SITUATING LAW BETWEEN THE REALITIES OF VIOLENCE AND THE CLAIMS OF JUSTICE
IT SURELY COMES as no surprise to say that violence of all kinds is done everyday with the explicit authorization of legal institutions and officials or with their tacit acquiescence. Law without violence is unthinkable, yet if law were to be no more than violence it would not be law at all.1 Law depends on violence and uses it as a counterpunch to the allegedly more lethal and destructive violence situated just beyond law's boundaries. But the violence on which law depends always threatens the values for which law stands. Some of this violence is done directly by legal officials, some by citizens acting under a dispensation granted by law, and some by persons whose violent acts subsequently will be deemed acceptable. Moreover the pain that these acts produce is everywhere, in the drama of law's sporadic vengeance as well as in the ordinary lives of those subject to legal regulation.2
The bloodletting done, authorized, or condoned by law occurs with all the normal abnormality of bureaucratic abstraction. As a result, the violence of law is often untraceably dispersed. Indeed it is this distinctive combination of bloodletting and bureaucracy that makes law possible, insures its continuous presence in our minds and imaginations, and holds us before the law.3
Despite its undeniable significance, law's violence has played little role, and occupied little space, in legal theory and jurisprudence.4 Or, when it is present, awareness of the violence done or authorized by officials is divorced from legal interpretation, as if the act of speaking or writing the words of law could be separated from the inscription of those words on the bodies of citizens. This absence and this divorce have serious consequences since the fate of law is inextricably tied up with the fate of legal theory.
By failing to confront law's lethal character and the masking of its interpretive violence, legal theory tacitly encourages officials to ignore the bloody consequences of their authoritative acts and the pain that those acts produce. Moreover, by equating the conditions of legal legitimacy with that masking, much of jurisprudence promotes righteous indifference and, as a result, allows law's violence to continue unabated. While I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end bloodletting done, authorized, or approved by legal institutions, this book seeks to move violence to the center of theorizing about law and to connect it to the question of justice. Does law's violence stand as an impenetrable barrier to the achievement of justice in and through law? Or, alternatively, is violence necessary to the realization of justice?
These ought to be perennial questions of legal theory, but unfortunately, they are not. Perhaps this is why the work of Robert Cover was, and is, so significant as a moment in late-twentieth-century jurisprudence. Cover, who died in 1986, taught at Yale Law School and produced a limited but highly influential corpus.5 At the heart of his work was an effort to think about law in relation to the institutional reality of its intimate engagement with violence while also attending to its normativity and its normative aspirations.
"Between the idea and reality of common meaning falls the shadow of the violence of the law, itself."6 This one sentence reveals, with great simplicity and directness, Cover's awareness of the tragic character of law's violence and its world-altering reality, a reality so awesome that its mere "shadow" stands as a barrier between present experience and the realization of an "idea." Thus in Cover's work one finds a mournful story of violence set against utopian possibility, and an appeal to legal scholars to enter the shadows and explore law's violent underside.7 However, one also finds an acknowledgment that the violence of law is, despite its tragic character, different from and preferable to other forms of violence--the violence of the lynch mob or the lawless state--which, in their own way, cast even more destructive shadows. Law's violence is to be preferred, albeit reluctantly, as a way of counteracting and containing that other violence, as a way of saving us from the darkest possibilities of human existence.
Cover compellingly called our attention to law's "jurisgenerative" and its "jurispathic" qualities.8 "Law," Cover argued,
may be viewed as a system of tension or a bridge linking a concept of reality to an imagined alternative. Thus, one constitutive element of a nomos is the phenomenon George Steiner has labeled "alternity": "the 'other than the case,' the counterfactual propositions, images, shapes of will and evasions with which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence." But the concept of a nomos is not exhausted by its "alternity"; it is neither utopia nor pure vision. A nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our visions of alternative futures.9
Cover used the word "nomos," or "normative universe," to argue that law is crucially involved in helping persons "create and maintain a world of right and wrong, of lawful and unlawful, of valid and void."10 The nomos that law helps to create, Cover believed, always contains within it visions of possibility not yet realized, images of a better world not yet built. But, he reminds us, law is not simply, or even primarily, a gentle, hermeneutic apparatus; it always exists in a state of tension between a world of meaning in which justice is pursued, and a world of violence in which "legal interpretation takes places in a field of pain and death."11 It is here that Cover confronted and described what was for him a fundamental tension--namely, despite its destructive, world-destroying power, the violence of law an indispensable presence in our lives.
