AustLII Home | Databases | WorldLII | Search | Feedback

University of Technology Sydney Law Research Series

You are here:  AustLII >> Databases >> University of Technology Sydney Law Research Series >> 2017 >> [2017] UTSLRS 20

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Crofts, Penny --- "Killing to Survive: The Walking Dead, Police Slayings and Medieval Malice" [2017] UTSLRS 20; (2017) Law, Culture and the Humanities 1

Last Updated: 25 September 2017

KILLING TO SURVIVE: THE WALKING DEAD, POLICE SLAYINGS AND MEDIEVAL MALICE

Penny Crofts
University of Technology Sydney, Faculty of Law, Australia
Email: penny.crofts@uts.edu.au

ABSTRACT
Fatal police shootings in the United States of America have generated much media and academic comment. These shootings fit within the historical common law category of homicides under compulsion and in practice rarely result in prosecutions and even less convictions. This article considers the laws of compulsion through the prism of early common law and slayings for survival in the horror series The Walking Dead. Contemporary accounts of justifiable homicide sustain early common law attempts to balance the need for authorized force to enforce the law against the protection of citizens from arbitrary force. Contemporary law focuses on whether or not the decision to use force was reasonable, but The Walking Dead depicts the narrowness of this question of culpability. The moral difference in slayings is not only whether a law enforcement officer’s decision to use force was reasonable, but whether or not the slayer desired to kill and was acting for a public or personal purpose. The Walking Dead also raises questions about the aspirations of the contemporary justice system. It portrays the medieval conception that the slayer and the community in which they live would be tainted by a homicide – whether excused or felonious. In medieval times, the process of justice was relied upon to remove the taint of a slaying from the community. The Walking Dead represents the thinness of contemporary accounts of compulsion and acts out early common law conceptions of malice.

KEYWORDS
Police shootings
Justifiable homicide
Medieval law
Malice
Common law
Law and culture



Fatal police shootings in the United States have generated much media and academic comment. This has included examination of the sheer number of slayings,[1] the perceived used of excessive force,[2] particularly against unarmed victims,[3] who are disproportionately African-American males,[4] and the relative lack of prosecutions and even less convictions. This article explores police shootings through an analysis of compulsion defenses. These defenses are interlinked around the notion that a slayer was compelled by law and/or circumstances, and thus the slaying should be justified or excused. This article contributes to a jurisprudence of blaming through an analysis of the models of culpability or wickedness represented in early common law and contemporary American criminal legal doctrine and the horror series The Walking Dead. Both criminal legal doctrine and horror engage with the question of what it means to be wicked or culpable, and as a partner conception, what it means to be human. Law transmits or constitutes individual subjectivities and authorizes specific forms of individual identity through techniques such as ritual, symbol, physical force and textual account. The Walking Dead raises questions about the adequacy of these conceptions of the legal subject and authority. In a post-apocalyptic world, what are good and bad responses? If we place survival as a central value, do we lose notions of right and wrong? With the collapse of the state how do communities and leaders establish, enforce and legitimate law? Do we fear zombies not just because of the potential for infection, but because they are us if we let ourselves go – soulless vessels of pure appetite? If, as Weisberg and Binder recommend in Literary Criticisms of Law, we should evaluate law not for how well it represents us, but for who it enables us to become, what conceptions of humanity and the state are enabled in legal doctrine in response to extreme threats – whether against the person or the state?[5]

This article analyses legal compulsion defenses through an analysis of slayings by characters who are (former) police officers in The Walking Dead and a resuscitation of early common law conceptions of slayings for justice and in self-defense. Every criminal legal system that imposes punishment must authorize the use of force to enforce laws.[6] Excessive force imposed to protect or enforce order undermines the legitimacy and authority of the democratic state upon which that authorization rests. The early common law grappled with boundaries but clearly articulated and organized the justification of slayings for justice around a broad conception of malice that included moral and social elements. This article argues first that contemporary legal accounts of slayings by police officers leave unresolved issues that were raised in early common law about the potential for representatives of the state to act with malice. Contemporary accounts focus on whether a law enforcer’s decision to use force was reasonable.[7] However, The Walking Dead depicts the narrowness of this question of culpability. An essential moral difference in slayings is not only whether a law enforcer’s decision to use force was reasonable, but whether or not the slayer desired to kill, and whether the slayer was acting for personal interest or out of duty to the public. It is argued that contemporary accounts provide only a very narrow account of the potential culpability of law enforcers who fatally slay. The Walking Dead explores questions around the authorization of violence, and the way (excessive) force exercised for personal reasons may undermine legitimacy and authority. Second, The Walking Dead raises questions about the aspirations of the contemporary criminal justice system by illustrating the medieval conception that a person and the community in which they lived would be tainted by a slaying – they would literally have “blood on their hands”. In medieval times the process of justice was relied upon to remove the taint of an unnatural slaying from the individual and the community, and to bring the community back to concord. The Walking Dead represents the thinness of contemporary accounts of slayings by and for justice and demonstrates medieval conceptions of malice.

1. Horror, Self-Defense and Culpability

The notion of studying compulsion defenses through the prism of The Walking Dead is part of a larger legal cultural studies project of examining popular culture for how it reflects and expresses assumptions, values and wishes for and about the legal system. [8] One strand of the law and culture movement conceptualizes the cultural domain as a productive supplement to the narrowness and restrictiveness of law. Legal attributions of blameworthiness require a translation of the messiness and particularity of experience, emotion, action and interaction into pre-existing abstract formulae of law. It derives its intelligibility as much from what it fails to register as what it does register.[8] Feigenson has argued jurors import this ‘messiness’ into their legal decision-making. Their approaches to legal blaming are multidimensional, shaped not only by legal rules, expert rationales, the facts of the case, but also common sense.[9] Feigenson has explored the ways in which common sense is various and contradictory, and may include juror habits and beliefs to view cases as personality driven melodrama, constructed through understandings of cultural norms. He argues that in their quest for ‘total justice’ jurors may take into account information and ideas that go beyond the limited formulae of the law. On this account, we can turn to the cultural domain to provide insight into conceptualizations of culpability as it provides a forum to explore the excesses that the law omits and may also contribute to decisions about blameworthiness.[10]

Horror fiction can provide a supplement to criminal legal formulae and categories. Both horror and criminal law represent and construct formulae by which to explore, represent and analyze culpability, established and developed through rules and precedents. There are many subgenres within the horror genre,[11] but overall the genre is heavily dependent upon rules that are already known to fans and subject to development, challenge and/or disruption. For example, the rules of the genre specify that zombies (or ‘walkers’ as they are termed in The Walking Dead), eat brains and can only be killed by destruction of their brain stem. Both criminal law and horror are constructed around rules and their transgression. The horror genre is particularly associated with monsters,[12] and the category of monster also existed at common law.[13] Central to the construction of monsters is the transgression of border – a disturbance of the “natural order”.[14] The specific nature of the border may change from film to film, and from society to society, but the function of the monstrous remains the same: “to bring about an encounter between the symbolic order and that which threatens its stability”.[15] The monstrous is produced at the borders.[16] Monsters pose a threat to the categorical structures of law and humanity.[17] In The Walking Dead it is the border between the living and the dead – which in turn challenges other borders – such as those distinguishing between good and evil, human and inhuman.

A key theme of horror is that transgression undermines identity, system and order. Monsters generate fear and fascination because of their potential to challenge our cherished borders. Monsters are both polluted and polluting.[18] Horror exemplifies and explores these themes of pollution through monsters that either kill or infect those they come in contact with. In The Walking Dead a bite from one of the ‘walkers’ results in a person becoming a walker themselves (unless the infected limb is amputated immediately). The horror genre explores the infection and disruption of the monstrous further by interrogating what characters will do to survive and whether their actions transform and infect them. What aspects of humanity and civilization survive our quest for survival? The Walking Dead is described by its makers as ‘a survivalist story at its core’.[19] This article will focus on a model of survival and authority articulated in criminal law – that of compulsion – and how this model is depicted in The Walking Dead. What conception of humanity and authority is enabled in legal doctrine in the exercise of fatal force by and for justice?

