Violence and the Word Summary
“Violence and the Word” is a 1986 article by Robert M. Cover about the practical and often violent ramifications of legal interpretations, namely in the hands of judges.
- Cover shows the connection in legal procedures between language and pain, two aspects of human life that are usually considered distinct.
- Legal interpretations in the form of sentences have real-world consequences, altering lives and, in some cases, ending them. The state holds a unique power to enact violence.
- Judges hold great responsibility, one that is complicated by the fact that they cannot always ensure their decisions are carried out humanely.
Last Updated on December 16, 2020, by eNotes Editorial. Word Count: 1267
In part I of “Violence and the Word,” Robert M. Cover observes that interpreting the law involves pain and death. Life, and many of the things that make life worth living, may depend on a judge’s interpretation of the law, which is used to justify violence. Legal interpretation and the violence it causes must be considered together for either to be understood properly.
The ideas of interpretation and pain are seldom considered together, as they seem to inhabit different and opposed worlds. Cover quotes Elaine Scarry, who points out that pain is indescribable and therefore resists language. Interpretation, by contrast, is dependent on language. This is why torture is seldom designed to elicit information but to crush the victim with pain. This objective is incompatible with getting to the truth; rather, it creates a new reality in which only pain and dominance matter.
Although martyrdom is a religious phenomenon with little apparent relation to law, the idea of martyrdom offers a helpful way of thinking about legal interpretation. Martyrs insist on adhering to their own truth and their own law—or, in their view, God’s law—regardless of the suffering that is inflicted on them. They will not accept the torturer’s attempt to impose a new reality.
Revolution and rebellion are alternatives to martyrdom when facing a dominant power. The constitutional history of the United States is based on rebellion against Great Britain. The Declaration of Independence recognizes that pain and death may be the punishment for this act of interpretation, though the British crown has no moral right to impose such a penalty. If the American Revolution had been unsuccessful, it would have been interpreted as treason, and a painful death would have been inflicted on the revolutionaries. It is such high stakes that differentiate legal interpretation from literary or philosophical interpretation.
Martyrdom and revolution are extreme forms of “the violence of the law,” but every time a defendant is convicted, something is taken from them by force. The point of looking at legal procedures from the perspective of the prisoner is neither to be sympathetic nor to complain about injustice. It is to highlight the role of violence in every act of legal interpretation, which appears quite different from the viewpoint of the party who is coerced by force and who feels the threat of violence at every stage of the legal process.
In part II, Cover begins by insisting that “judges deal pain and death.” This is not their only function, or perhaps their main one, but it is a necessary task that differentiates their job from others. Cover goes on to examine three elements of judicial interpretation.
In section A of part II, Cover discusses how legal interpretation is practical in a way that other forms of interpretation are not. It provides a mandate for the acts of others, who carry out the instructions of the judge. The judge must determine the legally correct decision and also consider the effect this decision will have when put into practice.
In section B of part II, Cover observes that the judge’s interpretation is distinct from the violent acts for which that interpretation provides a mandate. Nonetheless, the public expects there to be a close relationship between interpretation and act, so that, for instance, the opinions of prison officers or others charged with carrying out the mandated violence do not alter the judicial decision. This means that there must be a routine for the transformation of interpretation into violence, one that is given legitimacy by the judge’s interpretation, despite the fact that acts of violence are generally resisted by members of advanced societies. The author cites the Milgram experiments described in Obedience to Authority as an example of the way in which normal resistance to violence may be overcome, comparing Milgram’s findings with the theories of Anna Freud and Konrad Lorenz. Despite their differences, all these theories agree that people behave violently with official approval within social organizations when they would not do so if they were acting autonomously.
Section C of Part II discusses how violent acts almost always take place in a situation where the person committing them is either in a dominant position or has a clear idea of any personal repercussions they will face. Legal interpretation, therefore, takes place on the basis that the person who will be affected by the violence is subordinate to a coercive system.
In section D of part II, Cover notes that legal interpretation cannot be free of consequences, as other forms of interpretation are. After all, legal interpretation must be transformed into action, specifically violent action. The need for clear and coherent meaning, a central element in legal interpretation, may be in conflict with the need for the act it generates to have the desired effect. This means that legal interpretation is bound to the actions that result from it and to the social system in which it takes place.
In section III, Cover further explains the “bonded character of legal interpretation” discussed in the previous section. Specifically, the author considers the issue of sentencing in criminal cases. The imposition of a sentence takes place on the basis that the prisoner is dominated by the state. He cannot take revenge against the judge, and there are police and prison officers who will carry out the judge’s orders.
In section A of part III, Cover quotes from the judgment of Judge Herbert Stern in United States v. Tiede. The trial took place in an unusual context—the short-lived United States Court for Berlin. Judge Stern would have had to give the defendant over to the custody of the Berlin authorities if he had sentenced him to jail time. On this basis, he let the defendant go free, since could not ensure that any custodial sentence he might order would be carried out.
Section B of part III concerns the death sentence. It is partly because legal interpretation is bound to practical action that the situation surrounding capital punishment in the United States is so confused. The judge is expected to give exhaustive consideration to every way the defense can show of avoiding the death penalty, since it is assumed that they do not wish to take a life.
The structure of judicial appeal ensures that no single judge is ever responsible for a capital sentence. Such sentences are always subject to appeal, and at least three judges sit together in the appellate courts. This has always been the case, although it is not a constitutional requirement. Therefore, the decision to inflict death on the prisoner “will always require the active or passive acquiescence of other judicial minds.” A collective act of interpretation is more powerful than an individual decision—not because it is more coherent but because it carries the force of the community with it.
In his conclusion, Cover argues that if legal violence is to be tolerable and effective, then responsibility for it must be shared. This is why, for instance, judges never personally carry out executions. This limit on legal interpretation, however, is less important than the fact that those involved in the organized violence of the law have such completely different experiences and perspectives. Pain and fear are insignificant for the judge in forming an opinion, but that opinion is the justification for the prison officers who impose pain and fear on others. For the prisoner, the justification is unimportant compared with “the overwhelming reality of the pain and fear that is suffered.” Violence is endemic in the law, which separates the idea from the reality.