Law Abiding Citizen: Disenchantment, Justice, Modernity and the Exception
F. Gary Gray’s 2009 film Law Abiding Citizen might seem to some a strange film to analyse in any serious detail. The film was excoriated by critics, and Gray is not generally considered to be a thoughtful director. Nevertheless, the film, intentionally or unintentionally, provides a powerful critique of certain aspects of modernity. I will argue that Law Abiding Citizen is a counterpoint to conventional American legal-political drama, particularly the work of Aaron Sorkin. The film centres on Clyde Shelton, an engineer subject to a home invasion that results in the murder of his wife and daughter. Due to the mishandling of evidence, the murderer is able to avoid serious punishment through securing a plea deal from prosecutor Nick Rice. Clyde sets out on a mission of revenge, systematically killing everyone involved in the trial. The revenge begins with the torture murder of Darby, the man who murdered Clyde’s wife and children. Clyde is subsequently arrested, and engages in further acts of revenge through carefully laid plans all whilst remaining in police custody. The film culminates in Clyde’s attempt to destroy City Hall, which is thwarted by Nick Rice through extrajudicial means.
Unsurprisingly, Law Abiding Citizen is not a rigorous or systematic analysis or critique of Western jurisprudence, ethics or political liberalism; the film engages with aspects and tendencies within Western discourse without an obvious analytical framework or clear affirmative proposition. The film instead investigates modernity at the limit, when political structures are subject to an exceptional situation.Law Abiding Citizen portrays a violent clash between the exception and the norm, and the eventual overcoming of the anxiety produced by this tension. The film explores the concept of the exception on multiple levels. The film portrays a political ‘state of exception’, and how the state of exception within a Liberal-Rational regime reveals the true nature of soverignty. The film critiques Kantian ethics with respect to the exceptional moral situation. The film also hints at deeper themes of death and resurrection, which exist as dialectic pair of exceptions.
Clyde Shelton is an embodiment of the exception within Law Abiding Citizen — just as Clyde Shelton exists as a spectre that haunts the liberal-bureaucratic regime within the film, the exception haunts the aspirations of liberal politics. The exception exists as the thing that causes internal contradictions within liberal politics to surface, and forces a resolution. Just as the phenomenological ‘limit situation’ can catalyse a straightforward confrontation with anxiety and inauthenticity, Clyde Shelton becomes a “limit situation” in the film; a radical, existentially threatening other that forces liberalism to confront its own internal contradictions.
Considering our reading of the film, this analysis will engage with writers who have criticised aspects of modernity, liberal-democratic politics and dominant ethical systems with particular focus on the concept of the exception. Specifically, this analysis will draw on Hannah Arendt’s critique of modernity in The Human Condition and her investigation into justice and ethics in Eichmann in Jerusalem. Arendt is linked, through Max Scheler, to Alasdair McIntyre and his critique of Emotivism and its relationship to Weberian Rational-Legal Authority in After Virtue. The focus will then shift to Carl Schmitt and his critique of liberalism and liberal jurisprudence, and to a Heideggerian analysis of the role of death and resurrection in the film and an outline of the connection of political theology. Hannah Arendt might seem a strange bedfellow to Heidegger, Schmitt, Scheler and McIntyre; All Catholic and conservative. Hannah Arendt possessed certain conservative tendencies that put her at odds aspects of the left and liberalism. Apart from her Burkean-esque criticism of the French Revolution and her criticism of aspects Marxist orthodoxy, Arendt notoriously wrote an article for Commentary Magazine opposing school integration. Arendt was also profoundly impacted by Christ, St. Paul and particularly St. Augustine, the subject of her doctoral thesis (Love and Saint Augustine) and a thinker she shared with Martin Heidegger. Arendt likely absorbed aspects of Catholic thinking through her connection to phenomenology, a conspicuously Catholic field of philosophy. In The Human Condition, Hannah Arendt lamented the social confusion brought about by modernity, just as McIntyre engaged in a restorative project with respect to virtue ethics.
The aim of this essay is not merely to investigate how Arendt, McIntyre and Schmitt are united within the context of an analysis of this particular film, or even within the context of overlapping historical circumstance; The ambition is to to relate these writers conceptually and to identify a particular strand of anti-liberal, anti-enlightenment thought in Western philosophy that encompasses a critique of modernity, a critique of Western ethics and a critique of the aspirations of liberal politics. are connected not only in this respect, but perhaps more fundamentally in their engagement with the concept of the exception. Schmitt channels Kierkegaard with the concept of the ‘state of exception’ in his work Political Theology; McIntyre’s work on Virtue Ethics in After Virtue can be understood as a repudiation of rule-based ethical systems like Kantian ethics and Consequentialism, which collapse when subjected to exceptional situations. Hannah Arendt’s relationship to the exception is more complex, and takes on two distinct forms; her engagement with the “Limit Situation” in phenomenology, and her engagement with Totalitarianism as a form of political-historical exception.
The Film as Historical Allegory
Each of these writers, bar McIntyre, are tied to the fall of Weimar Germany and the rise of National Socialism. Hannah Arendt fled Nazi Germany, Max Scheler’s student, Edith Stein — one of Alasdair McIntyre’s inspirations — was killed in Auchwitz. The role Schmitt, a Catholic conservative who later became a member of the Nazi Party, played in the fall of the Weimar Repbulic is complex. It’s impossible to consider the insights of these writers without reference to history. Indeed, the film makes explicit reference to Prussian General Carl Von Clausewitz, and the ‘state of emergency’ in the final part of the film in reminiscent of the last days of the Weimar Republic, and ‘Operation Clausewitz’, the desperate attempt to preserve the Third Reich ‘to the last man and to the last bullet’.
