|
Volume 24, Number 1 (1992) reprinted by permission of the authors THE LAW OF THE FEDERATION: IMAGES OF LAW, LAWYERS, AND THE LEGAL SYSTEM IN "STAR TREK: THE NEXT GENERATION" Paul Joseph and Sharon Carton* I. INTRODUCTION come to occupy a unique place in American popular culture.1 While the show began as a short-lived and marginally rated television series which survived d only three seasons before final cancellation, 2 the Star Trek phenomenon did not end there. First, through syndication, the show gained a following it had never had as a network offering. Star Trek conventions provided gathering points for the faithful. A series of feature films updated and continued the story.3 Books,4 a cartoon series and merchandising spinoffs5 helped to keep Star Trek in the minds of the public.6 Fan pressure prompted NASA to name the first space shuttle "Enterprise" after the starship on the show. The humorous late night show, "Saturday Night Live," twice parodied the show and its cult of hard core adherents.7 Eventually, the continued popularity of the original Star Trek led to a second series, this time playing first-run in syndication, Star Trek: The Next Generation (STNG).8 More recently, a third Star Trek series, Deep Space Nine, has begun production. It is scheduled to premiere in January of 1993.9 For most of its twenty-five year history, its original creator, the recently deceased Gene Roddenberry,10 exercised considerable control over the development of Star Trek in its various incarnations:11 Roddenberry's "vision of the future" remains a guiding light for the con- Trek: The Next Generation." "Gene felt strongly about the goodness ofToday, Rick Berman fills much the same position.13 Thus, there was a conscious effort to develop and examine certain ideas or themes,14 and a greater consistency existed than there might otherwise have been without such a guiding vision.15 STNG represents the best example to date of the themes of the Star Trek saga.16 The basic concepts, set down in the original series, have been more fully developed and presented through the interaction of the characters.17 This is probably because STNG has survived longer than its predecessor and has achieved commercial popularity its predecessor never did during its initial run.18 Thus, its production team has been able to develop its themes over a longer period of time, with larger budgets and with less interference than was true of the original series.19 The show takes place in the 24th century of our future. Earth is united and one part of an alliance, The United Federation of Planets, encompassing many species, located on planets in numerous star systems. The show is set primarily on the flagship of that Federation, the U.S.S. Enterprise, a descendant of the craft featured in the original series and feature films. While technology and spectacular special effects are important components of the series, more important is the interaction among the ensemble cast and with various others, both friend and foe, whom they encounter. The producers of the show take the view that they are telling human stories about today, not merely throwing around "gee whiz" technical gadgetry. While the stories are intended to present human issues and problems which we face today,20 it is not intended that the people, their structures or their answers to problems be an exact duplicate of modern times. Rather, what is presented is a vision of a developed species, several steps closer to perfection than we are today.21 To accomplish their dual goals of telling stories relevant to our present22 while presenting a vision of a positive future,23 by necessity, the producers have had to create at least the outlines of the culture and society of the 24th century.24 Thus, what is presented is not only what 20th century people do, but a vision of what we should do and who we should strive to become.25 This makes STNG a very interesting prism through which to view 20th-century institutions, and it becomes reasonable to ask whether the Star Trek future has anything to teach us26 about our present reality and the directions which our society should or should not take.27 A legal system is not wholly separate from the general culture. It grows and changes in response to growth and change within the society which creates and uses it. If the society of the future has progressed and changed in other ways, we would expect to see some similar progress and change within the legal system as well. Just as other areas of human interaction are explored in the show, perhaps the fictional setting of STNG has something to say about what our law and legal system is or should be. We had none of these thoughts when we began watching STNG. We certainly never thought we would write about it. Yet, over time, we independently began to notice how often legal issues or ideas cropped up and how often they were worth a second look. What follows is our examination of the legal side of the 24th century as portrayed in STNG. We first consider the legal system and then present various substantive legal issues. down and designed a legal system. What they did was deal with legal problems on a case-by-case basis, while attempting to be consistent with the rest of what they had created.28 Thus, it is useful to consider the show's 24th century in general to determine its operative principles, examine what has been presented concerning law and the legal system and then attempt to explain what a legal system would have to look like to be consistent. Only then can we ask whether it should be a model for our real, as opposed to our fictional, future. We assume that there is some relation between law and society such that a legal system will embody the history and cultural development of the people who created and use it.29 Therefore, the legal system of the Federation will reflect, in some manner, the values, goals, needs and experiences of the 24th century as well as the process of historical development from our century to theirs.30 Some of the features of their legal system will be familiar to us, but others could be quite different. The STNG writers/directors guide31 developed to present the basic framework of the show to those involved in particular episodes, explains something of the nature of the 24th century as envisioned by the creators and developers of STNG. In addition, individual shows have established some elements of history leading up to the time period portrayed in the 24th-century milieu.32 These are the starting points. The legal system must be consistent and in harmony with what is already known about STNG's 24th century. means of achieving those ends do. A system of law must settle disputes, give to each litigant that which he or she is due and do so with a process perceived by the participants, and the society at large, to be fair. The 20th-century legal system may be characterized as one heavily influenced by conflict and distrust. Litigation is conceived of as a battle between hostile adversaries with truth and justice belonging to the victor.33 Our distrust of each other (including government officials) makes us insist upon elaborate procedural formalities (e.g., evidence codes, rules of civil and criminal procedure, discovery rules, etc.) to assure fairness.34 Decisionmakers (i.e., judge and jury) must be uninvolved neutral persons, and there must be a multi-layered appeals process. It would be unthinkable to have a friend, employer or the superior officer of a litigant as the judge in the case. Within the context of the Star Trek saga, it has been established that humanity went through a difficult time on the road to the 24th century. For example, one episode tells us that, during a barbaric period following a nuclear war, the legal system established the rule that defendants were "guilty until proven innocent" and that lawyers were killed.35 The society of the 24th century, however, has evolved beyond the world we know and also beyond the time of troubles. "[M]ost ... of the major problems facing the human species have been resolved;"36 material want (the source of much 20th-century conflict) and money are no more.37 People, while not perfect, appear to trust each other more, work together more harmoniously and feel a greater sense of community and mutual responsibility than people in 20th-century American society.38 These differences would not be expected to change the basic goals of the legal system, but they would be expected to change some of the ways in which these goals are achieved. It would be expected that a thoughtful presentation of future possibilities would reflect a system of law recognizable to us, but modified to reflect the changes in people and society which the show embodies. When we examined the legal system, as presented on STNG, we found such changes. Because people in the 24th-century trust each other more and are more willing to believe (until the facts show otherwise) that others will be fair, there is much less concern about legal formalities. Fundamental principles of justice are recognized and highly valued, but it is not generally necessary to insist on procedural formalities in order to obtain them. Thus, formal hearings with 20th-century trappings such as lawyers, professional judges and rigid procedural requirements are rare. It appears that the rights which we hold dear in the 20th century are still a part of the 24th-century legal system. The Drumhead39 makes clear that accused persons are innocent until proven guilty, that there must be evidence of guilt to proceed against an accused40 and that an accused cannot be forced to be a witness against himself.41 We also learn that these (and other) fundamental rights are guaranteed in the Federation Constitution, the equivalent to our Bill of Rights.42 In The Measure of a Man, JAG officer Phillipa Louvois explains, "We have rule of law in this federation. You cannot simply seize people, and experiment with them to prove your pet theories."43 In our time, we protect fundamental rights through detailed procedural rules and interpretive judicial decisions. This may be one reason that laypeople criticizize the system (especially the criminal part of it) as a "game", in which truth becomes subsumed to demands of procedural exactness. In an adversary system where even the neutral decisionmakers (i.e., judges) are elected or appointed as part of the ongoing political process, it is unlikely that, for example, criminal defendants, crime victims and the public at large would agree on informal methods of dispute resolution. In such a distrustful system, procedural regularity substitutes for