Law, Violence, and the Possibility of Justice seeks to energize scholarly interest in the violence of law and to connect that subject to the question of justice. It brings together essays by leading interdisciplinary legal scholars, each of which uses Cover's work as a starting point and a source. As each of the essays measures the violence of law as well as violence's impact on law and on the possibilities of justice, each provides more than a celebration or critique of Cover's work. The essays consider Cover's theorization in light of the contemporary situation of law and of the work of such thinkers as Sigmund Freud, Walter Benjamin, Emmanuel Levinas, and Jacques Derrida. Thus this book is about Cover but also about the phenomenon--violence in law--to which his work so provocatively pointed.
The essays in Law, Violence, and the Possibility of Justice call attention to the fact that law is both constituted in response to metaphorical violence and yet is a doer of literal violence; law, which is the peaceful alternative to the chaos and fury of a fictive state of nature, inscribes itself on bodies. It "deals pain and death"12 and calls the pain and death that it deals "peace." Once established, law is maintained through force; it is maintained as an apparatus of violence that disorders, disrupts, and repositions preexisting relations and practices all in the name of an allegedly superior order.13 That order demonstrates its "superiority" in ferocious displays of force and in subjugating, colonizing, "civilizing" acts of violence. Violence thus may be said to be integral to law in three senses: it provides the occasion and method for founding legal orders,14 it gives law (as a regulator of force and coercion) a reason for being, and it provides a means through which law acts.
Yet law denies the violence of its origins,15 as well as the disorder engendered by its own ordering efforts, in that law proclaims the force it deploys to be "legitimate."16 Legitimacy is thus the minimal answer to skeptical questions about the ways in which law's violence differs from the turmoil and disorder that law is allegedly brought into being to conquer. What this claim to legitimacy implies, in this minimal answer, is that law's violence is rational, controlled, and purposive, that law makes force the servant of the word.
To say that law's violence is legitimate is to juxtapose the alleged rationality of legal coercion and the irrationality of a violence that knows no law. It is to claim that law's violence is controlled through the legal articulation of values, norms, procedures, and purposes external to violence itself. It is to claim that the force of law serves common purposes and advances common aims in contrast to the anomic or sectarian savagery beyond law's boundaries.17
Yet neither this rationality nor common purpose necessarily is just. Thus, even on this account of the nature of law's violence, the question of justice is deferred. Does law's violence serve justice? Can a violent legality ever be truly just?
Justice, Drucilla Cornell argues, "is precisely what eludes our full knowledge." We cannot "grasp the Good but only follow it. The Good . . . is a star which beckons us to follow."18 While justice, or what Cornell calls the Good, is, on her account, always present to law, it is never completely realized in law.19 Or, as Judith Butler puts it, "[T]he law posits an ideality . . . that it can never realize, and . . . this failure is constitutive of existing law."20 Law exists both in the "as yet" failure to realize the Good and in the commitment to its realization. In this failure and this commitment, law is two things at once: the social organization of violence through which state power is exercised in a partisan, biased, and sometimes cruel way,21 and the arena to which citizens address themselves in the hope that law can, and will, redress the wrongs that are committed in its name.22
These thoughts remind us that running throughout the history of jurisprudence and legal theory is a concern about the connections between law and justice and about the ways law is implicated in injustice. Commentators from Plato23 to Derrida24 have called law to account in the name of justice, have asked that law provide a language of justice, and have demanded that it promote, insofar as possible, the attainment of a just society. Yet the justice described is elusive, if not illusory, and in some scholarship disconnected from the embodied practices of law, including law's violence.
