Who's Afraid of Jurispathic Courts?

“As against the constitutional politics of the state, Cover associates legal meaning almost invariably with “autonomous interpretive communities.” These communities can be insular and turn away from the state. Or they can be redemptive and attempt to capture the state. But if and when they do come to the levers of government power, they seemingly lose their association with nomos” (10).

“law, when it emanates from the state, “takes place in a field of pain and death”” (10).

“The violence of the law undermines the voluntary affirmation of meaning required by nomos and interpretation” (10).

“Cover portrays the state as unrelentingly evacuated of meaning, as exhausted by bureaucratic and administrative structures” (11).

“judges . . . use the force of the state to crush the competing nomoi of autonomous communities” (11).

“[the state is not jurisgenerative. This] sterility is a good thing, however, because a government that sought to impose “a statist paideia” would be positively dangerous. It would use violence to crush and displace the autonomous communities where nomos is actually forged” (12).

“The state is not uniquely jurispathic; every nomos exists by virtue of its exclusion and denial of competing nomoi. Jurispathology is in this sense built into the very sociology of human meaning” (13).

“we must ask how multiple communities, with their competing and mutually jurispathic nomoi, can live together” (13).

“Cover’s refusal to acknowledge the distinctive nomos of liberalism follows from a dilemma in which he was ensnared: If liberalism is its own nomos, and if liberalism is necessary in order to preserve the small autonomous communities that Cover finds so appealing, then the nomos of liberalism acquires a special kind of logical priority. But Cover is unwilling to recognize this priority, because he is concerned to insist upon plural worlds of equal nomoi” (13).

“Cover cannot adequately theorize how these plural worlds can continue to co-exist, apart from the “weak” virtues of a “system-maintaining” empire” (13).

“The potential nomos of liberalism is thus reduced to “an organizing principle itself incapable of producing the normative meaning that is life and growth, and courts are concomitantly characterized as merely “jurispathic”” (13).

“At their worst, courts solve the problem of proliferating nomos by suppressing the multiplicity of laws; at their best they tolerate jurisgenerative communities by exercising the negative virtue of freedom of association” (13).

“All nomoi . . . are jurispathic, because all construct their narratives by excluding and suppressing other possible narratives” (14).

“The problem with the courts is not that they are jurispathic, but rather that they are violent, and it is the connection to the organized violence of the state that most deeply troubles Cover and leads him to doubt the possibility of a true statist paideia” (14).

“Cover evidently believes that at its core the state will always turn soulless bureaucrat, violently imposing its arbitrary will” (14).

“Cover’s refusal to theorize public reason seems a great blind spot of Nomos and Narrative” (15).

“a belief in the potential of public reason seems the only path forward” (16).

“I myself can never quite shake the nagging fear that Cover may have seen more deeply than I care to acknowledge” (16).