Tuesday, March 29, 2016

Societal Framing

The first image traditionally used in film adaptations of Shakespeare’s Macbeth is that of the three witches in the opening scene of the play. They lend a sense of foreboding to the story and are used to frame the unfolding story in terms of otherworldly influences changing the fates of those involved. However, the 2015 film adaptation opens in a different and more nuanced way that provides a subtle lens as to how society frames membership value from start to finish.

This adaptation opens in a stark and foreboding highland scene of grief. A community is gathered around Macbeth and his wife as they mark the passing of their young son during funeral rites. The couple’s loss is palpable and there is an overwhelming aura of hopelessness and futility. The couple is surrounded by a community that seems to lend support. At the same time, the couple stands apart from the community and looks to each other for intimate support. This might not seem remarkable, and indeed might seem logical, however there is a sense of tension in the shadows and space between the community and the Macbeths.

It is only after the funeral that the witches make their obligatory appearance. After this, the story unfolds along the well-known lines written by Shakespeare. Macbeth is victorious in battle and, as predicted, is elevated to the Thane of Cawdor. The elevation is recognized throughout Macbeth’s community in a stunning series of celebrations with the King of Scotland, in which the community and the Scottish hierarchy embraces Macbeth for his valor in battle.

The plan to kill the King of Scotland was already conceived, however Macbeth’s decision to do so appears cemented by the King’s announcement of his son Malcolm as the Prince and presumptive heir. After the celebrations, the plan to kill the King of Scotland is executed by Macbeth and his wife. Malcolm, the erstwhile heir, subsequently encounters Macbeth, who challenges him to take up his father’s mantle. Malcolm rides off in the night to England, unable to assume this responsibility.

With the heir apparent fled, the Scottish nobility selects Macbeth as the new King of Scotland as foreseen by the witches. What should have been a moment of triumph for him is tempered by guilt from the King’s murder and questioning of whether it was worth it. There are of course many moral tensions in these musings, however underlying this is the realization that the achievement was limited because the Macbeths have no children and no line to establish as future kings. Instead, he is installed as a placeholder – someone trusted by society at the moment but in the long run unable to solidify his power because society has defined the ultimate value of a leader as establishing a familial line – and thus establishing a predictable future.

Shortly afterward, out of paranoia caused by the witches, Macbeth orders the deaths of his cousin, Banquo, and Banquo’s young son, Fleance. It was predicted that Banquo’s family would create the line that would rule Scotland and thus they are both perceived as a threat to the identity of Macbeth as a leader and to his ability to exercise the power he killed for. Banquo is subsequently killed, however Fleance is able to escape his would-be assassins.

When Macbeth further becomes afraid of the power exerted by Macduff, a nobleman who had been a close friend, and Macduff flees. Macbeth is convinced that all threats from the Macduff line must be erased and orders the murder of Macduff’s wife and children. The rest of the Scottish court acquiesces to the public murders although there is an unsaid sense that this is the tipping point is respect for and loyalty to Macbeth. Even the power-seeking Lady Macbeth is shaken rigid by these murders and is seen talking to the ghost of her deceased son prior to her own death soon afterward. In these conversations, she laments the ways in which the events since his death unfolded and it seems she seeks to make peace with her son in order to make herself understandable to the aspect of her life that was most valuable.

Finally, there is a battle between Macbeth and Macduff in which Macduff prevails and Macbeth dies at his hand. As the audience is left with the image of Macbeth’s body on a deserted plain, abandoned by the society over which he had once exercised supreme power, it then sees an image of Fleance walking across the plain, off to seek the future that Macbeth sought to deny him through assassination. The 2015 adaptation thus closes as it opens, with a single child who had been part of a community and had been used to define his parents’ place within that community.

There are many areas of pluralism in Macbeth. However, the one that is perhaps least discussed but most decisive in the 2015 adaptation is the way in which society frames identity and inclusion. From beginning to end, there is a consistent thread of identity being confirmed through the establishment of a family in which to function. At the beginning of the film, the Macbeths are seen as supported by the community but also apart from larger society and left to rely on themselves, presumably because this is all that is left for them in the future. This is the case even though Macbeth is a revered warrior and his wife holds a high place in society.  

