Imagining Legality: Where Law Meets Popular Culture

By Austin Sarat, Desmond Manderson, Montré D. Carodine and 8 more

Imagining Legality: Where Law Meets Popular Culture is collection of essays on the relationship between law and popular culture that posits, in addition to the concepts of law in the books and law in action, a third concept of law in the image—that is, of law as it is perceived by the public through the lens of public media.

Imagining Legality argues that images of law suggested by television and film are as numerous as they are various, and that they give rise to a potent and pervasive imaginative life of the law. The media’s projections of the legal system remind us not only of the way law lives in our imagination but also of the contingencies of our own legal and social arrangements.

Contributors to Imagining Legality are less interested in the accuracy of the portrayals of law in film and television than in exploring the conditions of law’s representation, circulation, and consumption in those media. In the same way that legal scholars have taken on the disciplinary perspectives of history, economics, sociology, anthropology, and psychology in relation to the law, these writers bring historical, sociological, and cultural analysis, as well as legal theory, to aid in the understanding of law and popular culture.

• Language: English
• Publisher: University Alabama Press
• Release date: Sep 12, 2011
• ISBN: 9780817385712

Book preview

Legality

What Popular Culture Does For, and To, Law

An Introduction

Austin Sarat

The proliferation of images of law and legal processes on television and in film is a phenomenon of enormous significance.¹ Mass-mediated images are as powerful, pervasive, and important as are other early twenty-first-century social forces—for example, globalization, neocolonialism, and human rights—in shaping and transforming legal life. While we know relatively little about how images of law on television and in film are consumed by their viewers or about the impact of viewing those images of popular expectations about, and attitudes toward, law,² we do know that popular culture has invaded law and reshaped some of its most fundamental processes.³ As Richard Sherwin puts it, Legal meanings are flattening out as they yield to the compelling visual logic of film and TV images and the market forces that fuel their production. In consequence, the customary balance among disparate forms of knowledge, discourse, and power is under great strain, and is at risk of breaking down.⁴

Lawyers and legal officials increasingly rely on techniques of persuasion drawn from visual media, contributing to a proliferation of cinematic and televisual styles of storytelling in the courtroom.⁵ And, as Philip Meyer notes, there is a new storytelling style in law that is remarkably influenced by the conventions of popular imagistic storytelling.⁶

At the same time, television and film draw on law for their aesthetic, narrative form, and way of positioning their viewers. Anglo-American movies are . . . trial-like to begin with,⁷ writes Carol Clover. Clover argues that films are trial-like in that [t]he plot structures and narrative procedures . . . shape even plots that never steps into a courtroom; and that such trial-derived forms constitute the most distinctive share of Anglo-American entertainment.⁸ The connection between the narrative conventions of the mass media and law has been highlighted recently by David Black.⁹ Black calls our attention to what he sees as the narrative overdetermination of the film/law relationship.¹⁰ "The [real] courtroom was already an arena or theater of narrative construction and consumption and so was the movie theater. The representation of court proceedings in film, therefore, brought about a doubling up, or thickening of, narrative space and functionality.¹¹ Black’s study of law in film reveals that films about law are stories about the process of storytelling, or narratives about narrative.¹² When we turn to law in film, special attention, Black suggests, must be paid to their narrative connections and disconnections, as the challenge of law/film scholarship is to chart law and film as narrative regimes ‘in parallel.’"¹³

Clifford Geertz’s description of law as a distinctive manner of imagining the real provides a touchstone for the exploration of the imaginative life of the law and the way law lives in our imagination.¹⁴ Our gaze, Geertz observed, focuses on meaning, on the ways . . . (people) make sense of what they do—practically, morally, expressively, . . . juridically—by setting it within larger frames of signification, and how they keep those larger frames in place or try to, by organizing what they do in terms of them.¹⁵ One way to get a handle on these larger frames of signification is to focus on the production, interpretation, consumption, and circulation of legal meaning in popular culture. Imagining Legality: Where Law Meets Popular Culture seeks to aid that effort.

