Nomos and Narrative
May 28, 2024

In an article in the Harvard Law Review from the early 1980s, Robert cover explores the relation of legal structure and narrative. His analysis has wide-ranging legal, political, and even theological import.

Cover states the thesis early: We live in “normative universes,” social worlds that distinguish between right and wrong, valid and invalid. In forming these normative worlds, “the rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important.” Yet “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” Every constitution has its epic, and each decalogue its scripture (4). Narratives are always part of the process Cover calls “jurisgenesis,” the creation, shaping, and bounding of our normative universes.

Cover illustrates with an analysis of the Bible’s rules for inheritance. According to Deuteronomy 21:15-17, the firstborn son receives a double portion of the inheritance. Fathers are explicitly forbidden to give preference to the son of a beloved wife over the son of a hated wife.

As everyone knows, in the stories of Israel’s patriarchs, this rule honored in the breach more than the observance. Abel is preferred to Cain, Isaac to Ishmael, Jacob to Esau, Joseph to his brothers. This doesn’t mean the rule of Deuteronomy 21 was ignored in daily life. On the contrary, “the narratives in question would lose most if not all of their force were it not for the fact that the rule was followed routinely in ordinary life” (21). It’s a mistake to reconcile nomos and narrative by “creating exceptions or positing circumstances that would remove the case from the rule” (22). Rather, the clash between rule and story is jurisgenetic; to grasp the rule at all, you have to have a “sense of where the rule would end and why.” Law isn’t just the rules; law emerges from the clash of rules and narratives.

As Cover observes, each reversal is justified by appeal to the divine destiny of a younger brother. And this provides nomic-narrative justification for Israel’s own history, status among the nations, and presence in the land. The narratives elevate Israel over Edomites and Canaanites, and thus provide the ground for “an ‘international’ law regulating relations among those who have long been well settled and those who are self-proclaimed wanderers or newcomers.” Knowing the narratives enables Israel confidently to “live as the problematic latecomer and usurper but bearer of destiny nonetheless” (22).

But the narrative also has a subversive role that can never be tamed: “the sacred beginning always provides the typology for a dangerous return” (23). What happens when Israel becomes the “elder” supplanted by a latecomer? Then you get Paul’s allegory in Galatians 4, where the Jews are connected with the older son Ishmael and the upstart church is associated with Isaac, the late-appearing chosen one who has no legal entitlement to the inheritance but possesses “the divine promise of destiny.” Paul cleverly uses “an allegory built on the theme that itself expresses the extralegality of Israel’s destiny” to critique or relativize the Torah (24).

Another intriguing section of Cover’s article examines Mennonite and Amish Constitutional theory. The very idea seems laughable: Anabaptists don’t have constitutional theories, do they? But Cover points to the amicus briefs filed by Mennonite and Amish groups in support of Bob Jones University in their 1983 Supreme Court case. The briefs present narratives of persecution and argue that public policy, however laudable in itself, should not be permitted to override religious liberty.

“Our religious beliefs . . . are very deeply held,” the Mennonite brief says, and “when these beliefs collide with the demands of society, our highest allegiance must be toward God” (27). The Mennonites insist they don’t seek a collision; hence the brief. But they won’t give up their beliefs even if those beliefs clash with what the Constitution itself calls “the supreme Law of the Land” (VI.2). Here the gist of Anabaptist constitutional theory: The Mennonite-Amish narrative of Scripture, combined with their own peculiar history, lived out in separated and strongly nomic communities, sets limits to the Constitution’s reach. Their “principle of separateness is constitutive and jurisgenerative. It is not only a principle limiting the state, but also one constitutive of a distinct nomos within the domain left open” (29).

Cover’s article also opens up an angle on debates about liberalism. Modern nations contain normative sub-worlds with strong, particular demands and ways of life, which are held together by “system-maintaining ‘weak’ forces,” which only requires that citizens refrain from violence and coercion (13). So long as liberalism remains a weak nomic universe, strong sub-cultures can get along or ignore each other, and the liberal order can hold together, albeit in a ramshackle way. Over the past 50-70 years, liberalism has strengthened its demands; we’ve seen a thickening of liberal nomos allied with a triumphalist liberal narrative. The result: Instead of providing a framework that enables the coexistence of widely and wildly various nomic universes, liberalism imposes its own nomos on all.

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