The phrase “law as fiction” is intended as a description, and describing law as fiction is merely one of many ways to describe law. For example, we can describe law as a process for settling disputes, or as a way of organizing power, or as an expression of the underlying social structure of our society. In this book, I shall not examine the merits of these alternative descriptions; instead, I shall try to explain my own.
However, it is surely worthwhile to pause and consider a problem of descriptions. There is a fundamental error here that must be avoided: one must avoid the superstition that any one description will necessarily or logically exclude any other. If I describe a man as tall and heavy, I should not be understood as denying that he is graceful and quick. So too, if I describe law as the way those with power have organized and coordinated their power over the rest of us, I should not be understood as denying that law is also a necessary technique for resolving disputes. Both descriptions can be true. To be sure, if I say that a man is tall, I have excluded the possibility that he is short. Furthermore, even though a tall man can weigh less than a short man, the odds are that he will not. Thus, the description of a man as tall does not exclude the description of that man as light, but it does make
Judicial opinions must be persuasive if the enterprise of judge-made law is to have the power that it has. Lawyers and judges need to believe in what they do. The spirit and self-confidence of the judiciary rests on their belief in the rectitude of their enterprise. Since persuasion is so important, my metaphor “law as fiction” is apt. Without persuasion, law could not be law, and without fiction, there would be no persuasion.
Hart is clearly of the opinion that a satisfactory jurisprudential theory requires engaged external statements, and thus requires reference to the internal point of view. But why is this, exactly? What would be wrong with a theory that simply employed disengaged external statements? From the perspective of the methodological debate in the social sciences one would expect the answer to this question to turn on the formulation and application of epistemological criteria of some kind: which type of theory, engaged or disengaged, provides a more unified account of apparently disparate phenomena, or which type of theory has greater predictive power? Hart has nothing to say about such matters, however, and so far as one can tell he does not regard them as relevant. One of the few clues as to why he thinks engaged theories are preferable to disengaged theories.
Predictive Theories of Law
The observer who takes the extreme external point of view will miss out a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so as a reason for stopping in conformity to rules which make stopping when the light is red a standard of behavior and an obligation. To mention this is to bring into the account the way in which the group regards its own behavior. It is to refer to the internal aspect of rules seen from their internal point of view.
This suggests that Hart is concerned, at least in part, with pure description for pure description’s sake. Even if disengaged theories that attempt to give causal/explanatory accounts of law are useful for some purposes–and at no point does Hart say that they are not–still, there is room and need for a type of theory that does not simply treat the internal point of view as epiphenomenal. An accurate description of ‘the way in which the group regards its own behaviour’ is important in order to give us a complete picture of the social practice under study.
The difficulty of saying what exactly this extra element is has led these critics of the predictive theory to insist at this point that all talk of rules, and the corresponding use of words like ‘must’, ‘ought’, and ‘should’, is fraught with a confusion which perhaps enhances their importance in men’s eyes but has no rational basis. We merely think, so such critics claim, that there is something in the rule, which binds us to do certain things and guides or justifies us in doing them, but this is an illusion even if it is a useful one. All that there is, over and above the clear ascertainable facts of group behavior and predictable reaction to deviation, are our own powerful ‘feelings’ of compulsion to behave in accordance with the rule and to act against those who do not. We do not recognize these feelings for what they are but imagine that there is something external, some invisible part of the fabric of the universe guiding and controlling us in these activities. We are here in the realm of fiction, with which it is said the law has always been connected. It is only because we adopt this fiction that we can talk solemnly of the government ‘of laws not men’. This type of criticism, whatever the merits of its positive contentions, at least calls for further elucidation of the distinction between social rules and mere convergent habits of behavior.
