Introduction: The Development of Law and Television

This chapter describes the burgeoning research area of law and television. I deliberately call law and television a research ‘area’ rather than a ‘field’ because it is not clear whether law and television is a field in its own right. More aptly, it is part of law and popular culture, which is a known, defined, interdisciplinary field. Popular culture refers to popular products manufactured for popular consumption: those forms of culture that are well liked by many people, are widely shared and are often used in everyday life. Popular culture includes TV shows, but it also includes films, novels, music and video games. When we think about television, we see that it changes over time, has a commercial nature, is class-, gender- and age-coded, varies in importance and popularity to different people in different regions and can be a source of escapism or fun. Any particular television show, whether watched on network television or streamed from a subscription service on a personal device, can have more than one meaning. The larger field of law and popular culture studies the nexus between popular products and law and argues that law can be understood as popular culture and popular culture as law. It is an interdisciplinary relationship where popular culture and law continuously meet and renegotiate one another. Law and television, as an area under the umbrella of law and popular culture, studies the relationship of law as culture and culture as law as manifested in the specific area of television.

In the early days of law and popular culture the term ‘popular’ was used to distinguish between ‘categories’ of culture. In the 1980s, popular culture was often defined in contrast to other types of culture, such as high or national culture. A number of scholars played an important part in the development of law and popular culture. In 1986 Anthony Chase noted the failure of legal scholars to recognise and embrace the images of law and lawyers in popular culture as legitimate subjects of scholarly study. Stewart Macaulay gave a noteworthy presidential address on ‘Images of Law in Everyday Life’ at the 1986 Law and Society Association conference a nd Lawrence Friedman wrote an influential article in the 1989 Yale Law Journal.

Introduction: Legal Archaeology – Methodology or Metaphor?

This chapter explores the intersection of the disciplines of law and archaeology, through the lens of the methodology of legal archaeology. Law and archaeology both involve physical and intellectual activity, and connections between law and archaeology can arise in different ways. Archaeologists need to follow law and regulations for managing archaeological sites, including how they carry out excavations and in relation to what they find. For example, there are laws which regulate the finding of artefacts classed as treasure, certain historical sites are protected by the law and a licence is needed for the excavation of human remains. Materials or objects excavated during an archaeological dig might give insights about the law at a particular time or tell us something about historical relationships between people and the law. Much like other ‘law and’ movements, there are different ways in which we could depict the various interactions between law and archaeology. We might examine ‘law as archaeology’, whereby law is analysed using what would usually be an archaeological approach, or ‘archaeology as law’, where archaeological research is conducted according to approaches that are more familiar to law researchers. We can also consider ‘law of archaeology’, exploring how archaeology is subject to legal regulation, or ‘law in archaeology’, investigating what an archaeological finding can tell us about law, or perhaps ‘archaeology of law’, which could involve analysis of law inspired by archaeological techniques.

This chapter is not concerned with all the possible ways in which the disciplines of law and archaeology interact but is primarily focused on exploring the methodology of legal archaeology, to consider whether we can learn more about its scope by looking to the discipline of archaeology itself, rather than simply using archaeology-related terminology as a metaphor. Thus, the aim of this chapter is to outline the current understandings of legal archaeology alongside an examination of aspects of what archaeologists do, in order to highlight the extent to which the discipline of archaeology has synergies with legal archaeology. The purpose of this analysis is to enable us to consider the use of the archaeology language within this approach and help us to realise legal archaeology as an established and recognisable socio-legal methodology, rather than simply as a metaphor or as something that is absorbed into the canon of legal history.

Introduction: Intersections of Comics and Law

This chapter examines the development of law, comics and graphic justice as a distinct area of scholarly activity within the context of law and humanities study. The core focus of this chapter’s discussion is the Anglo-American conception of law and comics studies, particularly that situated within the UK, North America and Australia. In these areas socio-legal studies, and law and humanities scholarship incorporating comics study has firmly established itself since the 1990s. This is not to ignore the existence of other, wider forms of comics studies which consider law and graphic justice, and, indeed, even within this chapter’s discussion it is worth noting that law and comics and particularly ‘graphic justice’ scholars examine Japanese popular culture and manga comics. However, this chapter’s focus is on the Anglo-American and Global North field of law, comics and graphic justice study rather than a specific analysis of the texts and mechanisms contained within the discipline’s academic focus and in Anglo-American and Global North comics production.

