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University of Technology Sydney Law Research Series |
Last Updated: 25 September 2017
KILLING TO SURVIVE: THE WALKING DEAD, POLICE SLAYINGS AND MEDIEVAL MALICE
Penny Crofts
University of Technology Sydney,
Faculty of Law, Australia
Email: penny.crofts@uts.edu.au
ABSTRACT
Fatal
police shootings in the United States of America have generated much media and
academic comment. These shootings fit within
the historical common law category
of homicides under compulsion and in practice rarely result in prosecutions and
even less convictions.
This article considers the laws of compulsion through the
prism of early common law and slayings for survival in the horror series
The
Walking Dead. Contemporary accounts of justifiable homicide sustain early
common law attempts to balance the need for authorized force to enforce
the law
against the protection of citizens from arbitrary force. Contemporary law
focuses on whether or not the decision to use force
was reasonable, but The
Walking Dead depicts the narrowness of this question of culpability. The
moral difference in slayings is not only whether a law enforcement
officer’s
decision to use force was reasonable, but whether or not the
slayer desired to kill and was acting for a public or personal purpose.
The
Walking Dead also raises questions about the aspirations of the contemporary
justice system. It portrays the medieval conception that the slayer
and the
community in which they live would be tainted by a homicide – whether
excused or felonious. In medieval times, the
process of justice was relied upon
to remove the taint of a slaying from the community. The Walking Dead
represents the thinness of contemporary accounts of compulsion and acts out
early common law conceptions of malice.
KEYWORDS
Police
shootings
Justifiable homicide
Medieval law
Malice
Common
law
Law and culture
Fatal police shootings in the United
States have generated much media and academic comment. This has included
examination of the sheer
number of
slayings,[1] the perceived used of
excessive force,[2] particularly
against unarmed victims,[3] who are
disproportionately African-American
males,[4] and the relative lack of
prosecutions and even less convictions. This article explores police shootings
through an analysis of compulsion
defenses. These defenses are interlinked
around the notion that a slayer was compelled by law and/or circumstances, and
thus the
slaying should be justified or excused. This article contributes to a
jurisprudence of blaming through an analysis of the models
of culpability or
wickedness represented in early common law and contemporary American criminal
legal doctrine and the horror series
The Walking Dead. Both criminal
legal doctrine and horror engage with the question of what it means to be wicked
or culpable, and as a partner conception,
what it means to be human. Law
transmits or constitutes individual subjectivities and authorizes specific forms
of individual identity
through techniques such as ritual, symbol, physical force
and textual account. The Walking Dead raises questions about the adequacy
of these conceptions of the legal subject and authority. In a post-apocalyptic
world, what are
good and bad responses? If we place survival as a central value,
do we lose notions of right and wrong? With the collapse of the
state how do
communities and leaders establish, enforce and legitimate law? Do we fear
zombies not just because of the potential
for infection, but because they are
us if we let ourselves go – soulless vessels of pure appetite? If, as
Weisberg and Binder recommend in Literary Criticisms of Law, we
should evaluate law not for how well it represents us, but for who it enables us
to become, what conceptions of humanity and the
state are enabled in legal
doctrine in response to extreme threats – whether against the person or
the state?[5]
This article
analyses legal compulsion defenses through an analysis of slayings by characters
who are (former) police officers in
The Walking Dead and a resuscitation
of early common law conceptions of slayings for justice and in self-defense.
Every criminal legal system that
imposes punishment must authorize the use of
force to enforce laws.[6] Excessive
force imposed to protect or enforce order undermines the legitimacy and
authority of the democratic state upon which that
authorization rests. The early
common law grappled with boundaries but clearly articulated and organized the
justification of slayings
for justice around a broad conception of malice that
included moral and social elements. This article argues first that contemporary
legal accounts of slayings by police officers leave unresolved issues that were
raised in early common law about the potential for
representatives of the state
to act with malice. Contemporary accounts focus on whether a law
enforcer’s decision to use force
was
reasonable.[7] However, The Walking
Dead depicts the narrowness of this question of culpability. An essential
moral difference in slayings is not only whether a law enforcer’s
decision
to use force was reasonable, but whether or not the slayer desired to kill, and
whether the slayer was acting for personal
interest or out of duty to the
public. It is argued that contemporary accounts provide only a very narrow
account of the potential
culpability of law enforcers who fatally slay. The
Walking Dead explores questions around the authorization of violence, and
the way (excessive) force exercised for personal reasons may undermine
legitimacy and authority. Second, The Walking Dead raises questions
about the aspirations of the contemporary criminal justice system by
illustrating the medieval conception that a
person and the community in which
they lived would be tainted by a slaying – they would literally have
“blood on their
hands”. In medieval times the process of justice was
relied upon to remove the taint of an unnatural slaying from the individual
and
the community, and to bring the community back to concord. The Walking
Dead represents the thinness of contemporary accounts of slayings by and for
justice and demonstrates medieval conceptions of malice.
1. Horror, Self-Defense and Culpability
The notion of studying compulsion defenses through
the prism of The Walking Dead is part of a larger legal cultural studies
project of examining popular culture for how it reflects and expresses
assumptions, values
and wishes for and about the legal system.
[8] One strand of the law and culture
movement conceptualizes the cultural domain as a productive supplement to the
narrowness and restrictiveness
of law. Legal attributions of blameworthiness
require a translation of the messiness and particularity of experience, emotion,
action
and interaction into pre-existing abstract formulae of law. It derives
its intelligibility as much from what it fails to register
as what it does
register.[8] Feigenson has argued
jurors import this ‘messiness’ into their legal decision-making.
Their approaches to legal blaming
are multidimensional, shaped not only by legal
rules, expert rationales, the facts of the case, but also common
sense.[9] Feigenson has explored the
ways in which common sense is various and contradictory, and may include juror
habits and beliefs to view
cases as personality driven melodrama, constructed
through understandings of cultural norms. He argues that in their quest for
‘total
justice’ jurors may take into account information and ideas
that go beyond the limited formulae of the law. On this account,
we can turn to
the cultural domain to provide insight into conceptualizations of culpability as
it provides a forum to explore the
excesses that the law omits and may also
contribute to decisions about
blameworthiness.[10]
Horror
fiction can provide a supplement to criminal legal formulae and categories. Both
horror and criminal law represent and construct
formulae by which to explore,
represent and analyze culpability, established and developed through rules and
precedents. There are
many subgenres within the horror
genre,[11] but overall the genre is
heavily dependent upon rules that are already known to fans and subject to
development, challenge and/or
disruption. For example, the rules of the genre
specify that zombies (or ‘walkers’ as they are termed in The
Walking Dead), eat brains and can only be killed by destruction of their
brain stem. Both criminal law and horror are constructed around rules
and their
transgression. The horror genre is particularly associated with
monsters,[12] and the category of
monster also existed at common
law.[13] Central to the construction
of monsters is the transgression of border – a disturbance of the
“natural order”.[14] The
specific nature of the border may change from film to film, and from society to
society, but the function of the monstrous remains
the same: “to bring
about an encounter between the symbolic order and that which threatens its
stability”.[15] The monstrous
is produced at the borders.[16]
Monsters pose a threat to the categorical structures of law and
humanity.[17] In The Walking Dead
it is the border between the living and the dead – which in turn
challenges other borders – such as those distinguishing
between good and
evil, human and inhuman.
A key theme of horror is that transgression
undermines identity, system and order. Monsters generate fear and fascination
because
of their potential to challenge our cherished borders. Monsters are both
polluted and polluting.[18] Horror
exemplifies and explores these themes of pollution through monsters that either
kill or infect those they come in contact
with. In The Walking Dead a
bite from one of the ‘walkers’ results in a person becoming a walker
themselves (unless the infected limb is amputated
immediately). The horror genre
explores the infection and disruption of the monstrous further by interrogating
what characters will
do to survive and whether their actions transform and
infect them. What aspects of humanity and civilization survive our quest for
survival? The Walking Dead is described by its makers as ‘a
survivalist story at its
core’.[19] This article will
focus on a model of survival and authority articulated in criminal law –
that of compulsion – and how
this model is depicted in The Walking
Dead. What conception of humanity and authority is enabled in legal doctrine
in the exercise of fatal force by and for justice?