2. Survival in The Walking Dead and at law

AMC’s The Walking Dead was developed by Frank Darabont based on the graphic novel series by Robert Kirkman. The Walking Dead premiered on October 31, 2010 in the United States and has the highest total viewership of any series in cable television history.[20] In the United States, total viewership for its season five premiere was 17.3 million, making it the most-watched series episode in cable history.[21] The series has been nominated and has won a variety of different awards, including Golden Globe Award, Directors Guild of America Award, Primetime Emmy Award, Critics’ Choice Television Award, and a Saturn Award. The series has been renewed for an eighth season and has been described as an ‘epic survival adventure series’.[22] The series depicts a post-apocalyptic world overrun by walkers. The primary focus of the series is upon the survivors, those who are not infected, and what they do to survive. The main story arc in the first two seasons revolves around a love triangle between Rick, his wife Lori, and his best friend Shane. The story begins with Deputies Rick Grimes and Shane Walsh laying down road spikes during a car chase occupied by armed criminals who had fired upon and wounded another police officer. After the car rolls, the first suspect exits the car with a gun raised, and is shot dead by many police officers. A second suspect gets out of the car shooting and he too is shot dead. All the officers believe the threat is over, but a third suspect gets out of the car and shoots Rick in the back. Shane kills the last suspect. The series thus begins with a story about officers under imminent lethal threat, responding with fatal force. Rick wakes from a coma in an abandoned hospital to discover that the world has been overtaken by a zombie epidemic. He embarks on a quest to find his wife Lori and son Carl. Whilst he was in a coma his best friend and police partner Shane has fallen in love with and consummated a relationship with Lori.

The walkers are very much a background to the story of the survivors. They serve a narrative function of providing an on-going threat of safety that causes survivors to form a community of fear.[23] The walkers provide an opportunity to consider what it is that makes us human, in part through stark comparison. Walkers are untrammelled appetite, their raison d’être is to consume, they have no memories and lack any connection with their past.[24] The survivors react differently to the walkers – ranging from hedonistic to respectful slayings and keeping the walkers as playthings. Some characters keep particular walkers, either because they were previously family members or as camouflage from other walkers.[25] The series does not proffer judgment of how survivors treat walkers, except in the form of rough justice – those who fail to resolve walkers are punished by being bitten or losing those they love.[26] This idea of a lack of any culpability for the slayings of walkers is consistent with the common law of homicide – which required and requires the killing of a living human being. Ultimately, the walkers are not particularly interesting – they are unreasoning, unfeeling, and lack any development or connection.[27]

The series is much more interested in relationships between fellow survivors and the nature of the post-apocalyptic world they live in and create. Hobbes envisioned a world where life is nasty, brutish and short as a foundation for social contract theory.[28] In contrast, horror films depict a regression away from law and civilization and explore the question of what is left? Much of horror fiction is concerned with a stripping away of the veneer of civilization and asks what would a person not/do to survive? What rules or boundaries remain in a post-apocalyptic world?[29]

This article focuses on the deteriorating relationship between the two police officers Rick and his former best friend and partner Shane and how their portrayal as characters sheds light on rules of compulsion. Throughout the first two series, the relationship between Rick and Shane has deteriorated. Shane has adopted increasingly instrumental approaches to survival which have gradually expressed (or changed) his character. To save himself, Shane cut the leg of another man, Otis, so that Shane could escape, leaving Otis to be eaten by walkers, despite Otis having saved Shane’s life twice already. Shane returned to the other survivors with medicines essential to Carl’s survival, claiming that Otis had been killed by walkers. Upon his return Shane shaved off his hair and increasingly challenged Rick’s authority, almost killing him several times.[30] Shane increasingly asserts an ideology of doing “whatever it takes” to survive, with a primary focus on Lori who is now pregnant with either Shane or Rick’s baby. The final trigger is an argument between Shane and Rick over whether or not a teenage boy, Randall, should be killed off to protect their own group, with Rick opposing and then delaying the slaying. Shane then took Randall anyway and killed him and then pretended that he had escaped. Rick walked with Shane to find Randall, with Shane claiming to track him. The scene is suspenseful and lasts more than 5 minutes.

Rick: You going to kill me in cold blood? You won’t be able to live with this.

Shane: I thought you weren’t the good guy anymore.

Rick: You’re going to have kill an unarmed man.

Rick hands Shane his gun and insists Shane does too.

Rick: There’s still a way back from here...

It looks as though the danger has passed, but then Rick shoots Shane with a concealed gun.
The shooting is witnessed by Rick’s son Carl. Carl then raises his gun, and it seems as though he is going to shoot Rick, but instead Carl shoots Shane in the head, who has reanimated as a walker. Behind Rick are hundreds of walkers, a “herd”, coming up the hill towards the survivors in an apocalyptic scene.

Contemporary law would consider the slayings by Rick and Shane under the broad category of compulsion defenses – this includes self-defense, duress and necessity.[31] The essence of this category of defenses is that the actions of the accused can be justified or excused because they were compelled by another or by extraordinary circumstances.[32] Rick and Shane’s actions could be characterized as self-defense. Self-defense is articulated as justifying a resort to force where a person (or property) has been threatened by another:

[T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.[33]
These classic modern formulations of the defense of self-defense ask a subjective question of whether or not the slayer felt fear, and an objective question of whether or not the slayers response was reasonable in the circumstances as she or he believed them to be.

However, Rick and Shane’s actions can also be examined and considered through the lens of justifiable force by and for law enforcement. As former police officers, both Rick and Shane are killers trained and authorized by the state. Throughout the first two series, Rick retains his identity as a police officer. He keeps his police uniform on and part of his authority as leader stems from his (former) official position as a law enforcement agent. Although in The Walking Dead the state has collapsed, Rick’s actions can be understood under law’s authorization of force by and for law enforcement. Like self-defense, this justification of (fatal) force is within the category of compulsion defenses. The difference is that the killer claims that he or she was compelled by the state, rather than personal reasons. Any legal system that imposes punishment must authorize and legitimize force[34] – not only for the imposition of punishment but also to ensure that wrongdoers are brought before the legal system – resulting in powers of arrest and apprehension of felons. This is demonstrated in Graham v Connor, in which the court held that the right to make an arrest “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”[35] However, the law also articulates and imposes limits upon this use of force, such as “reasonableness” of the decision to use force.

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.[36]
Both Rick and Shane believe that their slayings are necessary in the circumstances, and in a zombie apocalypse, it is arguable that their actions would be reasonable. However, in The Walking Dead, Rick remains a hero, whereas Shane increasingly takes on a villain role.[37] How and why does Rick continue to be portrayed as heroic despite his slaying of Shane (and others), in circumstances where he is not responding to an immediate threat – especially when Rick takes preemptive action?

Rick’s action can be analyzed through early common law structures of compulsion defenses. This highlights commonalities with contemporary law – in particular – the struggle to balance the protection of the rights of the individual against violence and the needs of the state to authorize violence to enforce the law. This analysis also demonstrates that questions that were explicit in early common law have been submerged in contemporary law. I will argue firstly that early common law put malice at the center of an account of homicides, and this broad conception interrogated the reluctance to slay and whether or not it was done in obedience to the sovereign. It thus included not only moral and spiritual aspects but political – whether or not the slayer was acting consistently with the public order. Second, The Walking Dead resuscitates the medieval conception of tainting for a slaying and raises questions about the implications and adequacy of the contemporary criminal legal system’s response (or lack thereof) to police slayings.

3. Reluctance to slay and obedience to the sovereign

In early common law, malice played a key role in slayings and early conceptions of what we would now regard in the broad category of compulsion. From 1200-1600 the law of homicide was bifurcated, with a broad category of felonious homicide and very narrow category of non-felonious homicide. From the late 12th century, felonious homicide was a single, undivided offence and was defined as slaying with malice, expressed in Latin in various permutations such as malitia, malitia praecogitata or malitia purpense. All felonious homicides were made capital offences, a punishment that could only be escaped through the sovereign’s discretionary pardon of grace. Non felonious slayings were those committed with an absence of malice – ex malitia praecogitata or non per malitiam (or feloniam) ex cogitatam. There were two categories of non-felonious homicide: justifiable and excusable homicide.[38] What constituted justifiable homicides varied between the 13th and 16th centuries,[39] and included executions pursuant to a royal order, the ancient practice of killing thieves in the act of escape,[40] outlaws resisting capture, and would be burglars and robbers.[41] Whilst treatise writers teased out the parameters of these types of slayings, the common requirement was that they were slayings in advancement of justice.[42] Slayers deemed justified were acquitted by the courts and were not required to forfeit property.

Excusable homicides did not become firmly established until the 13th century and were divided into accidental killings (homicide per infortunium) and homicide in self-defense (homicide se defendendo). Unlike slayings for justice, excusable homicide did not lead to outright acquittal. Rather, the slayer was required to obtain a royal pardon, which absolved him of the liability to royal suit, but left open the right of the victim’s kin to prosecute or appeal.[43]

Treatise writers such as Hale, Foster and Blackstone included their analysis of justifiable slayings in the advancement of justice in their chapters on homicide. This was because they considered that it was possible for slayings committed by those enforcing the law to be unlawful and possibly even murder. The central issue in determining whether or not a homicide was felonious was whether it was accompanied by malice. In early common law, malice went beyond the contemporary emphasis upon intentional wrongdoing to a broader conception of wickedness. Foster defined malice as:

Hath been attended by such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon mischief.[44]
I have argued elsewhere that emotions were particularly relevant to the structure of justifiable and excusable homicides and slayings.[45] In both slayings for justice and those in self-defense the accused intentionally killed, but medieval law required that the defendant had not acted out of desire, but under compulsion. In self-defense cases, the excuse had been judicially formulated to include only acts of last resort, undertaken by persons who could not otherwise save their own lives. Jury verdicts soon came to include a formulistic response that the defendant “could not otherwise have escaped death” (recorded on the rolls aliter mortem suam non evadere potuit). Nearly every act of self-defense was said by the jury to have been undertaken by a cornered defendant; ditches, walls, and hedges had constrained fleeing defendants at every turn.[46] The structure of self-defense thus required that a defendant was not acting due to desire, but under compulsion. His or her back was to the wall.

