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| Dado, La Grande Ferme--Homage à Bernard Réquichot (1962-3); CentrePompidou |
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 (more on that here).
I have produced a draft of a paper I wrote based on my conference remarks. For those whose tastes run to the more abstract and theoretical, there may be something of interest here. The abstract of the paper, Robert Cover and International Law--Narrative Nudges and Nomadic Nomos, suggests its scope and objectives.
What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.
Francis Picabia, L'Adoration du veau (1941-42) Centre Pompidou
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| Claude Monet, Turkeys Unfinished Decoration 1876 Musée D'Orsay |
The object, then, is to try to rationalize an order to the quite dynamic states of norm-regulation construction in the many spaces that exist above, beyond or between states. What emerges is not yet another crazy land ululation much less a panegyric to the virtues of "good" reality construction. That I leave to others. My point is to suggest, in broad strokes, not just the strictures of narrative-normative anarchy, but also its substantial relevance for the expression of power among collectives with different conceptions and rationalizations of the power to compel, or better to make individuals think they are exercising free choice, when in fact they are deeply embedded in systems designed to manage, constrain, predict, and discipline choice. It is, in fact, a primer of sorts, on doing this effectively, for those with a taste for such things.
The application to core policy decision making as an explanatory as well as a predictive tool and instrument for the"proper " management of group think is fundamental. More than that, it properly reduces imaginaries to instruments in a toolkit that can be used either as a macro instrument for managing relations between belief systems, or adjusting them at the margins to produce sometimes substantial changes in the way that those collectives that are prisoners of any of them then naturally respond in predictable ways. And even more than that, it also suggests that real power will lie in the ability to more reliably develop the simulations necessary through which one can better experiment with the management and contours of cultural belief system development. It suggests, in the end, the way that as perhaps its greatest product, the Enlightenment has, in the name of the perfection of the individual, made it possible to detach the individual from personal autonomy. The best democracy (either liberal democratic or Marxist-Leninist), the optimum consumer, the ideal worker or administrator, the best approach to sensible sustainability based decision making is that can be both predicted and managed ( see e.g., here).
The cruder forms of this effort to preserve the appearance of free will while caging it within the logic of the belief system within which it is exercised (political parties, consumer branding, confession and religious ritualization of choice constraints and the like) will in the era of AI and big data give way to both more subtle and more comprehensive approaches to the use of belief systems for the management of collectives. Power, then, shifts to those who can manage the belief systems themselves and those who translate those beliefs into the predictive models through which its effects can be considered and implemented.
The draft may be accessed HERE. The Introduction follows below. Conversation always welcome.
Robert Cover and International Law--Narrative Nudgesand Nomadic Nomos
Larry Catá Backer (白 轲)*
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.[1]
Abstract
What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.
I. Introduction
My task today is to consider Robert Cover’s work as it relates to international law. This is no easy undertaking. The task is made harder still because its object--international law--remains a rapidly moving target with nudging and nomadic characteristics.[2] What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities[3] has fractured.[4] It self-consciously understands itself as existing on the cusp of nomic transformation.[5] What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven.[6] It is a fracture in search of a rationalizing theory.[7]
This project already produced a brilliant exposition in furtherance of legal pluralism in the extra-national context almost fifteen years ago.[8] Paul Schiff Berman considered the rise of the self-styled New Haven School of International Law[9] and its focus on law as a social process of authoritative decision-making.[10] 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.”[11] And so it did. Cover advanced the perception—unavoidable among international lawyers[12]— that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging.[13] Cover made palatable to Americans this idea of narrative and normative polycentricity, one already elaborated outside of the United States[14] and beyond the narrow conditions of orthodox narratives of law (over which lawyers and legal academics served as a sort of leading forces vanguard).[15] Others have crafted a nomos to legitimate Cover’s insights and to instrumentalize it within the banalities of policing of the normative collective.[16] Together, these insights and trajectories reinforced a movement toward the embrace of complexity in approaching notions of master narrative[17] the ordering framework of collective coherence expressed through law.[18]
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.[19] 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.[20] 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.[21]
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 had its limits. The marker of those limits were embedded in the connection between narrative communities based on core principles, histories, cultures, and the like. People devote their lives to developing systems of classification of virtually everything. It is a reflex grounded in the premise that there is value in aligning like with like–at least in the sense that their similarities will likely prove valuable in distinguishing communities or collections of “like” from others. That impulse to mediate between the insular and the common is, of course, is the essence of the nomic enterprise of international law.[22]
