make’. Accordingly, the next challenge is to decide how to characterize juridical fact-making and law-making in terms of the three Etymologies of Making – Invention, Creation, and Production – that were elucidated in Chapter 2.

We can immediately dismiss Invention as the proper label for the judicial process of finding facts. Invention (from in venere, meaning ‘in-coming’ or ‘coming upon’) would suggest that facts are naturally occurring things that are found fully formed, so that all that is required is for the judge to recognize them. The contested nature of the trial process and the need for the judge to decide between opposing points of view shows clearly that the judge does not come upon facts in this way. Neither are facts invented in the modern sense that their existence can be attributed to any originating process of discovery or genius inspiration. The judge who says that the car was grey has not imagined that fact out of nothing. The car is grey because one witness says it is black and the other says it is white. ‘Grey’ is the judge’s best practical attempt to reconcile those conflicting accounts.

Judicial fact-making is more properly described in terms not of ‘Invention’ but of ‘Creation’ and ‘Production’. Juridical facts are Created things because they are made through processes of growth, development, or increase. In our example, the statement ‘the car was grey’ can be said to have grown in a Creative sense out of the witnesses’ conflicting black and white grounds of contention. The American scholar who wrote that ‘laws are made in the clash and struggle of litigation’ cannot have been thinking of laws ‘made’ by Invention but must have had in mind making through Creation,⁴⁵ whereby a new thing grows from the former thing. One can see a legal trial as a sort of drama in which protagonist and antagonist together generate something new from their opposing performances, hence Sir Edward Parry’s suggestion that trials supply ‘the raw material of drama’.⁴⁶ Or, taking the analogy of weaving, we can say that in the judicial loom of the Truth Factory the threads of witness testimonies and opposing counsels’ arguments are woven against each other – lengthwise warp against crosswise weft – and thereby turned by the judge into new facts and new legal material. Without constructive opposition there would be no constructive Creation. It is also accurate to describe the making of a juridical fact as making by Production, insofar as the fact is brought forth to the public in the moment that the judge utters it. In any properly constituted trial, even one conducted behind closed doors, there is always a critical audience of sorts. The audience’s critical scrutiny may lack power to influence the Production when a judge (or jury) brings forth a finding of fact, but it is still broadly accurate to say that the fact has been made through Production, for had it not been brought forth to critical scrutiny it would not exist as a fact at all. Expressed in terms of a jury’s finding of fact arising from the evidence of witnesses, we can say furthermore that the Production of a ‘witness fact’ becomes a factor in the Creation of a ‘jury fact’. As Robert P. Burns has observed:

The appearance and performance of a witness, whether or not a party, profoundly affects the significance of one or the other of the competing narratives in ways that have little to do with the specific ‘content’.⁴⁷

What is true of making fact is also true of making law. Only by exploring different Etymological senses of ‘making’ can we hope to understand the ways in which judges are and are not makers of law. In his book Law in the Making, C. K. Allen, warned that when asking the ‘question, how far the Judge can and does legitimately “make” law’, ‘[w]e must use this word “make” with caution’.⁴⁸ Few jurists have heeded Allen’s advice and sought to understand the different senses in which ‘make’ is employed. Allen adds that when the word ‘make’ is employed with more precision, ‘I think we shall find that, in one sense of it at least, Judges are not merely resorting to what Austin called “a childish fiction” when they disclaim the capacity to create new law’.⁴⁹ The crucial words are ‘in one sense’. Distinguishing different senses of the word ‘making’ can resolve the age-old controversy between the two opposing views of the function of judges in common law courts: on the one side, the traditional claim that judges do not make law but merely declare it; and on the other side, the claim that common law judges are law-makers. The Etymology-based distinctions between Invention, Creation, and Production advanced in this study bring in nuanced senses of making that open a new way to closing this old controversy. Indeed, the controversy between the idea of judges as ‘makers’ and ‘speakers’ of law practically disappears when we enlarge our language to express ‘making’ in different senses of the word, for by the light of the Etymologies, Bacon’s claim to be in the business of declaring the law rather than making it can be appreciated as the acceptance of one type of law-making (Production) and rejection of another (Invention). Declaration of law by delivering a judgment is law-making in the Productive sense because it makes the law public.

Judges are correct to disclaim any capacity to Invent new law in the sense of instigating new law to meet a political need, for judges are not elected legislators. A judge might expressly identify the need for a new law in the same way that law reform commissioners do, but they must leave the implementation of policy to the elected legislature. What judges cannot deny is that they make law by interpreting, supplementing, and developing law in the Creative sense of making it grow; neither can they deny that they make law in the Productive sense by the very act of publishing their judgment in a particular case. Production by publication is not the same as Invention by instigation, but neither is it a passive process of simply advertising law that would in any event exist. As Hobbes wrote, ‘[t]o rule by Words, requires that such Words be manifestly made known; for else they are no Lawes’.⁵⁰ Hobbes made that comment in relation to legislation, but the point applies as well to judge-made law. Indeed, a great deal of judge-made law comprises interpretation and implementation of legislation, from which it follows that a judicial decision on a statute can be said to operate by way of co-Production with Parliament. The judge participates in Parliament’s Production of the statute by fulfilling, and filling gaps in, the wording of statutory law. An American court expressed this point vividly in the 1917 case Pacific v Jensen: ‘Judges do and must legislate, but they can do so only interstitially. They are confined from Molar to molecular motions.’⁵¹ To use a different metaphor, we can say that Parliament is the playwright, but that it falls to judges to read between the lines and to interpret and perform the script in each case as actors do in each show. Later in this chapter we consider two other analogies to the judge’s craft: the judge as novelist and the judge as manual worker with material stuff. The latter, with its connotations of manipulation, will bring us in due course to lessons that can be carried from the legal craft of judging to popular cultures of passing judgment in society at large.

Mass Production

When performance scholar Richard Schechner argued that theatrical play should be kept separate from production, he was cautioning against the contamination of theatrical craft by commercial and commodifying tendencies. Legal scholar Milner S. Ball once expressed a similar reservation that at first glance troubles my decision to describe the legal trial as a ‘Truth Factory’. He complained that ‘[w]hen courts are converted from theaters to factories, from places of play to places of fabrication … poor people find themselves dispensed “assembly-line justice,” which can scarcely be called justice at all’.⁵² In defence of the metaphor of the Truth Factory, we can note that Professor Ball’s criticism is directed at the type of factory that employs mass production methods and production-line efficiencies. Such an operation inevitably loses sight of the artisans who work in it and loses sight of the arts and crafts by which they work, and furthermore loses sight of the people and materials – the basic social ‘stuff’ of legal matter – with which they work. Applying a theatrical analogy to the trial process, Professor Ball writes:

The production of plays unlike the production of goods cannot be streamlined … Productivity gains are precluded in live performance because what the performer does is an end in itself and not the means to production of some other good.⁵³

His point is that in the context of plays, as with the conduct of a trial, the process is the ‘product’. As he says later in the same article:

Pressure for greater output promotes development of tools like plea-bargaining which bypass trials and appear primarily productive in meeting quotas. Such pressure fails to understand that live performances are as much the end of courts as is the disposition of cases.⁵⁴

What a profound observation this is. Ball makes clear that he does not object to productivity if it is the sort of productivity that values the human actors and human matters implicated in the process. Mass production is bad; bespoke Production is good. The contrast he draws between theatrical play and factory fabrication does not diminish the present argument that law courts are involved in a respectable fabricating and Productive species of theatrical play, because the fabrication that takes place in courtrooms is decidedly of a made-to-measure variety and ideally is fully bespoke. What it ought not to be, and this is Ball’s point, is a one-size-fits-all conveyer-belt mode of fabrication. William West expressed well the ideal of bespoke judgment when he described the equity branch of the law (that which is especially concerned to fit justice to the particular case) as ‘a Shoomakers shop that is well furnished with all sorts and manner of lasts for men’s feet, where each man may be sure to find one last or other that shall fit him, be he great or small’.⁵⁵ If we doubt that this ideal can be attained given the demands that are made on the legal system and the limits of the judicial economy, it is comforting to think that even in the automobile industry – the very industry which first perfected production-line methods of mass manufacture – there are still examples of successful companies that eschew mass production and prefer to make their products in ways that value quality, craft, and tradition over efficiencies of scale. For example, the website of the Morgan Motor Company advertises that:

All Morgan cars are expertly crafted using three core elements: ash, aluminium and leather and are designed to work in harmony with the materials used to construct them … each Morgan car celebrates traditional manufacture while embracing modern design.

Add to this the fact that the specifications of Morgan cars are frequently tailored to the specific requests of individual purchasers, and one has a hopeful model of the quality and care that might be achieved in the Truth Factory of law. Unfortunately, the analogy is all too exact when it comes to delay and cost. The typical waiting time for a new Morgan car is between six and twelve months, and in England and Wales a civil claim above the small claims threshold will typically take more than a year to come to trial even by the streamlined multitrack and fast-track routes.⁵⁶ As for cost, a new Morgan car isn’t cheap and a legal trial can be ruinously expensive even for the ‘winning’ party, who is unlikely to recover their entire legal costs from the losing party. The quality of bespoke craft doesn’t come quick, and it doesn’t come cheap.

Poiēsis and Autopoiesis

Jeanne Gaakeer, an appellate judge and legal scholar, reminds us that poiēsis was the ancient Greek term for ‘handcraft … the creation and artistic bringing into appearance, a “making”’.⁵⁷ Poiēsis as craft lies at the heart of the judge’s art every bit as much as it lies at the heart of the poet’s craft. Yet there is a sense in which law is not only made by the deliberate craft of individual judges but also arises as an inherent feature of the legal system. After all, the individual judge is working within an established tradition. The law as an institution is to some extent self-generating. As Dickens’ narrator says in Bleak House: ‘The one great principle of the English law is to make business for itself’ (chapter 39).⁵⁸ Chilean biologists Humberto Maturana and Francisco Varela employed the term ‘autopoiesis’ (coined out of the Greek auto ‘self’; poiēsis ‘making’) to define the self-maintaining chemistry of living cells,⁵⁹ and the term was taken up as a description of self-perpetuating social systems by sociologist Niklas Luhmann.⁶⁰ Günther Teubner joined Luhmann in taking the theory into the terrain of law as a social system.⁶¹ The sociological theory of autopoiesis downplays jurists’ capacity to rise above the constraints of their context. It is as likely to say that the law makes the judge as that the judge makes the law. As such, the theory may be quite accurate as a description of judicial law-making in codified systems of civil law such as those of Germany, Italy, and France, but perhaps less so as an account of the largely unpredictable creative initiatives undertaken by common law judges from case to case. To appreciate the nature of judicial law-making in common law systems, the natural (that is socially natural) autopoiesis of the judicial function supplies a useful starting point, but we will progress even further when we stress the agency of the individual judge by resort to the analogy of the judge as artisan or author. By the same token, attending to sociological context will only take us so far in our appreciation of the craft of such preeminent artists as William Shakespeare and Ben Jonson. Historical context and cultural milieu were immensely important to their achievement, but at some point we have to credit each individual’s arts with the deliberation of craft. So far as common law jurists are concerned, various arts and crafts – among them novel writing, metal work, and weaving – have supplied informative analogies to help in the task of appreciating the ways in which judges practice the poiēsis of making judgments.

Judicial Craft: Handling the Truth

At the start of his first and foundational text, The Legal Imagination, James Boyd White states that ‘the lawyer must know rules, and the other materials of the law, as the sculptor must know clay and the painter paint and canvas’.⁶² In Acts of Hope: Creating Authority in Literature, Law, and Politics, he expands on the idea of respecting law’s materials through the analogy of art and artisan craft:

It is after all the nature of cultural processes, including law, to transform the material with which they work. A block becomes a statue, a palette of colors a painting, and, in the law, the trial of a bootlegger the occasion for a great constitutional case.⁶³

This idea of judge as artisan echoes Judge Learned Hand’s opinion that ‘the work of a judge is an art … It is what a poet does, it is what a sculptor does.’⁶⁴ Brett G. Scharffs has written specifically of the judge as artisan. In his article ‘Law as Craft’, he writes that:

The creative tension experienced by the craftsperson, from the possibilities and constraints inherited from her forebearers, the opportunities and contingencies imposed by the present, and the prospects and perils of the future – this is the very tension that is experienced by a judge.⁶⁵

Scharffs’ analysis, based on the Aristotelian idea of practical wisdom (phronesis), draws an analogy between law and craft based on points of similarity between them. He summarizes the analogy in his abstract as follows:

First, crafts are made by hand – one at a time – and require not only talent and skill, but also experience and what Karl Llewellyn called ‘situation sense.’ Second, crafts are medium specific and are always identified with a material and the technologies invented to manipulate that material. Third, crafts are characterized by the use and usefulness of craft objects. Fourth, crafts are defined by their past.

The philosopher Hans-Georg Gadamer would agree with much of this. He acknowledges that ‘[a] person who knows how to make something … takes the right material and chooses the right means to do the work. Thus he must know how to apply what has been learned in a general way to the concrete situation.’⁶⁶ He nevertheless identifies one important respect in which ‘[t]he situation of the craftsman is quite different’ to that of a judge.⁶⁷ He argues that whereas artisan and judge must both adapt their plans and their materials to the contingencies of context and circumstance, in the judge’s case ‘it is not because he has no alternative, but because to do otherwise would not be right’.⁶⁸ That word ‘right’ is key to understanding the difference between artisan and judge as Gadamer explains it. His point being that whereas the artisan exhibits technical skill (technê) in discharge of a good job, the finding that the job is a good one says nothing of its moral quality. To put it another way, the judge in the discharge of their office is bound to consider contextual factors that include political, social, and moral factors, whereas the artisan can discharge the office of artisan without regard to such contextual factors – their task being limited only by such spatial, temporal, and material contingencies as make their task practical or impractical to perform. We can illustrate the point by saying that the artisan who expertly manufactures a precision firearm has done a (technically) ‘good’ job but might not be doing the (morally, politically, socially) ‘right’ job. Gadamer attributes to Aristotle this difference between practical know-how with a moral dimension (phronesis) and mere technical aptitude (technê), observing ‘that man is not at his own disposal in the same way that the craftsman’s material is at his disposal. Clearly, he cannot make himself in the same way that he can make something else.’⁶⁹ This is not to say that a good artisan should not aim to be a morally right human being, but only that the nature of ‘being artisan’ does not compel such an ambition in the way that ‘being judge’ does. The factor of moral virtue aside, Gadamer would accept, as Aristotle would accept, that the practical method of the judge is closely akin to that of the artisan. Gadamer emphasizes the comparison with reference to Aristotle’s idea of the correction of strict law (and strict insistence on law) by the virtue of epieikeia – a word we generally translate ‘equity’, but which might also be translated ‘forbearance’ or ‘the quality of yielding’.⁷⁰ Aristotle’s preferred metaphor to describe the craft of epieikeia (equitable judgment) was the metaphor of a measuring rule made of lead that he borrowed directly from the craft of constructing buildings;⁷¹ the idea being that a rigid rule of metal or law is ill-suited to fit to life’s curved contours, whereas a rule of lead has all the qualities that one wants from metal but with the advantage of flexible adaptation to the contours of life’s contingencies and (important for the judge) potential to adapt to the contours of the social and cultural context in which law is applied.

