Essay by Dr. Stanley Fish: Honest Dishonesty

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- by Dr. Stanley Fish

Note: The essay below is one of two by Dr. Stanley Fish recently published by The LampIt is extracted from Dr. Fish’s most recent publication, Law at the Movies: Turning Legal Doctrine into Art (Oxford, 2024).

On liberalism and 12 Angry Men

Whenever I teach “Law at the Movies,” my code name for the course, which I only reveal to the students late in the semester, is “Jurisprudence in Disguise.” By that I mean two things. First, film is the Trojan horse that allows me to introduce jurisprudential questions students might find off-putting were they to be posed directly. Second, those questions are the real content of the movies we study, questions such as these: What is law? How is law established? What is the source of legal authority? What is the relationship between law and morality? And, finally, what compels obedience to the law?

There are many answers to that last question, but one that is almost never offered—and is resisted whenever it surfaces—denies the distinction between law and violence and asserts that obedience to the law is compelled by nothing more than force. In his magisterial essay “The Concept of Law,” H. L. A. Hart strongly rejects this thesis. He insists that, whatever law is, it must be very different from the scenario in which a gunman “orders his victim to hand over his purse, and threatens to shoot him if he refuses.” Were law merely a matter of “orders backed up by threats” (the “command theory” of law elaborated by the nineteenth-century legal theorist John Austin), none of the features we prize in law—its settled nature, its impartial execution, its independence of bias and interest—would be present. It would be less a refuge from injustice than a vehicle of it.

We have a number of ways of making this point. We say that justice is blind. We say that law is the “impartial third” that hearkens to neither side in a dispute but delivers a disinterested judgement. We say that law is “no respecter of persons,” for the verdicts it issues would be the same whether the defendant were rich or poor, powerful or lowly, white or black, a man or a woman, straight or gay. We say that “ours is a government of laws, not men.” For if ours were a government of men, the rules of entitlements and sanctions would track the preferences of this one or that one; but general rules—rules that have the form “all citizens can or cannot do x” rather than “Dick and Jane and Harry cannot do x, but you can”—intersect with personal preferences only incidentally and accidentally. It is rules of that kind that constitute the justice system (or so the standard story tells us) and make ours a government of laws.

But where do these general rules and laws come from? The question is urgent, because the problem of partiality returns if the source of general laws is not itself general but is instead identified with a particular ideology or theology or morality. If law is identified with the dictates of a religion, non-congregants will have no reason to follow it. If law is identified with a political philosophy (utilitarianism, libertarianism, communitarianism, socialism), those who find its goals unappetizing or even pernicious will chafe against it. If law is identified with a moral vision—even one so basic as “Do unto others as you would have them do unto you”—the content of that vision will be endlessly debated, as in fact it is.

But, once you set aside theology, ideology, and morality as the possible sources of law, what is left? The answer given by liberal democracy—that form of government whose (paradoxical) claim is to be apolitical—is process. If laws could be made without reference to substantive concerns, if laws could be entirely formal—without hostages to disputable contents—no one could claim that they were tainted by partisan interests, and you could obey them without committing yourself to anything. Are there such laws? What would they be like? Well, they would be like the law commanding you (and me and everyone else) to drive on the right side of the road (or on the left in the United Kingdom), or like the rule in a supermarket line or in a line to purchase a train ticket that you must wait your turn; you don’t get to go to the front of the line because you are wealthy or virtuous or good-looking or have a high I.Q., although it might be that exceptions, generally agreed on in advance, are made for the very old and the infirm. Such laws and rules are indifferent to persons and take no notice of status other than the status conferred by the formal mechanism, the road’s dividing line, or the queue.

