Nomos, Conflict, and the Tragedy of Adjudication: The Jurisprudence of Robert Cover
Robert Cover is known for having argued that in every plural society there exist, along with the State, multiple normative entities that create and maintain their own sense of normativity, that is, their own holistic modes of assessing good and bad, valid and invalid, right and wrong. Beyond that, few systematic attempts have been made to pursue this view as a comprehensive theory of law. The principal aim of this piece is to demonstrate that Cover offers a novel and viable paradigm of law, which must at least include an ontology (an understanding of the basic units and organizational structure of law), an epistemology (an account of legal knowledge, reasoning, and interpretation), an axiology (how legal value is created, assessed, and maintained), and a sociology (how law relates to and fits in the larger non-legal environment).
I shall argue that such a paradigm is not only alternative to that of the most influential legal philosophers of the twentieth century, but offers a way out of many of their dilemmas. Among these, Cover’s view of the nomos provides a flexible structure which overcomes the shortcomings associated with the Kelsenian pyramid. It suggests a model for the identification of law that reveals the inadequacies—and compensates for the deficiencies—of the Hartian rule of recognition, and a justification for the role of the judiciary, which, unlike the Dworkinian Hercules, does not obliterate but builds upon the constraints of jurisdiction.
My analysis is divided into four sections: In Part I, I speak of the nomos as an individual entity and disentangle the enigmatic, yet crucial concept of what it means to inhabit it. I will ask questions such as: What are the constitutive elements of the nomos? How is it structured? What forces impinge on it? Can the nomos be changed? Are there limits to the nomos? Incidentally, I will show that Cover opens up a bridge to cross the seemingly unbridgeable gap between is and ought, putting an end to the fruitless discussion between juspositivists and jusnaturalists over the relation between law and morality. Next, I will explain how normativity is constructed in connection to both commitment and objectification (I. 2), followed by an analysis of the typology distinctively employed by Cover, namely the paideic and the imperial ideal-types (I. 3). Part II takes a broader perspective to observe the plural normative space in which diverse nomic entities interact. Here, I analyze Cover’s distinction between insular and redemptive types, in connection to the process of constitutional meaning-formation. This section realistically elaborates upon the interconnectedness of the constitutional meaning, without presupposing, on the other hand, a (political) overlapping consensus. Part III considers the distinct possibility of clashes among diverse nomic entities, which brings to the fore the context of adjudication. Here, Cover offers an innovative conceptualization of the when, why, what, and how of the so-called “hard cases.” This section culminates in a triadic theory of justice that challenges prominent discursive and dialogic ones. Finally, part IV delineates the politics that can be inferred from Cover’s perspective, and assesses—in contraposition to the very different appraisals of Robert Post and Austin Sarat—its relationship (or lack thereof) with political liberalism. I conclude with a short summary of the most salient points and with suggestions to direct legal theory away from its current state of lethargy towards a new beginning.
Jurisprudence | Law
Date of this Version
Julen Etxabe, "Nomos, Conflict, and the Tragedy of Adjudication: The Jurisprudence of Robert Cover" (December 6, 2006). bepress Legal Series. bepress Legal Series.Working Paper 1899.