Despite his intimate association with the law, even Superman must constitute himself as an exception to it. The superhero is exceptional by definition.
George W. Bush premised his presidency on the idea that the law was insufficient for confronting the threat of terrorism.
Conservatives have seen Christopherís Nolanís new version of Batman as an analogue for George W. Bush. Both find the law inadequate for dealing with extreme threats.
For Hegel, modernity renders heroism impossible because it institutes the rule of law.
Harvey Dent seems to embody the possibility of a heroism that could show its true face to the public.
Harvey Dent's public heroism turns into criminality when confronted with trauma.
Police set their dogs on Batman because he willingly embraces the image of criminality.
Because criminals run the city, the city needs an exceptional rescuer outside the law.
As a superhero, Batman is an heroic exception who supports the law by violating it.
Though Shane exists outside the law, he leaves at the end of the film so as not to disturb the law’s proper functioning. This is the trajectory typical of a western.
Giorgio Agamben is the philosopher of the exception who examines threats that the state of exception poses to democratic society.
The danger that Batmanís exceptionality poses becomes most evident in the system of total surveillance that he develops.
Like George W. Bush, Batman believes that he must see everywhere in order to fight extreme criminality.
Unlike George W. Bush, Batman arranges the self-destruction of the system of surveillance that he uses.
In order to combat the danger of the exception, Batman must adopt the mask of criminality.
by Todd McGowan
The exceptional superhero
The superhero film and its comic book source contend that the law alone is not a sufficient condition for justice. From the time of Superman’s emergence in the first superhero comic book in 1938, the law's inadequacy has been the genre’s central concern, and this theme has remained constant through the proliferation of superhero films in the 1990s and 2000s. Under even the most benign historical circumstances, injustice is more powerful than justice, and as a result, justice requires an exceptional figure who operates outside or on the periphery of the law. This figure, the superhero, goes where the law can’t go and accomplishes what it can’t accomplish. According to the scripts' logic, superheroes earn their exceptional status by dint of some extra-human ability or some special skill that others lack. Endowed with this ability or skill, the superhero acquires an exceptional relation to the law. By skirting or even violating particular laws in order to sustain the order of law, the superhero provides the extra-legal supplement that the law requires in order to deliver justice.
The mask that superheroes wear indicates their complex relation to the law. Ordinary police officers can avow their identity publicly, and this is what separates them from criminals, who would be in jail if they publicly avowed their criminality. Even undercover police officers cease hiding their identity after each assignment, and those who can’t effectively become criminals. Being a figure of the law includes implicitly the public avowal of one’s status.[open endnotes in new window] Superheroes, however, are a different type of figure. While they struggle against criminals who break the law, superheroes cannot openly identify themselves with law's public nature. They represent instead the underside of public law, the dimension of private support that it requires in order to function effectively as a public institution.
Even the most ethical superheroes occupy a position outside of the order of law simply by virtue of their heightened powers. Critics usually see Superman as one of the least engaging superheroes precisely because of his probity and absence of any dark side to his character. Unlike other superheroes, Superman almost never violates the law — except perhaps with indecent exposure in phone booths — in order to uphold the legal order. But he does, as in Richard Donner’s original Superman: The Movie (1978), violate the laws of the universe, causing the earth to spin backwards and time to reverse itself in order to save Lois Lane (Margot Kidder). Donner's film presents this act as a moment of ethical crisis because it reveals Superman’s exceptional relation to law and the way that his superpowers placs him at odds with the law's limited and limiting nature. The uneasiness of the superhero’s — and, in fact, that of the hero as such — coexistence with the law prompts German philosopher G. W. F. Hegel to see them as antithetical.
Hegel lived through the French Revolution and his thought was shaped by it. Through the experience of revolution, he saw that modernity possessed the capacity for radical change but lacked the philosophical space for thinking of a hero as the agent of that change. As a result, though the philosopher was unacquainted with Superman, Hegel thought a great deal about the phenomenon that Superman represents. In Hegel's aesthetic philosophy, he distinguishes between a heroic age and the era of legal order. In the latter era of legal order, ethical activity is realized through the laws of the state rather than through individual action. Though laws can be unjust and we may have to change them, our ethical activity occurs within the law rather than outside it once a legal order has been established. The legal order thus leaves no room for the hero, the figure who acts outside of the law’s constraint. Heroism is antithetical to law because it always serves to constitute its own law even if it doesn’t mean to do so. For the hero, as Hegel puts it,
In the context of legal order, the hero’s activity would become criminality, and there would be no way to differentiate it from evil. This is why Hegel rejects the idea of a modern hero. Such a figure fails to see how the private morality that it proffers as an alternative or as a supplement to the legal order is already included within that order. As a result of its structural incompatibility, the hero’s activity will have the effect of undermining the law even if it is done to supplement the law. But a problem remains: Left to itself the law cannot arrive at justice, and the persistence of injustice within the legal order leads to a demand for the hero and for an heroic exception to the law.