Indeed, the internal aspect of rules is something to which we must again refer before we can dispose finally of the claims of the predictive theory. For an advocate of that theory may well ask why, if social pressure is so important a feature of rules of obligation, we are yet so concerned to stress the inadequacies of the predictive theory; for it gives this very feature a central place by defining obligation in terms of the likelihood that threatened punishment or hostile reaction will follow deviation from certain lines of conduct. The difference may seem slight between the analysis of a statement of obligation as a prediction, or assessment of the chances, of hostile reaction to deviation, and our own contention that though this statement presupposes a background in which deviations from rules are generally met by hostile reactions, yet its characteristic use is not to predict this but to say that a person’s case falls under such a rule. In fact, however, this difference is not a slight one. Indeed, until its importance is grasped, we cannot properly understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society.
In many ways this theory is similar to the predictive analysis of obligation which can be considered and rejected. In both cases alike the motive for advancing this predictive theory is the conviction that only thus can metaphysical interpretations be avoided: that either a statement that a rule is valid must ascribe some mysterious property which cannot be detected by empirical means or it must be a prediction of future behavior of officials. In both cases also the plausibility of the theory is due to the same important fact: that the truth of the external statement of fact, which an observer might record, that the system is generally efficacious and likely to continue so. In considering this argument we shall give it the benefit of every doubt concerning the facts of the international system.
The international law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of obligation contained in the theory that law is essentially a matter of orders backed by threats. This theory, as we have seen, identifies ‘having an obligation’ or ‘being bound’ with ‘likely to suffer the sanction or punishment threatened for disobedience’. Yet, as we have argued, this identification distorts the role played in all legal thought and discourse of the ideas of obligation and duty. Even in municipal law, where there are effective organized sanctions.
A citizen’s prudential reasons depend on the probability of being punished, which in a less precise terminology is just the predictability of punishment. Holmes is thus building his account of law on a particular internal point of view, in the broader sense of that notion sketched earlier. The present point is just that Holmes uses the notion of prediction in two different but not very clearly differentiated ways. One of these is most plausibly associated with an external view of law, while the other is most plausibly associated with an internal view. Given this failure on the part of at least one proponent of the predictive theory to distinguish clearly between two quite different uses of the notion of prediction, it is perhaps not surprising that Hart would be led to subsume both under the single rubric of the external point of view.
In the preceding section the internalist thesis, properly understood, is not sufficient by itself to rule out a theory of law like Holmes’s. Contrary to Hart’s assertion, the predictive theory does not define the internal point of view out of existence. We are thus left with two competing theories of law, each of which takes as its point of departure a different understanding of the internal point of view. Each of these understandings represents the perspective of a different group of participants within the social practice of law, and each is associated with a different mode of practical reasoning. There are, of course, many more possible theories of law besides these two, each of which has its own understanding of which reasons for action are fundamentally legal in character. For the moment, however, it will be helpful to continue to focus on the theories of Hart and Holmes. As we have seen, Hart holds social rules and the perspective of judges to be central to the proper understanding of law. Holmes, by contrast, has a different starting-point, which he calls the point of view of the bad man. Holmes argues, in effect, that the characteristically legal reasons for action are those prudential reasons created by legal institutions to which a bad man, that is, a person concerned only for his own self-interest, would systematically attend. Given that both these accounts of law begin with an internal point of view, the obvious question is: how do we choose between them?
It might seem that one could make this choice on the basis of conceptual argument, that is, on the basis of which theory offers the best analysis of various concepts that figure in the social practice being studied. Thus Hart argues, for example, that his theory offers a better analysis of what we mean by the notions of legal obligation and legal authority than does the predictive theory of obligation or the related Austinian view of law as orders backed by threats. Now it is certainly true, as we shall see below, that conceptual argument is part of the story. But it is not the whole story, at least not if we regard conceptual argument as completely distinct from normative argument. There is no doubt that the predictive theory of obligation does not offer a very accurate analysis of what we ordinarily mean by a legal obligation, or indeed any kind of obligation. But it still seems open to a defender of the Holmesian theory to say that the various conceptual elements we associate with law are complex and not necessarily in complete harmony with one another. He is not so much concerned to analyze the concept of obligation as to argue that that concept, as ordinarily understood, is not theoretically fundamental. The theoretically fundamental concept, he will continue, is that of sanctions, because it is sanctions, not Hartian obligations, that create the reasons for action, which are truly central to an accurate understanding of law. The conceptual ‘reduction’ of obligations to prudential reasons is really just meant to emphasize this fact. Hart, for his part, emphasizes the concept of obligation, as analyzed by his account of social rules, and down-plays the role of sanctions.