When Malcolm runs away from his inheritance, society is left without a leader and it turns to Macbeth as a protector but limits his abilities and powers by ensuring that Banquo’s line will continue on after Macbeth. Certainly, in Macbeth’s eyes, this weakens him and makes him less a part of society – instead, he is essentially a place keeper who has won his place due to acts done to protect society.

This sense of not belonging is palpable throughout the rest of the film and drives Macbeth to do the unthinkable and murder an innocent family in a quest to solidify his control on an increasingly disillusioned society. Ultimately, this sense of not fully belonging because he will be unable to contribute to societal stability in the long term is the undoing of Macbeth, while the death of their child and their inability to serve as a family overwhelms his wife. Tellingly, this adaptation of the film ends with the image of a child walking off across the plain, offering the chance that he will return to claim the place that was guaranteed for him by society in the future. The 2015 adaptation of Macbeth places particular emphasis on the ways in which societal values frame those who are members of it and define who might operate on the margins in terms of value even when they seem to operate at the center in terms of prestige.

Tuesday, March 22, 2016

Creating Monsters

Children are often warned about creating monsters, usually in the context of spoiling someone to the point where he thinks he can get away with more than is allowed. Typically, the means of spoiling are rather benign – too many sweets or poor discipline resulting in bad diets or social ostracism due to bad behavior. As adults, the threat of spoiling others is no less real but the consequences are more devastating than the effects of too many chocolates. The film Black Mass, an adaptation of the life of Boston crime boss Whitey Bulger while he was an FBI informant, illustrates the reality of creating monsters on several levels.

The film starts in the 1970s, when Bulger was already an established crime leader in South Boston, heading the Winter Hill Gang. That he had a penchant for crime is unquestionable, although at this point he is seen as a somewhat sympathetic character – he helps elderly women and is a doting father. He has experienced time in prison, which appears to have made him tougher and better suited to lead a criminal enterprise. He has also established a network of trusted associates with whom he shares an increasing affiliation as the depth of his organization grows.

At the same time, the film presents the character of John Connolly, who grew up in South Boston with Bulger before parting ways to join the FBI. Years later, Connolly returns to Boston, this time as a FBI agent. Part of his portfolio involves investigating a rival gang to Bulger’s – neither Connolly nor his fellow agents have a great deal of success in doing this. There is an initial tension between Connolly’s professional life and personal life in terms of past associations with Bulger and continual loyalties to those with whom he grew up.

After failing to infiltrate the rival gang through other methods, Connolly devises an unusual plan for gaining information– co-opt Bulger as an informant. Initially, Connolly’s superiors are reluctant to embrace the use of a known crime leader, particularly when this could lead to them having knowledge of Bulger’s illegal activities but being unable to doing anything based on the agreed upon terms of the informant relationship. Ultimately, the combination of a lack of success through other means and Connolly’s persuasion convince his superiors to use Bulger as an informant. Bulger is at first somewhat uncomfortable with the concept of being an informant since he does not tolerate “snitching” from within the ranks of the White Hill Gang. However, seeing the utility of the arrangement in terms of eliminating a rival, Bulger crafts a justification between informing on his own people and informing on others for the benefit of the White Hill Gang.

Bulger becomes a productive source of information and Connolly is able to use this to further his cases and career. As the information provided by Bulger becomes useful he becomes emboldened, knowing that he has great value to Connolly. At the same time, Connolly and those around him become increasingly amenable to overlooking illegal activities on Bulger’s part – particularly murder, which was strictly forbidden under the original agreement – because of the value of his information. The film depicts a shift in Bulger’s operations from relatively minor to a massive criminal network that operates across other states under the protections afforded by the informant arrangement. At the same time, Connolly draws closer to Bulger and his lifestyle, collecting kickback money, traveling with Bulger and his associates, and adopting a different persona – this is visible to the audience and to Connolly’s wife, an outsider to South Boston who seems to provide a check on Connolly’s growing inability to draw a line with his informant. Even this relationship is shattered, as ultimately Connolly and his wife separate in large part due to his personal and professional involvement with Bulger.

