When you make a comment like ‘I believe in justice’, you wouldn’t generally expect the answer: ‘Then why do you study law?’
At least I didn’t. Nonetheless, it initiated a wave of laughter throughout the room, not the least of which did come from myself. Nowadays, law is often regarded as a tool to achieve a personal goal. Cases before a court are not always about ‘what’s right’ or ‘who acted fairly’, it’s a question of who can use the law to their advantage in a way that swings the outcome of a case in their favour. It can be perceived as a game of which the rules are constantly changing and whoever can use (or work around) the rules best, wins the game.
TV shows and movies about law and justice reinforce this use of the law. Any of my fellow fans of the TV series Suits would, in my opinion, be inclined to agree. We see Harvey Specter constantly throwing around motions and affidavits to use the law to his client’s or firm’s advantage. We identify with these characters, we grow to ‘love’ them and therefore we have the tendency to root for them to achieve the outcome they’re aiming for. Even if it is not necessarily what the law intended. We hope they get out of whatever illegal thing it is they did by watching the lawyers cleverly bend or break the rules.
Programs like Law and Order or Crime Scene Investigation show the other end of this spectrum. They depict enforcers of the law that push the boundaries and sometimes cross them in order to ensure justice is served. However, if we look at this critically, they are using the law to create the justice they think should be served, as opposed to adhering to how and why the law was actually set up.
And then there’s the cases in which we compromise justice, because, as Nick Rice said in Law Abiding Citizen, ‘Some justice is better than no justice at all’. In the movie, two perpetrators are being prosecuted and the one that is seen as the main actor of the crime agrees to testify against the other in order to gain immunity for the crime for himself. The argument is that it is better to ensure that only one of the perpetrators faces the consequences of his actions, than to risk both of them being exonerated. In other words, it’s better to win part of the game, than to risk losing all together.
We tend to accept these forms of playing with the law because when we watch these shows or movies, we believe in the outcome that is being depicted as favourable. But does that affect the way we see the law in real life as well? Is this the way we want the law to work? Or is it just a reality we’ve come to accept, because we simply don’t know any better?
The matter which surprised me the most while reading within this particular line is the level of pessimism descending on the audience in terms of the question how far it is able to distinct between the fiction and reality and how much concerns are raised by the idea of the wide public considering different thoughts on the law, justice and morality.
I agree with the statement that the reflection of law represented to us by media, such as television and internet, necessarily influences the way how we perceive it. And especially laymen are prone to be affected by the distortion of facts and they could for instance partial to their favourite character because of his look. On the other hand, (and here I dare to use Nick Rice’s claim cited by Naomi in quite different meaning) isn’t any consideration about law within the public better than no consideration?
The legitimacy of the law assumes that the primary ideas and intentions come straight from the people, that they are in fact the original source of law. Of course, these considerations will be always affected by subjective preferences and external influences, including art or media. But that is where the existence of the representatives within the legislative power meets its purpose – they aim to give a proper legal frame and required level of objectivity to thoughts arose from the public discussion. I would wish for us to have a stronger belief in the society and its ability to distinct between the reality and fiction, good and wrong, just and unjust. I think we, as lawyers, should not try to withdraw this consideration from the hands of the public. We might have a professional monopoly for the law, but not for the questions about justice and morality.
Naomi,
Your intimation of the unsettling indistinction between fictional and actual performances of law, especially the borderline scene of legal suspension made in the name of ‘justice’, resonates with my practical experiences in a faraway land. That this ‘justice’ is neither denoted by the positive system nor confirmed by a higher law, but instead decided by an individual, is empowering and truly enlivening. But as you critically pointed out, it is also potentially problematic. For this spectral terrorism has its blindness, which is no less dangerous than the automatism of the bureaucratic machinery. You are thus quite right, I think, to express a double suspicion about those formal/economised accounts of law that treat it as an instrument to be mechanistically applied or else exploited to meet one’s ends, and those disillusioned accounts that reject law completely for its limits.
