Law and Justice on the Small Screen

Peter Robson, Jessica Silbey, Peter Robson, Jessica Silbey

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319944
• Edition: 1
• Topic: Jura
• Subtopic: Medien- & Unterhaltungsrecht

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed. The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and (3) content analysis of individual television shows with attention to big-picture jurisprudential questions of law's efficacy and the promise of justice. The book's content is organised to make it appropriate for undergraduate and graduate classes in the following areas: media studies, law and culture, socio-legal studies, comparative law, jurisprudence, the law of lawyering, alternative dispute resolution and criminal law. Individual chapters have been contributed by, among others: Taunya Banks, Paul Bergman, Lief Carter, Christine Corcos, Rebecca Johnson, Stefan Machura, Nancy Marder, Michael McCann, Kimberlianne Podlas and Susan Ross, with an Introduction by Peter Robson and Jessica Silbey.

Part I: Method/Context

1

Measuring Humanity: Rights in the 24th Century

LIEF H CARTER AND MICHAEL MCCANN^*

[W]orks of art are the most intimate and energetic means of aiding individuals to share in the arts of living. Civilization is uncivil because human beings are divided into non-communicating sects, races, nations, classes and cliques.

—John Dewey, Art as Experience (1934)

The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.

—Martin Luther King, Strength to Love (1963)

I. Introduction

The ninth episode of the second season of Star Trek: The Next Generation, entitled ‘The Measure of a Man’, tackles a familiar, profound, and recurring question in politics, philosophy, and literature—who and what qualifies as ‘human’ or, if not human, nevertheless qualifies for the legal rights and protections granted to humans by communities and tribes?¹ In politics this question has surfaced for centuries in often xenophobic debates about race and alien status, among others. More recently, the question has been raised in debates about foetal status, gay and lesbian rights, and rights for animals. Much of the world does not yet accord equal legal status to women in meaningful ways. The US Supreme Court’s extension, in January of 2010, of the right of unlimited political participation to corporations on the ground that they are, for legal purposes, like people, also invokes the question.² A philosophical version of the question crystallises in the existentialism of Sartre. ‘Pinocchio’ poses the question for children. Shakespeare’s Caliban, the ‘monster’ offspring of a sorceress in The Tempest, Mary Shelley’s Frankenstein, King Kong in film, and dramas about witchcraft, eg Arthur Miller’s The Crucible, pose the question for adults.³

The Star Trek episode’s treatment of this perennial question, namely what counts as a ‘life form’ worthy of equal legal and moral status with humans, is recurrent in science fiction literature and film.⁴ The twenty-fourth century, at least as conceived by Gene Roddenberry, the creator of the original Star Trek series and adviser to its reprise in ‘the next generation’, operates on the principle of ‘sentience’. Non-human races such as Klingons and Romulans have the same legal status as those of the human race because they are sentient. But what counts as sentience? More specifically, are androids—sophisticated computer robots designed and constructed by humans so as to resemble humans and to accomplish tasks that humans cannot or will not reliably do—sentient ‘life forms’, or are they machines and hence property, as both slaves and women have been? And is the abstract issue of sentience sufficient to resolve this dispute?

‘The Measure of a Man’ applies these questions to the case of Lieutenant Commander Data, a ‘one-off’ sophisticated android designed by a scientist who died without leaving plans for replicating this uniquely valuable entity. Data, like Spock in the original Star Trek series, has superhuman strength and analytical powers, powers enhanced in Data’s case by programming that prevents emotion from clouding his decision-making skills under any circumstances.⁵ He has repeatedly proved his value as a crew member of the star ship Enterprise, captained by Jean-Luc Picard.

Headquarters has sent a robotics expert, Commander Bruce Maddox, to requisition Data from the Enterprise, transfer ‘it’ (Maddox’s term) or ‘him’ (the crew’s term) to headquarters, and disassemble Data so as to learn how to replicate him so that other star ships can benefit from his unique abilities. Commander Maddox insists that the chances that Data will not be reassembled successfully after complete analysis of his engineering and electronic circuitry are ‘negligible’, but Maddox cannot deny that Data may experience some degree of amnesia after his reconstruction, or that such amnesia might be permanent. Data and Picard both refuse to honour the transfer order, but a JAG officer newly arrived on board, Phillipa Luvois (with whom Picard has had a romantic and antagonistic professional relationship in the past), checks various fleet regulations about computer equipment and personnel transfers and concludes that, regardless of Data’s ultimate status, he cannot refuse the order transferring him back to headquarters.

At this point, Data, who is wholly opposed to this disassembly procedure, resigns his commission in the fleet to avoid it. His decision to resign thus forces the immediate question. If he is a sophisticated computer, he is fleet property. He has no more right to resign than the Enterprise’s main frame computer does. The fact that he resembles a human is not legally relevant, since he could just as well be ‘a box on wheels’. Indeed, Maddox argues that Data’s sympathisers are duped into treating him as rights-bearing only because his outer appearance resembles a human rather than a machine. Luvios conducts further research and finds that ‘the Acts of Cumberland, passed in the early 21^st century’ dictate that Data is a machine. She summarily rules that Data has no right to resign, saying, ‘He is a toaster’. Picard, on Data’s behalf, then demands a formal hearing. Lacking any staff, by regulation Data’s defence falls to the Captain, Picard, and First Officer William Riker must represent Maddox. Riker initially refuses to oppose Data: ‘Data’s my comrade. We have served together. I not only respect him, I consider him my friend’. However, Luvois insists that without someone to represent Starfleet’s position, she will reinstate her order prohibiting the resignation and order the transfer. Thus the stage is set whereby an adversarial legal proceeding focuses and resolves the tensions of plot and character created by the larger dramatic setting.

