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Given traditional understandings of law, one might be sceptical of a claim that improvisation and justice are not mutually-exclusive concepts. Does not the significance of the rule of law, the requirement that we be governed by rules and not arbitrary, ad hoc discretion, call into question the legitimacy of improvisation in law? To this very lawyerly question, I provide a very lawyerly answer: it depends.
Legal orthodoxy may indeed refuse to acknowledge any role for improvisation in law, but other theories of law, particularly a theory of critical legal pluralism, is likely to be more accommodating. Critical legal pluralism rejects the characterization of law as an external force obeyed by legal subjects. Instead, critical legal pluralism recognizes the improvised nature of law; legal subjects are not law-obeying but rather law-creating, generating their own legal subjectivity and establishing legal order in real time as a knowledge process of creating and maintaining reality.
This article analyzes Buffy the Vampire Slayer, a popular television series, to explore the concept of critical legal pluralism as improvised law. Read jurisprudentially, the series provides numerous examples of the improvised nature of law as the social construction of legal meaning. A particularly compelling example is the character of Spike. True to the traditional (pre-Twilight, pre-True Blood) genre, Spike is an evil vampire, a demon without a soul whose capacity and appetite for violence have earned him the title of William the Bloody. Yet viewers readily accept a character arc in which Spike, motivated by chivalry (the genre of knights-in-armour, not vampires) vows to protect a human being even at the expense of his own existence. As a law-creating legal subject, Spike is bound by his commitment to both genre-hybridism and the improvised legal meaning of his circumstances; he has made a promise to a lady, and such promises must be kept, even by soulless vampires.