Suppose the predictive theory is well known, however we can assume that judges are familiar with it. Another possible objection suggests that judges will not passively participate in a fraud while the rest of the world knows the true grounds of their decisions. Surely, judges will respond by making decisions on other grounds, thus undermining the predictive power of the relevant theory.
The use of legal fiction by preliterates has its counterpart, of course, in written law. In England, for example, the severity of the existing criminal law was mitigated by the growth of the courts of chancery or equity, but it was also moderated by the use of fiction. One such fiction was the “benefit of clergy.” The death penalty was imposed for all felonies except petty larceny and mayhem from the Middle Ages down to 1826. Clergymen could only be tried and convicted by an ecclesiastical court and the penalty could be anything but death. An ecclesiastical court never pronounces a death sentence. During this period, practically the only ones who could read and write were clerics, but as time went on this knowledge began to spread rapidly. The “benefit of clergy” was then extended to all those who could read and write. In 1705 the requirement of reading a verse of the Bible was dropped and “benefit of clergy” became a judicial means of showing leniency. The penalty for a “clergy able” offense was branding on the hand and imprisonment for not more than one year. An exception was made in the case of larceny, which by the law of 1717 was made punishable by deportation for seven years.
First, observe that practical reasoning in legal practice is highly interdependent. This interdependence obtains not only amongst officials, but also ‘horizontally’ amongst citizens, and ‘vertically’ between courts and citizens. In this web of interdependency, courts take a leadership role, because of their public prominence and their authoritative status. Thus, citizens’ understanding of the content of legal norms and the way those norms figure in their practical deliberation are both a function of their beliefs about how the courts and other law-applying officials understand and apply them, and their perception of the place of those norms in the practical deliberations of officials. Second, we must assume that citizens wish to make their behavior conform to the law. Of course, citizens wish to do so for the very practical reason that they wish to co-ordinate their actions with their fellow citizens and with authorized law-applying institutions. It will be of no interest to them to learn after the fact from a court that, while abstractly speaking, their behavior was entirely consistent with the law, it would have been better, all relevant (moral) things considered, to have followed some other course of behavior, and so their opponents in litigation must win. Third, if citizens wish to conform to the law, then they have reason to anticipate as best they can how courts will reason with and about the law. If it is widely known that these institutions do not themselves regard legal norms as pre-emptive, but rather are charged to consider each case on their best judgment of all the relevant considerations, then citizens must consider whether they can do better (that is, better conform their behavior to the law) by according the announced legal norms pre-emptive force than by taking into account ‘extra-legal’ considerations that the courts are likely to weigh and balancing them in anticipation of the courts’ deliberation. That may be risky, perhaps, but for many citizens it may appear no less risky than acting on the fiction that the courts treat the norms as pre-emptive. Fourth, if some citizens have reason to treat the norms in this non-preemptive way, then others may find it difficult to anticipate whether other citizens with whom they must co-ordinate their interaction will treat the norms as pre-emptive. But then they have good reason to focus rather on the courts’ public deliberations, even if the legal situations they face are not likely to be litigated. In sum, given horizontal and vertical interdependence of practical reasoning in legal practice, and the leadership and salience of the courts, it will not be possible to maintain a strong public commitment to the pre-emptive force of legal norms in the face of public knowledge of the exemption of courts from this pre-emption. From this we may conclude that, if law is to fulfill its mediating task as conceived by the Autonomy Thesis, its preemptive force must include courts as well as citizens.