This notion of malice expressed as emotion was also apparent in the rules of slayings by and for justice. Bracton stated that when an official executed a condemned man, even this killing may be a sin if either judge or executioner “acted out of malice or from pleasure in the shedding of human blood.”[47] An execution was required to be done pursuant to the judgment:

Judgment to be hang’d, Sheriff beheads him, Felony.[48]
If a sheriff exercised choice in the method of execution, this suggested that he was not acting under compulsion, but through his own desire, and thus lacked a pure heart. Slayings for justice did not (and do not) require retreat. Both justified homicides and slayings in self-defense demonstrate the intertwining of act and emotion in attributions of malitiam. Where an actor was compelled by law or circumstances to kill, he or she acted intentionally but without desire. The accused did not want to kill, and thus acted with a pure heart. External circumstances such as whether or not their back was to the wall or how a sheriff went about executing a felon were drawn upon as indicia of the state of the accused’s soul.

This article extends my previous arguments about malice to include not only a personal, emotional element but also an element of social duty and obedience – indicated by Foster’s definition of malice as a “heart regardless of social duty”.[49] This definition of malice emphasized not only the moral and spiritual dimension of the common law of homicide, but also its social and political dimension. The common law of crimes enforced the royal peace, a monopoly on the authorization of public violence: “the jealousy with which the law watcheth over the publick tranquility (a laudable jealousy it is)”.[50] All felonies were also trespasses, manifest breaches of the “public tranquility”. Felonies were literally disorderly, they were breaches of the sovereign’s order. Thus the early requirements of “retreat” or “back to the wall” in self-defense can be interpreted not only in the emotional sense as a reluctance to slay, but a political sense of an expression of obedience to the sovereign and the obligation not to defy the royal command by exercising violence. Law enforcement was the only true justification for violence because it bespoke royal authorization. This also explains why only some slayings in self-defense were justified rather than excused. Private citizens could stand their ground and use deadly force to defend against “forcible and atrocious” crimes – defending their property against burglary and robbery, as all citizens had the power and duty to prevent an atrocious felony. But Hale asserted that this power did not extend to defending one’s own life when it could be saved by flight.[51] Self-defense was subject to limitations in the interest of preserving the peace and order of the sovereign.

For Hale, the key difference between justified and excused homicides was that the former were for a public nature, and those that were excused were for a private nature. Violence was only authorized if it was in accordance with social duty – to protect the sovereign’s peace and order. Government authority was delegated only to preserve public the peace.[52] Hale justified this in pragmatic terms under the chapter title “Concerning the taking away of the life of man by the course of law, or in execution of justice”:

Not only an act of necessity, but of duty, not only excusable, but commendable, where the law requires it... ought not to be numbered in the rank of crimes, without which there would be no living.[53]
This recognized the inherent need of a legal system to authorize force but only in a limited set of circumstances, otherwise the exercise of force was itself disorderly, and would undermine the purposes and legitimacy of the authorization in the first place – the preservation of the peace and order of the sovereign.

Foster’s broad definition of malice as “the heart regardless of social duty” evokes the imbrication of an emotional and social account of culpability. The assumption underlying homicides due to compulsion was that an actor had been compelled through necessity, whether by circumstances or law, rather than desire, to (execute or) kill the victim. Malice clearly exceeded a cognitive account of culpability. The question was not whether an accused intentionally killed the victim. In fact, the formulae assumed an intention to kill, as demonstrated in executions, where an argument of lack of intention would be farcical. Rather, the question was whether or not an accused was compelled – by law, circumstances, or an outlaw – to kill. The question of malice was different from, and went beyond the question of whether or not an accused intended to kill.

These two interrelated strands of the emotional and the social account of malice can be teased out in relation to Rick’s slayings. The essence of (justified or excused) non-felonious homicides was that the accused was reluctant, he or she was forced (by the malice of the victim) to slay the victim, and did so only with sadness of heart. This distinction between the emotions of slayers as integral to questions of wickedness is central to the constructions of characters in The Walking Dead. On a strict body count, Rick kills more humans than Shane. The difference in Rick and Shane’s good/evil status revolves around their emotional response to the slayings.[54] Increasingly Shane demonstrates an instrumental conception of other humans – they are simply a means towards his end of survival. He is willing to sacrifice other people if it helps him to survive, including by cutting the leg of Otis so that the walkers attack him, rather than Shane. He is also increasingly willing to sacrifice other people if it gets him what he wants – including slaying Rick so that Shane gets Lori. In contrast, Rick demonstrates reluctance to kill other humans, including and particularly his former best friend Shane. It is this reluctance to slay that is the final straw in the relationship between Rick and Shane. Rick initially refused to kill and delays killing Randall – despite his being a danger to the community. Shane takes him and kills him anyway. Rick continues to display a reluctance to slay which Shane no longer has.[55]

Despite Rick’s reluctance to slay, he undertakes killings as leader of his small survivalist community, displaying a combination of a reluctance to slay coupled with social duty. This would include the slaying of Carol’s daughter, Sophia (Series 2, Episode 6), who has become a walker. Rick slays her as leader in front of the community, including Carol. He does this with respect and sadness – as a necessary slaying. This integration of reluctance and social duty is also apparent in Rick’s slayings of men from a large group of armed men that threaten the safety and peace of the community (Series 2, Episodes 8-9). Rick goes to a bar to bring Hirsch back to safety and ends up killing two men who were also in the bar. They are armed and want to know the location of the community’s refuge. One of the men grabs his gun, but Rick beats him to the draw and shoots him in the head, then shoots the other man before he can draw his gun. Rick’s actions are consistent with classic self-defense – he kills in response to an imminent fatal threat. One of the victims was sneaking up on Rick from behind. In Episode Nine, when the friends of the victims turn up, Rick justifies the slaying by saying “they drew on us”. Rick thus evokes explicit common and implicit contemporary legal concerns that took into account the malice of the victim in evaluating the actions of the accused.[56]

In contrast, Rick’s slaying of Shane is more problematic. The slaying of Shane was clearly compelled – he was increasingly a threat to the community and to Rick specifically. However, Rick’s slaying of Shane was not in response to an immediate threat, because Rick tricked Shane into handing over his gun. In his confrontation with Shane, Rick explicit refers to laws that are no longer enforced by a non-existent state: “Are you going to kill an unarmed man?” It is arguable that the contemporary legal focus upon imminence in determining the reasonableness of an accused’s response has proven to be highly elastic and would be decided in Rick’s favor given the on-going nature of Shane’s threat and the absence of the state to protect Rick. It may be excused as self-defense, but early common law would regard this as dishonorable.[57]

It is also questionable whether Rick has acted out of social duty – the preservation of order and peace – or for personal reasons – due to Shane’s relationship with Lori and his threat to Rick personally. In the episode before the slaying Lori states:

You kill the living to protect what’s yours. Shane thinks I’m his. He thinks the baby is his, and he says you can’t protect us. He’s dangerous Rick.
This returns to Feigenson’s ideas that jurors frequently evaluate facts of cases as melodrama – focusing on personal relationships in their quest for total justice. On this count, the love triangle of Rick, Shane and Lori would have been relevant to Rick’s motives. Rick is in an invidious position. The slaying of Shane had to be done – he was increasingly a threat – but it is not completely clear whether Rick’s actions were personal or out of social duty.

