IAXS Project # 042
By Peter H. Huang (
Copyright (c) 1996 held by author
2644 words


[1] This paper is dedicated to Lucy Lawless, whose acting not only brings hours of joy to many, but also inspires one of her fans to think about things like this paper and appreciate the truly important things in life. Best wishes for a speedy and full recovery to Ms. Lawless! Thanks also to Kym Masera Taborn for her excellent and speedy editing of this paper. Paragraph [13] replies to a thought-provoking question raised by Ms. Taborn regarding an earlier draft. Finally, thanks to Betsy Book for her help in choosing the images to illustrate the main themes of this essay and thanks to Richard Carter Jr. for providing the image of "Gabby the advocate."


[2] This article discusses the prevalence of law and economics in the hit syndicated television program: XENA, WARRIOR PRINCESS.


Gabriele was best known for her closing statements


[3] Law and economics is a fairly recent combined area of academic legal scholarship where the rational actor paradigm of microeconomics is employed to analyze legal rules and institutions. While certain areas of the law have obvious connections with economics (for example, antitrust, bankruptcy, corporations, securities regulation, and tax), the premise of law and economics is that many, if not all, fields of the law can be fruitfully approached from an economics viewpoint (for example, property, contract, tort, civil procedure, and criminal law).


[4] It is the law and economics approach to crime which has the most obvious and closest connection to issues raised in Xena, Warrior Princess. This paper focuses on two particular issues: the difference between premeditated murder and killing in self-defense or the heat of battle; and the proper role of emotions in decision-making. A fascinating article combining these two issues is Dan M. Kahan & Martha C. Nussbaum, "Two Conceptions of Emotion in Criminal Law", 96 COLUMBIA LAW REVIEW 269 (1996).



Xena, all tied up

[5] In the episode DEATH MASK from Xena, Warrior Princess; Xena and her brother are captured and chained up next to each other in an evil king's castle. Xena's brother is mad at her because she tells him that his goal of killing the king to avenge their brother's death is wrong. He asks what is the difference between his plan and the acts Xena has committed in her warrior princess days. Xena tells him the difference premeditated murder and killing in self-defense or the heat of the battle lies in what one is thinking or intends.

[6] Xena's distinction is what is known in legal terms as 'mens rea', which is Latin for "a guilty mind" and refers to criminal intent. The Model Penal Code, which is used as the basis of many states' criminal codes, in section 2.02(2), divides crimes into four types of mens rea which are relevant for guilt and punishment: those requiring (1) purpose, (2) knowledge, (3) recklessness, or just (4) negligence with regard to the forbidden act ("actus reus"). Planning a murder over a prolonged time period (Xena's brother had been plotting his crime over many years) is clearly different from killing in self-defense or in the heat of the moment.

[7] The Model Penal Code [210.1] defines homicide as the killing of a human being. The Model Penal Code [210.2(1)(a)] further defines murder as the commission of homicide with malice aforethought, which refers to purpose and intent. First degree murder occurs if there is premeditation; manslaughter occurs if there is provocation or extreme emotional disturbance (EED); and second degree murder occurs in all other cases. Thus, Xena, as usual, foreshadows modern-day developments. In this instance, Xena presages modern criminal law (cf. where she anticipates modern-day medicine in the episode, IS THERE A DOCTOR IN THE HOUSE?). As Xena says in the episode, THE BLACK WOLF, she has many skills (including sewing).

[8] The use of deadly force for self-defense is valid under the Model Penal Code [section 3.04] if the defendant believed force was necessary to avoid death, serious harm, kidnapping, or rape. Under a subjective test, self-defense is valid if the defendant honestly believed the use of deadly force was necessary; while a purely objective test asks whether a reasonable person in the same situation would have believed the use of deadly force was necessary; and a flexible objective test asks how a reasonable person of the same size, sex, or prior experiences as the defendant would have reacted. Thus, even though there is no such defense as killing in the heat of battle, presumably such a defense would only apply if deadly force was used to avoid death, serious harm, kidnapping, or rape. This may explain why Xena even in her warrior princess days would not kill women, children, or defenseless people of any age or gender. The heat of the battle reason for killing is presumably an example of the self-defense defense, not a different and independent license to kill indiscriminately.

