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Interpreting Rights: An Essay for Robert Cover Author(s): Martha Minow Source: The Yale Law Journal, Vol. 96, No. 8 (Jul., 1987), pp. 1860-1915 Published by: The Yale Law Journal Company, Inc. Stable URL: http://www.jstor.org/stable/796400 . Accessed: 14/09/2011 08:15
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Interpreting Cover

Rights:

An

Essay

for

Robert

Martha

Minowf

the sight of a battered child with the belief / can't reconcile to us, that we create our own world. choose what happens ?Gloria

that we

Anzaldua1

of criticize the expansion Rights are under attack. Some conservatives and to adversariness basis, for contributing rights for lacking a legitimate for law. Some left-leaning or for undermining social conflict, respect or and indeterminate, scholars criticize rights because they are incoherent the Whatever and responsibility. because they fail to promote community reason, rights criticism abounds. A rather obvious historical observation might explain the current popureforms in the last few deand criticism. of political Legal larity rights new rights based upon race, gender, established cades have successfully of and many legal scholars environment, disapprove age, and handicap, these enforcement and of change. On the other hand, the actual articulation those who of these rights in specific contexts has disappointed seek more significant changes. Perhaps, more subtly, the visions of human rights disturb and disappoint relationships implied by newly recognized directions both those who have faith in traditional cultural forms and those who Once rights are perceived as alternatives. have hopes for as yet unrealized as inadequate. to attack, they are widely perceived vulnerable that offers a re? in One contemporary legal scholarship development sponse to each of these critiques of rights describes law's method as "inter? As a theory of judicial action, this interpretive pretation." in theories of social owes a debt to similar developments turn science, no doubt literary

f Professorof Law, Harvard University. I am deeply grateful for the help given by Joe Singer, Jim Brudney, Richard Fallon, Willy Forbath, Mary Joe Frug, Mary Ann Glendon, Chris Desan Husson, Frank Michelman, Austin Sarat, Elizabeth Schneider,Avi Soifer, Vicky Spelman, Kathleen Sullivan, Cass Sunstein, and George Taylor; for the adviceof the Yale Law Journal editors, especially Nancy Marder, Tanina Rostain, and Andrea Stumpf; for the communitiesof inquiry created by two wonderful feminist reading groups, and for the privilege of hearing presentationsby Mari Matsuda, Gerald Torres, Patricia Williams, Harlon Dalton, Robert Williams, and Denise Carty-Bennia at the 1987 Critical Legal Studies Conferenceon Racism as I revised this essay. 1. Anzaldua, La Prieta, in This Bridge Called My Back 198, 208 (C. Moraga & G. Anzaldua eds. 1981). 1860

Interpreting

Rights

criticism, stripes

In law, scholars and theology.2 philosophy, turn.3 Perhaps the idiom join in the interpretive of longstanding capacious enough to permit replication

of many political is of interpretation over debates legal

the purposes and nature of law and judicial action.4 I defend here a par? ticular version of the interpretive turn in law, the version depicting law as a communal in which and attaching law to the social contexts language norms can be generated and given meaning. a version of interpretation with and against that struggles of In established and patterns power my view, efforts to create authority.5 I also defend

2. See, e.g., R. Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (1983) (social theory); M. Buber, Between Man and Man (1959) (theology); T. Eagleton, Literary Theory (1983) (literary theory); S. Fish, Is There a Text in This Class? (1980) (same); C. Geertz, The Local Knowledge (1983) (anthropology);T. Kuhn, The Essential Tension (1977) (philosophy of science); P. Ricoeuer, Interpretation Theory (1976) (philosophy); R. Rorty, Philosophy and the Mirror of Nature (1979); P. Winch, The Idea of a Social Science and Its Relation to Philosophy (1958) (social theory);see also R. Bellah, R. Madsen, W. Sullivan, A. Swidler & S. Tipton, Habits of the Heart: Individualism and Commitment in American Life (1985) (sociologists adopting interpretive ap? proach); D. LaCapra, History & Criticism (1985) (discussing debate among historians about interpretation);R. Levins & R. Lewontin, The Dialectical Biologist 273-88 (1985) (exploring ideologiesof biologicaltheories and proposingdialectical approachemphasizing relationshipsboth among parts that compose whole and between observerand observed);Bell, The Turn to Interpreta? tion: An Introduction, 51 Partisan Rev. 215, 218 (1984) (introducingsymposium on interpretive turn which "signifies the turn of the social sciences?or of those practitionersof this art?from the models of the natural sciences and their modes of inquiry, to the humanities");Papke, Neo-Marxists, Law and Literature Discourse, 1985 Nietzscheans, and New Critics: The Voicesofthe Contemporary Am. B. Found. Res. J. 883 (reviewingJ.B. White, When Words Lose Their Meaning (1984)). 3. See Brest, Interpretation and Interest, 34 Stan. L. Rev. 765 (1982); Fish, Fish v. Fiss, 36 Stan. L. Rev. 1325 (1984); Fiss, Objectivityand Interpretation, 34 Stan. L. Rev. 739 (1982); Interpretation Symposium,58 S. Cal. L. Rev. 1 (1985); Symposium:Law and Literature, 60 Tex. L. Rev. 373 (1982); Weisberg,A Response to Fish and White, 5 Miss. CL. Rev. 57 (1984); White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52 U. Chi. L. Rev. 684 (1985); see also Mclntosh, Legal Hermeneutics:A Philosophical Critique, 35 Okla. L. Rev. 1 (1982) (evaluating interpretiveturn in legal theory); Patterson, Interpretation in Law?Toward a Reconstructionofthe Current Debate, 29 Vill. L. Rev. 671 (1984) (same); Phelps & Pitts, Ques? tioning the Text: The Significance of Phenomenological Hermeneuticsfor Legal Interpretation, 29 St. Louis U.L.J. 353 (1985) (same). Although some scholarsemphasize the multiplicity of meanings in legal texts, the multiple notions of the interpretiveenterprise,and the search for certaintyas itself a symptomof our "collectivedisorder,"Levinson, On Dworkin, Kennedy, and Ely: Decoding the Legal Past, 51 Partisan Rev. 248, 262 (1984), two newcomersto the enterprise,Charles Fried and Rich? ard Posner, emphasize the fixity of meaning. See Fried, Sonnet LXV and the "Black Ink" of the Framers*Intention, 100 Harv. L. Rev. 751 (1987); Posner, Law and Literature, 72 Va. L. Rev. 1351 (1986). 4. See Minow, Law Turning Outward, TELOS (forthcoming) (comparing law and literature movementwith critical legal studies and law and economics;law and literature movement seems to include participantsacross camps defined by other schools of thought). 5. Thus, this project addressestwo distinct, and yet, overlapping debates within academic disciplines: (1) the methodologicaldebate over interpretationversus positivism and functionalism;and (2) the aspirationaldebate over whether to use knowledge to struggle against dominant patternsof power or to treat knowledge as indifferentto, or cooperatingwith, established power arrangements.As cur? rently played out, methodologicalinterpretivistscontest whether interpretationcan be a form of cri? tique and methodologicalpositivistsargue over whether empirical work (or, for lawyers, positive state sanctions)can or should challenge existing social arrangements.Another battle line is drawn between those who advocateresistanceto establishedpower through interpretivestrategies,and those who seek to discover facts, rights, or authority for change. A chart summarizing these lines may help explain 1861

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to norms, through and give meaning occur formal legal outside portantly

a language institutions

in this sense, is an activity interpretation," not to one well as by lawyers and judges. Interpretive activity appeals but instead to people living in worlds authoritative overriding community, of differences. Through interpretive activity, without people summon

of rights, often and im? such as courts. "Legal as in by nonlawyers engaged

relinquishing potential community membership and power. meaning defense against the This interpretive approach to law offers a promising critics. It and left-wing two-fronted war on rights waged by right-wing lack to "new the from the that objective responds rights" charges right and to the charges from the left that rights are indeterminate to the social and intellectual by which individuals by pointing processes This approach and groups make meaning. responds to a charge from the and to a claim right that rights promote conflict rather than community, from the left that rights reinforce individualism at the expense of commu? foundations permits debate over legal and political approach nity.6 The interpretive choices without pretending a social harmony that does not exist and with? It grounds rights in the out foreclosing social changes as yet unimagined. rather than in abstract of communication and meaning-making, processes or enduring foundations. I pursue The first part of this essay defends the interpretive approach. these interpretive themes and develop what may seem to be a counterintuitive defense of rights as tools to express and strengthen community. to the inter? The second part of the essay turns to an important challenge pretive approach posed by Robert Cover's essay, Violence and the Word.7

up a sense of over struggles

why scholars often feel they have strange bedfellows and surprising opponents: methods positivism interpretive using knowledge toresist established ofpower patterns knowledge using toconfirm established ofpower patterns I believe that the interpretivemethod more fully accountsfor other methodsand thereforeis superior to them, but I recognize that the very criteria for evaluating competing methods are incommensurate and inconsistent.Persuasion across camps, therefore, is unlikely to proceed in methodologicalterms. 6. Although there is an intriguing convergence here between the right and left invocations of "community,"the term "community"no doubt signals divergent conceptions.See Parker, Issues of and Liberty,8 Harv. J.L. & Pub. Pol'y 287 (1985) (distinguishingconservativerepub? Community lican communitythat includes hierarchy from populist republicanism,which is committedto equal? ity). Compare Berns, Does the Constitution "Secure These Rights?" in How Democratic Is the Constitution? 56, 76 (R. Goldwin & W. Schambraeds. 1980) (authoritariancommunity)with M. Walzer, Spheres of Justice (1983) (liberal community) and Lynd, Communal Rights, 62 Tex. L. Rev. 1417 (1984) (communityof social change). 7. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986) [hereinafter Violence and the Word};see also Cover, The Bonds of Constitutional Interpretation:Of the Word, the Deed, and the 1862

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the terms of discussion; Indeed, as in other areas, Cover's work changes we cannot go on the way we were going after we hear his words. The second half of this essay engages the terms of the debate Cover introduces, and takes seriously his call to unearth what the interpretive approach may conceal. of de? the usually abstract nature of discussions I will these in themes and explore rights legal interpretation, the context of children's A heated debate about whether the rights. rights bates over of adults should extend tary. Even rights the vulnerability strates the human how choose tion to "reconcile and social commen? occupies litigation declared in the past for children may be withdrawn, and of children's demon? rights to shifting interpretations authorship the sight is very truly of rights.8 For me, the question of a battered child with the belief that we to children In an effort to avoid

to us, that we create our own world,"9 through ac? what happens and interpretation. When I started work on this project not long ago, I thought to myself, Bob Cover will help me sort this out, and help me see where I am wrong. I knew I knew he was working he was critical between sustenance on the essay that became Violence and the Word; of "interpretive" for suppressing legal scholarship law and the interpretation of literary texts. Yet, I from from

the difference also drew ties,

left, this loss This

his conceptions of interpretive communi? and his own practice of creating them. I am one of so many people as Avi Soifer says, in mid-conversation, bereft of words to describe of a man who so understood what words toward can and cannot say. the kind of conver?

essay, for Bob, is my small effort to reach sation he will inspire for years to come. I. A Critique of the

Critiques

Can we create others?

meaning

for

our lives

without

demeaning

the lives

of

?Thomas Two announced criticisms of current

Szasz10 are that

widely

legal

developments

Role, 20 Ga. L. Rev. 815 (1986) [hereinafterThe Bonds of Constitutional Interpretation]. 8. See infra note 28 and accompanyingtext (discussing shifts in constitutionalrulings about minors* rights in criminal justice system). Minors' First Amendment rights also may be undergoing renovation.Compare Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969) with Bethel School Dist. No. 403 v. Fraser, 106 S. Ct. 3159 (1986); see also Kuhlmeierv. Hazelwood School Dist., 795 F.2d 1369 (8th Cir. 1986), cert. granted, 55 U.S.L.W. 3493 (1986) (censorshipof student newspaper rejected by circuit court; Supreme Court review pending). 9. Anzaldua, supra note 1. 10. T. Szasz, The Manufacture of Madness 287 (1970). 1863

Morgan. 34 Nat'l Rev. 1137 (1982). 1987 and that this explowithout legitimate rights have proliferated authority social con? sion of rights has produced.g.Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentiousand Litigious Society. Calls for Anarchy. e.. 1978."Id. the Lawman. See. 1."and "a body or ground upon which something is built up or overlaid"). however. supra note 6 (we can assess degree of "democracy"of Constitution by looking to issues involved in its ratification).-Apr... Silberman. Will Lawyering Strangle Democratic Capitalism?. Friedman. Suffice it to say sively debated.Judge Robert H. are internally as "freedom" posing and reinforcing a notion that every individual is autonomous and 11. Yet the dictionary defines "foundation"as simply the underlayer upon which we place subsequent layers?not an ultimate bedrock." crisis of legal legitimacy. The Federalist Soc'y. so I will not rehearse the arguments new kinds of legal rights that serious public figures and scholars challenge and other anchors of legal for lacking basis in the text of the Constitution flict. and by reference to specific contextual features we can resolve. people make meanings and test them with their ways of living.. Any word re? peated many times out of context can come to sound absurd. but in context and use. see Dalton. freedom and security.J. 1864 . 12. See. 13. The Struggle over the Role of the Court. See also Berns. Total Justice 6-22 (1985) (discussing perceived"litigation explosion. Justice William J.31 UCLA L. rights presupprevailing system. the tension between.g.The Yale Law Journal Vol. The Great Debate: Interpreting Our Written Con? stitution (1986) (speechesby AttorneyGeneral Edwin Meese III. R. dysfunctional Both charges have been exten? and loss of community. we found institutions. and President Ronald Reagan). at 15.constituting an order. Nov. and by choosing among contexts. 997 (1985) (discusses inconsistencyand indeterminacyof contract doctrine). N. and produces for criticize In some scholars addition. respond to the objectivistor functionalist theorists in terms of their own criteria that express a contrastingtheory of knowledge and meaning. yet by moving between word and context. The integrative. Reg. In context.Y.we are participants.18 illness in this society that prevents the development on Critical with the Conference Scholars associated Legal Studies ad? vance another critique of rights."14 according those who wield of evils and the manipulation by mystification permits the legal in those who confront alienation rights rhetoric. such to the critics.11 here. The search for foundationsis often treated as a show-stopperin a cultural and political milieu uncertain about ultimates. See also Galanter. at 43. Contexts themselvesare mutable. Such incoherence. 14. interactive frame of analysis adopted in this essay does not. both governmentaland private").and charges of "too many lawyers")." "the basis upon which something stands or is sup? ported. Rev. and "security. at E23. Disabling America: The "Rights Industry" in Our Time 3 (1984) (expandingconcernover civil liberties in America has "disable[d]major Americaninstitutions. 96: 1860. Brest. litigiousness. This charge can be met with the response that legal rules are applied in specific contexts. supra note 6.See Webster's New Collegiate Dictionary 454 (1977) (foundationis "the act of founding. Justice John Paul Stevens.S. with rights is an some even charge that the preoccupation authority. Meese. Mar. 1986. similarly. Some of these scholars argue that rights because they articulate incoherent contradictory goals. Bork. col.Bork. An Essay in the Deconstructionof Contract Doctrine.12 of social harmony. Times. See L. 2. not given. 44 (harmful effect of expanding legal process on society). 4 (1983) (arguing that perceptionsof pathologicallitigiousness in U. people endow it with meaning. This analysis identifies modern doctrinal developmentsand invites judgment in these terms rather than in terms of the increasing number of lawyers and lawsuits. as well as expressed. Berns. We create founda? tions. language takes on meaning. at least for that instant case. Friedman'sanalysis explores the sub? stance of a "new legal culture" that includes a "generalexpectationof justice" and "a general expec? tation of recompense. are incorrect). 94 Yale L.Jr. e. say. Brennan. For an elegant version of this claim.

Interpreting Rights disconnected individuals from others. the good. James Boyd White. the multiple. at 1606 n. or some other authoritative to multiple with ing? Or is each text always susceptible interpretations. at 268. supra note 3. 819. The Contest of Faculties 182 (1985). Rev. 22 Harv. When DifferenceHas Its Home: Group Homesfor the Mentally Retarded. and for emphasizing autonomousindi? vidualism rather than communal responsibilities. see id. In these works. Cal. Fish. a literary theo? rist. past with future. 19.B. See Violence and the Word. that texts Cover have each expressed I call the "interpretive turn. working by rhetoricalprocessesthat it has establishedbut can no longer control. Equal Protection and Legal Treatment of Difference. with a deconstructive approach. he argues: "This Constitution?like other such instruments?is thus in a literal sense a rhetoricalConstitution:it constitutesa rhetoricalcommunity. See R. Fiss. Conventionalism. C. See Fish.19 Some legal theorists hope to find foundations for legal meaning in the analogy to literary interpretation. meanings in legal and literary Debates theory authors who have developed ideas about communities. on this set of ideas. others of legal suppressed. Ronald Dworkin. The Fish-Fiss debate is an obvious instance. "Forming Underneath Everything That Grows": Toward a History of Family Law.-C. Norris. supra note 3. the author's intent. about conceptions of community. 58 S. in discussing the debates in literary theory and legal theory. The Question for Community (1953). L. My own work has criticized rights for preserving an inquiry into "real difference" in the equal protectioncontext. J. supra note 7. which u[l]egal argument by which our words help to create to provide contexts for tradition. L. supra note 3. L. Working on the Chain Gang: Interpretation in Law and Literature. Nisbet. My concern about White's work is that it paints too cozy a picture of the world. supra note 2."20 Ball 15. see also Levinson.R. 18.see Minow. Similarly. 167-92. 551 (1982). C. 1865 . see Minow." White is an organized and systematic process of get and change their meaning. in specific foundations perhaps rists communities times of interpreters."which appeal to consensusmeanings. at (legal theorists engaged in debate about nature of textual interpretation). Fiss. 1985 Wis. 177 (1985). L. at 246. Rev. I also have argued for reinterpretingrights to embody a richer conceptionof human interdependence. It establishes a new conversationon a permanentbasis. 60 Tex. See Fish." Id.17 Can the reader discern the "true" mean? meaning of the text. Rev.L. instead of connected in important ways to other re? and to society in general.16 although diverge on their These particular of individuals. assuming agreement and commonality precisely where they are lacking. 20. and the concerns debates in literary about legal texts resemble debates theory the meaning of literary texts. When Difference Has Its Home]. 17. and creativity with and Robert Ball. in the work and some? of several no authoritative converge the ways and discourse.15 This communitarian challenge sembles the yearning for social harmony in the of some writings present conservative conservative and radical scholars critics. It is perhaps not surprising that legal theo? meaning?18 and literary theorists read and cite each other in the midst of their debates.which emphasizesthe irreconcilablechoices posed by texts. Rev. supra note 3. linking Milner variations writes that conversation to establish shared hope to expose texts. ChristopherNorris.l5. has compared what he calls "con? servativeuses of the analogy between law and literature. 111 (1987) [hereinafterMinow. 16.This essay is another effort to read rights in this way. White.

Nonethe? and unoffifor his framework less. right past. understanding legal meaning?official notion of a and cial.25 of individuals My own approachseeks to make disagreementand differencecentral when different people interpret their social relations through a rhetoric of rights. at 47-49. Unger. and may even be undermined by the official legal rules. One meaning legal rules that con? cern relationships "Rights" typically scribes the enforceable individuals. 1982 Term?Foreword: Nomos and Narrative. interest.22 Cover evokes the normative commitments?some universe that uis held together by the force of and small and private. see id. siderable ambiguity and because much ink has been spilled by legal and political theorists on is the formally announced this subject. Lying Down Together: Law.W. powers."24 narratives. at 228-29. proposed law as medium?law containing rather as connecting the dynamics is constructive: it aims. and word in legal. 22." is conthere is a difficult task because debates. Metaphor."28 He adds that u[t]he intelligibility that provide the context of in the communal of the narratives character in which normative For Cover. L. 23. and destabiliza1866 . of such rules in a form that deor groups against the state. but he rejectsthe possibilityof discerningthe author's intent.21 suggests that Law's attitude "I have explains: than disconnecting. and Theology 122 (1985). Some theorists have offered typologies of rights and analyses of the relation among kinds of rights. Fundamental Legal Conceptions (1919) (analyz? ing distinctionsand relations among privileges. market rights. and the official groups.. finally. Berlin. Defining "rights" political in the meanings invoked in the debates about rights. 24. Rev. Dworkin. 2 Poli? tics (forthcoming)(distinguishingimmunity rights. 25. 96: 1860. The Supreme Court.calls for exploration of the layers of meaning and tensions between practices and purposes. 47 (1983) [hereinafterNomos and Narrative].The Yale Law Journal Vol.. Perhaps more than the others. at 66. Ball. among are the articulation claims state. to route to a better to show the best over future. See I. the kinds of communities can be nurtured are likely to be outside official secular legal meanings culture. Law's Empire 413 (1986). enhancing Dworkin of life in common. at 10. R. an expression though divided in project. and rights). See id. Two Conceptsof Liberty. analogizing legal and literary interpretation. He specificallysuggests that we can "discernin internationallaw the shaping of a forum and a language for the dynamics of internationalconversation. 1987 a flow of dialogue. immunities. Cover's critique of the interpretiveturn is the subjectof Section II of this essay. and conviction.in Four Essays on Liberty (1969) (distinguishing positive and negative liberties). R. an overused what I mean by "rights. and instead. M. 97 Harv. others immense interpretive of normative behavior inheres public. through communal I should try to clarify on these interpretive Before drawing themes."Id. keeping of how we are united in community tude. Hohfeld. practice lay principle atti? It a fraternal the faith the with is. Dworkin is inter? ested in finding foundationsfor legal decisions. Id. public meaning-making upon private?depends that behavior. solidarity rights. philosophical. 21. in the interpretive spirit. Cover.

