Hegemonic Deterrence

People in various workplaces are confronted with a number of challenges related to discrimination and harassment. In many ways, they are sent signals to just keep quiet and "put up with it." When they don't, they face retaliatory measures - including lateral transfers; loss of responsibilities; being sent signals that their future at the workplace is in doubt even if their work is nevertheless more than satisfactory; and, of course, termination.

These signals can be overwhelming and may stop someone from pursuing a legitimate grievance. Even when they do, there is sometimes a tendency to feel (or at least leave an impression that they feel) guilty for saying something, "for causing trouble."

A recent lawsuit was filed in the United States Federal Court for the Southern District of New York. The plaintiff, Jaime Laskis, is a lawyer who formerly worked at the New York City office of a Canadian law firm, Osler, Harkin, and Harcourt, LLP. Her claim alleges sex discrimination and retaliation for drawing attention to the alleged discrimination. You can read more about the action here (the Toronto Star article online previously contained a link to access a copy of the original complaint filed with the district court but seems to no longer be available).

Something that Ms. Laskis said to the Toronto Star illustrates the hegemonic deterrence against speaking out (as well as to the demeaning experience of being discriminated against). She says:

“It's a horrible situation. It has been a really difficult process. I'm not this kind of person. I'm not a troublemaker. I'm not even a loud voice. I just keep my head down and do my job.”

Her words are instructive and speak to the larger narrative and construction in our culture(s) of those who supposedly complain about wrongful treatment. One can see this illustrated in a number of films. They are (made to feel like) "troublemakers" and/or "whiners". Such troublemakers are people with loud voices - read: "loud mouths". They are people more interested in poking their head up merely to get attention simply for the sake of fulfilling some need to self-aggrandize. They are not people who are interested in doing their job.

The reality is of course, someone who has a bona fide claim of discrimination is not a troublemaker for raising the issue through a legal claim or through internal channels at the workplace. They are merely drawing legitimate attention to unlawful and discriminatory conduct. They are, in a sense, whistleblowers, for they call attention and raise issues about wrongdoing that may not be known and need to be addressed. By this, I don't mean that it is not known more generally that discrimination could or does happen in various workplaces, including law firms, but that it is, if proven, happening in a specific firm during a specific period and perpetrated by specific person(s). It moves from the general and abstract (discrimination happens) to the tangible and specific which may be subject to redress. Blowing the whistle (which, yes, also serves a personal and legitimate interest), has a larger utilitarian purpose. It serves notice to some that similar conduct may be subject to court action - not to mention the (potentially) ensuing damage to the reputation of the individual and/or the firm. It also sends a signal to those inside the firm or other workplace who are being subjected to this treatment that they have options.

Using a metaphorical "loud voice", one shatters the expected silence that the discriminated and harassed are expected to endure through hushed tones and a supplicating demeanor. In other words, loud voices aren't necessarily the ones that are discordant. What is discordant are statements made to or about women (or other marginalized groups) that sound like the following. A senior partner at the firm (allegedly) states to an employee who is going to attend graduate studies in law: "that's great you are going to Harvard - you might meet some pretty women pretending to get a legal education." Or, even more priceless (and again allegedly) said by the same partner with respect to female employees taking maternity leave:

[T]hat's why I hate working with women, because they just get pregnant and leave. Out of every three years you only get one good year out of them [emphasis added].

As told to Ms. Laskis specifically, the partner advised her that she had to demonstrate that she was more than "just a pretty face." Furthermore she was purportedly advised that she was "not helping herself coming to work looking well put together." This was despite the fact that she was recognized for doing consistently good work reflected in performance reviews.

Clearly, sometimes keeping one's head down and doing their work allows further discrimination and abuse to happen.

If all that Ms. Laskis claims is true, she, is not the troublemaker. The errant partner is and so is the firm for allowing it to occur (on a vicarious liability theory). Furthermore, in pursuing this case and hopefully being vindicated along the way if she can prove her case, she helps to challenge the hegemonies of deterrence that expect the discriminated to not only accept the wrongdoing but are made to feel like they have something to be ashamed of when speaking out.

Sources:

James Hathaway, The Law of Refugee Status (Markham, ON: LexisNexis Canada, 1991) at 219 (speaking about the enforcement of international human rights law being dependent on publicity and moral probation. While the context in which Professor Hathaway speaks about it is different from what is addressed here, I think the concept nevertheless has resonance).