What is true both of judge and of artisan is that they don’t really know what they want in a practical sense until concrete contingencies present themselves. As Richard Sennett argued persuasively in his book The Craftsman, the process of making cannot be separated from the process of thinking.⁷² Artisans think practically rather than theoretically and will therefore anticipate and expect contingencies to be inevitable from the outset. The whole craft of an artisan may be summed up as the craft of adaptation to circumstances, including the circumstance of the physical type and tolerance of the materials to hand. It is the same in the practical craft of theatre, for, as Dorothy L. Sayers writes, any playwright who resents ‘the intrusion of earthly and commonplace actors’ upon their ‘spiritual fancies’ has ‘no business on the working side of the pass-door’.⁷³

With the caveat that a judge must attend to wider moral, social, cultural, and political contextual considerations, the same practical craft of adaptation is also observable in the law. The materials may be less tangible, but the craft is still the artisan’s craft of flexible adaptation or translation. Professor White writes in Living Speech: Resisting the Empire of Force that ‘[t]he lawyer or judge is perpetually refashioning the material of the law’.⁷⁴ Roscoe Pound also likens a judge to a craftsperson when he writes that:

The instinct of the experienced workman operates with assurance. Innumerable details and minute discriminations have entered into it, and it has been gained by long experience which has made the proper inclusions and exclusions by trial and error until the effective line of action has become a habit.⁷⁵

Bernard J. Hibberts makes the pithy observation that ‘law is made in performance’, adding that without performances ‘writings have no legal value’, and a ‘rule which is not performed is arguably no law. Performance, conversely, can effectively make law even where there is no written rule’.⁷⁶ The reason he is right to say this about law is because law is a rhetorical craft of performance that works through action. The perfection of the art or craft of rhetoric is to perform language in such a way that the audience grasps the argument, feels the passion almost tangibly, and ultimately has the sense that they are engaged in the co-Productive work of moulding the matter in hand. The central argument of Richard Sennett’s book The Craftsman is that making and thinking are inseparable when a person is engaged in craftwork. The ideal end of rhetoric is to engender in the mind of the audience an experience of making-as-thinking and thinking-as-making, even when their hands are not physically engaged in crafting anything. The early modern rhetorician Thomas Wilson hits upon this essential point when, at the start of his book The Arte of Rhetorique, he says that rhetoric is ‘an Arte to set foorth by vtteraunce of words, matter at large, or (as Cicero doth say) it is a learned, or rather an artificiall declaration of the mynd, in the handling of any cause, called in contention, that may through reason largely be discussed’.⁷⁷ Taken together, the phrases ‘utterance of words’, ‘matter at large’, ‘artificial declaration’, and ‘handling of any cause’ confirm rhetoric as an art of manual fabrication. To utter is to bring the matter forth to an audience; it is Production. In classical rhetoric, authoritative utterance was commonly referred to as pronunciatio (a word still echoed in the language by which we talk of a judge ‘pronouncing’ a sentence against the convict in a criminal trial).⁷⁸

An artisan may be compelled to depart from an ideal plan or code, but this is not a departure from ideal craft, for ideal craft is adaptation. Again, the three Etymologies of Making elucidate the point, for even if the artisan’s craft starts with an ideal Invention, it will inevitably adapt the original as it is developed through Creation and realized through Production. The artisan’s craft of making is not a conceptual and idealistic pursuit but a procedural process that begins with Invention of the idea and passes through stages of development (Creation) and public engagement (Production) before the making can be called complete. The making process therefore entails compromise between the craftsperson and such contingencies as starting materials, spatial and temporal context, and the nature of the artisan’s community. This compromise entails participation between persons of the sort that we see in collaboration between writer and reader, and actor and audience, and also extends to participation between the initiator and the inanimate elements of material stuff, space, and time with which, and within which, they work.

Material Differences

Different materials do not have identical characteristics and are not all equally suitable to any given process of making. When Scharffs said that ‘crafts are medium specific’,⁷⁹ he was reiterating the wisdom of the old saying, ‘one cannot make a silk purse out of a sow’s ear’. Rhetorical performers, including lawyers, politicians, and the press, are artisans of sorts and must therefore be attentive to differences between the materials they handle. It is a basic mistake to suppose that audiences can all be worked the same way, or to suppose that such matters as time and place do not call for fundamental variations in the mode of making called for. Rhetorical practitioners would do well to attend to Dr Stockbauer’s learning on the connection between the crafting of a speech and the crafting of physical materials:

Every language has its own laws, according to which it frames its sentences, and cannot without falling into disorder, adhere to those of another. So also every material has its own peculiar laws for its development, which must be respected and observed, else disorder will accrue. Forms peculiar to wood should not be reproduced in cast iron; stone should not be treated in the same way as wood or metal; iron garden chairs and benches should not have the same shape as those of cane and wood; wood-work should not have the appearance of leather.⁸⁰

White talks about ‘respect’ for the materials of law; Stockbauer talks of ‘respect’ for the laws of material. Stockbauer’s formal strictness (‘iron garden chairs and benches should not have the same shape as those of cane and wood’) might be pressing the point too far. The arts and crafts of illusion, such as those by which stage sets and props are made, often require that wood be made to look like metal and metal to look like wood. Stockbauer’s analogy between crafting linguistic sentences and crafting physical materials is, though, an important one. For one thing, it accords with Professor White’s connection between linguistic translation and material crafting. For another, it accords with an idea put forward by the novelist Dorothy L. Sayers. She contrasts the ‘human maker’ who ‘tortures his material’ so that ‘the stone looks unhappy when he has wrought it into a pattern alien to its own nature’ and whose ‘writing is an abuse of language’, to the maker who ‘respects and interprets the integrity of his material’ and who ‘works with plants, with animals or with men’ so that ‘the co-operative will of the material takes part in the work’.⁸¹ Sayers prefers the latter type of maker, but acknowledges that the ideal is ultimately unattainable, because the human artist is ‘part of his own material’.⁸² Sayers’ idea that the material might have a cooperative will and that it ‘takes part in the work’ agrees with my argument that co-Productive participation occurs not only when humans participate in each other’s acts of making, but also when a human maker works with, rather than against, the nature and grain of their materials. A wooden box crafted and painted to look like a leather case is unlikely to perform as well as a genuine leather case, and when a judge handles the materials of human lives and cares, the distinctiveness of the case and the human lives affected by it must be respected. Neither will it suffice to handle such personal matters as if they were impersonal abstractions, or to say that a decision is well made if it is functionally effective but performed without humane respect for the sensitive nature of the material at hand.

Judge as Writer and Reader

[T]he law is not an instrument to find out truth. It is there to create a fiction that will help us.

Hilary Mantel, The Mirror and the Light⁸³

Which craft is most akin to that of a judge? There are several plausible candidates, but we will start with Ronald Dworkin’s suggestion that judges are working together as a sequence of writers might when creating a chain novel, each handing the work on to the next to be developed in accordance with the guiding spirit and principles of the work.⁸⁴ Dorothy L. Sayers has described the book-writing process in terms that would fit well with this sense that judges accommodate new cases into an imagined integrated system of law:

[E]very choice of an episode, or a phrase, or a word is made to conform to a pattern of the entire book, which is revealed by that choice as already existing. This truth, which is difficult to convey in explanation, is quite clear and obvious in experience. It manifests itself plainly enough when the writer says or thinks: ‘That is, or is not, the right phrase’ – meaning that it is a phrase which does or does not correspond to the reality of the Idea.⁸⁵

Dworkin’s chain novel analogy is a good one, but it might be even more helpful to think of judges as authors of a non-fiction book (like this one) who, by stitching together selected sources with the threads of their own ideas, can be said to synthesize existing materials into something new.

The word ‘author’ to describe our chain-writing judge needs explanation. Authorship implies Production. If I write a book in secret that never leaves my study and perhaps never leaves my laptop, I might call myself the writer of that book, but I cannot call myself its ‘author’. What makes a writer an author is not the Invention of having an idea (everyone, it is said, has the idea of a novel in them), nor even the Creation of the idea by working it up into a full-length text. An author only deserves that name when their writing is made public by Production (always assuming that the nature of the Production is sufficient to expose the work to the participation of creative and critical readers). Production by making public makes the writer an author, and if the book is well received, the public’s co-Production can constitute the artefact as not merely authored but also authoritative. So it is with judges (except in their case, respect does not depend upon popularity). Judges are not law-makers in Inventive mode. Judges Create and Produce law, and it is the latter aspect, entailing publication, that elevates a judgment to the status of authority.

Judges are, of course, subject to sovereign political will expressed through a duly elected parliament, so it might be argued that in a matter covered by statute the judge is not so much a maker of the law as an interpreter of the law – a reader rather than a writer of the law. This, though, is to fail to attend to the different etymological senses of ‘making’. If Parliament is regarded as the originator of law in Inventive mode, it nevertheless falls to judges to develop the law through the Creative activity of interpretation and to publish the law through the Productive activity of delivering their judgments. A judge can therefore be said to join with Parliament as co-maker of the law. In describing this cooperative activity, the use of the categories ‘writer’ and ‘reader’ as if they were mutually exclusive is too simplistic. The better approach, as elaborated in Chapter 10, is to bring in Emerson’s category of the ‘creative reader’ and to regard the judge as a reader who helps make the thing through critical engagement. Dicey acknowledged that the judicial application of statutes is not mere passive interpretation of a finally created thing but rather a mode of interpretation that helps make the thing:

Judge-made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law

… judges who interpret statutes and whose interpretation become precedents in reality legislate. To say that all interpretation is legislation is, no doubt, to maintain a paradox. But this paradox comes nearer the truth than the contention that judicial law-making is always in reality interpretation.⁸⁶

Dicey perceives a paradox because he assumes that making must mean Invention, which would seem to require judges to usurp the role of Parliament. The paradox evaporates when we regard the judge as law-maker to be acting not as Inventor of the law but as the co-Creator and co-Producer of law Invented (and to some extent Created and Produced) by Parliament.

At least Dicey was prepared to accept that judicial interpretation is some kind of law-making. Professor Allen preferred to reserve the label ‘law-making’ for cases not clearly covered by existing statutes or judicial decisions. He argues in Law in the Making that ‘in that overwhelming majority of cases where precedent is cited and relied upon, [the “whole effort” of the Judge] is to find the law, not to manufacture it’.⁸⁷ Allen refers approvingly to Lord Esher M.R., who once opined that:

There is in fact no such thing as judge-made law, for the Judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.⁸⁸

This is another instance where objections to the idea of judicial law-making disappear if we broaden our understanding of what ‘making’ means. Attending to the Etymologies of Making reveals that ‘to apply existing law to circumstances’ always implies making in Creative mode, for it entails the process of developing or growing law to cover the circumstances of a novel case. The error of supposing a necessary distinction between the application of law and making law is compounded by Professor Allen’s and Lord Esher’s assumption that law can be applied to circumstances as if ‘the law’ and ‘the circumstances’ were prefabricated, off-the-shelf entities. They are not. Judicial decisions are essential to identifying relevant factual circumstances, to identifying the proper law applicable to the facts, and to knowing how best to apply law to facts. In every aspect of the craft of selecting materials (fact and law) and of joining materials (applying law to fact), judges are expert artisans making choices while making a new thing. The best-fitting among the law’s off-the-shelf clothes can only be identified by skilful cutting out of the alternatives, and that cutting entails a craft of tailoring every bit as technically demanding as the craft of cutting whole cloth to make clothes from scratch.

Manipulating the Matter

If anybody deserves the accolade ‘England’s most creative judge of the last one hundred years’, it is probably Lord Denning. The son of a draper, he knew something about weaving, synthetics, and handling the materials of law. He wrote in his biography, The Family Story, that ‘judges should so handle precedent … as to do justice – in a way fitted to the needs of the times in which we live’.⁸⁹ To talk of fitting materials is to talk of tailoring. Lord Denning’s word ‘handle’ recurs in the thought of the most creative judges. In the USA, Lord Denning had a kindred spirit in Judge Benjamin Cardozo, who wrote in The Growth of Law that ‘[t]he handling of examples, of concrete instances, will develop the skill proper to the art’.⁹⁰ In one of Hollywood’s most memorable movie trial scenes, the military lawyer played by Tom Cruise in A Few Good Men (dir. Rob Reiner, 1992) demands to hear the ‘truth’, only to receive from the defendant (played by Jack Nicholson) the famous reply: ‘you can’t handle the truth!’ In the Truth Factory of the legal trial, ‘truth’, it turns out, is a thing that cannot be passively received but must be actively handled.

Professor Allen acknowledges that ‘[i]f we examine the great legal tendencies of the nineteenth century … we shall find the hand of the Judge … active in moulding the doctrines of the law’.⁹¹ Exactly so. As Cardozo said, ‘the law as already developed by the wisdom of the past … is the raw material which we are to mould’.⁹² Cardozo’s express reference to development is important because it emphasizes that judicial law-making is not Inventive but Creative. He confirms this later in the same study where he writes of ‘the force of the analogy between the creative process … and the process at work in the development of law’.⁹³ M. R. Cohen also points to judicial law-making in common law systems as a creative process of employing existing legal materials:

In thus showing that judges do and must make law, I do not, of course, wish to maintain that they are in no wise bound and can make any law they please. Every one who is engaged in making or creating something is limited by the rules of the process and the nature of the material.⁹⁴

If found law needs to be moulded to fit new circumstances, the end product is inevitably, to a greater or lesser degree, different to the law as it was found. The degree of fettling and variation may be minor in any given case, but where the process is repeated over time something new will be manufactured incrementally. Cardozo again (this time quoting Cohen): ‘the changing combinations of events will beat upon the walls of ancient categories. “Life has relations not capable of division into inflexible compartments. The moulds expand and shrink”.’⁹⁵

The Court of Popular Opinion: Another Truth Factory

The final chapter of this book is concerned with so-called cancel culture and the passing of judgments in the ‘court of popular opinion’, especially as it occurs in the context of social media. In advance of that treatment, it is worth pausing here to summarize some qualities of judicial law-making that go to its credit and that are usually absent or of lesser quality in a so-called trial by Twitter. The first is that professional judges may be likened to expert artisans who handle their materials with respect for the inherent tolerances of those materials. The second is that the judicial role can be regarded as a modest and restrained one because it does not extend to the legislative Invention of law but is limited to the Creation and Production of laws initiated by Parliament. The third is that professional judges do not Produce judgments off-the-shelf in a clichéd manner but craft their judgments to meet the particular situation of the instant case and with respect to the cloth as previous judges have woven and cut it. Fourth, an official trial process comes at considerable cost in terms of time and money – the judicial economy is limited, its resources are valuable, and the Production of legal judgments is never easy, quick, or cheap. Fifth, judges do not ‘find’ facts but rather fabricate them expertly by weaving a mesh from crossing threads of the parties’ evidence.

