This chapter uses the J-A approach to read (see and hear) three Bollywood feature films that make the Gujarat pogrom central to their plots. The films are Dev, Parzania and Kai Po Che, whose release dates span the period 2004–13, overlapping with the Best Bakery case. Attention to this shared memorial journey of the judicial and the cinematic will further reveal their narrative compact in the making and ordering of collective memories of the pogrom.

I show how narrative tropes and cinematic techniques are used and repeated in the films to reconstruct the memory of the pogrom and project imaginations of justice. The J-A lens examines how the films mobilise spectatorial publics, by bestowing on them the authority to pass judgment on both the cinema and the pogrom. The films severally and collectively train their publics in ways of remembering the pogrom as a story of the triumph of secular law over religious violence. In this way of remembering, the lineaments of the New India—the work of the state-making and state-preserving rationalities in legalism, secularism and developmentalism—become visible in the texts of the films.

In my J-A reading of the texts of judgments in the previous chapter, the judgment form was considered to be a record of images, by way of the aesthetic tropes embedded in their language. In my J-A reading of the films in this chapter, I will pay attention to how the cinematic form brings together word, image and sound to mobilise judgment.

The chapter opens with a brief explanation of how each of these films inaugurates a relationship between cinema and the spectator through the use of a specifically Indian practice of state-sanctioned legal certification and a standard disclaimer.

This book studies two narratives of collective memory of the 2002 anti- Muslim pogrom in Gujarat from a law in/as aesthetics perspective. The first is written into the texts of the judgments of the Best Bakery case, a key criminal trial related to the pogrom, and the second is captured in the images and sounds of three Bollywood films that make the pogrom central to their plots. I have developed the jurisprudential-aesthetic (J-A) approach as a lens for reading the texts of the judgments and films not as discrete narratives but as a shared one. My J-A reading will show that collective memories of the pogrom are shaped by the workings of a postcolonial state-making and state-preserving rationality.

This chapter describes the J-A lens as a critical legal approach to interpret my material. To discuss how I constitute the J-A approach, first, I explain why it is necessary to understand law's aesthetic dimensions as a minor jurisprudence. Second, I argue in favour of considering this minor jurisprudence of law and aesthetics as a narrative compact. Third, I animate the workings of the narrative compact as law in aesthetics and law as aesthetics. This chapter shows how law permeates cinema's imagination and how the J-A approach becomes necessary for an appreciation of cinema's lawscape. To do this, I indicate the key concerns that a study of law in/as cinema addresses, connect law in/as cinema scholarship and Indian film studies to describe the aesthetic specificities of the Bollywood genre and discuss what work the J-A approach will do to show how law and justice feature in Bollywood's cinematic imagination.

Constituting the J-A Approach

Law and cinema are, arguably, the two most publicly available records of collective memory of Gujarat 2002. The pogrom has been one of postcolonial India's most litigated events of mass violence, and by far the most mediatised of all anti-minority religious conflagrations. The Best Bakery case—whose judgments are the focus of Chapter 3—attracted huge media attention as the first high-profile trial related to the pogrom. The three Bollywood films (which I study in Chapter 4) released across theatres all over India are now available on DVD, have been broadcast on television and are streaming on online platforms.

The US Critical Legal Studies movement (CLS) is often remembered through its development of theory and practice: actions of trashing, arguing law as politics, and addressing the indeterminacy of law. These actions are synonymous and often interchangeable with “demystification”, “delegitimation”, “debunking”, and “deconstruction”. Using these and other methods of legal critique and pedagogy, CLS sought to demystify dominant legal structures and institutions. However, this focus on theory and practice leaves a noticeable gap in the position of Critical Legal Studies—or, to put it another way, in deter mining the space that CLS operated within. As nature abhors a vacuum, this gap is often filled with two broad descriptions: first, CLS as a self-proclaimed network and political location that provided like-minded legal scholars with a place to converge; and second, CLS as a counterculture or countercultural

The death of US-CLS is unexplored. As we have seen, there are a handful of statements here or there by key Crits and their immediate rivals. Some easier-to-access sources briefly nod towards things changing in the 1990s, and in selected texts a death is discussed. But beyond this collection of minor utterances, the death of US-CLS goes unacknowledged.

