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. I suspect that identifying these as the three major genres will encounter two main objections. One is whether I am leaving something out; I doubt that anyone would challenge the status of these, only whether they are exhaustive. The most obvious additions would be the aforementioned musical and the war movie. The war movie would be a likely addition due to its commercial importance and the number of talented directors and actors that have worked in the genre. While numerous great movies have had war as a background theme (e.g., Casablanca8), it is hard to think of a truly great American movie that was a “war movie” proper. The closest tend to be British movies like Lawrence of Arabia9 or The Bridge on the River Kwai.10 (All Quiet on the Western Front11 might count as a great movie which is also a war movie.) Part of the problem may be that the American war film is very formulaic, it is perhaps the most formulaic of major genres; this may constrain its creative possibilities. A second objection might be to the whole idea of “major genres.” A notable fact about some truly great movies, like Citizen Kane12 or It’s a Wonderful Life13 is the difficulty of pigeonholing them into a specific genre. I think this is accurate, though I shall discuss later the Film Noir dimensions of It’s a Wonderful Life. This does not strike me as an objection to discussion of major genres per se, kept in its proper place—in this case, as a way of thinking about law and film. Citizen Kane’s true greatness is reflected in the fact that it does not fit easily into any of the major genres; but making this point and exploring its significance means agreeing on what those genres are. Romantic Comedy, the Western, and Film Noir: I am not just claiming that

7. Bob Fosse brought the noir sensibility to the stage musical and was connected with both films. 8. CASABLANCA (Warner Brothers Pictures 1942). 9. LAWRENCE OF ARABIA (Horizon Pictures 1962). 10. THE BRIDGE ON THE RIVER KWAI (Horizon Pictures 1957). 11. ALL QUIET ON THE WESTERN FRONT (Universal Pictures 1930). 12. CITIZEN KANE (Mercury Productions 1941). 13. IT’S A WONDERFUL LIFE (Liberty Films 1946).

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Film Noir belongs in this list. I will argue that it provides a commentary on the other two. The rest of this section provides some ways of thinking about those two and the representation of the law.

A. Romantic Comedy: The Flight to the Forest The discussion of Romantic Comedy has been decisively influenced by Stanley Cavell’s writings on what he terms the “comedies of remarriage.”14 One of Cavell’s contributions was drawing attention to Northrop Frye’s work on the “myth” of comedy, as a way of pursuing the parallels between aspects of this film genre and the Shakespearean Romantic Comedy. I draw on Cavell’s discussion in ways I have explored in a previous essay on the portrayal of the law in 1930s backstage musical comedies like Footlight Parade.15 Romantic Comedy emerges (and some say achieves its greatest expression) in the 1930s. Romantic Comedy is at its best when it is most serious, and this is when the issue of class is stressed. This concern with class is something that it shares with Film Noir and that distinguishes both of them from the Western. The stress on class is crucial to the achievement of City Lights,16 often cited as the greatest Romantic Comedy and Charlie Chaplin’s greatest film. It explains why It Happened One Night17 is the canonical expression of the genre in its talking form. Finally, it explains why the best Romantic Comedies of recent decades have been linked with historical moments when the class issue was on people’s minds, for one reason or another. I am thinking of Moonstruck18 and Pretty Woman,19 both products of the Reagan years. The class issue in Pretty Woman is too obvious to mention; I will say something about Moonstruck shortly. Romantic Comedy often links the issue of class to the phenomenon of consumerism. This distinguishes it from Film Noir, which has much to say about class but little about consumerism. It likens Romantic Comedy to the Western insofar as the threat of femininity in the Western is typically identified with the threat of consumerism and the “softness” it induces. American cinema emerged at the start of the twentieth century when society had become more urbanized, more corporate, and more consumer-oriented. America was no longer the frontier society it had been; more accurately, the frontier as a

14. STANLEY CAVELL, PURSUITS OF HAPPINESS: THE HOLLYWOOD COMEDY OF REMARRIAGE (Harvard Univ. Press) (1981) [hereinafter CAVELL, PURSUITS OF HAPPINESS]. 15. See Ryan, Lawyers as Lovers, infra note 29, at 1123; FOOTLIGHT PARADE (Warner Brothers Pictures 1933); see also CHRISTOPHER BEACH, CLASS, LANGUAGE, AND AMERICAN FILM COMEDY (Cambridge Univ. Press 2008); CLASSICAL HOLLYWOOD COMEDY (Henry Jenkins & Kristine Brunovaska Karnick eds., Routledge 1994); KATHRINA GLITRE, HOLLYWOOD ROMANTIC COMEDY: STATES OF THE UNION, 1934-65 (Palgrave 2006). 16. CITY LIGHTS (Charles Chaplin Productions 1931). 17. IT HAPPENED ONE NIGHT (Columbia Pictures 1934). 18. MOONSTRUCK (Metro-Goldwyn-Mayer 1987). 19. PRETTY WOMAN (Touchstone Pictures 1990).

874 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 physical reality could no longer function in American self-understanding as it once did. The American Western was one major response to this “closing of the frontier,” another was early Romantic Comedy. The films of Cecil B. DeMille, one of the dominant directors of the World War One years, reconfigured the journey from “tame civilization” to “wild frontier” as the journey from the Victorian domesticity of marriage to exotic forms of leisure/consumption, identified with loose women and quasi-savage minorities.20 The wild-woman-as-frontier would become a standard film trope: remember how exotic Violet Bick (Gloria Graham) tempts George Bailey (Jimmy Stewart) with the thought of running off into the moonlight to the mountains with her before he regains his senses and remains in the confines of stable marriage, as represented by Mary (Donna Reed). With the rise of corporate capitalism, the world of leisure/consumption increasingly came to represent the space of both regeneration and democracy. As society became more class divided and constrained, we remained free and equal (according to this ideology) in our power to spend. The “promiscuous world of commodities,” as Marx phrased it, merged with the fantasy of sexual promiscuity insofar as the wild woman was identified by both—hence, Pretty Woman. The classic Romantic Comedy typically possesses the following structure: two lovers meet and desire one another, but their desire cannot fulfill itself. The desire has several dimensions. It has an erotic dimension, for sure. But the eroticism is as much a symbol for a kind of playfulness that Romantic Comedy places at the heart of love; indeed, at the heart of enduring love—love gone sour is love gone old, meaning (in these films) that it has lost the spark of playfulness associated with youth. Hence, true love is typically contrasted with dreary love, or love without any laughter, especially laughter at oneself. In It Happened One Night Clark Gable and Claudette Colbert find themselves in situations where they recognize each other and themselves as rather silly. By contrast, Claudette Colbert’s relation with King Wesley, the man to whom she is married, lacks any such lightness because he is such a self-important fool. In Moonstruck, Cher’s betrothed, played by Danny Aiello, is not a self-important fool, but he is foolish in ways that he cannot recognize, mainly in being a mama’s boy; hence, their relationship is entirely without laughter. Film Noir often begins with the same predicament: man and woman desire each other but the woman is stuck in a marriage with an older man, as in Double Indemnity or The Postman Always Rings Twice,21 or, as is the case in Scarlet Street,22 the man is stuck in a dreary marriage with an older woman. (Here, the man desires

20. See LARY MAY, SCREENING OUT THE PAST: THE BIRTH OF MASS CULTURE AND THE MOTION PICTURE INDUSTRY (Univ. of Chicago Press) (1983). 21. THE POSTMAN ALWAYS RINGS TWICE (Metro-Goldwyn-Mayer 1946). 22. SCARLET STREET (Fritz Lang Productions 1945).