A Counterpoint to Sorkin
The work of Aaron Sorkin (A Few Good Men, The West Wing, To Kill a Mockingbird, The Trial of the Chicago 7) is essentially Weberian in character. The regime of the West Wing, and the protagonists of Sorkin’s work generally, tend to act as representations of the law and rationality in the best sense of the term. The few times that the protagonists of Sorkin’s films violate the letter of the law, it is in service of some transcendental ideal that has ontological priority over the particularity of a given law — for example, illegally leaking documents in order to hold the government to account or illegally protesting the Vietnam War. Sorkin’s films portray an optimism about the possibilities of liberal-technocratic politics; an attitude epitomised by The West Wing. To Sorkin, the worlds problems can be solved by impossibly clever and good-willed people creatively constructing and applying laws, outwitting their opponents in the battle of ideas. The West Wing in particular demonstrates a particularly Weberian attitude towards secularity; Jed Bartlett is a devout Roman Catholic and a former seminarian, who personally opposes abortion and is seen praying the rosary. Nevertheless, Bartlett brackets his religious devotion in accordance with the principle of secularity.
The tendency to bracket questions of religion to the private realm, and the emergence of separated “spheres” with distinct and incommensurable value systems, is a key feature of modernity¹. Each of these spheres, the economic, political, social, etc, are bound by their own internal rationality and need not refer to any overriding teleological principle beyond themselves. The teleology of ‘the market’ within the system of capitalism is self contained within the definition of markets and market actions, just as the teleology of politics within a regime claiming legitimacy on the basis Weberian Rational-Legal authority is contained within the claim to legitimacy. We can see this bracketing tendency in the West Wing. Secularism also rests of a modern understanding of the public/private distinction. Prior to Christianity, the concept of a ‘private religion’ would have been a contradiction in terms. Even within Christianity, the concept of the private expression arose only in the context of the Protestant Reformation.
Sorkin’s films tend to be have a common aesthetic quality. Sorkin almost exclusively uses a warm, organic and earthy colour palette, with a particular focus on browns. Law Abiding Citizen uses a completely opposing colour palette, a cold grey/green.
The contrasting colour palettes need not be an intentional decision to contrast Sorkin on the part of Gray; The colour palette of Law Abiding Citizen has meaning internal to film. The dominant grey/green colour palette, combined with the Philadelphian winter setting is used to create internal contrast in the film — in particular, to contrast the setting of the home with the external world. This contrast will be explored in detail. The grey/green colour palette also reflects the weary and decrepit nature of the political system portrayed in the film. The political and justice system that exists within Law Abiding Citizen is thoroughly disenchanted, and bound by cold bureaucratic rationality and proceduralism; this is reflected by the setting and the colour palette.
Race in Law Abiding Citizen
Gray’s understanding of the American justice system as portrayed in Law Abiding Citizen is inextricably connected to race, partly because it is impossible to discuss policing and justice in America without acknowledging the historical mistreatment of Black people in the U.S. justice system. Most of Gray’s films invert bourgeois understandings of justice through the portrayal of sympathetic protagonists who are nontheless operating outside of the bounds of the law². This reflects the Black experience in America, where civil rights were achieved outside of the bounds of the legal system, and where Black people continue to exist in an antagonistic relationship with justice.
LAC is markedly different from racially charged portrayals of the failings of the US Justice System. The film notably presents Clyde, a White man, as subject to a legal system managed in a race-neutral (Weberian) fashion by a Black prosecutor and Black mayor. The casting decision is designed to enable the unambiguous critique of the essential nature of the American justice system. Gray’s casting choice removes the possibility of interpreting the film as a critique of racial bias, or managerial effectiveness, or the failure of the American justice system to live up to its core principles.
Arendt and Modernity
In The Human Condition, Hannah Arendt investigates three conceptions of humanity in terms of action; man as Animal Laborans, embedded within never ending life cycle of biological processes, man as Homo Faber, as the maker of permanent artefacts (particularly tools, and tools that make tools, and so on), and man as a political animal, Zoon Politikon. The distinction between ‘work’ and ‘labour’, between Homo Faber and Animal Laborans, has traditionally been used to distinguish humans from the rest of the animal kingdom. Hannah Arendt’s third conception of humanity, Zoon Politikon, draws on an Aristotelian understanding of man as an essentially political. The Ancient understanding of the public realm, the realm of man as Zoon Politikon, was as the realm of genuine freedom — the private existed as the realm of necessity, of labour, that one temporarily retreated into.
The Protestant Reformation and the related rise of Capitalism had a transformative impact on human action. In particular, it muddled the relationship between various forms on human action as conceived by Arendt. The effect of the Protestant Reformation was to sacralise the most menial forms of labour qua labour³. Workers in precapitalist societies tended to have a view of labour as an unfortunate necessity, stemming from Original Sin. Max Weber illustrates this point with reference to the tendency of farm labours to work fewer hours when given higher wages⁴. The Protestant relaxation of Catholic condemnations of usury introduced an opportunity cost for forgoing work; that is, by forgoing additional work beyond the necessary amount, one is not simply trading off time for money, but the compound interest accrued on that money.