Like the enterprise of law, the collective impulse of international law toward self-constitution, to mythos and meaning making, is also exogenous.[23] 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[24] and its imaginaries[25]) can be assessed and sometimes challenged. That referent is Exodus;[26] but also Samuel. [27] Here international law resonates with Cover’s sacral nomic.[28] it is the beheading of the human incarnation of the state (from time to time);[29] or triumph in a violent confrontation that serves as an incarnation of the mandate of heaven.[30] From it is woven the cloth--incarnated by the flag, the prayer shawl or prayer rug, the emblem or action[31]– 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.[32]
It is in this context that Cover’s evocation of the “bridge” is particularly powerful,[33] 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.”[34] 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 It is American in the sense of its search, through its vanguard magisterium, for a constraining “sacred narrative.”[35] It is both conservative and progressive in the sense of moving from a “here” (a state of imperfection) to a “there” that better approaches an alignment between lived reality and the promise of our customs and traditions as they are embraced by the people.[36] These states of “here” and “there,” as well as the bridges built to move from one to the other, are made in our own image. This image is an idealized image the community projected outward as the attributes of either the peculiar genius of this Republic[37] or as the manifestation of the Divine. The nomic produces a semiotic theology centered on the human community whose collective self-expression is incarnated as its “genius.”[38] This foreshadows the trope and the reflexive nomic meaning making that then migrates from the domestic to the international collective. In its most basic manifestation normative bridging is the sort of nudging at the heart of the coercive enterprise of law. Narrative provides the legitimacy enhancing premises (norms) for the realization of which tools (law, regulation and the like) are tooled.[39] The tools can be used defensively (to protect customary practices and tradition) or they can be used positively--to provide a basis for changing behaviors and the expectations that make behavior desirable.[40]
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 a host of narrative sources may create an ecology of narrative.[41] 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.”[42] But it is American as well for how 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.[43] 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, a world which is to be remade in its image. The material for that making is meaning; narrative meaning making is the clay that would transform the international as the outward projection of the national ideal. 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 are themselves necessarily aligned with a specific institutional structure is even more quintessentially conservative. While it dabbles with the notion of “some undisciplined jurisgenerative impulse”[44] it is to the disciplinary cages of narrative as sovereign rulemaking, 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.[45]
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.[46]
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 narrative possibilities.[47] It also suggests the nomadic nature of normative communities within even an overarching normative system, like the U.S. Entanglement is at the heart of the project of interactive normative collectives, and that entanglement suggests migration of norms and narrative always in a dynamic state.[48]
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. This is derived from the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. As a collective expression, it must be autonomous of and resist confinement to, management by or for the benefit of specific public national and international organs. That was an important underlying insight in the effort to constitute a war crimes tribunal to try an identified set of leaders of those states which lost the conflict that ended in 1945.[49] 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.”[50] And here as well the projection of law outward from the state to the community of states to hold accountable individuals not under a set of nomic principles but within its consequential legalization at the international level.
The 1945 Tribunals, then, were not unique events but a template that could be applied in the future. That projection forward in time was a critical element of the nomic project. And thus Cover’s consideration of subsequent efforts to replicate that effort in the context of U.S. engagement in Vietnam undertaken by Sartre and Russell.[51] Cover’s engagement with the Sartre-Russell attempt at replication was attempted in the shadow of, but liberated from, the structures that produced the Nuremberg nomos. Its animating narrative as an ideal type, freed from the context of the time and place for which it was developed,[52] 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 acknowledgment and affirmation of those with the power to back their norms and narrative with force. There is irony here as well--what was impossible in the context of Vietnam became plausible in the context of Rwanda,[53] and then in the Yugoslav wars of independence.[54] And it found an institutional home in its nomic aspects in the Rome Statute;[55] aligned with its institutional manifestation in the International Criminal Court and its jurisprudence.[56]
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 considering what Cover contributes to 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. For their well-meaning project, he might also have engaged these high priests of the externalization of the ethos, the spirit, of the emerging post-War great American mythos. 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.[57] 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.[58] This nomic expression, this grand project of international law after 1945, served 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.[59] But it has not proven to be either the last or only word.