2. Survival in The Walking Dead and at law
AMC’s The Walking Dead was developed by
Frank Darabont based on the graphic novel series by Robert Kirkman. The
Walking Dead premiered on October 31, 2010 in the United States and has the
highest total viewership of any series in cable television
history.[20] In the United States,
total viewership for its season five premiere was 17.3 million, making it the
most-watched series episode in
cable
history.[21] The series has been
nominated and has won a variety of different awards, including Golden Globe
Award, Directors Guild of America
Award, Primetime Emmy Award, Critics’
Choice Television Award, and a Saturn Award. The series has been renewed for an
eighth
season and has been described as an ‘epic survival adventure
series’.[22] The series
depicts a post-apocalyptic world overrun by walkers. The primary focus of the
series is upon the survivors, those who
are not infected, and what they do to
survive. The main story arc in the first two seasons revolves around a love
triangle between
Rick, his wife Lori, and his best friend Shane. The story
begins with Deputies Rick Grimes and Shane Walsh laying down road spikes
during
a car chase occupied by armed criminals who had fired upon and wounded another
police officer. After the car rolls, the first
suspect exits the car with a gun
raised, and is shot dead by many police officers. A second suspect gets out of
the car shooting
and he too is shot dead. All the officers believe the threat is
over, but a third suspect gets out of the car and shoots Rick in
the back. Shane
kills the last suspect. The series thus begins with a story about officers under
imminent lethal threat, responding
with fatal force. Rick wakes from a coma in
an abandoned hospital to discover that the world has been overtaken by a zombie
epidemic.
He embarks on a quest to find his wife Lori and son Carl. Whilst he
was in a coma his best friend and police partner Shane has fallen
in love with
and consummated a relationship with Lori.
The walkers are very much a
background to the story of the survivors. They serve a narrative function of
providing an on-going threat
of safety that causes survivors to form a community
of fear.[23] The walkers provide an
opportunity to consider what it is that makes us human, in part through stark
comparison. Walkers are untrammelled
appetite, their raison d’être
is to consume, they have no memories and lack any connection with their
past.[24] The survivors react
differently to the walkers – ranging from hedonistic to respectful
slayings and keeping the walkers as
playthings. Some characters keep particular
walkers, either because they were previously family members or as camouflage
from other
walkers.[25] The series
does not proffer judgment of how survivors treat walkers, except in the form of
rough justice – those who fail to
resolve walkers are punished by being
bitten or losing those they
love.[26] This idea of a lack of any
culpability for the slayings of walkers is consistent with the common law of
homicide – which required
and requires the killing of a living human
being. Ultimately, the walkers are not particularly interesting – they are
unreasoning,
unfeeling, and lack any development or
connection.[27]
The series is
much more interested in relationships between fellow survivors and the nature of
the post-apocalyptic world they live
in and create. Hobbes envisioned a world
where life is nasty, brutish and short as a foundation for social contract
theory.[28] In contrast, horror
films depict a regression away from law and civilization and explore the
question of what is left? Much of horror
fiction is concerned with a stripping
away of the veneer of civilization and asks what would a person not/do to
survive? What rules
or boundaries remain in a post-apocalyptic
world?[29]
This article
focuses on the deteriorating relationship between the two police officers Rick
and his former best friend and partner
Shane and how their portrayal as
characters sheds light on rules of compulsion. Throughout the first two series,
the relationship
between Rick and Shane has deteriorated. Shane has adopted
increasingly instrumental approaches to survival which have gradually
expressed
(or changed) his character. To save himself, Shane cut the leg of another man,
Otis, so that Shane could escape, leaving
Otis to be eaten by walkers, despite
Otis having saved Shane’s life twice already. Shane returned to the other
survivors with
medicines essential to Carl’s survival, claiming that Otis
had been killed by walkers. Upon his return Shane shaved off his
hair and
increasingly challenged Rick’s authority, almost killing him several
times.[30] Shane increasingly
asserts an ideology of doing “whatever it takes” to survive, with a
primary focus on Lori who is now
pregnant with either Shane or Rick’s
baby. The final trigger is an argument between Shane and Rick over whether or
not a teenage
boy, Randall, should be killed off to protect their own group,
with Rick opposing and then delaying the slaying. Shane then took
Randall anyway
and killed him and then pretended that he had escaped. Rick walked with Shane to
find Randall, with Shane claiming
to track him. The scene is suspenseful and
lasts more than 5 minutes.
Rick: You going to kill me in cold blood? You won’t be able to live with this.
Shane: I thought you weren’t the good guy anymore.
Rick: You’re going to have kill an unarmed man.
Rick hands Shane his gun and insists Shane does too.
Rick: There’s still a way back from here...
It looks as though the danger has passed, but then Rick shoots Shane with a
concealed gun.
The shooting is witnessed by Rick’s son Carl. Carl then
raises his gun, and it seems as though he is going to shoot Rick, but
instead
Carl shoots Shane in the head, who has reanimated as a walker. Behind Rick are
hundreds of walkers, a “herd”,
coming up the hill towards the
survivors in an apocalyptic scene.
Contemporary law would consider the
slayings by Rick and Shane under the broad category of compulsion defenses
– this includes
self-defense, duress and
necessity.[31] The essence of this
category of defenses is that the actions of the accused can be justified or
excused because they were compelled
by another or by extraordinary
circumstances.[32] Rick and
Shane’s actions could be characterized as self-defense. Self-defense is
articulated as justifying a resort to force
where a person (or property) has
been threatened by another:
[T]he use of force upon or toward another person is justifiable when the
actor believes that such force is immediately necessary for
the purpose of
protecting himself against the use of unlawful force by such other person on the
present occasion.[33]
These
classic modern formulations of the defense of self-defense ask a subjective
question of whether or not the slayer felt fear,
and an objective question of
whether or not the slayers response was reasonable in the circumstances as she
or he believed them to
be.
However, Rick and Shane’s actions can
also be examined and considered through the lens of justifiable force by and for
law enforcement.
As former police officers, both Rick and Shane are killers
trained and authorized by the state. Throughout the first two series,
Rick
retains his identity as a police officer. He keeps his police uniform on and
part of his authority as leader stems from his
(former) official position as a
law enforcement agent. Although in The Walking Dead the state has
collapsed, Rick’s actions can be understood under law’s
authorization of force by and for law enforcement.
Like self-defense, this
justification of (fatal) force is within the category of compulsion defenses.
The difference is that the
killer claims that he or she was compelled by the
state, rather than personal reasons. Any legal system that imposes punishment
must
authorize and legitimize
force[34] – not only for the
imposition of punishment but also to ensure that wrongdoers are brought before
the legal system –
resulting in powers of arrest and apprehension of
felons. This is demonstrated in Graham v Connor, in which the court held
that the right to make an arrest “necessarily carries with it the right to
use some degree of physical
coercion or threat thereof to effect
it.”[35] However, the law also
articulates and imposes limits upon this use of force, such as
“reasonableness” of the decision
to use force.
The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split second judgments
– in
circumstances that are tense, uncertain and rapidly evolving – about the
amount of force that is necessary in a
particular
situation.[36]
Both Rick and
Shane believe that their slayings are necessary in the circumstances, and
in a zombie apocalypse, it is arguable that their actions would be reasonable.
However, in The Walking Dead, Rick remains a hero, whereas Shane
increasingly takes on a villain
role.[37] How and why does Rick
continue to be portrayed as heroic despite his slaying of Shane (and others), in
circumstances where he is
not responding to an immediate threat –
especially when Rick takes preemptive action?
Rick’s action can be
analyzed through early common law structures of compulsion defenses. This
highlights commonalities with
contemporary law – in particular – the
struggle to balance the protection of the rights of the individual against
violence
and the needs of the state to authorize violence to enforce the law.
This analysis also demonstrates that questions that were explicit
in early
common law have been submerged in contemporary law. I will argue firstly that
early common law put malice at the center
of an account of homicides, and this
broad conception interrogated the reluctance to slay and whether or not it was
done in obedience
to the sovereign. It thus included not only moral and
spiritual aspects but political – whether or not the slayer was acting
consistently with the public order. Second, The Walking Dead resuscitates
the medieval conception of tainting for a slaying and raises questions about the
implications and adequacy of the contemporary
criminal legal system’s
response (or lack thereof) to police slayings.
