Tuesday, April 29, 2014Day #9!The Violence of the Law -Law fundamentally relies on interpretation!! 1. Knowing the Right Language to Use !! 2. Using that same language to change it !! 3. Ethical power to create the community: law is an incarceration of peoples vision of how the world should look. Not just changing the law piecemeal, but holistically using the law to change or create community in an ethical or political state of affairs !Where does Boyd come up short?!! -There needs to be infrastructure that enforces the process. If the infrastructure isn't there what happens?!! -There is an element of force or compulsion that is missing from Boyd White ! !!!!!!Slide #1!-What is the relation between law and violence?!-How is the relation manifest in practices that we would not typically regard as "violent?"!•Robert M. Cover, "Violence and the Word," Yale Law Journal Vol. 95. No. 8 (July 1986) pp. 1601-29!Starting point: remember the tragedy of power: when you exercise power you will not create a perfectly equitable solution over each decision that you make. Most people in power are trying to do the right thing, but despite their good intentions sometimes they get things wrong because humans are infallible !!!!!!Slide #2!•To suppose that legal interpretation and violence are separable is to ignore the true nature of the law!•When judge interpret legal texts people can (and do!) lose life, liberty, property, rights etc.!•Interpreting the law is fundamentally different from all other kids of textual interpretation. Why? (Moot Court Example) !•Because legal interpretation by its very nature both signals and occasions violence!! -signals violence: sends a message indirectly or directly that says that violence may ensue Ex: why cops carry a gun, taser, etc. which is why they bring about order with their mere presence !! -it occasions violence: self defense, judge sentencing people: when the judge issues his or her directions reality changes. !•The law is ultimately not about what judges say, but rather about what they do (they deal pain & death) !•And what they do is "deal pain and death" (1609) !! -your unique capacity fundamentally bottoms of the capacity/duty to deal pain and death !1Tuesday, April 29, 2014! -when you need force deployed in society there are certain people charged with these duties and that is where the law comes in!-you cannot separate law and violence. we know the law rarely acts with physical violence, but the only thing that makes it capable as an institutions is the violence it is authorized to bear !-fundamental difference in interpreting a legal text and other forms on interpretation (because someones property, lives or something can be at stake--humans lives are at stake or it is not the law)!! -unlike any other kind of interpretation!-any application of power changes what it touches - for better or for worse !-Law has the power to construct community !!!!!!Slide #3!•Legal interpretation is: (1) a practical activity, !! ! ! (2) intended to create actual and potential violence and (law has to have effective capacity to create potential of violence or it cannot be successful) !! ! ! (3) and to do so effectively (small subset of situations where violence is required, but we expect the police (ex) to show up and "always win." that is what society expects and if you don't do that you have no legitimacy) !•Judicial acts create the mandate for other official acts: the legal word thus has profound practical effects!•If this weren't true then the law would be powerless !•Thus, legal interpretation is '"incomplete without violence"!•The law needs violence and violence needs the law !! -The Law Needs violence: because although reasonable people can agree to disagree over whether force should have been use etc, what constitutes a situation where violence is necessary will vary between people, but everyone agrees that violence is necessary at some times!! -Violence needs the law: to be justified. Law provides integrity (Any act in the world needs to be framed in a certain way) !•The phenomenon of martyrdom offers an extreme example of a 'proper starting pace,' for understanding the law (1604) ! ! ! ! ! ! Slide #4 !•Why? Martyrdom reveals the ultimate stakes of legal interpretation, both in terms of violence and ethical imagination!! -with the phenomenon of martyrdom we have the perfect example of tug of war between the law and the individual !! -that is why you have to have the honesty to look at martyrdom to look at really is of stake within the law !! -you cannot bring about change without some form of violence !! •"Law is the projection of an imagined future upon reality"!!-the imagined future of the law is realized and plays out on the flesh of real people !2Tuesday, April 29, 2014!•This imagined future is ultimately realized in the living flesh of human beings. The law always has actual consequences for actual people!•Contested vision of the future unfold violently, whether in warfare, rebellion, revolution, trials, litigation!•"Legal interpretation is either played out on a field of pain and death, or it is something less (or more) than law!! -if you take away the coercion of violence then you are not in the legal realm of the law !!!!!Slide # 5 !•The Declaration of Independence as an act of treason against the crown !•The practical implications of the writing of this legal document show the real nature of legal interpretation !! -they knew their act of legal interpretation could have costed them their lives or could have started War!•Resignation in the face of power; walking off "voluntarily," to prison !! -the certantity of the law creates an instinct to obey !•The violence of sentencing: consider the profound intersection of pain and language in this term !•The judge and prisoner are diametrical opposites in an economy off pain (remember Elaine Scary) !•Ideological stores of punishment provide political and moral justification for what is otherwise abhorrent even when necessary