Michele Henry, "Woman Alleges Sexual Discrimination in Lawsuit Against Toronto-based Firm" The Toronto Star (15 February 2011), online: http://www.thestar.com/news/article/938888--woman-alleges-sexual-discrimination-in-lawsuit-against-toronto-based-firm?bn=1

Laskis v. Osler, Hoskin & Harcourt LLP, 11-Civ-0585 (S.D.N.Y. 2011).

Communities of Hope

In a previous posting on this blog, I discussed the idea of creating communities – and perhaps alternate realities – through the internet, using the film Julie and Julia as a frame. This posting will continue to discuss the idea of creating community through media, albeit in quite a different form and purpose.

On August 5, 2010, a goldmine collapsed in Copiapo, Chile. Those miners who were close to the entrance of the mine escaped, however, when the dust settled, 33 miners were missing inside the bowels of the mine. Over the next 17 days, rescuers worked to find any signs of life from these trapped miners, and the world began to pay attention to what might easily have been expected to result in a massive tragedy. Indeed, as time passed doubtless many domestic and international viewers of television and readers of the news prepared themselves for the worst. When resolve began to break down a bit, President Sebastian Piñera of Chile insisted that the rescue efforts continue – at the end of the 17 days, his resolve was rewarded with a note sent to the surface from the miners stating that all 33 were alive. Ultimately, all 33 miners had been eating lunch in a protected capsule – designed to function as a place of safe haven during mine collapses or disasters – during the collapse, and had survived. Indeed, news from below the ground indicated that the miners were, overall, in better health than expected, although they were starting to run low on food and water after 17 days without outside supplies.

With this news, the international media and the international community were captivated by the tale of these miners and their fates. Updates on the conditions of the miners and the projected time frame for their rescue were nearly daily features in the international news, and certainly the story gripped Chile domestically. Over the next 52 days, the world watched in awe as small holes were drilled deep in the ground to provide the trapped miners with food, water, medical supplies, and other materials, as well as to provide the miners and their families/loved ones access to each other via video camera. Several countries sent experts to Chile in order to assist the miners with maintaining the mental fortitude needed to survive the ordeal – including those from NASA who train astronauts. At the same time, experts from a variety of countries ranging from Austria to the US went to Chile to advise on and oversee the planning and implementation of the daring rescue plan which would be necessary to free the miners.

While these practical – albeit truly amazing – elements were being tended to, the media, particularly television and internet news media outlets, were busy with a very different type of construction. As viewers from around the world began to learn of the situation at the mine they also began to engage with the miners and their plight on a more personal level. It was possible for one to encounter daily updates on the miners regardless of the language one spoke or where one was located. As an entity, the international viewing public saw the grainy images of the miners from deep below the ground and began to view the miners as more than abstract parts of the news. Viewers heard of the incredible plans to rescue the miners, that is true, but they also heard about the medical needs of the miners, what foods they were being sent, how they kept themselves active, and the details of their families. By the time the miners were freed from their underground captivity, viewers around the world knew the names of the miners’ family members, and the touching stories associated with them, from children born while their fathers were trapped in the mine to the more scandalous story of Yonni Barrios, who, it was discovered, had a long time mistress as well as a long-time wife. Within the community forged by the miners, each person had a task or function, and through the media the international community began to see the miners in this same light, as the leader or the doctor or the engineer.

More than an abstract story of a group rescued from peril after a few days at the most, the story of the Chilean miners began to resonate more deeply with viewers around the world, who developed an affinity for these men, their families, the rescue workers who were seeking to save them, and even the president who refused to give up on them when it seemed likely that they were dead.

Especially after the announcement that their rescue would come over two months ahead of schedule, the miners became an extended part of communities around the world about whom the community worried and yet for whom the community was extremely hopefully. This was to become especially true during the 24-hour period between late night on October 12, 2010 and late night on October 13, 2010, when the rescue of the mine workers began and ended. The press, television leading the way, built up to this event for several days, dissecting the science of the rescue attempt, the persons involved, and the families waiting so anxiously above ground. In the hours immediately before the rescue attempt started it seemed that even seasoned news reporters were drawn into the story, expressing both explicit and implicit concern for the miners and rescuers. Once the rescue began, it drew television viewers ranging from average citizens across the world to political leaders to Pope Benedict XVI. Coverage ranged from live television coverage to internet feed to personal postings on social media sites.

