The MCCHR Resource Center houses hundreds of materials on social and political sciences, but the best kept secret (in my opinion) is the selection of books that creatively illustrate law and social activism. One such book is The Law of Superheroes by American attorneys James Daily and Ryan Davidson.

This book originated from a blog called Law and the Multiverse created by the authors in 2010. The blog was not meant to provide any legal advice.  It is a place where the lawyers can blend their interest in comics, and their knowledge in law. For example, in The Law of Superheroes the authors explore questions like what civil rights would mutants have, can the current legal system prevents false testimony made by a shape-shifter (like Mystique from X-Men), or how to apply the M’Naghten rules or other insanity tests to The Joker?

I picked up this book because the geeky and lazy side of me just wanted to read something fun and unproductive during the summer.  I am not even the biggest comic geek but who wouldn’t enjoy watching the X-Men movie series when they come out in the theaters? Daily and Davidson have not only done a great job in explaining the plots or superpower of the characters involved, but also in explaining the different legal theories using simple terms with in-depth discussion on the law and its application. They take their mutant laws seriously!

It is a fun book for people who are interested to learn the nutshell of various American law principles. The book is split into 13 chapters with each focusing on different area of law – from constitutional law to criminal procedure, from tort to business law.

One thing I like about this book is its writing style. Most parts of the book were written in the standard legal analysis format, IRAC – issues, rule, application and conclusion. The facts are coming from the comic while the rules are coming from American statutes or common laws. For example, a section on constitutional right would begin with stating the issue in the first paragraph: Can mutants enjoy the civil rights protection against discrimination under the US Constitution? Since all the superheroes and supervillains in the Marvel universe share a common origin, their x-gene mutation, they became the target of discrimination by the government in 1960s.

The authors explain the Equal Protection Clause of the 14th Amendment of the US Constitution, and elaborate on the different levels of scrutiny – strict, intermediate and rational. Then, they cite American case laws to look at how discrimination by the government is being classified, ie. race, national origin and religion are subjected to strict scrutiny, while gender, citizenship and birth fall under intermediate scrutiny. Other suspect classes such as mental disability and homosexuality are subjected to the rational basis review, in which the court applies the lowest scrutiny level to consider whether to strike down an alleged discriminatory law faced by this class.

Since there has not been any case law that determines whether mutants should be subjected to strict or intermediate review, the authors applied the rational basis review and cited to two cases: City of Cleburne v. Cleburne Living Center, Inc. where a city ordinance was accused of being discriminatory against people with mental disabilities; and Lawrence v. Texas – the first US case that overturned anti-sodomy law. Daily and Davidson use the test given by the Cleburne court to apply to the mutants and decide whether the Supreme Court would embrace the mutants as a legal protected class like the LGBTs, which I thought was an odd analogy.

Does a crime committed under the influence of Professor X considered as mens rea? - © Aaron Lopresti/Marvel Comics

Other interesting issues that The Law of Superheroes deals with include whether the prison that hosts supervillain inmates in Marvel’s Negative Zone constituted a cruel and unusual punishment prohibited by the Eighth Amendment when the prisoners suffered from mental illness or disorder? Does a crime committed under the influence of Professor X or other characters that could generate mental illusions considered as mens rea (“guilty mind) in criminal law? Did Captain America violate Daredevil’s Miranda rights when he arrested him? If the criminal procedure were violated, how would “fruit of the poisonous tree” doctrine play out to exclude the tainted evidence being admitted into trial?

This book is more law than superheroes. For readers who are more interested in the comic world (and I could imagine Big Bang’s Sheldon complaining), this book totally ruins the best part about it – that it is devoid of the law of physics and the legal law. It is because the law was so inadequate and incapable to deal with criminals that we wish to have superheroes like Spiderman or Batman in the first place. On the other hand, it is a great book to think about how far the legal theories can be pushed. The law, especially in a common law system, should not be static. It should always adapt to the current socio-political circumstances. A new law should either affirm or overturn the bad or outdated ones.

The book uses extraordinary circumstances that could only happened in the DC-Marvel universe to push our imagination and stretch our legal thinking. Sometimes, these imaginative and creative skills are required to adapt to a rapidly-changing world. Even though the authors did not reach legal conclusion in some cases with more than extraordinary characters and circumstances, Daily and Davidson never failed to analyze the law in the most extensive manner, to the point of hypothesizing how the law can be changed. The Law of Superheroes makes the unbelievable sound believable and brings the fantasy to the reality giving us more fantasy to indulge at the end.

Ricky Sim was born in Malaysia and is now a law student in Brooklyn, New York. He is a former MCCHR intern and he will be interning for the US Federal District Court next year.

The Law and Superheroes by James Daily and Ryan Davidson is available on-shelf at the MCCHR Resource Centre between the books, New Malaysian Essays and Justine, Philosophy in the Bedroom, and Other Writings.

Malaysian Centre for Constitutionalism and Human Rights (MCCHR) is a non-profit based in Kuala Lumpur with the mission of promoting active democratic participation and human rights awareness.