Romancing the Tomes

Popular Culture, Law and Feminism

Margaret Thornton

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135337551
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This provocative collection of essays by scholars from the UK, Canada, Australia and New Zealand explores the uneasy relationship between law and popular culture from a feminist perspective. The essays not only consider the representation of law in popular culture, including film, crime fiction and the media, but also the representation of popular culture in legal texts.

Romancing the Tomes shows that while popular culture is bewitched by law, particularly anything to do with sex and crime, law is anxious to resist the unruliness of popular culture. The collection is multidisciplinary, with contributors from a range of areas, including cultural studies, women's studies and legal studies. The essays are complemented by the poems of prize-winning lawyer-poet, MTC Cronin. Romancing the Tomes will appeal to a wide cross-section of academic and general readers. It is suitable for inclusion on undergraduate reading lists for law, history, women's studies, criminology and media studies, as well as any other course with an interest in cultural studies.

PART ONE


INTRODUCTION

The Law of the First Venus

I have fallen in love With paradox There is no history Because of unity The way her arms so naturally Bind me There is no place even To start counting	Like this She is never finished The big sleeping girl The hiding doll The twitch Of the dreaming leg Never actualized Not even in death
Yet against her thrilling wall I lean She is unscaleable! My arrows shoot to the stars Yet note is taken They reach somewhere Just below the height Of her lovely belly	See her coming up Singing cups of tea today Introducing The line to the curve Its sneaky self What a beautiful Queen of Sheba! I’m to be her toad Her platter of fruit!
She is the first Venus always To be approached By such laughable Reason On the specious surface Little draw What I write With my true love On her willing wall	And I have fallen in love With paradox There is no history Because of life The way her arms move So naturally to bind me There is no place even To begin

MTC Cronin

CHAPTER 1
LAW AND POPULAR CULTURE:
ENGENDERING LEGAL VERTIGO

Margaret Thornton

AN UNACKNOWLEDGED LIAISON

This introductory chapter examines the uneasy relationship between law and popular culture. It suggests that law’s resistance to popular culture emanates from a fear that it will corrode the autonomy and authority of law. Popular culture, like the feminine, has been constructed as a non-rational Other, which has been consciously confined to the margins of orthodox legal knowledge by technocratic legal methods.

Despite the pervasiveness of popular culture in contemporary society, its relationship with law, at least in a formal sense, remains tenuous and ambiguous. The academic establishment generally regards popular culture with suspicion, if not outright contempt.¹ Not only is it suspected of exercising a corrupting effect on ‘Western high culture as the source of legitimate knowledge, history and truth’, it is regarded as ‘relatively knowledge-free’.² Law goes further than most disciplines of the humanities and social sciences in its resistance to all ideas and values outside its disciplinary boundary. Indeed, law itself is deemed to be the only authoritative source of law. This self-referentialism is maintained through the dominant philosophy and techniques of legal positivism, an issue to which I shall return.

Regardless of the disavowal, law is influenced by popular culture in multifarious ways of thinking about law and justice, as well as directly through the adduction of evidence, law and order policies, law reform, the role of juries, and even styles of advocacy. The role of judicial decision making as a cipher for popular culture is less apparent because of the positivistic carapace. Occasionally, however, by recourse to the arsenal of interpretive techniques at the disposal of judges, such as ‘judicial notice’, they may acknowledge that they are taking cognisance of what is going on in the world.³ There is, nevertheless, an entire tantalising realm of what may be termed ‘unconscious judicial notice’ to be unravelled, a variation of ‘constructive notice’, an interpretive device by which a person or agency can be deemed to have actual notice of a particular phenomenon. Judges are not immune from the influence of popular culture, as the contributors to this volume show; they are consumers, like everyone else. Popular culture, then, contributes to the production of law.⁴

When we turn and look in the other direction to consider the influence of law on popular culture, we see that popular culture is not just influenced by law, but fascinated by it, particularly so far as the relationship between sex and crime is concerned. Audiences love the cinematic representations of trials generally with their dramatic and conflictual elements.⁵ The representations of law in popular culture shape popular understandings of law and justice, and what it means to be a lawyer. These images in turn feed back into legal discourses in the hermeneutic and decision making process. Representations and ‘real’ life become imbricated so that it is impossible to separate them. ‘Law’ and ‘popular culture’ are therefore not in fact disjunctive, despite the best endeavours of legal traditionalists to present them as such. There is a symbiotic relationship between them, despite the fact that the impact of law on popular culture is more readily discernible than the impact of popular culture on law.

