Suppose there 'existed two legal orders with identical legal precepts and identical, predictable patterns of public force; would they nonetheless differ essentially in meaning if, in one of the orders, the precepts were universally venerated while in the other they were regarded by many as fundamentally unjust?'
The plain answer is no. Suppose Texas and Arizona have the same legal order but in Arizona a substantial number of people think it is unjust that killing and eating babies is against the law whereas in Texas no such people exist. Would we really say the 'meaning' of Texas's legal order is different from Arizona's? No. We'd say Arizona has a lot of cannibals. Texas does not.
Scotland has a different legal order from England. But the meaning of the two orders is pretty much the same. One reason for this is that people share the same values and norms and ways of life on both sides of the border. Few British people know very much about the legal order in which they live. Yet, as many have pointed out, there is no more English sentiment than 'I know my rights' though of course very few of us actually do.
Robert Cover, author of Nomos & Narrative, thought 'we inhabit a 'nomos' - a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void'
We might equally say we inhabit a bomos- that elevation or altar upon which Abraham is always about to sacrifice Isaac- and that Creation exceeds norms in the way that the Soul exceeds forms- or that we constitute a komos- a band of drunken revellers- or a domos or anything else. But why bother? The thing is silly and only fit for a poetastering socioproctologist not a guy wot taught Law at Yale.
Cover wrote- 'the rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world;
but only in the sense that they aren't important or don't exist at all because the domos of that nomos is nowhere save in the komos of its bomos which however was otiose coz God wants us to chow down on goat curry rather than have us sacrifice our own kid.
they are, however, but a small part of the normative universe that ought to claim our attention.
Nothing wholly useless and stupid ought to claim our attention. Utility matters. Shitting higher than your arsehole about the domos of nomos's komos's bomos can be safely left to crazy or lazy socioproctologists with nothing better to do with their time as they binge-watch 'Stranger Things' on Netflix on the other screen.
No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.
Fuck off! Either there is a narrative, in which case the 'set of legal institutions or prescriptions' has no 'buck stopped' extension or non arbitrary intensional description- i.e. the set does not exist save in a naive, paradox ridden, manner- or else there is such a set which may or may not be associated with a number of narratives. But none can be 'canonical' or possess 'naturality' otherwise we wouldn't have prescriptions, we would have predictions. We wouldn't have 'institutions' we would have 'ethology'.
Cover may not have been as stupid as shit. He didn't know from Category Theory and died before Wikipedia became available. But anybody who quotes him now has shit for brains.
For every constitution there is an epic,
In which case there isn't a constitution. The thing has already been sublated within the epic. It already contains its own 'halachah vein morin kein'- i.e. a rule which if known forbids its own application- or, in the case of the Mahabharata, already has a 'Samkhya' statistical game theory as the basis for Mechanism Design such that, as Hume said, UTILITY rules over Justice and Moral Sentiments though short run peeps can do stupid shit till they get invaded or turn into savages.
for each decalogue a scripture.
No. Scripture may feature decalogues and 'Smriti' codices, but Scripture sublates both and ends in theosis or apocalypse.
Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live.
No. Law becomes shit you needn't bother with unless you get in trouble- in which case you may have to hire a lawyer or pretend you are crazy and bankrupt or something of that sort. The Law is like plumbing or heart surgery. Only if you are unfortunate will you have to pay for that shite. True, we are bound to get unlucky sooner or later. Better put some money by to insure against that risk. Also, if you pay to put your kid through Law School, slap him silly if he shows any inclination to turning into a Cover type Law Professor. He should be cheating rubes and sucking up to kleptocrats so as to have lots and lots of money and be able to send you on luxury cruises so as to get you out of his hair.
Cover said- "Legal interpretation takes place in a field of pain and death.
Cover died in a hospital from a heart attack. What fucking legal interpretation was going on there?
This is true in several senses.
but only in wholly senseless senses.
Legal interpretive acts signal and occasion the imposition of violence upon others:
All violence arises from 'interpretive acts'. A vanishingly small subset of such acts arise from Legal hermeneutic. Most arise from a dude interpreting that you iz dissing him or that you iz wearing a fancy watch which he can sell to buy drugs or that you iz a homo, or maybe belong to a rival gang.
A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.
Fuck off! Determinations of fact lead to those outcomes. It is not the case that any violence arises purely by determinations of law.
Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.
No. Justifications exist independently of the Law. It is a different matter that a defendant may choose to use one justification rather than another on advise of counsel. But, equally, a defendant may choose to offer no justification or other statement. True, in some jurisdictions, this may harm her defense. But it may secure a better outcome for the defendant nevertheless.
When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence.
Fuck 'interpreters'. We know the Stalinist or Chinese Communist Legal system can fuck up vast classes of people. But that wasn't the fault of some fucking Juristic hermeneutic. It was coz of a big bad Dictator or a more or less thuggish Ruling Party.
On the other hand, Gorbachev did study Law. But that's not why he fucked up the Soviet Union. He made the mistake of listening to mathematical economists. There are people stupider than Yale Law Professors. Not many. But they do exist.
