“Western” Notions of Justice

justice in the institutional structures of civil society: if the law cannot effect 864 suffolk university law review [vol. xlii:849 law to provide for a just resolution to the conflict(s) brought on by the actions bourgeois state.104 in other words, by exploring any true the ideal of justice can be attained at all. certainly, this meta-question lies at to what calls for recognition, what calls for justice. the law must blind itself to proper names. the 108. id. cooper is, of course, innocent and the federal judge (portrayed by pat hingle) above that under derrida's formulation, justice is the process of deconstructing but if there is such a thing as justice, who can effect it? in the next section i floyd at mercer university school of law who has always supported my scholarly endeavors and to my just as the man who shot liberty valance opens with a dramatic the deconstruction here is not between ranse and liberty (for liberty explicitly recognizes that it is just that there is law. he merely wants to illustrate that law as a human some indication of its centrality to alternative conceptions of justice.87 the judge is about justice, yet it is extra-institutional. in the end, such an 79. see derrida, supra note 29, at 25. above--i.e., because the law is ineffective at bringing about justice, someone delaurentiis company 1974) (recounting story of new york architect who becomes vigilante); dirty harry ethical dialogue would be all that is something beyond the realm of human constructs that must be strived toward in comes closer to justice than another. if law cannot bring about justice, if it is our traditional notions of justice, especially be sure, but they are also outside the bounds of the conflict itself. represent the established institutions to help them in their quest for justice are can attain, nor even approach. instead, it is left to the agents within the social illustrated by his primary example of what he means by justice: the free and those in the established order.62 law and the judicial system to maintain order and bring about justice is a interestingly, however, the prevailing myth4 justice is the voluntary giving over of one's self to the other in closely approximate justice, we are often left feeling that vigilantes are on my interpretation, derrida's notion of justice is not a social or political 85. see derrida, supra note 29, at 21. univ. of illinois press 1996) (noting far right popular justice movements often used as examples). taken into account in the imperfect application of the flawed and insufficient 30. the man who shot liberty valance (paramount pictures 1962). there are several good cooper was innocent, however. the posse, we learn as the tale unfolds, 59. id. the legal institutions whose very purpose is to instill the idea that justice can be 111. see foucault, supra note, 32, at 27, 29, 31. individual's particular grievance.114 this is especially true within whereas justice cannot.68 and cinema is a reciprocal one.24 visited may 30, 2009). can be found in anthony chase's article popular culture/popular justice in legal reelism, 133-53 (john achieving justice in or through social and political institutions, specifically the to bring the outlaw frank miller and his band of marauding rifts to justice, but 89. depictions of this notion are particularly prevalent in films. see, e.g., death wish (dino this exchange with the judge is interesting in that it sets out the principal seems to be that what we traditionally understand as civil society is unable to provide us with justice. this is conflated.72 56. other film genres problematize the association between justice and law in contexts that are not as legal system. this may seem an odd notion of justice. if we look at this in light of what 75. see john rawls, political liberalism (columbia univ. press 2005) (clarifying distinction into their own hands if justice is to be served.61 justice denied justice, for derrida, is attained in the ethical engagement of the other on an foucault's work we see the preference for individuals acting without the eludes law and philosophy, exceeding and transcending them, and often enough "when it comes to justice, the best thing to do is to tell a story about a man 28. see id. relationship offered by levinas and derrida were to be taken seriously, for the in hang `em high. the judge realizes that cooper is using the badge in order it has failed. this failure, in a sense, implicates kane and anyone else who 25. reichman, supra note 17, at 460. lehman, authorship and narrative in the cinema 45-84 (1977). outside the law must act in the name of justice. the hero, in these narratives, is virtues (which have been lost in or suppressed by the civil society found in cities) can only be regenerated conclusions state cannot do so, is a philosophically complex one. the fact that the corpus otobiographies: l'enseignement de nietzsche et la politique du nome propre (1984). hang `em high begins with jed cooper (played by clint eastwood) being mechanisms found in non-western or indigenous social groups.98 "western" notions of justice: legal outsiders and compelling interpretation of common presuppositions about the chance of popular justice has been defined as a non-institutionalized (some might say 19. see id. the people who taught ranse are still teaching us. but ambivalence relationships. this certainly seems to be the position of the late french theorist frontier.42 ranse must realize that the law as he knows it (as a formalist enterprise) is view then, defines reality.37 the court, dragging along with it the ideology of bourgeois justice and those forms of relations hindrance to jed's goal of exacting vengeance against the men who hanged reside in the same social domain--culture--and therefore each practice when he exits the stagecoach, in reply to the "invitation" of the desperado "law-in-cinema."22 traditional view that laws are formed to achieve justice.82 herein lies the problem, though. there are undoubtedly going to be those miller productions 1979). most of the anglo-american tradition. recent work by the french philosopher the relationship between the protagonists who effect justice--or at least try case that justice cannot be found in or through the law. so the inclinations of counterpoint to the formalism of western liberalism. in its most prominent justice can be found in the law (where they accept without question the important reason why one of our most important cultural artifacts continually 100. see id. phenomenon.21 formed alternatives to the traditional western liberal positions. nonetheless, comic book and film incarnations, the people of new york need spider-man, but he is also shunned and display all of these characteristics at one point or another in the film. see ryan, supra note 13, at 24-25 re-inscribe the question and attempt to deal with its complexities. the 1968 picture high noon,47 given 4. richard slotkin discusses the importance that myth has played in the context of film (and particularly this will also provide a framework justice. there are cultural and social assumptions, however, that question deconstructive projects to account for ethics in any meaningful way. 87. see norrie, supra note 31, at 44. the presumption that the law is not equipped to do justice in universalized principles, their applicability in such instances is nonexistent. see cornell, supra note 84. there is no pretense interestingly, 11. see slotkin, supra note 4, at part iii. this kind of sentiment is taking hold with increased regularity, the traditional advantage of the gap between law and justice for personal reasons. essentially, law (droit) must be written without proper names, whereas justice must always come as a response character that must bring it about. characters who rely on the agents who the "mystical foundations of authority", derrida attempted to delineate a such a way as to recognize and sanctify their humanity.78 associated with the american zeitgeist18 and legal institutions found in the united states are widely and rightly regarded id. at 27. ted post film hang `em high is just such an artifact. 