Law's Violence

Time, Inequality, and Law’s Violence

Time, Inequality, and Law's Violence Douglas Hay Describing the law as word may be to ignore, as Robert Cover pointed out in one of his last essays, the law as deed and the necessary bond between the two. His dominant image was the pyramid of carefully constructed state violence, at the apogee of which sits the judge. Judicial authority is transmitted down through the inferior layers of the administration of justice, the wardens, bailiffs, executioners, and others, and Cover appeared to celebrate, in some degree, the judge's command of violence. That the deed of the executioner waits on his word is a triumph, of a kind, of social organization: law's power and law's legitimacy both rely on that articulated hierarchy of violent domination, obedient to command. On it depends the curtailment of popular violence, the subordination of private revenge to the ordered and justified violence of the state; on it depends the rationality of that violence. But to ignore the violence is to ignore a central (the central?) fact about law, its distinctiveness as discursive practice.1 Cover's image of the pyramid was brilliantly apposite to his critique of accounts that reduce law to interpretive gambits between wordsmiths. The sentence of the judge is meaningless without the 1. Robert M. Cover, "Violence and the Word," Yale Law Journal 95 (1986): 1601. See also Cover's related article, "The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role," Georgia Law Review 20 (1986): 815. I had the honor to know Bob Cover slightly during a year spent at Yale Law School in 1979-80, and, like all who knew him and read his work, I experienced a great sense of loss at his death. I am grateful to John Beattie, Harry Glasbeek, Reuben Hasson, and Michael Mandel, who made critical suggestions or provided contemporary comparisons . On the roots of U.S. preoccupation with the judicial control of death sentences, see n. 43, below. LAW'S VIOLENCE 142 ._---------------------------wardens and the hangmen. Of course, we can, and increasingly some people do, choose to describe even executions as focal occasions of shared social understandings, understandings even shared by the man or woman in unimaginable pain.2 To do so, however, is somehow a distancing rather than an understanding, a false equation. Cover, a man who had experienced imprisonment in the civil rights movement, found accounts of the law that reduce it to shared (or even contested) interpretive structures to be simply wrong. He explicitly protested against "grotesque" readings of the apparently consensual participation of defendants as signifying a shared understanding of the event. In the shadow of the prison, the accused (and even more the convict) is governed by the fear of pain, the context of massive, violent domination.3 The relationship of executioner and capital convict , or torturer and victim, or judge and accused, while intimate, is highly unlikely to be one of shared discursive practice of any kind, let alone a solidary one. Law, and especially criminal law, seeks to prevent the victim of law from generating a public version of his or her life's argument, and law is usually sucessful. The public version is" almost always, law's word, and law's word is bounded by law's silences, a point to which I shall return. The pyramid, then, is a compelling metaphor of hierarchical organization and also of the crushing weight of law. In other ways, however, it would be an inadequate image for exploring law's violence. As a description of the social significance of that violence it is teleological in its implication of a blueprint, formalist in its apparent assumption that the hierarchy of state violence has the same contours as the hierarchy of legal institutions, especially in the degree to which 2. Richard Andrews does so in an essay in a forthcoming collection he edits: the public agonies of the question prealable are cast as a redemptive mass, the invention of the humane Dr. Guillotine as the instrument that robs the condemned of dignity. 3. Cover "Violence," 1607. If I understand Carol J. Greenhouse ("Reading Violence ," in this volume), she reads him to say that violence does not inform texts, and that reading a text is a sharing of common understandings. Certainly, the latter view appears to be that of some of those whom Cover criticizes, but I do not think it is his. And it is clear, as to the former, that violence shapes large...