trust. In STNG, formal invocations of rights are rare, even though the principles of fairness they embody are often referenced. The reason appears to be that the litigants themselves generally neither demand such procedures nor see the benefit of them. Even people in conflict want to be fair and settle matters so that all parties are satisfied (if not happy) with the process and the results. It is rare that conflict reaches such a high level that informal resolution is not possible. Most of the time, the legal system portrayed in STNG is consistent with this analysis. Lawyers or judges are almost never seen, formal procedure is minimized and informality is the rule.44 Even when conflict exists between individuals, the parties seem to retain the perspective that, as part of the societal group, they want the conflict resolved rightly, not just in their favor. It would be unrealistic, however, to portray the 24th-century man or woman as perfected (as opposed to somewhat more evolved), and STNG does not do this. Although it happens less often than today, people in the 24th century can lose their perspective. At times, even a 24th-century person may act like the worst kind of 20th-century person, e.g., unreasonable, grasping, unfair and unwilling to settle for anything less than the most he or she can possibly get. Generally, it is in these situations that formal procedures mirroring 20th-century ones in many respects are invoked, usually by a participant who feels that he or she is being treated with gross unfairness. Thus, formal 20th-century procedures have not been wholly displaced, but they have been placed in a subordinate position. Their main function is to act as a "safety-net" when more informal processes of dispute resolution break down. Of course, in some ways, this is a description of the 20th-century system as well. Litigation begins where conflict cannot be resolved other ways. Yet, what we find in STNG is significantly different because even many of the "formal" mechanisms for dispute resolution are informal in the extreme by 20th century standards. It is a system which largely relies on the presumed goodness of the individuals within it.45 Only in the most extreme cases are the formalities of "system" to be preferred over the goodness of the individual decisionmaker. Thus, STNG is an argument for a system of "people not of laws," so long as the people are basically good. We have taken to calling the STNG legal system "dual tracked." The essence of it is that, as long as all parties agree, the "informal" system is followed. But, if a party insists, for whatever reason, he or she can invoke a more formal system of procedural safeguards with its historical roots in our own distrustful time. Thus, in A Matter of Perspective, the issue is whether Commander Riker will be extradited to a planet for trial under its legal system on a charge of murder. We are told that Starfleet Regulations give Picard the authority to make the decision. However, Chief Inspector Krag, the official demanding that Riker be handed over, is dubious because he does not trust Picard to give a fair judgment in a case involving his First Officer. He asks, "[H]ow can I expect a fair and impartial decision?"46 For Picard, it is not enough that he has the authority to decide. Neither does his close relationship with Riker necessarily disqualify him from deciding. Rather, he promises fairness to Krag and offers a compromise in which re-creations of the events using the ship's holodeck technology will comprise much of the evidence. Krag accepts this, and Picard proceeds as "judge" in the case. Under the dual track approach, we assume that, had Krag demanded it, he could have forced a formal hearing at a starbase before a JAG officer. Similarly, Riker could have done so. If either had invoked these rights, a formal hearing (as portrayed in The Measure of a Man) would have been held. Because both Krag and Riker became convinced that they would receive a fair hearing before Picard with the holodeck re-creation procedure, the full blown formal trial procedure was not demanded or required. The hearing actually held was an example of 24th-century informality balanced with a concern for fairness to the individual. Picard was clearly fair in dealing with all parties. Each witness was allowed to make a statement before giving testimony. Picard allowed hearsay testimony because it would be admissible under Tanugan law, but promised only to watch it and "weigh it accordingly."47 Picard judged the case, but also took the lead in presenting evidence from Data and La Forge that Picard asked them to find in his role of Captain.48 Krag could be said to be the prosecutor, but also a judge of sorts. The proceeding was not finally ended until not only Picard but Krag became convinced that Riker was innocent.49 This sort of blending of roles and the fluidity of the proceeding would be unthinable in the 20th century, but makes perfect sense in the 24th. The "dual track" structure fits the notion of a society slowly evolving beyond the need of 20th century formalism. In the 24th century, most disputes can be settled informally with mutual presumptions of good faith, trust and fair dealing. Yet, older forms have not been totally abandoned and remain available for those rare litigants who still feel the need for them.50 Formal procedures would not be invoked merely because a litigant had not prevailed. Since there is always a disappointed party, this would mean that formal procedures would end up being invoked in nearly every case. Rather, it appears that the invocation of formal legal procedures would not occur so long as all parties felt fairly treated by the process. There would be a strong moral compulsion not to invoke such proceedings without a very important reason beyond mere personal gain.51 Thus, while we have seen formal trial-like procedures on STNG,52 they have usually been explained, within the context of the story, in ways consistent with our presentation of the legal system. Formal procedures are either invoked because a particular litigant is an atypical untrusting sort or because some other special circumstance exists53 which would justify a demand for unusual formality and more elaborate procedural safeguards. Two episodes, The Drumhead and The Measure of a Man, serve to illustrate the point. The Drumhead begins with an interrogation of a possible spy. There appears to be no need for lawyers or formal procedure.54 Even when Admiral Satie arrives to aid in the investigation, the proceedings are very informal. Satie and Picard appear to share both investigative and judicial functions and the "suspect," J'Ddan, does not have legal counsel in the interrogation room. Later, at the interrogation of crewman Tarses, Picard notes that "if you would like counsel, it can be provided."55 Tarses sees no need for this formality and questioning proceeds. Later, Picard becomes increasingly troubled about the approach taken by Admiral Satie. Essentially, Picard is not sure that Satie is being fair or objective. At this point, Picard, on his own motion, provides "counsel" for Tarses, but it is Riker, the ship's first officer, and not a lawyer that is provided. Picard says, "Mister Tarses, for your own protection, I have assigned a counsel to you in the person of Commander William Riker."56 Tarses, who has not yet figured out that Satie is not behaving as a normal 24th-century person would, responds, "Thank you sir but I don't need protection. I have not done anything wrong."57 Finally, after Picard himself becomes the target of Admiral Satie's witch-hunt, Picard realizes that Satie is neither fair nor objective. Thus, more formalistic protection is required. Only then does he fall back on the rules of procedure. Only then are they necessary to insure a fair hearing. Picard says, "I believe that Chapter Four, Article Twelve of the Uniform Code of Justice grants me the right to make a statement before questioning begins."58 The statement sounds stilted and strange because, in normal times, a 24th-century person would not have to quote chapter and verse to be allowed to speak. This would be granted routinely because it would be viewed as fair by all concerned. The plot provides an explanation for Admiral Satie's bizarre behavior. Satie is distraught over the death of her father, and it has twisted her. In her grief, she has obsessively set herself on a quest for Federation enemies. She is unable to be either objective or fair due to her personal torment59 Indeed, this is exactly the kind of unusual situation which the 24th-century "safety net" of formal procedure is designed to catch. A similar extraordinary situation requires a formal hearing conducted by a JAG officer in The Measure of a Man. Here too, however, we see a series of informal attempts at resolution. Only when these fail is the formal legal track invoked. By the time the conflict arises, Data has already been ordered to Starbase 173 and is not technically under Picard's command.60 Normally, the commanding officer would decide disputes concerning subordinate personnel, but Data is not willing to trust Maddox, his new superior officer, to make a fair decision concerning him. There is an exchange between Maddox and Data in which we learn that Maddox voted against admitting Data to Starfleet Academy on the grounds that Data was not a sentient being.61 Thus, Maddox has already made up his mind. Further, Data is convinced that Maddox does not have the knowledge to succeed in his experiment, thus putting Data's continued existence in jeopardy.62 It is also clear to Picard that Maddox must not be allowed to make this decision because, as he tells Phillipa Louvois, "I don't trust that man.63 Picard views the transfer request as "unfair and unjust." Thus, both types of situations suggesting the invocation of the formal legal track are present. The decisionmaker (Maddox) is not trusted by the litigants, and the procedure (the transfer order) appears to be unfair. Only at this point does Picard even begin to think about invoking the formal legal track. First, he calls up Starfleet regulations on transfers64 and, when they prove daunting, he consults Louvois about their legal significance.65 Note two interesting points. First, Data's initial response to all this is not to invoke formal legal procedures and fight the transfer order. Rather, he resigns from Starfleet. While this probably has much to do with Data's personality, it is instructive to see that invoking formal legal procedure is not his first response to the situation. Second, the fact that Picard consulted Louvois for advice