It was my great honor to have been asked to participate in the brilliant Conference "The Life and Work of Robert M. Cover" held at the Touro College Law Center and organized by the remarkable Samuel J. Levine, Director of the Jewish Law Institute and Professor of Law.
The Jewish Law Institute presents a conference, The Life and Work of Robert M. Cover. Cover served as a Law Professor at Yale but was also so much more. A scholar and activist, his noted works Justice Accused: Antislavery and the Judicial Process, "Violence and the Word," and "Nomos and Narrative" stirred action for social justice and change. Join Touro Law and the Jewish Law Institute for a two-day conference focusing on Mr. Cover's extraordinary life and work. (HERE).
The Conference brought together some of the most important and influential thinkers about the fundamentals of law in general, and that of the United States in particular. Many of the presentations of these giants in their fields will be memorialized in essays to be published by the Touro Law Review. Please stay tuned.
The Conference Program, along with the text of my remarks, "Robert M. Cover and International Law--Narrative, Nudges, and Nomadic Nomos" and the accompanying PowerPoint follow below. PPT may also be accessed HERE.
Conference: The Life and Work of Robert M. Cover
Monday, October 4
9:00 - 9:30 -- Breakfast and Welcome
9:30 - 10:30 -- Legal Pluralism and Religion
Perry Dane, Professor of Law, Rutgers Law School--Robert Cover and Legal Pluralism
Marie A. Failinger, Professor of Law, Mitchell Hamline School of Law--Reflections on Nomos: Paideic Communities and Same Sex Weddings
Russell G. Pearce, Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion, Fordham University School of Law & Laynie Soloman, Associate Rosh Yeshiva at SVARA: A Traditionally Radical Yeshiva--Nomos, Narrative, and Heterodox Judaism: A Midrash on Robert Cover
10:30 - 10:40 --break
10:40 -11:40 -- Law and Justice
Gabriel "Jack" Chin, Edward L. Barrett Jr. Chair, Martin Luther King Jr. Professor of Law & Director of Clinical Legal Education, UC Davis School of Law--Robert Cover as Critical Race Theorist
Mark Graber, University System of Maryland Regents Professor, University of Maryland Carey School of Law & Sandford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas Law School -- As Justice Accused Nears its 50th Anniversary
11:40 - 11:50-- break
11:50 - 12:50 -- Law and Violence
Judith Resnik, Arthur Liman Professor of Law, Yale Law School -- Living Law: Constructing Identities Through Legal Invocations
Jonathan Simon, Lance Robbins Professor of Criminal Justice Law & Faculty Affiliate, Center for the Study of Law & Society, UC Berkeley, School of Law -- Law's Violence
Gerald Torres, Professor of Environmental Justice & Professor of Law, Yale University--Violence and the Law
12:50 - 1:40 -- Lunch
Remarks-- Avidan Y. Cover, Associate Dean for Academic Affairs, Professor of Law
& Director, Institute for Global Security Law and Policy, Case Western Reserve University School of Law
1:40 - 3:00 -- Law and Literature
Tawia B. Ansah, Professor of Law, FIU College of Law -- Law and Literature
Brett Scharffs, Rex E. Lee Chair, Professor of Law & Director, International Center for Law and Religion Studies, BYU Law School -- How the First Paragraph of Violence and the Word Killed the Law and Literature Movement
Richard H. Weisberg, Walter Floersheimer Professor of Constitutional Law, Benjamin N. Cardozo School of Law--A Last Walk with Bob on a Hot July Day in New Haven: Why Did He Then as Always Want to Talk About The Brothers Karamazov, with an Imaginary Application to the Chauvin Trial of 2021
Steven L. Winter, Walter S. Gibbs Distinguished Professor of Constitutional Law,
Wayne State University Law School -- The Metaphor of the Bridge in Cover and Havel: On Law, Ideology, and Originalism
3:00--3:10--break
3:10 - 4:10 -- Limits of Justice
Rodger Citron, Associate Dean for Research and Scholarship & Professor of Law, Touro Law Center -- The Many Interpretations of Billy Budd
Richard Sherwin -- Richard K. Sherwin, Wallace Stevens Professor of Law, Director of the Visual Persuasion Project, New York Law School -- Law in the Shadow of Violence: The Riddle and the Paradox of Sovereignty
W. Bradley Wendel, Edwin H. Woodruff Professor of Law, Cornell Law School -- The Problem of Unjust Legal Systems for the Ethics of Lawyers and Judges, with Reference to Justice Accused and Violence and the Word
4:10 - 4:20 -- break
4:20 - 5:20 -- Nomos, Jurisgenesis and Communities
Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University -- Robert Cover, Legal Pluralism, and the Possibility of a Jurisgenerative Jurisprudence
Avi Soifer. Professor of Law, University of Hawai‘i at Mānoa,William S. Richardson School of Law -- Group Gripes
John Valery White, Ralph Denton Professor of Law, William S. Boyd School of Law,
University of Nevada, Las Vegas -- Nomos and Nation: On Nation in an Age of "Populism"
5:20 - Reception: Judaica Room, Gould Law Library
6:00 - Dinner
Tuesday, October 5
8:30 - 9:00 -- Breakfast
9:00 - 10:00 -- Rights, Obligation, and Justice
Kenneth A. Bamberger, The Rosalinde and Arthur Gilbert Foundation Professor of Law,
University of California, Berkeley & Ariel Evan Mayse, Assistant Professor of Religious Studies, Stanford University-- Cover's Theory of Obligation and its Implications for a Privacy Mindset and Environmental Law/Ethics
Gal Hertz, Co-director, Humanities in Conflict Zones, Minerva Humanities Center & Teaching Fellow, Cohn Institute, Tel Aviv University -- Justice Beyond Rights: Cover as an Aristotelian
Shua Mermelstein, Associate, Davis Polk & Itamar Rosensweig -- A Jurisprudence of Rights and A Jurisprudence of Obligation
10:00 - 10:10--break
10:10 - 11:10 -- Cover and Judaism
Randy Lee, Professor of Law, Widener Law Commonwealth -- Robert Cover, a Jewish Heart, and the Fruits of a Law Professor's Life
Suzanne Last Stone, University Professor of Jewish Law and Contemporary Civilization, Professor of Law & Director of the Center for Jewish Law and Contemporary Civilization, Benjamin N. Cardozo School of Law, Yeshiva University -- Cover's Impact on Jewish Studies
Stephen Wizner, William O. Douglas Clinical Professor Emeritus of Law, Yale Law School --Robert Cover's Social Activism and its Jewish Connections
11:10 - 11:20 -- break
11:20 - 12:40 -- Nomos and Jurisgenesis in American Law and Society
Rakesh K. Anand, Professor of Law, Syracuse University College of Law -- Nomos, Popular Sovereignty, and the Practice of Law
