Law in Popular Culture Collection - E-texts

ALSA Forum
Volume 8, Number 2 (1984)
reprinted by permission Legal Studies Forum


Department of Public Service Affairs.
University of Central Florida

     This, of course, is the year to re-examine Orwell's last
major work. We can anticipate a spate of academic
papers, popular presentations and a variety of general
responses. Certainly legal scholarship should not be
left off the bandwagon. Nevertheless, 1984 may be
viewed at first blush to have a lot to do with politics,
almost nothing to do with law. The book's protagonist,
Winston Smith, probably Orwell's oracular alter ego,
declares that his society has no laws, and American
practitioners are no doubt inclined to agree. To a lawyer,
the most notable feature of the regime of Oceania (1984's
huge nation headquartered in London) is its absence of
lawyers and courts - there is no legal profession as we
think of one. I would like to focus in part on that
apparent gap in what otherwise would appear to be a
slightly grotesque forecast of selected features of socialist
society and politics. I say "slightly" because the
frighteningly grotesque vision it presented a third of a
century ago is mitigated by a partial fulfillment of the
prophetic message.


  Oceania is an administrative state controlled not by
lawyers but by psychiatrists (or psychologists or other
social scientists). This shift creates a therapeutic
approach to administration rather than a negotiated one.
The fact that the therapy acts something like a social
lobotomy does not prevent it from being therapy. Orwell
reverses the secularization of society, which has been a
fairly steady evolution in the West perhaps since the
Enlightenment or before. The therapeutic state depends
upon domination by mind doctors who in turn rely on
religious adherence to their domination and their symbols.
In many respects we return to an earlier sacred period in
our social evolution with the one distinction that there is a
sophisticated technology for enforcing belief, though not
nearly as sophisticated as it might have been if Orwell were
writing today.
     Let us first address the problem posed by Smith's
assertion that Oceania has no laws. I suspect that Smith,
and perhaps Orwell, was confusing legality with legitimacy.
Oceania has laws, we just do not like them. Smith regarded
Oceania as lawless in large part because of a childhood
recollection of a former order to which he attributed
legitimacy. In a certain way, Smith reflects what most of
us experience, namely, in childhood we uncritically accept
authority as legitimate, wise and usually just. As we mature
we discover the fallibility of those in authority. In Smith's
case, maturity was accompanied by a drastic change in
regime, heightening his disillusion. We must suspect as well
that Orwell, as an Englishman, had internalized the
Anglo-American penchant for process. The cornerstone of
our law has been the accessibility and regularity of
procedure - rights spelled out in terms of procedure. In
Oceania, modeled as it is on the pre-war Soviet state, rules
are substantively oriented to serve goals which always take
precedence over procedure. To one who has always
accepted a system of justice based on fair procedure, the
regime of 1984 must always seem unbearably lawless.
     Although the regime appeared repressive to Smith, it
was not this feature which bothered him as much as the
lying, rewriting history, misrepresentation of current
events and facts, and endless sloganizing designed to
entrap the subject masses. Smith was an employee of the
Ministry of Truth and was often responsible for editing and


rewriting information. , He was painfully aware of the
manipulation of the truth. Big Brother's henchmen had not
yet perfected their psychological techniques to the point
that they could resolve effectively the dissonance between
knowledge and belief. Smith knew the propaganda was false
and the slogans meaningless, yet even he was expected to
believe and trust.
     Repression and prevarication are devices commonly
used by the powerful to assert legitimacy since the exercise
of power never benefits the powerless as much as the
powerful. Those who hold power customarily must
rationalize a privileged position which is never fully
deserved. In fact we might say that the lie that legitimates
is constitutionalism, the highest order of law, while
coercive enforcement is the lowest order or at least the
practice of power at the lowest level. Smith's description of
Oceania suggests a large gap between these two orders, a
gap filled by what we ususally perceive as law.
We may be wrong, however, in what we intuitively
think of as law, i.e., the rules which legal institutions
apply.  At an earlier period in history or in a more
primitive setting, law may well be composed mostly of
political charter (declaring the seat and extent of
authority) and policing. The rules that we perceive today
as law may be the product of a revolution in legislation in
the modern era.
     In Oceania there are no lawyers and no need of
lawyers; there is a direct line from Big Brother to the
Thought Police. The futuristic innovation here is that
Oceania is a nearly global community rather than a
provincial feudal society where authority and enforcement
over a local community reside in the hands of a very few
persons. Yet Orwell is clearly parodying the Soviet regime
and we can think of Trujillo, Somoza and Duvalier, closer
to us in time and space, to realize that large numbers of
people may well fall under regimes based principally on
     As a populous and complex society, Oceania must
interest us for its apparent lack of articulated rules. What
fills the gap between Big Brother and the police is a
bureaucracy. Just as a bureaucracy has expanded in
modern nations to assume so many tasks formerly neglected
or else left to private or family institutions, in Oceania the