Slayings by Rick and Shane, as former state officers and currently leaders of a frontier community in the aftermath of the collapse of civil order can be analyzed in contemporary category of justified use of force by law enforcement. The models of Hale, Foster, and Blackstone were absorbed into American law. Just as with early common law, there are attempts by contemporary law to articulate boundaries around authorized force, such as powers to prevent arrest or apprehend felons. For example, the Fourth Amendment standard of reasonable seizure requires imports a standard of reasonableness to the use of police force. This is evaluated from the perspective of a hypothetical reasonable police officer taking into account the severity of the crime, threat to safety posed by the suspect, suspect’s resistance or flight.[58] Limits are also articulated in terms of powers of arrest. The Model Penal Code Section 3.07(2) (b) restricts deadly force to

(i) The arrest is for a felony; and
(ii) The person affecting the arrest is... a peace officer or is assisting a person... he believes to be a peace officer; and
(iii) The actor believes that the force employed creates no substantial risk of injury to innocence persons; and
(iv) The actor believes that:

The Model Penal Code also allows use of deadly force to protect property in limited circumstances – efforts to dispossess the slayer of his home or a felony, and either the crime must involve the use or threat of deadly force or the slayer must not be able to safely use lesser force to resist the crime.[60]

In the eighteenth century, Blackstone articulated the granting of authorized force as integral to, and based upon, peace and order:

[t]he law of England, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious a system; nor will suffer any crime to be prevented by death, unless the same, if committed, would also be punished by death.[61]
Blackstone thus permitted the slaying of felons, but only in very restricted circumstances, otherwise that use of force would undermine order itself. The same approach has also been articulated in contemporary law:

The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment... the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so... A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.[62]
Slayings for personal reasons or the use of excessive force undermine public order and peace upon which the original authority rests.

The Walking Dead raises questions about slayings by police that are motivated by personal reasons or the use of excessive force. In a post-apocalyptic world walkers and humans are dangerous. Human life is cheap and devalued, and there is an atmosphere of fear where disputes are resolved with violence. The authority of the law is displaced – necessitas legem non habet – necessity knows no law, although attempts are made by characters such as Rick to retain and assert the law.[63] We are left only with the law of survival of the fittest, or who is most willing or quickest to shoot. It is arguable that an atmosphere of fear is similarly motivating police. The shooting of Rick in the first episode represents common fears about and for police – with armed suspects firing at police and the police only prevailing because there happen to be more of them present and they are better shots. This plays on the fear that in other circumstances police may be outnumbered or out-shot. However, statistics show that risks facing police from suspects are lower than commonly believed.[64] According to a national police memorial fund, 135 officers were killed in 2016.[65] Of those, 64 officers were shot and killed. With more than 900,000 sworn law enforcement officers serving in the United States in 2016, this translates to a gun homicide victimization rate of seven per 100,000.[66] In comparison, according to the Center for Disease Control (which also features in The Walking Dead), in 2014, there were 10,945 fatal shootings in the USA overall, with a rate of 3.4 per 100,000.[67] The rate of fatal shootings of police is thus approximately double the rate of homicides in the general population. However, it is also necessary to factor in that police forces are comprised overwhelmingly of young men, who face a homicide victimization rate considerably higher than the general population.[68] It seems that police officers face a similar risk of homicide victimization as that of their general population cohort.

Earlier positivists defined law as commands backed by force.[69] Hart later labeled this the “gunman theory of law” and attempted to tease out the difference between the legitimate force of the state and the illegitimate force of others as based around “rules of recognition”.[70] Legal theorists have thus long recognized and explored the question of how to distinguish between the legitimate force of the state and illegitimate violence. Key ways in which this could be distinguished remain the proportionality of the force and the reasons why it was exercised. Early common law would interrogate this in terms of whether it was for private or public purposes. Bentham analyzed authorized force as to whether it was for public utility.[71] I have argued elsewhere that Sir James Fitzjames Stephen distinguished between the force of the outlaw and that of law as a question of malice.[72] Central to the “rightful” use of force is acting in accordance with an authority. Acting for personal reasons or using excessive force undermine the very authority that authorized that force. The Walking Dead explores issues around the preservation of humanity after the apocalypse not only with regard to moral sensibility but also in the sense of legitimizing violence and thereby lifting the burden of moral judgment from individuals. The characters of Rick and Shane are being judged by their companions and in turn the audience, not just as moral actors, or legal subjects, but as leaders obliged to establish, enforce and legitimate law. The following section explores the ways that wrongful (and even justified) slayings taint not only the killer but the community also.

Interestingly, although The Walking Dead persuasively depicts Rick’s heroic reluctance to slay Shane, despite Shane’s slurs to Rick’s honor and status and increasing threat to his life, the audience feels no such reluctance. There is such a long slow build up to the slaying of Shane that by the time it occurs it is long overdue and feels cathartic and right, despite Rick’s trick of pretending to be unarmed. As spectators we can comfort ourselves that Shane is a fictional character and there was an absence of police and the law to resolve the issue. However, the series places us in the position of a person who lacks reluctance to slay, who would do “whatever it takes” to survive.

4. Tainting and unnatural slayings

After the catharsis of the slaying of Shane by Rick at the end of Season Two, Season Three explores the consequences in terms reminiscent of early common law. Although the slaying of Shane felt necessary at the time, Season 3 evokes the medieval notion of tainting as a consequence of an unnatural slaying. In her analysis of disorder, Douglas assumes a predilection of humans to create clear-cut classifications of the objects in their world. According to this theory, anomalous items, such as those that are unique or instantiate properties of different classes, are disturbing and become the objects of pollution or taboo. Things that are acceptable or even attractive when in their proper place, can be polluting and dangerous when out of place.[73] Douglas accepts that the construction of systems, the gestures of classifying, systematizing and cleansing, are necessarily contingent. However, the central point is that disorder – matter out of place, the anomalous or ambiguous – offends and challenges our systems and categories. Douglas asserts our responses to disorder can vary, but emphasizes the reliance upon rituals to expiate or undo the taint of disorder, to reinstate order. The laws of crime can be read in light of Douglas theories of disorder as an assertion of order. On these terms, crime and medieval malice were regarded as a breach or absence of order that is polluted and polluting, requiring ritual to expiate or undo disorder to reinstate and reassert order.

Douglas devotes much of Purity and Danger to religious and (primitive) legal structures of order, and responses to disorder. Crime in general, and slayings in particular, were organized as crimes against order.[74] Homicide law expressed the idea that unnatural slayings were an offence against order, religious, moral and political. Causing death desecrated the sanctity of human life, tainting the perpetrator and potentially polluting the community, imposing an obligation to expiate the sin. Homicide law expressed the biblical conception of slaying as a violation of order, an evil in and of itself. Killing another breached the laws of God – specifically the sixth commandment.[75] Killing was a grievous offence against God, because man was made in the image of God.

Whoso sheddeth man’s blood, by man shall his blood be shed: for in the image of God made he man. [76]
In the biblical view, the person who slays another was thought to acquire control over the life-force of the victim. The only way to return this life-force to God, the origin of all life, was to execute the slayer himself. The execution of the slayer expiated the desecration of the natural order by terminating the violation of the sacred order, that is, the slayer’s control over the blood of the victim.[77] This injunction is repeated in Numbers:

So ye shall not pollute the land where in ye are: for blood it defileth the land: and the land cannot be cleansed by the blood that is shed therein, but by the blood of him who shed it.[78]
According to this biblical cosmology, a person who caused death was accountable – to God and the community. Homicide law communicated the religious notion that the extinction of life in a manner other than by natural death constituted a harm to the entire community. In The Walking Dead the biblical emphasis upon blood as polluted is reframed through the blood borne infection of the walkers.

A central argument by Douglas is that polluting beliefs are attached to disorder. She notes that specific and general dangers are threatened if codes and orders are not respected. Some of the dangers which follow on taboo-breaking spread harm indiscriminately on contact. This feared contagion extends the danger of a broken taboo to the whole community, thus shoring up vulnerable boundaries and relations.[79] Those who breached boundaries were the subjects of dangerous pollution. The polluter became a ‘doubly wicked object of reprobation, first because he crossed the line and second because he has endangered others’.[80] The religious conception of violation of order as evil in and of itself, requiring expiation, was embedded in Medieval law. This connects with Olson’s arguments about jury trials as processes meaningful in and of themselves to restore inner purity and concordia in the community.[81] Olson argues that medieval ordeals and trials should be conceived of as concerned not with factual innocence, but with cleanliness. Expiation was required not just for the accused, but also for the community, to remove the taint of wrongdoing and restore order. Wrong was understood as an impurity. The taint of wrongdoing could be removed through various means including confession, penitential works and purgation, offering an opportunity to expunge inner corruption and reunite with those against whom he has offended. In Mary Douglas’ terms, medieval trials could be regarded as rituals to assert and restore order, an opportunity to expunge, undo, or expiate the taint of wrongdoing.[82]

Medieval homicide law imported and applied the powerful religious conceptions of slaying as an offence against order requiring rituals of expiation to cleanse the accused and the community of the taint of the disorder. That is, the law emphasized the concern of slaying as a taint not only to the slayer, but to the community. A failure to expiate the desecration of the natural order could result in harm to the community. This was communicated through earlier law of the murder fine. If a secret slaying occurred, and the vill had failed to discover the offender, then the vill would be adjudged to pay murdrum, the murder fine, under the practice of presentment.[83] Thus pollution could be cancelled without identifying a responsible party through ritual payment. Medieval law thus communicated a notion of corporate responsibility – a wrongdoer could bring guilt upon the entire community.

