Sado-Masochism and the Law

Matthew Weait, Keele University

Introduction

In their essay on the jurisprudence of Robert Cover, Sarat and Kearns ask whether law can ever make peace with violence (Sarat and Kearns, 2001). The reason for, and essence of, the question is the fundamental paradox that while law purports to substitute itself for violence – in the form of a civilised, and civilising, alternative – it retains, and depends on, an immanent violence of its own. Cover, alone among his contemporaries, recognised the importance of revealing and reaffirming the fact that the violence embedded within the concept of “legitimate force” was, and remained, violence: that the concept of the lawful use of violence amounted to nothing but a cunning (and effective) sleight of hand performed by the positivist conjuror. For Cover, the adverse physical and psychic consequences to the person which can, and often do, flow from the interpretation of a legal text are such that superficially attractive and convincing assertions about the neutrality (pacifism?) of the interpretive process, or about the text itself, are in fact illusory: a real effect perhaps, but one produced by smoke and mirrors.

Cover believed that the co-ordinated form of violence which constitutes law was an achievement, in the sense that it represented the obverse of undisciplined private violence. For him, the dominant liberal tradition which seeks to obscure the violence of law is one that denies an important political truth about law and its social function:

As long as death and pain are part of our political world, it is essential that they be at the center of law. The alternative is truly unacceptable – that they be within our polity but outside the discipline of collective decision rules and the individual efforts to achieve outcomes through those rules. (Cover, 1986: 1628)

Such a vision does not lead Cover to conclude that the interpreters of legal texts (e.g. judges), and those whose office requires them to implement their interpretations (e.g. criminal justice professionals), are, and can only ever be, necessarily violent; far from it. He believed that judicial violence should, and could, be exercised sparingly – that tolerance could be achieved and heteronormativity celebrated and affirmed. In this chapter I question, among other things, whether – in the context of the “violence” that sado-masochism (“S/M”) represents for law, and the “violence” that law metes out on those who identify as sado-masochists – Cover’s optimism is well-placed, and why – because the answer to the question is a resounding, if complex, “no” – that might be.

Go to Some Context: What does the law have to say about S/M?

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