77. caputo articulates this concept in the following passage: foucault has in mind.103 "alternative jurisprudence."100 gallows). here again the message seems to be that the state can, and does, 78. caputo characterizes this nicely when he says that "[j]ustice is not to be recalled but invented in the 6. id. acted precipitously and hung the wrong man. cooper had bought the cattle profound consternation of the judge who has employed cooper and who has his concepts mean.35 discussions of the themes and ideas expressed in this film. i think the best is ryan, supra note 13, at 23-43. representations of justice 44-51 (a. masson & e. o'conner eds., 2007). form, vigilantism, this idea shows up over and over again in our popular 79 approximation of justice, then, needs to be brought on independently of the 63. see, e.g., john rawls, a theory of justice (1973) (describing justice as element of social conceptual landscape as traditional liberal theorists would have us believe. though, suggests that this form of justice is illicit and will be condemned by vis popular conceptions of justice. recent continental philosophy has taken on 9. see generally blade runner (the ladd company 1982); brazil (embassy international pictures hinder our quest for justice? reviled as a menace. see spider-man (columbia pictures 2002). 2. see generally brian bix, jurisprudence: theory and context ch. 8 (3d ed. 2004). falling down (alcor films 1993) (portraying unemployed defense worker's psychological breakdown and fact, many of the westerns that play with this theme suggest that the bad guys 98. see id. at 33-36. particularized ethical relationship with the other. because laws are necessarily these "legal outsiders" play an important part in the which typify bourgeois justice, seems to me to have played a very significant role in the domination intolerable cruelty (universal pictures 2003). very often, the critique is not a direct one; the message the sociologist steven spitzer has explained this dynamic in notion of justice can be used to form and restrain laws, as opposed to the phenomena and are notably prevalent in several movie genres. virtually every to fill out this notion of popular justice.32 105. id. justice. jed has assumed the mantel of authority, but make no mistake, he is their own instruments of justice.105 also the issues of role, authority, and popular justice, all while exploring the the group of men who assaulted cooper had hung an innocent man. it is of individual hatred for liberty, nor in response to something liberty has done endorsement is arrived at by cooper and the judge when they agree to try and in american western films, then, legal outsiders have a much closer sort of formal apparatus--is just a remaking of the problematic structures of the 112 that the law is ineffective--and indeed sometimes obstructive--in this regard. selected interviews & other writings 1972-1977 1-36 (colin gordon ed., 1980). hang `em high is extremely interesting in this regard because it is a much ed begley, sr., alan hale, jr., and bruce dern). the men are ostensibly a 72. see derrida, supra note 29, at 16. not quitting, he is openly defying the judge's constant badgering about how to framework and procedures of the legal system. here again justice is brought to make us confront the fact that the "fully formed" legal institutions that are himself, in effect, for the betterment of the town and its people. an outsider this is evidenced, at least in part i think, by the fact that the sort of cultural 40. id. at 26, 34. common conception of justice, at least the conception that prevails in most violence. see dominick lacapra, violence, justice and the force of law, 11 cardozo l. rev. 1065 (1990). 50. id. even his quaker wife (played by grace kelly) accepts this premise at the end of the movie. id. at in short, law can (and should) be deconstructed, 88. hang `em high (leonard freeman productions 1968). indeed, we learn early on that cooper had 868 suffolk university law review [vol. xlii:849 have mentioned--suggesting that the traditional western notion of law is a individual level. because law is not equipped for such engagements, it is belgians who collaborated with the nazis.109 2009] "western" notions of justice 861 maintains blind allegiance to the law and its institutions.49 violence in-kind is radically different than the willingness to talk to the other in resolution between the conflicting parties (ranse and liberty), but between the they must become legal outsiders to bring about justice. the law--the and the possibility of justice 3-67 (drucilla cornell, michel rosenfeld, and david gray carlson eds., likewise, derrida's notion of the relationship between protected and try to bring about just resolutions to our problems, but we cannot recurrent motif.11 personification of the western liberal legal tradition--a tradition that maintains hadleyville is to be saved, seemingly the only way in which to bring about 42. id. for founding act of violence in any established social structure); see also richard beardsworth, derrida & they need to take matters 54. for a representative discussion of the different accepted positions within western liberalism on individual who was remorseful enough to turn himself in once he realized that violence," which he associates with the myth of the frontier. on the frontier, according to this myth, important justice.92 in fact, the tension between this ineffectiveness on the part to foucault, swifter, more tangible, and more complete. the solitary outsider, of the bourgeoisie. and discarded at will. instead, the law is something beyond the confines of any 74. derrida does not want to make the claim that law and justice are in no way related. in fact, he think that justice is the providence of the institutional structures that exist this alternative jurisprudence maintains at least jurisprudence. indeed, most such paradigms are supposedly constructed in sort of engagement, the individualized ethical confrontation that comes closest justice. these sorts of conflicts are undoubtedly a part of human existence, but family's death); shaft (metro-goldwyn meyer 1971) (depicting private investigator hired by criminals to of the western liberal legal tradition has completely erased this question is to bring justice to city of boston); the outlaw josey wales (the malpaso company 1976) (portraying 62. we will see this reemerge later in the discussion surrounding vigilantism and popular justice. frameworks. we root for vigilantes because they protect things that must be route to justice is through individual engagement with the other. but this seems 860 suffolk university law review [vol. xlii:849 remains; some people still question this account of things. this creates both contains such marked flaws would wish to dress them up in a way that conceals suggest that this "outsider justice" is just another form of lawlessness. so our way. 29 law, as a socio- beyond the law in order to bring about true justice.60 real way necessarily associated with justice. indeed, the conflation of law with does not allow for justice to be attained. that the constructions of the legal system (and other social institutions) are justice, for derrida, is the process of deconstructing the procedure is one that simply differs from the open willingness (and ability) to speak to the other in her own language-- absent the confines of "civilized" life, where people buy into the idea that law can bring about justice is bankrupt in our society--that the social, political, ideal (as we would find in western liberalism), but is instead an individual put down his law books and pick up a gun.43 justice on the frontier.50 some important things in common), but for a larger more transcendent purpose: 14. see id. (discussing central role of "outsider"); see also slotkin, supra note 4, at 379�82 western films are proto-derridian in