I Warren1*, D Sormaz1 and D Palmer1
1 School of Humanities and Social Sciences, Deakin University
*corresponding author: firstname.lastname@example.org
Courts are theatres for promoting the rule of law, due process and fairness under the criminal law. However, this paper identifies an increasingly common illusion of justice, bordering on the farcical application and interpretation of the criminal law. Farce is a theatrical concept involving an initial pretence of order that degenerates into an exaggerated and incomprehensible form of chaos, often associated with slapstick comedy. We adapt this definition to equate farce with the structural and procedural appearance of neutrality, respect for due process and adherence to the rule of law that treats certain legal arguments with outright disdain. This occurs through judicial techniques that overtly or tacitly dismiss, overlook and supress a defendant’s voice, often by using analogous reasoning that is substantively divorced from the actual question considered by the court.
Farce is commonly associated with post-World War II attempts at ‘victor’s justice’, extraterritorial prosecutions, extradition hearings, and substandard defence arguments in domestic criminal cases. When drilling deeper, many cases involve cross-jurisdictional fractures, or other forms of judicial tentativeness when a single legal problem can be interpreted using multiple legal categories. We present two examples that highlight how farcical consequences emerge in judicial rulings that fail to acknowledge the legitimacy of defence arguments, or acknowledge the structural unfairness of the processes judges are sworn to uphold. We demonstrate how viewing these cases as examples of farce magnifies the belligerence and rigour of countervailing defence arguments, to create a feedback loop that ultimately reinforces their marginality despite clear evidence that prosecution allegations, the application of laws governing criminal procedure and the exercise of judicial discretion is factually, legally and ethically flawed. We conclude by highlighting the importance of recognising the farcical tragic comedy of legal theatre as a potent focus for law reform, as an increasing body of questionable legislative, police, punishment and judicial practices appear to trivialise the fundamental objectives of neutrality and fairness in contemporary justice administration.
Ian Warren is a Senior Lecturer in Criminology and co-author (with Darren Palmer) of Global Criminology (Thomson Reuters 2015). His current research examines the implications of zonal banning and space in contemporary regulation, and the tensions produced by responding to transnational crime problems through national and sub-national justice procedures.