An argument can be made that an event warranting such little time in existing explorations and discussions on CLS is therefore unimportant—or, even if not unimportant to the overall history of CLS, the event adds nothing new. In contrast to the identifiable tools and spaces created by US-CLS, the question inevitably becomes, “Why focus on its death?”

This curiosity extends beyond the morbid, to the real effects of a pronounced death in a field of legal theory. As the family tree presented, the acknowledgment of the death of US-CLS creates a new branch: Posthumous Critical Legal Studies (PCLS). If the death is underrepresented in the literature, then the works that came after this event (post-1995) scarcely make a mention. For Duncan Kennedy, the death of CLS was not totalising, but an act of reduction, finalising only its activist and political side. Kennedy balanced the finality of its demise while referring to its continuation as “very much alive” and “alive and well”.

The passive haunting of Posthumous Critical Legal Studies (PCLS) does not exonerate the foibles and failures of US-CLS. Instead, it provides a way to think through and reimagine the current state of Critical Legal Studies in the United States. Just because US-CLS was not regressive or constricted does not mean it did not face its own issues; according to its critics this ranged from the way the Crits dressed, to the universities they taught at, and the more substantial issue of what their work actually meant.

US-CLS faced critiques from a wide range of critics and sympathisers, from liberals to both broad and narrow Critical Legal scholars. These critiques range from meaningful interactions with US-CLS to ad hominem criticism of individual Crits, but can be generally divided into two camps: those outside US-CLS (primarily legal liberals) and critiques within Critical Legal Studies (both broad and narrow categories). The critiques approach US-CLS differently in both style and theme, but there are identifiable trends in both camps.

Generally, the critiques levelled at US-CLS from those outside the movement were more critical of US-CLS as a whole, not engaging with any nuance or subtleties in individual works.

At the end of the US-CLS journey, with the facts laid out in order, questions still arise: was it a question that killed US-CLS, as Richard Michael Fischl proposed? Or was it Duncan Kennedy’s declaration that US-CLS was dead as a doornail that finally finished it off? What about the Crits’ acknowledgement that they had lost the feminist legal theorists, only to lose the emerging critical race theorists too? In reality, all of these issues led to significant challenges and the eventual downfall of US-CLS. Paired with the disparate nature of the work under the Critical Legal Studies banner, the movement lost its momentum. The very breadth and lack of doctrine that made US-CLS “US-CLS” have ensured that attempts to resuscitate it never work. Instead, Posthumous Critical Legal Studies (PCLS) continues in a half-life, referring to aspects of the original US-CLS for contemporary or continuing issues, but simultaneously wondering where the original US-CLS has gone.

Still, with a theoretical click of his fingers, Kennedy could aid in the return of US-CLS. But as both he and Roberto Unger have stated, this is not on the cards. For both theorists, US-CLS was something that happened, but not something built to continue. This understanding is woven into the movement’s history: US-CLS was only possible due to extraneous factors; it was a political location; the current conferences are just like any other law conference. And because of those who said so, the works that have come after its death seem naïve: “Why bother? Don’t you know we tried this at the most prestigious law schools and still couldn’t make it work!”

There is a privileging of knowledge which ensures that certain understandings are only available to those with the right access. One might imagine a fortress, sealed with combination locks that only open with the right utter ances.1 The preceding chapter can be understood as somewhat reinforcing that privilege – its analysis drawn from the pages of books critical to and critical of jurisprudence, descriptions that are read only by those with the right kind of access. Or to put it another way, there is an analogy to high and low status. If the last chapter addressed the high remembrances and mentions of the US-CLS death, then this chapter will take the low road and look at more accessible sources.

To achieve this accessibility, an online search and an analysis of legal dictionary entries will be undertaken, both for “Critical Legal Studies”. By assessing three entries from each medium, a composite picture of how US-CLS is remembered will be formed, and any mention of its death will be noted.

