Unpopular Cultures: The Birth of Law and Popular Culture, and: Bertolt Brecht and Critical Theory: Marxism, Modernity and the Threepenny Lawsuit
Click for larger view
View full resolution
The two books under review here reflect the growing interest in law in literary and cultural studies, an interest that is becoming noticeable in performance studies as well. 1 Within literary, cultural, and performance studies, the interest in law often crystallizes around the legal status of cultural texts and questions of representation. Both Steve Redhead’s Unpopular Cultures and Steve Giles’s Bertolt Brecht and Critical Theory reflect this approach, and both focus largely on issues arising from the field of entertainment. Redhead draws his examples broadly from popular music, sports, and literature, while Giles focuses on a particular text, Bertolt Brecht’s Der Dreigroschenoperprozeß, which arose from a clash among legal, artistic, and ideological interests against the backdrop of technological change and the emergence of the film industry in the 1930s—a decisive historical moment in the determination of our current mediatized cultural landscape.
Redhead describes Unpopular Cultures: The Birth of Law and Popular Culture as: “Part autobiography, part commentary on its own construction, part reference book for students on a variety of humanities and social science courses, part series of book reviews...” (100). The book is all of those things, especially the latter, and also a kind of manifesto for a field of study Redhead calls “Law and Popular Culture”; the final chapter is essentially an advertisement for the Manchester Institute for Popular Culture at Manchester Metropolitan University in the United Kingdom, of which Redhead is Joint Director.
Redhead discovers the origins of Law and Popular Culture in both legal studies and cultural studies. He identifies critical legal studies, as practiced differently in the U.S. and the U.K., as one of the important contexts for studying the relationship between law and popular culture, since the critical legal studies movement countered the traditional positivist approach to the study of law by emphasizing both the textual and the contextual: the nature of law itself as a text and the cultural and social contexts of the law. As Redhead notes, however, critical legal studies took little notice of popular culture as a site of analysis. On the cultural studies side, Redhead makes the very interesting argument that among the formative influences on British cultural studies were scholars focusing on the sociology of deviant behaviors in youth subcultures (e.g., racism and football hooliganism). These scholars provided cultural studies with a basis in criminology and a focus on youth culture. “It is sociology of deviance [...] which put the ‘popular’ into cultural studies by reintroducing the focus on the social reaction to the act of rule breaking, or transgression” (39). [End Page 196]
The centerpiece of Redhead’s book is a longish chapter entitled “The Law of Art and the Art of the Law” that provides a useful overview of some of the areas in which the study of law and that of popular culture intersect. He begins with a discussion of copyright law; the difficulties new technologies of reproduction—first photography, then film—created for the concept of the ownership of cultural objects and images; and the differences in how this issue has been addressed in copyright regimes, such as those of the U.S. and U.K., versus moral rights regimes, such as France. A survey of the issues of ownership provoked more recently by the practice of digital sampling in popular music leads to a discussion of some of the challenges digital technologies pose for legal concepts of ownership, privacy, and free expression. Obscenity and censorship, especially of rap music, constitute a major topic here. Anyone who is familiar with these issues and the ways in which they have been written about will find nothing new or surprising in this chapter. Nevertheless, Redhead’s pithy and highly accessible writing style makes it a good starting point for those who are not already acquainted with this area of discussion and a fine refresher course for those who are.
Having surveyed some of the connections between law and popular culture that grew out of the sociology of deviance and cultural studies in the 1960s and 1970s, and critical legal studies in the 1980s, Redhead turns his hand to a critique of attempts at developing a postmodernist jurisprudence in the 1980s and 1990s. Redhead finds little of merit in this discourse, which he characterizes as poststructuralist rather than postmodernist. He does, however, see value in poststructuralism’s psychoanalytic turn: “Where post-structuralist writings on law have moved on to a terrain which could be important and fruitful is when trying to theorise ‘desire’ and particularly the complex and fraught field of legal desire or ‘the desire of the law’ [...]” (82). It is in this fascinating context that Redhead is most ambitious. He calls for both an aesthetics and an erotics of law, defining the latter as “the sexualization of law, the way in which law itself becomes desired, seduced and consumed” (111), noting that, “The love of law is not necessarily a heterosexual one; a ‘queer law’ is just as possible [...]” (83).
The definition of an erotics of law that I just quoted comes from an entertaining glossary of terms that forms an appendix to the book. It is unfortunate, and very disappointing, that there is no sustained discussion of this concept in the main text. The chapter that purports to explore this idea further is in fact a survey of novels focusing on youth culture ranging from the 1950s to the present. Redhead argues there that formal academic study of youth culture, whether sociology or cultural studies, is seldom able to keep up with the rapid pace at which popular culture develops. Therefore, the best way of getting a sense of what’s going in youth subcultures and their relationship to law, as well as a sense of how these things are represented, is by reading novels, themselves products of the popular culture being studied. Redhead has a point—I have frequently been frustrated at how far behind current reality the published scholarship in popular music always seems to be, for instance. Redhead’s chapter on youth novels is certainly interesting in its own right, but it does not at all fulfill his promise of developing an erotics of law and exploring its possibilities in terms of queer theory. Redhead’s well-informed yet informal prose makes Unpopular Cultures a true pleasure to read, but I can’t help thinking that this very brief book should have been expanded with further development and explication of Redhead’s most provocative ideas.