that they deny that law is a proper (or their own checkered histories with the establishment, yet still maintain a deep 2009] "western" notions of justice 855 civil society, then, is not the path to justice. in fact, many of the cultural crumble. justice on the frontier is no longer what the law says it is--for the 18. see slotkin, supra note 4, at part iii. previous reliance on the law and meet violence with violence if the town of that exist within our political and social institutions. going outside the law, him down and save his life. interestingly, however, the marshal handcuffs ultimately relents (after blackmailing cooper to remain a marshal). it is this trope as well, some of them in unexpected ways.9 113. see foucault, supra note 32, at 31-32. of the outlaw liberty valance.45 literature of modern sociology, popular justice is more related to quasi-formal the movies i have discussed above are infused with these themes. the man this is a symbolic act of walker, is the justice viewed through the eyes of comic book vigilantes truly just?, available at http://www. such narratives has an effect on popular conceptions of justice and how it can are forever beholden to consummate outsider; he has contempt for the law, he circumvents the must develop a more sophisticated notion of justice than the one that prevails in persuaded by the judge to enter the law--he becomes a federal marshal--in construction is flawed and limited to the extent that justice is necessarily beyond law and independent of any living on the fringes of society yet acting (often selflessly) in the pursuit of a justice is to confuse a performative convention with a "juridico-ethico- valance, in legal reelism: movies as legal texts 23, 24-33 (1996). 16. ryan, supra note 13, at 29. individual question, it postulates substantive justice oriented toward some roughshod over it, and to let it go at that."1 transcendental schemes that underlie platonic and kantian conceptions of justice. see id. at 325. it need not but but what of the usefulness of justice in the crafting of laws and their before any contract, because it has come, the other's coming as the singularity concerning his ability to bring about law and order (justice in the traditional justice, foucault promoted the notion that only the people themselves, acting the frontier.58 vigilantes--the consummate outsiders--in bringing about justice. these films west. the world which ranse stoddard (played by jimmy stewart) enters justice: the mob is usually wrong! because the mob mentality is so prone to justice that derrida advances can guide us in formulating alternative legal michel foucault.91 94. see foucault, supra note 32, at 6. such a discourse underlies some cultural examinations of this dilemma--as i movements are associated with grassroots bands of individuals who form an 107. see foucault, supra note 32, at 1-6. i believe this is clearly the case. this sort of evaluation, shift in perspective, but one which could have far-reaching implications. cooper responds with the rejoinder that if this is that is always other. this "idea of justice" seems to be irreducible in its manner consistent with institutionalized performativity, i.e., law.80 between moral and political doctrines of justice). so ranse must himself go outside the law (or therefore, this non-institutionalized notion of popular justice, according to convinced that this association between violence and justice (a virtue as defined) could be more completely far-reaching implications for law. this relationship of justice can guide and these characters perceive that the law has had its chance 97. see norrie, supra note 31, at 46. but the issue, as we learn throughout the rest of the film, is much more followed the law and worked through its established procedures--must literally complex than this. cooper does not die from his lynching. instead, one of the to the issue of vigilantism (and perhaps even to what has been called "popular the legal system is impotent when it comes to justice. instead of searching for not one where the possibility of finding justice lies in relying upon or utilizing 29. see jacques derrida, force of law: the `mystical foundation of authority', in deconstruction the public institutions of western society.5 (ranse) stoddard, a well-dressed young lawyer hoping to make his mark on the foucault and spitzer (among others), can be aimed by the people at individuals look at the movie hang `em high, which is particularly interesting in this as the man who shot liberty valance opens, a stagecoach is stopped in the imaginations.89 cooper, the outsider, who recognizes true justice. he instructs the judge, who it rings true to me that there is some justice, the judge says, is elusive and perhaps even impossible. but it must be incommensurable). law has its clearest applicability in these instances. western films are especially noteworthy in this regard, wherein the inability of justice meted out by eastwood's character is swift and violent (much to the society as a path to attaining justice is at best na�ve, and at worst disastrous.10 collaborators got what they had coming, and it was ethically important for the in effect, this tension points to the 24. see lawrence m. friedman, law, lawyers and popular culture, 98 yale l.j. 1579, 1579 (1989); resembles the traditional notion of justice in those institutionalized frameworks a beneficent vigilante. does this mean that justice is the domain of those who to the notion of justice we have endorsed. the dialogue between cooper and speaks of an ethical relationship on levinasian terms (which explicitly denies the affability of violence). left thinking, as are many of the ancillary characters in the films: "what good ford film the man who shot liberty valance30 zwartboek (sony pictures 2006). established legal order. indeed, justice is something that must be fought for westerns). see richard slotkin, gunfighter nation: the myth of the frontier in twentieth- culture, 27 law & soc. inquiry 139 (2002) (reviewing richard k. sherwin, when law goes pop: the one might infer from these examples of popular culture that the notion that remarkably derridian in character. a fitting conclusion, perhaps. portrayed as fools, and they usually get what they deserve for being so naive.16 westerns that represent the established legal institutions of civil society one recent commentator has said that "law justice, in short, is what the law says it is.36 retrieve kidnapped daughter); taxi driver (bill/phillips 1976) (showing unstable war veteran violently are talking about analogous things: otherness, non-institutionalized action, and justice, legal outsiders, and civil society 114. there are elements of this in most, if not all, of the films on vigilantism. see supra note 89 the institutions in question.53 850 suffolk university law review [vol. xlii:849 exploring this question in the context of cinema gives us a rich body of points for such criticism.7 cooper--a vigilante because he is searching for justice for himself. when he values he has left behind,44 the vigilante is not a neutral party stand outside the established legal order? i will briefly discuss the conceptualization of the engagement of the other. it seems a weak assault, however, as derrida explicitly just.54 moment, which is but a small break or crevice in the textuality of everyday life." id. at 191. the confrontation of the other that we find in these films is by no means the denvir ed., univ. of illinois press 1996). the heart of any compelling critique of institutionalized legal structures vis-�- people's position. see generally mark kelman, a guide to critical legal studies (1987). political" relationship.67 messages we are exposed to suggest that following the bounds of civil society right the wrongs that have been done to them? foucault seems to reject this * what foucault was championing is the people acting as affirmative character, in its demand of gift without exchange, without finally, i will conclude by discussing the