It might seem that I am bringing the judicial function into disrepute when I argue that judges are essentially making it up as they go along. I would contend, however, that to acknowledge judicial activity as law-crafting has the potential to enhance rather than detract from public respect for the work that judges do. It is only when we openly acknowledge that judges make law that we can appreciate deeply the excellence with which they make it and appreciate the contingencies of the materials with which, and context and in which, they make it. Respect for the excellence of judicial craft is necessary for at least two reasons bearing on the so-called court of popular opinion. The first is to temper populist criticism of judicial activity. The second is to provide a model for making judgments in social media and other public contexts. The second aspect is the subject of Chapter 12. As to the first, I have in mind a particular instance of popular outrage concerning the activity of senior judges in the jurisdiction of England and Wales.

When the High Court of England and Wales held that the UK’s 2016 referendum vote to leave the European Union (the Brexit vote) could not be enacted without parliamentary approval,⁹⁶ the three judges who sat in the case were accused by Brexiteers of usurping the sovereign will of the people. The Daily Telegraph reported the decision as ‘The Judges versus the People’ (3 November 2016) and the Daily Mail labelled the three judges ‘Enemies of the People’ (4 November 2016). We don’t know how the three embattled High Court judges voted in the 2016 referendum, but the Daily Mail drew its own conclusions from the fact that the senior judge of the three was a founding member of the European Law Institute and of the European Network of Councils for the Judiciary. The author of the Daily Mail’s ‘Enemies of the People’ article was the paper’s political editor, James Slack. Given the inflammatory nature of his article’s assault on judicial integrity, it might come as a surprise to learn that a few months after its publication, Slack was appointed to act as the official spokesman to the prime minister before going on to serve as Downing Street’s director of communications. Or perhaps it doesn’t surprise us at all. Parliament, press, politics, and the popular will are connected places in the world of rhetorical performance. It is a world of make-believe, and our responsibility as members of the public, since we cannot unmake that world, or remove the makers from it, is to make our choice of whom among the makers we will believe. In making that choice we should be guided by concern for how laws, headlines, and policies are made. We should attend to the Invention that originated the thing, the Creation that developed it, and perhaps more than anything we should attend to the manner of its Production before the public eye – for, in the words of the Sermon on the Mount, ‘every good tree bringeth forth good fruit; but a corrupt tree bringeth forth evil fruit’ (Matthew 7:17).

The appropriate reaction to accusations of judicial bias is not to pretend that judges are scientifically bound to reach the decisions they do, but to admit that judges make facts, make decisions, and make laws, and that they do so with technical skill exercised according to a set of ethical constraints. Their skill and care are of the same order as those we expect of a surgeon or any technically adept expert who holds the lives and livelihoods of others in their hands. To talk of ‘skill and care’ is to bring in more than mere technical skill. We should recall Gadamer’s distinction between technê and phronesis, as outlined earlier in this chapter, and acknowledge that the judge is bound to practice their craft with sensitivity to their political and cultural context. This adds the quality of being ethically good to the quality of being technically good. A surgeon with a good bedside manner and genuine concern for the holistic well-being of their patients also exercises phronesis in this sense, perhaps even in those moments when their practical wisdom leads them to decline to practise their surgical skill at all; as when they say, ‘I do not think it will be in your best interests for me to operate’. The decision of the High Court in the 2016 Brexit case was upheld on appeal by a majority of the Supreme Court, and their lordships on that occasion, perhaps to address popular criticism of suspected judicial activism, took the practically wise step of acknowledging that judges do perform the Creative role of developing law, albeit within the limits of their authority. To acknowledge the popular context and to acknowledge judicial Creativity was to practise with the practical wisdom that Aristotle termed phronesis. It is notable, however, that their lordships were still reluctant to acknowledge in express terms that when judges operate Creatively by applying or developing law this is indeed a mode of ‘making’ law. Their lordships restricted the language of ‘making’ law to parliamentary activity:

The law is made in or under statutes, but there are areas where the law has long been laid down and developed by judges themselves: that is the common law. However, it is not open to judges to apply or develop the common law in a way which is inconsistent with the law as laid down in or under statutes, ie by Acts of Parliament.⁹⁷

The myth that judges are mere interpreters seems still to have a hold on judicial thought. Without expressly admitting the point, their lordships’ references to the development and application of law confirm clearly that judges make law in Creative mode, even as making law by Invention is left to Parliament. Parliament, in turn, is made by the people through the ballot box. Attempts to short-cut the electoral process through popular protest and news media have their place – social media and mainstream media are Truth Factories of sorts – but it is an error to suppose that all Truth Factories have equal status or that the truths they produce are all equally deserving of respect.

5 Making Sex Change Legal Engendering of Trans People

[We] by our dearth of youths are forced t’employ

One of our women to present a boy.

And that’s a transformation, you will say,

Exceeding all the magic in the play

John Dryden¹

The activity of professional agencies, especially those within the legal system, as they participate in the co-Creation and co-Production of a trans individual’s new legal persona is the main focus of this chapter. This legal process of engendering is, to use Freddie Mercury’s term (and to echo the quotation from Dryden), ‘a kind of magic’. Medicine drove out magic long ago, but the law still depends upon a kind of magic to produce legal personhood out of the law’s invisible materials.² Yet for all the talk of change and transition associated with transgender identity, the more common account given by transgender people themselves is one of coming to live as the person they have always been. This process of ‘coming to live as’ is in part transformative, but it is also in part confirmatory. This is the case for every human as they come to inhabit, express, and perform their social persona, but as a matter of degree is often more apparent and radical in the case of trans people. The confirmatory character of the trans person’s process of transition can be regarded as being in two key senses a process of making a new social persona. The first sense is making in terms of personal development or growth. According to the definitions set out in earlier chapters, this is making in the sense of Creation. The second sense is making in terms of presenting or performing the new persona in society before the scrutiny of a public audience. This is making in the sense of Production. What ‘coming to live as’ does not encompass is the original instigation of transgender identity, which is making in the sense of Invention. Consideration of the originating factors that cause a person to identify as transgender in the first place – in other words, asking as a matter of genesis ‘what makes someone transgender?’ (as also the question, ‘what makes a cisgender person identify with their chromosomal or birth-assigned sex?’) – lies beyond the ambit of this chapter.

There are at least two reasons why I begin this chapter by stating that the public artefact of transgender personhood is a made thing. The first is to restate through this example my ongoing resistance to the negative associations that frequently encumber language of being ‘made up’, ‘fabricated’, and ‘performed’. Previous chapters have endeavoured to state the neutral status, and even to explore the positive potential, of such words as ‘fiction’ and ‘invention’, which in many contexts are celebrated as the pinnacle of human artistic and scientific achievement, but in other contexts have been skewed to imply dishonesty and deceit. Considered as a crafted social artefact, transgender personhood might be approached positively as a work of art rather than negatively as a work of artifice. To borrow from Alex Sharpe’s celebration of David Bowie’s truthful inauthenticity: ‘an explicit strategy of fabrication’ enables us to appreciate ‘the seams of fabricated things’.³ Transgender biographies can be extremely powerful when they draw us into the Creative and Productive making process of ‘coming to live as’. An example is the BBC documentary Lily: A Transgender Story, in which Lily narrates the processes – personal, social, medical – of becoming who she is.⁴ The Production aspect of a transition to transgender personhood necessarily entails, as all Production entails, the presentation to a critical public of the artefact that is being made. Whether the audience approves of it or not is irrelevant to the status and validity of the artefact as a made thing. That said, the more favourable the public reception the more likely it is that the product will contribute to making social peace. In that sense, the Production of transgender personhood through self-identification will be more secure the more that others assent to that identification. Identification is, after all, a verb ordinarily used to describe the ways we recognize persons other than ourselves. This consideration brings in the second reason for stressing the made nature of transgender personhood, which is to emphasize that the law effects formalized ways of expressing public recognition (i.e. of identifying) transgender personhood, and this amounts to saying that the law performs as co-Creator and co-Producer of transgender personhood whenever it recognizes transgender identity.

‘Is’ Not ‘Ought’

It is wise to approach the politically and personally fraught issue of transgender politics with a degree of caution. The issue is so polarizing – perhaps especially in the setting of university campuses – that it is necessary to preface this chapter with a disclaimer. The disclaimer is this: I am not seeking to enter the fray on the question of how the law should recognize the rights of the trans person but will endeavour instead to limit my arguments to analysing what it is the law does when it recognizes the rights of the trans person. In other words, this chapter is concerned with the ‘is’ rather than the ‘ought’. This is not to downplay the importance of the ‘ought’ question, but only to say that it is not my focus here. The distinction between ‘is’ and ‘ought’ must to be stressed because it is a nuance easily missed in the quarrel of hotly contested questions of culture and identity. I experienced this first-hand when, having written a book arguing that ‘dress is law, and law is dress’ (a quotation from the book),⁵ an officer of the UK’s Naturist Action Group (NAG) mistakenly assumed that I was arguing that ‘dress ought to be law, and law ought to be dress’ and sent me an angry missive of complaint.

With that caveat in place, let me begin by suggesting that the law’s activity of recognizing transgender persons is not passive; it is an active process of making in co-Creative and co-Productive mode, hence my use of the term ‘engendering’ to describe it. I also use the term ‘engendering’ as an attempt to elide the semantic but complex question of whether we should be talking about transgender transition as ‘change of gender’ or ‘change of sex’. The default view of the English common law according to the precedent of the 1970 decision of the High Court in Corbett v Corbett is still that a person’s sex is immutable from that ascribed at birth.⁶ A superior court could change that general view, but in 2021 the Employment Appeal Tribunal in the Forstater case (discussed later in this chapter) held that such a reform is properly a matter for Parliament. What Parliament has already done through the Gender Recognition Act s.9(1) is to say that, subject to specified exceptions:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). (Emphasis added)

The Employment Appeal Tribunal in Forstater infers from recent decisions of the House of Lords and the Court of Appeal that ‘for all purposes’ in subsection 9(1) means ‘for all legal purposes’ (para. [97]). On this view, the statute makes a person’s sex change for all purposes of legal recognition, subject to expressed exceptions, including, for example, a right of conscience for Church of England clergy to refuse to marry a trans person possessing a Gender Recognition Certificate. The law isn’t concerned with whether the transgender individual desires an official, legal certification of ‘rebirth’. Many transgender people might prefer social recognition without legal intervention (the current regime of certificated gender recognition in UK law has so far proven unattractive, not least because of the expense and inconvenience of the application and the medicalization of the process) – but the law insists that official certification is necessary if full legal recognition and its attendant legal rights and protections are to follow.

Legal Engendering

According to the OED, the archaic or literary verb ‘to engender’ means ‘[t]o bring (a child) into existence by the process of reproduction; to produce (offspring), to have (children)’. By this definition, and leaving to one side the minority of age that we normally associate with ‘child’, the activity by which law recognizes transgender personhood can be regarded as a process of engendering in so far as it entails a sort of legal rebirth. In claiming to offer an account of what the law is doing when it recognizes a new legal person, I am claiming to be revealing an active process of making which the law generally downplays. The law’s habitual disavowal of active intervention is, I suggest, part of the law’s scientific pretension to be in the business of presenting its findings as naturally occurring social truths. The law typically refuses to acknowledge that it is performing imaginatively and creatively when it establishes facts and creates a person’s legal status. Hence Edward Mussawir and Connal Parsley’s observation that the law ‘tends to naturalize the person’⁷ in a way that marginalizes ‘consciousness of jurisprudence as a craft, art or technique’.⁸ For support on this point, they quote Alain Pottage when he argues:

[T]he peculiar technical and institutional artefact that is the legal person is clothed with attributes that are manufactured by other forms of knowledge and which obscure precisely those characteristics which define law as a specific kind of narrative technique.⁹

In other words, the law tends to be coy about its crafted coverings, preferring instead to pretend to be in the business of scientific dis-covery. Such reticence regarding the law’s active fabricating processes is unnecessary. The status of the law would not be diminished if it were to acknowledge that its processes entail the careful crafting of legal artefacts and do not entail processes of scientific or empirical disclosure of natural truths. As Douglas Lind writes: ‘claims of legal truth are inextricably craft-bound to the practices of lawmaking, especially judicial decision-making, and … conflicts between legal meaning and extralegal meaning do not render true legal propositions false’.¹⁰ Curiously, then, while for most of us ‘making’ is a fulfilling and defining attribute of human expression and well-being, the law is often secretive about its ‘making’ to the point of denying that it does any such thing. Mussawir and Parsley identify gender as a field in which the law has trespassed into the territory of truth when it ought to have limited itself to the terrain of jurisprudential craft. They complain of the recent trend in the law of persons, by which ‘[g]ender is treated as though it cannot be the effect of a legal classification but only a “truth” or “nature” received independently of any legal function and taken as inseparable from one’s natural person’.¹¹ To illustrate the excesses of this trend, they rely especially on Alex Sharpe’s reading of the English criminal law case R v McNally.¹² Justine McNally, a person designated female at birth, presented as a man and engaged in sexual activity with a teenage cisgender girl and was charged with sexual assault on the ground that McNally’s failure to disclose their gender history amounted to deception. McNally was given a custodial sentence because the other party ‘chose to have sexual encounters with a boy and her preference (her freedom to choose whether to have a sexual encounter with a girl) was removed by the appellant’s deception’.¹³ Mussawir and Parsley point out that the court therefore treated the case as comparable to one in which someone ‘deceitfully sidles into bed with the woman who he knows was expecting her partner’,¹⁴ which begs the question whether a different gender is really enough to produce a totally different person for the purposes of sexual consent. Alex Sharpe questions the safety and fairness of labelling as ‘deceptive’ a self-representation that is faithful to and consistent with a particular gender.¹⁵ Her point can be applied not only to transgender people but also by extension to cisgender people. After all, it is common enough for people to pass the judgment on cisgender men that they are acting ‘laddish’ or upon cisgender women that they are acting ‘girly’ without bringing the honesty, truth, or integrity of their performance into question. The crucial point as a matter of consent is that the sexual partners of such people accept their present performance whether or not it differs from the performer’s sexual or gender history

An Advantageous Art

The law’s process of engendering legal persons has traditionally been exemplified in relation to corporate persons such as governmental, charitable, and commercial entities; the last of these commonly known as ‘companies’. Sir William Blackstone made clear the Creative – we might say the procreative – nature of the law’s person-making activity in that context:

[I]t has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

THESE artificial persons are called bodies politic, bodies corporate, (corpora corporata) or corporations.¹⁶

To make a legal person in this way is, as Blackstone says, ‘artificial’, which is to say that the law operates by means of technical arts and that the law’s mode of Production is not natural in the way that human sexual reproduction is natural. Crucially, though, there is no suggestion in Blackstone’s formulation that legal person-making is in any way tainted on account of its being artificial as opposed to being biologically natural. On the contrary, Blackstone explains that the law’s process of making a person is ‘necessary’ and ‘for the advantage of the public’. The same may be said of instances where the law confers legal personhood, or significant aspects of legal personhood, through such processes as adoption, the conferral of state citizenship, and the recognition of transgender personhood.

