We were asked to do short essays for some readings as midterm papers in my Law & Society class taught by Jonathan Wender — another favorite professor. He was so interesting because he retired from being a cop and then went on to go teach in LSJ, but all the while acknowledging issues within the system. He used real world examples so frequently, which kept the class relevant and engaging. We really analyzed how law, as a mechanism, functions throughout the quarter.
Short essay prompt #1
When Robert Cover explains “[n]either legal interpretation nor the violence it occasions may be properly understood apart from one another” (1601), he means that violence and the law are inherently and constantly intertwined, existing in a symbiotic relationship. Law needs violence, and violence needs the law. In order to understand the ways in which the legal system functions, one must understand that in order for it to do so successfully, it must be both efficient and unfair, or violent. Ways in which this can be addressed: 1) through law success, 2) through metaphorical violence (interpretation), and 3) through literal (physical) violence.
A part of what makes law successful, and simply a large reason the law exists, is its creation of cohesion within a society. Any single act doesn’t contradict the ‘common consciousness’ because it’s criminal, but it is criminal because it contradicts that shared consciousness and the punishment is an act of self-satisfactory revenge, according to Emile Durkheim (40). “[P]unishment constitutes essentially a reaction of passionate feeling graduated in intensity, which society exerts through the mediation of an organised body over those of its members who have violated certain rules of conduct” (Durkheim 52). Despite this seemingly ‘shared consciousness,’ there are differing thoughts, opinions, and perceptions, making cohesion across the board impossible in any given society. A majority and a minority are thus created in such a way that an “other,” or the definition of a criminal, is created. In using power to create and define a criminal, a society can use the law to perform organized acts of punishment to reinforce its overarching belief system, ultimately validating the community’s own shared experiences (although those experiences differ greatly on the margins).
The tragedy is that it will never be possible for the law — and those with the power to reinforce it — to satisfy everyone. Law creates exclusion because the law creates definitions, and that’s the tragedy of its power. Outside of literature, creating definition is not the end-all, be-all; when definition is imposed upon real people, it creates metaphorical social and systemic violence that then translates into literal, physical violence later on (in the form of fines, in the form of diminishing resistance, in the form of punishment).
The law gets applied to the real world through the official agents who interpret it, and the application of that interpretation of law requires violence. The very interpretation by those agents is subjective. “Legal interpretation is (1) a practical activity [or, in other words, isn’t common knowledge, but requires practice in its language and application], (2) designed to generate credible threats and actual deeds of violence, (3) in an effective way” (Cover 1610). Interpretation of the law by its agents happens on a very contextual basis, both in-the-moment by police officers and attorneys, and through long deliberations by judges. Both interpretations ultimately produce violent, often demeaning and otherwise inarguable, actions against and consequences on those who resist, or have resisted, the law. Moreover, this interpreted violence follows the now-labeled criminal beyond his punishment (jail, fines) and out into their everyday functions in society (jobs, housing, social security, insurance, voting). Those societal regulations, in fact, are yet another instance in which the criminal faces metaphorical violent interpretation.
In order for law to function successfully, however, it must be reinforced using violence, because, inevitably, those who resist the law will be facing (hopefully) equal coercion. The concluding decision of interpretation mandates what type of violence will happen to the criminal. The criminal will be physically removed from society, physically roughed up, or even physically killed. It becomes a matter of competing perceptions of right and wrong, and ultimately the winner is the one who exhibits the most power. If the law didn’t use violence to show its power, it would never create incentive for the public to follow it. Moreover, in order for the law to create punishment, those who it punishes must be acted upon with physical violence in order to bring them to, and keep them at, the floor of a courtroom — surely, no person would willingly or happily go to receive punishment.
Short essay prompt #2
When James Boyd White argued legal rhetoric is the “central art by which community and culture are established, maintained, and transformed,” (684) he meant that culture influences the making of the law in such a way that it creates law, reinforces law, and changes law.
Law is not some abstract entity that came into existence on its own. People create the law, and the culture with which those people reside is also responsible for creating the law. Law is a “way of talking about real events and actual people in the world...what has happened in the world and claiming a meaning for it by writing an ending to it” (White 691-692). Through litigation and revolution — and it is revolution that created the United States’ constitution — law is formed. “[L]aw [is] not an objective reality in an imagined social world...but from the point of view of those who actually engage in its processes” (White 688). Through participating in the language and rhetoric of law, contesting its validity, law becomes established. It even sets precedent, establishing future litigation.
Through precedent, law is reinforced. Lawyers use what is contextually relevant to support the defense or offense of a particular legal or illegal action. But more broadly, culture reinforces law through its self-policing, and norms. One form of punishment for not adhering to the law is the most apparent: “it is shame that doubles most punishments, and that increases with them” (Durkheim 49). The public shames people for not adhering to social norms or to the law. This often happens before legal discourse, and increases in severity during and after legal discourse. This is easily reflected in moments of unofficial criminalization.
Although communities and culture can reinforce and maintain the law, it can also change it. Michel Foucault, in his explanation of how punishment takes on different mutations over time, references specific public uses of penal justice (executions) of which “were no longer supported in the eighteenth century” (61). In summary, he insists that in many instances the reason why legal punitive action changes is because the public no longer approves of it. One example of such change is the introduction of exclusionary rule as a result of Weeks v. United States, 232 U.S. 383 (1914). Weeks, a member of the community, a citizen, ultimately changed the law making it so evidence obtained illegally was inadmissible in the court (like unwarranted search and seizure or coerced confession) — despite the fact that this was more or less overturned in Wolf v. Colorado, 338 U.S.25 (1949), and Mapps v. Ohio, 367 U.S. 643 (1961). Cover insists that there is connection between legal language and ordinary language, calling that connection rhetoric (699). It is through this fluid rhetoric that allows communities and cultures to change the law.
Law is how “we make ourselves by making our language,” thus conjoining culture and law; culture informs the law and law informs culture.
Cover, Robert M. “Violence and the Word,” Yale Law Journal, Vol. 95, No. 8 (July
1986). Pp 1601-29.
Durkheim, Emile. The Division of Labor in Society, Ch. II, “Mechanical Solidarity, or
Solidarity by Similarities.” New York: Free Press, 1984, pp. 31-67.
Foucault, Michel. Discipline and Punishment: The Birth of The Prison. Translated from
the French by Alan Sheridan. New York: Vintage Books, 1985.
Mapps v. Ohio, 367 U.S. 643 (1961)
Weeks v. United States, 232 U.S. 383 (1914)
White, James Boyd. “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and
Communal Life,” University of Chicago Law Review, Vol. 52, No. 3, pp. 684-702.
Wolf v. Colorado, 338 U.S. 25 (1949)