To be sure, it would be possible, if you tried hard enough, to discover a latent ideological content in the most formal of rules. (Thomas Hobbes remarked of geometry that its definitions are not disputed only “because men care not, in that subject, what be truth, as a thing that crosses no man’s ambition, profit, or lust.”) But apart from a special effort, mounted typically by political and epistemological revolutionaries to uncover the biases hidden beneath apparently neutral surfaces, there does exist at any moment a category of merely procedural rules adherence to which signifies fidelity to law and nothing else. The project (and claim) of political liberalism is to order civic life by such rules. (Private life is left untouched by the liberal state, which has no interest in what’s in your heart.) Of course, there is still the problem of figuring out what they are, given that by the first principle of liberal thought no God, king, dictator, or wise man will tell you. In fact, nothing will tell you; in the absence of an external authority such as a king or a pope (exiled from liberal thought at the outset), authority can emerge only from the search for it. The establishment of a regime of process—of laws that incline to no one’s interest because they affirm nothing substantive—is itself a process. With nothing anchoring it from the outside, the liberal state must engineer its foundations from the inside.

You begin with core examples like the one of driving on one side of the road and strive to fashion laws that display the same indifference to race, class, gender, sexual orientation, educational level, and wealth. You won’t get it right the first time or the second or the third, and so you keep on refining your formulation in response to the claims made by some (and there will always be some) that this latest version of law is unfair to them. It is through the trial and error of legislative outcomes and judicial decisions that the law strives to realize the liberal ideal of a regime that treats each and every one of its citizens as equal before the law. The ideal cannot be achieved at a single stroke; it is the endless work of generation after generation, as the law, in a phrase favored by many legal theorists, works itself pure. It is the political process that promises to deliver, in the long run, an apolitical jurisprudence independent of both partisan interest and the gunman-style exercise of force.

In the previous paragraphs, I have rehearsed what might be called the standard story of law as it is presented in our textbooks, proclaimed by our courts, pledged allegiance to by our politicians, and for the most part believed in by our citizens. It is the story of a legal system that, despite its fault lines and occasional stumbles, more often than not affords guidance, protection, and justice to everyone who puts his trust in it and lays down his arms in the confidence that his fellows will do the same. That, however, is not the story told in many of the films that take up law as their subject. Instead, we find a law that is absent, a law that is corrupt, a law that is politicized, a law that is inadequate, a law that is instrumentalized, a law that breaks down at exactly the moment it is most needed. To be sure, this is exactly what would be expected: drama thrives not on things running smoothly but on things gone awry. It would be hard to make drama out of a process that turns out just as it should. That, however, is the unlikely achievement of Sidney Lumet’s 12 Angry Men, which has been celebrated as the perfect law-centered movie, although I shall argue that it is also perfectly dishonest.

But, before I make that argument, let me remind you of the arc of the film’s plot. Twelve jurors are charged with determining the guilt or innocence of a boy (probably Puerto Rican) who has been accused of murdering his father. He was heard saying to him, “I’ll kill you.” As deliberations begin, it appears that everyone thinks the boy is guilty, but, when a preliminary vote is taken, one juror, identified only as Juror No. Eight (Henry Fonda), votes “not guilty.” In the course of the discussions (some very heated) that follow, the other eleven jurors, one by one, change their minds until, once again, there is a single holdout, this time for conviction. He finally relents, and the jurors file out of the room.

As viewers we are encouraged to understand the narrative as a vindication of liberal political values and as a demonstration of those values in action. Clouds of prejudice, bias, and ignorance are dispelled by rational deliberation supported by evidence that emerges from careful measurement and disinterested observation. In short, enlightenment occurs. The field of enlightenment is the minds of the jurors, minds, when we first encounter them, filled by petty preferences (“I’d rather be at the ball game”), personal grievances (“My son hates me”), racist sentiments (“You know what they’re like”), xenophobic fears (“You come here and right away start telling us what to think”), false propositions (“The knife is unique”), and a complacent confidence in the legal process (“Even his lawyer didn’t make much of a case for him”). The work of the give and take of dialogue, occasionally escalating into a shouting match, is the removal from the jurors’ minds of attitudes and errors that stand in the way of clear judgement. Clear judgement is judgement that proceeds from intellects dedicated to the discovery of truth and to nothing else.