Sex and Marriage in England 1500-1800.Interpreting Rights will become important in this essay. See. N. of rights. and to construct communities apart from the state to nurture new conceptions of rights. in this sense. Legal Rights and Social Democracy (1982). Rights and Persons (1977). the general definition of rights offered in the text will be the touchstonefor my analysis. A. 561. See generally Theories of Rights (J. Golding. Rights here encompass even those claims that lose. then. or cognizance. See also Cover. formal others (and them? what they should be Yet a second how they should be treated and about I all mean. The Family. at 296-99 1867 criticisms . with precisely those rules formally announced and enforced by public au? rise thorities. and claims transformed social rights rights. then. 96 Harv. ed. Melden. rights A. instead. rights or informal?of claims selves) about represent articulations?public that people use to persuade or private.g. are voiced that once were life.26 Children's rights include many of the rights dren's tion rights).L. Rev. Human Rights (1982). Folktales of Justice: Tales of Jurisdiction. 26. connections between and future claims of past of inherited of interpretations understandings lawyers of legal and nonlawyers in composing institutions. 1 Soc. if they continue to re? their continuing present claims that muster people's hopes and articulate efforts to persuade. and that certainly there remains debate about when life begins for this purpose.L. Waldron ed. and therefore. Early treatmentof infanticideand contemporarydebates about abortion suggest that even this "right to live" is less than obvious. e. 14 Cap. "Rights" can meaning to consciousness" so that individuals and give "rights groups may and act in light of rights that have not been formally imagine recognized or enforced. Perhaps right to be safe from murder. are neither limited to nor co-extensive Rights. those rights that have been granted in the past. I mean to downplay the significanceof the state both in the generation and enforcementof rights. A. 179 (1985) [hereinafterFolktales of Justice] (exploring normative language apart from official power). efforts to claim new rights. L. Luker. 1977).. Abortion and the Politics of Motherhood (1984) (reviewing abortiondebates). The Critical Legal Studies Move? ment. or have lost in the past. The through have persuaded others and unsuccessful. new new Interpretation engages inside and outside meanings express opposition Against to this interpretive }s Rights The Charges Familiar Children of rights are quite pronounced in the context of chil? no one denies child's a to live. Phil. Unger. to include within the ambit of rights discourse granted. Charges against process. The Primacy of Welfare Rights. As signified by my second definition of rights. is not simply awareness of Consciousness. Instead. & Pol'y 119 (1984) (comparing right to liberty with welfare rights as entitlementsto goods). R. Gewirth. A Theory of Justice (1971). Stone. See K. J. rights. MacCormick. Taking Rights Seriously (rev. U. I am interested in the normative discourse of rights. and I do not mean to engage directly the vast philosophicalliterature on rights. Although some of these distinctionsmay be helpful to particularargumentsdevelopedin this essay. 1984) (essays on varied conceptionsof rights). to resist and alter official state action that fails to acknowledge such rights. but also knowledge of the or unheard have become process by which hurts that once were whispered claims. Rawls. Dworkin. 597-600 (1983). Rev.

in Parenthood 220. Whose Children?: Children's Rights. 28. Com? pare In re Gault. 27. An article directed at nonlawyers cites as absurd the case of a Coloradostudent who sued his parents for intentional infliction of emotional distress after they pun? ished him for smoking and selling marijuana. A cartoon in a newspaper may show a little tyke introducing a stranger to his parents: "Mom and Dad.S. or claims for relation? ships with others.The Yale Law Journal Vol. and State Power (W.27 unwarranted searches and seizures. 387 U. 96: 1860." or perhaps. 1985)).D. take the form of claims for and free? Children's rights may independence dom from constraint. Community School Dist. Res.U. rights particular right quality education meet the individual's needs. 398 (1981) (states may require parental notification before unemancipatedminor de? pendent upon her parents may obtain abortion). But see H. 1868 . a right to decent foster care when under state or a right to a hearing before suspension from public school. 1984). T. Children's Rights: A Legal Perspective. Silverstein. Matheson.A. an imagined triviality of the kinds of concerns represented by rights for children: "Strike! Strike! For Children's Rights /Longer week ends /Shorter school hours /Higher allowances /Less baths and showers /No brussel sprouts /More root beer /And seventeen summer vacations a year! If you're ready to strike?line up right here. 9 Harv. 265 (1984) (denying minors protectionsagainst preventivedetention because minors lack liberty interest identical to that of adults). Rev. 222-23 (R. Judges and Other People's Children.28 of and freedom whether to terminate freedom choice from about a pregnancy. I'd like you to meet my lawyer.80 These days. as well as a target for critiques of judicial excesses. Rightsfor the Next Generation:A Feminist Approach to Children's Rights. Freeman."31 and inconJokes point out extremes gruities. but because they make us uncomfortable. 66-67 (1974) (critical of "liberation"for children.S. Minow. Bar.. L. L.L. 31.S. Mnookin ed. v. Children's Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their "Rights. M. 469 U. and counsel in juvenile court proceedings) with Schall v. the Court ruled that children do enjoy Fourth Amendmentprotections.but that their content may differ from the protectionsassured to adults. Tinker v. 428 U.Hafen. Vardin & I. they represent (abr. 503 (1969).S.L. 1979) (discussing traditional acceptanceof infanticide). in Chil? dren's Rights: Contemporary Perspectives 21 (P. 467 U. Houlgate. Brody eds. 1979). 629 (1968) (approvingconvictionfor sale of magazinesto minor although magazine would not be obscene if sold to adults). children's rights have become a subject for jokes. Rodham. See generally Minow. 29. claims for care and protection. 390 U. Planned Parenthoodof Cent. Rightsfor the Next Gener? ation] (exploring links between struggles for children's rights and women's rights).Y. New York. Weissman eds. custody. Cohen. The Rights and Wrongs of Children (1983)." S. Women's L. Educ. Are Rights Rightfor Children? 1987 Am." 1976 B. Found. ed. But see Ginsberg v.S. such as rights to freedom of expression. Martin. Equal Rights for Children (1980). Mo. 52 (1976). cross examination. Danforth.29 Children's rights also could include to like a to tailored to children. In New Jersey v. 30. 44 Harv..J. Parental Authority.S. 253. J. Cohler & S. We select these oddities for humorous jibes not simply at random. 1980). 325 (1985). Cohen. Children's rights make adults or uncomfortable because new old ideas in new ideas. 1 (1986) [hereinafterMinow. see also An Interview with Marian Wright Edelman. A Light in the Attic 128-29 (1981).O. Mikva. 1987 enjoyed by adults. LaFollette eds. 393 U. See H. A best-selling humor book includes a rhyme that betrays a lingering sense of incongruity in the idea of "children'srights. Aiken & H. Rev. 1 (1967) (guaranteeingjuvenile rights to hearing. 53. (forthcoming)(reviewing In the Inter? est of Children (R. The Child & the State: A Normative Theory of Juvenile Rights (1980). B. who instead need "special protections"). 450 U. 605 (critical of rights for children). Des Moines Indep.S. v.

This demand invoked and entitlement of each student: Each student deserves an children's Increasingly. many parentsubstitute. this public neglect. each child needs opportunity a judicial the actions of school grant of an individual right to restrain authorities. This exonerates pattern particular parents. It is rarely adversary in nature except with respect to the 32. and. . supra note 30. in an effort to challenge public complacency results in particular cases. In due the Court misapsystem mandating process procedures the of the normal There prehends reality teacher-pupil relationship. shared. setting. . in the first instance. Franklin Zimring and Raymond Solomon provide a thoughtful exploration of the facts and arguments behind the litigation in a recent case study that providesthe basis for some of my analysis. the often. 1869 .88 Advocates for children make claims about typically children's rules of and discre? rights. the art of trivrights express. The ideological debate in Goss involved views competing of human before relationships. that and by the formality is. 419 U. Such conflict was raised the autonomy to be heard before facing punishment. 33. Rights for the Next Generation.*4 considered what process was due to children facing disciplinary action by school officials. adviser. Current of damage to children. friend. See infra note 123 (discussing child abuse statistics). In his dissenting by legal procedures?that which he read aloud from the bench. through of power adults generally Too have over children.Interpreting Rights forms. roles?educator. a student could The plaintiffs demanded due process hearings be suspended from school. haps.82 anyone but the child's par? ents from responsibility for the care and needs of the child and shields the child from public view. 34. occupy at times. at 5-8 (discussing patterns of economic and psychologicalrisks for children and neglect of children in public arena). community. See Zimring & Solomon. Justice Powell emrelationships would be frustrated In assessing in constitutional terms the need to protect pupils from unfair minor discipline the Court ignores the by school authorities. by rights. In contrast. of children is forgotten in a culture that assigns adults and existing practices have children's to the private sphere of care. and signal that though. See Minow. in In the Interest of Children 450. Goss v. Lopez: The Principle ofthe Thing. Goss where the Court by Supreme Lopez. thus. of interest of the State and commonality pupils in the public school . is an ongoing one in which the teacher must relationship. rights have triggered sharp ideological v. despite prevailing parental judicial and to yield particular tion. due to patterns should disturb our complacency about poverty and other social conditions. debates. 565 (1975). the defendants a of school as presented conception or In such a the interests of individuals are family.S. distance opinion phasized Continuing imposed in Goss. vulnerability for their responsibility about Per? to change. . jokes the positions ializing. supra note 30.

. at 476 (letter accompanyingdraft brief). 1870 . would be community adults where there otherwise The children lack the kind of autonomy of the idea a require right. in adversarial to teachers and school administrators.. 419 U.S. 419 U. 442 U."86 on the other side: of an the inculcation in any meaningful sense includes and obedience of of rules in each the understanding pupil necessity merits censure for his student thereto . relationships debate when over the proper rules governing relationships and public schooling are the focus. quoted in Zimring & Solo? mon.. appropriate as to are so formalized if for their or procedures application applied which reinvitation to the teacher's authority?an invite a challenge are likely to accept.R. the recognition of rights seems to define and the distance between seem to pin Rights for students people. presumed by this critical would undermine adults.S. and therefore.. The rules that govern life within the school also convey a message to students about the world beyond the school. and shared interests. and treating medical professionalsas capable of providing independent review of parents' decisions). When an immature if sanctions are not is a he rendered disservice conduct. when claimed and children and between relations create conflict and adversarial recognized.S. at 593-94 (Powell. see also Parham v.The Yale Law Journal Vol. 96: 1860. J. J. Children's rights second is that and competence from protection be- relationship 35. 36.. supra note 34.. the idea teach phatic the of the choice Lawyers that "freedom young of rules and for the children in the Goss was not lost on the plaintiffs their to weave into arguments sought in the schools to are necessary democracy Powell adopted an equally em- argument Justice democracy. Letter from Erie Van Loon to Denis Murphy and Ken Curtin. 584 (1979) (presumingnonadversarialrelationshipbetween children and parents who seek to commit children to mental hospitals. J. dissenting) (footnote omitted). The significance litigation.87 bellious or even merely spirited teenagers Education Implicit and grant to the assertion in Justice Powell's position are two objections of rights for children. are especially Choices about children the next generation starkly require society to make decisions about funda? mental values for the future. 37.86 frustrating must In the terms accentuate them The intense of this debate. 1987 or insubordinate disruptive chronically pupil whom the teacher without be free to discipline formalities. The first is that rights. at 593 (Powell. dissenting).

871 (1986) (criticizingWhite).40 The fear that translates. Women's movement. 121-58 (1986). because no one is listening. and even silence. 20 Harv. Rev. at 445-46. Yet. L. L. Reviewing Legal Fictions. L.Some of the consequencescould include distorting the nature and scope of perceived conflict by the demand of an established idiom. and it does not mean consent.L. Sanford eds. Women's Claims: A Study in Political Economy 102-26 (1983) (exploring how prevailing system shaped claims of U. See. 40.and that external intervention between parent and child will undermine the development of this sense of internalized limits. See G."). distort.Parents and Childhood as Seen Through the Interviews. 1. See generally L. see also MacKinnon.g. One legal observersuggests that "in a paradoxicalbut importantsense. C.or for emphasizingautonomy rather than cooperation.Interpreting Rights tween children and adults. because no one believes us. Frenkel-Brunswick.see J. Frenkel-Brunswick. Community. for example.39 Affirming Community Interpreting Legal language Conflict and judicial but does not initiate. J. in turn. 446 (1986) (reviewing In the Interest of Children (R. e. 359 (T. and Speech. Manifestations and Social Consequences. Rottleuthner eds. Rev. many theorists have emphasized how the relationshipbetween parent and child demands that parents have authority to restrictchildren's per? sonal freedom. complete with language and institutions. 86 Colum. Jan. 165-66 (1985) (discussing effect of exclusively English-language schooling on children primarily fluent in another language). Haven in a Heartless World 174-78 (1977) ("delegation of discipline to other agencies" than family promotes projectionof "forbiddenimpulses" onto outcast groups). 1985)).S. Steiner. and overwhelminglydo not today. Savings & Loan Ass'n v. conflict.L. Rev. Using language that is not one's own can limit.S. 55 U. Some theorists have maintainedthat the child must internalizea sense of parental authority. The formalityof processesset in motion by rights claims may also alter or even impede certain kinds 1871 . Kagan. The Nature of the Child 257-64 (1984). E. The Conditions of Discretion: Autonomy. Probs. 39. e. Fitting women's claims. See generally Abel.R. e. others charge various forms of the interpretive turn with submerging conflict among groups. L. 1987) (No. Blankenburg. Exploring Test Cases in Child Advocacy. at 1163-65 (1986) (discussing limits of legal language to respond to women's issues). your demise doesn't make a sound if no one is listening. which.something may be lost in the process.. where conflict can be enacted and temporarilyresolved..See C. Levinson & R. Handler. Pornography.g. E. in The Authoritarian Personality 358. The translationof conflict into legal discourse is not without consequences.88 vantage sis provides B. have warned against "abandoningchildren to their rights. a child has a basic right to be protectedagainst freedom"precisely because learning about the consequencesof bad judg? ments is an importantpart of childhood.D. 48 Law & Contemp. This silence does not mean nothing happened. Hafen. Adorno. another But the interpretive to legal analy? approach from which to view these point objections. 20.-C. the law itself can be reshaped by the conflicts brought to it. 1118 (1986). supra note 39. Women did not 'report' [rape and battery]events. see Soifer. I suggest that law is one arena. 4077 (U. Mnookin ed.W. California Fed.S. 1980).See. 20 Ga.in Alternative Rechtsformen und Alternativen zum Recht: Jahrbuch fOr Rechtssoziologie und Rechtstheorie 27 (E. The child will grow up feeling weak." Id. 100 Harv. Bureaucracy 72-76. 14 (1985): [I]f you are the tree failing in the epistemologicalforest. Rev. and others. Finley. Peattie & M. 85494) (interpretingTitle VII's antidiscriminationcommitmentto be consistent with California's preg? nancy disability leave statute). Finley. Klausa & H. After Babel: Aspects of Language and Translation (1975). Delegalization: A Critical Review of Its Ideology. Although some observerscriticize reliance on legal rights for introducingadversariness. 1950) ("[T]he existing identification with the parents is often accompaniedby a more basic identification with mankind and society in general. into an equality frameworkthat makes sameness to men a prerequisite may distort or deny the importanceof differences. See Minow. raised new categoriesof claims). Transcending Equality Theory:A WayOut ofthe Maternity and the WorkplaceDebate.. and will want to find others to be scapegoats.Hafen. Civil Rights. Learning To Live with the Dilemma of Difference: Bilingual and Special Education. Lasch. As with so many translations. Thus. Rein. 157. 435. of would inject conflict and invite recognition rights for children 38. Although child-rearingnotions are themselvesdeeply imbued with the political attitudesdom? inant in a particularculture at a given historical moment.See. Guerra.g.

835 (1985) (exploring presenceof state even when state does not "intervene"). It is difficult. 96: 1860. Worlds Apart: Relationships Between Families and Schools (1978) (exploring complex. after racial conflicts hearings The school administration by black students students were shot disturbances. The Constitution and Deconstruction of a Disputes-Focused Approach: An Afterword. children. to conclude that providinga parent with absolute power to overrule a determination. Lopez litigation. Id. at 47. A Reporter at Large: A Disagreement in Baileyville. supra note 39. Ohio schools at the time of Goss were not unusual with respect to the pres? ence of conflict. interactionsamong parents. court that students had rights. 41. Some might claim that the two problems suggested by Goss and Danforth representextreme cases of conflict in settings usually characterizedby harmony. 18 U. Simon. at 467-68. 428 U. 1499-1504 (1986) (welfarejurisprudencedistortedby rights rhetoricand analogy to private law). Denying pendent legal rights in such a situation hardly prevents conflict. The use of rights rhetoric. these events. at 460-61. Zimring & Solomon.45 Asser? tion of rights public in these contexts does not initiate a method expression and provides conflict. was present long before anyone asserted in students were suspended without Minority in the Columbus.S. but rather for public resolution. 75 (1976). and officials in school settings). two black These events a local chapter racism in the several precipitated of the NAACP met school disciplinary by white students. See Trubek. it may appear disruptive. See. Following students to discuss practices. 46. philosophical might preferable. 1984. Litigation per se may enlarge disputes that would otherwise smolder. as demonstrated by the Goss v. Bureaucratic Justice (1983) (discussingdetrimentsand benefitsof mass deliveryof adversarialprocessin benefits context). and the warfare of litigation. See Fitzgerald. Planned Parenthoodof Cent. supra note 34. family but may be impractical. 42. Jan. J.See generally S. Shortly thereafter. to terminate the patient's preg? nancy will serve to strengthen the family unit.. at 459-72. at 141-53 (separating adversarinessfrom liberal legalism and calling for cooperativedimension in reconstructingrights). 43. 52. 16. but it also may narrow disputes that would otherwise expand. The Myth of State Intervention in the Family. J.42 with parents and conflict ways. and we would not devise rules for the extreme 1872 . an abortion consent because of her parents' religious or parental warm be consultation opposition. supra (advocatingtort claims for women injured by pornography).48 In such a context. Lightfoot.made by the physician and his minor patient. Ref. and often conflicting. 727. Mo. however.41 erupted had cancelled an assembly program organized for Black History Week. See J. the minor inde? given the circumstances. 1987 rebelliousness is mistaken in two First.44 Similarly. v. 45. 15 Law & Soc'y Rev. Ohio schools.g. Neither is it likely that such veto power will enhance parental authority or control where the minor and the nonconsentingparent are so fundamentallyin conflict and the very existence of the pregnancy already has fractured the family structure. Id. and therefore. Rights and Redistribution in the WelfareSystem. The claim of rights. The New Yorker. it is difficult to believe that the introduction of legal would a of nonadversarial interests shared rights disrupt community where a pregnant minor seeks among students and teachers. Mich. can make covert conflict overt.46 gives it without of communication. as well as new claims. 1431.38 Stan.The Yale Law Journal Vol. e. teachers. Handler. Mashaw. Danforth.L. need not predeterminethe forms of requisite processes. see also Olsen. 44. 732-33 (1980-1981). The Columbus. MacKinnon.people can use rights discourseto develop new proceduresand remedies. L. Rev. however.