When the miners began to emerge from the ground it was to more than their eagerly waiting families – it was to the citizens of the world. In this sense, the ongoing story of the Chilean miners, from what was expected to be heartbreak at the beginning of the story to amazement and elation at the end, created a community. Although the story culminated in the rescue of the last miner and the pulling to safety of the last rescue worker, this community was created in more than a moment. Rather, it was created within the span of months, when the humanity of the miners and their situation became clear to those with access to media the world over. The customs of this community were relatively simple – hoping for the best for the miners and feeling for the miners, their families, community, and country. In essence, the law of this community was simple as well: do not give up hope. At the very moment when the rescue was to begin, for instance, some discussion was had as to the risks of the rescue effort to the miners but there was no negativity per se even on the part of the media.

From the Chilean miner example we see how modern forms of media, particularly television, can move the viewing public beyond its role as a passive recipient of the media’s message and craft a large, heterogeneous community of perhaps even unlikely members who are strangers to each other. It would be impossible for every member of this community to meet and celebrate the freedom of the miners, and it would be equally impossible for the miners to meet and thank every member of this community, yet this reality does not take away from the community itself. Instead, it reinforces the ability of media to craft a community that might ultimately be short lived but still forms a bond that would not be possible without the existence of media to act as the formative venue for the community.

Cultures of Impunity

Photo supplied to the Toronto Star

In most of our postings, we delve into representations and constructions of law through popular cultural mediums and the connections that might be drawn between the two. Every now and again however, it helps to consider the practices and norms of state actors in their enforcement of the law and what it tells us about certain facets of legal culture.

Based on several legal errors that transpired at trial, a panel of the British Columbia Court of Appeal recently acquitted Ivan Henry of having raped or sexually assaulted eight women in the early 1980s. Henry has served 26 years in jail. One of these errors involved the admission of a photograph where Henry resisted participation in a police line up and was seen restrained by the guards. The trial judge instructed the jury that this could be taken as "consciousness of guilt."

The image (provided above although a larger image can be seen by clicking on it) itself is striking in the way that at least two of the cops appear to be smiling as they are forcibly restraining Henry and in the way that several individuals in the line up appear to be smiling along with what is transpiring (perhaps plain-clothed policemen). Given all the smiling faces, one might mistake the scene for something out of a comedy sketch or film, rather than a true moment that transpired amidst a criminal investigation.

The image itself presents a snapshot in time of the permissive culture of police aggression that existed (at the very least) at that time and in that place where it was taken. It was one where police officers could be so brazen as to laugh so mockingly - as though the exercise were one big joke. This impunity was indeed legitimized by the trial court by allowing it into evidence and indicating that it was evidence of a consciousness of guilt. The purpose of a line up is to allow witnesses to properly identify a suspect amidst a number of individuals who may have some resemblance to the suspect. As one can imagine, much of that is lost when uniformed police officers, as part of this line up, restrain an individual and thus clearly signal who the main suspect is.

The Norms of Restaurant Success

Who might have thought a television channel exclusively dedicated to "food" could have become such a hit. Yet, for the past ten years, the Food Network (FN) has done just that. It features a number of shows highlighting three themes. The first theme is what one would naturally expect from such a network, cooking shows. A second and also popular group of shows could be classified as competition-oriented programming, pitting (up and coming and/or established) chefs against one another for a designated prize - money (Chopped), a position at a prominent restaurant (Hell's Kitchen), or some other coveted prize - prestige (Iron Chef America), or a combination of all three and/or other rewards (Top Chef).

Then comes a third category (which is the subject of this blog posting) - programs aimed at advising restaurant owners and their staffs in how to become successful and sustainable businesses. Three key exemplars of this repertoire, Chef Gordon Ramsay's long-running Kitchen Nightmares, Restaurant Makeover, and the more recent FN show, The Opener with Chef David Adjey. The temporal context of Kitchen Nightmares and Restaurant Makeover is one where an existing restaurant is failing to produce profits for a whole host of reasons. The Opener, as the title suggests, takes place as the restaurant is about to open and a number of critical problems are identified and addressed.

Notwithstanding the different restaurants, styles of the particular hosts or the general tone of the shows, there are some common, if not fundamental lessons they seem eager to teach owners of new restaurants or failing ones. The lessons might be framed essentially as rules for success and the proper management of restaurants. Here are some of them in no particular order of importance.

