Witnessing, of course, is not just perception; it is how we share that perception with others and what happens next.

As Lipton demonstrates, the medieval townspeople who gathered together to put on the York Mystery Plays each year certainly thought so. Mystery Plays were a peculiar medieval spectacle, an annual event in which townspeople staged the stories of the crucifixion in a multi-day pageant across the public squares of the city. The urban setting is crucial to Lipton’s argument; York was an economic, political, and legal hub of medieval England, and its rivalry with London meant that its plays were intensely and proudly local. The pageant route mapped biblical locations onto urban spaces, gathering local inhabitants to both watch and participate. As Martin Stevens put it, “The place is York. And yet the spectators recognize they are really in Jerusalem.” Because these plays revolve around the trials and execution of Christ, and because the public was producer, actor, director, and audience, they were uniquely positioned to inculcate the core legal values of the town. One of these values, Lipton convincingly shows, was a communal form of witnessing in which testimony, the emotions that govern it, even perception itself, were social acts in service of the larger community. These dramatic productions that staged the crimes against Christ, she argues, modeled for their participants what it should mean to perceive and testify to the wrongdoing of others.

Lipton’s book revolves tightly around these texts and York itself, but covers a remarkable amount of theoretical ground. Rather than allowing her argument to get tangled in the weeds of influence – did these plays influence the law? what influence did statutes have on the plays? – she draws her concept of witnessing from the plays themselves, which are “informed as much by the popular reputation of witnessing expressed in confessional manuals, sermons, and conduct books as they are by specific legal texts and procedures.” In this way she is able to focus on witnessing as medieval people might have understood it: as a general practice that found use in the law, religion, and drama but was not exclusive to any of them. She begins with the spatial effects of witnessing, and demonstrates that “neighborhoods” both human and geographical are created by the act of shared witnessing. Then she turns to testimony, arguing that medieval legal theory recognized that testimony was mediated through affect, and that this affect was both performative and social. From this, she develops a theory of “legal affect,” drawn from Sara Ahmed’s influential assertion that emotions are not individual states, but social and cultural practices. In the context of legal witnessing, affect is “poised between the social and the individual,” Lipton writes, because it speaks to the experience one has as an individual and as a member of a community. She concludes by reflecting on the fact that testimony is always delayed from witnessing, showing how in this way it is much like writing history. She argues that the York plays, by allowing the community to reflect on its own history, also offered an opportunity to change course, to make real cultural shifts.

The key principle throughout the book is that witnessing is a social practice, and it is the strongest and most enduring part of Lipton’s argument. As I read, I found myself thinking of our modern practice of witnessing through video, and the large but extremely diffuse community of witnesses the practice creates. Does the process of viewing Darnella’s video, for example, put us in community with the others who have seen it? The mass action that followed – and the jury’s conviction of Derek Chauvin – seem to suggest that it did that for some. The video of George Floyd’s murder has sparked its own conversation about the ethics of witnessing black death in America, which has a horrific history in lynching picnics and postcards. Much of the discussion revolved around the performative – in the sense of merely performative – nature of viewing and sharing the video. As Melanye Price has asked, “What is the efficacy of rampant sharing? These images have not resulted in substantial changes to police culture or policy.” As many have pointed out, the nature of social media makes it likely one will encounter what is essentially a snuff film without consenting to see it.

But whatever stock we claim to put in the infallibility of video recordings and the opportunity to “see for ourselves,” there were many who saw the video and did not believe it (any comment section of the video will attest to this; I will not link them here). This phenomenon might help sharpen the limits of Lipton’s argument that witnessing creates community. She quotes Richard Moran, the philosopher of language, on the social foundation of testimony: “One person tells the other person something, and the other person believes him…it is the speaker who is believed, and the belief in the proposition asserted follows from this.” Witnessing alongside Darnella might create community, but those who already do not feel her to be in their community are unlikely to witness with her, and therefore in an almost literal sense cannot see what she sees. Lipton’s book helped me see that the mass consumption of videos of police violence has in some ways returned us to a practice of communal legal witnessing, but also that we are far less prepared for that responsibility than a society practiced in its art.

Witnessing, especially mass witnessing, was the foundation of the medieval justice system. Most policing was devolved to ordinary people, a procedure that was regulated largely by involving as many people as possible. Anyone who came upon a crime was legally obligated to “raise the hue and cry,” which literally meant to go into the street and shout until everyone in earshot came running and apprehended the culprit. It was the job of the community to alert the local authorities and deliver anyone they had caught. In the case of a murder, the coroner would interview the neighbors and the person who found the body, and all men over fourteen from the four surrounding villages would be obliged to attend the inquest. If no individual brought forward a suit (an expensive process available to few), a jury of twelve local men of good standing would present the charge to a justice, who would then ask another twelve men to produce a verdict.

The logic behind this crowdsourcing was that any investigation conducted under the witness of so many people was less vulnerable to the dangers of secrecy, like corruption, self-dealing, and falsification. A late medieval poem entitled “Mum and the Sothsegger,” or “Silence and the Truth-sayer,” pretends to weigh the relative merits of keeping mum and speaking the truth in the tradition of medieval debate poems. But “Mum” comes out considerably worse for wear in the context of a legal system that required constant speech; the poem is basically propaganda for the virtues of speech and the evils of silence. This culture of publicity had severe drawbacks more visible from our modern vantage point; privacy was non-existent, strangers were automatically suspect, and reputation was the most powerful currency a person could have (or lose). And perhaps the mass availability of any sight and any sound in our current moment might temper the argument that all wrongdoing needs is a bit of sunlight. But Lipton’s study of the plays shows that everyone understood exposure was not sufficient, it had to be received in the right way. The community gathered to watch Christ die should not be indifferent to the experience, they should respond with anger and grief and a sense of righteous responsibility. In other words, they should react as witnesses.