to help Data did not prevent her from being a judge in the case once formal procedures were invoked. Maddox asks for a decision from a more senior officer. Seeing Data about to elude him, he must act, yet, since the issue is whether he is or is not in command of Data, he cannot be boih a litigant and judge in the matter without Data's consent. Maddox therefore requests a decision from JAG officer Louvois as to whether Data can resign. Even now, the formal legal track has not been invoked. Rather, an informal meeting between Maddox, Picard and Louvois is held. Data is not present. There are no lawyers, witnesses or formal procedure. Rather, Picard and Maddox state their positions, recognize that the issue is essentially legal and ask Louvois to research the law and make a decision.66 Finally, Louvois makes a decision based on her research. Data is property and cannot resign. Faced with this massive unfairness, Picard asks, "What if I challenge this ruling?" Louvois answers, "Then I shall be required to hold a hearing." Picard invokes the formal legal track: "Then I so challenge. Convene your hearing."67 The formal legal track, once invoked, would normally require a 20th-century style court with lawyers. Because the starbase is new and such are not available, senior officers are used instead, but it is made clear that this is unusual once formal procedures are invoked. Thus, the following exchange takes place: Louvois states, "Captain, that [a formal hearing] would be exceedingly difficult. This is a new base. I have no staff." Picard replies, "Surely you have regulations to take care of such an eventuality." Louvois responds, "There are. I can use serving officers as legal counsel."68 We see, then, that such a hearing would normally require actual lawyers.69 The informality of 24th-century proceedings is manifested in several ways: 1) Lawyers are seldom used. Generally, it is not even necessary to have anyone act for a litigant as an advocate.70 When advocacy is deemed necessary, counsel is more likely to be a friend, colleague, shipmate or senior officer than a lawyer, unless a litigant demands one. 2) Professional judges are seldom needed. Senior Starfleet officers are empowered to judge most disputes, such as disputes between members of the crew which cannot be otherwise resolved, disputes arising on board the starship whether or not the disputants are Starfleet personnel and disputes involving an "away team."71 3) The strict 20th-century separation between investigators (police), defense counsel, prosecutors and judges is not the norm in the 24th Thus, Picard could properly investigate a problem, interview witnesses and "suspects" and judge the case. There would not be any problem with "ex parte communications" between himself and a litigant.72 The presumption of integrity and honesty of all parties would make such acceptable unless a litigant objected. 4) Barring unusual circumstances, insistence on precise procedures would be rare. It is permissible to invent procedures for resolving disputes so long as they are fair and accepted by all parties. General principles of fairness, however, would be high on everyone's mind. Should an accused object to a procedure as being unfair, his or her concern should be treated with the utmost seriousness and respect. Seeing his or her objection treated seriously would, in most cases, satisfy the litigant, even if the decision on the point raised went against him or her. A. 20th-Century Desires and the 24th-Century Legal System STNG appears to present the case that a legal system which embodies a detailed and complex body of procedural rules, as ours does, is flawed thereby and that such a system would be unnecessary if only people were better so that they would agree to work together to solve problems. As humans evolve, such rule-bound legal systems will evolve away from formalism.73 The better side of human nature, as it continues to develop, will allow us to solve legal-type problems without the formalities which are the hallmark of our present system. This claim gives expression to longings felt by those both inside and outside the legal profession. The public is concerned that "legal technicalities" stifle justice and that the legal system is an expensive and time-consuming world of its own in which an obsessive focus on procedure becomes an end in itself.74 Recent hesitant steps towards adoption of "alternate dispute resolution" procedures also speak to this concern. These concerns also occur during a time of increasing skepticism about the nature of the legal system. Is it a system of rules or principles at all? Can legal rules have any objective meaning at all? Are rules neutral, or are they a mere smoke-screen for dominant political forces applying their own points of view?75 Are judges confined by rules or are they really legislating, i.e., applying their own subjective view to cases as they arise. Should we care one way or the other?76 The legal system portrayed in STNG is one in which individual decisionmakers have much greater latitude in deciding cases than the 20th- century legal system's dominant theory permits. It substitutes good faith on the part of the participants for formalistic procedures as the primary source of fairness to litigants and to the discovery of truth. One might argue that a system containing multiple layers, of technical procedures and formalistic devices is made necessary solely because people have not yet evolved away from selfishness, greed and distrust. Should that day come, it could be argued, such a system would be unnecessary. In STNG, we have a fictional vision of such an evolved time. Does the informal legal system work in STNG's setting? Would it work in our own? B. How Well Does the 24th-Century Legal System Work? STNG creates a legal system in which formality has been replaced by informality and procedural safeguards have been replaced by trust. The setting for the show postulates and presents a better kind of person living within an evolved vision of society. We have suggested that a legal system is created for certain purposes.77 If it accomplishes these purposes, it will be considered to be a generally successful system. If it fails to accomplish these purposes, it will not. It is unlikely that a legal system will be able to carry out its primary missions unless it provides reasonably accurate processes for determining the facts of the case. This is especially true when facts are disputed. Unless the facts can be determined, litigants cannot be given what they are due. If there is no way to give them what they are due, it is unlikely that the process of adjudication will be perceived to be fair. If the process is not perceived to be fair, it is less likely that the dispute will actually be settled. Therefore, we think it very important to ask how well the STNG legal system determines the facts in disputed cases. An important episode in this regard is A Matter of Perspective, in which the issue is whether Commander Riker is to be extradited to a planet to stand trial for murder. Since the local law assumes that a suspect is guilty until proven innocent,78 the question of extradition is even more critical. As previously discussed, Picard uses the holodeck to provide three-dimensional re-creations of each person's statements.79 This procedure serves very well to highlight the disagreements in the testimony between the parties. Yet, because there is no effective cross-examination, it is impossible to determine which story is true. Even with the help of Counsellor Troi, whose Betazoid empathic abilities have determined that none of the parties are lying, it is impossible, merely by comparing the different honestly held beliefs, to arrive at the answer.80 What does appear to be true is that there was enough agreement among all parties to point to Riker as a plausible suspect.81 Although the truth which clears Riker is eventually discovered, it is not the holodeck fact-finding process which discovers it. Instead, an independent investigation by Data, La Forge and Wesley of unexplained phenomena aboard the Enterprise eventually leads to the conclusion that the same cause destroyed the space station.82 Thus, without the fortuitous fact that the cause of the space station explosion also caused problems on the Enterprise, the truth would never have been discovered, and Riker would very likely have been turned over for trial and almost certain conviction.83 The informal features of the 24th-century legal system did not provide an advocate for the accused or investigative staff. The defendant, Riker, through much of the episode, appeared to be so shocked at the accusation that he was a less-than-credible advocate on his own behalf.84 Scientific investigation and the study of physical evidence, beyond the holodeck re- creation of witness recollections, were not a normal part of the proceedings. It appears to us that had Riker had a lawyer or other trained advocate who would have pressed opposing witnesses and conducted independent investigations, and if more formal procedures had been followed, the chance of an accurate determination of the facts would have increased. While the episode turned out all right, this result appeared to be more in spite of the informal procedures employed than because of them. Another episode, The Measure of a Man, explores the question of whether the android, Lt. Commander Data, is a being with rights or merely the property of Starfleet. The procedural progression from attempts at informal resolution to formal hearing has been discussed previously. For present purposes, the question is how well the formal as opposed to the informal procedures functioned to resolve the dispute. In our view, the "winner" is the formal adjudicatory procedures.85 The informal mechanisms not only do not resolve the question but often appear to be unfair. This is especially true when the dispute involves persons outside the small and tightly supportive structure of the Enterprise. At the start, Maddox comes on board having obtained ex parte orders from a superior officer allowing him to take Data with him and conduct experiments upon him against his will. Although Picard tries gamely to fight for Data (it is instructive that Data does not appear to have the clout to fight these higher-ups himself), the effort is a failure. Data attempts to resign from Starfleet (something he does not wish to do) as the only way he can see to escape from Maddox. The point here is that without formal procedures, the personalities become very important. This gives an unfair advantage to the powerful and the highly