. . however. Such objections have been raised to criminalizing a marriage47 and to giving within employees rights. Ct. barring "state intervention"from the family in the name of domestic harmony. 64 N. Less powerful charactersmay not be allowed on stage. 1986) (citation omitted).50 This right a school notice and disputes. Easterbrook. 2029 (1985) (holding marital exemption for rape unconstitutional). Rev. 10-14 (1984) (urgingjudicial attention to future consequencesof princi? ples laid down today rather than merely retrospectiveresponses to particular fact situations). This view producedthe traditionalmarital exception to rape laws. Family Law and Legal Theory. L. 32-34 (1980). reconfirm rights arguments.S.98 Harv. O'Donovan.E.The Supreme Court 1985 Term?Foreword: The Court and the Economic System. Liberta. 4. expresses the contrary view that rape within marriage is blameworthy and is typically an expression of unequal power within the marriage and of actual spouse abuse. see Note. 50.2d 221 (1985) (disallowing marital exemption for rape). Note. right ultimately to no more have than minimal with would a conversation or parent an opportunity for the student to much as school official. I suggest that the rules we devise help create the exceptions. L. The current trend. In re? sponse.2d 567 (1984). 49. an exemption defendedon the grounds that it promotes marital privacy and reconciliation. 79 Harv. 16 New Eng. at 594-96 (Powell. 419 U. Rape and Battery BetweenHus? band and Wife. and as official rules enforcing in those changes create conflict only by giving public voice and force to people patterns. 336 S. process does not inject conflict because in essence. 48. 1255 (1986) (urging analysis in terms of gender discrimination to expose power relations). cert. In the ritual legal opera only certain kinds of song can be performed. Striking a New Balance: Freedom of Contract and the Prospectsfor Union Rep? resentation..in Legal Thought and Common Law 184.Y. 357-63 (1984) (discussing institutional and conceptualobstacles to realizing employee rights). Comment. Litigation Between Husband and Wife.48 Rights. People v. See Weiler. . 1650 (1966). Some school officials suggest that Goss actually permits educational opportunities by framing discussions of discipline and fairness. 47. To Have and To Hold: The Marital Rape Exemption and the Fourteenth Amendment. dissenting). Twining ed. Rev. have been levied by people who do not want to change existing of domination. School Superintendents'Seminar. The particular announced in Goss amounted community. and the important challenge for the legal communityis to build frameworksilluminated by what we may have made marginal in the past. L. See Hilf.2d 152. Harvard Graduate School of Education (June 17. 6 Stan. 31. State. Rev.E. Sexual Harassment of Working Women 3-4 (1979) (discuss? ing limits of legal language to express women's felt experiences). Law is a powerful mechanism for recognizing or hiding the desires and perspectives of those whose lives it governs. 255 Ga. This point goes to the formulation of ideas. 1986). as both initial efforts to demand public debate about existing pat? terns of private power. 98 Harv. 191 (W. L. any sensitive talk to a child before punishing her.49 official situation. Cf. Marital Privacy and Spousal Rape.only certain persons can sing. 99 Harv. 719 (1954). 474 N.Interpreting Rights In other sariness patterns rape committed the charges that rights introduce conflict and advercontexts. L. 351. Although may amplify focus attention on it. their presentationin language and their legitimacy in law. For a discussion of the earlier view. 105 S. Rev. L. denied. J. See Warren v. Others suggest that Goss proceduresinside the schoolhouse promote settlement of issues that might otherwise go to court. it also may transform conflict into verbal physical the introduction of rights to the school disciplinary Secondly. such expression conflict and previously ignored. Legal language and structuresmay make some points of view less easily expressed or may even suppress them. 1873 . 151. MacKinnon. Rev. But see C. Rev.

96: 1860. The law establishes roles and relations and voices. containing the dynamicsof life in common. Harrison. that is the law. see also M. reprinted in J.Justification (and Justifiability) reciprocalrecognitionof sameness-within-difference. . those even in in a larger community. . L. speaks little of community rights signal and strengthen their claiming rights implicitly to accord similar regard who are Those a community. By invoking rights. and it gives us as speakers the materials and methods of a dis? course.enhancing a flow of dialogue. 347 (1981) (citing J. that very act implies the existence of a similar claim for every other member of our species. 92 (1986) ("a right. equally fundamentally. Making the Connections: Essays in Feminist Social Ethics 168 (1985).100 Harv. positions from which and audiences to which one may speak.their Michelman. it may not.The Yale Law Journal Vol. to a conversation in its traditions. Barbara Harrison put this essentially Kantian insight this way: "If any of us is prepared to invoke anything as a human moral right on our own behalf. 108. The Supreme Court 1985 Term?Foreword: Traces of Self-Government. those who exercise face. supra note 22." a claim that becomesnegotiable by public standards."). White. this claim acknowledges its authorities. even though the responseto any claim ought to be understoodas temporary.not merely to clothe our private outlook in public disguise. Tussman. Letter from a BirminghamJail (Apr. We are forced to find or create a commonlanguage of purposesor aspirations. King. 1963). community.this language in the fullest sense of the term. We are forced. Ball.so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudiceand racism to the majesticheights of understandingand brotherhood. at 63 (citing Wittgensteinfor notion that participantsin social practicemust share form of life to recognizesense and purpose in what another says and does). It makes us members of a common world. J.52 In a deeper sense. and in the larger group." B. her participation membership the language of rights. Eyes on the Prize: America's Civil Rights Years. at 266. 4. 53. Pitkin. Martin Luther King's justification for "direct action" as a way to assert the rights of blacks intertwined notions of communal connectionwith demands for change: Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondageof myths and half-truthsto the unfetteredrealm of creativeanaly? sis and objectiveappraisal. to transform"I want" into "I am entitled to.The purpose of our direct-actionprogram is to create a situation so crisis-packedthat it will inevitablyopen the door to negotiation.51 Although her observation or convention. see also Michelman.R. supra note 2. at 187 (1987). fear. but to becomeaware of its public meaning. Rev. supra note 21. and of the larger community an individual or group claims the attention the claimant's At the same time. ofLaw in a ContradictoryWorld."). .Any judgment.a claim grounded in human associa? tion"). .5S Stating a claim in a form devised by those claiming rights implicitly the act of seeking to change 51. ambition or interest. . 43 (1986) [hereinafterTraces of Self-Government]("It is the legal characterthat marks the output of the debate [of the common? wealth] both as the productof reason and as the expressionof the citizens' concreteuniversality. on its sur? of its forms. 116-17 (1960)): Drawn into public life by personal need. Williams. at 122 ("I have proposedlaw as medium?law as connectingrather than disconnecting. invest themselves relation to it. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue. Theory 327. Obligation and the Body Politic 78-81. agree to abide by the community's to the claims of others.B. may set a precedent for the next case. This commitmentto basic equality is the powerful appeal of rights rhetoric. Justice on Relating Private and Public. is.working in the social context of its own creation. however much it may be a claim to respect as a distinct person. It is this discourse. 28 NOMOS 71. . Such civil disobedienceefforts express a 1874 . may actually affirm. we are there forced to acknowledgethe power of others and appeal to their standards. Dworkin. . . but then again. . 9 Pol. then. as Joseph Tuss? man has put it. and response. 1987 of the way in which asserting is a good example rights rather than disturb. 52. 1954-1965.

and willingly accepts the penalty by staying in jail to arouse the conscienceof the communityover its injustice. L. Community mem? bers do not necessarily share substantive beliefs. and as a signal of a shared heritage and shared life. and moreover. The due process right in Goss is special in its specific call for communi? cation and attention to the individual student's Thus. 56. My notion of interpretation includes civil disobedience. Cf. Even beyond a community the particular the Court in Goss.Interpreting Rights who are powerful in the community. 14 Pol. Rev. 10 Harv. Such a claim representsan especially powerful statementwhen it is made by those who know they have been excluded in the design of the very proceduresfor self-governance. 54. For the student. Theory 523. scientific propositions. "having pend right" try depends Maybe to take that right seriously. 548 (1986) (toleration as necessary for "plurality of potentially reasoning beings"). Structural Due Process. includes the activities of those who adopt the "community"interpretiveframeworkas part of a tactical effort to be heard. 305-06 (1975) (commitmentto real dialogue at heart of legitimacy includes agreement to avoid privileged place of some views over others). See O'Neill. the Goss ruling announcing ness of the Justices to engage in a serious conversation about students' of the needs and.-C. indeed." Id. 1875 .and questions of taste remain good friends as long as they continue to use the same communicativeframework. Communitiesare those networks of people who believe their past communicationshad mean? ing and who have faith that future communicationswill also have meaning. Sim? of the vice-principal upon the willingness that right depended upon the willing? ilarly. 527. Auerbach. Tribe. The Public Use of Reason. 55. Carter. J. Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics 15 (1985).55 Can the student persuade to her? the not. and secures the attention the of right thereby through the procommunity commitmentto the aspirations of a community belief inherent in "efforts. Successful privacy claims and restraining orders in domestic abuse cases. initial assertion from and in its ultimate school engages suspension that can build process of discussion form. have this effect.L. subgroups living within an essentially or even partly alien culture face a difficult dilemma in deciding whether to submit their disputes to the courts of the larger community. Good friends who disagree strongly about ideologies. the claim of right granted by Supreme of A initiates a form communal asserts a claimant any right dialogue.R. Yet even these rulings result from an institutionally-frameddiscussion forcing people to recognize each other's boundaries. C. is in reality expressing the very highest respect for law. in particular. in his letter to the eight Alabamaclergymenwho urged the Negro communityto press for rights in court but not in the streets: "I submit that an individual who breaks a law that conscience tells him is unjust.54 in? The skeletal due process mandated by Goss exposes how dependent order and how those dividual community rights are upon the established people to respond rights forge connections among individuals by requiring the vice-principal not to susto each other.Thus. a willingness to include students as members bound together through rights. Justice Without Law? 69-94 (1983) (discussing resistance within immigrant communities to submitting disputes to governmentalcourts and retention of local religious or ethnic tribunals).56 community. the right student and school to a hearing administrators before in a of respect. both in its dignity. 269. as well in the community expresses as a tactical decision a willingness to take part to play by the rules of the only game recognized by those in charge. The results of some rights claims may be a ruling that some people do not have to deal with others." King continued. L.

685 (1985) (urging resolutionof debates by referenceto local.and the New Narcissism. Jardine eds.made binding by those who make them.The Yale Law Journal Vol. I believe it is possi? ble to avoid this dispute by conceivingof rights as part of legal language. 1982. should be understood as the language of a continuing process rather than cedures the fixed new rules. has been a subjectof considerabledispute. Mar. 1981). Objectivityand Inter? pretation. Compare Kelman. You could understandthat a person arguing with you is giving you her time in a joint effort at mutual understanding. Miller trans. rights pro? which depends human interconnecupon and expresses articulations between children in this sense 57. 60.60 Here. at 153. 424 (1987). Kann eds. or other privacy. 15. Pa. 36 Stan. Rights as Trumps. communal process of communication. .59 They seek the chance to negotiate new relationships between in the arrangements of daily life.And the outcomeis somethingother than victoryfor one party and defeat for the other. 1977)) (on master/slave relation). Rev. for example. reaches temporary resting points from the community are not "trumps.Enforcementremains contingentupon the willingness of the community'sofficials to signal their meaning to the communitythrough force or threatenedforce. 133 U. The action becomesdialogue rather than diapolemics.R. L." Williams. used to express claims that depend upon particular choices. though response is temporary ited scope. Legal rights. The Oedipal Riddle: Authority." but the language we use to try to others to let us win this round. "(RJights are to law what consciouscommitmentsare to the psyche. Trashing.57 The le? and this and of lim? gal authority responds. for their meanings. Whether rights are "determinate. seek statements that will articulate new bound? protections. Hegel.Autonomy. judicial they Rights aries and connections to use these judicial children and adults vide a language and adults. at 33). R. in specific contexts."both their origins and future viability depend upon a continuing. The success of a play or a piece of music can be measured. Rev. Rev. Al? though particularrights by their very content may assert a power to "trump. Eisen? stein & A. Alchemical Notes: Reconstructing Ideals from Deconstructed Rights. C. at 133 (quoting The Talk ofthe Town. in Theories of Rights. The Evolv? ing Self (1982). This notion of a continuing process of setting and resetting boundaries through communal debate over rights claims resemblesthe conceptionof continual redefinitionof the selfs boundaries. claims which Rights discourse can be made. it provides the occasion for the next claim." M. .along the lines of a dance." 59. 739 (1982) (taking issue with indeterminacythesis). But see Dworkin. The participantswould then be taking part in a joint enterprisewhose purpose is a performancethat works.g. See supra note 14. Benjamin. The Bonds of Love: Rational Violence and Erotic Domination. Kegan.That way. 34 Stan. 1987 has designated for hearing such claims. "by its ability to elicit connectedness. in The Future of Difference 41. supra note 21. Rev. 47-51 (H.See. The New Yorker. . L. Diggins & M. situated analysis) and Fiss. 96: 1860. 22 Harv.a conceptionpowerfully present in the work of some psychologists.58 When advocates for children persuade ask a court to recognize to due children's rights process. argument is a form of cooperation.. but also by the meanings are creatednot only by the discretionary conceptionsof the litigants and the pressures producedby the broaderpolity. L. Phenomenology of Spirit 111-19 (A. Ball. See infra Section II (respondingto discussion of violence and power). In this sense. 293 (1984) (suggesting indeterminacyof rights and legal doctrinal categories) with Boyle.No rights are selfenforcing. 1876 . it has been suggested. Benjamin. rights are like commitments. 58. supra note 25. Argument might be thoughtof theatrically.-C. e.L. L. This is what I call the "interpretiveapproach. Those judgments of the officials involved. The Politics of Reason: Critical Legal Theoryand Local Social Thought. 1980) (citing G. in Authority in America 195 (J. then. 401."whether their stated content determinestheir specific meaning in particularcontexts aside from the enforcementchoices made by specific officials.

ity. Insofar as a given set of rights the results of past struggles. The civil rights movement. for example. The rhetoric of rights draws those who use it inside the community. James Boyd White put it this way: "[T]he [legal] case establishes an essential between equality people . equality communal debate. and should. For a discussion of how the conversationamong judges in multi-judgecourts can. out knocking with adults. power to the individuals' claims. . I mean to acknowledge approach both the attractive and unattractive The his? baggage of rights discourse. about separate rights Giving testify child abuse?and even to on from the pected rights videotape. the respond or withhold response rhetoric of rights remains available for yet another individual or group to individual claim This attention the claims and participate. and respect for individuals and a different historical association of discourse: its challenge reject rights of or that an authoritative basis or tinge legal positivism objectivity implies beyond current human choices. foundation at the in our culture. at 274. claims of rights have a special resonance are still vulnerable to rebuff. in rights discourse current and future even when that discourse depends on nothing beyond human choices. 72-77. provide a model for the self-governingconversationfor the larger community. In addition. them off the see-saw In adopting this interpretive to rights. White. supra note 2. can add to the persuasive force generated commitments. if minimal. freedom. created a legacy of for the Fourteenth the commitment of Amendment. I mean to However. which may complicate or even jeopardize made a different already by inviting community response."61 The discourse of rights registers com? recognize mitment to a basic equality the as participants. even among participants view when the participants are children. .Interpreting Rights tion when individuals ask others to recognize their very moment children to in court sus? interests. see Traces of Self-Government. and it proceeds by a of argument and conversation that both recognizes the individual's of his own situation and complicates that view by forcing him to the claims of another. and urges the community to pay attention to the but underscores the of the established order to claimants. 1877 method .B. form of discourse draws each claimant into the community and to participate in the process of grants each a basic. meanings reflecting embodies the civil rights activists and the officials persuaded by them to incorporate elements of the movement into the formal legal system. It is important. the ways in which this basic form of equality creates a kind of com? of power and status may well remunity from the ways that inequality guish 61. but they Thus. to distin? however.supra note 52. Invocation of those and that history. at 34-36. it expresses a particular substantive commitment. away testify the balance of power toward children. with? defendant?tips temporarily. J. torical in our culture with notions of equal? of rights discourse association is appealing.

consid? court. 65. Relatively recently.S. Justice wrote Stewart. Smith v. Organization for of state decisions to remove foster challenged rights the foster parents' attorney framed sought to establish a complaint on this old view. Even though the children's attorney opposed due process rights. 1878 . 584. question process rights the fact that the district Court on review. separately and Justice Burger joined by Chief Justice that the state law rejected the to emphasize 62. 602 (1979) (presuming that parents act in their children'sbest interests. in fact.S. The district conflict of interest be? held that a potential court. The appointed counsel happened to be a lawyer with long-standingassociationswith several private foster care agencies essentially allied with the state in opposing due process rights for foster parents.66 nized children as distinct persons. The complaint drawing that foster parents' rights over the child in their care would be sufficient to trigger a due process hearing before the state could move the child to The plaintiffs' another placement. See Chambers & Wald. she urged the court that no adult has a "right"to a child. See Schall v.62 which Reform?* their foster placements.65 yielded no answer Although care in the foster due the constitutional of context. as if to children. J. 64. Id. children have become subjects. 816 (1977). unlike adults. tion registers a procedural an equal right to equality: ual emergence of the idea that children can. On this basis. and children provide important rather examples than on both counts. 63. the district court treated the children as separate tween persons with distinct interests that must be voiced in the legal conversa? to speak for a separate tion. see V. Further. 253 (1984) (Court authorized preventive detention for juveniles who. Rehnquist. the children and the foster parents required separate representation of the children. have participa? The grad? rights marks a property. Zelizer. at 81. OFFER. Foster Families v.. Id.Court rejectedclaims that children deserveadversarialdue processprotections before civil commitmentpursued by their parents). 467 U. The Supreme Court has not always recognizedthe distinct personhoodof children. lack liberty). Pricing the Priceless Child: The Changing Social Value of Children (1985). and the Supreme ered the claims of the children's recog? attorney suggests that the judiciary consideration.R. however. at 91-95. 442 U. and that foster parents cannot obtain "squatters'rights" to a child simply by caring for other people's children. deserving independent Moreover. departure children were Equality children and from from an older view that adults have In Smith objects. 1987 main within the community. Parham v. Martin. in the community bound together by rights discourse.S. For a fascinatingaccount of the transformationof children's social value from economic pro? ducers to objects of affection.The Yale Law Journal Vol. 66. and their be heard.64 attorney claimed to represent both the foster parents and foster children in their shared interest in maintaining relationships. the court appointed attorney to the case ultimately the foster children. in In the Interest of Children. at 96-97. supra note 30. 96: 1860. 431 U.

We of membership disturb or chal? It is. As Carol Gilligan has noted: "If you have power. the very claim of rights by the foster parents dren tutions fused. precisely differences between and groups.L. Rev. DuBois. 89 Harv. economic. in a communal them entitled sort of process.Y. . Both features of traditionalrights discourseare not immutable.S. 513. MacKinnon & Menkel-Meadow. white. Gilligan. The assertion but it does not itself something important.E. 34 Buffalo L. mentally.2 (1976) (opinion of Stewart.' Here. Rights may in recognition enof is the equality The equality signaled by rights discourse? claims is an of attention.69 individuals What. A persistent problem with rights rhetoric.Traces of Self-Government. not the same treatment. of power. The registered by rights equality rights tradition in this country sustains the call that makes those in power at least listen. at 43 and to pursue shifting and flexible re? (law should recognize citizens' "sameness-within-difference")." Marcus. 356 N. The Role of theJudge in Public Law Litigation. equality. concurring in judgment). nor transform the community into Rights claims neither confer equality one of complete equals. as in so many claims of equality: for example. rights. Rev.2d 277. equal to whom? Unstated is the presumed standard for comparison of the adult. . Moral Values. however. There remain unstatedassumptionshere. Spiegelman. and rights can be urged precisely to recognizedifference. tail different treatment. This basic equality should not be con- the chil? implicated as participants and with full political. 1281. Jeffreys.supra note 52. Dunlap. and politically. see Chayes.2d 543. Another problem is the seeming "yes or no" quality of rights. The Miller-Wohl Controversy:Equal Treatment. 285 n. different. 11. physiand The content of children claim cally. even though interpretivists. given such inequalities. Rev.. you can opt not to listen. social. L. See supra note 39. 1300-01 (1976) (need for "ongoingremedial regime" in public law litigation where assumptionsof community are challenged). rather than more fluid and flexible notions. which gave them roles to the basic equality of consideration accorded by legal insti? to community members. sometimes talk as though communal discourse communities produces know our communities are not like that. 62 (1985).Posi? tive Action and the Meaning of Women'sEquality. and certainly and more vulnerable. 70. and for individuals and treated the as less than The intergroups throughout community equal.see Krieger & Cooney. 40 N. at 857 (quoting Bennett v. and the Law?A Conversation. of economic and political unequal arrangements or the powerless course.70 67. or cultural however. then. 431 U. 69. And you do so with impunity. emotionally.2. competent male 1879 . The 1984 James McCormickMitchell Lecture: Feminist Discourse. J. 552 n. one which can effectuate equality in the context of inherent sex differences"). 13 Golden Gate U. are usually less powerful that others economi? Children. words and as forms?structure attention even for the claimant Rights?as who is much less powerful than the authorities.68 accomplishes lenge cally of equals. no news to either the powerful power have power. lief. 68. that those with in particular. very rights invoke protection against others.Interpreting Rights u 'squatters' idea creates some that long-term custody of children "67 as were children though property. like White. is its implication of some essential "sameness"as both a preconditionand consequencefor basic equality. traditionally. 564 (1983) (urging feminist litigators to adopt "a new model for sexual equality .