3. Reluctance to slay and obedience to the sovereign
In early common law, malice played a key role in
slayings and early conceptions of what we would now regard in the broad category
of compulsion. From 1200-1600 the law of homicide was bifurcated, with a broad
category of felonious homicide and very narrow category
of non-felonious
homicide. From the late 12th century, felonious homicide was a single, undivided
offence and was defined as slaying
with malice, expressed in Latin in various
permutations such as malitia, malitia praecogitata or malitia
purpense. All felonious homicides were made capital offences, a punishment
that could only be escaped through the sovereign’s discretionary
pardon of
grace. Non felonious slayings were those committed with an absence of malice
– ex malitia praecogitata or non per malitiam (or
feloniam) ex cogitatam. There were two categories of non-felonious
homicide: justifiable and excusable
homicide.[38] What constituted
justifiable homicides varied between the 13th and 16th
centuries,[39] and included
executions pursuant to a royal order, the ancient practice of killing thieves in
the act of escape,[40] outlaws
resisting capture, and would be burglars and
robbers.[41] Whilst treatise writers
teased out the parameters of these types of slayings, the common requirement was
that they were slayings
in advancement of
justice.[42] Slayers deemed
justified were acquitted by the courts and were not required to forfeit
property.
Excusable homicides did not become firmly established until
the 13th century and were divided into accidental killings (homicide per
infortunium) and homicide in self-defense (homicide se defendendo).
Unlike slayings for justice, excusable homicide did not lead to outright
acquittal. Rather, the slayer was required to obtain a
royal pardon, which
absolved him of the liability to royal suit, but left open the right of the
victim’s kin to prosecute or
appeal.[43]
Treatise writers
such as Hale, Foster and Blackstone included their analysis of justifiable
slayings in the advancement of justice
in their chapters on homicide. This was
because they considered that it was possible for slayings committed by those
enforcing the
law to be unlawful and possibly even murder. The central issue in
determining whether or not a homicide was felonious was whether
it was
accompanied by malice. In early common law, malice went beyond the contemporary
emphasis upon intentional wrongdoing to a
broader conception of wickedness.
Foster defined malice as:
Hath been attended by such circumstances as carry in them the plain
indications of a heart regardless of social duty and fatally bent
upon
mischief.[44]
I have argued
elsewhere that emotions were particularly relevant to the structure of
justifiable and excusable homicides and
slayings.[45] In both slayings for
justice and those in self-defense the accused intentionally killed, but medieval
law required that the defendant
had not acted out of desire, but under
compulsion. In self-defense cases, the excuse had been judicially formulated to
include only
acts of last resort, undertaken by persons who could not otherwise
save their own lives. Jury verdicts soon came to include a formulistic
response
that the defendant “could not otherwise have escaped death”
(recorded on the rolls aliter mortem suam non evadere potuit). Nearly
every act of self-defense was said by the jury to have been undertaken by a
cornered defendant; ditches, walls, and hedges
had constrained fleeing
defendants at every turn.[46] The
structure of self-defense thus required that a defendant was not acting due to
desire, but under compulsion. His or her back
was to the wall.
This
notion of malice expressed as emotion was also apparent in the rules of slayings
by and for justice. Bracton stated that when
an official executed a condemned
man, even this killing may be a sin if either judge or executioner “acted
out of malice or
from pleasure in the shedding of human
blood.”[47] An execution was
required to be done pursuant to the judgment:
Judgment to be hang’d, Sheriff beheads him,
Felony.[48]
If a sheriff
exercised choice in the method of execution, this suggested that he was not
acting under compulsion, but through his
own desire, and thus lacked a pure
heart. Slayings for justice did not (and do not) require retreat. Both justified
homicides and
slayings in self-defense demonstrate the intertwining of act and
emotion in attributions of malitiam. Where an actor was compelled by law
or circumstances to kill, he or she acted intentionally but without desire. The
accused did
not want to kill, and thus acted with a pure heart. External
circumstances such as whether or not their back was to the wall or how
a sheriff
went about executing a felon were drawn upon as indicia of the state of the
accused’s soul.
This article extends my previous arguments about
malice to include not only a personal, emotional element but also an element of
social
duty and obedience – indicated by Foster’s definition of
malice as a “heart regardless of social
duty”.[49] This definition of
malice emphasized not only the moral and spiritual dimension of the common law
of homicide, but also its social
and political dimension. The common law of
crimes enforced the royal peace, a monopoly on the authorization of public
violence: “the
jealousy with which the law watcheth over the publick
tranquility (a laudable jealousy it
is)”.[50] All felonies were
also trespasses, manifest breaches of the “public tranquility”.
Felonies were literally disorderly,
they were breaches of the sovereign’s
order. Thus the early requirements of “retreat” or “back to
the wall”
in self-defense can be interpreted not only in the emotional
sense as a reluctance to slay, but a political sense of an expression
of
obedience to the sovereign and the obligation not to defy the royal command by
exercising violence. Law enforcement was the only
true justification for
violence because it bespoke royal authorization. This also explains why only
some slayings in self-defense
were justified rather than excused. Private
citizens could stand their ground and use deadly force to defend against
“forcible
and atrocious” crimes – defending their property
against burglary and robbery, as all citizens had the power and duty
to prevent
an atrocious felony. But Hale asserted that this power did not extend to
defending one’s own life when it could
be saved by
flight.[51] Self-defense was subject
to limitations in the interest of preserving the peace and order of the
sovereign.
For Hale, the key difference between justified and excused
homicides was that the former were for a public nature, and those that
were
excused were for a private nature. Violence was only authorized if it was in
accordance with social duty – to protect
the sovereign’s peace and
order. Government authority was delegated only to preserve public the
peace.[52] Hale justified this in
pragmatic terms under the chapter title “Concerning the taking away of the
life of man by the course
of law, or in execution of justice”:
Not only an act of necessity, but of duty, not only excusable, but
commendable, where the law requires it... ought not to be numbered
in the rank
of crimes, without which there would be no
living.[53]
This recognized the
inherent need of a legal system to authorize force but only in a limited set of
circumstances, otherwise the
exercise of force was itself disorderly, and would
undermine the purposes and legitimacy of the authorization in the first place
– the preservation of the peace and order of the sovereign.
Foster’s broad definition of malice as “the heart regardless
of social duty” evokes the imbrication of an emotional
and social account
of culpability. The assumption underlying homicides due to compulsion was that
an actor had been compelled through
necessity, whether by circumstances or law,
rather than desire, to (execute or) kill the victim. Malice clearly exceeded a
cognitive
account of culpability. The question was not whether an accused
intentionally killed the victim. In fact, the formulae assumed an
intention to
kill, as demonstrated in executions, where an argument of lack of intention
would be farcical. Rather, the question
was whether or not an accused was
compelled – by law, circumstances, or an outlaw – to kill. The
question of malice was
different from, and went beyond the question of whether
or not an accused intended to kill.
These two interrelated strands of
the emotional and the social account of malice can be teased out in relation to
Rick’s slayings.
The essence of (justified or excused) non-felonious
homicides was that the accused was reluctant, he or she was forced (by the
malice
of the victim) to slay the victim, and did so only with sadness of heart.
This distinction between the emotions of slayers as integral
to questions of
wickedness is central to the constructions of characters in The Walking
Dead. On a strict body count, Rick kills more humans than Shane. The
difference in Rick and Shane’s good/evil status revolves around
their
emotional response to the
slayings.[54] Increasingly Shane
demonstrates an instrumental conception of other humans – they are simply
a means towards his end of survival.
