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Excerpted From: John Valery White, Nomos and Nation: On Nation in an Age of “Populism”, 37 Touro Law Review 2035 (2022) (248 Footnotes) (Full Document)


JohnValeryWhiteGauging the legacy of a long-lost colleague becomes more complicated with each passing year. For most of us, the passage of time will eat away at whatever we have become known for: those who built on our work will no longer remember it; those who recognized something great in us will forget; and those who know us will increasingly become inactive. Most important, perhaps, future generations will not know or appreciate our insights. Our legacy will be minimal, brief, and will die with our close friends. If we are fortunate, we will leave behind a signature work that takes on a life of its own and far surpasses our brief time on this earth. Robert Cover's legacy defies the path most of our legacies will follow. In his all too brief life, he gifted us several still influential works; he left behind colleagues who continue to honor his contributions. And there are many like me who arrived in New Haven after his passing, and who found inspiration in his intellectual contributions and saw unique insight in his work. As life marches on, one can marvel at the prescience of Cover's works and regret that he was never able to help teach us today. But that nostalgia buries that work in a remote grave. The harder but more lasting legacy of his work, of anyone's contributions, is that it provides insights into today's problems.

I mean to honor Robert Cover by connecting his Foreword in the Harvard Law Review, Nomos and Narrative, to events newly resonant presently. My intention is to extend Cover's idea of nomos and jurisgenesis to the concept of “nation,” revealing a need to nurture an additional, novel perspective on rights aimed at ensuring individuals' ability to participate in the development of an idea of nation. In Nomos and Narrative, Cover describes the creation and destruction of legal meaning in a way that positions the state as a destroyer of community-created legal meaning in the interest of social stability. This observation provides an especially valuable way of thinking about national identity and its relationship to the state. Like legal meaning, national identity is often taken as given but is created though complex social and cultural processes. And though the state has a privileged position in aiding those processes, it is not necessarily the creator of national identity and, more often than not, operates to promote aspects of one vision over others, frequently destroying competing visions of nation in the process.

This way of thinking about nation is all the more critical given the rise of “populist nationalism” here and around the world, along with the privileged position populist nationalist claim in defining a “true” national identity. Indeed, much discourse on national identity has tended to take a national identity in the nation state for granted, has often presumed a long-existing (and static) national identity, or has vested in the leaders of states privileged roles in articulating national values and identities. Popular nationalists seek to exploit the lack of a formal place for nation in law and generally claim to be working to preserve a long-standing, static national identity, often by using nation to claim legitimate authority to run the state and impose their vision of nation on their fellow citizens. Per Cover, “Authoritative precept may be national in character--or at least the authoritative text of the authoritative precepts may be. But the meaning of such a text is always 'essentially contested.”' Cover's observations about law suggests a role for the nomos of distinct groups in developing national narratives. Following from this analogy, development of national ideals can be understood to be organic, dynamic, social processes largely independent of state control yet subject to special state influence and, ultimately, the state's jurispathic tendency. I here deploy this extension of Cover's observations to introduce an additional dimension for thinking about rights, a dimension made more significant by technological developments that permit significant cultivation of identities and greater development of normative visions of right.

Nomos and Narrative is a popular and heralded article. It is cited for a number of its central principles. However, many who cite it seem to avoid truly exploring the implications of the article. They consign it to a grave of distant nostalgia, depriving it of a life in the present. They seem afraid to consider its implications. Here, I seek to build on two. First, if discrete, organized communities like religious communities can develop normative meaning through social and cultural processes on which legal understanding are built, why limit this understanding to discrete, organized communities? For Cover this made sense because he was examining religious communities' objections to IRS rules before the Supreme Court. The entities under examination were in fact discrete and organized, many with centuries-old traditions, lending support to this focus. Moreover, an examination of how the Supreme Court should resolve a difficult question would not truly benefit from discussion of culture and society creating meaning from which legal understanding might emerge. But Cover's nomoi do suggest that, in the background of legal meaning, an array of cultural and social institutions that might have sufficient organization and structure to create meaning (nomi) on which legal understandings can emerge, are being developed. I do not mean to try to trace these processes. Rather, I assume their existence to engage the question of how to deal with increasingly contested visions about nation and collective identity that, in recent years, seem at least as important as efforts to distill legal meaning from different groups whose narratives might inform judicial interpretation.