Another, and very different, instance of the law ‘giving birth’ to a new legal person complete with new gender identity is the launching of a ship. ‘A ship’, as Oliver Wendell Holmes observed, ‘is the most living of inanimate things … every one gives a gender to vessels’.¹⁷ This surprising example has been examined with sophistication by Douglas Lind.¹⁸ The following account is taken from the 1902 decision of the United States Supreme Court in Tucker v Alexandroff:¹⁹

[T]he Variag was still upon the stocks. Whatever be the proper construction of the word under the treaty, she was not then a ship in the ordinary sense of the term, but shortly thereafter … she was launched, and thereby became a ship in its legal sense. A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron – an ordinary piece of personal property – as distinctly a land structure as a house … In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name.²⁰

For our purposes, the most important words in this quotation are ‘became a ship in its legal sense’. Now, there are obviously stark differences between a human individual and a ship, but legal recognition of the trans person has the capacity to make a woman or a man ‘in its legal sense’ just as surely as the law has the capacity to make a new legal person in the shape of a corporation or a new female person in the form of a ship. The Case of Sutton’s Hospital indicates that a corporation can exist in law in abstracto from the moment of conception, whereas Tucker v Alexandroff indicates that a ship does not exist as such until it is born through launch, which is a sort of performed parturition. Is it truly the case that the ship known as the Variag was not a ship before launch, when it was ‘still upon the stocks’? It was then in all apparent respects ship-shape, and after launch it might one day return to the stocks to be repaired in dry dock, whereupon it does not then cease to be a ship. Pre-launch, we may legitimately debate the ‘shipness’ of the Variag one way or another according to a variety of perspectives, but what matters in law is that the launch, like human adoption or birth, is regarded as the essential moment of legal person-making regardless of whatever, from any other perspective, precedes or follows it.

Whatever the nature of a trans individual’s journey of ‘coming to live as’ a new legal person, the ambition of the law’s activity of making sex change is (however much it is thwarted in practice) to bring about finality with a view to making social peace. As the Latin maxim puts it, interest rei publicae ut sit finis litium – ‘it is in the public interest to end disputes’. The problem is that we do not take seriously enough the fictionalizing power of the legal conception of the person, hence Mussawir and Parsley’s complaint against the ‘marginalization of a certain consciousness of jurisprudence as a craft, art or technique’ by which the legal person is made ‘within the contemporary law relating to questions of gender and the division of the sexes’:²¹

The marginalization of the law of persons here tends to have the consequence of flattening sex onto the person almost to the point of taking its place entirely. Gender is treated as though it cannot be the effect of a legal classification but only a ‘truth’ or ‘nature’ received independently of any legal function and taken as inseparable from one’s natural person.²²

The last words of that quotation – ‘one’s natural person’ – probably need to be contained within quotation marks to emphasize that, to whatever extent the law works on the assumption that an individual has a ‘natural person’ or that ‘one’ identifies with a ‘natural’ sense of self, this is a legal construct every bit as much as legal gender is.

Debates about the legal recognition of transgender personhood will be conducted more constructively if we appropriately qualify what we mean by such terms as ‘artificial’, ‘natural’, ‘fact’, and ‘truth’. As to the term ‘artificial’, the crucial point is that it is not a pejorative term in the context of legal recognition but merely the proper term to describe a persona produced by the technical art – the technê – of law. The term ‘natural’, if it is referring to biological nature, is equally bland in this context. Just as ‘artificial’ is no mark of shame, so ‘natural’ in the biological sense is no badge of honour. It simply means to say that apart from rare individuals who are born intersex, people have a biological sex ascribed at birth based on the evidence of their genitals (few people are tested as to their chromosomal nature). The fact that some transgender people sooner or later feel that some anatomical body parts do not feel natural to them indicates that there are other notions of nature at play, including individual human nature and social human nature. It is on account of such extra-biological notions of nature that the vast majority of people wear clothes in public rather than go au naturel. Tension between two ideas of nature in the context of dress – the biologically native on the one side and the sociologically natural on the other – might be helpful as a way of appreciating the tension between biological and social nature in the context of discourse about transgender identity.

What Is Truth?

As for the use of the terms ‘truth’ and ‘fact’ in this context, they are all too often employed in discourse around transgender issues as if they were incontestable and unchanging axioms, when it is more accurate to talk of truths and facts according to the contexts in which they are produced. There are, for instance, differences between legal and scientific truths, given the very different processes by which they are each established. This was the subject of Chapter 4, where we considered the legal trial as a sort of Truth Factory. To illustrate the error and confusion that can be generated by inappropriate resort to ‘truth’, we will start with the example of a modern case in which the issue has arisen. The dispute in Maya Forstater v CGD Europe²³ originated with a letter written by Maya Forstater to her Member of Parliament, Anne Main MP, on 30 September 2018. The letter was an objection to certain proposals for reform of the Gender Recognition Act 2004. In the letter, Ms Forstater made the following request:

Please can you not support the proposed new GRA, and instead make space for a broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls.

Please stand up for the truth that it is not possible for someone who is male to become female. Transwomen are men, and should be respected and protected as men.²⁴

When Ms Forstater published her letter on social media, she received a range of responses ranging from the strongly supportive to the strongly critical. This was to be expected. In the polarizing context of social media, issues of sex and gender identity, which are frequently framed in rigidly binary terms, tend to be contested in a largely divisive and bifurcating mode. On 2 October 2018, Ms Forstater replied to the social media response with a further post in which she wrote:

I have been told that it is offensive to say ‘transwomen are men’ or that woman means ‘adult human female’. However since these statements are true I will continue to say them … Policy debates where facts are viewed as offensive are dangerous.

It is striking that in both these social media posts, Maya Forstater puts claims about the ‘truth’ and the ‘true’ at the forefront of her argument, alongside a related claim to be speaking on the basis of ‘facts’. Ms Forstater’s contract with the political think tank the Centre for Global Development was not renewed, and when she sought redress from an employment tribunal, the judge stated that Forstater’s gender-critical opinions, and the way she expressed them, were indefensible. Judge James Tayler said, ‘I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others’.²⁵ That decision was subsequently overturned by an employment appeal tribunal which set the bar at an extremely low level by holding that the only beliefs not capable of being worthy of respect in a democratic society are those ‘that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms … Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.’²⁶ By that test, Maya Forstater was held to be free to voice her gender-critical views. When her claim for unfair dismissal was subsequently heard on its merits before the London Central Employment Tribunal, the tribunal upheld her complaint that she had suffered direct discrimination on account of her gender-critical beliefs when her employer decided not to offer her a new employment contract and decided not to renew her visiting fellowship. She also succeeded in her complaint of victimization relating to the removal of her profile from the employer’s website.²⁷ The point I want to focus on here is one that was not considered by any of the tribunals in this case. It is that Ms Forstater’s resort to claims expressed in terms of ‘truth’ and ‘fact’ ignores the law’s capacity to make social truths and social facts. Biological definitions of sex establish truth and fact in the Truth Factory of science, but the law makes truth and facts of its own which sometimes deliberately conflict with scientific truths and facts; as, for example, in the case of legal adoption, where the law says (contrary to biological scientific definitions) that a certain infant is the child of a certain adult.

The legal process of gender recognition under the Gender Recognition Act 2004 is committed to very different notions of truth and fact to those advanced by Maya Forstater. Whereas she sought to advance certain biological definitions of sex in support of exclusive binary norms of male and female, the law is committed by the Gender Recognition Act 2004 s.9(1) (set out earlier in this chapter) to treat a transgender person in possession of a Gender Recognition Certificate as a person of the acquired gender for ‘all purposes’ (or all legal purposes); and, subject to certain exceptions, in all contexts.

What’s in a Name?

The effect of a Gender Recognition Certificate is to recognize an acquired gender and, more than that, actually to change the holder’s sex for legal purposes. Now it would clearly be impossible for any legal document to change the holder’s biological make-up, but it can change the holder’s sex as a legal matter of fact. Transgender people generally regard their sex as described in their original birth certificate as being officially assigned rather than innate, thus Bex Stinson, head of Trans Inclusion at Stonewall, responded to radio interviewer John Humphrys’ question ‘you were born a man?’ by saying ‘yes, I was assigned male on my birth certificate, and I’ve transitioned to live as myself, which is a woman’.²⁸ That transition brings with it the social and cultural disadvantages of being a woman just as surely as it brings social and cultural advantages, for to bear the label ‘woman’ is to bear the consequences of a political category regardless of biology (as numerous feminist scholars acknowledge).²⁹ In the UK, the law’s power to make sex change extends to changing a birth certificate registered in England and Wales or Scotland to show the trans individual’s identified sex and new name in place of the original ascription. The effect, for legal purposes, is the rebirth or relaunch of the legal person. This radical instance of legally recreated sex supports Judith Butler’s claim that sexual identity is not an innate status to which cultural considerations are added through gender language, but something that is itself culturally engendered. As she puts it:

Gender ought not to be conceived merely as the cultural inscription of meaning on a pregiven sex (a juridical conception); gender must also designate the very apparatus of production whereby the sexes themselves are established. As a result, gender is not to culture as sex is to nature; gender is also the discursive/cultural means by which ‘sexed nature’ or ‘a natural sex’ is produced.³⁰

When reading the words ‘nature’ and ‘natural’ in the final line of that quotation, it is helpful to recall that biological and chromosomal nature are not the only candidates. Nature comes in many forms, including those we might broadly call ‘legal nature’ and ‘social nature’. It should also be borne in mind that there is evolution in legal nature and social nature just as there is in biological nature. Owen Barfield’s wise words in that connection seem to fit our present topic well when he said that ‘a deeper, more sympathetic understanding of the long, slow movement of the human mind from the feudal, or genealogical, way of regarding human relationships towards what I have called the “personal” way would do no harm’.³¹

The most basic statements of legal fact regarding our identities as individuals are always to be found in official formal documents. When the law re-Creates or re-Produces a legal persona, the formal founding documents of the legal person are altered accordingly. In the UK, when a court makes an adoption order, a copy is sent to the General Register Office, where a new birth certificate is produced in the child’s adoptive name that replaces the original birth certificate for all legal purposes. The only (inconclusive) clue to the fact of adoption on the face of the new short-form certificate is that the place of birth is listed as Southport, Merseyside, which is the location of the General Register Office.

My passport has entries under ‘name’, ‘date of birth’, ‘place of birth’, ‘nationality’, and ‘sex’. The details under those headings are entered in part by way of legal record, but also in part by way of legal Creation and Production. The first performance of a person’s gender identity normally falls to medics who declare ‘it’s a boy’ and to parents who declare ‘his name is John’. Such statements make our social sex and gender in the originating way we call Invention, a word that can be used to describe an original finding based on apparent evidence (as in ‘it’s a boy’) and also to describe an original founding ex cosmos – that is, out of a world of possibilities (as in ‘his name is John’). Subsequent legal formal declarations of name and sex confirm those statements, but they also make sex in the sense of Creation by developing an informal declaration into a formal one, and they make sex in the sense of Production by making public the child’s ascribed sexual identity. There is, accordingly, a legal re-Creation and re-Production when a person chooses to change their legal name for any reason. In the UK, all that is required to change a name as a matter of law is for the named person to execute before two witnesses a one-party deed known as a ‘deed poll’, with the following wording:

‘I [old name] of [address] have given up my name [old name] and have adopted for all purposes the name [new name].

‘Signed as a deed on [date] as [old name] and [new name] in the presence of [witness 1 name] of [witness 1 address], and [witness 2 name] of [witness 2 address].

‘[new signature], [old signature]

‘[witness 1 signature], [witness 2 signature]’

There is legal poetry in the elegant efficiency by which, in a single line containing old and new signatures, the individual expresses the very essence of their legal transformation at the liminal threshold between the old and the new. For a small fee, the deed poll can be made a matter of public record by enrolling it with the court. The whole process might appear to be one of recording (as opposed to making) a new name, but to talk in terms of recording assumes that the new name had some prior existence. It need not. If the new name did have some prior existence as a social or cultural fact, the legal deed poll would nevertheless make something more than a mere matter of record, for by processes of Creation (re-Creation) and Production it would for the first time make the new name as a legal fact. The Production aspect of legal name-making is effected by bringing the new name to public recognition; by putting it on the social stage for purposes of public recognition. So it is with a legal change of sex.

Numbers, such as date of birth, are usually uncontroversial where they appear in legal formal documentation, but more nuanced matters of personal identity are likely to be controversial when they are set out in the blunt and brief language of legal formality. Take ‘name’ for example, which for a great many people appears as one thing in official documentation and a very different thing in everyday usage. Assumed names and nicknames are frequently more or less at variance with our officially ‘proper’ name. In answer to the question ‘which name is true?’, it would surely stretch the language of ‘truth’ too far to say that the official legal name by which I am known by nobody is my ‘true’ name. If we cannot expect a passport entry under ‘name’ to be socially and practically ‘true’, how much less should we expect social truth to be expressed accurately in relation to the complex question of sex identity when the category admits of only two possible answers – ‘male’ or ‘female’ – each of which is in formal documentary terms exclusive of the other.

For most people, the binary question ‘male or female’ is straightforward enough to answer on the evidence of bodily form, but a passport isn’t a scientific certificate of bodily form, still less of genetics. It is a legal document produced for legal purposes. That being so, many of us might wish to cast doubt on the law’s binary understanding of ‘male’ and ‘female’. We might demand of the law: ‘when you use the labels male and female, do you mean to refer to chromosomal genetic nature? If so, why … since few, if any, passport inspectors have the means to test that?’ We might equally ask, ‘do you mean naked bodily appearance? If so, why … since the law has no interest in my naked form?’; or ask, ‘do you mean that the holder dresses and otherwise presents in ways stereotypically normal for someone of that sex? If so, why … since the law has no interest in how a person performs gender norms by means of their dress?’ (Perhaps the law would reply ‘for reasons of border security’, but to label someone as ‘male’ or ‘female’ will actually provide a false sense of security in the case of travellers who are read as the other gender.) Or we might ask, ‘do you mean that the passport holder thinks of themselves in ways stereotypically normal for someone of that sex? If so, why … since the law has no business and no capacity to scrutinize a human’s inner thoughts and ideas of self?’ If the simple question ‘male’ or ‘female’ can reasonably prompt this wide range of objections from people who might on balance identify with the sex ascribed to them at birth, consider how strong and several will be the objections of someone who does not identify with the sex originally assigned to them.