The connection between the Protestant Reformation and the process of disenchantment and rationalisation should be noted here. The rejection of the magisterial interpretive authority of Catholic Church in favour of ‘man and his bible’ created the space for radical and in-principle incommensurable disagreements regarding theological matters. Among the practical consequences of this process of religious subjectivism was the emergence of secularity in the political domain. Catholic philosopher Charles Taylor notes⁵ that, somewhat paradoxically, the Protestant Reformation also involved the cleansing of certain (supposedly) Pagan forms of folk religious practice that existed in Catholic Medieval Europe. This cleansing process fueled the largely Puritan witch hunts of the early modern period. The effect of this puritanical tendency was disenchantment, the tendency to remove ‘magic’ (Entzauberung, disenchantment, translates literally to de-magic-ification) from the world. This process of disenchantment culminated in Kant, which explicitly subordinated the divine will to the categorical imperative.
Returning to Arendt’s analysis of human action, the effect of the rise of modernity was to reverse the classical understanding of freedom. Under the conditions of modernity, man is free only in the private realm, and constrained in terms of action, which takes place in the pubic realm — that is, in the realm of work and political participation. Labour is definitionally unfree, since it encompasses activity necessary to sustain the life process. Work within modernity is generally governed by bureaucracy, measurement, the division of labour and codified rules. This is partly due to technological development; the ability to manage processes through the standardisation of time and physical measure, and the efficient division of labour made possible through machinery and production scale. The ability to mechanically reproduces artefacts, which accelerated during the modern period, had a degrading effect on work; mechanical reproduction shifts human action more and more into the realm of labour, since mechanical reproduction removes the possibility of individual expression and reflects the mechanistic nature of the biological life cycle⁶. Finally, political action is constrained by the smallness of the individual in comparison to the state — this theme of powerless in the political realm is explored in Hannah Arendt’s essay on Kafka. Political powerlessness and alienation, to Arendt, can certainly exist within the context of democracy — particularly the ‘Mass Democracies’ of the West⁷.
Law Abiding Citizen portrays the modern attitude towards public and private life. In the film, Rice views the private realm as distinct from his labour and as a domain of authentic freedom, in contrast with the public realm, where he is subject to constrained by and impersonal, and often arbitrary, rules and superiors in a hierarchical bureaucratic structure. The public/private distinction is reinforced by lighting and contrast in the film, with warm lighting used in Rice’s home is contrasted with the prevailing grey/green colour tone and the bleak winter of Philedalphia. Additionally, Rice’s home is never contextualised — that is, it is never established in relation to its environment. Not only are there no shots of the outside of the house, or the house from the perspective of the street (which would include other houses and thus conceptually blur the public-private distinction), but the windows of the house viewed from the inside are obfuscated by darkness, drapes or fog. Apart from creating a clear symbolic boundary between public and private within the context of the film, the choice to frame Rice’s home in this way brings into question the reality of the domicile. Paradoxically, the home’s lack of ‘placeness’ highlights its reification in the context of modernity, but also its lack of being-in-the-world. Gray is thus highlighting the paradox of the fetishised concept of a ‘private life’ that is completely separate from the public realm.
In the film, Clyde shatters the social/private distinction by involving Rice’s family in his revenge against the legal system, and by murdering his colleague. This clash is preluded by the execution scene, where the excruciating pain of Darby’s accomplice is intercut with the musical recital of Rice’s daughter. The rapid alternation between the juxtaposed scenes indicates that Rice is still bound by the delusion of the public/private distinction, but the accelerating alternation between the scenes foreshadows the blending of the public and private. As the public/private distinction breaks down further throughout the film, Rice’s willingness to act outside of circumscribed legal boundaries in the name of justice increases concomitantly. The film is thus relating the two phenomenon, Rice is willing to be constrained in the realm of human action because he is afforded freedom in the private realm. As Rice loses control of the private realm throughout the film, he becomes willing to assert control in the realm of Action through the defiance of bureaucratic and legal constraints on his behaviour in order to maintain some semblance of freedom.
The film also clearly presents constraints on human action in the context of Homo Faber and Zoon Politikon. In the realm of work, Rice is constrained by bureaucratic, standardised measures of effectiveness. Rice exists within a system of arbitrary rules that he is powerless to change, and in a subordinate role to superiors within the justice system. This is highlighted by Judge Birch chiding Rice for his mobile phone use, in precisely the way a teacher would threaten a student for the same; ‘Next time [the phone] is mine’. The absence of any indiction of democratic accountability within the film, the way in which the mayor arbitrarily declares a “State of Emergency”, and the shock-and-awe demonstration of military-style force indicates a large, powerful state that is, at best, ‘mass democratic’ if not outright authoriation.
In the film, the imposition of Weberian bureaucracy on the justice system creates alienation — Rice separates the labour of justice from any higher, Platonic conception of the Just, or even a just outcome outside the definitional constraints of the bureaucratic structure. Justice, as Rice’s vocation and in general, is shown as subject to instrumental rationality. The modern conception of justice, demonstrated in the film, is simply an outcome that conforms to a set of procedures; procedural justice becomes ‘Justice as Procedure’. This is demonstrated by Rice’s mechanistic approach to justice — he views his work in terms of his ‘96% conviction rate’, an essentially arbitrary measure of bureaucratic effectiveness typical of Weberian-style bureaucracies. This approach to justice led to Rice’s condemnation of an innocent man to death. There is a parallel between Rice’s instrumental and mechanical attitude towards justice, and that of Adolph Eichmann.