Your difficult question demands a far more reasoned response that I haven’t been able to produce. But for a version of the intermediate position that you seem to be moving towards, you could read part I of Derrida’s ‘Force of Law” (1989) (especially pages 14 & 15 of Drucilla Cornell’s collection). It might be that ‘studying law’ with certain strategies that form part of our critical-theoretical inheritances is another way of ‘playing with law’, which could be more compatible with your impressions of justice. Relatedly, you could turn to page 64 of Agamben’s ‘State of Exception’ (2003), where the Italian philosopher stages a curious scene beyond modern uses of law.
Does watching TV dramas affect the way we see the law in real life? Is there a link between the cinematic experience and the public sentiment that the legal system is flawed? The questions you brought up in your posts made me think of a big “TV event” in Germany about one and a half months ago that led to a lot of discussion. One of the national public-service TV channels broadcasted its film “Terror – Ihr Urteil” (“Terror – Your Verdict”). The film is based on a play by lawyer and writer Ferdinand von Schirach. It is about the court trial of an air force pilot who shot down a commercial aircraft with 164 passengers that had been hijacked by terrorists and was heading towards a football stadium with 70,000 people in it. The pilot has been accused of murder; he had acted against the orders of his superior and without legal permission (a law that allowed shooting down a hijacked aircraft has been declared unconstitutional by the Federal Constitutional Court in 2006 on human rights grounds).
The distinctive feature of this “TV event” was the fact that, after the pleadings, the TV audience could vote on the telephone or online for either a “guilty” or a “not guilty” verdict. The broadcasting corporation had prepared two different endings of the film and, immediately after the vote, aired the one with the verdict chosen by the majority – which was “not guilty” by 86.9 per cent!
The concept of this TV programme and its result led to public discussion and outraged quite a few law professionals. For example, the former minister of the interior would have convicted the pilot because human lives cannot be weighed against each other; the right to life and human dignity is more important. The chief criminal judge of the Federal Court of Justice and a law professor would have acquitted the pilot, but on other grounds than those shown in the film – as for the law, they found the TV drama misleading.
In my opinion, the fact that this discussion emerged indicates that TV films do not have to be pure “escapism”. People were not only talking about the storyline anymore, but about ethical principles, how the law should be, and how it should be applied. The questions raised in the film crossed the line to the real world. From another perspective, this is exactly what the broadcasting corporation had intended in order to achieve high viewing figures. Already while advertising the film, they tried to blur the line between fiction and reality: “The audience does not only decide on the ending of a TV drama, but on the destiny of a human being: guilty or not guilty.” While it is a good thing to bring the general public to discuss law and justice, one should not underestimate the possibility of manipulation. For example, did it play a role for the 86.9 per cent “not guilty” result that one of Germany’s most popular and handsome actors was cast as the defendant? The law provides (procedural and substantive) safeguards to ensure for example equality and foreseeability, which should lead to justice. However, it is questionable how objective law really is. Above all, can judges really apply it that much more objectively than a TV audience?
While I find it (somewhat) troubling that various tv shows and movies tend to glorify the protagonists taking the law into their own hands to commit acts of unrepentant vigilantism, I have a bigger point of concern, which – as you mention in your piece – is the fact that the viewing public can generally empathise, justify, and even cheer for these characters and their unlawful actions. Now, I think its important to appreciate the cinematic experience as what it is (as a source of escapism), where in many instances, what is being portrayed on the screen is something a few steps removed from reality; however, it also cannot be denied that there is a brewing public sentiment that the legal system is indeed flawed, if not broken. From a myriad of issues ranging from death penalty to sentencing guidelines and prosecutorial discretion, there are serious issues that plague our legal system. As a necessary, but often constrained mechanism, our legal system inevitably produces unjust, unequal, perverted outcomes (from time to time). When faced with this disappointing reality, my sincere hope is that most – if not all – of us will not be tempted to follow in the footsteps of our favourite protagonists, but rather, opt for a more civil – and definitely more legal – forms of disobedience.