intersection of attaining justice-- this is a direct and natural implication of the myth discussed at liberalism for some time. see alan hunt, marxist theory of law, in a companion to philosophy of law at least the two movies mentioned this theme is problematic on several levels. we have been conditioned to and legal theory 355, 362 (dennis patterson ed., 1999). acting outside the established institutions of liberalism is yet to be determined; 45. the term "outlaw" here cannot necessarily connote any derisive quality as the "hero" also must go derrida's account) have an impact on the formation and application of laws. given the prevalence of this message, it seems pertinent to question whether her own language. on a truly derridian account, then, this is not justice at all. measure of "true" justice. as part of this analysis, i will discuss the 1962 john this has been equated to "mob rule,"106 seemingly innate human desire to have our cake and eat it too. this same an attempt to form an ethical relationship with the other.71 it's a start anyway. taking the issue of justice into one's own hands because the institutions of the both institutional and popular--and the role of the actor (formal, institutional, and it seems equally plausible to me that the continual telling and retelling of the status quo (meaning, in his critique, the dominant class).94 the vanishing line between law & popular culture (2000)). for example, marshal will kane--who has in the past social and political institutions is seemingly impossible. the dominant it individually. superficially, then, it appears that the themes we find in these about a just resolution to any conflict that might arise (on either a social or administration. this is, in substantial is absolutely central to many of these movies.12 possible) mechanism to attain justice. they maintain that the only possible higher ideal beyond the bounds of where the established institutions of civil 120. see ryan, supra note 13, at 38. influences (and is influenced by) the other."25 posse looking for the outlaw who murdered a local rancher and his wife and individual with another.69 the conflict between ranse and liberty (which is a metaphor for the conflict committed the crime, and the posse hangs him from the nearest tree. for foucault, the consolidation of power into any established structure--any established institutions at every turn, and he is willing to break the law if that is in juridico-political discourse.84 23. see generally reichman, supra note 17; sherwin, supra note 17. genre of film plays on this theme at some level, particularly film noir.8 part, what makes them outsiders. they are outside the legal establishment, to should get their comeuppance even when the law does not provide an avenue derrida says, for in this cycle of violence.86 justice 171 (r. abel ed., 1982). structures and institutions that are more in line with the widespread adoption of institutions of civil society. see jessica silbey, a history of representations of justice: coincident preoccupations of law and film, in would vitiate the purposeful and voluntary nature of the relationship), but the university; j.d., howard university school of law; ll.m., temple university school of law; ph.d., margins of civilization.55 actually makes it less likely that justice will be attained.6 example, could perhaps more accurately be described as institutionalized universal and supreme and that such constructions in fact define what operative out and punished by the people themselves, people who had not collaborated tension also relates to our suspicion about established and entrenched power justice, should those outside the law act to bring it about? this question relates about with a gun and brought about by an outsider. kane must reject his and film at the university of oregon. i would like to thank the members of that class for their feedback, as courts or star chambers are examples.99 stance. 33-34. can either hide or reflect the interests of certain segments of society, but is in no and two of his goons (played by strother martin and lee van cleef) again plays with the relationship between justice and the institutions of civil society, as does liberty. sanction of civil society as agents of justice. this popular justice is, according 1. john d. caputo, demythologizing heidegger 191 (1993). justice resides. this is unmediated justice, justice in a direct and patent way. vigilante; he does what nobody else seems to be able to do. he has killed the primarily by force. it is instead an ethical association on the level of themselves acting in socially problematic ways. they are, in a very real sense, of legitimacy in the system itself?64 reification of legal categories), ranse's ideological worldview begins to 66. see generally rawls, supra note 63. but see deconstruction and the possibility of justice bring those who hanged him to justice. on the surface, jed is an ostensible our political and social culture.3 2009] "western" notions of justice 857 fact that the established institutions of civil society cannot bring about justice. positivist notions found in western liberalism.102 this line of questioning, specifically problematizing traditional notions of frameworks as well) in order to allow the particular engagement of one violent reaction); mad max (kennedy miller productions 1979) (depicting efforts of police officer to avenge autobiographical writings 277-300 (peter dementz ed., edmund jephcott trans., 1978) (describing need political institution, and more specifically the judicial system, are frequent focal without calculation and without rules, without reason and without progenitors, emmanuel levinas) proposes. viewed in this way, the derridian position in order to bring about justice; vengeance will not work. in fact, the 104. id. this is, of course, a traditional marxist critique of the western liberal legal establishment. justice?" point for derrida.83 understand more about the institution of law as a social and cultural 118. on a superficial level this might be seen to be ranse, but really it is the people of the town. to proper names. this is not at all what transgresses them. for often enough it is necessary, for the sake of justice, to at the conclusion of world war i will review this alternative conceptualization, setting it against the insider; he wears a badge. if we look deeper, however, he fits the profile of the proper names are not only ways of calling others but ways of being called by others and responding american film," which was held on january 9, 2009, in san diego, california. their work is provocative and such an impact would have the most profound effect if the type of ethical instead, some of our most important this is more related to popular morality and cultural mores than to any kind of civil institutions.34 115. see foucault, supra note 32, at 33. a part to which the notion of justice is inapplicable (and in a sense, liberty valance (lee marvin) and his cohorts, however, is radically different justice? which rationality? (1988) (critiquing liberalist notion of justice espoused by rawls and his 65. see derrida, supra note 29. litowitz, derrida on law and justice: borrowing (illicitly?) from plato and kant, 8 canadian j.l. & juris. but as i have suggested, justice does not fill as large a field on the 53. legal scholarship within the legal academy has been particularly slow to engage in a self-critical necessary.85 are surely not forced to assume a relationship of ethical particularity (to do so more complex rendering of this dynamic. jed cooper was wrongly hanged by oppression, procedural advantage, or outright revenge. that a system that the message, then, is that if justice is be attained, it must be done outside the circulation, without recognition or gratitude, without economic circularity, drawing from this liberal heritage, many of the ideas that we have historically 103. foucault, supra note 32, at 1�6 (arguing popular justice should not adopt any procedure resembling 99. see anthony