2009] THE LEGAL NOCTURNE 875 the woman but not vice versa.) In contrast to Romantic Comedy, the desire in Film Noir that seeks fulfillment has nothing playful about it. At best, one of the characters laughs at the other, in which case, this character almost inevitably dies at the end (the other one may die too). The ability to laugh, especially at oneself, is a crucial feature because it is a precondition of forgiveness, and forgiveness is a defining theme of comedy. This contrasts it with both the Western and Film Noir: for the former, forgiveness is for the weak, for the latter, it is for suckers. Forgiveness requires a certain distance from oneself, a certain objectivity if you will, that comes from taking oneself not quite so seriously. In Romantic Comedy, the capacity for playfulness is often identified with the capacity to play-act together, to put on a show for other people. In It Happened One Night, Gable and Colbert’s characters foil the detectives on her trail by effortlessly pretending to be an old married couple, endlessly battling each other by bringing up past injustices. In The Awful Truth,23 the decisive moment that brings Cary Grant and Irene Dunne’s characters back together is when she shows up at the home of his fiancé’s parents pretending to be his floozy sister, Lola. This ability to don masks, and to find joy in each other’s ability to do so, sustains the perception that life in general is a kind of charade that we should not take so seriously. The characters assume masks in Film Noir as well, but their playacting lacks playfulness—hence its philosophical message could not be more different. The crucial point for our purposes is that what frustrates the lover’s desire in Romantic Comedy is invariably something legal, or legalistic. This can take various forms. In Shakespearean comedy, the blocking figure is typically the older parent, or sometimes both parents, who have already arranged for one or both of the lovers to marry someone else. In 1930s Romantic Comedy, the blocking factor was typically associated with legal problems surrounding marriage. An interesting example I have discussed elsewhere is the prominent role often played by the specter of a “breach of promise” suit. In such films, one character belongs with another, but consummating their relationship runs the risk of inviting a breach of promise action from a scorned third party, who embodies a false conflation of love and the legal realm. This is a factor in It Happened One Night. King Wesley must be bought off at the end; by contrast, Clark Gable demonstrates his true self by not seeking damages for the broken relationship. The background to this predicament evokes the Shakespearean one, but with more agency: one of the characters has already committed themselves to someone else, which they now must find a way to escape. Claudette Colbert is already married to King Wesley, but only in the legal sense; i.e., they have not consummated their marriage, thereby confirming it as a medium of desire. The film ends with Gable and Colbert doing just that, by tearing down the walls of Jericho. In The Awful Truth, both characters have

23. THE AWFUL TRUTH (Columbia Pictures 1937).

876 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 hastily betrothed themselves to others after splitting up. In Moonstruck, Cher has already committed herself to Danny Aiello. And so on. Chocolat,24 which is one of the better Romantic Comedies of recent years, provides another variation on this theme. Juliet Binoche’s character arrives to revive the spirit of desire in a French town, which is flagging due to hyper- legalism. This hyper-legalism takes two forms, principally that of the mayor, played by Alfred Molina, and to a lesser extent, that of the church, which is traditionally portrayed as a source of repression but which now is caught between Christianity as love and Christianity as law, in the form of the new priest caught between two worlds. Chocolat is interesting because its central figure is a classic “trickster,” but a female trickster—such figures are almost always male. The film develops the conflict between desire and law on numerous levels. Since it is Lent, the mayor is not just dead set against sex but dead set against food as well. Comedies typically identify desire and its naturalness with eating, which is why they typically end with the lovers enjoying a feast with everyone before they run off to bed. Food shared is the symbol of hospitality and inclusiveness—of human community grounded in animal need. Philosopher Gabriel Marcel has spoken of hope as the “food of the soul.” The prominence of food signals that comedy’s message is one of hope. Chocolat ends with a feast. In this film, there is also the contrast between the cloistered city and the river world of the traveler played by Johnny Depp (also a kind of trickster). The city-versus-river contrast serves to identify the law-versus-desire opposition with different regimes of property. The mayor is pointedly reminded of one point that the authority of the city and the laws of private property do not extend to the waterway. Like the common forest in Shakespeare, it is the place where mine versus thine does not apply. With the river, though, the role of water reminds us of the prominent role that water and the kinds of conflicts surrounding water have played in reflections on the different forms of dispute resolution, starting with classic articles of Lon Fuller. Water disputes are paradigms of those that do not lend themselves to traditional adversarial procedures, perhaps because they abide by an economy of sharing, an economy of the gift as opposed to the commodity. The tension between law and desire translates into the tension or contrast between orthodox legal methods and alternative dispute resolution. In Chocolat, desire and stimulation are contrasted with the dullness of regimentation: sex, water, and food are contrasted with a legalistic mayor whose social position derives from an august ancestor noted for persecuting Huguenots. In Chocolat, desire comes to the town. More typically, however, lovers seek to fulfill their desire by getting out of town, escaping the legal impediments blocking them. In Shakespeare, this takes the form of the lovers fleeing the city

24. CHOCOLAT (Mirimax Films 2000).

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(Athens, for example) for the countryside, specifically some forest-type location that Northrop Frye calls the “green world.”25 It Happened One Night follows this pattern closely. As the story unfolds, Gable and Colbert journey ever more deeply into the countryside, first on a bus and then on foot. They eventually find themselves forging through streams, sleeping in haystacks, and mooning at each other in dreamy soft focus of the type first exploited in Max Reinhardt’s film version of A Midsummer Night’s Dream.26 Ah, wilderness!27 In other films, the forest assumes other geographical specifications, or is figured in symbolic ways, but always evoking the dreamlike. As Cavell notes, in other 1930s films the forest outside New York becomes Connecticut.28 I have suggested that 1930s musicals identify the forest with “backstage.”29 In recent films, the “city” is Brooklyn and the Bronx and the “forest” is Manhattan, conceived as a land of enchantment. In Moonstruck, Cher journeys from home to find her fiancé’s brother, played by Nicolas Cage, laboring in his bakery’s basement. This is not yet the enchanted forest, but it has some of the elements: food, to begin with (in abundance), half-naked people (Nicolas Cage all chest hair and sweat, a la Sonny Corleone30), and almost immediately, sex. The omnipresent moon marks the transformation of the city into something more dreamlike. But the true forest comes with the journey to the opera, which recent Romantic Comedy has identified with lavish passion played to the hilt. Richard Gere and Julia Roberts journey to the opera in Pretty Woman. In both films, it is the man who loves the opera, and this is seen as a key to his character. It is interesting to contrast this with a Film Noir like The Postman Always Rings Twice. The plot of this film is really quite strange. Much of it is an extended shaggy dog story, with a touch of O’Henry added at the end. John Garfield and Lana Turner continually try to escape her domestic prison, only to get cold feet or fail in some other way; they cannot even kill her husband without almost killing themselves as well. As I will show, Film Noir invariably involves people who cannot get out of town. Here, it is explicitly two lovers who are unable to make Romantic Comedy’s journey to the forest. The movement of Romantic Comedy, however, requires that they not remain in the

25. A MIDSUMMER NIGHT’S DREAM (Warner Brothers Pictures 1935). 26. See WILLIAM SHAKESPEARE, A MIDSUMMER NIGHT’S DREAM act 1, sc. 1 (indicating exit of lovers at scene’s end); see also NORTHROP FRYE, ANATOMY OF CRITICISM: FOUR ESSAYS 144 (1957) [hereinafter Frye, Anatomy of Criticism] (describing Shakespeare’s forest comedies as “green world”). 27. See generally EUGENE O’NEILL, AH, WILDERNESS!: A COMEDY OF RECOLLECTION IN THREE ACTS (Samuel French 1979) (1933) (relating idyllic family in New London, Connecticut). 28. See CAVELL, PURSUITS OF HAPPINESS, supra note 14, at 49 (comparing Frye’s “green world” to Connecticut in The Lady Eve). 29. See Cheyney Ryan, Lawyers as Lovers: Gold Diggers of 1933 or “I’d Rather You Sue Me Than Marry Me”, 30 U.S.F. L. REV. 1123, 1125 (1996) (describing forest as backstage) [hereinafter Ryan, Lawyers as Lovers]. 30. THE GODFATHER (Paramount Pictures 1972) (displaying Sonny Corleone half-naked).

