Honor Cultures

In this article I refer to “honor,”“honor cultures,” and “honor societies” as they have been carefully studied and defined through decades of anthropological studies in the Mediterranean, Middle East, western Europe, southern United States, India, and South America.Footnote ⁶,Footnote ⁷ In this context, honor, together with its complementary opposite, shame, is the centerpiece of societies that evaluate their members and rank them according to adherence to rigid conduct codes, requiring specific manifestations of pride, assertiveness, and independence of men, and sexual purity of women. An honor society entails a structured hierarchy and strict social roles, encouraging assertive competition among men and sexual constraint among women. An honor culture glorifies as honorable conformity to its honor code, while debasing deviant conduct and constructing it as shameful (in this context, both honor and shame bear very precise meanings, which may differ from these terms' diverse meanings in other types of societies and cultures).Footnote ⁸

Honor societies and cultures differ greatly in many features, as well as in the linguistic terms they use to denote honor and shame. Nevertheless, a survey of studies that research particular honor societies and cultures around the world reveals that significant generic attributes are common to many such cultures. Whether a particular behavior is shameful may be viewed differently by different honor cultures, but the use of shame as a fundamental criterion to determine worthiness and social rank is typical of them all. Pitt-Rivers suggests comparing honor “to the concept of magic in the sense that, while its principles can be detected anywhere, they are clothed in conceptions which are not exactly equivalent from one place to another” (Reference Pitt-Rivers and PeristianyPitt-Rivers 1966:21).

Members of historical and contemporary honor cultures derive their social rank and sense of worthiness by measuring up to well-defined social norms of honorable behavior and avoiding or avenging behaviors and situations that are conceived as inflicting shame. Sketching a basic, general definition, which represents well the common perceptions in this field of study, Miller suggests that

Honor cultures thus cultivate emotions such as shame and envy, which tend to depend on relative standing in a community, rather than more internally oriented and individualistic emotions such as guilt, remorse, angst, and ennui (Reference MillerMiller 1993:116). Similarly stressing honor cultures' typical linkage of social status, social rights, and self-esteem, Pitt-Rivers defines honor as “the value of a person in his own eyes, but also in the eyes of his society. It is his estimation of his own worth, his claim to pride, but it is also the acknowledgment of that claim, his excellence recognized by society, his right to pride” (Reference Pitt-Rivers and PeristianyPitt-Rivers 1966:21). Adding the “honorable impulse” expected of members of honor cultures, the formula becomes this: “[t]he sentiment of honor inspires conduct which is honorable, the conduct receives recognition and established reputation, and reputation is finally sanctified by the bestowal of honors. Honor felt becomes honor claimed and honor claimed becomes honor paid” (Reference Pitt-Rivers and PeristianyPitt-Rivers 1966:22).

In honor cultures, honor serves as an effective disciplinary tool, and the honor code is, therefore, a structure of social power. In order for its members to achieve and maintain honor, an honor culture offers specific behavior codes demanding complete obedience. Failure to detect an insult that taints one's honor, or failure to respond to an offense to one's honor at the right time, in the right fashion, and in the right degree results in costly consequences, i.e., loss of honor. Honor cultures are local and particularistic in the sense that they apply exclusively to their own members, demanding thorough mastery of the most nuanced specific norms and expectations.Footnote ⁹ Such cultures are ritualistic in the sense that they demand very specific responses to offensive behaviors. Honor cultures are individualistic in that each member is responsible for his or her honor and will suffer the consequences of a wrong social move. They are collectivist in the sense that each person's honor also affects the honor of his or her clan, and sometimes that of a larger group. They are also class-oriented, in the sense that a person's honor and the means of maintaining it vary greatly according to social class. The most obvious class difference is gender-based. In most honor cultures, men are the predominant possessors of honor, and honor is very explicitly associated with masculinity and manhood, and all their cultural symbols. In fact, honor and masculinity are often interchangeable terms. In such cultures, women's honor is secondary to men's: it is derived from a woman's success in protecting the honor of her man (or men). Most often a woman is considered honorable if she guarantees her father's, brother's and/or husband's full control over her sexuality. Since a man's honor is frequently dependent on his control of his woman's sexuality, her honor derives from guaranteeing it and preventing his shame.

The most explicit and familiar remnant of honor culture norms in contemporary American law is the partial defense of provocation, which mitigates the homicidal offense committed by a cuckold husband on his wife and/or her lover.Footnote ¹⁰ In the past, the rationale for this defense was that in such a situation, an honorable man was not merely forgiven, but fully expected and encouraged to take the law into his hands and avenge his honor on the man and/or the wife who robbed him of it.Footnote ¹¹ Now the partial defense of provocation is no longer a justification but an excuse, expressing society's forgiving understanding rather than the full condoning of such killings. Nevertheless, in most American states, as in England and other common law countries, it is still the law of the land.

Equally striking is the American doctrine of self-defense. In English common law, a man has always been required to retreat before using defensive force, deadly force in particular. A leading American precedent, however, held that “a true man who is without fault is not obliged to fly from an assailant, who by violence or surprise maliciously seeks to take his life or do him enormous bodily harm” (Erwin v. State 1876). Following this 1876 decision of Ohio's Supreme Court, American common law deviated from the English norm, holding that a true man does not and must not be expected or required to retreat.Footnote ¹² This honor-based norm continues to enjoy both popular support and legislative acknowledgment to this day. In fact, it may be gaining new ground. In April 2005, Florida legislated a “stand your ground” bill, which “lets people use guns or other deadly force to defend themselves in public places without first trying to escape. Floridians already had the right to defend themselves against home intruders under what is known as the castle doctrine, but until now, they could not do so in public” (Reference GoodnoughGoodnough 2005:A12).

Human Dignity Versus Honor

Like honor in honor cultures, dignity in dignity-based cultures relates to the core of a person's worth as a human being. It is viewed as an axiomatic human quality, the source of social acknowledgment and rights and the organizing principle of humanistic value systems. Like honor, the concept of dignity synthesizes (or confuses) human nature, noble sentiment, and claims to social respect and legal rights with actual“natural,” social and/or legal rights. Like honor, dignity is thus generally treated as simultaneously empirical and normative, natural and social, both a source and a consequence.Footnote ¹³ Its specific features, however, remain largely vague.