chase, popular culture/popular justice, in legal reelism 134 (john denvir, ed., a recurring theme within the genre of western films concerns the nature of but there is something prevalent about the idea that revenge is justice. in the legal system actually effect justice? if so, doesn't that undermine our sense artifact, continually reinforces the notion that looking to the institutions of civil 84. drucilla cornell has an excellent discussion on this. see drucilla cornell, the philosophy of the aggrieved citizens.118 61. id. mistake (or worse), the message is that it is better to leave justice to the legal previously been a law man, but he seems to have left the profession with a less than satisfied taste in his mouth. it seems altogether more acceptable to question the the law to bring valence and his gang to justice for robbing the stagecoach and wilderness by a group of masked men. among the passengers is ransom research assistant david curcio for his friendship and excellent help with this project. sequence seems to reinforce the traditional criticism of vigilante--or mob-- he is a vigilante acting under color of law. as we might expect, the "true" kind of ethical relationship that levinas and derrida want to suggest. the to him or someone important to him (in fact, tom and liberty seem to have become a federal marshal to bring the culprits to justice. he is not--as jed application in taking care of situations and issues which fall short of the mark? need not be.111 64. see ryan, supra note 13, at 26. (drucilla cornell, michel rosenfeld, & david gray carlson eds., 1992); alasdair macintyre, whose prevailing social anxieties with which our culture struggles.19 regard because it problematizes not only the institutionalization of justice, but seeking out of those who have visited violence upon us in order to repay that and expedient than what state institutions can offer or provide.97 these institutions of civil society, especially the judiciary, which he 90. this is the bind that the stan lee created character spider-man frequently confronts. in both the as impotent and ineffectual.51 in a way, however, this begs the question. we are attempting to discern upon a solitary, detached hero who acts outside the established institutions of civil society in order to bring culture.2 92. see id. at 3. 35. see ryan, supra note 13, at 32. meaningful about the production of law."20 that does not seem to bother foucault.107 to justice (for he knows that law is feeble in this regard). instead, he assumes caputo, supra note 1, at 205. been cast as justice by traditional western liberalism. the role of individuals rationality." american legal institutions, such as law schools him, even though he was not in reality responsible for the death of liberty 20. see reichman, supra note 17, at 459. law as it is represented by the institutions of civil society (metaphorically such a way as to use laws, and the legal system in general, to bring about institutional mechanisms may not tell us what justice is, or how to get it, but it 31. see alan norrie, law and the beautiful soul 33-49 (2005). other between social progress and deterioration, between order and disorder, etc.) can sanderson's portrayal of mayor e.b. farnum in the hbo series deadwood (home box office 2004-2006). feeble on the frontier before he can truly effect justice in shinbone. he must doesn't buy it. results. throughout all of this, tom doniphan (john wayne), a truculent and this film, starring clint 2009] "western" notions of justice 865 followers). particularly true of films that focus on margins (e.g., dystopias, science fiction films, and westerns). an appointed representative of the state, will bring the men who lynched cooper to this power to effect justice is seen as more complete institutional and social tension. narratives in popular media such as movies and television about law (and the he pins on the badge not because he maintains any idealistic assumptions equate law and justice.66 group to engage an ethical relationship (one involving otherness) that will bring name, every decision which `cuts,' which must give itself up to the `impossible decision,' is haunted by the institutions, if it is to be found at all. beyond this is the underlying perception the idea that justice can have an effect on law is an extremely important trace of levinas in derrida, in derrida and diff�rance (robert bernasconi and d. wood eds., 1985). extra-institutionally.39 than that which he has known before. ranse is an easterner trained by one of 57. see norrie, supra note 31, at 33-36. it may be a psychological need for revenge, but justice is in no way implicated bushwhacked by liberty valance, although ranse himself does not realize it for derrida, though, law is confrontation on the prairie between a lawless band and an innocent bystander, a barely perceptible foundational violence that might signal the eventual importation of the legal the narratives found in western films are closely quit his post before he can actually effect justice.48 because it is the just thing to do.117 recognize that the concept of justice transcends the positivist legal constructs a posse, and he wants individual revenge. he takes matters into his own hands, that social institutions are often obstacles to the possibility of attaining justice. 55. see slotkin, supra note 4, part iii. as the law and cinema discourse has grown over the past admitting that there might be alternative notions of justice might (at least in 83. see derrida, supra note 29, at 16-17. the limit (1992). valance.46 117. among the commonalities is the fact that tom seems to have almost as much animosity toward ranse 2009] "western" notions of justice 859 good guy and the bad guy in a way that places typical value judgments in question. while beyond the scope of 80. id. at 17. within civil society. yet at some deeper level, almost all of us probably human social constructs (not just law and legal institutions, but other social form of direct individual vengeance.113 disappears from the scene with his death), but between the vigilante (tom) and weak, ineffectual, and flawed, while the latter is transcendent and ideal. society or in situations where the established institutions are defunct or have for justice to be brought about by or through the institutions of law. in for if this were not so, there would be no reason to engage stole the murdered couple's cattle. the cattle that cooper has in his possession outsiders, can this ultimately have a formative effect on the institutions of the 101. norrie, supra note 31, at 46. this erasure, it seems natural that our non-institutional cultural artifacts would such human construction. see derrida, supra note 29, at 16. does set him free (just in time to see the real killer hang on the official state conceptualization of popular justice developed by michel foucault and others ranse that the law can never stop people like valance.41 34. see silbey, supra note 5, at 151. genres such as science fiction, action adventure, and drama draw upon this themselves in the media of popular culture. i have argued that this can be seen resulting confrontation is not something that can be discussed in terms of lives on the edge; literally (on the edge of town) and figuratively (being who shot liberty valance deals with them in a direct and easy to see way.116 it should be clear that on the derridian account law and justice cannot be in the end, watching movies about the impossibility of attaining justice through mediating disputes but an agent for the aggrieved.115 in the assumptions and bias. much of what is popularly considered justice, for necessarily detain us here, however, as the criticism itself falls into the error of mistaking a relationship with an corruption, cowardice, decadence, moral ambivalence, physical infirmity, and lashing out at society); the boondock saints (franchise pictures 1999) (chronicling efforts of two brothers and abiding personal sense of justice and fairness. by contrast, characters in by legal outsider i mean does tell us something about how those in our culture conceptualize the role of that have evolved beyond the kangaroo courts one would often have found on with what she calls "law-as-literature." the latter is an analysis of the rhetorical and discursive techniques ranse's foray into law practice yields similar impossible--as ranse stoddard, will kane, and jed cooper had suspected-- and suffered at the hands of the nazi occupiers.110 41. see ryan, supra note 13, at 37. 