[9] The Model Penal Code [section 210.3(1)(b)] defines EED (extreme emotional disturbance) as the temporary loss of the control and restraint that normally prevents one from committing homicide. The EED defense may take into account illness or past personal experiences because it is evaluated from the perspective of a reasonable person in the same situation as the defendant's under the circumstances as the defendant believed them to be. In particular, the passage of time or a so-called cooling off period could even exacerbate EED.

[10] Both Xena's brother and Callisto were driven and consumed by the rage, anger, despair and sorrow of losing family members to seek revenge. In fact, a defendant, such as Callisto, may suffer from diminished capacity, which is a completely subjective defense taking into account emotional disorders not quite severe enough to amount to insanity. Callisto would not be legally insane under today's standards because she clearly appreciated the wrongfulness of her acts. Xena appeared to suffer from temporary insanity brought on by seeing her father killed by the villagers in the episode, TIES THAT BIND.

[11] There are two main approaches to determining legal insanity, namely the Model Penal Code and the M'naghten test. Under the Model Penal Code [section 4.01], a defendant is not guilty by reason of insanity if the defendant lacks the ability to understand the wrongfulness of the act, or lacks the ability to behave in conformity with the law. Under the M'naghten test, a defendant establishes a valid insanity defense if the defendant proves that due to mental illness, the defendant did not know the nature and quality of the act, or if defendant knew the nature and quality of the act, then the defendant did not know the act was wrong.

[12] In the above mentioned conversation with her brother, though, Xena says that maybe her problem was that she did not feel enough after their other brother's death. She tells how she methodically raised an army to defend their hometown, then took over the neighboring towns to form a buffer, and somewhere along the way just lost touch with both why she was doing all this and her emotions.

[13] As to a legal and moral comparison between Toris' wish to murder Cortese and Xena's past acts as a marauding warlord, it can be argued that Xena's actions which constituted going into a situation where battle was near impossible to avoid, could be considered a premeditated act, just as culpable as Toris' wish and the Penal Code's trichotomy concerning homicide by the creation of risk. The Model Penal Code [section 210.2(1)(b)] defines reckless murder to be homicide by the creation of risk by conduct exhibiting an extreme or depraved indifference to the value of human life. The specific intent to kill is not required, only a conscious disregard for the risk of death. The Model Penal Code [section 210.3(1)(a)] also defines reckless manslaughter to be homicide by the creation of risk by conduct not exhibiting an extreme or depraved indifference to the value of human life. The Model Penal Code [section 210.4] finally defines negligent manslaughter to be the accidental killing of a human life, the negligence being with respect to the risk of death. Xena's view is also related to the difference between the notions of causality in criminal versus tort law. In both criminal and tort law, the defendant must engage in conduct which is both the "but for" (or actual) cause of the harm (but for the defendant's conduct the harm would not have occurred) and the proximate (or legal) cause of the harm. Proximate cause asks what is the degree of connection between the defendant's conduct and the harm. The difference between the criminal and tort law concepts of proximate cause is how strong that link must be for proximate cause to hold. Because criminal law is primarily about moral blameworthiness, it entails a stronger link than tort liability. Thus, while Xena's attacking villages and killing anonymous people who resisted may not be any morally less culpable than finding one person to hunt down and kill; it might be legally less culpable because she did not attack woman and children (or non-resisting males?). In the second episode of the second season, REMEMBER NOTHING (episode #26), Xena is upset at her accidental killing of a masked attacker, who turned out to be a boy. Xena feels remorse despite his attacking her from behind. When Xena gets another chance to re-live the moment, and is armed with the fore-knowledge that her attacker is a mere child, she resolves the problem differently.


