Law's Moving Image

Leslie Moran, Elena Loizidou, Ian Christie, Emma Sandon

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135311728
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book is an essential introduction to the complex issues and debates in the field of law and film. It explores interconnections that are usually ignored between law and film through three main themes:

• A Fantastic Jurisprudence explores representations of law in law
• Law, Aesthetics and Visual Technologies focuses on the visual aspects of law's moving image
• Regulation: Histories, Cultures, Practices brings together work on different dimensions and contexts of regulation, censorship, state subsidies and intellectual property to explore the complex inter-relationship between the state, industry and private regulation.

Law's Moving Image is an innovative, multi-disciplinary contribution to the rapidly growing fields of study in law and film, law and visual culture, law and culture, criminology, social and cultural studies. It will be of interest to students and academics involved in these areas.

PART 1
A FANTASTIC JURISPRUDENCE

Chapter 1
Heavenly justice

Ian Christie

Why should not Conscience have vacation As well as other courts o’ the nation?

(Samuel Butler, Hudibras ii 2)

Cinema has long had a guilty conscience about the supernatural. Although its photographic resources soon made possible the realistic portrayal of ghosts, visions and all forms of the paranormal, much of cinema’s history seems to have been governed by a form of collective self-denial which has confined the supernatural to such codified genres as the gothic or juvenile fantasy. After the extraordinary popularity of the essentially supernatural trick film between 1898 and 1906, realist narrative became the dominant industrial form, with décor and spectacle substituting for what came to be regarded as the primitive, often fanciful pantomime of early cinema (Hammond, 1981). Although there would continue to be supernatural-allegorical interpolations, such as the rocking cradle of Intolerance (1916), the Dürer-inspired figures of Four Horsemen of the Apocalypse (1921) and the vision of Moloch in Metropolis (1926), these were generally subordinated to realist narrative, until the emergence of a new naturalistic supernatural in the 1930s. The harbingers of this were the passengers in Outward Bound (1930),¹ the Christ-like stranger in The Passing of the Third Floor Back (1935), the eponymous protagonist of Death Takes a Holiday (1934) and the weary angel of It’s a Wonderful Life (1946). It was also paralleled by a strong current of new supernaturalism in the theatre, notably in JB Priestley’s ‘time plays’, from Dangerous Corner (1932) to An Inspector Calls (1946), and in Thornton Wilder’s Our Town (1938).

A parallel trajectory might be traced, which would begin by noting that the key technique of stop-action was often used to confer ‘magical’, but illegal, benefits in early films, allowing assorted mischief-makers to steal, cheat and insult, and escape with impunity (Shale, 1996a, p 4). Soon filmmakers began to make extensive use of mistaken inference, where visual evidence is misconstrued, as the basis for many kinds of realist narratives. And from an early date, the trial and the detection process, either separately or combined, would account for a large proportion of all screen drama. Carol Clover has recently drawn attention to the long-standing relationship in, especially, American cinema between the trial movie as a specific genre and a more general equation in cinema between audience and jury (Clover, 2000). The term ‘diegesis’, commonly used in film analysis to denote narrative content, was originally the recital of facts in a Greek law court before its adoption by Aristotle in the Rhetoric (p 247).

The courtroom drama may indeed only be an explicit instance of cinema’s more pervasive interpellation of its viewing subjects as jurors, granted special privileges of access and insight.² My concern here, however, is with a limited area of convergence between the naturalistic supernatural and the court drama: films from World War II in which there is an appeal to a ‘higher jurisdiction’, where matters that lie beyond the scope of immediate human responsibility may at least be debated, if not resolved. Thunder Rock (1942) is set in a remote lighthouse, where an intellectual has taken refuge from the imminent war against Nazism, but is haunted by the ghostly victims of a 19th century shipwreck, who enjoy a supernatural afterlife only thanks to the power of his imagination.³ When he accuses them of cowardice in their own time, running away from persecution, they challenge him to stand up for his beliefs in the present. In A Guy Named Joe (1944), a pilot killed in action ‘discovers’ that he now has a celestial Commanding Officer and a new mission, which is to mentor living pilots, one of whom becomes the new boyfriend of his former fiancée.⁴ The hero of A Matter of Life and Death (1946) is a bomber pilot who ‘should’ have died after bailing out without a parachute, but finds himself alive, while awaiting a trial in heaven to decide his case for staying on earth.⁵ Only the last of these literally portrays a celestial court and centres on a trial, but all appeal to fantastic concepts of justice, which also constitute a critique of the limitations of actual legal process.

Figure 1: Thunder Rock, Boulting, 1942.

