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The Violence Of Legal Acts Essay, Research Paper
In order to understand the violence of a judge’s interpretive act, we must also understand the
way in which it is transformed into a violent deed despite general resistance to such deeds; in order to comprehend the meaning of this violent deed, we must also
understand in what way the judge’s interpretive act authorizes and legitimates it. … The best known study and theory of social codes and their role in overcoming
normal inhibitions against inflicting pain through violence is Milgram’s Obedience to Authority. … Now the question arises, which is the true act of legal
interpretation? The hypothetical understanding of a single mind placed in the admittedly hypothetical position of being able to render final judgments
sitting alone? Or the actual products of judges acting under the constraint of potential group oversight of all decisions that are to be made real through
collective violence? The single decision of a hypothetical Hercules is likely to be more articulate and coherent than the collective decision of many judges
who may make compromises to arrive at that decision. …
[*1601] I. INTRODUCTION: THE VIOLENCE OF LEGAL ACTS
Legal interpretation n1 takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence
upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in
law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave
behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be
properly understood apart from one another. This much is obvious, though the growing literature that argues for the centrality of interpretive practices in law blithely
ignores it. n2
[*1602] Taken by itself, the word “interpretation” may be misleading. “Interpretation” suggests a social construction of an interpersonal reality through language. But
pain and death have quite other implications. Indeed, pain and death destroy the world that “interpretation” calls up. That one’s ability to construct interpersonal
realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. Elaine
Scarry’s brilliant analysis of pain makes this point:
[F]or the person, in pain, so incontestably and unnegotiably present is it that “having pain” may come to be thought of as the most vibrant example of what it is to
“have certainty,” while for the other person it is so elusive that hearing about pain may exist as the primary model of what it is “to have doubt.” Thus pain comes
unshareably into our midst as at once that which cannot be denied and that which cannot be confirmed. Whatever pain achieves, it achieves in part through its
unshareability, and it ensures this unshareability [*1603] in part through its resistance to language . . . Prolonged pain does not simply resist language but actively
destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned. n3
The deliberate infliction of pain in order to destroy the victim’s normaltive world and capacity to create shared realities we call torture. The interrogation that is part of
torture, Scarry points out, is rarely designed to elicit information. More commonly, the torturer’s interrogation is designed to demonstrate the end of the normative
world of the victim — the end of what the victim values, the end of the bonds that constitute the community in which the values are grounded. Scarry thus concludes
that “in compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying.” n4 That is why torturers
almost always require betrayal — a demonstration that the victim’s intangible normative world has been crushed by the material reality of pain and its extension, fear.
n5 The torturer and victim do end up creating their own terrible “world,” but this world derives its meaning from being imposed upon the ashes of another. n6 The
logic of that world is complete domination, though the objective may never be realized.
Whenever the normative world of a community survives fear, pain, and death in their more extreme forms, that very survival is understood to be literally miraculous
both by those who have experienced and by those who vividly imagine or recreate the suffering. Thus, of the suffering of sainted Catholic martyrs it was written:
We must include also . . . the deeds of the saints in which their [*1604] triumph blazed forth through the many forms of torture that they underwent and their
marvelous confession of the faith. For what Catholic can doubt that they suffered more than is possible for human beings to bear, and did not endure this by their
own strength, but by the grace and help of God? n7
And Jews, each year on Yom Kippur, remember —
Rabbi Akiba . . . chose to continue teaching in spite of the decree [of the Romans forbidding it]. When they led him to the executioner, it was time for reciting the
Sh’ma. With iron combs they scraped away his skin as he recited Sh’ma Yisrael, freely accepting the yoke of God’s Kingship. “Even now?” his disciples asked He
replied: “All my life I have been troubled by a verse: ‘Love the Lord your God with all your heart and with all your soul,’ which means even if He take your life. I
often wondered if I would ever fulfill that obligation. And now I can.” He left the world while uttering, “The Lord is One.” n8
Martyrdom, for all its strangeness to the secular world of contemporary American Law, is a proper starting place for understanding the nature of legal interpretation.
Precisely because it is so extreme a phenomenon, martyrdom helps us see what is present in lesser degree whenever interpretation is joined with the practice of
violent domination. Martyrs insist in the face of overwhelming force that if there is to be continuing life, it will not be on the terms of the tyrant’s law. Law is the
projection of an imagined future upon reality. Martyrs require that any future they possess will be on the terms of the law to which they are committed (God’s law).