Matthew L.M. Fletcher, Foundation Professor of Law & Director of the Indigenous Law and Policy Center, Michigan State University College of Law -- Nomos and Anishinaabe Inaakonigewin
M. Alexander Pearl, Professor of Law, University of Oklahoma College of Law -- Jurisgenerative Actions of Tribal Nations and the “Field of Pain and Death” Brought by the Continued Imposition of Federal Legal Structures
Kimberlianne Podlas, Professor & Department Head, Department of Media Studies, UNC Greensboro--Reconsidering the Nomos in Today’s Media Environment
12:40-1:30--Lunch
Remarks -- Guido Calabresi, Senior United States Circuit Judge, United States Court of Appeals for the Second Circuit
1:30 - 2:50 -- Nomos and Jurisgenesis in International Law and Society
Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar & Professor of Law and International Affairs, Pennsylvania State University -- Cover and International Law
Talia Fisher, Professor, Tel Aviv University Faculty of Law -- Separating Nomos from Narrative
Peter Margulies -- Professor of Law, Roger Williams University School of Law -- Jurisgenerative Communities and Habeas as Dialectic in Immigration Law
Katharine Young, Associate Dean for Faculty, Professor of Law & Dean's Distinguished Scholar, Boston College Law School -- Jurisgenesis Across Borders
2:50 --3:00 -- Closing remarks
__________
Robert Cover and International Law--Narrative Nudges and Nomadic Nomos
Larry Catá Backer (白 轲)[1]
A legal tradition is hence part and parcel of a complex normative world. The tradition includes not only a corpus juris, but also a language and a mythos - narratives in which the corpus juris is located by those whose wills act upon it. These myths establish the paradigms for behavior.[2]
1. Introduction.
My task today is to consider Robert Cover and international law. This is no easy task. This assignment has already produced a brilliant exposition in furtherance of legal pluralism in the extra-national context almost fifteen years ago.[3] There, Paul Schiff Berman considered the rise of the self-styled New Haven School of International Law[4] and its focus on law as a social process of authoritative decision-making.[5] He argued that “Cover’s emphasis on norm-generating communities—rather than nation-states—and his celebration of “jurisdictional redundancy,” provide a useful analytical framework for understanding the plural normative centers that are the focus of much current international law scholarship.”[6] And so it did. Cover served as a vindication of the perception--unavoidable among international lawyers[7]--that law was neither fixed (excepted as a function of the narratives within which it was embedded) nor aligned with and expressed through states. Cover made palatable to Americans this idea of narrative and normative polycentrivity, one already elaborated outside of the United States [8]and beyond the narrow conditions of orthodox narratives of law (over which lawyers and legal academics served as a sort of leading forces vanguard).[9]
Berman’s exposition, in turn, enriched Cover’s starting point--the advancement of the idea of the enterprise of law as fundamentally exogenous--from states and other bodies corporate, from other collectives, and from stateless meaning-making communities.[10] Breaking the alignment of law with specific organs (and ideologies) of institutional orthodoxy represented as law made it altogether easier to identify the plural sources of norms, and the sacral myths, around which communities constitute themselves.[11] These are the imperial virtues of Nomos and Narrative. In the far richer language of the original bound up in the suggestion that unitary orthodoxy has been lost to the golden ages of civilizations Cover explained:
But the Temple has been destroyed - meaning is no longer unitary; any hermeneutic implies another. Keeping the peace is no simple or neutral task. For in the normative worlds created around us, not all interpretive trajectories are insular. The worlds of law we create are all, in part, redemptive.[12]That destruction scattered the seeds of text, norm and narrative--and fractured it; dividing its powers and applications among communities constituted for the purpose of developing nomos from narrative. But it also suggested that the destruction of insularity also had its limits--and those were marked by the connection between narrative communities based on core principles, histories, cultures and the like. People devote their lives to the development of systems of classification of virtually everything grounded in this premise that there is value in aligning like with like--at least in the sense that their similarities will likely prove valuable in distinguishing them from others. This, of course, is the stuff of international law.[13]
Like the enterprise of law, the collective impulse toward self-constitution, to mythos and meaning making, is also exogenous. That self-constituting is undertaken against a primal referent, that is to a “thing” against which origin, legitimating, values and fidelity stories (the collective’s master narrative,[14] it imaginaries[15]) can be assessed. That referent is Exodus;[16] it is the beheading of the human incarnation of the state (from time to time);[17] or triumph in violent confrontation that serves as an incarnation of the mandate of heaven.[18] From it is woven the cloth--incarnated by the flag, the prayer shawl or prayer rug, the emblem or action[19]-- again the referent against which the ordinary deviation from the ideal can be measured and the distance between the ideal state of affairs and the current state of being may be diminished.[20]
It is in this context that Cover’s evocation of the “bridge” is particularly powerful,[21] with reference to a norm that is itself “the application of human will to an extant state of affairs as well as toward our visions of alternative futures.” [22] For at its heart--at least as it was conceived in 1983--this embrace of a pulsing ecology of nomos and narrative was both quintessentially American and essentially conservative and progressive (in the sense of moving from a “here” to a “there” which is closer to at least temporally satisfactory perfection). It is American in the sense of its search, through its vanguard magisterium, for a constraining “sacred narrative.”[23] These, then, are made in our own image, an idealized image the community projected outward as the attributes of either the peculiar genius of this Republic, or as the manifestation of the Divine.