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.[60] That character is something Cover took as a given, though one whose variability was most interesting when expressed as norm. For Cover, law narrative was an object that could be identified because, though it might vary as to its expression, its form tended to remain unchanged.[61] Cover implies that though narrative and the content of law on which it is based changes, that variation in narrative and its expression as law does not product an effect on the form that law takes. That may now be challenged by the great tech and normative innovation of data based governance;[62] indeed it is a premise that Chinese Leninist theorists[63] and European philosophy,[64] 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 Nuremberg 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. 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 with 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 is 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 constitution. In the process, the conception and expression of nomoi are transforming as well. The cumulative effect of this transformation may challenge the coherence of the field of international law itself, even broadly conceived. More interesting, the movement in extra-national arenas[65] 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 constructed as a form of animal husbandry (and its biblical origins) after 1945 and formed the baseline narrative of the field.[66] 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--a movement from an obsession with territory to one obsessed with the control of populations.[67] This modernist baseline narrative 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.[68] 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 narrative of public entity private law forms the narratives of sovereign wealth funds and state-owned enterprises.[69] But it also suggests the operational narratives of international financial organs and privatized instruments of global macro-economic governance.[70] 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,[71] 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 possible futures 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.[72] Data-driven governance and its simulations and predictive analytics, its rating systems serve as a novel basis for law[73]--accountable, quantified, and measured in a rationalized way against measurable ideals.[74] 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—transforming nomic institutions from the administrative-bureaucratic models to that grounded in information and operationalized through platforms.[75] This data driven nomic narrative is the world of social credit, ratings-based nudging, and cultures in which accountability and compliance become the operative language and the founding mythos of law.[76] This narrative is manifested in the nomic world that is Facebook; now self-consciously part of the construction of a metaverse, a nomic universe that seeks to meld human and divine.[77] This is Chinese Social Credit regimes externalized through its global production chains projected through its Belt & Road Initiative; Delta Airline’s blacklists platforms (coordinated by the state) for punishing unruly passengers.
Each of these expressions of the imaginaries of international law contains 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 for these sacral foundations, and that connection then enriches the emerging narrative ecologies of international law. More significantly, Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law.
* 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, panel on Nomos and Jurisgenesis in International Law and Society, Touro Law Center, 4-5 October 2021.
[1] Robert M. Cover, 97 Nomos and Narrative, Harv. L. Rev. 4, 9 (1983).
[2] See, Martti Koskenniemi, Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge, 2001); Stephen C. Neff, Justice Among Nations: A History of International Law (Harvard University Press, 2014); Cf., Deborah Whitehall, A Time-Map for International Law, 7 Cambridge International Law Journal 4 (2018) (Following Hanna Arendt, interrogating what a time-map for international law might look like if international lawyers notice the gaps, rhythm and sequences that set and reset their part in international historical time?).
[3] See, e.g., Westel W. Willoughby, The Fundamental Concepts of Public Law 29-39, 307-315 (MacMillan, 1924)
[4] See, e.g., Martti Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission A/CN.4/L.682 (13 April 2006); Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17(2) Tilburg L Rev. 177-199 (2012).
[5][5] See, Martti Koskenniemi, Why History of International Law Today?, 4 Rechtsgeschichte 6, 63-64 (2004) (“In addition to the sense of an increased political possibility connected with the end of the Cold War, the other factor contributing the emergence of historical studies has undoubtedly been the breakdown of the modernist frame of politics that used to provide a rather optimistic and above all universalistically inclined interpretation of the international world.” Id., at 64).
[6] 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)
[7] See, e.g., Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 EJIL 1 (1991); Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford, 2016) .
[8] See Paul Schiff Berman, A Pluralist Approach to International Law, 32 Yale J. Int’l L. 301 (2007).
[9] Id. at 305 (“[T]he New Haven School offered a kind of socio-legal realism to combat the power-based realism that had dominated the early Cold War period.”).
[10] Id. at 302 n.3 (citing Symposium, McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 Am. Soc’y Int’l L. Proc. 266 (1985)).
[11] Id. at 303. However, Berman further stated: “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.” Id. at 309.
[12] See, e.g., Gralf-Peter Calliess & Peer Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (2010); Larry Catá Backer, Governance Without Government: An overview, in Beyond Territoriality: Transnational Legal Authority in an Age of Globalization 87-123 (G. Handl et al. eds., 2012).
[13] See, Robert Lepenies & Magdalena Małecka, The Institutional Consequences of Nudging – Nudges, Politics, and the Law, 6 Rev. Phil. Psych. 427, 430-432 (2015); Todd Haugh, Nudging Corporate Compliance, 54(4) American Business Law Journal 683 (2017) (“Although first conceived as a public policy tool, nudges are not limited to government. Because nudges are by definition simple interventions that have the ability to change behavior—possibly of many people at low cost—companies have also taken notice.” Id., 684).