He is willing to sacrifice other people if
it helps him to survive, including by cutting the leg of Otis so that the
walkers attack
him, rather than Shane. He is also increasingly willing to
sacrifice other people if it gets him what he wants – including
slaying
Rick so that Shane gets Lori. In contrast, Rick demonstrates reluctance to kill
other humans, including and particularly
his former best friend Shane. It is
this reluctance to slay that is the final straw in the relationship between Rick
and Shane. Rick
initially refused to kill and delays killing Randall –
despite his being a danger to the community. Shane takes him and kills
him
anyway. Rick continues to display a reluctance to slay which Shane no longer
has.[55]
Despite Rick’s
reluctance to slay, he undertakes killings as leader of his small survivalist
community, displaying a combination
of a reluctance to slay coupled with social
duty. This would include the slaying of Carol’s daughter, Sophia (Series
2, Episode
6), who has become a walker. Rick slays her as leader in front of the
community, including Carol. He does this with respect and sadness
– as a
necessary slaying. This integration of reluctance and social duty is also
apparent in Rick’s slayings of men from
a large group of armed men that
threaten the safety and peace of the community (Series 2, Episodes 8-9). Rick
goes to a bar to bring
Hirsch back to safety and ends up killing two men who
were also in the bar. They are armed and want to know the location of the
community’s
refuge. One of the men grabs his gun, but Rick beats him to
the draw and shoots him in the head, then shoots the other man before
he can
draw his gun. Rick’s actions are consistent with classic self-defense
– he kills in response to an imminent fatal
threat. One of the victims was
sneaking up on Rick from behind. In Episode Nine, when the friends of the
victims turn up, Rick justifies
the slaying by saying “they drew on
us”. Rick thus evokes explicit common and implicit contemporary legal
concerns that
took into account the malice of the victim in evaluating the
actions of the accused.[56]
In contrast, Rick’s slaying of Shane is more problematic. The
slaying of Shane was clearly compelled – he was increasingly
a threat to
the community and to Rick specifically. However, Rick’s slaying of Shane
was not in response to an immediate threat,
because Rick tricked Shane into
handing over his gun. In his confrontation with Shane, Rick explicit refers to
laws that are no longer
enforced by a non-existent state: “Are you going
to kill an unarmed man?” It is arguable that the contemporary legal
focus
upon imminence in determining the reasonableness of an accused’s response
has proven to be highly elastic and would be
decided in Rick’s favor given
the on-going nature of Shane’s threat and the absence of the state to
protect Rick. It
may be excused as self-defense, but early common law would
regard this as
dishonorable.[57]
It is also
questionable whether Rick has acted out of social duty – the preservation
of order and peace – or for personal
reasons – due to Shane’s
relationship with Lori and his threat to Rick personally. In the episode before
the slaying
Lori states:
You kill the living to protect what’s yours. Shane thinks I’m
his. He thinks the baby is his, and he says you can’t
protect us.
He’s dangerous Rick.
This returns to Feigenson’s ideas that
jurors frequently evaluate facts of cases as melodrama – focusing on
personal relationships
in their quest for total justice. On this count, the love
triangle of Rick, Shane and Lori would have been relevant to Rick’s
motives. Rick is in an invidious position. The slaying of Shane had to be done
– he was increasingly a threat – but it
is not completely clear
whether Rick’s actions were personal or out of social duty.
Slayings by Rick and Shane, as former state officers and currently
leaders of a frontier community in the aftermath of the collapse
of civil order
can be analyzed in contemporary category of justified use of force by law
enforcement. The models of Hale, Foster,
and Blackstone were absorbed into
American law. Just as with early common law, there are attempts by contemporary
law to articulate
boundaries around authorized force, such as powers to prevent
arrest or apprehend felons. For example, the Fourth Amendment standard
of
reasonable seizure requires imports a standard of reasonableness to the use of
police force. This is evaluated from the perspective
of a hypothetical
reasonable police officer taking into account the severity of the crime, threat
to safety posed by the suspect,
suspect’s resistance or
flight.[58] Limits are also
articulated in terms of powers of arrest. The Model Penal Code Section 3.07(2)
(b) restricts deadly force to
(i) The arrest is for a felony; and
(ii) The person affecting the arrest is... a peace officer or is assisting a person... he believes to be a peace officer; and
(iii) The actor believes that the force employed creates no substantial risk of injury to innocence persons; and
(iv) The actor believes that:
- (1) The crime ... involved... the use or threatened use of deadly force; or
- (2) There is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.[59]
The
Model Penal Code also allows use of deadly force to protect property in limited
circumstances – efforts to dispossess the
slayer of his home or a felony,
and either the crime must involve the use or threat of deadly force or the
slayer must not be able
to safely use lesser force to resist the
crime.[60]
In the eighteenth
century, Blackstone articulated the granting of authorized force as integral to,
and based upon, peace and order:
[t]he law of England, like that of every other well-regulated community, is
too tender of the public peace, too careful of the lives
of the subjects, to
adopt so contentious a system; nor will suffer any crime to be prevented by
death, unless the same, if committed,
would also be punished by
death.[61]
Blackstone thus
permitted the slaying of felons, but only in very restricted circumstances,
otherwise that use of force would undermine
order itself. The same approach has
also been articulated in contemporary law:
The suspect’s fundamental interest in his own life need not be
elaborated upon. The use of deadly force also frustrates the
interest of the
individual, and of society, in judicial determination of guilt and punishment...
the use of deadly force to prevent
the escape of all felony suspects, whatever
the circumstances, is constitutionally unreasonable. It is not better that all
felony
suspects die than that they escape. Where the suspect poses no immediate
threat to the officer and no threat to others, the harm
resulting from failing
to apprehend him does not justify the use of deadly force to do so... A police
officer may not seize an unarmed,
non-dangerous suspect by shooting him
dead.[62]
Slayings for personal
reasons or the use of excessive force undermine public order and peace upon
which the original authority rests.
The Walking Dead raises
questions about slayings by police that are motivated by personal reasons or the
use of excessive force. In a post-apocalyptic
world walkers and humans are
dangerous. Human life is cheap and devalued, and there is an atmosphere of fear
where disputes are resolved
with violence. The authority of the law is displaced
– necessitas legem non habet – necessity knows no law,
although attempts are made by characters such as Rick to retain and assert the
law.[63] We are left only with the
law of survival of the fittest, or who is most willing or quickest to shoot. It
is arguable that an atmosphere
of fear is similarly motivating police. The
shooting of Rick in the first episode represents common fears about and for
police –
with armed suspects firing at police and the police only
prevailing because there happen to be more of them present and they are
better
shots. This plays on the fear that in other circumstances police may be
outnumbered or out-shot. However, statistics show
that risks facing police from
suspects are lower than commonly
believed.[64] According to a
national police memorial fund, 135 officers were killed in
2016.[65] Of those, 64 officers were
shot and killed. With more than 900,000 sworn law enforcement officers serving
in the United States in
2016, this translates to a gun homicide victimization
rate of seven per 100,000.[66] In
comparison, according to the Center for Disease Control (which also features in
The Walking Dead), in 2014, there were 10,945 fatal shootings in the USA
overall, with a rate of 3.4 per
100,000.[67] The rate of fatal
shootings of police is thus approximately double the rate of homicides in the
general population. However, it is
also necessary to factor in that police
forces are comprised overwhelmingly of young men, who face a homicide
victimization rate
considerably higher than the general
population.[68] It seems that police
officers face a similar risk of homicide victimization as that of their general
population cohort.
Earlier positivists defined law as commands backed by
force.[69] Hart later labeled this
the “gunman theory of law” and attempted to tease out the difference
between the legitimate force
of the state and the illegitimate force of others
as based around “rules of
recognition”.[70] Legal
theorists have thus long recognized and explored the question of how to
distinguish between the legitimate force of the state
and illegitimate violence.
Key ways in which this could be distinguished remain the proportionality of the
force and the reasons
why it was exercised. Early common law would interrogate
this in terms of whether it was for private or public purposes. Bentham
analyzed
authorized force as to whether it was for public
utility.[71] I have argued elsewhere
that Sir James Fitzjames Stephen distinguished between the force of the outlaw
and that of law as a question
of
malice.[72] Central to the
“rightful” use of force is acting in accordance with an authority.
Acting for personal reasons or using
excessive force undermine the very
authority that authorized that force. The Walking Dead explores issues
around the preservation of humanity after the apocalypse not only with regard to
moral sensibility but also in the
sense of legitimizing violence and thereby
lifting the burden of moral judgment from individuals. The characters of Rick
and Shane
are being judged by their companions and in turn the audience, not
just as moral actors, or legal subjects, but as leaders obliged
to establish,
enforce and legitimate law. The following section explores the ways that
wrongful (and even justified) slayings taint
not only the killer but the
community also.
Interestingly, although The Walking Dead
persuasively depicts Rick’s heroic reluctance to slay Shane, despite
Shane’s slurs to Rick’s honor and status and
increasing threat to
his life, the audience feels no such reluctance. There is such a long slow build
up to the slaying of Shane
that by the time it occurs it is long overdue and
feels cathartic and right, despite Rick’s trick of pretending to be
unarmed.
As spectators we can comfort ourselves that Shane is a fictional
character and there was an absence of police and the law to resolve
the issue.
However, the series places us in the position of a person who lacks reluctance
to slay, who would do “whatever it
takes” to survive.
4. Tainting and unnatural slayings
After the catharsis of the slaying of Shane by Rick
at the end of Season Two, Season Three explores the consequences in terms
reminiscent
of early common law. Although the slaying of Shane felt necessary at
the time, Season 3 evokes the medieval notion of tainting as
a consequence of an
unnatural slaying. In her analysis of disorder, Douglas assumes a predilection
of humans to create clear-cut
classifications of the objects in their world.