The problem, of course, is that human intellects are prone to various unfortunate tendencies—the tendency to overvalue one’s own opinions, the tendency to prefer evidence that supports convictions one already holds (known as “confirmation bias”), the tendency to be moved by flattery or fear or both, the tendency to identify what is true and valuable with self-interest or the interest of one’s family and tribe. (An influential catalogue of these inherent weaknesses is provided by Francis Bacon in his discussion of the “idols of the mind.”) Given liberal thought’s relocation of authority from fixed, unimpeachable sources (God, the king) to the deliberative powers of the individual seeker of truth, it is imperative that the mind, newly elevated to a place of prominence, be made—or rather make itself; there’s the rub—into the proper kind of instrument. That’s the work of a mandated and ongoing conversation conducted under the assumption that nothing can be taken for granted and everything must be examined and questioned, especially those things (or sentiments) that seem to us to be incontrovertibly true. Liberalism equips itself with various devices designed to prevent resting complacently in widely accepted assumptions—in the political realm, the checks and balances celebrated in the Federalist Papers; in the psychological realm, the practice of consciousness-raising, a technique for bringing to light the exclusions and distortions that are part and parcel of any perspective clung to tenaciously; in the epistemological realm, J. S. Mill’s insistence in “On Liberty” that no belief, however securely based in evidence it may seem to be, can be allowed to stand without challenge—and if no challenges currently exist, they must be invented.

In 12 Angry Men, Juror No. Eight is the embodiment of Mill’s imperative. He says he votes not guilty because the unanimity of his fellow jurors, rather than swaying him, makes him uneasy. Here is the playwright Reginald Rose’s description of him in the notes prefatory to the script: “A quiet, thoughtful, gentle man—a man who sees all sides of every question and constantly seeks the truth.” Every word of this description rewards analysis. Being quiet, Juror No. Eight does not thrust his opinions on the world in a loud, aggressive manner. Being thoughtful, he considers matters before he decides to speak or act. Being gentle, he courteously attends to arguments he initially finds unpersuasive. Committed to seeing all sides of a question, he resists being rushed to premature judgement. A seeker of truth, he will settle for nothing else. And he is a man, that is, a being capable of sustained concentration and abstract thought—not superficial or frivolous or impressed by surfaces. He is serious.

Early on Juror No. Eight is offered a piece of chewing gum. He politely declines. It is a small moment, not lingered on, but it signifies. In the 1950s, chewing gum was something that wise-cracking, finger-snapping teenagers did. It was part of the package of delinquency and displayed a disrespect for traditional decorum and an unconcern with the conventions of politeness. It is something Juror No. Eight would never do. (Later he accepts a cough drop, but that is quite another matter.) Nor would he make much of not doing it. He has no need to advertise his virtues and wouldn’t think of them as virtues at all, just as forms of action that follow naturally from upright—manly—behavior. Although Juror No. Eight is thoughtful, he is not introspective; that is, he does not spend time inventorying his views or the events of his life. In fact, he doesn’t seem to have any views, except for the view that decisions, especially life-and-death decisions, should be arrived at deliberatively and with a determination dispassionately to consider every piece of evidence. A resolution to do that can be maintained without any reference to his preferences or political allegiances or religious affiliations or domestic arrangements or professional activities. Indeed, we know nothing of any of these, of what he likes, of what he believes, of what he aspires to, of what he desires, or of what he fears. The only thing we know about him is that he is an architect, a designer of structures whose parts, we can assume, hang together and combine to produce a stability based on rationality and physics. His buildings, like his arguments, don’t fall down.

Juror No. Eight stands alone in this absence of a personal history. His fellow jurors lead much richer lives: they have businesses, jobs, and bosses; they have estranged children; they have hobbies and obsessions; one is timid, another is a bully, a third is a bigot, a fourth is a glad-hander; the youngest is reluctant to speak; the oldest speaks from the perspective of someone who has lived too long. In the course of the debates these men have, their very different personalities shape their arguments. Juror No. Eight has no personality, and his arguments don’t proceed from anxieties and hopes he doesn’t have; they are merely arguments, offered for the sake of the effort to get things straight and for nothing else. (He is a member in good standing of Jürgen Habermas’s ideal speech community.) It is only a slight exaggeration to say that he has nothing inside him except the capacity for deliberative thought. He performs the act of subtraction imagined by the political philosopher John Rawls when he asks us to go behind the “veil of ignorance” and reason as we would if we knew nothing about our “race and ethnic group, sex and gender and [our] various native endowments such as strength and intelligence.” Juror No. Eight is Liberal Man incarnate.