Neither legal interpretation nor the violence it occasions may be properly understood apart from one another"
Fuck understanding shite. Run away from places where you could be fucked up by the authorities. If you can't run away, lie and cheat or just keep your head down.
Cover concludes-
"The perpetrator and victim of organized violence will undergo achingly disparate significant experiences.
Not if they are killed- they won't. Still, it's good to know that even Yale Law Professors understand that the guy knifing you doesn't experience what you do as you scream and shit yourself and bleed to death.
For the perpetrator, the pain and fear are remote, unreal, and largely unshared.
Unless they are masturbating while watching you die with the hope of jizzing in your eye as the light fades from it for the last time.
They are, therefore, almost never made a part of the interpretive artifact, such as the judicial opinion.
Almost never? So, sometimes the guy jizzing in the eye of his victim is made part of the judicial opinion? Good to know. I suppose that's why Yale Law School gets to charge big bucks.
On the other hand, for those who impose the violence the justification is important, real and carefully cultivated.
Just like this business of jizzing in the eye of your victim at exactly the moment when the soul quits the body and mounts up to Heaven dripping with cum.
Conversely, for the victim, the justification for the violence recedes in reality and significance in proportion to the overwhelming reality of the pain and fear that is suffered.
Reality does tend to recede when you are knifed to death. That's true enough.
Between the idea and the reality of common meaning falls the shadow of the violence of law, itself".[3]
Not on the Civil or Canon side. Indeed, one might say it does not fall on the Criminal side either if clemency petitions are routine. In that case, in effect, Punishment is an Executive or otherwise Sovereign function. The Law has no shadow in this regard. It is merely light. Between a legal motion and a judicial action- to extend the quote from Eliot- what falls is the shadow of determinations of fact. But there is no reason why a particular legal regime might not make that wholly an Executive matter for some particular purpose.
Still, it's cool that Cover thought that the British comic-book character 'Judge Dredd' represented the spirit of Sir Edward Coke prevailing over that 'coward conquest of a wretch's knife', Bacon-who-was-Shakespeare.
Turning to a contemporary of Cover who is still with us, Robert Post- also a Yale Law Prof.- has written an article titled 'Who's Afraid of Jurispathic Courts?: Violence and Public Reason in Nomos and Narrative'. Apparently 'Jurispathic' means 'Law-destroying.'
Obviously, plenty of courts destroy laws all the time by saying the thing has fallen into desuetude or is unconstitutional or ambiguous or whatever. Nobody is afraid of such jurispathy. The thing is salutary. What on earth is Post getting at? Perhaps Edward Albee's play 'Who's afraid of Virginia Woolf' provides a clue. The two men in the play have married women whose Daddies had unjustly enriched themselves from Religion and Paideia respectively. But, both are academics. Worse, they are American academics- i.e. worthless eunuchs in a land won by inarticulate heroes and rendered wealthy by industrious husbandry- who have nothing to fear but having to teach neurotic, feminizing, shite.
Cover had shown the way for male, pale, Yale, Law Professors to pretend that Justice was fucking them in the ass and then shooting them in the tummy and then, as they bled out in agony, Judge-Daddy was stroking himself off while coldly calculating at what precise moment to jizz in your eye as your soul departed to Harvard. Fuck you Feminists! Us Men suffer vastly more than you do! Please don't ask us to roger you just so you can get to drone on about the exploitation of your vast and venomous vaginas. Our tight little assholes have suffered something infinitely more degrading and painful.
I suppose Cover's shite attracted peeps wot thought Carl Schmitt wasn't an evil Nazi cunt. Also Cover was interested in Jewish law which most hypertrophied when it had very little or no coercive force. That's not a good thing. Coercion costs money and so stupid or mischievous laws get scrapped.
Post takes a different view-
What had originally endowed Cover's article with such explosive power was its insistence that law express nomos, that it signify "a world of right and wrong,",
That's not the law. It is ethics or morality or religion- being a mensch- which has a lot to do with not suing everybody in sight. Maybe this guy means the Talmud or something like that. But, at least in America, that has no coercive component.
and that the law offer a guide to life and action,
Religion may offer a guide to life. Ideology or the desire to imitate your idol could have the same effect but the Law is merely a profession. One might as well take Computer Programming as a guide to life.
to serious commitments inscribed in blood.
On what? Paper? Don't be a wimp. Inscribe that shit with tattoo needles on Putin's naked backside- unless that is what he is into.
"A legal interpretation," Cover taught, "cannot be valid if no one is prepared to live by it."
How about if they get executed by it? Would it be valid then? The whole point about 'legal interpretations' is that most people, living their best life, will never be subject to them. On the other hand, if you are a stabby stabby guy, the legal interpretation may be that you should be in jail because no one is prepared to live after getting stabbed forty or fifty times.
This was thrilling stuff, especially when laid against
Shrill Feminists boasting of the number of times they had been raped by everybody since lunch.
the indifferent positivism of legal process theory, or the knowing irony of legal realism, or the nascent skepticism of critical legal studies.