That self-reflexive impulse, in turn, provides a basis for the legitimacy of narrative--and thus a certain comfort in its approach to nomos--that produce political-cultural urtext, within which an ecology of narrative may be developed by a host of narrative sources.[24] As Cover reminds us, these may be “founded in myth or history. They may owe their fabulous character to literary or religious imagination, to failure to appreciate and preserve scientific historicity, or to the need-in some periods-to disguise a story with revolutionary implications.”[25] But it is American as well for the way in which it remains deeply embedded in the mythos of the American revolutionary experiences, the fires from out of which a union and then eventually a nation emerged.[26] It is this mythos that is projected inward toward an understanding of the ecologies of domestic nomic orders in the face of an expanding and always contested conception of the state, and projected outward as the template which is the American gift to the world, now to be remade in its own image. The impulse is hardly exceptional--Communist internationalism, and the European version of the universalization of the idealized bureaucrat as the incarnation of the Enlightenment grand clock master provide analogous compulsions.
That detachment of law from the narrative of normative systems that is necessarily aligned with a specific institutional structure, is even more quintessentially conservative. While it dabbles with the notion of “some undisciplined jurisgenerative impulse”[27] it is to the disciplinary cages of narrative as sovereign rule making, as coherent systems of conduct norms that can be enforced by the communal organs established for that purpose, that serves as the summum bonum of the narrative experience.[28]
It is not the romance of rebellion that should lead us to look to the law evolved by social movements and communities. Quite the opposite. Just as it is our distrust for and recognition of the state as reality that leads us to be constitutionalists with regard to the state, so it ought to be our recognition of and distrust for the reality of the power of social movements that leads us to examine the nomian worlds they create.[29]
That insight squares nicely with the American infatuation with constitutionalism as a specific form of narrative--or rather as that conversation between nomos and narrative that has made this Republic so special, but that has also marked its borderlands and the limits of its own narrative possibilities.[30]
And yet there is something here that speaks to international law making , at least at its edges. Cover was sensitive to the transitive implications of nomos, narrative, and the organization of human society. If narrative produces multi-sourced nomos within a domestic legal order, and if international law produces a distinct plane of narrative with its own nomos, then it is likely that international normativity will resist its reduction to a singularity that is confined to and managed by and for the benefit of public national and international organs. That was an important underlying insight in the effort to constitute a war crimes tribunal to try leading elements of those who lost the conflict that ended in 1945.[31] Here was narrative myth making that “was sounded at the outset in terms of the capacity of the event to project a new legal meaning into the future.”[32]
But it was perhaps even more important for subsequent efforts to replicate that effort in the context of U.S. engagement in Vietnam undertaken by Sartre and Russell.[33] This was undertaken in the shadow of but liberated from the structures that produced the Nuremburg nomos. Its animating narrative, freed from the context of the time and place for which it was developed, and as an ideal type,[34] could itself serve as a basis for reconstitution of nomos beyond its original elements. Narrative, it seems, could only move toward multi-vectored nomos gingerly, and always looking over its shoulder for the acknowledgement and affirmation of those with the power to back their norms and narrative with force.
Cover reminds us that it is not inevitable to see the world today (as it is manifested in narratives and their nomoi) as the narratives through which a particular caste of narrative meaning-makers (or maintainers) would have us see the world and our place in it. Thus, when thinking about what Cover contributes for a more sensitive engagement with international law, one ought not to feel constrained to speak only, or with particular reverence to, the current orthodoxy. As such, Cover might speak here not only to the great enterprise of global legalization that was the vision of the great lawyer/administrators of the post 1945 period. He might also have engaged these high priests of the externalization of the ethos, the spirit of the emerging post-War great American mythos for their well-meaning project. Here is a triumphant international law grounded on the possibility of the incarnation of values from narrative through the great projects of legalization and juridification. These, in turn would be aligned with an increasingly tightly intertwined network of administrative oversight, which itself would be bounded by rules-based exercises of discretionary decision making for the benefit of increasingly managed and passive populations.[35] This nomic expression , this grand project of international law after 1945, was to serve as a basis for the rationalization of domination grounded in the sacral quality of human dignity and the divine dignity of the individual within political collectives.[36] But that has not proven to be the last or only word.
Rather attention ought to be drawn to the voluptuously generative activity on the peripheries of this now ancient vision-narrative embraced as the “truth” of international law. Likewise a focus on the evolving and fracturing character and ideology of narrative itself might be revealing.[37] That character is something Cover took as a given though one whose variability was most interesting when expressed as norm. For Cover, narrative was an object that could be identified because, though it might vary as to its expression, its form tended to remain unchanged. Cover implies that though narrative changes and with it the content of law, that variation in narrative has no effect on the form that law takes--a concept that Chinese Leninist theorists[38] and European philosophy,[39] and only later law, now challenges. It is not for nothing, then, that Bertrand Russell and Jean Paul Sartre find themselves seeking to mimic the forms of Nuremburg even as they seek to modify its narrative.