In Bertolt Brecht and Critical Theory, Steve Giles focuses on Der Dreigroschenoperprozeß (1932), Brecht’s seldom-discussed account of the lawsuit surrounding the film version of The Threepenny Opera. Brecht sued the Nero film company, which had undertaken to make a film adaptation of Brecht’s [End Page 197] play from a screenplay to be written by Brecht and his associates. Brecht proved somewhat recalcitrant in his work on the screenplay, and the film company ultimately fired Brecht and proceeded to make the film without him. “Although Brecht lost the subsequent court case, the experiences which he garnered through his confrontation with the Nero film company afforded him new insight into the structure of cultural production in contemporary capitalist society” (13). Giles’s project is to explicate Brecht’s insights through a close reading of Der Dreigroschenprozeß that places Brecht’s critical theory in the context of German thought of the 1930s.
In his first two chapters, Giles offers a detailed account of the trial, contemporary reaction to it, and Brecht’s own analysis of it. Giles brings out that the case against Brecht took place in a context of technological change. Whereas standard contractual arrangements between authors and producers worked well for the theatre, those arrangements were not clearly suited to the new technological and economic environment of film production, in which the final product could be said to belong to the director more than the author and in which the production company had an enormous investment at risk. The result was that screenwriters, including Brecht, were found to have fewer rights over the productions generated from their efforts than playwrights had enjoyed. (Redhead addresses similar issues of artists’ contractual rights in an industrial capitalist economy as they pertain to popular music.) Giles points out that Brecht’s own response was self-serving, that his critique of capital’s depriving the author of the moral right to control his work is undercut by “his zeal to benefit from the petty bourgeois reality of royalties” (48). On a more theoretical level, the experience of the trial caused Brecht to analyze implicit notions of the law and to conclude that whereas classical bourgeois ideology included an idealistic notion of Justice and Law, contemporary bourgeois practice was informed by the profit motive rather than idealism (53).
In the next section of the book, Giles discusses Brecht’s sociology in Der Dreigroschenoperprozeß, tracing the influence of the social behaviorist Otto Neurath and the iconoclastic Marxist Karl Korsch on Brecht. He concludes that these twin influences inform Brecht in contradictory ways that render Brecht’s epistemology hopelessly confused, especially concerning the crucial question of dialectic: “Is dialectic merely a mode of cognition, or is it ontologically real?” (106).
Two more chapters trace the influence of Brecht’s thought at the time of Der Dreigroschenoperprozeß on Walter Benjamin’s celebrated essay “The Work of Art in the Age of Mechanical Reproduction” (1936). In addition to pointing out specific passages that reflect Brecht’s influence, Giles offers a very interesting analysis of how Benjamin altered that essay from its second to its third, and best-known, version, partly in response to Theodor Adorno’s criticisms. In Giles’s view, Benjamin emphasized Brechtian materialism in responding to Adorno’s critique in his revision, even as he downplayed the potentially revolutionary aspects of the cultural situation he described. In a chapter comparing Brecht’s ideas on art and politics in Der Dreigroschenoperprozeß and Benjamin’s in “The Work of Art in the Age of Mechanical Reproduction,” Giles indicates that whereas Brecht is concerned with these issues primarily from the point of view of artistic production, Benjamin views them primarily from the perspective of audience reception.
In his final chapter, Giles takes up the question of Brecht’s relationship to postmodernism. Although the chapter ends on an unresolved note, with questions posed and left hanging, Giles seems to imply that while Brecht may appear to share some ideas with poststructuralists and postmodernists, his project is better understood as a radical, materialist modernism than a postmodernism. [End Page 198]
Bertolt Brecht and Critical Theory covers interesting ground and offers a perspective on a moment in Brecht’s thought through one of his under-discussed works. The structure of the book is not altogether satisfactory, however. Giles moves abruptly from subject to subject with no transitions, and ignores many opportunities to refer back to subjects broached earlier to make further comparisons and expand upon previous discussion. Another difficulty with the book is that all German quotations are rendered only in their original language. While this is a reasonable choice for a German language scholar like Giles, it will frustrate those who do not read German. Finally, the book is lacking in editorial finesse: there is no index, and the prevalence of hyphens where none should be suggests a careless use of desktop publishing software that is ironic in the context of the concern with the relationship between technology and textuality that is central to both of the books discussed here.
Philip Auslander, a Contributing Editor of TDR, is Associate Professor in the School of Literature, Communication, and Culture of Georgia Tech, where he directs the graduate program in Information Design and Technology. He is the author of Presence and Resistance: Postmodernism and Cultural Politics in Contemporary American Performance (University of Michigan Press, 1992) and From Acting to Performance (Routledge, 1997). His newest book is Liveness: Performance in a Mediatized Culture (Routledge, 1999).
1. For examples of the intersection of performance studies and legal studies that focus on representations of race, see Roach (1996) and Robinson (1996). For examples of legal scholarship employing performance as its central analytical concept, see Hibbitts (1992, 1995). My own work in this area reads “black letter” law, especially intellectual property and evidence law, through a hermeneutic of performance; see Auslander (1997). I also organized a seminar entitled “Performance and the Rule of Law” for the annual meeting of the American Society for Theatre Research in November of 1998.
1997 “Legally Live: Performance In/Of the Law.” TDR 41, 2 (T154):9–29.
1992 “‘Coming to Our Senses’: Communication and Legal Expression in Performance Cultures.” Emory Law Journal 41:873–960.
1996 “Kinship, Intelligence, and Memory as Improvisation: Culture and Performance in New Orleans.” In Performance and Cultural Politics, edited by Elin Diamond, 219–36. London and New York: Routledge.
1996 “Forms of Appearance of Value: Homer Plessy and the Politics of Privacy.” In Performance and Cultural Politics, edited by Elin Diamond, 237–61. London and New York: Routledge.