In the eighth chapter of Eichmann in Jerusalem, titled “Duties of a Law-Abiding Citizen”⁸, Arendt relates a bizarre account of Eichmann invoking Kant’s Categorical Imperative in the form of the universalisability principle, and the chapter is dedicated to unpacking the relationship between Eichmann’s actions and Kantian ethics. Eichmann and Clyde both characterise themselves explicitly as ‘Law Abiding Citizens’ in the context of a trial. Clyde’s self characterisation is obviously farcical and self conscious, and perhaps an explicit reference to Eichmann. In the preceding chapter, The Wanasee Conference or Pontius Pilate, Arendt gives an account of the Wannsee conference, which she described as decidedly banal and bureaucratic. Furthermore, Arendt describes the Jews who became instruments of murder as:
captains “whose ships were about to sink and who succeeded in bringing them safe to port by casting overboard a great part of their precious cargo”; like saviors who “with a hundred victims save a thousand people, with a thousand ten thousand”.
One way to read these consecutive chapters of Eichmann in Jerusalem is as a meditation on Western ethics and the inadequacies of the two dominant ethical frameworks that arose after the enlightenment — utilitarianism and deontology. For a philosopher concerned with the subject of evil, Arendt offers little in the way of a substantive moral framework in her writings. This likely reflects a generally pessimistic and understandable attitude towards moral progress post-enlightenment and post-Holocaust. Arendt’s belief in the validity of retributive justice implies a Kantian ethical approach, or at least rules out a utilitarian approach. Arendt was, however, deeply skeptical of the ‘The Rights of Man’
which had never been philosophically established but merely formulated, which had never been politically secured but merely proclaimed, have, in their traditional form, lost all validity
Arendt also objected to Kant’s inadequate response to evil as a “perverted ill will” that could be “explained away”. Arendt, no nihilist, clearly believed in the real existence of objective evil, which implies a belief objective morality. Arendt scholar George Kateb identifies the five distinct bases of the morality of Hannah Arendt: [historically contingent social] mores, Socratic morality, God’s commandments, the teachings of Jesus, and the morality of authentic politics. It should be noted that this composite conception of ethics is strikingly similar to Catholic social teaching, at least in comparison to the dominant modes of ethical thinking post-enlightenment.
Ethic and the Crucifixion
Law Abdiding Citizen highlights contradictions within ethical frameworks, particularly the Deontological ethical framework. The film highlights a relationship between Kantian ethics and Rational-Legal regimes (outside of the marginal case), which is the singular focus on abstract rules and process over particularity, outcome and the exception. There is an interesting parallel between the way in which Kantian ethics fall apart when subject to the marginal case (Elizabeth Anscombe’s Trolley Problem, or the Murderer at the Door), and the way in which Rational-Legal authority disintegrates when subject to the ‘State of Emergency’.
The film is remarkable in its refusal to exempt any character from moral culpability. The effect of the moral indictment of every character in the film is to produce moral anxiety and questioning. Arguably the most immoral act in the film was the state execution of the accomplice, who was wrongfully sentenced to death as a result of collusion between Darby and Rice. Darby and Rice, however, can only bear limited culpability in this respect. The state execution of an innocent man, and the freeing of a murderer, evokes parallels with the aspects of the Passion. Both the execution scene and Darby’s murder include obvious crucifixion imagery, with the (penitent) executed accomplice acting as The Penitent Thief described in Luke’s account of the Crucifixion of Christ. Darby, for obvious reasons, is analogous to the Impenitent thief, or to Barabbas.
This reading of the murder and execution scenes as mirroring the Crucifixion of Christ implies a reading of Nick Rice as a Pontius Pilate figure, who ‘washes his hands’ of each case through intentional forgetfulness. The execution scene is exceptional in its injustice and brutality. In fact, the execution was more abhorrent since it was the execution of an innocent man, and a man that Rice knew to be innocent — a la Pontius Pilate. The film constructs a tripartite analogy between Nick Rice, Pontius Pilate and Adolph Eichmann — small, cowardly men bound by an perverse form of instrumental rationality that produces the capacity for unspeakable moral failure.
The film firmly critiques detached, procedural justice by evoking the Crucifixion of Christ, however the scope of the film’s moral commentary extends beyond a critique of procedural justice. Each of Clyde’s acts of revenge, from Darby to Judge Burch to Rice’s colleague, exist along a moral continuum. The audience likely empathises with the murder of Darby, but the audience perception shifts as the moral culpability of each of the victims becomes more and more tenuous. Crucially, each of these murders are equally illegitimate from the perspective of consequentialism, since retributive justice in general is illegitimate from a consequentialist perspective. There can be no moral distinction made between the murders made from the perspective of Legal-Rationality and Emotivism, since that would imply some objective moral criteria. Similarly, the Kantian perspective offers no assistance in creating a moral distinction between the various murders.
