The Marvel Civil War event of 2006-2007 is a story which is perhaps the most sustained look at the legal environment of a comic book world to date. For those who aren’t familiar with it, let’s just say the event was… controversial. As such, it is a natural topic for Law and the Multiverse. We’re going to start out by looking at some of the more “meta” issues of the event, i.e. the difficulties that can arise when dealing with real law in more than a passing way in fictional worlds.
I. Common law systems and precedent
The issue here is that legal systems, particularly common law systems based on case law and precedent, develop naturally with events. Legislation is usually slow and sporadic, so frequently the courts are where new factual scenarios are tested out. The courts apply existing law to new factual scenarios all the time, and in a common law system the result is often new law.
The problem here is that even allowing for retcons and comic book time, by the time Civil War hit the Marvel Universe had existed for decades. The legal system doesn’t move quickly, and it’s plausible that Congress might not have taken any action to regulate superheroes until then, but it’s significantly less plausible for the courts not to have taken notice. Someone was going to try to sue Iron Man, the X-Men, the Fantastic Four, or any number of wealthy supervillains at some point, quite possibly subrogating insurance companies. These cases would create a body of superhuman/metahuman law.
But no such body of law is in evidence. Part of what makes the She-Hulk comics so much fun is that they operate under the assumption that the issues raised in the stories are issues of first impression. But they aren’t, or at least can’t realistically be. Maybe they would have been in 1966, but not in 2006. Heck, many lawyers don’t really like citing cases more than about twenty years old, simply because the law develops quickly enough to make most cases older than that of suspect value. So the idea that the Superhero Registration Act is somehow breaking new ground and introducing ideas which have never been handled before is problematic, particularly because the legal system would have had a chance to deal with many of these issues individually over time rather than trying to deal with it all at once via legislation. There’s messiness there that hurts the internal coherence of the story.
II. Legal drafting and continuity
But perhaps the biggest problem is that the Marvel bullpen never really seems to have decided 1) whether or not the Act was a good thing (Millar seems to have thought so, but a lot of the other writers seem to have other opinions. See Amazing Spider-Man # 530 for a truly lovely meta-textual spat), but more importantly 2) what the Act actually says.
Because believe it or not, what a given law actually says makes a big difference. Most judges are pretty big on deferring to the legislature, and they do that by paying very close attention to exactly how a law is worded. Similarly, the executive branch has to follow wording of the laws: if a bill says that it will be enforced by Agency X, then the President can’t decide to have Agency Y do it instead. This is one reason lobbyists spend their money getting single paragraphs inserted into bills and why it’s so scary that our elected officials on both sides of the aisle tend to vote on bills they have absolutely no intention of reading.
In this particular case, it makes a huge difference both for the motivation of the characters and for the ultimate moral of the story as to whether the Act requires superhumans to go public or not, whether they are required to be federal employees or not, whether a super-powered individual who promises not to use their powers is required to register, etc. All of these make a huge difference and are hotly debated among the characters, which makes the whole thing feel more like the health care debate before the law was passed rather than any two sides discussing something which is already law, i.e. the disagreements often read like they’re about what ought to be, not about what is. This is kind of hard to avoid in fiction, particularly speculative fiction written by over half a dozen authors, but a little editorial discipline could have made the whole thing a lot more compelling.
For example: in What If? Civil War, the writers examine what would have happened if Tony Stark had been honest with Captain America at the beginning of the conflict instead of using treachery. The suggestion is that Cap would have agreed to become the head of the executive agency in charge of superhuman registration instead of Stark, and the difference in personal leadership would have made a big difference in the outcome. This is plausible enough; cabinet-level officials can and do have huge effects on the activities of executive agencies. But there isn’t that much indication in the canon Civil War stories that this is how the law was supposed to be implemented. The main Civil War stories basically make it look like it’s largely a S.H.I.E.L.D. operation with support from law enforcement and the military, not the creation of an entirely new agency.
More generally speaking, this is probably why most speculative fiction doesn’t spend a lot of time working out fictional worlds’ legal systems to any great level of detail, i.e. the devil is in the details, and if readers want extended discussion of the niceties of statutory interpretation and administrative law they can go to law school. Any sufficiently detailed legal system is going to take so much time and space to explain that the authors would never get around to telling an actual story. So while it’s disappointing that the Marvel authors didn’t make some effort at coming up with at least the basics of what the SHRA was supposed to do, one can see why they might have chosen not to. And one can also see why tangential interaction with the law, particularly for comic effect, can be a lot more effective than an attempt to deeply integrate the law as a plot device in speculative fiction. It’s hard enough to do in realistic fiction.
Hopefully, that lays out something of the groundwork and fundamental meta-type issues with the Marvel Civil War event. We’ll take a closer look at the actual stories in future posts.