bureaucracy has assumed responsibility for law, religion
and education. We should not underestimate the prophetic
aspect of this message. Since the late forties when 1984
first appeared, controls of the state and regulation of
society in America as elsewhere has become increasingly the
prerogative of the bureaucracy, which has grown to a size
barely imaginable in Orwell's time.  Americans look
constantly to government for the solution of nearly all our
problems - we have come to love Big Brother.

Thought Control and Social Control

     It is somewhat curious that in this relatively tight and
concise piece of fiction the author felt the need to add an
appendix in which he explains "Newspeak," a revision of
English ("Oldspeak"), formulated by the Oceania regime.
Perhaps in the context of the late forties in the English-
speaking world the use of acronyms, abbreviations and
abbreviated compounds may have been somewhat novel.
Still, I would imagine that the reading public could easily
have gotten the point by reading the book; Orwell must
have been intent on making clear a political (or
psychological) statement by including the Appendix. Animal
Farm had already shown a certain fascination with the
power of slogans to distort and misrepresent the motives of
those in power. And we should be particularly interested
in the fact that slogans in both these books are in some
sense "rules." They are commonly constitutional rules in
that they are fundamental principles, the basis for the
generation of enforceable rules. For example, "All animals
are equal" serves as a justification for revolutionary action
as well as the enforcement of duties. "All animals are equal
but some animals are more equal than others" is, of
course, a much more clever statement in that it continues
to assert fundamental rights at the same time that it is
designed to imply justifiable privilege for some. Orwell
carries this sort of logically indefensible statement even
further in 1984 with "WAR IS PEACE," "FREEDOM IS
equation of opposites is so obviously illogical that the
assertion of its truth suggests a higher sacred wisdom. I
am reminded of Zen koans or Hindu mantra or even "The
first shall be last and the last shall be first, " and "The


meek shall inherit the earth."  Ritual use of language
suggests a higher meaning to meaningless (or relatively
meaningless) phrases which is understood by the wise
leaders. We should not make the scholarly or lawyerly
mistake of trusting our semantic powers in interpreting
Newspeak. The manipulation of political words in Newspeak
follows its own semantic, which is powerfully reinforced by
ritual. It is thereby removed from ordinary logical
constraints. We may see that the slogans are nonsense; but
that is because we read them as ordinary English and not
as political formulas and sacred symbols.
     In a somewhat different way from the political slogans,
Newspeak is a language which is designed to control the
masses Its basic purpose is to purge and condense English
to the point that "heresy" becomes unthinkable, and
Orwell's choice of the word "heresy", rather than some
other word signifying political dissent, is illuminating. As
the entire vocabulary is being changed, Orwell emphasizes
that particular attention is paid to the political vocabulary,
of which a significant element is social control. We might
even say that Orwell's thesis is that with the proper
language internalized by the masses other forms of coercion
are no longer necessary.  And I think we ought to take
this author quite seriously. Orwell was once a bureaucrat,
a literary critic, a successful author, and a student of
socialist politics. He was an expert in the impact of
language on people and he was very much concerned with
warning us about the language of false prophets. Let us
look at part of his analysis of Newspeak.
     Although Orwell claims through Winston Smith that law
does not exist in Oceania, revealingly, the authorities have
invented the terms "sexcrime" and "crimethink" which are
Newspeak words for sexual immorality and thought crimes,
respectively. What the Oceania authorities have done, in
our own perspective, has not been to create a criminal law
as we know it, that is, a law of crime in the secular sense,
but, rather, to ritualize the language of law to the extent
that legal thoughts are sacred. "Sexcrime" appears to be
borrowed from ancient sources. For a long time in Western
history, the law of marriage and sex was strictly a matter
for the ecclesiastical courts; "crimes against nature"
covered a host of non-procreative sexual acts. This comes
very close to "sexcrime," which includes everything except