The unchanging ideal was itself bound up in the notion that it is exogenous to the narrative community and that the iterative process of narrative nomos is to (finally) get it “right”--to approach both an ideal perfection and to work toward its realization in fact. Nonetheless what remains sacred and eternal are its forms--the language and expression of the nomic and its framing of collective organs. It is here that international law, as it is emerging from the margins, provides a fertile space in which to explore the way that nomos and narrative are themselves together two sides of the same coin--the incarnation of ideological premises in the form of its perfection (narrative) and its expression as lived reality (nomos).
The focus here are those nomos narratives beyond the state and its domestic nomic orders. More specifically the changes to the foundations of narrative multiplicity-- and nomic polycentricity-- among these actors appear to be treating the old meta-orthodoxies of the post-1945 narrative ordering extra-nationally as less relevant to their own constitution.
In the process the conception and expression of nomoi are transforming as well. The cumulative effect of these transformations may challenge the coherence of the field of international law itself, even broadly conceived. More interesting, the movement in extra-national arenas[40] Its effects, however, are borrowing deeply into the practices and sensibilities of domestic legal and constitutional orders. Each represents the striving toward the grasping of an ideal that can then be expressed as a form of perfection (its narrative) and application (its structures of compulsion--or the ideal made manifest, incarnated as “law”).
Considered at greater length below are the application of Cover’s insights to the emergence of the post-1945 orthodox narrative and its challenges certainly after the end of the last century. The narrative and nomos of orthodox post-War international law was as a form of animal husbandry (and its biblical origins) after 1945 and formed the baseline narrative of the field. That, indeed, was the solution to the problem of racialized violence and militarism. The structures of peace might be hardened through the narrative of the farm rather than of the treasure raid. Here one encounters the modernist baseline within which even orthodox understandings of legal pluralism are entrenched. This is a narrative of containing conflict within a cage of legalization, the enforcement of which is developed further under conditions of advanced judicialization of politics.[41] Against it has emerged the ideal of the private law of public bodies, states operating in and through markets and as market actors to project public authority privately. This forms the narratives of sovereign wealth funds and state owned enterprises.[42] But it also suggests the operational narratives of international financial organs and privatized instruments of global macro-economic governance.[43]
It suggests the nomic importance of conditionality in loan agreements, in the force of capacity building, and the power of control of the substance of audits and accountability measures. From that it is only a small step to the narratives that celebrate the triumph of the market--these are grounded in narratives of private law as public international law and of the governmentalization of the private sector to advance public law objectives,[44] with its crown jewel in the human rights soft law instruments of the early 21st century.
This last narrative impulse then opens the door to future narratives. Two are considered. The first is the move toward quantification and measurability in lieu of the old language and sensibilities of sovereignty and command of classical narrative and nomos.[45] Data driven governance and its simulations and predictive analytics, its ratings systems serves as a novel basis for law[46]--accountable, quantified and measured in a rationalized way against measurable ideals.[47] That rationalization, however, is undertaken with a new language--the language of numbers, of prediction, of the sovereign authority of the statistical center (in regimes meant to suppress deviance) or the imperial authority of the outlier (where the narrative is progressive in the sense of managing populations towards some ideal state--for example, racial justice, equality, or of the establishment of a communist society. Lastly one offers a glimpse at a potential future--the transformation of nomic institutions from the administrative-bureaucratic models to that grounded in information and operationalized through platforms.[48] This is the world of social credit, of ratings based nudging, and of cultures in which accountability and compliance become the operative language and the founding mythos of law.[49] This is the nomic world of Facebook. This is Chinese Social Credit regimes externalized through its global production chains projected through its Belt & Road Initiative; this is Delta Airline’s blacklists platforms (coordinated by the state) for punishing unruly passengers.
Each of these expressions of the imaginaries of international law contains within it its own nomos, and its own narratives. Each envisions bridges from quite distinct “here” to very different “there.” And each is grounded in quite distinct sacral foundations. Yet Cover might find in the religious traditions of the Jewish testament a basis these sacral foundations, and that connection then enriches the emerging narrative ecologies of international law.
2. International Law as Animal Husbandry.
Nomos: From contract between states, to the organization of a constitutionalized international space under and through the UN system. A new frame for a complex system of agreements with the force of law even as international law originally was meant to provide directions for legitimate law making within domestic legal orders. Nomos assumes three primary forms: (1) contract; (2) constituting supra-national organs; (3) participating as members of supra-national organs in their nomic functions. Pluralism comes in the forms that these nomic activities assume.
Narrative: The apotheosis of the state system around the corporate body of the state. Those bodies may interreact in communities of similar persons, but they are superior to the world around them. The sacral authority of Gen. 1:26,[50] of sovereign imitation and delegation, and of sovereign stewardship for things that do not belong to use but with respect to which we are given use. Just as humanity was given dominion over the Earth and all of its creatures by God, so the state has been given dominion over human collectives to serve the ends of dominion. But that hierarchical constitution has moved up a level. Just as human collectives can constitute a state as their collective incarnation, so can collectives of state-persons constitute a supra-national body corporate as the incarnation of the collective organization and community of states.
The bridge: On one side the architecture of dominion shifting from the individual to the collective to the state and to the community of states. On the other the growing importance of responsibility of those with dominion over the welfare of their flock. As the power of the individual over themselves shrivels, as persons lose agency (and the power to bear the consequences of that agency) that agency moves first to the state (its perversion--the nanny state) and then to the community of states (human rights and humanitarian law, the law of war with its singular focus on the protection of the bodies and goods of the individual).
The sacral: The Fuhrer Principle of international Law and the legitimacy of dominion within vertically stacked power collectives organized functionally with politics at its head.
3. The Private Law of Public International Law (States and Law in Markets).
Nomos: (1) Law as contract--the World Bank; IMF; AIIB loan agreement. (2) Public policy as corporate governance--the State Owned enterprise and the production of nomos through the regionalization of functionally differentiated control structures along global production chains. The Model--Chinese Belt & Rad Initiative; America First, and the EU’s Brussels Effect. (3) the transformation of the financing of economic activity into a nomic activity--the structures and operations of the Norwegian Pension Fund Global and its Ethics Guidelines, active shareholding and power to exclude companies from its investment universe.