Second, Nomos and Narrative suggested that the judge's and law's role in mediating different normative understandings, was inescapably destructive and that courts serve this role best when they limit such destruction and serve as neutrals of sorts, to the extent possible while serving the interests of the imperial virtues. The idea of the nomos is troubling to the extent it suggests a war of all against all in an unbounded battle for supremacy of juridical meaning. But Cover suggests that there is a way out of this fate.

It is the problem of the multiplicity of meaning--the fact that never only one but always many worlds are created by the too fertile forces of jurisgenesis-- that leads at once to the imperial virtues and the imperial mode of world maintenance. Maintaining the world is no small matter and requires no less energy than creating it. Let loose, unfettered, the worlds created would be unstable and sectarian in their social organization, dissociative and incoherent in their discourse, wary and violent in their interactions. The sober imperial mode of world maintenance holds the mirror of critical objectivity to meaning, imposes the discipline of institutional justice upon norms, and places the constraint of peace on the void at which strong bonds cease.

Narrative serves as a bridge between nomoi and the state whose judges' legal interpretations and actions on these narratives resolve disagreements about the meaning of legal texts. Such interpretation is jurispathic, to be sure, but its “imperial” function provides stability in society.

My application of Nomos and Narrative to competing visions of the nation must operate without the shared text for judges to interpret as national ideals generally lack memorialization in authoritative texts even if narratives of nation link national identity to ethnic, historical, and ideological legacies. Even where written, accounts of the nation tend not to have the kind of legal implications that constitutions possess. Ideas like we are a “nation of immigrants,” or we are a “nation of free people” do not demarcate approaches to immigration law or make slavery verboten. The contest over who we are as a nation is nonetheless significant and eventually affects how we approach law, informs what we believe appropriate (even legitimate), and frames our interpretation of the Constitution. Consequently, the role of law and therefore narrative, interpretation, and judicial decision making is more indirect than the constitutional interpretation and judicial decision making that occupied Cover in Nomos and Narrative. However, the role of the state remains the same: to prevent an unbounded war of all against all over the meaning of the national identity. Only now the role is to facilitate individual participation in that process. Cover's vision of the state as secondary in creating legal meaning and striving to be neutral suggests a different way of thinking about rights that the battle over national identity, understood in light of Cover's nomoi, reveals.

This article proceeds in four parts. Part I seeks to reclaim the inspirational and revolutionary aspects of Nomos and Narrative, identifying its importance in the face of illiberal populist nationalist movements. Part II defines the particular movements I define as populist nationalist and highlights their similarity to some nomoi Cover discusses. Part III examines how Nomos and Narrative seeks to address conflicting nomoi. Part IV scrutinizes how Cover's approach for mediating between conflicting nomoi might be used to address contests over the meaning of nation; by focusing on Cover's suggestion that courts avoid “a total crushing the jurisgenerative character” of nomoi, it suggests a basis for adopting an additional dimension for understanding rights. This new dimension would add to the longstanding approach of protecting individuals from the excesses of the state by also focusing on protecting the individual from the excesses of the nation with the goal of ensuring that all can participate in developing a shared national identity.

[. . .]

Ultimately, the promotion of jurisgenesis' goal suggests that a fecund ground for the production of nomoi is what rights ought to promote. Such a goal does not make easy questions related to conflicts between nomoi or even individual rights and group rights. Aside from a relatively small set of protections against state action (death and exile) or extreme private behavior (lynching), this approach to rights sets many claims as questions of degree (antidiscrimination). Such protections, however, work to bring communities together, to promote interaction between them, to challenge their stability through contact with others, even as it refocuses members on the value of their communities by distinction with others. This is the value associated with diversity, and with efforts to promote it, equity and inclusion in recent years. Cover was careful to note that the existence of groups alone does not create nomoi. Instead,

[F]rom time to time various groups ... create an entire nomos-an integrated world of obligation and reality from which the rest of the world is perceived. At that point of radical transformation of perspective, the boundary ... becomes more than a rule: it becomes constitutive of a world. We witness normative mitosis. A world is turned inside out; a wall begins to form, and its shape differs depending upon which side of the wall our narratives place us on.

Ralph Denton Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law. J.D., Yale Law School, 1991; B.A., Southern University, 1988.

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