The film critiques also ‘Rights’ discourse in no uncertain terms. Rice’s violation of Clyde’s ‘Civil Rights’, and his extrajudicial killing, were necessary to prevent Clyde’s act of terrorism. However, the reason for Clyde’s terrorism was in fact the rigid Liberal-Rational approach to rights to begin with. This produces the central paradox of the film, which is the philosophical victory of Clyde through his death, mirroring the Christ’s victory through death. The concept of death is a central aspect of the film, will be analysed in detail later in the essay
McIntyre and Emotivism
Before moving towards a more systematic discussion of the ethical subtext of the film, we should establish a conceptual link between the work of Arendt and McIntyre. Despite McIntyre never explicitly referencing the work of Arendt in After Virtue, both are linked by a scepticism towards the enlightenment and a critique of the idea of universal human rights, with McIntyre taking a birds-eye view of Western moral philosophy and Arendt focusing on the particular failings of moral thought post-Holocaust. Specifically, Arendt and McIntyre are linked through the somewhat neglected work of German philosopher Max Scheler. It’s somewhat fitting that Arendt is linked to McIntyre through the work of Scheler, who was, like Arendt, born into a middle class German-Jewish family and, like McIntyre, converted to Catholicism later in life. Hannah Arendt’s conception of Homo Faber is indebted to Scheler’s engagement with American Pragmatists John Dewey and Sidney Hook. Scheler’s critique of formalised ethics, Formalism in Ethics and Non-Formal Ethics of Values, strongly reflects Hannah Arendt’s cynicism about the state of Western moral philosophy. Scheler’s work specifically engages with the ‘formal’ ethics of Kant and Bentham, just as Arendt engages with the ‘formal’ ethics of Kant and Bentham in Eichmann in Jerusalem. Scheler’s student, Edith Stein, also a German-Jewish convert to Catholicism, linked Scheler’s phenomenology to Thomism and Virtue Ethics. Edith Stein, alongside Analytic philosophers like Elizabeth Anscombe, played a role in the re-emergence of Thomism in Western Philosophy. Anscombe, another Catholic convert (from Anglicanism) and an analytical Thomist, preceded Alasdair McIntyre’s work on Virtue Ethics. Interestingly, Anscombe, like Arendt, was keenly interested in the philosophy of action. The complex relationship between Arendt and Catholic thought likely deserves more investigation.
McIntyre and Emotivism
Alasdair McIntyre explicitly links Weber to ethical relativism, specifically Emotivism. Importantly, the ethical doctrine of Emotivism
entails the obliteration of any genuine distinction between manipulative and non-manipulative social relations
McIntyre points out that the consequence of Emotivism’s obliteration of manipulative and non-manipulative social relations is the obliteration of the the Weberian distinction between power and authority — Authority, under the Weberian rubric makes some claim to legitimacy — be that Rational-Legal, Traditional or Charasmatic. But by Weber’s own belief in the essential separation of normative claims from claims of fact, the only valid, non-subjective claim a particular authority can make to Rational-Legal legitimacy is effectiveness, which is circular since bureaucratic ‘effectiveness’ means matching means to ends (ends are entirely subjective under an emotivist rubric). This collapses the Weberian Rational-Legal understanding of authority into ‘successful power’. We can see here the connection to Hannah Arendt’s identification of the modern tendency to reduce permanent artefacts produced by work to means (the reduction to the economic, specifically), as opposed to ends in themselves.
Following on from this this understanding of the Rational-Legal authority as ‘successful power’, we can further understand ‘effectiveness’ in terms of the ability of power to protect and expand itself. This leads to a the natural conclusion that justice within a regime claiming legitimacy on the basis of Rational-Legal authority exists primarily to ensure societal stability — this is in fact the Hobbsean/Machiavellian justification for the rule of law. The rationality of law is a product of the stabilising effect of the fair application of a consistent set of rules, and not any particular transcendental claim. Thus, the particular set of rules within a particular justice system is essentially arbitrary, at least from an ethical perspective. What matters is not the content of the rules, but their existence and fair enforcement. Due to the relationship between Weberian bureaucracy and Emotivism, justice can only be legitimate within the constraints of procedural justice. Claims to be acting in the name of justice outside of the prescribed system of justice are necessarily illegitimate, since claims to justice outside of the justice system are essentially statements of preference.
Taking a McIntyrean definition of the Rational-Legal authority as ‘successful power’, we can expect that a regime claiming authority on the basis of Rational-Legal authority would violate its own principles in the marginal case (i.e. a situation where the regime is threatened existentially). Such a regime would violate norms and work outside typical bureaucratic measures in order to ensure its own survival, since the claim to legitimacy on the basis of effectiveness is simply effective power, and power ceases to be effective if it no longer exists. This is precisely what we see in Law Abiding Citizen. The regime portrayed in LAC, which initially claims legitimacy on the basis of Rational-Legal Authority, begins to violate its own rules as the reality of Clyde’s threat to the regime becomes evident. In fact, the extent to which the regime violates Clyde’s rights is proportional to the percieved threat that Clyde poses to the regime, which escalates throughout the film.
Initially, the set of rules within the film are portrayed as highly rigid, including Judge Burch’s rules regarding evidentiary standards and mobile phone usage. As Clyde’s threat becomes evident, Judge Burch concedes to Rice’s request for a warrant, ‘violating his civil rights for some murky sense of the greater good’. More outrageously, Judge Burch later justifies Clyde’s likely illegal subjection to solitary confinement “I’m the ACLU’s biggest fundraiser in this state. You wanna put that piece of shit in solitary? Good”. As if to hit us with a hammer, Rice exclaims “Fuck [Clyde’s] civil rights” after illegally breaking into Clyde’s property without a warrant. This dialogue is clearly self-conscious on multiple levels. It’s obvious that Gray, the director, is making a point about the evolution in attitudes throughout the film in response to Clyde’s threat. The explicit invocation and subsequent violation of civil rights on at least 3 occasions doesn’t just demonstrate ideological tension to the audience, it portrays the cognitive dissonance of regime operatives who are coming to terms with the essential nature of politics.
