Contribution
Against the interpretive turn in legal theory (Dworkin, White), and against his own Nomos and Narrative, Cover argues that legal interpretation cannot be understood as the making of shared meaning, because it is the authorization of violence that others carry out. The paper moves the object of jurisprudence from the judge’s mind to the organization that links the judge’s word to the jailer’s deed.
Key insight
“The judicial word is a mandate for the deeds of others.” Between understanding and action there is a gap that, for an individual, is a matter of will, and for law, “primarily a problem in social organization”. Law closes it by role structures and secondary rules that make officials act on judicial words almost automatically, overriding the inhibitions against inflicting pain (Milgram’s “agentic state”). The judge must therefore interpret with an eye to whether the deed will follow: legal interpretation is “bonded” to the deeds it implies and to “the ecology of jurisdictional roles (the conditions of effective domination)”.
Assumptions
- Most people are inhibited from inflicting pain, and social cues, above all institutional authority, can override the inhibition (Milgram, with Lorenz and Anna Freud’s “delegation” as alternatives).
- Violence is most direct in criminal law, which Cover uses throughout; he says the argument extends to property law, where the violent base is usually not “immediately at issue” (n. 16).
- The paper is about American judges. Its account of plural courts and appellate review is of the US system.
Key results
- Three features of legal interpretation (Part II): it is a practical activity; it is designed to generate credible threats and actual deeds of violence; and it must do so effectively, attending to “the conditions of effective domination”. Where those are absent, “either our understanding of the law will be adjusted … or there will be a crisis of credibility.”
- United States v. Tiede (Part III.A). Judge Herbert Stern, sitting in the US Court for Berlin in 1979, sentenced a hijacker to time served because the US government recognized no constitutional limits there: “who will stand between you and him? What judge?” Cover: “the meaning of her words may change when the roles of these others change.” A judge who cannot change the deeds of official violence “may always withhold the justification for this violence” (n. 48).
- The death sentence (Part III.B). The stay of execution, “literally nothing” as exegesis, is constitutional interpretation, because it shows the warden’s violence linked to the judge’s word. “If the warden should cease paying relatively automatic heed to the pieces of paper which flow in from the judges … the judges would lose their capacity to do violence.”
- No judge acts alone. Appellate review and plural courts mean “the application of legal understanding in our domain of pain and death will always require the active or passive acquiescence of other judicial minds”; this is “intrinsic to whatever achievement is possible in the domesticating of violence”.
- Two limits on common meaning (conclusion): a practical one, that shared responsibility makes coherent meaning unlikely (Arrow); and a necessary one, that perpetrator and victim of organized violence have “achingly disparate” experiences of it.
Claims
| id | claim | strength | support |
|---|---|---|---|
| C1 | A judicial interpretation has legal effect only through the cooperation of others in roles | strong | argument; Tiede; the structure of sentencing and execution |
| C2 | Legal interpretation adjusts to the conditions of effective enforcement | moderate | argument; Tiede; examples (Weimar, mafia trials) in n. 42 |
| C3 | Institutions override individual inhibitions against violence by authority cues | moderate | Milgram, cited; no new evidence |
| C4 | The separation of interpretation from execution, joined by rigid hierarchy, ensures no single mind’s interpretation becomes a deed | moderate | US secondary rules (appeal as of right, three-judge panels, habeas) |
| C5 | Perpetrator and victim cannot share the meaning of legal violence | interpretive | Scarry; the defendant’s perspective in sentencing |
Concepts
- Bonded interpretation: interpretation bound to the deeds it implies and to the jurisdictional roles that make them effective.
- Secondary rules (after Hart), here those that “organize social cooperation in the violent deeds of the law”, which Cover says are “clearer and more hierarchical than those that organize the ideational content of the law” (n. 26).
- Conditions of effective domination: the social preconditions under which an authorized act of violence can be carried out without reprisal, resistance or revenge.
- Jurispathic: Cover’s earlier term for state courts that kill competing legal traditions; here he sets it aside for the office’s “homicidal potential”.
Connections
It revises Cover’s own “Nomos and Narrative” (1983), which located legal meaning in communities; here state law’s meaning is bound to its violence. It argues against Dworkin’s Law’s Empire (1986), whose Hercules is “Hyporcules” because no American judge decides alone, and against James Boyd White. It draws on Scarry’s The Body in Pain, Milgram and Hart. Fiss’s “The Forms of Justice” (LIT-1600, NOTE-1364), by Cover’s colleague and co-author, treats the same dependence from the remedial side: the structural judge’s success depends on actors outside the court.
Bearing on the record
- CASE-176. The paper fits the USIP case closely. The case’s point that enforcement settled who held the building before any court settled who held the authority is Cover’s warden choosing which paper to obey: the police and the security contractor acted on the executive’s papers, and a court’s word could become a deed only if they would act on its. The judge’s reported worry that an order to exclude the new occupants could provoke an “armed battle” is Cover’s “conditions of effective domination” entering the interpretation itself. Cover also offers what the case does not name: the judge’s remaining power is to withhold justification (n. 48), which a refusal to grant an order does not exercise.
- CLAIM-462. The claim says an arrangement’s capacity for effective action and its capacity to be corrected are maintained by different relations. Cover holds a version of this for courts: the capacity to correct by judgment depends on the role structure that carries judicial words into deeds, which is a different relation from the one that makes the judgment right. So the claim’s “that it is new” doubt is partly borne out; Cover does not, though, treat correction of one institution by others, which is the claim’s subject.
- TERM-064 and CLAIM-403. The record’s accounts of legibility and uptake are about whether a distinction or contribution reaches and is taken up by an institution. Cover adds the step after uptake: whether the institution’s judgment becomes an act on bodies through others. A judgment can be legible and taken up and still not be executed.
- CLAIM-464. Cover’s Tiede is the inverse case: a court that could not rely on independent enforcement changed its sentence, so the conditions of enforcement changed what the court would order while the governing law stayed fixed.
No instruction for machine-learning practice; nothing for the anthology.
Limitations
- Criminal law throughout, by design; the extension to civil and public law is asserted in a note.
- The psychology is Milgram’s and is taken at face value.
- US-specific in its account of secondary rules and plural courts.
- No account of what happens when the roles divide between rival authorities, which is the USIP situation; Tiede is a case of absent independence, not of contested command.
- Errors and slips. None found.
Open questions
- When enforcers face two authorities’ papers, what decides which they obey? Cover says the rules are “highly arbitrary, hierarchical principles” but gives no account of their failure.