According to this theory, anomalous items, such as those that are unique or
instantiate
properties of different classes, are disturbing and become the
objects of pollution or taboo. Things that are acceptable or even
attractive
when in their proper place, can be polluting and dangerous when out of
place.[73] Douglas accepts that the
construction of systems, the gestures of classifying, systematizing and
cleansing, are necessarily contingent.
However, the central point is that
disorder – matter out of place, the anomalous or ambiguous – offends
and challenges
our systems and categories. Douglas asserts our responses to
disorder can vary, but emphasizes the reliance upon rituals to expiate
or undo
the taint of disorder, to reinstate order. The laws of crime can be read in
light of Douglas theories of disorder as an assertion
of order. On these terms,
crime and medieval malice were regarded as a breach or absence of order that is
polluted and polluting,
requiring ritual to expiate or undo disorder to
reinstate and reassert order.
Douglas devotes much of Purity and
Danger to religious and (primitive) legal structures of order, and responses
to disorder. Crime in general, and slayings in particular,
were organized as
crimes against order.[74] Homicide
law expressed the idea that unnatural slayings were an offence against order,
religious, moral and political. Causing death
desecrated the sanctity of human
life, tainting the perpetrator and potentially polluting the community, imposing
an obligation to
expiate the sin. Homicide law expressed the biblical conception
of slaying as a violation of order, an evil in and of itself. Killing
another
breached the laws of God – specifically the sixth
commandment.[75] Killing was a
grievous offence against God, because man was made in the image of God.
Whoso sheddeth man’s blood, by man shall his blood be shed: for in the
image of God made he man. [76]
In
the biblical view, the person who slays another was thought to acquire control
over the life-force of the victim. The only way
to return this life-force to
God, the origin of all life, was to execute the slayer himself. The execution of
the slayer expiated
the desecration of the natural order by terminating the
violation of the sacred order, that is, the slayer’s control over the
blood of the victim.[77] This
injunction is repeated in Numbers:
So ye shall not pollute the land where in ye are: for blood it defileth the
land: and the land cannot be cleansed by the blood that
is shed therein, but by
the blood of him who shed
it.[78]
According to this
biblical cosmology, a person who caused death was accountable – to God and
the community. Homicide law communicated
the religious notion that the
extinction of life in a manner other than by natural death constituted a harm to
the entire community.
In The Walking Dead the biblical emphasis upon
blood as polluted is reframed through the blood borne infection of the
walkers.
A central argument by Douglas is that polluting beliefs are
attached to disorder. She notes that specific and general dangers are
threatened
if codes and orders are not respected. Some of the dangers which follow on
taboo-breaking spread harm indiscriminately
on contact. This feared contagion
extends the danger of a broken taboo to the whole community, thus shoring up
vulnerable boundaries
and
relations.[79] Those who breached
boundaries were the subjects of dangerous pollution. The polluter became a
‘doubly wicked object of reprobation,
first because he crossed the line
and second because he has endangered
others’.[80] The religious
conception of violation of order as evil in and of itself, requiring expiation,
was embedded in Medieval law. This
connects with Olson’s arguments about
jury trials as processes meaningful in and of themselves to restore inner purity
and
concordia in the
community.[81] Olson argues that
medieval ordeals and trials should be conceived of as concerned not with factual
innocence, but with cleanliness.
Expiation was required not just for the
accused, but also for the community, to remove the taint of wrongdoing and
restore order.
Wrong was understood as an impurity. The taint of wrongdoing
could be removed through various means including confession, penitential
works
and purgation, offering an opportunity to expunge inner corruption and reunite
with those against whom he has offended. In
Mary Douglas’ terms, medieval
trials could be regarded as rituals to assert and restore order, an opportunity
to expunge, undo,
or expiate the taint of
wrongdoing.[82]
Medieval
homicide law imported and applied the powerful religious conceptions of slaying
as an offence against order requiring rituals
of expiation to cleanse the
accused and the community of the taint of the disorder. That is, the law
emphasized the concern of slaying as a taint not only to the slayer,
but to the
community. A failure to expiate the desecration of the natural order could
result in harm to the community. This was communicated
through earlier law of
the murder fine. If a secret slaying occurred, and the vill had failed to
discover the offender, then the
vill would be adjudged to pay murdrum,
the murder fine, under the practice of
presentment.[83] Thus pollution
could be cancelled without identifying a responsible party through ritual
payment. Medieval law thus communicated
a notion of corporate responsibility
– a wrongdoer could bring guilt upon the entire community.
The
idea of desecration and expiation was expressed in the punishment for unnatural
slayings. The aspiration to remove the taint from
the community could be
accomplished in a variety of ways. If convicted, the defendant was hanged,
usually within a matter of hours,
and nearly always within several days. The
notion of unnatural slayings as tainted and tainting was expressed in the rules
of forfeiture.
The slayer’s lands and goods were forfeited. The children
of a slayer could not inherit as the blood of the slayer was
tainted.[84] The sins of the father
were thus visited on the children. The slayer’s blood was corrupted and
thus so was his progeny, demonstrating
the salience of Douglas’ arguments
of the perception of disorder as polluted and polluting.
The idea of
expiation was expressed in the rules of excusable homicide – slayings in
self-defense or by accident. This was a
Crown plea because even if morally
blameless, the slayer was objectively guilty, “because the
sovereign hath lost his
subject.’’[85] Medieval
law communicated the notion that causing death, even accidentally, desecrated
the sanctity of human life. The fact of homicide
was organized as wicked. Even
excusable homicides required the pardon of the Crown and resulted in forfeiture
of property. This expressed
a notion of all unnatural slayings without
justification as culpable.[86]
Causing death desecrated the sanctity of human life, tainting the perpetrator
and potentially polluting the community, imposing an
obligation to expiate the
sin. The consequence of the guilt was that the slayer was to remain technically
in prison until the next
term, reminiscent of Douglas arguments about marginal
objects emanating danger until judgment settles and decides their status within
the order.[87] Even then, after his
“pardon of course”, he still forfeited his goods to the sovereign.
Forfeiture of goods became automatic,
effectively a penalty attached to the
pardon for accidental homicide or homicide in
self-defense.[88]
Only
slayings for justice were acquitted and did not require forfeiture. However
there is some evidence that even those slayings were
regarded by the community
as tainted. For example, executioners were perceived as someone whose touch was
polluted – restrictions
were placed on where they could live and the
trades their sons could join – reflecting the idea of tainted
blood.[89] This idea of tainting
even for justified homicides has been continued in contemporary analysis of
executioners with the image of
the “haunted
hangman”.[90] This reflects
the belief as to the secondary victimization of capital punishment, with the
perceived cumulative negative effect of
killing people (for money). Executioners
are portrayed as stricken with remorse and unable to escape the horror of their
formal role.
The relevance of emotion to the calculus of malitiam
was also demonstrated in the pardoning system. The requirement of a pardon for
accidental homicides can be explained by the idea
that whilst an accused may not
have intended death, or acted in a disorderly manner, an accidental slayer would
feel sadness of heart.
Thus, Bracton asserted that in circumstances where the
accused accidentally killed, or could not avoid killing, it could be presumed
that the defendant had acted “with sorrow of
heart”,[91] or “from
fear and instinctively” without “corrupt intention” as it was
put in Fleta.[92] The
pardoning system can thus be regarded as sustaining the early bot
system’s attention to the spiritual needs of the accused and the
community.[93] Paying for a pardon
would provide an opportunity of penance, to make amends, and allay the
slayer’s grief at causing harm to
another.[94] Malitiam thus
extended to a concern for the state of the accused’s soul after the event.
This is a demonstration of the temporal elasticity
of malitiam –
the trial was concerned with the state of accused’s soul after the
event. The payment of a pardon provided an opportunity to expiate, undo the
taint of loss of life, and achieve concordia in the community.
