Friday, May 26, 2006

"I crave the law...I stay here upon my bond": von Jhering and Rober Cover

Law, which in the field of self-interest is prose, becomes in the field of idealism poetry; for the struggle for law, the battle for one's legal rights, is the poetry of character.
Von Jhering, The Struggle for Law, III
Von Jhering in The Struggle for Law praises "the devotedness and energy in the assertion of legal right," the bubbling vitality of each individual that supports the state from within, like the Turgor pressure of each cell that gives a plant stem its stiffness, or the colliding molecules that force a gas outwards by pressure, keeping the gas from collapse.

But why do people fight for their rights?--why do they fight not only when they are likely to win, but even when what has been lost is likely small compared to the cost of the fight? Why struggle even when struggling is against your immediate self-interest?
What is it, then, that works this wonder? Not knowledge, not education, but simply the feeling of pain. Pain is the cry of distress, the call for help of imperilled nature. This is true, as I have already remarked, both of the moral and the physical organism; and what the pathology of the human organism is to the physician, the pathology of the feeling of legal right is to the jurist and the philosopher in the sphere of law; or, rather, it is what it should be to them, for it would be wrong to say that it is such to them already. In it, in truth, lies the whole secret of the law. The pain which a person experiences when his legal rights are violated, is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him as an individual, in the first place, and then of what it is to human society. In this one moment, and in the form of an emotion, of direct feeling, we see more of the real meaning and nature of the law than during long years of undisturbed enjoyment. The man who has not experienced this pain himself, or observed it in others, knows nothing of what the law is, even if he had committed the whole corpus juris to memory.
This assertion of legal right as a call of the pain of one's imperilled nature--the victim's cry for vindication--is the converse of Robert Cover's Violence and the Word, 95 Yale L.J. 1601, the law's cry for retribution:
Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious, though the growing literature that argues for thecentrality of interpretive practices in law blithely ignores it.

Taken by itself, the word "interpretation" may be misleading. "Interpretation" suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. Indeed, pain and death destroy the world that "interpretation" calls up. That one's ability to construct interpersonal realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. Elaine Scarry's brilliant analysis of pain makes this point:
For the person, in pain, so incontestably and unnegotiably present is it that "having pain" may come to be thought of as the most vibrant example of what it is to "have certainty," while for the other person it is so elusive that hearing about pain may exist as the primary model of what it is "to have doubt." Thus pain comes unshareably into our midst as at once that which cannot be denied and that which cannot be confirmed. Whatever pain achieves, it achieves in part through its unshareability, and it ensures this unshareability in part through its resistance to language . . . Prolonged pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.
The wounded feeling of legal right indeed craves the law, as Shylock says; but the law is not merely analogy, it is a physical, bloody pound of flesh, and is thus a wound as well. If indeed God decrees that every crime must be repaid by blood, it can only be said that the judgments of the Lord are true and righteous altogether. But for those who must actually translate the victim's cry into the criminal's cry, truth and righteousness will always be viewed through a mirror, darkly, until the end of days.

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