<br><h3> Chapter One </h3> <b>Trust Us Justice</b> <i>24</i>, Popular Culture, and the Law <i>Desmond Manderson</i> <p> <p> "Popular Culture" and Legal Pluralism in Modernity <p> "Popular culture," which finds its way into the title of this essay and this collection, is not a phenomenon of late modernity. There is a tendency in contemporary scholarship to imagine otherwise, and so to fuse two distinct phenomena: the style or reach of certain kinds of cultural production, and its technological form. Those who have written so productively on these questions in the field of law in recent years have sometimes treated television, the Internet, and films (in particular) as constitutive of the relationship between law or lawyers and popular culture, as if there could be no such relationship without it. It is quite legitimate to observe the contemporary conjunction of hi-tech and low-brow. But this observation might lead us to ignore the underlying contours of a very long-lasting relationship. For as long as there has been law (and there has always been law), and for as long as there has been popular culture (and there has always been popular culture), there has been a relationship between them. <p> Indeed, the very notion of popular culture is by no means unproblematic. What is sometimes called "mass culture" has been treated as both the site of resistance to capitalist and ruling-class ideologies, and as the form in which those ideologies have found their most perfect expression. In more recent work, the distinction between "elite" and "popular" culture, or between "mass" and other productions, has been called into question. In the modern world it is surely no longer easy to say exactly what distinguishes popular culture and why. Yet the fluidity of the term and the difference in these two responses to it—one, broadly speaking, hostile to popular culture and the other, equally broadly, sympathetic to it—Trust have led to quite dissimilar approaches to the phenomenon built around two distinct dimensions: one the nature and the range of the appeal of certain kinds of representations and narratives, and the other its mode of production and reproduction. What is unusual about late modernity is neither the power of popular culture nor its ubiquity. It is rather that at least to some extent the relationship between these two dimensions, one about content and one about form, has significantly altered. <p> Historically, "popular" or "mass" culture, whether understood in terms of reach, genre, or class, has adopted traditional forms (folk music, oral histories, pagan rites and festivals) to preserve ancient customs <i>against</i> new technologies (writing, for example, or sovereignty, or positivism, or Christianity) that were seen as realizing or entrenching changes in the balance of social power. On this reading, popular culture has historically been reactionary in both form and ideology. The work of E. P. Thompson is a crucial point of departure for this argument. In his classic work on "the moral economy," Thompson posits that while the European merchant and ruling classes eagerly adopted the ideology and techniques of the market economy, the consequence for many local communities was a period of extraordinary social dislocation. The highland clearances and the Irish famine are two catastrophes that spring to mind. Accordingly, the culture of the poor maintained a strong tradition of resistance to the developing ideology of modernity. Thompson argues that in times of shortage, for example, local communities fell back on the ancient idea of a "moral economy," with its roots in Thomas Aquinas, according to which sellers were required to provide staples such as flour or corn at a just price rather than a market price. Thompson does a remarkable job of resuscitating the role this hidden principle played in popular disturbances well into the nineteenth century. He demonstrates that what had been often characterized by historians and commentators as a riot or affray was in fact the conscious appeal to ancient customs representing ideas about economic justice that still circulated in and through popular culture. The culture of the underclass emerges here as a powerful conservative force with its own concepts of law and justice, its own practices, and its own memories. Yet in conformity with modernity's central conceit about itself—as new, rational, and parthogenetic5—these practices were resolutely forgotten and the logic underlying crowd behavior portrayed as nothing but an irrational and spontaneous outburst of violence. <p> Thompson takes into many fields his analysis of the conception of law in local and largely disenfranchised communities. <i>Customs in Common: Studies in Traditional Popular Culture</i> brings together a range of examples that retrieve from social and scholarly oblivion the forms and practices of early modern communities. Two aspects of this project are worth drawing attention to here. In the first place, Thompson sought to recuperate these customs within the context of a coherent normative order. In another well-known essay Thompson describes the practice of "rough music" whereby members of a village who had breached local standards (typically pertaining to sexual behavior) were subjected to humiliating and noisy demonstrations by masked participants using kitchen, household, and farm implements. Rough music was highly effective in casting out offenders from their communities. <p> Such practices—the manifestations of a "popular" culture in terms of both their extent and their social origin, and distinctly reactionary in flavor—were not of course limited to England. They found their counterparts in the French <i>charivari</i>, in U.S. <i>shivarees</i>, and in many related techniques involving the enforcement of local and traditional legal norms: lynching, shunning, tarring and feathering, and riding out of town on a rail. The fraudsters in <i>Huckleberry Finn</i>, you may recall, were victims of such a fate. <p> [And] here comes a raging rush of people with torches, and an awful whooping and yelling, and banging tin pans and blowing horns; and we jumped to one side to let them go by; and as they went by I see they had the king and the duke astraddle of a rail—that is, I knowed it <i>was</i> the king and the duke, though they was all over tar and feathers, and didn't look like nothing in the world that was human—just looked like a couple of monstrous big soldier-plumes. <p> Well, it made me sick to see it; and I was sorry for them poor pitiful rascals, it seemed like I couldn't ever feel any hardness against them any more in the world. It was a dreadful thing to see. Human beings <i>can</i> be awful cruel to one another. <p> <p> Thompson thus shows us, in many contexts, that what is categorized as random "noise" from the perspective of modernity held a meaning at the time replete with normative significance. "Popular culture" is refigured as the repository of prior norms that continue to be enforced, albeit informally and using very different forms and aesthetics. Thompson shows us that the "chaos" which modernity reads back into the past and against which it categorically distinguishes itself, has its own underlying structure, legal logic and legal history. Clearly, the argument for what popular culture contributes to our understanding is not then best understood as in any way a <i>representation</i> of or parasitic upon formal systems of law. It is a <i>source</i> of law, a record and memory of subterranean practices that have not lost their power to constitute legal actions and ideas. In fact, rather than speak of popular culture's depiction of formal law we would be far better justified in speaking of it as a site of resistance to it, as the effort to preserve or to resuscitate an alternative <i>nomos</i>. <p> Thompson's approach must be understood through the lens of legal pluralism. The defining feature of legal pluralism is its insistence that the state does not have a monopoly on the development and application of legality. Law is not essentially territorial and monopolistic in character. Instead, multiple legal orders coexist as complex relations of force and discourse. 