Despite much contemporary reference to dignity, especially in countries where it is a legally recognized value, writers typically refrain from offering precise, comprehensive definitions, sometimes claiming that it is “intuitively” self-explanatory. Often discussed from legal and legalistic perspectives, dignity tends to be treated instrumentally rather than theoretically. “When it has been invoked in concrete situations, it has been generally assumed that a violation of human dignity can be recognized even if the abstract term cannot be defined. ‘I know it when I see it even if I cannot tell you what it is’” (Reference SchachterSchachter 1983:849). Referring to the usage of the term in U.S. Supreme Court jurisprudence, Meyer and Parent argue that:

Even in the German legal system,Footnote ¹⁴ which has dedicated more judicial thought to human dignity than any other, Eckert claims that:

For the purpose of this article, human dignity is the contemporary, liberal, post–World War II, legalistic concept that emerged, in the aftermath of the horrors of that war and the Holocaust, as a minimalistic universal common denominator and the basis for elementary human rights. This human dignity is the fundamental, egalitarian, humanistic value established and celebrated in Article 1 of the 1948 Universal Declaration of Human Rights, which proclaims that “[a]ll human beings are born free and equal in dignity and rights.”

This dignity seems to be a descendant of the theological, Judeo-Christian notion of glory that is attributed to mankind as an earthly manifestation of God's image. Accredited to Man, God's absolute, universal glory is fundamental and indestructible, existing equally in all human beings.Footnote ¹⁵ Unlike its ancient, metaphysical predecessor, dignity today is not theologically based; it derives its vitality and substantial content from humanistic liberal modernism. In its nonmetaphysical humanism, contemporary dignity takes after one of its more recent forebears: dignity as defined by Kant's moral philosophy and secured by his Categorical Imperative, stipulating that one may never treat a fellow human being as merely a means to an end that is external to him- or herself (Reference Kant and BeckKant 1785). In Kantian moral philosophy, human dignity is the essence of humanity and human existence, and an absolute, independent, superior source of value. Twentieth-century dignity is similarly constructed as the essence of humanity and human existence and an absolute, universal value. Over the second half of the twentieth century, this value was embraced by constitutions and legal systems in states such as Germany, South Africa, Israel, and Canada, and in international organizations such as the European Union.

Giving Dignity Form Through Comparison with Honor

Against clear structural analogies between honor and dignity and their sociocultural functions, this article focuses on the substantive distinction between the two concepts. Furthermore, in this discussion, I attempt to sketch an outline of dignity by highlighting the specific, substantive ways in which it differs from honor. Acknowledging the elusiveness of dignity and the difficulty in characterizing it, I suggest that dignity can best be substantially defined through comparison with honor, constructed as an antithetical, fundamental basis of a value system. For this purpose, I use simple descriptions of both honor and dignity, avoiding ambiguity and complexity within each term and its derivative value system.

While for most members of honor cultures, honor is earned and maintained through careful, painful observance of a specific cultural code, many define dignity as an essential human quality obtained at birth. All persons are worthy of human dignity and/or possess it merely by being human; it requires no action. Honor cultures are thus duty-based, whereas cultures based on human dignity are rights-oriented. Honor entails variable status and virtue for the few honorable persons of high social rank; dignity entails invariable, fundamental virtue for all human beings. Whereas a person's honor can easily be lost through the slightest social error, or stolen by another, many would argue that one cannot lose or be deprived of his or her human dignity under any circumstances. One may attack another's dignity, but can never destroy—or even tarnish it. The right to dignity thus entails a prohibition on any attempt to destroy or undermine a person's dignity—although such an attempt is inherently impossible.

Honor encourages rivalry, antagonism, and sometimes aggression, whereas dignity fosters consideration and constraint. Honor, (like a commodity, a valuable possession, a trophy), can be accumulated; dignity is often portrayed as the most essential human asset, which cannot be quantified or accumulated. An honor culture, therefore, offers higher stakes and higher risks, whereas dignity secures a fundamental minimum. In this sense, whereas honor promotes ambition, dignity inspires a “minimalist” social code.Footnote ¹⁶ Honor is complemented by fear of shame and humiliation; dignity by empathy, solidarity, and humanistic obligation (and perhaps disgust at the thought of human violation). Honor implies “live and let die,” whereas dignity implies “live and let live.”

In an honor culture, an offense to one's honor burdens him or her with the duty to remove the stain, purify the honor, avenge the offense, and humiliate the offender. Within the logic of dignity, an attack on a person's dignity is an attack on society and its fundamental values; it does not burden the offended party, but challenges the social order.

Considering all these oppositions, I agree with Bourdieu's observation that

In hope of further illuminating dignity by contrasting it with honor, I suggest that human dignity relates to honor much like specific gravity relates to weight.Footnote ¹⁷ Honor, like weight, can be accumulated or lost through adherence to or deviation from rules of conduct. In contrast, just as specific gravity is intrinsic to a material (“from birth”), irrespective of its size, location, age, price, or circumstances, dignity is identical in all human beings, disregarding their conduct, stature, status, or circumstances. Just as a heavy piece of steel has precisely the same specific gravity as a very light one, so an honorable person and a “lowly” one both share the same human dignity. Honor can be “taken” or “stolen” from a person much like weight can be “taken” or stolen from a piece of steel. Dignity, on the other hand, is intrinsic to a person and indestructible, just as steel's specific weight is intrinsic to it and indestructible.

The specific gravity of any material can be determined by the division of an object's weight in its volume; the specific gravity is identical for all objects made of the same material. Similarly, human dignity can be determined by the division of a person's honor in his or her social assets (as determined by the relevant, governing social norms); such human dignity is identical in all humans.

In sum, in the context of our modern,Footnote ¹⁸ liberal, humanistic worldview, human dignity entails, above all, personal autonomy, self-determination, and self-governance. This human essence establishes every individual's rights to life, nourishment, clothing, housing, basic security against suffering and cruelty, liberty, control over one's body, basic pursuit of happiness, choice of sexual and intimate fulfillment, basic freedom of thought, speech, religion, and movement.

