Band 6, Heft 1 - Robert M. Cover: Nomos and Narratives

This is an essay about constitutionalism and, more particularly, the idea of an English constitution. For this reason, it is also, irreducibly, an essay about narrative and narrativity. And for this reason, too, it is also an essay written within the shadow of Robert Cover’s seminal work on the relation of narrative and community. As we shall see it is commonly suggested that the English are undergoing something of a crisis of identity and confidence, beset by international dissension, by the fragmentary impulses of devolution, and by the destabilizing impact of European integration. It is within this context that talk of an English constitution has re-emerged. The English "question" opens up the possibility of English "constitution," and this, in turn, advances ideas of an English "mind," of a political imagination within which an English constitution might be shaped. The first part of this essay will explore the idea of a narrative constitution in greater depth. The second part will then sketch the parameters of the English "question." The final part will then discuss the constitutional implications, focusing more particularly upon two seminal accounts of English constitutionalism; those described by Edmund Burke and Walter Bagehot.

The relationship between law and violence is one that is long-established. Robert Cover's scholarship suggests an ineluctable relationship between law and violence except in "imaginary worlds." This essay explores the possibilities of a law without violence in worlds that are not imaginary. It looks at two separate sites. First, drawing primarily on ethnographic data, it examines the life of a religious group, a Quaker Meeting, showing how Quaker law dominates the world of the Meeting. Quaker law, the essay argues, is a law that lacks the violence that is associated with state law. However, the essay goes on to argue, though Quaker law is real for the members of Meeting, it depends on propositions about human nature that almost all non-Quakers would reject, thus meaning that the Meeting is, for most people, based on a fiction. Secondly the essay looks at the world of the television series "Buffy the Vampire Slayer," The essay argues that the relationship that Buffy and her friends establish is one founded on their own law; again a law that is not based on violence. The essay concludes that the law that Buffy and her friends create is one that everyone can adhere to.

Robert Cover’s argument in Nomos and Narrative applies to a system of municipal law (that of the U.S.A.). This article seeks to demonstrate that Cover’s claims concerning nomoi and narratives have relevance to relations between the United Kingdom and the European Union (a non-municipal context, in which the concept of supranationalism figures prominently). While making this move from a municipal to a non-municipal setting, central strands in Cover’s argument are explained or developed by reference to the literary theory of Mikhail Bakhtin, communitarian political philosophy, and the writings of Isaiah Berlin and Joseph Raz on value incommensurability. Along with Cover, these writers are used to analyse a clash between a narrative of redemption (associated with the pursuit of European integration) and British narratives of insularity (which run on, among other things, the themes of independence and sovereignty). This essay concludes by identifying these two types of narratives as standing in a relationship of ineliminable tension.

This paper suggests that Robert Cover`s project of distancing courts from state violence is doomed to failure. Disagreements between the nomoi postulated by Cover are matters of incommensurable value judgements, in relation to which legal rationality is inappropriate. Disagreement between nomoi is more plausibly regarded as a matter of feeling rather than rationality and expressed by the notions of the sublime and the beautiful as advanced by Edmund Burke. Furthermore, according to Cover`s premise, the nomos of a community can be externally evaluated only from the perspective of another nomos so that the notion of an objective standpoint apparently represented by Cover`s `imperial community` seems to be contradictory. The notion of a court with a `committed constitutionalism` of its own but having no privileged status also seems contradictory since it allows judges to wash their hands of responsibility for their decisions (in a manner reminiscent of Pontius Pilate). If this is so, then the court is not the most appropriate mechanism to make choices between competing value systems and violence may be avoided only by appealing to sentiment as the basis for a modus vivendi. This approach reflects Cover`s insistence that a community is held together by non-rational factors and may provide the basis for a more vibrant democratic political process.

Robert Cover's well known article Nomos and Narrative is a passionately argued defense of a new way of applying narrative to the philosophy and understanding of law. In my article, I argue that there are four major problems which lie at the heart of Cover's analysis. Each problem addresses a major area of his overall view of law. I try to demonstrate that in each case, if the problem is real, Cover's view of law should be rejected. The primary difficulty is analytical and argumentative sloppiness in Cover's arguments. My conclusion is simple: Cover's view of law is both underdeveloped and theoretically unsafe. It falls victim to each of the four problems I identify. As a result, his philosophy of law should be rejected tout court.