placed. It is "a system of men and not of law" which is the antithesis of our own system. In The Drumhead, although it becomes increasingly clear that something is very wrong and unfair about the witch-hunting tactics of Admiral Satie, the informal dispute resolution track appears to provide a solution only to a person with great personal prestige, position and clout. First, Picard fights Admiral Satie using the leverage that Starfleet has ordered them to work together. When Satie then focuses her investigation on Picard, she is stopped only because an even more powerful admiral is convinced to order the hearings to cease. In the story, it is Satie who brings Admiral Henry to the Enterprise, and she is undone when he witnesses her breakdown after Picard's impassioned speech invoking the name of Satie's dead father. It is possible that Picard might also have been able to bring in the admiral himself. But could a simple crewmember have done so? This seems very unlikely. One of the strengths of a system based on legal formalities is that the formalities become substitutes for personal status. In contrast, the informal system as generally portrayed on STNG appears to work best when disputes arise within the context of a relatively small and homogeneous group in which there are authority figures known by the disputants to be fair and honest. Outside of this context, results are more problematic. In contrast, the more formal legal track is shown as achieving correct results even when disputants do not trust each other.86 In The Measure of a Man, Picard eventually demands a formal hearing, which is held. Here the litigants are represented by others who make the strongest possible case for and against each side. There is cross-examination and presentation of witnesses and exhibits. The proceedings are closer to a 20th-century trial than most of the legal proceedings portrayed on STNG. Interestingly, it is through this more formal procedure that the issue is finally clarified and sharpened so that a correct decision can be reached. Picard says as much in a memorable speech: Your honor, a courtroom is a crucible. In it we burn away irrelevances,Our point is not that the system portrayed in STNG is a bad one. We have noted that human rights are important and protected in Federation law and that formal procedures exist and can be demanded by litigants who require them. No system, including our own, infallibly produces the right results in all cases. Our point is, however, that the informal system of resolution does not work as well as might be expected. The fictional portrayal of the 24th-century legal system in STNG requires us to confront the question of whether a legal system with only minimal procedural safeguards is likely to produce truth while protecting the rights of those subject to it. Even where the litigants and the administrators of the system are evolved people of good will, it appears that such a system is unlikely to systematically accomplish its goals. The importance of procedure is not just that it controls the consciously evil impulses of humankind. Procedural safeguards may shield decisionmakers from the often powerful but subtle influences of emotional and personal information. They focus attention on the particular point in dispute rather than allowing an unfocused and diffuse process. Where a fact question is crucial to a correct resolution, procedural requirements can help to assure that relevant facts are properly investigated and presented and that important points do not "slip through the cracks." In taking the 24th-century legal system on its own terms, we find something of a cautionary tale for our own times. It suggests that we should be slow to dispense with "legal technicalities" and formalities because they play an important role in assuring that more fundamental goals of truth and justice are realized. C. Conflict of Laws and Jurisdiction in the 24th Century The United Federation of Planets appears to be a much looser federal system than our own. Individual planets or species retain sovereignty, giving up only very limited powers to the Federation government. Federation citizens are protected from Federation overreaching,88 but no such protection seems to be guaranteed as far as actions by planetary governments are concerned.89 The Federation Prime Directive is non-interference with the internal affairs of others, and this appears to apply to Federation members and non-members alike.90 STNG gives the impression that commerce and cultural interaction are very widespread. Both inside and outside the Federation, individuals from various planets often find themselves in the territory of some other planetary government. For us, the facts of the STNG universe immediately raise questions about conflict of laws and jurisdiction. The questions are particularly serious when dealing with Starfleet personnel who must function on many planets and who engage in a mix of scientific, diplomatic and military actions. When are Starfleet personnel subject to local laws? When conflicts exist between Federation law and local planetary law, to which are Starfleet personnel subject and under what conditions? Surprisingly, these issues have several times been central plot devices, but, from a legal perspective, the answers have not been completely satisfying. The simplest answer seems to be that Starfleet personnel are subject to local law. Yet, it is not entirely clear either that this is the extent of the rule or that such an answer is a good one. Two problems with this answer are obviously apparent:91 1) Traditionally, diplomats are not subject to foreign laws.92 An important reason for this is to prevent diplomatic personnel from being subjected to local criminal laws to gain political advantage. The sorry episode of the American hostages in Iran graphically makes this point. In STNG, it is not just Federation ambassadors who engage in diplomacy. Starfleet personnel often exercise diplomatic responsibilities as part of their normal functions.- Yet, it is not clear that diplomatic immunity extends to Starfleet personnel acting in diplomatic capacities. 2) Starfleet personnel appear to be needlessly put in jeopardy by subjecting them to local laws which violate basic norms of human rights. An example of this is A Matter of Perspective, in which Riker is sent to a science research station in orbit around Tanuga IV to assess the progress of scientific research being conducted for the Federation. The scientist, Doctor Apgar, is killed when the station mysteriously blows up just as Riker is transported from it. When the cause of the explosion proves to be an energy blast within the station, Riker immediately becomes the prime suspect.93 The show focuses on whether Riker will be extradited to stand trial for murder under Tainugan law. Although the captain is authorized to make the decision, there appears to be a presumption that extradition will occur if there is probable cause to believe that Riker is guilty.94 The problem for us is that Tanugan law presumes guilt. A criminal defendant is guilty until proven innocent. Yet, under Federation law, guaranteed by the Federation Constitution, a person is innocent until proven guilty.95 It seems unacceptable that the Federation would subject its personnel to a system so clearly violative of human rights. It also seems implausible that there would not be clear rules outlining what is to be done in such a situation since it is bound to crop up over and over again. The same problem can be found in Justice, in which shore leave on Rubicum III turns nightmarish when Wesley Crusher inadvertently damages a flower bed only to discover that the one and only punishment for all infractions is immediate execution.96 Picard does not seem to have clear guidance about how to resolve the problem. While he pays lip service to turning Wesley over, it appears that this is a stall for time. Finally, he orders Wesley beamed off the planet even over the opposition of the inhabitants. Yet, Picard never seems to feel that he is on solid ground. He feels his way as if the problem had never come up before.97 The primary task of the STNG team is to create interesting and entertaining television, not to construct a legal system. At times, consistency and realism must be sacrificed to the entertainment value of the series. Yet, it appears to us that an acceptable legal answer could have been found in both of these shows without sacrificing the entertainment and dramatic value of the shows. With regard to A Matter of Perspective, the problem could have been solved either by cutting the "guilty until proved innocent" line or by having Krag assure Picard that, as a Starfleet officer, Riker's trial would use Federation law (a very nice "choice of law" solution). In Justice, we would have liked to hear some clear statement from Picard that he would not leave Wesley on the Planet because Starfleet regulations do not require that their personnel submit to a legal system which is fundamentally unfair. Wesley's initial jeopardy was really a prelude to conflict between Picard and the powerful alien guardians of Rubicum III, and that same conflict would have existed whether Picard's decision to remove Wesley by force was based solely on his own judgment or was supported by Federation law. In defense of the STNG writing and production team, they are not lawyers, and issues such as choice of law and jurisdiction are less likely to occur to non-lawyers than to people like us. Still, part of the success of STNG is that it generally creates a believable and consistent structure. Indeed, one of the central points in this article is that STNG deals with legal issues with a high degree of consistency, inventiveness and accuracy. Thus, we feel we should also point out those areas in which some additional thought would improve the STNG universe.98 nonetheless espoused or implied a consistent approach on numerous jurisprudential fronts. By examining the series' evocation of current substantive legal issues, we hope to illuminate the social and legal mores of our own century. Star Trek has attempted to confront problems in contemporary society by placing them in a futuristic context. This enables the viewer to gain new perspectives and insights into those problems by stepping back from their contemporary context. This has traditionally been characteristic of much of science fiction, but it is particularly true of Star Trek, which reflects the utopian philosophy of Gene Roddenberry. STNG, more so even than the classic series, has attempted to serve this goal inasmuch as Roddenberry had more control