Law's Violence

Private Violence as Moral Action: The Law as Inspiration and Example

Private Violence as Moral Action: The Law as Inspiration and Example Robert Weisberg Violence and Meaning Making In generating a Jljurisprudence of violence," scholars tend to focus on the question of how law uses violence, and, in so doing, how law sustains its legitimacy by purporting to differentiate itself from violence .I Profs. Sarat and Kearns have posed a more specific question for those hoping to develop this jurisprudence-namely, how law, in its violence, impresses itself on its subjects, through moral imprimatur or pragmatic threat.2 I hope not to dodge those issues-in fact, I hope to address them-in the somewhat oblique approach I would like to take to the question. Namely, I want to examine how the Jlnonlegal" violence we suffer in the world-the violence perpetrated by private individuals against each other-represents an act of lawmaking -or law enforcement for the perpetrator, and how it often serves as the operative law of his or her culture. The Anxiety over Law and Violence Anglo-American law has traditionally suffered a serious identity crisis over its awkward relation to violence. Indeed, one of the major Research for this essay was supported by the Stanford Legal Research Fund, made possible by a bequest from Ira S. Lillick and by gifts from other friends of the Stanford Law School. 1. See Karl Olivecrona, Law As Fact (London: Oxford University Press, 1939). 2. See Austin Sarat and Thomas R. Kearns, "A Journey Through Forgetting: Toward a Jurisprudence of Violence," in The Fate of Law, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1991), 209-73. 175 LAW'S VIOLENCE themes in our jurisprudence has been the relationship between statesanctioned physical force and what we normally call violencepresumably private, unjustified, gratuitous physical force. Our system assumes that the law is to hold a monopoly on violence, but this is a monopoly viewed as both necessary and discomfiting. It is necessary because it is viewed as the alternative to something worseunrestrained private vengeance-and it is discomfiting because those who make and enforce the law would like to believe that, though they may be required to use force, force is somehow categorically distinguishable from violence. Violence is naturally imputed away to the other-to the image of a separate criminal class distinct from normal humanity. Throughout our legal history, we observe the complex ways the law rationalizes itself out of this dilemma, while nevertheless at times punishing, permitting, accommodating, encouraging, or inspiring the very private violence it purports to suppress or replace. The first edition of Law as Fact, the great early legal realist work by Karl ()livecrona, is indeed a deft critique of the classic rationalizations of this problem. Olivecrona coolly refutes the traditional efforts to finesse the problem of the role of force in law, thus demanding that we face up to our anxiety honestly. Olivecrona calls it a IIfatal illusion" to think that violence is alien to the law just because it is contingent, in the background, just as it is false to distinguish law from the slightly less malign concept of force.3 Any effort to distinguish the commands of law from the commonsense notion of forceful violence is a residue of hoary metaphysical illusions about law. Law, for this realist, is a social fact, not a Platonic cloud, and, as such, it includes violence. Nor can we distinguish law from force by holding that law is inherently independent of force and merely borrows the instrumentality of force as a means at hand to achieve certain goals4 Rather, law is precisely a body of rules about force-rules that help shape ideas about rightand it is a use of force that must be monopolized by an organization.5 As Olivecrona probably would have predicted, the efforts of modern jurisprudence to finesse or deny the role of violence have not ceased. One major cause has been a new version of the debate 3. Olivecrona, Law As Fact, 126. 4. Olivecrona, Law As Fact, 133-34. 5. Olivecrona, Law As Fact, 169-72. PRIVATE VIOLENCE AS MORAL ACTION 177 between those who say violence is essential to law and those who say it is irrelevant or tangential. Most notably, the liberal, postrealist tradition of H. L. A. Hart and Ronald Dworkin has tried to identify the legitimate source of forceful lawmaking in principles that are justifiable without reference to physical might. As...