William MacNeil’s account of ‘Minority Report’ and Law and Economics calls into question the use of preemptive strikes, and draws on questions of lex populi (popular law) and the commitment to pre-empting the law trough prediction. The idea that law can play a role in both addressing and redressing potential legal problems before they occur is presented as a hypothetical, futuristic trepidation to mankind, but is it really so unheard of in current legal discourse?
The idea that an economy has the ability to transform law into an instrument of coercion and the state behind it into an authoritarian security system seems farfetched. After all, isn’t the law one of the strongest tools we have against authoritarian power under human rights, judicial reviews and public enquiries? But what about when the context is changed to a legal system where there are little to no sources of redress?
MacNeil links the themes of precrime to that of the Bush Administration in relation to the threat of the Islamic Middle East before it materialises (irrelevant of evidence) and draws parallels later in the article to pre-emptive strikes against precrime nations which are modelled on a set of assumed and selectively sifted facts. International law and the International system is rife with predictions of threats to the peace and collective security measures. The idea that prediction and lex populi can reduce the law to a status of a security system is hardly farfetched when you look to what the United Nations deems itself to be.
MacNeil argues that those behind such systems have the power to manipulate and even manufacture consensus for such measures in order to promote the PreCogs as fool proof. In the International legal system, PreCogs are known as ‘intelligence agencies’, and the questions as to their durability is protected as state secrets and sovereignty. The willingness to believe in the necessity of the system comes arguably from scaremongering and isolating minority groups with little ability to stand against allegations; how can you prove you are innocent of a crime which has not yet been committed, and when the evidence of the crime is not open information?
In relation to the terrorist listing process, a Canadian Federal Court Judge related the situation of a listed suspected terrorist to that of Josef K in ‘The Trial’, who awakens one morning and for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecific crime. Not only is international law tending to focus on individuals predicted to be capable of committing a crime, it is enabling punishment of them without their knowledge of the crime. MacNeil’s assertion that rights are being displaced seem hardly fictional when put into contexts such as this.
But MacNeil goes further and asks argues that this is for a commodity. Skin deep criticisms of international law would argue such commodities such as oil, or political power, but a more thorough assessment would look to the benefits of an international legal system with inconsistencies. The benefit to the US of such inconsistencies, such as deligitimation of the system may enable states to defer from responsibilities. But for a state that claims to uphold values of Human Rights (and impose those values on the rest of the world), how can they justify removing rights and ignoring law so blatantly?
MacNeil presents how Minority Report demonstrates a world without right, and without the law, because prediction has rendered it irrelevant. The international Legal system, already heavily criticised for its weaknesses, gives us plenty of parallels with the minority report’s destructive future for the rule of law and justice.
I agree with Jess’s comment that there comes transaction costs here, and the question “who decides” has another element to it. We can focus not just who decides the “right” answer to whether there is sufficient risk, which would go perfectly with the economic transaction costs argument. But the further question I think is implicated is “what is this decision based upon”? If we focus on transaction costs it assumes that with targeted killings or preemptive measures for suspected terrorists, we are massively downplaying the implications of such a decision; there is far more at stake than just unfortunately killing the wrong person….But we are also downplaying what has led to such a decision. The whole of law as a possible truth is implicated in this, surely?
All arguments against such regimes ultimately boil down to this; the political elements to those decisions, the authority behind them, the rule of law missing from such decisions. They all question whether law is ever capable of finding such a truth, because if there was an ultimate truth – why would there be so many juxtapositions? The preemptive techniques now being deployed go against the very nature of the rule of law, of innocent until proven guilty, and of human rights – all legal norms held to be fundamental to the working of law as a method for judgment. So what about the idea that the judgment here does not implicate law so much? What if, just as we saw in the final topic, we are witnessing elements of global security that claim law to be invalid in these situations?
I think the discussions of terrorism and international law in relation to The Minority Report (TMR) adds a very interesting dimension to our discussions and is an aspect that I hadn’t picked up on. To add to this perspective, I think this is perhaps one of the issues of a law and economics approach to law or the predictive approach taken in TMR: efficiency or utility is not quite so easily defined. The dilemma exposed in TMR is one that prevents murder occurring and provides its citizens with security and yet this system of surveillance greatly reduces the freedom and privacy of the individual. As MacNeil points out, ‘there are always transaction costs’. Who decides whether safety or freedom is more important and provides the greatest state of felicity? MacNeil reads TMR as a critique of the ‘subject-humanism’ of law that entails human rights. However, neither the law and economics approach nor TMR succeed in preempting human judgment or ‘taking humans out of law’. Human judgement is required to evaluate what ‘bits’ should be put into the calculus and what value they should be accorded. This is a point I think Margaret Davies makes in Asking The Law Question: that a particular approach to law that aims to replicate scientific method never quite succeeds in achieving pure objectivity because humans must always decide what questions to ask and how to answer that question.
Having gone over the material again I see that I was probably wrong to assume that punishing someone for a crime that the state has prevented is a legal fiction. Of course this is exactly what attempted murder is and yet I hadn’t considered this until reading the paper by Batey. I remain unconvinced by some of the other justifications for studying law and film but I would now say that the dramatic effect of film does highlight aspects of law that go ignored. Quite simply, film makes the nuances and rules of criminal law less dry. Law and film can be a really powerful approach in this way because of its visual dimension, its often sensationalized dramatic appeal and suspension of reality.
I find it interesting that you have chosen to raise the issue of pre-crime discourse in relation to the war against terror instigated by the Bush administration in 2001 and continued now against Islamic State by a coalition of the willing.
The suppression of terrorists and terrorist activities is surely one of the most active forms of pre-crime in the 21st century. Individuals are identified through various intelligence sources, adjudged by western military officers, and effectively executed in targeted drone and air force strikes before they have the opportunity to either carry out or facilitate an act of terror. This is process lacks any effective or recognisable legal structure. Many believe it to be essential, it not only deals with the external threats to ‘our’ country but serves as a very practical warning to those thinking of getting involved in terrorist groups.
It is academically possible to distinguish the war on terror from the pre-crime of Minority Report simply utilising the calculus of risk. The calculus of risk when facing a potential murder is simple, a misjudgement will result on the one hand with the wrongful punishment of an individual, on the other hand with the death of another individual which might have been prevented. The calculus of risk when facing a potential act of terrorism is fundamentally different, and will result on the one hand with the wrongful punishment or execution of an individual, on the other hand the potential collapse of a skyscraper and the killing of thousands. They are not I would argue directly comparable scenarios.
The fact remains however that an effective pre-crime is being utilised right now by western countries, with the result for those punished far more permanent than suspended animation and the risks of misinterpretation or mis-prediction far greater then disagreement between the precogs of the film. This is surely the area that must now be focused on by academics of law and humanities as we seek to understand the legalistic parameters within which this new pre-crime operates. Seeking as it does not to punish for attempt, but for simple association.