"goodsex," i.e., "normal intercourse between man and wife,
for the sole purpose of begetting children, and without
physical pleasure on the part of the woman; all else was
sexcrime." It is interesting to note that in the very next
sentence Orwell refers to "heretical thoughts" and the
difficulty of expressing them in Newspeak. The authorities
in Oceania have chosen to control disapproved conduct in
part by ritualizing the language in which conduct is
defined. The voice from the telescreen shouts:

"Thoughtcrime does not entail death;
thoughtcrime IS death."
     Sloganizing reduces the already narrowed vocabulary
of Newspeak to abstractions which are intended to be
internalized by the citizens to such an extent that deviation
is not ordinarily a perceivable possibility. To impose this
upon a nearly global urban community is the monumental
task of the authorities in Oceania and one which in 1984 is
nearing completion.
     If there are no laws (p. 8) there are nevertheless
"punishable offenses" such as "facecrime, " which is
constituted by wearing an improper expression on your face
(p. 62). Almost anything could constitute "crimethink"
("thoughtcrime" in Oldspeak) and was apparently
punishable by death although such a punishment appears to
occur in the case of Winston and Julia only after their
thinking has been adjusted to the point that they accept
the faith, i.e., they love Big Brother. And despite the
apparent effectiveness of thought control, coercion is
evidently commonly necessary and the spectre of police
arrest is made particulary fightening lest anyone be
tempted to disobey imperfectly internalized rules.
     Deviation from the rules appears to be as much "sin"
and "heresy" as it is crime, and confession and the
acceptance of guilt were the means of rehabilitation rather
than punishment as such. O'Brien, in the process of
brainwashing Smith, compares the Oceania attitude toward
deviance with that of the Inquisition (p. 257). Yet O'Brien
notes that the Inquisition was less effective, making
martyrs out of its victims. In Oceania, he goes on, the
deviant must ultimately surrender of his own free will (p.
258). Clearly, our notions of crime and punishment are


quite primitive by 1984 standards. In fact, what may be
the frightening feature of 1984 is the use of primitive
techniques in a very sophisticated fashion. Social control is
established by thought control with the ultimate threat of
physical violence (the citizens are unaware of the
brainwashing procedures). In this process politics and
religion seem to have been reunited. Orwell is certainly
drawing from totalitarian models of the thirties, both
communist and fascist, in developing the cult of the leader
and the propagandazation of a political ideology. Artistic
license allows him to present these techniques in a more
advanced form than we believe them to have yet existed.
     That Orwell had in mind some new use for religion is
echoed by the following statements found in the Appendix
devoted to Newspeak:

What was required in a Party member was an
outlook similar to that of the ancient Hebrew
who knew, without knowing much else, that all
nations other than his own worshiped "false
gods." He did not need to know that these
gods were called Baal, Osiris, Moloch,
Ashtaroth, and the like; probably the less he
knew about them the better for his orthodoxy.
. . . In somewhat the same way, the Party
member knew what constituted right conduct,
and in exceedingly vague, generalized terms he
knew what kinds of departure from it were
possible (p. 308).
Certainly in media propaganda and instruction, the new
religion was designed along Orwell's construction of a
modern political psychology, modeled on the experiences of
Nazism and Soviet communism, but I think it is the blend of
religion, applied psychology and law that is worthy of our
attention. We wonder whether Smith's assertion of a
society without laws is also Orwell's characterization, i.e.,
did Orwell unconsciously rather than consciously build a
structure in which law was imbedded in ideology to such an
extent that rules were inculcated rather than articulated?
Crimes and punishments existed without explicit rules. He
has gone one step further than Animal Farm, where rules
were constantly promulgated, only to be quickly