Narrative: The apotheosis of the collective and the de-territorialization of bodies corporate asserting political authority. The fusion of law, politics, economics, and culture. Regimes of functional differentiation and the rise of abstract territories as the concepts of sovereignty becomes detached from physical moorings. The merger of political and economic space producing the privatization of public activity. This is the narrative of inversions--the use of economic instruments for the construction and operationalization of nomic acts--contract as statute; economic policy as an instrument of public policy and its sensibilities to the reification of the agency and integrity of political bodies corporate.
The Bridge: The transformation of the focus of human activity from fractured to comprehensive--the fusion of the inter-effects of political, economic, and cultural activity. But at the same time the de-politization of the state. A state is the essence of legitimate political authority but it subordinates that where it engages in and projects economic power beyond its borders. Combining notions that the state may project its power comprehensively against the theory that within the community of states such power must be circumscribed by the authority of other states to protect their own bodily integrity. This is the space of integrity in which political bodies must conform to economic expectations when they move from territory to the territory of markets, and from a physical space to the spaces of production.
The sacral: the primacy of the market as the genius of human interaction and the core value of maximization of benefit mediated within communities of participants irrespective of th4eir character.
4. The Triumph of the Market (The Public Law of Private Law).[51]
Nomos: The private enterprise as the source of law; the corporation as a private administrative agency and the operational element in the implementation of public policy objectives. private law as the expression of public objectives; the state recedes as a source of a law that operates between states (private law as the solution to transnational governance gaps). The exemplars--responsible business conduct and corporate social responsibility in the form of international soft law measures (soft law in the sense of directing states to delegate global norms through domestic legal orders to private economic enterprises the jurisdiction of which was limited to its functionally differentiated operational spaces). The UN Guiding Principles for Busines and Human Rights and its 2nd Pillar Corporate Responsibility to respect human rights; the OECD Guidelines for Multinational Enterprises are key nomic structures for this enterprise. The form of nomic activity--corporate policy as law--the Supply chain guidelines within global production chains; human rights due diligence. These are first embedded in disciplinary collectives of economic markets and now increasingly forming part of the domestic legal order of states (Germany, France, Australia, the UK).
Narrative: This is the narrative of governmentalization of private organs as instruments of public ends (the converse of state projections of public power through private activity). The merger of the sensibilities of the administrative state and its bureaucratization with the risk-seeking wealth-maximizing cultures (now dampened) of markets driven organs. There is no differentiation between political and economic policy or between public and private responsibility. The attack on the ancient narrative of the corporation and the way it is “seen” and understood” and more importantly, the way it is rendered. One moves from the notion of an agency based wealth maximization for the benefit of internal communities to a welfare maximization for the communities within which the enterprise is embedded. The apotheosis of the victim as a legal-moral-cultural category. The future--moving from human rights based (and thus anthropocentric) to environmental and sustainability based maximization.
The Bridge: The economic collective as a public organ; the public body corporate as an economic actor. The passivity and stripping of agency of the individual over whom now both the state (collective) the community of states (through international law) and the collective of economic bodies corporate now bear responsibility. On the other side of the bridge--the emergence of individual bodies corporate who now serve as the aggregated substitute for the individual and within which aggregated agency to protect against violation of rights is now vested. As against Apple, Inc--Amnesty International.
The sacral: the primacy of human rights and the welfare of the individual--animal husbandry the responsibility for which is now broadened irrespective of the character of the body corporate. The rise of the realm of Foucault’s “statistics” on incarnated abstractions--“populations”, “states” “international communities” etc. The rise as well of the legitimacy of reductionism of the individual and of essentialism of the aggregation of traits that define them.
5. Data Driven Governance and the Narratives of Simulacra.
Nomos: Quantifiable measures against an ideal; the rating, algorithms and the construction of systems of rewards and punishment for deviations from the ideal. Measurability, compliance, accountability become the mechanisms of law making. Naturalization becomes its favored mode of enforcement.
Narrative: Creation stories--the evolution and character of the ideal and the4 organization of collectives around ideal--the ideal worker, debtor, health advancing body. The legitimation of the disaggregation of the individual into an aggregation of statistics and their reconstitution as failed efforts toward perfection. Applies to all constructs--what is the difference between the United States and May Smith” where both can be incarnated as the sum of those of its parts that are deemed worthy of inclusion?
The Bridge: From qualitative to quantitative dominion. From the language of command to that of judgment. From the exogenous enforcer to the internalization of punishment and reward. The bridge crosses as well from the dominion of the lawyer, the politician, the policymaker, to the coder, the statistician, the modeler and the realm of predictive analytics. Nomos moves from words as symbols to symbols as words. But it is a world in which the collective provides the morals-objectives and the coders develop the measures necessary to measure its attainment.
The sacral: This is the world of Abraham’s bargaining with God over the fate of Sodom.[52] But it is also the realm of Pharaoh’s dream.[53] The realm of data. It is the world of power derived from authority over data and the authority to interpret them that is to organize and extract a meaning from them). Worlds are constructed from the design, combination, and quantification of data. All in the service of that against which things are measured; the sources of that are not measurable but received: either (1) as the composite of the analytically aggregated sum of the genius of a collective (or its composite in the center or among its outliers for progressive movements) (2) as the measurable expression of objectives or expectations received from other source (the Divine, custom, etc.). The divinity of predictive analytics.
6. From Sovereign to Platform governance and the Nomoi of consumers and Contributors to the Realization of Measurable Ideals.