Heidegger, Death, Resurrection and Resolution
The final scenes of Law Abiding Citizen portray the resolution of the anxiety established in the film through the process of death. The film is suffuse with death. Death is the premise and plot of the film. Death is the reason for Clyde’s actions, the actions themselves and the resolution of the conflict in the film. In the beginning of the film, Rice displays an inauthentic, de-individualised attitude towards death, specifically towards the death of Clyde’s wife and daughter. Death, as an existential exception, plays a critical role as the catalyst for self-realisation and the resolution of anxiety in the film. Death is an exception to being in its absolute certainty and in the sense that it lacks ‘relation’ (in contrast to birth, which is certainly relational). Death is radically ‘one’s own’ — it can’t be taken away, ‘out-stripped’ or taken in place of another (with the possible exception of religious sacrifice). Death, the negation of being, also paradoxically forms an essential part of Dasein, “as soon as man comes to life, he is at once old enough to die”. For Martin Heidegger, the correction orientation with respect to death, Being-towards-death, is an essential part of personal authenticity.
Heidegger makes the point that Being-Towards-Death cannot be understood quantitatively, or through observation, “we cannot compute the certainty of death by ascertaining how many cases of death we encounter”. Death has to be radically confronted on a personal level. Although the various deaths in the film undoubtably act as a catalyst for Rice’s authentic confrontation of death, the act of confronting and killing Clyde in the penultimate scene causes an transformation within Rice; who “no longer makes deals with murderers, [Clyde] taught me that”. The final scene of the film, the recital, reveals the Clyde’s transformation as a result of an authentic confrontation with death.
The accomplice execution scene portrays the Liberal-Rational anxiety towards death — the desperate and absurd attempt to de-problematise the taking of a life through creating a farsical separation between the action of execution and act of any given regime operation. The film accurately portrays the surreal quality of execution within the context of a Liberal-Rational regime. Execution, and punishment more generally, within a Liberal-Rational Regime is profoundly dehumanising in precisely the way described by Arendt and Michel Foucault. The execution takes place in a hidden setting, execution no longer exists as ‘Spectacle’⁹. The process of execution is highly medical-procedural, if not outright mechanical — intended to minimise pain and depersonalise the execution process. The treatment of death as a bureaucratic, Rational-Legal process, combined with the fact of the innocence of the executed subject, reflects the un-serious way that the regime treats death¹⁰. The scene portrays Rice divided and confused. Rice is shown as symbolically split by his commitment to his family and to his vocation, demonstrated by the intercut recital scene. The final two scenes, the killing of Clyde and the second recital scene, demonstrate Rice’s unification and the moral clarity. Rice’s extrajudicial killing of Clyde in the penultimate scene is act of authenticity. Rice doesn’t seek to hide behind procedure or shield himself from moral accountability. He instead engages in an act of will and moral certainty that transcends the bounds of the legal system.
An essential aspect of the film genre of action/drama is the interplay between themes of death and resurrection. If death is the ultimate exception in the Heidegerrian sense, resurrection is a second order exception; that is, resurrection is the thing that violates the exception of being — the exception to the exception. There is no possible way to confront to the double-exception of the miracle of the Resurrection from within the frame of Enlightenment rationality; just as one cannot confront and integrate the reality of death empirically.
The German political philosopher Carl Schmitt, a Roman Catholic influenced by Kierkegaard and Juan Donoso Cortés, relates the political concept of ‘exception’ to ‘miracle’, particularly the ultimate miracle of the resurrection. A miracle is an instance of the ultimate sovereign transcending the laws of nature and reason in an act of will. The miracle of the resurrection is the ultimate violation of the ultimate norm of human existence, the finality of death. Miracle makes clear the relationship between creator and creation, just as the state of exception makes clear the relationship between sovereign and law. The theological, and specifically Christian, dimension of the ‘political exception’ connects Schmitt to Arendt and Scheler’s grappling with the inadequacies of impersonal, rule-based ethical systems.
As Schmitt presents a dialectical tension between rule and exception, between Geltung and Wirksamkeit, The Liberal-Rational state and Ausnahmezustand, Saint Paul presents a tension between pistis and nomos, faith and law¹¹. Interestingly, the film explicitly references the concept of Nomos — Clyde impersonantes an employee of a cleaning company called “Nomos” during his attempt to destroy City Hall. Clyde could be seen as a representative of Nomos, ‘The Spirit of the Law’, tasked with ‘cleansing’ the decadent Rational-Legal order. These tensions, between Nomos and Pistis, and the rule and the exception, are not dialectical in the strict Hegelian sense, but in the sense the pairs find their definition with respect to that which they are in opposition to. It’s impossible to have a ‘state of exception’ without an ordinary state of being. Hannah Arendt makes a similar point in her reading of St Paul’s letter to the Romans in The Life of the Mind. The concept of law and will exist in a mutually necessary and dialectical relationship in the New Testament, ‘the discovery of the will arose from an imperitive demanding voluntary submission’. The Old/New distinction between “thou shalt” and “thou shalt will” introduces the possibility of obedience and, more importantly, disobedience.
