Law's Violence

Making Peace with Violence: Robert Cover on Law and Legal Theory

Making Peace with Violence: Robert Cover on Law and Legal Theory Austin Sarat and Thomas R. Kearns JlViolence," Walter Benjamin argues, Jlviolence crowned by fate, is the origin of law.... "1 Violence is a perverse utopia of action without form and instinct without deliberation2 from which all law-natural or positive-is the fall.3 Absent the threat, prospect, or possibility of disorder and aggression in the worlds that all of us inhabit, law, as we know it, would be unnecessary.4 And what is law, after all, We are grateful for the helpful comments of Lawrence Douglas. Portions of this essay appear in revised form in Narrative, Violence, and the Law: Essays of Robert Cover, edited by Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1992). 1. Walter Benjamin, "Critique of Violence," in Reflections, trans. Edmund Jepchott (New York: Harcourt, Brace, Jovanovich, 1978), 286. For an important commentary on Benjamin and the search for the origin of law, see Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority,'" Cardozo Law Review 11 (1990): 919. 2. See Nietzsche, The Birth of Tragedy and The Genealogy of Morals, trans. Francis Golffing (Garden City, N.Y.: Doubleday, 1956); see also Benjamin, "Critique ," 277. 3. As Friedrich Nietzsche puts it, I take bad conscience to be a deep-seated malady to which man succumbed under the pressure of the most profound transformation he ever underwentthe one that made him once and for all a sociable and pacific creature. Just as happened in the case of those sea creatures who were forced to become land animals in order to survive, these semi-animals, happily adapted to the wilderness , to war, to free roaming, and adventure, were forced to change their nature. (Nietzsche, Birth of Tragedy, 217) Benjamin also suggests that, while natural law regards violence as a product of nature, positive law sees violence as a product of history (Benjamin, "Critique," 278). 4. See Thomas Hobbes, Leviathan, ed. C. B. MacPherson (New York: Penguin 211 2:12 LAW'S VIOLENCE but a partially realized promise to overcome disorder and aggression,s tame and domesticate force, and subject action and instinct to reason and will?6 Violence stands before the law, unruly; it defies the law to protect us from its cruelest consequences.7 It demands that law respond in kind, and requires law to traffic in its own brand of force and coercion .8 It is thus that point of departure from which complete departure is impossible.9 It is the task of law and of much legal theory to insist, nonetheless, on the difference between the force that law uses and the unruly force beyond its borders.10 Legal theorists name the superiority of the former by calling it legitimate.n In that naming is the Books, 1986). As Mark Taylor argues, IIForce is comprehended in law. Since the structure of force is isomorphic with the structure of law, each perfectly mirrors the other" (Taylor "Desire of Law/Law of Desire," Cardozo Law Review 11 [1990]: 1270). 5. Laws, Paul De Man argues, are future-oriented and prospective; their illocutionary mode is that of the promise. On the other hand, every promise assumes a date at which the promise is made and without which it would have no validity; laws are promissory notes in which the present of the promise is always a past with regard to its realization. (Paul de Man, Allegories of Reading: Figural Language in Rousseau, Nietzsche, Rilke and Proust [New Haven: Yale University Press, 1979], 273) 6. In the well-known case of United States v. Holmes, this promise is described in the following terms: "The law of nature forms part of the municipal law; and in a proper case ... , homicide is justifiable, not because the municipal law is subverted by the law of nature, but because no rule of the municipal law makes homicide in such cases criminal" (26 Fed. Cas. 360 [C.E.D. Pa. 1842], reprinted in Joseph Goldstein, Alan Dershowitz, and Richard Schwartz, Criminal Law: Theory and Process [New York: Free Press, 1974], 1028). Yet the promise is at best partially realized because law itself is a disordering force in social relations. See Peter Fitzpatrick, IIViolence and Legal Subjection" (University of Kent, 1991, Photocopy). 7. For a fuller description of how the image of a defiant, unruly violence works in legal theory, see Austin Sarat and Thomas R. Kearns, "A Journey Through Forgetting : Toward a Jurisprudence of Violence," in...