The idea of desecration and expiation was expressed in the punishment for unnatural slayings. The aspiration to remove the taint from the community could be accomplished in a variety of ways. If convicted, the defendant was hanged, usually within a matter of hours, and nearly always within several days. The notion of unnatural slayings as tainted and tainting was expressed in the rules of forfeiture. The slayer’s lands and goods were forfeited. The children of a slayer could not inherit as the blood of the slayer was tainted.[84] The sins of the father were thus visited on the children. The slayer’s blood was corrupted and thus so was his progeny, demonstrating the salience of Douglas’ arguments of the perception of disorder as polluted and polluting.

The idea of expiation was expressed in the rules of excusable homicide – slayings in self-defense or by accident. This was a Crown plea because even if morally blameless, the slayer was objectively guilty, “because the sovereign hath lost his subject.’’[85] Medieval law communicated the notion that causing death, even accidentally, desecrated the sanctity of human life. The fact of homicide was organized as wicked. Even excusable homicides required the pardon of the Crown and resulted in forfeiture of property. This expressed a notion of all unnatural slayings without justification as culpable.[86] Causing death desecrated the sanctity of human life, tainting the perpetrator and potentially polluting the community, imposing an obligation to expiate the sin. The consequence of the guilt was that the slayer was to remain technically in prison until the next term, reminiscent of Douglas arguments about marginal objects emanating danger until judgment settles and decides their status within the order.[87] Even then, after his “pardon of course”, he still forfeited his goods to the sovereign. Forfeiture of goods became automatic, effectively a penalty attached to the pardon for accidental homicide or homicide in self-defense.[88]

Only slayings for justice were acquitted and did not require forfeiture. However there is some evidence that even those slayings were regarded by the community as tainted. For example, executioners were perceived as someone whose touch was polluted – restrictions were placed on where they could live and the trades their sons could join – reflecting the idea of tainted blood.[89] This idea of tainting even for justified homicides has been continued in contemporary analysis of executioners with the image of the “haunted hangman”.[90] This reflects the belief as to the secondary victimization of capital punishment, with the perceived cumulative negative effect of killing people (for money). Executioners are portrayed as stricken with remorse and unable to escape the horror of their formal role.

The relevance of emotion to the calculus of malitiam was also demonstrated in the pardoning system. The requirement of a pardon for accidental homicides can be explained by the idea that whilst an accused may not have intended death, or acted in a disorderly manner, an accidental slayer would feel sadness of heart. Thus, Bracton asserted that in circumstances where the accused accidentally killed, or could not avoid killing, it could be presumed that the defendant had acted “with sorrow of heart”,[91] or “from fear and instinctively” without “corrupt intention” as it was put in Fleta.[92] The pardoning system can thus be regarded as sustaining the early bot system’s attention to the spiritual needs of the accused and the community.[93] Paying for a pardon would provide an opportunity of penance, to make amends, and allay the slayer’s grief at causing harm to another.[94] Malitiam thus extended to a concern for the state of the accused’s soul after the event. This is a demonstration of the temporal elasticity of malitiam – the trial was concerned with the state of accused’s soul after the event. The payment of a pardon provided an opportunity to expiate, undo the taint of loss of life, and achieve concordia in the community.

In The Walking Dead, Rick’s slaying of Shane in particular, and the cumulative effect of so many slayings, is depicted as tainting him and his community.[95] Rick’s character changes. He no longer embraces the notion of the survivors as a democracy, but instead asserts that he is the leader of the group and will allow no challenges of his leadership. He moves from a community based on consent and discussion, to one of tyranny. His relationship with Lori is distant. He is lost and his followers and the audience are no longer confident in the choices that he makes. The taint of Rick’s unnatural slaying is particularly illustrated by his son. Carl witnesses Rick’s slaying of Shane, and is himself forced to kill Shane “again” when he rises as a walker. Carl becomes increasingly sociopathic, copying Shane’s behavior of “whatever it takes”. Carl mirrors Rick’s behavior toward Lori and is rude and disrespectful. He is tainted by Rick’s choices, culminating in his choice to kill a teenage boy who is surrendering because of the possibility that he might attack. It is this (and the Governor’s more extreme example of this philosophy) that turns Rick back from his harsh survivalist ethic. Series three can be regarded as a form of penance for Rick and the survivors in his group. They almost starve through the winter, their numbers are steadily dwindling and they are increasingly hounded by more and more walkers. Rick is isolated and driven mad with hallucinations of the people he has killed.

This notion of an unnatural slaying as tainting for the slayer and their community raises questions about contemporary criminal justice system responses. Only a very small proportion of police shootings result in prosecutions.[96] It is calculated that there were 963 people shot and killed by police in 2016.[97] In the thousands of fatal police shootings since 2005, only 54 police officers were prosecuted with an even smaller number resulting in convictions.[98] Frequently, these fatal police shootings were caught on film and available for viewing by the general public, which then questioned the actions of officers and their use of force. Drawing upon the insights from The Walking Dead and early common law, this absence of a public accounting for slayings has left the community in discord. This has been displayed in protests, civil disobedience and retributive slayings in response to police slayings and inquest findings.[99] Despite restrictions on the authorized use of force, the relative absence of prosecutions suggests that these limits are not applied in practice. Under these laws there is no need to explain or justify oneself. Nor is there any opportunity to undo the taint to oneself or the community. More generally, it raises the broader question about the aspirations of the criminal justice system. The medieval trial aimed to restore concord to the community. What are the aspirations of the contemporary legal system? Whilst the modern trial does not aspire to the medieval conception of concordia the exclusion of any possibility of a trial in cases of unnatural slayings removes the opportunity for society to articulate and affirm society’s values, in these cases specifically, to debate and express norms of response by police officers to perceived threats.

Conclusion

The Walking Dead explores conceptions of survival, both personal and political, in the post-apocalyptic world overrun by walkers. Characters make choices in their quest to survive that provide a prism through which to understand and critique contemporary models of compulsion in criminal law doctrine. Contemporary models of compulsion focus upon the beliefs of the accused that their actions were (reasonably) necessary. However, this model of culpability fails to adequately explain the philosophy underlying contemporary compulsion defenses, particularly the use of force by police officers, nor does it provide a way to differentiate between the heroes and villains in The Walking Dead. Most of the slayings could be constructed as necessary and a reasonable response in the post-apocalyptic world. Early common law malice provides a means of analyzing the different models of survival. Historically, malice was defined broadly as “the heart regardless of social duty” which expressed an imbricated emotional and social account of culpability – slayers had to be reluctant to slay which would express obedience to the sovereign and those acting for justice had to be acting out of social duty to protect order and peace.
In particular, early common law emphasized the requirement that the accused did not want to kill. This is mirrored in The Walking Dead, where Rick is differentiated from characters like Shane and the Governor due to his reluctance to kill and his slayings for public rather than private purposes. He depicts the sadness of heart assumed and expected of unnatural slayings in self-defense and/or for justice. Medieval conceptions of malice emphasized the idea of unnatural slayings as tainted and tainting – requiring expiation and cleansing of the slayer and the community generally. The Walking Dead also depicts Rick’s tainting and the tainting of those around him, by the cumulative effect of his slayings and in particular his slaying of Shane. The question raised by medieval law and The Walking Dead is what opportunities are offered by contemporary conceptions of slayings for justice for an expiation and penance for the sadness of heart accompanying an unnatural slaying?