In an earlier day, speaking about law and justice was not so vexing or difficult. Justice (jus meaning "law") was a legal term, pure and simple.25 At the outset, then, "justice was defined and constituted by laws which were 'given' and held to be unchanging and unchangeable."26 This ineluctable link between justice and law, as put forth by Hobbes, had the virtue of making the boundaries of justice more or less clear; but it had the considerable vice of labeling even heinous, iniquitous laws just. Justice could do no critical/reconstructive work because it was impossible to think of justice as external to law.
Apart from Hobbes,27 most natural-law thinkers have resisted this result by insisting that unjust laws are not law,28 though doing so meant the end of any easy identification of positive or human law with "real" or binding law. The alternative, embraced by perhaps a majority of those who continue to be at ease in this idiom, is to cut justice and law free from one another, to insist that justice is more than mere conformity to law,29 and to acknowledge that even unjust laws might nonetheless be law.30 Most recently, the distance between law and justice has been recognized in postmodern theorizing about ethics.31 Thus, as Douzinas and Warrington argue,
[J]ustice has the characteristic of a promissory statement. A promise states now something to be performed in the future. Being just always lies in the future, it is a promise made to the future, a pledge to look into the event and the uniqueness of each situation This promise, like all promises, does not have a present time, a time when you can say: "there it is, justice is this or that." Suspended between the law and the good . . . , justice is always still to come or always already performed.32
Severance of the definitional tie between justice and law has left both notions free (if also bound) to acquire new identities.33 In both cases, former boundaries have been enlarged. Thus, matters other than those directly regulated by law (for example, the distribution of wealth) are viewed as falling under the purview of justice, and patently unjust legal arrangements (for example, apartheid in South Africa) are accepted as lawful despite their moral repugnance.34 But as Clarence Morris notes, "Though there can be law without justice, justice is realized only through good law."35 In fact, law and legal theory continue to be shaped by concerns about justice and injustice, just as understandings of these latter notions are shaped by an awareness of law and the concerns of legal theory.36
If there is so close a link between law and justice there must, in turn, be a link between law's violence and its capacity to attain, or aspire, to justice. "A just and responsible decision," Douzinas and Warrington contend,
must both conserve and destroy, or suspend, the law enough to reinvent it and rejustify it in each case. Each case requires a unique interpretation which no rule can guarantee absolutely. But, at the same time, there is no just decision if the judge does not refer to law or rule This is the reason that we cannot say that a judgment is just. A decision . . . cannot be declared just because justice is the dislocation of the said of law by the-unrepresentable-saying of ethics.37
It seems reasonable to suggest, that justice is both present to and absent from law, present as an aspiration even as a constant reminder of the impossibility of bringing the Good into sight and translating it into legal judgment.38 As Derrida says, "From this point of view, justice would be the experience that we are not able to experience."39
These observations call to mind a variety of uncertainties and ambivalences regarding the relationship of law and justice, but they fall far short of embracing the extreme position that justice should be jettisoned from legal discourse. Rather, they remind us of the vastness of our subject, of the difficulty of constructing a single account capable of holding together its many strands, and of the space that exists to theorize anew about violence, justice, and law.
In all legal orders, law's violence threatens to undo law, to destabilize it by forcing choices between its normative aspirations and the need to maintain social order through force.40 But unfortunately, except in the utopian imagination, there is no symmetry in the relations among violence, justice, and law. Violence is never similarly endangered by the claims of justice or the operation of law. Law sits poised between the present reality of violence and the promises of a justice not yet realized. Yet this positioning of law is generally neglected in current theorizations.
