The Legal Nocturne
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The Legal Nocturne ∗ Cheyney Ryan “He found beyond him not God, who is the prohibition of crime, but a being who doesn’t know prohibition. Beyond what I am, I meet a being who makes me laugh because he is headless, who fills me with anguish because he is made of innocence and crime. He holds a weapon of steel in his left hand, flames like a sacred heart in his right hand. He unites in one eruption birth and death. He is not a man. But he isn’t a god, either. He is not I, but he is more I than I: his belly is the labyrinth in which he himself goes astray, led me astray, and in which I find myself being he, that is, a monster.”1 I. INTRODUCTION For the past few years I have been developing a general framework for thinking about the representation of law in American films. My thinking has been guided by three convictions: 1. The problem of law is central to the major genres of American film, sometimes in surprising ways. Put another way, the major genres of American film all deal with issues in which the status of law is a central concern. This distinguishes film from other forms of American popular culture such as the novel. And it means that problem of law provides a framework for approaching American cinema in general. The field of law and film is often regarded as an interesting way of raising questions about the legal world. This is certainly true. I am suggesting that law also provides a privileged standpoint for grasping the most fundamental concerns of American cinema as a medium. 2. The portrayal of law in American film is one of deep ambivalence toward the law. American film manifests a profound skepticism towards the law’s claims to be what it claims to be, to achieve what it claims to achieve, and so on. This skepticism is typically manifested in the privileged place that it accords to the legal “outsider.” The outsider’s angular relation to the legal realm poses fundamental questions about the ambivalent relation between law and the individual, law and morality, the legal and the illegal, and so on. 3. American film’s skepticism of law and its privileging of the legal ∗ Professor of Philosophy, Professor of Law, University of Oregon. I owe a great debt to Professor David Ritchie for our many valuable conversations on these issues over the years. 1. GEORGES BATAILLE, THE SACRED CONSPIRACY (1936). 870 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 outsider achieves its greatest expression in the genre of Film Noir. As such, Film Noir is both a commentary on the other major genres of film and the consummation of those genres, and of American film as a whole, insofar as the problem law is central to it. This may explain why the noir sensibility became the dominant one in the last decades of the twentieth century, as the age of classical American film drew to a close. These are big claims, too big for a single article–pperhaps for a single lifetime. They raise a host of methodological issues about the evidence that claims like this require. My assumption is that if such claims are plausible, they must draw their support from classics of the medium; hence, the pages that follow will appeal to films that are classics of their genres by anyone’s account. But my argument as a whole will be anecdotal to the extreme, though I hope not wildly idiosyncratic. It is, as I have said, the sketch of a larger project and not the completed project itself. I am interested in law and the movies but I am a political philosopher by profession, someone whose interest in film is prompted by an interest in what it says about the larger political culture. In this case, I am interested in what the ambivalence towards law in film expresses about American political culture’s ambivalence towards law generally. Sociologist Michael Mann has suggested that lawyers are the closest America has ever had to “organic intellectuals”; it is commonplace to observe that American political culture has generally evidenced a privileging of law over politics, especially in matters like property. Yet, as historians of American violence have shown, there has always been a “vigilante” strain in American life that people have always found both disturbing and attractive, a strain that does not eschew justice per se but doubts whether formal law is ever adequate to achieve it. Organic or not, it is questionable whether the activities of lawyers and judges and the like have ever been truly hegemonic in American politics. What does film teach political philosophers about the importance of this fact? I offer some reflections about this at the end of this article. II. TALES OF REGENERATION: COMEDIES AND WESTERNS I identify three major genres of American film: Romantic Comedy, the Western, and