  1. F. Zimring, 'Can Foreign Experience Inform Us Policy on Killings of and by Police?', Harvard Law and Policy Review 10 (2016), pp. 43-58.
  2. D. Tibbs, 'Who Killed Oscar Grant: A Legal Eulogy on the Cultural Logic Behind Hyper-Policing in Hte Post-Civil Rights Era', Journal of Race, Gender and Poverty 1 (2010), pp. 1.
  3. J. Smith, 'Responding to the Urgency of Now', Human Rights 42 (2016), pp. 1-4.
  4. I. Onyemaobim, 'The Michael Brown Legacy: Police Brutality and Minority Prosecution', George Mason University Civil Rights Law Journal 26 (2015-2016), pp. 157.
  5. D. Tibbs, 'Of Law and Black Lives, 50 Years Later: Race and Policing in the Aftermath of the Moynihan Report', Georgetown Journal of Law and Modern Critical Race Perspectives 8 (2016), pp. 85-101.
  6. G. Binder and R. Weisberg, Literary Criticisms of Law (Princeton, Princeton University Press, 2000).
  7. K. Williams, Our Enemies in Blue: Police and Power in America (Washington, AK Press, 2015).
  8. G. Binder, The Oxford Introductions to Us Law: Criminal Law (New York, Oxford University Press, 2016).
  9. J. Ross, 'Cops on Trial: Did Fourth Amendment Case Law Help George Zimmerman's Claim of Self-Defense?', Seattle University Law Review 40 (2016), pp. 1-56.
  10. A. Sarat and A. Kearns, Law in the Domains of Culture (Ann Arbor, University of Michigan Press, 1998).
  11. W.C. Dimock, Residues of Justice: Literature, Law and Philosophy (Berkeley, Los Angeles, London, University of California Press, 1996).
  12. N. Feigenson, Legal Blame: How Jurors Think and Talk About Accidents (Washington, American Psychological Association, 2000).
  13. A. Tudor, 'Why Horror? The Peculiar Pleasures of a Popular Genre', Cultural Studies 11 (1989), pp. 443-63.
  14. A. Sharpe, Foucault's Monsters and the Challenge of Law (London and New York, Routledge, 2010).
  15. P. Crofts, 'Monstrous Wickedness and the Judgment of Knight', Griffith Law Review 21 (2012), pp. 72-100.
  16. P. Crofts, Wickedness and Crime: Laws of Homicide and Malice (London and New York, Routledge, 2013).
  17. P. Cole, The Myth of Evil (Edinburgh, Edinburgh University Press Ltd, 2006).
  18. N. Carroll, The Philosophy of Horror or Paradoxes of the Heart (New York, Routledge, 1990).
  19. B. Creed, Horror and the Monstrous Feminine: An Imaginary Abjection ed. B. Keith, Austin, University of Texas Press, 1996), pp. 35-63.
  20. R. Wood, An Introduction to the American Horror Film ed. B. Nichols, Berkeley and Los Angeles, University of California Press, 1985) 2, pp. 195-220.
  21. J. Halberstam, Skin Shows: Gothic Horror and the Technology of Monsters (Durham, Duke University Press, 1995).
  22. M. Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London, Routledge and Kegan Paul, 1966/2002).
  23. T. Hobbes, Leviathan (Tuck, 1651).
  24. A.W.B. Simpson, Cannibalism and the Common Law (Chicago, Chicago University Press, 1984).
  25. A. Chongseh Kim, 'When the Apocalypse Comes, Will Anything Change? Gay Marriage, Black Lives Matter, and the Rule of Law', Savannah Law Review 3 (2016), pp. 57-76.
  26. R. Schopp, Justification Defences and Just Convictions (Cambridge, Cambridge University Press, 1998).
  27. G. Fletcher, Rethinking Criminal Law (Boston, Little Brown, 1978).
  28. J. Horder, 'Autonomy, Provocation and Duress', Criminal Law Review, pp. 706.
  29. K. Greenawalt, 'The Perplexing Borders of Justification and Excuse', Columbia Law Review 84 (1984), pp. 1897.
  30. D. Kahan and D. Braman, 'The Self-Defensive Cognition of Self-Defense', American Criminal Law Review 45 (2008), pp. 1-67.
  31. Zecevic V Dpp, High Court 1987) 162, pp. 645.
  32. J. Bentham, Introduction to the Principles of Morals and Legislation (London, Methuen, 1982).
  33. J. Baker, An Introduction to English Legal History (Sydney, Butterworths, 2002).
  34. T.A. Green, 'The Jury and the English Law of Homicide, 1200-1600', Michigan Law Review 74 (1975-1976), pp. 413-99.
  35. G.E. Woodbine and S.E. Thorne, eds., Bracton De Legibus Et Consuetudinibus Angliae (on the Laws and Customs of England) (1968-77), p.^pp. Pages.
  36. M. Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the Rebels in the Year 1746 in the County of Surry, and of Other Crown Cases. To Which Are Added Discourses Upon a Few Branches of the Crown Law (Abingdon, London, 1762/1982).
  37. S.F.W. Maitland, The Early History of Malice Aforethought ed. H.A.L. Fisher (3 vols., Cambridge, Cambridge University Press, 1911) I.
  38. N. Hurnard, The King's Pardon for Homicide (1969).
  39. Bracton, Bracton on the Laws and Customs of England (Cambridge, Mass., Belknap Press, 1250/1968).
  40. S.M. Hale, Pleas of the Crown: A Methodical Summary of the Principal Matters Relating to That Subject (London, Professional Books Limited, 1678).
  41. W. Blackstone, Commentaries on the Laws of England. Book the Fourth (London, Dawsons of Pall Mall, 1966 [1769]).
  42. S.M. Hale, History of the Pleas of the Crown (London, Professional Books, 1736/1971).
  43. W. MacNeil, The Litigating Dead: Zombie Jurisprudence in the Walking Dead, the Rising and World War Z, Hong Kong University 2016).
  44. T.A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200-1800 (Chicago, University of Chicago Press, 1985).
  45. W. Blackstone, Commentaries on the Laws of England. Book the Fourth (London, Dawsons of Pall Mall, 1769).
  46. A. Cooper and E. Smith, Bureau of Justice Statistics, Homicide Trends for the United States, 1980-2008 2011).
  47. J. Austin, The Province of Jurisprudence Determined (London, J Murray, 1832).
  48. H.L.A. Hart, The Concept of Law (1961).
  49. W. MacNeil, Lex Populi: The Jurisprudence of Popular Culture (Stanford University Press, 2007).
  50. P. Crofts, 'Brothels and Disorderly Acts', Public Space: The Journal of Law and Social Justice 1 (2007), pp. 1-39.
  51. T. Olson, 'Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial', Syracuse Law Review 50 (2000), pp. 109-96.
  52. J. Hampton, 'Correcting Harms and Righting Wrongs: The Goal of Retribution', UCLA Law Review 39 (1992), pp. 1659.
  53. A. Duff, Answering for Crime (Oxford, Hart, 2007).
  54. J. Bellamy, Crime and Public Order in England in the Later Middle Ages (London and Toronto, Routledge and University of Toronto Press, 1973).
  55. J. Finkelstein, 'The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty', Temple Law Quarterly 46 (1973), pp. 169-290.
  56. P. Spierenburg, The Spectacle of Suffering (Cambridge, Cambridge University Press, 1984).
  57. J. Harrington, The Faithful Executioner (London, Bodley Head, 2013).
  58. L. Seal, 'Albert Pierrepoint and the Cultural Persona of the Twentieth Century Hangman', Crime Media Culture 12 (2016), pp. 83-100.
  59. H.G. Richardson and G.O. Sayles, Fleta: Volume Ii (London, Selden Society, 1955).
  60. C. McCarthy, All the Pretty Horses (London, Picador, 1993/2012).


[1] Zimring, 'Can Foreign Experience Inform US Policy on Killings of and by Police?', Harvard Law and Policy Review 10 (2016), pp. 43-58. Media outlets such as the Washington Post are collecting statistics of fatal police shootings: https://www.washingtonpost.com/policeshootings/ (accessed January 1, 2017).
[2] Tibbs, 'Who killed Oscar Grant: A Legal Eulogy on the Cultural Logic Behind Hyper-Policing in hte Post-Civil Rights Era', Journal of Race, Gender and Poverty 1 (2010), pp. 1.
[3] The list of unarmed black men killed at the hands of the police in the past years is vast, some of the most notable ones were Michael Brown (2014), Eric Garner (2014), Tamir Rice (2014), Akai Gurley (2014), Walter Scott (2014), Freddie Gray (2014), and Sam DuBose (2015). In each of the cases, the victim was unarmed. In all of the cases except one (Garner), the death at the hands of the police was a shooting death. See Nicholas Quah, Here's A Timeline Of Unarmed Black People Killed By Police Over Past Year, BuzzFEED NEWS (May 1, 2015), http://www.buzzfeed.com/nicholasquah/heres-a-timeline-of-unarmed-black-men-killed-by-police-over#.fjaqnqO74.
[4] Smith, 'Responding to the Urgency of Now', Human Rights 42 (2016), pp. 1-4, Onyemaobim, 'The Michael Brown Legacy: Police Brutality and Minority Prosecution', George Mason University Civil Rights Law Journal 26 (2015-2016), pp. 157, Tibbs, 'Of Law and Black Lives, 50 Years Later: Race and Policing in the aftermath of the Moynihan Report', Georgetown Journal of Law and Modern Critical Race Perspectives 8 (2016), pp. 85-101.
[5] Binder and Weisberg, Literary Criticisms of Law (Princeton, Princeton University Press, 2000).
[6] This is particularly the case for police:

[V]iolence is an inherent part of policing. The police represent the most direct means by which the state imposes its will on the citizenry.
Williams, Our Enemies in Blue: Police and power in America (Washington, AK Press, 2015). p. 32. See also, Binder, The Oxford Introductions to US Law: Criminal Law (New York, Oxford University Press, 2016).
[7] Ross, 'Cops on Trial: Did Fourth Amendment Case Law help George Zimmerman's claim of self-defense?', Seattle University Law Review 40 (2016), pp. 1-56.

