LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE by Austin Sarat (Editor). Princeton: Princeton University Press, 2001. Cloth $42.50. ISBN:
0-691-04844-4 Paper $16.95. ISBN: 0-691-04845-2.

Reviewed by Alisa Rosenthal, Department of Political Science, Rollins College.

Although recent scholarship has developed and explored the role of violence, pain, and death in the law, few of these explorations have explicitly considered the implications of law's violence to the question of justice. According to the introduction, "LAW, VIOLENCE, AND THE POSSIBILITY OF JUSTICE seeks to move violence to the center of theorizing about law and to connect it to the question of justice." It is the latter emphasis that promises to distinguish this collection from earlier collections such as PAIN, DEATH, AND THE LAW (2001) (also edited by Austin Sarat) and LAW'S VIOLENCE (1992) (edited by Sarat and Thomas Kearns).

Although the five essays in this collection all take Robert Cover's work-primarily "Violence and the Word" and "NOMOS and Narrative" (1983)-as their point of departure, the essays reflect interdisciplinary perspectives from law, criminology, rhetoric, and philosophy. The brief introduction by Austin Sarat offers an overview of the questions posed by Cover's work and argues for the necessity of considering the challenge to justice posed by law's violence. The history of law reflects an ongoing and persistent interest in connections between law and justice. However, Sarat argues, the recognition of law's violence challenges and calls into questions understandings of these connections, for "If there is so close a link between law and justice, there must, in turn, be a link between law's violence and its capacity to attain, or aspire, to justice." This link and its implications are explored to differing degrees in the essays that follow the introduction.

Jonathan Simon, in "The Vicissitudes of the Law's Violence," seeks to contextualize Cover's "Violence and the Word" within important changes in penalties in recent decades. This relocation, Simon persuasively argues, enables one to see two "fundamental distortions" that led Cover to normalize violence as an inevitable attribute of law. First, Simon maintains that Cover incorrectly reduces law's violence to a dyadic relationship between judge and prisoner. By focusing so narrowly on the
prisoner and the judge, Cover is able to "sidestep the question of whose interests the criminal law is written to reflect, whose conduct it constrains, or how justice is carried out." In the absence of such questions-and without scrutiny of the increases in racial disparity in arrests, incarceration, and sentencing-acceptance of the asymmetry of power and law's violence is rendered less difficult. Second, Cover treats violence as "an ontological feature of law" and fails to consider
historical changes in modes, rationales, and effects of punishment. Relying heavily on the work of Elaine Scarry, Cover elides punishment and

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torture and suggests that the experience of imprisonment is the experience of the total loss of control by the prisoner. This ahistorical and decontextualized understanding of prison ignores important aspects of modern prisons such as the potential for resistance by prisoners and the effect of modern penological ideas in constraining violence in prison. As a result of Cover's failure to contextualize his discussion, Simon contends that he does not consider whether particular and specific modes of punishment can and have offered more or less potential to mediate law's violence.

For Simon, the crucial consequence of these distortions is their effect on "our" belief in the capacity to reconcile law's violence with the hope that law achieve a "common and coherent meaning." Simon contends that Cover's foreclosure of the possibility of achieving such a common meaning results from positing the inevitability of law's violence. If a more historically and sociologically specific analysis reveals the contingency of law's violence, the aspiration to a common meaning need not be in vain. More than any other essay in the collection, Simon's connects his discussion of Cover's analysis of violence to actual practices in the penal system and demonstrates how the failure to consider seriously the concrete practices of punishment damages the theoretical effort. Although only implicit in Simon's essay, the implication of his optimistic resurrection of the possibility of the achievement of a common meaning from the grave to which Cover consigns it is the possibility of some undefined justice.

In "Making Peace with Violence," Austin Sarat and Thomas Kearns revise an essay from their edited volume LAW'S VIOLENCE. They take issue with Cover's acceptance and defense of the violence of law and his effort to reconcile that violence with law itself, and argue that he "refused to recognize … the way in which violence distorts law and limits the possibilities/prospects of law itself." Among those possibilities with which Sarat and Kearns are concerned is that of justice. Sarat and Kearns explain a fundamental tension in law revealed in Cover's work: "On the one hand, state law participates in the generation of normative meaning; on
the other, state law plays in the domain of social control and uses violence to enforce just one (namely its own) conception of order." The question, then, on Sarat and Kearns's account is "whether Cover can have it both ways…. Can law be homicidal without being jurispathic?" Where Cover answers yes to this question, Sarat and Kearns maintain that, "violence and law can never adequately and satisfactorily be reconciled," and thus depart from Cover's conclusion. Sarat and Kearns attribute the irreconcilability of violence and law to the necessity that judges and legal officials face of supplying compelling justifications for the violence they authorize. Cover contends that the need for such justifications encourages judges to "get it right," but Sarat and Kearns argue for a different consequence. They contend that the requirement of justification for violence results in the uncompromising insistence of the legal order that "what it proclaims as right is THE only acceptable version of right." Thus, the necessity of the law justifying its own violence threatens the flourishing of multiplicity and difference. As in the preceding essay, the concept of justice at work in this essay is largely implicit but it is clear that Sarat and Kearns believe that the law's hostility to multiple normative orders-its
tendency to be jurispathic rather than jurisgenerative-seriously challenges its capacity for justice.

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Unfortunately, the possibility of meeting this challenge, potential means for doing so, and/or the implications of being unable to do so are not here addressed.