Implications of the Honor-Dignity Choice for Sociolegal Orders: Some Examples

The constitution of honor or dignity as the basis of a society's value system, or even as one of several such bases, has profound implications and is particularly consequential to human rights, including minorities' and women's rights. What follows are some concrete examples of the grave import inherent in honor and dignity-based sociolegal orders.

Film Paralleling Law

The first premise of my proposed conceptualization of law-and-film is that law and film are two pivotal discourses that both reflect and refract the fundamental values, images, notions of identity, lifestyles, and crises of their societies and cultures, and a significant correlation exists between their parallel functions. Both law and film are dominant players in the construction of concepts such as subject, community, identity, memory, gender roles, justice, and truth; they each offer major sociocultural arenas in which collective hopes, dreams, beliefs, anxieties, and frustrations are publicly portrayed, evaluated, and enacted. Law and film often perform these functions in ways that echo and reinforce each other, inviting attentive interdisciplinary examination. Furthermore, certain underlying structures and modes of operation relevant to law and film's sociocultural functions are sometimes more explicit and identifiable in one discourse than in the other. An interdisciplinary comparison can shed light on the less obvious, or less familiar, analogous structures and modes of operation of the parallel discourse.

Film as Judgment

The second premise is that some films, law films in particular, perform wide-scale “legal indoctrination”; that is, they train and mold viewers and audiences in judgment, while examining—and often reinforcing—legal norms, logic, and structures.Footnote ²⁸

For decades, James Boyd White has been exploring and demonstrating how legal rhetoric constitutes human subjects and communities of readers, endowing them with collective visions, aspirations, and hopes, supplying them with frameworks, images, and stories with which to imagine themselves and their world (Reference WhiteWhite 1973, Reference White1984, Reference White1999). Judicial decisions and other legal texts are inherently imbued with judgment and concerned with justice; their construction of subjects and communities is, therefore, inseparable from judgment and the search for justice.

Less evidently—but no less significantly—the same can be said of many films. Films, much like judicial decisions and legislative rhetoric, can—and do—constitute communities (of viewers) that are often engaged in judgment, pseudo-legal reasoning, the pursuit of justice, and a corresponding self-fashioning. Judgment is often an activity not merely portrayed but actively performed by films, together with their (constructed and/or actual) viewers; it is often a function of a film's constitution of a community of viewers and its engagement in the social constitution of primary values, institutions, and concepts.

Film's Popular Jurisprudence

The third premise of the suggested conceptualization of law-and-film is that (some) films elicit popular jurisprudence. Such popular jurisprudence, embedded in film, may be sophisticated, insightful, and illuminating. Associated with mass consumption and the entertainment industry, it is likely to be overlooked and dismissed; yet unrestricted by conventional academic disciplines and categories, it may also be fresh, original, innovative, and imaginative, transcending familiar routes and formulas.

The proposition that (some) films contain jurisprudential insights, standpoints, and even elaborate arguments is hardly novel and would seem self-explanatory. The more puzzling question may be why we should invest in reading films as popular jurisprudential texts. Why explore the judging acts they perform and analyze the social values they constitute for their viewers? One answer is that films are overwhelmingly influential, playing a key role in the construction of individuals and groups in contemporary societies. They reach enormous audiences and, by combining narratives and appealing characters with visual imagery and technological achievement, can stir deep emotions and leave deep impressions.

I suggest that adopting a law-and-film lens when examining a film (or a genre) from one or more of the mentioned perspectives may reveal unexpected insights regarding the underlying value system presented. Such a law-and-film approach may expose the fact that despite a film's proclaimed adherence to liberal values (such as autonomy, equality, or dignity), its jurisprudence, and/or semi-legal social action and/or judging act presume and promote conflicting values (such as male honor or racial supremacy). Through the exploration of a film's jurisprudence, semi-legal social action, and/or judging act, such a study may disclose a film's unacknowledged underlying perceptions of community, memory, and identity; of law, justice, and legality; of citizenship and civil disobedience; of gender roles, familial structures, and human relations. It may excavate an embedded portrayal and treatment of social and normative issues that may otherwise remain effectively buried. Films' immense impact on individuals, communities, the conceptualization of sociocultural issues, and even the legal system and its members renders the exploration of such coded cinematic attitudes socially meaningful and significant.

I have so far referred to films at large, yet some films' interactions with law and the legal system are more significant than others. Courtroom dramas, trial films, movies featuring a lawyer figure or a law firm, and films that focus on social, ethical, and moral issues that are commonly associated with the legal arena (such as racial equality, abortion, affirmative action, corruption, and crime) clearly constitute this category. Further, films in which “legalistic” social or moral issues are merely a secondary subject matter may be just as meaningful in the context of their mutual relations with the legal discourse and system. (Indeed, Unforgiven and Thelma and Louise [1991] have given rise to more law-and-film scholarship than most courtroom dramas.)

The proposed threefold categorization of law and film perspectives is not thematic or methodological. It is a didactic mapping of the law-and-film terrain, identifying and defining three types of relationships between law and film, which give rise to three scholarly perspectives on the interdisciplinary encounter between the two discourses. Thematic issues, such as the image of the lawyer and the legal profession, or the law's impact on the social construction of gender roles, may be approached from either one or any combination of the three perspectives. At the same time, various relevant methodologies may be employed in the context of researching law and film from each or all of these three perspectives.

From a methodological perspective, each of the mentioned courses of study may employ textual analysis (discussing, for example, the film's implied reader and reader response); focus on the film's composition of plot or characters; read the film in the context of a historical survey of developments in film, society, or law; examine or highlight cinematic technique (such as shots); or emphasize cinematic choices (such as casting). Any law-and-film study, therefore, may be viewed as focusing on one or several themes (such as the image of the lawyer or legally facilitated gender roles) while employing a single or variety of methodologies (such as studying the film's cinematic techniques or contextualizing the film historically) and concomitantly exploring one or more of the types of interactions between law and film: film as paralleling law, film as engaging its viewer in judgment, and film as containing popular jurisprudential insights.

