“Legal interpretation is either played out on the field of pain and death or it is something less (or more) than law.” (Robert Cover)

Is legal interpretation either violent or something less (or more) than law, as Robert Cover revolutionarily described it?

In the process of applying the law in court, by the judge, through legal interpretation, one can identify the “conditions of domination“[1], which prove the fact that legal interpretation plays out on “the field of pain and death“[2]. Firstly, the courtroom has a special architecture, the judge’s bench is elevated, whereas the other participants are on the same level, occupying different positions in front of the judge. It is worth mentioning that these remarks are also valid in the context of the application of customary or religious law in a very ceremonial manner, just as Achebe presents the family-related conflict resolved traditionally, through rituals, in the Umuofia tribe.[3] Secondly, the formal particularities of the procedure in court add to this sacral, majestic and orderly atmosphere, in which justice has a sober dimension. More importantly, the way in which the judge has to be treated is essential for establishing this domination – “The judge is addressed never by name but either in metonymic form as ’the court’, ‘bench’, or sacrally as ‘your honour’, ‘your lordship’ or ‘your worship’. It is not a human being […] but rather justice (jus) and the law (lex) that take their place at the pinnacle of a strictly ordered hierarchical space…“[4]. It could be argued that this has a cautionary function of signalling to the other participants that the legal interpretation provided by the court is not only authoritative, but pure law, justice beyond any shadow of doubt, and that it produces pain and potentially death, because judges’ words “frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence“[5]. Moreover, legal interpretation can result in violence that transcends beyond the immediate repercussions of the judge’s ruling; it can also result in violence that will occur in the future as a consequence of how the judge has interpreted the law (in this sense, there is the res iudicata pro veritate accipitur maxim quite important both in civil and in common law countries[6] and, specifically for the common law tradition, there is the judicial precedent and stare decisis).[7]

Cover explained that he used the example of criminal cases to (more easily) demonstrate his point, because “the violence of criminal law is relatively direct“[8], but, on the other hand, this example is susceptible to various analyses. For example, take into consideration that a person intentionally took the life of another and confessed to this. In this situation, when the judge interprets the law and imposes the sentence upon the criminal, from one point of view, the law is pure violence and its interpretation by the judge leads to a person losing their freedom/life, but from another perspective, the interpretation of the law means retribution, gives closure to the family of the victim and justice for the victim. However, this perspective does not invalidate the fact that the way in which the judge understands the law may not always be true (eloquent in this direction are miscarriages of justice, like the case of Lucia de Berk in The Netherlands) and it is what creates pain and possibly death for someone. The situation in which a person confesses is the simplest form, but there exists a more complex situation in which the accused, helped by the defence counsel, tries to demonstrate their innocence. In this case, evidence gathered by the police and arguments brought before the court by the prosecution may persuade the court, and then, the judge’s interpretation (and not the interpretations of the other legal practitioners) of the law will be the one deciding where the truth lies and imposing pain/death upon the person(s). Moreover, historically speaking, in the Middle Ages even confessions were an example of the violence of the law and its interpretation, because most of the time confessions were forced, made under torture or the threat of it (witch trials in the Middle Ages were conducted in this way, innocent people becoming in the eye of the law guilty of witchcraft; for instance, this was the case with Johannes Junius who received the capital punishment on the accusation of witchcraft in Bamberg, in 1628, but left a letter for his daughter in which he proved his innocence and explained the unfair procedure and distorted legal interpretation that lead to his death[9]).

The second part of Cover’s thesis is that when legal interpretation is not violent, it is something less (or more) than law. There are cases in which judges take into account several other relevant aspects apart from the black-letter law, for instance, the spirit of the law, morality and ethics, or the specific characteristics of the persons involved (like in the case Lancashire County Council v. M, Mr. A, Mr. B, The Children[10], where the judge bargained for the fact that the mother was very naive, but well intended towards her kids and decided to leave them with their mother). Another example that illustrates this dimension of legal interpretation could be found in Lon Fuller’s article – “The Case of the Speluncean Explorers“, more precise in Judge Truepenny’s opinion, who said that even though according to the law conviction is required, this is too violent and acquittal would be the just choice. However, this is not an option open to a judge who has to follow the rigors of the law, so he proposes the executive clemency principle to be applied.[11] Therefore, his legal interpretation was more than law, and should it have been only based on the law, it would have resulted in death.

Overall, I agree with the binomial proposed by Cover that legal interpretation either acts on the field of pain and death or it represents less or more than law.

 

[1]  Robert M. Cover, ‘Violence and the Word’, (1986) 95:8 The Yale Law Journal 1601, 1616.
[2]  ibid 1601.
[3]  Chinua Achebe, ‘Things Fall Apart’ (1958), Chapter 10.
[4]  Peter Goodrich, ‘Languages of Law’ (Weidenfeld and Nicholson, 1990), 191.
[5]  Cover (n 1) 1601.
[6]  Scott Veitch, ‘Law and Irresponsibility. On the legitimation of human suffering’ (Routledge, 2007), 25.
[7]  Brett G. Scharffs, ‘How the First Paragraph of Violence and the Word Killed the Law as Literature Movement’, (2022) 37:4 Touro Law Review, 1939.
[8]  Cover (n 1) 1607.
[9] George L. Burr, ‘The Witch-Persecutions’ (1897) 3(4) Translations and Reprints from the Original Sources of European History.
[10] Lancashire County Council v. M, Mr. A, Mr. B, The Children [2016] EWFC 9.
[11] Lon Fuller, ‘The Case of the Speluncean Explorers’, 62 Harvard Law Review (1949) 619.