Of course, if it were possible for courts to keep secret their exemption from the Pre-emption Thesis, this result would not follow. However, in view of the highly public nature of the adjudicative process, courts would have to work very hard to conceal this exemption. Indeed, they would have to argue in their opinions as if they were bound by the Thesis, and would have to make sure that their decisions tracked closely the pattern that could be expected of a court bound by the Thesis. And if they did so, their practice would not differ in any material respect from a practice in which the court falls within scope of the Preemption Thesis. But if that were so, then that practice would be very different from the practice of judicial reasoning with which we are familiar and which initially seemed inconsistent with the Thesis.
Thus, qualifying the subject-scope of the Pre-emption Thesis threatens its capacity to fulfill the coordinating task assigned to it by the functional argument for the Thesis. To preserve its fit with familiar legal practice we must cut it loose from the function argument. Perhaps, we can better accommodate the Pre-emption Thesis to familiar judicial practice through recognizing limits on the substance-scope of law’s exclusionary reasons. This seems more promising. Recall, again, that the scope of exclusionary reasons is a function of the arguments for according the norms in question exclusionary practical force. The substance-scope of any particular legal norm depends on the merits of that norm.
Marshall’s claim that peace depends on judges is hyperbole. But is it a fiction? The word “fiction” is not a precise term; consequently, the question does not have a precise answer. I want to say yes Marshall is writing fiction, rather than a false theory, when he asserts that only the Supreme Court can deliver peace — but my yes is fuzzy and qualified. One of my problems is that Marshall’s assertion is so brief that it can strike one as a “theory” rather than as a “story.” For example, one might interpret Marshall’s paragraph as asserting an abstract thesis such as the following — whenever there is a conflict between national legislative power and state legislative power, neither the legislature nor the executive can resolve it peacefully, only the judiciary can. Alternatively, one can interpret the paragraph as presenting a drama, a story — the Congress acted, then the Maryland legislature responded, but McCulloch honored only what Congress did, so Maryland sued, and the state court held for the state, and thus we now have a terrible conflict, which Congress cannot resolve, which the president cannot resolve, which only the Supreme Court can resolve. Both of these interpretations are plausible. Indeed, I would say that both of them are “right,” and furthermore, that this duality is part of the “secret,” that this duality makes the paragraph more persuasive than it would otherwise be. We yearn for both stories and theories, and Marshall gives us both.
Both interpretations — the paragraph is both “theory” and “story” — fit the textual facts. On the one hand, Marshall’s prose is abstract, just as theories are abstract. On the other hand, the prose presents a dramatic sequence of events, just as stories do. Since the paragraph has the dual aspect of story and theory, I certainly cannot object to anyone who wishes to focus on the theoretical side of McCulloch. However, I wish to focus on the narrative. If we focus on the narrative in McCulloch, we can ask the questions that we normally ask about stories: Who is the hero? What does the hero do? Why is the hero a hero? Two of these questions are easy to answer: the judges are the heroes, and they are heroes because they bring peace. But it is harder to say what judges do that differs from what other heroes do. The judges interpret the Constitution, but so does everyone else. How do judges interpret? Do they do it differently? If I read Marshall correctly, judges are different because they act under the compulsion of duty. The members of the Supreme Court did not leave their chambers and go out to search for this case; the parties brought it to them. They must now decide the case because “the constitution of our country [has] devolved this important duty” upon them. This description contains an implied but unstated contrast. The contrast is that legislators, unlike judges, decide matters because they want to. In short, judges are trustworthy because they act from duty, not desire.