And the miracle of the suffering of the martyrs is their insistence on the law to which they are committed, even in the face of world-destroying pain. n9 Their triumph
– which may well be partly imaginary — is the imagined triumph of the normative universe — of Torah, Nomos, — over [*1605] the material world of death and
pain. n10 Martyrdom is an extreme form of resistance to domination. As such it reminds us that the normative world-building which constitutes “Law” is never just a
mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme and
repulsive form of the organized violence of institutions. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh. As long as that is
so, the interpretive commitments of a community which resists official law must also be realized in the fresh, even if it be the flesh of its own adherents.
Martyrdom is not the only possible response of a group that has failed to adjust to or accept domination while sharing a physical space. Rebellion and revolution are
alternative responses when conditions make such acts feasible and when there is a willingness not only to die but also to kill for an understanding of the normative
future that differs from that of the dominating power. n11
Our own constitutional history begins with such an act of rebellion. The act was, in form, an essay in constitutional interpretation affirming the right of political
independence from Great Britain:
We therefore the representatives of the United States of America in General Congress assembled, appealing to the supreme judge of the world for the rectitude of
our intentions, do in the name, and by the authority of the good people of these colonies, solemnly publish and declare that these United Colonies are and of right
ought to be free and independent states; that they are absolved from all allegiance to the British crown, and that all political connection between them and the State of
Great Britain is, and ought to be, totally dissolved. n12
[*1606] But this interpretive act also incorporated an awareness of the risk of pain and death that attends so momentous an interpretive occasion:
We mutually pledge to each other our lives, our fortunes and our sacred honour. n13
Life, fortune, and sacred honour were, of course, precisely the price that would have been exacted from the conspirators were their act unsuccessful. We too often
forget that the leaders of the rebellion had certainly committed treason from the English constitutional perspective. And conviction of treason carried with it a horrible
and degrading death, forfeiture of estate, and corruption of the blood. n14 Great issues of constitutional interpretation that reflect fundamental questions of political
allegiance — the American Revolution, the secession of the States of the Confederacy, or the uprising of the Plains Indians — clearly carry the seeds of violence (pain
and death) at least from the moment that the understanding of the political texts becomes embedded in the institutional capacity to take collective action. But it is
precisely this embedding of an understanding of political text in institutional modes of action that distiinguishes legal interpretation from the interpretation of literature,
from political philosophy, and from constitutional criticism. n15 Legal interpretation is either played [*1607] out on the field of pain and death or it is something less
(or more) than law.
Revolutionary constitutional understandings are commonly staked in blood. In them, the violence of the law takes its most blatant form. But the relationship between
legal interpretation and the infliction of pain remains operative even in the most routine of legal acts. The act of sentencing a convicted defendant is among these most
routine of acts performed by judges. n16 Yet it is immensely revealing of the way in which interpretation is distinctively shaped by violence. First, examine the event
from the perspective of the defendant. The defendant’s world is threatened. But he sits, usually quietly, as if engaged in a civil discourse. If convicted, the defendant
customarily walks — escorted — to prolonged confinement, usually without significant disturbance to the civil appearance of the event. It is, of course, grotesque to
assume that the civil facade is “voluntary” except in the sense that it represents the defendant’s autonomous recognition of the overwhelming array of violence ranged
against him, and of the hopelessness of resistance or outcry. n17
There are societies in which contrition or shame control defendants’ behavior to a greater extent than does violence. Such societies require and have received their
own distinctive form of analysis. n18 But I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be
dragged or beaten into prison if they do not walk. They do not organize force against being dragged because [*1608] they know that if they wage this kind of battle
they will lose — very possibly lose their lives.