48. see ryan, supra note 13, at 38. reichman, supra note 20, at 460-63; suzanne shale, the conflicts of law and the character of men: writing association of american law schools law and humanities section panel entitled "legal outsiders in from the real perpetrator. the justice the posse sought for the murdered man it also might just tell us something about our heroes and well as my friend and mentor cheyney ryan, who always serves as an inspiration. i would also like to express justice. in particular, work by the late french philosopher and social critic we see this from the initial scene when ranse is always associated with violence is extremely troubling. richard slotkin identifies this as "regeneration through package so unhesitatingly should cause considerable concern. the act of bringing about justice. jed recognizes--whether out of his own self- 91. see foucault, supra note 32. 76. see id. derrida is, of course, not unique in this criticism. marxist legal theory has leveled this claim 102. see id. at 44�47 (comparing western liberalism to alternative justice). invariably display characteristics that have nothing to do with justice: the formalism and the rule-bound and cool "matter-of-factness" of bureaucratic our western characters ranse stoddard (and will kane) turn out to be correct. 37. see ryan, supra note 13, at 29-30. (distinguishing between "town-tamer" and "outlaw" westerns). institution of the established order--has failed them. engaging. additionally, i would like to thank ana leticia barauna duarte medeiros for her wise advice. devine), refuses to confront valance. in fact, he flees the scene when valance 856 suffolk university law review [vol. xlii:849 forthright as to freely enter into the kind of ethical relationship of which 82. see caputo, supra note 1, at 195. bring about justice. in fact, the judge tells cooper that he, as the duly about justice. see cheyney ryan, print the legend: violence and recognition in the man who shot liberty 86. derrida's discussion of justice in "force of law" has been criticized as a tacit endorsement of ideal category. the former is distinctly levinasian, while the latter is associated with plato, kant, or both. the ethical relationship which derrida (and one of his principal intellectual cynical cowpoke that lives on the edge of town, repeatedly tries to convince ltd. 2005). for this. many of these films use this as an opportunity for exploring the role of david t. ritchie* farmer who joins confederate guerilla unit). this theme is also quite prevalent in comic books. see anthony the question of who can, or should, bring about justice, if the agents of the this paper, it is this sort of move that worries critics of deconstruction who question the ability of him. on the margins of society, at least, the institutions of western liberalism the law, as is will kane. it appears as if both of these characters need to move institutional framework.38 10. this is frequently the case in films that are set in post-apocalyptic settings. see mad max (kennedy see also tag gallagher, john ford: the man and his films 385-413 (1986); william luhr and peter drucilla cornell offers an admirable defense of derrida against this criticism in the philosophy of the limit. 33. hang `em high (leonard freeman productions 1968). fully support and encourage them because this would undermine our sense of between judge and judged, between judge and the parties to the action, between judge and litigant, the notion that justice is attainable only through extra-institutional means is cinema scholarship and the related but distinct academic treatment of "law-in-literature." she contrasts this 2009] "western" notions of justice 867 in critiquing the ability of established legal institutions to bring about system that is the law.119 institutional and formal structures of law. 46. tom doniphon actually murders valance. 106. see norrie, supra note 31, at 49. deconstruction is justice.70 essentially the critical claim is that derrida does not exclude this sort of violent confrontation from his social group that they did. looked at in this way, both derrida and foucault 26. see generally silbey, supra note 17, at 146 (reviewing richard k. sherwin, when law goes pop: found in polished society are ultimately as feeble as those found in shinbone or the hero in most western films is not the sheriff, judge, own brand of justice in mind). 38. id. at 25-26. are in fact from the murdered man's ranch. this is taken as proof that cooper bring about what he considers to be true justice. he is, in short, taking 44. see the critique of violence, in walter benjamin, reflections: essays, aphorisms, will; he wants to be a vigilante because then justice can really be done). into the role of a representative of the legal establishment (almost against his interesting take on this is the comedy blazing saddles (crossbow pictures 1974), where the themes explored while this claim and the better the law by always remaining conscious of a notion of justice that seems but one that nonetheless recognizes the inability of something that only makes sense on the level of individual particularity.81 325 (1995). this criticism warrants reflection as derrida has elsewhere explicitly rejected the logocentric and who would escape justice in the established institutional arrangements of civil film, as a prominent cultural and cinematic personification) in giving rise to this critical cultural touchstone. justice, questioning whether this alternative provides us with a more plausible issue of justice. my comments here, then, are not meant to be universal. reichman has recently said that "cinematic theory can tell us something (describing appleyard as "infantile" and "na�ve"). a more recent example of this can be found in william 21. see id. at 458-59; see also silbey, supra note 5, at 151. are interesting in that they deal directly with the dilemma of acknowledging the vigilantes act on behalf of some larger principle that transcends any (enumerating examples of such films). assumes the cloak of authority, however, he creates a gap between himself and this presumption roughly corresponds with recent treatments of the notion the dynamics of a conflict. it is not an ideal that formal institutional structures conversely, the themes we find in our cultural artifacts will not give us fully achieved through and in the law. he is, for all intents and purposes, the 12. a good example of this is high plains drifter (the malpaso company 1973). important captured in associating law and cinema--as law-in-cinema--and so the ethical relationship that results is not a order to avenge his lynching and near fatal hanging.88 i believe there is a way to circumvent this dilemma, but in order to do so we traditional western legal represented in the film as that found in law books) is feeble, it can be torn apart narratives of justice in american westerns.14 119. john caputo sums up the judge's dilemma nicely when he says that "[e]very decision worthy of the 70. id. at 15. the political 98-100 (1996); jacques derrida, d�clarations d'ind�pendance, in jacques derrida, interest or for some higher purpose is not clear--that he will have to use his rhetorical practices of those who make these films and shows) we can judge is constantly assailing cooper with arguments against vengeance. until sometime much later. outside the bounds of the established institutions of civil society, can effect the wilds on the edges of civilization resonates with us, but not nearly enough society will allow, can bring us justice. at least that is the message we see. the law, the judge's authority, and the ability of both to effectively render justice, on the frontier, seems to be an ideal that is eastwood, problematizes the vigilante narrative by reinserting the protagonist traditionally, western liberal theory maintains that law is the mechanism established system? can frontier justice change our system for the better? this law and popular culture (1995); richard k. sherwin, when law goes pop: the vanishing line or mayor, but is instead the quiet, solitary, and somewhat shady character that 15. an excellent example is the character of town marshal link appleyard (brilliantly played by andy commonly associated with trying to use law to achieve justice. then, i will century america 1-26 (1998). 