law
The definition of “law” in the Oxford English Dictionary is “a rule of conduct imposed by authority” or “the body of rules…which a particular state or community recognizes as binding on its members.” [1] This definition implies two parties: the “authority,” or “particular state or community,” and those to whom the authority’s rules are applied, or “its members.” Between these two parties, the law operates as a medium for behavioral instruction, a channel through which a governing body grants rights and liberties and shapes conduct and relationships (“mother-in-law”). In the concrete sphere of political sovereignty in this country, the federal government and its state and local subsidiaries operate as the “authority.” The United States Code, a “codification of the general and permanent laws of the United States,” is a public document by which the federal government defines and prohibits certain actions, delegating authority to subsidiary state and local codes. While this code is, proper to the above definition, “a body of rules,” it may be helpful to examine how its most basic unit functions, in other words to examine a law; for instance, the prohibition of homicide. Title 18, Part I, Chapter 51 of the United States Code defines murder in the first and second degrees and states that “Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life” and that “Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.” [2] This law contains the behavioral instruction that the act of homicide by any member of this society is prohibited and will result in the perpetrator’s death or incarceration. Even for the simple rule that a vehicle stop at a stop sign, there is a public written code, a law, that mediates the state authority’s instruction. [3] As these vast codified systems demonstrate, the medium that is most primary to the law is writing, the written word. Friedrich Kittler situates the origin of the “writing monopoly” with the origin of the law: “Exodus, chapter 20, contains a copy of what Yahweh’s own finger originally had written on two stone tablets: the law.” [4]
But the law as medium does not end with the written word, the “letter of the law”; it needs, as the above prohibition of homicide demonstrates with the threat of incarceration or death, the promise of enforcement. The Oxford English Dictionary follows its first definition with a second, where law is “viewed, with more or less of personification, as an agent uttering or enforcing the rules of which it consists.” [5] This second definition casts for example the policeman as a medium, as the literal embodiment of the law as medium. It also highlights that the law functions as a written medium but also as one that is enacted or performed (“uttering”) by its representatives.
The concept of the law’s physical representatives leads collectively to that of its institutional representations, the institutions that shape and execute it, such as courts of law and legislative bodies. How do courts of law and legislative bodies relate to the law as media? Along the lines of the OED’s personified definition of law, the legal institution like the legislative body functions as a medium when it “passes” a law (the law goes through the medium of the legislature), gives shape or interpretation to or administers the legal letter of the law. In the sense that legal institutions provide the physical arena in which the law is played out, they, too, embody the law (expressions that refer to the operation of legal justice as “the long arm of the law” or the “heavy hand of the law” manifest this conceptual embodiment.) One of the most important qualities of the law as a medium, in written form and in its embodiment in individuals and institutions, is its deliberate transparency. It may be helpful to locate this transparency as the polar opposite of Theodor Adorno’s definition of the phantasmagoric as any form or process that conceals or mystifies its actual production or creation. [6] The law as a medium operates in such a way that it reveals or displays its creation and operation: Inner arrangements to make legal systems principled, i.e. based on fair and consistent rules, are also directly designed to demonstrate their principled character. We have defined the court of law as a medium for the administration of legal principles and as an embodiment of the law. The court’s interest in communicating its regularity, predictability and fairness requires that all courtroom proceedings be a matter of public record. Documents like the United States Code must be public and publicly accessible, since it is to the public that their rules are intended to be delivered. Indeed, federal, state and local governments have in recent years taken steps to put these vast codifications on the internet in the form of publicly accessible and searchable databases.[7] The salaries of public officials are public knowledge; just as anyone can request courtroom transcripts, legislative proceedings at many levels of government are transcribed and open to public scrutiny.
The issue of the transparency of legal proceedings leads, especially in our system, to the separate but nevertheless important aspect of the theatricality of the courtroom. A special feature of the Anglo-American jury trial system, which is in one sense a democratic legitimating body, is that it lends itself to dramatization: The jury sits to be publicly informed and convinced, forming a an audience for the facts of the case to be acted out before them. The genre of the “courtroom drama,” from To Kill a Mockingbird to “Law and Order,” amplifies the notion of court as theater. (Separately, the legal principle of public open preceedings literally feeds the entertainment and news media, from the serialized telecast of the OJ Simpson trial to images of orange-suited prisoners awaiting trial verdicts on the nightly news.) The inherent theatricality of the Anglo-American jury trial system surpasses but draws attention to the law’s need to stage its authority.