This book examines the moving image as a domain in which legal power operates independently of law’s formal institutions. It seeks to make sense of what happens when mass-mediated images of law saturate our culture. As Samuel Weber observes, the ‘world’ itself has become a ‘picture’ whose ultimate function is to establish and confirm the centrality of man as the being capable of depiction.¹⁶ In this age of the world as picture, the proliferation of law in film and on television has altered and expanded the sphere of legal life itself. Where else, Sherwin asks, can one go but the screen? It is where people look these days for reality . . . Turning our attention to the recurring images and scenarios that millions of people see daily projected on TV and silver screens across the nation . . . is no idle diversion.¹⁷

The moving image, whether seen in one’s living room or the neighborhood movie theater, also reminds us of the contingencies of our legal and social arrangements. It always casts what the literary critic Saul Morson calls a sideshadow on realities outside itself,¹⁸ realities with which legal scholars, like the people we study, may have grown quite comfortable.¹⁹ Moving images of law are not just mirrors in which we see legal and social realities reflected in some more or less distorted way.²⁰ Instead, they always project alternative realities which are made different by their invention or the editing and framing on which the moving image depends. Seeing images on the screen or on television, no matter what their subject matter, is a reminder that:

alternatives always abound, and, more often than not, what exists need not have existed. . . . Instead of casting a foreshadow from the future, [they cast] a shadow ‘from the side,’ that is from other possibilities . . . Sideshadows conjure [a] ghostly presence . . . [in which] the actual [what we know of the world] and the possible [what film shows of that or other worlds] are made simultaneously visible. . . . A present moment subject to sideshadowing ceases to be Ptolemaic, the unchallenged center of things. It moves instead into a Copernican universe: as there are many planets, so there are many potential presents for each one actualized.²¹

This is not to argue that viewers always escape the pull of realism that television and film generally seek to convey.²² Nonetheless, the moving image attunes us to the might-have-beens that have shaped our worlds and the might-bes against which those worlds can be judged and toward which they might be pointed. Like Morson’s notion of sideshadowing, Anthony Chase calls on scholars to construct what he calls a cinematic jurisprudence—a way of looking at law through the lens of the cinema that projects an alternative view of legality, one every bit as likely to undermine ruling ideas about fairness and formal legal equality as to reinforce them.²³

Chase notes that film’s modes of visualization are constantly transforming the way we see the law, and he claims that no technical apparatus can do more to unblindfold justice than the movie camera.²⁴ His optimism about film’s sideshadowing suggests that the visualization of justice cannot indefinitely be cordoned off from the sociology of law, from popular discussion of how well legal institutions work, and from the strategies and practices of professionals who operate a system being transformed right before their eyes.²⁵ Today we may be witnessing a movement from law on the books to law in action to law in the image.²⁶

Studying Law on Television and in Film

Scholars have only recently begun to examine how law works in this new arena and to explore the consequences of the representation of law in the moving image.²⁷ Two decades ago, Stewart Macaulay urged that attention be paid to what he called images of law in everyday life.²⁸ Because people learn important lessons about law from a variety of sources, none more important than film [and] television, he called on legal scholars to become participant observers of . . . mass cultures.²⁹ Macaulay drew attention to what some might dismiss as low or popular culture,³⁰ and, in this way, Macaulay helped to decanonize the traditional subjects of legal scholarship.

At the same time, the mission Macaulay charted for legal scholars of television and film was rather traditional: to provide a form of corrective criticism.³¹ According to Macaulay, scholars should police images presented on television and in movies, identifying those that, when weighed against what we know about the law in action, would seem oversimplified, garbled, conflicting, or misleading.³²

Writing at about the same time, Lawrence Friedman, like Macaulay, tried to open up the moving image as a subject for legal research. Friedman noted that the study of popular legal culture is a relatively new field of inquiry³³ and observed that television and movies would shrivel up and die without cops, detectives, crimes, judges, prisons, guns, and trials.³⁴ While insisting that "[p]opular culture, and popular legal culture, in the first sense, are (like the sociology of law itself ) of fundamental importance in constructing social theories of law . . . theories of law whose premises deny, altogether or in large part, any notion of legal autonomy,³⁵ Friedman, like Macaulay, worried that the products of popular culture are wildly off-key with respect to those parts of the legal system that they deal with obsessively."³⁶

Before Macaulay and Friedman, however, Stuart Hall and his colleagues at the Centre for Contemporary Cultural Studies at the University of Birmingham had already provided a remarkable study of the social life of law’s images, showing in Policing the Crisis how images of crime, in general, and mugging, in particular, came to Great Britain from the United States and were disseminated in the mass media.³⁷ Hall’s work analyzed the role of those images in the construction of a political crisis that articulated, even as it displaced, discontents that Hall traced to stresses in the reproduction of capitalism.³⁸ More recently, Alison Young has shown how feminism, psychoanalysis, critical criminology, and film theory can be used to explore law as it appears and reappears in the cinematic text.³⁹ Young asked us to consider not just the representation of law in film, but ‘how cinema is jurisprudence,’⁴⁰ how law exists both in, as well as outside of, the image.