Film Noir. To call these the “major” genres is to say several things. It is to suggest, first of all, that they constitute the distinctive contribution of American film to film generally—or that they constitute the heart of that contribution. This is unquestionably true of the Western and Film Noir, though Film Noir exemplifies an American genre inordinately fashioned by transplanted Europeans. Romantic Comedy is less distinctively American than the Western, and perhaps also Film Noir. But there are themes, or thematic inflections, that are distinctive to the American Romantic Comedy, and we shall focus on these. For example, American Romantic Comedies 2009] THE LEGAL NOCTURNE 871 inordinately revolve around the capacity of love to transcend class dimensions—in ways that evoke the larger mythology of America as a classless society. To call these three the major genres is also to claim that the major achievements of American cinema, i.e., its classic movies, inordinately fall into one of these forms, and where they do not they are heavily influenced by these forms. These are the genres most commonly associated with the major American film artists, directors, and actors. It is hard to name a major American director, prior to the 1970s at least, who was not primarily associated with one of these genres; the greatest American directors, like Howard Hawks, achieved greatness by working in more than one. Film Noir’s relation to major American film artists is intriguing. It is without question one of America’s distinctive contributions to film generally, whose long-run influence has exceeded that of American Romantic Comedy. Yet, while many major directors worked in the genre, few of them had their greatest achievements in it (an exception might be Billy Wilder and Double Indemnity2, or Sunset Boulevard3), and while major actors worked in the genre, few of them found their greatest successes there. Major stars of the 1950s and 1960s (e.g., Kirk Douglas and Robert Mitchum) often started out in Film Noir but eventually moved to other things. (One of the few major actors to achieve his greatest success in the genre was my father, Robert Ryan; another was John Garfield whose career was cut short by McCarthyism.) Film Noir provided the most interesting roles for actresses in its heyday, but actresses that began in Film Noir did not go on to become major stars. Barbara Stanwyck, Gene Tierney, and Joan Crawford were already stars when they made their mark in Film Noir. Conversely, no major actress of the 1950s and 1960s began by making her mark in Film Noir. Marilyn Monroe, Grace Kelly, Audrey Hepburn, Doris Day, and others emerged from Romantic Comedy, or generally lighter fare like the comedy mysteries of Hitchcock. Chinatown4 was Faye Dunaway’s best performance, in a role that catered to her inherent reserve, if not coldness; Mommie Dearest5 destroyed her career because it convinced people there was something truly “wacko” underneath. I shall address the typical Film Noir plot below.6 But the achievement of Film Noir is, above all else, a triumph of sensibility. It is similar to the American musical in this regard, especially the musicals of the late 1940s and 1950s, i.e., the Film Noir years. The post-war musical was perhaps the purest expression of American optimism; its dominant star, Gene Kelly, embodied the 2. DOUBLE INDEMNITY (Paramount Pictures 1944). 3. SUNSET BOULEVARD (Paramount Pictures 1950). 4. CHINATOWN (Paramount Pictures 1974). 5. MOMMIE DEAREST (Paramount Pictures 1981). 6. I have discussed Film Noir in my essay, Across the Border-Again? (Reflections on Law in “A Touch of Evil”), in SCREENING JUSTICE-THE CINEMA OF LAW (Rennard Strickland, Teree Foster & Taunya Banks eds., Williams Hein & Co 2006). My discussion here builds on that essay. 872 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 muscular joy that saw no dark side in the American century, and saw no end to it either. Americans were in Paris because they were everywhere in the world, just “a-singin’ and a-dancin’.” Film Noir, its dark twin, was an ironic form, like satire. The ultimate triumph of Film Noir over the musical is evidenced in the fact that the latter only survives in noir form, like Chicago or, earlier, Cabaret.7 Its sensibility grated against the basic naiveté of major American film actors like John Wayne or Gary Cooper. James Stewart was exceptional in transitioning from the naïve to the ironic (or “sentimental” in Schiller’s sense). The ironic dimension also constrained the basic gung-ho spirit of major American film directors. However, by the 1970s, as Film Noir’s ironic sensibility became increasingly dominant, we saw the emergence of directors principally identified with that sensibility; perhaps the most notable is Martin Scorsese.