The proposed threefold categorization bears a resemblance to the elementary distinction between law-and-literature studies that focus on “law as literature,” those that read “law in literature,” and those that compare legal and literary modes of interpretation (Reference MindaMinda 1995). As any such seemingly clear-cut categorization, the one proposed in this article may be viewed by some as necessarily partial, artificial, and somewhat superficial. I share such concerns and feel that most often the three perspectives are closely intertwined and practically inseparable in the legal reading of a film. Nevertheless, in the initial stages of an emerging discipline, such categories are pedagogically useful in order to identify, mold, and define the transpiring field, and to create a common terminology for professional discussion and exploration. This is why I present the threefold model and attempt to point to the working of each of its three components in the reading of Unforgiven.

Plot Synopsis

At the heart of Unforgiven's plot lies a violent incident in which a local cowboy in Big Whiskey, Mike, brutally attacks and slashes a “whore,” Delilah, for giggling at the sight of his penis. His friend Davey, not fully understanding the situation, comes to his aid and holds Delilah as Mike slashes her, while pleading with Mike to stop. Big Whiskey's law-and-order sheriff, Little Bill (Gene Hackman), a legendary remnant of “the old days,” listens to the parties, dismisses the “whores'” demand to hang the men, or at least whip them, and accepts their pimp Skinny's claim to compensation for the damaging of his property (Delilah). Mike and Davey are ordered to pay Skinny seven ponies and do so. Davey tries to offer Delilah a gift pony, but the “whores” refuse it, chasing the cowboys out of town with shouted insults and hurled clods of horse manure. Defying Little Bill's ruling, the “whores” deliberate and organize, saving money to set a substantial thousand-dollar reward for the two cowboys' heads.

Among the bounty hunters that stream into town are English Bob (Richard Harris) and William Munny (Clint Eastwood), ultimate examples of the legendary outlaws of yore. English Bob travels with his East Coast biographer, who collects and “documents” legends of the West. Munny arrives on the scene with Ned (Morgan Freeman), his old partner and buddy, and a young would-be gunfighter and killer called the Kid.

After portraying the violent incident in Big Whiskey, Unforgiven moves to introduce us to its hero, William Munny, and his longtime buddy Ned. In the past, before they both married and settled down as impoverished pig farmers, Munny and Ned were professional killers, gunfighters for hire. Munny was then reputed to be the luckiest, fastest, and best fighter in the West. He was invincible. He was also known to be the meanest killer in the West, the man who killed women and children (as well as “Chinamen”) by setting dynamite on trains. But Munny's good wife, now deceased, “showed him the error of his ways,” and with her guidance he transformed into a remorseful, compassionate man, and a devoted—if economically failing—father who refrains from alcohol, bad language, and illicit sex. In the film's opening scenes, he no longer rides horses, carries guns, or breaks the law. His son and daughter consider him a grumpy, unmanly old pig farmer. When the Kid approaches him, inviting him to kill the cowboys and win the “whores'” prize, Munny turns him down, saying he is no longer the man he once was. But he reconsiders and joins the Kid on this bounty hunt in the hope of saving his crumbling pig farm and supporting his two young children. Munny pleads with Ned to join him, and he does, for old times' sake. (Ned's “Indian” wife, Two Tree Sally, who has never forgiven Munny for his past, does not hide her resentment when he stops in to invite Ned to join in the job.)

In an attempt to drive the bounty hunters out of town and maintain order and control, Little Bill brutally beats both English Bob and Munny. He succeeds in driving English Bob out of town, but fails to prevent Munny, together with the Kid, from reaching the ranch where Mike and Davey live and killing the two cowboys. Ned rides with them to the ranch and attempts to participate in the killing, but finds that he is no longer able to murder and sets off for home.

Munny and the Kid collect the thousand-dollar reward from the “whores,” and are about to leave Big Whiskey when they hear from the “whores” that Little Bill caught Ned, beat him to death, and exhibited his body at the entrance to Skinny's (the pimp's) saloon. In response, Munny rides into town, walks into Skinny's saloon, and in a magnificent, climactic scene shoots Little Bill, Skinny, and every last man who takes their side. When he leaves the saloon, none of its patrons is alive, with the single exception of the East Coast biographer. Riding away in a furious nighttime storm, Munny warns the town's people to bury Ned properly and treat their “whores” well, lest he return to kill all of them.

In the film's final shot, against the background of Munny's wife's grave, subtitles inform the viewer in documentary-style fashion that Munny left Wyoming, moved to San Francisco, and became a merchant.

Overview

Unforgiven received four Academy Awards in 1992, including those for Best Picture and Best Director, and it has enjoyed tremendous popularity. The film almost succeeded in reviving the fading Western genre. Unforgiven is at heart a law-and-justice Western that deeply agrees with Bazin's observation that the Western is essentially a cultural commentary on “the relation between law and morality” (Reference BazinBazin 1971:145). What seems less obvious is the content of its sociolegal commentary.

In his now classic reading of this highly acclaimed film, Miller presents Unforgiven as a commentary on the shortcomings of formal, positive law and the crucial social role of visceral, honor-based “equity” (Reference Miller, Sarat and KearnsMiller 1998). According to Miller, in applying positive law and its modern, cold logic of deterrence, Little Bill fails to address our suppressed, primeval craving for retributive justice. In addressing the authentic, instinctual yearning for honor-based vengeance, a healthy libidinal sensation uncorrupted by political correctness, the film supplements the on-screen (Little Bill's) “legal” proceeding with Munny's extralegal vengeance, thus satisfying our “raw” sense of justice.Footnote ²⁹ According to this honor-based reading, the film revives a familiar, widely appreciated, and much-needed honor-based value system for its viewers to fill in the emotionally unacceptable gaps in the justice provided by contemporary, politically correct positive law. Reformulated in the law-and-film terminology suggested in this article, Miller's argument is that Unforgiven's cinematic judgment of its on-screen, fictional legal system finds it overly professionalized, formalistic, and lacking in spirit, passion, and justice. Accordingly, in Miller's view, the film's popular jurisprudence is retribution, rather than deterrence.Footnote ³⁰

Miller's overtly nostalgic, honor-based reading does not and cannot explain the film's most memorable, widely quoted one-liner, rightly understood as its punch line: “deserve's got nothing to do with it.” This is Munny's response to Little Bill's desert-oriented plea (“I don't deserve this, to die like this”), as he shoots him at very close range, looking straight into his eyes.Footnote ³¹ Miller's reading similarly cannot explain (away) the film's complementary, second-best one-liner: “We all have it coming, Kid” (Munny's reply to the Kid, who tries to convince himself that he was justified in killing because his victim “had it coming”). More significantly, this suggested honor-based reading is thoroughly gender-blind.Footnote ³² A more gender-acknowledging reading observes that Little Bill's legal decision is, in fact, in line with the honor code, while Munny's quest is not.