If his fellow jurors are to follow him (as they eventually do), they must imitate his emptying of self. They must confront and set aside the insecurities and fears that stand between them and a clear sight of the evidence they are charged to consider. Juror No. Ten must be forced to see his racism, as he does when the others turn their backs on him. Juror No. Three must realize that his anger at the young defendant is a projection of the anger (and anguish) he feels toward his son. Juror No. Four must relax the severity of his judgement and acknowledge that he too exhibits the frailties he scorns in others. Juror No. Two must push through his tendency to be manipulated by the last person who spoke to him and find his own voice. Each juror in turn detaches himself from his habitual motives for action, and after doing so stands equipped only with his reasoning powers and nothing extraneous to them. At that moment, he sees what Juror No. Eight saw from the beginning—reasonable doubt all over the place—and votes to acquit.

It is a very neat story, and it presents itself as the record of the triumph of logic and evidence over rhetoric and unsupported opinion. That self-presentation has achieved the status of orthodoxy. Here is Christopher Falzon’s quite representative account: 12 Angry Men is “accurately seen as one man’s heroic stand for the truth in the face of others whose views are clouded and distorted by interest and prejudice.” But this, I would contend, is not accurate at all. Despite its surface stigmatizing of rhetoric in favor of cool deliberative process, the film performs rhetorical manipulation at every moment, and this is especially true of its interactions with the viewer, who is, after all, the ultimate juror.

The manipulation begins with the casting. The viewer wishes to be aligned with Juror No. Eight before he says a word because he is played by Henry Fonda. It may be hard for those under fifty to appreciate the cultural significance of Fonda, an actor whose iconic roles include Abraham Lincoln, Tom Joad, Wyatt Earp, Mr. Roberts, Clarence Darrow, and Clarence Gideon, all men of uncommon dignity, at least as he portrayed them. If Fonda was the lead actor in a film, you knew that his character would be morally upright, totally honest, and inflexible in a good way. (The bad guys he occasionally portrays—in, for example, Firecreek and There Was a Crooked Man—are slightly distorted versions of the usual Fonda hero.) Fonda is the only star in 12 Angry Men; he is the tallest of the jurors, and he wears a white suit. Although he is, like the others, uncomfortable in a very hot room, the heat doesn’t seem to bother him. He remains cool in several senses of the word. The one time he speaks in an aggressive manner turns out to be a ploy: he wants the juror he is taunting to say, “I’ll kill you,” and thereby demonstrate that those words, spoken by the defendant to his father, are often uttered without serious intent. He performs anger and incivility only in order to make a rational point.

As viewers we are not surprised by this behavior, because it is exactly what we expect from a Henry Fonda character, a character whose actions we approve of in advance. We follow his lead before he offers it, and, when he votes “not guilty” in the initial ballot, we become his advocates and accomplices, eager to affirm any argument he makes. The fact that his arguments are “scientific”—they involve the careful marshaling of physical evidence—fits perfectly with the liberal ethos he exemplifies. The scientist, like the responsible liberal citizen, sets aside his personal preferences and devotes himself to disinterested observation. (Scientific Man is Liberal Man.) If the conclusions he reaches are valid, they must be conclusions anyone following the same method would reach, no matter what his or her political party or religious affiliations or tribal allegiances are. Scientific work must be replicable—capable of being repeated by anyone possessing the requisite knowledge and rigor. Let’s look at the evidence together, Juror No. Eight urges. Is it really the case that the knife the defendant admits to owning is unique? Is it really the case that the old man who reported seeing the defendant run away from the scene of the crime could have gotten to a window in fifteen seconds? Is it really the case that the woman who claims to have seen the killing could have done so in the moment of waking before she had time to put on her glasses? The answer to each of these questions turns out to be “no” or “probably not,” and the once apparently unassailable proof of guilt collapses when the props supporting it are removed one by one. Reason triumphs; mere opinion and prejudice are sent away.