The relationship between Connolly and Bulger continues with few internal institutional checks. There is, it appears, a laissez faire attitude toward the symbiosis that has been created and many are willing to look the other way as long as the arrangement produces successful outcomes. The amount of grey area amassed around the arrangement is thus quite large. This changes when a new Assistant U. S. Attorney questions the true value of Bulger’s information. With stunning rapidity it becomes clear that Connolly has been passing off old or irrelevant information from Bulger as important tips and falsifying other information. In the aftermath, Bulger is publicly exposed as an informant and a wanted criminal and goes on the run for decades. Connolly is arrested. In the end, the informant relationship takes all involved down with it.

In film and in fact, there is no question that Bulger was involved in criminal activity before he became an informant. In this sense, the monster created was not pure to begin with. However, as the film portrays it, Bulger had completed his prison sentence and was working marginally far from the law before the informant relationship developed. Prior to the informant relationship, Connolly is portrayed as a rising star within the FBI.

At the beginning of the informant relationship there was a nexus in needs – Connolly and the FBI needed information and Bulger needed immunity and freedom to develop his organization. Both Bulger and Connolly knew that they were violating some element of the core tenets of their organizations – informing for Bulger and condoning criminality for Connolly – but the benefits appeared to outweigh these issues. It is clear that Bulger and Connolly were operating in a space that was outside the rigid confines of the law – a fact that eventually brought the relationship down – however each believed that they were doing what was necessary to protect their organizations and further themselves.

The risk of creating a relationship that functioned in the grey areas of law – be it statutory law or the code of an organization – was worth the reward and there were certainly rewards to be had for both parties. In this way, the informant relationship functioned symbiotically – each party can be seen as creating a monster in the other through the informal mechanism that was achieved between them. Perhaps obviously, Connolly creates a monster in Bulger by empowering – and encouraging – him to engage in criminal behavior under the cover of providing vital information. What is perhaps less obvious is that Bulger created a monster in Connolly by encouraging him to condone and indeed be a party to criminal activities knowing that Connolly could hide under the cover of his official status. Through the use of informal understandings of the relationship that were allowed to function outside of the formal law per se, all parties to the relationship were “spoiled” in a sense, and all parties became monsters as a result. In this instance, however, the result was far greater than a stomach ache from too many candies.

Wednesday, March 16, 2016

Protecting Friends and Enemies

The film Bridge of Spies is most often referred to as a Cold War drama – and indeed it is. Apart from this, however, it is also a story of the contours of the relationship between the construct of friends and enemies and the need to protect that enemy from potential harm. This relationship is developed in the setting of informal law that comprises tenets of social and moral norms.

At the beginning of the film, James Donovan – the protagonist and a well-established insurance lawyer – is approached by those acting for the government to represent Rudolf Abel, who is being charged in the US as a Soviet spy. Donovan is reluctant to accept this assignment, particularly given that his only criminal law work occurred as part of the Nuremberg trials. However, the chief partner in Donovan’s law firm is insistent that Donovan take the case.

It is clear from the outset that Donovan is a principled man and advocate who, once representing Abel, wants to provide him with thorough representation. From the first meeting onward, there is a sense of mutual respect between Abel and Donovan. Abel is an unlikely figure for a spy – not dashing and young but rather older and intellectual– and Donovan seeks to understand him. At the same time, he establishes a sense of protectiveness for Abel, trying to ensure that basic dignities are afforded to him. While Donovan continues to follow a zealous path for representing his client and crafting a defense, he is bluntly informed by the government and the judge that it is a case he cannot win. As his representation of Abel continues, Donovan is increasingly dismayed at the pre-determined outcome of the case. When the inevitable guilty sentence is handed down, Donovan does the unthinkable and appeals. The public is not as understanding of Donovan’s concerns for justice and fairness, and he rapidly finds himself at the center of a public controversy over appealing the guilty verdict of an enemy spy. Donovan faces public outrage, threatening comments, ostracising by the law firm partner who once encouraged him to take Abel’s case, and a shooting at his home. Ultimately, the appeal is denied and Abel remains in prison, where Donovan continues to pay him visits. These are not official visits as much as they are visits between friends – Donovan brings amusements for Abel and they slowly learn about each other as people rather than friend-foe or attorney-client.