Medieval treatises were aware that testimony could be tainted by personal position, but Lipton shows that they drew a distinction between emotional testimony and emotional motivation, arguing that “the words of the speaker were assessed primarily in terms of their intentions.” Gratian’s Decretum, the primary text of church law, warned that one must guard against testimony motivated “by hostile hatred or enmities” (cel hostile odio vel inimicitiis). As Lipton demonstrates, this did not mean an emotionless witness; affect in both witnessing and testimony was an essential part of its communal nature. These lessons again brought me back to one of the most striking arguments of the Derek Chauvin trial: defense counsel Eric Nelson’s persistent attempts to portray the witnesses to the murder as “angry.” His logic was that this would discredit their testimony and bolster his larger argument that the crowd had been a threat to the police.

There is of course a long post-medieval history of discrediting “emotional” testimony, especially from people of color and women. But contrasting this modern imperative for emotionless speech with the essentially communal nature of witnessing can help us decode some of the witnesses’ attempts to answer this line of questioning. Donald Williams astutely rejected the discrediting portion: “You can’t paint me out as angry.” But he also attempted to articulate the duty he felt, like Darnella, to conduct himself as a good witness: “I was in a position where I had to be controlled. Controlled professionalism. I wasn’t angry.” Williams’ career wasn’t relevant here; the control and professionalism he strove to practice were in modulating his emotions – whatever they were – in service of good witnessing and now, good testimony. Genevieve Hansen was more direct. Nelson’s line of argument assumed that this question was a personal one; “Were you angry?” She turns it back on him: “I don’t know if you’ve seen anyone be killed, but it’s upsetting.” Rather than denying the emotion, she reframes it as integral to perception; if you had seen what I saw, you too would be here with me in this emotion.

One primary cleavage between our time and theirs that Lipton makes clear is that medieval witnessing – communal, affective, active – was integrated into the legal system. Witnessing, she argues, was the source of authority for both trial by ordeal, the older method of proof, and trial by jury, a late medieval innovation. The premise of the ordeal was that God knew if someone was guilty or not, so one must find a way to put the question to him. The ordeal accomplished this by putting the accused through a physical test where some outcome could be seen on the body, like having the accused walk over hot coals or put their hand in hot oil. The priest would wrap the wound and inspect it a few days later. If it healed sufficiently, the accused was innocent. But of course, the answer depended on the witness; God might have given the sign, but someone had to interpret it. The priest not only witnessed and testified to the wound, he staged the trial as a performance for the audience an ordeal would draw. Rebecca Coleman has argued that ordeals intentionally lacked guidelines as a way to leave the outcome to “the discretionary power of local communities,” who usually knew what happened or what they wanted to happen.

When the church decided in 1215 that priests should not be involved in such grisly work, courts across Europe needed a new way to determine guilt in tricky cases. English courts, the ancestors of our legal system, turned to the local twelve-man jury, a body that already existed to resolve land disputes. R.H. Helmholz dubbed this moment “a genuine revolution in the law of proof,” a decisive turn away from superstitious divination towards evidence-based justice. But Lipton here agrees with Karl Shoemaker and others that this was not the departure it seems, particularly in the English case. Jurors at the outset were not disinterested arbiters of truth, they investigated the matter by interviewing neighbors and consulting the coroner’s report. Then they were sworn as witnesses themselves and testified, not to their personal perception but to that of the community, in an uncanny embodiment of “the discretionary power of local communities.” Thus the conveyance of the proof procedure from ordeal to jury was less of a revolution than a peaceful transfer of power.

This integration of community witnessing into legal procedure produced surprisingly few convictions; the God of the ordeal was not vengeful, and neither was the jury. Despite the popular (and often wearily debunked) perception that the medieval world was more violent than the modern one, medieval conviction rates had nothing on ours. In 2018, 94.2% of those charged with felonies in the U.S. district courts were convicted. In the fourteenth-century jury trial, that number rarely rose above 20%. Conviction rates for ordeals are harder to estimate, but they seem to have hovered around similar percentages. Part of the elegance of the ordeal as a proof procedure is that its “trials” were physically painful, and therefore served as a kind of punishment in themselves. So was being dragged through the expense of a jury trial, humiliated in front of your community, and perhaps imprisoned before trial, which – given jail conditions – could kill you all by itself. When it was left to their “discretionary power,” local communities seem to have decided that the spectacle, pain, and witness of the community was often enough.

This mass witnessing made possible by videos and social media – and the anger, energy, and overload that it produces – does not yet have a place in our understanding of the law. Plenty has been written about video evidence; how we understand its probative value, how we interpret it, what happens when we fail to interpret. But what about those who watch it – the witnesses? When we experience horror and anger in response to the video of George Floyd’s murder, this is not an interior, individualized experience. It is an expression of community, a connection not only to the man dying in front of us, but to the children who are watching him die, helpless, while helping us to see it. Part of the contract of witnessing is that the community it produces promises to act like one. At its best, Lipton’s careful excavation of the performances of the York Mystery Plays shows us that witnessing can help us act upon the emotions we feel as a result of our communion with one another. If “the performative medium…helped shape the meaning and practice of being a citizen in York,” we can see how it might also shape our civic identity today. In permitting herself to be harmed in the service of a moral obligation, Darnella Frazier was the consummate citizen, entrusting the law and public with a perception of the present and the opportunity to shift the future. How might we live up to this trust?