As he stands before his torturers, Coetzee’s Magistrate is asked to decipher some barbarian script. Without flinching, he replies that such character stands for war, but it can also be read as vengeance, or even justice. Standing before the law’s violence – in what used to be his old office, surrounded by ceremonial robes and legal archives, prisoner of his own jurisdiction – the Magistrate savors the polysemic irony that connects law and violence. Even as it aims for justice (and claims to discard vengeance), the rule of law cannot separate itself from violence. It is, to return to a famous aphorism, war by other means. This does not mean, however, that law is simply reducible to war. Rather, the legal form has a particular relationship to violence and authority. Law derives its legitimacy from a specific way of exercising war: the colonial western state. In this essay, I argue that this specific way of waging war – and the institutions created to sustain it – underpin law’s authority in the western imagination.
I support this claim by reading Robert Cover and HLA Hart’s understandings of the law vis-à-vis Coetzee’s Waiting for the Barbarians. After this short (I) introduction, (II) I turn to Cover’s analysis of the relation between legal interpretation and violence, highlighting the centrality of torture and martyrdom in both his and Coetzee’s account. Then, (III) I review Hart’s understanding of “law as a system”, showing how it implies a particular understanding of history, civilization, and colonial authority, which is also shared by Coetzee’s agents of Empire. (IV) I conclude by turning Hart’s affirmation that the legal system is “Janus-faced” upon itself: indeed, the legal system depends on two faces of violence. On the one hand, it relies on the exercise of institutionalized violence. On the other, it actively -and violently- excludes all other claims to authority that do not operate in the register of colonial state-centric institutions. Barracks and courtrooms, as Coetzee suggests, are not only two sides of the imperial rule (Coetzee, at 148), but also the blooming black flowers of civilization (Coetzee, at 86).
2. Violence and the Law
Painfully, Cover reminds us that legal interpretation does not occur in a vacuum, but rather in “a field of pain and death” (1601). The Black Panther trials of the late 60s had shown him that the fictive image of the courtroom as the pure domain of law’s truth could only emerge sustained by an “overwhelming array of violence” exercised upon those who stood before the law (1607). Normative world-making, in his own words, is “never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line” (1605). Legal interpretation, first and foremost, is not inscribed in the court’s archives or the fine print of the judgment, but rather on the body of the condemned: “interpretative commitments of officials are realized, indeed, in the flesh” (1605). Coetzee’s Magistrate agrees, acknowledging that peace always comes with a price (at 15).
Cover uses torture to analyze the relationship between the breaking of human bodies and the making of the law. In his view, torturers not only inflict pain to punish or to question their victims, but to destroy an alternative vision of normative ordering (1603). Coetzee’s magistrate agrees, as he duly notes that a “body […] can only entertain notions of justice only as long as it is whole and well” (126). Torture precisely attempts to disrupt the possibility of a human body – let alone soul – to imagine a horizon of justice. Martyrs, for both Cover and Coetzee, are those who are able to sustain torture without allowing death to break the “imagined triumph of [their] normative universe […] over the material world of death and pain” (Cover at 1605). This is why the Empire sees no need in killing Coetzee’s Magistrate; he is already broken, no longer willing to die and kill for an alternative normative future. As the American war of Independence shows, if Law fails to punish its martyrs, it stands exposed to their claim for a new revolutionary legal imagination. If those who make revolution half-way only dig their own graves, any Law who tortures mid-way meets the same fate.
With this in mind, Cover then proceeds to critique a common assumption in the western legal imagination: the separation between the interpretative “ought to be” and the execution of the “ought to be done” (1627). Thus, Cover argues the idea that judicial interpretation is a practical activity, instead of a purely speculative enterprise. Thus, by imposing meaning on a determinate legal institution, judges create a legal mandate for deeds (1611). Adjudicatory acts, in other words, cannot merely be read, but most be actively performed: they reaffirm their existence through the social organization of legal violence (1628). A judge never sits alone, but in a network of “secondary rules [which] determine the situation” (1625). For Cover, these rules establish the “conditions of effective domination” (1616) and might be properly understood as the “transmission of the engine of justice” (1619). These rules allow legal actors to navigate the narrow gap between interpretation and action, judicial reasoning and violent enforcement, word and deed. They provide the framework to articulate the court’s gavel with swing of the executioner’s mace. Like Cover, we will turn now to Hart, to understand how these “secondary rules” play a role in the imposition of legal torture.
3. Colonial Institutions and the Law
For both better and worse, Hart’s concept of the law as “the union of primary and secondary rules” has become a canonical reference in contemporary legal thought, venturing beyond the parochial debates in English legal theory from where it first emerged. This essay does not offer me the space to reproduce Hart’s critique of Austinian sovereigntist legal positivism. For our discussion, what matters is that Hart attempted to trace a model of law that was able to explain the operations of “municipal law in a modern state” (79). Hart’s innovation lied in his theorization of a body of “power-conferring” rules: those related to legislation, adjudication, recognition, and duty-creation (81). Contrary to what Austin had held, Hart claimed that these rules could not be reduced to “orders backed by threats.” Rather, these rules were conceptually distinct from primary rules, which imposed duties and were largely backed by a binding sense of obligation (87).