In
The Walking Dead, Rick’s slaying of Shane in particular, and the
cumulative effect of so many slayings, is depicted as tainting him and his
community.[95] Rick’s
character changes. He no longer embraces the notion of the survivors as a
democracy, but instead asserts that he is
the leader of the group and will allow
no challenges of his leadership. He moves from a community based on consent and
discussion,
to one of tyranny. His relationship with Lori is distant. He is lost
and his followers and the audience are no longer confident in
the choices that
he makes. The taint of Rick’s unnatural slaying is particularly
illustrated by his son. Carl witnesses Rick’s
slaying of Shane, and is
himself forced to kill Shane “again” when he rises as a walker. Carl
becomes increasingly sociopathic,
copying Shane’s behavior of
“whatever it takes”. Carl mirrors Rick’s behavior toward Lori
and is rude and
disrespectful. He is tainted by Rick’s choices,
culminating in his choice to kill a teenage boy who is surrendering because
of
the possibility that he might attack. It is this (and the Governor’s more
extreme example of this philosophy) that turns
Rick back from his harsh
survivalist ethic. Series three can be regarded as a form of penance for Rick
and the survivors in his group.
They almost starve through the winter, their
numbers are steadily dwindling and they are increasingly hounded by more and
more walkers.
Rick is isolated and driven mad with hallucinations of the people
he has killed.
This notion of an unnatural slaying as tainting for the
slayer and their community raises questions about contemporary criminal justice
system responses. Only a very small proportion of police shootings result in
prosecutions.[96] It is calculated
that there were 963 people shot and killed by police in
2016.[97] In the thousands of fatal
police shootings since 2005, only 54 police officers were prosecuted with an
even smaller number resulting
in
convictions.[98] Frequently, these
fatal police shootings were caught on film and available for viewing by the
general public, which then questioned
the actions of officers and their use of
force. Drawing upon the insights from The Walking Dead and early common
law, this absence of a public accounting for slayings has left the community in
discord. This has been displayed
in protests, civil disobedience and retributive
slayings in response to police slayings and inquest
findings.[99] Despite restrictions
on the authorized use of force, the relative absence of prosecutions suggests
that these limits are not applied
in practice. Under these laws there is no need
to explain or justify oneself. Nor is there any opportunity to undo the taint to
oneself
or the community. More generally, it raises the broader question about
the aspirations of the criminal justice system. The medieval
trial aimed to
restore concord to the community. What are the aspirations of the contemporary
legal system? Whilst the modern trial
does not aspire to the medieval conception
of concordia the exclusion of any possibility of a trial in cases of unnatural
slayings
removes the opportunity for society to articulate and affirm
society’s values, in these cases specifically, to debate and express
norms
of response by police officers to perceived threats.
Conclusion
The Walking Dead explores conceptions of
survival, both personal and political, in the post-apocalyptic world overrun by
walkers. Characters make
choices in their quest to survive that provide a prism
through which to understand and critique contemporary models of compulsion
in
criminal law doctrine. Contemporary models of compulsion focus upon the beliefs
of the accused that their actions were (reasonably)
necessary. However, this
model of culpability fails to adequately explain the philosophy underlying
contemporary compulsion defenses,
particularly the use of force by police
officers, nor does it provide a way to differentiate between the heroes and
villains in The Walking Dead. Most of the slayings could be constructed
as necessary and a reasonable response in the post-apocalyptic world. Early
common law
malice provides a means of analyzing the different models of
survival. Historically, malice was defined broadly as “the heart
regardless of social duty” which expressed an imbricated emotional and
social account of culpability – slayers had to
be reluctant to slay which
would express obedience to the sovereign and those acting for justice had to be
acting out of social duty
to protect order and peace.
In particular, early
common law emphasized the requirement that the accused did not want to
kill. This is mirrored in The Walking Dead, where Rick is differentiated
from characters like Shane and the Governor due to his reluctance to kill and
his slayings for public
rather than private purposes. He depicts the sadness of
heart assumed and expected of unnatural slayings in self-defense and/or for
justice. Medieval conceptions of malice emphasized the idea of unnatural
slayings as tainted and tainting – requiring expiation
and cleansing of
the slayer and the community generally. The Walking Dead also depicts
Rick’s tainting and the tainting of those around him, by the cumulative
effect of his slayings and in particular
his slaying of Shane. The question
raised by medieval law and The Walking Dead is what opportunities are
offered by contemporary conceptions of slayings for justice for an expiation and
penance for the sadness
of heart accompanying an unnatural slaying?
[1] Zimring, 'Can Foreign
Experience Inform US Policy on Killings of and by Police?', Harvard Law and
Policy Review 10 (2016), pp. 43-58.
Media outlets such as the Washington Post
are collecting statistics of fatal police shootings: https://www.washingtonpost.com/policeshootings/
(accessed January 1, 2017).
[2]
Tibbs, 'Who killed Oscar Grant: A Legal Eulogy on the Cultural Logic Behind
Hyper-Policing in hte Post-Civil Rights Era', Journal
of Race, Gender and
Poverty 1 (2010), pp. 1.
[3] The
list of unarmed black men killed at the hands of the police in the past years is
vast, some of the most notable ones were Michael
Brown (2014), Eric Garner
(2014), Tamir Rice (2014), Akai Gurley (2014), Walter Scott (2014), Freddie Gray
(2014), and Sam DuBose
(2015). In each of the cases, the victim was unarmed. In
all of the cases except one (Garner), the death at the hands of the police
was a
shooting death. See Nicholas Quah, Here's A Timeline Of Unarmed Black People
Killed By Police Over Past Year, BuzzFEED NEWS
(May 1, 2015), http://www.buzzfeed.com/nicholasquah/heres-a-timeline-of-unarmed-black-men-killed-by-police-over#.fjaqnqO74.
[4]
Smith, 'Responding to the Urgency of Now', Human Rights 42 (2016), pp. 1-4,
Onyemaobim, 'The Michael Brown Legacy: Police Brutality
and Minority
Prosecution', George Mason University Civil Rights Law Journal 26 (2015-2016),
pp. 157, Tibbs, 'Of Law and Black Lives,
50 Years Later: Race and Policing in
the aftermath of the Moynihan Report', Georgetown Journal of Law and Modern
Critical Race Perspectives
8 (2016), pp.
85-101.
[5] Binder and Weisberg,
Literary Criticisms of Law (Princeton, Princeton University Press,
2000).
[6] This is particularly the
case for police:
[V]iolence is an inherent part of policing. The police represent the most
direct means by which the state imposes its will on the
citizenry.
Williams,
Our Enemies in Blue: Police and power in America (Washington, AK Press, 2015).
p. 32. See also, Binder, The Oxford Introductions
to US Law: Criminal Law (New
York, Oxford University Press,
2016).
[7] Ross, 'Cops on Trial:
Did Fourth Amendment Case Law help George Zimmerman's claim of self-defense?',
Seattle University Law Review
40 (2016), pp.
1-56.
[8] Dimock, Residues of
Justice: Literature, Law and Philosophy (Berkeley, Los Angeles, London,
University of California Press, 1996).
p.
7.
[9] Feigenson, Legal Blame:
How jurors think and talk about accidents (Washington, American Psychological
Association, 2000).
[10] Dimock
argues for the cultural domain as a productive supplement in conceptualizing
justice:
Absolute and categoric in philosophy, negotiable and assignable in law,
wayward and unsatisfactory in literature, justice dispensed
in different
operative theatres, seems to carry different causal circumferences, different
modes of evidence, and to yield up different
styles of knowledge as well as
different descriptive textures of the world. These conflicting images of justice
call into question
the self-evidence of the concept as well as its claim to
being the axiomatic expression of human reason.
Dimock, p.
8.
[11] Tudor, 'Why horror? The
peculiar pleasures of a popular genre', Cultural Studies 11 (1989), pp.
443-63.
[12] It should be noted
that monsters are not confined to the horror genre. Monsters populate other
entertainment forms such as science
fiction and children’s
shows.
[13] It should be noted
that monsters are not confined to the horror genre. Not only do monsters
populate other entertainment forms such
as science fiction and children’s
shows, monsters have also been part of the common law. Sharpe, Foucault's
Monsters and the
Challenge of Law (London and New York, Routledge, 2010). The
category of monster remains relevant to law explicitly and implicitly.
See for
example, Crofts, 'Monstrous Wickedness and the Judgment of Knight', Griffith Law
Review 21 (2012), pp. 72-100, Crofts, Wickedness
and Crime: Laws of homicide and
malice (London and New York, Routledge, 2013), Cole, The Myth of Evil
(Edinburgh, Edinburgh University
Press Ltd,
2006).
[14] Carroll, The
Philosophy of Horror or Paradoxes of the Heart (New York, Routledge, 1990). 52.
In law, the category of monster was
relatively recently (unsuccessfully) argued
in England in a case considering the proposed separation of conjoined twins.
Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2000] 4 All ER
961.