It might be argued that all films with a counterfactual or fantastic legal theme constitute in some sense a critique of the existing legal process; that they represent a fictive ‘return of the repressed’ of natural law as against positive law. But I want to suggest that these particular fictions might usefully be considered ‘minor jurisprudences’, in the sense proposed by Peter Goodrich (Goodrich, 1996, p 2). The historical examples he gives include ‘ecclesiastical courts, civilian courts, courts of conscience, of equity, of inquisition; and also such locally defined jurisdictions as forests, circuses, fairs, manors’. In Britain, all of these gradually came within the emerging common law from the 16th century onwards, in some cases shaping its forms. Canon law survived longest as a separate jurisdiction, with responsibility for a range of issues considered to have religious underpinning, before it too gave way to secular law. Goodrich suggests that these minor jurisprudences, having been repressed by common and statute law, have nonetheless left ‘phantoms’ of discarded tradition. They define ‘a space within which radical legal studies can explore alternative legal forms’, using them to help construct ‘a history of the legal unconscious’. My proposal here is to consider the fictive micro-jurisprudence of such films as A Guy Named Joe, Thunder Rock and A Matter of Life and Death as fantastic alternatives to positive law, which function in ways analogous to the medieval and Renaissance practices Goodrich cites. Like these, they may serve to reconnect law to questions of conscience, and to the ethical dimensions and indeterminancies of judgment (Goodrich, 1996, p 4). These films precisely seem to raise issues which ‘rational’ thought about personal and national values in wartime cannot progress, and cannot finally arbitrate.⁶

A fantastic jurisprudence

Thunder Rock began its life as a play by an American dramatist Robert Ardrey, written in mid-1939 and premiered that November at the New York Group Theatre in a production supervised by Elia Kazan.⁷ The message of the play was anti-isolationist. Inspired by Ardrey’s own sojourn on the island of Nantucket, his hero is a widely travelled reporter and political commentator, David Charleston, who has become a lighthouse-keeper as a gesture of withdrawal from a world seemingly hell-bent on war. His solitude is broken by the arrival of an inspector and a pilot about to volunteer for foreign service against Japanese aggression in China. The three debate activism versus cynicism in face of rising international tension; after the visitors leave, the debate is continued in Charleston’s mind, as he imagines a group of historical characters, based on a shipping disaster of the previous century which took place near the lighthouse. Blending symbolist and modernist aesthetics,⁸

Ardrey has Charleston summon a representative group of victims of past injustice and intolerance whom he can accuse of defeatism, before they voice the same accusation towards him. Having convinced himself that action is preferable to inaction, he announces at the end of the play that he will leave the lighthouse to ‘fight … not for fighting’s sake, but to make a new world of the old’ (quoted in Aldgate and Richards, 1986, p 175).

Although unsuccessful in America, then sharply divided over the European war that had just broken out, Thunder Rock became a focus of attention in London during the summer of 1940, when it opened shortly after the debacle of Dunkirk and Churchill taking over from Chamberlain as Prime Minister. Negotiations were soon underway for a screen adaptation, which was undertaken by the producer-director team of John and Roy Boulting, from a script adapted by Bernard Miles and Jeffrey Dell, and starring the actor who had played Charleston on stage, Michael Redgrave. Aldgate has pointed up the two major changes made in the adaptation from stage to screen, apart from various devices of narrative ‘opening up’ and Charleston becoming an Englishman. The first of these is to give the ghostly passengers, drowned in 1849, more detailed histories of oppression in England and Austria: a labourer who has developed lung disease working in the Potteries aims to take his family to California; a spinster, disowned by her wealthy father after she has been imprisoned repeatedly for agitation on behalf of women’s rights, who now hopes to find a husband in the United States; and a doctor, drummed out of Vienna by his colleagues, after pioneering the use of anaesthetics. These ‘back stories’, realised with considerable scenographic invention, become a substantial part of the film’s body, giving it a pervasive atmosphere of social exposé and of struggle against both legal and moral repression.