These guys could pretend they were the Lone Ranger, if not Judge Dredd.
Why was it that my students, otherwise bright and passionate, failed to recognize and respond to Cover's deep and thrilling call for high moral seriousness?
Coz they only went to Law Skool to make shedloads of money.
I believe that the answer lies in Cover's belief that "there is a radical dichotomy
as opposed to the ordinary sort of dichotomy which didn't drop acid and go to Woodstock but chose instead to qualify as a C.P.A while voting for Nixon.
between the social organization of law as power and the organization of law as meaning."
but the law of social organization is the meaning of the organization of law. Also dikeotomy is disrespectful to Lesbians. On the other hand, narratives re. the nomos of Lesbos would be welcome in my domos any time provided it is free-to-view.
The law that. interests my students, the law of the state, is for Cover merely a hollow instrument of violence,
In which case it would be a bit shit. Fill up that hollow with lead shot.
"itself incapable of producing the normative meaning that is life and growth."
unless it rapes you and then cuts off your arms and legs and keeps you in a suitcase till you give birth. What? That was a story arc on the Archers back when I were a lad.
In Nomos and Narrative the law of the state carries no republican imprimatur.
Republicans can be a bit strait-laced that way. Bill Clinton, on the other hand, would imprimatur the shit out of it with his jizz and then go 'I did not bukake that Nomos and Narrative at all though obviously when I say 'did not' I did not preclude meaning I fucking did y'all. This is because of radical dikeotomy. Obviously, I mean Hilary. Big big strap-on, if you know what I mean.'
It is not the result of citizens working together in public
toilets? Please don't say toilets. I can't afford any more fines for public defecation.
to produce a government that embodies common civic values.
Good. That sort of government tends to get overthrown by invaders or criminal gangs pretty quickly.
Composed just before the Republican revival and the renaissance of Rawlsian public reason,
Renaissance? Sen-ile, Sen-tentious, tosh more like.
Nomos and Narrative is strikingly uninterested in the normative possibilities of constitutional politics.
Constitutional politics swiped left on it on Tinder- or so it would like us to believe. I wouldn't be surprised if it is cyber-stalking Nomos and Narrative and telling its Mum it has met somebody special and no, it isn't a Russian prostitute like last time.
My best guess is that the students in my seminar could not relate to Nomos and Narrative because they regarded these forms of civic engagement as essential to their life's work. As against the constitutional politics of the state, Cover associates legal meaning almost invariably with "autonomous interpretive communities."
Weirdos. Either that or we are talking of the Taliban or some up-state Militia which insists you drink your own pee while living off the land by killing and eating Canadians.
These communities can be insular and turn away from the state.
Though they may try to bring down the Twin Towers from time to time.
Or they can be redemptive and attempt to capture the state.
Redemptive? That's the mot juste here? Really?
But if and when they do come to control the levers of government power, they seemingly lose their association with nomos.
Coz they get an association with moneyos.
Cover is not entirely explicit about this in Nomos and Narrative, but three years later in Violence and the Word he was quite clear that law, when it emanates from the state, "takes place in a field of pain and death,"
In America- may be. In England, law, when it emanates from the state, takes place in a field of milky tea and chocolate hobnobs and serial killers exchanging gardening tips with the Lord Chief Justice.
and that "pain and death destroy the world that 'interpretation' calls up."
But interpretation itself creates the death of the pain by which the bomos of nomos is totes its own komos.
The law of the state engages "a violent mechanism through which a substantial part of [the] audience loses its capacity to think and act autonomously."
But that mechanism is costly and so very few ever get caught in its toils- unless they be bleck and live in Amrika.
The violence of the law undermines the voluntary affirmation of meaning required by nomos and interpretation.
Niggah puhleeze! Mum would slap the black of me if I misinterpreted her meaning- which is how come I didn't start getting arrested till I was in my Fifties.
"Between the idea and the reality of common meaning falls the shadow of the violence of law, itself."
The shadow of Mum- sure. The fact is Mum won't be around to slap the black off you for ever. Justice is a pale substitute for Mum's loving chastisement.
"As long as legal interpretation is constitutive of violent behavior as well as meaning,
i.e. so long as only Law Professors are homicidal maniacs or mindless hooligans
as long as people are committed to using or resisting the social organizations of violence in making their interpretations real, there will always be a tragic limit to the common meaning that can be achieved."'
Tragic? The thing is as funny as fuck.
Cover's perception of violence is so vivid that it eclipses any clear picture of how the nomos of law can be fused with the force of the state.
The State is a stationary bandit which is a monopsonist of its own type of law. But monopsony militates for market segmentation and rationing and service provision discrimination of various types. Meanings are merely the solution to coordination games or discoordination games. But those in turn depend on utility or ophelimity. So in the end meaning is merely economic. The gomos- or cargo- of nomos has a cash value which rises or falls depending on where it is trafficked. Sensible people take their goods and services and run the fuck away from horrible states. They move to where 'value discrepancy' is minimized. Thus meaning tends to an equilibrium.
