Cultural Legal Studies

Law's Popular Cultures and the Metamorphosis of Law

Cassandra Sharp, Marett Leiboff

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317626251
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

What can law's popular cultures do for law, as a constitutive and interrogative critical practice? This collection explores such a question through the lens of the 'cultural legal studies' movement, which proffers a new encounter with the 'cultural turn' in law and legal theory. Moving beyond the 'law ands' (literature, humanities, culture, film, visual and aesthetics) on which it is based, this book demonstrates how the techniques and practices of cultural legal studies can be used to metamorphose law and the legalities that underpin its popular imaginary. By drawing on three different modes of cultural legal studies – storytelling, technology and jurisprudence – the collection showcases the intersectional practices of cultural legal studies, and law in its popular cultural mode.

The contributors to the collection deploy differentiated modes of cultural legal studies practice, adopting diverse philosophical, disciplinary, methodological and theoretical approaches and subjects of examination. The collection draws on this mix of diversity and homogeneity to thread together its overarching theme: that we must take seriously an interrogation of law as culture and in its cultural form. That is, it does not ask how a text 'represents' law; but rather how the representational nature of both law and culture intersect so that the 'juridical' become visible in various cultural manifestations. In short, it asks: how law's popular cultures actively effect the metamorphosis of law.

Part I
Cultural legal studies

The urgency of method and story

Chapter 1
Cultural legal studies and law’s popular cultures

Marett Leiboff and Cassandra Sharp

Naming

Something unfinished resides in the phrase cultural legal studies, a slipperiness conveyed by the overlapping parts of speech, the adjectives that could be nouns, the nouns that could be verbs. Structural incongruities like this can be invigorating, countenancing heterogeneous possibilities and postures, but this interpretative slipperiness is its bane as well as its blessing. Twenty or so years have elapsed since cultural legal studies emerged in its contemporary mani-festations,¹ sometimes in a nominate form,² but mostly innominate. It sits alongside its confrères: the cultural studies of law;³ law and cultural studies;⁴ law and popular culture⁵ (or popular cultures and law);⁶ law as culture;⁷ law in the domains of culture;⁸ as cultural-legal studies;⁹ and its myriad compatriot ‘law-ands’, ranging from law and literature, to law and film,¹⁰ law and aesthetics,¹¹ to law and humanities.¹² Over that time, its grammatical lacunae, the overlaps in terminology, as well as its disparate techniques, methodologies and interests means that it can and has been coded, decoded and recoded to denote and connote many different things. Confusion exists because the term has been used differently by scholars who refer to different practices, methods, approaches and concerns, through references to particular literatures and not others, and to different parsings of the phrase.¹³ So while some cultural legal studies scholars use methods drawn from anthropology, such as ethnographies, cultural legal studies is not a study of culture or cultures. Nor is cultural legal studies ‘cultural studies’, though most cultural legal scholars draw on the techniques, approaches and methods drawn from cultural studies either explicitly or by association.¹⁴ Others who work within cultural legal studies work with the humanities (language, semiotics, literature, biography, history, theatre, visual art), in addition to popular culture media, photography, television, film, video games, digital communication practices, and so on.Yet it is not a study of cultural forms and products, though some cultural legal scholars work with those fields and practices.

To cut to the chase, cultural legal studies is concerned with animating law’s popular cultures – the multivalenced forms and practices ranging from the humanities to video games and beyond – as a means through which to transform or animate questions of law and justice. We do not mean to stop with this sentence, but over the next few pages, will tease with and tease out these concepts a bit more. But we do want to start by marking out a few lines in the sand, the allusion being altogether more apt than might seem (as opposed to law’s brightlines, touchstones and sharp reliefs), because sand, as we know, is made up of grains that can be formed and unformed at will, or through a puff of wind, or the crashing of waves. We want to make a claim, that cultural legal studies and its qualifier, law’s popular cultures, are concerned with something that is present, existing, and engaged vis-à-vis law. From Gilbert and Sullivan to The Matrix, from Dial M for Murder to Ovid, from Shakespeare to The Bridge, from the Book of Common Prayer to The Hunger Games, from page to stage, from screen to scream – law’s popular cultures are the agents through which complex encounters between contemporary culture in all its forms,¹⁵ and law are played out.

