by Jennet Kirkpatrick. Princeton: Princeton University Press, 2008. 152pp. Cloth. $40.00/£28.95. ISBN: 9780691137094. Paper. $22.95/£16.50. ISBN: 9780691138770. e-Book (2009). $22.95. ISBN: 9781400828869.
By: Jon Goldberg-Hiller, Department of Political Science, University of Hawai’i. Email: hiller [at] hawaii.edu.
Jennet Kirkpatrick’s book provides an engaging examination of what she has calls “uncivil disobedients,” popular actors who practice and profess the value of “righteous violence” (p.2). Focusing on these proponents of violent means to ostensibly democratic ends does more than open our eyes to what Smith (1997) has called the conflicting visions of American citizenship. It also expands on Weber’s epistemological realism that anchors the nation to rationalized violence, a perspective captured in a quote from Goethe’s FAUST: “The devil [of violence] is old; grow old to understand him” (Weber 1946a; 1946b). The devil of violence, illustrated in the chapters of Kirkpatrick’s book, reveals to legal theorists more about popular constructions of the law (plowing more of Cover’s legal field of pain and death), proffers alternative models to the Civil Rights Movement (CRM) that have overly dominated sociolegal analysis, and illuminates the “gray area” where the rule of the people mixes with the rule of law.
UNCIVIL DISOBEDIENCE develops these sociolegal inquiries alongside fascinating accounts of vigilantes, Southern lynch mobs, and militant abolitionists. These histories confront the reader with the structures of popular violence reproduced within the American experience, dispelling dismissive notions of their aberration or their charismatic irruption. We can see the repeated fascination with legal form in these accounts: the “tribunals” constituted by vigilantes that justified violence and law; the support of local sheriffs for lynch mobs in paradoxical efforts to increase “fear of the law;” and the collective character of militant abolitionism designed to reaffirm the relationship of the people to the government, as just a few. These violent movements also expressed a temporal dimension not unlike law’s antecedent concerns with origins and precedent, as well as cycles of renewal and return to expressed truths (c.f., French 2001; Greenhouse 1989): a fascination with the complex pull of the past such as the broken promises that justify violent defenses of democracy, and the need to re-experience aspects of the American revolution. Each episode of uncivil disobedience is also shown to be infused with what Morone (1990) has named the “democratic wish”: a Rousseauian sense of sovereign unity that has always animated democratic arguments about law’s proper domain. As Kirkpatrick phrases it, “To effectively unite will and law, the people had to have one will, one voice, one conscience, and one desire” (p.50).
Kirkpatrick demonstrates that the power of these legal themes brings uncivil [*280] disobedience structurally close to other models of popular reform, particularly the CRM. Like the Southern lynch mobs that the CRM tried to defeat with a new respect for the law, for example, the CRM relied on public spectacle, personal comportment signaling high social status to build middle class support, mass action to deflect the power of violent confrontation, and a notion of law that transcended the individual. In order to explain the differences, Kirkpatrick effectively turns to political theory and jurisprudence. In the case of lynch mobs and the CRM, as an illustration, she finds differences articulated along the lines of HLA Hart’s distinctions between duty-imposing rules (that both CRM and the lynch mobs wanted to reform) and power-conferring rules (that only the CRM respected).
Kirkpatrick’s successful efforts to develop these case studies demonstrates the continued vitality of gap studies for sociolegal thought and our commitments to justice. No longer the empirical gaps between law on the books and law in action (gaps that began to collapse in the cultural turn towards constitutive legality), gaps are now more conceptual: the sovereign exceptions (Agamben 2005), aesthetic distances (Rancière 2004), or distinctive narrative genres (Ewick and Silbey 1998) that delaminate legal and social meanings. In Kirkpatrick’s book, the gaps are cleaved open by the violence designed to distinguish the rule of law from popular sovereignty, and to articulate them anew within a compelling moral vision. While politically charged, the gap exploited by uncivil disobedients is analytically murky: “understanding . . . the relationship between the rule of law and the rule of the people . . . emphasizes its complexities, its tensions, and its interwoven interdependent character” (p.56). Nonetheless, examination of this complexity is compelled, Kirkpatrick suggests, by the political weaknesses of the alternatives. Both the “dream of absolute submission to the law and the ideal of absolute dominance over law are alike” (p.112); “democratic citizens who continually bend their heads in the shadow of law or who are unable to look those who embody the law in the eye have lost something vital to their citizenship” (p.117).
