Violence and the Word Themes
The main themes in “Violence and the Word” are law and violence, the perspective of the prisoner, and the responsibility of the judge.
- Law and violence: Cover discusses the relationship between law and violence, showing how legal decisions lead to tangible and even violent consequences.
- The perspective of the prisoner: When considering the law from the perspective of a prisoner or defendant, the coercion of the legal system becomes more clear.
- The responsibility of the judge: Cover emphasizes the immense power and responsibility judges have in determining the fates of defendants.
Law and Violence
Robert M. Cover begins “Violence and the Word” by stating that legal interpretation fundamentally entails violence, for it occurs “in a field of pain and death.” This statement is true but framed in shocking terms, immediately alerting the reader to how little they may have considered the matter. This is partly because the rule of law operates by consent on a collective basis but is enforced by the coercion of individuals. Someone who has never been arrested or tried may never have considered how much violence is involved in the process.
Cover differentiates law from other academic disciplines, such as philosophy and literature, saying that it is violence that makes law unique. Philosophy and poetry contain plenty of laws, but no one is imprisoned or executed for breaking them. On the other hand, because law requires interpretation and judgment, the relationship between law and violence is not the simple physical law of cause and effect. If one puts their hand in a fire, their hand will be burned. If one commits murder, however, they will not necessarily be executed. The outcome will depend on a series of decisions made by others. It is in these decisions that the nexus of law and violence is made plain.
The judge’s interpretation of the law provides the mandate for violence against the prisoner. Once the judge pronounces the sentence, all actual and potential violence on the part of those who enforce the system is justified by an opinion which has now become part of the law. No one else’s opinion has this power. The prison officer cannot decide to vary the length and conditions of the punishment. Those who inflict the violence are obeying the law while punishing the prisoner for disobeying it. The author cites Stanley Milgram’s experiments on obedience to authority as evidence that the relationship between law and violence is the product of a social system that places certain types of violence within the law, since the state has a monopoly on the use of violence. Agents of the system regularly perform actions with official sanction that they would not perform autonomously. Law, therefore, justifies violence, as violence is used to enforce law.
The Perspective of the Prisoner
Throughout the article, Cover asks the reader to look at the legal process through the eyes of the prisoner. This is not to induce sympathy or claim that the system is wrong—or any more wrong than such a system can be. It is to emphasize the level of violence that is latent in every stage of the legal process. The prisoner usually walks into the courtroom, escorted but unassisted, sits down, and remains silent throughout the trial, except when questioned. The prisoner does not necessarily want to behave in this way. But the prisoner knows that if they do not walk where they are told to walk, then they will be dragged; and if they try to disrupt proceedings, they will be silenced by force.
The article emphasizes the difference in perspective between the judge and the prisoner. Cover reinforces his point by changing the usual terminology to reflect the fact that the subject here is the judicial act of violence, not the alleged crime. Here, Cover refers to the judge as the “perpetrator” and the prisoner as the “victim of organized violence.” From the perpetrator’s viewpoint, the act of interpretation is what matters, and this is also vital “for those who impose the violence,” since the judge’s mandate provides the justification for what they do. From the victim’s perspective, however, this justification is unimportant. The victim, after all, is the only person involved...
(This entire section contains 312 words.)
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who knows with absolute certainty whether they committed the crime or not. These considerations recede into the background “in proportion to the overwhelming reality of the pain and fear that is suffered.” Since Cover’s principal purpose is to emphasize the centrality of this pain and fear in the criminal justice system, it is natural that he should conclude with the prisoner’s perspective, having repeatedly reminded the reader of it throughout the article.
The Responsibility of the Judge
Robert M. Cover achieved such distinction in legal scholarship during his short life that he was often mentioned as a potential future Justice of the Supreme Court. However, this article makes it clear that he would likely have found it difficult to serve as a judge, because his writings show an acute sensitivity to the heavy responsibilities of this role. A judge, he continually insists, is completely different from a professor, a poet, or, indeed, any other position. Other people can employ verbal violence to upset their opponents, but judges have the distinct power to speak words which the state will then transform into actual violence. The role of a judge in society is so familiar that Cover carefully stresses how strange the role really is. Indeed, a judge is a man or woman who can form an opinion and say some words, just as anyone else might do, but in this case, the words have the power to lock someone up for the rest of their life or even to kill them. No one else in a developed society has this type of power, which is the result of the state’s monopoly on the use of violence.
While Cover’s point about the extraordinary position of the judge is reiterated throughout the article, it is best exemplified by the decision of Judge Herbert Stern in United States v. Tiede. This case featured the highly unusual circumstance of an American judge passing sentence in an American court in Berlin. The prisoner, when sentenced, would then enter the East German prison system. The judge sentenced the prisoner to the time he had already served while awaiting trial and announced that he was now free to go. The judge made this decision because he could have no confidence that the prisoner would be treated in a humane manner after sentence. This extreme situation highlights a problem which is seldom discussed and which many judges may not always consider: The judge may not necessarily condone the conditions in the prison to which the judge is sentencing the defendant. The collective responsibility of the justice system means that the judge is dependent on the police, prison officers, and others to carry out their instructions. Nonetheless, it is the judge’s interpretation that provides the mandate for everything that happens to the prisoner after sentence.
