A Story of Miscarriage: Law in the Media
| Published date | 01 June 2004 |
| DOI | http://doi.org/10.1111/j.1467-6478.2004.00288.x |
| Author | Richard Nobles,David Schiff |
| Date | 01 June 2004 |
JOURNAL OF LAW AND SOCIETY
VOLUME 31, NUMBER 2, JUNE 2004
ISSN: 0263-323X, pp. 221±44
A Story of Miscarriage: Law in the Media
Richard Nobles* and David Schiff*
This article utilizes the work of the sociologist Niklas Luhmann in order to
examine the relationship between law and the media. Luhmann views both
law and the media as closed systems of communication, systems which
cannot duplicate the meaning of each other's communications. After
introducing Luhmann's approach to media reporting, and applying this to
the relationship between law and media reporting on law, the article
analyses a recent miscarriage of justice case. The case is that of the solicitor
Sally Clark who was convicted of a double child killing. Although her first
appeal was rejected she succeeded in a second appeal. Media reporting of
Sally Clark's case is contrasted with the trial and Court of Appeal judgments
to demonstrate the different basis upon which law and the media each
construct communications about the same events.
INTRODUCTION
The relationship between law and the media share many of the features
of the relationship between the media and other areas of social life.
What most people know about law they will have learned through the
media. At the same time, those who are familiar with the internal
workings of law may view media reporting as simplistic, distorted, or
just incorrect.
1
We could say the same about the relationship between
221
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*Law Department, London School of Economics and Political Science,
Aldwych, London WC2A 2AE, England
We wish to thank our colleague Mike Redmayne for his comments on an earlier draft of
this article.
1
Research into the mass media has consistently reflected such perceptions of media
reporting, as well as demonstrating its ideological bias (Glasgow University Media
Group, Bad News: Vol.1 (1976); and War and peace news (1985); Glasgow Media
Group, G. Philo (ed.), Media and mental distress (1996); G. Tuchman et al. (eds.),
Hearth and Home: images of women in the mass media (1978)) and its
characteristic inaccuracy and the extent to which it is misunderstood by its
audience (A. Bell, The Language of News Media (1991) especially ch. 11,
`(Mis)understanding the News').
the media and science, or medicine, or politics, or indeed any other area
of social life.
2
How can this relationship be studied? In this article we seek to utilize the
work of the sociologist Niklas Luhmann
3
to analyse the media's relationship
with these other areas of social life, and to consider, in particular, how that
relationship illuminates the reporting of events within criminal justice. We
wish to explore a relationship, which in previous writings we have called
`misreading':
4
the media misreads law for its own purposes. This misreading
has the capacity to generate what, within the media itself, are described as
`crises of confidence in the administration of justice'.
5
THE MEDIA'S RELATIONSHIPS WITH OTHER AREAS OF SOCIAL
LIFE
Luhmann is a systems theorist who analyses social life as comprising
systems of communication. His theory leads him to the conclusion that
modern social life involves a functional differentiation.
6
The differentiation
222
2 Apart from the many explanations in media studies for media misrepresentation (see
n. 1 above), there appears to be an underlying structural reason: `Media offer a
distinctive communication situation, involving a disjunction of place, and also often
of time, between communicator and audience. This fracture in the communication
process has significant consequences for the quality of communication. Centrally, the
feedback that is an integral factor in individual spoken communication is delayed,
impoverished, or lacking altogether in mass communication.' A. Bell, `Hot Air:
Media, Miscommunication, and the Climate Change Issue' in `Miscommunication'
and Problematic Talk, eds. N. Coupland et al. (1991) 259±82, at 263. The same study
suggests the main cause of much media misrepresentation as that of `the issue [being]
too complex, reflecting a pessimism on the part of specialist sources that their
information can be presented accurately in the public media' (p. 271).
3 Principally set out in N. Luhmann, Social Systems (1995, original German pub. 1984)
and The Reality of the Mass Media (2000, original German pub. 1996).
4 R. Nobles and D. Schiff, Understanding Miscarriages of Justice: Law, the Media, and
the Inevitability of Crisis (2000) especially ch. 4, `Into and out of crisis: a recent
history of media reporting on miscarriages of justice'.
5 id., ch. 4(B), `Constructing Crisis'.
6 Luhmann's characterization of modern society as functionally differentiated contrasts
with theories of modern society as stratified. `A societal system that is vertically
differentiated according to the principle of stratification presupposes that societal
differentiation is directed by kinds of persons, by their ``quality'', by their
determination to live in specific castes or ranked groups. By contrast, with the
transition to functional differentiation, the schematic of differentiation is chosen
autonomously; it is directed only by the functional problems of the societal system
itself, without any correspondences in the environment' (Luhmann, op. cit. (1995), n.
3, at p. 193). `The flood of enlightenment and the ebb of latency can presumably be
reduced to a common factor: to a gradual replacement of the hierarchical orientation
of the European societal system (and correspondingly of many particular social
systems) by a functional one' (id., p. 341). For a clear statement of functional
differentiation, with examples, see id., pp. 460±6. For a thorough statement of the
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