Violence and the Word

"This article is a great classic in legal studies. And for me it launched a paradigm shift in the analysis of law and justice. Robert Cover was an American law professor and scholar. He died very young but was involved in many important debates of his time. You could say he is a model intellectual for me, in the way he wrote about radical and transformative concepts. What he explains in this article is that the state and the law are structures that constantly deny the violence they are exerting on people. Every interpretive act by a judge or a legislator has violent effects on an individual’s body, belongings, or reputation. One of the characteristics of the state is to take what is intrinsically violent and make it look non-violent. All of our thoughts on these issues are therefore biased, because when thinking about the state and violence, we tend to think of them as opposed: people will for example say that they are against violence or personal vengeance and instead favour respecting legal proceedings. But they’ll forget that the latter option means arresting someone, searching their house, undressing them, putting them in jail, etc. Get the weekly Five Books newsletter In this context, Robert Cover’s text is really important because he reminds us that the law is exerting violence. In essence, we should never oppose state and violence, due process and violence; instead, we should see it as an opposition between the state’s violence and private violence. If we want to define the work of a judge correctly, we shouldn’t say “they’re interpreting the law”; but rather “they’re causing suffering”. There’s a very beautiful text by Noam Chomsky in which he criticizes people who say that anarchism means the law of the jungle, by reminding us that states are the very thing that brought us multiple world wars, millions of victims, genocides, colonialism, slavery, and imperialism. The question is: why do we fail so often to acknowledge this violence? There are two levels of consciousness of these issues. The first level is that of people who are direct victims of it, such as those arrested and thrown in prison. State violence has always been felt this way by ethnic minorities, prisoners, colonised people, etc. But of course, they’re not the ones writing political theory. Beyond the most visible victims, nobody can escape the violence of the state. It’s always there, ready to exert its power. In a way, a subject of the law is first and foremost a person who is ‘arrestable’—always susceptible to being taken into custody. “States are the very thing that brought us multiple world wars, millions of victims, genocides, colonialism, slavery, and imperialism.” But there’s also another dimension. The academics, legal scholars and politicians who uphold the existing political order are not ignorant of what’s going on, yet they would never recognise it publicly. They all belong to an intellectualised culture that constantly distances itself from the ‘mass’, by claiming to be non-violent and ethical and rejecting ‘ordinary’ inclinations towards brutality. But non-violence is a concept that is politically senseless; if you’re in favour of laws and having them respected, you’re necessarily in favour of judges, policemen and their power. In a world of antagonisms, non-violence is nonsense. The judicial world is a world that thinks of itself as extremely rational, but it is one of the most mythological: it denies its own violent truth by relying on myths. And sentencing someone doesn’t just mean sending them to prison: it means living in horrendous conditions, being beaten, sometimes raped, often contracting diseases such as scabies or herpes. By writing this article, Robert Cover wanted to lead his fellow jurists to realise that their discipline doesn’t simply involve analysing universal criteria for justice and the applicability of sentences; it involves directly brutalising people. As a result, this article tries to dismiss the legal tradition from Kant to Rawls. It’s always difficult to judge the influence of a theoretical text, especially in a country like the United States, where the gap between the academic field and public opinion is so large. To some extent, it helped push forward these ideas, and Cover’s article has become a classic for American legal thinkers. But simply because the discussion of an idea becomes more publicly and academically frequent, it doesn’t mean that reality changes accordingly. In the United States, the question of racial justice and mass incarceration is a well-identified issue in academic and public discourse, but the situation for Black Americans has hardly changed in any meaningful way."