Who’s Afraid of Jurispathic Courts?: Violence and Reason in Nomos and Narrative

Abstract

It is impossible for someone of my generation to re-read Nomos and Narrative and not be overtaken, once again, by the charisma of Robert Cover. The text irresistibly recalls Cover's passion and intensity, his saintly integrity, his astonishing intellectual force, his forthright moral engagement. Even after twenty years Nomos and Narrative still vividly evokes the energy and vitality of its author. So it came as something of a shock when I recently assigned the article to a seminar I was teaching on popular constitutionalism and found that my students were virtually indifferent. They found Nomos and Narrative eloquent, but curious and antique, informed by a sensibility that seemed distant and indecipherable. The article didn't move them at all. 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," and that the law offer a guide to life and action, to serious commitments inscribed in blood. "A legal interpretation," Cover taught, "cannot be valid ifno one is prepared to live by it." This was thrilling stuff, especially when laid against the indifferent positivism of legal process theory, or the knowing irony of legal realism, or the nascent skepticism of critical legal studies. 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?