The ultimate story of will and submission in the Old Testament is that of Abraham and Isaac. God’s demand of Abraham to sacrifice his only son, Isaac, on Mount Moriah was the subject of Soren Kierkegaard’s Fear and Trembling. Abraham’s obedience was the example of the ‘Teleological Suspension of the Ethical’. Kierkegaard’s Enten-Eller, analysed in depth by Alasdair McIntyre in After Virtue, displays the progression between three dialectical (and equally necessary) stages, the Aesthetic, the Ethical and the Religious. The contrast between the Ethical and the Religious can be read as a special case of the distinction between the rule and the exception, or the universal and the partiuclar. The ethical mode represents a universal tendency, the tendency that reached its zenith in Kant who subordinated God’s will to the Categorial Imperative. The religious mode involves subordinating the universal to subjectivity and God’s will. Carl Schmitt quotes Kierkegaard’s Fear and Trembling at the end of Chapter I of Political Theology:
The exception explains the general and itself. And if one wants to study the general correctly, one only needs to look around for a true exception. It reveals everything more clearly than does the general. Endless talk about the general becomes boring; there are exceptions. If they cannot be explained, then the general also cannot be explained. The difficulty is usually not noticed because the general is not thought about with passion but with a comfortable superficiality. The exception, on the other hand, thinks the general with intense passion
Schmitt and Politics
Law Abiding Citizen draws heavily on the work of German political philosopher and jurist Carl Schmitt, particularly Political Theology, Legality and Legitimacy and The Crisis of Parliamentary Democracy. Clyde references Carl von Clausewitz, whose aphorism ‘War is the continuation of politics by other means’ in an antecedent of Schmitt’s understanding of the political as necessitating the possibility of violence. The film all but explicitly references a lesser known work of Schmitt, Nomos of the Earth, and the latter half of the film presents a clear Ausnahmezustand, or a State of Exception. A true State of Exception is an existential threat that cannot be defined, constrained or circumscribed within the existing legal order.
The concept of Ausnahmezustand implies a sovereign who can invoke the state of exception. Indeed, the Schmittian definition of the sovereign is ‘he who decides on the state of exception’. When the state is presented with an existential emergency, it must dispense with what Schmitt described as ‘normativism’ in favour of ‘decision’. According to Schmitt, the best a liberal regime can do normatively is to state who can act in such a case.
By engaging with a marginal case within the framework of liberal democracy, Schmitt is critiquing Legal Positivism, particularly the work of the Neo-Kantian legal positivist Hans Kelsen. Schmitt also engages directly with Weber in The Crisis of Parliamentary Democracy and Legality and Legitimacy. Kelsen, like Weber and Hume, creates a boundary between statements of fact and statements of preference — the is/ought distinction (Kausal-und-Normwissenschaften in the words of Kelsen). Schmitt’s response in his early work Gesetz und Urteil (Law and Judgment) establishes the tension between Geltung and Wirksamkeit, or normative validity and practical efficiency. Schmitt hardens his critique in Political Theology with the concept of Ausnahmezustand, the tension between Geltung and Wirksamkeit taken to its limit.
The events of the latter half of LAC bears a resemblance to ‘crisis of parlimentary democracy’ in Weimar Germany — Hitler invoking Article 48 of the Weimar constitution, a State of Emergency, in response to the Reichstag Fire. Parenthetically, Max Weber was involved in the drafting of the Weimar constitution and Hans Kelsen was the author of the more successful Austrian constitution. Clyde’s manipulation of legal technicalities and procedures in the court scene reflects the rise to power of the Nazi regime through the legitimate use of the legal procedures of the Weimar Republic. This is mirrored by the invocation by the Mayor of the ‘Emergency Provision of the Philedalphia Code’. Clyde’s plot involved the destruction of City Hall, the seat of administrative power within the film.
The regime’s willingness to violate Clyde’s civil rights belies an essential contradiction at the heart of the regime portrayed in the film. If there does exist a “greater good” worthy of violating civil rights for, why is that ‘greater good’ not enshrined normatively? If civil rights are ‘God-given’, and thus inviolable, how can there be a ‘greater good’ that justifies the violation of civil rights? If civil rights are malleable and contingent, why throw out damning evidence on the basis of a meaningless technicality? Why should the audience or the law view Rice’s extrajudicial killing of Clyde at the end of the film differently to Clyde’s extrajudicial killing of Darby or Judge Burch?
Answers the questions raised by LAC lie in Schmitt’s 1932 work Legality and Legitimacy, and the historical context surrounding the text. The title refers to Weber’s claim of Legality (in Weberian parlance, Rational-Legal authority — although Schmitt neglects the rational aspects of Weber’s justification for Rational-Legal authority) as a form of Legitimacy. The content of the text takes issue with that claim within the context of the political turmoil of Germany in 1932, with particular focus on the concept of ‘obedience’, reflecting the Kierkegaardian reading of Abraham and Isaac. Schmitt views obedience as an exclusive feature of (Weberian) Traditional Authority. It’s no coincidence that Traditional Authority also relies on religious authority. Schmitt, writing in the context of the rise of German Communists and National Socialists, makes the point no constitution can espouse neutrality towards its own existence or facilitate its own destruction. Schmitt aims to extract an admission from liberals of the existence of a pre-legal and pre-constitutional set of substantive values, thereby undermining the Rational-Legal claim to legitimacy. Schmitt puts it most succinctly in the final words of Legality and Legitimacy
The core of the Second Principal Part of the Weimar Constitution[1958/345] deserves to be liberated from self-contradictions and compromise deficiencies and to be developed according to its inner logical consistency.
Achieve this goal and the idea of a German constitutional work is saved.
Otherwise, it will meet a quick end along with the fictions of neutral majority functionalism that is pitted against value and truth. Then, the truth will have its revenge
Conclusion
Despite its poor reception by critics, Law Abiding Citizen is complex and multidimensional. The extent to which the political, ethical and legal subtext was conscious on the part of Gray is debatable. The film does in fact accurately reflect a strain of political thought that is Anti-Enlightenment and Ant-Weberian in character. This strain of thought is exemplified by the philosophers and writers explored in this essay; Hannah Arendt, Carl Schmitt, Martin Heidegger, Soren Kierkegaard and Alasdair McIntyre, along with writers not explored in great details, like Charles Taylor. These writers exist in the context of an existential and postmodern strain of Christianity that eschews many aspects of modernity. ‘Law’, taken in an expansive sense, is the underlying basis of modernity. These writers are united in their critique of modernity through the invocation of the concept of the exception, which exists as the dialectical opponent of the ‘Law’.