2009] "western" notions of justice 853 mcneill, lex populi: the jurisprudence of popular culture (2007); steve redhead, the birth of at least try to) in order to effectuate justice. a situation that makes a hero of 96. see norrie, supra note 31, at 43-44. a good discussion of this concept and its use in popular films on this view, justice is been destroyed by revolutionary or other popular action. if . . . an "ethos"--not to speak of instincts--takes hold of the masses on some hadleyville. this is not to say that we would not find a closer approximation the work of emmanuel levinas. see generally emmanuel levinas, humanism and the other (nidra poller example, that by the re-forming french and belgian governments. instead, they were sought 39. id. at 26. different formulations? shouldn't we rather discuss the relationship between derrida and michel foucault. derrida's construction of justice detaches any vanishing line between law & popular culture (2000)). silbey traces the relationship between law and two decades, this sort of analysis has been the most prevalent.23 drawing on the groundbreaking work of jessica silbey, can be identified as (and cannot) be attained.28 innocent, the judge will set him free; if not, they will have to hang him again! are these guys (the sheriff, the lawyer, the mayor) if they cannot give us and his family was misplaced. the vigilante group, acting to bring about 49. id. 81. id. 13. westerns frequently employ the theme of townspeople who live on the outskirts of civilization relying 51. the work that comprises the corpus sometimes known as "critical legal studies" addresses this association of law and justice still holds sway.52 security in established institutions.90 (bourgeois) state will not and cannot be concerned with justice.108 while many may feel that the actions of vigilantes can more official civil society.13 69. derrida, supra note 29, at 17. can only be brought about, by those who are acting outside the bounds of jacques derrida could aid us in this endeavor.65 association to justice than do the established legal officials. we are invariably break the law . . . ."73 2009] "western" notions of justice 851 law and justice breaks radically from traditional western liberal accounts.74 2009] "western" notions of justice 863 what it takes to bring about justice. law is, in a most obvious sense, a justice").31 emerging discourse, 17 s. cal. interdisciplinary l.j. 457, 457 (2008). see generally william p. cooper and takes him to the territorial seat. cooper is told that if he is metamorphis can be seen, i think, in a scene between jed cooper and the judge derrida had to say about justice, however, an interesting thing occurs. i said 68. see id. at 14 (stating justice not deconstructible). this claim has exposed derrida to the criticism that cultural artifacts often go to great lengths to point out how finding justice in the law, on this message appears to be that justice is something found outside accepted social province; mine and mine alone!" see hang `em high (leonard freeman productions 1968). 43. the fact that the attainment of justice (to the extent that justice can in fact be attained) is almost indeed the case, justice would necessitate that the judge release the one on the alternative account of justice that derrida provides, it is indeed the seen in this way, popular justice i will then move to a related question about the possibility of attaining i believe there is something problematized by slotkin. cheyney ryan does a better job of this. see ryan, supra note 13, at 23-25. rawls, political liberalism (2005) (discussing justice in light of politically liberal societal framework). territorial marshals (played by ben johnson) happens upon him in time to cut and courtrooms, and the theorizing that goes on in and behind them, still one judge and a few marshals), had carried out an unjust act. this opening those based in some concept of the fairness of institutional procedures,63 marginal, however. "film noir" movies, for example, frequently take place in cities and also deal with the conceptually incapable, then why haggle over the degree of failure involved in outlaw that is threatening everyone's hopes and dreams. tom is not acting out anglo-american jurisprudence, leaves us with a dilemma. can people outside the glaring imperfections ought not seem unusual, but that we accept the offer an alternative reading of the film that utilizes the derridian notion of when ranse arrives in the frontier town of shinbone he is determined to use associated with justice are really other social, political, legal, and psychological in foucault's example, one cannot help feeling that the french and belgian weakness of spirit.15 the quintessential outsiders. this creates tension within our conceptual employed in legal texts. id.; see also reichman, supra note 17, at 458-59. philosophically opposed to the establishment). if justice is to be had, it is this concrete instance and person; and such an "ethos" will unavoidably collide with of justice from a continental perspective, most notably in the work of jacques the liberal paradigm would advance. to this derrida might respond that people hands of the people.96 71. see caputo, supra note 1, at 194. derrida draws this formulation, at least in substantial part, from whether this arrangement can ever be effected. these assumptions manifest whether it is possible for the law to effect justice, not whether one form of law devine) in the man who shot liberty valance (paramount pictures 1962). appleyard, in fact, seems to 60. see ryan, supra note 13, at 30. notion of justice that expands beyond the horizons of the formalist attempts to concepts disguised and concealed beneath the sugar-coating of liberal a similar message can be read in other movies in the western genre. in the all of this is laced, of course, with marxist revolutionary undertones, but it notion of outsider status. 854 suffolk university law review [vol. xlii:849 state judicial apparatus). assault and humiliate ranse.40 characters that are not acting under the color of law: solitary souls who have the following way: stand in the way of anything that resembles justice. the system cannot and implications of accepting it are controversial,26 placing them in cultural context.27 the concept of justice is a dominant theme in traditional western liberal reversal of fortune and judgment at nuremberg, 30 u.s.f. l. rev. 991, 991 (1996). 22. see silbey, supra note 17, at 146 (reviewing richard k. sherwin, when law goes pop: the (the malpaso company 1971) (following renegade police officer in attempting to apprehend serial killer); justice, what can--or should--we do about that? ultimately, cooper is 110. an interesting film that deals with this is the recent paul verhoeven film black book (english title). 93. see id. at 4-5. foucault says, for example, that derrida speaks. indeed, this is undoubtedly the first objection a supporter of 58. id. has to do this, and tom doniphon surely fits that profile. 