#1 - Maximize seating capacity. In almost every episode of The Opener, Chef Adjey calculates how much income each seat might generate, ranging from one day to a full year. When owners are confronted with the potential revenue they could be earning by adding another table that seats for example four individuals - owners suddenly become more motivated to make better use of their space. This is particularly so, when the restaurants in question need to generate income and break out of the red - restaurants that are about to open spend a lot of money before and around the time of opening while hoping to generate business and income to balance or preferably to exceed their expenses.

# 2 - Less is more - institute a focused and concise menu. A consistent theme amongst the shows mentioned above is the need to focus the menu to fewer items which can be mastered and be delivered consistently by the chefs and kitchen staff. Bigger menus with a greater diversity of options require restaurants to keep many ingredients stocked and available when necessary. As a consequence, many purchase frozen and canned items rather than using freshly purchased produce. This leads us to two other interrelated rules (see # 3).

# 3 - Buy and cook with fresh ingredients. The reason for this is obvious - it results ostensibly in better tasting and better quality food. Furthermore, owners are suggested to buy local and establish a rapport with local growers and sellers. The idea that one is selling preparations made with ingredients from local producers tends to sell well amongst patrons who are only too happy to support the local economy beyond just the restaurant.

# 4 - Establish a chain of command in the kitchen and accountability. In some restaurants, there is sometimes a desire to have two chefs running the kitchen simultaneously. The message of these shows is that without a clear chain of command, orders prepared and sent from the kitchen can be sketchy with limited quality control exercised by a single, head chef. Furthermore, without necessary controls and authority, chaos and consequently delays ensue along with customer dissatisfaction. By the end of each episode, owners are strongly veered toward identifying one individual as the head chef and the other having to step in line.

There are of course a whole host of other rules, both explicit and implied that form part of the rules of success that I need not go into here. The point of course is that, like with anything else, rules form an integral part of many endeavors and the instructive chefs on these shows (like Ramsay and Adjey) play a significant role in projecting these out into the stream of consciousness and set a normative standard.

Media of Judgment

Over two and a half years ago, the media told the stunning story of the downfall of Eliot Spitzer, then the Governor of the State of New York. Indeed, media, it could easily be argued, was instrumental in the outcome of the story itself.

In 2006, Spitzer, a Democrat and then State Attorney General, was elected Governor in a landslide victory that brought together Democratic and Republican voters alike. Prior to the election, media was used by the Spitzer campaign to craft his image as a uniting force for the state, regardless of political persuasion, and as a force for inclusion – Spitzer himself is Jewish and his running mate (and future Governor of New York) David Patterson is African American and also legally blind. Spitzer’s inauguration was a grand and well-orchestrated event that was again told as an even grander story by the media, featuring Spitzer’s beautiful and accomplished wife, Silda Wall Spitzer, a respected human rights lawyer, and their three teenaged daughters.

In the months that followed, there were the expected quarrels between Spitzer and the New York State Legislature, however the media continued to tout Spitzer’s image as a rising political star with the potential to become the nation’s first Jewish president. Indeed, one of the last – and most poignant – images from Spitzer’s governorship was of Spitzer and his wife walking through the White House on the way to a reception, looking as if they could easily occupy the White House themselves.

However, early 2008 saw a change the media’s portrayal of Spitzer. On one shocking day in late winter, the media began to present a different story, that of Spitzer as a man who patronized a high-priced prostitution ring on numerous occasions even when, as Attorney General, he was actively prosecuting other prostitution rings. Initially, there was uncertainty as to whether Spitzer would resign his office. In the space of a week, however, the media’s reports grew increasingly salacious, featuring details of Spitzer’s alleged trysts, as well as the allegation that he paid for the transportation of a favored prostitute from New York to Washington, D.C. while he was there for business. Ultimately, this allegation proved the most damning for Spitzer since, if established, it would have constituted a violation of the U.S. Mann Act, and thus would have shifted the potential venue for criminal charges from state courts to federal courts. After this allegation surfaced, Spitzer called a press conference in which he announced his resignation from office. Throughout the series of press conferences that led to Spitzer’s resignation the indelible image that the media captured was that a of Silda Wall Spitzer, looking thin, pained, and thoroughly tormented, standing next to her husband.

