Reviewed by Ian Cram, School of Law, Leeds University. Email: I.G.Cram [at] leeds.ac.uk.
Lieve Gies is a lecturer in the School of Law, Keele University, United Kingdom. Her book fits within much of the sociological/cultural research slant of that law school. To quote from its own website, this ‘distinct’ law school ‘is committed to locating the study of law within social, cultural, political, historical and comparative contexts.’ For its part, this monograph is certainly interdisciplinary in tone, although the interdisciplinarity does not extend to detailed coverage of legal materials or legal analysis, government policy documents or wider political/democratic theory. The aim of the book is summarized by Gies in the following terms:
I intend to unpick the various arguments and assumptions which seem to be holding sway over thinking about law and the media. My aim is not to prove or disprove such assertions – this is not an empirical study –but to confront and contrast them with alternative perspectives on the subject (p.3).
The confronting and contrasting is pursued in chapters with the following headings: ‘Anatomy of a Troubled Relationship,’ ‘Media, Everyday Life and Legal Consciousness,’ ‘Reality TV and the Jurisprudence of Wife Swap,’ ‘Method, Audience and Social Practice,’ ‘Cultures of Legal Self-Help,’ ‘Law and the Media: Liberal and Autopoietic Perspectives,’ ‘Press Judges and Communications Advisers in Courts,’ and ‘Law and the Media: in Whose Favour are the Scales Tipping?’
There are several arguments in LAW AND THE MEDIA – THE FUTURE OF AN UNEASY RELATIONSHIP. One central claim is that the understanding(s) of law and legal institutions among members of the general public cannot be ascribed entirely to popular (mis)respresentations in mainstream media. In Gies’ view, it is over-simplistic to see the viewer as adopting passively the representations in crime reconstructions and courtroom dramas. Class, race, gender (and other factors tied to the construction of social identity) will also shape a person’s perceptions of legal processes and institutions. All the same, Gies is aware of fears that where media-induced misrepresentations about law occur in a more or less relentless manner, the authority of law will crumble. She considers such fears as lacking in perspective, although rightly concedes the undoubted power of concerted media pressures to prompt politicians into policy announcements intended to head off/capitalize on ‘moral panics.’
The intellectual framework in which Gies locates her arguments is to be found across a wide array of academic writing. Communications theory, feminist discourse, and foundational [*478] sociological treatises all feature at various points in the text. In the effort to expound these various theoretical perspectives, the connection between media and culture on the one hand, and law, legal processes and institutions on the other, at times becomes rather tenuous. Take for example Chapter 4 which looks at the phenomenon of popular culture and ‘juridification’ as reflected in reality TV. This chapter has as its focus Wife Swap - a programme in which two wives swap households (or are swapped by their menfolk). Gies claims to find in this type of popular culture a form of ‘legislating’ in that the participants are able to engage in rule-making and set anew the terms of a contract within the domestic context. In a similar vein, we are told that programmes such as Pop Idol and The X Factor provide an example of the permeation of legal processes in everyday life through the ‘neutral judges’ who are employed to deliver verdicts on the talent on show. How much insight this material yields into law and legal processes is, however, questionable. By the author’s own terms of course, other broadcast output beyond the reality TV genre could be mined for scholarly analysis. This UK-based reviewer looks forward with eager anticipation to the dissection of the ‘law’ and ‘legal processes’ that lie at the heart of The Chelsea Flower Show or Crufts.
A chapter which does appear to engage more directly with the theme of law, legal processes and media representation appears in an interesting account towards the end of the book in Chapter 7. This section of materials considers the evolution away from judicial reticence to talk outside the courtroom about legal matters (as reflected in England in the ‘Kilmuir Rules’) towards a more media-friendly stance. Gies gives her readers a fascinating insight into Dutch practice and notes more generally the trend across a number of jurisdictions including England and Wales for judges (and their officials) to communicate directly with the public via websites or in radio and television interviews. In this chapter, Gies claims there is scant evidence to support the claim that law is being ‘trampled on by the media riding roughshod over precious legal principles’ (p.126). Drawing upon an argument advanced in an earlier chapter, she argues that law and media are separate autopoietic systems occupying distinct ‘make-believe’ worlds and that greater judicial engagement with the media and the general public should be seen as an attempt by ‘law’ to wrest control over the representation of issues from the media. The latter, we are told, is driven by the imperative to create its own reality. The problem with the relativism underpinning this argument is that it does not address the fact that judges and courts exercise public power in the name of the people. As such, most would argue that there needs, in a properly functioning democracy, to be a means of making judicial power accountable. Where the media distort what happens in our courtrooms (as sections of the print media do regularly in the context of sentencing of offenders), the ideal of informed, critical scrutiny over public office holders is threatened. True, the judges too may well wish to distort, but the correct response to this is to allow virtually unfettered reporting and commentary about court proceedings from a wide variety of sources. [*479]
For a monograph that claims to be looking to the future, it was surprising that no account of the debates surrounding the possible televising of court proceedings found its way into the discussion. In the United Kingdom, the Department of Constitutional Affairs published a consultation document entitled ‘Broadcasting the Courts’ in 2004. Analysis of court broadcasts would surely have provided material for Gies’ central argument about the extent to which media representations of law dominate/influence popular perceptions of law and legal institutions. Does the broadcasting of selected/all court proceedings offer a means of rendering more accessible what Gies labels the ‘bewildering labyrinthine force with which individuals struggle to relate to in a meaningful way’? To what extent would the courts/broadcasters enjoy editorial control over output? Likewise, the existing (though varied) pattern of broadcasting of US legal proceedings would have provided an interesting set of empirical data to consider and test against the book’s central arguments. Whilst the author’s explicit disavowal of the relevance of empirical data at the outset of her work explains this omission, discussion of how television currently conveys judicial processes (and how it might in the future) nonetheless seems worthy of study.
