LW927, LW928

The Structural Integrity of Law and its Violence

I have recently finished reading and annotating the substantially interwoven literature for this course, Law and the Humanities 2. Without an overarching conceptual infrastructure in which I can encapsulate these particular reflections and critiques of the law and its role in society, I find that there are many areas of intersection between the three stipulated categories – the imaginary, the fictitious, and performativity. I aim to sketch one of these here. While Lon Fuller explains architectonically how the fictitious is elemental to the law, Robert Cover displays the violence inherent in judicial interpretation. Taken together, they highlight how the violence of law consists precisely in its architectural build, in its institutionalization of fiction, and its necessity for categorization. Both the violence and the fiction in law are perhaps a reflection of not only our imperfect intellectual structures, but also our imperfect world.

In the first chapter of Fuller’s Legal Fictions, the centrality of the fiction to the law is laid bare, not only through the distinction between the fictitious and other categories (lies, erroneous conclusions, and the like), but also through the instantiation of the fiction in common legal tools, such as the legal presumption. One clear example of the fictitiousness of the legal presumption is the conclusive presumption, which is not in fact a fiction because the assumed fact is false, but rather because of the nature of its presumed truth. As Fuller argues, take the statement ‘Fact A is present,’ which would no longer be fictitious if Fact A is, in fact, present, but the conclusive presumption says, ‘The presence of Fact X is conclusive proof of Fact A.’ Therefore the fiction of the conclusive presumption does not rest on whether Fact X is present, but rather on Fact X not being conclusive proof of Fact A.[1] The law relies on distinct categories, and requires sharpness in its lines, but these lines do not always produce the desired results – and so we need fictions, to smooth out the lines. As Fuller notes, “fiction is the cement that is always at hand to plaster together the weak spots in our intellectual structure.”[2] While there is no immediate and necessary normative conclusion to be brought out here (i.e. fictions do not, in themselves, cause harm), one quickly follows from Cover’s article on the violence of legal interpretation.

By arguing that legal interpretation cannot be complete without violence, Cover is not merely saying that legal interpretation produces violence, but rather that legal interpretation is predicated on violence.[3] This implicates legal interpretation beyond the mere understanding of a text or word: “bound at once to practical application (to the deeds it implies) and to the ecology of jurisdictional roles (the conditions of effective domination).”[4] In this way, Cover reads violence into legal interpretation by tying it both to the act of carrying out a judge’s orders, as well the conditions for a legal system, those that ensure that defendants walk into a courtroom, and if necessary, into a jail cell. Putting this in conversation with Fuller, normative conclusions begin to manifest. The fiction that binds together our legal framework has normative character if we accept that all legal interpretation is predicated on violence.

Although I do not yet know how to reconcile these aspects of the law, they seem to me deeply intertwined and illuminating. As we begin the course tomorrow, I look forward to better understanding how these various threads are woven together within the law, ensuring the law’s dynamism and notable limitations.

[1] Lon Fuller, Legal Fictions (Stanford: Stanford University Press, 1967), 41-42

[2] Ibid, 52

[3] Robert Cover, “Violence and the Word” (1986) 95 Yale Law Journal, 1612-1614

[4] Ibid, 1617


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