[14] See, e.g., Elinor Ostrom, Polycentric Systems for Coping with Collective Action and Global Environmental Change, 20 Glob. Env’t Change 550 (2010); Elinor Ostrom, Beyond Markets and States: Polycentric Governance of Complex Economic Systems, 100 Am. Econ. Rev. 641, 643 (2010). For the U.S. “collective action” variation, see, e.g., Amy R. Poteete et al., Working Together: Collective Action, the Commons, and Multiple Methods in Practice (Princeton Univ. Press ed., 2010).
[15] 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, in The Many Lives of Transnational Law: Critical Engagements with Jessup's Bold Proposal 386 (Peer Zumbansen ed., 2020).
[16] See, Cass R. Sunstein, The Ethics of Nudging, 32 Yale J. on Reg. 413, 415 (2015) (“If we value democratic self-government, we will be inclined to support nudges and choice architecture that can claim a democratic pedigree and that promote democratic goals.” Id., at 415, and the bureaucratization of so-called choice architectures); Cf. Cass Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge, 2016)
[17] See, Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (Geoff Bennington and Brian Massumi (trans), U of Minnesota Press,1984).
[18] See, e.g., Donna L. Akers, Decolonizing the Master Narrative: Treaties and Other American Myths, 29(1) Wicazo Sa Review 58 (2014).
[19] See generally Cover, supra note 1. 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, The Folktales of Justice: Tales of Jurisdiction, 14 Cap. Univ. L. Rev. 179, 182 (1985).
[20] See generally Cover, supra note 1.
[21] Id. at 60.
[22] Berman, supra note 2, at 308.
[23] See, Robert M. Cover, The Folktales of Justice, supra n. 15, 182.
[24] See, e.g., Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (Univ. of Minn. Press ed., 1984).
[25] Jean-Paul Sartre, The Imaginary: A phenomenological psychology of the imagination (Routledge ed., 2010).
[26] Exodus 7:1-6; 32:1-28 KJV(“And the Lord said unto Moses, Go, get thee down; for thy people, which thou broughtest out of the land of Egypt, have corrupted themselves: They have turned aside quickly out of the way which I commanded them: they have made them a molten calf, and have worshipped it, and have sacrificed thereunto, and said, These be thy gods, O Israel, which have brought thee up out of the land of Egypt.” Ibid., 32:7-8.
[27] 1 Samuel 8:1-9 KJV (“Then all the elders of Israel gathered themselves together, and came to Samuel unto Ramah, And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations. But the thing displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the LORD. And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them.” Ibid., 8:4-7)
[28] That sacral nomic was much in evidence in the counter-majoritarianism of Brown v. Board of Education, 347 US 483 (1954) and the cases thereafter. See generally Robert Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287 (1982) (counter-majoritarianism and the dialogue between domestic constitutional and international law; id., at 1297-1298; “The significant element in both the international law antecedent and the New Deal experience was the conceptualization of a ‘minorities problem’ that cut across the contingent experiences of any particular minority group” id.,1299 ); Robert Cover, Violence and the Word, 95 Yale L.J. 1601 (1986) (“Martyrdom, for all its strangeness to the secular world of contemporary American Law, is a proper starting place for understanding the nature of legal interpretation.” Id., 1604).
[29] Cf. Manuel Eisner, Killing Kings: Patterns of Regicide in Europe, AD 600–1800, 51 Brit. J. of Criminology 556 (2011); Marilyn Kleinberg Neimark, Regicide Revisited: Marx, Foucault and Accounting, 5 Critical Persp. on Acct. 87 (1994); Susan Dunn, The Deaths of Louis XVI: Regicide and the French Political Imagination (Princeton Univ. Press, 1994).
[30] Cf., K.R. Bolton, China and the Mandate of Heaven, 41 The J. of Soc., Pol., and Econ. Stud. 42 (2016); Giulio Magli, Sacred Landscapes of Imperial China: Astronomy, Feng Shui, and the Mandate of Heaven (Springer, 2020).
[31] Larry Catá Backer, Bannermen and Heralds: The Identity of Flags; The Ensigns of Identity, in Flags, Color, and the Legal Narrative; Public Memory, Identity and Critique (Anne Wagner et al. eds., 2020).
[32] Cover, supra note 1, at 45 (“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.”).
[33] Id. at 9 (“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.”).
[34] Id.
[35] Cover, supra note 9, at 182-83. “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.” Id. at 182.
[36] See, e.g., Larry Catá Backer, The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law, in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009).