In Nomos and Narrative Cover portrays the state as unrelentingly evacuated of meaning, as exhausted by its bureaucratic and administrative structures.
Coz he was a teenage girl who wanted everybody to be either a sexy pirate or else Edward Scissorhands.
This is the context within which Nomos and Narrative constructs its famous image of jurispathic courts: "Judges are people of violence," Cover writes, and "because of the violence they command, judges characteristically do not create law, but kill it. Theirs is the jurispathic office."
Judges can only make law by precedent. Theirs can't be a jurispathic office unless they are overriding a previous precedent or are saying a statute is in desuetude or is unconstitutional.
It's lucky Cover wasn't a professor of Military Strategy. If Judges got him so riled, he'd have shat himself if he had to write about Generals.
Although Nomos and Narrative leaves unexplained the nature of the "because," it nevertheless deeply inhabits the truth of the proposition.
Coz shallowly inhabiting it would be so not cool.
In Nomos and Narrative judges do not create nomos; they do not call into being a narrative world of right and wrong. They instead use the force of the state to crush the competing nomoi of autonomous communities.
How? If a community is autonomous nothing about it can be crushed by anything outside it. America is pretty autonomous coz if anybody tells it to change its laws it can tell them to fuck off unless it prefers to just nuke their sorry asses.
There's little point pretending you are autonomous if you can't defend that autonomy against all comers. Otherwise, settle for a bit of heteronomy in return for collective security.
Offering a terrible indictment of the Burger Court,
Hilarious! We think of the Burger Court as the last Liberal Court. Luckily Cover died before the Rehnquist and Roberts Courts.
Cover concludes that "[t]he result in all cases is deference to the authoritarian application of violence, whether it originates in court orders or in systems of administration."
SCOTUS appears not to endorse violence against the fetus. On the other hand no 'proper cause' can restrict the right to concealed carry. Is this authoritarian or anarchic? Do we really want to find out?
The cases "align the interpretive acts of judges with the acts and interests of those who control the means of violence."'
The guy had never heard of the Mafia or all those gun-nut militia types who, I firmly believe, hunt and eat Canadians.
Although Cover does not explicitly deny the possibility that judges can create nomos,"
on the basis of arguments heard- sure. But that means the Judge isn't creating the ratio decidendi. He is picking it out of what was offered in opposing counsel's arguments. But those arguments themselves invoked ratios.
he does conclude that "the commitment of judges" is "to the hierarchical ordering of authority first, and to interpretive integrity only later."
Judges are indeed committed to a hierarchical ordering of Courts and sources of Law. They are not committed to 'interpretive integrity' though they may pretend otherwise when seeking confirmation. The question is whether a ratio will be overruled on appeal. Judges don't want to have too many of those.
And he does suggest that "the commitment to a jurisgenerative process that does not defer to the violence of administration is the judge's only hope of partially extricating himself from the violence of the state."'
But if Judges won't pass sentences on criminals, they may be disintermediated. Extra-judicial killing can be more effective though it may ultimately prove more costly.
It is of course the very possibility of such extrication that Cover subsequently denies in Violence and the Word.
Cool. Judges are fucked. Good to know. But very few people are Judges. Why should we care about them? They get paid, don't they?
So Nomos and Narrative turns quite palpably away from the state and invites us instead "to look to the law evolved by social movements and communities.'
Which a lot of those movements and communities manage to get on the Statute books one way or another.
Cover believes that the law is an attempt to 'build future worlds'. But so is prayer or being a fucking pedant.
The most to which the state can aspire is what Cover calls an "imperial" or "world maintaining" attitude toward nomoi.
Not if it wants to remain a State. In that case it has to aspire to being able to defeat any internal or external threat. This does mean having to focus on Econ and I.R and Military preparedness.
The state can embody "the universalist virtues that we have come to identify with modern liberalism," which are "essentially system-maintaining weak' forces."
Or it can embody cuddles and kisses and being sent to your bed without your supper if you are naughty.
In this mode the state can shelter and protect the communities that produce paideic nomos;
i.e. change the nappies of Yale Professors.
it can pursue "virtues that are justified by the need to ensure the coexistence of worlds of strong normative meaning. '
sadly, it is vices which are justified by ignoble or insane needs.
But these virtues enact "an organizing principle itself incapable of producing the normative meaning that is life and growth. '
That's the trouble with virtues. They can't throw a good party. Instead they enact useless shite. Incidentally if you want to produce something, you need a generative, not an organizing, principle.
The state's sterility is a good thing, however, because a government that sought to impose "a statist paideia" would be positively dangerous.
Though this is precisely what has happened or is happening in every developed or developing country.
It would use violence to crush and displace the autonomous communities where nomos is actually forged.
No. Autonomous communities might trade a bit of heteronomy in return for collective security. That's one road to state formation. However, killing invaders or indigenous resisters may feature in this.