One could imagine, says Hart, a society with only primary rules: “a society without a legislature, courts, or officials of any kind” (91). Hart, in fact, was not only imagining this world, but pointed to offshore “primitive communities” to offer an example. Only in their backward huts could a world of mere primary rules thrive. However, this was not the case of “municipal law in modern states”, which had a “developed legal system” (95). While primitive communities where condemned to “a regime of unofficial rules” (92), modern states had robust edifices of secondary rules, including “a rule of recognition”, “rules of change”, “rules of adjudication.” An implicit teleology of civilization lies at the heart of Hart’s famous conception of law as an union of primary and secondary rules. While primitive barbarians had an “elemental” conception of primary rules (which were closer to custom than true law, at any rate), modern states were the custodians of law as a system (94). The history of law, in his view, had proven the importance of “official agencies” and “secondary rules” in the formation of legal systems worth their own name (93). Willingly or not, Hart offers us a narrative of the consolidation of the British bureaucratic and colonial state.
We can imagine Coetzee’s Magistrate had just read The Concept of Law when he asked,
what has made it impossible for us to live in time like fish in water, like birds in air, like children? It is the fault of Empire! Empire has created the time of history. Empire has located its existence not in the smooth recurrent spinning time of the cycle of the seasons but in the jagged time or rise and fall, of beginning and end, of catastrophe. Empire dooms itself to live in history and plot against history (146).
4. Concluding Remarks
Colonial institutions are Empire’s bulwark against the menace of history. They execute, legislate, and adjudicate an ever-lasting vision of law. While the sovereign might perish (leading to Austinian dilemmas of regime-continuity), Hartian secondary rules and institutions – like Coetzee’s ruins in the dunes – stand against the passing of time. They, indeed, constitutes what distinguishes the Empire from the brutish barbarians, either fisherfolk or nomads. Once, the Magistrate had told a deserter under his jurisdiction that “we are all subject to the law” (152). This memory comes when he sees imperial soldiers destroy the tents of the fisherfolk (150-1). This memory comes after the magistrate himself has been subject to the torture of his own law (133). This memory, in fact, provides us an entry point into law’s double violence. On the one hand, when the Magistrate used to tell the deserter he was law’s subject, he reminded him of the wide array of violent institutional practices that permitted him to be caught, tried, and tortured under the Empire’s jurisdiction. One the other hand, this memory makes the Magistrate aware that law also violently expelled the fisherfolk from its jurisdiction; they were not even worthy enough of being subjected under the law. While the deserter stands before the law, the barbarian appears out-law-ed.
With Cover, we have seen that law depends, coexists, and perhaps even demands violence. We have understood, however, that its rites of blood are not aleatory. On the contrary, we have seen that law’s violence is patterned in a Hartian conception of “secondary rules” and modern municipal institutions. This vision, in turn, depends on a teleological reading of civilizations and legal history, in which a barbarian and pre-legal customary world of primary rules eventually gave way for the legal system and its colonial institutions. If political power grows out of the barrel of a gun, this essay turns to the question of which type of gun. In Coetzee’s narrative, it is clear that authority does not emerge from the chief barbarian’s dusty musket (let alone his bow and arrows) (at 71). Instead, it is derived from the Empire’s capacity to exercise violence on an institutional scale. From the weapons and embroiled standards of the soldiers, to the magistrate’s robes, or even the torturer’s pincers, authority is derived from Empire’s claim to “effective domination” over subjects, non-subjects, and even martyrs (Cover at 1616). And, in this way, Magistrate and Colonel are simply two sides of the same coin. Even if the Magistrate would like to think himself as “a defender of the rule of law, enemy in his own way of the [s]tate” (Coetzee at 118), his descent is paved with reminders that the distance between him and the torturers is “negligible” at best (29). After all, Magistrate and Colonel are equally afflicted by Empire’s “mad vision” of history (146). Both crow and albatross, in her eyes, he is the double-headed eagle of Empire (89).
1 Coetzee, J. M. Waiting for the Barbarians. London: Vintage, 2004.
2 Cover, R. “Violence and the Word.” Yale Law Journal 95 (1986): 1601–34.
3 Hart, H. L. A. The Concept of Law. 3rd ed. Oxford: Oxford University Press, 2012.
Daniel R. Quiroga-Villamarin is a graduate student at the Graduate Institute of International and Development Studies (Geneva, Switzerland) and a visiting researcher at Harvard Law School’s Institute for Global Law and Policy (IGLP). firstname.lastname@example.org / email@example.com
Note from the author: This piece was written during my short time at Melbourne Law School as an exchange student. I appreciate Shaun McVeigh (and other mentors, friends, and colleagues at MLS’ Institute for International Law and the Humanities IILAH) for their feedback. All error are mine alone.
This article was first released in the latest publication of the Graduate Press, entitled “Revolutions”. Download the Spring print edition here.