In a different vein, I suggest that Unforgiven presents an exercise in cinematic judgment by exposing, judging, and condemning Little Bill's honor-based law, as well as the whole Western ethos that his law represents. Unforgiven suggests that such an ethos is ripe for dismissal for clinging to the honor code and to its bravado image, whose pretenses are fundamentally false, self-deluding, and pathetic. The film's popular jurisprudence advocates the replacement of the Old West's society and law's honor-based value system with a dignity-based one. In so doing, Unforgiven subverts and transcends the unwritten laws of the Western genre. Rather than hailing Eastwood's classic as the ultimate Western, to borrow Sarat's words: “it might be more accurate to call it a classic anti-Western, antirevenge film” (Reference SaratSarat 2002:312).Footnote ³³ The film thus calls for a sociolegal transformative substitution of honor with dignity while leading the way by presenting a model of how a Western film can make this very move, transcending the genre, deconstructing it, and re-creating it as dignity-based.

In the following analysis, the three modes of law-and-film analysis I presented earlier (film paralleling law, film as judgment, and film as offering popular jurisprudence) all function to inform the reading of Unforgiven. In this textual analysis, as elsewhere, these three approaches intermingle and are hardly distinguishable, yet for purposes of clarity and illumination of the theoretical structure, I try to note, in every part of the analysis, which of the three perspectives predominates the discussion.

Popular Jurisprudence: Unforgiven's Construction and Evaluation of Law, Honor, and Dignity, and Their Interconnection

In the opening scene, Strawberry Alice, speaking for the “whores,” asks Little Bill to hang the offenders. In support of her demand, she argues that Delilah did nothing to “deserve” the assault, i.e., to justify or excuse the slashing: she stole nothing, and merely let out a small giggle. Alice's desert-based sense is translated into the legal-like stand that Delilah's giggle cannot be regarded as legally sanctioned provocation; it therefore constitutes neither justification nor excuse for the affliction of grave bodily injury, and Mike must be held fully responsible and punished appropriately.Footnote ³⁴ Little Bill accepts the logic of her argumentation but, to her great dismay, determines that whipping is the appropriate, deserved, proportional punishment. At this point, Skinny intervenes, showing his contract with Delilah and demanding damages for his lost investment. “I got a contract that represents an investment of capital,” he states. Skinny's legal stand is that the case should be tried as a tort, rather than a criminal case.

Thoughtfully pronouncing the word “property,” Little Bill considers Skinny's legal stand, accepts it, and orders the defendants to compensate Skinny. Responding to Alice's complaint, Little Bill explains that Mike and Davey are hardworking boys who acted foolishly. “If they was given over to wickedness in a regular way …” he continues, and Alice fills in: “like whores …” Little Bill's legal decision to frame the case as civil, not criminal, therefore, also reflects his moral judgment that the cowboys are not “criminal” types that need to be deterred or incarcerated. Theirs was a one-time slipup that can be overlooked. Given their social character, a civil procedure compensating Skinny for his damages is sufficient, and in the absence of public interest, criminal charges can be dropped.

Is Little Bill's legal decision emotionally unsatisfying? Perhaps. But is it, as Miller seems to suggest, in conflict with the Western's honor-based value system? Or does its deficiency lie elsewhere?

Within an honor-based value system, shameful sexual impurity deprives “whores” of any honor deserving of protection. In nineteenth-century honor-based America, “[u]nmarried women who fell from grace supposedly would never be accepted in polite society or marry an acceptable young man” (Reference IrelandIreland 1989:33). The cherished honor code of the day, (partly “encoded” in the “unwritten law”), encouraged a gentleman to avenge any offense to a lady's honor, but it was plainly restricted to “a woman of chaste character,” “an innocent girl,” and “a virtuous woman” (Reference KernanKernan 1906:450). Excluded from the world of honor (denied the status of “members,” “agents,” “subjects,” or “honorable beings”), “whores” had no claim to vengeance or compensation.

Further, Delilah's shaming of the phallus—the most cherished attribute of manhood and masculinity—renders her guilty of a grave breach of the honor code, which glorifies masculinity and its symbols above any other value. This offense to Mike's manly honor obligates him to retaliate forcefully. Though herself not deserving of the code's protection, Delilah's shaming of Mike's manhood stains his honor, allowing and obligating him to avenge himself on her. In this sense, in Big Whiskey's honor world, Delilah occupies the paradoxical position of the “guilty object,” a deserving target of Mike's vengeance but not of society's defense.

In various ways, the law has silently acknowledged this social reality and refrained from confronting it. Attempts to overcome this underlying honor-based, extralegal, socio-moral reality, even in the twentieth century, were often rejected with righteous public indignation.Footnote ³⁵ In the context of such an honor-oriented sociolegal atmosphere, Little Bill's legal determination to “drop the criminal charges,” which would convey strong social condemnation, seems plausible.

The “whores” fully grasp the meaning of their legal construction as honorless objects of property rather than human members of society, and they refuse to succumb to it. “Just because we let them smelly fools ride us like horses don't mean we got to let them brand us like horses,” Strawberry Alice aptly states.Footnote ³⁶“Maybe we ain't nothing but whores, but by God we ain't horses.” These remarks are strong affirmations of dignity, and they encourage the “whores” to demand that the law acknowledge and protect human dignity rather than adhere to the logic of honor.