Throughout the entire trial ordeal, the one victory Donovan is able to win is the judge’s agreement not to sentence Abel to death. Donovan is able to convince the judge that Abel is worth more alive than dead in the event that a prisoner exchange became necessary in the future. Donovan’s value as a clairvoyant is proven when an American pilot is captured by the Soviet Union and convicted of espionage. At this point, Donovan has returned to his private legal practice. An abrupt telephone call changes Donovan’s life yet again. This time, he is enlisted to assist as a private negotiator in brokering his prophesied prisoner exchange between Abel and the American pilot. Later, this expands to include a young American graduate student caught on the wrong side of the Berlin wall on the day it was sealed.

In Donovan’s role, he carries no official capacity and thus has no official protections when he is asked to travel to Berlin to execute the exchange. This of course makes Donovan vulnerable and his experiences in both East and West Berlin emphasize it. Throughout, Donovan is concerned with the lives of the captured Americans and particularly with Abel – while he is willing to assist in brokering the exchange he is not willing to undertake a course that will harm anyone. Abel is a hidden spectre during the negotiation but this does not mean that Donovan is unaware of the impacts of the potential exchange on all parties involved.

Finally, it appears that Donovan has negotiated an exchange of the two American prisoners for Abel. The pivotal moment occurs when the exchange of Abel for the pilot is set to occur. This is a very tense moment and a very personal one for Donovan and Abel, who know that their friendship is what brought them to that moment and also that it will end when the moment is complete. Donovan appears to have second thoughts and is concerned for Abel’s safety once he is returned to Soviet control – Abel remains unconcerned and philosophical, explaining to Donovan how he will know whether Abel is to be warmly welcomed at home. In a poignant moment, Donovan watches Abel cross into Soviet control and they share a look before they each disappear into cars headed for other sides of the world.

The relationship between Donovan and Abel is poetic in many respects, and is an excellent microcosm for the realisms of the Cold War’s impacts on people rather than simply at the state level. Beyond this, however, the relationship demonstrates the informal ways in which friend may protect foe even when the public sees only the enemy. The judicial proceedings against Abel were portrayed as designed to yield a specific result and necessary simply to provide the American public – and the world – with proof that the US justice system applied equally to friend and foe. Indeed, for official purposes Abel’s life was spared only because of the potential utility it could have in the future. The formal was thus protecting the enemy only to the extent that the enemy could be of use.

In contrast, Donovan protects Abel – the enemy – through the informal. At first, this is because of Donovan’s personal and professional sense of morality. Later, this is because of the personal relationship that develops between Donovan and Abel and Donovan’s desire to protect Abel as a friend rather than simply as a client. It is also the informal that allows Donovan to act as a private negotiator and broker the exchange of 3 people deemed enemies by one state or another, thus seeking to protect all 3 by returning them to their friends. Cinematically, the informal makes for a touching story and ending. In application, the film demonstrates the importance of the informal as a means to fill in the gaps created by the formal.

Thursday, March 10, 2016

Coming to Identity

Society uses ages of majority to define personal identity in many ways, for example the ages at which one can drive a car, vote, serve in the military, marry, and legally achieve majority and independence. These are all indicia of adulthood and coming of age. They are also benchmarks through which identity can be created – as member of society with full rights and privileges, a driver, a voter, a soldier, or a spouse. Combined, law creates a written system through which one comes to identity as well as age of majority.

The film Creed documents another phenomenon – an unwritten system of coming to identity – through the story of Adonis “Donny” Johnson’s evolution into Donny Creed.  The film begins with a young Donny fighting at a group home. Shortly afterward, a woman, Mary Anne, visits Donny and makes reference to his father. To Mary Anne’s surprise, Donny responds that he has no father. It soon becomes clear to the audience that Donny’s father was Apollo Creed, who died prior to Donny’s birth, and that his birth was the result of an extramarital affair. It also becomes apparent that Mary Anne is Apollo’s widow. To honor Apollo’s memory, Mary Anne takes Donny in and gives him a home – teaching him about his father while shunning the idea of him fighting.