over the creation and early development of the new series than over the original.99 Moreover, STNG provokes a substantial amount of viewer attention for the manner in which the series handles substantive legal, moral and political issues.100 This massive viewer response suggests that the series' creators and contributors have successfully designed a different yet plausible future which would make sense as an extension of our own. Thus, we care how they handle these issues inasmuch as we believe that their approach has relevance for us today. What is so superlative about STNG is that, without setting out to create a 24th-century legal system or to expostulate 24th-century views on substantive legal issues, the resulting doctrines that have emerged evidence a consistent jurisprudence. Thus, from the existing five seasons of episodes, we can cull not just a legal framework,101 but also more detailed consideration of substantive legal issues. These provide a futuristic perspective on problems and issues facing humanity as we face the fast approaching 21st century. A. Sexual Orientation and Gender Gene Roddenbery's vision of a more nearly perfect society in the 24th century extended to areas of gender equality. It is implicit that Starfleet embodies legal equality for all. In addition, in its non-legal aspects, the show attempts to include images of equality by including a diverse group of characters. Also, the show has taken the lead in exploring matters of customs and mores which so often provide the background for legal and Political disputes. Eulogizing Roddenberry, one commentator noted that STNG "moves several years ahead of the original series in the area of sexual equality. No longer are characters strictly token contributors whose talents are never fully realized (namely, Lt. Uhura), nor do they serve as the captain's 'Galactic Play Toy of the Week.'"102 The diversity of the STNG characters did suffer a blow with the death of the aggressive and physical Tasha Yar. It has been noted that this left STNG with a quorum of soft, nurturing females -- Troi, Dr. Crusher and Guinan.103 The appearance of the sharper, more militant Ensign Ro in the fifth season may be seen as a promising development, one in keeping with the stereotype-breaking model of Star Trek. Early STNG efforts at lambasting sexual stereotypes were not wholly successful. In the first season, Angel One attempted to portray a society in which women dominated; they were physically larger and more powerful than the males of that culture and held the political power. An away team from the Enterprise sought to reclaim Federation citizens whose craft had apparently crashed on the alien planet. The episode showed women to be no more effective than men when attempting to dominate the other gender. Unfortunately, the show deteriorated rapidly as the leader of the society seduced the classic seducer, Commander Riker, and it was only when Riker stepped in to point out the virtues of mercy that the female leader relented in her intransigence toward some Starfleet prisoners. As one critic noted, "Ironically, this episode, which condemns sexism, is probably one of the worst perpetrators of it since the classic series' 'Turnabout Intruder.'"104 Later efforts, consistent with the effort to portray gender equality, went further toward attaining Roddenberry's goals. In the fourth season, STNG broached the issue of sexual orientation in an episode entitled The Host. In this show, Dr. Beverly Crusher fell in love with an alien named Odan, a handsome man, apparently in his thirties, with very little to distinguish him physically from a human male. Odan was aboard the Enterprise for a negotiation mission between two warring peoples. When Odan is injured in an attack upon a shuttle manned by Commander Riker, Crusher operates, only to discover that the being she knew as Odan was really only a host body. The essence of Odan's character, emotions and intellect were embodied in a parasitic, worm-like entity inhabiting the body of its symbiot, a being of the Trill species. For the remainder of the episode, Crusher is torn between her love for Odan and his altered physical state. When Riker becomes the temporary host for Odan, it is only after a great struggle of conscience that Crusher recognizes she can love Odan even in the body of her platonic friend, Riker. This development in Crusher's awareness is stopped short, however, when Odan's new permanent host- a beautiful young woman-arrives. Crusher realizes, lamentably, that she cannot love Odan in his new incarnation. "Someday, perhaps ..." she rues, and the episode ends as Crusher is disconcerted by a passionate kiss on the hand by Odan's new host-body. Regrettably, this episode was seen as a cop-out by many viewers.105 "The fact that Crusher doesn't embrace Odan [in the female host's body] or continue the relationship was, to some fans, an effort to play it safe by a show which is often challenging."106 Critics opined that the series wasted a perfect opportunity to confront bias toward sexual orientation; had Crusher recognized that love is gender blind, she could have continued her affair with Odan and affirmed an important social principle. Other commentators suggest that, to the contrary, The Host was ground-breaking material. "As the world's tolerance of homosexuality increased in the 1980's, Roddenberry decided to explore beyond the male/female sexual relationship. He pushed sexuality to a new frontier" in shows like The Host.107 It is our view that The Host was a significant first step in the series' efforts at promoting an end to sexual bias. Watching Beverly Crusher wrestle with her conflicting emotions and previously unexamined views about love allows us to undertake the same soul searching and, perhaps, begin to deal with our own prejudice. While a happy ending might be more satisfying, it is precisely this satisfaction that the show denies us. We are left uncomfortable as perhaps we should be. It would not be until the fifth season, however, that STNG took the next step. In a controversial108 but critically praised episode, Outcast, the series finally confronted the issue of sexual orientation and societal bias toward certain sexual orientations. In that episode, the Enterprise is assisting the J'naii, a race of people who are, in the majority, gender neutral. While at one time the species had a male and female gender, now virtually everyone is neuter. In this show, Riker works closely with Soren, one of the J'naii, and eventually a warm affection between the two engenders romantic sparks. Soren confesses to Riker that there are a limited number of exceptions among her people-individuals who feel drawn to one gender over another. She is one such individual, who has always considered herself female. She has muted and masked such inclinations, since to reveal oneself as gender preferential is to risk psychotechtic treatment: treatment to erase the gender preference, to recognize it as unwise and antisocial and to inculcate the gender-neutral tendency. Riker returns Soren's feelings, but the romance is detected, or at least sufficiently suspected, that Soren is recalled--abducted--by her people and "treated."109 Riker, in direct contravention of the Prime Directive, but with the loyal assistance of Lieutenant Worf, attempts a rescue, but is too late. Soren apologizes that she no longer feels that way about him and indeed was wrong--sick--to have felt that way before. The point of the episode is clear: Social and legal pressures to conform to the majority view on sexual orientation are wrong--more than just unwise, not just ineffective (indeed, Soren's "treatment" proved 'successful"), but morally and ethically wrong. Moreover, such conformity is seen as unnatural, just as freedom of sexual orientation is natural. Soren's inclination to follow the female orientation was patently a fitting, natural choice for her. Different species may offer different choices, but freedom to choose sexual orientation is intrinsic and essential to the individual in any species. Jonathan Frakes, the series' Commander Will Riker, said the show should have gone one step further. Soren was played by a female actor, Melinda Culea, thus making it easier for audiences to accept a romance between her and Riker. Frakes suggested that Soren should have been portrayed by a male actor.110 In this way, audiences would have had to recognize and accept the implicit message: Even homosexual love, as we in our century and species know it, is natural. Said Frakes, "We've gotten a lot of mail on this episode, but I'm not sure it was as good as it could have been--if they were trying to do what they call a gay episode."111 Co-Executive Producer Jeri Taylor comments that she "really wanted to write this episode . . . . We had wanted to do a gay rights story and had not been able to figure out how to do it in an interesting science- fiction, Star Trek-ian way."112 Producer Rick Berman acknowledged the difficulty faced in casting the role. We were either going to cast with non masculine men, no femine [sic] Producer Michael Piller mentioned that STNG had "been the target of a concerted organized movement by gay activists to put a gay character in the show."114 Berman agreed, and adds: "[We) came up with a very obvious metaphor for the gay community and the intolerance they receive on this planet."115 Returning to the theme of the "better" Federation person, above the fray and without conflict, Berman points out: I think we dealt with well meaning people and their intolerance and ourNevertheless, reaction was mixed. We have people ... who salute us for doing it, then there are people thatOne commentator noted the similarities to The Host,118 but called the earlier show "the more effective-and certainly most subtle-of the two."119 Another commentator noted that "[Jeri] Taylor's script is a stunning reminder of how effective the science fiction genre can be in providing allegorical explorations of political and social concerns."120 Another stated, "[while] the episode doesn't provide any solutions to society's intolerance toward the homosexual community, [it) brings their argument to the forefront, and that's at least a step in the right direction.121 As can be seen, the episode and the reaction to it raise interesting issues. Given the comments of Frakes, Berman and Braga, did the show actually avoid the hard issues which it could have confronted more forthrightly? Did the show give in to the perceived contemporary intolerance of the audience, rather than simply depicting the intolerance of an alien race hundreds of years into the