This story — that judges stand above the fray and thus can bring peace -is largely fictional. Consider, for example, the divisions that led to the Civil War. David Morris Potter and Don E. Fehrenbacher have written excellent studies of these events, and their accounts lead me to believe that the story of neutral judges bringing peace is indeed a fiction. In the antebellum era, judges were no more detached from the passions of their time than were other public figures. Furthermore, judicial decisions had no more calming effect on the populace than did legislative decisions. However, like other fictional stories that judges tell, this story about bringing peace is not told dishonestly, then or now. It is believed. Robert A. Burt has shown how this belief — that judges can impose peace is still alive and how it captures the judicial imagination in our own time. Burt also believes that the story is dangerous, since imposing “peace” can generate dangerous resentments. I do not wish to generalize about the possible dangers; I merely wish to point out that there is a story here, and that it is fictional.
Legal Fiction and Politics
The discrepancy between political reality and legal fiction might be called a system of institutional indulgence that acknowledges an inevitable gap between law and compliance and hopes that it will be closed gradually over time. In the current process of European enlargement a less philosophical and more political point, however, deserves more of our attention. The decoupling of norms and actions is central to Stephen Krasner’s analysis of international legal sovereignty as a system of organized hypocrisy. International outcomes are created by rulers. Rulers violate or adhere to principles or rules because of calculations of material or ideational interests. They are not acting out taken-for-granted practices or following the scripts of overarching institutional structures. Norms and actions are decoupled. The logic of consequence trumps the logic of appropriateness.
Between legal fiction and political reality European enlargement creates space for the practice of individual opportunism embedded in collective purpose. In brief, besides genuinely felt political aspirations institutional and political hypocrisy are normal parts of the European enlargement process. Southern member states are ‘policy takers’. Yet Spain, Greece, Portugal, as well as Ireland, do not, however, merely go along with EU policies even though they often lack the capacity to comply. Often they threaten to block or veto EU policies if they do not receive some form of side-payments in the form of temporary exemptions or additional EU funding.
Jurisprudence and Fiction
Today many readers and some publishers consider courtroom thrillers, whether noted as “courtroom dramas” or “legal thrillers, ” to be a distinct genre of mystery; in fact, one major publishing house distributes a bi-monthly newsletter which considers the legal thriller a distinct genre in its cataloguing but finds it troublesome because not every legal thriller is a “mystery”; one recent issue, for example, notes that there are many other more traditional mysteries in which the sleuth is a lawyer.
Why, then, should the legal thriller be culled from the domain of mystery proper? Why have it at all as a separate entity? One possible answer lies in Judge Weaver’s earlier remark to Paul Biegler, defending Lieutenant Manion for the murder of his wife’s rapist: “I am a rabid fan of murder trials, a fan just as hopeless in my way as those hordes of panting and painted harpies out there who are jamming our sessions”. Unkind and politically incorrect though the Judge is, he is right: there is something endlessly fascinating in a courtroom where life is at stake that nothing can compare to it. Justice may or may not be done. A guilty defendant may go free a recalcitrant jury may set its heels and render a nullification verdict. Justice may never be done but the heavens will never fall because of it. A murderer on the witness stand will never collapse, fainting into the arms of the brilliant cross-examiner. We know this is the formulaic stuff of many a Perry Mason and many a modern legal thriller as well but we nonetheless crave the explicit, dogmatic, and final rendering of justice which is always fiction’s task, never life’s. Nothing else in a story-world is so ideal for the collision of raw emotion and sublimated, precisely-controlled utterance as a well-orchestrated trial with its defendants, plaintiffs, lawyers, judge and jury all figuring in an “unpredictable” denouement.
It is tempting, by dint of his sheer output, to call the novels of Erle Stanley Gardner, that one-man Perry Mason factory, a hub of the modern legal-thriller from whose spokes radiate all directions of the modern legal thriller today, but that is short-sighted. Gardner’s output is commendable but not a beginning as Scott Turow’s Presumed Innocent was a recent resurgence in the legal thriller’s long history-but there is not likely to be a Golden Age of the legal thriller. For one thing, such would have to define the legal thriller to exclude Shakespeare’s Measure for Measure and The Merchant of Venice, which plays belong to the history of the courtroom “dramatic” thriller as much as Gardner’s canon does. Although I am including a smattering of European literature, such as Camus’ The Stranger, Kafka’s The Trial, and Balzac’s Cesar Birotteau, I make no pretensions to completeness and wish that I could have extended continental Europe’s geography far enough to include Dostoevski. Ben Drew Kimpel, magnificent teacher from the University of Arkansas, not only made me aware of the holes in my education but began me on the way to filling them.