The “whores'” insistence that they deserve the protection of the penal code and that their offenders must die manifests their defiance of the honor-based value system and law's adherence to it. In offering a reward for the cowboys' heads, the “whores” actively and publicly renounce the worldview that constructs Delilah as a shameful, dishonored, guilty object. They similarly reject Mike's social construction as the “inherently innocent subject”: the honorable human agent, not guilty of his violence toward a woman, due to her illicitly sexual, and thus wicked and dangerous, nature. They challenge the governing honor-based social order, together with the legal order that supports it, attempting to replace it with a dignity-based sociolegal order that would recognize Delilah as a human being fully entitled to the social protection of the law. This is an act of resistance, constituting civil disobedience and, perhaps, revolution. And it is fully supported by the film.

Paradoxically, the means chosen by the “whores” to challenge the honor-based world are, themselves, aggressive and murderous, thus more in line with the honor-based society they are familiar with than with the dignity-based one they aspire to establish. Can a violent, aggressive, honor-based society be changed through humanitarian, dignity-based means? Can a new, dignity-based social order be promoted through violent means? Can it be promoted otherwise? These questions are brought to the fore by the film's gruesome depiction of the cowboys' killings by Munny and the Kid, and by Ned's refusal to commit the killings. They are left open, to haunt the viewer and disturb his or her peace. The film's final scene, which places Munny in a paradoxical bind analogous to the one the “whores” find themselves in, seems to imply that violence may unavoidable in the replacement of society's honor-based mentality with a dignity-based one. Unforgiven seems to suggest that, tragic, self-contradictory, and disappointing as it may seem, perhaps the act of transformation must be rooted in the logic and legacy of the world that is being challenged and transformed. Further still, perhaps any transformative change must be violent and forceful, even when attempting to establish human dignity as the basis of a new value system. For further discussion of this point, see “Munny as the Western's (Anti?) Hero” below.

A powerful cinematic means of supporting the women and their struggle for emancipation, dignity, and equality is the film's highly unusual portrayal of its “whores.” In Westerns, “saloon ladies” are seductively appealing, glamorous, provocatively dressed, heavily made-up femmes fatales. They are inherently “loose” women, overtly sexual, vulgar, and fully content with their voluptuous lives. They perform before cheering crowds of men in smoky bars, presenting themselves to the men on- and offscreen. They have no personal, “offstage” lives, personalities, or female friends. Westerns' portrayal of “whores” is pornographic in that the films offer the “whores” as objects for the genre's male viewers' visual-sexual consumption. In this sense, Westerns dehumanize “whores,” these honorless, shameful women, disrespecting their human dignity. Unforgiven consciously departs from this generic convention, thus calling critical attention to it. Unforgiven portrays its “whores” as plain, ordinary women, leading difficult, unhappy, yet human lives. The women on screen are neither stereotypically pretty nor seductive. Their garments, like their faces and hair, are plain. They are neither provocatively dressed nor heavily made up. They do not sing, dance, or perform.Footnote ³⁷ They are never shown in a saloon or a bar—the Westerns' archetypal, manly public domain. In clear defiance of generic conventions, Unforgiven's “whores” are always portrayed in their living quarters, attending to ordinary domestic chores and maintaining a warm, supportive feminine community. Their “professional occupation” is presented as anything but glamorous or pleasant. It is hard work and a tedious routine. They are routinely treated as property and as trash. They hurt. Nevertheless, the film does not neglect to depict their individual characteristics, sense of humor, views, sensitivities, joys, and basic dignity. Unforgiven dignifies its “whores,” treating them as human beings rather than as sexual objects on display. In so doing it supports their struggle for dignity, illustrating how it may be promoted.

Unforgiven's world is a transforming one. Big Whiskey is still immersed in legends of larger-than-life outlaw heroes from a time of honor-based lawless vigilantism, as it struggles to create new social norms to constitute and govern a more stable, peaceful, and organized community. The violent attack on Delilah serves as a catalyst for the “whores,” Big Whiskey's women,Footnote ³⁸ to demand the right to participate in the process of collective negotiation regarding social norms and fundamental values, and the manifestation of these norms in the community's criminal code as well as the daily practice of law enforcement. In becoming their champion, Munny, the film's uncontested hero, takes on this ideological endeavor, renouncing the honor code and embracing a dignity-based worldview. Together with Munny, Unforgiven supports its women's uprising, reinforcing it through the (cinematically judgmental) treatment of Little Bill and English Bob, men of honor, the portrayal of Munny, and the cinematic transcendence of the Western's generic formula (all detailed in the following sections).

In this dignity-promoting context of the film, how should the film's bloody final scene be read? Munny's use of brutal force to retaliate for the death of his friend and re-establish the deterring power of his honor echoes Little Bill's ruthless conduct in brutalizing English Bob, Munny, and Ned. This scene seems to imply that when provoked enough, even the meekest of men, the greatest critic of the Old World, and most zealous convert to dignity resorts to retaliation. And when retaliation takes on extreme, violent proportions, it can be just as bloody and ugly as an extreme form of deterrence. I suggest that Unforgiven's acceptance of Munny's brutality, (much like its support of the “whores'” bloody quest), does not imply acceptance of violence per se. The film's acceptance of its hero's act of brutality testifies to the complex reality that sometimes such gory actions are unavoidable and necessary to survive in a brutal world, and perhaps even crucial in transforming it into a better place. The acceptance of Munny's begrudging resort to brutality, thus, does not vindicate brutality at large. Whereas Little Bill acts brutally to enforce the Old World's alleged value system as the New World's social norm, Munny acts in the sole service of exposing the romanticized “honor code” bravado, the disguised state terror, and the pretentious (legalistic) rhetoric of both deterrence and retribution. He employs the Old World's violent conduct in the course of waging war on it. To take on the old system, Munny, the worst and best of its products, must fight fire with fire and perform the ultimate Old West role. Playing out his role, he turns the system's definitive human weapon against it, destroying the honor-based system and paving the way for an alternative, dignity-based regime.Footnote ³⁹

Unforgiven thus seems to suggest that any value system must be established through force and supported with the threat of more force. But this is not to be confused with the false glorification of brutality and terror in romantic guises. The use of force as a means to support a humane social order is qualitatively different from revering force. The first can coincide with a dignity-based worldview; the latter is often associated—sincerely or cynically—with honor-based social orders. The confusion of the two may be detrimental, leading to the legitimization of brutality, or to the pronouncement of force as a necessary tool in the promotion of a just cause. The film's distinction between them is unambiguous.