Kirkpatrick’s study is rich in history and suggestive in its pursuit of other models for thinking about law’s social meanings. She misses several opportunities, however, to invite further inquiry in this short book. We do not learn enough about the gendered nature of political violence, even though the lynch mobs are aggravated and motivated by concerns over sexual violation. The articulation of appropriate norms of citizenship have often been masculinist, as has been control over the Judiciary for much of American history, and the toleration for private violence against women and slaves has itself been a legally acknowledged masculine prerogative. How the violence administered by uncivil disobedients plays within this sociolegal structure remains uncertain. This concern over gender can be extrapolated to other non-CRM mobilizations against the law. Opponents to same-sex marriage, for example, have also highlighted gender and sexuality, a backward-looking obeisance to “tradition,” and an effort to restore the law (and displace judicial control over legal doctrine) through popular sovereignty (Goldberg-Hiller 2004). The violence of these and other [*281] countermobilizations, such as those against Indians (Dudas 2008), is less overt than those of a lynch mob (though not absent, by any means), but so is the identity-based form of citizenship more common today. The link between civil disobedience of the past to these contemporary political and legal issues that transcend the CRM-inspired civil rights models of legal mobilization remains a significant issue in light of this work.
Finally, the link between what Kirkpatrick, following Brown (1975), calls the “lawless lawfulness” of the civil disobedient (p.14) and what Sarat and Hussain (2004) have called “lawful lawlessness” characterizing the exceptional discretion practiced by legal authorities deserves more thought. Is there a link between the violence from below and the extra-legal action from above – both articulated as a supplement to the rule of law – that have a common meeting point beyond their rhetorical justifications? Kirkpatrick’s book is worth reading and pondering for the ways that it makes one connect American legal history to these pressing issues.
Agamben, Giorgio. 2005. STATE OF EXCEPTION. Chicago: University of Chicago Press.
Brown, Richard Maxwell. 1975. STRAIN OF VIOLENCE: HISTORICAL STUDIES OF AMERICAN VIOLENCE AND VIGILANTISM. New York: Oxford University Press.
Dudas, Jeffrey R. 2008. THE CULTIVATION OF RESENTMENT: TREATY RIGHTS AND THE NEW RIGHT. Stanford, CA: Stanford University Press.
Ewick, Patricia, and Susan Silbey. 1998. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago: University of Chicago Press.
French, Rebecca. 2001. “Time in the Law.” 72 UNIVERSITY OF COLORADO LAW REVIEW 663-747.
Goldberg-Hiller, Jonathan. 2004. THE LIMITS TO UNION: SAME-SEX MARRIAGE AND THE POLITICS OF CIVIL RIGHTS (1st ed). Ann Arbor: University of Michigan Press.
Greenhouse, Carol J. 1989. “Just in Time: Temporality and the Cultural Legitimation of Law.” 98 YALE LAW JOURNAL 1631-1651.
Morone, James A. 1990. THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMITS OF AMERICAN GOVERNMENT. New York: Basic Books.
Rancière, Jacques. 2004. “Who Is the Subject of the Rights of Man?” 103 SOUTH ATLANTIC QUARTERLY 297-310.
Sarat, Austin, and Nasser Hussain. 2004. “On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life.” 56 STANFORD LAW REVIEW 1307. [*282]
Smith, Rogers M. 1997. CIVIC IDEALS : CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven: Yale University Press.
Weber, Max. 1946a. “Politics as a Vocation.” In FROM MAX WEBER: ESSAYS IN SOCIOLOGY, H. H Gerth and C. Wright Mills (eds). New York: Oxford University Press, pp.77-128.
Weber, Max. 1946b. “Science as a Vocation.” In FROM MAX WEBER: ESSAYS IN SOCIOLOGY, H. H Gerth and C. Wright Mills (eds). New York: Oxford University Press, pp.129-156.
© Copyright 2009 by the author, Jon Goldberg-Hiller.