future? Given the controversial122 reaction to the episode, it is our view that the episode went just about as far as it could go without being annoyingly heavy-handed. Unless an episode entertains, the attempt to broaden the viewer's mind will fail, as the message becomes more pervasive than the story. It should be noted that, in a rather humorous vein, the episode admits that, even in the enlightened future of the 24th century, gender stereotyping has not disappeared. Soren asks Crusher for characterization of our two genders, and she notes that, while there used to be prescribed roles for the two sexes, this has faded over time. Then, in a conversation with Worf, she realizes that the ancient prejudices remain. Thus, even given the weakness of STNG's first blow at exploding the myths of gender bias, the series has succeeded in offering its condemnation of sexual stereotyping in an effective one-two punch. Both The Host and Outcast will be remembered by viewers as dramatically striking and morally compelling. Late 20th-century viewers are, in the main, trapped in a state of arrested development with regard to sexual orientation. Noteworthy advances in this area are marked by two strides forward, one step back. It is significant that viewer response to these two episodes was vociferous, yet mixed: Many fans applauded the courage of the latter episode, and many decried the risk-avoidance of the former, but there were still viewers who felt offended by the message in both. It is doubtful that the series could have gone any further without alienating its audience and suffering critical disaffection for sacrificing the story for the message. Thus, the message of tolerance is consistent throughout the Star Trek world, even while it recognizes and causes us to realize that it is difficult to break traditional stereotypes. If a message is to be drawn from the series, and from these individual episodes, it may be that the effort is not just worthwhile, but essential. From a legal point of view, the only thing wrong with the treatment of the issue in Outcast is that the Prime Directive effectively prevents the question from being considered in a legal way. The planetary government's laws, although repulsive, are internal matters which the Federation may not address. Since it was one of their own citizens they were "treating," there was no legal issue raised which could be addressed directly. B. The Meaning of Life/Defining the Person In a succession of episodes, STNG has expounded upon the question of what it means to be "human" or a "person," i.e., to be entitled to legal rights and autonomy. While this is a hotly debated issue in contemporary society in the context of abortion,123 STNG has asked the question more generally and in a wide variety of contexts. It is one of the most interesting continuing themes and one which often provides a setting for legal resolution. STNG has attempted to define what is life under the various labels of what is sentient life, what is intelligent life, and what life forms can be considered property. The issues ranged from whether an image Data encountered in the holodeck is entitled to existence (Elementary, Dear Data) to whether Data himself (The Measure of a Man)--and later, Data's daughter (The Offspring)--are. The problematic alien entities ranged from the crystalline entity (Silicon Avatar) to a race known colloquially as "microbrain" (Home Soil)124 for their computer-like nature to a race of nannites (Evolution). In the entire STNG oeuvre, however, one message 'is clear--the respect for all forms of intelligent life and the right of intelligent life to self-determination. Holodeck creations were the subjects of this inquiry in two very different episodes which resolved the query in markedly different fashions. In the first season's The Big Goodbye, Picard manages to convince the arch- villain Cyrus Redblock, the Sydney Greenstreet-clone portrayed by Lawrence Tierney, of the existence of a world outside the holodeck, yet allows him to follow Picard outside the holodeck to his "death," or at least to the end of his existence. Apparently, this was not a fitting end for another arch-villain, Professor Moriarty, in Elementary, Dear Data. There, the fate of the professor was seen as almost tragic. Moriarty argues, comparing himself to Data, that both are alive because they are both self-aware: "Cogito, ergo sum." "'Moriarty' ... the captain promises, 'you will not be extinguished. We will save this program and hopefully in time, when we know enough, bring you back in a form which could leave the holodeck.'"125 Producer Maurice Hurley notes that there was some disagreement about that ending. [T]here was an ending cut off of that show by Gene. We had a large fight the character. I thought it made him look clever, and since you are dealingWe are pleased that the alternate ending was not used. Nor was it established that merely because an object could leave the holodeck a computer created sentient being could. We stress this because we believe the ending as actually aired was a much stronger message that sentient beings have rights than the alternate ending would have been. The two episodes can be easily reconciled, however: Cyrus Redblock was merely a facsimile created by and limited to the holodeck. He had no self-awareness and was not, therefore, a being with rights. Professor Moriarty, however, had been given self-awareness and the ability to introspect due to the order given to the holodeck that it create an enemy which could defeat Data. Only a sentient being would have any chance to do so. STNG has established its position, through a number of shows, that sentience is a key criterion for the right to life. Thus, Moriarty was a being with rights as entitled to life as Data or Picard. Merely to dissolve him was, therefore, no answer. Assuming that he could not leave the holodeck and survive, as stated in the show, the option to save him in the computer had to be taken. To merely turn off the program would have killed him unjustly. STNG's inquiry into whether a being merits a right to life based on whether it is sentient resounds with the philosophical tenet, "I think, therefore I am." The question has ongoing legal implications in defining not just life but death. If I never think and never will think, perhaps I am not. Recently in Florida, the Supreme Court heard and decided a case which directly tested this point. The so-called "Baby Theresa" case dealt with an infant born anencephalic, without a brain, possessing a brain stem only. Medically, such a child could live at most a few weeks. The higher thought processes associated with human beings were impossible due to the physical absence of the brain. The parents wanted to harvest Theresa's organs and donate them to needy children. If they waited until brain stem activity ceased, the organs would have deteriorated too much to be of use to others. The infant's parents sought to have her declared dead so that her organs could be harvested. Florida law, which "parallels the law of all 42 states that have faced this question," defines brain death as the cessation of all brain activity.127 The law that defines death was enacted in 1980 in response to dramatic [74] the patient dead when the brain has ceased to function. The law allows Both the trial and intermediate appellate courts held that the baby was not dead. On November 12, 1992, the Florida Supreme Court upheld the lower courts' decisions.129 The question posed starkly was whether Theresa was dead even though her heartbeat and some automatic functions controlled by the brain stem continued. If sentience, or even the remote possibility of sentience, is the criterion for human life, then Theresa does not and cannot qualify. Thus, in thinking through this issue, STNG is addressing an important issue of current law. Similarly, in Home Soil, a first season entry, a group of Federation terraformers on Velara III was discovered to be violating the rights of a preexisting race of beings. A planet to be terraformed "must be without life or the prospect of life developing naturally." The Enterprise crew discovers one of the indigenous entities and engages in an exploration of whether the entity--microscopic in size and non-carbon based--is life. Picard lists a set of criteria for organic life, including the ability to assimilate, respirate, reproduce, grow and develop, move and secrete and excrete, but notes no similar definition for inorganic life. The entity does in fact reproduce and even threatens the ship, but Picard refrains from destroying this race of beings, "intelligent life" as they have now been found to be. Indeed, the "microbrains" decline to enter into relations with humans, who they perceive to be "ugly bags of mostly water." Similarly, in the third season's Evolution, Dr. Paul Stubbs, played by Ken Jenkins, is an erstwhile child prodigy seeking to reestablish his noteworthiness with an experiment on a neutron star. This experiment, to be performed aboard the Enterprise, is possible only every 196 years. Unfortunately for Dr. Stubbs, Wesley Crusher accidentally releases a science project into the ship's computer: two nannites, described as "little tiny robots . . . designed to enter living cells to conduct repairs."130 Wesley's plan had been to "see how they would act in tandem," in effect, as Guinan puts it, "to make better nannites." The nannites do very well "in tandem," combining and reproducing to such an extent that the ship's main computer starts to malfunction, placing Dr. Stubbs' experiment in jeopardy. The nannites are said to have "evolved."131 "How can a machine evolve?" an angry Stubbs argues,132 but Dr. Crusher maintains that the nannites have a new collective intelligence. For Stubbs, they may be life, but not the kind of life with rights. He challenges Crusher with the question, "How many disease germs have you destroyed?"133 Picard insists that they cannot destroy something that may be intelligent and orders Stubbs and Data to try removing the nannites safely from the computer core; if that does not work, stronger measures may be necessary. Stubbs is impatient and fires a high level gamma radiation burst to try to destroy the nannites, which respond by attacking Stubbs. Picard is reluctantly poised to give up his attempts at communication, but just in time Data succeeds in establishing contact.134 Data serves as conduit for the nannites, to which Stubbs is ordered by Picard to apologize. The apology is accepted, and the nannites, for whom life is too confining aboard one starship, are awarded a planet of their own on which to