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Violence and the Word
Robert M. Cover
Yale Law School
I. INTRODUCTION: THE VIOLENCE OF LEGAL ACTS
Legal interpretation' takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the im- position of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his chil- dren, 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.2
t Chancellor Kent Professor of Law and Legal History, Yale University.
There are always legends of those who came first, who called things by their rightnames and thus founded the culture of meaning into which we latecomers are born. Charles Black has been such a legend, striding across the landscape of law naming things, speaking "with authority." And we who come after him are eternally grateful.
I wish to thank Harlon Dalton, Susan Koniak and Harry Wellington for having read and com- mented upon drafts of this essay. Some of the ideas in this essay were developed earlier, in the Brown Lecture which I delivered at the Georgia School of Law Conference on Interpretation in March, 1986. I am grateful to Milner Ball, Avi Soifer, Richard Weisberg and James Boyd White for com- ments made in response to that lecture which have helped me in reworking the ideas here.
I am particularly grateful to my summer research assistant, Tracy Fessenden, for research, editorial and substantive assistance of the highest order.
I. I have used the term "legal interpretation" throughout this essay, though my argument is di- rected principally to the interpretive acts of judges. To this specifically judicial interpretation my analysis of institutional action applies with special force. Nonetheless, I believe the more general term "legal interpretation" is warranted, for it is my position that the violence which judges deploy as instruments of a modern nation-state necessarily engages anyone who interprets the law in a course of conduct that entails either the perpetration or the suffering of this violence.
2. There has been a recent explosion of legal scholarship placing interpretation at the crux of the 1601
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Taken by itself, the word "interpretation" may be misleading. "Inter- pretation" suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. In- deed, 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 bril- liant 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 vi- brant 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 pri- mary model of what it is "to have doubt." Thus pain comes un- shareably 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
enterprise of law. A fair sampling of that work may be seen in the various articles that have appeared in two symposia. Symposium: Law and Literature,60 TEx. L. REv. 373 (1982); Interpretation Symposium, 58 S. CALIF. L. REv. 1 (1985) (published in two issues). The intense interest in "inter- pretation" or "hermeneutics" in recent legal scholarship is quite a different phenomenon from the traditional set of questions about how a particular word, phrase, or instrument should be given effect in some particular context. It is, rather, the study of what I have called "a normative universe... held together by . . . interpretive commitments . . . ." Cover, The Supreme Court, 1982 Term-Foreword:Nomos andNarrative,97 HARv. L. REv. 4, 7 (1983). Or, in Ronald Dworkin's words, it is the study of the effort "to impose meaning on the institution. . . and then to restructure it in the light of that meaning." R. DWORKIN, LAW'S EMPIRE 47 (1986) (emphasis in original). Dworkin, in Law's Empire, has written the most elaborate and sophisticated jurisprudence which places the meaning-giving, constructive dimension of interpretation at the heart of law. James Boyd White has been another eloquent voice claiming primacy for what he has called the "culture of argu- ment." White has raised rhetoric to the pinnacle of jurisprudence. See J.B. WHITE, WHEN WORDS LOSE THEIR MEANING (1984); J.B. WHITE, HERACLES' Bow (1985).
The violent side of law and its connection to interpretation and rhetoric is systematically ignored or underplayed in the work of both Dworkin and White. White, in chapter nine of Heracles' Bow, comes closest to the concerns of this essay. He launches a critique of the practice of criminal law in terms of its unintelligibility as a "system of meaning" in the absence of significant reforms. White does not see violence as central to the breakdown of the system of meaning. But he does contrast what the judge says with what he does in the saying of it. Still, White reiterates in this book his central claim that "law . . . is best regarded not as a machine for social'control, but as what I call a system of constitutive rhetoric: a set of resources for claiming, resisting, and declaring significance." Id. at 205. I do not deny that law is all those things that White claims, but I insist that it is those things in the context of the organized social practice of violence. And the "significance" or meaning that is achieved must be experienced or understood in vastly different ways depending upon whether one suffers that violence or not. In Nomos andNarrative,I also emphasized the world-building character of interpretive commitments in law. However, the thrust of Nomos was that the creation of legal meaning is an essentially cultural activity which takes place (or best takes place) among smallish groups. Such meaning-creating activity is not naturally coextensive with the range of effective violence used to achieve social control. Thus, because law is the attempt to build future worlds, the essential tension in law is between the elaboration of legal meaning and the exercise of or resistance to the violence of social control. Cover, supra, at 18: "[T]here is a radical dichotomy between the social organization of law as power and the organization of law as meaning." This essay elaborates the senses in which the traditional forms of legal decision cannot be easily captured by the idea of inter- pretation understood as interpretation normally is in literature, the arts, or the humanities.