878 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 forest. For various reasons, they need to escape the world of law. But since comedy is about reconciliation, they must ultimately reconcile themselves to the world of law as well. The lovers must reconcile themselves with the blocking parental figure, they must replace a false marriage with a true one; enlightened by their journey, the lovers can now return home and all have something to eat—in the case of Moonstruck, they can all sit around the table and have breakfast, while Danny Aiello wonders what the hell happened. The conflict between desire and law makes the lovers the legal outsiders in this genre. However, there is a naiveté to this form. The lovers are so focused on themselves and their desire for each other that their conflict with the legal realm is never brought to consciousness. We never find lovers in Romantic Comedy musing on the law as whole as we often find characters doing in the other two genres. Things change, though, when we move from Romantic Comedy to the lovers-on-the-road/lam genre, a staple of American cinema. Examples include Bonnie and Clyde,31 Badlands,32 The Getaway,33 Wild at Heart,34 and Natural Born Killers.35 The most interesting recent variant of this is Thelma and Louise,36 which also has elements of a Western, in the confrontation of the heroes with the savage, here identified with male chauvinists. This type of film introduces a new element in linking the self- conscious violation of the law by the lovers and their bonding as outlaws with sexual excitement. In Bonnie and Clyde, Clyde played by Warren Beatty is impotent until he has a few shoot-outs with the authorities. The Lacanian-type suggestion is that sexual desire is constituted by the violation of the eternal law, hinting that there is something unnatural about it. The opposite is implied by Romantic Comedy, which is why the reconciliation of desire and law is a real possibility. Desire and law are reconciled through the transformation of each, but mainly through the transformation of law, which must be made human, meaning it must become more forgiving. It may be too much to imagine the city and the forest representing two images of law, Roman law and common law; certainly, the drift of Romantic Comedy is towards law as equity. The humanization of law is often figured as the humanization of the principal legal(istic) figure, usually by getting him drunk or appealing to his bodily desires in some way. Often, this humanization occurs in ways involving an element of humiliation, requiring that he learn to laugh at himself as the lovers have already learned. Paternal figures often get drunk in the end, even when they’re not the bad guys; we see Claudette Colbert’s father getting soused at the end of It Happened One

31. BONNIE AND CLYDE (Tatira-Hiller Productions 1967). 32. BADLANDS (Badlands Company 1973). 33. THE GETAWAY (National General Pictures 1972). 34. WILD AT HEART (PolyGram Filmed Entertainment 1990). 35. NATURAL BORN KILLERS (Warner Brothers Pictures 1994). 36. THELMA AND LOUISE (Metro-Goldwyn-Mayer 1991).

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Night. An exemplary case is the Alfred Molina’s come-uppance as the mayor in Chocolat. Throughout the film, his character served to dramatize the twinning of forgiveness and shame. His shame that his wife has left him, demonstrating his inability to acknowledge a perfectly human failing in himself, rendered him overly judgmental towards others as well as incapable of responding to his secretary, Carrie Moss (who has also driven by shame, in this case for her mother).37 The dialectic of shame and legalism here merits more exploration. For now, the point is that transcending both in the mayor’s case means acquiring the ability to laugh at himself, perhaps by recognizing that others will not laugh at him. He ends wallowing in the chocolate display, like a fat little boy covered with mud from the playground (or the banks of the river, in this case). Reminded of the child in us all, he could then become a true adult. “The action of comedy in moving from one social center to another is not unlike the action of a lawsuit, in which plaintiff and defendant construct different versions of the same situation, one finally being judged as real and the other as illusory.”38 This is written by Northrop Frye, who noted that the resemblance of the logic of comedy to that of jurisprudence has been recognized from the earliest times (he cited the Tractatus Coislinianus, along with Aristotle’s Poetics). The relation of the “real” to the “illusory” is a concern that Romantic Comedy shares with Film Noir, though with drastically different outcomes. In It Happened One Night, Claudette Colbert realizes her love for Clark Gable as she is lying in bed, separated from him by a blanket, listening to his musings about his quest for something, or in this case someone “real”:

Ellie: Haven’t you ever wanted to fall in love?

Peter: Me?

Ellie: Yes. Haven’t you thought about it at all? Seems to me you could make some girl wonderfully happy.

Peter: Maybe. Sure—sure, I’ve thought about it. Who hasn’t? If I ever met the right sort of a girl, I’d—Yeah, but where you going to find her—somebody that’s real—somebody that’s alive? They don’t come that way anymore.39

Conceived as a trial, the conflict between desire and law becomes an argument over which story is real, which illusory, with the narrative drawing us

37. See STANLEY CAVELL, The Avoidance of Love: A Reading of King Lear, in MUST WE MEAN WHAT WE SAY? 267-356 (1969) (commenting on shame in tragedy). 38. Frye, Anatomy of Criticism, supra note 26, at 166. 39. See IT HAPPENED ONE NIGHT (Columbia Pictures 1934).

880 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 towards the proper judgment. Knowing which is real means knowing what is real, which is equated with finding someone that is real: the logic grounds our understanding of the world in our understanding of one another, i.e., our knowing of one another.40

B. The Western: The Journey to the Frontier If comedy revolves around the flight to the forest, the Western revolves around the journey to the frontier. Richard Slotkin is our best guide to the myth at the heart of the Western.41 If I have anything new to contribute here, it involves the contrasts between this myth and that of comedy, just described, and the contrast between both myths and the myth of Film Noir. The Western, the most interesting one in my opinion, is tragic. It forms a direct contrast with Romantic Comedy in this regard, for its outcome is one of non-inclusiveness. Comedy ends with everyone invited to the party. The Western ends as The Searchers42 ends, with the central figure, here John Wayne, standing outside by himself while everyone else goes inside; indeed, he is framed against the empty majesty of the skyline as the door is shut in his face. The story of the gunfighter is the story of an outsider who could never come home because he never had, or no longer has a home. The Searchers is a cowboy cross between The Iliad and King Lear in its interminable quest to reclaim a kidnapped woman, conjoined with an obsessive madman wandering about in the elements, with his only friend an addled fool here named “Mose.” My remarks on the Western draw on this film and two other classic Westerns of the 1950s, the high years of the genre. One is Shane,43 the other The Man Who Shot Liberty Valance,44 a film that I have explored elsewhere along the lines developed here.45 All three films conclude with the hero left out in the cold. In the case of Liberty Valance, both heroes are left out in the cold. Our question is what this says about the status of law. Like the forest in Romantic Comedy, the frontier in the Western is outside the law, or more accurately, stands in ambivalent relation to the law. After all, a frontier is a kind of boundary, but a boundary that evokes both danger and possibility. To say that we stand at the “frontier of a new age,” for example, is to say that we are about to enter uncharted territory, but in a manner that will

40. All knowing grounded in personal knowing: Hebraic over Hellenic. 41. See generally RICHARD SLOTKIN, GUNFIGHTER NATION: THE MYTH OF THE FRONTIER IN TWENTIETH- CENTURY AMERICA (1998) (examining significance of frontier to American culture). 42. THE SEARCHERS (C.V. Whitney Pictures 1956). 43. SHANE (Paramount Pictures 1953). 44. THE MAN WHO SHOT LIBERTY VALANCE (Paramount Pictures 1962). 45. Cheyney Ryan, Print the Legend: Violence and Recognition in The Man Who Shot Liberty Valance, in LEGAL REELISM: MOVIES AS LEGAL TEXTS 23-43 (John Denvir ed., 1996) (comparing film commentary on fabrication and violence to other Westerns).

2009] THE LEGAL NOCTURNE 881 extend the familiar into the unfamiliar, or try to. Unlike the forest, then, the frontier is a challenge, something to be mastered, and a place to be tested. A Western like Liberty Valance is about constituting civilization in the realm of the frontier; hence it may be likened to the political theories of Hobbes and Locke insofar as it asks us to envision how the state came to be constituted from a state of nature, conceived as a pre-civilized condition.46 The main difference is that for Hobbes and Locke the central problem is defining the terms in which everyone in the state of nature can best secure his or her particular advantage. For Hobbes, one arrives at the state to escape the potential for violence of all against all.47 In the Western, constituting civilization out of the frontier is primarily a project of killing the savage. Civilization may solve the problem of violence in crucial ways, but it necessarily rests on violence as well. The city rests on crime—this is a tragic theme as well, think of Oedipus, but it is also an essential theme to classic Film Noir. Let me begin with some words on Shane, a classic of the gunfighter genre and the most successful Western of the 1950s.48 The central conflict in this film lies between the homesteaders and the cattle barons. This is a recurring conflict in the Western. It also stands at the heart of Liberty Valance. In both films, the cattle barons, as the bad guys, hire a really bad guy as their enforcer (in Shane, Jack Palance and in Liberty Valance, Lee Marvin). The conflict with the cattle interests signifies several things. Most obviously, it represents the struggle of the rich and powerful (and the few) against the poorer (and the many). All three genres of American film are populist in their own way, explaining their distinctiveness as American. Romantic Comedy’s critique of wealth and power is a gentle one, however, saying only that money can’t buy love. The Western and Film Noir bring us closer to class conflict—one rural, the other urban. But the conflict is rarely fully dramatized, which explains why, though the conflict between good and evil can be fairly stark, especially in the Western, both genres avoid the trap of melodrama. In Liberty Valance, we never see the evil cattlemen, only their henchman Liberty Valance himself. In Film Noir, the ruling class figure often appears only briefly, if at all, and his impact is mainly through their mediaries. Roman Polanski’s Chinatown is somewhat unique in the central role it gives to John Huston’s Noah Cross, though he never really does much on-screen, his evil deeds are also done by others. The cattlemen and homesteaders also represent different economic models,

46. See generally THOMAS HOBBES, THE LEVIATHAN (1660) (positing theory of “state of nature”); JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT (1690) (considering state of nature governed by natural law of reason). 47. See HOBBES supra note 46 (espousing man should grant liberty to others as he would want it to himself). 48. Tim Dirks, Greatest Films: Shane (1953), available at http://www.filmsite.org/shan.html.

