This was a polisci/LSJ class in which I got to have Erin Adams as a professor, who I am still in contact with today. She is truly a great individual with intricate understandings of how the law impacts everyday people. The following is my final essay for her class in which asked us to analyze Robert Covert's "Neither legal interpretation nor the violence it occasions may be properly understood apart from another" quote. We were asked if legal violence is different from other types of violence outside, against, or above the law and how. We were also asked what makes the law's violence/coercion legitimate and if it, in practice, lives up to its own codes or ideals.
While one Newton’s infamous laws may be primarily referenced in physics, it’s actually very relevant to the issue of law: That for every action there is an equal and opposite reaction. The need to enforce the law means there are people who don’t abide by it. In order to get those people to do what in fact they don’t want to do requires a certain amount of force (decisively, socially, and physically). Cover perhaps put it best: “neither legal interpretation nor the violence it occasions may be properly understood apart from one another.” In other words, the law when put into action is inherently intertwined with some level of violence. However, it is when that violence exceeds the equal and opposite reaction that it becomes excessive. In fact, it can be argued that the goal of upholding the law in the most morally ideal way requires that any use of force is less than the force for which it encounters. In this sense, legal violence is distinguishable from all other forms of violence: It is hidden; it restricts liberty and movement; it disproportionately affects minorities; there are certain things that legal agents are state-sanctioned to do whereas the normal citizen is not. These unique attributes of legal violence will be explained through capital punishment and mass incarceration, but the foundations of the law that permit and preface these violent interactions must be understood first.
In order for legal violence to continue the general public must permit it and in order to do that, it must legitimate itself. In part, this happens through what Scheingold calls the ‘myth of rights.’ At its center is ideology and legal paradigm, which Scheingold defines as “a social perspective, which perceives and explains human interaction largely in terms of rules and of the rights and obligations inherent in rules” (Politics of Rights, 13). The legitimacy of legal violence, then, derives from the very existence of an opportunity in which people can argue over rules and rights: Litigation. This then permits the creation of ideological symbols, which also, in their very existence, legitimate legal violence. A few of these symbols are the constitution (the very embodiment of rules), judges (the only people who can ultimately amend the constitution), and legal actors (who carry out what the constitution permits and what judges order). These symbols are meant to be accessible to anyone, and so legal violence is further legitimated in the courtroom because supposedly all non-elite actors are given the chance to partake in the legal system. “The individual in reality becomes a functionary of the state, who is employing his legitimate authority by using the law” (Zemans 692). Furthermore, because the very function of one of these symbols (judges) exists to update another symbol (the constitution), any violence that the law imposes is legitimate because the law isn’t static.
But, since the law isn’t static, it can also legitimize itself in the very act of changing rules to make sure any state-sanctioned violence remains exactly that, state-sanctioned. This can be seen throughout categories of litigation, which set precedent and create new qualifications for what is legal and what is not. One such category is that of search and seizure. Because many instances bring up questions of constitutionality, it is through new legal definitions and exceptions that the enforcement of the law legitimates itself. As shown in Muehler v Mena, police were suddenly allowed to detain occupants if they’re seen as a threat. Then in Hester v United States (1924) and Chimel v California (1969), warrantless search and seizures are okay if items are in plain view. Next, probable cause works for stop-and-frisks (Terry v Ohio, 1968), which was then lessened to reasonable suspicion (United States v Sokolow, 1989). The list goes on.
There are moments, however, when legal actors go above and beyond the law, using excessive force or applying altogether illegal tactics, and in those moments, they undermine the law’s legitimacy. It is true that the relationship between police and citizens is an “antagonistic” one, and a type of “extortionate transaction,” as argued by Muir. A particular interesting paradox he names is the paradox of face: “the nastier one’s reputation, the less nasty one has to be,” but in this case if a bluff is called that a person is only threatening but not doing, then malevolence will indeed have to be done. This was played out in the beating of Rodney King, a clear undermining of police legitimacy. “[Police] are obliged to acknowledge the law’s moral force and to be constrained by it...when a cop reaches above the law to use more force or coercion than is necessary...he or she undermines the very source of police authority” (Skolnick & Fyfe, xvi). After any instant of police brutality, any previous, current, and future police testimony faces public scrutiny, and the public’s confidence in the police’s ability to do their job drops. This has been seen in cycles throughout history. Rodney King, namely, but also with Trayvon Martin, Mike Brown, Eric Garner, Sandra Bland, Aiyana Jones. The list, unfortunately, goes on, but following each one of those deaths caused by police officers were — are — large protests, social movements, and public distrust.