The next scenes of the film show Donny as an adult – at least in terms of age – boxing in Tijuana and then working in a corporate position in Los Angeles. Although successful, he seems uncomfortable in his office, as if he is a child playing dress-up. In a bold move, Donny presents his boss with a letter of resignation, explaining that he feels the need to do something else. He then goes to the boxing gym he has been using – the gym affiliated with his father – and announces that he is ready to become a professional boxer. His trainer shuns this idea, belittling Donny’s achievements and denying the idea that Donny would be able to fight professionally – in essence, denying that he can live up to the family legacy. Despite the humiliation, Donny is undaunted. He tells Mary Anne about his plans and she is visibly upset, recalling that Apollo himself lost his life in the boxing ring. Still, he moves to Philadelphia to train.

The film then shows the audience a Philadelphia restaurant – Adrian’s – at the end of the evening. Inside, the walls are covered in photos. The restaurant is empty except for Donny, who is transfixed by one photo. As he stands staring at the photo Donny encounters the restaurant’s owner, Rocky Balboa. Rocky is taken aback when he is barraged with questions about the photo depicting the epic fight between Rocky and Apollo. Donny is at first reluctant to reveal his relationship to Apollo but ultimately does, shocking Rocky who, like the rest of the world, was unaware that Apollo had an illegitimate son. Donny asks Rocky to train him but Rocky refuses, arguing that Apollo would not want him to be a boxer.

Donny rents space at Rocky’s old gym and is persistent in his quest to have Rocky train him. Throughout all of this, Donny uses his mother’s last name – Johnson – and does not divulge his father’s identity to anyone. Eventually, Rocky stops by the gym. Rocky attracts attention, particularly from the gym’s owner, who wants Rocky to train his own son. Rocky politely declines and proceeds to work with Donny on an increasing basis, annoying the gym’s owner.  The gym’s owner soon proposes to Rocky that they set up a fight between Donny and his son. Knowing that the son is an advanced boxer, Rocky is reluctant to accept the offer. Donny, however, is insistent that they accept the offer and brashly believes that he can win. Rocky agrees but insists that Donny move in with him and begin training at another gym.

Donny is already comfortable in his apartment and has found a love interest in Bianca, his neighbor. However, for the sake of winning he agrees to move into a spare room in Rocky’s house, where he is surrounded by the history of Rocky, Apollo and boxing in general. Rocky’s training regimen is severe and “old school,” focusing on discipline and mental training as much as on physical training. At first, Donny fights some of these measures but ultimately he begins to thrive under them. As Donny Johnson, there is no expectation of him from anyone other than Rocky, and even then Rocky simply wants to see what Donny can do. Certainly, Donny wants to box because his father was a boxer and wants to live up to the image of his father that he has created in his own mind but his focus seems to be more on the winning aspects of his father’s legacy than anything else.

Before the fight, the gym owner tells Rocky that he’s done some digging and knows that Donny has “Creed blood.” Rocky explains Donny’s reticence to reveal his name and asks that this be kept quiet. Donny wins the fight. The next morning the secret is out – somehow, the sports media becomes aware that Donny is Apollo’s son. It is easy to see that Donny is conflicted over the revelation – it is no longer necessary to keep the secret, but now the world of boxing and the world in general views him differently. There is also a deeper personal question of who he is and what his next objective will be professionally and personally.

The latter question is answered when an offer comes to fight a well-known English boxer, Ricky Conlan. Rocky wants to decline the offer, realizing that Conlan simply wants to fight a Creed. This is confirmed when Conlan’s manager makes the fight contingent on Donny fighting as “Creed” rather than “Johnson.” The appeal of the fight is too much for Donny to resist. This is more than hubris, however. For the first time he embraces the idea that he is not only Apollo’s son but also that he can in fact live up to the family legacy. In the moment when he tells Rocky that he wants to take the fight – conditions and all – he begins the process of coming to and claiming his identity. While training, Donny is repeatedly overcome by doubts and is particularly offended when he is referred to as “Baby Creed.” When the time for the fight arrives he is visibly nervous and Conlan tries to play on this by taunting him about being born into a legacy he cannot live up to.