882 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 signified by different legal regimes. The cattlemen want an open range with no fences; ironically, since they are the rich and powerful, they are committed to a property regime of shared undivided property. This is just one of the ways in which they are like Native Americans. The homesteaders, or, in the case of Liberty Valance, the town dwellers, represent the principle of enclosure, a property regime of exclusive rights in land gained through personal labor. The conflict between cattlemen and homesteaders recapitulates the conflict between Native American and European settlers. Europeans claimed the right to appropriate the Americas, despite its prior inhabitants, on the grounds that prior inhabitants’ nomadic existence, endlessly roaming about, meant that the land was never “improved” in ways that stationary cultivation engendered. “We can take your land because nothing you have done has made the land truly yours”—again, the resonance with John Locke.49 The cattlemen displaced the Indians (this is explicitly noted in Shane), but then they created an Indian-like realm that, like the Indian, is portrayed as historically vanishing (like the hero gunfighter who vanquishes them, it turns out). In Liberty Valance, the triumph of enclosure is linked with the coming of statehood, i.e., the conclusion of frontier (territorial) status with the inclusion into the United States proper. Finally, the cattlemen are like the Indians in their “savage” behavior. The henchmen they hire are the savage figures in the films, but there are additional links. In Shane, the cattlemen, like the Indians, typically appear at random moments to terrorize the women and children. When the homesteaders gather to discuss what to do, they speak of how the cattlemen threaten them with “war parties.” The homesteaders’ conflict with the cattlemen, then, is one in which the enemy will not fight fair, will sneak up on you when you are not looking, will refuse to respect your women, and will never keep his word. Such a group cannot be bargained with, only annihilated. The problem is, where will we find the man capable of doing what must be done? Into the valley rides Shane, played by Alan Ladd, a gunfighter who, like John Wayne’s Tom Doniphon in Liberty Valance, would like to put his battles behind him. John Wayne is completing his own little house on the prairie in the hope of settling down. Alan Ladd immediately assists Van Heflin and his wife, Jean Arthur, and in no time at all is helping dig a stump out of the ground. The actor Van Heflin excelled in roles as the beleaguered husband, stoic and humorless, his manhood never fully certain. (In Act of Violence,50 he plays the same character in a Film Noir setting.) Jean Arthur proves to be a more interesting piece of casting. To begin with, she was over fifty years old when she made this film, ten years older than Heflin. This gives credence to her constant scolding in a motherly fashion, about putting the guns away and growing up. She had an exceptionally long career as an actress playing chiefly

49. See LOCKE, supra note 46 (explaining theory of property rights). 50. ACTS OF VIOLENCE (Metro-Goldwyn-Mayer 1948).

2009] THE LEGAL NOCTURNE 883 comedy roles, enabled by her squeaky froglike voice (hence she was an odd choice for the homesteader’s wife). She is now best remembered for her two films with Frank Capra in which she played exactly the same role—the wiser woman meant to help out the visiting bumpkin, only to fall in love with him (Mr. Deeds Goes to Town,51 with Gary Cooper, and Mr. Smith Goes to Washington,52 with James Stewart). Alan Ladd was undoubtedly the shortest actor to achieve stardom in tough-guy roles (he was barely 5 feet 5 inches), and his career was on the decline when he made this film. Perhaps the director, George Stevens, relished the challenge of filming fistfights between the diminutive Ladd and imposing opponents like Jack Palance—and making us believe that Ladd could win. With Shane’s arrival, the story unfolds fairly predictably. As in The Searchers, the family is harassed by savages (cattlemen and Indians); hence in both films, the family must turn to the wayward gunfighter to solve the problem they cannot solve themselves. Eventually the same thing happens in Liberty Valance: James Stewart is the homesteading figure, if you will, who, unbeknownst to him, will need the assistance of John Wayne to kill the enemy. Invariably the gunfighter is a “real man,” while the guy needing his help is more ambivalent in this regard. Van Heflin is never quite in charge of his family; when we first see his wife, she is literally wearing the pants, plus his son (Brandon de Wilde) almost immediately warms to finally having a real father figure around in Shane. The famous last scene of the film has the boy screaming after Shane; imagine how his father felt. In Liberty Valance, James Stewart wears an apron and performs woman-like tasks, such as dishwashing. So too, Jeffrey Hunter is constantly portrayed as a girlie man in The Searchers. Stanley Cavell argues that the comedies of remarriage involve awakening the central female figure to her desire.53 I have never been quite convinced of this, but the Western certainly seems to involve awakening some of the men to their manhood, sometimes because they are still in the process of growing up (Jeffrey Hunter) and sometimes because they do not yet possess the knowledge that the gunfighter possesses—both Van Heflin and James Stewart are led by the gunfighter into fighting like “men.” The dominant Westerns of the 1950s, like the ones considered here, have a plangent tone. The frontier is disappearing, a sad but inevitable step on the way to civilization; like the sunset, its value and beauty involve its transitory character. Nothing gold can stay. The time of comedy is more cyclical, I think. Northrop Frye speaks of it as the myth of spring, but its myth of renewal is one of continual recurrence: spring following winter is just the most

51. MR. DEEDS GOES TO TOWN (Frank Capra Productions 1936). 52. MR. SMITH GOES TO WASHINGTON (Columbia Pictures 1939). 53. See CAVELL, PURSUITS OF HAPPINESS, supra note 14, at 56-57 (theorizing object of female’s true desire).

884 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 dramatic instance of how the seasons replace one another, spring by summer, summer by autumn, often by winter, again and again.54 This is a movement associated with the wisdom literature in the Hebrew Bible, and the truths of comedy are the truths of wisdom: for everything there is a season and a time for every purpose under heaven—hence no reason to be so judgmental, and every reason to be forgiving. The recurrence is a repetition, but the kind Plato identifies with the “cycle of difference,” in contrast to the “cycle of the same,” a regenerative cycle identified with female fertility.55 It is natural to conceive of comedy as the woman’s genre, unlike the time of the Western which is not cyclical but linear. The frontier will leave and not return, the gunfighter will leave and not return. Next year will not bring a new gunfighter, this will only happen once. Film Noir may be seen as combining the two. What is happening now will undoubtedly be repeated, but the repetition will be unincremental, i.e., not regenerative. This is Plato’s “cycle of the same.” It is logical to identify it with a metaphysical orientation, in the bad sense. The focus of tragedy, Northrop Frye tells us, is the hero’s isolation, often associated with vengeance. In The Searchers, John Wayne is and will remain forever isolated because of his obsessiveness, which leads to vengeance. After searching for Natalie Wood all those years, his first impulse at finding her is apparently to shoot her. It does not happen, of course, but that non-occurrence does not strike me as any kind of turning point or deep revelation. After all, Jeffrey Hunter seems convinced that Wayne is about to shoot her, and by now Hunter knows him as well as anyone. If Natalie Wood has become a surrogate daughter-figure to Wayne, killing her would complete the tragic, Lear-like dimension of the story and achieve the catastrophic conclusion to which tragedy typically leads. Destiny bespeaks of linearity, inevitability of irreversibility (in contrast to the cyclical time of comedy). By the end, Wayne has lost the ability to distinguish between a white man (or in Wood’s case, a white woman) and Indian. Vengeance threatens that all-consuming violence that Rene Girard claims comes from the collapse of socially constructed differences and can only be rectified in a sacrificial system by the identification of a scapegoat.56 If a scapegoat figure exists in the classical American Western, it is the gunfighter himself. The gunfighter’s outside legal status rests in his status as scapegoat. His actions are necessary for there to be a legal order at all. John Wayne must kill Liberty Valance to save the town, to achieve statehood, to save James Stewart,

54. NORTHROP FRYE, Archetypal Criticism: Theory of Myths, in ANATOMY OF CRITICISM: FOUR ESSAYS 131, 163-86 (1957) (characterizing mythos of spring as cyclical elements of comedy). 55. NORTHROP FRYE & JAY MACPHERSON, BIBLICAL AND CLASSICAL MYTHS: THE MYTHOLOGICAL FRAMEWORK OF WESTERN CULTURE 139-40 (2004) (applying Plato’s theories of “cycle of the different” and “cycle of the same” to myths). 56. See RENE GIRARD, The Gods, the Dead, the Sacred, and Sacrificial Substitution, in VIOLENCE AND THE SACRED 250, 269-73 (Patrick Gregory trans., Johns Hopkins Univ. Press 1977) (1972).

