Law in the Cultural Mind

In the context of a book on the law of Star Trek, VC-guest blogger Ilya Somin comments that such projects, while perhaps entertaining, "won't help law professors overcome the invidious stereotype that we are a bunch of nerds who have no life," and wonders "if this is the most productive possible use of academic research effort."

While I understand the visceral "this is juvenile" reaction, I think there are interesting insights that such work can provide. I can't comment on Star Trek, because I've really never seen the show. But I can talk about Harry Potter. And (thanks to Volokh, as it turns out) I've read a very interesting article on law and Harry Potter, entitled: Harry Potter and the Half-Crazed Bureaucracy [Benjamin H. Barton, 104 Mich. L. Rev. __ (forthcoming May 2006)]. It's not just that they're fun to read and offer interesting new perspectives on cultural icons [debater sidenote: rumor has it that there are "Consult the Ministry of Magic" counterplans floating around the debate world. The Barton articles forms the basis of my counter-attack to such CPs--arguing basically that the MoM is an oppressive dictatorship that censors the press, tortures children, executes people without trials, holds trials (again for juveniles) without representation, has no known democratic accountability, and has blatantly institutional corruption and influence-peddling]. They also teach us about how we view our own society.

Recall that in Sci-Fi and Fantasy books, the author is creating her own world with essentially a blank slate. She could, if she wanted, do anything. But she is constrained by two major factors: a) her own imagination and b) popular prejudices, what she feels the public can conceptualize while still finding the novel accessible. It's a fine line between "alien and evocative" and "totally unrecognizable/insane." The best authors land just on the right side of that line. So, looking at these novels can inform us of our cultural horizons--what simply has to be there for us to even recognize a government as a government, a judicial system as a judicial system, a society as a society, et al. For example, J.K. Rowling still uses the language of government in her book ("Ministry of Magic"), but there is no real talk of democratic accountability or a parliament--it appears to be a technocracy. But correctly surmising that most readers couldn't really grasp the idea of a shadowy guild running a modern European country without even pretending to be a state, she uses governmental rhetoric even thought that isn't really descriptive of what's going on in the books.

Furthermore, I'd argue that even beyond the issue of horizons, analysis of law and other such things in the popular realm can be a canary for how the people view law (an entity that, remember, most people only have a vague grasp of). Barton argues that Rowling's depiction of government in HP is a plea for libertarianism--the sometimes incompetent/sometimes oppressive government is nearly always placed in opposition to the heroic, rule-breaking individuals. Obviously, I don't think that HP will cause a massive libertarian brain-washing amongst its readers. Nor do I think people are buying HP because they are pre-disposed to libertarianism. But I do think that the fact that so many people are buying these books shows that they find the metanarrative contained within recognizable and not viscerally objectionable--it isn't beyond their consciousness. If we accept that analysis, then figuring out these books are saying becomes vital--it offers compelling insights into the national psyche and predictions about where law (or at least the popular conceptions thereof) might be going.