Scandal: Legal Realism (Or Not)

Perhaps it’s due to my experiences as a lawyer and my interest in how the media and celebrity culture interact, but Scandal strikes me more as a straightforward movie about the consequences of human fascination with celebrities than an examination of the Westernization (or Americanization) of postwar Japan, though, oddly, we don’t see any ‘man-in-the-street’ or, perhaps more to the point, ‘woman-in-the-street’, reaction to the article itself, just the women newsmonger’s reaction to Aoe’s looking for a copy of the magazine. The postwar Japan aspects are less easy for me to see than in, say, Drunken Angel or Stray Dog.

To my eye, Aoe might have sued the magazine anyway, though I agree that Hiruta showing up may have pushed him to take action. In the montage that shows alternating statements by Aoe and Hori, Aoe threatened to sue Amour if the story wasn’t retracted. Might he have felt compelled to back that up, if for no other reason than that it would undermine his macho public personality not to follow through once it had been reported? He struck me as someone who was so outraged at the thought of a magazine printing a deliberate untruth that he would sue for the principle of the thing irrespective of whether it was in his financial interest to do so.

By the same token, Hori told the reporter who was worried because the article was pure fiction that if caught, he’d bury a retraction in the back pages and that would be the end of it. Why didn’t he do that? Did he think Aoe was bluffing?

One drawback to Aoe suing by himself was that he himself didn’t suffer any compensable damage. If anything, his reputation might have been enhanced. In fact, in both cases, their popularity and sales increased, thus proving the adage that there’s no such thing as bad publicity. It’s not entirely true, but it probably applies to this situation. How do you prove damages then?

At first, I thought that maybe Hori had put Hiruta up to approaching Aoe and that the lawsuit itself was the product of collusion between the lawyer and the magazine from the start, but as events unfolded, it became clear that wasn’t the case.

As an aside, much of what Hiruta said in his introductory meeting with Aoe and his first meeting with Hori was accurate, but what really got to me was his congratulating himself on his ethical standards when, at least under the guidance applicable in the US, what he was doing was in itself unethical. Seeking someone out and dropping in on them because you know they may have a legal claim is considered unethical because of the danger that it may foment litigation that would never have been undertaken were it not for the lawyer’s interference.

I don’t know how recently Japan adopted US-style legal procedures; I suspect that a cause of action for libel predated the war, but whether that extended to the procedures, I don’t know. So how much what happens is due to the occupation, or is influenced by the occupation, I don’t know.

Viewed as a legal drama a la movies such as Absence of Malice, The Firm, or The Verdict –I’m not familiar with the Capra movies of that ilk — there’s a lot that doesn’t make sense. As I said in the ‘Kurosawa Hero’ thread, I’m not sure whether Hiruta was less than competent to begin with, in which case he being paid to, essentially, be himself, or whether he was not incompetent, but agreed to act that way in return for payments from the magazine. Btw, how ironic is it that the very bear that is the product of his collusion with the defense winds up wearing a star and being serenaded by Saigo and Aoe in that affecting Christmas Eve scene?

Another thing that doesn’t make sense to me is the publisher giving him a check. I thought the point of the scene at the racetrack was that Hori was using the cover of gambling to give him cash that couldn’t be traced. Or was he paying cash on top of the check? At any rate, giving him a check that can be traced is foolish and is far more naive than I would have expected of Hori, especially considering that he engages the professor as defense counsel.

We never really get an explanation for why Saigo joins the lawsuit either. It seems like she didn’t at first both because she didn’t want her name dragged through the mud and the charges repeated, as would happen if she got involved in the lawsuit herself, and because it prevented her from pursuing anything with Aoe, but I suppose that in the end she realized that if Aoe were going to go through with it, that would all happen whether she became a plaintiff or not.

About those witnesses: who found them? If Hiruta were really committed to helping Hori, he’d have found a way to keep them hidden and out of court. Did Aoe find them on his own, or did Hiruta, just not as soon as would have been necessary to avoid the defense attorney’s gibes? If Hiruta located them, was it in the interest of making his venality less obvious?

In the end, Hiruta not only disgraced himself, but probably ensured that he wouldn’t be able to practice law for a long time, if at all. At the same time, however, he ruined Amour’s reputation, and Hori might be himself be subject to prosecution.

It’s these hanging threads, plus the melodrama of the Masako aspect of the plot, that make the movie less satisfying than it could be from my perspective. It’s still enjoyable, though, and I probably like it more than, say, The Hidden Fortress, because what it does well is done well.

Great comment, and I agree that the legal side of the film has a lot of loose threads. I wonder though if this is a reflection that the contemporary audience maybe wouldn’t have been as knowledgeable about legal procedures as a modern audience, brought up on numerous legal dramas would be. I certainly get the idea that Kurosawa and his scriptwriters weren’t terribly interested in the legal and procedural niceties.

I know nothing about Japanese law, but Wikipedia suggests that Japan imported American constitutional law wholesale in 1946. From what I now of Meiji Japan, the model used was often Germany (not a common law area), so I assume that this was the basis for a lot of their ‘modern’ laws. I would assume that there would have been a huge amount of confusion in the early days as Judges tried to reconcile an alien constitutional law with their familiar ways. I’m assuming that like most of Japanese society, the law system had been gradually subsumed into the national project of militarism in the 1930’s and 40’s.