Mary Anne sends Donny a pair of boxing shorts with the same design as Apollo’s and both the Creed and Johnson names on them. This seems to encapsulate who and what he is fighting for. The fight is a brutal battle that goes the full 12 rounds against all expectations. Both fighters are bloodied and exhausted but in a contested vote Conlan is deemed the winner. Conlan’s attitude has visibly changed and he is respectful of Donny as a fighter, seeing past the association of being simply Apollo’s son. The crowd is equally accepting, chanting “Creed” in support of the underdog it jeered 12 rounds beforehand.

The film is not a traditional coming of age story – legally, Donny has already come of age. Rather, this is a coming to identity story, meaning that Donny goes through a variety of stages in order to claim his own identity and take possession of his name, with all that it represents. Throughout the film, Apollo is a constant figure – sometimes as an ideal to live up to and sometimes as a source of questions and lore. No matter the capacity, Apollo created a name and a legacy for himself and Donny is acutely aware of the weight that goes along with the name.

Donny’s initial choice to box as Donny Johnson was not an attempt to deny his father as much as to make a name on his own. This is admirable but masked the inner knowledge that he was indeed Apollo’s son and there would always be a legacy to live up to. Donny had to go through a variety of stages – akin to reaching various steps toward full majority – in order to claim his identity and reconcile his family legacy with his own. This could only be done after a series of tests – being revealed to the media, facing the unwanted attention of the Creed name, and fearing that he would not live up to the legacy created by the father he never knew, to say nothing of the actual fights themselves.  

This also required that he create his own family and support system out of people who did not seek him out because of his name and who saw him in the same light once they knew his name. Ultimately, Donny’s coming to identity required him to embrace who and what he was through his own aspirations. Once he realized that he could in fact live up to the family name and realized who he was as a person, notably during the fight, Donny came to his identity. It is through this unwritten process that we see the establishment of a person who is able to function fully for and as himself while understanding who and what he is.

Tuesday, March 8, 2016

Criminal Law, Morality and The Imitation Game

Every year when I teach my Criminal Law & Procedure class at Robson Hall, we invariably come to the topic of harm and morality rather early on. Specifically, we speak about the basis for prohibiting certain conduct as "criminal". Should the state only criminalize behaviour that is essentially harmful to other persons, or should it also prohibit conduct that may solely be based on purely moral considerations? 

An important example used to illustrate the problem of a strictly morality-based rationale is the criminal prohibition of consensual sexual relations between individual adults of the same sex. During the 1950s, a British parliamentary committee was created to examine the decriminalization of prostitution as well as consensual sexual relations between same-sex partners. After much deliberation, the committee recommended the latter. This met with certain opposition. One of the more famous opponents to such decriminalization was Lord Patrick Devlin who argued that morality on its own was a perfectly sound basis for legislating with respect to the criminal law. To determine what constituted the common morality, Devlin suggested that we must examine the feelings of the "reasonable man" on the Clapham bus. The forces behind the moral law were, according to Devlin, intolerance, indignation and disgust. Devlin observed that the reasonable man was not necessarily rational. In the 1960s, Lord Devlin's position did not win out. The prohibition was repealed. To his credit, Devlin later reversed his earlier position and eventually supported legislation changing the law. Similar developments took place in Canada in 1968.
Before these legislative changes took place, many people were convicted of criminal indecency based on nothing more than (consensual) sexual acts. One such person was Alan Turing, a leading British code breaker during the Second World War. He and his team decrypted numerous coded Nazi messages that were critical to the British war effort. Following the war, he was arrested and convicted of gross indecency. As an alternative to incarceration, he was chemically castrated. After a year of government-mandated hormonal therapy, Turing committed suicide.