Nomos and Narrative cashes out the imperial virtues in the language of freedom of association.
There is no 'cash value' in vacuous verbiage.
"Freedom of association is the most general of the Constitution's doctrinal categories that speak to the creation and maintenance of a common life, the social precondition for a nomos."
But associations are free to exclude whom they wish. This may undermine 'common life'. Consider Christian Legal Society v. Martinez. The direction of movement of SCOTUS is towards affirming the right of Religious groups to exclude those who won't subscribe to a narrow set of beliefs. Furthermore, it appears, the Establishment clause is being undermined as public funds become available for such groups.
The fact is, there can be a religious or ideological or racial or other narrowly politicized precondition for a legal regime or components of a legal regime, but there is no purely 'social' precondition for it. Society can tolerate a variety of codes which conflict with each other. In certain neighborhoods, it would be unthinkable to ever appear to be cooperating with, or seeking the help of, the police. In others, it would be a reflex action but again some things might never be mentioned to the police though there may be no need to because the police share your bigotry.
In this way Cover carves out a passive and ultimately libertarian role for the state.
Which would be fine and dandy if some 'autonomous communities'- the KKK, the Mafia, Al Qaeda- aren't killing people to further their own agenda.
The failure of Nomos and Narrative to engage my students stems, I believe, from the thin, almost vacant quality of its vision of the American constitutional order.
Surely, it is Cover's hatred for that constitutional order which alienates students who hope to make a lot of money practicing law under it? I suppose some could spend their careers trying to get bad guys out of jail or, more ambitiously, putting good folk behind bars. But would this really be as lucrative as permitting the burgeoning of Utility within the realm of legal and reputable economic activity?
Cover reads American constitutionalism as committed to an odd, listless version of liberalism. In a famous passage, Nomos and Narrative concludes by enjoining us "to stop circumscribing the nomos" and "to invite new worlds."
Which is cool if those new worlds- like cyberspace- are utile and can generate legal revenue streams by improving resource allocation and information availability.
But this invitation raises the question of how different worlds can coexist. The state is not uniquely jurispathetic; every nomos exists by virtue of its exclusion and denial of competing nomoi.
Not necessarily. A nomos may be 'supererogatory' to the legal order- in other words it may aim to do more, not less, than is legally required.
Jurispathology is in this sense built into the very sociology of human meaning.
The dead must be buried to make room for the living.
So we must ask how multiple communities, with their competing and mutually jurispathic nomoi, can live together.
They can do so even in defiance of the legal order simply by pursuing mutual benefit and exchange.
Of course Cover recognizes the problem,3 " which is why he posits an imperial attitude that corresponds to traditional liberal virtues like freedom of association. But Cover denies that this kind of liberalism can itself be jurisgenerative.
Yet, all sorts of associations do in fact manage to get the Law changed to further their own agenda.
I myself believe that this denial is mistaken. We are certainly long past the point of regarding liberalism as a transcendent and neutral incarnation of the "right," as distinct from its own specific form of the good. It is clear enough that liberalism inhabits its own world, asserts its own pieties and values, advances its own narratives of individual self-fashioning. It is possible that Cover's refusal to acknowledge the distinctive nomos of liberalism follows from a dilemma in which he was ensnared: If liberalism is its own nomos, and if liberalism is necessary in order to preserve the small autonomous communities that Cover finds so appealing, then the nomos of liberalism acquires a special kind of logical priority.
Not necessarily. An actual Emperor may permit the existence of 'autonomous communities' bound by their own Civil Code- e.g. the Millet system in the Ottoman Empire.
But Cover is unwilling to recognize this priority, because he is concerned to insist upon plural worlds of equal nomoi.
Surely, this is the world of International Law. Each country is sovereign but they may agree to 'pool' sovereignty or be bound by international treaties for some specific purpose.
The price of this insistence is that Cover cannot adequately theorize how these plural worlds can continue to co-exist, apart from the "weak" virtues of a "system-maintaining" empire. The potential nomos of liberalism is thus reduced to "an organizing principle itself incapable of producing the normative meaning that is life and growth, and courts are concomitantly characterized as merely "jurispathic."
This chimes with a Trotskyite view of a sort popular in the Seventies. But many of those Trotskyites turned into neo-cons.
In Nomos and Narrative courts "suppress law" and "impose upon laws a hierarchy. It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution."
Surely, if the judiciary is independent, then the court is the solution to one sort of problem while the legislature is the solution to another sort.
At their worst, courts solve the problem of proliferating nomos by suppressing the mulitiplicity of laws; at their best they tolerate jurisgenerative communities by exercising the negative virtue of freedom of association.
This may have been the case under 'limited monarchies' where the King might, by Charter, create guilds or Free Cities or other such associations which could legislate for themselves. Indeed, Parliament itself evolved in that manner. However, once Legislatures became supreme, this was no longer the case. Even where treaties granted autonomy- for example to indigenous people living on tribal land- the tendency was to erode that autonomy by fair means or foul. It would be fair to say that the 'Originalists' or the 'Federalist Society' considered themselves to be pushing back against interference with the 'silent majority' and, moreover, that they have been astonishingly successful though perhaps they may now have gone too far.