[8] Dimock, Residues of Justice: Literature, Law and Philosophy (Berkeley, Los Angeles, London, University of California Press, 1996). p. 7.
[9] Feigenson, Legal Blame: How jurors think and talk about accidents (Washington, American Psychological Association, 2000).
[10] Dimock argues for the cultural domain as a productive supplement in conceptualizing justice:

Absolute and categoric in philosophy, negotiable and assignable in law, wayward and unsatisfactory in literature, justice dispensed in different operative theatres, seems to carry different causal circumferences, different modes of evidence, and to yield up different styles of knowledge as well as different descriptive textures of the world. These conflicting images of justice call into question the self-evidence of the concept as well as its claim to being the axiomatic expression of human reason.
Dimock, p. 8.
[11] Tudor, 'Why horror? The peculiar pleasures of a popular genre', Cultural Studies 11 (1989), pp. 443-63.
[12] It should be noted that monsters are not confined to the horror genre. Monsters populate other entertainment forms such as science fiction and children’s shows.
[13] It should be noted that monsters are not confined to the horror genre. Not only do monsters populate other entertainment forms such as science fiction and children’s shows, monsters have also been part of the common law. Sharpe, Foucault's Monsters and the Challenge of Law (London and New York, Routledge, 2010). The category of monster remains relevant to law explicitly and implicitly. See for example, Crofts, 'Monstrous Wickedness and the Judgment of Knight', Griffith Law Review 21 (2012), pp. 72-100, Crofts, Wickedness and Crime: Laws of homicide and malice (London and New York, Routledge, 2013), Cole, The Myth of Evil (Edinburgh, Edinburgh University Press Ltd, 2006).
[14] Carroll, The Philosophy of Horror or Paradoxes of the Heart (New York, Routledge, 1990). 52. In law, the category of monster was relatively recently (unsuccessfully) argued in England in a case considering the proposed separation of conjoined twins. Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2000] 4 All ER 961.
[15] Creed, Horror and the Monstrous Feminine: An imaginary abjection ed. Keith, Austin, University of Texas Press, 1996), p. 42.
[16] It has been noted that horror is particularly associated with the policing of sexual borders. See for example:

The release of sexuality in the horror film is always presented as perverted, monstrous and excessive, both the perversion and the excess being the logical outcome of repressing.
Wood, An introduction to the American Horror Film ed. Nichols, Berkeley and Los Angeles, University of California Press, 1985) 2. 216. See also, Halberstam, who has argued that ‘class, race, and nation are subsumed... within the monstrous sexual body’. Halberstam, Skin Shows: Gothic Horror and the Technology of Monsters (Durham, Duke University Press, 1995). 7.
[17] For example, Sharpe has applied Foucault’s theoretical and historical treatment of the monster to contemporary examples – admixed embryos, conjoined twins and transsexuals and explored the ways that they challenge current distinctions between human and animal, male and female, and the idea of the ‘proper’ legal subject as a single embodied mind.
[18] Douglas, Purity and Danger: An Analysis of the Concepts of Pollution and Taboo (London, Routledge and Kegan Paul, 1966/2002). For example, in Re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2000] 4 All ER 961, the argument that one of conjoined twins was a monster was made in order to justify the slaying of her in order for her sibling to survive. At common law, monsters had no rights. On this argument, her existence justified and required the undertaking of judicial homicide which could be regarded as polluting for all involved – included the judiciary who authorized the slaying and the doctors who undertook the surgery.
[19] The Walking Dead: The Complete Second Series, AMC Film Holdings: Anchor Bay Entertainment, blurb on the back of the DVD (2012).
[20] http://www.amc.com/shows/the-walking-dead/talk/2012/12/the-walking-dead-season-3-ratings. AMC. December 2012. (accessed January 9, 2017).
[21] Bibel, Sara (March 30, 2015). http://tvbythenumbers.zap2it.com/1/the-walking-dead-season-5-finale-is-highest-rated-finale-in-series-history-garnering-15-8-million-viewers/381342/ (accessed January 9, 2017).
[22] The Walking Dead: The Complete First Series, AMC Film Holdings: Anchor Bay Entertainment, blurb on the back of the DVD, 2010.
[23] Cole has argued persuasively that the myth of evil gives monsters a particular role to play in grand narratives of world history. Cole, p. 23.
[24] This idea of a lack of connection is considered throughout, as survivors find it difficult to slay zombies who were previously family members, whilst the zombies suffer no such qualms.
[25] In series three, Michonne keeps two walkers on leashes. She has cut off their jaw bones and arms and they appear to have lost their desire to consume. They provide a camouflage for Michonne. There is a suggestion that she knew them before they became walkers. When Rick slays the walker Sophia in Season Two, Rick and the community show great sadness of heart because they knew her as a human and also because of the impact on her mother.
[26] This is particularly the case for Morgan Jones who cannot kill his wife after she has become a walker. In the third series Morgan has become mad after his wife bit his son. He undertakes penance of destroying and burning walkers.
[27] This idea of zombie evolution and possible inclusion has been explored in other films such as George Romero’s Land of the Dead (2005 Universal Pictures) and Edgar Wright’s Shaun of the Dead (2004 Universal Pictures).
[28] Hobbes, Leviathan (Tuck, 1651). pp. 56-7.

[E]very man is Enemy to every man... wherein men live without other security than what their own strength, and their own invention shall furnish them withal... continual Fear, and danger at violent death; And the life of man, solitary, poor, nasty, brutish and short.
[29] For example, one question grappled with is the ethics of eating other humans in the absence of other food. This question has been grappled with at common law through the doctrine of necessity. Simpson, Cannibalism and the Common Law (Chicago, Chicago University Press, 1984). Cormac McCarthy’s The Road (2006) is a literary exploration of the question of civilization in the post-apocalyptic landscape. The horror film The Colony (2013) implies that eating other humans to survive in the endless winter of earth results in inhuman/humans who just want ‘more’. This question has also been explored by Chongseh Kim, 'When the apocalypse comes, will anything change? Gay marriage, black lives matter, and the rule of law', Savannah Law Review 3 (2016), pp. 57-76.
[30] Shane’s response to the unnatural slaying of the other man to save himself is an example of tainting, argued below.
[31] In the Model Penal Code, self-defense is in Part 3, Justification Defenses. The Penal Code enshrines a general defense of necessity or lesser evils which is available when self-defense is not. § 3.02.
[32] A traditional distinction at common law was between killings that were justified and those that were excused. A plea of justification led to total acquittal, whilst excuses involved a pardon and the forfeiture of goods. In 1828, forfeiture was abolished and the distinction between justifiable and excusable homicide became obsolete. For some years, the concepts of “justification” and “excuse” were thought to be no longer, relevant, but in the past decades some academic commentators have revived the distinction. For example, Schopp, Justification Defences and Just Convictions (Cambridge, Cambridge University Press, 1998), Fletcher, Rethinking Criminal Law (Boston, Little Brown, 1978). p. 759, Horder, 'Autonomy, Provocation and Duress', Criminal Law Review, pp. 706, Binder. Whilst some legal academics have debated the categorization of various defenses as excusatory or justificatory, others have found the plasticity of the “justification” and “excuse” framework unedifying. Greenawalt, 'The perplexing borders of justification and excuse', Columbia Law Review 84 (1984), pp. 1897, Kahan and Braman, 'The self-defensive cognition of self-defense', American Criminal Law Review 45 (2008), pp. 1-67. The distinction between excuse and justification is significant for the purposes of this article because killings for a personal purpose were only excused, whilst killings for a public purpose were justified. This article teases out the distinction and its implications.
[33] Model Penal Code. § 3.04. Use of Force in Self-Protection. This approach is also mirrored in Australia at common law:

Whether the accused believed on reasonable grounds that it was necessary in self-defense to do what he did. If he had that belief, and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to acquittal.