Following Spitzer’s resignation, the form of media attention shifted slowly from television to largely print, however the attention itself did not recede for quite some time. Spitzer himself was quite honest to the media in terms of the state of his family – which has remained intact – and entered life as a private citizen. Recently, however, Spitzer – who was a voracious critic of Wall Street during his tenure as Attorney General – slowly stepped into the public eye again. The first stage of his reemergence was a column which he writes for an internet site in which he primarily addresses issues related to the economy and his Wall Street insights. The second, and far more public, stage of his reemergence occurred when CNN announced that Spitzer would team with noted conservative journalist Kathleen Parker to create a new talk show airing during CNN’s prime time schedule. This program, Parker Spitzer, began to air this week.

There are many notable topics to come from Parker Spitzer, and doubtless they will be the subject of future blog postings. What I would like to focus on in this posting is the role of the media as a force for both condemnation and rehabilitation in a way that forms its own quasi-legal cycle.

Despite its veneration of Spitzer during the 2006 election cycle, the media turned on him quickly at the hint of a scandal. He no longer fit the image crafted for him; he had broken the rules which both he and the media had created for himself, or at least for his image. Instead, he became vulnerable and criminal, although interestingly the criminality in the media cycle tended to focus more on the impurity of his actions – and on the titillating details of them – than on the legal criminality of his actions at the state and federal level. The swiftness of Spitzer’s political downfall was attributable in large part to the media, which, certainly within New York State, was perpetually focused on Spitzer and continued to publish stories about his alleged conduct in an increasingly condemnatory way. Indeed, not only did the media scrutiny of Spitzer indict him before the public, it also indicted his preferred prostitute, who became analogous to a co-conspirator.

While the US Attorney decided not to prosecute Spitzer and no state legal proceedings were brought, Spitzer was still prosecuted in the media for months after his resignation. Eventually the media focus shifted away from Spitzer and it seemed that he would be relegated to the life of a private citizen, largely forgotten in the way that those convicted of notable crimes frequently become forgotten after they disappear into the confines of prison.

However, much as a conviction is not the end of the relationship between the person convicted and the justice system, this is not the end of the story of the relationship between Eliot Spitzer and the media. Initially, Spitzer’s reengagement with the media came in the form of an internet column. This was an important step, but it was not that visible. The latest step is, however, very public, and involves Spitzer working with the very same media that condemned him in order to rehabilitate himself and also to continue bringing attention to issues which were important to him as Attorney General and Governor. The media, in this instance, can be seen as granting an appeal, since there is no guarantee that Parker Spitzer will be a successful television program, or that the program will change the public’s perception of Spitzer. What Parker Spitzer will do is give Spitzer the opportunity to make his case directly to the public and use the same media that condemned him as a way to rehabilitate himself.



Information on Parker Spitzer is available at http://parkerspitzer.blogs.cnn.com/

The Darker Corners of Children's Songs

There are some things that just catch you off guard at the times you least suspect it. A little background first. Some relatives visited India earlier this year and brought back for my daughter some "educational" DVDs containing nursery rhymes that were sung by an adult Indian female vocalist and danced to by young Indian children. The DVD in question was "Preeti Sagar's Nursery Rhymes: 69 All Time Favourite Rhymes." The DVD includes a number of well-known songs like Jack & Jill. But it was the inclusion of one other particular song that left my wife and I speechless and has me writing now.

The song in question is called "Ten Little Nigger Boys." No, I didn't misspell it and your eyes are reading this correctly. Furthermore, I confess I have never heard of this song before it appeared on one of the menu screens for the DVD. The experience becomes even more surreal and jarring when you see the singer (Purbi Joshi) sing (or perhaps lip "sync") the song with a big silly grin, as though the words being sung/mimed (and one in particular) are vocalized without a hint of discomfort or shame - apparently the experience was reserved for my spouse and I, and I imagine anyone else who might have found this somewhat disconcerting. At worst, the inclusion of the song smacks of blatant racism and the propagation of a derogatory slur that has no historically positive meaning, particularly when used by non-Blacks to refer to Black people. At best, it demonstrates a stunning lack of judgment about the appropriateness of teaching such words to young children.