If I have exhibited some sense of sympathy for the victims of this violence it is misleading. Very often the balance of terror in this regard is just as I would want it. But
I do not wish us to pretend that we talk our prisoners into jail. The “interpretations” or “conversations” that are the preconditions for violent incarceration are
themselves implements of violence. To obscure this fact is precisely analogous to ignoring the background screams or visible instruments of torture in an inquisitor’s
interrogation. The experience of the prisoner is, from the outset, an experience of being violently dominated, and it is colored from the beginning by the fear of being
violently treated. n19
The violence of the act of sentencing is most obvious when observed from the defendant’s perspective. Therefore, any account which seeks to downplay the violence
or elevate the interpretive character or meaning of the event within a community of shared values will tend to ignore the prisoner or defendant and focus upon the
judge and the judicial interpretive act. Beginning with broad interpretive categories such as “blame” or “punishment,” meaning is created for the event which justifies
the judge to herself and to others with respect to her role in the acts of violence. I do not wish to downplay the significance of such ideological functions of law. But
the function of ideology is much more significant in justifying an order to those who principally benefit from it and who must defend it than it is in hiding the nature of
the order from those who are its victims.
The ideology of punishment is not, of course, the exclusive property of judges. The concept operates in the general culture and is intelligible to and shared by
prisoners, criminals and revolutionaries as well as judges. Why, then, should we not conclude that interpretation is the master concept of law, that the interpretive
work of understanding “punishment” may be seen as mediating or making sense of the opposing acts and experiences of judge and defendant in the criminal trial?
Naturally, one who is to be punished may have to be coerced. And punishment, if it is “just,” supposedly legitimates the coercion or violence applied. The ideology of
punishment may, then, operate successfully to justify our practices of criminal law to ourselves and, possibly, even to those who are or may come to be “punished”
by the law.
There is, however, a fundamental difference between the way in which “punishment” operates as an ideology in popular or professional literature, in political debate,
or in general discourse, and the way in which it [*1609] operates in the context of the legal acts of trial, imposition of sentence, and execution. For as the judge
interprets, using the concept of punishment, she also acts — through others — to restrain, hurt, render helpless, even kill the prisoner. Thus, any commonality of
interpretation that may or may not be achieved is one that has its common meaning destroyed by the divergent experiences that constitute it. Just as the torturer and
victim achieve a “shared” world only by virtue of their diametrically opposed experiences, so the judge and prisoner understand “punishment” through their
diametrically opposed experiences of the punishing act. It is ultimately irrelevant whether the torturer and his victim share a common theoretical view on the
justifications for torture — outside the torture room. They still have come to the confession through destroying in the one case and through having been destroyed in
the other. Similarly, whether or not the judge and prisoner share the same philosophy of punishment, they arrive at the particular act of punishment having dominated
and having been dominated with violence, respectively.
II. THE ACTS OF JUDGES: INTERPRETATIONS, DEEDS AND ROLES
We begin, then, not with what the judges say, but with what they do.
The judges deal pain and death.
That is not all that they do. Perhaps that is not what they usually do. But they do deal death, and pain. From John Winthrop through Warren Burger they have sat
atop a pyramid of violence, dealing . . . .
In this they are different from poets, from critics, from artists. It will not do to insist on the violence of strong poetry, and strong poets. Even the violence of weak
judges is utterly real — a naive but immediate reality, in need of no interpretation, no critic to reveal it. n20 Every prisoner displays [*1610] its mark. Whether or
not the violence of judges is justified is not now the point — only that it exists in fact and differs from the violence that exists in literature or in the metaphoric
characterizations of literary critics and philosophers. I have written elsewhere that judges of the state are jurispathic — that they kill the diverse legal traditions that
compete with the State. n21 Here, however, I am not writing of the jurispathic quality of the office, but of its homicidal potential. n22
The dual emphasis on the acts of judges and on the violence of these acts leads to consideration of three characteristics of the interpretive dimension of judicial
behavior. Legal interpretation is (1) a practical activity, (2) designed to generate credible threats and actual deeds of violence, (3) in an effective way. In order to
explore the unseverable connection between legal interpretation and violence, each of these three elements must be examined in turn.
A. Legal Interpretation as a Practical Activity
Legal interpretation is a form of practical wisdom. n23 At its best it seeks to “impose meaning on the institution . . . and then to restructure it in the light of that
meaning.” n24 There is, however, a persistent chasm between [*1611] thought and action. It is one thing to understand what ought to be done, quite another thing
to do it. Doing entails an act of will and may require courage and perseverance. In the case of an individual’s actions, we commonly think such qualities are functions
of motivation, character, or psychology.
Legal interpretation is practical activity in quite another sense, however. The judicial word is a mandate for the deeds of others. Were that not the case, the practical
objectives of the deliberative process could be achieved, if at all, only through more indirect and risky means. The context of a judicial utterance is institutional
behavior in which others, occupying preexisting roles, can be expected to act, to implement, or otherwise to respond in a specified way to the judge’s interpretation.