Hall and Young provide but two examples of the theoretically rich and sophisticated possibilities that await scholars who study law on television and in film.⁴¹ Jessica Silbey summarizes the usual paths of such scholarship, focusing in particular on two ways of studying law and film. Doing law and film, she says, generally proceeds in one of two ways.

There is the law-in-film approach, which is primarily concerned with the ways in which law and legal processes are represented in film. The law-in-film approach considers film as a jurisprudential text by asking how law should or should not regulate and order our worlds by critiquing the way it does so in the film. There is also a film-as-law approach, which asks how films about law constitute a legal culture beyond the film. This approach pays special attention to film’s unique qualities as a medium and asks how its particular ways of world-making shape our expectations of law and justice in our world. Writings in the film-as-law vein explore the rhetorical power of film to affect popular legal consciousness. They also may look closely at film’s capacity to persuade us of a particular view of the world, to convince us that certain people are good or bad, or guilty or innocent, by positioning the film audience as the judge or jury. This film-as-law scholarship explains how viewers are actively positioned by film to identify with certain points of view; to see some groups of people as trustworthy, dangerous, disgusting, laughable; to experience some kinds of violence as normal; to see some lives as lightly expendable. In this latter approach, film and law are compared as epistemological systems, formidable social practices that, when combined, are exceptionally effective in defining what we think we know, what we believe we should expect, and what we dare hope for in a society that promises ordered liberty.

Notwithstanding the efforts that Silbey discusses, and the substantial and parallel literature on law on television, analysis of what happens when law meets popular culture remains relatively marginal among legal scholars.⁴² Moreover, cultural studies, despite its deep investment in the examination of social forms and social relations,⁴³ has not been taken on in the same way that interdisciplinary legal scholars have taken on the disciplinary and analytic perspectives of sociology, anthropology, psychology, feminism, and increasingly of queer theory.⁴⁴ Scholarship on law on television and in film could, of course, be oriented toward assessing the impact of law on these media, attending, for example, to questions of legal regulation in the domains of intellectual property or copyright.⁴⁵ But the field still is rightly oriented toward inquiry about what popular culture does for (and to) law.⁴⁶

Overview

This book seeks to contribute to scholarship on law and popular culture by broadening the focus of such work beyond studies of how particular legal actors—for example, lawyers and judges—are portrayed on television and in film. It highlights two crucial areas/problems at the juncture of law and popular culture. The first involves treating popular culture as itself a kind of legal text. Here we are interested in the ways television and film portrayals of law speak to, and provoke, particular anxieties about law and desires for particular kinds of legality. The work collected here reminds us of the richness of the mass-mediated image in its layered meanings and its complex social life.

The second problem at the juncture of law and popular culture is the question of whether and how law on television and in film reformulates subjectivity itself. The works included in this book "provide a way of connecting the account of textual forms with an exploration of intersections among . . . (viewers’) subjectivities."⁴⁷ As Richard Johnson reminds us, All cultural products are ‘read’ by persons other than professional analysts . . . , but we cannot predict these uses from our own analysis . . . As anyone knows, all our communications are liable to return to us in unrecognizable or at least transformed terms.⁴⁸ Do mass-mediated images of law open up new possibilities for understanding will, action, and responsibility? Here the "problem is how to grasp the more concrete and more private moments of cultural circulation."⁴⁹

Imagining Legality: Where Law Meets Popular Culture is the product of an integrated series of symposia at the School of Law at The University of Alabama. These symposia bring leading scholars into colloquy with faculty at the law school on subjects at the cutting edge of interdisciplinary inquiry in law. That colloquy is represented here in the commentaries that accompany each chapter.

Imagining Legality: Where Law Meets Popular Culture begins with a chapter that provides a broad overview of the relationship of law and popular culture. In contrast to the commonly held perception that popular culture is the embodiment of modernity and progress, Desmond Manderson argues that "popular culture has adopted traditional forms . . . to preserve against new technologies . . . which have been seen as elitist, expensive, and the unwelcome agents at times of radical social change. When considered in the context of the prevalence of legal imagery and narratives in visual media, the resistance provided by popular culture becomes dramatically relevant to the legal community. Popular culture emerges . . . as a powerful conservative force with its own concepts of law and justice, its own practices, and its own memories. It is, Manderson claims, a source of law, a record and memory of subterranean practices that have not lost their power to constitute legal actions and ideas. The narratives generated by law’s screen life represent a site of resistance to formal law, and the effort to preserve or to resuscitate an alternate reality."