Some scholars, emphasize the meaning-making, community-building character of law, and de-emphasize its coercive aspects. They liken law to literature as a resource in building what they see as humane societies.41 Others take violence as a subject of inquiry, but its connection to the nature of law remains unelaborated.42 A third trend in legal scholarship appears, at first glance, to respond to these defects by speaking about many different types of violence and theorizing about their connections to law. Under the force of critical theory and deconstruction, the use of the word "violence" proliferates; we are reminded that law is violent in many ways--in the ways it uses languages and in its representational practices,43 in the silencing of perspectives and the denial of experience,44 and in its objectifying epistemology.45 Where once it seemed quite obvious that when one talked about law's violence one would be referring to the infliction of physical force, today critical theory and deconstruction have left violence with a confusion of meaning.
The expanding idea of violence threatens to undo the subject itself. If everything is violent, then the word and the idea lose their meaning and their normative and critical bite. If the critique of violence must take on all cognitive, linguistic, and cultural practices, then it will be overwhelmed and undone. Thus the first act in the effort to explore the relations of violence, justice, and law must be a "violent" act of repositioning our language; we must treat law's violence first and foremost in its embodiment and effects on embodied subjects.
Our efforts in that direction are nourished by Cover's insistence that the meaning-making, community-building, literary quality of law should not distract us from the fact that, as he put it, "Legal interpretation takes place in a field of pain and death"46 and that "the violence [of law] is utterly real . . . a naive but immediate reality . . . unlike the psychoanalytic violence of literature or the metaphorical characterization of literary critics and philosophers."47 With these admonitions Cover invites us to imagine and construct a jurisprudence of violence and to theorize about the impact of violence on the possibility of attaining justice in law.
Law, Violence, and the Possibility of Justice takes up that invitation by critically engaging with Cover's own efforts and theories. In so doing, it considers such questions as: What does it mean to talk about the violence of law? Do high rates of incarceration, as well as increased reliance on capital punishment, indicate that law in the United States is turning more violent at a time when violence is being restrained and disciplined in legal regimes elsewhere? Does a focus on law's violence artificially separate meaning and materiality, leading us to focus on the most visible, though some would argue least important, aspect of law's apparatus of social control? Does violence express, or distort, the "essence" of law?
The first essay, Jonathan Simon's "The Vicissitudes of Law's Violence" resists talk of the "essence" of law, taking Cover to task for treating violence as "an ontological feature of law." Simon insists that a jurisprudence of violence must be attentive to the contingent and variable relationship of law and violence and to the historical contingencies that contribute to making law more or less violent. He suggests that Cover's "Violence and the Word" was written at a crucial moment in the transformation of American law. By Simon's account, Cover correctly described the movement from ideology to violence as a major modality of legal life at the end of the twentieth century. Yet while acknowledging that contribution, Simon faults Cover for producing not only a reified, but, in addition, a simplified vision of law's violence.
The analytic bite of Cover's work derives, Simon contends, from its almost exclusive focus on the dyadic relationship between judges and prisoners, those whose words authorize law's violence and those who experience it. Yet Cover leaves out juries, corrections officers, police, and others without whom law could not, and would not be, an apparatus of violence. Simon argues that a jurisprudence of violence needs to attend to the interests that sustain law's violence and that promote greater or lesser reliance on violence as a tool for ordering society. In addition, he suggests that scholars need to examine the specificity of the various technologies of violence that law deploys.
Here Simon suggests that Cover is not helpful in treating imprisonment as if it were the same as torture and in ignoring the impact that penological ideas have in shaping social and legal life. Prisons, he says, are richer and more complex, and perhaps more horrible, than one would understand from reading Cover. Most importantly, Simon argues that Cover is guilty of a kind of fatalism about law's violence, overestimating at once its centrality as well as the capacity of judges to control and discipline it. Simon shares Cover's concern for the intensification of violence in law, but calls our attention to the forces that might be brought to bear in enlisting it on the side of justice.
Just as law's violence may be a historically contingent phenomenon, the conditions necessary to sustain that violence may alter or limit the possibilities of law itself. This is the argument that Austin Sarat and Thomas Kearns develop in "Making Peace with Violence: Robert Cover on Law and Legal Theory." Like Simon, they praise Cover's insistence that jurisprudence take violence seriously and, like him, they also worry that Cover was too sanguine about the ability of law to control its own violence.