Munny's arrival in Big Whiskey facilitates its transformation from honor to dignity, the film's central theme. Engaging in Old World terror, he empowers the women, Big Whiskey's most vulnerable segment, enabling them to participate in the collective making of an emerging egalitarian, dignity-based sociolegal system. Having achieved his goal, Munny, the last remainder of the Old World, “returns to the dead,” this time for good, and a new Clint Eastwood character re-emerges from his ashes as a civilized, urban family man, a San Francisco merchant. Unforgiven begins with a caption narration of Munny's transformation from a man of honor to an avid believer in human dignity. The film concludes with a captioned reassurance that the portrayed adventure did not mark the old Munny's comeback. Munny remained the transformed, honor-averse, dignifying man his wife had helped him become, and his Big Whiskey venture was indeed his contribution to the making of a New World.

The Portrayal of English Bob and Little Bill: Unforgiven's Cinematic Judgment of Men of Honor and Honor-Based Law

Unforgiven pits Munny against English Bob, who purports to represent Old World honor-bravado, and Little Bill, an alleged representation of New World law and order and an official advocate of deterrence as the judicious rationale for punishment.

Unforgiven portrays English Bob, extravagantly performing the role of the Old West's outlaw, as exploiting the rhetoric of honor-driven vengeance to conceal crude, cold-blooded savagery, while cynically and opportunistically advancing his immediate, selfish, honorless interests. Re-creating himself as a legend, English Bob narrates his acts of heroism to his admiring biographer. But Little Bill's recollection of these recounted incidents portrays English Bob's accomplishments in a far less flattering light. For example, despite his pet name, Two-Gun Corkey never carried two guns, explains Little Bill (he merely had a sexual organ the size of a gun), and English Bob did not fight him in defense of a lady's honor, as he had chosen to define the event. English Bob shot the unarmed Corkey in drunken jealousy over the attentions of a “whore.” But Little Bill does not aim to undermine the glorification of Old West bravado but to offer himself as its hero. Willingly catering to the biographer's uncritical admiration, he shares his treasured wisdom of the Old World, portraying it as an orderly system, tailored for honorable men. When outnumbered, he teaches his newfound disciple, a man must first aim and shoot the best gunman among his opponents. Concentration, self-control, self-assurance, and courage, not a fast draw, are the keys to survival and triumph. The moral of his narration is that a truly honorable man manifests and personifies the Old West's honor code, and as such is inherently just and unbeatable.

Clearly, Little Bill presents himself to the biographer as the ultimate Western hero. Unlike English Bob, a fake version of Old World courage, Little Bill is not merely the personification of the natural, unwritten law of honor and manhood; he further integrates natural law with the New World's written law, of which he is in charge. Embodying the justice and equity inherent in a true man, Little Bill combines natural law principles with Big Whiskey's positive law. In his own mind, he is law and justice, a living fusion of manhood, honor, justice, and the law. This is why, as the hero of his mythology, Little Bill does not “deserve to die.” According to Western convention, Little Bill seems to argue, he is the embodiment of the story's values, and is thus immune. Munny's cryptic reply dismisses the whole premise of Little Bill's claimed right to live. He is not this story's hero, his are not the story's values, and his mythology is not “the story.”

Munny exposes the false portrayal of the honorable old days and the inherently false premises of the true man bravado. “I was lucky in the order,” he states when he writes off Little Bill's theories reiterated by the biographer, after shooting five men to death in a matter of seconds. “I've always been lucky when it came to killing folks,” he continues to disillusion the insistent biographer. Similarly, throughout the film he soberly reports that in the old days of professional killing he was continually drunk to the point of having no recollection of his actions. His survival was hardly just or otherwise explicable. Honor, justice, and a true man's instinctive skill had nothing to do with it.Footnote ⁴⁰

In addition to destroying Little Bill's image of the true, honorable man, the film exposes his “legalistic” pretenses by allowing him to pursue and execute his notion of law to the extreme.

Allegedly embodying and protecting the rule of law, Little Bill extravagantly strives to deter potential outlaws. Capturing bounty hunters that carry arms in disobedience of the ordinance he published, Little Bill stages their punishment as a public spectacle, sending a message of deterrence to other outlaws who, tempted by the “whores'” promised reward, were likely to threaten the rule of law in Big Whiskey. In a bloody and unhitched scene where English Bob is brutally kicked, Little Bill says, “I guess you think I am kicking you, Bob,” he explains, “but that ain't so. What I am doing is talking to all those villains in Texas, and all the villains in Missouri. […] I'm telling them there ain't no whores' gold, and even if there was, they wouldn't want to come looking for it anyhow.”

Little Bill's rhetoric of law, order, and deterrence fails to disguise the brutal character of his actions. His exaggerated, public beating of English Bob, Munny, and Ned is so inhuman that even the toughest residents of Big Whiskey turn their heads away in horror. Through uncomfortably long scenes portraying gory, painful brutality, Unforgiven leaves no room to doubt Little Bill's monstrosity. In the name of promoting social order and safety, Little Bill is discriminatory, ruthless, and unscrupulous in sacrificing human dignity, rights, and lives. His law-and-order rhetoric and mannerisms are a thin smoke screen, barely concealing his cruel violence.

Through Little Bill's character, Unforgiven exposes the violence of positive law, as well as the falsity of the nostalgic true man bravado and the mythical notion that law and justice can be smoothly integrated and embodied in a hero's character. Little Bill demonstrates the close affinity between honor-driven, power-thirsty outlaws, state terror, and the logic of deterrence, as well as the threat they all pose to human dignity. Legitimizing his brutality through his sheriff's badge, Little Bill attempts to create a new social order in the image of the Old West. He is incapable of doing otherwise.