Nomos: Rewards and punishments interconnected by networked platforms. From law to shared spaces where users and producers meet for the purpose of exchange. The quid-pro-quo--those who contribute data to platforms can use the aggregated data in platforms for analytics.
Narrative: The apotheosis of the exogenous. Judgment is now detached from the judged even as the constitution of that judgment is assembled from the contribution of the thing judged of its data. The narratives of the platform are those of the supreme value of accountability, of compliance, of the fundamental obligation to prevent, mitigate or remedy breaches of expectations respecting conduct. This is a baseline obligation that can be made granular (the number of drinks one may ingest in an evening) or telescoped outward (the corporate responsibility of enterprises for the conduct of their supply chain partners).
The Bridge: Users, producers and coordinators and the bridge itself becomes the destination. Here and there are the same place. Nomos and narrative collapse into each other.
The Sacral: The Archive. The dominion of the coordinator reigning over the iterative interactions of users and producers. But every user is a producer; and every producer is a consumer within some level of multiple level, overlapping, stacked and coordinated platforms.
7. Conclusion
Cover always reminds me of a nodal point in Oscar Wilde’s tragically brilliant play, Salomé. It suggests both the excruciatingly self-reflexive character of narrative, and its smallness in the context of larger or inconsistent, or incoherent, narrative. Near the middle of the tragedy, at the point where Salomé will bargain for the head of John the Baptist in return for performing a dance for Herod, the discussion turns to the character and nature of John the Baptist, and its narrative of the law-ideal. That, in turn juxtaposes three quite distinct and important narratives, each supported by inconsistent nomoi. The first is that of the structures of pre-exilic Judaism, the second the Hellenized cosmopolitanism of the Jewish-Roman ruling classes, and the third pointing to the emerging narratives built around the life and message of Jesus Christ.
The opening question turns on the extent to which Herod “fears” John the Baptist, and the extent to which he may act against him--either his ideas or his body.
HEROD: I am not afraid of him. I am afraid of no man.
HERODIAS: I tell you, you are afraid of him. If you are not afraid of him why do you not deliver him to the Jews, who for these six months past have been clamouring for him?
A JEW: Truly, my lord, it were better to deliver him into our hands.
HEROD: Enough on this subject. I have already given you my answer. I will not deliver him into your hands. He is a holy man. He is a man who has seen God.
A JEW: That cannot be. There is no man who hath seen God since the prophet Elias. He is the last man who saw God. In these days God doth not show Himself. He hideth Himself. Therefore great evils have come upon the land.
ANOTHER JEW: Verily, no man knoweth if Elias the prophet did indeed see God. Peradventure it was but the shadow of God that he saw.
A THIRD JEW: God is at no time hidden. He showeth Himself at all times and in everything. God is in what is evil even as He is in what is good.
A FOURTH JEW: That must not be said. It is a very dangerous doctrine. It is a doctrine that cometh from the schools at Alexandria, where men teach the philosophy of the Greeks. And the Greeks are Gentiles: They are not even circumcised.
A FIFTH JEW: No one can tell how God worketh. His ways are very mysterious. It may be that the things which we call evil are good, and that the things which we call good are evil. There is no knowledge of any thing. We must needs submit to everything, for God is very strong. He breaketh in pieces the strong together with the weak, for He regardeth not any man.
FIRST JEW: Thou speaketh truly. God is terrible; He breaketh the strong and the weak as a man brays corn in a mortar. But this man hath never seen God. No man hath seen God since the prophet Elias.
HERODIAS: Make them be silent. They weary me.
HEROD: But I have heard it said that Jokanaan himself is your prophet Elias.
THE JEW: That cannot be. It is more than three hundred years since the days of the prophet Elias.
HEROD: There be some who say that this man is the prophet Elias.
A NAZARENE: I am sure that he is the prophet Elias.
THE JEW: Nay, but he is not the prophet Elias.THE VOICE OF JOKANAAN: So the day is come, the day of the Lord, and I hear upon the mountains the feet of Him who shall be the Saviour of the world.[54]
Cover, and the American establishment since, continues to stand on that Judean terrace and they partake of the Ouroborean discourse[55] of everyone under the full moon that inevitably accepted the blood offerings of those vested in dominance over the trajectories of circularity that are our nomos and our narrative.[56] It is not Salomé or John the Baptist that is feared so much as indeterminacy. But at the same time the cure for that condition is to be suspicious of the possibility of variation in systems of determinacy.
The price that narrative exacts for its rationalization of domination, then, can be high--and its turn to the insular is strong. The determinate rationalization of domination necessarily It embraces exceptionalism and makes us all its tools. Here Cover moves us perilously closer to John--to the determinacy of Logos--than to that of the Sanhedrin and its post Exilic organs. Even a small shift of gaze can transform the role of those in that business from myth makers (the American experience) to that of disciple who are merely “sent to bear witness of that Light .”[57] Discipleship, after all, appears as important an aspect of the care and feeding of the American determinate state as it is for the leading forces vanguard with custody of the determinacy of Chinese Marxist Leninism. Nonetheless, such embrace of determinacy need not invariably turns one inward. It also provides for inter-communal communication. That is not the realm of Cover--but it is that of Niklas Luhmann[58] and of the meta-narratives that are now the province of globalist internationalism; it is the world across the bridge that like Moses on Mount Nebo,[59] Cover can see the “there” but it exists on the other side of a bridge that may not be crossed. Yet Cover could also shift the gaze enough to note both the insularity of the narratives of nomos within a community in a globalized managerial space in which it is deeply embedded in far larger and ultimately far more powerful narratives of dominion.