Many countries across the world have introduced gender-neutral passports (the USA issued its first on 21 October 2021), but at the time of writing the UK is not one of them. In March 2020, the Court of Appeal of England and Wales handed down a judgment in a case brought by campaigner Christie Elan-Cane in which it acknowledged that a person’s gender identity (or right to be identified as non-gendered) is protected as a central aspect of their private (or family) life under Article 8 of the European Convention on Human Rights.³² Despite this, the court confirmed that subscribing nation states have no positive obligation to offer gender-neutral passports. One of the main reasons given was that the government has the right to postpone the making of documentary changes in the case of passports until such time as it can bring in a coherent policy covering all official documentation (birth certificates and so forth). In short, the court held that it is better for an individual to suffer formal incoherence in the matter of gender-stating documentation than that the entire state bureaucracy should.³³ The clash here is between the individual’s self-identification and the linkage between identity and documentation that states rely upon in the formulation of passports and other ID cards. When Elan-Cane appealed to the Supreme Court, the appeal was dismissed on the further ground that there was not an ‘obvious discrepancy between the appellant’s physical appearance and the “F” marker in the appellant’s passport’³⁴ – a decision that threatens to introduce invidious inquiries into the degree to which a passport holder’s appearance conforms to stereotypes of gender presentation. Where the formality of a passport does not correspond to physical appearance, the threat can be existential – as reported of transgender refugees prevented on that account from leaving Ukraine to escape the dangers of Vladimir Putin’s invasion. Perhaps the most fundamental factor underlying their lordships’ rejection of the gender-neutral passport is that a ‘binary approach to gender … forms the basis of the provision of a wide variety of public services’, including schools, hospitals, and prisons.³⁵

The law’s craft of person-making can cope with the transformation of male to female and female to male, but the legal magic apparently struggles to transform female or male to no gender at all. The law prefers to function by means of defined categories, so that at the time of writing the UK’s legal legerdemain allows the elusive object of gender to be held in the left hand or right hand but does not allow it to hover in the air. Despite this, the example of other nations shows that the legal magic of making gender-neutral passports can be summoned where there is the requisite legislative will to do so. To that end, a private members’ bill entitled the Non-gender-specific Passports Bill was introduced into the UK Parliament, but in the event it failed for lack of timely progress. For the time being, then, when a non-gendered person like Christie Elan-Cane fills in the passport application or renewal form they will have to make a binary choice between M or F and will reluctantly have to participate as co-Creator and co-Producer in the state’s performance of their gender identity.

No Virtue in Nature

The language of biological and scientific ‘truth’ is of little use when discussing the quite incommensurate question of legally sanctioned reality. Since ancient times, legal processes of person-making in civil society have always sought to Create, re-Create, and Produce civil identity and human relations that are to a greater or lesser extent non-natural from a purely biological point of view. Adoption in Roman law stands out as a positive example, and on the negative side the Roman law of slavery exemplifies the law’s ability to strip the biological human of almost all the incidents of legal personhood. The law has never been limited by the norms of human biological nature. Indeed, legal sanctions – from rules sanctioning crimes to remedies for breach of contract – are frequently designed to oppose and correct the undesirable instincts and habits of human biological nature. Consider how biologically natural are the many vices of violence, prejudice, and expropriation which thrive throughout the animal kingdom. There is no virtue in nature. Hobbes regarded the ‘Leviathan’ of law and government as something necessary precisely because the natural state of human society is a fearful state of war in which the life of an individual is ‘solitary, poor, nasty, brutish and short’.³⁶ He was writing at the time of the English Civil War, but the point applies equally in times of relative civil peace. In some contexts – adoption is one of them, transgender recognition is another – the very purpose of the law’s performance is to present an idea of fact and truth which is at odds with notions that come naturally in a purely native, biological sense.

In Praise of Fiction

Having considered the use and abuse of the words ‘artificial’, ‘natural’, and ‘true’ in the context of discourse about transgender rights, we now turn to two other words that have been too casually employed in relation to the law concerning transgender recognition. Those words are ‘fact’ and ‘fiction’. Let us start with ‘fiction’ and the observation made by the chair of the employment tribunal at first instance in the Forstater case that he did ‘not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction’.³⁷ The word ‘mere’ is unhelpful here, for it leaves us unsure whether the judge would have approved some other (more than ‘mere’) idea of ‘legal fiction’ as a description of the legal personhood of a transgender individual. If we assume that the judge objected tout court to the use of the term ‘legal fiction’ to describe transgender personhood as protected by the Gender Recognition Act, the question arises: why? The obvious answer is the pejorative associations that frequently accompany the word ‘fiction’ and, more particularly, the term ‘legal fiction’. Those pejorative associations, which stem in large part from the assumption that fiction is false on account of being ‘made up’, are unfortunate and unnecessary. Douglas Lind observes that typically ‘fictions are treated in legal theory as consciously false assumptions’, adding that ‘[t]his is regrettable’.³⁸ I echo that regret. On my analysis, all law is fiction of one sort or another, and the truly fanciful creatures that have historically been labelled ‘legal fictions’ (e.g. naming the non-existent ‘John Doe’ as a supporter of one’s claim to avoid the accusation that the claim was groundless) are simply instances of fictional law-making that especially stand out because they are so easily falsifiable. Indeed, it may be that judicial use of such glaring sorts of legal fiction has assisted judges in their traditional effort to deny that they make law, as focusing attention on absurd cases conveniently diverts scrutiny away from the fundamentally fictional nature of all judicial fact-making and decision-making. Elaine Scarry alluded to this species of diversionary tactic when she posited the possibility that the law, and other such crafts in which art is deliberately hidden, sometimes takes a bow in one case in order to deflect attention from the fabricating nature of the vast majority of its business:

If it is central to her project precisely that she remain disguised, if the benefits of her work are ordinarily greatly amplified by not being assignable to her, then by having a piece of ground where she is immediately recognizable, proudly self-announcing, she will obscure her activity on all other ground, deflect attention from her responsibility for the ‘real world’s’ realness … Her aspiration is to be omnipresent and unrecognized – to be not the legislator of the world but, as Shelley saw, the unacknowledged legislator of the world.³⁹

Lind sees no reason to reject even the more obvious and extreme types of fiction. He argues that legal fictions are true insofar as they are consistent with the law’s pragmatic project. He writes:

I suggest … that legal fictions be understood as true legal propositions asserted with conscious recognition that they are inconsistent in meaning or otherwise in semantic conflict with true propositions asserted within some other linguistic system (or elsewhere within law). Understood this way, fictions need not present legal theory with an intractable enigma. For the legal fiction is simply a form of creative lawmaking, a phenomenon of legal (primarily judicial) technique employed to resolve trouble in the legal environment.⁴⁰

… utterances in the form of legal fictions are not, generally speaking, false within law – e.g. corporations are jural persons. That is a true proposition of law.⁴¹

I agree, and I would add that, within the law, corporations are more true than any human can be because the corporation has no excess existence outside of its legal personality. The law can provide a complete account of a corporate person, but its attempts to give a complete account of a human person are always thwarted by the fact that human beings have an existence outside of the law. Applying Lind’s analysis to the legal idea of the trans person allows us to describe the legal trans person as a fiction without the description being in any way pejorative. By using the label ‘legal fiction’ we would actually be saying, to paraphrase Lind, that the legal trans person is a true legal person asserted with conscious recognition that their legal personhood is inconsistent in meaning or otherwise in semantic conflict with true propositions asserted within some other linguistic system (such as the language of biological science). Furthermore, whether they are true or false, legal fictions are practically necessary. This is the point made by Blackstone in the quotation cited earlier in this chapter, and Lind makes the same point in his pragmatic analysis of legal fictions when he approves Pierre de Tourtoulon’s suggestion that ‘if one would try to strip the Law of every fiction of the past as well as of the present, not much would be left’.⁴²

A Truth, but Not the Truth

Where I depart from Lind is in his reliance on a pragmatic philosophy that ‘disavows belief in absolute truths’.⁴³ A truly pragmatic philosophy is competent to doubt that humans can ascertain and express absolute truth, but it oversteps its mark when it purports to comment one way or another on the existence of absolute truth. It is helpful here to recall Giambattista Vico’s observation that the reason we demonstrate ‘[t]ruths in arithmetic, geometry, and their offspring, mechanics’ is ‘that we make it’, whereas ‘[t]ruths in physics … belong in God, in whom alone it is a true faculty’.⁴⁴ Law is more on the side of geometry than physics. Note that Vico refers to ‘a truth’ rather than ‘the truth’. Vico likewise favoured a notion of ‘the true’ (rather than ‘the truth’) as an adjectival description of artefacts made in particular contexts. The mask of legal personality would be one such artefact. To say that such a thing is made and can be called ‘the true’ or ‘a truth’ says nothing at all about ‘the truth’ in an absolute, context-transcending sense. Vico wrote that for the Latins, verum (the true) and factum (what is made) are interchangeable.⁴⁵ James C. Morrison stresses that ‘Vico speaks only of verum, an adjective, and not veritas, an abstract noun. Verum is used by him not only adjectivally but also substantively; it means true, a truth, and what is true, depending on the context. Thus, verum is factum is not a doctrine about the nature of truth but about the true.’⁴⁶ So, contrary to Lind, I argue that there can be no objection to non-rational faith in an unprovable and undisprovable absolute truth. What I do agree with is Lind’s suggestion that ‘reality, as we conceive it, is largely a product of our own creation’.⁴⁷ The crucial words here are ‘as we conceive it’, for it appropriately implies that absolute truth may exist beyond our cognitive and conceptual capacities to comprehend or express it. Even when transcendental truth is understood to be Divinely revealed, as in the Judeo-Christian account, the human recipient is said to see truth not directly but as if reflected in a mirror.⁴⁸ A broadly similar idea has been with us since the dawn of Western philosophy and Plato’s allegory of the cave, by which he analogized unenlightened human perception of reality to the interpretation of shadows cast by an unseen fire.⁴⁹ What pragmatic philosophers add to this picture is the sense – the Making Sense – that our conception of reality is something that we fabricate. Thus, Lind quotes Quine for the view that our conception of reality is a ‘man-made fabric’,⁵⁰ and the pragmatic philosopher William James for the view that the thing we call reality is ‘flagrantly man-made’.⁵¹ Referring again to James, Lind emphasizes the way in which truth is continually re-Created:

We delude ourselves to think we have attained truth absolute – fixed, static, and certain for all time. For reality is continually under construction. ‘What really exists,’ James wrote, ‘is not things made but things in the making’ … The new idea becomes true, ‘makes itself true,’ James insisted, ‘by the way it works; grafting itself then upon the ancient body of truth, which thus grows’.⁵²

Nowhere is this process of re-Created truth more apparent, I would suggest, than in the law’s making or remaking of the transgender person. If we cannot shake off the regrettable association between falsehood and the term ‘legal fiction’, let us say instead, with no loss of accuracy, that in recognizing the new legal personality of a transgender person, the law is making transgender legal personhood as a matter of ‘legal fact’. Or, in Vico’s term, that in the legal context, transgender personhood is ‘a truth’ or ‘the true’. What nobody can say of any sort of legal personhood is that it is transcendentally ‘the truth’. Absolute justice and absolute truth are a fire burning out of sight. When it comes to human-made laws, we are simply Making Sense of shadows on a wall.

6 Making Faces, Performing Persons

Wooing poor craftsmen with the craft of smiles.

William Shakespeare, Richard II (1.4.28)

Smiles were in short supply in the darkest days of the Covid-19 pandemic, in large part because so many were concealed beneath masks. In societies that have no modern tradition of wearing masks or veils, the unfamiliar sight of concealed faces can be disconcerting. This is not because we are unable to see the flesh of the face – a lifeless face can be quite as disconcerting as any mask – but rather because artificial face coverings conceal our arts of face-making. The face is, after all, the only part of the body that we commonly talk of in terms of ‘making’ and of being ‘made up’. The very word ‘face’ derives from the Latin facere – to make or to do. In this chapter, we examine the psychological power of face-making and the exploitation of that power in political performance. We also consider how physical face-making parallels the rhetorical crafting of persona in politics, law, and society at large.

We have a psychological need and desire to see faces being made. A great many of the five billion videos that are watched on YouTube every day demonstrate processes of making, including cooking, gardening, and crafting of every sort. Of these, one of the most popular genres is ‘makeup tutorials uploaded by beauty creators’.¹ In 2018, these accounted for around a million views each day.² Jiyoung Chae notes that ‘[f]amous beauty creators have millions of subscribers. For example, Yuya, a Mexican beauty creator, has 21 million subscribers, and UK-based Zoella has 12 million.’³ Yuya’s sensory arts and commercial skills extend to scent, which she markets as a perfume called #True. The name tellingly pretends to the very attribute that cosmetic arts, and all other rhetorical and performative arts, aspire to present. Scent should not be underestimated. For example, in one study it was ranked ahead of any single aspect of facial make-up when it comes to making fourteen- to eighteen-year-old girls attractive to their peers. Perfume was followed by mascara, eyeshadow, eyeliner, nail varnish, and lipstick.⁴ That said, the combined effect of facial cosmetics outperforms scent and every other cosmetic attribute in terms of producing attractiveness; all the more so if the look of hair and teeth and the presence or absence of spectacles is taken into account. Incidentally, psychologists sometimes classify spectacles and jewellery as ‘artifactual clues’ to the wearer’s communication, a term that confirms the role played by made things in a person’s performative make-up. Anybody who is adept at meeting our psychological need to see faces being made has the potential to exert significant social influence. This is true of social media ‘influencers’ but also, as we will see later, of actors on the highest political stages. When John Gauden called the female face ‘the chief Theatre, Throne and Centre of Beauty’, ‘the Queen and soveraign of humane and visible Beauty’, and ‘the Regent and directrix of the whole bodies culture, motion, and welfare’, his language is a clue to the fact that the face also stands centre stage in the theatrical performance of law and government.⁵

The Psychology of Making Faces

The face is a fashioned thing, and yet for all its potential for artifice, the face is also the thing to which we are most naturally, in the sense of innately, attuned. Scientists have suggested that the face may be ‘the seat of the greatest amount of information that is conveyed nonverbally. That’s why we have “face-to-face” interactions. Sometimes we need to get “in people’s faces.” When we have meetings with others this is “face time,” and sometimes we need to “face off”’.⁶ Psychologists confirm our common sense that ‘[f]aces are among the most important visual stimuli we perceive, informing us not only about a person’s identity, but also about their mood, sex, age and direction of gaze’.⁷ Those authors add that:

[F]ace perception … is implemented in its own specialized cortical network that is not shared with many if any other cognitive functions [and that] Considerable evidence from behavioural, neuropsychological and neurophysiological investigations supports the hypothesis that humans have specialized cognitive and neural mechanisms dedicated to the perception of faces (the face-specificity hypothesis).⁸

The theory that there is a part of the brain dedicated to face recognition has been established experimentally in people who, having suffered localized brain damage, have lost the ability to recognize faces but retained the ability to recognize other things. Brain imaging shows that even people born profoundly blind who have never received visual stimuli still process the sounds of face-situated activity (such as laughing, kissing, and lip smacking) in the ‘face’ subregion of the visual region of the brain (the ventral-temporal cortex) just as fully sighted people do when they see those activities performed.⁹ Experiments have also shown that faces are hardwired holistically as whole things – as the entire face form – rather than as separate facial features. There is a face-recognizing part of the brain, but no region with equivalent predisposition to recognize discrete facial elements such as eyes, ears, lips, and nose.¹⁰

The predisposition to recognize faces is hardwired in our brain and this can sometimes prejudice us to see faces in surprising places. We might look at the front of a house with its windows and door, or a car with headlamps and radiator grille, and see something face-like in the lay-out of its ‘eyes’ and ‘mouth’. A famous photoblog is dedicated to these ‘faces in places’.¹¹ The ‘man in the moon’ – a myth based on the face-like arrangement of crater shadows on the lunar surface – is surely the oldest shared human experience of the phenomenon. Faces are seen subliminally in a passing glance out of the corner of an eye. We might fancy that we have seen face-like patterns in a pile of clothes, or (with apologies to Giuseppe Arcimboldo) in a bowl of fruit.¹² As the general category ‘face’ is hardwired in the brain, so too particular faces of individual people become deeply imprinted in our brains with surprising speed and permanence. The boast ‘I never forget a face’ is not as impressive as it sounds. Few of us forget faces once they have made an impression. According to one small-scale study, we are all on a spectrum of aptitude in face recognition, ranging from those who severely struggle to recognize faces at all and are said to suffer ‘face blindness’ (prosopagnosia) to so-called super-recognizers who struggle to forget even the most irrelevant passing sighting from the sometimes distant past.¹³ The fact that most of us are rather good at remembering faces is presumably an evolutionary incident of the advantage of being able to recognize family, friends, and foes.