In telling imagery, Little Bill tries to build a house but, as his townspeople comment, he is no carpenter, and the leaking roof renders the house uninhabitable. The extended, repeated shots portraying the rain flooding the house offer a powerful visual picture of the impossibility of Little Bill's domestic project. Just as this character is incapable of building a habitable home for himself, so is he incapable of transcending the old brutality and violence and furnishing his community with humanistic law and order. “Hang the carpenter,” suggests the unknowing biographer, indicating the hopelessness of Little Bill's domestic vision. Unforgiven echoes this conclusion, using Munny to free Big Whiskey from the man who cannot leave the bloody past behind.

Unforgiven's cinematic judgment of Little Bill, a man of honor as well as the image of law, is the most complex and interesting judgment offered by the film.

Munny as the Western's (Anti?) Hero: Unforgiven's Transcendence of Honor and (the Western) Genre as a Model for Analogous Social and Legal Transcendence (“Film Parallels Law”)

Coming to the rescue of the film's victimized damsels in distress, avenging his friend's death in Skinny's saloon, Eastwood's Munny, once “the worst, meaning the best” of the Old West's outlaws, is this Western's protagonist, seemingly exhibiting the genre's ultimate honor-code performance. But while performing this romantic role, Eastwood's Munny exposes the legendary honor code, as well as the legalistic rhetoric of retribution and deterrence and the false premise of the whole Western genre. In its construction of the anti-heroic Munny, Unforgiven transcends the Western's genre while deeply transforming it. Munny personifies this Western's alternative, dignity-based social philosophy and jurisprudence, and his transcendence of the traditional hero role embodies the film's transcendence of its genre. These acts of transcendence invite the film's viewer to contemplate and perform analogous acts of transcendence in the social realm as well as in the legal world.

Throughout the film, Munny exhibits the least “honorable” behavior possible. Our first visual encounter with Munny imprints in our minds' eyes his unskillful attempt to capture his sickly hogs and subsequent inelegant plunge into the mud. We observe him, covered with mud and pig shit, through the disappointed, disgusted eyes of both his own shame-stricken son and the disillusioned Kid. Throughout the film, deliberately using very long shots, the camera repeatedly shows Munny falling off his horse, missing his targets, admitting his fear of death, and letting Little Bill “kick the hell out of” him. The Munny who rides into Big Whiskey is no honorable “Western hero.”

Read against Tompkins' characterization of the Western's (honorable) hero, Munny overtly “fails” on all fronts but two. Breaching one of the Western hero's most definitive codes of conduct, Munny speaks and does so willingly, to the shocking extent of initiating personal, intimate conversations and sharing his feelings and anxieties (Reference TompkinsTompkins 1992:51–9). Just as significantly, he feels and expresses a genuine fear of dying (Reference TompkinsTompkins 1992:31). Munny is deeply attached to a strong woman, accepting her moral code and fully subjecting himself to it (Reference TompkinsTompkins 1992:41–2). Munny hardly controls his horse, humbly accepting the animal's disobedient rebelliousness (Reference TompkinsTompkins 1992:105–7). Both Munny and Ned are uncomfortable in the wilderness, and admit that they would rather be home in bed (Reference TompkinsTompkins 1992:81). The only two surviving characteristics are the hero's professional excellence as a fighter and his sexual purity (Reference TompkinsTompkins 1992:84).Footnote ⁴¹

Furthermore, Munny proclaims soberly and unsentimentally that even in the old days, the Old World's honor code never existed outside the eager imagination of cheap Western writers. When he shot men, women, children, animals, and “anything that walked or crawled,” he was regularly drunk and barely conscious of his actions. Unglamorous alcohol abuse triggered the unnecessary shootings and gruesome killings, prompted more drinking, and fed a vicious and senseless cycle. Honor had nothing to do with it. Nor did retaliation and desert.

Glory had nothing to do with it either. Throughout the film, Munny is haunted by the gruesome, tormenting memories of the bloody, unnecessary murders he committed in his drunken days. Remorseful and ashamed, he repeatedly reminds Ned that he is no longer the murderous, heartless man he once was, begging his friend never to tell a soul of his past. The film's excruciatingly long, detailed portrayal of the clumsy, messy shooting of Mike and Davey represents and condones Munny's unheroic perception of killing. The killing of Davey in particular is an emotional fulcrum of the film. Ned loses heart. It is a botched shooting, Davey is hit in the stomach, his death far from instant. He cries out for water, prompting Munny to angrily demand that the other cowboys bring him water. This is not the cool detachment of an honor killing. The scene is especially disastrous because the viewer has some sympathy for Davey, who tried to atone for his partner's slashing of Delilah by offering a pony in addition to the ones Little Bill extracted as just payment for Skinny's lost “property.” These painful, vivid scenes are ones viewers are unlikely to forget. They diverge in every way from the classic Western portrayal of the hero's clean-cut, honorable killings of bad guys, and are therefore shocking and horrifying.

The unromantic reality of survival in the Old West had everything to do with pure chance, the capacity to commit brutal murders without scruples, and the ability to execute horrors that would discourage potential rivals. It was survival in the most basic sense of pre-social life, or, phrased differently, it was the ability to maintain a balance of terror that would paralyze an opponent and prevent him from attacking. The violent nature of an “honor-based” culture boils down to survival through apish intimidation. Honor, retribution, and deterrence are merely sophisticated terms used to disguise and beautify the harsh truth that survival in a brutal world depends on ruthless, cold-blooded savagery and sheer luck. The whole Western genre, Unforgiven declares, is a dangerous, misguided romanticizing of an ugly human reality.

This reading of the film is as textually plausible as Miller's honor-based reading. Unlike the honor-based reading, however, this view constitutes the film as a subversive Western that turns the genre on its head, exposing its disingenuous pretense.Footnote ⁴² Like Munny, the finest outlaw who transforms and turns on the culture that cultivated him, Unforgiven, arguably the finest Western, transcends its own genre. In so doing, the film offers cinematic support to its argument that individuals (and systems) can change, and that social values and legal norms can indeed be transcended and replaced by those better suited to treating all people as ends, never as means to other ends. Having transformed its on-screen society and law as well as the Western genre itself, Unforgiven offers itself as a role model for real-world social and legal transformation through the substitution of honor with dignity. The film's explicit reference to (Little Bill's) law and its strong ties to honor-based norms calls viewers' attention to this fundamental social institution as one in vital need of transcendence and transformation.