Justice is a limited DC comic series by Alex Ross and Jim Krueger with art by Ross and Doug Braithwaite. The basic story is that the world’s supervillains band together to… save the world. Which they seem to, for a while, only to have that turn out badly, after which the Justice League steps in to do its thing. It’s an interesting series for a number of reasons, most particularly because it deals with the rather obvious superhero-related question of why people like Superman don’t “save the world” in more mundane ways, e.g., combating disease, poverty, war, the sorts of things superheroes could probably do if they decided to.

But the series also includes a handful of things, largely tangential to the main story, which bear some legal analysis. We’ll take a look a those here. There are some spoilers inside.

I. Mind Control and Affirming One’s Actions

We considered the implications of mind control upon criminal law in a post from December 2010, but Justice includes an interesting little wrinkle that we didn’t look at then.

In Justice, our heroes find themselves under the influence of some sort of microscopic mind control worm. It turns out that the villains are actually under the same influence—except for Luthor and Brainiac—and were actually being manipulated into destroying the world rather than saving it. Under the influence of the mind control worms, the Scarecrow caused a horde of civilians to attack the Justice League, but just as things were about to get bad, Green Lantern swooped in and killed all the worms with his power ring. The civilians come to their senses and disengage, but the Scarecrow says “I… I… What was I… Something wrong…? No, nothing’s wrong. I don’t care what they made me do. I would have done it anyway.” He then goes right back to using his fear powers, only this time causing the civilians to turn on each other.

The question is whether Scarecrow’s seeming affirmation of his actions done while under mind control could defeat one of the mind control defenses we discussed in the previous post. The mind control worms certainly count as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body” pursuant to the Model Penal Code. But does the fact that he probably wanted to do all that stuff anyway make a difference?

Almost certainly. Remember, mind control is a defense to certain crimes because it defeats an element of many crimes, that of mens rea. But if a defendant actually has the requisite mens rea, even allowing for mind control, the defendant’s mind is still guilty, leaving him liable for his actions.

To follow this line of thinking, this is why a pair of defendants can’t avoid a conspiracy charge by each “forcing” the other to do something, hoping that only one of them will be liable. The fact that the defendant being “forced” is entirely willing defeats any argument of duress. So if you want to do something, the fact that someone is pointing a gun at you and telling you to do it isn’t going to serve as any kind of excuse.

II. Liability for Inaction

Early on in the story, the Legion of Doom addresses the cities of the world in a gigantic holographic message, given by Lex Luthor.

Hello, world. I think it’s time we made a statement about the many ways we’re trying to make life better for the common man. I know what you’re thinking. What can Lex Luthor, of all people, say to me? And is it true what I’m hearing? Are the world’s ills and humanity’s sicknesses being addressed and cured by known criminals and super-powered terrorists? This is being broadcast around the world, in every city, to every race, in every language. We know you’re wondering where the Justice League of America is right now. And so are we. But we’re also wondering why they never tried to do what we’ve been doing. Why they never attempted to use their powers and abilities to make this world a better place. I believe their inaction is as criminal as those felonies we went to prison for. Preserving the world and not daring to change it means keeping food from the hungry. Keeping the crippled in wheelchairs. Bowing to the status quo of human suffering. And still, they call us villains.

It goes on for a bit from there, and it’s not a terrible question, as far as it goes. It’s something that’s been revisited by comic books and related media with increasing frequency in the last twenty-odd years, more recently in Superman: Grounded. But while it’s a fairly interesting moral question, from a legal standpoint, it’s obviously wrong.

As we discussed in an earlier post there is, generally speaking, no duty to rescue. The issue is addressed in detail there, so we won’t revisit it here, but suffice it to say that while Luthor makes some excellent rhetorical points, a prosecutor or plaintiff who brought a case premised on the failure of a superhero to save the world from mundane dangers would find themselves thrown out of court. There’s simply no cause of action there.