Marianne Constable's "The Silence of the Law" offers a serious challenge to the understanding of law as mediated violence assumed by Cover and most other modern scholars. In Constable's account, Cover's conception of the loss of self demanded by violent law forecloses any possibility for the recovery of a normative world. But this foreclosure, she argues is far from inevitable. Both Foucault and Freud offer clues to alternative means of recovering autonomy and constructing common worlds and, thus, struggling towards justice. Instead of accepting such a conception of law as Cover's, Constable argues that, "we should ask how in a tradition of meaning that has strived to identify law with aspirations (if not the essence of) justice, modern scholars and others all seem to identify what is crucial or
essential to law with what was traditionally its opposite: violence and the destruction of a shared world." Rejecting the assertion that law and morality bear no necessary connection, Constable turns to an alternative tradition of jurisprudence, beginning with Plato, which associates jurisprudence with the quest for justice. From this tradition emerges the possibility that the "essentially violent" nature of modern law "may be reason to reconsider its claim to be law, rather than reason to
think…that law essentially occurs in a context of socially organized violence." Constable is not defining away the problem of law's violence. Rather, she suggests that recognition of the non-inevitability of law's violence suggests that one must look for justice somewhere other than the violent law. For Constable, the place to look is language. On her account, language names our lack of commonality and in so doing, establishes a common world. "'Law' is the word for the establishing of this common world which is necessary for law in the sense in which Cover uses the word. Justice, then, is the "fitting-together of persons-in-common and their
world," and its aspiration is inherent to law. Although this is the essay that most directly engages the connection between law's violence and the aspiration to justice, even here-as in Constable's account of Cover's law-it is present largely through its absence.

In the collection's penultimate essay, "A Judgment Dwelling in Law," Shaun McVeigh, Peter Rush, and Alison Young also seek to interrogate the place of violence in law through three glosses on Cover's account of violence, the moment of judgment, and the ground of legal reason. Employing Jacques Derrida's "Force of Law" as a point of contrast to Cover, the authors contend that Derrida's understanding that "force and justice …are the impossible condition of possibility of law" more adequately understands the relationship of violence and justice than does "the overwhelming phenomenality of violence" of Cover's account. In the second and most
compelling of their three glosses, the authors consider the legal judgment as an ethical practice. Drawing again on Derrida and on the "ethics of alterity" developed by Emmanuel Levinas, the authors consider the potential of messianic structures in legal thought and the "promise of future worlds yet to come" for "develop[ing] responses to ethics and justice that respect the vocation of the other as absolute other." Emphasizing the importance of the "yet to come," the authors suggest that a lawful justice would move legal judgment from a merely institutional practice to an ethical practice in which judgment responds to the claims of justice. In their final
gloss, the authors argue that

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Cover's work occupies what they call the "middle ground" of legal reason-a combination of legal positivism and legal moralism-in its struggle to address both justice and institutional practices of law and that this struggle might be usefully considered through the language of jurisdiction. Returning directly to the "field of pain and death," the authors reject the suggestion that violence is extricable from law and draw attention to the "yet to come" as a crucial source for lawful justice. Again,
however, what such a lawful justice might be or do remains unexplained and unexplored.

Finally, in "Why the Law is Also Nonviolent," Peter Fitzpatrick argues that Cover is deeply concerned with drawing a distinction between violence and the word even as the substance of his work reiterates the permeation of the law with violence. Fitzpatrick asks what is at stake for Cover in his insistence on this distinction and concludes that the logic of Cover's account requires that the law must manage, "somehow, to be not only violent but also intrinsically associated with the nonviolent norm" and that Cover's insistence on the distinction between the law and violence, reflecting his desire to overcome this relation, necessarily fails.
Fitzpatrick rejects the logic of opposition that underlies Cover's efforts at distinction and seeks instead to "accommodate the dichotomy" through "a more embracing structure of violence." The conception of violence that Fitzpatrick develops understands violence as "constituent of the word itself … not confined to the painful infliction of physical force, and not one that destroyed the word." In law, then, we find "violence and nonviolence joined and integral to each other." At stake in this
analysis, according to Fitzpatrick, is, "the decisive choice between the violence of determination and the nonviolence of responsiveness." Although Fitzpatrick
warns that we should be "uneasy" about the cost of the "putative finality" of the legal word, here again we find no articulation of the standard for our unease, the concept of justice to which Fitzpatrick implicitly refers.

Taken together, these essays seek to challenge and seriously engage Cover's thinking about the relationship between violence and the law. In this, they succeed admirably and offer thoughtful and important perspectives on the construction of the law and the role of violence within it. As explorations of Cover's ideas, they offer a variety of interpretations and the relatively narrow emphasis on two essays (although several others are briefly engaged) is more than offset by the range of
interpretive perspective brought to bear. Although the collection succeeds in its aspiration to "energize scholarly interest in the violence of law," it has far less to say about "the possibility of justice" and this represents its most significant weakness. Nonetheless, this volume represents an important consideration of the work of Robert Cover and the problems of law's violence. It points the way for further explorations into the relationship of such violence and justice.

REFERENCES:

Sarat, Austin, Ed. 2001. PAIN, DEATH, AND THE LAW. Ann Arbor: University of Michigan Press.

Sarat, Austin and Thomas Kearns, Ed. 1992. LAW'S VIOLENCE. Ann Arbor: University of Michigan Press.

Cover, Robert. 1983. "The Supreme Court, 1982 Term-Foreword: NOMOS and Narrative." HARVARD LAW REVIEW 97: 4.

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Copyright 2002 by the author, Alisa Rosenthal.