As in Austin Sarat, Law and Humanities scholar at Amherst College. As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines. (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law. Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries. We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life. Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.
Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.
Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s. I don’t know if Sarat and Cover interacted much. Really, does it matter? Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) . Perhaps he and Cover never interacted. I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.
Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work. Loneliness has been a particular theme of mine. Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme. They play themselves out in a chorus of questions about space, roles, isolation, and time. When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people. For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture. Sarat likewise prompts us to consider how time shapes our understandings of justice and violence. He writes in the same article prompted above:
For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.
The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire. On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War. In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education. The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:
This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15. I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either. What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.
The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.
1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.
I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win. One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.
Very Respectfully Yours,
Robert Penn Warren
P.S. One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929. In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.
Warren’s reflection of change over time merges with his views of social responsibility. For what its worth, Warren was also wandering around New Haven in the early 1980’s. How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things. How the walls in New Haven must have been ablaze with ideas in the early 80’s.
(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).