Our analysis begins with a brief rumination about the study of television entertainment as a constitutive component of legal culture. While cultural texts can be analysed in many different ways, our approach primarily analyses the substantive content of the episode for important insights about the politics of contested legal rights and claims to justice. Our approach is especially conducive to the types of engagement that teachers might undertake in a college classroom. The remainder of the chapter develops some reflections on a variety of themes related to legal processes and constructs of ‘human rights’ that are provocatively addressed in the episode.

II. Commercial Television and Popular Representations of Legal Practice

We ground this analysis of classic cult TV entertainment in the recognition that images of law, legal processes, and legal practices saturate contemporary popular culture. Mass-mediated narratives and images are arguably among the most pervasive and powerful social forces expressing, shaping, and transforming law and social life.⁶ Indeed, a great deal, and perhaps most, of what most people know about legal institutions, discourse, and process derives from mass media news sources and entertainment-like TV, films, novels, cartoons, and other such visual sources. As Ewick and Silbey put it,

The law seems to have a prominent cultural presence …, occupying a good part of our nation’s popular media, providing grist for both news and entertainment…. Thus the law is experienced as both strange and familiar; an episodic event and a constant feature of our lives; deadly serious and a source of humor and entertainment; irrelevant to our daily lives and centrally implicated in the way those lives are organized and lived.⁷

Or, in Richard Sherwin’s words, ‘Where else can one go but the screen…. It is where people look these days for reality …’⁸

It is not surprising that the socio-legal study of law in/and of popular culture, including television, has grown rapidly in recent decades into a serious scholarly enterprise. ‘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’, notes Sherwin.⁹ Prominent law and society scholars such as Stewart Macauley and Lawrence Friedman were among the first to encourage expanding socio-legal study to include legal images, narratives, and representations in popular culture, blurring the boundary between official and unofficial law.¹⁰ While these authors recognised that analysing such cultural texts can be intrinsically valuable, they also urged attention to the unrealistic or distorting character of such depictions.

Other socio-legal studies have investigated how popular constructions of legal issues are actually complicit in developments of official legal norms or practices, often in ways that arguably undercut social justice. For example, in the 1970s, Stuart Hall and his colleagues showed how media representations contributed to the construction of mugging as a prevalent practice and fed the demand for more vigorous policing and punitive policies.¹¹ Moreover, popular constructions of law in mass media can influence actual practices. Popular culture can shape the public’s expectations regarding police, lawyers, judges, and jurors. Haltom and McCann, for example, have shown how news coverage and popular entertainment contributed to the perception of a litigation crisis in the US that both nurtured demands for legal reform and altered the relationships and practices of civil disputants, including at trials.¹² Other scholars have similarly focused on the production of legality in mass media, how media legality shapes legal practice, and especially how legal narratives on screen are received and made sensible.

Our focus in this chapter is motivated by a different agenda, however. We make no claims about how The Measure of a Man, or the Star Trek series generally, has shaped actual legal practice or understanding, even for the subculture of devoted ‘trekkies’ (or ‘Trekkers’).¹³ Nor are we interested in identifying how this entertaining fable distorts or misrepresents formal legal processes. Our goal instead is to interrogate The Measure of a Man as a provocative text from which we can learn interesting lessons about law, how it works, and how it shapes social interaction and disputing. For our purposes, the difference between low and high art matter little; both provide indeterminate yet rich texts for constructing meaningful reflections about law’s practices and possibilities. As such, our approach fits what Douglas Goodman has called a ‘semiotic’ interpretation rather than either a ‘transmission’ or ‘institutional’ study of the television show.¹⁴

We are especially interested in two interrelated topics intrinsic to the TV narrative construction of law. One is the homology between legal form (especially the form of an adversarial courtroom trial) and narrative form. The Measure of a Man is but one of many TV shows that begins with an interpersonal dispute or alleged wrongdoing and culminates in a trial. Episodes of the various versions of Law and Order routinely climax in a courtroom confrontation. The popularity of shows such as Judge Judy presumably rest on the same capacity to simplify and clarify. Many analysts have recognised not just the extreme fascination with entertainment that focuses on legal trials, but the parallels between the narrative form of film dramas and trial structure. As Carol Cover put it, ‘trials are already movie-like to begin with and movies are already trial-like to begin with’.¹⁵ In his closing statement on Data’s behalf, Captain Picard says, ‘Your Honor, the courtroom is a crucible. In it we burn away irrelevancies until we are left with a pure product….’ And such is the logic of the entire episode, which begins by exploring a conflict over a fundamental question of rights and justice in various trial-like exchanges that precede the formal trial proceeding.¹⁶

One interesting feature of the episode is that it works to extend the life of the twentieth century US model of ‘adversarial legalism’ into the distant future. The episode takes place in a completely unfamiliar and unknowable setting, the future in the twenty-fourth century. Data, the robotic machine with human-like qualities, is purely imagined; there is no equivalent in the scientific or industrial world. In the case of Star Trek particularly, its creator, Gene Roddenberry, ...