Or so it seems. There are counterarguments to be made. The fact that there is more than one knife of the kind that was used doesn’t mean that the young man didn’t use it. The old man may have been wrong in his estimate of the time that elapsed between his hearing an argument and seeing the son run away, but so what? The woman who looks through her window without her glasses may have been farsighted. Those holding out for a guilty verdict try to make these arguments, but they don’t register strongly, because the case for acquittal has acquired an irresistible momentum, a momentum carried forward by the disqualification as biased of the very voices that now say, “Stop.” “You’re twisting the facts” is the plaintive and ineffectual cry of those who see their majority slipping away. They are right, but the film’s narrative steamrolls them, as all the points are awarded to the opposition, more secure in its virtue with every moment. The movie is a liberal set-up. The film that celebrates impartial, rational process and derides rhetorical manipulation is itself supremely manipulative. Of course, it might be said that all films are manipulative, but not all films present themselves as briefs against manipulation and for the unfolding of a purely rational deliberation.

Another way to put this is to observe that the movie is saturated. Every little thing about it sends a message, and it is always the same one. The fact that the jurors are known only by numbers—by a formal designation, a designation without content—tells us that the judgement they are asked to deliver should be independent of their identities; the more those identities affect what they think and say, the further they are from the ideal of deciding on the basis of logic and evidence and nothing else. The fact that Juror No. Eight is not Juror No. One or Juror No. Twelve or Juror No. Six completes his non-profile: He isn’t first, he isn’t last, he’s not exactly in the middle; he’s just there, randomly placed. He is a hero without armor or a white horse (although he does have a white suit), or an army or a grand title. He’s just an everyman, or, more precisely, he is what every man, endowed with no special powers, could be if he set his mind—his rational mind—to it.

A rational mind is a mind that operates steadily and calmly; it is without heat, and it stands firm against the appeal of overheated rhetoric. In 12 Angry Men, this metaphor is made literal. From the moment the jurors file into the room to the three-quarter mark, no topic is more commented on than the heat. A locked door, no air conditioning, a fan that doesn’t work, a smallish, shabby room dominated by a long table, windows that open onto a steamy summer late afternoon, a perfect incubation dish for Juror No. Three’s burgeoning cold. Soon, jackets come off (except for the jacket worn by uptight broker Juror No. Four), ties are loosened, sweat darkens shirt fronts and underarms (again except for Juror No. Four), already frayed tempers become more frayed; in short, these are the worst possible conditions for a cool examination of a complex fact situation. And yet—and we are encouraged to understand this as a testimony to the liberal faith in the dispassionate weighing of evidence—in these most inhospitable of physical circumstances, experiments are conducted, arguments are made and refuted, convictions once fiercely held are dislodged, and unanimity is achieved.

Well, not quite. Juror No. Seven (Jack Warden), a marmalade salesman who boasts about his income, joins the new majority only because he wants to get to a ball game and sees where the wind is blowing; he switches sides for reasons unrelated to the issues as they have been teased out and debated. You can’t do that, another juror tells him: “We want to hear your reasons.” My reason, he says feebly, is that I don’t think he’s guilty. Earlier, Juror No. Seven rudely walks away as Juror No. Nine (the old man) is making a point. The old man protests, but Juror No. Eight, overhearing the exchange, says, “He can’t hear you; he never will.” This is the severest judgement Juror No. Eight issues; he is declaring that Juror No. Seven is incapable of participating in the rational process he hopes to initiate; he’s a lost cause. And how does he know this and why do we agree with him? In part because of Juror No. Seven’s clothes. He wears a loud, flashy jacket and a porkpie hat (associated with “hipsters” and pool-hall denizens). His appearance practically shouts “not serious,” and Juror No. Eight says that he never will be. He’s just too colorful. In the liberal palette, colors, especially red, the color of passion, are suspicious; the preferred hues are white, silver gray, and mild earth shades; the preferred tone of voice is low, soft, and subdued. The moment glad-handing, gum-chewing Juror No. Seven comes on the scene, we dismiss him. The moment the white-suited Juror No. Eight refuses Juror No. Seven’s offer of gum, we embrace him. Every second of every scene pressures us to make small judgements that in time (and almost imperceptibly) flower into the large judgement demanded of us as putative jurors. The movie that privileges deliberative choice doesn’t give us one. We haven’t got a chance.

