The Philosophy of Michael Mann

The Commodification of Justice

181 the CoMModIfICAtIon of JustICe Michael Mann and Postmodern Law Mark Wildermuth The significance of the postmodern milieu for Michael Mann has been established by such studies as Steven Sanders’s “Sunshine Noir: Postmodernism and Miami Vice,” Steven Rybin’s The Cinema of Michael Mann, and my book Blood in the Moonlight: Michael Mann and Information Age Cinema.1 Mann’s fascination with the contingent nature of knowledge, the breakdown of ethical norms, and the impact of information technologies on contemporary life are hallmarks of his focus on postmodernity, which lends philosophical depth and sophistication to his works in television and the cinema. In this essay, I focus on Mann’s interest in legalism in the postmodern milieu as a means of describing his films’ rhetorical stance and their implicit critique of contemporary culture. His televisual and cinematic works show concern for the collapse of collective social action under the influence, in part, of a modern legal system that commodifies the idea of justice and thereby ensures that the law serves mainly the violently acquisitive members of society at the top of the economic hierarchy. Mann shows strong affinities for the postmodern critique of law exemplified by the critical legal studies movement, Jean Baudrillard’s philosophy, and developments in leftist legal critiques after the terrorist attacks of September 11, 2001. For Mann, contemporary law becomes another coercive force in today’s informationbased culture for controlling human identity and corrupting human society in late-capitalist America. Using representations of collectivist, egalitarian, precapitalist tribal law and their modern cultural analogues, as a contrast with today’s legalism, he establishes norms for collective social action that may challenge this global legalistic terrorism on the local level—though only temporarily and with limited results. With analysis of select films such as The Last of the Mohicans (1992) and Collateral (2004) as well as episodes from 182 Mark Wildermuth the 1980s television shows Mann produced, Crime Story (1986–1988) and Miami Vice (1984–1989), I hope to show how Mann’s oeuvre raises important questions about the negative effects of today’s legalism and whether viable means still exist for resisting this coercive cultural force. Mann uses contract law and its association with the social contract as a major motif for exploring the collapse of societal collective norms and their replacement with oppressive legalistic agencies. Backgrounds to Legal Theory As critics such as Steven Connor have shown, postmodern legal theory is best understood as a response to issues raised by modernist legal theory with antecedents in the eighteenth, nineteenth, and twentieth centuries.2 Theories such as positivism, formalism, and realism, as Anthony Sebok has shown, struggled with the issue of determinism and law. Specifically, to what degree is law based on purely deductive, objective legal principles that have no basis in empirical, inductive modes of proceeding and can thereby allow the law to be contaminated by subjective value judgments?3 In short, to what degree can a judge exercise discretion in making a judgment without subverting legal protocol and procedures? As Sebok argues, early positivism, going all the way back to Jeremy Bentham in the eighteenth century, indicated that law and morality should be separated, that law should be deductive, and that its only base of authority is in the sovereign—even if the sovereign will might be represented by the collective will of the people in a kind of legal and societal contract.4 Realists and even later proponents of formalism and positivism came to question the deductive and mechanical nature of this philosophy, while still recognizing that the possible result of not following the original positivist norm might be laws and legal decisions that would be inconsistent and full of contradictions. As James Boyle says, some realists eventually came to accept these contradictions and ambiguities as part of the milieu whereby laws are tested, made, and established. Stanley Fish’s pragmatic school would later make the same argument and insist that this ambiguity was part of the natural order of things in law.5 But in the 1970s and 1980s, the critical legal studies (CLS) movement took issue with such stances under the influence of Marxist theories of law as well as structuralist and deconstructive postmodern philosophy. All of these philosophies pointed to the sinister implications of these contradic- The Commodification of Justice 183 tions in the law within the context of a growing cultural studies movement that would insist that...