112. steven spitzer, the dialectics of formal and informal control, in the politics of informal associate professor of law, mercer university school of law, macon, georgia; b.a., cleveland state between law and justice in a legal institution of greater relative sophistication.57 certainly, i believe that we do in fact find something that more closely 1985). other less obvious examples can be found in fantasy, romance, and even comedy films. see 109. id. at 9-11. justice has historically played a large part in western paradigms of between law & popular culture (2000); jessica m. silbey, what we do when we do law and popular 116. the man who shot liberty valance (paramount pictures 1980). but does this mean that individuals are empowered to act on their own to to--and the legal and social establishment. very often justice is brought about, is while there are more than a few indications that to illustrate the dilemma substantive (as opposed to procedural) justice. 73. see caputo, supra note 1, at 189. ii, these collaborators (especially women) were not punished by the allies nor justice. but this message is superficial. things are not so simple. cooper 862 suffolk university law review [vol. xlii:849 individual level). presumably, popular justice (through an individual vigilante 866 suffolk university law review [vol. xlii:849 17. see amnon reichman, the production of law (and cinema): preliminary comments on an society's cities.56 not comfortable in this position. indeed, he is continually quitting. when he is only be justly resolved by the outsider, tom doniphon. tom is clearly a 852 suffolk university law review [vol. xlii:849 858 suffolk university law review [vol. xlii:849 not a new one. in fact, many theorists have explored this theme as a inform the crafting, invocation, and application of laws. further, the notion of justice, see m.d.a. freeman, lloyd's introduction to jurisprudence ch. 7 (7th ed. sweet & maxwell, the converse is not necessarily the case, however. justice can and does have this force. foucault's notion of popular justice--seems to be based on the notion that judge and his new marshal. in fact, jed continually displays open contempt for conflict and the social unit negatively affected by the conflict. tom sacrifices in fact, vigilantism--and by extension through violent acts. slotkin, supra note 4. while he undoubtedly correctly identifies this phenomenon, i am institution); john rawls, justice as fairness (2001) (reforming notion of justice as political concept); john 7. id. 67. see derrida, supra note 29, at 5. to be openly problematized. it seems, on at least one reading of these films, interestingly, the example that foucault uses is the punishment of french and university of oregon. the idea for this paper was derived from a project that i did for a class on philosophy foucault humiliating the passengers. the town marshal, link appleyard (andy 27. see reichman, supra note 17, at 489-96 (describing use of cinema to explore law). advocates what he called "popular justice."95 or group) can engage in just such an ethical relationship. this is, in fact, where maintains a particular suspicion of and contempt for,93 instances where the giving will not take place. people are not always so the relationship of justice, though, is not one which is characterized view), nor because he believes that the law can bring those who assaulted him and cinema discourse rests on the observation that both the law and the cinema their tenuous relationship to civil society. confronted and questioned by a group of armed men (played by, among others, jacques derrida attempted to treat justice in a distinctly new and alternative through which justice is to be brought about.75 of legal institutions and the desire for justice on the part of principal characters vanishing line between law & popular culture (2000)). in this paper are toyed with in hilarious ways. john caputo says, for instance, that on derrida's reading, "justice and give us a glimpse into the particularity.77 or a woman who effects justice, or who suffers for it, or who presumes to run amnon for derrida, law is merely a human construct, which what foucault was pointing to is some form of procedure.101 even though cooper wears a badge, there is a constant struggle between the 1994). simply authority backed by a legitimating force.76 popular justice for those who could not turn to the law (the territory has only justice . . . operates on the basis of an infinite "idea of justice," infinite because other-institutionalized) brand of justice whereby matters are taken into the in american cinema 47. high noon (stanley kramer productions 1952). law and justice in such a way as to see if law and legal institutions help or for evaluating the 1968 film hang `em high.33 critique i have outlined above is most often found in artifacts that deal with the the script has not been written. but let's roll film, and "print the legend."120 52. critiques of the western liberal conception of law are still seen as marginal. the frontier, however, is quite different as ranse would soon find out. these particular themes have found their way into all manner of cultural to seek his revenge and confronts him with the issue of institutional justice. the persona of an agent of the establishment in order to give him the room to justice in the courts, ranse and characters like him in many westerns must seek 3. for an excellent discussion of the mythic nature of justice, see caputo, supra note 1, at 189-92. above can be explicitly read this way. ranse is hamstrung by his reliance on it is irreducible, irreducible because owed to the other, owed to the other, my gratitude to taunya banks, bennett capers, rebecca johnson, and orit kamir for their contributions to the trans., 1972); emmanuel levinas, proper names (michael b. smith trans., 1996); robert bernasconi, the theory, then, is the attempt to universalize principles about the application of in western films, wherein the notion that we achieve justice through law seems adoption of this model would surely illuminate the bias and interests that have recent scholarship suggests that the relationship between the domains of law even goes so far as to suggest that people like ranse do not belong on the his notion of justice is tacitly platonic ("ideal form") or kantian ("regulative ideal") in nature. see douglas to be as far as we can take the analogy. 36. this is the idea expressed by the judge (pat hingle) in hang `em high when he says, "justice is my 32. michel foucault, on popular justice: a discussion with maoists, in power/knowledge: agents of justice here. cooper's only interest is to find and punish the men who lynched him. dilemma of the film (and of this article): if the law is not able to bring about presumption that social and political institutions are incapable of attaining any ability of legal institutions to effect justice on the frontier than in the heart of thepunisher.com/past_news/december_2007/justiceviewedthroughtheeyesofcomicbookvigilantes.doc (last ghost, by the aporia of undecidability." caputo, supra note 1, at 196. largely clutch at the presumption that what the law defines as just is in fact 95. see id.; see also norrie, supra note 31, at 37-38 (discussing foucault's position on popular justice). work from which to draw.17 necessary connection between law and justice, maintaining that the former is would it would be impossible, under derrida's formulation, to universalize this in a hindrance to the attainment of justice.59 that is to say, if we give room for popular justice to be brought about by legal indeed, doniphan 8. see touch of evil (universal international pictures 1958) as a representative sample. indeed, the ideal of justice has taken on an almost mythic quality in to be sure, but he can only do so by assuming the mantle of authority. he must 5. for an excellent discussion of the preoccupation filmmakers have historically had with this question, thanks also to my friend jack sammons for his continuing inspiration. finally, thanks go to dean daisy hurst in his essay force of law: outside the law in order to bring about justice. this seems to dissolve the traditional dichotomy between the