Law and the Order of Popular Culture

Carol J. Clover

Explanations for the appeal of trials tend to focus on the crime or the punishment and run along psychosexual lines. In crime scenarios, the argument goes, we can indulge all manner of perverse fantasies, but safely, under the cloak of law and order. Following Foucault, who saw in the fascination with trials a displaced fascination with torture, we speak of our engagement with the punishment and the processes of discipline that subtend it. Such explanations have a lot of force, and the last two decades have seen something of a scholarly industry along these lines. But they do not explain everything, including the obvious fact that some cultures are more, some vastly more, trial interested than others. In the West, there is a world of difference between English-speaking countries and the Continent on just this point. Especially Americans are said to be trial obsessed, and it is also the case that the courtroom drama of film and television is an overwhelmingly Anglo-American phenomenon. Robin Lakoff tells how students in a class she taught at the University of Barcelona were hard-pressed to explain how a Spanish trial worked but could describe an American one in detail. A Stockholm newspaper recently began a review of a new television series by noting that "the average Swedish TV-viewer knows more about the American justice system than the Swedish one. We even know more about the British system than our own." Although these stories and others like them say a lot about the hegemonic status of American media and of English-language culture more generally, they also point to a real difference. After all, Swedes and Spaniards also commit murder and mayhem and are also punished. But Swedes and Spaniards do not "trial-watch" the way Americans do, and they do not turn trials into entertainment nearly to the extent the Anglo-American world does. How to explain this cultural divide? Either the Anglo-American world has a greater investment in the deep pleasures of crime and punishment, in which case we have to wonder why, or such explanations do not tell the whole story.

The part of the story not told, the part that is culture specific, is the terrain of this chapter. The reader will notice that the line I have drawn between courtroom-drama-producing culture and if not non-, then less, courtroom-drama-producing culture coincides with the line between the two major legal systems of the West, that of the Continent and that of the Anglo-American world. It is something of a truism that the basis of the Anglo-American form in an adversary system and in oral presentation before a jury makes our trials fundamentally more dramatic than the inquisitorial and professionally judged trials of the Continent. To the extent that the Anglo-American fondness for courtroom dramas has been discussed at all — remarkably little, given the scope of the phenomenon — it has been related in a vague way to that truism. But on the whole, it is striking how little the truism has actually been investigated and how underappreciated are its implications for and in the study of popular culture. Film scholarship has not taken up the courtroom drama, no history of it has been written, and the form has no standing in the pantheon of genres. There has been more interest on the law side in the so-called law-and-film movement, but even here, the focus has been not on generic issues but on individual works that are felt to rise above the pack by virtue of their legal intelligence, ethical interest, engagement with worthy issues, and quality of cinema — 12 Angry Men, Boomerang, Witness for the Prosecution, Fury, To Kill a Mockingbird, and the like.

But surely the question to be asked about the trial movie (by which term I refer to both television and film courtroom dramas) has less to do with the value of particular instances than it does with the fantastic generativity of the form in Anglo-American popular narrative. And surely that generativity devolves not on crime or punishment, at least not primarily, nor other points of content, nor law in the large sense or justice, but — as the truism would have it — something about Anglo-American procedure. I am aware that this proposition runs athwart the opinion of some academic lawyers that the differences between Anglo-American and Continental law have been overstated and indeed to a considerable extent discursively constructed, but I would argue, at the risk of circularity, that popular culture itself — above all, film and television narrative — makes a strong prima facie case for the difference of the Anglo-American system, and further, that popular culture isolates, as the source of that difference, exactly those features of the procedural structure that attend the adversarial system and the jury.

Thus, the proposition of this chapter is that real-life trials become movies (by which I mean both film and television dramas) as easily as they do in the Anglo-American world both because trials are already movie-like to begin with and movies are already trial-like to begin with. The first half of that proposition is hardly news, although the reception-oriented account that follows differs from the usual dramaturgically derived model in some crucial respects. It is the second half that concerns me here. When I say that Anglo-American movies are already trial-like to begin with, I mean to make a three-part, essentially historical claim: that the plot structures and narrative procedures (even certain visual procedures in film and television) of a broad stripe of American popular culture are derived from the structure and procedures of the Anglo-American trial; that this structure and these procedures are so deeply embedded in our narrative tradition that they shape even plots that never step into a courtroom; and that such trial-derived forms constitute the most distinctive share of Anglo American entertainment. I emphasize that I am using the term narrative here to mean the textual process of plot making, not as legal circles use it to refer to particular stories or plots or tale types. My interest is neither in courtroom "storytelling" nor in movie "stories" of trials. It is not in "stories" at all. It is in the extent to which the narrative substructure of so much of our cinema rhymes with the narrative substructure of our trial and in what kind of cultural conclusions can be drawn from the commonality. Needless to say,...