All good mystery fiction reflect us and our times. Most lawyers themselves will admit they are not heroic in the traditional epic sense but they are able to prosecute and defend for justice’s sake with equal ardor. It does not seem especially heroic to winkle out a legal solution to a problem from the arcana of Blackstone, but Arthur Train’s Squire Mason is able to batter foes into apoplectic submission with his finessing of legal points. That he had to be reformed toward a more palatable kind of protagonist says something about this need for the law to be benevolent toward the common folk. Arthur Miller once said of his famous Salesman’s very unheroic nature in “Tragedy and the Common Man” that the common man debarred from such thoughts or such actions. Seen in this light, our lack of tragedy may be partially accounted for by the turn which modern literature has taken toward the purely psychiatric view of life, or the purely sociological. If all our miseries, our indignities, are born and bred within our minds, then all action, let alone heroic action, is obviously impossible.
The courtroom is our symbol of the flowering of such possibilities of action, although we rarely circumscribe it by calling it justice. The legal sleuth is out there in the tumult, away from the office, even though their creators know that drudgery is ninety-five percent of the job. Law schools have been traditionally quickest to incorporate literature courses into the curriculum because of the latter’s obvious usefulness to the craft of law.
The Simpson trial had given rise to a new and dangerous phenomenon, the pre-verdict juror interview. Never in the history of American jurisprudence had there been circumstances in which exjurors took on the role as ex-officio spokespersons for a sitting jury. They traveled the media sideshow, each proclaiming to be the measure by which to judge how the actual jury was thinking. Ostensibly, this was a presumptuous notion jurors were prohibited from speaking with fellow panelists until the deliberations began. But, apparently, these limitations did not inhibit ex-jurors from making their views known to an avid media.
Only in a theater of such absurdity could such interviews seem commonplace. At one time in pre-Simpson history, many in the legal community strenuously argued against jurors speaking to the media after a verdict had been reached. Such “post-trial interviews” were criticized because they disclosed private discussions that were never intended for public consumption. Indeed, the very premise of keeping deliberations private was to ensure that each juror could speak candidly and without fear of being publicly exposed. Post-trial interviews also sent a message to future jurors: Their private deliberations could also be thrust into the public arena. The underlying danger was that jurors would be far less confident in challenging a panel’s prevailing point of view. Others might be fearful about coming to an unpopular, but correct, decision in cases of high emotional public interest.
The pre-verdict interview that evolved during the Simpson case was a far more insidious trend. Former jury members were now in the position to critique their ex-colleagues and offer “verdicts” even as the case was still being decided. Jeanette Harris, one of the most controversial ex-jurors, rose from anonymity to TV celebrity after being dropped from the panel for failing to tell the court that she had been a victim of domestic abuse. In one TV interview, Harris called the prosecution’s case “a whole lot of nothing.” Hinting that other jurors shared her view, she said, “to be perfectly honest with you I see a hung jury.”
In the history of American jurisprudence, no single trial, or group of trial participants, had been so publicly and intensely exposed. Indeed, few television personalities of any kind had achieved such intensive national exposure over the course of their entire careers. It was estimated that CBS News anchor Dan Rather would need 24 years to match the air-time given to the lead lawyers involved in the 16-month case.
But there was a cost to being a TV star. By the time the Simpson trial ended, even defense and prosecuting attorneys–strong supporters of the courtroom camera early on–had finally grasped the full consequences of having the case televised. The attorneys blamed much of their excessive lawyering, the feuds, the scores of motions before the bench, the hundreds of sidebars, and the incessant bickering about collateral issues, on the tremendous pressure brought to bear on them through television. The camera’s presence not only changed the way trial attorneys and the presiding judge behaved, it also added another risky element–the case became a political battleground with participants personally invested in the trial’s outcome.