These are the operational realities of closed and insular communities that are now nudged out of their parochialism or more deeply embedded within them as they are thrust into or against others. This is the world of nomos and narrative that Cover hints at, one that reveals both an internally and externally variegated worlds--insular and closed or cosmopolitan and networked--in which law as an expression of the narratives to which it gives effect, arises. And for the better understanding of these ecologies of narrative ideologies and the little worlds they construct through law contributes. As well Cover’s concepts of nomoi as bridges between the ideal, the yesterday and the tomorrow, actually the many bridges that serve those ends-- also contributes a dynamic element that sets these narrative communities in motion.
These are the players, in Cover’s universe of nomos and narrative, that supplicate the sacral for the authority to legitimately exercise dominion on the stage of international law as forcefully as on the terrace of Herod’s palace in the Jewish Kingdom of Roman Judaea. Today these sacral bridges connect the past, in the form of international law as animal husbandry, the present, in the form of the privatization of international law around its great priorities (human rights and sustainability), and its future, represented by the language of numbers and the prospects of platform governance--of simulacra and the predictive analytics through which a new language of the ideal, and of its derivative narratives and nomoi might emerge.
NOTES:
[1] W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University. Prepared for the Conference, The Life and Work of Robert M. Cover, Touro Law Center, 4-5 October 2021,
[2] Robert M. Cover, Foreword: Nomos and Narrative, Harvard Law Review 97:4-68 (1983) [hereafter Nomos & Narrative]
[3] Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale Journal of International Law 301 (2007).
[4] Ibid., (“the New Haven School offered a kind of socio-legal realism to combat the power-based realism that had dominated the early Cold War period.”; p. 305).
[5] Ibid., 302; citing Symposium, McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 Am. Soc’y Int’l L. Proc. 266 (1985).
[6] Berman, supra n. 1 at 303. Berman noted, though, that “Unfortunately, those who study international public and private law have not, historically, paid much attention to Robert Cover’s work or to the scholars of legal pluralism more generally.” Ibid., p. 309.
[7] See, e.g., Gralf-Peter Calliess and Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Oxford, 2010); Larry Catá Backer, Governance without government: An overview. In Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (G. Handl, J. Zekoll, & P. Zumbansen (eds.), Martinus Nijhoff, 2012) pp. 87-123.
[8] See, e.g., Elinor Ostrom, Polycentric systems for coping with collective action and global environmental change, 20 Global Environmental Change 550-557 (2010); Elinor Ostrom, Beyond Markets and States: Polycentric Governance of Complex Economic Systems, 100(3) The American Economic Review 641-672 (2010); For the U.S. “collective action” variation, see, e.g., A. Poteete, A., et al., 2010. Working Together: Collective Action, the Commons, and Multiple Methods in Practice (Princeton University Press, 2010).
[9] The premise of this approach, of the essence of American jurisprudential turns such as the self-styled Yale School, is criticized at Larry Catá Backer, The Cri de Jessup Sixty Years Later: Transnational Law’s Intangible Objects and Abstracted Frameworks Beyond Nation, Enterprise, and Law, in The Many Lives of Transnational Law: Critical Engagements with Jessup's Bold Proposal 386-418 (Peer Zumbansen (ed.), Cambridge UP, 2020).
[10] Nomos & Narrative, supra. In later describing this impulse, Cover explained: “I considered primarily the commitments and narratives of those communities who would make a law for themselves apart from that of the State. I believed and still believe that that emphasis is a necessary corrective to the imbalanced character of almost all contemporary legal theory.” Robert M. Cover, Robert M. Cover, The Folktales of Justice: Tales of Jurisdiction," 14(2) Capital University Law Review 179-204, 182 (1985) [hereafter “Folktales of Justice”]
[11] Nomos & Narrative, supra,
[12] Nomos & Narrative, supra., p. 60.
[13] Berman, A Pluralist Approach to International Law, supra, at 308.
[14] See, e.g., J-F Lyotard, The postmodern condition: A report on knowledge (Minneapolis: University of Minnesota Press, 1984).
[15] Jean-Paul Sartre, The Imaginary: A Phenomenological Psychology of the Imagination (Routledge, 2010).
[16] Exodus 7 et seq.
[17] Cf., Manuel Eisner, Killing Kings: Patterns of Regicide in Europe, AD 600–1800, 51(3) The British Journal of Criminology 556-577 (2011); Marilyn Kleinberg Neimark, Regicide Revisited: Marx, Foucault and Accounting, 5(1) Critical Perspectives on Accounting 87-108 (1994); Susan Dunn, The Deaths of Louis XVI: Regicide and the French Political Imagination (Princeton University Press, 1994).
[18] Cf., K.R., China and the Mandate of Heaven, 41(4) The Journal of Social, Political, and Economic Studies 42-67 (2016); Giulio Magli, Sacred Landscapes of Imperial China: Astronomy, Feng Shui, and the Mandate of Heaven. ( Dordrecht: Springer, 2020) .
[19] Larry Catá Backer, Foreword: Bannermen and Heralds: The Identity of Flags; the Ensigns of Identity, in Flags, Identity, Memory: Critiquing the Public Narrative through Color (Anne Wagner and Sarah Marusek, eds., Dordrecht: Springer 2020).
[20] Ibid. (“Creating legal meaning, however, requires not only the movement of dedication and commitment, but also the objectification of that to which one is committed. The community posits a law, external to itself, that it is committed to obeying and that it does obey in dedication to its understanding of that law.” Ibid., p.45 ).
[21] Ibid., pp. 9-10 (“Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined .alternative - that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative.. . A nomos is a present world constituted by a system of tension between reality and vision.” Ibid., ).
[22] Ibid. 9.
[23] Folktales of Justice, supra, 182-183. “The commitments that are the material of our bridges to the future are learned and expressed through sacred stories. Paradigmatic gestures are rehearsed in them. Thus, the claim to a "law" is a claim as well to an understanding of a literature and a tradition.” Ibid., p. 182.
[24] Ibid.
[25] Ibid., at 184.
[26] And here the sacred script, once fashionable, and now less so: “And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth” Gen. 1:26.
