Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Law and Violence
By John Inazu
December 1, 2014
The most important thing I learned in law school was that the law is violent. In the unforgettable words of Robert Cover: “Legal interpretation takes place on a field of pain and death.” Lawyers, judges, politicians, and police officers—and grand juries—don’t interpret poetry. They interpret laws and facts. And those interpretations have consequences. As Cover notes: “When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.”
Legal interpretations pronounce guilt, deny custody, demand payments, and destroy lives. These are violent acts. The grand jury’s decision not to indict Darren Wilson was a violent act. Like many acts of legal interpretation, it confronted two different narratives, two different claims of truth and justice, and chose one over the other. In affirming one narrative, it necessarily negated the other. And there were consequences to that act.
The violence of legal interpretation does not make the grand jury’s decision a moral failure. Nor does it make the grand jury in any way responsible for the physical violence that has ensued. Rather, the decision is one of many violent acts within the violent system of law that we inhabit.
The grand jury would not have escaped the ubiquity of law’s violence with a different decision. Its interpretive act would still have chosen between two narratives, and its act would still have had consequences. In fact, it’s possible that the decision not to indict was the correct interpretation of law and facts. I can’t answer that question. I haven’t evaluated the evidence presented to the grand jury, and even if I were to do so, I could never replicate the deliberation that preceded this particular decision by these twelve people.
I do know, as my friend Chad Flanders has observed, that Missouri’s use-of-force statute—the law through which these facts had to be channeled—is a shockingly broad law that risks grave injustice. And although it looks as though the grand jury was instructed under a better standard, we may never know what expectations and baselines the Missouri law created in the mind of Officer Darren Wilson. We may never know if a different law might have led to a different answer to the question: “Is there any reason why you didn’t wait in the car until your backup came?”
Missouri’s flawed use-of-force law was in place long before the day Wilson shot and killed Michael Brown. So were many other flawed laws in Missouri and around our country that affect law enforcement, criminal justice, housing, employment, credit, and education. Those laws are interpreted, and their interpretation drives actions with consequences. The law that structures our society kills people. Some of the people it kills are innocent. All of the people it kills are human.
Our flawed system of law is still far better than those that govern many people around the world. It is less violent than many alternatives, and less violence is no small thing. But less violence is still violence. And less violence does not always feel that way to those who are most vulnerable to abuses and injustices.
Some of us will pretend otherwise—we will mask the reality of the violence of the law with suits and ties and pristine courtrooms. We will talk in abstract terms of “justice” or “process” or the “rule of law” without asking the harder questions of the flawed laws that distort those concepts. But we can choose to do otherwise. We can recognize that the violence of the law doesn’t just raise the stakes for law’s practitioners—for lawyers, judges, politicians, and grand juries. It also raises the stakes for the rest of us who inhabit the world that it shapes.
This article first appeared on November 25, 2014 at The Hedgehog Review: Critical Reflections on Contemporary Culture.
- John D. Inazu is associate professor of law and political science at Washington University in St. Louis, and a faculty fellow at the Institute for Advanced Studies in Culture. He is a Center for Public Justice Civitas alum.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”