Law, Photography, Decontextualization

Irving Penn, Three Asaro Mud Men, New Guinea (1970)

I want to cross two very different experiences on each other, hinging them on the process of decontextualization. The first experience is of looking at Irving Penn’s photos in his classic 1974 collection Worlds in a Small Room. The second one is of arguing the unconstitutionality of constructive murder in the case of R. v. Laviolette [1987] 2 SCR 667. 

Penn’s photos are black-and-white portraits of Peruvian peasants, Parisian tradesmen, Cretan old-timers, Spanish gypsies, New Guinea tribesmen, and so on. Penn didn’t photograph them in their natural environments. Instead, he invited them into his portable studio, and photographed them against a neutral backdrop. In his Introduction to Worlds in a Small Room, Penn said, “Taking people away from their natural circumstances and putting them into the studio in front of a camera did not simply isolate them, it transformed them.” 

Yes, but did it transform them in a good way? That’s the question I struggle with every time I look at these arresting pictures. Janet Malcolm, in a review of an exhibition of Penn’s cigarette butt photos, in which he used the same isolating method he used in Worlds in a Small Room, said, “Penn’s butts efface reality” (Diana & Nikon, 1980). That strikes me as exactly right. The same applies to his Worlds in a Small Room portraits: they remove people from their own context and treat them like botanical or zoological specimens. They efface reality. To me, that’s one of the most damning things you can say about a work of art. 

The word for Penn’s method is “decontextualization” – divorcing something from its original context. It’s a good description for what happens in certain legal cases, too. I was reminded of this point recently when I read Dale Carpenter’s Flagrant Conduct (2012), an absorbing account of Lawrence v. Texas, the landmark Supreme Court decision that overturned America’s sodomy laws. Carpenter shows how Lawrence and Garner’s lawyers, realizing the constitutional potential of their case, repackaged it. They persuaded Lawrence and Garner, who denied engaging in same-sex sodomy, to change their plea from “not guilty” to “no contest.” That eliminated argument on the facts and focused the case solely on the constitutionality of the law they were charged under. As Carpenter says, “Lawrence advanced as a case because nobody wanted to know what the underlying facts were.”

The conversion of raw facts to elegant legal argument fascinates me. I engineered such a conversion in R. v. Laviolette, in which the Supreme Court of Canada struck down constructive murder. The facts were brutal. Three young men went at night to the parish house at Kelly’s Cross, Prince Edward Island, with the intent of robbing it. The oldest of the three, Stephen, went inside and fatally struck the occupant, a priest, on the head with a length of iron pipe. All three were charged with homicide under the doctrine of constructive murder, which holds that if a murder is committed during the course of commission of a felony, such as break-and-enter, all participants in that felony are guilty of murder. 

I represented one of the two men who stayed outside the parish home. At trial, he was found guilty. In the time between his trial and his appeal, the Canadian Charter of Rights and Freedoms was enacted. On appeal, I argued that constructive murder offended Charter section 7, which guarantees, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” I contended that one of the principles of fundamental justice is that intention to murder is an element of the offence of murder, and that constructive murder eliminates that element. The Prince Edward Island Court of Appeal rejected my argument. We appealed to the Supreme Court of Canada. On December 3, 1987, the Court allowed the appeal, striking down the doctrine of constructive murder on the ground that it was inconsistent with Charter section 7.

But I’ve always had a twinge of guilt about Laviolette – the way the case was severed from its grisly facts (iron pipe, smashed skull, loss of a singular life), and repackaged as an abstract constitutional argument about the essential ingredients of murder and the meaning of “principles of fundamental justice.” It effaced reality.  

March 12, 2012 Issue

I devoured Dahlia Lithwick’s “Extreme Makeover,” in this week’s issue. It’s a review of Dale Carpenter’s Flagrant Conduct, which Lithwick wonderfully describes as “a chronicle that peels the Lawrence case [Lawrence v. Texas, a 2003 United States Supreme Court decision, striking down anti-sodomy laws] back through layers of carefully choreographed litigation and tactical appeals, back to the human protagonists we never really get to know, and back again through centuries of law criminalizing 'unnatural' sexual activity.” I’m a sucker for “behind-the-scenes” analysis of court cases, for reportage that sets out to show what “really” happened. One of my all-time favorite New Yorker pieces is Leonard Garment’s detailed backstage account of Times, Inc. v. Hill, a privacy dispute that the Supreme Court decided on constitutional grounds (“The Hill Case,” The New Yorker, April 17, 1989).

Lithwick’s article centers on a very interesting legal phenomenon – the way cases are converted to “vehicles” for the argument of weighty constitutional issues. For example, with respect to Lawrence v. Texas, Lithwick says, “In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story.” Lithwick seems to think that storytelling is an important aspect of legal argument. In “Extreme Makeover,” she says:

As Carpenter’s nuanced exploration of what worked in Lawrence v. Texas makes clear, the Supreme Court is both supremely open to and supremely closed off from the world around it. That’s why we come to the Court, play by its rules and tell the Justices stories they like to hear about people who remind them of themselves.

I think Lithwick overemphasizes the role that narrative plays in legal argument, especially legal argument at the Supreme Court level. There’s a distillation process that occurs as a case makes its way through the appellate process. By the time it arrives in the highest court, it’s been reduced to a question of pure law. The argument at that stage turns on precedent, and consists of interpretation and comparative analysis.

Lithwick isn’t the only writer who views law in terms of narrative. Janet Malcolm, in her great “Iphigenia In Forest Hills” (The New Yorker, May 3, 2010) says, “If we understand that a trial is a contest between competing narratives, we can see the importance of the first appearance of the narrators.” By “narrators,” she means the prosecutor and the defense attorneys. Later in her piece, she says,

We go through life mis-hearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative.

I think it’s misleading to describe trials and appeals solely as matters of storytelling. Trials are evidentiary processes. Offences are broken down into their constituent elements; the key issue at trial is whether the prosecution has proved each ingredient beyond a reasonable doubt. Appeals are arguments of legal issues. Narrative has little role to play at trial, and even less so on appeal. Law should be understood not as a matter of competing narratives, but as a matter of competing arguments. That’s one of the main reasons I admire Leonard Garment’s piece; it beautifully lays out the competing arguments in Time, Inc v. Hill.

Notwithstanding Lithwick’s narrative-based concept of law, I enjoyed her review immensely. It brought me news of an interesting new book, and it did so in a lively, vivid manner. I look forward to seeing more of her work in the magazine.