The stages of our seduction are marked by the weather. When the vote tally reads six–six, the rains come, as if to say, the air is clearing, opinions are evenly divided, rationality can proceed in what we all now see as the proper direction. Because the rain makes the room dim, the lights are put on, and when the lights are put on, the fan works. (Even Juror No. Seven says, “Things are looking up.”) Soon after, the pace accelerates. Juror No. Four (E. G. Marshall) finally sweats when he cannot remember some details of the movie he saw a few days ago. Juror No. Five (Jack Klugman) insists with authority that a boy who was familiar with switchblades would never stab downward. Juror No. Four declares himself persuaded of the boy’s innocence after it is pointed out to him that the “eyewitness” was probably not wearing her glasses when she looked out the window. Juror No. Ten (Ed Begley), rejected by his colleagues when they turn their backs on his racist rant, mutters, “Not guilty.” Juror No. Three (Lee J. Cobb), finally realizing that his desire to convict is really a desire to punish his son, follows suit, sobbing. “We’re ready now,” says the foreman (Martin Balsam). The jurors exit the room quickly. Jackets are taken from the coat rack, which fills the forefront of the shot. The last jacket belongs to Juror No. Three, who remains slumped at the table. Juror No. Eight taps him on the shoulder and helps him put the jacket on, a gesture that underscores what we already know: here is a man so secure in his own identity that he can be generous to his adversaries.

There’s one more piece of business. As the jurors leave the courthouse (we never see them formally render a verdict), Juror No. Nine, the old man, approaches Juror No. Eight, and asks, “What’s your name?” Not “what’s your number?” but “what’s your name?” If we expect to learn something substantive, something more informative than a number, we are disappointed. “Davis” is the answer. Not Greenberg or Alvarez or Polansky or even Riley, but Davis, as uninformative a name as you can imagine. Juror No. Eight walks down the courthouse steps just as he entered the jury room, less a man of flesh and blood than a representative of an ideal type. As he nears the bottom of the steps, he raises his head slightly, and the sun comes out. Of course.

The movie is so confident of the force of its arguments that the counterarguments are provided in plain sight. I inventoried them earlier, and, just before he gives in, Juror No. Three rehearses them in tones of outrage: Every single thing, he thunders, says the boy is guilty. The woman testified in open court, didn’t she? The eyeglasses? Maybe she was farsighted. And why didn’t his lawyer say something? The old man, what’s the difference if he’s a few seconds off in his judgement of how much time had elapsed? The knife, so there’s another knife, so what? That story he told about the movies, give me a break. Everything’s been twisted and turned, the crime is being committed right here, in this room. The mechanism of what he calls the crime is the isolation of particular moments as if each stood alone. In an essay titled “Did 12 Angry Men get it wrong?” Mike D’Angelo points out that each piece of evidence is interrogated individually “in a vacuum,” as if it bore the entire burden of determining guilt or innocence. Lost sight of is the overarching story within which single pieces of evidence have a place: a man was murdered and the prime—the only—suspect is his son. (“It seems pretty clear” is a general refrain as deliberations begin.)

That story functions as an assumed background enabling the jurors to make sense of what they hear, and it is that background that is dismantled piece by piece, with every little bit of deconstructive analysis. The action is largely but not wholly negative; for, as the supports for one structure are being taken away, another one is rising in its place. It is, however, a curious structure, for it has no center and no content. The new evidence generated by Juror No. Eight’s efforts does not add up to a new account of what happened; it merely empties out the narrative space that had been occupied by the general understanding everyone began with. Now there is only the understanding—voiced repeatedly by jurors on both sides—that nothing is certain, everything can be doubted, and no one really knows anything. A theory of knowledge—or rather of knowledge’s impossibility—has replaced the search for specific knowledge. What’s the point of making a case for a certain sequence of events if any case you make can be immediately discredited by a skepticism so general that nothing can survive its corrosive touch? What Juror No. Three is trying to do is bring his fellow jurors back to that earlier moment when at least some things could be assumed, but it’s too late. The facts he rehearses so desperately can hardly find a receptive audience now that the very notion of fact has been put into serious question.