[37] Alfred Young, The Pressure of the People on the Framers of the Constitution, in 1 Major Problems in American History 134, 135 (Elizabeth Cobbs et al. eds., 4th ed. 2017) (“The constitution was ‘intended for the ages.’ To last it had to conform to the ‘genius’ of the American people. ‘Genius’ was a word eighteenth-century political thinkers used to mean spirit: we might say character or underlying values.”). But of course, it meant more than that–it was the incarnation of the collective manifested through their customs, traditions, expectations, and values. It was Logos made flesh from out of the body of the people. John 1:1-5.
[38] “The study of the types of cultures found the world over gives the impression of an enormous diversity of forms. The differences are so great that we may be inclined to think that every one of these cultures developed quite independently and that the peculiar genius of the people has found expression in the forms under which they live.” Franz Boas, The Diffusion of Cultural Traits, 82(1) Social Research 177 (2015, originally published 1937) (arguing that the particular expression of the genius of a collective is an amalgam of indigenous and borrowed elements, thus cultural purity is a chimera). Norms, in this sense are nomadic. Cf., Ilhan Niaz, A System Suited to the “Genius” of the People: The Pursuit of a Presidential Pakistan, 1954–1969, And Its Legacy, 51(3) Asian Affairs 569 (2020). The author quotes Ayub Khan, A Short Appreciation of Present and Future Problems of Pakistan’, October 4, 1954, in The Altaf Gauhar Papers: Documents towards the Making of the Constitution of 1962. (Lahore: Sang-e-Meel, 2003): “Whilst talking about administration, there is the problem of our legal system, which is most expensive, ineffective, dilatory, tyrannical and totally unsuited to our genius ... The answer would seem to lie in having a ‘Jirga’” based “judicial system and revision of evidence and procedural laws with only one right of appeal.’” p. 53; Niaz, at 587 n2.
[39] See, e.g., Oliver P. Hauser, Francesca Gino, Michael I. Norton, Budging Beliefs, Nudging Behavior, 17 Mind and Society 15 (2018) (“Budges, we argue, are a form of intervention that systematically considers beliefs, barriers and context to create behaviour change.” Id., at 23).
[40] For an example, consider Matthias Lehner, Oksana Mont, and Eva Heiskanen, Nudging: A promising tool for sustainable consumption behaviour?, 134 Journal of Cleaner Production 166 (2016).
[41] Cover, supra note 9, at 182-83.
[42] Id. at 184.
[43] 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.
Genesis 1:26 (KJV).
[44] Cover, supra note 1, at 67.
[45] Id. at 44.
[46] Cover, supra note 1, at 68.
[47] Larry Catá Backer, Some Thoughts on The American Declaration of Independence and its Irish/European Connections at Century’s End, 8 Tulsa J. Compar. & Int’l 87, 87 (2000).
[48] See, Nico Kirsch, Framing Entangled Legalities Beyond the State, in Entangled Legalities Beyond the State 1 (Nico Kirsch, ed., Cambridge, 2021) (“the entanglements that come into focus here are primarily about mutual de facto influences and the travelling content of legal norms.” Id., at 3).
[49] Cover, supra note 9, at 198.
[50] Id.
[51] Id. at 199-202.
[52] Id. 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.”).
[53] See, e.g., Payam Akhavan, The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment, Am. J. Int’l L 501 ((1996).
[54] See, e.g., Makau Mutua, Never Again: Questioning the Yugoslav and Rwanda Tribunals, 11 Temp. Int’l & Comp. L.J. 167 (1997).
[55] See, e.g., Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds) The Rome Statute of the International Criminal Court: A Commentary vol. III (Oxford University Press, 2002).
[56] See, e.g., Alana Tiemessen, The International Criminal Court and the politics of prosecutions, 18 The Int’l J. Human Rts 444 (2014).
[57] See, e.g., Gunther Teubner, Juridification Concepts, Aspects, Limits, Solutions, in Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law 3-48 (Gunther Teubner, ed.; De Gruyter 1987); Rachel Sieder, The Juridification of Politics, in The Oxford Handbook of Law and Anthropology (Marie-Claire Foblets, Mark Goodale, Maria Sapignoli, and Olaf Zenker (eds.); Oxford University Press, 2020).
[58] 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. See generally, Michel Foucault, The Birth of Biopolitics Lectures at the Collège de France 1978-79 79-104 (Michel Senellart et al. eds., Graham Burcell trans., 2004).