exist.135 This regard for intelligent life reached an acme--or, perhaps, a nadir-- in the fifth season's Silicon Avatar. Although this episode is consistent with the other right-to-life episodes, it reached a level that some viewers and critics found extremist and, as a result, almost amusing. In it, Picard quarrels with Riker over the fate of the extraordinarily destructive crystalline entity, which first appeared on the series in the first season's Datalore. The entity has proven itself capable of destroying entire planets, yet Picard refuses to destroy it when the opportunity for communication remains.136 The episode was seen by some as portraying Picard at his most intellectually ineffectual. Captain James T. Kirk would have blasted the crystalline entity into nothingness (at which point Bones would, no doubt, have noted, "He's dead, Jim").137 If Silicon Avatar was the low point, critically speaking, in the debate of what is life, The Measure of a Man is doubtless the zenith. It so well answered the question of what is life that a later episode, The Offspring, in which the question is asked not about Data but about his creation, Lal, was seen by many as superfluous.138 In The Measure of a Man, Data is ordered to report to Commander Bruce Maddox for experimentation. Maddox is "a gung-ho cybernetics expert [who] wants to disassemble Data in order to learn more about his inner-workings,"139 in an attempt to reproduce Data for a wide variety of usage in the Federation and Starfleet.140 Data believes Maddox's plans are ill-conceived and decides to fight the transfer. He is informed he has no such right. Dangerous assignments are not valid bases for fighting transfer. His next choice is to resign from Starfleet, and from there the battle is joined. Captain Phillipa Louvois of the Judge Advocate General's Office orders a hearing on whether Data is a sentient being at liberty to resign from Starfleet. Picard is designated to defend Data, and Riker is unwillingly drafted to prosecute.141 Riker attempts to show Data is not human, i.e., that he was built by a human (Dr. Noonian Soong), that he has superhuman strength and that he can be disassembled and even "shut down" by a human, which Riker proceeds to demonstrate. Picard tells Guinan of Riker's "devastating" prosecution, and it is only when the bartender suggests that a race of Datas would be nothing more than slave fodder for the Federation that Picard is inspired. Guinan says: [I]n the history of many worlds there have always been disposable creatures.In his opening speech, Captain Picard admits that Riker has proven Data to be a machine, but argues that humans too are machines. This concession, according to Picard, does not answer the larger question of whether Data is property. Picard questions Maddox about the qualifications for sentience: intelligence, self-awareness and consciousness. Maddox concedes Data has at least intelligence and self-awareness, while the third criterion remains in question. Picard then suggests that whatever decision is made in that hearing would have enormous consequences for the future. "Are we ready to consign an entire race of Datas to the status of disenfranchised property?" Picard asks rhetorically.143 Captain Louvois acknowledges that the question they are all "dancing around" is whether Data has a soul.144 Louvois admits she does not know and does not, in fact, even know whether she herself possesses a soul. In the absence of proof to the contrary, she declares herself unwilling to find Data soulless, and therefore property. She finds in Data's favor, and the android formally rejects Maddox's request.145 Picard is again called upon to defend the right to life, as preliminary to an android's right to choose, in The Offspring, another third-season episode, which has been alternately praised as well done146 and panned as unnecessary.147 In that case, it is Data's creation, his "daughter" Lal, played by Hallie Todd. The threat this time comes from Starfleet Admiral Haftel, portrayed by Nicolas Coster, who wants not to disassemble Lal, but to take Lal away from Data for study and a "proper" upbringing.148 Early in the episode, when Captain Picard discovers Data has created the android Lal and calls it his "child," Picard, upset at the discovery, tells Counselor Troi that it is "an invention," not a child. Troi replies, "Why should biology rather than technology determine whether it is a child?"149 When Picard lectures Data that the latter's actions will have serious repercussions, Data asks whether the captain wishes to have Lal deactivated. "It's a life, Data," Picard says, "it can't be activated and deactivated .... "150 Following the test established in The Measure of a Man, Data notes that Lal is becoming "sentient by developing the awareness to question and examine [her] perceptions."151 Lal is again referred to as a "living, sentient being" by Picard, who tells Admiral Haftel that "[androids'] rights and privileges have been defined. I helped define them,"152 in a clear reference to The Measure of a Man. Yet it is by no means clear, in this later episode, that Lal has a right to choose.153 It is only after Lal's rights have been discussed by the captain, crew and Haftel that Picard finally asks Lal for her wishes, as if this is a new and surprising avenue to pursue. Notwithstanding Lal's wishes to remain with Data, Haftel still asks, then orders, Data to deliver Lal to Starfleet for research and training.154 Picard tells Data to "belay that order," telling Haftel that he, Picard, will take the issue to Starfleet. "I am Starfleet," Haftel storms. Picard says, "You acknowledge their sentience but you ignore their personal liberties and freedom."155 The issue then becomes moot as Lal develops a terminal case of emotional awareness, leading to systems failure, and "death."156 Perhaps the issue need not have been explored, even assuming for the sake of argument it need have been raised, because of the resolution in The Measure of a Man. While Lal was a well-defined character, and the show was excellently directed by cast member Jonathan Frakes, the point of the episode was so consistent with that of The Measure of a Man that it seemed superfluous. Questions resolved in The Measure of a Man arose again in The Offspring, seemingly for no other purpose than to propel the story. Because it was a good story and because it adhered to the STNG tenets regarding right to life, the episode was nonetheless a valuable entry in the series. A recent episode considering the right to life was the fifth season's I, Borg, which considered the question almost as if The Measure of a Man had never existed. In I, Borg, an away team discovers the crash site of a Borg ship with one survivor, an individual Borg, which the crew realizes is something of a contradiction in terms. Aboard the Enterprise, there is a strong memory of the destruction and tragedy wreaked by the Borg in the past;157 Picard is still so shaken by his past abduction that he refuses to see the prisoner.158 Soon, the prisoner becomes something of a guest, or even a pet, of the Enterprise.159 La Forge names him "Hugh" and, along with Dr. Crusher, teaches him what it is to be an individual, separate and apart from the Borg collective. The Enterprise plan is to program Hugh with a destructive command to disable the Borg collective when Hugh is reassimilated by his "People." However, somehow this plan becomes untenable, as La Forge, then the reluctant Guinan (whose entire species had been devastated by the Borg) and finally even the recalcitrant Picard conclude that this would constitute murder, perhaps even the genocidal destruction of an entire race. It is not until Picard realizes that Hugh has developed knowledge of self, in effect, individuality, that Picard abandons the plan.160 An argument could be made that exceptions for self-defense or war would support the action, yet there are flaws with both of these theories. The episode makes clear that there has been no formal declaration of war against the Borg by the Federation Council. Further, while the Borg as a group pose a terrible threat to the Federation, Hugh does not. STNG's view of the right to life closely follows the Roddenberry view of a utopian, egalitarian society. Even when we find that the show sometimes "re-litigates" an issue that should be understood to be decided, it does consistently come up with the same answer. All "born" sentient life is precious, and even the decision to kill such a being in self-defense is a decision fraught with moral ambiguity. It seems clear that so long as communication and discussion are possible, i.e., that a chance exists for reason to prevail, even self defense is viewed as premature. In this, the 24th century appears to take a view of self-defense that is significantly more limited than that which the 20th century recognizes. C. The Right to Privacy For the most part, STNG has consistently reflected the contemporary struggle with the privacy issue, while exhibiting a more advanced step along the road to complete protection of privacy rights. In the 20th- century perspective, the privacy rights may be said to be four-fold. The four separate bases for invasion of privacy are: "unreasonable intrusion upon the seclusion of another; ... appropriation of the other's name or likeness; ... unreasonable publicity given to the other's private life; ... [and] publicity that unreasonably places the other in a false light before the public . . . "161 Several of these theories of liability have application to STNG's treatment of privacy issues. The most striking, and certainly most didactic, of the right to privacy episodes is Up the Long Ladder, a second-season show written by attorney Melinda Snodgrass. In this episode, a race of clones attempt to steal the DNA of Riker and Doctor Pulaski in an effort to ensure their race's survival. Riker and Pulaski had already objected to a request for the DNA, and when they discover the deception, Riker destroys the clones with a phaser blast. "We certainly have a right to exercise control over our own bodies, "162 Riker argues. Snodgrass speaks about the episode: It is ironic, because I got enormous flack from the right to life coalitionThe show suggests a strong right to privacy in one's physical person, including but not limited to reproduction. STNG also presents privacy in a broader context which considers whether a person can control his or her image, likeness and personality. In the 20th century, such issues are generally raised in the context of commercial appropriation of name or likeness, but in the 24th century, advanced