Before exploring the development and nature of the law, comics and graphic justice field, some brief discussion of the nature of academic study of comics is necessary for context. The terms ‘comics’ and ‘graphic novels’ are sometimes used interchangeably and for the purpose of this chapter’s discussion the distinction between a weekly or serialised comic and a standalone graphic novel or graphic novel series is largely irrelevant. Undoubtedly there are differences between the two, particularly in those instances where a graphic novel represents a standalone story or collected narrative specifically constructed for the graphic novel medium as opposed to a long-running comic series such as the X-Men, which explores more diverse narratives and a series of narratives over a longer period. In the latter case, issues may be collected together as a trade paperback or collection, which arguably is almost indistinguishable from a graphic novel. In this sense, comics can be either short or several hundred pages long and there is considerable variation in what is accepted as a comic or graphic novel. However, for the purpose of this chapter’s discussion, the medium of comics and field of comics study is the core focus of the academic inquiry, that of visual storytelling usually based within the sequential art-based comic book form.

Introduction: The Paradox of Law and History

Paradoxically, history is both everywhere and nowhere in legal education. On the one hand, history is ubiquitous in law schools: most lectures and textbook chapters explore how a case law has evolved over time and students are used to citing legal materials penned centuries ago. Yet, on the other hand, history is often missing in legal study: students are not interested in the time and context in which the cases occurred; they are solely concerned with their relevance in terms of their task of determining what the law is now so that they can critique the law within its own terms in an essay question, apply it to an idealised if often embellished factual scenario to answer a problem question or memorise it as if it was trivia for the purpose of succeeding at a multiple choice test. As the legal historian Frederic William Maitland put it in his 1888 inaugural lecture at Cambridge, ‘what the lawyer wants is authority and the newer the better; what the historian wants is evidence and older the better’.

This paradox has affected the development of law and history as a subject of study. On the one hand, there is a magnitude of research that explores the development of law over time, often with an eye on the social, political and cultural contexts. Yet, on the other hand, the number of academics who identify primarily as experts in this field, as legal historians, is much smaller. There is, of course, significant variation from jurisdiction to jurisdiction. History seems to be taught more in civil law jurisdictions generally; within common law jurisdictions the development of legal history as a subject is more advanced in the United States. There are also differences within jurisdictions. In England and Wales (which will be the focus of this chapter), a great deal of work that could be seen as coming under the umbrella of law and history has and is completed outside of law schools. History departments formerly led the way in terms of constitutional history, and more recently their attention has shifted to social history, which includes a significant focus on legal matters.

Introduction: Studying the Legal in Legal Geography

Legal geography explores the interconnections between law and space, a field of study that relates law to context, while simultaneously revealing geography’s legal footprints. The rich interconnections between law and space, and the diverse ways that each co-inform and co-constitute the other are legal geography’s ‘core objects of inquiry’. In this chapter, we observe how this area of scholarship has evolved over nearly three decades, beginning in the mid-1990s, a generational confluence of law and geography that is neither a ‘sub-discipline of human geography nor […] an area of specialized legal scholarship’ but rather (or, at least) ‘a truly interdisciplinary intellectual project’.

As a discrete ‘intellectual project’, legal geography features several defining characteristics. Core to its mission is to emplace law and to bring law to landscape. Legal geography likewise takes a broad sweep of form: from grand theory to the ‘small’; from global observations of space, time and law to (sometimes very local) place-based case studies; and from explicit disciplinary articulation to an implied nuanced analysis. In the latter case, legal geography can play a significant, albeit often unacknowledged role in informing the scholarship.

Writing in 1994, the foundational legal geographer Nicholas Blomley quoted Lawrence Friedman and David Harvey, who each in turn (yet separately) recognised the limitations of their own disciplines. Friedman argued ‘law […] is too important to be left to lawyers’, while Harvey mirrored this sentiment word for word, noting that ‘geography is too important to be left to geographers’. Each gave voice to a gap that these two complementary disciplines had left lying on the field, a ‘hidden to plain sight’ lacuna of spatial relations where law fails to acknowledge the world it inhabits, and geographers ignore or undervalue how ‘social spaces, lived places, and landscapes are inscribed with legal significance’.

