DEDICATION:
[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."
ABSTRACT:
[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
LAW AND ECONOMICS AS AN AREA OF STUDY
[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).
RELEVANCE OF LAW AND ECONOMICS TO XENA: WARRIOR
PRINCESS
[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).
PRE-MEDITATED MURDER VERSUS SELF-DEFENSE
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.
REASONS WITHIN PASSION: THE USEFUL ROLE OF EMOTIONS IN (LEGAL) REASONING
[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.