[14] This vital conversation between Xena and Toris is unique and amazing (as Princess Diana would say) because it is quite commonplace to find in literature and popular culture the idea that a fundamental conflict exists between thoughts and emotions. For example, in the movie, UNTAMED HEART, Christian Slater's character, Adam, is worried about having a heart transplant because he is afraid that with a different heart, he would not be able to love Marisa Tomei's character, Caroline. She responds by telling him that you love with your mind and your soul, not actually with your heart. In another movie, WHITE MEN CAN'T JUMP, Rosie Perez's character, Gloria, tells Woody Harrelson's character, Billy, that she is thirsty and he responds by getting her a glass of water. She is upset because she wanted him to empathize with her and tell her that he too knows what dry-mouthedness feels like instead of "solving" her problem by taking action. Both of these examples illustrate the reason/emotion or mind/body dichotomy prevalent in much of Western philosophy. Such a false distinction between thinking and feeling views these activities as being oppositional and exclusive instead of being complementary and inclusive.

[15] This dualism is related to a separative notion of self, which some scholars view as part of the problem with the rational actor approach, underlying neoclassical law and economics. See, for example, Paula England, "The Separative Self: Andocentric Bias in Neoclassical Assumptions", in BEYOND ECONOMIC MAN: FEMINIST THEORY AND ECONOMICS 37 (Marianne A. Ferber & Julie A. Nelson eds., 1993); Paula England & Barbara Stanek Kilbourne, "Feminist Critiques of the Separative Model of the Self: Implications for Rational Choice Theory", 2 RATIONALITY & SOCIETY 156 (1990); and "Does Rational Choice Theory Assume a Separative Self?" 2 RATIONALITY & SOCIETY 522 (1990).

[16] One critique of the separative rational actor model argues for the inclusion of emotions in guiding rational decision-making because the dichotomy between emotion and reason is a false distinction. Emotions are neither separate from, nor opposite to, reason. To suggest feeling has less importance than reasoning is as ludicrous as to say that either of these human capacities can be attributed exclusively to one gender. Such a rationalist differentiation between allegedly "masculine" public reason and supposedly "feminine" private emotions has been justifiably criticized lately by philosophers. See, for example, Lawrence A. Blum, FRIENDSHIP, ALTRUISM, AND MORALITY (1990); Carol Gilligan, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982); Genevieve Lloyd, "Public Reason and Private Passion", 14 METAPHILOSOPHY 308 (1983); "Reason, Gender and Morality in the History of Philosophy", 50 SOCIAL RESEARCH 490 (1993); Nel Nodings, CARING: A FEMININE APPROACH TO ETHICS AND MORAL EDUCATION (1984); Martha C. Nussbaum, "The Discernment of Perception: An Aristotelian Conception of Private and Public Rationality", in LOVE'S KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE 54, passim (1990).

[17] The idea of an emotionally integrated self resonates with the viewpoint that reasoning as to whether a decision is good or bad, that is, practical reasoning, is both feasible and desirable precisely because it takes into account emotions. See, for example, Martha C. Nussbaum, "Skepticism About Practical Reason in Literature and the Law", 107 HARVARD LAW REVIEW 714, 717, 743-44 (1994).

[18] Xena's comments about not feeling enough indicate that she envisions a world of people who are not skeptics in the ancient tradition of Pyrrhonism or its modern revival, the literary theory of deconstructionism. Instead of detachedly viewing contradictory arguments as being equally weighty, Xena seems to feel that one should make choices while taking emotions into account. This mode of reasoning is akin to Nussbaum's development of dialectical immersed ethical reasoning, based on Aristotelian equitable judgment, "that is historically situated, responsive to particular circumstances, and yet committed to general norms of justice." See Martha C. Nussbaum, UPHEAVALS OF THOUGHT: A THEORY OF THE EMOTIONS (forthcoming 1996) (for a development of the role played by emotions, in general, and compassion, in particular, in good public reasoning); Martha C. Nussbaum, "Equity and Mercy", 22 PHILOSOPHY & PUBLIC AFFAIRS, 83, 85, 104-11 (1993) (for an exploration of the close relationship between mercy and a view of the particular).