Once again, the movie is ahead of me, for the analysis I have just offered is anticipated and foreshadowed by a small exchange in the bathroom between Juror No. Eight and Juror No. Seven. “You a salesman?” Juror No. Seven asks. No, an architect, is the reply. Juror No. Seven: “You know what the soft sell is? Well, you got it, believe me.” The soft sell is a persuasive technique used by salespeople; it is low pressure, indirect, non-aggressive (at least on the surface), patient, quiet, and (relatively) subtle. The hard sell, in contrast, is up-front, insistent, loud, and quick-hitting. Juror No. Seven is a hard-sell practitioner who lists his methods: “laughs, drinks, jokes, tricks.” The two strategies differ in the effects they seek. The hard seller pushes for an immediate decision; he deploys his entire bag of tricks right away, risking everything in the hope of sealing the deal. The soft seller holds his marks on a long leash, allowing what he says to make its way into his listeners’ minds to the point where they believe they have been self-persuaded. When the soft seller succeeds, those he has brought along don’t think they have been sold anything; they just think they have come to the right conclusion with the help of a disinterested, honest interlocutor. That, of course, is exactly the pose Juror No. Eight assumes. He says he is not trying to change anyone’s mind; he doesn’t declare that the boy is innocent; he just says, again and again (repetition is part of the soft sell), that it’s possible. The only thing he wants to do is talk, and what could be wrong with that?

What, then, is the soft seller selling? The answer is doubt. A doubt here, a doubt there, and pretty soon doubt everywhere. But is it “reasonable doubt” in the sense required for an acquittal? A reasonable doubt cannot be a theory-generated doubt, a doubt entertained simply because, on a very general level, everything is subject to doubt. Rather, it must be a doubt that emerges from a consideration of the totality of the circumstances as currently understood and can be tested against those circumstances. A reasonable doubt, the Supreme Court said in 1887 with Hopt v. People, is “reasonable in view of all the evidence.” It’s not a doubt you manufacture in obedience to Mill’s directive to allow nothing to stand unchallenged. It can’t be just possible; it must be relevant and the appropriate object of questions. Is this doubt so strong that it threatens to undo the conclusions so far reached? Can we give it credence and still affirm the basic shape of the argument? Is it a doubt at the margins, or does it hit at the center? If saying of a doubt that it is possible—a criterion every proposed doubt will meet—is enough to accord it serious attention, its path forward will meet with no resistance, and, in the company of its lighter-than-air confederates, it will proliferate unchecked, like a virus. The distinction I am making is made succinctly and powerfully by the court in Hopt: “Persons of speculative minds may in almost every such case suggest possibilities of the truth being different from that established by the most convincing proof. The jurors are not to be led away by speculative notions as to such possibilities.” The jurors in 12 Angry Men are led astray in exactly that way. And, as the thirteenth juror, so are we.

That’s what I meant when I said that the movie is dishonest. Is it knowingly so? Do Lumet and Rose self-consciously contrive to fool viewers into thinking they are partners in a rational exercise while deploying every manipulative trick in the book? I don’t think so. For his part, Lumet seems not to be focused on the moral or philosophical content of his films at all. On the evidence of his writings and the extensive interviews he gave, his interests are technical. He explains at length and with great enthusiasm the extraordinarily complex tasks of coordination required for the making of a film. The director must find a script and a writer and secure the necessary funding. He must choose an assistant director and a cinematographer. Together, he and his team must scout locations, work out camera angles and lighting, decide which lens will be employed in which scene, consult with the set designer and the costume designer, select the music—either a stand-alone score or a collection of commercial recordings—and match the narrative themes with musical signatures. It is these things (and many more not listed) that excite Lumet when he talks about 12 Angry Men, when he tells us, for example, “I shot the first third of the movie above eye level, and then, by lowering the camera, shot the second third at eye level, and the last third from below eye level.” He did it that way, he tells us, in order to heighten and accentuate the claustrophobia of a single small set. When, in the final third of the movie, the ceiling of the room appears, we are made to feel as if “not only were the walls closing in, [but] the ceiling was as well.” And all this is in preparation for the final wide-angle shot of the courthouse steps, whose effect is “to let us finally breathe.” This is a brilliant analysis of a brilliant technique, but it is not conceptual. I’m not saying that Lumet is unconcerned with the message his movies send. We can presume that he would not have signed on had he found the material repellent. But one senses when reading and listening to him that, as long as the project is something he can relate to sympathetically, he will marshal his considerable skills in the effort to realize it on the screen.