Thus, the institutional context ties the language act of practical understanding to the physical acts of others in a predictable, though not logically necessary, way. n25
These interpretations, then, are not only “practical,” they are, themselves, practices.
[*1612] Formally, on both a normative and descriptive level, there are or may be rules and principles which describe the relationship between the interpretive acts
of judges and the deeds which may be expected to follow from them. These rules and principles are what H.L.A. Hart called “secondary rules.” n26 At least some
secondary rules and principles identify the terms of cooperation between interpretation specialists and other actors in a social organization. Prescriptive secondary
materials purport to set the norms for what those relations ought to be; descriptive secondary rules and principles would generate an accurate prediction of what the
terms of cooperation actually will be. Of course, in any given system there need be no particular degree of correspondence between these two sets of rules.
Secondary rules and principles provide the template for transforming language into action, word into deed. As such they occupy a critical place in the analysis of legal
interpretation proposed here. The legal philosopher may hold up to us a model of a hypothetical judge who is able to achieve a Herculean understanding of the full
body of legal and social texts relevant to a particular case, and from this understanding to arrive at the single legally correct decision. n27 But that mental interpretive
act cannot give itself effect. The practice of interpretation requires an understanding of what others will do with such a judicial utterance and, in many instances, an
adjustment to that understanding, regardless of how misguided one may think the lkely institutional response will be. Failing this, the interpreter sacrifices the
connection between understanding what ought to be done and the deed, itself. But bridging the chasm between thought and action in the legal system is never simply
a matter of will. The gap between understanding and action roughly corresponds to differences in institutional roles and to the division of labor and of responsibility
that these roles represent. Thus, what may be described as a problem of will with respect to the individual becomes, in an institutional context, primarily a problem in
social organization. Elsewhere I have labeled the specialized understanding of this relation, between the interpretation of the judge and the social organization
required to transform it into a reality, [*1613] the hermeneutic of the texts of jurisdiction. n28 This specialized understanding must lie at the heart of official judging.
B. Interpretation within a System Designed to Generate Violence
The gulf between thought and action widens wherever serious violence is at issue, because for most of us, evolutionary, psychological, cultural and moral
considerations inhibit the infliction of pain on other people. Of course, these constraints are neither absolute nor universal. There are some deviant individuals whose
behavior is inconsistent with such inhibitions. n29 Furthermore, almost all people are fascinated and attracted by violence, even though they are at the same time
repelled by it. n30 Finally, and most important for our purposes, in almost all people social cues may overcome or suppress the revulsion to violence under certain
circumstances. n31 These limitations do not deny the force of inhibitions against violence. Indeed, both together create the conditions without which law would either
be unnecessary or impossible. Were the inhibition against violence perfect, law would be unnecessary; were it not capable of being overcome through social signals,
law would not be possible.
Because legal interpretation is as a practice incomplete without violence — because it depends upon the social practice of violence for its efficacy — it must be
related in a strong way to the cues that operate to bypass or suppress the psycho-social mechanisms that usually inhibit people’s actions causing pain and death.
Interpretations which occasion violence are distinct from the violent acts they occasion. When judges interpret the law in an official context, we expect a close
relationship to be revealed or established between their words and the acts that they mandate. That is, we expect the judge’s words to serve as virtual triggers for
action. We would not, for example, expect contemplations or deliberations [*1614] on the part of jailers and wardens to interfere with the action authorized by
judicial words. But such a routinization of violent behavior requires a form of organization that operates simultaneously in the domains of action and interpretation. In
order to understand the violence of a judge’s interpretive act, we must also understand the way in which it is transformed into a violent deed despite general
resistance to such deeds; in order to comprehend the meaning of this violent deed, we must also understand in what way the judge’s interpretive act authorizes and
While it is hardly possible to suggest a comprehensive review of the possible ways in which the organization of the legal system operates to facilitate overcoming
inhibitions against intraspecific violence, I do wish to point to some fof the social codes which limit these inhibitions. Here the literature of social psychology is helpful.