In trying to look up the history of this song, I discovered that it was the original title of an Agatha Christie novel published in 1939. In subsequent editions, the novel was renamed Ten Little Indians and subsequently And Then There Were None. The adoption of the final title reflects normative changes in the acceptability of using terms like the n-word or Indians, in the manner in which they were used. However, the history appears to go back even further. According to an article written by Tiffany M.B. Anderson, the song in question has its roots in the American south near the end or after the Civil War. The song was used both in minstrel shows for White adult audiences and as a song for White children (the lyrics can be found in the link to Anderson's article above). As she explains:

When performed as a minstrel song, Ten Little Niggers serves as entertainment; when used as a nursery rhyme, Ten Little Niggers operates as education. Ten Little Niggers not only taught a child to count down from ten, it also presented the racial construction of the black population as ‘niggers’ with equal importance. Caricatures accompanied the reprinting of the song in the nursery rhyme books.

I highly recommend Anderson's article to get a sense of how the song was constructed and was intended to demonize and portray African-American males in particular as designated social and personal threats.[1] But more disconcerting is the inclusion of this song over a century later in a new format being sung to children all the while perpetuating a recognized racial term as acceptable.

Despite the existence of the freedom of expression, various societies, operating through political and legal branches of government have put into place particular liabilities and punishments for engaging in certain types of speech - e.g. hate speech, defamation, sedition, incitement to commit a crime. Concurrent with the norms of the state are the many socio-legal norms that govern or influence individual conduct and interpersonal relations. Even where state norms may not prohibit the utterance of certain words, the norms or rules of everyday life and society may strongly discourage it. A breach of such norms may result in economic and/or social repercussions (although sometimes only temporarily) for the individuals who speak them.

Within North American culture and others situated in the Global North, the utterance of the n-word is considered (more often than not) to be taboo, particularly amongst those who are not Black and if used in public and to refer to someone of African descent (although some non-African-Americans clearly have few inhibitions about this). [2] Although the word has been appropriated by many African-Americans, there is considerable debate about the advisability of even their using the word - ranging from comedian Chris Rock who has deployed the word extensively in his repertoire (as with other African-American comics like Eddie Murphy and Richard Pryor), to the NAACP holding a funeral to scholars such as Harvard Law Professor Randall Kennedy. Yet, notwithstanding the appropriation by some, if not many African-Americans of the word at one time or another, it is widely accepted that the use of the n-word in public by non-African-Americans breaches widely accepted socio-legal norms against openly uttering the word. Some might describe these particular socio-legal norms as mere political correctness.

I'll refrain from attempting to extrapolate or generalize anything about Indian society as a whole, based solely on Sagar's or the production company's decision to include the song. There is clearly a different normative vision reflected here about deploying a song with a racially-charged history which uses such a patently loaded and derogatory term. The producers of the DVD have issued a product into the children's market that includes a song which effectively legitimizes and celebrates (through joyful singing) the use of an unquestionably offensive word associated with a substantial segment of the world's ethnic population. This is particularly so when used by those who do not belong to that group that the term has been applied. It also suggests an assumption, on the part of the producers, at least, that there is or will be an acceptability by consumers of this product about hearing and digesting this song for consumption - an assumption which is also troubling.

It was in 1969 that the International Convention on the Elimination of all Forms of Racial Discrimination entered into force. Amongst its many pertinent provisions, Article 7 has something particularly relevant to add to our discussion here. Namely,

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical [sic] groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

The DVD in question is at the very least, a potential source of education, culture and information for the children who view it, both in India and abroad. The song in question here however doesn't combat prejudices but merely fuels them and indeed propagates and perpetuates a racially discriminatory term while happily introducing it to small children. While the DVD is produced by a private company and not a government, the principles articulated in the Convention ought to be internalized by members of civil society if it is to have its desired effect. The interpretation and enforcement of legal norms relies in many ways on civil society's participation and compliance with such norms as the power of states extends only so far. Significant power lies in the everyday citizen, musician and/or corporate leader to act responsibly.

[1] Such demonization has also transpired within films like Birth of a Nation.
[2) There are of course the notable examples of Michael Richards (who played Kramer on Seinfeld) who exploded into an n-word laced tirade against some hecklers at a comedy club; Dr. Laura Schlesinger repeating the word on her syndicated radio program while trying to make a philosophical point about the double standards surrounding the use of the n-word; or an Australian magistrate who expounded that the n-word amongst other derogatory terms was not offensive to reasonable people.

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:

Ross

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?

Barnes

No sir. No book sir.

Ross

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:

Kaffee

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

Barnes

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

Kaffee

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

Barnes

No sir. Three squares a day, sir.

Kaffee

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

Barnes

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

Kaffee

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