In writing this chapter, we acknowledge our own disciplinary perspective on legal geography. We are both lawyers, variously critical property and human rights theorists. In many ways, unlike the ‘progress report’ that David Delaney penned from 2015 to 2017, when he wrote across three sequential journal articles of legal geography’s evolution through a human geographer’s lens, our brief survey of the field is necessarily a legal interpretation. Rather than surmising what is the effect of law on geography, as Delaney ventures, we observe how geography has informed (and informs) the law.

Introduction

In 1901 in his Rede lecture the distinguished English legal historian Frederic William Maitland was pondering about how the common law had survived the Renaissance. Looking at the Year Books of Henry VII and Henry VIII, he remarked that these ‘ancient law reports are not a place in which we look for humanism or the spirit of the Renaissance: rather we look there for an amazingly continuous persistence and development of medieval doctrine’. Indeed, while Renaissance-era writers were generally contemptuous of anything medieval, Renaissance-era legal writers were not only continuing to use but were actually praising medieval texts. Maitland questioned:

Maitland’s argument was that the common law survived because it was taught, studied and perpetuated by the Inns of Court and those they trained. As Maitland commented it was ‘difficult to conceive of any system better suited to harden and toughen a traditional body of law than one which, while books were still uncommon, compelled every lawyer to take part in legal education and every distinguished lawyer to read public lectures’. Legal education served to fossilise the law, bestowing a sacred aura upon what would otherwise seem archaic. As he put it:

Law schools make tough law.

Over a hundred years after Maitland’s lecture and many hundreds of years after the Renaissance, the common law continues to thrive. Attributing this persistence to the continuing role of legal education provokes a ‘chicken and the egg’ controversy as to causation. Yet, the role of Law Schools in making and perpetuating ‘tough law’ is so fundamental that it is taken for granted. Though there are exceptions, legal education remains characterised by doctrinal legal studies. The first stage of legal education focuses on the learning of legal principles, with a focus on their application. Law students are trained to operate as jurists.

Prologue, ‘All the world’s a stage […]’

A figure steps onto a stage.

Silence falls as she looks into the audience. And then she begins to speak. The words are ornate and she delivers them like prophecy. A story unfurls: of broken dreams and bad decisions, of rights and wrongs. The speaker will be judged; lives will be changed.

This is a scene which lawyer and thespian alike have played a thousand times or more. Indeed, the resemblances between law and theatre often start here: with a single orator skillfully putting their case before an audience. Like an actor, a lawyer must interpret a central text and use it to tell a convincing story.

In each discipline, language is king. Without language, how would we articulate our individual and collective rights? How would we codify norms and behaviours? In literature, the power of language predates the written word: long before we could write, we could recite. We would gather around a fire to recount tales we’d heard a thousand times, and fashion new ones besides. Language is primal: it takes us back to who we were before.

But even the finest words can fall flat. Law and theatre require an orator: more than that, they require a conjuror who can bring the words to life. This is the intervention which separates theatre from literature: a live, transforming presence. A performance. There is a magic to this space: things emerge from it differently to how they entered. Things may happen twice but they do not happen the same. It’s not a paradox: it’s show business.

Enough of the abstract, for now. We will return to it in due course. Instead, let’s go back to the beginning.

Act One, ‘And all the men and women merely players’

Theatre’s purpose, says Hamlet, is ‘to hold […] the mirror up to nature’.

It can also show the law its true face. That, at least, seems to be a central tenet of law and theatre, which reframes legal actors as stage players and doctrinal issues as dramatic devices: the case its plot, the courtroom its stage. Law and legal matters have formed the two hour’s traffic of many a stage, from Oedipus Rex to Othello and beyond. The courtroom itself is a theatrical space, in which costumed lawyers wear wigs and billowing robes, take their assigned places and address an ‘audience’ of jurors.

Introduction: The Shaping of Law and Literature

The purpose of this chapter is to introduce the study of ‘law and literature’, what it is and what it does. The first part will survey the critical landscape, revisiting the evolution and the associated ‘strategies’ of literary jurisprudence. The second part will then provide an illustrative case study. On this occasion we will indulge a little sorcery.