I do not fully understand the emphasis that Cover places on the jurispathic nature of courts. All nomoi, as I have said, are jurispathic, because all construct their narratives by excluding and suppressing other possible narratives.
This isn't true at all. You are welcome to keep your narrative about how you are actually a Secret Agent travelling the world to foil the machinations of Dr. Fu Manchu. But a court may label you a liar or a fantasist or a person suffering from a mental illness.
Stories don't matter. The Law does matter- if it is actually enforced.
The problem with courts is not that they are jurispathic, but rather that they are violent,
No. They may give a judgment which permits some specific agency to use violence. But equally they may punish excessive or unjust violence on the part of that agency.
and it is the connection to the organized violence of the state that most deeply troubles Cover and leads him to doubt the possibility of a true statist paideia.
This chimes with the 'Defund the Police' campaign. But nobody involved in it was quoting Cover. They were making a far more telling point about institutionalized racism and the low value Society placed on 'Black Lives'. Since African Americans have made a disproportionate contribution to Global popular culture, Europeans and people in other continents felt an emotional connection with this movement. However, it has become clear, getting rid of the Police worsens outcomes for those at the bottom of the heap. A 'statist paideia' might not be the solution but good, old fashioned, legal and statistical research as part of 'pattern and practice' investigation and 'consent decree' based reform do seem quite effective in tackling the underlying problem. Of course, we may be wrong about this. Perhaps, new technology can be used to fundamentally change how Law enforcement is done.
This doubt reflects the attitude of a generation, of my generation, who faced a violent state that drafted its citizens to pursue an alien war in Vietnam. In the Vietnam era we had no public life that we could trust.
Because Kennedy and Johnson did not finance the war through taxation in which case there would have been much more accountability. The result was that voters turned against the liberalism of the Warren Court and the 'Great Society' mythos. The country ended up moving to the Right. It was Governor Reagan who prevailed.
We confronted a state that refused to respond to public dialogue or reason, that resorted to brutal repression whenever its citizens sought to register protest or disagreement. As a consequence my generation fell back on an ethics of authenticity, of personal fidelity, of existential commitment. Cover's critique of the Court's opinion in Bob Jones University well expresses this ethics.
BJU lost its non-profit status because of its ban on inter-racial dating. It changed this policy and did get back that status in 2014.
Cover scores the opinion because it is "uncommitted and lackadaisical . . . unwilling to put much on the line. ' It reflects merely the "passing will of the state."
It reflected a fundamental public interest. Interestingly, Rehnquist dissented.
We might read Nomos and Narrative as a heroic effort to transcend the individualism implicit in this kind of existentialist perspective.
But 'public interest' is not 'existential'. Rehnquist's dissenting opinion may be considered to reflect an 'existential' meta-ethics such that no collective of an abstract or ideal type can take precedence over what individuals think is right. As Mrs. Thatcher put it, 'There is no such thing as Society'. In Monopoly Law, too, the argument was made that there is no 'Public' against whom the monopolist conspires. Laffer said that every monopolist actually has a potential competitor and thus isn't actually a monopoly at all. According to this view, every individual has a potential interaction with every other individual such that they would be constrained from evil or repugnant actions.
But although Cover seeks to recapture the possibility of a rich and dynamic collective life, he locates this life within autonomous communities rather than in the state.
Looking at what is happening in Ukraine, we feel the people of that country would have remained an 'autonomous community' even if Putin's goons had managed to capture Zelenskyy and his Cabinet and to dissolve the institutions of the State. The Ukrainian people would have been disadvantaged in their war against an evil oppressor but they would by no means have been obliterated from the pages of history. Their struggle would have gone on even if the eyes of the world had been averted.
Cover evidently believes that at its core the state will always turn soulless bureaucrat, violently imposing its arbitrary will. My students, who were not alive during the Vietnam War, do not experience any such radical mistrust of the state.
Post was writing this in 2005- a more innocent era when the War against Terror appeared not just winnable but profitable and many believed that their sub-prime property would rise and rise in value. Also, all law students would end up working in an Ally McBeal type law firm in between jetting off for fancy skiing holidays or beach holidays in the Maldives.
They view the state instead as the instrument of their beliefs, as the potential embodiment of the nomoi with which they hope to infuse their world.
Send Jihadi nutjobs to Gitmo or just blow them up wherever they can be found.
Ultimately Nomos and Narrative denies the state a role in jurisgenesis because it is skeptical of the possibility of a jurisgenerative politics. In a crucial passage criticizing Brandeis's concurring opinion in Whitney v. California,
which essentially denied freedom of speech and association to Communists on the grounds that they advocated violence or wanted to overthrow the state.
Cover observes that "by the mid-twentieth century the states had long since lost their character as political communities ....
Why can't a political community be anti-Communist or, indeed, as racist as fuck? Courts can certainly have that property.