In the case of 12 Angry Men, the project is Reginald Rose’s, the author of both the original teleplay and of the screenplay. Rose seems not to have left us any extended commentary, but we can assume that he would agree with the critic Jeff Saporito, who describes the play and movie as “a love letter to the American judicial system.” Saporito quotes another commentator who calls 12 Angry Men a “public service announcement . . . in reminding the public that our democratic system renders someone innocent until proven guilty beyond a reasonable doubt.” That is certainly how the public has received it over the years. The movie is shown and taught in public schools; the play is performed in innumerable small towns. It is as American as the Declaration of Independence, isn’t it? Rose is not on the record repudiating this account of his work as an act of patriotism celebrating the virtues of the American legal order.

But, if neither Lumet nor Rose is the architect of the film’s duplicity (at least as I see it), who or what is? The answer once again is liberalism. Liberalism as a meta-author produces a drama that at every moment pushes us toward a predetermined conclusion while presenting itself as the passive recorder of the discovery of fact. This is not a criticism of liberalism, but an analysis of the paradox built into every narrative informed by liberal principles: the story can get started, but there is no legitimate way to end it, to cut it off. This follows from the key liberal assumption that authority and conviction issue from the back-and-forth deliberation engaged in by autonomous rational agents who should not be prevented from turning over one more stone. Closing off debate is always an illegitimate act if one believes, as Millian liberals do, that all the evidence is never in and no voice should ever be silenced. On the other hand, business, especially legal business, must be done; verdicts must be handed down, closure must be performed. Closure, however, can never be achieved if law is faithful to liberalism’s principled refusal to shut inquiry down. There comes a point—not really the endpoint (liberal analysis, like psychoanalysis, is interminable) but an endpoint the system requires—where you put together a few things out of the many things at your disposal and announce, as the jury foreman in 12 Angry Men does, that “we’re done,” always an announcement that is arbitrary.

This does not mean that justice is never achieved. But it does mean that we often don’t know whether it has been. Perhaps that is the movie’s lesson. Perhaps 12 Angry Men is more profound and more honest in its way than even the author or director (or critic) knows, for it simultaneously displays a large confidence in its narrative and provides a counternarrative—breadcrumbs dropped along the way, should anyone want to follow them. The movie, as I have said, cheats, driving toward a resolution that has not been honestly earned, but, as I have also said, it cheats in plain sight, making it possible to piece together a story other than the one that apparently wins. That story in which a boy is saved from the death penalty by Henry Fonda sits side by side with the story of a jury talked by Henry Fonda into letting a murderer go free. (Juror No. Six raises this possibility early on.) Which is it? It’s impossible to tell. Juror No. Eight repeatedly refuses to say anything like “I know that this is what happened.” Perhaps that impossibility is what the movie—like liberalism—affirms. The nice thing about this reading is that it grants me my negative analysis but gives it a positive twist: 12 Angry Men practices the manipulation it disdains, but, because it provides opportunities for the detection of its manipulation, it can be said to be honest in its dishonesty.

Dr. Stanley Fish is a Presidential Scholar in Residence at New College of Florida.

The views expressed do not necessarily reflect those of the New College Trustees, faculty or staff. New College of Florida promotes a climate of free expression and tolerant civil discourse according to the principles set forth in the State University System Free Expression Statement and the Board of Governors Civil Discourse Final Report.