2009] THE LEGAL NOCTURNE 885 so that he can bring law to Shinbone. Shane must kill Wilson (Jack Palance); otherwise, no homesteader’s life or property will be safe, and the city will be no city at all, but a jungle. The violence itself is extralegal, or immoral. It is incapable of being reconciled with the civilized order it establishes, which is why the gunfighter can never be reconciled with the community at large. The founding of the city rests on a primal violence that the city must deny and expel if it is to endure. The city thanks the gunfighter for killing the savage by treating him as a savage and an isolate. As noted, if comedy ends in inclusion, tragedy ends with the exclusion of the hero. However, the concept of “hero” is more problematic in the classical American Western than one might imagine, a fact that contributes to its greatness. I have drawn the connection with the social contract theory of both Hobbes and Locke, but the frontier story is much closer to Locke than Hobbes. Hobbes’s state of nature is a fundamentally amoral world, but for the natural right to self-preservation.57 Contracts are binding only insofar as they promote one’s rational self-interest, or are enforced by a “sovereign” that itself arises from such self-interest. Locke’s state of nature is like the Western’s frontier— a realm of natural law, but not civil law—in which promises are binding not from self-interest but simply because “the man gave his word,” to quote a constant refrain in The Wild Bunch.58 Natural law is also embodied in gender relations, mainly the principle that men do not violate women—indeed, “real” men defend women against such acts. The Western’s wistfulness at the passing of the frontier marks the fact that in its view natural law and civil law can never be fully reconciled. The gunfighter, as the enforcer of natural law, can never be at home in the world of civil law. Nature and society can never be reconciled—but, as I have said, this can never be recognized, it must be denied. This is why the Western is the genre that most self-consciously problematizes the issue of myth, construed as a kind of ideology. Here lies the greatness of Liberty Valence: “This is the West, sir. When the legend becomes fact, print the legend.”59 The West, the frontier, is the realm of myth. The myths are typically ones that partake of the structure that Renee Girard has claimed lies at the foundation of civilization itself.60 They are myths of sacrifice, of the necessity of sacrifice, if law is to be established and sustained. Saving the city from plagues, in the Greek version, and saving the city from Jack Palance or Lee Marvin, in the Western version: in both cases, a sacrifice is required.

57. See HOBBES, supra note 46 (describing man’s natural right to do anything to preserve his own liberty or safety). 58. See LOCKE, supra note 46 (detailing the law of nature); see also THE WILD BUNCH (Warner Brothers 1969). 59. See THE MAN WHO SHOT LIBERTY VALANCE (Paramount Pictures 1962). 60. See GIRARD, supra note 56, at 49 (arguing sacrifice is foundation of society and community).

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C. Film Noir: You Can’t Get Out of Town Romantic Comedy and the Western are both about getting out of town to achieve regeneration. In the Comedy, the lovers flee to the forest to regenerate through love; in the Western, the protagonists journey to the frontier to confront the savage, where regeneration is found through violence. Film Noir is about what happens when you cannot get out town; hence, its message is one of non-regeneration and non-renewal. In Double Indemnity or The Postman Always Rings Twice, the characters plan to bump off the husband and flee to a new life. Edward G. Robinson has a similar fantasy of bumping off his wife, as in Scarlet Street, my favorite Film Noir. More recently, Jack Nicholson and Faye Dunaway try to escape Los Angeles when she is shot in eye at the end of Chinatown.61 The entire population of Blade Runner62 is people who cannot leave town for “off world,” the “new frontier” of hope and possibility. The falsity of the studio-added ending to Blade Runner, where Harrison Ford and Sean Young flee to the countryside because Sean Young is not programmed for a short life as every other replicant rests in sharp conflict with the basic Film Noir message.63 Another variation of this is the man who has fled the town, but the town keeps following him, never letting him escape. This is the situation in Out of the Past,64 or Act of Violence. If the Comedy is enchantment, and the Western expansiveness, the dominant sensibility of Film Noir is claustrophobia. There must be some way out of here, said the joker to the thief.65 But there is not. (The joker and the thief are two archetypal figures in this genre.)

III. THE VETERAN’S TALE Film Noir is a World War II product, emerging during the war but coming into its own after the conflict ended.66 Its status as a post-war genre is essential for two reasons. First, Film Noir came into its own when American culture was busy trying to address and repress the problem of the veteran. War was a dominant political fact of twentieth-century America. Film Noir is the only cultural form to question the war’s legacy as the question of what happens to the ordinary men who fought and suffered in it. Film Noir should be read

61. See CHINATOWN (Paramount Pictures 1974). In Chinatown, the title of the movie is also the name of the place you cannot escape. 62. BLADE RUNNER (The Ladd Company 1982). 63. THE SHINING (Warner Brothers Pictures 1980). The final shot of the characters heading for the forest was an outtake from Kubrick’s The Shining, a film about people who cannot get out of their hotel. 64. OUT OF THE PAST (RKO Radio Pictures 1947). 65. BOB DYLAN, All Along the Watchtower, on JOHN WESLEY HARDING (Columbia Records 1967). 66. Other discussions of Film Noir include the following: RAYMOND BORDE ET AL., A PANORAMA OF AMERICAN FILM NOIR (1941-1953) (City Lights Publishers 2002); FOSTER HIRSCH, THE DARK SIDE OF THE SCREEN: FILM NOIR (Da Capo Press 2001); EDDIE MULLER, DARK CITY: THE LOST WORLD OF FILM NOIR (St. Martin’s Griffin 1998); ALAN SILVER & JAMES URSINI, FILM NOIR (Taschen 2004).

2009] THE LEGAL NOCTURNE 887 alongside the classic American war movie, where ordinary men are called away from home and obliged to set aside their domestic differences to fight against the common foe.67 If the war film gives us the soldier’s tale, Film Noir gives us the veteran’s tale. Its protagonist is typically a veteran of World War II combat, or of some endeavor likened to combat in its psychological damage and seductiveness. The obvious case is the figure who has endured too much police work. Touch of Evil’s68 Hank Quinlan is a typical noir police veteran, with the battle scars—the “game leg”–to prove it. Chinatown and Blade Runner have central figures who have left the police force for reasons they cannot quite speak about, like the combat veteran. Sunset Boulevard likens the survival of Hollywood to the survival of warfare. In many films, the female figure is a veteran of marriage, where marriage is conceived as a kind of combat. I link its privileging of the veteran with the prominent role ascribed to psychotics in Film Noir. The protagonist is a burnout case who has passed over into some kind of obsession or fixation. Sometimes the protagonist has already gone over the brink, like Touch of Evil’s Hank Quinlan. Sometimes the protagonist is on the verge of doing so, like the Jim Wilson character played by Robert Ryan in On Dangerous Ground.69 Sunset Boulevard’s Norma Desmond played by Gloria Swanson artfully weaves together the themes of obsession, crime, and “Hollywood.” In Film Noir, the film industry explored post-traumatic stress syndrome before anyone recognized the term. This is one way Film Noir constitutes a sustained critique of the American combat film and its valorization of the war experience. The noir influence on the Western is evident in how John Wayne in The Searchers and Alan Ladd in Shane are also burnt-out veterans of experiences they cannot speak about, scarring their ability to reintegrate into normal life.70 Second, as a post-war product, Film Noir also captured the dark side of the late 1940s and 1950s, the subliminal feeling of the Baby-Boomer youth-years that something was terribly wrong, but unacknowledged. Something was happening, and we did not know what it was, did we (Mr. Jones). Its place in the Baby-Boomer subconsciousness may explain as much as anything its enduring influence. The Twilight Zone was the first exposure to this noir sensibility for many of my generation. The phrase “the twilight zone” referred to the threatening marginal time/space in which the characters found themselves imprisoned. In the darker episodes, they learned they would never escape at the end and they were destined to be exhibits in some alien zoo, or

67. The most recent example is SAVING PRIVATE RYAN (Dreamworks SKG 1998). 68. TOUCH OF EVIL (Universal International Pictures 1958). 69. ON DANGEROUS GROUND (RKO Radio Pictures 1952). 70. See supra notes 42-43. John Wayne’s “Ethan” is a Confederate veteran who refuses to renounce his allegiance to the Confederacy and hence is destined to fight that war forever.