Turing's story was depicted in the film, The Imitation Game (TIG). Much of the film concerned his team's painstaking but ultimately successful efforts to crack Germany's encryption code. Nevertheless, the film also serves as an important creative work concerning law and popular culture. As a product of popular culture, TIG illustrates the brutality of the criminal law when deployed to enforce the morality and prejudices of Devlin's "reasonable man". Indeed, interspersed throughout the film are scenes of Turing's social isolation as an awkward genius and closeted gay youth in a country and culture which legally and socially did not tolerate homosexuality. Yet the harshness of the law was more prominently illustrated when after having played a pivotal part in the war effort against the Nazis, Turing was charged, convicted and cruelly punished (though given the nature of the crime - any punishment would arguably have been cruel). By the film's end, the audience learns that Turing was granted a posthumous royal pardon amid the 49,000 men who were similarly and unjustly convicted but received none. While at one level, TIG illustrates the harm inflicted by discriminatory laws on an unsung hero, it reminds us that many others, heroes or otherwise were targeted and victimized by such laws.

As a law film (or at least one aspect of it), TIG engages in "cinematic judgment". As noted law and film scholar Orit Kamir observes, law films can engage their audiences in cinematic judgment by training and moulding viewers in judgment while examining legal norms, logic and structures. Another way to consider this, in Kamir's words, is that law films perform acts of wide-scale legal indoctrination. She writes: "A law-film can be read as passing cinematic judgment when, in addition to portraying an on-screen fictional legal system, it offers alternative cinematic constructions of subjects and societies, of justice and judgment." Building on this, Kamir asserts that  "a law-film may constitute a community and value system that criticizes or undercuts those supported by its fictional legal system."

TIG performs acts of legal indoctrination against discrimination. It illustrates, at least with respect to the human rights of sexual minorities, the perils and injustices perpetrated through the imposition of morally based criminal legislation. TIG encourages judgment and critique of an unjust and unfair system that targets vulnerable persons, here, in particular, a war hero. Rather than a deviant, TIG reconstructs Turing as a heroic subject who worked long hours to serve his country and fight against the Third Reich. In so doing, it undercuts the value system portrayed in the movie, which reflected the norms of an earlier time.

TIG is both an example of being critical of past discrimination toward sexual minorities and its present and future. One cannot but help notice that the film is created in a period where there is a raft of discriminatory penal laws singling out LGBT communities that currently exist and/or contemplated in numerous states and societies. Accordingly, TIG is also prospective and implicitly engages in judgment toward states that currently engage in discrimination through the criminal law. 

As I discussed in an earlier post, films and other visual depictions may be useful tools with respect to legal education. As is the case here, the discussion of harm and morality as a basis for legislating criminal prohibitions is not an abstract exercise of socio-political power. It is one that had/has a tremendous impact on those affected by morality-based legislation. 


Jeffrey Gettleman, "Uganda Anti-Gay Law Struck Down by Court" The New York Times (1 August 2014).

Orit Kamir, "Why ‘Law-and-Film’ and What Does it Actually Mean? A Perspective" (2005) 19:2 Continuum: Journal of Media & Cultural Studies 255.

Anna Leach, "NGO alert: Malaysian court upholds anti-trans law" The Guardian (12 October 2015).

Wednesday, March 2, 2016

Grounded Law

Often, the idea of living without ties to a centralized, law creating and enforcing body can be portrayed as ideal. However, in the film The Martian, audiences are presented with an entirely different construct of jurisdiction from the perspective of those on Earth and one person living outside of it.

At the beginning of the film, the audience is introduced to the crew of a NASA research and information gathering mission to Mars. The crew has clearly worked together and formed a deep bond that is tested when a sudden storm compromises the safety of an active information gathering session and threatens the lives of all crew members. While the crew members race to escape the planet one crew member, Mark Watney, is struck by a piece of flying debris. From his lack of responsiveness and the severity of the blow, it appears that he is dead, and the mission commander and crew struggle with the desperate decision to leave his body behind in order to save everyone else. Though anguished, the crew ultimately leaves Mars and Watney behind.