Sarat and Kearns note that Cover was both a critic of, and an apologist for, law's violence. In his critical mode, he saw the fury of state law as a barrier to the achievement of a normatively rich, legally plural community, and he urged judges to tolerate and respect the normative claims of communities whose visions of the good did not comport with the commands and requirements of state law. He argued that unless judges could articulate normative arguments more compelling than those presented by such communities, a just legal order would respect and accommodate the latter rather than violently impose itself.
Yet Sarat and Kearns contend that Cover recognized the need for law's violent impositions, and that he attended carefully to the prerequisites for law's successful use of violence. For law to achieve such success, in Cover's view, its social organization would have to find resources both to overcome and, at the same time, regulate cultural and moral inhibitions against the use of physical force. To overcome those inhibitions, strong justifications would have to be provided.
As Sarat and Kearns read the corpus of Cover's work, they find a twofold message: "Wherever possible, withhold violence; let new normative worlds flourish. But, for the sake of justice, do not forget that law's violence is sometimes necessary and that its availability is not automatic but must be carefully provided for." To do its job, then, law must be violent, but its violence must be used sparingly. It is to this injunction that Simon's essay calls attention, suggesting that law's violence is today not used sparingly. For Sarat and Kearns, like Simon, Cover seems too optimistic that this twofold admonition can be realized in fact. As they see it, the conditions necessary for the effective deployment of force--in particular the generation of strong justifications--promote excess not restraint, universalism not toleration. Attention to Cover's work, they contend, demonstrates how the imperatives of doing violence radically limit the possibilities of attaining justice through law.
It is with these possibilities that the next two essays are most concerned. Marianne Constable reads Cover's "Violence and the Word" as symptomatic of a conception of law that, in her view, precludes the aspirations to justice that, in his other essays, Cover says are necessary to law. Cover falls into this trap by equating law with positive law, the law of command. Moreover, his understanding of the relations between violence and the word reiterates distinctions between performance and speech, body and mind, which complicate efforts to attain justice in and through law.
While Cover regrets the loss of self and community, which he says is necessarily part of the project of a violent legality, Cover's "sociological account" of law, Constable argues, precludes the recovery of both. Cover seems resigned to what is lost. Unlike either Freud, who through therapy, or Foucault, who through resistance, identifies ways to carry on the struggle for justice, Cover, at least in "Violence and the Word," seems resigned to a world in which violence separates law from justice.
Constable insists that a jurisprudence of violence should not be so resigned. Cover's account of law as violence is not, she insists, shocking to modern readers. That fact marks our comfort with a conception of law that equates it with its opposite--violence and the destruction of a shared world. Unlike Sarat and Kearns, who by Constable's account, give Cover too much credit for exploring the possibility of justice in law, Constable suggests that if law is violent then we should rethink its claim to be law. Law, she argues, is the word for the establishment of a common world dedicated to pursuing justice.
The next essay, by Shaun McVeigh, Peter Rush, and Alison Young, takes up Constable's project of loosening the grip of violence on our understanding of law by situating Cover's work in relationship to the postmodern ethics of Emmanuel Levinas and Jacques Derrida. Unlike Levinas and Derrida, who think about law in relation to the "ethics of alterity," namely respect for the vocation of Other as Other, Cover, they contend, tries to connect thinking about justice to the institutional practices of law. This theorizing, what they call the "'middle' ground of legal reason," is not simply the positivism that Constable identifies. Cover's work, in their view, tries to combine elements of positivism with natural-law thinking.
Despite this effort, Cover, they argue, does not understand adequately the role of either violence or justice in legal life. Law can neither be simply violent nor simply just. Law's violence is different from brute force precisely because force and justice are together the "impossible conditions of law's possibility." The justice of law is a movement in response to the Other. Law's violence provides an opportunity for that movement.