The execution of Saddam Hussein on December 30, 2006 provides an example of an authority’s attempt to stage an execution as lawful. A key point is that the Iraqi government demonstrated its concern for the representation of the event by creating and releasing an official video of the execution. The performance of the execution, which included the ritual aspects of the hooded executioners and the assembled audience at “Camp Justice,” an American base in Kazimain, were intended to shore up the appearance of authority. However, the execution has found itself at the center of a great deal of criticism, deriving in part from the circulation of a camera-phone video that, unlike the official video, includes the audio recording of cursing and jeers exchanged between the executed and his executioners and audience. [8] This “media event” reveals the law’s dependence on the media (video recording, television, the internet) to represent it and the simultaneous danger that such media present when the authority is not able to control them.
Law Regulates the Media
The law as a body of rules attempts to regulate media: A distinction should be made between attempts to regulate content (issues of free speech/censorship) and attempts to regulate the media themselves (media ownership and control.) In the case of the former, The constitutional First Amendment right to free speech has consistently found itself at the center of debate. The government maintains the right to censor media content when that content, be it in any form from speech to newspaper article to film, might harm national security interests, disturb public order, or encroach on other individuals’ rights. However, a central issue in the law’s censorship of media content is censorship on moral grounds. In 1952, for example, the film The Miracle was deemed sacrilegious and banned from exhibition by the New York Board of Regents. Its distributors appealed the prohibition. The case went to the Supreme Court, who ruled that “it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures.” [9] This citation, from Justice Clark, specifically indicates that it is the issue of content that is at stake, and not the form or media that carry that content (“whether they appear in publications, speeches…”)
The law’s regulation of media themselves, and not their content, falls under the separate issue of media ownership and the regulation of media conglomerates. In Marshall McLuhan’s conception of media as extensions of the body, the regulation and ownership of media have essential consequences for the individual’s autonomy: “Once we have surrendered our senses and nervous systems to the private manipulation of those who would try to benefit from taking a lease on our eyes and ears and nerves, we don’t really have any rights left.” [10] McLuhan’s warning might apply to the government’s regulation of, for example, the corporate conglomerates like AOLTimeWarner that control not just content but actual satellites, cable, and other distribution mechanisms, i.e. the media themselves. When McLuhan says that “Something like this [private leasing] has already happened with outer space,” we can point to, for example, the government’s ownership and commercial licensing of the airwaves. Because airwaves (broadcast [link] frequencies) are in short supply (there is a fixed quantity) the government owns and then licenses them. A person wishing to broadcast has to negotiate the vast regulatory field of the FCC and meet certain standards of public benefit as defined by law.
Changing media are in constant tension with the law’s regulatory ability. For example, digital media and the internet have allowed for the cheap, fast and easy proliferation of text, sound, and images such that the entertainment and publishing industries find themselves in a “crisis in copyright.” [11] This crisis, as a 2001 Harvard Law Review article on copyright law and the publishing industry points out, is paradoxical: The Constitutional purpose of copyright (to “promote the Progress of Science and useful Arts’”[12]) in theory should support this burgeoning culture of production and distribution of creative work. But over time, the Constitutional definition of copyright came to protect publishers rather than writers because in a pre-digital era, the publisher, who owned the only mechanisms of printing and distribution, was the only direct source for written work, and took the risks associated with publication. Now that written work can be far more easily and democratically published and distributed (e.g. self-published on the internet) copyright law finds itself, in the eyes of many, unjustifiably weighted toward protecting publishing corporations. In other words, the law finds itself constantly having to readdress its regulation of media in the face of technical innovation.
But if the above example shows the law outmoded by technical innovation in media, it is important to recognize that changing media have been integral to the formulation of key concepts in the law. Congress passed the Privacy Act in 1974 partially in response to Richard Nixon’s abuse of confidential IRS information (“systems of records,” that is, computerized databases) and surveillance audio and video to intimidate political enemies. But to cite an even more foundational example, the earliest conceptions of the right to privacy were shaped in large part by technological innovation and market expansion in the newspaper and photography industries, and by the proliferation of cameras in the hands of amateur photographers. The foundational 1890 essay “Right to Privacy” by Samuel Warren and Louis Brandeis formalized a motion to expand the concept of the protection of privacy from the protection of property, character and reputation to cover the protection of “thoughts, sentiments and emotions.” [13] This expanded concept of the individual’s legal right to privacy responded directly to a new violability of personhood, specifically by “previously unimagined intrusions made possible by the newly invented Kodak, and similar cameras.” [14]
Julia Langbein
Winter 2007