community and death, consciousness-raising, law's rationalization of violence, jurisprudential inquiry
The essay is to be published in two parts. Part A, "The Killing Fields .. . ", is a criticai inquiry into the way in which the "disciplines" of law and legal theory rationalize violence. I begin my discussion with a Celtic triptych - a series of three narratives - that is designed to provide the reader with some background information in order that he or she may acquire a sense of the perspective and experiential context from which this essay emerges.
Next, I briefly outline the central role which violence has played in structuring our received tradition of jurisprudential inquiry. I will argue that, without exception, jurists of the western tradition have adopted the fatalistic premise that violence is inevitable, even necessary, in human interaction. Such essentialism constrains in a fundamental way the remainder of their work and, more often that not, imprisons their jurisprudential efforts in attempts to legitimize the violence of one interest group over all others. In short, traditional jurisprudence does not challenge violence, it spiritualizes it.
Next, I outline the fundamental connection between violence and the legal systems of contemporary western liberal democratic society. The purpose of this section is not to belittle the significant accomplishments that have been achieved by liberalism, but rather to demonstrate that we still have a great deal further to go. Our faith in the Rule of Law should not blind us to the inscription of violence within that very idea itself, at least as it is currently understood, or obscure from us the fact that ours may be a social "order ... made with knives", a society of "organized lovelessness". A brief conclusion summarizes the impasse in which modern law and theory find themselves.
Richard Devlin, "Nomos and Thanatos (Part A), The Killing Fields: Modern Law and Legal Theory" (1989) 12:2 Dal LJ 298.