Using Batman, not Superman, as the protagonist, Christopher Nolan’s The Dark Knight (2008) takes this problem posed by the hero and the hero’s exceptional status in relation to the law as its overriding concern. The title for the film (though not the plot) derives from Frank Miller’s 1986 graphic novel series Batman: The Dark Knight Returns, and it provides a less idealizing portrait of Batman than those developed previously. The film is not simply, however, a critique of heroic exceptionality. The film's universe makes clear the need for an exception to the law. Without Batman (Christian Bale) providing extra-legal assistance to Police Lieutenant James Gordon (Gary Oldman), the crime lords that menace Gotham would render the city uninhabitable. Even with Batman’s help, the film’s ominous and brooding mise-en-scène reveals the extent to which criminality sets the tone for life there. Unlike Nolan’s earlier film Batman Begins (2005), in which Gotham appears as a futuristic city despite its crime problem, here crime shapes the look and feel of the city as grim. Buildings stand in disrepair; people’s dress is generally disheveled; and even daytime scenes occur under dark skies.
Given the film’s appreciation of the need for heroic exception to the legal order, it is easy to understand why a right-wing political commentator, after viewing the film, might regard it as a tribute to George W. Bush and his prosecution of the Iraq War. In his Wall Street Journal article, “What Bush and Batman Have in Common,” Andrew Klavan contends in this vein,
The similarity between Bush and Batman consists in their joint recognition that an exceptional threat to the legal order requires an extra-legal exception in order to quell the threat. Though Klavan has to read the film creatively in order to arrive at the thesis that it constitutes “a conservative movie about the war on terror,” he does rightly grasp the film’s fundamental contention that we need a figure of exception.
The problem with accepting and celebrating the hero’s exceptionality is not simply that such acceptance produces conservative misreadings but that this exceptionality has an inherent tendency to multiply itself exponentially. In Dark Knight, this kind of proliferation occurs early in the film when copycat vigilantes place both themselves and others at risk. In the United States during the War on Terror, exceptionality takes the form of an ever-increasing extension of surveillance and security. Once we grant the necessity of the position of the exception, the law can no longer define those who will occupy this position nor restrain their activity. Once we violate rights of non-citizens, we will soon be violating the rights of citizens as well, and finally we will end up with a society in which rights as such cease to exist. The exception necessarily exists beyond the limits of the law, and if the law could contain its magnitude, it would cease to be exceptional. This is the dilemma that shapes The Dark Knight. The film’s incredible popularity attests not simply to Nolan’s skill as a filmmaker or to a successful marketing campaign by Warner Brothers but also to the contemporary urgency of the question it addresses.
The film begins with Batman’s grasp of the problem, as it depicts his attempt to relinquish his exceptional status and to allow the legal order to operate on its own. In order to do this, a different form of heroism is required, and the quest that constitutes The Dark Knight is Batman’s attempt to find the proper public face for heroism. He is drawn to Harvey Dent (Aaron Eckhart) because Dent seems to embody the possibility of a heroism that would be consistent with public law and that could consequently function without the need for disguise. After the death of Rachel Dawes (Maggie Gyllenhaal) and Dent’s own serious facial burn transforms him from a defender of the law into the criminal figure Two-Face, Batman sees the impossibility of doing away with the hero’s mask. Dent, the would-be hero without a mask, quickly becomes a criminal himself when he experiences traumatic loss. This turn of events reveals that the hero must remain an exception, but it also shows that the heroism of the hero must pass itself off as its opposite.
Just as the truth that Leonard (Guy Pearce) discovers at the end of Nolan’s Memento (2000) is a constitutive lie, the conclusion of The Dark Knight illustrates that the true form of appearance of heroism is evil. The film concludes with Batman voluntarily taking responsibility for the murders that Dent/Two-Face committed. By doing so, Batman allows Dent to die as a hero in the public mind, but he also — and more importantly — changes the public perception of his own exceptional status. When he agrees to appear as a criminal at the end of the film, Batman avows simultaneously the need for the heroic exception and the need for this exception to appear as criminality. If the heroic exception is not to multiply itself in a way that threatens any possibility for justice, then its appearance must become indistinguishable from criminality.
The heroic gesture, as The Dark Knight conceives it, does not consist in any of the particular crime-fighting or life-saving activities that Batman performs throughout the film. It lies rather in his embrace of the appearance of criminality that concludes the film. Gordon’s voiceover panegyric to Batman that punctuates the film affirms that this is the truly heroic act. This act privileges and necessitates its own misrecognition: it is only through misrecognition that one sees it correctly. If the people of Gotham were to see through Batman’s form of appearance and recognition his real heroism, the heroism would be instantly lost. As the film portrays it, the form of appearance of authentic heroism must be that of evil. Only in this way does the heroic exceptionality that the superhero embodies avoid placing us on the road to fascist rule.