9 Thus to take one example, Boaventura de Sousa Santos famously compares law to a "map." Like all maps, legal orders distort reality so as to emphasize certain relationships, to encourage certain functions or behaviors, by turns to facilitate and to inhibit. Many different maps coexist over the same territory, highlighting different functions, relationships, or behaviors; so too many different legal orders coexist, using different vocabularies and resources to accomplish different ends. This bottom-up theory of the production, understanding, and enforcement of law is central to Thompson's theory. Above all, as against modernity's myth of the past and the primitive as fundamentally static, pluralism insists on the dynamism of a "living law" constantly responsive to social practices and circumstances. Popular culture's law in Thompson and Santos is not filled with embalming fluid; it courses with the blood of life. <p> Secondly, Thompson sought to demonstrate that the legal resources of popular culture did not merely <i>vanish</i> with the emergence of new hegemonies and structures in modern Europe. Again, that assumption is the foreshortening effect of modernity's amnesia. The normative orders represented, for example, by the moral and market economies, were synchronous not diachronous. That too is a central insight of legal pluralist scholarship. This scholarship gained its initial impetus when it began to notice the endurance of indigenous legal orders after they had allegedly been superseded by colonial powers—a transition which was ideologically total but in practice highly variable. More recently, legal pluralists have applied this sensitivity to the synchrony of overlapping legal orders within metropolitan societies no less than in colonial and postcolonial legal systems. They have explored the endurance of local, religious, ethnic, domestic, institutional, and associative normative structures as well as the emergence of international, globalized, or multinational legal orders. Popular culture maintains in circulation earlier modes of thinking about and engaging with law. It is an echo, a counterpoint, a trace. <p> Yet this is where the changing relationship between the two dimensions of the study of "popular culture," its form and its substance, becomes most evident. In relation to the first dimension, mass culture now has a link to innovation, particularly technological innovation, in stark contrast to the exclusivity of earlier technological developments. The book was once a rare commodity and literacy a feature of elites. The organ was an astonishing technical achievement but of exceptionally limited access. In pre-and early modern Europe, the technical simplicity of popular culture was a necessary component of its social accessibility—troubadours and mummers wandered and played, folk songs and nursery rhymes circulated informally. In the twentieth and twenty-first centuries, the technical complexity of popular culture—films, television, and music recording—is equally a necessary component of <i>its</i> accessibility. <p> Yet these two accessibilities are not the same: the former makes production accessible; the latter makes consumption accessible. The forms, aesthetic languages, and institutional relationships distinctive of the relationship between technology and modernity clearly influence the messages they convey to their audiences, and indeed are constitutive of the audiences they define. As Walter Ong argues in his pathbreaking <i>Orality and Literacy: The Technologizing of the World</i>, oral practices, to take only the simplest of examples, are fluid and participant in ways that literate practices tend not to be. Technology in modernity reflects its myths—it communicates a relentless newness; where it does not discard the past entirely, it transcribes it (as, for example, in relation to folk music or in documentaries about indigenous societies) and thereby freezes it in time. We observe the products of high technologies such as films and television, we admire their skill, and we worship their spectacle—that is what is made instantly and multiply accessible to us. Modern technology has turned culture into a commodity, and exchanged media to which performers had easy access for media to which consumers have easy access. The commodification of culture places it at a remove from us, participation is replaced by observation, and a dynamic tradition replaced by the fetish of authenticity. In short, the power of modern technology is the power of modern positivism: to reify its objects and to pacify its subjects. <p> It seems to me that along the second or substantive dimension of popular culture, there is an ideological continuity with past forms at odds with this technological shift. So the "newness" of hi-tech is not responsible for the invention of popular culture's relationship to law; it creates instead a distinct tension between new forms and traditional contents, or between new genres and the traditional ideologies they spout. In ever-diversified technological media, popular culture continues to preserve and articulate earlier modes of thinking about and engaging with law. Popular culture continues to operate not as the representation of formal law but as a site of resistance to it. It continues to be the memory and echo of a half-forgotten past, a counterpoint, a trace. Popular culture is law's moral economy—its rough music—its carnival—and sometimes, to be sure, its lynch mob. <p> As always, the pluralist and synchronous features of law ensure that this counter-tradition is not merely experienced as nostalgia or as memory. Popular culture engages in the constitution of both formal and informal understandings of law. In a classic essay, Hendrik Hartog demonstrated that a court decision that banned pigs from New York in 1819 was nothing like the end of the story, positivism's assumptions as to the hierarchical and monological nature of law notwithstanding. Rather, it contributed to an ongoing narrative about the character of New York City that continued for twenty years or more, and in which the decision of the court was merely one aspect of an ongoing rebalancing of forces. From a pluralist standpoint, popular culture's ability to echo and to express alternative visions of legality is not anachronistic: it continues to contribute to legal ideology and to legal change. <p> <i>(Continues...)</i> <p> <!-- copyright notice --> <br></pre> <blockquote><hr noshade size='1'><font size='-2'> Excerpted from <b>Imagining Legality</b> Copyright © 2011 by The University of Alabama Press. Excerpted by permission of THE UNIVERSITY OF ALABAMA PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.<br>Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.