Zecevic v DPP, High Court, 1987) 162.
[34] For example, Bentham reasoned the sovereign laws from their nature must always be an application of force; where there is no force, there can be no sanction; and where there is no sanction there can be no law; the use of force, as an evil, requires justification and one important affecting the frequency of its use was the extent to which law conformed to natural expectations. Bentham, Introduction to the Principles of Morals and Legislation (London, Methuen, 1982). p. 13[2].
[35] Graham v Connor [1989] USSC 89; 490 US 386 (1989).
[36] Op. cit., 396-397.
[37] Shane’s slayings are nothing in comparison to those of the Governor in season 3.
[38] Baker, An Introduction to English Legal History (Sydney, Butterworths, 2002). p. 512.
[39] Green, 'The Jury and the English Law of Homicide, 1200-1600', Michigan Law Review 74 (1975-1976), pp. 413-99. The rules for justifiable homicide were gradually more strictly interpreted by judges. During the 13th and 14th centuries judges sometimes insisted the slayer establish that he had acted as a royal official before he could be acquitted. Baker, p. 512.
[40] This was known as “hand-having thieves” – thieves caught with the stolen property. By the late 13th century, most localities were no longer permitted to execute captured outlaws and manifest felons without trial. That custom had become frontier law.
[41] Justifiable homicides extended to include would be thieves and robbers in the 14th century. Woodbine and Thorne, Bracton De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), 1968-77).
[42] Foster, A Report of Some Proceedings on the Commission of Oyer and Terminer and Goal Delivery for the Trial of the rebels in the Year 1746 in the County of Surry, and of Other Crown Cases. To which are added discourses upon a few branches of the Crown Law (Abingdon, London, 1762/1982).
[43] Maitland, The Early History of Malice Aforethought ed. Fisher (3 vols., Cambridge, Cambridge University Press, 1911) I, p. 6 of 58, Hurnard, The King's Pardon for Homicide (1969). p. Chapter One.
[44] Foster, p. 257.
[45] Crofts, 'Monstrous Wickedness and the Judgment of Knight', pp. 72-100.
[46] Green, pp. 413-99.
[47] Bracton, Bracton on the Laws and Customs of England (Cambridge, Mass., Belknap Press, 1250/1968). pp. Vol 2, 340.
[48] Hale, Pleas of the Crown: A Methodical Summary of the Principal Matters relating to that Subject (London, Professional Books Limited, 1678). 36.
[49] This emphasis upon obedience to the sovereign is consistent with accounts proposed by Binder, Simpson.
[50] Foster, p. 320.
[51] In contrast, Foster and Blackstone both asserted that a slaying in response to attempted murder was justifiable. Blackstone, Commentaries on the Laws of England. Book the Fourth (London, Dawsons of Pall Mall, 1966 [1769]). p. 184, Foster, pp. 273-4.
[52] Binder, p. 342.
[53] Hale, History of the Pleas of the Crown (London, Professional Books, 1736/1971). p. 496.
[54] There are many times in the series of The Walking Dead where Rick makes instinctive readings on whether or not a person is a threat. Rick usually portrayed as trustworthy in his analysis, but what about when these instincts are wrong as is suggested in Series Three?
[55] MacNeil has analyzed Rick’s reluctance in terms of hesitation in his analysis of jurisprudence. MacNeil, The Litigating Dead: Zombie jurisprudence in The Walking Dead, The Rising and World War Z, Hong Kong University, 2016).
[56] Crofts, Wickedness and Crime: Laws of homicide and malice.
[57] Green, Verdict according to conscience: Perspectives on the English Criminal Trial Jury 1200-1800 (Chicago, University of Chicago Press, 1985).
[58] Graham v Connor [1989] USSC 89; 490 US 386 (1989).
[59] Model Penal Code 3.07(2)(b) (1962).
[60] Model Penal Code 3.06(3)(d)(1962).
[61] Blackstone, Commentaries on the Laws of England. Book the Fourth (London, Dawsons of Pall Mall, 1769). pp. 181-2.
[62] Tennessee v Garner, [1985] USSC 77; 471 US 1 (1985) at 10-11.
[63] The principle ‘need knows no law’ was stated by Bacon, Maxims, reg. 5 and considered by the House of Lords in DPP v Lynch [1975] UKHL 5; [1975] AC 653 at 690-1 per Lord Simon of Glaisdale.
[64] Zimring has undertaken an international comparative analysis of slayings by police and argues that:

American police kill not only more often than other developed world police but at a vastly higher rate than any nation the United States would want to measure itself against. The gross statistics are dramatic-if my study's estimate of 1,000 deaths a year is correct, the United States rate is 40 times that of Germany and 100 times that of the United Kingdom.
Zimring notes that American homicide rates are much higher than those of other developed countries. American citizens and police are therefore less safer than in other countries. Zimring, pp. 43-58.
[65] National Law Enforcement Officers Memorial Fund, Preliminary 2016 Law Enforcement Officers Fatalities Report (2016) http://www.nleomf.org/assets/pdfs/reports/Preliminary-2016-EOY-Officer-Fatalities-Report.pdf (accessed January 14, 2017).
[66] ‘US police shootings: How many die each year?’ (7/18/2016) http://www.bbc.com/news/magazine-36826297 (accessed January 14, 2017).
[67] Centers for Disease Control and Prevention, ‘Factstats, Death by assault or homicide’ https://www.cdc.gov/nchs/fastats/homicide.htm (accessed January 14, 2017).
[68] Cooper and Smith, Bureau of Justice Statistics, Homicide Trends for the United States, 1980-2008, 2011).
[69] Austin, The Province of Jurisprudence Determined (London, J Murray, 1832), Bentham.
[70] Hart, The Concept of Law (1961). MacNeil has argued that Hart’s model of law veiled the force of law. MacNeil, Lex Populi: The Jurisprudence of Popular Culture (Stanford University Press, 2007).
[71] Bentham, p. 13(2).

.... All punishment is itself evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.
[72] Crofts, Wickedness and Crime: Laws of homicide and malice, p. 153.
[73] For example, one is not disgusted by saliva in one’s mouth, but it becomes offensive outside the body so that we will refuse to drink from a glass into which one has spit. Douglas, p. 140. Douglas’ ideas have been explored and applied to the legal regulation of brothels. For example, Crofts, 'Brothels and Disorderly Acts', Public Space: The Journal of Law and Social Justice 1 (2007), pp. 1-39.
[74] Hurnard, p. 14.
[75] Exodus 20:13; Deuteronomy 5:17.
[76] Genesis 9:6.
[77] Blackstone, Commentaries on the Laws of England. Book the Fourth, pp. iv, cap. 14. Deuteronomy 21: 1-9.
[78] Numbers 35:33.
[79] Douglas, p. xiii.
[80] Op. cit., p. 172.
[81] Olson, 'Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial', Syracuse Law Review 50 (2000), pp. 109-96.
[82] Hampton and Duff are normative theorists who hold contemporary criminal law to a similar standard as opportunities to remove the taint of wrongdoing. Hampton, 'Correcting harms and righting wrongs: The goal of retribution', UCLA Law Review 39 (1992), pp. 1659, Duff, Answering for Crime (Oxford, Hart, 2007).
[83] Bellamy, Crime and Public Order in England in the Later Middle Ages (London and Toronto, Routledge and University of Toronto Press, 1973). p. 58.
[84] Children continued to be disinherited on the basis of this rule until 1870. Baker, p. 513.
[85] Hale, Pleas of the Crown: A Methodical Summary of the Principal Matters relating to that Subject, p. 411.
[86] Hurnard, p. 23.
[87] Douglas, p. 119.
[88] Cases of suicide also expressed the transcendental interest of the Crown in the life of the subject, requiring forfeiture as expiation. Finkelstein, 'The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty', Temple Law Quarterly 46 (1973), pp. 169-290.
[89] Spierenburg, The Spectacle of Suffering (Cambridge, Cambridge University Press, 1984), Harrington, The Faithful Executioner (London, Bodley Head, 2013).
[90] Seal, 'Albert Pierrepoint and the cultural persona of the twentieth century hangman', Crime Media Culture 12 (2016), pp. 83-100.
[91] Bracton, p. 2.341.
[92] Richardson and Sayles, Fleta: Volume II (London, Selden Society, 1955). p. 2.60.
[93] Olson, pp. 109-96.
[94] Hurnard, p. 164.
[95] This idea of tainting is also explored in McCarthy, All the Pretty Horses (London, Picador, 1993/2012). The hero John Grady Cole kills a man in self-defense whilst he is in prison, but remains haunted by it.
[96] Ross, pp. 1-56.
[97] Official figures are not completely reliable with regard to killings by police. For analysis and statistics see the 2016 Washington Post database on police shootings https://www.washingtonpost.com/graphics/national/police-shootings/ (accessed January 14, 2017).
[98] Kimberley Kindy, ‘Thousands Dead, Few Prosecuted’ (April 11, 2015). http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/?tid=a_inl (accessed January 14, 2017). David Feige, The Myth of the Hero Cop: Police Officers Earn More than you Think for a Job that’s Less Dangerous Than You Imagine, SLATE (May 25, 2015), http://www.slate.com/articles/news and politics/politics/2015/05/the myth of the hero cop police unions have spread a dangerous message about.html. In his article, Feige explains that "its hard to prosecute cops for two reasons. First, jurors, judges, and prosecutors afford the police a special deference accorded a widespread perception that they are heroic public figures valiantly trying to protect us."
[99] There are too many examples of protests over police violence to enumerate. A recent example includes Curtis Skinner, ‘Protests over police violence spread around US’ (7/8/2016) http://www.huffingtonpost.com/entry/protests-police-violence_us_57806b40e4b0344d514f7bae (accessed January 14, 2017); Julie Bosman & Monica Davey, Protests Flare After Ferguson Police Officer Is Not Indicted, N.Y. Times (November 24, 2014), http://www.nytimes.com/2014/11/25/us/ferguson-darrenwilson-
shooting-michael-brown-grand-jury.html.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/UTSLRS/2017/20.html