I. THE VIOLENCE OF LEGAL ACTS
Legal interpretation takes place in a field of pain and death (1601). • Legal interpretive acts signal and occasion the imposition of violence upon others (1601).
• Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur (1601).
organized, social practices of violence (1601).
“Interpretation” suggests a social construction of an interpersonal reality through language (1602).
But pain and death have quite other implications. Indeed, pain and death destroy the world that “interpretation” calls up (1602).
The deliberate infliction of pain in order to destroy the victim’s norma- tive world and capacity to create shared realities we call torture (1603).
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 (1603).
intense pain is world-destroying (1603).
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 (1604). • 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 (1604).
• Law is the projection of an imagined future upon reality (1604).
• Martyrs require that any future they pos- sess will be on the terms of the law to which they are committed (God's law) (1604).
• 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 (1604).
• Martyrdom is an extreme form of resistance to domination (1605).
A legal world is built only to the extent that there are commitments that place bodies on the line (1605).
interpretive commitments of officials [[and] of a community which resists official law] are realized, indeed, in the flesh (1605).
legal interpretation = [the] embedding of an understanding of political text in institutional modes of action (1606).
I do not wish us to pretend that we talk our prisoners into jail. The “interpretations” or “conversations” that are the preconditions for violent incarceration are themselves implements of violence (1608).
interpretation is the master concept of law (1608): • Naturally, one who is to be punished may have to be coerced (1608).
• And punishment, if it is "just," supposedly legitimates the coercion or violence applied (1608).
• The ideology of punishment may, then, operate successfully to justify our practices of criminal law to ourselves and, possibly, even to those who are or may come to be "punished" by the law (1608).
whether or not the judge and prisoner share the same philosophy of punishment, they arrive at the particular act of punishment having dominated and having been dominated with violence, respectively (1609).
II. THE ACTS OF JUDGES
judges deal pain and death (1609).
they have sat atop a pyramid of violence (1609).
Even the violence of weak judges is utterly real (1609).
I have written elsewhere that judges of the state are jurispathic—that they kill the diverse legal traditions that compete with the State. Here, however, I am not writing of the jurispathic quality of the office, but of its homicidal potential (1610).
three characteristics of the interpretive di- mension of judicial behavior. Legal interpretation is (1610): 1. a practical activity 2. designed to generate credible threats and actual deeds of violence 3. in an effective way
- A Practical Activity Legal interpretation is a form of practical wisdom (1610).
There is a persistent chasm between thought and action. It is one thing to understand what ought to be done, quite another thing to do it (1610-11).
[Legal interpretation]: • The judicial word is a mandate for the deeds of others (1611).
• The context of a judicial utterance is institutional behavior in which others, occupying preexisting roles, can be expected to act, to implement, or otherwise to respond in a specified way to the judge's interpretation (1611).
• the institutional context ties the language act of practical understanding to the physical acts of others in a predictable, though not logically necessary, way (1611).
• These interpretations, then, are not only "practical," they are, themselves, practices (1611).
The practice of interpretation requires an understanding of what others will do with such a judicial utterance and, in many instances, an adjustment to that understanding, regardless of how misguided one may think the likely institutional response will be (1612).
The gap between understanding and action roughly corresponds to differences in institutional roles and to the division of labor and of responsibil- ity that these roles represent (1612).
- System generates violence The gulf between thought and action widens wherever serious violence is at issue (1613).
Were the inhibition against violence perfect, law would be unnecessary; were it not capable of being overcome through social signals, law would not be possible (1613).
interpretations which occasion violence are distinct from the violent acts they occasion (1613).
we expect the judges’ words to serve as virtual triggers for action (1613).
such a routinization of violent behavior requires a form of organization that operates simultaneously in the domains of action and interpretation (1614).
In order to understand the violence of a judge’s interpretive act, we must also understand the way in which it is transformed into a violent deed despite general resistance to such deeds (1614).
the shift from autonomous behavior to the agentic behavior [is] cybernetically required to make hierarchies work (1615).
According to Milgram, the cues for overcoming autonomous behavior or “conscience” consist of the institutionally sanctioned commands, orders, or signals of institutionally legitimated authorities characteristic of human hierarchical organization (1615).
Persons who act within social organizations that exercise authority act violently without experiencing the normal inhibitions or the normal degree of inhibition which regulates the behavior of those who act autonomously (1615).
When judges interpret, they trigger agentic behavior within just such an institution or social organization (1615).
they are engaging a violent mechanism through which a substantial part of their audience loses its capacity to think and act autonomously (1615).
- Effective Organization of Violence Deeds of violence are rarely suffered by the victim apart from a setting of domination (1616).
If legal interpretation entails action in a field of pain and death, we must expect, therefore, to find in the act of interpretation attention to the conditions of effective domination (1616).
-
Bonded Interpretation • Legal interpretation must be capable of transforming itself into action (1617).
• it must be capable of overcoming inhibitions against violence in order to generate its requisite deeds (1617).