reformulated without notice. In 1984 promulgation is no
longer necessary.
     How far have we come toward Orwell's vision? Quite
clearly we have moved steadily onward toward an
administrative state where the bureaucracy assumes more of
the responsibilities formerly entrusted to non-governmental
institutions. And I think it is noteworthy that this
tendency is world-wide, regardless of culture, history or
ideology. American bureaucracy is still legalistic, that is,
lawyers still play a large role in the administrative state. It
is possible, however, that lawyers are becoming more and
more functionaries of public and private bureaus, and I
include the large law firms in this. The growth of
specialization, computerization and competition have all
coalesced to transform the practice of law into the business
of law. If the importance of the legal profession seriously
diminishes, I suspect it will come about through the
bureaucratization of lawyers into civil servants. Winston
Smith, for instance, is a modern scrivener and I think it
possible that some parallel transformation of lawyers could
take place.
     In other realms of our society, the Orwellian vision is
closer to the mark. The masses are certainly subject to the
whims of those who manipulate their brains. Statisticians,
pollsters, PR men, Madison Avenue and Hollywood have all
had their fling at mind control. As Orwell predicted, the
"telescreen" has been the instrument of thought slavery.
Television has its profound impact and the computer's
"telescreen" is being readied for the final coup. This
incredible vehicle for the presentation of information and
misinformation seems to me to fit quite neatly into the
Orwellian vision. I am reminded of a recent debate in
which "60 Minutes" was examined as to whether it was news
or drama. I wondered what the debate was about since such
a distinction is hardly relevant to contemporary TV - it
seems to me that the Miss America Pageant is fiction, pro-
football is a documentary, evening news is drama, morning
news is comedy and "Dallas" may be reality. On the one
hand, television programming is junk food for the masses,
"prolefeed" in Newspeak, but on the other hand it
powerfully defines our culture, and thereby defines what is
real to us. Orwell seemed to realize that modern technology
could transform all communication into some form of


entertainment and in the process control our thinking.
Consider for a moment that Jack Klugman addresses
Congressional committees on health and Veronica Hamel
addresses meetings of the American Bar Association (nor
should we forget our President is a former movie cowboy).
Apparently members of Congress and attorneys have
accepted the actor in place of the expert or perhaps
expertise is no longer meaningful in a political sense. In
any event, television controls our information and we accept
its magic and its performance.
     Orwell was quite correct in envisioning the
"telescreen" as an essential vehicle for thought control,
even though he saw it not only as a propaganda device but
also as a spyglass. If it becomes the latter, I suspect it
will be as a computer into which we all put our private
data. Critics of television have accused it of all sorts of
crimes but I think it is clear that television has been
significant in portraying American society to itself.  Its main
effect has been to trivialize just about everything. By and
large, television programming has done what language was
supposed to do in Oceania, i.e., narrow down our
vocabulary to the extent we tend to think in very
restricted terms about immediate but trivial problems.
Television is more total than the approach of the Ministry
of Truth, which was working primarily with the vocabulary
of the spoken language. Television narrows life itself to a
small range of significant problems.
     If Orwell were to write today, the focus of his
prophecy would be the computer. All the devices at Big
Brother's disposal were nothing compared with the
computer.  It controls the flow of information and its
processing as well as the production and automation in
much of industry. Whoever controls the computers will
very likely control society. The impact in law is already
being felt. Legal research may cease to be a creative task
and may become a purely mechanical one left up to the
lowliest employee of huge firms which are run so efficiently
with the assistance of computers that smaller firms will be
of use only in trivial or bizarre legal confrontations.
It is interesting to note the awe with which we now
view the computer. Parents quite willingly accept the notion
that their children will inevitably be failures in life if they
fail to acquire computer skills. Our attitudes toward the


computer and what it can do are like acts of faith. We have
been predisposed toward this by our traditional love and
respect for science and technology and pre-adapted for it
by our love for viewing the cathode ray tube. Perhaps the
means for Orwellian thought control are at hand. This may
sound apocalyptic, but we have reason to be fearful about
relinquishing our free will to machines which can monopolize
information and industrial production. A lesson to be
learned from 1984 is that belief is totally manipulable when
power rests in the hands of those who have total control of
the dissemination of information.
     The second lesson from all this, as far as lawyers and
the legal profession is concerned, is that there is a sound
reason behind the separation of church and state. The
secularization of the legal system is a great protection if
legal practitioners are similarly secular in orientation. A
secular legal system based on rationality grounded on
ethical inquiry offers far greater hope for legal reform and
social change than a society whose legal system is based on
orthodoxy, whether it be legal or some other kind of
orthodoxy. If we must believe in something let us believe in
"due process," a very vague concept, but one that allows a
judge to step in where he perceives injustice. Such a
notion encourages inquiry and reform when the judiciary is
ethical and fairminded.
     In my judgment, the reformer has an important task
besides the obvious one of change. That task is to help
create the legal environment of reform. Whereas the legal
system attempts to create a forum for the just resolution of
disputes, we should not neglect the encouragement of
ethical development in those who make the rules of the legal
market place. We must take an activist role in educating
judges and practitioners as well as students. To me the
logical basis of the concept of due process (in the
procedural sense) is the creation of the critical ethical
faculties of the populace. This goal is exactly opposite that
of the 1984 regime.


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