They are counterbalanced by the film’s other main departure from the play After Charleston has accused his ‘ghosts’ of cowardice, the captain of the ship in which they perished challenges him on their behalf to justify his own retreat to this refuge. In reply, as it were, the film offers a rapid montage summarising Charleston’s career as a crusading political correspondent. It does this by reference to the chapters of his book, Darkening World, each devoted to one of the major political crises of the 1930s, from the Japanese in Manchuria, to Abyssinia, Spain, the Anschluss between Germany and Austria, and German rearmament. The interweaving of newsreel and dramatised ‘eye-witnessing’, together with a commentary on British newspapers’ desire to censor reports such as Charleston’s, reaches its climax in a cinema when, after a dispiriting campaign of anti-fascist public meetings, he is surrounded by patrons, oblivious to the newsreel report of Hitler entering the Sudetenland, who only want cartoon entertainment. This is what has led to his retreat from active struggle, which we might conclude, in psychoanalytic terms, has prompted the return of the repressed in the form of the phantasms of earlier struggles. There are many possible determinations at work here: from the trans-historical viewpoint of Wilder’s Our Town⁹ and Priestley’s ‘time plays’¹⁰ to the dazzling kaleidoscopic flashback structure of Orson Welles’ recent Citizen Kane (1941), and from agitprop to psychoanalysis. But given that the film’s completion in late 1942 precluded any of the play’s predictive urgency what might strike us are its elaborate dramaturgy of conscience and its self-conscious modernisation of the apparatus of consciousness and memory. Recalling elements of both the pictorial ‘memory theatre’ tradition studied by Frances Yates and Griffith’s interweaving of temporally distinct narratives exemplifying ‘intolerance’, Thunder Rock creates a modern phantasmagoria, in which the past permeates the present, and the personal is imbricated with the political.¹¹

The film’s Charleston is less a modern Everyman than a case; one who has seen and understood too much, and who has attempted to become a modern hermit, retreating from the clamorous evils of the present to the ivory tower of a lighthouse. But his unconscious cannot accept this repression, and although he believes he has conjured the historical figures, Prospero-like, as creatures under his control, they revolt and reveal themselves as analogues of himself, symptomatic projections of his guilty conscience. Now, rather than pursue the vulgar Freudianism of this reading, I will suggest it is equally, if not more, appropriate to conceive the apparatus of Thunder Rock as a modern ‘court of conscience’ which focuses upon that which is ‘subjugated’ (Goodrich, 1995, p 234), in the positivising tendency of common law. The ‘court of conscience’ offers a mystical jurisprudence. This mysticism Goodrich traces back to the theological conception of an ‘outward’ and an ‘inward’ eye, the latter, according to St German, ‘the eye of reason, whereby [man] knows things invisible and divine’ (p 236). In this perspective, matters of ethics and conscience are hierarchically and ontologically prior, relating to ‘the substance of subjectivity, to an unconscious discipline or juristic soul’ (p 236). Common law’s adjudication of external conflicts is ‘a living metaphor or allegory for the courts of conscience and of the spirit’ (p 236).

Like the mock-legal court of history before which Byron is arraigned in The Bad Lord Byron (1949), Charleston stands accused in, literally, a court of conscience, where his transgression is that of the ethic that he professes and applies to others. What the film’s elaborate dramaturgy works to achieve is our belief in this ‘case of conscience’, in the relevance of its phantom evidence, its trans-historical principles, and its ‘spiritual’ verdict, to which are attached special powers of enforcement, which must dictate the subject’s future conduct. But why should this model reappear at such a juncture? An important aspect of World War II was the sense it brought to many of spiritual renewal or exaltation. The eschatological tenor of TS Eliot’s Little Gidding, published in the same year as Thunder Rock, claims that ‘Every phrase and every sentence is an end and a beginning’ as it moves towards the ecstatic ‘History is now and England’ (Eliot, 1969, p 197). In appropriating Ardrey’s Charleston to the wartime England of 1942, the Boultings needed to create a court of conscience that, however spectral and speculative, would be seen to reassert the forgotten pre-eminence of spiritual justice in a momentary, emblematic return of law’s repressed.

Both A Guy Named Joe and A Matter of Life and Death participated in the last phase of an early 20th century preoccupation with the flyer as modern hero and also as mythic figure. This is hardly surprising, in view of the speed with which powered flight had developed in less than 30 years after centuries of myth and speculation. During the 1920s and 1930s, flyers such as Lindbergh and Johnston undertook remarkable solo journeys which gave them an aura of distinctively modern heroism, celebrated by artists as diverse as WB Yeats, Filippo Marinetti, Bertolt Brecht, Fernand Léger, WH Auden and Paul Nash (Wollen, 1999, p 10; Christie, 2000, pp 13–14). The main characteristics of this modern myth would seem to have been the risk of absolute dependence on a machine; the extreme isolation of the long-distance flyer; and, more difficult to define, the sense of tra...

Table of contents

• Cover
• Full Title
• Copyright
• List of contributors
• Acknowledgements
• Contents
• List of figures
• Introduction
• PART 1 A FANTASTIC JURISPRUDENCE
• PART 2 AESTHETICS AND VISUAL TECHNOLOGIES
• PART 3 REGULATION: HISTORIES, CULTURES, LEGALITIES
• Bibliography
• Filmography
• Case list
• Index