[15] Creed, Horror and the
Monstrous Feminine: An imaginary abjection ed. Keith, Austin, University of
Texas Press, 1996), p. 42.
[16]
It has been noted that horror is particularly associated with the policing of
sexual borders. See for example:
The release of sexuality in the horror film is always presented as perverted,
monstrous and excessive, both the perversion and the
excess being the logical
outcome of repressing.
Wood, An introduction to the American Horror Film ed.
Nichols, Berkeley and Los Angeles, University of California Press, 1985) 2.
216.
See also, Halberstam, who has argued that ‘class, race, and nation are
subsumed... within the monstrous sexual body’.
Halberstam, Skin Shows:
Gothic Horror and the Technology of Monsters (Durham, Duke University Press,
1995). 7.
[17] For example,
Sharpe has applied Foucault’s theoretical and historical treatment of the
monster to contemporary examples –
admixed embryos, conjoined twins and
transsexuals and explored the ways that they challenge current distinctions
between human and
animal, male and female, and the idea of the
‘proper’ legal subject as a single embodied
mind.
[18] Douglas, Purity and
Danger: An Analysis of the Concepts of Pollution and Taboo (London, Routledge
and Kegan Paul, 1966/2002). For
example, in Re A (Children) (Conjoined Twins:
Surgical Separation) [2000] EWCA Civ 254; [2000] 4 All ER 961, the argument that one of conjoined
twins was a monster was made in order to justify the slaying of her in order for
her sibling
to survive. At common law, monsters had no rights. On this argument,
her existence justified and required the undertaking of judicial
homicide which
could be regarded as polluting for all involved – included the judiciary
who authorized the slaying and the
doctors who undertook the
surgery.
[19] The Walking
Dead: The Complete Second Series, AMC Film Holdings: Anchor Bay
Entertainment, blurb on the back of the DVD
(2012).
[20] http://www.amc.com/shows/the-walking-dead/talk/2012/12/the-walking-dead-season-3-ratings.
AMC. December 2012. (accessed January 9,
2017).
[21] Bibel, Sara (March
30, 2015). http://tvbythenumbers.zap2it.com/1/the-walking-dead-season-5-finale-is-highest-rated-finale-in-series-history-garnering-15-8-million-viewers/381342/
(accessed January 9, 2017).
[22]
The Walking Dead: The Complete First Series, AMC Film Holdings: Anchor
Bay Entertainment, blurb on the back of the DVD,
2010.
[23] Cole has argued
persuasively that the myth of evil gives monsters a particular role to play in
grand narratives of world history.
Cole, p.
23.
[24] This idea of a lack of
connection is considered throughout, as survivors find it difficult to slay
zombies who were previously family
members, whilst the zombies suffer no such
qualms.
[25] In series three,
Michonne keeps two walkers on leashes. She has cut off their jaw bones and arms
and they appear to have lost their
desire to consume. They provide a camouflage
for Michonne. There is a suggestion that she knew them before they became
walkers. When
Rick slays the walker Sophia in Season Two, Rick and the community
show great sadness of heart because they knew her as a human and
also because of
the impact on her mother.
[26]
This is particularly the case for Morgan Jones who cannot kill his wife after
she has become a walker. In the third series Morgan
has become mad after his
wife bit his son. He undertakes penance of destroying and burning
walkers.
[27] This idea of zombie
evolution and possible inclusion has been explored in other films such as George
Romero’s Land of the Dead (2005 Universal Pictures) and Edgar
Wright’s Shaun of the Dead (2004 Universal
Pictures).
[28] Hobbes, Leviathan
(Tuck, 1651). pp. 56-7.
[E]very man is Enemy to every man... wherein men live without other security
than what their own strength, and their own invention
shall furnish them
withal... continual Fear, and danger at violent death; And the life of man,
solitary, poor, nasty, brutish and
short.
[29] For example, one
question grappled with is the ethics of eating other humans in the absence of
other food. This question has been
grappled with at common law through the
doctrine of necessity. Simpson, Cannibalism and the Common Law (Chicago, Chicago
University
Press, 1984). Cormac McCarthy’s The Road (2006) is a
literary exploration of the question of civilization in the post-apocalyptic
landscape. The horror film The Colony (2013) implies that eating other
humans to survive in the endless winter of earth results in inhuman/humans who
just want ‘more’.
This question has also been explored by Chongseh
Kim, 'When the apocalypse comes, will anything change? Gay marriage, black lives
matter, and the rule of law', Savannah Law Review 3 (2016), pp.
57-76.
[30] Shane’s
response to the unnatural slaying of the other man to save himself is an example
of tainting, argued below.
[31]
In the Model Penal Code, self-defense is in Part 3, Justification Defenses. The
Penal Code enshrines a general defense of necessity
or lesser evils which is
available when self-defense is not. §
3.02.
[32] A traditional
distinction at common law was between killings that were justified and those
that were excused. A plea of justification
led to total acquittal, whilst
excuses involved a pardon and the forfeiture of goods. In 1828, forfeiture was
abolished and the distinction
between justifiable and excusable homicide became
obsolete. For some years, the concepts of “justification” and
“excuse”
were thought to be no longer, relevant, but in the past
decades some academic commentators have revived the distinction. For example,
Schopp, Justification Defences and Just Convictions (Cambridge, Cambridge
University Press, 1998), Fletcher, Rethinking Criminal
Law (Boston, Little
Brown, 1978). p. 759, Horder, 'Autonomy, Provocation and Duress', Criminal Law
Review, pp. 706, Binder. Whilst
some legal academics have debated the
categorization of various defenses as excusatory or justificatory, others have
found the plasticity
of the “justification” and “excuse”
framework unedifying. Greenawalt, 'The perplexing borders of justification
and
excuse', Columbia Law Review 84 (1984), pp. 1897, Kahan and Braman, 'The
self-defensive cognition of self-defense', American
Criminal Law Review 45
(2008), pp. 1-67. The distinction between excuse and justification is
significant for the purposes of this
article because killings for a personal
purpose were only excused, whilst killings for a public purpose were justified.
This article
teases out the distinction and its
implications.
[33] Model Penal
Code. § 3.04. Use of Force in Self-Protection. This approach is also
mirrored in Australia at common law:
Whether the accused believed on reasonable grounds that it was necessary in self-defense to do what he did. If he had that belief, and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to acquittal.
Zecevic v DPP, High Court, 1987)
162.
[34] For example, Bentham
reasoned the sovereign laws from their nature must always be an application of
force; where there is no force,
there can be no sanction; and where there is no
sanction there can be no law; the use of force, as an evil, requires
justification
and one important affecting the frequency of its use was the
extent to which law conformed to natural expectations. Bentham, Introduction
to
the Principles of Morals and Legislation (London, Methuen, 1982). p.
13[2].
[35] Graham v
Connor [1989] USSC 89; 490 US 386
(1989).
[36] Op. cit.,
396-397.
[37] Shane’s
slayings are nothing in comparison to those of the Governor in season
3.
[38] Baker, An Introduction to
English Legal History (Sydney, Butterworths, 2002). p.
512.
[39] Green, 'The Jury and
the English Law of Homicide, 1200-1600', Michigan Law Review 74 (1975-1976), pp.
413-99. The rules for justifiable homicide were gradually more strictly
interpreted by judges. During the 13th and 14th centuries
judges sometimes insisted the slayer establish that he had acted as a royal
official before he could be acquitted. Baker,
p.
512.
[40] This was known as
“hand-having thieves” – thieves caught with the stolen
property. By the late 13th century, most localities were no longer
permitted to execute captured outlaws and manifest felons without trial. That
custom had
become frontier
law.
[41] Justifiable homicides
extended to include would be thieves and robbers in the 14th century.
Woodbine and Thorne, Bracton De Legibus et Consuetudinibus Angliae (On
the Laws and Customs of England),
1968-77).
[42] Foster, A Report
of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for
the Trial of the rebels in the
Year 1746 in the County of Surry, and of Other
Crown Cases. To which are added discourses upon a few branches of the Crown Law
(Abingdon,
London,
1762/1982).
[43] Maitland, The
Early History of Malice Aforethought ed. Fisher (3 vols., Cambridge, Cambridge
University Press, 1911) I, p. 6 of 58,
Hurnard, The King's Pardon for Homicide
(1969). p. Chapter One.
[44]
Foster, p. 257.
[45] Crofts,
'Monstrous Wickedness and the Judgment of Knight', pp.
72-100.
[46] Green, pp.
413-99.