Critical Legal Studies has ground to a halt. The movement is a memory, remembered historically as leftist intelligentsia against legal liberalism. This is not a controversial statement to make, nor is it unique to CLS, with a number of academic theories, movements, and positions melding, moving, and transitioning to new incarnations, or to nothing. What makes CLS unique is that while the movement may have ended, other Critical Legal Studies—those concerning fields of legal inquiry posed to analyse law from a critical position, or through a critical lens—have branched out and developed. Such is the multifaceted nature of the title “Critical Legal Studies” that specific differentiations often rest on necessary further identification of themes, theorists, and locations.

Despite some similarities and a shared “critical” approach, the varied Critical Legal Studies are not the same. To understand the CLS that this book is concerned with, it is necessary to situate it in relation to other Critical Legal Studies. Given the inherent confusion in differentiating Critical Legal Studies in a narrow sense from other Critical Legal Studies more broadly, the situation will be represented visually, borrowing in format from a family tree. This diagram is therefore a simple genealogy of Critical Legal Studies.

Declarations of hauntings, much like declarations of deaths, do not lead to clarity without exposition. The argument that PCLS (Posthumous Critical Legal Studies) exists and suffers through a passive haunting by US-CLS may provide an explanation for why Critical Legal Studies is not the same today as it was in 1984. However, if this was its only purpose then it would be a rather convoluted route to arrive at the same argument as: theories evolve, theorists change their minds, we live in different times, et cetera. Instead, the purpose of this reimagining of PCLS as haunted is to move past the more obvious issues of why CLS ground to a halt, and to think about why it has struggled to re-emerge.

For this purpose, the relationship between old and new CLS (that is, US-CLS and PCLS) is the focal point. The death of US-CLS has ensured that all US-based Critical Legal Studies have been affected to some degree by the resultant haunting. Only by understanding this relationship and seeing its effect is it possible for the remaining CLS to move past its haunted state.

A demonstration of the effect of passive haunting can be undertaken through the analysis of two Critical Legal Studies articles, one from the US-CLS limb and one from PCLS. However, if the argument is that the death of US-CLS led to the passive haunting of PCLS, which in turn has resulted in the latter’s constricted and regressive nature, then this presents an issue about whether equal papers can be chosen from US-CLS and PCLS. If the argument is correct, the PCLS paper will always be comparatively constricted and regressive.

From its declaration in the Harvard Law Record, a motif of death lingers around US-CLS. However, death’s place in the broader history of US-CLS is not clear. In the early 2000s, Duncan Kennedy opined that, “[C]ritical legal studies [US-CLS] as a political movement has been dead for a number of years, critical legal studies as a legal academic school of thought is very much alive”. He retains this stance twenty years later. However, aside from Kennedy, few people have discussed the death of US-CLS. The effect of a death that is known but not discussed adds to the confusion surrounding US-CLS. First, by not acknowledging this death, there is an assumption that what continued as Critical Legal Studies post-1995—what we have called Posthumous Critical Legal Studies, or PCLS—was no different to what came before. Second, there is an uneasy relationship between any post-1995 left wing legal critiques and US-CLS. For example, in these works there is a sense of duty to acknowledge, reify, or distance themselves from US-CLS. Books on legal history and jurisprudence, which take a critical stance or focus on critical approaches to law, are likely to mention of the death of US-CLS. These mentions are often not in-depth, but inform their broader discussions and understandings of Critical Legal Studies.

Chapter 5 commences by retracing how, beginning in Nuremberg, the reasonable person entered the battlefield in the form of the reasonable military commander. Subsequently the chapter explores two challenges that confront the concept of the reasonable person on the battlefield and beyond. The first challenge consists in the fact that it is easier to empathise with people who are close to us. In the theatre of war, this raises the question whether the reasonable person, when acting as the reasonable military commander, can meaningfully balance the interests of civilians on opposite sides. The second challenge relates to the fact that it is more difficult for powerful people such as military commanders (or judges) to take the perspective of others and to empathise with them.