The well-known phenomenon of seeing the stereotypical face of Jesus or the Virgin Mary in markings on a piece of toast or in the random vapours of a cloud is not a spiritual revelation but a resolutely psychological one. The name given to the psychological phenomenon of seeing meaningful shapes in nebulous forms is ‘pareidolia’, and within this phenomenon the tendency to see faces is stronger than any other and is presumed to be seated in an evolutionarily primitive part of the brain.¹⁴ It might be said that our eyes are deceiving us, but in psychological terms we see a face because a face really is there to be seen. It does not diminish the reality of the face that it appeared on the surface of a piece of toast, or in the form of a cloud, or (to cite one celebrated photograph) in the foam of waves crashing against the shore.¹⁵ As the title of one scientific paper tells us, ‘The Potato Chip Really Does Look like Elvis!’.¹⁶ Whether a face happens to be situated on a human head or not, it is a face properly so-called if it accords with the psychological archetype of ‘face’ hardwired in our brains. Since a face is a thing we make – a finding that we impose upon the matrix of our visual stimuli – a face on the surface of a house or a car is no less a face than a human face.

There is only fine shading between face and fake. Both words describe things made up, and both words derive from the Latin verb facere, ‘to make’. We make faces in general, and we also make faces in particular, and this is all before we even think about what it means to make our own face. How often have we glanced fleetingly at a crowd and somehow isolated the familiar face of a friend or a famous person? With the merest glimpse we instinctively know ‘I’ve seen that face somewhere’. This phenomenon of attributing individual identity to a particular face is also expressed using the language of making. We will be familiar with movies about incognito characters such as undercover detectives, spies, and people in witness protection, who say ‘I’ve been made’ when what they mean is that someone has recognized them. The language is revealing, because it gets straight to the reality of the psychological dynamic at work when our brains see a strange face in a pile of clothes or a familiar face in a crowd. We don’t just make our own faces; we make every face that we recognize as a face. When another person’s face is familiar to us, the making of their face is a type of Artefaction in which their face, as a thing made by us, makes us respond in certain ways. The ability to recognize particular faces is no doubt useful in identifying undercover cops, but more importantly it is crucial to forming our most significant social bonds. Aesthetics is closely bound up in this, for just as beauty is in the eye of the beholder, so the quality of the face resides not in the fleshy form itself but in the mind of the one regarding it. It is because the face is a thing made by human perception that the art of facial cosmetics is such a fundamental feature of human social performance and has been since prehistoric times. When we make up our faces it is in part to present our faces as an artefact to meet the gaze of others, but there is also a sense in which making our face is bound up in making us recognizable to ourselves. By simply regarding our image in a mirror, we make our face before even a single stroke of make-up has been applied. We make it in the sense that we recognize the image as ‘face’, and we make it in the sense that we recognize it as our own face and not someone else’s.

Face as Theatrical Stage

Faces can be considered the stage spaces of our social performances. Like a theatrical stage, the face is at once instantly recognized as a place where we expect a performance to occur and the place where the social performer displays the finest attributes of their performative art. The face is the site where the strongest natural compulsions of our cognition meet the most powerful artificial performances of our persona. That word ‘persona’ provides a clue to the role of the face in social performance, for what began as the Latin word for an actor’s mask migrated to become one of the principal terms by which we describe the Production of an individual’s social character. When we say that someone has a pleasant personality, we are referring to their persona – their social performance or ‘front’ (to use Goffman’s term)¹⁷ – as if it were a thing representative of, or true to, their character.

We consider, next, two senses in which we make our own social face. The first is through facial expression, the second is through cosmetics. However, before we turn from considering the ways in which we make the faces of others to the ways we make our own faces, it is useful to remind ourselves that these two sides of our subject are to a large degree co-dependent. What we make of another’s face will depend to a great extent upon what they have made of their own face, and what we make of our own face will depend to a great extent upon what others make of it. When considering this co-Productive aspect of making faces, the theatrical analogy is again useful, especially insofar as theatre scholarship has stressed the importance of stage actors and audience members being able to see each other’s faces. Penelope Woods echoes Erving Goffman’s idea that an individual’s public persona is the ‘stage front’ of their social performance when she writes of ‘the social and performative function of the early modern face … as a kind of frons scenae of the soul’.¹⁸ Emphasizing the audience’s role in the co-Productive activity of making the performer’s face, Woods argues that the early modern theatrical scene was to some extent made up of the faces of playgoers as seen from the stage, and that the audience ceased to play its collaborative part when artificial stage lighting in the early nineteenth century highlighted the on-stage performers and plunged the auditorium into darkness, thereby effacing the audience.¹⁹ Woods alerts us to the possibility that our very notions of ‘self and subjectivity’ might be ‘produced by the reaction and response of surrounding people’ so that ‘face exchange is on some level constitutive of character and of selves in the theatre’.²⁰ Thus, Woods’ idea of social face-making in theatre can be read as the complimentary counterpart to Erving Goffman’s idea that everyone performs theatrical face-making in society.²¹ Susan Bennett, in her book Theatre Audiences, places the start of the ‘separation of fictional stage world and audience’ at an even earlier date than Woods, with the seventeenth century move to indoor private theatres.²² To counter this separation, Jerzy Grotowski’s experiments in ‘Poor Theatre’ involved stripping away spectator-secluding lighting effects. He observed that ‘once a spectator is placed in an illuminated zone, or in other words becomes visible, he too begins to play a part in the performance’.²³

Of Countenance and Coins

Conscious performance is one thing, but can we be said to make a face when our facial expressions are involuntary? Some facial expressions are hard to replicate through deliberate art. Examples include a blush, the dilation of the pupils of the eyes, and a sincere full smile. It is nevertheless the case that most expressions that occur involuntarily can be replicated or restrained voluntarily. The restraint dimension, which is sometimes expressed as our ability to ‘contain’ ourselves, is the etymological source of the word ‘countenance’ as a description of facial appearance. To con-ten is to withhold or to get a grip on. We are all social actors with varying degrees of control over our facial display of emotions. While the best professional actors – theatrical, legal, political – are especially adept in the skill of replication and restraining emotional expression, excellence in the art of facial expression is not the exclusive preserve of professionals.

Neither do professionals always have the knack of interpreting faces even when their professional role would seem to depend upon it. One American trial judge, who scrutinizes a great many different faces every week in the course of his judicial work, laments that ‘[u]nfortunately, we judges are as accurate at reading the emotions on the face of another as we are at predicting a coin toss’.²⁴ That judge was speaking of his inability to establish the faces of others, but the flip side of the coin is a judicial inability to maintain the respectable face of the law. This anxiety was once voiced by the senior English judge, Lord Neuberger of Abbotsbury, who – also using the metaphor of coinage – cautioned against the judiciary’s growing habit of giving interviews outside of court when he said, ‘I wonder whether we are not devaluing the coinage, or letting the judicial mask slip’.²⁵ Lord Neuberger served as president of the Supreme Court of the United Kingdom, and two of the worst offenders against his lordship’s cautionary note have been his immediate predecessor Lord Phillips and his immediate successor Lady Hale. In an effort to make the highest court less daunting and more popular, Lord Phillips once stripped down to his swimming shorts for a television documentary on the Supreme Court.²⁶ While Lady Hale enjoys the celebrity status of being the first female member of the UK’s Supreme Court and of leading the Supreme Court when it intervened in Brexit politics by annulling the government’s attempt to prorogue (suspend) Parliament from 9 September until 14 October 2019. The year after retiring as a judge, Lady Hale was a guest on the BBC’s popular Desert Island Discs programme where her excellent musical choices were a good deal less controversial than her Brexit intervention.²⁷ Was Francis Bacon right when he protested in the early seventeenth century that ‘[a] popular judge is a deformed thing; and plaudites are fitter for players than for magistrates’,²⁸ or does a modern celebrity-obsessed culture demand that our judges should perform their public-facing role to a wide public audience and not just for those few who attend, or tune into, live court proceedings? On that question, the jury is out.

Of Construction and Clowns

The American trial judge mentioned earlier is not alone in lamenting the inscrutability of facial expression. Recall Duncan in Shakespeare’s Macbeth, who said, ‘There’s no art / To find the mind’s construction in the face’ (1.4.12–13). Inscrutability may be down to the fact that the viewer’s art of making out the meaning of another’s face will frequently be inadequate to overcome the other’s art of making up their face to disguise their intentions. This is a context in which scientific experiment might have an advantage over common sense and experience. Psychology researchers, working with the benefit of modern photographic and video technology, have to some extent achieved what Duncan’s art could not. One nineteenth-century scientific pioneer was Guillaume Duchenne, who established experimentally that an insincere smile employs the voluntary muscles of the mouth but not the involuntary muscles of the eyes.²⁹ A genuinely joyful smile is called a Duchenne smile in his honour. In the twentieth century, the work of Paul Ekman and Wallace Friesen led to the discovery of facial ‘microexpressions’ and ‘leakage’ that betray a liar’s dishonesty in such clues as discrepancy between emotions expressed facially and words expressed vocally.³⁰ Very few of us are as expert as Ekman, who has been called the ‘Human Lie Detector’, and in most of our daily face-to-face encounters Duncan’s lament still rings true.

It is also true, as Duncan (and by implication Shakespeare) said, that the face is a site of ‘construction’. The craft of making faces permeates a great many of our social encounters, not least when deception is involved.³¹ Psychologists David Matsumoto and Hyi Sung Hwang list an impressively wide range of types of facial gesture.³² These include speech illustrators (e.g. lowering eyebrows when lowering tone of voice); emblematic gestures (e.g. raising one eyebrow to express scepticism); cues to regulate turn-taking in conversation (e.g. eye gaze indicating intention to take, hold, or yield a turn to speak);³³ clues to physical exertion (e.g. furrowing brows when concentrating); and clues to cognitive activity (e.g. puffing cheeks to show physical exertion).³⁴ One of the insults that has frequently been levelled at Donald Trump is that he is a ‘clown’. That is an inadequate and dangerous dismissal because it fails to appreciate the primal appeal of the art of clowning. Trump makes faces and he makes them well. His masks are often grotesque, but so too have been the masks of professional actors and clowns down through history and across the globe. In an engaging newspaper article, the psychologist Peter Collett has described ‘The Seven Faces of Donald Trump’. The article begins with the following observation:

A great deal of Donald Trump’s political success can be put down to his body language and the unusual ways he uses his face. The first thing we notice about Trump’s facial expressions is the sheer variety. The second is their dramatic, often over-stated character.³⁵

Shakespeare’s King Richard II might have been speaking for modern-day Trump-watchers when, commenting on public performances by his rival Henry Bolingbroke, the king:

Observed his courtship to the common people;

How he did seem to dive into their hearts

With humble and familiar courtesy,

What reverence he did throw away on slaves,

Wooing poor craftsmen with the craft of smiles

(Richard II 1.4.24–28)

The seven faces of Trump that Peter Collett identifies include ‘the Big Smile’. This is used relatively infrequently and tends to be reserved for ‘when he doesn’t feel the need to look like a leader, or when he is with people whose company he enjoys’.³⁶ When performing publicly, he tends to adopt the ‘Alpha Face’, which eschews smiling,³⁷ or even the ‘Angry Face’ and the ‘Chin-jut’, all of which are straight out of the alpha male playbook that applies to humans and chimpanzees alike. To look dominant, you should look as if you are preparing for a fight. Jutting the chin gives the impression that you have a strong jaw and ‘strong jaws may indicate a heavily built skeleton, and therefore superior physical strength’.³⁸ Trump’s distinctive wide mouth, lips closed ‘Zipped Smile’ might serve the same purpose, for as Collett notes:

There is evidence, both from animals and humans, that mouth width is linked to readiness to engage in physical combat, and it has also been found that men with wider mouths are more likely to attain leadership positions.³⁹

Trump’s ‘Puckered Chin’ might be a defensive gesture indicating, in its evolutionary antecedents, a readiness to take a punch to the face. Most telling of all, and most alike to the painted mask of a clown, is the seventh of Trump’s faces which Collett calls the ‘Exaggerated Mouth’. On this he writes:

You can’t help notice the way Trump protrudes and contorts his mouth. In fact, his lips appear to have an almost prehensile quality, as if they were an extra pair of hands, reaching out from his face to manipulate the world around him.⁴⁰

A clown with such craft is one to be reckoned with. Like so many highly demonstrative demagogues, Trump makes faces that make things happen.

Cosmetics

To achieve striking facial effects, it is common for people, including professional clowns, to enlist the assistance of cosmetics. In 1656, John Gauden wrote A Discourse of Artificial Beauty.⁴¹ It was quite a departure for the royalist cleric who is reputed to have written Eikon Basilike,⁴² an important royalist tract published just a few days before the execution of King Charles I and attributed to the authorship of the king himself. Gauden’s Discourse depicts cosmetic art as a God-given skill to enhance God-given natural beauty. Gauden writes, for example, that the addition of a little whitening tincture or rouge ‘makes no more a new face or person, (so as to run any hazard of confusion or mistake) then usually befals women in their sicknesses and ordinary distempers … so that this artificial change is but a fixation of natures inconstancy’.⁴³

Art and Nature

Gauden objected to the fact that ‘some men seek to confine all women to their pure and simple naturals: as if Art and Nature were not sisters, but jealous rivals’.⁴⁴ Gauden’s argument is that the natural canvas of the face is a product of Divine art so there is no offence when a human artist reveals or stabilizes human beauty by means of cosmetic craft. A similar attitude runs deep in the thinking of early modern poets and artists for whom the co-Productive activity of art and nature was the renaissance of a classical theme. One classical precedent for the theme is Cicero’s essay de Oratore, which ‘constructs ideal eloquentia as a hybrid of ars and natura’.⁴⁵ The argument that art and nature are a hybrid (or to use Gauden’s term, ‘sisters’) defended early modern artists against the Puritans’ assertion that beautifying arts are sinful modes of artifice. Jonson developed this defence in his essay ‘On Picture’ (De pictura), which we considered in Chapter 4.⁴⁶ The defensive tone is also apparent in Sir Philip Sidney’s The Defence of Poesie, where he writes:

The Greeks called him a ‘poet’, which name hath, as the most excellent, gone through other languages. It cometh of this word ποιϵῐν [poiein], which is, to make: wherein, I know not whether by luck or wisdom, we Englishmen have met with the Greeks in calling him a maker … There is no art delivered to mankind that hath not the works of nature for his principal object, without which they could not consist, and on which they so depend, as they become actors and players, as it were, of what nature will have set forth.⁴⁷

In his satirical poem ‘Of a Painted Lady’, Sir John Harrington notes how near to nature a painting can come:

I Saw dame Leda’s picture lately drawne,

With haire about her eares, transparent Lawne,

Her Ivory paps, and every other part,

So limd unto the life by Painters Art,

That I that had been long with her acquainted,

Did think that both were quick, or both were painted⁴⁸

Shakespeare explores the same early modern theme of the confusion of natural life with art in the final scene of The Winter’s Tale in which the ‘statue’ of Hermione comes to life.