So while yes, I agree that the legal side of the film is incoherent, I think this is a reflection of the Japanese legal system itself at the time. You’d see lots of lawyers and judges desperately trying to interpret concepts of privacy, free speech rights, human rights, etc., without having any real precedents to work on. I’m sure they were caught between interpreting the new constitution and laws literally, or interpreting them within an existing Japanese cultural and legal framework. I think we’ve seen this in lots of countries where there was a radical break with the past – Spain post Franco, Russia in the 1990’s and so on. In all cases you see wild swings in law and practice from an extreme literal interpretation of concepts like free speech, to a more pragmatic attempt to ‘interpret’ these away to mean very little.

As an aside, much of what Hiruta said in his introductory meeting with Aoe and his first meeting with Hori was accurate, but what really got to me was his congratulating himself on his ethical standards when, at least under the guidance applicable in the US, what he was doing was in itself unethical. Seeking someone out and dropping in on them because you know they may have a legal claim is considered unethical because of the danger that it may foment litigation that would never have been undertaken were it not for the lawyer’s interference.

I think this would be a reflection of the chaos at the time. From my knowledge of the time (largely from films!), a very un-Japanese hucksterism was a necessary part of life for many people. In One Wonderful Sunday we see that black marketeers had pretty much created a parallel economy. I just watched an Ozu film last night where a long running joke between the characters is how much they hate aggressive door to door salesmen. But having said that, I think we are meant to contrast the slightly comical desperation of Hiruta to the cool ambiguity of Amours more respectable lawyer.

Another thing that doesn’t make sense to me is the publisher giving him a check. I thought the point of the scene at the racetrack was that Hori was using the cover of gambling to give him cash that couldn’t be traced. Or was he paying cash on top of the check? At any rate, giving him a check that can be traced is foolish and is far more naive than I would have expected of Hori, especially considering that he engages the professor as defense counsel.

I interpret the racetrack scene differently. To me, the publisher was quite deliberately entrapping Hiruta. He recognised the mans weakness and lured him into accepting gambling money – from there on, its a short step to turning his ‘gambling money’ into a bribe. But yes I agree, its hard to see the publisher being foolish enough to give a traceable cheque.

We never really get an explanation for why Saigo joins the lawsuit either. It seems like she didn’t at first both because she didn’t want her name dragged through the mud and the charges repeated, as would happen if she got involved in the lawsuit herself, and because it prevented her from pursuing anything with Aoe, but I suppose that in the end she realized that if Aoe were going to go through with it, that would all happen whether she became a plaintiff or not.

I assume the reason for this is purely personal – she is attracted to Aoye and feels the lawsuit would stir up all sorts of issues she is not comfortable with. Also, she seems to be someone much more resigned to her situation than the impulsive Aoye.

Apologies for mis-spellings above. The edit function isn’t working! 😮

Sorry about that. It should be working now. -Vili

I figured that the legal aspects didn’t interest Kurosawa and his collaborator(s) (I forget who they were for this one) as much as other things. Unfortunately, for someone like me, it makes certain parts of the film an exercise in headscratching.

Thanks for the remarks about the legal environment as well; I thought they might have some effect as well.

Thanks for your thoughts, lawless! It’s really interesting reading. I had always had the feeling that deep down the legal aspects of Scandal don’t quite make sense, but I wasn’t certain if it just didn’t make sense to me because legal stuff in general doesn’t always make sense to me. Now I know it’s not just me. 🙂

It may well have been that Kurosawa and Ryuzo Kikushima (the co-writer) didn’t fully focus on the legal procedures, and the audience was certainly less educated in legal dramas than they are today like Ugetsu mentions. But I’m not sure if I see in the confusion what Ugetsu suggest is “a reflection of the Japanese legal system itself at the time”. Rather, I think that it is either the outcome of Hiruta’s personal life taking over Kurosawa’s interest when writing the script, or possibly the result of whatever changes they had to make to the script due to censorship.

In any case, lawless makes an excellent point about the cheque. I had never thought about it before, but indeed it makes very little sense for Hori to pay Hiruta with something that has his signature on it. I think that this is one example where the screenwriters didn’t really think the whole thing through.

Lawless: Hori told the reporter who was worried because the article was pure fiction that if caught, he’d bury a retraction in the back pages and that would be the end of it. Why didn’t he do that? Did he think Aoe was bluffing?

I assume that he didn’t do so because Aoe actually went ahead and sued them. Had they printed the apology at that point, they would surely have automatically lost the case? Had Aoe only complained, and not gotten violent against Hori or sued the paper, I assume a retraction could have been a possible outcome.

Lawless: We never really get an explanation for why Saigo joins the lawsuit either.

Saigo’s motives are indeed a little bit fuzzy throughout the film. Her body language and secondary actions (like the song she keeps playing or her desire to buy the mountain painting) seem more telling than anything that she actually says. Which, I think, is quite a fascinating character type to put on screen.

I see Saigo as something like an Ingrid Bergman like femme fatale type who, contrary to a typical femme fatal, is actually fully on the “good” side. Still, difficult to read sometimes.

Lawless: About those witnesses: who found them?

This is another aspect of the film that I had never really thought about (just like the cheque), but now the question bothers me. 🙂 I have no answer. But how important actually is their testimony? In another thread, you described it as pretty much settling the case. But I get the feeling that no one in the court room is taking them seriously, and that the film uses them almost entirely for comic relief. If this was Hiruta’s intention, it could be conceived that it was he who tracked them down, so as to not seem totally incompetent.