from Violence and the Legal Process
For the protection of American citizens, the Law necessitates violence. Order must be maintained, safety ensured, and individuals threatening peace must be stopped from threatening the rights of others. In a democratic society, there is no benevolent ruler to enforce this peace. Instead, we rely on community regulation through electorally derived law, with representatives from society itself tasked with enforcement. Psychologically, this process of enforcement against individuals who threaten public order is extremely trying. A host of “psycho-social mechanisms” are evolutionarily built-in to the human mind which inhibit harm to another member of the community,1 even though the member may himself be a demonstrable threat to the community as a whole. These mechanisms often play out in a process of sympathy, envisioning one's self as the target of violence thus inhibiting the enactment of violence. As such, a whole host of processes have developed to allow the community to police itself and enact violence against it's own members.
Robert Cover details in “Violence and the Word” how the entire legal process revolves around separating those who decide to enact punishment on a defendant from the human being who their decisions effect themselves. Orderly legal structure, formal language, and defined roles encompassing only small pieces of the defendants fate separate the community-representative from fully feeling the effect of enacting violence against another person.2 Craig Haney adds that in cases involving the highest level of violence, the death penalty, the community-member on the receiving end of state-sponsored violence is “dehumanized” by society: ...
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...e paradox of self-governance requires the involvement of violence against members of the society itself. This, in turn, alienates members of society and disowns their involvement in the legal process, even members who are not perpetrators of criminal acts. As a result, the promise of community involvement, equal protection, and individual interests are at times limited, damaged, and threatened by the violence of punishment in the legal system. Unfortunately, this paradox cannot be entirely solved. Some issues can be helped; steps can be taken to ensure racial equality in the legal system and policing efforts can focus on involving the community in a process of trust and involvement. However, all three promises are inherently at tension with the violence both enacted and threatened, by and towards, the participatory process of legal enforcement in democratic society.
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