CAPTURING CULTURE

Until recently, ‘culture’ was understood primarily as a concept that belonged to Others. It carried overtones of the exotic, particularly in terms of language, art, dance, music, and cuisine; the norm was somehow a-cultural. Thus, it continues to be said of those of Anglo-Celtic heritage that they possess no culture, unlike Aboriginal or non-English speaking minorities. Similarly, only the latter have been deemed to have a race, only women a sex, and only gays and lesbians a sexuality.⁶ The dominant sides of the dualisms claim to be able to shed the particularity of their identities and assert a monopoly over neutrality, universality and normativity. Thus, Benchmark Men, that is, those who embody a constellation of characteristics, conventionally associated with dominance, namely, whiteness, Anglocentricity, heterosexuality and able-bodiedness—the ‘a-cultural’—have presented themselves in legal texts, as well as other key discourses, as de-raced, de-sexed and desexualised. Benchmark masculinity claims to speak from nowhere because it is everywhere. The acculturated ‘other’, which is permitted to speak only from its designated epistemological standpoint, is invariably represented as partial and particularised. Feminist and poststructural scholarship has consistently deconstructed dualisms of this kind, together with the claims of Benchmark Men to universality.⁷ Deconstruction has also challenged the meaning of culture itself. Indeed, it is now generally accepted that culture is a substratum of identity from which no member of society is immune. In the process, culture has acquired a much broader meaning within academic discourses, for it is understood to encompass all social and political institutions and practices, together with associated belief systems, rendering them the proper subject of scrutiny and critique. Nevertheless, the increasingly plural and subjective meanings of culture are highly contested, so much so that ‘culture wars’ has become a term of recognition regarding competing political and philosophical perspectives within the academy, a notion that corrodes the one-dimensional and homogenising concept of culture formerly associated with a minority people or group.

In the attempt to analyse and systematise, culture suggests order. Bauman describes culture as an ‘anti-randomness device’.⁸ He is not suggesting that it be envisaged as static but, in the struggle between order and chaos, he locates culture ‘unambiguously in order’s camp’.⁹ The taxonomical and analytical task necessarily remains elusive, however, for culture is ‘perpetually restless, unruly and rebellious’; there can be no ‘hope of ever arriving at a finished and authoritative likeness of any given culture’.¹⁰ The legal culture valiantly seeks to embrace all facets of law and meaning, including law as a cultural artefact,¹¹ the sociology of the legal profession,¹² the representation of law in literature,¹³ and the media.¹⁴ Law and popular culture, then, is a sub-set of contemporary legal culture, although the volatile and ephemeral character of the imagery of popular culture would seem to position it closer to chaos than order. It is the unpredictability of popular culture that makes it so threatening to law, which, in liberal societies, is order’s familiar companion.

Interdisciplinary legal scholarship undertaken by legal scholars, as well as by scholars in a range of the humanities and the social sciences, has stimulated the study of legal institutions, legal discourse and representations of law as legitimate aspects of cultural studies. Utilising new theories and methods has engendered reflexive and theoretical possibilities long resisted by conventional legal methodologies. The study of law as culture goes to the heart of the postmodern critique of law as a universalising and authoritative discourse for, looking at law through the law-as-culture lens recognises the significance of micropolitical sites and new ways of seeing. The critical gaze is not restricted to the conventional hierarchical focus on legislatures and appellate courts, but includes the full range of ‘non-authoritative’ discourses about law, including literary texts and popular media.

Generally speaking, ‘popular culture’ encompasses the panoply of beliefs, practices and wisdom of ordinary people, which is handed down from generation to generation. Popular culture may be implicitly distinguished from the more intellectual, theoretical and scholarly pursuits associated with the term ‘high culture’. These terms are amorphous, however, and merge haphazardly into one another. They do not lend themselves to the clear lines and neat classifications beloved of lawyers. Indeed, the pervasiveness and accessibility of popular culture, particularly the mass media that is consumed by intellectuals and the uneducated alike, puts paid to the idea that there are discrete popular and high cultures.

The concept of popular culture tends to crystallise most commonly in print media, popular music, film and television. This congruence between popular culture and the media has occurred to such an extraordinary degree that, metonymically, ‘popular culture’ has come to refer specifically...