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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.3
The deliberate infliction of pain in order to destroy the victim's norma- tive world and capacity to create shared realities we call torture. The in- terrogation 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 compel- ling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world-destroying."'4 That is why torturers almost always require betrayal-a demonstration that the victim's intangi- ble normative world has been crushed by the material reality of pain and its extension, fear.5 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.' The logic of that world is complete domina- tion, 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
3. E. S(ARRY, THE. BODY IN PAIN 4 (1985).
4. Id. at 29.
5. Id.
Pain and interrogation inevitably occur together in part because the torturer and the prisoner each experience them as opposites. The very question that, within the political pretense, mat- ters so much to the torturer that it occasions his grotesque brutality will matter so little to the prisoner experiencing the brutality that he will give the answer. For the torturers, the sheer and simple fact of human agony is made invisible, and the moral fact of inflicting that agony is made neutral by the feigned urgency and significance of the question. For the prisoner, the sheer, simple, overwhelming fact of his agony will make neutral and invisible the significance of any question as well as the significance of the world to which the question refers .. . .It is for this reason that while the content of the prisoner's answer is only sometimes important to the regime, the form of the answer, the fact of his answering, is always crucial. ... [In confession, one betrays oneself and all those aspects of the world-friend, family, country, cause-that the self is made up of.
Id. While pain is the extreme form of world destruction, fear may be as potent, even if not connected to physical pain and torture. The fact of answering and the necessity for "world destruction" through betrayal were also central to the reign of fear of McCarthyism. See, e.g., V. NAVASKY, NAMING NAMES 346 (1980) (informer destroys "the very possibility of a community . . . for the informer
operates on the principle of betrayal and a community survives on the principle of trust").
6. On the "fiction of power" that torture creates, see E. SCARRY, supra note 3, at 56-58.
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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?'
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 obli- gation. And now I can." He left the world while uttering, "The Lord is One.""
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 inter- pretation 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 pos- sess 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.9 Their triumph-which may well be partly imaginary-is the imagined triumph of the normative universe-of Torah, Nomos,-over
7. P. BROWN, THE CULT OF THE SAINTS 79 (1981) (emphasis added) (quoting from the DECRE'UM GEI.ASIANUM, PATROLOGIA LATINA 59.171).
8. The quotation is from the traditional Eilch Ezkerah or martyrology service of Yom Kippur. I have quoted from the translation used in MAHZOR FOR ROSH HASHANAH AND YoM KIPPUR, A PRAYER BOOK FOR THE DAYS OF AWE 555-57 (J. Harlow ed. 1972).
9. The word "martyr" stems from the Greek root martys, "witness," and from the Aryan root smer, "to remember." Martyrdom functions as a re-membering when the martyr, in the act of wit- nessing, sacrifices herself on behalf of the normative universe which is thereby reconstituted, regener- ated, or recreated. One of the earliest sources dealing with martyrdom as a religious phenomenon, 2 MACCABEES, stresses the characteristic of the phenomenon as an insistence on the integrity of the Law of the martyr and of obligation to it in the face of overpowering violence. At one point the book describes the horrible torture and killing of seven sons before their mother's eyes, each death more horrible than the one before. The last and youngest child, encouraged by his mother, answers the King's demand to eat pork with the words: "I will not submit to the King's command; I obey the command of the law given by Moses to our ancestors." 2 MACCABEES 7.30.
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the material world of death and pain. 10 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 flesh, 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. Rebel- lion 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.11
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.12
10. In extreme cases martyrdom may be affirmatively sought out, for it is the final proof of the capacity of the spirit to triumph over the body. That triumph may be seen as a triumph of love or of law or of both, depending upon the dominant motifs of the normative and religious world of the martyr and her community. The great jurist and mystic, Joseph Karo (1488-1578), had ecstatic dreams of martyrdom and was promised the privilege of dying a martyr by a "maggid"-a celestial messenger who spoke through his mouth and appeared to him in visions. (The promise was not fulfilled. He died of very old age.) See Z. WERBLOWSKI, JOSEPH KARO: LAWYER AND MYSTIC 151-54 (2d ed. 1977). Note also the phenomenon of communities slaughtering themselves in the face of an enemy. Compare the complex mythos of the Jewish martyrs before the crusaders, elaborated in S. SI'w;Ei., THE LAST TRIAL: ON THE LEGENDS AND LORE OF THE COMMAND TO ABRAHAM TO OFFER ISSAC: AS A SACRIFICE: THE AKEDAH (J. Goldin trans. 1969) with the myth of the White Night enacted by Jonestown in our own day, recounted in J. SMIn, IMAGINING RELIGION: FROM BABY.ON TO JONESTOWN 102-20, 126-34 (1982).
11. The archetype for the transition from martyrdom to resistance is found in I MACCABEES, with the dramatic killing carried out by the Priest Matathias in Modi'in. 1 MACCABEES 2, 19-28. His act assumes dramatic significance in the work in part because it stands in marked contrast to the acts of heroic martyrdom described in 2 MACCABEES. See supra note 9.
12. The Declaration of Independence (1776). For the senses in which the Declaration should be seen as interpretive of the constitutional position of America in the Empire, see Black, The Constitu- tion of Empire: The Casefor the Colonists, 124 U. PA. L. REV. 1157 (1976).
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