"Western" notions of justice: legal outsiders in American cinema.

• Author: Ritchie, David T.
• Position: Legal Outsiders in American Film

"When it comes to justice, the best thing to do is to tell a story about a man or a woman who effects justice, or who suffers for it, or who presumes to run roughshod over it, and to let it go at that." (1)

JUSTICE, LEGAL OUTSIDERS, AND CIVIL SOCIETY

The concept of justice is a dominant theme in traditional Western liberal culture. (2) Indeed, the ideal of justice has taken on an almost mythic quality in our political and social culture. (3) Interestingly, however, the prevailing myth (4) is not one where the possibility of finding justice lies in relying upon or utilizing the public institutions of Western society. (5) Instead, some of our most important cultural artifacts often go to great lengths to point out how finding justice in social and political institutions is seemingly impossible. The dominant message appears to be that justice is something found outside accepted social institutions, if it is to be found at all. Beyond this is the underlying perception that social institutions are often obstacles to the possibility of attaining justice. Civil society, then, is not the path to justice. In fact, many of the cultural messages we are exposed to suggest that following the bounds of civil society actually makes it less likely that justice will be attained. (6) Law, as a sociopolitical institution, and more specifically the judicial system, are frequent focal points for such criticism. (7)

These particular themes have found their way into all manner of cultural phenomena and are notably prevalent in several movie genres. Virtually every genre of film plays on this theme at some level, particularly Film Noir. (8) Other genres such as science fiction, action adventure, and drama draw upon this trope as well, some of them in unexpected ways. (9) Film, as a prominent cultural artifact, continually reinforces the notion that looking to the institutions of civil society as a path to attaining justice is at best naive, and at worst disastrous. (10) Western films are especially noteworthy in this regard, wherein the inability of law and the judicial system to maintain order and bring about justice is a recurrent motif. (11) In fact, the tension between this ineffectiveness on the part of legal institutions and the desire for justice on the part of principal characters is absolutely central to many of these movies. (12)

A recurring theme within the genre of Western films concerns the nature of the relationship between the protagonists who effect justice--or at least try to--and the legal and social establishment. Very often justice is brought about, can only be brought about, by those who are acting outside the bounds of official civil society. (13) These "legal outsiders" play an important part in the narratives of justice in American Westerns. (14) By legal outsider I mean characters that are not acting under the color of law: solitary souls who have their own checkered histories with the establishment, yet still maintain a deep and abiding personal sense of justice and fairness. By contrast, characters in Westerns that represent the established legal institutions of civil society invariably display characteristics that have nothing to do with justice: corruption, cowardice, decadence, moral ambivalence, physical infirmity, and weakness of spirit. (15) The hero in most Western films is not the sheriff, judge, or mayor, but is instead the quiet, solitary, and somewhat shady character that lives on the edge; literally (on the edge of town) and figuratively (being philosophically opposed to the establishment). If justice is to be had, it is this character that must bring it about. Characters who rely on the agents who represent the established institutions to help them in their quest for justice are portrayed as fools, and they usually get what they deserve for being so naive. (16) In American Western films, then, legal outsiders have a much closer association to justice than do the established legal officials. We are invariably left thinking, as are many of the ancillary characters in the films: "What good are these guys (the sheriff, the lawyer, the mayor) if they cannot give us justice?"

Exploring this question in the context of cinema gives us a rich body of work from which to draw. (17) The narratives found in Western films are closely associated with the American zeitgeist (18) and give us a glimpse into the prevailing social anxieties with which our culture struggles. (19) Amnon Reichman has recently said that "cinematic theory can tell us something meaningful about the production of law." (20) In other words, by exploring narratives in popular media such as movies and television about law (and the rhetorical practices of those who make these films and shows) we can understand more about the institution of law as a social and cultural phenomenon. (21) I believe this is clearly the case. This sort of evaluation, drawing on the groundbreaking work of Jessica Silbey, can be identified as "law-in-cinema." (22) As the law and cinema discourse has grown over the past two decades, this sort of analysis has been the most prevalent. (23) Interestingly, recent scholarship suggests that the relationship between the domains of law and cinema is a reciprocal one. (24) One recent commentator has said that "law and cinema discourse rests on the observation that both the law and the cinema reside in the same social domain--culture--and therefore each practice influences (and is influenced by) the other." (25) While this claim and the implications of accepting it are controversial, (26) I believe there is something important captured in associating law and cinema--as law-in-cinema--and placing them in cultural context. (27) It rings true to me that there is some important reason why one of our most important cultural artifacts continually plays with the relationship between justice and the institutions of civil society, and it seems equally plausible to me that the continual telling and retelling of such narratives has an effect on popular conceptions of justice and how it can (and cannot) be attained. (28)

Given the prevalence of this message, it seems pertinent to question whether the ideal of justice can be attained at all. Certainly, this meta-question lies at the heart of any compelling critique of institutionalized legal structures vis-a-vis popular conceptions of justice. Recent continental philosophy has taken on this line of questioning, specifically problematizing traditional notions of justice. In particular, work by the late French philosopher and social critic Jacques Derrida attempted to treat justice in a distinctly new and alternative way. (29) I will review this alternative conceptualization, setting it against the presumption that social and political institutions are incapable of attaining any measure of "true" justice. As part of this analysis, I will discuss the 1962 John Ford film The Man Who Shot Liberty Valance (30) to illustrate the dilemma commonly associated with trying to use law to achieve justice. Then, I will offer an alternative reading of the film that utilizes the Derridian notion of justice, questioning whether this alternative provides us with a more plausible and compelling interpretation of common presuppositions about the chance of achieving justice in or through social and political institutions, specifically the legal system.

I will then move to a related question about the possibility of attaining justice in the institutional structures of civil society: if the law cannot effect justice, should those outside the law act to bring it about? This question relates to the issue of vigilantism (and perhaps even to what has been called "popular justice"). (31) This is a direct and natural implication of the myth discussed above--i.e., because the law is ineffective at bringing about justice, someone outside the law must act in the name of justice. The hero, in these narratives, is a beneficent vigilante. Does this mean that justice is the domain of those who stand outside the established legal order? I will briefly discuss the conceptualization of popular justice developed by Michel Foucault and others to fill out this notion of popular justice. (32) This will also provide a framework for evaluating the 1968 film Hang 'Em High. (33) This film, starring Clint Eastwood, problematizes the vigilante narrative by reinserting the protagonist into the role of a representative of the legal establishment (almost against his will; he wants to be a vigilante because then justice can really be done).

Finally, I will conclude by discussing the intersection of attaining justice--both institutional and popular--and the role of the actor (formal, institutional, and cinematic personification) in giving rise to this critical cultural touchstone. In the end, watching movies about the impossibility of attaining justice through institutional mechanisms may not tell us what justice is, or how to get it, but it does tell us something about how those in our culture conceptualize the role of civil institutions. (34) It also might just tell us something about our heroes and their tenuous relationship to civil society.

JUSTICE DENIED

As The Man Who Shot Liberty Valance opens, a stagecoach is stopped in the wilderness by a group of masked men. Among the passengers is Ransom (Ranse) Stoddard, a well-dressed young lawyer hoping to make his mark on the West. The world which Ranse Stoddard (played by Jimmy Stewart) enters when he exits the stagecoach, in reply to the "invitation" of the desperado Liberty Valance (Lee Marvin) and his cohorts, however, is radically different than that which he has known before. Ranse is an Easterner trained by one of the legal institutions whose very purpose is to instill the idea that justice can be achieved through and in the law. He is, for all intents and purposes, the personification of the Western liberal legal tradition--a tradition that maintains that the...