III. Conclusion

Justice is really worth reading, and the artwork in particular is fantastic. Neither of the issues discussed above has much bearing on the story, as such, but they do point at the sort of legal issues we try to call out where possible.

11 Responses to Justice

  1. Of course, a good lawyer would probably be able to argue that there is no proof that the mind control worms actually stopped influencing Scarecrow when they got killed. A parallel case would be the trial of Patty Hearst. Admittedly, the defense failed to absolve her of the charges, but it stirred up enough sympathy and doubt that her sentence got commuted to shorter terms and she was eventually pardoned.

  2. Hm. On mens rea and “it’s not duress if he would have done it anyway,” would “Yes, I enjoyed it; yes, it’s something I’m horribly tempted to do because I have no moral repugnance for it, and no, I don’t regret it for any conscience-based reason…but I WOULD NOT HAVE DONE IT if I was not threatened with violence, because it is ILLEGAL and I DO NOT WANT TO GET PUNISHED for it!” be a valid legal defense, assuming such an unsympathetic argument were nevertheless dispassionately considered and found to be a truthful statement of the defendent’s mental state?

    Or is “I’d do it if it wasn’t illegal and therefore I wouldn’t be punished” enough to make him have mens rea? Assume here that he did NOT put the guy with the gun up to “forcing” him to do it; he really was under duress even if he had no moral revulsion at the act.

  3. From the context you give, Scarecrow’s statement doesn’t sound very meaningful to me. It doesn’t sound like he’s saying that he was already planning to perform the same crimes that the mind control worms made him perform. Rather, it sounds like he is just saying he is the kind of guy who would perform that type of crime if given a chance, and he is not repentent that he was forced to do so. So what?

    Here is my analogy: Hunter A hates Hunter B and swears vengeance against him. Hunter A goes hunting, and one of his shots misses and hits Hunter B. Hunter A had no idea Hunter B was even present, Hunter B was just in the wrong place at the wrong time. When Hunter A finds out, he says if he’d known Hunter B was there, he would have shot him anyways. Hunter A killed Hunter B, and had the intent to kill Hunter B. Is Hunter A guilty of murder? I don’t think so, because he never fired a shot with intent to kill Hunter B. In fact, he did nothing wrong. It doesn’t matter that he says he would have killed Hunter B anyway if he’d known, because the law isn’t about what you would have done in a hypothetical different situation, it is about what you actually did.

  4. TimothyAWiseman

    “But while it’s a fairly interesting moral question, from a legal standpoint, it’s obviously wrong.”
    For some of them, it’s an incredibly pertinent question and TvTropes has a somewhat lengthy discussion of it under “Reed Richards is useless”. But at least

    But for most of them, the obvious answer is simply “They can’t.” Those are problems best solved through a combination of diplomacy and technology, areas that most superheroes are bad at. It depends somewhat on the continuity, but Superman is normally portrayed as bright, but not a genius that is going to go off and find ways of increasing crop yield in his spare time. (In one silver-age incarnation that did make him a genius, he was shown as trying but failing to cure cancer) Depending on the incarnation, others like The Green Lantern and The Flash aren’t even portrayed as particularly bright. Batman is always portrayed as a genius, but even a genius might not have the right type of mind for those sorts of problems, and he is also always shown as somewhat mentally disturbed and also involved to a degree in philanthropy.

    • Melanie Koleini

      One of the Superman movies did have him disposing of the world’s nuclear arsenal. By the end of the movie, the world had rearmed itself.

    • There are also practical limits on what can be implemented in a lot of senses, and the Reed Richardses of the world may well logically go, “Yes, I could create a bountiful post-scarcity world by the end of the year… and there is an 87% chance of mass human suffering from social reactions to that, predominantly a reaction against the very tools of the post-scarcity world by people suffering from future shock. Those, in turn, would end the long term benefits of it forever. Therefore I will do spinoffs that will gradually improve the world, and possibly engage in cultural messaging of some kind, so that, perhaps, by the time my son is my age, we’ll be ready to step over.”