Through the agency of law’s popular cultures, cultural legal studies is concerned with questions of law; interrogating legality, justice and the politics of law. Through these agents, cultural legal studies speaks to the politics of legal negation, offers new forms of law within and beyond formally constituted legal assemblages, and speaks to the politics and practices of law as representation and vice versa. It looks like a multiplex, with multiple sites and screens, generating, producing and creating complex encounters between different manifestations of the popular cultural and law as jurisprudence,¹⁶ as a means through which to think about how to do law well.¹⁷ In its diverse manifestations, cultural legal studies ranges from MacNeil’s Lex Populi and Legal Fictions to Manderson’s Kangaroo Courts, from Dorsett and McVeigh’s Jurisdiction to Seuffert’s postcolonial historiography, from Cassandra Sharp’s ethnographic modes of justice and ethics, to Rick Mohr’s modes of practice, from Young’s critical cultural criminologies of visual culture, to Leiboff and Thomas’ call to Monty Python as jurisprudence.¹⁸ A tiny snapshot of a huge and diverse field, this work reveals cultural legal studies as a jurisprudence of materialities,¹⁹ ‘at once concrete and textual as it takes place in the daily lives of contemporary subjects’.²⁰ Cultural legal studies plays out through embodied action and movement – of law, its scholars and sites of engagement and encounter,²¹ through law’s popular cultures.

What this suggests is that cultural legal studies is concerned with the real,²² which makes law’s popular cultures its agent of exploration, of criticism, of practice. But what counts as the real, as Peter Goodrich has so elegantly put it, is ‘aereall and spectral, mediated by the calculus and other signs through which we know it’,²³ and so too the illusion,²⁴ or ‘play—of interdisciplinary scholarship, the indiscipline and irreverence to the study of law’s use of figurative and visual media’.²⁵ But cultural legal studies is also concerned with physical and literal encounters, so rather than speak of the psychoanalytic real (Real), or reality, we also turn to actuality, actualité, actualities, with all of the filmic resonance (‘actuality film’), and its grounding in the conditions or circumstances or realities of existence.²⁶ From apologue to diegesis, the representational to the judgment and beyond, cultural legal studies mobilises a constitutive and interrogative critical practice for and about law, through law’s popular cultures as the agent of encounter. As Collis and Bainbridge observed in 2005, ‘popular culture is not simply a domain in which the law is represented; rather, it is a domain in which law is practised, negotiated, legitimized, and embodied’,²⁷ while for MacNeil and Hutchings, cultural legal studies (through law’s cultural mediations),²⁸ reveals to the legal unconscious and legal imaginary ‘its abiding antagonisms like “What is the connection to, or conflict between law and morality?”, “Law and power?” “Law and rights?” and especially “Law and justice?”’²⁹ Each of these positions speaks to the jurisprudential project of cultural legal studies, albeit at different ends of the spectrum – a jurisprudence of practice and existence on the one hand, and through the representational, foundational jurisprudential concepts on the other.

To designate cultural legal studies as a jurisprudence, or even to identify its features is all very well, but it still does not name what it is. Indeed, it seems more than a little careless for cultural legal studies to have been left hanging – as parts of speech, or as a mere negation against related fields, as allusory but operative concepts.³⁰ Naming and marking out a field of this kind has its hazards, not least the possibility of ossification, but the hazards work both ways. To name is to take responsibility for a field.³¹ The slip to illusion, that there is name without field, is a small step away where names are left hanging, even if it is possible to decipher something of its genre. But naming cultural legal studies is not elusive. Parsing the individual words of the phrase does part of the job – the invocation to cultural studies and critical jurisprudence gives clues to its morphology, where the cultural turn met critical legal theory (and since then, the archival turn, the historical turn, the theatrical turn and so on), but without more, this is mere bricolage or syncretism. Cultural legal studies is not the same as its confrères and compatriots, or cultural studies or critical jurisprudences. It has done something different (from the outset, as we will come to), with doing being the operative word, as the surplus of parts of speech that reside in the phrase enact.

Cultural legal studies is not constituted by its words but the words as they play on each other. This is imperative in understanding its name. First, these words need to be understood as complect,³² manifested through complex sticky embraces, connections and interweavings made up of those who encounter law, and the popular cultural formations through which law is encountered, shaped and conceived. Second, whether concerned with actualities or reality, or theory, cultural legal scholars enfold diverse fields and genres within law and back again. This action of enfolding is necessarily grounded within Philippopoulos-Mihalopoulos’ lawscape, with its folds, its spatialisation, its embodiment and materiality,³³ and is productive of the complexities and dynamics of cultural legal studies.³⁴ Cultural legal studies is thus an active form of the dyadics of the ‘law ands’ – of literature, humanities, culture, film, visual and aesthetics. Its name denotes what it does, complecting and enfolding myriad fields, binding the aereall and spectral, with the grittiness of actualities (sand in its most minute form), with law.

Cultural legal studies had, in short, jumped over the disciplinary divide of the dyads, and had done so at least a decade before Julie Stone Peters spoke of the end of the law and literature project in 2005,³⁵ where it was perhaps undergoing a ‘transformation into something bigger and necessarily more amorphous’.³⁶ Cultural legal studies, then not yet named, had already moved down that path, in Australia at least, in the early 1990s. For MacNeil and Hutchings, it ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of figures
• Preface
• List of contributors
• PART I Cultural legal studies – the urgency of method and story
• PART II Cultural legal studies as legal storytelling
• PART III Law’s technologies and cultural legal studies
• PART IV Cultural legal studies as jurisprudence
• Index