This in turn prompts the critical question of the book’s intended audience. The volume of cultural, communications and feminist theory that the book picks up at various junctures and sets down again is suggestive of the most plausible answer here. Surprisingly for a book that purports to deal with law and media, there is but a passing nod to the constitutional setting within which the relationship between law and the media is situated in Europe. Neither does Gies feel constrained to link up her account to theories of free speech beyond the assertion on p.93 regarding the idea that the media serve the interest of maintaining an informed and engaged citizenry. From what was noted above, readers will not be surprised to see Gies dismiss in somewhat sweeping fashion the idea of an informed citizenry thus: ‘This is evidently as much of an elegant legal fiction as it is a glossing over of the realities of democracy-in-action.’ Is Gies really claiming that free media do not contribute at all to the conditions that are essential for informed self-rule? Whilst distortion and self-interest will plainly influence what issues media organisations cover and the slant that is put on them (and Gies is not the first to make this point), it is surely wrong to discard so peremptorily the actual and potential democracy-enhancing role played by the media. In any event, in the modern era of fragmented electronic communications and a sufficient level of educational and electronic literacy, we no longer need rely upon traditional media organisations to gain access to news and opinions or to pass on our own thoughts on the rest of cyberspace. We can all constitute ourselves into web site producers and bloggers and regale the world with the benefit of our opinions and expose ourselves to the opinions of others. The internet has democratized speech to an important extent by allowing each of us to influence the formation of opinion, a process which must presumably loosen the grip of self-serving multinational media corporations and diminish to some extent the latter’s distorting effect upon our perceptions. Gies herself remarks on the practice of blogging in the context of self help sites [*480] (such as those offered by self-appointed divorce ‘gurus’) and notes how these sites affect the way people think about law and legal processes. ‘Law’ however is not alone in being the subject of outside, non-professional comment and evaluation. Just how these lay readings of law and legal norms equate to or are different from lay readings of psychology (‘boost your own confidence levels’) or other disciplines is not, however, made explicit. At the same time, important work by eminent free speech scholars in this area (including Cass Sunstein (2001) and Eugene Volokh (1995) in monographs and leading journal articles seems to have been overlooked. Sunstein for example reaches the interesting conclusion that in the brave new world of virtually unlimited choice of media, most of us are likely to seek out sites and blogs that confirm our perceptions and prejudices about the world, rather than those which challenge our world views. This reviewer would have been interested to see Gies’ response to Sunstein’s prejudice-reinforcing thesis.
Finally, for the sociologically uninitiated, a word of warning. There are some dense passages of text that will leave some struggling for a sense of the author’s meaning. Take for example this passage about ‘juridification’:
The self-reproducing lifeworld forms the inevitable backdrop for communicative action which is grounded in intersubjectivity and which is ultimately aimed at mutual understanding between social actors through the achievement of a consensus in which participants find each other not in the substance of a decision but in the procedure by which it is arrived at. By contrast, the system, which for Habermas constitutes a separate social sphere, is dedicated to the pursuit of economic and political goals through instrumental and strategic rationality. Put crudely, the excesses of modernity can be witnessed from the gradual colonisation of the lifeworld by the system, resulting in increased bureaucratic control that disrupts the spontaneity of communicative structures. (p.25)
To conclude, this is a text that will be of most interest to students of communications theory and practice as well as sociologists, rather than lawyers or political scientists. It is well-referenced and readers will be able to follow further lines of inquiry via this means.
Department of Constitutional Affairs. 2004. ‘Broadcasting the Courts.’ Consultation Paper 28/04 (November 2004).
Sunstein, Cass. 2001. REPUBLIC.COM. Princeton, NJ: Princeton University Press.
Volokh, Eugene. 1995. ‘Cheap Speech and What It Will Do.’ 104 YALE LAW JOURNAL 1805-1850.
© Copyright 2008 by the author, Ian Cram.