American political life no longer occurs within a public space dominated by common mythologies and rites and occupied by neighbors and kin.
But it does occur on the TV which can be found in every living room. Arguably, the 'cool' medium of TV had created more homogeneous political communities. The Jews and the Italians no longer had a plethora of Left wing or Anarchist ideologies. The second or third generation Scandinavian was no longer interested in Socialism. The German origin ethnicity had severed all connection with the politics of their country of origin. Refugees from Stalin or Castro, however, were active in Cold War politics which however was the official creed of the entire United States.
Other bases are necessary to support the common life that generates legal traditions."
I think gorgeous young lawyers on TV shows increased interest in 'Legal traditions'. This glamor, however, disappeared the moment you actually had a brush with the law.
I read this passage to deny the possibility that politics within the public sphere can create legal meaning. The stories Cover tells about state building are characteristically stories of violence and revolution, not of political debate and discussion. It is ironic that Nomos and Narrative was published just prior to the Republican revival, which attempted to infuse public life with the virtues of ethical dialogue.
I don't understand this. The book was published in 1983. Reagan first became Governor of California in 1967. He did two terms but refused a third term hoping to beat Ford for the Republican nomination. However, the rise of a Catholic, and Jewish, right-wing jurisprudence pre-dated this. It was the Left, which had grown complacent, which was headed into the wilderness- save on Ivy League campuses.
That dialogue has no place within Cover's vision, which instead fills the social space between autonomous communities with conflicts that can be settled only in blood. Cover does not consider the possibility of persuasion or reason.
Or just paying off the trouble-makers and coopting them one way or another. The Mafia were keen to run the docks for Roosevelt or to help Kennedy topple Castro. Apparently the Yakuza was used by the Japanese politicians to beat up Communists.
He does not ask how communities in conflict can join together in a larger political community.
By buying off their more mischievous elements. Why get your head kicked in by Mafiosi while manning a picket line when you could be a Professor at Ivy League sexually molesting your students?
This skepticism expresses a fundamental truth of the Vietnam era, when the effort to engage in public reason did not carry very far.
Because Crazy can't engage with any type of reason. Just drop acid and complain that the neighbor's cat is surveilling you on orders from the C.I.A.
What mattered most was the commitment to put one's body on the line to stop the juggernaut of the War.
Why not just take your body to Canada or else pretend to be homosexual?
My students, by contrast, inhabit a republican world. They believe in public dialogue.
Dubya couldn't do dialogue to save his life. Still, unlike his Dad, he didn't claim to have had sexual relations with Reagan.
They study social movements and autonomous communities precisely in the belief that associations can persuade the country to adopt their nomoi. They regard a decision like Lawrence v. Texas as evidence of the potential for such persuasion, in which groups reconfigure public space and alter common perceptions of justice.
Bowers v Hardick (1986) upheld the sodomy law which Lawrence struck down some 17 years later. But is it safe? If Roe v Wade can go, why not Lawrence? Texas still has the sodomy law on its books. AG Ken Paxton says he will defend the law if SCOTUS reverses Lawrence. It appears there was no 'common perception of justice' on abortion. Europeans may be baffled by this. Then they remember Orban is European. Indeed, Putin may have had some popularity in Europe because of his homophobia. Ludicrously, the two thuggish Novichok poisoners claimed to be a gay couple who only visited Salisbury to gaze upon its Cathedral's big spire. Of course, on returning to Holy Mother Russia they stopped being gay. Homosexuality is only something that happens to you when you visit the decadent West. Nice Russian Churches have onion domes. Homosexual Western Churches have spires. This is what is causing rampant sodomy on the streets of Western cities.
They are accordingly bewildered and estranged by the world of Nomos and Narrative, which is evacuated of political deliberation.
Or which takes a dump on it.
My students need instead a world in which "a common will," to quote Habermas, can be "communicatively shaped and discursively clarified in the political public sphere.'
Maybe this was so before the financial crash. A 'common will' is cool if everybody is going to get richer and richer and the Rooskis and A-rabs and Chinkies and so on all get with the plan and sell us plenty of cheap oil and sweated-labor manufactured goods.
In retrospect, Cover's refusal to theorize public reason seems a great blind spot of Nomos and Narrative.
Sadly, 'theorizing public reason' turned out to be not just a waste of time, but actively mischievous. The underlying notion was that the rest of the World would serve the West in return for lectures on 'public reason' and the need to be more democratic and more respectful of human rights and...could you guys just stop being so damn foreign? Have plastic surgery. Bleach your skin. Also, cut out that foreign jibber jabber. How do you expect to get a job at McDonalds if you can't spick Inglis gud?
It virtually guarantees that Cover will characterize the state as jurispathic and incapable of jurisgenesis.
If you really believe in the magic of 'public reason' you will take a dim view of Courts and Police officers and Prisons. Obviously, the way to get a serial killer to stop skinning fat chicks is to get him to read Habermas. Putting him in prison is totes evil coz people might get the idea that 'public reason' is useless.