Nonetheless. liberal.and legitimating a violent end? This is the question posed in Section II. at 179 (discussing feminist attempts to show that "knowledge and identity are forged in social relationships"). 75. even in momentsof apparent political rebellion. infra. of rights an interpretive conception is a way to take the aspirational language reliance on inherited promote change by of the society seriously75 and to traditions.72 those who use it in a Rights discourse implicates form of life. Keniston. These questions may be included in what Cover consideredas problems of jurisdiction. and very American. commanding. 46c-92c (G. Keniston. But will the judge shatter their shared world by directing. made before a judge. feel so shut out that the appeal to a communal commitment to rights makes no sense to them. Youth and Dissent: The Rise of a New Opposition 214 (1971): With these particularyoung men and women. and will be least adaptable to the vocabulary is a risk continue Which claims will of preexisting claims. Surely. as a plea for recognition of membership in a community shared by applicant and much as The lan? reader and author of text. Young people. WhenDifferenceHas Its Home. 72. at 110-11. Philosophical Investigations 73. Compared to these traditional values. in particular. Young Radicals: Notes on Commit? ted Youth 127 (1968) (young radicals' nahive hope that political system would work produced frustrationwhen it failed). K.76 lenge those who want to close the doors excluded have fought and found their way citizen. in tones that desire to be recognized guage of rights voices an individual's demand recognition. Audre Lorde eloquently raised the problem that The Master*s Tools Will Never Dismantle the Master's House. 96: 1860. democratic. These are issues for struggle. 76. which in almost every case were humanitarian. Anscombe 3d ed. intellectual. what was most impressivewas not their rebellion against their parents or American society. 1987 pretive approach construes a claim of right. There questions that those points of view that have been silenced in the past will to go unheard. in Sister Outsider 110 (1984). 74. 1958) (exploring relation between language games and forms of life). Cf. supra note 15. our actual society seemed to these young radicals (as it does to me) grossly wanting. studied in 1967. a pattern of social and political commitment. She wrote: "What does it mean when the tools of a racist patriarchyare used to examine the fruits of that same patriarchy?It means that only the most narrow perimetersof change are possible and allowable. L. legal discourse 1880 .71 share the world the judge. see infra text accompanyingnotes 201-02. claims? Which claims." Id. It is a way to chal? now that some of the previously in.73 and how? With what consequences for persuade. but their ultimate fidelity to both?their principled acceptanceof the core values of their families. and some struggles may well take place beyond rights discourse. Wittgenstein.The Yale Law Journal Vol. Some people may beyond language. 71. may take the aspirational rhetoric of adults seriously. Efforts to disclose the unstatedstandardare especially importantwhere there is a coincidence of knowledgeand power: where the respectedpoint of view goes unstated because the speaker is able to remain unaware of other points of view simply because the structuresof privilege and power give his point of view the appearanceof truth. See K. See Minow. will be recognized as prior and subsequent even deserving communal attention?74 These are difficult and persistent in a community committed to rights discourse. This does not mean that there are no importantdifferencesbetween rights discourseand other kinds of conversations. indeed.See infra text accompanyingnote 190 (discussion of coerced conversationsby litigants before court).

dedicated to invigorating words with so that even the powerless can appeal to those words.77 contemporary Africa. the conversations can reinforce. When the "conversation"is situated within legal institutions. 71. the tools may be used for renovationsthat make the house unrecognizableto its former landlords and more hospitable to others. F. That utopia. 77. N. Burger's Daughter 296 (1979).79 Committed to available a rhetoric of where it has not been heard before. 89-90 (1986-1987) (language of racial difference reinforces historical race relations. . . . and claimed differenceas "that raw and powerful connectionfrom which our personal power is forged. A South African visitor. 115. see R. In my view.Interpreting Rights The metaphors and conversation of interpretation enable a conception of community the connections of words in the forged through exchange In a novel about for South powerful struggle meaning.and perhaps more sanitized. "language can act as a brake upon the rate of social transformation"). See K. 80. It and admits historic uses of power to power to restrain."id. so that they can move about in rights?there?in their own country. rather than correct. who have equal opportunitiesto contributeto and influence what is said and what it means. The Jurisprudential Foundation ofthe Apartheid Legal Order. told me that he was most amazed by the way that Martin Luther King and others invoked the symbols of the United States as banners for their struggles. That the Constitution and the Supreme Court represented ideals that could be claimed by the excluded seemed unthinkable to this South African. The contrast between South Africa and the United States is telling. at 112. . and potentially physical. 1881 . 78. . without it. .80 If there is is a paradigmaticcase. making rights this community uses rights rhetoric to make conflict audible and unavoidable. Ferguson. how can you . . an emphatic claiming of differencesthrough rights language could help transform existing legal and social structures. I'm talking about people who need to have a statute book.and its consequencescarry legal. watching the televised special "Eyes on the Prize" that chronicledthe American Civil Rights Movement of the 1950s. Nadine Gordimer's Rosa Burger responds to a critic of liberalism by saying: I'm not offering a theory.To continue the metaphorof the Master's House. F. than mine. 79. just as Audre Lorde's own prose transformedinherited language and ideas. Harris. act?78 The kind use of rights discourse affirms of community: a community acknowledges silence?and but it affirms a particular community. People must be able to create institu? tions?institutions must evolve that will make it possible in practice. Reading the Signs: The Force of Language. Goldberg. or to certain forms of words. the patterns of domination. and suppressed of view to be heard. even if limited to words. decide what work they'll do and what their chil? dren will learn at school. See also Dugard. Gordimer. points commits itself to enabling deny. The Feminist Case Against Bureaucracy 22-29 (1984) (discussing subjugateddiscoursesand possibilities for speaking about values and points of view excluded by contemporarybureaucracies). 122 (1986-1987) (Black majority lost confidence in South African law given its role in apartheid). Yet. But White's version is more comfortable. See supra note 20 (quoting White). if the conversationsdo not take place among equals. it's inside . 18 Phil. For eloquent explorations of the processes of translation and distortion when people bring their claims to the legal system?and for depictionsof resulting successesand failures. 18 Phil. is a community that exclude. the patterns of domination become impressed with state power. force. to make covert conflict overt.

1983). L. Noonan. Educ.U.S. 84. 82. Governing the Hearth: Law and the Family in NineteenthCentury America 287-307 (1985). Mnookin. For example.The Yale Law Journal Vol.'") (footnote omitted).Y. rights stresses challenge needs. 96: 1860. that claims attention rights may enlarge children's state power over both children C. to know their own interests. indeed. Raz. 105 S. R. at 324 (describinghow all potential parties are moved by needs of mentally retardedpeople until "insatiability" of needs leads people to worry about costs and to worry about being overwhelmed). T. Right-Based Moralities. in 83. Rev. large dismay be public or private. See. Rights Do Not Presuppose against Autonomy is that children rights for children to protect in adversarial exchange.Ingrahamv. strain the exercise parental. The Dialectic of Rights and Politics: Perspectivesfrom the Women's Movement.S.A Philosophical Justifica? tion for Children's Rights. e. For alternativenotions of rights. 565 (1975). But see Worsford. the Supreme Court has tended to conclude that public schools exercise official. at 644-56. it is difficult to understandwhy they should be deemed to be exercising parental rather than public au? thority when conductingsearchesof their students. Hafen. Communal Rights. 733. J. s Interests. 142 (1974). Sartorius ed. in In the Interest of Children. rather than parental.g.O.88 the source of rights in traditional to children's criteria. Grossberg. 651.g. M.86 Yet a community Freedom Spent (1976). supra note 31. supra note 30. which objections grow out of a more widely accepted conception an individ? is autonomous relies on the idea that the rights-bearing person choice for personal ends and able to protect per? ual capable of exercising sonal freedom from the pressure and power of others. 1417 (1984) (exploring rights that build community). Rev. Pennhurst:A Parable. The Enigma of Children* In the Interest of Children.L. 589 (1986) (exploring dialectic between experience and women's rights).. supra note 30. lack experienced this issue: in the introduction Should the normative of rights rhetoric to a new to restrain commitment area. Rights and Redistribution in the Welfare System. See. it A persistent the autonomy own argument their necessary to engage This challenge interests. power. not simply it of au? is the meaning But pre-existing autonomy. at 16. power.81 especially communal dedication reach this new area? The power and adults. Kluger. 741 (1985) ("If school authorities are state actors for purposes of the constitutionalguarantees of freedom of expression and due process. Rev. e. L. 419 U. L. 44 Harv. 62 Tex.See New Jersey v. see Lynd. tonomy. and its relation to rights.84 These of children's limitlessness and the seeming indeterminacy."). limits should con? and how communal persist over whether agreements Children's of private. Ct. at 186-95. Rev. and. in Paternalism 105 (R. of rights. Since Goss v. the conceptof parental delegation has been replaced by the view?more consonantwith compulsoryedu? cation laws?that the State itself may impose corporal punishmentas is reasonablynecessary4forthe proper education of the child and for the maintenanceof group discipline. Lopez. 430 U. 38 Stan. 662 (1977) ("Although the early cases viewed the authority of the teacher as deriving from the parents. Dworkin. 61 N. 81. rights emphasizes to children's Another with objective foundations. Paternalism: Some Second Thoughts.. Wright. should be subject to legal restrictions. Simple Justice (1976). 1433 1882 . Michael Grossberg'sstudy of nineteenth century family law suggests that the expanding pro? tections for children and women essentially producedgreaterjudicial power and discretionarycontrol over families. Simon. in Theories of Rights.82 recognize next. See Burt. and therefore..Schneider. supra note 25. Persons and Masks of the Law (1976). 85. 1987 conflict is over with power in question with children's rights.

M. Symbiosis and Individuation: The Psychological Birth of the Human Infant. Doi. The Family and Individual Development (1965). Mahler. Varela. The Creative Circle. We are members one of another. supra. The Mermaid and the Minotaur (1976) (mother-childrelationshipaffects child's developmentof boundaries). 1955) (footnote omitted)). child needs to see the mother seeing him. aries."89 the the child. The Se1883 .88 for the develop? of relationships insights about the precondition of autonomy current work in psychology. P. 1973) (exploring Japa? in contrastto Western emphasis on autonomy). a company of many. Heimann & R.Toward a Relational Individualism: The Mediation of Self Through Psychoanalysis. and the Self in West? ern Thought 197. These other persons are in fact thereforeparts of ourselves. or self-feeling. Even this usual conception of rights. pure and simple. Klein.they might even get oppressivelyin our way. See N. premised on autonomy. . The Anatomy of Dependence (J. relies on a social and communal construction of boundaries Bound? among people.Chodorowrelies in part on the work of object-relationstheorists like Joan Riviere. ." drawing drawing These ment each other. aries. D. autonomy is a process of "parts that like M. Heller. at 15 ("For us to live in a world in which even the boundaries are of our making is not so bad. Chodorow. on all others who have an emotional relation to us. do not exist naturally. Each personalityis a world in himself. Wellbery eds. they are invented and reinvented by people in formal and informal ways. Chodorow. 87. K. in 2 M. See M. undergird anthropology. 86.87 In the words of one theorist. in Reconstructing Individualism: Autonomy. supra note 15 (describing traditional assumption of competencefor rights-bearersand offering alternativeapproach emphasizing social relations). Ball. And we ourselves similarly have and have had effects and influences. If we had a foundationor objectiveboundaries. Erikson. See generally A. not indeed the whole of them but such parts or aspects of them as we had our relation with. When Difference Has Its Home.90 Even beyond theories of child (1986). whether social. who wrote: There is no such thing as a single human being.86 As a psychological of a bounded personal identity matter. Bester trans. Cohen. in New Directions in Psychoanalysis 358-59 (M. in The Invented Reality 309-11 (P. Wayward Puritans: A Study in the Sociology of Deviance (1966) (exploring how Puritans assigned people to deviant positions as way of conceiving boundariesof their cultural universe). WiNNicoTT. 1986). Chodorow. Dinnerstein.C. . at 202-03 (quoting Riviere. Sosna & D. 201 (T. 99-110. have loved or hated us. or legal. is also constructed such that "[t]he core of the self. unmixed with other human beings. The Reproduction of Mothering 57-73. The Symbolic Construction of Commu? nity (1985) (exploring social constructionof membershipand exclusion as elements of community). see also T."). to begin the process of individuation. Money-Kyrle eds. mutually specify themselves.Interpreting Rights is presupposed individ? by this notion of the autonomous rights-bearing to ual?a and enforce individual recognize community willing rights. The child needs to see the mother. Mahler. 89. of human and philosophy. the very experience but many who help constitute the bound? requires not just one individual. The Unconscious Phantasy of an Inner World Re? flected in Examplesfrom Literature. intended or not. 90. Escher's of two hands. and as have thus become parts of us.See gener? nese conceptionof human interdependence ally Minow. Recent theories how emphasize development the self from the of with others. see also D. the mother needs to see relationally. Individuality. psychological. aspects develop experiences notably mother. but most importantly. Watzlawick ed. 1984). supra note 21. 191-205 (1978) (psychologicaldevelopmentof individual depends on relationshipwith parent through which individ? ual boundariesare established). 88.

1987 development. Gilligan.. 986-94. 1884 . even as an aspiration. We are freed for that binding to others which locates and holds us no matter the dissolution of ordering boundariesor an order of oppressing boundaries. at 138 ("Freedomis the opposite of acknowledgeour interdependence. instead. property of announce rights complex. "[o]ne the capacity to form have begun to identify psychologists to others."See Minow. Ball. 18 Psychoanalytic Study Child 307 (1963). L.97 Contract and dissolution lected Papers 149 (1979). we symbolically construct our relations to one another in ways that See M. e. supra note 2.91 Philosophers Drucilla Cornell interprets Hegel's view as a self-identified interaction that suggesting in which one ego only through in the eyes of others. supra note 21. Autonomy. 94. every and mutually defining. The Theoryofthe Parent-Infant Relationship. J. Hohfeld providesan elaboratearticulationof the relationalcontexts in which rights assertions arise. . Mahler. nor is it the new-fashionedone of the creation of meaning by a communityof read? ers. supra note 2. at 73-93. . ThoughtsAbout Developmentand Indixnduation. used by interpretive legal theorists. Rev.96 expressions Rights. Winnicott. See Singer. See Minow. Yet.98 According to this view.C. see also M. When Difference Has Its Home. is the invention of a cultural and linguistic community. 975. it is the idea of an interactionbetween mind and text that works like an interac? tion between people?it is in fact a species of that?and the expectations we bring to a text should be similar to those we bring to people we know in our lives.but also over those they define as "other. Inequality in the process of mutual definition is a significant problem. rather than autonomy. New Eng.g. White describes his approach to reading texts as analogous to change through interaction: The idea of readingat work in this book is not simply the old-fashionedone of the discoveryof meaning. at 169-73 (discussing labeling theory). 96. Sandel. 133 U. Glendon. could be understood as simply the artic? for of human and institu? consequences particular patterns Rather than of some intrinsic auton? relationships. .94 is no more than a claim limited by the possible and becomes defining. Toward a ModernIPostmodern Reconstructionof Ethics. supra note 15. its of Justice (1982) (criticizingprotectionof "unencumbered 93. of others. They themselves interdependent right and every freedom claims ulation tional omy. and the larger individuals rights specifically govern and often to community the formation overlapping. Singer.The Yale Law Journal Vol. commitments tination insights. Through words and concepts. as the desand connections have developed similar for the maturing person. Rev.majoritygroups have greater control over the definitions not only of themselves. L. Many Silent Worlds. Liberalism and the Lim? self as goal of social arrangements). 95. 1982 Wis. C. Rev. the language of rights offers some hope: It is the language of protest made legitimate by the powerful.see also M. L. The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld. limited re? relationships sources. See. chaos. in The Maturational Processes and the Facilitating Environment 37 (1965). Cornell. Geertz. The New Family and the New Property (1981) (exploring "new property"concepts cross-culturally). The Reliance Interest in Property (Jan. Our definitions of ourselvesare not equally regardedby others. 197 (1987). 96: 1860. at 18. 361 (1985) (discussingHegel's Jena manuscripts). adopts and the aspiration of a similar view of the interdependence of individuals connection. 9 W. White. 291. legal rights are interdependent arise in the context of relationships among mutually people who are In this sense. 91. In a Different Voice 151-74 (1982). Pa. 97. 1987) (unpublished manuscript). supra note 96. even for use by the powerless."). 92.B."92 oneself as a self by being mirrored experiences The metaphor of conversation.95 of legal in fact. Singer.

504-09 (1987) (discussing Llewellyn's notion of merchant transactions in which relationships within community of repeatplayers should influence nature of rules). 100 Harv. or pricing mechanisms. Rev. 30 III. groups. relationsbound and set by contractualterms. Madison Law School. L. See generally Gottlieb. expressly are legal rights regard? Perhaps less obvious. The New Social Contract (1980) (urging recognitionof long-term rela? tionships rather than single transactions as theory for contract law). L. and the fundamental to association. 99. group. Relational Interests. 50 U. But see Minow. Rev.and commercialrelations for law). (forthcoming)(constitutionaldoc? trines about families convert conflicts among religious and ethnic groups into conflicts between state and family). and protect family ties.Transformationsin the legal rules governing each of these groups have been striking. Calabresi. Calabresi." which to relationships ing tort liability.102 When a court acts. 100. is the question of what constitutesa community. 1885 . 102. familial. MacNeil. ships. Rev. Family. Green. reliance notions altered party control over the legal terms of relationships. See generally G. Yet. Hist. 101. 465. currentdevel? opments articulate the rights of individual family members against one another. Macaulay.Interpreting Rights of commercial Constitutional of rights.98 freedom of religion.These are serious issues that deserve exploration. Church and State.Many communities may be presentwithin one geographicarea. See Weisbrod. Am. only precondition community willing in the shifting of bound? individual to make claims and to participate aries. The Costs of Accidents (1970). 28 Am. and others bound in ongoing long-term relations). Rev.the growth of strict liability and the transformationof productsliability law have significantly tightened the connectionsimposed by law. L. they do not undermine the particular assertions that the adoption and use of legal language affirms and recreates particular notions of community. reinforced through the institutions of law. such as freedom relationships. professional. Most notably involved is the but also implicated are those to whom costs may be shifted. It is the distinction and possible disjunctionbetween language and the institutions of law that present the more serious challenge to this analysis. University of Wisconsin. it defines the boundaries among people by 98. Relationism: Legal Theoryfor a Relational Society. The Invention of Tradition: The Constitution and the Family 73 J. Even earlier. Product liability rules transcend the boundaries between producers and victims. and make producersview potential victims as unavoidably connected to their own decisions. Minow.101 through insurance for any individual's of exercise then.For strangers. 55 (1963) (contractualplanning and contracts used for renegotiationsof long-term relationships). and relations among strangers. tortfeasor. supra note 100. supra note 96. Placing human relationshipson a spectrum moving from high to low degrees of intimacy. Non-Contractual Relations in Business: A Preliminary Study. And although con? tractualterms may once have set the limits of obligationsbetween contractingparties. give legal significance among The rights of a tort victim cannot be defined without refer? strangers. The the is is that to allow the rights. Soc. 567 (1983) (advocating"relationism"perspectiveabout judi? cial arrangementsbetween institutions.however. One problem. Legal History Program Working Paper #2. The Limits of Vision: Karl Llewellyn and the Uniform CommercialCode. Although legal rules once presumed an identity of interests among family membersand precludedaccess to law for resolving intra-family disputes. Insti? tute for Legal Studies. legal rules have prescribedthe terms and consequencesof family and trustee/beneficiaryrelations. See G.100 ence to others affected by the damage claims. See infra Section II. pro? describe legal claims to relation? create. See I. Chi.Wiseman. is not a precondition Autonomy. the development of tort liabilities beyond the express terms of the contract?especially in the field of professional/client relationships?has redefined the legal consequencesof those relations. 314 (1935) (exploring significance of political. rights marry. or no communitymay exist at all in the sense that people do not experience themselvesas members in a collective enterprise of mutual interdependence. but no less powerful.