Unbeknownst to the crew, Watney regains consciousness after the storm clears. The audience is the only witness to Watney’s painful realization that he is indeed alone on Mars and without a functioning communications system to reach NASA, although he is able to access the mission basecamp for shelter and basic resources. Watney does not resent his crewmates for leaving him behind – quite the opposite, he is glad that they seem to have escaped the storm unscathed.

These scenes are juxtaposed with scenes from Earth, where there are two reactions to Watney’s apparent death: personal and political. Personally, many who worked on the mission are quite upset by Watney’s apparent death and the decision not to send any form of rescue mission to retrieve his body or confirm his death. Politically, agency heads appear concerned about the potential impact of the fallout from Watney’s death on the future of the entire agency. As a result, there is a desire to move on from Watney as quickly as possible in order to deflect attention from any allegations of agency failures. Despite this, there is a core group that believes it is the agency’s obligation not to consign Watney’s body to Mars.

On Mars, Watney would likely agree with that sentiment and yet there is no overarching sense of panic. There is of course a natural sense of desperation and frustration that strikes him in waves. However, the audience also sees Watney as functioning and maintaining the basic laws and morals that he brought with him from Earth. He is forced to open his crewmates’ personal bins in search of food and other survival items but does this in a way that evinces remorse (although this remorse is tempered with a good degree of humor that demonstrates his continuing humanity throughout the ordeal). He maintains program protocols such as daily check-ins via video recordings (though no one else can access them), recycling procedures and even uses the essential unwritten laws of society – such as table manners – during his quotidian activities. Throughout, there is a sense that Watney is aware of his stark freedom from earthly law and morality on Mars and yet does not believe that he is in fact unbound from these simply because he is outside of earthly territorial jurisdiction. When he is required to travel a distance on Mars in order to eventually be rescued, Watney jokes about being a “space pirate” and at the same time reinforces his understanding of the applications of earthly international law. In this way, holding onto legal tenets can be seen as a way of preserving Watney’s identity and humanity.

Watney realizes that he must try to re-establish communications with NASA. At the same time, a dedicated team from NASA remains convinced of the potential to find his body – living or not. Both Watney and the NASA team members are stunned when they are eventually able to reconnect. This provides Watney with a much-needed sense of connection to the outside world and hope for his potential survival. At the same time, the discovery that Watney is still alive shifts the burden to NASA to determine the appropriate course of action. Again, there is a split between those wishing to preserve the agency by not risking another mission and rather consigning Watney to Mars for years and those who believe they must retrieve him because anything less would be immoral and illegal. This includes the commander of the mission to Mars and Watney’s crewmates, who ultimately decide to retrieve him in accordance with a plan that involves the use of Chinese resources as well as American resources. To the commander and crew this is a basic question of their duty to a crewmate and particularly of the commander’s legal and moral responsibility to her subordinate. Those on the ground, who spend months of their lives obsessing about ways to bring Watney home, also see it as a moral duty and are not above asking another country for assistance when the issue is life. The deepest objection is seen as coming from quarters who attempt to politicize the law by arguing that the agency’s duties to Watney ceased, however even these views are ultimately changed by public pressure that is based on morality.

The Martian is consistently oriented around the morality of saving Watney. The plan to save him is technically difficult, involving great personal risk and uncertainty for a number of people. They undertake this risk willingly, however there is a strain on them and on Watney, who questions whether he is worth the risk. Throughout this, he continues to recognize being bound by legal tenets from Earth – even those relating to outer space. In the end, Watney is safely brought home after several very close calls during the rescue.

The Martian is in itself a fascinating film that forces audiences to look inward and question how they might react in circumstances such as Watney’s. A subtle thread throughout the film is not only the immediate reaction but how far the audience would believe itself to be bound by law and morality in a situation such as Watney’s, where there is no one else to judge or even observe. This is balanced against another theme – that of how far one believes one is bound by these same laws and moral tenets when everyone is looking and seeking to find fault. This leads to the essential issue of how far one is required to go when the future of something larger than oneself is at stake. Although in the immediate these questions are answered to a certain degree by the overall plot, The Martian challenges audiences with these larger questions and presses the question of how far law is grounded.