Manderson argues that from a pluralist standpoint, popular culture’s ability to echo and express alternative visions of legality is not anachronistic, it continues to contribute to legal ideology and to legal change. Manderson suggests that viewers generate this plurality. Driven by their own anxieties about the modern state, they seek alternative visions in the visual representations of law in popular culture.

Manderson focuses on the advent of the fearful climate that dominated American society post-9/11 and the widely popular television program 24. He calls it a modern western, driven by a lone figure of justice acting out brutal violence without the authority of the state, in order to establish—or more specifically, reestablish the potency of—the violence of the state. The visually substantiated narrative of 24 is based on the assumptions that the political climate after 9/11 was defined by exceptionalism, efficacy, and urgency. The show suggests that these extraordinary circumstances called for extraordinary responses, including the use of torture. This narrative offers a popular alternative to anxieties about the state’s ability to deal effectively with terrorism, and Manderson implies that the show’s popularity in turn may have influenced the aggressive counter-terror tactics of the Bush administration.

Manderson argues that the show’s embodiment and support of what he calls trust me logic has a deleterious effect on law by putting a premium on individual responsibility over institutional accountability. He explains that accountability is an external structure of justification, predictable and limited, while responsibility is an internal recognition of obligation, unpredictable and unlimited. Western heroes, and the state actors that mimic their philosophies, seek to establish a relationship with the public characterized by responsibility but not accountability. They claim moral authority, while seeking to sidestep legal restraints.

24 frames law against questions of singularity that appeal to a longstanding tradition of vigilante justice evident in familiar archetypes of cowboys and superheroes. Such a tradition reaches back to much older Christological models of justice and subjectivity that modernism has deflected but never defeated. In 24, and elsewhere, popular culture does not merely keep these memories of law alive: it actively realizes and advances them, and needs to be understood not only as a depiction of law but as a law-making force in its own right. One might, Manderson suggests, even characterize popular culture as a defense of some sort of moral legality against the market legality of modernity.

Because of their compelling presentation in a popular format, the assumptions upon which the narrative of 24 is based, Manderson notes, become exceptionally hard to notice, question, or abandon. The appeal to trust is not an argument or a reason, but an end to arguments and reasons; a ‘why-stopper.’ It reinforces an image of justice as singular, isolated, instinctive and non-negotiable. When citizens are asked to trust without examining or questioning the state, they are unseated from their active role as citizen-viewers, and recast as passive consumers.

Manderson suggests that 24 is an interesting case in which popular culture embodies values contrary to its own pluralizing tradition. While popular culture has for centuries reflected an older form of law and justice, its capacity to undermine the very pluralist and discursive openness which are its well-spring demonstrates the dangers to which the rhetoric of urgency and the emotional power of medium and message are prone. In a world shorn of its faith in the traditional structures that sustained the moral economy and the moral legality, the appeal to simply trust in an inarticulable justice sustained by an emotional pitch which is in 24 at every moment apparent, opens, Manderson claims, the prospect of legal terrorism.

Yet as Manderson suggests, popular culture is neither static nor univocal. Ironically, popular culture might be . . . making good on its promise of resistance and counterpoint, by resisting itself. Although 24 is undeniably an insistent voice in the public discourse, it is not the only voice, and its influence may be dependent on the continuation of post-9/11 anxiety, which is, in the bigger picture, an impermanent popular mind-set.

Mezey’s chapter takes up Manderson’s interest in charting the way public anxieties get played out, and played upon, at the juncture of law and popular culture. Mezey conceives of a citizen-viewer drawn to visual translations of legal narratives by suspicion of instability within the state. Unlike Manderson, Mezey suggests that the relationship between law and the screen strengthens rather than undermines the law, because the translation of law to popular visual media encourages a public discourse that generates law’s afterlife.

Drawing on Walter Benjamin’s essay The Task of the Translator, Mezey notes that Benjamin argues that translations enable a work’s afterlife. Afterlife is not what happens after death but what allows a work (or event or idea) to go on living and to evolve over time and place and iteration. In its afterlife, the original is transformed and renewed.

In her chapter Mezey explores film and television’s visual translation of law and the role both play in law’s afterlife. The mass media translate law not by translating from one language to another, but by translating between media and discourses. The cultural-critical lens of translation highlights the discursive similarities and dissonances between law, television, and film. It allows us to see the legal in the aesthetic and the aesthetic in the legal, and it gives us new purchase on thinking about the ways that word, image, power, and justice operate in and through different media.