Her husband, Leontes, admires the exemplary sculptural work, noting that ‘The fixture of her eye has motion in’t, / As we are mock’d with art’ (5.3.79–80). When Leontes asks, ‘What was he that did make it?’, the answer is clear. The artisan behind the work is God, for, though Leontes does not see it yet, this is not a statue of Hermione but she herself – a work not of art but of nature, or rather of nature enhanced by human cosmetic art.

Shakespeare’s contemporary, the French philosopher Michel de Montaigne (1533–1592), acknowledged that science, and even law, makes up its ideas of truth cosmetically using the legitimate falsehood of poetic fiction:

Just as women use ivory teeth where their own are lacking, and, instead of their true complexion, create one from some foreign matter; … and in plain sight of everyone embellish themselves with a false and borrowed beauty: so does science (and even our law, they say, has legitimate fictions on which it founds the truth of its justice).⁴⁹

This brings us to the issue of performed truth in the art of rhetoric and the place of the face in political and legal performance.

Prosopopoeia: The Rhetorical Art of Face-Making

Making up the human face by means of cosmetics parallels the making of the social persona by means of rhetorical arts. As noted earlier, the Latin word ‘persona’, from which our idea of social personality derives, was originally a term denoting an actor’s mask. The Greek equivalent, also denoting both face and mask, was prósopon. That word describes something that is ‘towards the eye’ (pro-ops). The same visive sense of the face as a seen thing survives strongly in the modern French and German words for face – visage and Angesicht, respectively. The language stresses how central to the idea of ‘making my face’ is the co-Productive Participation of ‘your point of view’. My face is a social construct that you and I make together.

The rhetorical device of prosopopoeia (προσωποποιία) indicates the making of a face or mask (from the Greek prósopon ‘face, mask’, and poiéin ‘to make, to do’). In rhetorical theory it is understood to encompass two distinct techniques: ‘impersonation’ and ‘personification’. The first technique, ‘impersonation’, is a species of prosopopoeia by which a performer imitates or assumes a different persona. A classical example is Cicero’s device in his oration Pro Caelio of speaking as Appius Claudius Caecus, the great statesman of Republican Rome who was patron of the road and aqueduct (named Via Appia and Aqua Appia in his honour) that were the archetypes of Roman engineering excellence.⁵⁰ Personification of this sort is quintessentially theatrical.⁵¹ As Eric Bentley writes in his book The Life of the Drama: ‘[t]he theatrical situation, reduced to a minimum, is that A impersonates B while C looks on’.⁵² Gavin Alexander acknowledges similarly that ‘the power to conjure up human presences and endow them with speaking voices is not just a momentary trick of the orator but is the basis of the making of fictions’.⁵³ The second technique, ‘personification’, is a species of prosopopoeia by which a performer attributes a human persona to a non-human entity. A classical instance is Quintilian’s assertion that oratory can ‘give voices to cities and states’.⁵⁴ Examples of personification in Shakespeare’s works are too many to list. One example which illustrates Quintilian’s claim is Shakespeare’s description of the nation state of England as a pale-faced maid or woman. This example is particularly striking because it not only attributes human character to England, which is a standard mode of personification, but does so through the specific device of attributing a human face to the abstract idea of nation. Thus, in Richard II, the King fears the effect of bloodshed on ‘the flower of England’s face’ and ‘the complexion of her maid-pale peace’ (3.3.97–98).⁵⁵ In Shakespeare’s King John, England is again personified as a pale-faced female when he describes the nation’s coastal front as ‘that pale, that white-faced shore, / Whose foot spurns back the ocean’s roaring tides / And coops from other lands her islanders?’ (2.1.23–25).⁵⁶ As with so much of Shakespeare’s imagery, these references are multivalent. They can be read as being simultaneously a literal description of a nation whose people are pallid with fear in time of war, a geophysical reference to the chalk cliff facade of the English south coast, and an oblique allusion to the cosmetically whitened face of England’s chief ‘maid’ – Elizabeth I, the ‘Virgin Queen’. Furthermore, the use of ‘pale’ in the King John quotation is a pun referring both to pallid skin and to a defensive bulwark (from palus, the Latin word for fence post).

Shakespeare’s contemporary, Abraham Fraunce, described the impersonation species of prosopopoeia as ‘a fayning of any person, when in our speech we represent the person of anie, and make it speake as though he were there present’.⁵⁷ Having quoted Fraunce, Walter Jost and Wendy Olmsted, writing on ‘Rhetorical Technē and Poetics’, note the theatrical nature (specifically, the imaginative acting) inherent in the rhetorical practice of prosopopoeia. Referring to the Suasoriae of Seneca the Elder,⁵⁸ they write:

Alexander debates whether to sail the ocean and the speaker must imagine himself one of the sailors, or else imagine himself Alexander wishing to go on the voyage, or else imagine himself Alexander’s mother wishing to prevent his departure.⁵⁹

This example shows that one way to make a persuasive argument is to make a face. By masking oneself as another it is possible to animate a different point of view. At the very least, this should make the oration livelier, which is one of Thomas Wilson’s main reasons for recommending personification in his treatise The Arte of Rhetoric: ‘Such varietie doth much good to avoyde tediousnesse, for he that speaketh all in one sort, though he speake thinges never so wittely, shall sone wearie his hearers.’⁶⁰

Rhetorical and poetic prosopopoeia is frequently as much concerned with making a sound or producing a voice as with purely visible aspects of making a face. Indeed, one speculative etymology for the Latin ‘persona’ suggests that it is derived from the sonic attributes of the classical actor’s mask – the idea being that the wide mouth aperture amplified the voice as the sound passed through (per-sona). Appealing as that etymology is, a more plausible or immediate account links the word persona to the language of the people who occupied the Latin lands before the Romans. The Etruscan word for mask, or a masked role, was phersu.⁶¹

Sound is undoubtedly significant in those modes of impersonation that closely resemble theatrical acting. In the example of Cicero impersonating Appius we can see the potential for an impersonator to assume not only the facial and manual gestures, posture, gait, and other visible mannerisms of the impersonated individual but also their voice. Expert mimics, whom we still call ‘impersonators’, are generally adept at performing all these aspects of the individual impersonated, and very often cap off their performance by adopting the dress and props of their target. It is easy enough to impersonate the distinctive look of Charlie Chaplin’s Tramp character without making a sound, or to impersonate President John F. Kennedy through the sound of his voice alone, but a character who combines a distinctive look with a distinctive voice is an impersonator’s dream. Winston Churchill is one such. No doubt it was the strikingly distinctive performance of Churchill’s public persona in all its aspects that enabled him to make such an impression on people during World War II. As Churchill made an impression on the wartime public, so his distinctiveness enables modern actors to perform persuasive impressions of him now. Churchill’s signature hand gesture (the V-sign), his distinctive voice, his classic English bowler hat, his squat and portly physique, and his bulldog jowls all combine to make a vivid impression. In cinematic renditions, Churchill’s physical and gestural performance has convincingly concealed actors who in the absence of make-up, prosthetics, and vocal mimicry are as physically and sonically different as John Lithgow and Gary Oldman. The impersonation is especially helped by Churchill’s association with a distinctive prop. The cigar was to Churchill what the walking stick was to Chaplin’s Tramp. Some British prime ministers since Churchill have also come to be associated with the attribute of personal props, most notably Harold Wilson and his pipe and Margaret Thatcher and her handbag.⁶²

Making a Fool of Oneself

Since classical times, the connection between oratory and acting has been exploited by practitioners of both those arts, albeit the classical rhetoricians pretended to decry the thespian arts and to claim a higher dignity for their own profession.⁶³ The challenge for the rhetorical performer is always to judge how far to go in adopting an artificial persona and to know which types of persona it is safe to adopt. One argument in favour of adopting a new voice, facial expression, gestural manner, posture, and gait is that it will make the mask more completely artificial and distinct from the orator’s own character – shielding the performer even as it enables them more blatantly to ‘show off’. A counterargument, standing against the use of thespian techniques, is that the audience might attribute undesirable aspects of the performed persona to the private character of the orator. Morwenna Ludlow observes that ‘the technique of prosōpopoeia is inherently risky speech: on the one hand, it heightens emotion and strengthens the speaker’s or author’s appeal to his audience; on the other hand, the impersonation of another speaker carries with it the risk of undermining the speaker’s own authority.’⁶⁴ To make a face through impersonation is to risk making a fool of oneself. It is perhaps for this reason that Henry Peacham, author of the sixteenth-century rhetorical treatise The Garden of Eloquence, cautioned that ‘[i]t is not convenient that the Orator should use the helpe of fained persons without some urgent cause compelling him thereunto’.⁶⁵ A sensible way to manage the risk that prosopopoeia might backfire is to commit to thespian representation only where the individual impersonated is one with whom the orator would wish to be associated (Cicero’s impersonation of the respected statesman Appius Claudius Caecus was of that sort), and to avoid adopting the voice and manners of a rogue or a fool. There is otherwise the risk that a vivid image of the rhetorician impersonating a villain may remain in the memory of the audience even when they have forgotten that it was only an act.

One technique that is useful in distinguishing the orator’s own character from the character personated is, in the words of Thomas Wilson, to ‘frame the oration’.⁶⁶ This can be done by means of a clear introduction and conclusion. Hence the advice of Abraham Fraunce, that the speaker should ‘make a fit and orderly accesse too, and regresse from the same Prosopopoeia’.⁶⁷ Theatrical actors performing on stage have some very specific techniques for framing their performances, and, in particular, a standard way of emerging from their persona at the point that Fraunce calls the ‘egress’. Chief of these is the ‘curtain call’ at the end of the show. One actor explains that when he performs a comedy, he marks the end of the theatrical ritual by removing his adopted persona while still on stage: ‘once I reach the center stage and take my bow, I shed my character and become myself. Generally, audiences appreciate getting a glimpse of the artist behind the character.’⁶⁸ Framing of this sort, which shows the maker behind the make-believe, doesn’t kill off the illusion so much as seal it to live on forever within the confines of the fictional domain of the show.

Show of Truth

Impersonation raises concerns of sincerity and truth. Recall psychologist Paul Ekman’s observations, alluded to earlier, regarding the ability and inability of the face to hide emotions. He writes that:

The face appears to be the most skilled nonverbal communicator and perhaps for that reason the best ‘nonverbal liar,’ capable not only of withholding information but of simulating the facial behavior associated with a feeling which the person is in no way experiencing.⁶⁹

Citing that quotation, performance scholar Richard Schechner connects the dissembling capacity of the face to that of the thespian arts when he writes in his book Performance Theory that ‘lying, as much as truth-telling, is the stock in trade of theatre’,⁷⁰ adding:

Here the Ekman of 1972 does not yet know what the Ekman of 1983 found out: that the ‘mechanical’ construction of a face in the configuration of a ‘target emotion’ elicits an ANS [autonomic nervous system] response, i.e. an ‘experience.’ Thus lying is a very complicated business in which the skilled liar – a person who can make a convincing face – knows he is lying but feels he is telling the truth (see Ekman 1985).[⁷¹]

… the doing of the action of a feeling is enough to arouse the feeling both in the doer and in the receiver. The so-called surface of emotion – the look on the face, the tone of the skin, the tilt of the body, the placement and moves of muscles – is also the emotion’s ‘depth.’⁷²

In 2016, US presidential candidate Hillary Clinton gave an interview for the photoblog Humans of New York in which she offered a fascinating insight into the hard work that goes into making a public persona seem natural. What she had to say about the orator’s art of performing a natural persona corresponds to John Gauden’s idea that facial cosmetics present nature at its best:

I’m not Barack Obama. I’m not Bill Clinton. Both of them carry themselves with a naturalness that is very appealing to audiences. But I’m married to one and I’ve worked for the other, so I know how hard they work at being natural. It’s not something they just dial in. They work and they practice what they’re going to say. It’s not that they’re trying to be somebody else. But it’s hard work to present yourself in the best possible way.⁷³

Split Personality

The tension that exists between a persona that is professionally crafted for public consumption and the ‘natural’ character of the individual performing that persona is one that has erupted in fascinating ways in relation to celebrity ‘personalities’ in the world of television and politics. Someone who fits into both those categories is Donald Trump. On one infamous occasion he exploited the tension between his private character and his public persona as a cover for insulting a political rival’s facial appearance. His target, Carly Fiorina, is a successful business executive who as CEO of Hewlett-Packard became the first woman to lead a Fortune Top-20 company. When she ran against Trump for the Republican nomination in the 2016 presidential election, he was determined that her substance should not distract voters from surface considerations. As a showbiz celebrity, his strategy was to make a strong surface impression and to encourage superficial scrutiny of the candidates. Accordingly, he gave an interview in which, referring to Fiorina, he said: ‘Look at that face! Would anyone vote for that?’⁷⁴ When subsequently taken to task for what was apparently intended to be an insult to Fiorina’s facial attractiveness, Trump said: ‘some comments are made as an entertainer. And, as everybody said, as an entertainer [it] is a much different ballgame.’⁷⁵

Trump claimed that he wasn’t talking about Fiorina’s physical face at all, but ‘talking about her persona … She failed miserably at Hewlett-Packard and ran for the Senate and lost in a landslide and now running for president. I’m talking about her persona.’⁷⁶ We might dismiss that excuse as a brazen evasion, but in the showbiz world of Donald Trump it’s quite easy to believe that a disparaging comment on someone’s facial attractiveness is genuinely inseparable in his mind from his attitude to their attractiveness as a public figure. He wasn’t lying when he said that he was talking about Fiorina’s persona, it’s just that his own critical gaze does not pierce deeper than the superfice of someone’s public performance. For Trump, physical face is persona. Face is everything. If Ms Fiorina were minded to take the insult personally, it might be some comfort to know that the standards by which Trump judged her to be unattractive are the same by which he judges himself to be beautiful.