which contributesto a view of language as and communal. The Nature of the Child 112-53 1886 . Sartre. L. and that their use dependson their context. Through litigation lated and enforced. J. Historically. supra note 92.but as a language in the senses implied by Sartre and Wittgenstein. as defined in their specific con? or groups against con? boundaries individuals tent. E. and the nature of rights discourse In our even use within institutions. Some rights. cf. right subject physical exceptions of rights as tools of communal these are not excep? dialogue. Barnes trans. Rev. Being and Nothingness 559-707 (H. power claims to be made while in complex ways. at 32 (discussing"intersubjective" individualsin which identities and social involvementsare inseparable). Sartre describeslanguage.P. 96: 1860. Sartre's and Wittgenstein'snotions of language are especially critical to my understanding here. articulate protecting such as a child's nections with others. not merely as necessarilyintersubjective vocabulary. Forbath. Should a Marxist Believe in Rights?. I use the analogy between language and rights much as Fred Dallmayr identifies relations between lan? guage and politics. 1985 Wis. into the larger community. Whigs and Hunters: The Origin of the Black Act (1975) (discussingrights consciousnessand people's resistanceto law).. Cornell. rights gesting. I also experience process of mutual recognition. 104. not to be to are not to the notion abuse. 759 (same). 4 Praxis Int'l 45 (1984) (discussing Habermas).106 its persists legal meaning beyond 103. at 360-68. 1987 Yet even these acts of judicial or rejecting claims. or rights from authorities above is not communal dis? course. Kagan. for example. the litigants' own experiences before the court may help promote a sense of their connections to each other. through connection That the and articulate seeks ties for it is through our boundaries.108 The invocation individuals resistance to the very boundaries enun- of community implied by rights claims does not force or to merge or subcommunities to lose their own boundaries. Rights against assault. Language and Politics 174-92 (1984) (language and politics interact and mutually construct each other). See. 1956). not as a set of rule-bound meanings. situated in forms of life. to draw.P. but as a mode of human action and creative self-expression.104 that boundaries underscore Rights recognize particular of the reference When to each other that we establish I experience a sense of constraint he or she even if I reject the boundary the to that person.The Yale Law Journal Vol. Thompson. e. members summons community community communal because content of the enforceable right within the to community respect boundaries is a commitment to implement the decisions reached through discussion. Judicial acts enable subsequent also allowing formal and informal ciated by the court. obligations. F. 105. Minow & Hartog.g.See supra note 73.105 another claims a right. Imposition of views. Introduc? tion: Legal Historiesfrom Below. 106. particular accepting to and individuals to other individuals connect words relationships. for judging of rights helps people to articulate standards The language for expressing as a language conduct. I mean to invoke rights. In this manner. I am sug? tions but products of precisely the kind of communal inquiry and have been articu? such legislation. J. Traces of Self-Government.see also Cornell. Wittgenstein emphasizes that the meanings of words are determined by their use. constitutionof supra note 52. but even when litigants are essentially submitting to the higher authority of the court. Dallmayr.

g. and Children. far from legal spontaneously need. 1986): "I think children do understandthe idea of equal? ity and individual rights. I explore this at greater length in Minow. and representa? tion is problematic. but I think a direct connectionbetween their lives and the Constitutionhas been missing in the way we educate them . the interdependence the claimants An adult woman's is no less palpable. 767. cate and Whatever a contrary right of the father to consult or consent would implinew life. modify the rights of the mother and of the potential the rules. Rev. 107. L. they make assertions wants when they collide at the bus stop or on the playground. L. Looking to the Bottom:Critical Legal Studies and Reparations.L. See Statement of Alvin Poussaint. Matsuda. See infra text accompanyingnotes 114-19 (dis? cussing problems of attorney-clientrelationship). in being raped.").107 or entitlements formal legal people to refer to what apparatus has And and claims the perceptions. of entitlement. of When the rights claims reach official attention. Rightsfor the Next Generation. one's experience is rooted not just in a 'sense' of illegitimacy but in being illegitimate. to the sanctity of one's own personal boundaries?makes sense.. can participate in the legal conversation rights perceive or approved of acknowledged of rights. whether they criminalize it such conduct or immunize and prosecutorial a pattern of rights action. 801-17. Prof. 323 (1987).Interpreting Rights culture. express freedoms when those even children their often find rights rhetoric use not rights they familiar and well-suited to feelings. Assoc. Rev. Children. 22 Harv. . 110. Williams. .but not uniquely so for children. Greenhouse.R. right to choose to a pregnancy or consent clearly imterminate without spousal consultation the claims of the father. Praying for Justice 106-41 (1986) (describingBaptist community'sresistanceto rights and preferencefor harmony and cooperationas their conception of human relationships). the law articulates when a particular into relationships individuals even among from police that speaks (1984) (describingdevelopmentof standardsfor judging content as part of children'sgrowth). 1985 Wis. and the Constitutional Bicentennial: A Report by Actionfor Children's Televi? sion 34-35 (P. at 417 ("Where. But see C. For example.110 Obvious context. or of the potential child. e.-C. at 15-18.108 People speak institutions. in Television.then the black adherenceto a scheme of negative rights?to the self. examples Even when of adults arise in the family of the interdependence a conflict is never likely to go to court. of Psychiatry. The Ambiguitiesof Free Labor: Labor and the Law in the Gilded Age. how? ever.109 with for is children that children's with rights they expose interdependence other people?and the conflicts engendered that by interdependence?then this is a problem for adults as well. C. . no less than adults." 108. 109. Hulsizer eds. See. Both children and adults may need representationby others in this debate. Forbath. plicates and modifies Similarly. 1887 . supra note 59. that uses to particular as their due even to gain the community's If one of the problems attention. Harvard Medical School. adults in a as they discuss as: such questions interdependence errands? have time Who will misses take care of the children this to be alone? these questions Converting the point that shared lives are reveal their family Who will run which afternoon? Who will claims into conflicting of autonomy implicated by each question. Charren & C. supra note 30. and in the fear of being murdered.

See Postema.J. Property and Sovereignty. According that is why they should be treated differently to this view is that power itself is a quality of not a quantum or a characteristic to an isolated intrinsic is one type of rhetoric with which to articulate. Beyond State Intervention in the Family: For BabyJane Doe. Moral Responsibilityin Professional Ethics. choices. 55 N. Rev.The problemsof defining lawyers' proper roles are rivaled only by the ethical dilemmas presentedwhen lawyers retreat behind their "roles" to justify their conduct. Children. This was a central insight of the legal realists. 13 Cornell L. Q. Olsen. 11-12 (1927). all rights claims imply to this argument differences between objection emphasizes and adults.The Yale Law Journal Vol. I am rejecting here the notion that our society should about children's questions legal status simply by asking how chil? from and adults. and thus. 112. its inaction.Q. One response relationships. Hale. 933. 1126. Rhode. than adults. The where previously for particular always prescribes consequences relationships. Sci. Note. ex? and interconnections at the moment that the in? presses relationships very dividual asserts his or her autonomy. 63 (1980).U. by legal author? remakes a woman's and alters her ities. Ref. child's interest. Ethical Perspec1888 Another . 96: 1860. children's rights are implicitly no more problematic among than adults' relationships A familiar children answer ences members rights because of a community. A woman's right is declared the winning right to control her own procreative once and announced enforced choice. This question rather wrongly suggests that such differ? than contingent upon social inter? to one interpretation. A child's representative act either as a a for who is capable of expressing a child. Lawyeringfor the Child: Principles of Representationin Custodyand Visitation Dis? putes Arising from Divorce. 470 (1923).L. or instead as a guardian. Rights language and hold to account relationships of power. form of the same view emphasizes of children's the problems We and not trust who adults do claims to knowledge competence. 1987 claim. 113. 38 Pol. the law intervened by granting legal over procreative decisions to potential fathers and doctors. person. 87 Yale L. See Cohen. 18 U. Mich. than adults.111 In the past. J. 8. L. but not be? cause law has suddenly it "intervened" was absent. See Minow. are implicated in these relationships. Coercion and Distribution in a Supposedly Non-Coercive State.118 There are immediate grounds to distrust the adult's po111. management relationships rights the law even by authority dividual's their relationships to rights of shareholders implicate and workers. 1138-53 (1978) (discussing alternative roles for children'sattorneys). supra note 46. may mouthpiece who supplies her or his own view of the view. relationships power. no less challenge.112 Similarly.Y. children are dren differ are real and discoverable pretations and relatively powerless. anyone speak for a child to represent truly that child's interests in the same way we trust a representative for a competent adult. In this respect. Each statement of an individual's or explicitly draws reference to others. 946-53 (1985). The rights of trust beneficiaries their implicate with trustees and donors.

Paternalism and the Legal Profession. Crouch. Food For Thought: Case Study. See Nelson.115 Yet. 69 Geo. 1981 Wis. may a preference supplies lands in the thicket child. Harvard Programon the Legal Profession (unpublished manuscript on file with author) (exploring lawyer's conflicting con? cerns with firm's reputation in Food and Drug work and needs of particular client). Rev. L. advance other The than mediated.Luban. This hardly seems compellingwhen the client group is large and individual members have little control. L. 219. The Paradox of Child Advocacy.118 sentation The of any problem when the lawyer particularly apparent like a law firm. This objectionalso applies to judges.g. L. 41 Md.117 The issue becomes large organization. The most elaborate criticism appears in discussions of class actions. 37 Stan.. 118. Lawyer and Client: Who's in Charge? 96-105 (1974) (discussingconflict between lawyer's financial interests and client's interests). cf. See Kennedy. 563 (1982). e. 15 (1967) (conflicts between criminal defense lawyers' ongoing commit? ment to organizationof criminal process and obligations to particular client). Divorce Mediation and Legal Ethics. L. The Lawyer as Friend: The Moral Foundations ofthe Lawyer-ClientRelation. supra note 115. 857. 503 (1985) (arguing that there is little evidence that corporatelawyers serve to restrain and challenge clients' actions). (role-differentiated CorporateLiability Strategies and the Costs of Legal Controls.. 470 (1976). Wasserstrom. 114. 37 Stan.Lawyersas Professionals: Some Moral Issues. L.Interpreting Rights sition in either circumstance. Some may argue that adult clients in public-interestlitigation can hire and fire. 117.g. The Practice of Law as a Confidence Game. in In the Interest of Children. Rosenthal. Rev. their attorneys. Burt. 5 Hum.J. 1 (1975) characterof lawyers' situations alters relevantmoral point of view).J. Yet charges have been levied against lawyers representingindividual adult clients as well. 1060 (1976) (responding to charges that lawyer's role as advocate incompatiblewith moral values). L. see also D. Blumberg. e. those of the clients. 16 Fam. Nelson.116 interpre? lawyers' tations of clients' interests is well-known in public-interest litigation. Rev. See id. See.J. supra note 30. or when the members of a class action have potential conflicts. 93 Yale L. Rev. the adult who the child's has no obvious tether and about what is good for the adult uncertainty is that this charge applies response as well. See. 85 Yale L. See Bell. the lawyer who acts on her or his own view also provokes The problem of distrusting criticism from observers. unor misguided position. at 465 (institutional factors at both law firm and societal levels influence lawyers' representation of clients). when the litigation is complex and not easily explained to clients. Kraakman. Conflict ~ and Trust n Attorneyand Client. 454 (discuss? ing when paternalism is and is not justified). Rhode. 1 Law & Soc'y Rev. Ideology. Rev. Distributive and Paternalist Motives in Contract and Tort Law.See Mnookin. Class Conflicts in Class Actions. 888 (1984) (dis? cussing inducementof corporationmembers to act as gatekeepersmonitoring corporatewrongdoing). L. 34 Stan.J. 1183 (1982). Practice. Rts. that has its own interests. and Profes? sional Autonomy:Social Values and Client Relationships in the Large Law Firm. 85 Yale L. at 54. 116. 589 (1985). 115. and there? fore control. 224-34 (1982) (risks to client when left without independentlegal advice). Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation. see also Fried. 1889 . with Special Reference to Compulsory Terms and Unequal Bargaining Power. at 53-55.Q. 1015 (1981) (discussing distrust in attorneyclient relationship). One clients wants an irrational of general who offers the child's view. Yet the difficulty seems inherent works distinct for a from repre? in the legal client: of insuring the best inter- that advocates work towards Hves on Legal Practice.114 The lawyer for the adult may well encounter criticism adult to lawyers representing does only what the client for failing to advise a different strat? who egy.

institutionaltreatment. Fam. 597 (1975) (Powell. See Goss v. legal representatives less articulate there are reasons could to distrust of distrust appoint rights fronting tion. Children's and economic. 565. as in legal challenges to foster care. 419 U.and other systems handling (and mishandling) children.. negotiation. Burt. J.cf. 149 (1985-1986) ("goal of protectingchildrenoften disservedby litigation"). is a second objection to conceiving of children's as similar. The Child Abuse Witness:Potential for Secondary Victimization. 1890 . Mnookin.The Yale Law Journal Vol. See Chambers & Wald. the legal processesof argument.120 or else demand tion by the initial representatives of the range of interests volved in the litigation. Real Rape (1987) (harm to adult rape victim imposedby criminaljustice system). to be in the client's interests when it actually thing wherever power is delegated. The agent may have what the client wanted.expressing the needs of children through rights rhetoric presentsgreater diffi? culties in setting limits on those claims than do adults' claims. Legal Emancipationfor the VictimofRape. at 54. supra note 64. stems from a mistaken view that rights have defined limits. Finally. 96: 1860. 11 Hum. Where one party is given the authority there is always the danger that the agent ward another's interests.119 and less self-knowing than adults.121 This through usually objection that children would be better off if schools and families were which from the purview of public scrutiny permitted by rights claims. The court has long been assigned of guarding the interests of children in litigation. 121. at 265. J. Just. These problems infect almost every human relationship. S. Articulating children's tionships assumes removed in terms of rights arguably risks undermining the rela? those needs are met.122 there often are 119.S. 24 J. dissenting) (difficulty drawing lines for children'srights). This objection.1 Crim. at 144 (recommendingappointment of additional counsel to offer contrastingperspectivesin test case litigation involving children). there is always the potential and incen? tive for the agent to put his own interests ahead of those of his client. seem different in scale than adults' interests of children's the special task be missing are on adults rights and adults' emotional depenneeds. legal may to offer contrasting multiple representatives legal fuller explorain? potentially Children are often and interests. will not be faithful to the interests of his client. supra note 117. Courts views both kinds of adults. and monitoring can orchestrateclaims and remedies. and con? representatives not demand conversa? more. 1 (1983) (discussingpotential harms to child from participationin prosecution). Alternatively. Estrich. what may practical There rights dence steps to prepare the court to fulfill this job. are reasons to distrust system. less. but these qualities need not render them peculiarly vulnerable within a legal If there of children. 122. I would readily agree that public review itself may damage Although some children and disturb the adults who care for them. 120. The agent may believe some? misperceived is not. supra note 84. physical. See Avery. Rts. 1987 in any system which uses counsel to ests of the client is inherent to put for? represent clients.Nemeth. Lopez. The Legal Responseto Child Abuse:In the Best Interest of Children?.Myers.however. 30 (1984) (same). which has hardly been the case in other areas. such as toxic tort and prison reform litigation. In those contexts. L.

1891 . see also Krisberg & Schwartz. Anyway? of rights. 287 (1981) (study of racial impact of juvenile court practices). 557-58 (1984) (reportingone study in which 38%of adult women respondentsreportedthat they had been sexually abused as minors and another study where 47% of perpetratorsare membersof child's own family and 42% are known to child but are not family members). Feb. 1440. 35 Juv. 126. but observersnow agree that the problemis widespread. Child Abuse Rises. Ct. Constituting Communities Through Words That Bind: Reflections on Loyalty Oaths. and dialogue). claims of rights on their behalf represent efforts to rectify larger social patterns that damage people. J. quences. 333 (1983) (sum? marizing data and policy developmentsin juvenile justice). 1447-48. 8 Crim. Rights. Why Talk Why advance About or enforced difficult them. as a members to interpret and reinterpret their vocabulary this conception used by community 123. economic. Ball. not strangersto the child. including children's rights. Race and Juvenile Court Dispositions: An Examination of Initial Screening Decisions. 501-04 (1982) (critique of increased state interventioninto family life through mandated reporting of child abuse and refusals by state to return children whom parents initially placed voluntarily with state). J. What rights and pat? of relationships larger questions terns of rights can protect groups when their norms conflict with those away countenanced the most addressing meaningful. Service Rev. 52 Am.B. by the official legal system?126 These are among for a diverse and discordant society. Rev. Pope & Feyerherm. J. Parents. & Fam. & Behav.. relationships. 29 Crime & Delinq.Fuller. dance. 84 Mich. See Conte. Cf. 1. Just. My alternative conception that can express and remake patterns of emphasizes rights as a language all relationships. but. The struggle among competing the to establish affiliand groups. at 34 (reportingstudy estimating 1. 556. RethinkingJuvenile Justice. The Scope ofthe Problem. The Justice System and Sexual Abuse of Children. and noting dramatic increase in reporting of sexual abuse). 58 Soc. supra note 23. 1-2 (1984) (estimating that under broad definition 4 to 5 million children per year are neglected and/or abused. Levinson. D. of carrying rights rhetoric new meanings. of certain existing and political social. 72 A. or asserted conse? rights as rules represent past legal consequences. are by far the most common perpetrators.Interpreting Rights more serious risks to children if the adults who care for them are free children from public review. ten Bensel. Children. See Nomos and Narrative. See Solnit.793 million abused and neglectedchildren in 1985).A. M. at 60-68. 1986. in questions to be both discourse has and proven pliant rights As a language traditional recognized by official legal but it is capable institutions. 1454-56 (1986).124 The image that should be reserved for of rights as damaging and weighty instruments adults is only one possible conception of rights. 125.125 bears Even meanings.and relatives and friends. and the State. Orthopsychiatry 496. struggle ations from and perhaps different than those of the majority. 124. L. supra note 21. The rates of child abuse are difficult to estimate. at 132-33 (rejecting conception of courtroomsas setting for battle and replacing it with metaphorsof theatre.128 When the state deems "at risk" individual who are disproportionately members of minority racial groups and the poorest sectors of the society. present in terms of rights.

indeed. S. judges and legal historians. which is slowly destroyed by the erosion of the waves. Ball quotes Thomas Reed Powell. the in? Moreover. yet rises and fails with the tide of time and circumstance. But every so often in a human heart the ice will crack. 1925. consultation and. New Republic. . but your argument compels attention. Noonan.129 beyond legitimacy.nor is it. relationships who criticize with one another? This newly who criticize articulated both to those conception responds and for lacking objective foundations and legal consequences possible ence the pattern of existing and future relationships.The Yale Law Journal Vol. however. at 128. When the Children'sHearings Projectin Cambridge. The Antelope: The Ordeal ofthe Recaptured Africans. who in turn quoted one James Beck.which will pull the masses after it. this communities and institutions. even conviction. at 18 (quoting Powell. 96: 1860. and a human person will acknowledge his responsibility for other human persons he has touched. the Project staff creates opportunitiesfor parents and their children to negotiate contractualagreementsto resolve their disputes. which.' M. but never before so articulated. Mediation in Families: A Study of the Children's Hearing Project 91-101 (1985). 11. usually inadvertently. Feb. Others?the vast majority?speak according to the rules. on the one hand." Id. discussion as ways to handle disputes cannot be neutral:They call for recognitionof each disputant by the other. Ball. Rocheleau. Cover notes: There are those who speak law-language poorly?whose departuresfrom the rules will not live. at 314). that which determineswhether the rules have been changedis not so much anotherrule determiningchanges in rules as it is the accept? ance of the change by others over time. This non-neutralapproachdemandsthat the parents take their children'scomplaints as seriously as their own.128 in this essay. supra note 21.Then there are prophetsand masters who move the law more than their democratic. . 1987 rights By analogizrights for their analytic indeterminacy. 128. for the rules are largely derived from such as these. Claims of rights that call for negotiation. They depart occasionally. imand treating rights as a particular vocabulary ing rights to language. 1892 .per-capita share. It is rather to be likened to a floating dock. Merry & A. Id. even though the particular contracts negotiated by the family members depend upon their own views. who reflect neither the wave of the future to be washed into prophecyby the acceptanceof the masses nor the compellingidiosyncraticdepartureof the master.Massachusettsreceivesparentalcomplaintsdivertedby the Juvenile Court about "unruly" children.127 them. a Gibraltarrock. Cover. and to establish proceduresfor future disputes. we pick from among a variety of and thereby influ? for human relationships. Either they evoke the response:"This is what we've known or wanted all along. a sandy beach.and not thereforeat the capriceof the waves. not those of the Project staff. Justice Accused 126-30 (1975) [hereinafter Justice Accused] (discussing language and rules). as described terpretive on human responsibility human but control. not on some force for the patterns of 127. . see also R. can be something?without their With being fixed. which wholly resists the ceaseless washing of time and circumstance. And: When there is a departurefrom the rules. in The Administrations of James Monroe and John Quincy Adams 159 (1977): Those who suppose that the legal system is a self-subsistentset of rules existing outside of its participantsand constraininglawyers and judges to act against their conscienceswill always be prevalent among lawyers. 129. Constitutional Metaphors (Book Review). on a metaphor for the Constitutionthat struggled similarly to conceive of law somewhere between fixity and fluidity: The Constitutionis neither. within plying roles and relationships to those approach suggests can change?without Rights are hardly how rights losing neutral. pins law turn. on the other hand. while firmly attachedto its moorings."Or they strike the chord:"We've rejectedor never thought of this before. See J. In this respect the language analogy is far better than the extended game analogy [as a way to understandlaw].

