Saturday, July 3, 2010

A Few Good Norms

In any given social setting and/or encounter, a number of norms regulate, govern or otherwise influence human conduct. Depending on the circumstance, these may include the laws of the state but may also entail the customary rules and norms of everyday society. This is in essence one of the central teachings of legal pluralism. In some circumstances, the norms of the state may move in lockstep with the rules of everyday life, while in other situations they may clash, leading one to decide which normative path to follow at any given moment.

A number of films and television programs focus on state-centric law or legal disputes contested in courts of law. However, even within these legal courtroom-centric dramas lies a number of interesting stories about how customary rules (that is non-state norms) have an influence or impact on the conduct and behavior of the characters in the story. As one illustration of this, I shall focus here on the film, A Few Good Men, (AFGM) starring Tom Cruise, Jack Nicholson, Demi Moore, Kiefer Sutherland, and Kevin Bacon. Written by Aaron Sorkin, and based on his play of the same name, AFGM focuses on the trial of two marines who are subjected to a court-martial for the administering of an unlawful disciplinary action called a Code Red against a fellow marine, William T. Santiago, which led to his unexpected and unplanned death. Although illegal, Code Reds are deemed to be socially acceptable at least within the marine corps in Guantanamo Bay. Indeed according to the story, these can involve a number of actions, including the shaving of an errant marine's head to physical beatings. Such actions transpire when the target of the Code Red has committed some (perceived) breach of the customary rules or codes that other soldiers subscribe to.

In AFGM, Santiago does not live up to the standards of the other marines on the base. Due to personal health conditions he cannot perform many of the physical tasks as quickly or at the same level as his colleagues. Furthermore he is consistently late for meetings and his barracks are often or at times in disarray. The consequence of this is that he becomes ostracized amongst his peers. In order to secure a transfer, he defies the chain of command and writes to a number of non-base officials and politicians conveying his problems on the base. In exchange for his transfer, he is willing to provide information about an illegal shooting by one of the members of his corps and higher ranking soldier, Lance Corporal Harold Dawson. Information about Santiago's letters and requests reach the desk of the base commander, Colonel Nathan Jessep, played by Jack Nicholson. In Jessep's view, Santiago violated a number of rules, including the breaking of the chain of command and the failure to perform to the standards of other marines. As the story unfolds, we learn that Jessep orders Lieutenant Jonathan Kendrick (played by Kiefer Sutherland) to "train" Santiago by administering a Code Red. This is despite the fact that Jessep has received a memorandum from a superior officer indicating that such actions are not to be tolerated. Jessep states that Code Reds form a necessary part of close infantry combat training, particularly in a hostile zone where Cuban soldiers are so close by, and thus ignores the memorandum. Kendrick then orders Dawson and another private, Downey, to perform the Code Red.

As part of the trial strategy for Dawson and Downey's joint defense, Lieutenant Daniel Kaffee (played by Tom Cruise) mounts a defense whereby they argue that the defendants were ordered by Kendrick to perform a Code Red on Santiago, even though this was told only to Dawson in a manner that was and meant to be clandestine and given moments after Kendrick formally ordered the remainder of the unit to leave Santiago alone. As those who have seen the film and its dramatic climax, Kaffee is able to secure from Jessep an admission from the witness chair that he gave the order to perform the Code Red on Santiago. Throughout much of the film, the prosecution's position, buttressed by statements supplied by Jessep and Kendrick, are that Dawson and Downey acted without any such authorization.

AFGM presents a number of interesting issues related to law (including the interrelationship between law and resistance which I shall be tackling in part in a paper later this year), but what I shall focus on here is its exposition of the customary rules (particularly within the marine corps at Guantanamo Bay) and their impact on the conduct of Dawson and Downey.

To be sure, a central aspect of the defense's case was the fact of Dawson and Downey being ordered to perform the Code Red. Yet, what we learn in the midst of Dawson and Downey's interviews with Kaffee and other defense counsel, is their belief that their actions were correct as Santiago violated the customary norms that the marines subscribed to - that is - loyalty to "unit, corps, God, country." Because Santiago stepped outside the chain of command and was threatening to report Dawson's shooting incident without first approaching Dawson, Santiago broke the code. Thus for Dawson and Downey, the Code Red was a legitimate practice amongst the unit which received further legitimacy when ordered by Kendrick.