But it doesn’t require these moments to lift the myth of rights curtain, and venture to peer behind its thick veil where legal violence can be found. But it is because legal violence is hidden, unlike most other forms of violence, that things like capital punishment can persist. In part, the cloak over legal violence can be attributed to the very way the legal system operates: Through diffusion of responsibility. There is a difference in the American justice system between a ruling and a punishment. The ruling is violent in its word and demand whereas the punishment is violent in its action. Furthermore, the chain of violence lasts long after the primary punishment is carried out. It continues on through social, economic, and psychological consequences. Because most humans have revulsion toward violence, as Cover suggests, “interpretations which occasion violence are distinct from the violent acts they occasion” (1613).
This is true not only of judges, but of jurors as well, which can be very distinctly seen in the extreme case of capital punishment. Jurors and judges who decided to put a man on death row are overwhelmingly faced with the violence of the crime, as they should be, but not at all faced with the violence of their ruling — which is also death. Often times, jurors can recollect the way a person was killed, what was used, and what the crime scene looked like because they are so constantly confronted with that specific violence (Sarat, The Role of The Jury). Furthermore, “being forced to confront those images has dramatic consequences in enlisting jurors to authorize execution. The victim will often be remembered as nothing other than the wounds that ended his life” (Sarat, The Role of The Jury, 141). This constant flow of imagery dehumanizes both the victim and the defendant, but it also takes the focus away from their own decisions and places the focus on something much easier to judge: the decisions of another. “The more professionalized and procedural a system is, the more insulated we become from its real effects on people” (Gopnik, The Caging of America). When jurors and judges see a human being as an object to which rules must be applied rather than a multi-faceted, complex, and contextual creature, criminalization in its truest form has taken place. As Cover puts it, the perpetrator’s own pain and fear typically remains inexperienced by anyone but himself (1629).
Mass incarceration is also another easily distinguishable instance in which the myth of rights can hide legal violence. By putting criminals in a ‘correctional’ facility, a cement building which is often not in a notable city, the state hides the very population it punishes. These people are displaced from society, and in so being not only suffer in their own right but are also hidden from the public eye, which lends the opportunity for even more state violence, including that which is in fact not sanctioned or ordered, to go unnoticed. The myth of rights believes the jails and prisons are reserved for violent, horrible people. But the truth is, “most of the people who are incarcerated in prisons in the U.S. have been incarcerated for a non-violent crime, often drug-related. Most of the people incarcerated in jails have not been convicted, but are pre-trial detainees too poor to pay bail” (Arkles, 519). But because the punished population is hidden away in some facility and daily nonviolent crimes rarely get media attention, the law’s relatively disproportionate violence placed on nonviolent offenders is hidden.
Legal violence is additionally unique in its ability to restrict liberty and movement. Mass incarceration clearly limits the movement of inmates, making them stay in usually one facility for extended periods of time where “It isn’t the horror of the time, but the unimaginable sameness of the time ahead that makes prisons unbearable” (Gopnik, The Caging of America). And the truth of it is that even after incarceration, probation and parole exist which limit the ability for persons to move in too grand of an area. Moreover, for some people who have been in jail, their liberty can be restricted long after imprisonment through voting restrictions, and employment — both in written rule but also in normative social tendencies in the American culture to not hire criminals no matter their crime (Gottschalk, 243). For those facing capital punishment, they have the highest constraint: their very life. Capital punishment is the apex of restricting liberty and movement because it completely takes both away, leaving a body completely motionless on a table.