[19] Emotions expand the information base for making decisions. As Nussbaum stated, "[w]ithout the information given by such emotions few difficult issues concerning poverty, damages, or privacy, or mitigation, could be well-addressed." See Martha C. Nussbaum & Amartya K. Sen, "Introduction" to THE QUALITY OF LIFE 1-6 (Martha C. Nussbaum & Amartya K. Sen eds., 1993) (for related arguments). As Nussbaum wrote: "removing belief-based emotions, remove[s] the inner understanding of and response to the hardship of others." Martha C. Nussbaum, "Skepticism About Practical Reason in Literature and the Law", 107 HARVARD LAW REVIEW 714 (1994) at 738. In fact, Nussbaum continued by stating that:

"[I]t seems to be a mark of the human being to care for others and feel disturbance when bad things happen to them. Perhaps that more richly human and appropriately disturbed use of practical reasoning is what we can't do without - in personal life, in politics, and even in the law."

[20] Xena's concept of reasoning with emotions also has important consequences for neoclassical law and economics, which assumes that a society's objective should be to maximize wealth or some index of material well-being. This assumption might be descriptive of warlords' conquests, but most conflicts are motivated by distributional considerations.

[21] Traditional economic models do not consider emotional obstacles to public policy decisions. Instead the standard rational actor paradigm underlying law and economics presupposes that people are motivated only by the pursuit of unemotional payoffs. Such a limited conception of rationality is a mere caricature of actual human behavior.

[22] Ignoring the scope and power of feelings for motivating human behavior in modelling legal rules is misleading; while ignoring the scope and power of feelings for motivating human behavior in designing legal policy is dangerous. It is desirable to compare the feelings that people have under alternative institutional arrangements. This presumably explains why Xena battles warlords bent on enslaving villagers even if slavery leads to a larger amount of wealth (for slave-owning warlords). This is how Xena met Gabrielle and the reason Xena stayed to fight in the episode, THE GREATER GOOD.

[23] In conclusion, this essay has only scratched the surface of the myriad ways in which the hit syndicated television series, XENA, WARRIOR PRINCESS offers insights about law and economics. Other areas in which XENA, WARRIOR PRINCESS provides insights are discussed in "The Tao of Sex, Babies, Body Parts, and the Myth of XENA, WARRIOR PRINCESS," my review of Margaret Jane Radin's recent book, CONTESTED COMMODITIES: THE TROUBLE WITH TRADING IN SEX, CHILDREN, BODY PARTS, AND OTHER THINGS. These areas include social norms, incompletely theorized arguments, objectification, commodification, subordination, and endogenous preferences. The impact on popular culture, social discourse and the multiple roles people choose to play in their lives of such a thought-provoking character as XENA, WARRIOR PRINCESS is great. Whether a girl decides that she loves XENA, WARRIOR PRINCESS as a role model because Xena shows that "women can do anything they want to" or a legal academic decides that he loves XENA, WARRIOR PRINCESS as a character because Xena is an example of a complex, growing and multi-facted human instead of a one-dimensional, static caricature of human behavior; the common thread is that XENA, WARRIOR PRINCESS is part of our popular culture and can make all of us rethink our beliefs and values. Just as Duncan Kennedy looked to Madonna for a partial response to critical race theory and feminist criticisms of critical legal studies, XENA, WARRIOR PRINCESS offers an opportunity to reconsider the dominant mode of economic analysis in legal scholarship. See Duncan Kennedy, "Sexual Abuse, Sexy Dressing, and the Eroticization of Domination," chapter 4 in SEXY DRESSING ETC.: ESSAYS ON THE POWER AND POLITICS OF CULTURAL IDENTITY (1993) and Naomi Mezey, "Legal Radicals in Madonna's Closet: The Influence of Identity Politics, Popular Culture, and a New Generation on Critical Legal Studies," 46 STANFORD LAW REVIEW 1835, 1847-61.

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