The interdisciplinary relation of law and literature is hardly new. The merest glance at the writings of Sophocles and Shakespeare confirms this much. The respective fates of Antigone and Shylock have lost none of their resonance down the centuries. The study of ‘law and literature’ as an academic enterprise has, however, assumed a renewed energy over the last couple of generations. Literary jurists commonly date this evolu-tion to the pioneering work of James Boyd White in the 1970s and 1980s, which urged the appreciation that law expresses itself textually, and must therefore be read critically. The better lawyer knows ‘what reading means’. A conclusion famously shared by Stanley Fish, who supposes that the ‘practice’ of reading legal and literary texts should be the same, as both take ‘narrative’ form. Put simply, at its root, reading Milton’s Paradise Lost is no different from reading Donoghue v Stevenson or R (Miller) v the Prime Minister. It is only context that makes the experience feel different.

Here we might contemplate an original, essentially functional, distinction in ‘law and literature’ scholarship: between law as literature, and law in literature. Law as literature invites the lawyer to become a literary critic, to embrace the attendant challenges of textual indeterminacy. Law no longer becomes a matter of truth-seeking but of fashioning impressions. As Richard Rorty famously put it, the ‘strong poet’ is the hero of democracy, interpretive ‘contingency’ its resistance. In practical terms, this means that the literary jurist must also appreciate the skills of the literary critic, hermeneutics, post-structuralism, historical materialism, deconstruction, reader-response theory and so on. Appreciation does not demand approval. But it does require an acceptance that there are different ways of reading everything – albeit the same different ways, for lawyers and everyone else. A conclusion that sits more comfortably with the student of literature, perhaps, than it does the student of law.

And a good point at which to acknowledge a defining characteristic of ‘law and literature’ scholarship, evident from its very inception.

Introduction

This chapter aims to position law and video games as an emerging and promising sub-field of law and humanities scholarship. Video games, sometimes referred to as ‘computer games’, ‘digital games’ or ‘electronic games’, have garnered an immense following, captivating billions of players worldwide and generating nearly $200 billion in revenue in 2022 alone. Despite the widespread popularity and significant market presence of video gaming, law and humanities scholarship has largely overlooked the exploration of video games as rich cultural artefacts with legal entanglements. Or perhaps, if there has been interest, the modal peculiarities of video games have acted as a deterrent for legal scholars to tackle them as a site of analysis.

Fortunately, within the field of game studies or ludology, the discipline that primarily studies video games, there has been a rapid evolution of literature examining video games as objects of analysis. This vibrant body of scholarship offers valuable insights and approaches that can greatly complement and inform emerging law and video games research. This interdisciplinary dialogue between fields holds the potential to shed light on the complex legal dimensions of video games and enrich our understanding of intricate interplay between the forms. Or as Greg Lastowka puts it simply, ‘those who study games and those who study law have things to learn from another’.

How to Play: A Video Game Tutorial

While it may seem trite to provide an explanation of the video game medium within this chapter, assuming familiarity may do a disservice to potential entrants into the field who haven’t yet had much exposure to the wonderful world of video games or may not have directly experienced their components for themselves. Unlike literature, art, music and film, video games occupy a somewhat niche space due to their historical reliance special-ised hardware – such as a console or gaming PCs – for play. However, with the advent of smartphones, video games have become increasingly accessible to a wider audience.

Video games resist simple definitions due to the fluidity of their constituent parts – they are multimodal combinations that may contain aspects of code, art, music, text, cinematic cut scenes, gameplay mechanics and narrative, which are combined to engage a person in play. Through these interactive experiences, players navigate virtual spaces, solve puzzles, combat enemies and manipulate avatars or in-game objects in pursuit of the game’s objectives.

Part I: On the Question of Canonicity

One question that dominated many of the papers and conversations that took place at the 25th anniversary of the Association for the Study of Law, Culture and Humanities (LCH) annual conference, hosted by the University of Toronto in Canada on 22–23 June 2023, was whether there is (or should be) a law and humanities canon? I spoke directly to this question on a panel with James Martel and Hyo Yoon Kang on the first morning of the conference. This question was picked up by many others during the two days, including past LCH president Susan Heinzelman in the plenary session entitled ‘LCH at 25: Looking Back, Thinking Forward’.