Footnotes
- Jurgen Habermas explicates a theory of the emergence of the public sphere in The Structural Transformation of the Public Sphere. This is also reflected in Rawl’s political liberalism — the public sphere is related to the concept of an overlapping consensus between reasonable political actors
- Several of Gray’s films portray criminal protagonists, The Italian Job, Straight Outta Compton, Set It Off, Friday. The remaining films portray the justice system in an unfavourable light, The Negotiator, Straight Outta Compton,
- The effect of the protestant reformation on labour is captured in the image of a cobbler hunched over his work
- (PWE, p15–16). Working fewer hours for higher wages reflects a pre-economic view of labour that is more in like with Arendtian Labour (i.e. meeting the basic requirements for survival, which are fixed). Economics from Smith on would predict that a worker would work for a longer period. Specifically, Smithian economics views human choices as utility trade-offs, selecting leisure over work is a rational trade off based on the utility provided by leisure in comparison to the monetary compensation of work. If the compensation from work increases, the cross-over point in hours per day/week where leisure provides more utility than work increases
- Charles Taylor notes this in passing in The Secular Age, but expands upon the concept in a lecture
- Part of this argument is based on aspects on my own reading of Walter Benjamin’s “The Work of Art in the Age of Mechanical Reproduction”, however Benjamin’s prognosis of the effect of mechanical reproduction is decidedly different to Arendt’s
- (Vita activa, p. 250)
- It’s unlikely that the interweaving of references in this film are entirely unintentional. The term “law-abiding citizen” was reintroduced into the English language by Eichmann (Google Ngram Viewer shows a peak in 1966, a few years after the trial of Eichmann). The term is a translation of Eichmann’s native German, and perhaps makes more sense I the context of the German language
- This perspective of Execution within the modern justice system is based on Michel Foucault’s Discipline and Punish
- The regime is “un-serious” with respect to death, not in the sense that it doesn’t take the process of execution “seriously” from a procedural perspective, but due to the belief that it can integrate death into itself, thus subordinating the existential character of death to Enlightenment rationality
- Paul’s presentation of this Pistis/Nomos tension is interesting, but not entirely contradictory, given Christ’s proclamation to “give unto Caesar what is Caesar’s”.
References
ARENDT, H. (1963). On revolution. New York, Viking Press. Specifically, Arendt critiques the French Revolution from an anti-materialist perspective; her description of the French Revolution as a “demand for bread” is degrading in light of her work on Action, whereas “the conquest for bread” has a very different connotation in Marxist circles.
Hannah Arendt, Reflections on Little Rock — Dissident Mag (Originally meant for publication in Commentary Magazine) https://www.dissentmagazine.org/article/reflections-on-little-rock
Arendt, H., Allen, D. and Canovan, M., 1958. The human condition. 2nd ed. pp.29, ibid, 32
Max Weber, The Protestant Work Ethic and Science as a Vocation
[3]Charles Taylor comments on this aspect of disenchantment in the Q&A portion of his lecture https://www.youtube.com/watch?v=L3Hy31vv3uY
Kateb, George. “Existential Values in Arendt’s Treatment of Evil and Morality.”Social Research, vol. 74, no. 3, 2007, pp. 811–854. JSTOR, www.jstor.org/stable/40972127. Accessed 26 Aug. 2021.
[6]Alasdair McIntrye, After Virtue
[7] “Weber is then, in the broader sense in which I have understood the term, an emotivist and his portrait of a bureaucratic authority is an emotivist portrait. The consequence of Weber’s emotivism is that in his thought the contrast between power and authority, although paid lip-service to, is effectively obliterated as a special instance of the disappearance of the contrast between manipulative and non-manipulative social relations.”
[8] The juxtaposition of the evidentiary rules and the injunction regarding mobile phone usage in LAC highlights the arbitrary nature of rules
[9] At the climax of the film, Clyde is disguised as a cleaner for a company named “Nomos”. This is a reference to the Greek daemon Nomos, literally the “Spirit of the Law”. In the context of sociology, the term Nomos originates in one of Schmitt's early works, Three Types of Juristic Thought. Schmitt expands upon the concept of Nomos in his later work, The Nomos of the Earth.
[10]Jacobson, Arthur, and Bernhard Schlink, editors. Weimar: A Jurisprudence of Crisis. Berkeley: University of California Press, c2000 2000. http://ark.cdlib.org/ark:/13030/kt209nc4v2/
[12]Delacroix, Sylvie. (2005). Schmitt’s Critique of Kelsenian Normativism*. Delacroix, S. (2005) Schmitt’s critique of Kelsenian normativism. Ratio Juris, 18 (1). pp. 30–45. ISSN 09521917. 18. 10.1111/j.1467–9337.2005.00284.x.
[14] No reference is made to any other part of the American political or legal system in the film. Philadelphia is effectively portrayed a stand-alone city, not subject to or able to be aided by state or national powers
[15]Schmitt, Carl. Legality and Legitimacy: , New York, USA: Duke University Press, 2004. https://doi.org/10.1515/9780822385769
[16] Much of the value of Legality and Legitimacy comes from the examination of historical context surrounding the text, which is provided in the John P. McCormick’s foreword in the 2004 English translation.
[]The dialectics of Paul: on exception, grace, and use in Badiou and Agamben https://www.tandfonline.com/doi/full/10.1080/21692327.2016.1231620