technology makes other kinds of personal invasions possible. Several episodes explore the appropriation of one's likeness through use of the holodeck, which has the ability to create corporeal three-dimensional people closely patterned on real individuals. These episodes raise important questions about privacy and freedom of thought. For example, in Hollow Pursuits, the awkward, reclusive Ensign Reginald Barclay, nicknamed "Broccoli" by the amused crew, escapes from the uneasiness of social requirements and ship's duty by spending an inordinate amount of time on the holodeck, where he creates characters who look like and sometimes act like actual members of the crew.164 While some have seen this episode as a comment on "trekkies" who escape from reality into the fantasy of the Star Trek universe,165 more fundamentally, it is a show about privacy. In numerous scenes, Barclay reproduces facsimiles of his crewmates, including Picard, Riker, Crusher, Troi and La Forge on the holodeck, putting them in embarrassing and often ludicrous roles and situations. When the crew finds out, they are outraged at the use to which Barclay is putting their likenesses without their consent.166 Yet, it can be asked, how it is that we feel we can control the mental fantasies which others might have about us? To do this is to control their minds which violates their own autonomy and privacy. The holodeck is, in one sense, just a 3-D corporeal computer enhancement of our thoughts. Surely one's thoughts are private even if they involve others. It should also be noticed that the privacy issue is two-edged here. "When Geordi violates [Barclay's] privacy by walking into this holodeck fantasy, the issue of violation of privacy is never tackled by our holier- than-thou crew. Sure, just walk right in on the poor guy. Good thing he was only fencing with the Musketeers and not giving Pee-Wee a hand."167 This would approximate a privacy invasion under the first ground: "intru[sion], physical ... or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person."168 Another's holodeck fantasy may seem humorous rather than intrusive, yet STNG also shows us that it may not be quite so humorous when we are the "borrowed" image. In Hollow Pursuits, for example, Counselor Troi, envisioned as the Goddess of Empathy, is empathetic with Barclay's needs until she meets her own simulated alter ego. At another point, Riker asks whether there is some regulation forbidding such use of the holodeck. When told that there is not, he fumes "Well, there ought to be."169 A potentially more serious invasion of privacy involving the use of the images of crewmembers in the holodeck can be seen in Booby Trap, in which La Forge is able to access the personnel file of Leah Brahms, the designer of the engines on the Enterprise, in order to create not just a visual image but one including very detailed and complete information about the person replicated. His motive is good. Needing to work quickly in a crisis situation, he finds it convenient to have the holodeck create her image. Their interaction, however, becomes very personal, intimate and romantic. La Forge is smitten.170 Interestingly, during a later episode, Galazy's Child, Leah Brahms visits the Enterprise and stumbles upon the program. She is outraged at the use of her computer-created self as a gross invasion of her privacy. "I have been invaded, violated. How dare you use me like this? . . . How far did it go, anyway? Was it good for you?"171 Eventually, Leah is won over by La Forge, and the charge of violation of privacy is not again considered. As with all of the holodeck episodes, there is an uneasy, unresolved feeling that technology has outrun a clear resolution of the issue. Perhaps this question will be explored again. In the previously discussed Up the Long Ladder, involving the theft of cells from Enterprise crewmembers for the creation of clones, Riker articulates his feeling that the cloning of his cells "diminishe[d] [him] in ways [he] can't even begin to imagine."172 This echoed the point made in The Measure of a Man that reproducing a race of "Datas" vitiates the uniqueness of each person in effect, the ultimate privacy violation. From our perspective, these episodes create and perpetuate a view of privacy that suggests every individual is entitled to live a life untrammeled by other people's interference. One's body, mind and image are one's own. Even when not protected in law, customary morality creates pressure to preserve the privacy of others. Those who violate this privacy appear to be confronted and generally acknowledge that they have done wrong. Today, a cause of action exists for invasion of privacy by appropriation of name or likeness for the defendant's benefit .173 Usually this is economic, but "[i]njury caused by an appropriation ... may ... be 'mental and subjective'--in the nature of humiliation, embarrassment and outrage."174 It may be that such an action would be needed in the 24th century, regardless of whether it is done for personal gratification or pecuniary benefit, in order to take account of the increased ability to violate privacy which the advanced holodeck technology creates. In the episode entitled Violations, invasion of privacy is seen for the first time as an actionable offense. This fifth-season episode was one of the most powerful and effective of not just the fifth season, but of the series' entire run. In this story, the Enterprise is transporting a delegation of Ullians, "an alien race of telepathic historians who conduct research by probing their subjects' long forgotten memories."175 Counselor Troi and then Commander Riker fall into inexplicable comas; initially, only the audience is privy to their thoughts before they lose consciousness. Each of the two crew members experiences violent flashbacks, Troi to a romantic incident with Riker that then turned ugly, and Riker to a stressful ship disaster wherein lives were lost, impliedly because of a command decision he had made. When Troi regains consciousness, we learn that one of the Ullians has invaded her thoughts and altered the memory for her. You have to make sure you don't misinterpret what this guy was doing ....When the wrongdoing is discovered, the other, apologetic Ullians explain that many years earlier this type of mind rape had been a particularly heinous crime among their people. It had been believed that the species had evolved beyond the need to commit such a crime, but apparently this was not so. In the 20th century, the invasion "may ... be by the use of the defendant's senses ... to oversee or overhear the plaintiff's private affairs."177 By extension, therefore, the use of extrasensory abilities--from the Ullians' ability to recreate memories to Counselor Troi's ability to sense emotion--could constitute an invasion of privacy.178 This episode represents what STNG and, indeed, all of Star Trek does best: taking a meaningful social, legal, political or philosophical issue and elucidating it by giving it a science fiction twist. It is only when viewed through the prism of fiction, and especially science fiction, that people are sufficiently distanced from the problem to see the "moral" of the story. Thus, as Outcast throws new light on gender discrimination, Violations offers a new perspective on crimes (and by implication, civil causes of action) impinging on a person's freedom--in this instance, freedom of thought. a logical extension of the 24th century portrayed in the show and significantly different from our own. In particular, the dual track system demonstrates serious concern about human rights while attempting to move away from formalistic procedures. The system, as portrayed, relies heavily on the evolved goodness of the people involved and on informal mechanisms of dispute resolution. It does not appear that the informal part of the 24th-century system always functions as well as would be expected either to arrive at accurate factual findings or to protect individual rights. Further, the problem appears to be an aspect of the informality of the system which continues to exist even when evolved people act in good faith. Within the context of the show, accurate fact-finding and the correct resolution of disputes seem to be aided by some structure of formal procedural safeguards. Those who decry the formal nature of the 20th- century legal system may fail to fully recognize the positive aspects of such a system. STNG generally handles issues of legal procedure well. The system portrayed is inventive, challenging and largely consistent with the 24th century as portrayed on the show. Yet, some issues, such as jurisdiction and choice of law, require some additional development. STNG also examines substantive legal questions. Issues such as sexual orientation, gender equality, the right to life, the definition of "person" and privacy, have all been considered. In general, there is strong support for the notion that a sentient creature has rights, including life, liberty and privacy. The control of one's person and personae is an important value. In general, we find that the substantive law is consistent with the more general vision of the 24th century portrayed in the show. We also note, however, that just as these questions cause controversy in the 20th century, their resolution is not always clear in the 24th. Finally, we want to acknowledge that the makers of STNG are primarily concerned with creating and producing a high-quality television entertainment program. They did not set out to produce a treatise or documentary on government and law. It is their outstanding success in creating a believable and creative vision of the future which led us first to watch the show with such pleasure and then to think and write seriously about the legal issues discussed herein. We have not, in every instance, agreed with the details of the future they present. For example, we think that procedural formalities can play a larger part in insuring substantive justice than the STNG legal system might suggest and that lawyers may not be such a bad idea, even in the future. This is not intended, however, to be a criticism of the show's overall believability and high quality. More fundamentally, nothing in our analysis challenges the core vision of the show. STNG presents a provocative and emotionally compelling vision of a positive and hopeful future in which all kinds of people can learn to live together in harmony, to care for and respect each other and to allow each individual to pursue his or her hopes and dreams with dignity. It is a vision of the future to which we subscribe. |
