Violence and the Word

tags

Law Hermeneutics

Notes

Legal interpretation takes place in a field of pain and death.

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somebody loses his freedom, his property, his children, even his life.

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lives have been torn apart by these organized, social practices of violence.

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pain destroys, among other things, language itself¹

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The logic of that world is complete domination, though the objective may never be realized.

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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.

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if there is to be continuing life, it will not be on the terms of the tyrant's law.

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the interpretive commitments of officials are realized, indeed, in the flesh.

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the leaders of the rebellion had certainly committed treason from the English constitutional perspective

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it is precisely this embedding of an understanding of political text in institutional modes of action that distinguishes legal interpretation from the interpretation of literature, from political philosophy, and from constitutional criticism.

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It is, of course, grotesque to assume that the civil facade is "voluntary" except in the sense that it represents the defendant's autonomous recognition of the overwhelming array of violence ranged against him, and of the hopelessness of resistance or outcry.

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Just as the torturer and victim achieve a "shared" world only by virtue of their diametrically opposed experiences, so the judge and prisoner understand "punishment" through their diametrically opposed experiences of the punishing act

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From John Winthrop through Warren Burger they have sat atop a pyramid of violence,

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judges of the state are jurispathic-that they kill the diverse legal traditions that compete with the State.

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designed to generate credible threats and actual deeds of violence

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Thus, what may be described as a problem of will with respect to the individual becomes, in an institutional context, primarily a problem in social organization.

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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.

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According to Mil- gram, the cues for overcoming autonomous behavior or "conscience" con- sist of the institutionally sanctioned commands, orders, or signals of institutionally legitimated authorities characteristic of human hierarchical organization.

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institutionally specified occasions for vio- lence may then be seen as outlets for the aggression that we ordinarily would seek to exercise but for the restraints.

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formal structures for the perpetration of violence permit many individuals to deny themselves the fulfillment of aggressive wishes by "delegating" the violent activity

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Under those circumstances, who will be here to protect Tiede if I give him to you for four years?

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reveals the necessity of a latent role structure to render the judicial utterance morally intelligible.

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executions I can find almost anywhere. If people disappear, if they die suddenly and without ceremony in prison, quite apart from any articulated justification and authorization for their demise, then we do not have constitutional interpretation at the heart of this deed

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if the warden should cease paying rela- tively 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.

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We have rigidly sepa- rated the act of interpretation-of understanding what ought to be done-from the carrying out of this "ought to be done" through violence.

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which is the true act of legal interpretation? 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

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as long as legal interpretation is constitu- tive of violent behavior as well as meaning, as long as people are commit- ted to using or resisting the social organizations of violence in making their interpretations real, there will always be a tragic limit to the com- mon meaning that can be achieved.

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