Law's Violence, the Strong State, and the Crisis of Mass Imprisonment (for Stuart Hall), 49 Wake Forest L. Rev. 649 (2014)
Robert Cover, who died in 1986, did not live to see the concept of mass imprisonment become central to American law and society, but in his article, Violence and the Word, published the same year he died, he seemed to grasp the growing darkness gathering at the heart of American legality. Speaking to other legal scholars and judges, audiences used to thinking of law as a fabric of principles and rules, a realm of logic and reasoning, Cover insisted that law is irretrievably linked to the organized violence of the State and that those who think of themselves as working to rationalize law must work to rationalize law's violence. Intuiting that the fate of America's judiciary was increasingly tied up with the business of sending young Americans to prison, Cover's article was laden with funereal, even alarming images. ''Legal interpretation," he famously began the article, "takes place in a field of pain and death." As a scholar of judges, not of punishment, and of civil procedure, not of criminal procedure, Cover may never have recognized the unprecedented nature of the carceral surge then gripping the nation, nor the politicized and racialized nature of law's violence in the United States. Reading the growing tension in the judicial apparatus over punishment as permanent, Cover's critical intervention in calling out law's violence at a time of highly idealistic models of legal governance was tempered by his urge to make peace with law's violence at a moment when its aggressiveness was surging. Now, nearly thirty years later, as mass imprisonment seems to be losing its grip on American law and society, we need to confront the racialized fear narratives that Cover was unable to challenge or else risk prematurely making peace with law's violence in our time.
This Essay argues that, despite signs of receding, the core racialized narratives of violence that underlie mass imprisonment will help stabilize and relegitimize law's violence in an extreme state. This Essay brings Cover's analysis of law's violence into an extended dialog with the work of the late Stuart Hall, particularly his study of the rise of the "strong state" in the 1970s. Hall, a Jamaican-born, Oxford-educated academic and journal editor, who described himself as a "familiar stranger" to England and provided perhaps the most incisive political analysis of its late modern trajectory, can provide us with the critical tools of race and class analysis that complement and complete those of Cover.