• it must be capable of massing a sufficient degree of violence to deter reprisal and revenge (1617).
Coherent legal meaning is an element in legal interpretation. But it is an element potentially in tension with the need to generate effective action in a violent context (1617).
neither effective action nor coherent meaning can be maintained, separately or together, without an entire structure of social cooperation (1617).
Thus, legal interpretation is a form of bonded interpretation, bound at once to practical application . . . and to the ecology of jurisdictional roles (1617).
III. INTERPRETATION AND EFFECTIVE ACTION
In imposing sentences in criminal cases, judges are doing something clearly within their province (1618).
the act is and long has been a judicial one, and one which requires no strange or new modes of interaction with other officials or citizens (1618).
The judge’s interpretive authorization of the “proper” sentence can be carried out as a deed only because of these others; a bond between word and deed obtains only because a system of social cooperation exists (1619).
A. Latent Role Factors If the institutional structure—the system of roles—gives the judge’s understanding its effect, thereby transforming understanding into “law,” so it confers meaning on the deeds which effect this transformation, thereby legitimating them as “lawful.” (1619).
judicial word and punitive deed—are connected only by the social cooperation of many others, who in their roles as lawyers, police, jailers, wardens, and magistrates perform the deeds which judicial words authorize (1620).
Almost all judicial utterance becomes deed through the acts of others—acts embedded in roles (1621).
The judge must see . . . that the meaning of her words may change when the roles of these others change (1621).
B. The Death Sentence the capital sentence as interpretive act is unique in at least three ways (1622):
1. The judge must interpret those constitutional and other legal texts which speak to the question of the proper or permissible occasions for imposition of a capital sentence.
2. She must understand the texts in the context of an appli- cation that prescribes the killing of another person.
3. And she must act to set in motion the acts of others which will in the normal course of events end with someone else killing the convicted defendant.
Our judges do not ever kill the defendants themselves. They do not witness the execution. Yet, they are intensely aware of the deed their words authorize (1622).
Because in capital punishment the action or deed is extreme and irrevocable, there is pressure placed on the word—the interpretation that establishes the legal justification for the act (1622).
At the same time, the fact that capital punishment constitutes the most plain, the most deliberate, and the most thoughtful manifestation of legal interpretation as violence makes the imposition of the sentence an especially powerful test of the faith and commitment of the interpreters (1622).
The stay of execution, though it be nothing—literally nothing—as an act of textual exegesis, nonetheless constitutes an important form of constitutional interpretation (1623).
For it shows the violence of the warden and executioner to be linked to the judge’s deliberative act of understanding (1623).
Such a well-coordinated form of violence is an achievement (1624).
The social cooperation critical to the constitutional form of cooperation in violence is, therefore, also predicated upon the recognition of the judicial role and the recognition of the one whose utterance performs it (1625).
Final appellate courts in the United States have always had at least three judges (1625).
No explicit provision in the United States Constitution defines the Supreme Court in such a way that requires that it be made up of more than a single judge. But both invariant practice and basic understandings since 1789 have made the idea of a single-Justice Supreme Court a practical absurdity (1626).
The most elementary understanding of our social practice of violence ensures that a judge know that she herself cannot actually pull the switch (1626).
**It is crucial to note here that if the warden should cease paying relatively automatic heed to the pieces of paper which flow in from the judges according to these arbitrary and sometimes rigid hierarchical rules and principles, the judges would lose their capacity to do violence. They would be left with only the opportunity to persuade the warden and his men to do violence. Conversely, the warden and his men would lose their capacity to shift to the judge primary moral responsibility for the violence which they themselves carry out. They would have to pass upon the justifications for violence in every case themselves, thereby turning the trial into a sort of preliminary hearing (1626-27).
Judges are both separated from, and inextricably linked to, the acts they authorize (1627): • We have done something strange in our system. We have rigidly separated the act of interpretation—of understanding what ought to be done—from the carrying out of this “ought to be done” through violence (1627). • At the same time we have, at least in the criminal law, rigidly linked the carrying out of judicial orders to the act of judicial interpretation by relatively inflexible hierarchies of judicial utterances and firm obligations on the part of penal officials to heed them (1627). The application of legal understanding in our domain of pain and death will always require the active or passive acquiescence of other judicial minds (1627).
which is the true act of legal interpretation? (1627): • The hypothetical understanding of a single mind placed in the admittedly hypothetical position of being able to render final judgments sitting alone?
• Or the actual products of judges acting under the constraint of potential group oversight of all decisions that are to be made real through collective violence?
As long as death and pain are part of our political world, it is essential that they be at the center of the law (1628).
as long as legal interpretation is constitutive of violent behavior as well as meaning, as long as people are committed to using or resisting the social organizations of violence in making their interpretations real, there will always be a tragic limit to the common meaning that can be achieved (1629).
Between the idea and the reality of common meaning falls the shadow of the violence of law, itself (1629).