888 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 ingredients in an alien meal.71 John F. Kennedy sought to rally Americans to the “long, twilight struggle” against conflict.72 The lovers in comedy cavort beneath the moon, moonstruck, the gunfighters in the Western duel in the sun. The time of Film Noir is twilight time: not total darkness, yet not enough light either, “somewhere between light and darkness,” or beyond, if you will, since the only light there is artificial—streetlights, or the spotlight of interrogation.73 There is no natural darkness either, just shadows of crowded rooms. With Film Noir, we enter a world beyond nature where everything is artifact, man made— the asphalt jungle. This claustrophobic sensibility extended to many films that were not Film Noirs but attested to the influence of that genre. It’s a Wonderful Life is a Film Noir Christmas movie. Its story is one sequence after another of George Bailey trying to get out of town, only to fail. From childhood, his dream is to get to the frontier, especially to the Orient. The specter of the Orient pervades Film Noir, as both hopeful and sinister, in films such as Chinatown, The Lady from Shanghai,74 and Blade Runner, in which all of L.A. has become Chinatown. Young George will have a “harem” and build magnificent monuments like Charles Foster Kane’s estate “Xanadu” in Citizen Kane, another claustrophobic film.75 Later, Violet Bick, played by Film Noir icon Gloria Grahame, comes to signify the longed-for harem, the never realized promise thereof. The hero George Bailey does not fall for the spider lady in this film, but in typical Film Noir fashion he does become entangled in a financial mess that he ultimately seeks to resolve through a life-insurance scam, another Film Noir conceit. George has a tragic dimension as well; like the gunfighter, he is the savior of the town who never quite fits in, or wants to fit in. His “wonderful life,” we learn, has been more like the trials of Job. Like Job, he gets God’s attention by wishing he had never been born.76 Wishing one had never been born partakes of the wish to be in control of one’s own birth, i.e., to become one’s parent. George Bailey’s becoming his own father is an interesting element of the film. His father speaks of him as having been “born old” at the start of the film, and George’s inability to get out of town and become his own man is driven by the necessity that he takeover and salvage his father’s business. The turning point of It’s a Wonderful Life comes when George gets his wish that he were never born and is shown by Angel Clarence what the world would have looked like without him. Bedford Falls, now “Potterville” is something straight out of The

71. The Twilight Zone: Hocus Pocus and Frisby (CBS Television Broadcast Apr. 13, 1962); The Twilight Zone: To Serve Man (CBS Television Broadcast Mar. 2, 1962). 72. See President John F. Kenndy, Inaugural Address (Jan. 20, 1961). 73. The Twilight Zone (CBS Television Broadcast 1959-1964) (quoting opening statement for program). 74. THE LADY FROM SHANGHAI (Columbia Pictures 1947). 75. See CITIZEN KANE (Mercury Productions 1941) (depicting Kane’s lavish estate). 76. See Job 3:3 (detailing Job cursing his birth).

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Phenix City Story77 or The Twilight Zone—a noisy, crowded, seedy dump, the kind of place that Van Heflin might have found himself escaping from Robert Ryan.78

IV. VARIETIES OF NOIR There are different ways to divide the Film Noir genre. In his canonical essay, Notes on Film Noir, writer/critic turned director Paul Schrader divides it into three phases.79 The first, roughly 1941 to 1946, is the phase of the private eye and the lone wolf.80 The second, roughly 1945 to 1949, is the phase of crime in the streets and police routine.81 The final phase, roughly 1949 to 1955, is the period of especially psychotic action and suicidal impulse.82 Thus conceived, the world of Film Noir is unwaveringly one of crime—a world in which crimes are plotted, executed, and even punished. Yet it is a world of crime in which lawyers and judges are noticeably absent. It is as if the genre asks us to imagine what the world of law would look like if it only had crooks, cops, and private eyes to resolve (and create!) all the problems. A lot of the writing on law and film has focused on movies in which the lawyer figure is central. We might call this the “Atticus Finch Syndrome.”83 This syndrome conveys the impression that law is mainly about lawyering, but Film Noir presents the opposite picture. The law is omnipresent but lawyers are nowhere to be seen. No one gets their “day in court” because in this bleak vision law and justice have nothing to do with courts. “Real” law is lived in ill-lit, shadowy, crooked streets. Jacques Derrida has described the dichotomy of violence, distinguishing between violence that “founds” law (murder) and violence that “conserves” law (war).84 The police create

77. THE PHENIX CITY STORY (Allied Artists Pictures 1955). 78. See ACTS OF VIOLENCE (Metro-Goldwyn-Mayer 1948) (depicting Ryan chasing Heflin). In It’s a Wonderful Life’s dream sequence, Bedford Falls becomes Pottersville—presumably named for Mr. Potter, the film’s villain. However, Pottersville can also refer to Potter’s Field, the land purchased with Judas’s blood money. See IT’S A WONDERFUL LIFE (Liberty Films 1946); see also Matthew 27:3-8. 79. See Paul Schrader, Notes on Film Noir, reprinted in FILM NOIR READER 53, 58-61 (Alain Silber & James Ursuni eds., 1996) (outlining three phases of Film Noir). 80. See id. at 58-59 (describing first phase); see, e.g., DOUBLE INDEMNITY (Paramount Pictures 1944); THE MALTESE FALCON (Warner Brothers Pictures 1941); THE POSTMAN ALWAYS RINGS TWICE (Metro- Goldwyn-Mayer 1946); SCARLET STREET (Fritz Lang Productions 1945). 81. See Schrader, supra note 79, at 59 (describing second phase of Film Noir); see, e.g., ACT OF VIOLENCE (Metro-Goldwyn-Mayer 1948); CROSSFIRE (RKO Radio Pictures 1947); THE KILLERS (Universal Pictures 1946); THE NAKED CITY (Universal International Pictures 1947); RAW DEAL (Edward Small Productions 1948). 82. See Schrader, supra note 79, at 59 (describing third phase of Film Noir); see, e.g., KISS TOMORROW GOODBYE (William Cagney Productions 1950); ON DANGEROUS GROUND (RKO Radio Pictures 1952); PANIC IN THE STREETS (Twentieth Century-Fox Film Corporation 1950); cf. TOUCH OF EVIL (Universal International Pictures 1958). 83. See TO KILL A MOCKINGBIRD (Universal International Pictures 1962) (depicting Atticus Finch as ideal lawyer and human). 84. See JACQUES DERRIDA, Force of Law: The “Mystical Foundation of Authority”, in DECONSTRUCTION

890 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 ambiguity between those types of violence because “the police are no longer content to enforce the laws, and thus to conserve it; they invent it, they publish ordinances, they intervene whenever the legal situation isn’t clear to guarantee security . . . Where there are police we can no longer discern between the two kinds of violence . . . .”85 Derrida is describing the world of “today,” but he might also be describing the world of Film Noir. Let me suggest an even simpler categorization of Film Noir than Schrader’s, that I think is illuminating for our purposes.

V. HAPLESS MALES AND SPIDER WOMEN The first type revolves around a hapless victim, specifically a hapless male victim, drawn into an ultimately catastrophic intrigue by a mysterious woman. This is a predicament at the heart of classics like Double Indemnity, Scarlet Street, and The Postman Always Rings Twice, though the latter film is more ambivalent as to the woman’s motives and the man’s innocence. Body Heat86 is a more recent, brazenly formulaic example. Chinatown had this element as well as elements of the second type I shall identify, the strong detective trying to figure things out. The structure is very simple: male chump meets mysterious woman who convinces him, or compels him to the conclusion, that to fulfill his desire he must kill someone, steal something, etc. As I have said, like the Romantic Comedy there is often a legal barrier, usually an older husband, blocking the way of desire; but in Film Noir the solution lies in killing him and then collecting his money. Class is not transcended by love, as in Romantic Comedy. Rather, love, if that is the right word, is the ticket to class advancement. Love in Film Noir has an element of obsession about it, sometimes driven by the ultimate unpredictability of the female character. The “spider lady” figure can never be brought into focus. She exemplifies a twinning that feminist philosophers have explored of the female and the epistemically unavailable, and the hidden or withheld. Thus, Faye Dunaway in Chinatown symbolizes what you cannot know and what you do not want to know, because doing so will bring your ruin. Scarlet Street is the most interesting variation of this story. Edward G. Robinson is the cashier at an insurance company who at the film’s start is getting a gold watch for his decades of service. He is the beleaguered veteran of a meaningless job and a henpecked marriage. The most prominent feature in his apartment is a portrait of his wife’s first husband who “died” trying to save someone from drowning. In reality, he faked his own death to escape the

AND THE POSSIBILITY OF JUSTICE 3, 40-43 (Drucilla Cornell et al. eds., Mary Quaintance trans., 1992) (expounding on types of violence). 85. See id. at 42-43. 86. BODY HEAT (The Ladd Company 1981).