[27] Nomos & Narrative, supra., p. 67
[28] Ibid., pp. 44 et seq.
[29] Nomos & Narrative, supra., p. 68.
[30] Larry Catá Backer, Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 Tulsa Journal of Comparative & International Law 87 (2000).
[31] Folktales of Justice, supra, pp. 197-199.
[32] Ibid., p. 198.
[33] Ibid., p. 199-202.
[34] Folktales of Justice, supra, at 202 (“The Russell/Sartre tribunal, like the Sanhedrin that R. Jacob Berab tried to set up, was a philosopher's realization of an ideal type. But both "Courts" refrained from acts that might have tested definitively their capacity to transform their worlds.”).
[35] I use the term population here as collectives that represent the essentialized reduction of the individual aggregated to produce some sort of reified mass singularity, cobbled together with statistics and measured against an ideal toward which those who know better have an obligation to nudge. Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978--1979 (Lectures at the College de France) (Graham Burchell, trans., NY: Picador, 2004).
[36] See, e.g., German Basic Law ¶ 1.
[37] See, e.g., Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17(2) Tilburg Law Review 177-199 (2012).
[38] Here we enter the world of Chinese social credit theory and implementation. See, e.g., Fan Liang, Vishnupriya Das, Nadiya Kostyuk, Muzammil M. Hussain, Constructing a Data-Driven Society: China's Social Credit System as a State Surveillance Infrastructure, 10(4) Policy and Internet 415-453 (2018) (Special Issue: Social Media and Big Data in China).
[39] See, for example, the emerging notions of biopolitics. Michel Foucault, Louisiana Lightsey, "Biopolitics and Globalization." Global South Studies: A Collective Publication with The Global South (August 17, 2017.); available [https://globalsouthstudies.as.virginia.edu/key-concepts/biopolitics-and-globalization]; accessed 5 October 2021.
[40] This is an old notion in now new clothing. See Larry Catá Backer, The Extra-National State: American Confederate Federalism and the European Union, 7 Colum. J. Eur. L. 173 (2001)
[41] Considered in Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn St. Int'l L. Rev. 509 (2003).
[42] See, Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets, 29(1) American University International Law Review 1-122 (2013); Larry Catá Backer, Human Rights Responsibilities of State-Owned Enterprises, in Research Handbook on Human Rights and Business 223-244 (Surya Deva and David Birchall (eds.), Edward Elgar, 2020); Larry Catá Backer, The Human Rights Obligations of State-Owned Enterprises: Emerging Conceptual Structures and Principles in National and International Law and Policy, 50(4) Vanderbilt Journal of Transnational Law 827-888 (2017).
[43] Considered in Larry Catá Backer, The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards, 21 Lewis & Clark Law Review 881-920 (2017) Larry Catá Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order, 18(2) Indiana Journal of Global Legal Studies 751-802 (2011).
[44] See, e.g., Larry Catá Backer, The Problem of the Enterprise and the Enterprise of Law: Multinational Enterprises as Polycentric Transnational Regulatory Spaces, in 777-800 Oxford Handbook of Transnational Law (Peer Zumbansen, ed., Oxford University Press, 2021)
[45] See Larry Catá Backer, And an Algorithm to Entangle them All? Social Credit, Data Driven Governance, and Legal Entanglement in Post-Law Legal Orders, in Entangled Legalities Beyond the State 79-106 (Nico Kirsch, ed., Cambridge, 2021).
[46] See, Larry Cata Backer, Next Generation Law: Data Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China 28(1) USC Interdisciplinary Law Journal 123-172 (2018).
[47] See, e.g, Larry Catá Backer, International Financial Institutions (IFIs) and Sovereign Wealth Funds—SWFs as Instruments to Combat Corruption and Enhance Fiscal Discipline in Developing States, International Review of Law 2015.
[48] Backer, Larry Catá, Trust Platforms: The Digitalization of Corporate Governance and the Transformation of Trust in Polycentric Space (July 28, 2021). Available at SSRN: https://ssrn.com/abstract=3895425 or http://dx.doi.org/10.2139/ssrn.3895425 .
[49] ALI Project on Compliance.
[50] Gen 1:26 (“Let us make man in our image, after our likeness: and let them have dominion”).
[51] Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law, 82(5) Tulane Law Review 1801 (2008).
[52] Gen 18:16-33. The allocation of authority between the Divine and the collective is telling. God controls the rules for determining abomination, he collects data on its extent, and he judges the exception. Lastly, he imposes punishments collectively on a people reduced to their relationship to a specific set of data generating behaviors. Abraham bargains but with caution. But that bargaining itself is mere performance for God already has the data and has undertaken its analytics. The only question for the community, then, is the extent of innocent blood to be sacrificed for the common good,
[53] Gen. 41:1-57. This is a sacred predictive analytics--but a small step from the interpretation of dreams to the prediction of action from big data analysis of comprehensive data driven aggregated patterns of behavior reduced to meaningful data points.
[54] Oscar Wilde, Salomé: A Tragedy in One Act (Alfred Douglas, trans., London & NY: John Lane, 1893)
[55] Larry Catá Backer, Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc., 20(2) Indiana Journal of Global Legal Studies 805-879 (2013).
[56] Wilde, Salomé, supra (“HEROD: The moon has a strange look to-night. Has she not a strange look? She is like a mad woman, a mad woman who is seeking everywhere for lovers. She is naked too. She is quite naked. The clouds are seeking to clothe her nakedness, but she will not let them. She shows herself naked in the sky. She reels through the clouds like a drunken woman....”)
[57] John 1:8.
[58] Luhmann, Niklas, The Differentiation of Society (Stephen Holmes and Charles Larmore, trans., New York: Columbia University Press, 1982).
[59] Deuteronomy 34:6.
No comments:
Post a Comment