From Batman to Guantanamo
The nearest cousin to the superhero film is the western. Both genres address the problem of exceptional violence that resides outside the legal order and yet is necessary for the existence of that order. However, the western concerns the initial violence that founds the law, what Walter Benjamin labels “lawmaking violence.” In George Stevens’ Shane (1953), for instance, the violence of Shane (Alan Ladd) helps to establish a democratic and agrarian society that will replace the ranchers' lawless reigne. Shane acts violently in defense of the Starrett family and their farm, but his violence has no legal authorization because it occurs before the law has been firmly constituted. In order for the social order that his violence founds to function as a legal entity, Shane must leave at the end of the film. His violence has a purely exceptional status, and his departure confirms that the exception can disappear after the new social order comes into existence.
There is no such recourse for exceptionality in the superhero film. This type of film confronts not the necessity of lawmaking violence but that of a certain necessary violence that exists outside the law. The law evokes this violence in extreme situations that merely legal violence cannot properly address. In The Dark Knight, the extreme situation is the rampant criminality of the various gangs that control Gotham. Responding to each outburst of excessive criminal activity that the police themselves cannot handle, Lieutenant Gordon shines the Bat Signal in the night sky and thus announces the decree of a temporary state of exception in which Batman will employ violence to supplement the police.
Unlike Shane, Batman does not ultimately leave the society that he sustains with his violence. Once the western hero violently carves out the place for a modern society, he must abandon that society in order to avoid contaminating it with his violence. But Batman remains as a persistent exception that the law cannot do without, and as a result, the superhero film confronts a more imposing dilemma than the western does. A western can simply end with the departure of the hero (or his domesticization, as in the conclusion of Howard Hawks’ Red River, 1948), but the superhero film has no such recourse. For the sake of the possibility of justice, the superhero must remain. But his presence as an exception is problematic, calling into question the legality of the law. By their very presence, superheroes expose the law’s inherent insufficiency and inspire everyone to doubt its efficacy. The heroic exception constantly works to undermine the law that it supplements.
Italian philosopher Giorgio Agamben sees the great danger inherent in the exception. It leads not just to abuses of civil rights but to large-scale horrors like the Holocaust, which functions as a major point of reference for Agamben’s thought. Exceptionality, for Agamben, launches a legal civil war and thereby plays the key role in the transition from democracy to fascist authoritarianism. The declaration of the state of exception attempts
The problem is that the exceptional time never comes to an end, and the disappearance of the distinction between an emergency and everyday life pushes the society toward a state of civil war that the very exception itself was supposed to quell. Rather than acting as a temporary stopgap for a society on the brink of self-annihilation, the state of exception actually pushes the society further down the path to this annihilation by undermining the distinction between law and criminality and thereby helping to foster a Hobbesian war of all against all, in which every act of sovereign power becomes justified in the name of order.
The Dark Knight begins with a focus on the problem engendered by the state of exception embodied by Batman. He is a figure outside the law on whom the law relies to respond to the most recalcitrant criminal elements in Gotham. But Batman’s very success at fighting crime outside the law has, when the film opens, spawned numerous imitators — vigilantes who dress like Batman and spend their nights fighting crime. The result is an increased degree of lawlessness and insecurity in the city. Through these copycat vigilantes, the film begins by making clear the danger of the sanctioned exception that exists outside the law. Once one embraces the exception, the need for exceptionality will constantly expand insofar as the exception augments the very problem that it is created to fight against.
The fake Batmen question Batman directly on the monopoly he attempts to hold on exceptionality. After Batman rescues them from their botched effort to interrupt a drug deal, he warns them against this type of activity:
While amusing, this quip is actually wholly inadequate as an argument. Batman has no inherent right to guard exceptionality for himself, and as long as he occupies this position, others will be drawn to it. And a self-multiplying exceptionality portends the destruction of the social order.
The state of exception justifies any type of action — any encroachment on civil liberties — in order to realize the justice that ordinary law is incapable of realizing. The Dark Knight explicitly links the heroic exception embodied by Batman with the violation of civil liberties associated with the official declaration of a state of emergency (in the current War on Terror, for instance). Batman acts exceptionally not just by wearing a mask and breaking a few traffic laws but by creating a system of surveillance that completely erases the idea of private space within Gotham. When Batman commissions his technical designer Lucius Fox (Morgan Freeman) to create a device that will allow him to map the location of everyone within the entire city of Gotham, Fox balks at the violation of civil liberties that this entails. He agrees to help to catch the Joker (Heath Ledger) but promises to resign immediately afterward. As Fox changes from fully supporting Batman and his exceptionality, his outrage signifies that Batman has crossed a line beyond heroic exceptionality where one can no longer differentiate the heroic masked man from the criminals that he pursues. But in order to apprehend the Joker and disrupt his criminal plans, the film makes clear that Batman must cross this line. It places him fully on the terrain of contemporary politics and in the company of conservative political figures.