Law's Violence

Reading Violence

Reading Violence Carol]. Greenhouse Words and Violence While, for the most part, evolutionary approaches to the anthropology of law have dropped from a long period of fashion, one of their central premises remains alive in new venues. From Sir Henry Maine's interpretation of the transition from status to contract in Roman law, through Durkheim's more tentative essay on the diffuse progress from mechanical to organic solidarity, and early anthropological classics on so-called primitive law-the roots of sociolegal scholars' concerns with law have been consistently nourished by the distinction they draw between social orders based on personal power and force and those "superior," "more advanced," or "more rational" orders based on the authority of words.! I am grateful to the organizers and sponsors of the Law's Violence series at Amherst College for their invitation to participate, and for their generous hospitality while I was in Amherst. Students and colleagues at the colloquium provided constructive comments on the original version of this essay. For their individual readings and suggestions, I am particularly indebted to Alfred C. Aman, Jr., Brenda Bright, Kristin Bumiller, Rosemary Coomb, Thomas Dumm, Lawrence Douglas, Thomas Kearns, and Austin Sarat. That we each had a different reading of Cover's essay made this project an exciting and rewarding collegial enterprise for me. 1. Sir Henry Maine, Ancient Law, 10th ed. (London: John Murray, 1906); Emile Durkheim, The Division of Labor in Society (New York: Free Press, 1964); Max Weber, Economy and Society, ed. G. Roth and C. Wittich (Berkeley: University of California Press, 1978). Formative examples of anthropological writings on IJprimitive" law include Ralph Barton, The Ifugao (Berkeley: University of California Press, 1969); Bronislaw Malinowski, Crime and Custom in Savage Society (Paterson, N.J.: Littlefield , Adams, 1962); for synthetic assessments of early writing in legal anthropology , see also E. Adamson Hoebel, The Law of Primitive Man (Cambridge, Mass.: Harvard University Press, 1954); Leopold Pospisil, Anthropology of Law: A Comparative Theory (New York: Harper and Row, 1971). 1°5 106 LAW'S VIOLENCE This is not the place to detail the history of the literal concept of lithe primitive" in ethnology and jurisprudence, nor its dismantling. Suffice it to say that the original evolutionary rationale for crosscultural empirical sociolegal research organized around the distinction between force and words is now largely abandoned, but the distinction remains. Detached from its evolutionary matrix, the hierarchical distinction between force and texts as alternative normative bases still has a durable career. That distinction provides some of the basic meanings of law as a. social force, for both social scientists and others. For example, Montesquieu's eighteenth-century fictional Troglodytes (who discover the inefficiencies of a world run by force and so invent social contracts) and Posner's imaginary society based on vengeance are virtually identical creations.2 This is not because the later one is a copy, but because both are substantiated by the cultural premise that violence and law form separate legal foundations, law representing a categorical advancement over force. Some of the positive aspirations implicit in this view of law's IIprogress" toward textuality can be found in White's conceptualization of law as IIculture:' [T]hrough its forms of language and of life the law constitutes a world of meaning and action: it creates a set of actors and speakers and offers them possibilities for meaningful speech and action that would not otherwise exist; in so doing it establishes and maintains a community, defined by its practices of language.3 Such examples illustrate one way in which the premise of the polarity between force and texts as alternative (even rival) bases of law forges a link between the Enlightenment and its modern heirs. The premise of a polarity between words and force continues to shape the language and traditions of research practice in sociolegal scholarship. For example, modern cross-cultural research has lent support to the view (sometimes as a premise, sometimes as a finding) 2. Montesquieu, Persian Letters (New York: Penguin Books, 1973); Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988), 27-33. 3. James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press), xiii-xiv. READING VIOLENCE 1°7 that law displaces violence when law is successfully institutionalized.4 Even where this idea is not proferred as such, its substance is encoded in familiar language. For example, anyone...