February 3, 2012

Law and Violence

Yxta Maya Murray, Loyola Law School, Los Angelos, has published The Pedagogy of Violence at 20 Southern California Interdisciplinary Law Journal 537 (2011). Here is the abstract.

In The Pedagogy of Violence, I develop a legal theory of the ways in which human beings teach each other to be violent. I am responding to the “contagion of violence” theory advocated by legal theorists such as Colin Loftin and Dr. Jeffrey Fagan, who argue that violence is akin to a contagious disease. Using disease as their paradigm, Loftin and Fagan contend that courts and political institutions should address the problem of violence through what they call the “epidemiological” approach; that is, they say that violence should be addressed as a public health problem. Though I do not take issue with the data-collection and public education strategies that they advocate, I argue against other aspects of this approach. Namely, I believe that the “contagion” metaphor dangerously dehumanizes violent offenders by characterizing them as “vectors” of parasitic disease. This language may pave the way for dangerous social policy. Moreover, the contagion metaphor has the unfortunate effect of obscuring the personal histories and emotions of violent actors, which may lead to myopic legal redresses that fail to get at the roots of the violence problem in our society – for example, poverty and despair, alienation and grief.

Thus, I argue that we should reconceptualize the process of violence transmissions as a “teaching lesson;” in other words, that we acknowledge that we teach each other, via a very specific pedagogy, how to be violent. In attending to the particulars of this pedagogy, we may better unearth the emotional, economic, and moral dimensions of violence transmissions, which can only lead to better, more tailored strategies of legal redress.

In A Pedagogy of Violence, I note that several interdisciplinary jurisprudential methods can be used to study this pedagogy – for example, the therapeutic justice, law and economics, and law and sociology approaches. I add to this list, advancing a legal-literary study of violence transmissions, since literature on violence is devoted to tracing the emotional triggers that spur people to violence. In A Pedagogy of Violence, I offer an analysis of Nobel Laureate Elfriede Jelinek’s novel The Piano Teacher, which gives a detailed study of the ways in which violence spreads from one person to another. Using the lessons learned from this novel, I then circle back to my critique of the “contagion” approach of Loftin and Fagan. In particular, I critique the decision N.A.A.C.P. v. Acusport, 271 F. Supp. 2d 435 (2003), where the N.A.A.C.P. attempted to get damages from a gun manufacturer for its negligent dissemination of guns in inner city neighborhoods. The court’s reliance on the contagion metaphor, in lieu of a “teaching lesson” approach, I maintain, obscured the ways in which violence was transmitted, and prevented the N.A.A.C.P. from obtaining deserved relief.
Download the article from SSRN at the link.

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