. his own at the crux of the enterprise as the study of a "normative portrays legal scholarship I have commitments. . 1893 .180 The inter? sponsibility to framework seeks reinvest with a believable pretive legal activity aspiration to create communal amid a world scarred by justifiable meaning skepticism.Interpreting Rights and from the human emerge from legal discourse or this In this way."184 Indeed. of rights as tools in continuing.186 an Yet. the notion hindered promoted relationships by process. 134. Gandhi's Truth 241 (1969). 135. A similar purposeanimates anotherwork by John Noonan. See supra text accompanyingnotes 23-24. interpretive work as exemplary norma? of the ways people elaborate in activities. 137. supra note 23. "somebody 130. essay pub? through interpretive a warning that should chill those of us turn in law. 133. who took three cases and probed beneath the labels of legal analysis and roles to find the persons and lines of responsibilityroutinely suppressed. Erikson. E. 132. supra note 7. Hurston.J.181 II. held tive commitments who are taken after his death. at 1628. 136. . Nomos and Narrative.2. Quoted in E."185 together by . Cover raised with the interpretive that "[l]egal interpretation pretive stance fails to acknowledge in a field of pain and death. He warned that an inter? takes place . supra note 127 (exploringjurisprudentialand psychologicalrea? sons why judges opposed to slavery nonetheless enforced Fugitive Slave Laws)." Violence and the Word. supra note 80. Persons and Masks of the Law. Noonan. communal discourse helps to locate re? rights in human beings for legal action and inaction. at 1601. 131. supra note 7. Violence and the Word."187 When judges interpret texts. see also J. at 1601-02 n. Cover described interpretive work as "an attempt to hold a worthy ideal before what all would agree is an unredeemedreality. Crossing the Double-Cross: The Practice of Feminist Criticism 46-47 (1986) (quoting Zora Neale Hurston) (discussing Z. Cover's Challenge: Violence and the Word and rules that [Truth] knowing punish. . Noonan. Their Eyes Were Watching God 602 (1978)). excludes the use of violence the absolute truth and because therefore man is not capable is not competent of to ?Gandhi1*2 The townspeople the equation perceive of word and law. how Joe's obedience: "You kin feel a switch in his hand big voice commands when he's talkin' to yuh. Violence and the Word. supra note 129. at 7. supra note 7. Justice Accused. Meese." ?Elizabeth Robert Cover described Meese1** ing interpretation work eloquently universe relied lished on Cover's of legal scholarship the "recent explosion placof law.

who is drawn to the interpretive turn. 1894 . what might otherwise have been noxious. Polanyi. as in the creation of courts without official authority. 141.P. Hay. e. rebellion.142 Thus. Id. at 1602 n. Steeped resistance and martyrdom that exercise the state's monopoly vio? over legitimate not just meaning. 140. Property. Id. Genovese. see also The Bonds of Constitu? tional Interpretation. Roll 25-49 (1974). to that responses to resistance. and some scholarlydispute. up an effort to demystify law and to rid it of its aura of objectivity.g. 56-63 (1975). Id. but also power. compliance to it. his challenge ation and reevaluation. This insight also may explain Cover's fascinationwith the intriguing possibilityof severingthe link between law's normativedimensionand its organizationof power. The palatable Cover's behind judicial acts shatter the image and nurturing dialogue embraced by interpretive uttered amidst the wielding of power. Roll. but their words organize and justify official acts of power. but also to judi? cial action."141 Official power or carried out. at 817-31 (describinginstitutionalframeworkwithin which judi? cial violence must take place). often rationales for violence that has occurred or interpretation supplies will occur. even his life. rhetoric. His is a devastating and haunting insight. 143. Id. 1987 his property. at 1602 n. Judges may and interpret texts. at 258-69. in frame. See Folktales of Justice. 379. Human including in the state's there are commitments itself that effectuates in physical force also ex? and loses his threatened interpretations.189 Legal scholars interested in interpretation systematically ig? nore or suppress how law is steeped in violence and social control. at 200-02. Legal scholars may have turned to the interpretive which holds a vision of communal efforts to create meaning.148 is right. see Hyde. 139. Violence and the Word. Thompson..2. like challenge forces reconsiderme.140 "A legal place force. 142. 1617-18. 144. press world bodies is built only to the extent that on the line. and to the ways that legal and meaning are inescapably bonded to institutionally language imple? lence: Law mented Cover deeds. M. supra note 25. at 1605. Fundamentally. 1983 Wis.144 of normative legal scholar? makes more texts in institutions alters the terms of the debate and for someone.supra note 7. Jordan. organizes legal scholars should pay attention not only to judicial rhetoric. E.see. 96: 1860. E. Rev. Those acts hurt some people and help others. Personal Knowledge 222-33 (1958). his children. supra note 7. The 138.The Yale Law Journal Vol. creating normative with legal consequences. The use of law to legitimate the exercise of power has been the subject of much scholarly discussion. The threat use words and fact of the force community ship."188 Judicial freedom. D. own violence even in responding worlds are interpretive acts. Id. supra note 103. to the real effects of judicial action. The ConceptofLegitimatxonin the SociologyofLaw. L. Author? ity and the Criminal Law. 1605.2. at 1609. in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England 17. But these acts are ignored in accounts of law as law embeds of political interpretation. interpretations martyrdom.

Even beyond institutional roles and separations of functions. "Neutral" legal standards seem to absolve their promulgators?sometimes the veryjudges who apply them?of responsibilityfor their contributionsto socially unequal or conflictual outcomes. reprintedfrom Fuller.S. provide for the common Defence. cl. cl.""Objective"legal standardsseem to absolvejudges of responsibilityfor the fates of individual parties. which Robert Cover expressed in the ironic label he gave it: "The jurispathic office. supra note 7. at 15 (citations omitted). 1987. however. Legal Fictions (pts. done' through violence. at 1628. supra note 7. In linguistic sleights-of-hand. Legal Fictions (1967). Rev. . see Soifer. In addition. at 1615 (discussing work of Stanley Milgram. as Cover explains. supra note 7. 76. 35. 147. Accordingly. Fuller. 20 Ga.145 This new mystification has been exposed by many that. 149. Death Row Clerk.22. Rev. law legitimates a flight from responsibilityby giving "deference"to decisions made by those in power and by relying on language so formal and distant that what is at stake remains far from view. 363. 871 (1986). Violence and the Word." U. Violence and the Word. or kind of case. Cover notes that violence is intrinsic to the practice of law and government. art. there is no need to authorize government to practice violence. poses the danger of a interpretive over official that casts an aura of cozy conversation if is dangerous control. For a probing inquiry into the subject. 877 (1930-1931). Anna Freud. For example. that exer? organizations or the normal inhibitions the behavior of those who act autonomously."147 legal system assigns one per? it.supra note 52: Clearly. powers of violence are explicitly granted to governmentsby texts. Const."146 The ways individuals grow numb to their own ex? when of pain may be especially ercises of power and infliction pronounced understand? act of in that the act roles "separate[] interpretation?of they out of this 'ought to be the carrying ing what ought to be done?from our For example.148 The and another to implement sentence son to impose a criminal involvement cise violent of so many official actors mind of violence: outcomes "[N]o single that follow from actually may limit the state's exer? the and no single will can generate commitments." U. Sloan. and legal scholarsjustify the "utility" of these tactics. 1-3). then.supra note 52. and the power "To provide for the Punishment of counterfeiting. Violence and the Word. can and therefore ought to be a judicially responsible act. see Traces of Self-Government. 1. I. . 1895 . 513. 51 (J. Feb."149 interpretive Nonetheless. Violence and the Word. 16. and Konrad Lorenz). L. 6. Still there remains in that stance. acts of domination it obscures social one and an insight if not scientists. L. see The Federalist No. ? 8. a judge's commitmentto imperial re? sponsibility also involves a certain withholding of commitment. 148. lawyers and judges invent fictions to persuade and to disguise what they do. The master work is still probably L. poses a danger rendered to legal action of interpretation the language applying the extent to which any interpretation of "exaggerating a common as part of the act of state violence can ever constitute 145. New Republic. I. at 14-16. In this circumstancelies the pathos of the judicial role. art.S. at 18 (describingdeath penalty work of Supreme Court Justices and their clerks). whenever adopted. Const. such as the "Power to . 146. 25 III. ? 8. at 1627. at 1610 n. by history without experiencing cise authority act violently which regulates the normal degree of inhibition itself: "Persons who act within social new mystification. supra note 7. see Traces of Self-Government. Reviewing Legal Fictions." Id. some element of flight from responsibility or from what Robert Cover called "commitment.Interpreting Rights frame. and its irony. adoptionof the imperial stance with respect to a particularcase. Madison) (separationof governmentalpowers in departmentswith means to resist encroachmentby others as design for promotingliberty).

Cover also warns that interpretive if it or over between hides differences clashes especially dangerous papers and coherent normative commitments in and between communities in the name of state An equivalent arises if interpretive rhetoric smooths authority. Violenceand the Word. authority judges litigants judicial rhetoric is cably divides their worlds. of exclusion with assertions of universal inclusion. 152. the state's hegemonic turn emphasizing communal power. at 1628. Violence and the Word. as long as people are committed to using or rethe violence in their social of sisting making organizations interpreta? tions real."150 irradiand share a when in fact world. see The Bonds of Constitutional Interpretation. it is essential center of the law. class warfare. As long as death and that they be at the pain are part of our political world. danger the official of gripping against power. 1896 . at 1629. 96: 1860. 151. legal translations of interpersonal and group conflict are inevitably bound up with violence. supra note 7.The Yale Law Journal Vol.151 And on the other: is constitutive of violent behavior as [A]s long as legal interpretation well as meaning. Id. of readers and writers of texts.152 law involves state control over organized violence. of interpreters.. 1987 The language of interpretation that pretends meaning. legal inter? is with entwined violence. The alternative is truly unacceptable?that they be within our polity but outside the discipline of the collective decision rules and the individual those efforts to achieve outcomes through rules. supra note 7. Because pretation inextricably people seek to make their own meanings real in terms governed organized by officially forms of violence. the very responds to charges that law creates conflict?the conflicts for inter? as at once enduring the Word charges way that interpretation that involves response within obscure communality?may and beyond a legal dispute. then. at 827. are the consequences his own Cover pretive legal scholarship? interprets partially reassuring and perpetually disturbing. of Violence and What. message On the one hand: It would not be better were there only a community of argument. An interpretive connections of external in the acts of interpretation risks washing away these points or by scoffing at an internal critique by implying commonality. Thus. eliminating away points leverage the contrasting rhetoric of fundamental and social conflict. supra note 7. And because these patterns gird meanBecause 150. there will always be a tragic limit to the common meaning that can be achieved.

on government help people place limits legal interpretations Granted that each recourse to law. But see Fiss. See R. as reducible to state is used Some power.. With every effort reality. or misinterprets. should be practicedas a critical. In particular. even if aspects of his claims. framework connection with the interpretive His inquiry does not require abandoning toward the but instead invites us to aim it.g. 781 (1987) (arguing that state involvementin enforcing First Amendment is only alternativeto dangers of oppression of many by the few). but hardly survives with independence). I mean to pur? and the Word exemplified and to pursue them further. A. Rembar. the broad inquiry that Cover's work opens into the relations between vio? lence and law. that is. . it is also dangerous violence. Interpretation. Rev. confirms to challenge other violence. Geuss. 11 N. may because But precisely language at times use it as a brace against is not power. J. 1897 . Marxism and Deconstruction (1982) (same). L.U. of Violence sue the insights an interpretive method this method challenges. Thompson. & Soc. Why the State?. Critical Hermeneutics: A Study in the Thought of Paul Ricoeur and Jurgen Habermas (1981) (same). L. self-critical.C.theory. a parent who offers a justification for action supplies the child with a basis for challenging future action: uBut you said . Change 369. Similarly. 375 (1982-1983). by Robert Cover's work. Interpretation 154. steadily. critically.") with M.168 In this sense.166 identical Whatever to rationalize pressures and justifies power. The kings had made a monster that devoured them. common ing-making truly shared. in law's constitutes law and the conflicts attained. The Law of the Land: The Evolution of Our Legal System 212 (1980) (common law enabled king to enlarge royal jurisdiction?but common law also constrainedking "becausethe supremacyof the common law [was] a supremacy over everyone. Walzer. 155. Gabel & Harris. Rel. people 153. Kennedy. and Social Criticism (1987) (same). It both triggers to limit that power. can never be meaning.4 Indus.164 the creation of normative language to support human the exercise of state power can redound has force. e.Y. 100 Harv.Interpreting Rights with violence. The Idea of a Critical Theory (1981) (developing critical theory). Rev. Building Power and Breaking Images: Critical Legal Theory and the Practice of Law." 156. reto the power of the state. between meanings and power. 503. as I mean it here. scholars. Ryan. in some fundamental way. L. Personal Knowledge 226-27 (1958) (language of morality accompanies power in all complex societies. including the monarch himself. The Meanings of Violence tioned and sancIt is dangerous the violence actually commanded to disguise offered of law with the rhetoric by judges. Critical Labor Law Theory:A Comment. Polanyi. M. justification by to treat all legal meanings and other interpreters. The contexts of violence and the organized actors and imbue official power with vari? relationships among agencies the meaning of violence changes when it eties of meanings. Violence inevitably blink I intend to consider not to at this arenas.J. M. Yet. . There is a debate about what kind of independentconstraining power is ever producedby legal?or moral?rhetoric inventedor invokedto justify power's exercise. Compare. 504 (1981).166 Legal language power. See. .

96: 1860. supra note 7. Law Making by Unofficial Minorities. can and must be interpreted. Judges do abuse for fear of disrupting?doing in place a neglectful substi? system for providing children to and fail. Lynd. want it. Violenceand the Word. 451 (1920) (exploring power wielded by private parties imposing constraints like those imposed by public power). and gangs.-C. analysis. 160. 13. Some of that violence as Cover meanings?but. 1898 . at 833. violent. The state is organized to overcomescruple and fear. L.L. destroy private activities or private "[v]ery often the balance of terror in this may action follows a judicial the decision.160 But. violence and even provide vantage points for criticizing violence can mean the force and power used to effectuate state Judicial decision brute force."157 Some judicial violence may reinforce in society. Rev. allow ings set in motion regulation. otherwise and exclusion patterns of domination persisting the meanings of judicial violence take on the prejudices of private factions. Violence condoned by the state and ordered by the state may violence when they leave tute care when differ. 20 Colum. C. an actor who creates effects even though or in the face of violence. e. Private private expose the meaning of either discloses the shared fact of The meanings of authorities also exercise power and violence. but he also emphasizes the citizen's deeds as necessarilyviolent actions that convey meanings capable of interpretation: In law to be an interpreteris to be a force. judicial inaction can be violent.R. the violence meanings contexts. parents physical expose dependent and emotional acts as the link between damage. it would be a mis? to judicial take to treat judicial inaction as always action. unlike The mean? and reinterpretation. managers school are.To stop short of suffering or imposing violence is to give law up to those who are willing to so act. See Hale. 16-24 (1987) (describingdevastationof commu? nities by plant shut-downs). the violence that has been hidden under other labels. preferable to or child do violence when fail to suspected spouse Judges respond they violence to?family bonds. Weeping in the Playtime of Others: America's Incarcerated Children 47-57 (1976) (describingCharles Manson's harrowingjourney through temporary custody arrangementsand institutions during childhood). under officials. such interpretation can violence. murderers. All others are merely petitionersif they will not fight back. but interpreting violence. Its officials will so act. Here.g. regard is just as I would wrote." Id. The Bonds of Constitutional Interpretation. L. Cover continued:"But I do not wish us to pretend that we talk our prisoners into jail. Wooden.22 Harv. for later interpretation different Moreover. too. at 1608.The Yale Law Journal Vol. corporate undeniably 157. See.. Towards a Not-for-ProfitEconomy:Public DevelopmentAuthoritiesfor Acquisition and Use of In? dustrial Property. the by parents. Rev. to judicial add meanings by justificatory legal language it. in ordered by the state takes on different Thus. 158. 159. Some actions husbands. K. 1987 and its rationale. supra note 7.158 Thus.159 The focus on judicial and legal violence should not obscure the continuing legal meaning pres? ence of legal control and state-approved force in the lives of both children and adults. creditors. Cover is attentiveto this in his Georgia essay.

Were the family brute power. at 57-58. they generate norms challenge alter the meanings of the public power. Parents. for ac? cording to this outlook sentiment is precarious and formless. would value for their ability to generate away state.The redemptive union of authority and affection provides the alternative to legal or at least to contractualordering. and whom they victimize. in each case. we private what does the violence What ex? and respond? symbolic leave other sources meanings may it carry? How would inaction and unchallenged? the meanings of violence This is to recognize that words and does not mean forgetting how the Historical and social wrote. At the same that that lence more to property normative commitments.168 ings of public should ask: To pressive of violence To explore thoughts help constitute the world. 163. meaning pertinent just such as families. 1899 . acts of violence and even to persons can carry meanings new that advance from the that may be the roots of new rights.162 communities. all too often.Interpreting Rights of these actions may obscure how private contexts. and injure children while acting within the very communities normative commitments I. and symbolic meanings such people commit violence. and strangers exercise and emotional control over children do and sometimes physical often abuse. These authorities that Cover. In so doing. 18 U. Ref. House of Judah: The Problem of Child Abuse and Neglect in Communesand Cults." communities Cover contexts matter in interpreting the mean? violence. it might not merit preservation. Note. Children are. In meanings of violence must be judged in the same way as official violence. or otherwise great violence to them. at 624. with) efforts to interpret of private power can accompany violent dimensions efforts to Potentially make new meanings. To interpret these meanings. it would disintegrate. 587-88 (1984) (state interventioninto internal affairs of Northeast Kingdom Community Church on charges of child abuse). judges begin to look like the other jurisgenerative of the world. The judgments. supra note 23. ennobled by sentiment. of private violence represent to state power and responses In the midst of political and social struggles. Church & State 561. neighbors. private acts activities time. Were the family mere sentiment. Mich. public officials may engage in interpretive exercises of private power. Along these lines. neglect. 26 J. 162. Both as sentiment and as power. unsoftened by sentiment. even meanings that may be relevant for criticizing public power. 1089 (1985) (state involvementwithin religious cult on charges of child abuse and neglect). supra note 25.L. should include (but not stop the meanings of the violence for those affected. Unger. J. these part. teachers. Nomos and Narrative.161 Cover's exploration of the organization of power and is not to but also to other realms where au? law. the unnamed victims. thority is exercised religious Other kinds state actions. 161. it repudiates the rule of law. "When they oppose the vio? and coercion of the other organs of the state. See Curry & Riley. Roberto Unger has written: [T]he family is a structureof power. and schools. Notes on Church-StateAffairs.

D. 16-18. Folktales of Justice. There and violence meaning. (1972) (discussing how dis? course shapes consciousnessand implementsauthority). This Sex Which Is Not One (C. Oct. both public can help name and challenge a to alternity "Law connects and private violence. Words But after a Judicial may their busi? in ordered to sell are thrown decision. To explore of violence is to wager that violence itself is made more and that certain kinds of people become by patterns of meaning. The Power Violence violence. 96: 1860. Because we use legal of these symbols can chal? our interpretations the power interpretation symbols to make lenge other itself is powerful. The StrategicUses of Causation in Problem Definition 2 (unpublished paper presentedat Conferenceon Problem Definition in Public Policy. more articulate and to develop to expose violence of its public and private forms are risky. unconnected Pornogra? Language with It link sexual can individuals. Werhle trans. Cf.165 Legal language with official power can do violence. 1978) (language as field of ideological contention yet not reducible to material interests). and that violence committed attention to its be understood. supra note 25. The Formal Method in Literary Scholarship (A. The Dis? course on Language. 1986) (defining "problem definition" as a struggle among political actors to control interpretationsand symbols). M. Bakhtin. P. legal of their announcement. Brown University. There are risks does about what power is. Medvedev & M. forced to give up their children. There are risks understandings of public and private authority in peeling meanings away the cultural will not be able There are risks that authority from raw acts of violence. of power. Porter trans. But we must take these risks. Foucault. understandings of power and risks of new kinds of fights about the meanings not?and inside violence and violence. violence. 1985) (effort to replace male-centered language and thought). Stone. at 181 (footnote omitted). Edelman. Naming outside the courtroom bears witness of disturbing who has it. But nor should these facts disguise of words. 1900 . Heightened efforts to claim tled so ready obedience.see also L.The Yale Law Journal Vol. in part. Political Language: Words That Succeed and Policies That Fail (1977) (exploring how language influences public policy and politics). 165. M. can devalue intimacy particular phy kinds 164. people prison. in part. constituting 'reality' social behavior. through vigilant meanings. in The Archaeology of Knowledge 215 app. or sentenced to lose their lives. sanitize or domesticate do not erase to it and preserves from norms separated the possibility the particular of judicial nesses. relentlessly. because social meanings fail to constrain that in the name of the state can. Legal rhetoric."164 new reality with a bridge built out of committed B. Irigaray. violence. committed difference between can be an important legal in law's name. seemingly and who set- judging stances in? it. 1987 real facts of violence the meanings less possible rip apart and destroy parts of the world. and maybe channeled. and of Meanings the Word words reminds that words us. victims of violence. should not disguise these facts.