We consider, next, two examples from the UK in which the tension between a celebrity’s private character and public persona has erupted to the extent of litigation. In the first case, a popular daytime television presenter successfully claimed a tax exemption for expenses incurred during the theatrical performance of her public persona. In the second case, the then UK prime minister, Boris Johnson, brought a successful action for judicial review against a magistrates’ court which had issued a criminal summons against him in a private prosecution alleging that he had committed the common law offence of misconduct in public office.

The first case concerned daytime television presenter Lorraine Kelly. The Inland Revenue tax authorities had claimed that Ms Kelly appeared as herself when presenting television programmes and therefore should not receive tax exemptions available to a performer. The authorities’ assumption that any of us appear as ourselves in public is an extremely questionable one. It seems to assume, first, that there is an essential ‘self’ of such stability that it can be identified; second, that there is an element of ‘our’ by which we identify (in the sense of feel at one with) that stable sense of self; and third, that when we appear in public, we not only choose to represent our stable self in our social performance, but that we do so accurately. If such doubtful assumptions arise in the case of everyone who presents themselves to public perusal, how much more problematic are the issues arising in the case of a person who is a professional presenter?

Rejecting the Inland Revenue’s claim, the tax tribunal found in favour of Ms Kelly:

We did not accept that Ms Kelly simply appeared as herself; we were satisfied that Ms Kelly presents a persona of herself; she presents herself as a brand … All parts of the show are a performance, the act being to perform the role of a friendly, chatty and fun personality … for the time Ms Kelly is contracted to perform live on air she is public ‘Lorraine Kelly’; she may not like the guest she interviews, she may not like the food she eats, she may not like the film she viewed but that is where the performance lies.⁷⁷

Those last three words – ‘the performance lies’ – produce a telling pun. If the performance of the public personality ‘Lorraine Kelly’ is not a sincere representation of the private person, can the performance be regarded as true? The answer to that question depends upon the purpose of public performance in the context of daytime television. It is certainly arguable that the purpose is not to lay bare the private character of Lorraine Kelly, but to produce a persona that will please the public. Far from being called upon to present Ms Kelly’s quotidian private life, the programmes in which she appears are designed to distract the public from everyday mundanity. Ms Kelly is true to that purpose when she presents a pleasing and diverting persona. Seen in this way, the performance of a popular show business personality resembles the way in which law courts, instead of simply presenting the unedited, messy, and contested circumstances of human lives, seek to present instead a polished matter that will satisfy the public.

Every actor in her litigation – Ms Kelly, the tax authorities, and even the court – was in a different way performing a role which did not depend upon substantial integrity between private performer and public persona. The private Ms Kelly might have an individual character at odds with her television persona, and the tax officials and their legal advisors bringing the action against her might not, in private, have believed in the merits of their case. A seventeenth-century preacher once complained that lawyers ‘put the fairest faces on the foulest actions’,⁷⁸ but often this is precisely what professional performance – from that of soldiers to social workers – demands from a role. Even the judge applying the law in Ms Kelly’s case might not, as a private person, have believed in the correctness of the law. Jacques’ sketch of a judge (‘the justice’) in his famous ‘All the World’s a Stage’ speech in Shakespeare’s As You Like It concludes with the words ‘he plays his part’ (2.7.157). It is the conclusion we might reach when considering all sorts of professional performance in which the actor is duty bound to represent others and their interests rather than present their own private character and their own private interests.

In the second case, the then UK prime minister, Boris Johnson, brought a successful action against a magistrates’ court that had issued a summons against him in a private prosecution alleging the common law offence of misconduct in public office. The summons was chiefly based on statements made by Johnson while campaigning for Brexit when he was Mayor of London and a Member of Parliament, including ‘we send the EU £350 million a week, let’s fund our NHS instead’. The High Court quashed the decision of the magistrates’ court because there was no evidence of the offence, and because the judge in the magistrates’ court had without good reason dismissed the possibility that the action had been brought against the prime minister for political and vexatious motives.⁷⁹ The substantial question in this case came down to a similar issue to that which arose in the case of television personality Lorraine Kelly. The question was whether the disputed statements made by Boris Johnson in relation to the Brexit campaign were made by him ‘in his public role’ or ‘in a different role’. In the technical language of the Johnson case, those issues were distilled down to this question: was Boris Johnson, who was then a public officer, ‘acting as such’ when he made the statements he made in relation to Brexit? The common law offence of misconduct in public office has four elements: (1) that it concerns a public officer acting as such; who (2) wilfully neglects to perform his duty and/or wilfully misconducts himself; (3) to such a degree as to amount to an abuse of the public’s trust in the office holder; (4) without reasonable excuse or justification.⁸⁰ The Law Commission Report on the topic explains that the ‘acting as such’ ingredient was ‘designed to distinguish between circumstances where the public office holder is misconducting themselves while performing their function or role, and where they are misconducting themselves in non-public contexts. This includes, but is not necessarily limited to, conduct in their personal life.’⁸¹ The High Court held in the Johnson case that holding an influential public role is not enough for liability. There must also be a causal connection between the role and statements made, such that in making the statements Boris Johnson could be said to have been performing his public role. ‘If, as here, he simply held the office and whilst holding it expressed a view contentious and widely challenged, the ingredient of ‘acting as such’ is not made out.’⁸² In politics, it apparently helps to be two-faced in the sense of having more than one mask to wear. In Donald Trump’s case, he attempted to deflect criticism directed at him personally by claiming that he was acting as an entertainer. In Boris Johnson’s case, he successfully deflected criticism directed at him as a public official by claiming that he was acting in a non-official capacity. The challenge, as in the case of Lorraine Kelly, is to know ‘where the performance lies’.

Facebook and Social Media Persona

Nowadays, social interaction through online media is an important context in which we make our public face and in which members of the public confirm our face through what they make of it. No major online social media platform has had the longevity of Facebook. The platform’s name, which was originally an allusion to the use of a profile image to display the user’s face, is now a fitting label for the platform’s role in producing a user’s social persona. In addition to the user’s own design in presenting a version of their self through the platform, interactions such as ‘tagging’, ‘liking’, ‘sharing’, and ‘commenting’ enable a ‘friend’ of the page owner to participate in the co-Productive activity of making up the page owner’s social face even as the friend simultaneously performs their own public persona. Another leading platform, just two years younger than Facebook, is Twitter. Whereas Facebook users have ‘friends’, Twitter users have ‘followers’. That fact illustrates a distinction of tone between the two platforms. Facebook is more private and personal; Twitter more public and impersonal. It might for this reason be somewhat easier on Twitter than on Facebook to fake a persona that will fool the public. An instance that attracted press coverage is the case of British teenager Sam Gardiner who passed himself off as older men by means of pseudonyms. His aim was to gain respect for his opinions on football (the soccer variety), and it worked. He attracted more than 20,000 followers. The face was fake, and the pseudonyms were a fabrication; but the question still presents itself – was his performance fundamentally false? This wasn’t criminal identity theft; it was identity Production. He was publishing and performing the substantial truth of his soccer expertise by means of fictional personas. Commenting on this case, Patrick Lonergan observes that ‘[t]he construction of his online persona was an act of creativity, but it was also an act of self-expression, a revelation of something authentic about the real person’.⁸³ This is reminiscent of Esther Newton’s 1972 study of gender performance by drag artists (‘female impersonators’ as Newton’s title styles them),⁸⁴ and specifically of Judith Butler’s reflections on that study which conclude that drag performances, like other gender performances, ‘are fabrications manufactured and sustained through corporeal signs and other discursive means’⁸⁵ and that ‘gender attributes … effectively constitute the identity they are said to express or reveal’.⁸⁶ In other words, that a male impersonating a ‘female’ is constructing the reality of the ‘female’ gender, because ‘female’ is itself a social construction and ‘the inner truth of gender is a fabrication’.⁸⁷ The initiator of a five-day course on drag art as part of a summer school for Scottish teenagers seems to have Butler’s theory in mind when she asserts confidently that ‘gender is a performance’. According to a report in The Guardian, the course includes a session on ‘creating a persona’.⁸⁸

Lonergan’s small but significant book is called Theatre and Social Media. In it he argues that the space produced by ‘[s]ocial media is not just a performance space, it is also a theatrical space’;⁸⁹ and that social media and traditional theatre both provide ‘a space in which fictions can reveal truths, a space in which individuals can find their ‘real self’ by pretending to be someone they’re not’.⁹⁰ ‘Pretending’ is the right word, for although we often associate the word with deceit, its etymological meaning carries a morally neutral sense of putting something forward. Thus ‘pretenders’ to the royal crown were so called because they put forward a claim, not because their claim was necessarily false. When Richard Schechner writes that a ‘great difference between human and non-human performance is the ability of humans to lie and pretend’, and that people can choose ‘to wear masks, or to go bare-faced’, the running together of pretending and lying is unfortunate.⁹¹ In our social interactions, as in theatrical action, pretending is the action of putting the mask forward for the audience to see. In doing so, the ‘pretender’ might be saying sincerely that the projected mask or performance presents the real me.

Bram Stoker – most famous as the author of Dracula – noticed something like this process at work in the thespian craft of Henry Irving, the celebrated nineteenth-century actor for whom Stoker worked as manager. Irving’s process of refining a stage role was summarized by Stoker as one that involved ‘passing a character through one’s own mind’ so as to produce a new theatrical artefact:

When it has gone through this process it takes a place as an actual thing – a sort of clothing of the player’s own identity with the attributes of another … The individuality within, being of plastic nature, adapts itself by degrees to its surroundings.⁹²

We are all of us forever refining and reworking our public persona by ‘passing a character through one’s own mind’, and the plastic self ‘within’ becomes in time of one substance with the mask we make to fit our social space.

Of ‘Blackface’ and ‘Black Fishing’

The tension between nature and art produces fascinating and difficult questions in the contemporary realm of identity politics. One of the most interesting and controversial contexts is the phenomenon by which people represent themselves with the physical face or social persona of a racial ethnicity with which they have no background connection in terms either of biology or upbringing. Theatrical and recreational use of ‘blackface’ (whereby a non-Black person blacks up their face with make-up) was once quite commonplace, but nowadays elicits a strongly negative social response. The strength of modern reactions to this cosmetic activity is a testament to the preeminent place of the face in social life. Blackface is akin to stealing another person’s social persona. It steals the show in a fundamental sense because the face is the stage front of an individual’s social performance, and the face, as we have seen, has great depth despite its seeming superficiality. As with the mask that represents a deeper truth, skin colour as the superfice of race is never superficial. Skin is deep.

The theatrical or costumed performance of blackface is usually crudely obvious. A more subtle and insidious iteration of the phenomenon of cultural appropriation occurs when non-Black individuals pretend to be Black. An opinion piece in the Los Angeles Times discusses the phenomenon under the headline ‘What’s Going on with All the White Scholars Who Try to Pass as Black?’.⁹³ The phenomenon isn’t restricted to scholars, but the university setting is a uniquely intense cauldron of identity politics in which, in the USA especially, some employment opportunities are strongly correlated to race. It is also the case that many university scholars have a set of skills ideally suited to crafting and performing a new social mask, while also having the power to influence the shape of the academic culture that determines the terms on which such masks are read and received. Erin Aubry Kaplan, the author of the Los Angeles Times opinion piece, calls the phenomenon ‘passe noir’ (others have called it ‘blackfishing’).⁹⁴ She cites a number of instances, including the case of Jessica Krug, a white woman from suburban Kansas City, who was appointed to a tenured post in Black studies at George Washington University under an assumed Black identity, and Rachel Dolezal, a white woman who passed herself off as Black and taught for a number of years in the Africana Education programme at Eastern Washington University. Dolezal was also for a brief period the president of a local chapter of the National Association for the Advancement of Colored People.

Dolezal and Krug, like many of the most infamous pretenders, held posts which would otherwise almost certainly have gone to a person of colour. That factor makes their behaviour deeply hypocritical and unfair. In cases lacking such factors, the tangible harm caused to others might not be so great, but there would still be at least two problems. The first is the pretender’s lack of candour. Dolezal and Krug were decades into their deception before their cover was blown; neither was upfront about being a white person identifying as Black. The second is the problem of cultural appropriation. The first factor feeds into the second, for without candour, appropriation cannot be licenced by the group whose identity is being appropriated; and dishonest, unlicenced appropriation is akin to theft. Kaplan summarizes these concerns by means of a theatrical analogy:

The most charitable reading of their passe noir is still a troubling irony: sincerely intentioned, empathetic white people felt they could only serve Black consciousness by going undercover, slipping on a Black identity like a costume rather than treating it like a set of distinct, and distinctly American, life experiences that need to be probed, not performed.⁹⁵

If we were to extend the charitable reading further, we might perhaps acknowledge that pretenders of this sort may be trapped in their own make-believe like undercover cops or method actors who can no longer discern where their ‘true’ character ends and their performed persona begins. (The quotation marks indicate that we cannot talk of ‘true’ character as a concept unaffected by social influence.) Whether the psychological effect of being trapped in their own performance was present in the cases of Dolezal and Krug and, if it was, whether it ought to mitigate their offences, I cannot say. Using language that expressly acknowledged the fabricating nature of impersonation, Krug issued an online confessional in which she presented herself as someone whose ‘false identity was crafted entirely from the fabric of Black lives’.⁹⁶ She attributed this behaviour to a longstanding psychological habit of seeking security in new identities, saying that ‘[w]hen I was a teenager fleeing trauma, I could just run away to a new place and become a new person’, but that she now finds ‘I have no identity outside of this. I have never developed one … I have built only this life.’⁹⁷

The cautionary tale here is that our crafted mask can become a true performance of who we are, but that social spectators – who are indispensable co-Producers of any mask deserving the description ‘social’ – are entitled to reject the product if they were never in on the act. Related to this is another note of caution, which is that we can slip over from the willing performance of a social mask into a situation in which our agency is overborne to such an extent that the mask performs us. This is another example of the phenomenon of Artefaction – the made thing as making thing – as explained in Part I. The ‘mask that becomes fixed’ is a long-running cautionary tale in cultures the world over, including cinematic depictions from Japanese horror (Onibaba, dir. Kaneto Shindô, 1964) to the Hollywood comic book genre (The Mask, dir. Charles Russell, 1994). A recent film in the latter category is Todd Phillips’ Joker (2019). Following the success of that film, and adopting one of its taglines, a 2020 documentary focusing on the eponymous comic book antihero was fittingly titled Joker: Put on a Happy Face. The main cinematic trailer for the 2019 film presented a short study of several modes of face-making, including the application of a clown’s ‘greasepaint’ and wearing a plastic clown mask. There is even a brief scene in which the protagonist performs a face-changing mime to amuse a child. This may have been a nod to ‘The Mask Maker’ sequence by celebrated mime artist Marcel Marceau in which he repeatedly removes his hands from in front of his face to reveal a series of contrasting facial contortions. Marceau’s masker makes masks to please and amuse his social audience until, ultimately, he is left with a fixed mask that he can no longer alter or remove. The lesson is clear – through social processes of mask-making we make up our faces to make friends, but, as Dolezal and Krug found to their cost, it is sometimes when we make it that we lose sight of who we should be.