Much contemporary work in public law begins with a radically different premise than Nomos and Narrative; it begins with the notion that the state can express the nomoi of its population, forged through public discussion and dialogue.
Anybody can express any shit they like. Only the State can wage war or incarcerate a large class of people.
It is not afraid of jurispathic courts, because it regards the judiciary as voicing narratives in which we believe,
It is the clergyman or pedant who voices narratives we believe. Judges must make determinations of law. There may be a narrative attaching to the facts of the case. The defendant says he was skinning the fat chick he'd kidnapped and killed because, under the First Amendment, it was his legal right to do so. His narrative emphasizes that Madison skinned George Mason so as to get the parchment on which the First Amendment was inscribed. Furthermore , if you read it backwards you will see that in the Chtulhlu dialect it expressly enjoins the skinning of fat chicks.
The prosecution, however, may offer another narrative which emphasizes the defendant's desire to make himself a skin-suit so he'd look beautiful and sexy to his fellow Law Professors.
and it understands all narratives to be jurispathic. Contemporary public law scholarship recognizes that reason has limits,
No. The application or utility of reasoning may have limits.
that the law of the state inflicts violence,
No the law gives a Hohfeldian immunity to specific persons to commit specific acts of violence. But such immunities exist even absent any black letter law. Self-defense is an example. You can push away a person who keeps farting in your face.
and that all law ultimately requires commitment.
No. The law requires enforcement. This may be 'incentive compatible' absent any 'commitment'.
But it regards these facts as boundary conditions,
But they aren't boundary conditions at all- as the good people of Ukraine are discovering. It turned out that the guarantees they received from the US, the UK and Russia, in return for giving up their nukes, were utterly worthless. Now Putin is trying to shift the boundaries of Ukraine, its patriots have taken up weapons. They haven't gone running to some Court.
true in extremis but not descriptive of the everyday workings of the liberal state. From the perspective of this work, Nomos and Narrative carries counsels of despair and withdrawal.
Why not admit it is simply silly? Schmitt was some sort of spoiled Catholic. Maybe Cover was groping his way towards Mussar Judaism or something of that sort. Then he died in a hospital. Medicine matters. The Law can matter but only if it concentrates on Utility- as Hume advised- rather than shitting higher than its arsehole with talk of bomos or nomos or domos or komos.
I myself can only wish, with genuine fervor, that Cover was wrong in his assumption that the public sphere is hollow and meaningless. To engage in the civic life of the nation is to act on the commitment that Nomos and Narrative was misguided in this regard. Even in the face of the shocking arrogance and rampant intolerance of those who presently dominate America, a belief in the potential of public reason seems the only path forward.
17 years ago this may have been a mainstream view. Today, it is laughable.
Unlike my students, however, who assume that they can bestride this path with confidence, I myself can never quite shake the nagging fear that Cover may have seen more deeply than I care to acknowledge.
Hume critiqued the Whig narrative even before the thing coalesced. However, he was only a Tory as far as Britain itself was concerned because he himself was 'gentry' and didn't like the Cits. He supported the Whig narrative of America's founding fathers but only because they better served 'Utility'- i.e. economic productivity- which consisted in being ruthless to indigenous, tribal or clannish, people whether in the Highlands of his own Native Scotland or in America or Africa or anywhere else.
So long as we thought of Liberalism as bon ton and representing an economically dynamic oligarchic elite- e.g Rockefeller Republicans, or the Clinton's billionaire pals- we would pay lip service to it by way of Tardean mimetics. It was not apparent in 2005 that the West had taken its eye off the ball. At that time, the Carter center boasted it was helping Communism to implement democracy from the bottom up. By 2012, the tables had turned. The Chinese told Carter to shut up about Democracy. They would pay his cretins only to push their own propaganda. Putin, invading Crimea in 2014, sent the same message. By then it was already too late. Globalization had not led to a 'rules based international order' where 'Public Reason' would be sovereign. Instead it had permitted China to emerge as the head of a Eurasian power block which is likely to prevail in Africa and the MENA. Currently, in Ukraine, a battle rages over the future of Europe. Will it be able to create a common Defense force which seals and defends its borders? Probably. But that is all it can do. Force projection into Africa and the MENA will be off the table. Europe will have to stop talking bollocks about Human Rights. It will have to persecute Kurds or other such refugee communities in exchange for a defense pact with Turkey or in exchange for economic ties with other emerging economies. The World has become transactional. Thus the Law, as Hume said, will have to return to narrow utilitarian concerns. Folk who babble about 'public reason' will be told they are as stupid as shit. Go back to peddling sheepskins to credential seeking cretins. Those who can, do. Those who can't, teach- till they get Me Too'd. That's where having decent Religious values helps. Adultery is wrong. So is taking off all your clothes and shoving a radish up your bum and running around the lecture hall screaming about your take on the narratology of nomos, or the grammatology of gomos, or the catachresis of komos. I'm not saying that I did any such thing. But it is the sort of thing anybody might do when of strong drink taken.