Sunstein. & Soc. and Clinical Perspectives. Community. 1985) (listing alternative views). vulnerability by peers. see also S."American BooksellersAss'n v. Hudnut. supra note 106. 2 Const. by medical professionals can consign individuals to the scorn of others.Y.170 166. 170. Ferber. Rev. in Women Against Censorship 181 app. 747." Id.Gould. Even highly technical elaborationsof linguistic theory and literary theory mani? fest and enact power struggles. Liter? ary Theory (1983). battery and rape on the streets. Rhetoric is linked to action and power. See generally Russell. This is at least in part because people use language to express themselves to wield and challenge authority.Interpreting Rights and incite violence directly or indirectly. at 329 n. Pornography and Violence: What Does the New Research Say?. J. 8 N.S. in The Labelling of Deviance 85-86 (W. Commentary 331 (1985) (same). Child Pornography (1983) (reviewing prevalence. The court added: "In saying that we accept the finding that pornographyas the ordinance defines it leads to unhappy consequences. with devastating consequences and to abuse Child cess. 758 (1982) (rejectingFirst Amendmentchallenge to legislation against child pornographyand citing studies of harm to children). O'Brien.See generally The Labelling of Deviance supra note 167 (W. Bureaucracy 80-82 (1986) (urging use of functional labels for special education because disability labels have potentially harmful effects on children and do not link to specific programs). 4 Law & Inequality 17 (1986) (symposium). Scheff. See Hommel. 1980) (evaluating sociological theory of labelling.J. Comm. Pornography. 771 F. lence. Jacobs.See generally F. The Desensitization of Children to TV Violence. Legal. T. Gould. 1980) (reviewing studies). Pornography and the First Amendment. L.symptoms. A school may label a child on the basis of educational and medical for the child's self-esteem. 1986 Duke L. But see Making Sense of Research on Pornogra? phy. Eagleton.166 Labels assigned brutality. L. Gordon ed. Change 207 (1978-1979). 589. and that as judges we must accept the legislative resolution of such disputed empirical questions. Cline ed. 169. See Gove. 1 Harv. Rev.S. 458 U. The Conditions of Discretion: Autonomy. Lederered. R. 167. and to the physical and emotional abuse that may follow. 5 (1984). Another view emphasizes that people create themselves and their own meanings through the particular lan1901 . Women's L. Burstyn ed. 32 J. The Mismeasure of Man 158-233 (1981) (discussing sterilizationand mistreatmentof people labeled mentally retarded).168 pornography subjects individual children to actual violence and also uses their images to damage and devalue all children. Being Mentally III 87 (1966) (persons once labeled are forced into social role that produces ostracism). Stigma (1984) (ex? ploring concept of stigma in relation to assigned labels). T.169 These are simply of the general examples point. Foucault. Sexual Callousness and the Trivialization ofRape. that this evidence is consistent with much human experience. 658-60 (1979) (list? ing studies of pornographyand violence). Selected Bibliographyon Pornography and Violence. in Take Back the Night: Women on Pornography 218 (L. under which assignment of deviant label itself can injure). in Where Do You Draw the Line? 147 (V. 168. Page. cf.The subordinatestatus of women in turn leads to affront and lower pay at work. Gove 2d ed. Patterns of Violence:A Feminist Perspectiveon the Regulation of Pornography. insult and injury at home. Handler. 10 (1982). Power/Knowledge 78-108 (C.2. 652. Labelling theory suggests that changes in public attitudes about the labeled conditiondramaticallyaffect the consequencesof labeling. Pitt. Pornography: Social Science. 1974) (effects of watching violence on chil? dren's attitudes). Images of Women in Pornography and Media. M. 1980). See New York v. 40 U. Zillmann & Bryant. The circuit court that rejectedthe Indiana pornographyordinance nonetheless acknowledgedthat "[d]epictionsof subordinationtend to perpetuatesubordination. supra note 15 (discussinglabelling theory and alternativeapproachesto treatmentof difference). Gove 2d ed. and ef? fects on children). Labelling and Mental Illness: A Critique.2d 323. 329 (1985) (holding that Indianapolis pornographyordinance violates First Amendment). Carrie Buck's Daughter. Croft & Courrier. (V. Cline.we mean only that there is evidence to this effect.167 When children are the use of words by adults may impose direct or indirect vio? involved. When DifferenceHas Its Home.informationon perpetrators. 1980) (chang? ing public attitudes toward mental illness and treatment reduce victimization as result of labelling). Rev. See generally Minow. Dallmayr.U. future suc? tests.

Discourse/Counter-Discourse: France 15 (1985). 172. Hansen. 461 U. Arendt. Garner. "Human existence cannot be silent.177 but also can challenge can express no violence. public investigations.g. but only by true words. with which men transformthe world. at 76. United States. e. sometimes commercial do limit individual freedoms. 483 (1954). By speaking violence of all these things.. 173. and public violence. Feminist Theory: From Margin to Center (1984). 1972). 1985).D. 1987 a reinterpretation of existing legal claims has Public have investichallenged prevailing practices. B. and by speaking.C.S. excessively. Radin.g. lence and I suggest that rights the public vio? accompanies law violence. See supra note 161. 1967). This insight has meant much to women 1902 .174 Interpretive countenanced work. 401 (D. but between private violence a theme developed earlier in this essay. The Human Condition 175-81 (1958) (speaking makes us more human). Pennsylvania Ass'n for Retarded Children v.The Yale Law Journal Vol. bolic Resistance in Nineteenth-Century 177. but norms invoked publicly can expose both kinds of violence to scrutiny and debate.. New York v. Ferber. Pennsylvania. Blue and Brown Books 25-27 (1958) (describingdifficultieswith viewing language as involving application of rules). 174.D. Certainly.343 F. Rev. 96: 1860. In this lence used to challenge may shift the way.C. we expose both legal violence and extra-legal to be we enlarge a human capacity for what they are. 175. See. to change it. Pedagogy of the Oppressed 11. See Bob Jones Univ. ?? 1400-1461 (1982). examining relationships nored dren. By summoning diviin the face of genuine commitments community bility of communal Reworking rhetoric does not create conflict. The significance to oppressed groups of reclaiming language is a topic of wide discussion. See H. a 'differential' "exists only within what we could be. The rights claims mounted in each context may themselves trigger vio? In each of these lence. nor can it be nourishedby false words. is to name the world." Id. 20 U.S. P. To exist. a world of conflicts power and confirm not only and oppositions.D.Brown v. 279 (E. Market Inalienability. 1972). See Mills v.C. Board of Educ. See. L. can provide critical handles Public force assaulting private force is still force. 269 F. Supp. 458 U. 347 U. A significant power of language is to name oneself and one's experience. see also L. Sprengnethereds. Freire. 119 (1970). 171. Hooks. rights claims also introduce something beyond violence. Board of Educ. of labels to students. prosecutors effectively litiand communities. Terdiman. Pa.171 gated disciplinary practices by parents religious to control the have devised participatory gators and legislators procedures instances. The Theory and Practice of Sym? 176. Kahane & M.172 and legal challenges have successfully assignment restricted child pornography178 and exclusions from educational opportu? or ig? nities. Wittgenstein. but rather sions. 574 (1983) (refusing tax subsidy for univer? sity practicingracial discrimination). guage they use. on the violence done to chil? by law. 747. 88. see also Hobson v. and bans on mandated procedures. humanly. C. (forthcoming)(1987). 866 (D. private the possi? balance of power in an already violent situation. Supp. e. v.S.S. Supp. The (M)other Tongue: Essays in Feminist Psychoanalytic Interpretation (S. 100 Harv."176 Language and claim it. R. 348 F. activity vio? and sometimes But the choice in each case is not between wrongly. 758 (1982). Educationof the Handicapped Act.175 Language world.

"What people are willing to believe is not simply a matter of the credibility or legitimacy of the ideas. Thompson. . depend judge legitimacy they. language officially if only its past uses. Le Guin. I am encouraged example by and the Word of the power of words to challenge in Cover's Violence toward official violence. warden. .Interpreting Rights can be harnessed to challenge In arguing that the power of language the even the violence of official state power.bound at once to practical application (to the deeds it implies) and to the ecology of jurisdictionalroles (the conditions of effective domination)"). at 6-12 (1976) (consequencesof naming and labeling in legal doctrine). Persons and Masks of the Law. to account. at 1617-18 ("legal interpretationis a form of bonded interpretation. Dworkin. E.178 Cover's essay offers an avenue for indifference of it. and turned around to limit its authors. yet the meanings of violence wield can in the system enormous sharpen that could each go home at power together. prison guard. 179. at 38-48 (interpretationas social criticism requiring membership). at 258-69. develop aspirations by nurturing of the repository acts. could melt the of these points of connection exploration and implementa? when lawyers separate interpretation and of the police. on the cooperation tion. mote bases to account. Claiming . Their Eyes Were Watching God (1937). As Richard Sennett has noted. acts of witness Similarly. & Sarat.180 own or shamed courageous through is in part a how "interpretation to have this in mind when he describes to critical matter of justice" because it subjects well-established practices ened from their assessment Gandhi. Jan. 15 Law & Soc'y Rev. The judge depends for the on the even as in turn. 178. supra note 80. supra note 153.179 Once implementing can become loosnormative and constructed embraced. supra note 7. Hurston. 21. and pro? scholars could seek to hold authorities to normative for resistance. It is also a matter of their own need to believe. See R. Walzer. It may be more than indifferencethat must be shaken. 631 (1980-1981) (relationship between words and power in constructionof disputes). 181. She Unnames Them. Blaming. Violenceand the Word. The New Yorker.P. Dworkin seems self-restraint. The Emergenceand Transformation of Disputes: Naming. rules. Further numbness induced interdependence. appealed as well as to men. even when that rhetoric is initially challenge such and to the instruments of domination power. night feeling Words about rouse power showing how individuals relatively powerless.181 to the norms of conduct enunciated by for example. angles of criticism. supra note 22.. Abel. 180. Noonan. Authority 25 (1980). Building commitments through official interpretive to available the resources rhetoric endorsed by state power can enlarge "bonded" to acts such power. 1985. and personsoffered them. in view of changed conditions.See generally J. of could detail these processes of the force they exercise. Legal scholars violence. Felstiner. See Z. at 27 (Eve unnames all that Adam named. and liberatescreatures). Sennett. more articulate violence and developing understandings exposing between judicial acts that create the points of connection Cover highlights of official and judicial acts that set in motion instruments legal meaning. see also M. at 204. supra note 103." R. 1903 . better hold those in and support vigilance.

exercised plained by judicial rhetoric does violence. 1904 . power.The Yale Law Journal Vol. and public spaces. even the possibility language of the silence induced by pain and torture in compelling interpretations with words. 23. 214 (1944) (approvingdetentionof Japanese resi? dents and American citizens of Japanese descent). while sometimes eloquent. or as normative Rather. 56-58 (1985)).3-6 (citing E. Scarry'sbook is self-consciouslyabout "the way we make ourselves . had been used to justify official power and even official violence and ex? that clusion. 184. Scarry." E. This is not an abandonment tools of lanhow the he shows a icon. Scarry. but actively resist language the pain that does "not simply it. at 22. enterprise 182. Scarry. for silence. accompanying without and especially to challenge language. are disabled. E. open for investment activists the civil the rhetoric intoned inclusion. the powerful Perhaps knowing and the Word draws on the Violence of language. can seldom challenge power. by society. destroys bringing about an immediate the sounds and cries a human But with how her words is often Scarry about silence reversion being to a state before breaks anterior makes language a silence and also to language. but Luther it helped for British self-restraint. rights legal by Previously. 183.182 The tradition repre? stitution. enables the power. supra note 184. supra. 96: 1860. by joining the National vancement of Colored People in its efforts to invoke the power of the Con? doctrine. Elaine Scarry's book. to is learned. violence rights itself. 1987 the British. Without powerless or resist those who would challenge recognized by the powerful. See R. rhetoric can wave as to rights rhetoric should not hide how official violence ex? in silence. segregation supremacy King challenge Association for the Ad? schools. Kluger. But power. The Body in Pain 29. supra note 7. groups of with still more meanings remained history. United States. Martin arguments support in and white could racial buses. by pain. Language. is even less likely to know restraint. and equal protection to enlarge the sented protection" captured prior struggles by "equal with laden and included the Those welcomed words. Simple Justice (1976). silence. at 4. 323 U. at 1602-03 & nn. quite power use power to destroy sometimes this. assaults on official however.S.188 a banner This Loosened to lead tribute from its origins. Scarry produced challenges been silence. the courts. The Body in Pain. availableto one another throughverbal and material artifacts"and "the making and unmaking of the world. . See Korematsuv. This appeal alone could not constrain the British Empire. . Violenceand the Word. 185.1*4 Scarry describes. By giving speech where there has the power that produces silence even about to launch his In Violence and the Word Cover uses Scarry's language of the field of pain and death where legal inter? own eloquent exploration of interpretation as an pretation takes place."186 shows pain.

may develop even in litigation: before the law. if anything. The History of Sexuality (1978) (relating discussions of sex to social domina? tion). disguised by entrenchedsocial meanings. 190. supra note 170. a cozy talk?but to the first section of this essay. The meaning of judicial violence. arising from conflict. and the violence inflicted by the judge threat? ties between the judge and those before the court. 188. Legal language. Ricoeur. Cover's Violence and the Word uses 1905 . This kind of interpretivework may assist resistance to official violence by exposing its subtle workings. See P. See M. If. Tactics to resist official violence. that legal actors offer in the justifications A related tactic is to elaborate bite for future critical use. Cover is right. and threatens a kind of community source of coercion. translates interpretative the meaning can add to. New kinds of violence committed by the can disrupt state initially elude words. disagreements but does not initiate conflict. much as children between litigants. the battle Litigants as the with siblings or friends.189 Parties invoke the power of quite apt for the experience turn to their parents to the court to resolve disputes. the community of the litigants of rights as interpretive this. Perhaps the point is that power. and even transform settle their but of authority. Foucault. may well be different in important ways when one of the parties invoking judicial power is itself the state. supra note 21.186 but new words about violence conversations. at 78-108 (explaining his methodsand goals). Foucault. and words may shake the world. The Good Mother (1986) (novel detailing damage to mother and family relationshipsinflicted during child custody litigation). 187. then. e. can produce violence or meaning or both. Power/Knowledge. M. but also on the brutality what. M.unnamed secret weapons. Ball. Disci? pline and Punish (1971) (interpretingspecific historical practicesof social control and punishment).190 Nonetheless. official or unofficial. The work of Michel Foucault is devoted to exposing patternsof power.Interpreting Rights can be used to grasp portions of for meaning guage and human gropings the world usually beyond words. 189. of litigation. include complacent of violence. yet the turn suggests. 1986) (discussing legitimation and social identity produced by ideology). and the creation of ideological meanings that disguise violence confuses the matter. at 132-33. See. 310-11 (G. Taylor ed. This may be because they are secret?secret bombings. secret nu? clear arsenals?and perhaps because they are unfathomable.187 of power and the meanings in detail the disguises exposing Law talk can be searing. Foucault. I engage the two terms in communal of this Yet. the Word puts a fundamental challenge as I believe.188 other.. focusing significance gains additional not just on the violence imposed by the judge. use judicial power to inflict injury on one an? is often Milner Ball's aspirations. ens to destroy normative of community can be salvaged of the conception forged in the language of rights? This question conversation through interpretive when viewed through a wider lens. not just in con? and Violence 186. See S. Lectures on Ideology and Utopia 12-15.g. The conflicts predate the invocation a new the invocation of authority transforms the conilict. despite metaphor. dialogue. One way to do order to give those meanings this is to speak in maintaining versation?in parts Essay in an angry disagreement. subtract translation from. however. Miller. M.

Who Is Before the Law? as well as judges. or induced. When King Solomon crudely meaning in the selfsome change a sword. But it is an indirect kind of claims on which the themselves can wield. or what matters most. by studying a specific myth. brandished of the two women in his court who fought over a child. and psychological economic. that may well distort communication would occur. argue. does create a shared world within the Legal discourse courtroom. or playing out a metaphoric elaboration of 1906 . The risks posed by but pleading before an imperfect powerless authority. "Myth. however. be or otherwise con? silence. in this context. elaboratinglayers of meaning in a specific event. or psychologi? economic. The assignment was to concentrateon the meaningfulnessof concrete paradigms. may tinued conflict. and History. he invited. Minow. Robert triggered Cover's Violence and and the the Word primarily tie between the power power and any used by par? Legal language in their different significance this addresses refuse by judges of meaning the judge pronounces. and submit to judgment. 191. in The Structure of Procedure 447 (R. 1987 C." I could not have written the piece without Bob's gentle but insistent encouragement and belief that there was a paper there. Law. Rather than consider how litigation inevitable in court to children comparing reduces all parties to children. I wrote this essay for Bob Cover'sseminar. one woman gave up this change of to custody. make litigants Litigants power. The alternative. It may give voice to entitlements only dimly perceived before. Legal discourse converts the physical. in the the judge's power and demand that the opposing side participate What happens process. mative dimension of this engagement warrants attention. The significance dimensions. Fiss eds. amid my many retellings of the biblical story. of judicial we might violence. than criminal law as the dominant focus. TheJudgment of Solomon and the Experience of Justice. their attorneys may carry quite lives. of rights as tools of communal still discourse. to participate Coercion is certainly Its presence coercion. and the nor? Litigants. and therefore addressesthose situations when the state's invoca? tion of violence is most obvious and most severe. about what has can force to reach new violence litigants insights legal for them. 96: 1860.The Yale Law Journal Vol. cal conflict into verbal coinage with physical. bonded to official violence."191 Violence. understandings Rather heart her claim watch Solomon divide the child in half. One potential of violence is its threat of should a party meaning judicial punishment to appear. gains importance in court? The risk of judicial to litigants coercion re? mains present throughout their exchange. and urged that his life be preserved. It may help each litigant recognize that there is another side to the story. Perhaps of legal discourse is effected less through equal participation the equality of the in the creation of legal meaning than through the shared experience language ties and threat adults. led Solomon to declare this woman the "true mother. 1979). are engaged in rights rhetoric. Cover & O.

that conversation has Through rights discourse. 232. The Fact of a Door Frame: Poems Selected & New 1950-1984.33 Me. e. L.. Cf. See S. McEwen & Maiman. rather than enable Solomon Rights learned rhetoric. Rev. through who stay away from planning long before course official may take exploration be more free of official instead legal dis? commitments and turn The litigation. creation of meaning away from shadows.D. 754. 227 (U.Interpreting Rights for norma? not "justified" created opportunities or "redeemed. particular parties to join together through conversation.g. Folktales of Justice. We have no reason to believe that Solomon himself was challenged to grow through this experience. J. L. Bargaining in the Shadow of the Law: The Case of Divorce. 27. Stern and T. for Berlin 1979).192 to serve The experience of litigation may be too brutal and polarizing the purpose of encourgaging commitments ing normative close facing pute. 319 (1984). and strength of per? sonality in negotiation). MenkelMeadow. Rev. Cartographies of Silence. 26 Am. Mnookin & Kornhauser. See. e. 950 (1979) (processes of divorce law create opportunities for private orderings). 829-40 (1984) (discussingeffects of inequalities of wealth." although tive growth. A Warmer Way ofDisputing: Mediation and Conciliation. (Supp.195 In whatever of rights and the nor? context. ground rules that alter the exchange?or the silence196?that would have concepts in normativespace. Ct. decided by Judge Herbert Stern as article II judge for United States Court for occupied Berlin).) 205 (1978) (mediation can produce constructiveprocess of mutual growth). he may have grown more inured to the exercise of violence in the name of norma? tive justification.g. The challenge of that assignment is perhaps a life's work. 199-202 (exploring possibilitiesof tribunals without official authority to try United States for its role in Vietnam War and to resolve disputes over rabbinic line affecting future of Messiah). 254-60 (1981) (reportingevidence that parties express greater satisfactionand compli? ance with mediated settlements than with adjudicatedjudgments in small claims area). The Caucasian Chalk Circle (J. Brecht. power.R. 88 Yale L. supra note 7. at 191-97. Small Claims Mediation in Maine: An Empirical Assessment. the language mative community it signals may be critical in structuring a particular kind of conversation.194 for parties or mediation..Smith. see also Rich. the interpretation. See The Bonds of Constitutional Interpretation. Tiede.193 place more fruitfully to settlement.J. 4 Fam. 237. Griffin. at 823-25 (discussingUnited States v.indeed. Rev. Litigation We have no hint that together as a result of normative violence in explor? may fore? the women to converse and could court of their conversation. 194. 1907 . 192. Crouch. 195. Stern trans. 193. See. Comp. Whether mediationand other informal methods for dispute settlementprovide contexts more likely to promote authentic and meaningful speech?or instead are likely to introduce new forms of coercion?is a subject of considerabledebate. 233 (1984) ("Silence can be a plan /rigorously executed /the blueprint to a life /It is a presence /it has a history a form /Do not confuse it /with any kind of absence"). 31 UCLA L. 33 (1982) (mediation may produce exploitation of one party). 1983) (judge learns nothing from experience of resolving child custody dispute by having litigants engage in tug of war over child and seems to enjoy infliction of abuse on litigants). Rich.S. 86 F. supra note 25. B. in A. Advoc. Toward Another View of Legal Negotiation: The Structure of Problem-Solving. Mediation and Divorce: The Dark Side Is Still Unexplored. CL. at least for the litigants. Soifer. Listening and the Voiceless.4 Miss. further dis? through the centers of author? from their power while still gaining rhetoric also to constitute Rights may help a kind of communal to command ity without need of official structures respect or occupy nor? mative space. 196. Pornography and Silence: Culture's Revenge Against Nature (1981).