The judge’s “worst decision” in the case was allowing cameras in the court, he charged. In the blame game following the trial, Ito or the “other side” bore the brunt of responsibility for the trial’s collapse. But for all of Darden’s post-trial hand-wringing, his complaints sounded hollow, if not hypocritical. At no time during the trial did he or any other lawyer in the case seriously consider having the camera blacked-out for their grandstand performances. Only afterward, with their celebrity status firmly intact, their book contracts in hand, their lecture tours, TV shows, and movie deals in place, did they loudly protest and, typically, they pointed an accusing finger away from themselves.
In a Nightline interview after the trial, Fred Goldman summed up the televised trial experience, stating: “The camera turned the court into a pulpit for agendas, and what was lost was Ron and Nicole.” With lawyers making the proceedings “a circus,” and a judge failing to control their antics, Goldman said the trial was turned “into a nightmare
Prominent jurists lashed out at the prosecutors’ crass profiteering, which they said fed the growing public scorn toward the legal profession. U.S. Appeals Judge Stephen Reinhardt specifically condemned Clark and Darden for seeking to reap the benefits of, essentially, a failed case. “Perhaps the most mind-boggling aspect,” Reinhardt asserted, “was how two lawyers who lost a case that most people had thought could not possibly be lost, and who did so through the use of some of the most bizarre trial tactics employed in the history of American jurisprudence, not only obtained book and motion picture deals that will bring them more money than most lawyers make over their entire careers, but that they now also command huge fees as lecturers. That, on the basis of this trial, they are held out as expert practitioners, role models, and examples of dedicated public servants simply defies the imagination.”
From a film that focuses on the gendering of law and its adequacy in responding to a victim’s horrific pain, Michael Shapiro turns to race and the way discourses of race frame law’s narrative conventions and law’s role in constructing and maintaining “America’s racial-spatial order.” Expanding on Michel Foucault’s concept of a productive relationship between policing and “the delinquent milieu, ” Shapiro examines how Carl Franklin’s film Devil in a Blue Dress depicts the law-delinquency relationship as a way of inviting viewers to judge the law itself. The film’s jurisprudence is relentlessly, though subtly, critical, depicting the legal order as deeply implicated in the constitution of racialized delinquency.
Why should one invest in reading films as popular jurisprudential texts? Why explore the judging acts they perform and analyze the social values they constitute for their viewers? One answer is that films are overwhelmingly influential, playing a key role in the construction of individuals and groups in contemporary societies. They reach enormous audiences and, combining narrative and appealing characters with visual imagery and technological achievements, stir deep emotions and leave deep impressions. Leading viewers through cinematic judgments, constituting notions of justice, equality, honor, and gender, films can be extremely effective in molding public actions and reactions. Touching the viewer’s emotions and imagination, a law film may introduce a viewer to jurisprudential issues and value systems while provoking a host of emotive responses and powerful impressions. More people are likely to be influenced by cinematic judging and jurisprudence than by theoretical legal texts or even judicial rhetoric. Additionally, since most viewers treat film as a source of entertainment and not as a jurisprudential challenge to be critically examined, a film’s socio-legal influences may remain unnoticed and be embraced uncritically, thereby augmenting film’s influence and calling for systematic critical investigation.