2009] THE LEGAL NOCTURNE 891 clutches of his shrewish wife. Robinson’s only solace is his love for painting, which his wife forces him to pursue in the bathroom: he paints still-lifes of flowers propped up in the sink while his wife screams at him to do the dishes. She accuses him of secretly harboring the desire to paint “women without clothes” and “snakes.” Such talk anticipates the theme of the seductive woman, the knowing of whom brings catastrophe. The catastrophe appears in the form of Joan Bennett.87 Robinson meets Bennett returning home from his party when he chances upon her being abused by her boyfriend/pimp, played by Dan Duryea. She mistakenly concludes that Robinson is a wealthy painter, an impression he does nothing to counter. In no time at all, she cons him into renting her an apartment, first by stealing his shrewish wife’s money, then by embezzling from his company. Robinson ends up ruined, of course. The ironic twist is that his primitive paintings are deemed masterpieces, but are mistakenly attributed to Bennett, who comes to be regarded as America’s first great female artist. The film concludes with a lonely, destroyed Robinson, standing ruined and forlorn in the snow, staring into a gallery where one of his paintings, attributed to someone else, is being sold for a fortune. The legal outsider at the center of this form of noir is the criminal who is not quite a criminal, Robinson in Scarlet Street, but also Bennett to some extent. Scarlet Street is an interesting film for the amount of or potential for humor in it. It could easily be redone as a comedy, given the place of false identities, comedic shrews, henpecked husbands, and message of absurdity in its judgment on high art. As it is, the film’s message is clear: all of us are capable of being criminals, even a pathetic cashier like Robinson; there are no good guys and bad guys, no “civilized” and “savage.” The failure to escape the claustrophobia of our existence teaches us that the boundary between legal and illegal is ultimately blurred. In comedy, a message like this leads to a standpoint of forgiveness, but in Film Noir its implications are nothing of the sort.

VI. DETECTIVE DRAMAS The second type of Film Noir is the detective drama, where the protagonist’s outsider status is defined by his deeply ambivalent relationship to the legal realm. We are more familiar with this type of Film Noir today, probably because major stars will not play Edward G. Robinson’s “hapless chump” figure. Jack Nicholson’s remake of The Postman Always Rings Twice failed

87. This film solidified Bennett’s standing as a leading Film Noir femme fatale, after an early career as a vapid blonde ingénue. Her career came to a screeching halt when her husband, prominent producer Walter Wanger, shot her agent, Jennings Lang, in a jealous rage. Lang survived. Wanger was charged with attempted murder, but his attorney launched a successful temporary insanity defense. Wanger only served a four month sentence, an experience that led him to produce the prison film Riot in Cell Block 11, directed by Don Siegel.

892 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 partly because he was not believable in the role, which contrasted with his believability in Chinatown, a typical detective drama. You need an actor of intelligence as well as maturity to play this kind of role, a Jack Nicholson or Harrison Ford (in Blade Runner). Body Heat is the best recent example of the hapless male victim story, but not all that recent. William Hurt was believable in that role, as was Bill Pullman in the lesser known The Last Seduction,88 where he was played for a sap by Linda Fiorentino. Fiorentino was also effective in Martin Scorsese’s After Hours,89 a wonderful example of noir comedy. In that film, Griffin Dunne spends a hellish evening trying to get out of Greenwich Village, where he is ensnared by a series of inexplicable women. The archetypal detective joins several features. First, the detective is no longer an official of the law, i.e., a policeman, yet his actions are not contrary to the law—indeed, he sometimes works to uphold the law in ways that those officially designated to do so fail to do, often because they have no interest in doing so. The suggestion seems to be that, insofar as the legal realm is worth upholding, it is more likely to be done by someone outside of it, someone who has achieved the proper critical perspective on it. Secondly, while the detective is not a figure of natural justice like the Western gunfighter he does not seem especially worried about people keeping their word, women not being violated, and so on. For Film Noir, all that exists is man-made law, all that is present is human artifact; as I said, its world is entirely artificial. There is no natural realm standing behind the law or above it as some higher law; whatever morality is, it has little to do with law. The problematic status of “natural” law in this genre is marked by the prevalence of “un-natural” sexual behavior in it: incest, for example, as in Chinatown; or rape and “lesbianism” in Touch of Evil. So the problem is not to move from the “natural” to the “institutional” or to reclaim one as a standard for judging the other. The world of noir has no lawyers and no judges: it is a world without judges because it is a world without judgment. It invites us to consider what role the law might play in society if it had nothing to do with judging—if it were just, say, another set of rules which we negotiate. Its view of life is that the challenge is just to survive, just to “get by.” It does not look to the future, and it does not envision other possibilities. Its attitude towards the future is generally one of fear. This is neither Locke nor Hobbes; it is closer to Bertolt Brecht, which may explain its attraction to leftist writers of the 1940s and to political theorists like Derrida, who are impressed by the views of Walter Benjamin.90 Third, the detective’s main motives are simple: making a buck to get the next meal. This fits with the ironic message of the genre as a whole.

88. THE LAST SEDUCTION (Incorporated Television Company 1994). 89. AFTER HOURS (The Geffen Company 1985). 90. Cf. DERRIDA, supra note 84.

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Underneath all the idealism, underneath all the fancy words, underneath all the high-minded projects, people are just trying to get the next meal, or maybe get laid. This is a kind of frank, iconoclastic materialism that the Russian literary theorist Bakhtin associated with the low comedy of Rabelais. “Evil” is identified with those whose impulses have lost touch with the pure body. Think of Noah Cross played by John Huston in Chinatown. No amount of money is enough, no amount of power is enough, enough is never enough. There is no “savage” in the world of Film Noir, but there is a place for the demonic, that which poses dangers just by coming to know about it. Against this, the detective is a trickster figure, but the kind whose unraveling of the structures around him leads only to more unraveling, or the recognition that the project of unraveling is endless.

VII. OUT OF THE LABYRINTH

“Leave me a place underground, a labyrinth, where I can go, when I wish to turn, without eyes, without touch, in the void, to dumb stone, or the finger of shadow.”91

The Romantic Comedy and the Western revolve around fairly clear distinctions, between civilization and the forest, or civilization and the frontier. These translate into fairly clear distinctions between the legal and illegal, human law and natural law, etc. The ambivalence in these genres, especially the Western, is the ambivalence of an individual who straddles such distinctions. In Film Noir, the image of law is a maze. You don’t know what’s inside or outside, i.e., legal or illegal (or extra-legal), which is just to say that the whole notion of the legal outsider is further problematized with the inside/outside distinction itself. In feminist theory, the labyrinth has been associated with the feminine, and a certain specter of the abyss. Luce Irigaray writes, in Marine Lover of Frederick Nietzsche, “She is your labyrinth, you are hers.” But “[a] path from you to yourself is lost in her, and from her to herself is lost in you. And if one looks only for a play of mirrors in all this, does one not create the abyss?”92 The woman, the spider lady, holds out the promise of the thread to kill the Minotaur, to solve the mystery, to achieve redemption thereby. But, as I have said, there is no getting out of town. The labyrinth is also a figure of the ear, a figure of the oral, or in this case a privileging of speaking of overseeing, voice over vision. Since George Bataille and the Surrealists, the labyrinth has served to represent that which cannot be

91. PABLO NERUDA, Las Piedras del Cielo [Heaven Stones] (Maria Jacketti trans., Cross-Cultural Comm. 1992) (1970). 92. LUCE IRIGARAY, MARINE LOVER OF FRIEDRICH NIETZSCHE 73 (Gillian C. Gill trans., Columbia Univ. Press 1991).