McVeigh, Rush, and Young point to Cover's interest in messianism as highlighting the conditions for a lawful justice. Messianism is one way that keeps law open to the promise of the "yet to come." Taking this idea as their cue, they call for a jurisprudence of violence that refigures legal judgment as an ethical, as well as institutional, practice. Such a conception would hold judgment responsible to the claims of justice and not solely, or primarily, to the need to provide the conditions for the effective deployment of violence.
The last essay, by Peter Fitzpatrick, picks up McVeigh, Rush, and Young's interest in the constitutive connections of violence, justice, and law. Fitzpatrick begins by insisting on the accuracy of Cover's famous opening sentence in "Violence and the Word": "Legal interpretation takes place in a field of pain and death." For Cover, the word necessarily operates in a field of violence, but it is not itself violent. Again and again, Fitzpatrick argues, Cover draws this distinction: "There is a radical dichotomy between the social organization of law as power [as violence] and the organization of law as meaning," and he would "insist" that law as the word becomes violent only "in the context of the organized social practice of violence."48 Cover wants to prevent law from being suffused in its violent context. Why is this his aspiration? Fitzpatrick asks.
Fitzpatrick's essay suggests that an answer can be extracted obliquely from "Violence and the Word," and, somewhat more directly, from Cover's "Nomos and Narrative." Fitzpatrick, like Constable, reads Cover as saying not just that law is violent, but that there is nothing in law that is apart from violence. If law as legal interpretation routinely can be transformed into violence, how or where is law not violent? Cover is obsessed with this question, and it is one that must be central to any consideration of the complex relations of violence, law, and justice. What is crucial for Cover is how or where interpretation becomes operatively joined to action. But this search is, according to Fitzpatrick, completely frustrated. Cover finds nothing. Pure interpretation, as Cover has it, is indeterminate. And there must be the violence of active "real-world" determination for it to have existence.
Legal interpretation, then, becomes violent in its specificity. It does not, however, prove possible for Cover to produce an idea of interpretation that is simply transformable, something that would cross from the form of interpretation to the form of violent action. Law as nonviolent interpretation remains exasperatingly unconnected to the violence of active application. That lack of connection would fit neatly with Cover's being unable to find a place where the transformation from interpretation to action takes place. His efforts at this constantly locate a void. So, if we combine interpretation and action in law, are we left, Fitzpatrick asks, with law as nothingness--with law as void?
As Fitzpatrick sees it, far from being vacuous, the void to which Cover's work points is peopled with a bustling repleteness. Cover sees legal interpretation as "central" in "integrating" every "role, deed and word" within or impinging on law. To do this, law as interpretation must be responsive, adaptive, acceptant, giving of itself. Law then, Fitzpatrick argues, must be nonviolent. Law must encompass and yet be "in between" the violent, finite particularity of action and the nonviolent infinite responsiveness of interpretation (of the word) to all circumstance, to all possibility, and to justice itself. Law, Fitzpatrick suggests--contra Constable and in common with McVeigh, Rush, and Young--is the name we give to this necessary but impossible union of violence and nonviolence. It is always violent but never only violent; always oriented toward justice but never fully just.
Taken together, the essays collected in Law, Violence, and the Possibility of Justice suggest that law sits, albeit sometimes unrecognizably, between the call of justice and the imperatives of a violent ordering of the societies in which we live. Law traffics in violence, as Simon contends, sometimes more and sometimes less. Yet, as Sarat and Kearns note, the conditions that enable it to do so, tend to excess, threatening the claims of justice. Are those claims fully constitutive of law, as Constable contends, or partially and complexly so, as McVeigh, Rush, and Young argue? In either instance, contemporary jurisprudence should take up the challenge of conceptualizing and mapping the ways that, as Fitzpatrick suggests, law, at one and the same moment, can be both violent and nonviolent, unjust and just. The work presented in this book, precisely through its extended engagement with and critique of Cover, takes one important step in that direction.
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