The question of canonicity as it relates to law and humanities scholarship is very relevant to this current collection of essays edited by Newman and Sandberg as it attempts to add to, or intervene into, the established law and humanities canon (if there is one), and thus must be interrogated for the message and power it holds in that regard. In my conference paper, which closely followed the argument set out in my published Commentary, I imagined law and humanities not as a ‘canon’ per se but as a ‘field without a canon’, or a canon that resists canonisation. I argued that arts and humanities–based practices utilised in legal research and teaching expose the law and humanities ‘canon’ to its dual (and somewhat contradictory) nature, as that which continually strains towards a pre-established archive, but must also leap ahead fearlessly to properly defy disciplinary boundaries and move the field beyond siloed thinking. This, to my mind, is one of the preliminary aims of law and humanities interdisciplinary scholarship and pedagogy. These practices consist not of a stable collection of set texts but instead signify a process of experimentation that is ever in flux and alive to possibility. It is this process of discovering new arts and humanities–based practices that ensures law and humanities remains a vibrant, yet ever-changing, field for years to come.

Canonisation, in its establishment of a field of intellectual thought that defines its parameters or the importance of certain texts and core issues at stake, invites community and consensus.

Introduction

This chapter looks at law and philosophy as it appears in the Law School. In contrast with some of the chapters in this volume, which consider emerging or prospective links between law and a humanities subject, law and philosophy are already closely bound together and have been a prominent part of the legal academy. They are bound by a shared interest in justice: probing relationships between state and citizen, unpicking the rules people are expected to live by and, centrally, exploring how to govern fairly. Concerns around justice are prominent philosophical concerns and play a central role in political philosophy, with justice central to debates in ethics as it looks at values, right and wrong action, obligations and rights. Within law, the field of legal philosophy takes its interest in what the law is and ought to be, which again brings justice concerns to the fore. Both political philosophy, which has tended to occur outside the Law School, and legal philosophy, from within, are typically brought together in the legal academy through the teaching of jurisprudence. Hence the connection between law and philosophy is firmly established with jurisprudence modules being common in Law Schools. And this impact of philosophy informs what is sometimes known as legal theory, which is the all-encompassing term for the approach that compliments and contrasts traditional black letter law.

Thus, legal theory derived at least in part from philosophy allows us to go beyond looking at the law in and of itself and ask bigger questions. As a teacher, for example, I use this theory to explore social justice, influenced by how such inquiry may explore the way law plays a role in structuring society to serve the ends of some, over others. For example, why do some people have their basic needs such as housing met while others do not? And what can be done to change things for the better? These questions can include asking how and why the law perpetuates certain structures of power. And thus, legal theorising can help us pursue issues of social justice – which can be such a powerful part of the legal academy and one of the topics that can most engage students. This gives us a means to explore the role that law plays in stratifying society along the lines of class, race and gender to name but a few prominent divisions.

Introduction

There has always been a mild obsession with lists of ‘best law/lawyer films’ as a starter for any work using film in the study of law which can be found from the turn of the century up until the time of writing. There are also Guides that exist to provide law teachers with material, as well as accounts of how the justice system operates in practice. In addition the role of ideology in film continues to be a theme. Interest comes, too, from slightly unexpected quarters. The impact of film generally as well as certain specific areas like race is also encountered as is writing on strongly related areas. Originally interest in the cinematic portrayal of law and lawyers tended to focus on the traditional American courtroom drama with specific attention on two classic films. First Sidney Lumet’s 1957 film Twelve Angry Men and second Robert Mulligans 1962 offering To Kill a Mockingbird. It also started with American legal academics who had an interest in film as a cultural phenomenon. The two films, noted above, were selected by the American Film Institute as the two finest courtroom dramas, which was defined as ‘a genre of film in which a system of justice plays a critical role in the film’s narrative’; two iconic actors, Henry Fonda and Gregory Peck, standing up against all odds to support the idea of ‘justice’. Both took up an unpopular stance demonstrating the importance of a fair trial against a backdrop of prejudice. The two films are powerful pieces of social drama with life-and-death decisions. However, Henry Fonda, as Davis Juror 8, in Twelve Angry Men, was not a lawyer but a member of the jury charged with determining the guilt or innocence of a young man accused of murder.