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Published online by Cambridge University Press: 24 April 2015
The fabric of life was torn in a way I could not comprehend on the summer afternoon in 1986 when I learned that Robert Cover had died. In the midst of the shock, I recalled the special presence he brought to us at Hamline during a week's residency in October 1985. There was something very special, and difficult to name, in his quiet manner and depth of commitment, as he worked with us in colloquia and classrooms. He invited dialogue in a way that brought students to speak out of their experience, not simply out of their heads. I had heard of Cover's special classroom manner, but the experience of it spoke to me in a way that words could not duplicate. I came to see his writings in a new light. My mind then turned to the provocative work Cover embarked on in his 1983 article entitled Nomos and Narrative. What would become of that? Where might it have led him— and us along with him? Silence was all I had to offer in response. And yet, a thought kept occurring to me: beyond the imaginative character and analytical brilliance of Nomos, something else of significant importance was emerging in that work and those that followed. Did others sense it, or was I simply projecting onto Cover's work my own yearning for some respite from what seemed to be the desperation in recent legal scholarship?
1. Cover, , The Supreme Court. 1982 Term—Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)CrossRefGoogle Scholar.
2. While these ideas are found in several places in Bonhoeffer's prison writings, see especially the letters from Tegel prison in Berlin of April 26, May 5, and July 16 & 18, 1944, in Bonhoeffer, D., Letters & Papers from Prison: The Enlarged Edition at 278–82, 285–87, 357–63 (Bethge, E. ed. 1971)Google Scholar.
3. Cover, supra note 1, at 11-19 (jurisgenesis), 9-10 (alternity), 40-44 (jurispathic).
4. Cover, supra note 1, at 4-6 (footnotes deleted).
5. This idea is elaborated in a beautiful set of essays collected in White, J.B., Heracles Bow (1985)Google Scholar; for a specific reference to this idea see pp. x & 52.
6. Lest the reader be led to take this as a romantic apologia for any “people's story”, let me make clear that it is the significance of the story that I am trying to emphasize here and its relation to law. I am not claiming the story to be a story of justice. Indeed, the story is likely to have several (many?) elements of injustice within in it that nonetheless are part of the story. Thus, slavery is part of the American people's story, and continues to be so. The important role of slavery in American law can be seen in such infamous decisions as Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); and Plessy v. Ferguson, 163 U.S. 537 (1896). The problem continues to be addressed in our day. See, e.g., City of Richmond v. J.A. Croson Co.,—U.S.—, 109 S. Ct. 706 (1989).
7. The themes of Nomos are nascent in Cover's early work. Eg. Book Review, 68 Colum. L. Rev. 1003 (1968) (reviewing Hildreth, R., Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression (1856)Google Scholar); Book Review, New Republic, Jan. 14, 1978, at 26 (reviewing Berger, R., Government by Judiciary: The Transformation of the Fourteenth Amendment (1977))Google Scholar; Justice Accused: Antislavery and the Judicial Process (1975). Some of the themes of Nomos are explicitly developed, however, in three later works: The Folktakes of Justice: Tales of Jurisdiction, 14 Cap. U.L. Rev. 179 (1985)Google Scholar; Violence and the Word, 95 Yale L.J. 1601 (1986)CrossRefGoogle Scholar; The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 Ga. L. Rev. 815 (1986)Google Scholar. To a lesser degree, these themes can be found in the unfinished work published posthumously as Bringing the Messiah Through Law: A Case Study, in Nomos XXX: Religion, Morality and the Law (Pennock, R. & Chapman, J. eds. 1987)Google Scholar.
8. See, e.g., Garet, , Meaning and Ending, 96 Yale L.J. 1801 (1987)CrossRefGoogle Scholar; Lukinsky, , Law in Education: A Reminiscence with Some Footnotes to Rober Cover's Nomos and Narrative, 96 Yale L.J. 1836 (1987)CrossRefGoogle Scholar; Fitzgerald, , Towards a Modern Art of Law, 96 Yale L.J. 2051 (1987)CrossRefGoogle Scholar; Cornell, , “From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation” (unpublished paper delivered at the Second Annual Hamline University School of Law Symposium on Law, Religion, and Ethics, 10 26, 1989)Google Scholar.
9. For a similar argument in constitutional theory, see Brest, , The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L.J. 1063 (1981)CrossRefGoogle Scholar.
10. I am indebted to Douglas Sturm for this phrase. Sturm, , Lawyering and the Need for a Public Philosphy, II Christian Leg. Soc'y Qtrly. 12 (1981)Google Scholar.
11. Michael Perry makes this point in his most recent book, Morality, Politics & Law: A Bicentennial Essay 151–60 (1988)Google Scholar.
12. Sturm, supra note 10, at 12.
13. Id.
14. Id.
15. Id.
16. Vining, J., The Authoritative and the Authoritarian 3 (1986)Google Scholar.
17. Id.
18. Id. at 3-4.
19. Cover, R., Justice Accused: Antislavery and the Judicial Process 197–256 (1975)Google Scholar.
20. Cover, , The Folktales of Justice; Tales of Jurisdiction, 14 Cap. U.L. Rev. 179 (1985)Google Scholar.
21. Cover, , Violence and the Word, 95 Yale L.J. 1601 (1986)CrossRefGoogle Scholar; Cover, , The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role, 20 Ga. L. Rev. 815 (1986)Google Scholar.
22. Cover uses this term in Nomos, supra note 1, at 9.
23. Cover, , Obligation: A Jewish Jurisprudence of the Social Order, 5 J. Law & Relic 65 (1987)CrossRefGoogle Scholar.
24. In light of the frequent citation of this phrase, it is well to remember Tillich's own description of what he meant by this term. Tillich used this term in the development of his two formal criteria for every theology. In doing so he defined the two terms of the phrase as follows:
The religious concern is ultimate; it excludes all other concerns from significance; it makes them preliminary. The ultimate concern is unconditional, independent of any conditions of character, desire, or circumstance. The unconditional concern is total: no part of ourselves or of our world is excluded from it; there is no “place” to flee from it. The total concern is infinite: no moment of relaxation and rest is possible in the face of a religious concern which is ultimate, unconditional, total, and infinite.
The word “concern” points to the “existential” character of religious experience. We cannot speak adequately of the “object of religion” without simultaneously removing its character as an object. That which is ultimate gives itself only to the attitude of ultimate concern. It is the correlate of an unconditional concern but not a “highest thing” called “the absolute” or “the unconditioned,” about which we could argue in detached objectivity. It is the object of total surrender, demanding also the surrender of our subjectivity while we look at it.
Tillich, P., 1 Systematic Theology 11–12 (1951)Google Scholar.
25. Cover, supra note 1, at 9 and 40.
26. Id. at 40.
27. Cover, supra note 20, at 181.
28. At this point Cover's work leads me to hope for a faith in law that departs from the defense recently undertaken by Owen Fiss. See Fiss, , The Death of Law?, 72 Cornell L. Rev. 16 (1986)Google Scholar. The stakes are high, as Fiss suggests, but they cannot be faced with integrity by identifying certain contemporary movements in legal theory (e.g., feminism and Critical Legal Studies) as dangerous.
29. White, supra note 5.
30. Levinson, S., Constitutional Faith 191–94 (1988)Google Scholar.
31. Sanford Levinson, among others has recognized this clearly. See, e.g., his refusal to engage in “Platonic royal lying” in the profession of law in the classroom, id. at 172; see also the extended statement of his position, at 168-79.