As part of the defense strategy, the goal was to demonstrate that Code Reds occurred as a matter of regular and accepted practice and as part of the normative legal framework that operated on the base. In order to demonstrate this, Kaffee calls Corporal Jeffrey Barnes (played by Noah Wyle). Barnes testifies that he was the recipient of a Code Red himself when during assault drills, his gun slipped out of his hands, because he failed to apply resin on his hands as they were taught.[1] On cross-examination, Captain Jack Ross, the lead prosecutor (played by Kevin Bacon) attempts to identify the official legal source that justifies the practice of Code Reds. amongst marines on the base. Ross hands Barnes the Marine Outline for Recruit Training and subsequently a Standard Operating Procedures manual for Barnes' company at Guantanamo Bay. In both cases, Barnes informs Ross and the court that neither book speaks to or describes Code Reds or any other form of disciplinary procedure that they are expected to perform. Their brief exchange that follows is worth noting:


Corporal Barnes, I'm a Marine. Is there no book, no manual or pamphlet, no set of orders or regulations that lets me know that as a marine one of my duties is to perform Code Reds?


No sir. No book sir.


No further questions.

In this brief exchange, Ross attempts to make the point that where not explicitly authorized by legal authorities, Code Reds clearly stand outside of any regular normative framework and therefore completely invalid. What follows is Kaffee's argument through re-direct:


Corporal, would you turn to the page in this book that says where the mess hall is?


(Laughs) Lieutenant Kaffee, that's not in the book, sir.


(Feigning perplexity) You mean to say that in all your time at Gitmo, you've never had a meal?


No sir. Three squares a day, sir.


I don't understand. How did you know where the mess hall was if it's not in this book?


Well, I guess I just followed the crowd at chow time sir.


No more questions.
The intent of the passage is to reveal that notwithstanding the absence of explicit directions that Code Reds are part of the official standard operating procedure, they are still part of the (informal) code of conduct at the United States marine base in Guantanamo Bay - just as natural as eating and finding the mess hall without having it specified in a book. So internalized is it that it is something expected by soldiers to occur if they fall short of expectations, like turning up late at meeting or keeping their barracks in disarray.

This was a brief example of how the rules of legal normativity that fall outside the norms issued by the state can have a substantial impact on the conduct of others within a particular social field. However as mentioned at the beginning of this posting, customary rules that fall outside of those set by state authorities may clash not only with those of the state but with other normative principles. At the end of the film, Dawson and Downey are acquitted of conspiracy to commit murder but are convicted of the fictitious charge of conduct unbecoming a United States Marine (rather than conduct unbecoming an officer) and are dishonourably discharged. Thus the laws of the state as applied by a jury deem their actions invalid (although legitimate at the base).

However this customary norm may also conflict with another customary norm that governs marine ideology. After their verdicts are read out, Downey professes through a haze of confusion and dismay that since Jessep admitted giving the order, they did nothing wrong in administering the Code Red. Dawson then advises Downey that they did do something wrong (even if they followed orders). "We were supposed to fight for people who couldn't fight for themselves. We were supposed to fight for Willie." Although the message comes off in a rather tacky way, and the realization rather belated, a customary rule is not completely accepted or unexamined. They may be trumped, at least in certain circumstances. It's not necessarily clear that Dawson believed that Code Reds might not be appropriate in other cases, but in Santiago's a clearly physically weaker individual, the application of the Code Red shouldn't have been rendered.

AFGM provides a number of interesting perspectives on law, one of those as this posting has tried to illustrate is the exposition of legal pluralism. The point of legal pluralism is not to suggest that the norms of every day life and society are necessarily better or more important than those of the state or that the latter are rendered meaningless by the sometimes greater pertinence of such customary rules in certain social fields. It is merely to recognize empirically that a wide variety of norms not rooted in the state have tremendous purchase, meaning and impact in everyday life. AFGM is just one illustration of this and particularly that following this particular norm in this specific context had tragic results.

[1] During Barnes' testimony on direct examination, Kaffee asks Barnes why Santiago wasn't subjected to a Code Red considering all the foul ups that he committed. Barnes testified that it was because Dawson ordered the others not to touch Santiago. This was in an effort to show that Dawson was not predisposed to committing a Code Red but for the order by Kendrick. Of course, the court is not privy to the fact that Dawson's compliance with Kendrick's order was in part willing because of Santiago's defiance of the chain of command as discussed above.

Further Reading

Daniel Jutras, "The Legal Dimensions of Everyday Life" (2001) 16 C.J.L.S. 45.

Roderick A. Macdonald, "Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15 Ariz. J. Int'l & Comp. L. 69.

Martha-Marie Kleinhans & Roderick A. Macdonald, “What is a Critical Legal Pluralism?” (1997) 12 C.J.L.S. 25