As Kamir argues, the cinematic representation of this abstract legal theme—the struggle between the claims of retributive justice and the interests of law—creates a distinctive cinematic jurisprudence. Kamir discusses three elements of this jurisprudence. First, she argues that by framing the law versus justice question within the gendered conflict between a man and a woman, Death and the Maiden “suggests a deep linkage between victims’ struggle for voice and memory within a legal system serving a community that wishes to forget and deny its skeletons, and women’s struggle for legal recognition within the patriarchal, often misogynistic law.” Second, Kamir analyzes the cinematic techniques that director Roman Polanski uses to generate a split viewer identification with each of the protagonists. This split identification is employed to elicit what Kamir calls “cinematic judgment”— that is, cinematic means are used to “invite [the] viewer to adopt certain points of view, go through mental processes, and arrive at conclusions.” At various points in the film, the viewer is sympathetic to Gerardo’s point of view; at other times we share Paulina’s judgment of law’s inadequacy. “In calling its viewers’ attention to the ways in which a member of any judging community, be it legal or cinematic, may be seduced to side with the aggressor at the victim’s expense, Death and the Maiden illuminates the inner operation of a central element of the legal system.” Ultimately, the cinematic judgment framed by Death and the Maiden leads the viewer unwittingly into powerful self-judgment. The film puts its viewers on trial, forcing us to judge ourselves and our views about the complex play of justice and ordered legality.
It is perhaps unsurprising that those realists who looked to institutionalism should have found history rather than economics. Most institutionalist writings were highly technical and focused on specific problems such as overhead costs and business cycles–the sorts of problems which would have made little sense to, or held little appeal for, realists without any economic training. Veblen’s romantic, conspiratorial grands récits, in
contrast, were as readable as good fiction–and in some ways were best treated as such. However, there was a tendency for legal realists to treat Veblen quite literally, primarily because they found in his work an ‘indictment of classical economic theory’ which could ‘be applied word for word to classical jurisprudence’, 215 but also because they discovered there a potted history of modern America which rather confirmed their own intuitions about the legal world. It is not insignificant that historically oriented legal scholarship was never particularly prevalent among so-called realists. A possible reason for this is that, in their various attempts to use-or at least to toy with the methods of the social sciences, these realists discovered–ready-formulated, as it were various hypotheses, including historical hypotheses, which amply supported their own arguments. Given that, by the late 1920s, the basic historical path which some realists might have cared to tread had already been covered by, Veblen and other social scientists with institutionalist leanings, there seemed little point for any legal realist to retrace those steps again
It is important, however, not to identify critical legal studies with Harvard in the same way that realism tends to be identified with Columbia and Yale. While Harvard features significantly in the history of critical legal studies, it is but part of a much broader picture. In focusing on critical legal studies at Harvard in the late 1970s–in attempting to show that Horwitz, Unger and Kennedy did not engage in anything approximating a uniform style of critical legal scholarship–my intention has been to emphasize that, even in its early years, the movement possessed little in the way of homogeneity or strategy. In doing this, however, I have clearly risked exaggerating the contribution of Harvard to the initial development of critical legal studies.
What is certainly clear is that there were other styles of critical legal scholarship emerging in the late 1970s. Three papers from the first Conference on Critical Legal Studies illustrate as much. Inspired by the existential phenomenology of Jean-Paul Sartre, Peter Gabel, in his paper to the first Conference, criticized the tendency of American legal theorists to reify rules and principles, to abstract them from their concrete reality. ‘Legal theory’, he argued, ‘must avoid producing fiction by transforming its phenomena into facts: that is, its method must incorporate a critical phenomenology.’ For Gabel, the jurisprudence of Ronald Dworkin exemplifies this tendency towards reification. If we ‘decode’ or ‘concretize’ Dworkin’s rights thesis if ‘we suspend our participation in the normative assumptions that guide his reasoning’ it becomes untenable. ‘Once Dworkin’s theory has been concretized, we are left with the real world. Here in the concrete we do not find a group of abstract “citizens” engaging in lively moral discourse, but rather a group of dispersed and isolated persons impotently linked through the cycle of production and consumption that determines their social existence.’ Dworkin’s failure to situate law in the real world, Gabel concludes, explains why he ‘cannot help us to realize in the concrete the values of dignity and mutual respect upon which he places so much emphasis.’
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