by lawyers. The racial discrimina? tion of Bob Jones University. See also W. Death and the King's Horseman (1975) (portraying British attempt to prevent local ritual in which horseman follows deceased king into world of ancestors). rative. at All. 96: 1860. 1987 otherwise some without taken place. Soyinka. veiled or unveiled by interpretiveacts. Through ritual. .. supra note 148. it was important state may attempt to destroy local. describedin Nomos. /I call it cruel and maybe the root of all cruelty /to know what occurs but not recognize the fact.Yet there is some danger that reformerswill rush to push poor people out of the traditional court system into uncertain. . Vining begins with this meditation: Jurisdiction is power. . See J. Since the abandonmentof absolutism no human being is all powerful. With power a human being becomes a person. Nomos and Narrative. rather than in courts. . col. He has particularpowers. 2: No one has suggested that major antitrust suits or securities litigation be forced into binding arbitration. For Cover. It is surely for such a reason that William Stafford named his poem. A similar point is made by those who worry about risks of shifting from formal adjudication of legal matters involving poor or relatively powerless people. Post. in his 1983 interpretation by practicing of state power and organized this theme was powerfully eluci- Nomos and Nar? Foreword. Legal Identity (1978). and as these are defined he emerges as a particularperson. what becomes of whatever protections the less powerful party might have had from the rigid laws and procedures? 198. "A Ritual to Read to Each Other": If you don't know the kind of person I am /and I don't know the kind of person you are /a pattern that others made may prevail in the world /and following the wrong god home we may miss our star. 199. even though the game has changed from litigation to Let's Make A Deal. . jury-rigged substitutes. A Ritual To Read to Each Other.197 conversations?both its threat. supra note 23. Edley."201 Jurisdic? tion is expressly about the relation between words and power. dated by Cover distant communities. The ques1908 . And if "informal"means that rules and statutes can be bent in order to do what's "fair" in the specific dispute.g. at 912. In this country. at 4. And as elephants parade holding each elephant's tail. never take but place It is easier in private normative commitments from centers Indeed. 16. 201. . W. sophisticationand patience will still be real.The Yale Law Journal Vol.200 monopoly focus on questions of juris? diction. e. The disadvantagesthat flow from having less income. See. Compare Nomos and Narrative. . 202. Wash. This invented debate "over doctrine.202 This explains Bob Cover's frequent concern 197. Soifer. Stafford. Local commu? pacity of communities)with id. here arises the risk that the kind of conversationthat could have been instigated will not take place. Vining. private normative activities because threaten to frustrate state's for a of the thirst they meaning. Jan. organizes whether and when law might be used to limit the powerful. that article celebrates the generation of norms to the state and that often act in resistance by small integral communities Supreme Court its organized to emphasize that the power. . at 11-19 (discussing "jurisgenerativc" characterof courts). is itself a kind of violence. legal discourseand judicial hearings may frame rituals when no other kinds of communicationare possible. . . /but if one wanders the circus won't find the park. ca? 200. . Legal Reform and the Poor: Some Questions. communitiesexpress what goes to the essence of their being. supra note 23.199 Dethroning the usually official norms generated privileged by acts of state interpretation. at 40-44 (describing"jurispathic" nities may themselvescommit violence. 1984. in Stories that Could Be True 52 (1977). .198 to build Judicial in and power may distort out of court?would conversations. even in concept. violence.

204. . Legal lan? with people and would may paved and hopes of those who seek to curtail is often inflexible and unwieldy. and due process will be meticulously observed. .205 of legal discourse also the pathway to hell is can never express individual Its Moreover. while welcoming to others. Id." See. The secretary in turn will seek to show the judge that he cannot..g. directly and indirectly on official sanctions.how often moral progresshad to be forcedupon the privilegedby the pressureof the oppressed. . . 205.that any decent society requires a public discourseabout the needs of the human person. Ignatieff.203 simply fail to express the official violence. and its accreted I that possibility. [But] every new moral issue has evoked a clash of interests. legal language experience. We may still doubt. Rights language offers a rich vernacularfor the claims an individual may make on or against the collectivity. M. The Needs of Strangers 13 (1984). What difference does it make if this guest is a judge. . nor rights guaran? tee them as entitlements. its dependence very claim to communal meanings. Vining turns to an imagined situation where the Secretaryof the Interior is attending a dinner party. Personal Knowledge 226-27 (1958): We have seen that even though public power were originally based on terror. And this is a big "if. The particular shape of legal rhetoric may be inhospitable to certain meanings. . .").and that the thoughts cultivatedfor the purpose of controllingtheir people would inevitably gain ascendancyalso to some degree over the rul? ers' own behaviour. desires guage words speak to power? the violence of the official How order violence? is a thin shield Language Even if uncorrupted by its association the normative of rights discourse language may which may normative language. and what devices determine the power of the judge? Vining notes: The secretarycan appeal to others' sense of what a judge is and argue that the individualwith the commission. This is the jurisdictional argument that occurs in every case. . Gilmore.but it is relatively impoverishedas a means of expressing individuals'needs for the collectivity. G. Bumiller. 206. If an individualwho is not a judge wishes to challenge an act of the secretary'sand persuade a judge to issue an order to the secretary.whether the rulers of any society. . . It is becausemoney cannot buy the human gestures which confer respect. was still not acting in the role of the judge.206 past preclude tion What is a judge? can thus be replaced by the question When does a human being ap? pointedjudge have power? Id. choose. Polanyi. more palatable. . The Ages of American Law 111 (1977) ("In hell there will be nothing but law. 203. Sometimes who win with legal language must face consequences they did not.how the existing distributionof privilege has always granted its beneficiariesconsiderablepowers to resist reforms that curtail their advantage. at 13-14. it could not fail to supplementits coerciveforce by persuasion. and another guest orders him to suspend his decision to permit offshore oil drilling. e.and how they have perpetuatedinjustice by force. effect not. abstract and formal. M. . 1909 .will ever observe the claims of morality beyond what is needed in order to delude their subjects (and their allies abroad) to trust their professionsof morality.204 The cumulative be undesirable. he must bring the judge to see that a judge can intervene in the situation. however freely self-governed. Grant Gilmore warned that with due process.Interpreting Rights Can makes violence.in his black robes and in his special room. Signs 421 (Spring 1987) (effects on discriminationvictims of pursuing rights enforcement). Victimsin the Shadow ofthe Law: A Critique ofthe Model of Legal Protection. therefore. ever constrain that and a fragile sword against actual power and force.

When Difference Has Its Home. 208. Whether and questions that should be an- swered by those who lack it. 211. 1910 . console have criticized like any language. partial as it is. (forthcoming 1987). supra note 59. Rev. The assertion of community may be false. to hide of private seduce. Petitioning and the EmpowermentTheoryof Practice. 96: 1860. Schneider. at 416. Rights discourse.J. 212. or new create a line of exclusion enforceable may by police power. to shape Schneider has articulated parties. Minow. especially the cen? tral need for relationships with adults who are themselves enabled to cre? ate settings where children can thrive. that Legal language. when access they have to them. I worry about criticizing Nonetheless. even the communal are connected to violence. the language of rights "imply a respect which places one in the referential range social who of self and others. exposure of In Williams' to hierarchies Patricia words. limited and and violence. people using lenge power. if rhetorical. which being.210 how lawyers to bring officials and new body to allow those Elizabeth upon rules. see also Note. supra note 30." But. can they appeal to legal meaning to give force can be drawing to legal to those with rights. Rights rhetoric of state for its tendency can. Minow. 22 Harv. of and chal? well-suited. own how can struggle experiences. at 23. falsely the exercise freedoms. meanings challenge power Each historic medium for struggle.212 helped struggle invested 207.supra note 85.L.211 Legal vocabulary. be exposed even in the name when exercised authority. including meanings. rather than trash reinvent them. Much of the first part of this essay is an effort to recover the relational aspect of a rights discoursethat has so often emphasized autonomousindividualism.208 As Cover reminded of rights claims dimensions us. at 127-30. to transform inherited has meanings. can become a powerful For the speaker. join in the efforts to reclaim how to use words to constrain power become rights and legal language just to available lacked people who had previously about those who have. want and are it. 96 Yale L. and should. mislead.The Yale Law Journal Vol. at 604-10 (discussingfeminist lawyer's effort to shape new politi? cal and legal meanings from her experience). telling those who do not.207 something terribly lacking in rights for children that speak only of autonomy rather than need. See generally Symposium:Sounds of Silence. Williams. supra note 15. 569 (1987) (exploring how right to petition governmentfor redress of griev? ances can empower individuals and groups). 209.-C. 210."209 The ambiguity use them their and elevates one's status from human and mutability of the words and reinvent their meanings. 1987 view of human relation? rights rhetoric for its impoverished and its of the power of those labels that hide ships repeated assignment I And find the doing assigning. you should not "you I rights.R. For this task. C. I worry do not need it. L. may or wrongly inflame. Rights for the Next Generation. rights rhetoric is remarkably It enables a devastating. 168-89.

P. groups. and maybe sometimes whom even I mean not just in terms of winning a given essential. 215. Those without official can roles present Everyone committed violence. at 52. to something remote impor? shadowyja tant region in all who talk: /though we could fool each other. and maybe even essential. Being and Nothingness (1956))."213 As a bridge between to any state worlds-that-might-be. By "helpful. supra note 106. or in the or away Interpreting Rights And so I appeal to a voice. 214. Stafford. helping the kind of world where for change can in fact struggles for meaning and communality change. If this is the case. the separations and connections among individuals." through case or conto constitute bring about can nurture clinical 213. able to couch a request as a claim of right. Dallmayr. Folktales of Justice. W. supervise basic in their in the trenches.Interpreting Rights an inherited "a means of pre-ordained is less a collection than language meanings in the direction of an unof transgressing factual constellations the world-that-is and alternative charted future. we should consider?llest the parade of our mutual life get lost in the dark. as a scholar. the larger community. Sartre. F. I wonder work. or talk to professionals I am helping and whom I am hurting by criticizing to be useful. ?William Stafford216 I have the luxury. as a kind of communal discourse that reconRights can be understood firms the difficult commitment to live together even while engaging in conflicts and struggles. I can step back and criticize tools of legal practice. legal norms cannot belong exclusively or set of officials. It turns out to be helpful. even antagonismay well demand our separation tic to. Yet when I write a brief. for preserving about assumptions human that I believe are to social and autonomy contrary experience students likely to limit social change. then the discourse of rights as a medium for speaking across conflict? may be all the more important about ing affiliations. against the state. The very act of summoning "community. 1911 . and future. and the state. supra note 25. at 181-82. like rights. at 97 (discussing J. The struggle to make meaning of human existence into groups away from. and where struggles both. rights. supra note 199. to criticize. useful. After the Law: demand are as important to bridge for justification every act of from the state. name of the state." a do official to a in but vincing particular good thing.214 III.

They draw up a set of laws. that's not what I meant.217 like a song. enough express. The American Heritage: The Heirs and the Disinherited.The Yale Law Journal Vol. (forth? coming 1987) (noting how others describeconstitutionalinterpretationas battle among heirs to found? ing fathers. after or bad? The interpretive framework of the dispossessed. 1912 . that legal pronouncements suggests We can listen to rights as a lan? not engender the exposing it.216 are possessions that contains but does meaning guage demonstrate our sociability even while speaker. either as rationales or in new happens when non-officials in terms the officials themselves terms. at such expose the divisions within the commu? Legal interpretation. you rights is. "There The language are no words to say what I mean. Am. not write it and chanted good legal pronouncements. 1987 a language of even rights. can be hummed by those for whom it was is nuanced enough to express. a society may gradually and without any deliberate intent develop certain institutionalizedor ritual ways of proceeding. normative commitments that have not before made their embodying the official into canon of is never transparway meaning. and investment tation not just in official acts moments. After a time. 73 J. But rules require interpre? tation. conversely. it constrains and limits what individuals mean even as it And the communal may well occonveys a communal meaning. Pitkin.Again the result is a tension between the "ideal substance"and the "practicalform" in which it is embodied. Hist. and normative commitments official gling against oppression. Or. Legal meanings pronounced by officials cannot be severed they lence from the violence to those be reduced and power acts of violence nor can they seek to rationalize. happens com? also occurs resistance. Legal language. At first these rules or ideals may be merely descriptiveabstractionsof how the institu? tion works." or "I do not belong to 216. and their commitmentto the institutions that were supposed to bring it about. by official actors. in my very willingness to observe your boundaries. or institute a school." Language of or even. men may find themselves torn between their commitmentto the original purpose. What happens after the law. 217. 96: 1860. Because private vio? both public and private efforts to are important for strug- can be as bad as official meanings craft legal violence. and power." "I to or could am connected nuanced to be. and institutionshave a way of developingpurposes and directionsof their own. Wittgenstein and Justice 187 (1972). as sounds that of the did uniqueness by someone who not intended. meaning clude the conflict it resists. Legal pliance. Legal interpre? seek to hold have offered officials to account. H. and from these it may eventually abstract rules or principles or ideals. beyond nity?and may it. Legal language ent to experience. or create a new agency. through interpretation of old forms with new meanings. Appleby. and develop an institution or a set of procedures for achieving and perpetuatingthat goal through time and in the activities of many men. Hanna Pitkin has suggested that a tension between ideals and institutional practices may actually create the opportunity for a critical leverage on each: She writes: The tension may arise through either of two possible historical sequences. and offering instead conceptionof battle among disinherited). but after a time they become critical standardsin accordwith which the institution can be evaluatedand reformed. Perhaps men conceive some ideal or goal or purpose. "No.

31 St. See M. The poet W. New Eng. 3 (1986) (discussing loyalty oaths). T. 1913 . lence. probing for some more specific meaning. the reader could try to relate to the text and draw from the reader's own experience. Robert Cover introduced Yale law students to myths and histories about the creation of law and about central legal preoccupations. in 2 Stories of a Lifetime 288 (1961). Law. then indeed the poet has communicated. And yet. Aeschylus a sharp dilemma about the relations transforms a well-known a journey through biblical constitutional history. such as guilt entitled and innocence. another twist in the meaning remains. The "who"?perhaps no one known.so cutoff. I am remindedof a poem so expressive of the difficulties in finding words that it conveys silence even as it speaks. 219.Interpreting Rights with your norms.And the silence. and interruptionthat produces such a statement of the impossibility of statement. other." "Myth." "I. "Why such incompletion?"the reader can ask.J. L. may be its message. Blood-feuds. Apollo commands Orestes to avenge his of the gods' intervention. The possibility of mourning that could reach closure is so dim that the poet cannot even complete the thought about how to try.L. If I am able to grasp some portion of the poet's thought and feeling. in demanding that you respect my separateness. even speech about powerlessness. and the steady burden of learning * * * in the fall of 1977. Here was a world of divine Then. 9 W. Yet. abrupt verse. entitled: "Elegy": Who would I show it to Ending with a preposition. Professing Law: Commitmentof Faith or Detached Analysis?. Moses and Monotheism (1939). Mann. perhaps by death. Moses (1946). even the right to avoid conversation. Perhaps the poem means the poet's relationship with someone has been so interrupted. and at least in some measure. some sense of how great would be the poet's grief. between author and reader. See Levinson.In this context. between strangers. Freud. Conspirators murder Agamemnon upon his return from the Trojan Wars. 197. loss. S. Minow. once started. Human beings are the hapless victims between justice and vio? story into normative commitments. that the very idea of memorializingthe lost one seems futile."218 Perhaps people can work through legal interpretation to communicate misunderdisjunction. Merwin wrote this short. Conversationwhere there has been silence may best begin this way. no one alive. Buber. What could be the "it" in the poem?perhaps the elegy in the title. The Tables ofthe Law.and relying on refer? ence without definition. through of the law-giver. The one person who could understandand appreciate the poet's efforts to write an elegy is gone. S. each by a German writing in the 1930's. and between conflicting The House of Pelops is cursed. Rev. and History. Incompletionand dependenceon what remains forever unsaid weigh heavily in the poem. but I lay claim to some shared terms your community. we have each standing. After the law. stand-in words like "who." and "it" for undisclosed references: the poem is perplexing.219 turned to the Oresteia. has indeed been broken.ending without punctuation. Moses.in mid-thought. Many Silent Worlds. the discussion chaos. I have written about this power in poetry: Feelings of powerlessnessmay at times precludespeech. The readings brought together three works about Moses. and through In a seminar to live together and apart. 204-05 (1987) (footnotes omitted). if any of this discussion echoes the meanings the author intended or meanings sensed by readersother than me. The "I"?perhaps the poet. in expressions of what has been and perhaps remains inexpressible. Elsewhere. Louis U. 218. and Talmudic studies The theme of creation American launched texts. have no end.

Mercy does violence prevailing appeal challenged charges. What/man who fears nothing at all is ever righteous? Such/be your just terrors. as long as people are committed in their of violence the social interpreta? making sisting organizations tions real. so there can be no direct Yet. as Athena knows. 1987 Agamemnon. but her divine legal order. Thus/I advise my citizens to govern and to grace. and you may deserve and have/salvation for your citadel. nor the land that Pelops held. they come out casts the deciding vote. to their authority." freedom the new order and and and and earth. the "Kindly Ones. sity. Athena proposes the Olympian that the Furies. There closing conflicts was choice a moment reached class when Bob Cover conjured up the a the to create public sphere. the gods are divided. eagle necessity. by excusing a jury of order by appointing the jury Athena Furies. indeed. 221. Lattimore trans. is constitutive of violent behavior as [A]s long as legal interpretation to using or rewell as meaning. Aeschylus.no rule of a single master. she says. at 1629. preme. supra note 7. of power has dislodged to the Responding she the the Furies the divine of Athens jury's his mother. moderation. Agamemnon's father. though./such as is nowhere else found among men. When the jury casts its lots. and Athena decision topples the Athena from has their Orestes to law. tes is inextricably rects Orestes to appeal to Athena. death. who herself had planned by murdering OresPursued by the Furies for the act of matricide. 96: 1860.220 jury gods. 1953) (lines 698-705). Athena charges the human jury to retain a sense of fear even while engaging in selfgovernance: No anarchy. in and violence own justice. for the vote was even. neither/among the Scythians. legal sovereignty of a new role?to offend the due law?the those who punish processes are transformed. though we remain tragically caught ignorance over to humans as we compete for the power to give reality to our visions. there will always be a tragic limit to the common meaning that can be achieved./and not to cast fear utterly from your city. mortals. restraint. and become the Eumenides. moral imperatives. She chooses ten mortal men will make the The of peers. Apollo dicaught between clashing to act as a su? judgment evenly. It was a moment of hope and a moment of neces? and pursue our We gained the right to interpret our own meanings. It was a choice to turn the instruments in the Furies of blood beings. beyond the gods by of justice feuds. Violence and the Word. She pardons Orestes. Sky the old?all are joined in a new iteration of the continual struggle.The Yale Law Journal Vol. snake.221 220. and men will share control of the and in the minds of humanity. Eumenides 160 (R. With share order. your land's defence. angered interprets vote: You have not lost. 1914 . and persuasion. because she combines male and female and embodies the virtues of virtues. gods.

may we recover our rights to 1915 . to interpret our suffering.Interpreting Rights May we learn make meaning.