It also known that legal violence has a tendency to punish people of color disproportionately and more frequently than whites. Unlike a car crash in which violence incidentally happens, “race continues to play a major role in determining who shall live and who shall die,” according to Justice Blackmun on capital punishment (McCleskey v Kemp). As referenced in McCleskey v Kemp, the death penalty was given in 22 percent of cases with black defendants and white victims, whereas it was given three percent of the time for cases with white defendants and black victims. Connected to that statistic is the disproportionate amount of people of color in prison, because both have to do with “stereotypes of black, Native American, and Latin@ people as untrustworthy, violent, dangerous, and sexually predatory toward white non-trans women” (Arkles, 519-520). Yet another Justice (Douglas) argued in the Furman case that capital punishment is reserved for “minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer” (Sarat, Role of the Jury, 132). This disproportionate legal violence systemically perpetuates every regulatory system in America from preschools to juvenile detention centers, from voting booths to loan eligibility, from work to routine traffic stops. At the center of all this rests legal violence, hidden but ever-present. Connected to this systemic legal violence, is the falsehood of the law’s legitimacy and the myth of rights perpetuating the concept of accessibility and use for everyone. Neither the law’s protection or its use is available for entire groups of people, usually due to limits of understanding in how to access the law and due to financial limits. “Availability is not accessibility...Just because mechanisms exist does not mean they are, in fact, attractive to, or usable by, people seeking redress” (Miller & Sarat, 58). Discrimination cases are most frequently the ones dropped before ever reaching court precisely because the system works against them in the process of staking their claim as valid.
Moreover, unlike other forms of violence, legal violence is state-sanctioned, “legal.” In any other form, killing a person is considered murder but when the state does it, like in capital punishment, it’s not a crime. Certain actions, like bullying, which can lead to the suicide of a person, are punishable by law given enough evidence, but should an inmate commit suicide in a jail, it isn’t punishable even though the reason for his suicide is surely the very hand he was dealt by the state. Even when killing a person happens on accident, like for instance, again, a car crash, a person is indeed charged with murder (vehicular homicide), but no such equivalent holds the state responsible for much of anything that happens within its prisons, detention centers, or jails. While the eighth amendment lists cruel and unusual punishment as unconstitutional, the death penalty is still excluded from this crime even though “capital punishment has always been cruel in the everyday sense of the word, and has become unusual due to decreased use” as put in the dissenting opinion for Furman v Georgia.
It has been argued that the very act of capital punishment resulting from anger is the conscious recognition of the humanness of another person because an moral expectation and responsibility was not met (Berns, Morality of Anger), but this is completely de-contextualizing the issue of capital punishment, and legal violence itself. When legal violence occurs, it hides the very people whom it seeks to punish. Legal violence hides a person’s humanity by reinforcing stereotypes, bringing up a past history of petty crimes, displacing the accused from society in both physical and social ways. Berns addresses anger as if it is the sole feeling a jury or judge has when deciding capital punishment, but that is far from the case, and, furthermore, he disrupts the connection of anger to retributive punishment when it is indeed a core function of the American justice system. A system that claims to be so rehabilitative that it goes so far as to name its own prisons “correctional” facilities is, in all reality, a retributive system of legal violence. While jurors in a case dissected in Sarat’s The Role of The Jury noted their desire to put personal responsibility on the defendant, as Berns so fervently says validates capital punishment, they also “refused to accept the picture of a social world of events governed by causes beyond human control; instead they constructed a moral world of free agents making choices for which they could be held to account” (143). Again, the tendency for humans to assign responsibility to another person and thus become angry when that responsibility isn’t met is a holistically selfish impulse that doesn’t take into consideration any context. In this case, those who decide on capital punishment don’t take in the context of legal violence at all, when that should be the center of attention — they are dealing with state-sanctioned death, after all.
“So let us be explicit. If it seems a nasty thought that death and pain are at the center of legal interpretation, so be it” (Cover, 1628).
 I was told that a works cited page wasn’t necessary as most of the readings we had were downloaded from the catalyst website had no copyright page and we had no knowledge of their original sources.