      Of course, there are plenty of background things which could be done, but these tend to be things that either change the world significantly in ways which are usually only used as narrative points – for instance, a universal or near-universal cancer cure with minimal long term failure (I think a ‘cure’ is a little glib for something that complex), or high quality and reasonably priced cybernetic prosthetics (hi Tony Stark), would significantly change the environment, and might conflict with setting stories in ‘the real world.’

      What would seem to be more reasonable is if spinoff technologies of supertechnologists made the occasional appearance, and perhaps there were some addressings of actual global problems. These spinoff technologies can explain people who build super-expensive things (Iron Man, Reed Richards) and those who prefer to have a ‘basement inventor’ vibe can just say they made the patents public domain or whatever, and live off of occasional honorariums.

    • Ignoring the technological geniuses in Marvel and DC, many of the heroes can’t*.
      The most that Superman could do to reduce poverty would be to lend his considerable fame to some advocacy group, he can’t do anything on his own about unconscious racism or poor education. Wonder Woman can only urge people to reform the prison system, she can’t convince prisoners to study to be electricians or peace activists.
      Hunger is even worse. Certainly Superman could fly several tons of food across a desert, handling the problem of terrain but that’s not the major problem. What can Superman do if a famine breaks out because civil war has forced farmers to flee, corruption has meant that food aid goes to the black market and poor cultivation plans have led to forests devastated and hills eroded to dust? Is Superman going to spend the next thirty years there trying to reconcile distrust between ethnic groups who have eagerly massacred each other, privately arrest corrupt officials who have their own private armies and tell the farmers to return? Brilliant, just ignore the constant threats the world goes through and violate national sovereignty.

      Of course these are social/political issues and not legal ones.

      *And that’s just in the U.S. As demonstrated below, it gets considerably more difficult when you go into other nations.

  5. I’m reminded of this essay ( http://mises.org/daily/2242 ) which argues that given how the economy works, it would be much more efficient if Superman used his powers to make a lot of money. It doesn’t matter that he’s not interested in wealth, because money is how we allocate goods and services–if he wants to help people, he should make the money and use the money to help people.

    Of course, the real reason Reed Richards doesn’t use his powers to help people (or to make a billion dollars, open the Reed Richards Foundation, and help people with that), is that the comic book world is supposed to look like the modern world and having him change things would break that premise.

    Though my personal favorite theory is the Comic Book Time one: In comics, while there are years of stories, only a few years has passed. Given the time it takes for an invention to go from paper to the market, it may be that Reed Richards *is* trying to give the world teleportation or whatever, but it just hasn’t gone through government approval, had a factory built, been advertised, etc. because only a few years have passed.

    • Actually, Reed DOES use his inventions to make billions of dollars and he DOES have a foundation. Its just, most of his inventions that he sells are sold to the US government or to other geniuses and companies or the like, while the other stuff is just mundane. And obviously he has plenty of stuff that he just keeps, which might include cases where the government or others pays him to NOT sell if the invention is deemed too dangerous (eg. time machines, interdimensional doorways, etc).

      Though, yes, comic book time applies as well.

  6. My favorite theory is that the superheroes ARE already changing the world. Reed Richards has made crucial semiconductor discoveries, put them into practice, and sold the rights so that every computer chip in use owes something to his initial research.

    It’s not what he does every day and the mundane updating and re-engineering is far better left to others, so he can concentrate on more critical things. Similar with Tony Stark and cybernetics/fission/fusion reactors/enhanciles. (And now Stark is trying to market a repulsor-driven automobile and going through all the legal and regulatory hassles involved in trying to put a vehicle on american roads.)

  7. I don’t think Scarecrow could be charged with what he did while under mind control (the fact that he continued to torment people when the mind control was removed might make the issue moot, anyway, since for that and all the other stuff he’s done over the years locking him up is pretty straightforward). Mind control goes a lot further than simply being threatened into doing something- it doesn’t matter if he would have done it anyway, because technically speaking “he” didn’t do it; the mind control worms and whoever was controlling them did.

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