894 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLII:869 captured in a single vision; what resists the powers of sight generally. Feminists like Irigaray link the labyrinth explicitly with the female reproductive organs, which (in her account) are experienced as dangerous and threatening because they do not fully avail themselves to view, and they disrupt stable boundaries or divisions. The questioning of vision leads to the problematic status of eyes in this genre. In Chinatown, Mrs. Mulwray’s flawed iris signifies her mystery, that about which you do not want to know. No wonder she is shot through the eye at the end of the film (specifically, the bullet enters behind her head and exits through her eyes, taking the eyeball with her). In Blade Runner, replicants are identified through an examination of their eyeballs. Appropriately, one of the replicants’ first victims is the man who manufactures eyeballs for the Tyrell Corporation, and when they finally get around to killing Mr. Tyrell himself it is by squishing in his eyeballs. Blade Runner stages the conflict between the labyrinth, the figure of withholding, and the pyramid, the figure of spectacle. The first defines the world of the street: the post-Babel world of buzzing confusion, mongrel languages, and mixed races; your typical futuristic Los Angelos nightmare in which nothing can be seen very clearly, as there is no larger perspective. The pyramid is the world of the corporation, the elevated empire in which the rulers reside. When Harrison Ford first visits Mr. Tyrell and ends up administering the eyeball test to Sean Young, the entire office has an Egyptian feel to it—a golden sarcophagus, if you will. The pyramid is the archetypal image of demonic power, the confusion of the human with the divine, driven by the wish to live forever by detaching itself from the natural realm entirely, seeking purely human ends like power. In Chinatown, John Huston’s name, Noah Cross, resonates on several levels: Noah the man of flood, or water; Noah the man whose nakedness evokes the unnatural relation of parent-child. In Blade Runner, water assumes a flood-like dimension in the incessant raining (which we can only imagine as acid rain). The pyramid in Chinatown would seem to be Los Angeles itself, the city in the desert that never ceases expanding. Here is Orson Welles, director of the Film Noir of the classic era Touch of Evil, speaking with Andrew Sarris: “I believe, thinking about my films, that they are based not so much on pursuit as a search. If we are looking for something, the labyrinth is the most favorable location for the search.”93 This strikes me as a rather bad description of Citizen Kane, which has a Chinese box dimension to it but whose conclusion renders it a little bit too linear for the labyrinth. It is a wonderful description of Film Noir as a genre, though. There is no journey to the forest or the frontier, only into the labyrinth, or around the labyrinth we are already within. In the world of the labyrinth, John Zuern writes, “the revolutionary does not free the world from tyranny by entering the

93. ANDREW SARNS, HOLLYWOOD VOICES: INTERVIEWS WITH FILM DIRECTORS, 153 (2d ed. 1971) (1968).

2009] THE LEGAL NOCTURNE 895 labyrinth and destroying the beast, but by taking the entire world into the labyrinth with him.”94 This sounds like a good description of the revolutionary dimension of Film Noir.

VIII. FILM, LAW, AND AMBIVALENCE American political culture is marked by competing conceptions of the law, or traditions of thinking about the law. At the extreme, we might call these the civic and the vigilante traditions. Both traditions can be traced back to the American Revolution. The civic tradition emerges with the prominent role of lawyers in articulating colonial grievances against the mother country. The central place of lawyers distinguishes the American Revolution from the previous century’s revolt against the monarchy in England. In America, lawyers became the “organic intellectuals” of the revolution, sociologist Michael Mann claims (borrowing the term from Gramsci).95 They developed a concept of liberty grounded in bourgeois rights of property and contract; then, with the U.S. Constitution, they entrenched these rights by establishing the rule of law as paramount. By the mid-nineteenth century, Mann writes, “law was above politics and therefore in certain senses above party democracy.” Tocqueville observed in the 1840s that the “bench and the bar” is where the “American aristocracy” is found. Mann takes this to mean that lawyers have remained as close as America has to an organic intellectual class, which is probably why the only real contribution of the United States to political philosophy has been the achievement of its constitutional structure and reflections on it in works like the Federalist Papers. It is no surprise that the emergence of political philosophy in America as a sustained endeavor, something that has only happened in the last few decades, has involved the blurring of the distinction between political philosophy and philosophy of law. (A cynic might see this as expressing the fealty of politics to law in this country.) But the centrality of the civic tradition to our politics stands alongside the odd ambivalence towards it in our popular culture, and in the popular imagination more generally. Atticus Finch and To Kill a Mockingbird loom so large in the legal imagination because he is one of the few examples of a hero rooted firmly in the civic tradition. More typically, the lawyer is someone like Newland Archer in The Age of Innocence, a privileged ineffectual fool who can never make up his mind about anything. James Stewart starts out like Newland Archer in Liberty Valance, which is why the whole point of the film is to get him away from lawyering to something more concerned with real justice. What I call the vigilante tradition begins with the popular actions against

94. JOHN ZUERN, The Communicating Labyrinth: Breton’s “La Maison d’Yves”, DADA/SURREALISM 17, 118 (1988), reprinted in ANDRÉ BRETON TODAY (Anna Balakian & Rudolf Kuorzli eds., 1989). 95. MICHAEL MANN, THE SOURCES OF SOCIAL POWER (Cambridge Univ. Press 1993).

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British authority that marked the more radical dimension of the American Revolution, but then went on to define popular culture’s ambivalent—and at times, deeply disturbing—relation to the hegemonic legal order.96 Frontier conditions invariably made the niceties of legal due process unwieldy at times; even where traveling circuit judges periodically convened courts, public fears or desires for retribution often made “people’s justice” attractive. Indeed, such popular justice could be viewed as a valued community service. The nineteenth-century historian Hubert Bancroft’s thirty-nine-volume history of the West has two entire volumes devoted to “popular tribunals” such as the San Francisco vigilante committees of the mid-nineteenth century. Popular literature, like Owen Wister’s The Virginian, expressed and promoted wide acceptance of the vigilante ideal. Presidents from Andrew Jackson to Theodore Roosevelt, as well as many U.S. senators and governors, served at one time with vigilante forces.97 To Kill a Mockingbird is interesting for how it directly stages the conflict between these traditions. The defining moment is on the courthouse porch when Atticus Finch and the civic tradition confront the mob intending to kill his client. The mob embodies what the vigilante tradition became—a tradition of lynching African Americans, or more generally subjecting them to the horrors of white popular justice, as celebrated in that landmark of American cinema, The Birth of a Nation.98 There is a variation of this in Liberty Valance, by the way, which appeared at almost exactly the same time as To Kill a Mockingird. When we first see Liberty Valance and his gang, holding up the stagecoach carrying James Stewart and tyrannizing the women passengers, they are dressed in long dusters that look like KKK cloaks, and the scarves over their mouths might easily be masks. I have always thought there is more Newland Archer in Atticus Finch than is usually recognized. After the trial concludes with his client’s conviction—and the painful “Stand up son, your father’s passing” moment—Atticus is told by the sheriff that while he was taking his client to the next town for safekeeping, the man broke loose and tried to run away. The deputy sheriff called for him to stop, and when he didn’t, the deputy tried to wound him, but missed and killed him. Atticus actually believes the story, or what is worse: the audience actually believes it. “Tom ran like a crazy man,” we are told—but where would be the sanity in not running? The vigilante tradition both explains and renders problematic the skepticism towards a law that we find in American film and American popular culture

96. See generally PHILIP DRAY, AT THE HANDS OF PERSONS UNKNOWN: THE LYNCHING OF BLACK AMERICA (2002) (discussing vigilante tradition). 97. Hobsbawm compared the different experiences of the American and Canadian frontiers. The U.S. idolized the vigilante or outlaw cowboy—John Wayne—while Canada developed the Mounties. Hobsbawm suggested that the British culture accepts a strong national government as the provider of freedom, law, and social hierarchy. In the U.S., however, freedom is seen as the adversary of the central government. 98. THE BIRTH OF A NATION (David W. Griffith 1915).

2009] THE LEGAL NOCTURNE 897 generally. The American Western most clearly engages the vigilante ideal. Perhaps the demise of the Western after the 1960s in part reflects the deep worries raised by the civil rights movement about the vigilante ideal. Romantic Comedy provides another, healthier form of this skepticism. The law must be tempered with equity, justice must be tempered with mercy and forgiveness, and the impersonal relations of law must answer to the deeply personal relations embodied in things like love. Film Noir is the hardest to place, and hence for me the most interesting. The private detective is not a true vigilante, the self-appointed agent of natural justice, but he is not a civic figure either. Perhaps he represents a third perspective on the law, whose truth we experience in the truth of these films, but whose specific philosophy remains to be articulated.