The best known study and theory of social codes and their role in overcoming normal inhibitions against inflicting pain through violence is Milgram’s Obedience to
Authority. n32 In the Milgram experiments, subjects administered what they thought were actually painful electric shocks to persons who they thought were the
experimental subjects. This was done under the direction or orders of supposed experimenters. The true experimental subjects — those who administered the shocks
– showed a disturbingly high level of compliance with authority figures despite the apparent pain evinced by the false experimental subjects. From the results of his
experiment, Milgram has formulated a theory that is in some respects incomplete. The most developed part of the theory relies heavily on the distinction he draws
between acting in an “autonomous” state and acting in an “agentic” state. Milgram posits the evolution of a human disposition to act “agentically” within hierarchies,
since the members of organized hierarchies were traditionally more likely to survive than were members of less organized social groups. Concurrently, the
“conscience” or “superego” evolved in response to the need for autonomous behavior or judgment given the evolution of social structures. It is this autonomous
behavior which inhibits the infliction of pain on others. But the regulators for individual autonomous behavior had to be capable of being suppressed or subordinated
to the characteristics of agentic behavior when individuals acted within an hierarchical structure. n33 In addition to his theories of species-specific evolutionary
mechanisms, Milgram also points to the individual-specific and culture-specific forms of learning and conditioning for agentic behavior within hierarchical structures.
Thus, in Milgram’s explanation of the “agentic state,” “institutional systems of authority” play a key role in providing the requisite [*1615] cues for causing the shift
from autonomous behavior to the agentic behavior cybernetically required to make hierarchies work. n34 According to Milgram, the cues for overcoming
autonomous behavior or “conscience” consist of the institutionally sanctioned commands, orders, or signals of institutionally legitimated authorities characteristic of
human hierarchical organization. n35
There are, of course, a variety of alternative ways to conceptualize the facilitation of violence through institutional roles. One could point, for example, to the theory
that human beings have a natural tendency, an instinctual drive, to aggressin, and that a variety of learned behaviors keep aggression within bounds. The institutionally
specified occasions for violence may then be seen as outlets for the aggression that we ordinarily would seek to exercise but for the restraints. Some scholars have,
from a psychoanalytic perspective, hypothesized that formal structures for the perpetration of violence permit many individuals to deny themselves the fulfillment of
aggressive wishes by “delegating” the violent activity to others. n36
There is an enormous difference between Milgram’s theory of institutionalized violence and Anna Freud’s or Konrad Lorenz’s, and between the assumptions about
human nature which inform them. But common to all of these theories is a behavioral observation in need of explanation. Persons who act within social organizations
that exercise authority act violently without experiencing the normal inhibitions or the normal degree of inhibition which regulates the behavior of those who act
autonomously. When judges interpret, they trigger agentic behavior within just such an institution or social organization. On one level judges may appear to be, and
may in fact be, offering their understanding of the normative world to their intended audience. But on another level they are engaging a violent mechanism through
which a substantial part of their audience loses its capacity to think and act autonomously.
[*1616] C. Interpretation and the Effective Organization of Violence
A third factor separates the authorization of violence as a deliberative, interpretive exercise from the deed. Deeds of violence are rarely suffered by the victim apart
from a setting of domination. n37 That setting may be manifestly coercive and violent or it may be the product of a history of violence which conditions the
expectations of the actors. The imposition of violence depends upon the satisfaction of the social preconditions for its effectiveness. Few of us are courageous or
foolhardy enough to act violently in an uncompromisingly principled fashion without attention to the likely responses from those upon whom we would impose our
If legal interpretation entails action in a field of pain and death, we must expect, therefore, to find in the act of interpretation attention to the conditions of effective
domination. To the extent that effective domination is not present, either our understanding of the law will be adjusted so that it will require only that which can
reasonably be expected from people in conditions of reprisal, resistance and revenge, n39 or there will be a crisis of [*1617] credibility. The law may come over
time to bear only an uncertain relation to the institutionally implemented deeds it authorizes. Some systems, especially religious ones, can perpetuate and even profit
from a dichotomy between an ideal law and a realizable one. n40 But such a dichotomy has immense implications if built into the law. In our own secular legal
system, one must assume this to be an undesirable development.
Legal Interpretation as Bonded Interpretation
Legal interpretation, therefore, can never be “free;” it can never be the function of an understanding of the text or word alone. Nor can it be a simple function of what
the interpreter conceives to be merely a reading of the “social text,” a reading of all relevant social data. Legal interpretation must be capabl
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