[47] Bracton, Bracton on
the Laws and Customs of England (Cambridge, Mass., Belknap Press, 1250/1968).
pp. Vol 2, 340.
[48] Hale, Pleas
of the Crown: A Methodical Summary of the Principal Matters relating to that
Subject (London, Professional Books Limited,
1678).
36.
[49] This emphasis upon
obedience to the sovereign is consistent with accounts proposed by Binder,
Simpson.
[50] Foster, p.
320.
[51] In contrast, Foster and
Blackstone both asserted that a slaying in response to attempted murder was
justifiable. Blackstone, Commentaries
on the Laws of England. Book the Fourth
(London, Dawsons of Pall Mall, 1966 [1769]). p. 184, Foster, pp.
273-4.
[52] Binder, p.
342.
[53] Hale, History of the
Pleas of the Crown (London, Professional Books, 1736/1971). p.
496.
[54] There are many times in
the series of The Walking Dead where Rick makes instinctive readings on
whether or not a person is a threat. Rick usually portrayed as trustworthy in
his analysis,
but what about when these instincts are wrong as is suggested in
Series Three?
[55] MacNeil has
analyzed Rick’s reluctance in terms of hesitation in his analysis of
jurisprudence. MacNeil, The Litigating Dead:
Zombie jurisprudence in The
Walking Dead, The Rising and World War Z, Hong Kong
University, 2016).
[56] Crofts,
Wickedness and Crime: Laws of homicide and
malice.
[57] Green, Verdict
according to conscience: Perspectives on the English Criminal Trial Jury
1200-1800 (Chicago, University of Chicago
Press,
1985).
[58] Graham v
Connor [1989] USSC 89; 490 US 386
(1989).
[59] Model Penal Code
3.07(2)(b) (1962).
[60] Model
Penal Code 3.06(3)(d)(1962).
[61]
Blackstone, Commentaries on the Laws of England. Book the Fourth (London,
Dawsons of Pall Mall, 1769). pp.
181-2.
[62] Tennessee v
Garner, [1985] USSC 77; 471 US 1 (1985) at
10-11.
[63] The principle
‘need knows no law’ was stated by Bacon, Maxims, reg. 5 and
considered by the House of Lords in DPP v Lynch [1975] UKHL 5; [1975] AC 653 at 690-1
per Lord Simon of
Glaisdale.
[64] Zimring
has undertaken an international comparative analysis of slayings by police and
argues that:
American police kill not only more often than other developed world police
but at a vastly higher rate than any nation the United
States would want to
measure itself against. The gross statistics are dramatic-if my study's estimate
of 1,000 deaths a year is correct,
the United States rate is 40 times that of
Germany and 100 times that of the United Kingdom.
Zimring notes that American
homicide rates are much higher than those of other developed countries. American
citizens and police are
therefore less safer than in other countries. Zimring,
pp. 43-58.
[65] National Law
Enforcement Officers Memorial Fund, Preliminary 2016 Law Enforcement Officers
Fatalities Report (2016) http://www.nleomf.org/assets/pdfs/reports/Preliminary-2016-EOY-Officer-Fatalities-Report.pdf
(accessed January 14, 2017).
[66]
‘US police shootings: How many die each year?’ (7/18/2016) http://www.bbc.com/news/magazine-36826297
(accessed January 14, 2017).
[67]
Centers for Disease Control and Prevention, ‘Factstats, Death by assault
or homicide’ https://www.cdc.gov/nchs/fastats/homicide.htm
(accessed January 14, 2017).
[68]
Cooper and Smith, Bureau of Justice Statistics, Homicide Trends for the United
States, 1980-2008, 2011).
[69]
Austin, The Province of Jurisprudence Determined (London, J Murray, 1832),
Bentham.
[70] Hart, The Concept
of Law (1961). MacNeil has argued that Hart’s model of law veiled the
force of law. MacNeil, Lex Populi:
The Jurisprudence of Popular Culture
(Stanford University Press,
2007).
[71] Bentham, p.
13(2).
.... All punishment is itself evil. Upon the principle of utility, if it
ought at all to be admitted, it ought only to be admitted
in as far as it
promises to exclude some greater
evil.
[72] Crofts, Wickedness and
Crime: Laws of homicide and malice, p.
153.
[73] For example, one is not
disgusted by saliva in one’s mouth, but it becomes offensive outside the
body so that we will refuse
to drink from a glass into which one has spit.
Douglas, p. 140. Douglas’ ideas have been explored and applied to the
legal
regulation of brothels. For example, Crofts, 'Brothels and Disorderly
Acts', Public Space: The Journal of Law and Social Justice
1 (2007), pp.
1-39.
[74] Hurnard, p.
14.
[75] Exodus 20:13;
Deuteronomy 5:17.
[76]
Genesis 9:6.
[77]
Blackstone, Commentaries on the Laws of England. Book the Fourth, pp. iv, cap.
14. Deuteronomy 21: 1-9.
[78]
Numbers 35:33.
[79]
Douglas, p. xiii.
[80] Op. cit.,
p. 172.
[81] Olson, 'Of
Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial',
Syracuse Law Review 50 (2000), pp.
109-96.
[82] Hampton and Duff are
normative theorists who hold contemporary criminal law to a similar standard as
opportunities to remove the
taint of wrongdoing. Hampton, 'Correcting harms and
righting wrongs: The goal of retribution', UCLA Law Review 39 (1992), pp. 1659,
Duff, Answering for Crime (Oxford, Hart,
2007).
[83] Bellamy, Crime and
Public Order in England in the Later Middle Ages (London and Toronto, Routledge
and University of Toronto Press,
1973). p.
58.
[84] Children continued to be
disinherited on the basis of this rule until 1870. Baker, p.
513.
[85] Hale, Pleas of the
Crown: A Methodical Summary of the Principal Matters relating to that Subject,
p. 411.
[86] Hurnard, p.
23.
[87] Douglas, p.
119.
[88] Cases of suicide also
expressed the transcendental interest of the Crown in the life of the subject,
requiring forfeiture as expiation.
Finkelstein, 'The Goring Ox: Some Historical
Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of
Sovereignty',
Temple Law Quarterly 46 (1973), pp.
169-290.
[89] Spierenburg, The
Spectacle of Suffering (Cambridge, Cambridge University Press, 1984),
Harrington, The Faithful Executioner (London,
Bodley Head,
2013).
[90] Seal, 'Albert
Pierrepoint and the cultural persona of the twentieth century hangman', Crime
Media Culture 12 (2016), pp.
83-100.
[91] Bracton, p.
2.341.
[92] Richardson and
Sayles, Fleta: Volume II (London, Selden Society, 1955). p.
2.60.
[93] Olson, pp.
109-96.
[94] Hurnard, p.
164.
[95] This idea of tainting
is also explored in McCarthy, All the Pretty Horses (London, Picador,
1993/2012). The hero John Grady Cole
kills a man in self-defense whilst he is in
prison, but remains haunted by
it.
[96] Ross, pp.
1-56.
[97] Official figures are
not completely reliable with regard to killings by police. For analysis and
statistics see the 2016 Washington
Post database on police shootings https://www.washingtonpost.com/graphics/national/police-shootings/
(accessed January 14, 2017).
[98]
Kimberley Kindy, ‘Thousands Dead, Few Prosecuted’ (April 11, 2015).
http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/?tid=a_inl
(accessed January 14, 2017). David Feige, The Myth of the Hero Cop: Police
Officers Earn More than you Think for a Job that’s
Less Dangerous Than You
Imagine, SLATE (May 25, 2015), http://www.slate.com/articles/news and
politics/politics/2015/05/the myth
of the hero cop police unions have spread a
dangerous message about.html. In his article, Feige explains that "its hard to
prosecute
cops for two reasons. First, jurors, judges, and prosecutors afford
the police a special deference accorded a widespread perception
that they are
heroic public figures valiantly trying to protect
us."
[99] There are too many
examples of protests over police violence to enumerate. A recent example
includes Curtis Skinner, ‘Protests
over police violence spread around
US’ (7/8/2016) http://www.huffingtonpost.com/entry/protests-police-violence_us_57806b40e4b0344d514f7bae
(accessed January 14, 2017); Julie Bosman & Monica Davey, Protests Flare
After Ferguson Police Officer Is Not Indicted, N.Y.
Times (November 24, 2014),
http://www.nytimes.com/2014/11/25/us/ferguson-darrenwilson-
shooting-michael-brown-grand-jury.html.
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