Mezey argues that it is the law’s particular relationship to violence that drives the ubiquitous translation of law into popular visual media. The public nurses a primal anxiety about the violence required for the founding and the perpetuation of the state, so viewers perpetually turn to filmic renditions of legal narratives for clarification of the ambiguities that many theorists—Mezey points to Hobbes, Austin, and Hart—attempt to rationalize or cover up.

Mezey holds that two visual genres, the western and science fiction, are especially suited to offering the public translations of the tensions between violence and legitimate authority that lurk at the foundations of the state.

She focuses on the HBO television show Deadwood to illustrate how westerns illuminate the ugliness and brutality of the violence that is deployed to establish a state, and the movie Serenity to show how the science fiction–western genre interprets either the state’s abuse of its monopoly on violence, or the deterioration of that monopoly that leads to social regression to private acts of violence. Like 24, science fiction films and westerns both depend on an archetypal hero, who is a force of law and justice operating apart from, or before, the established legal order of the state.

The narratives of the western, Mezey claims, tend to be progressive yet nostalgic; they are stories about the coming of civilization and the largely successful efforts of the state to reign in excessive private violence by exercising a monopoly on violence. But they are nostalgic for the kind of men—moral individualists—who were the precursors to the state but whose existence is incompatible with state power. The narratives of science fiction are more often dystopic and its stories about law and violence come in two versions. In one version, science fiction portrays the state as perfecting its monopoly on violence to the point of abuse. The state itself becomes the perpetrator of excessive violence. Another version of the science fiction genre narrates the future breakdown of the state, the dissolution of its monopoly on force and the return to private violence. These two film genres in particular often translate the legal anxiety over the state’s unstable relationship to violence in such a way as to give visual life to its instability, an instability that is both suppressed in and central to legal discourse.

In westerns and in science fiction the viewer, alongside the hero, is put at the borderlands of society and in a tenuous extralegal position. Being situated in this liminal space, Mezey notes, also allows the viewer to consider the actions and principles of their legal institutions. In this way, viewers become civic actors in the Toquevillian sense, as they are transformed by the discourse into jurors in the trial of their own legal system.

Manderson and Mezey both see audiences driven by anxiety as at the root of the proliferation of legal imagery in popular culture. Moreover, both think that law on television and in film alters the subjectivities of viewers, allowing them to metamorphose, for better or for worse, into viewer-citizens as they literally or figuratively try on the mask of the juror. Both authors suggest that exposure to images of legal narratives awakens the might of the slumbering multitude . . . which makes the state’s power and legitimacy so fragile. But ultimately, Mezey recasts the might of translating law into popular culture as a remedy for law’s fragility through the production of its afterlife.

The next chapter, by Richard K. Sherwin, examines what he believes is a symbiotic relationship between law and the visual media. This relationship exists, Sherwin notes, because film and television are desire machines regulated by familiar symbols of authority. Dramatic narratives of the courtroom lend themselves to the dramatic form of television and cinema. Media executives recognize that legal narratives—so bound up in violent or illicit imagery, and their accompanying rituals of prohibition and punishment—tap into the public’s divided, subconscious attachments to law. Conflict is stimulating, and viewers are drawn in droves, almost in spite of themselves, to engage these legal dramas.

Sherwin argues that visual media offer their viewers a chance to confront the instability and insecurity of their own desires. These moments of recognition prompt the public to grope for the categorical imperative of law which guarantees the order of the future . . . and no less unshakable order of the individual conscience. However, Sherwin suggests that the law upon which the public hopes to found its need for certainty is not up to the task of providing it. Sherwin suggests that this is the danger of law’s screen life—that the law becomes mired in the logic of the visual media, and the instant gratification of popular entertainment displaces more deliberate forms of judgment.

Law merges with visual media when lawyers try to make their arguments more compelling by presenting photographic evidence, or even projecting a visual form of their argument on a screen. Sherwin’s chapter describes three discrete but interrelated forms of law’s screen life and shows how they play out both in actual cases and in mainstream visual culture. These forms reflect: (1) law’s assimilation from the visual mass media of familiar cognitive and cultural templates, including character types and story forms that tell viewers how the world works and the way people may be expected to behave in a given set of circumstances; (2) law’s exploitation of the viewer’s sense of visual delight on the basis of which vivid images and dynamic image flow draw and hold attention, stick in memory, and authorize belief; and (3) law’s emulation of the visual mass media’s logic of desire that simultaneously stokes forbidden fantasies while providing moral cover in the form of a predatory Other onto whom the viewer may displace (and thus disown) guilty