[59] See Grundgesetz [GG] [Basic Law], translation https://www.gesetze-im-internet.de/englisch_gg/.
[60] See Larry Catá Backer, The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity, 17 Tilburg L. Rev. 177, 182-88 (2012).
[61] The point was made in contrasting the agonistic foundation of legal narrative (its interpretive framing) against literary interpretation in general. “Here, by sharp contrast, I am concerned with the practical considerations of normative world building for those who perpetuate or seek to perpetuate violence successfully.” Robert M. Cover, The Bonds of Constitutional Interpretation: Of the World, the Deed, and the Role, 20(4) Ga. L. Rev, 815, 817(1986).
[62] Discussed in Larry Catá 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).
[63] Here we enter the world of Chinese social credit theory and implementation. See generally, Liang et al., Constructing a Data-Driven Society: China's Social Credit System as a State Surveillance Infrastructure, 10 Pol’y & Internet 415, 415-53 (2018).
[64] See Louisiana Lightsey, Biopolitics and Globalization, Glob. S. Stud. (Aug. 17, 2017), https://globalsouthstudies.as.virginia.edu/key-concepts/biopolitics-and-globalization (providing an example of the emerging notion of biopolitics).
[65] This is an old notion in now new clothing. See generally, Larry Catá Backer, The Extra-National State: American Confederate Federalism and the European Union, 7 Colum. J. Eur. L. 173, 173-240 (2001).
[66] Explored earlier in Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn St. Int'l L. Rev. 509 (2003)
[67] See, e.g., Adam Sitze, Biopolitics and the Political Space, 9(2) Communication and Critical/Cultural Studies 217 (2012) (“Carl Schmitt, like Foucault, cites the figure of the shepherd in Plato’s Statesman as the genealogical precursor for the ministers and ministries who take charge of the health and welfare of populations in the modern administrative state.” Id., 217)
[68] See generally, Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, 21 Penn State Int’l L. Rev. 509, 509-67 (2003).
[69] See Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets, 29 Am. U. L. Rev.1, 30-46] (2013); Larry Catá Backer, Human Rights Responsibilities of State-Owned Enterprises, in Research Handbook on Human Rights and Business 223, 223-44 (Surya Deva & David Birchall eds., 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 Vand. J. Trasnat’l L. 827, 860-867 (2017).
[70] See 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 L. Rev. 881, 890-905 (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 Ind. J. Glob. L. Stud. 751, 782-800 (2011).
[71] See, e.g., Larry Catá Backer, The Problem of the Enterprise and the Enterprise of Law: Multinational Enterprises as Polycentric Transnational Regulatory Spaces, in Oxford Handbook of Transnational Law 777, 777-780 (Peer Zumbansen ed., 2021).
[72] See generally 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, 97-103 (Nico Kirsch ed., 2021).
[73] See generally Larry Catá Backer, Next Generation Law: Data Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China 28 S. Cal. Interdisc. L.J. 123, 150-170 (2018).
[74] 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, Int’l Rev. L., 2015, at 1.
[75] Tarleton Gillespie, Governance of and by Platforms, in SAGE Handbook of Social Media 254 (Jean Burges et al. eds., 2017); Larry Catá Backer, Trust Platforms: The Digitalization of Corporate Governance and the Transformation of Trust in Polycentric Space, Penn State L. (forthcoming 2021), https://ssrn.com/abstract=3895425.
[76] Backer, supra note 46, at 160.
[77] See, e.g., Who Will Govern the Metaverse? (No, It Won’t Be Facebook), XR Today 23 December 2021; available [https://www.xrtoday.com/virtual-reality/who-will-govern-the-metaverse-no-it-wont-be-facebook/] (“The metaverse is defined as a three-dimensional, virtual space where users can interact with their surroundings and each other. It has three defining properties – interoperability, universality, and a social environment – and is built on three core technologies – XR, blockchain, and artificial intelligence.”); Yiyang Bian, Jiewu Leng, and J. Leon Zhao, Demystifying Metaverse as a New Paradigm of Enterprise Digitization, in Big Data 2021 (10th International Conference Held as Part of the Services Conference Federation, SCF 2021 Virtual Event, December 10–14, 2021, Proceedings 109 ( Jinpeng Wei, Liang-Jie Zhang (eds.), Springer 2’021): See also Daniel D. Bretone, Bernard Quinio, and Gilbert Reveillon, Bridging virtual and real worlds: enhancing outlying clustered value creations, 18(7) Journal of Strategic Marketing 613, 620-624 (2010).
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