[T]here seems to be a genus of which State and Corporation are species. They seem to be permanently organized groups of men; they seem to be group-units; we seem to attribute acts and intents, rights and wrongs to these groups, to these units. Let it be allowed that the State is a highly peculiar group-unit; still it may be asked whether we ourselves are not the slaves of a jurist's theory and a little behind the age of Darwin if between the State and all other groups we fix an immeasurable gulf and ask ourselves no questions about the origin of species.(1)
-- Frederic William Maitland
[W]ithin the domain of constitutional meaning, the understanding of the Mennonites assumes a status equal (or superior) to that accorded to the understanding of the Justices of the Supreme Court. In this realm of meaning--if not in the domain of social control--the Mennonite community creates law as fully as does the judge.(2)
-- Robert M. Cover
The world is bubbling over with law. As the late Robert Cover tells us in Nomos and Narrative, it springs up about us incessantly and inexorably in a spontaneous riot of luxuriant foliage.(3) It bursts forth not from gods or kings or parliaments or courts but from the normative universe--what Cover calls the nomos(4)--of each group within a society, a process he calls "the creation of legal meaning" or "jurisgenesis."(5) As there are unnumbered groups in society, all with their unique nomoi, all jostling each other, the very air is alive with divergent legal meanings on every contested issue in the law. For any such issue there may be a dozen, a hundred, or a thousand legal meanings clamoring for attention, each claiming to be the one true meaning.
When a judge faces a question in which legal meaning is contested, therefore, the problem is not, as is usually said, that there is a "gap" in the law or that the law is "unclear." Rather, there is simply too much law--a host of meanings competing for recognition. Under this view, the judge does not "make" law to fill a gap, but rather plucks one existing meaning from the host available. The role of the judge therefore is purely negative. It is "jurispathic,"(6) or law-killing, in the sense that the judge will select one of the squalling brood of conflicting legal meanings to elevate and to enforce with the violence of the state--and will slay the rest.
If this is a valid way of looking at what happens when a judge decides a case, there are some significant implications for legal theory. For if law is best seen as arising from some place other than presidents, legislatures, and courts, and if it arises as naturally as breath out of the activities of groups that share a normative universe ("nomic groups"), then standard models built upon top-down structures that presuppose a single, determinable system of law in a polity--whether based on positivist Grundnorms,(7) on derivation from some form of natural reason, or on forcible imposition by a dominant hierarchy--may all fail to capture exactly what occurs during the process of adjudication.
The importance of this idea of jurisgenesis has been noted repeatedly. Nomos and Narrative is one of the most heavily cited law review articles of recent years,(8) and it has been called "seminal,"(9) "pathbreaking,"(10) "brilliant,"(11) and "compelling."(12) No one to date, however, has looked closely at Cover's central insight--placing the origin of legal meaning within nomic groups--to see where, or if, it might fit into a more general theory of what law is and what judges do.
To be sure, there have been some serious and valuable discussions of the fundamental issues that Cover raises.(13) One of the strands of his thought has been appropriated, more or less unrecognizably, in the cause of Frank Michelman's civic republicanism.(13) Cover's insistence on the inherent importance and dignity of nomic groups has done steady, if unspectacular, rhetorical service in contexts that chiefly involve religious groups(15) and Native Americans,(16) and it also has surfaced in some theoretical postmodernist work.(17) Finally, some of his unusual terminology has begun to slip into the legal lexicon.(18) For the most part, though, his work has been used tactically to claim additional dignity for a party or to provide a little rhetorical punch--Cover bristles with vivid metaphors--to particular contentions. No one has tried to fit Cover's insight into a larger theory of law.(19)
There are several possible reasons why this has not been done, all of them unrelated to the importance of Cover's insight that legal meaning originates from nomic groups. First, Cover himself made no effort to do anything of the sort, perhaps because of his untimely death,(20) but more likely because his interests lay elsewhere.(21) Second, Nomos and Narrative manages to be both stridently political and oddly metaphysical, as well as couched in language that is not always easy to follow. That mixture perhaps has led readers to underestimate its significance in the more analytical and less overtly polemical world of traditional jurisprudence. Third, its politics are radical-left, which means that those who do not share its vision of the bloody, violent, imperial American state probably have not engaged it as deeply as they might. Fourth, those who share Cover's politics--and are thus most likely to be receptive to his writings--have tended in recent years to cluster in the critical camps and have by and large abandoned the idea of any grand, overarching legal theory.(22) Fifth, even if those who shared Cover's politics were to attempt such a scheme, it seems unlikely that they would be attracted by a theory that--as noted below(23)--implicitly recognizes that racists, religious fundamentalists, and right-wing private militia groups may have nomoi that are worthy of respect.(24)
The purpose of this Article is not to evaluate Cover or to discuss whether his views would lead to results that the reader might find good, bad, or indifferent. Nor is this piece, for present purposes, interested in his moral insights or his prescriptions for a radicalized new and better world. Instead, its goal is more focused: to explore whether Cover's insight has any potential relevance to the questions of what law is and what judges do. To begin to answer those questions, it is necessary to do what Cover did not: develop his insight analytically into a model for how the process of jurisgenesis would work. The context for this exercise comes from looking briefly at the relationship of Cover's insight to one very narrow slice of jurisprudential theory--the debate over what judges do in hard cases.
Part I of this Article explains the central points of Cover's analysis in Nomos and Narrative and puts them in the context of a much older tradition of legal pluralism that is in some respects closer to medieval legal theory than to modern jurisprudence. This context is necessary to understand the model as it is subsequently developed. Part II of the Article is a necessary detour. It very briefly summarizes the three most influential modern explanations of what judges do when they decide hard cases, and it shows how the idea of group jurisgenesis differs from each. This background is necessary to understand Part III, which is the core of the Article. Part III is a lengthy reconstruction of the concept of jurisgenesis into a theory--albeit a very incomplete one--that I call the "jurisgenetic model." This model locates the source of law not in the traditional sovereign or judge or in the apparatus of a government, but in the people and groups who live and breathe the law and in whom legal meaning is ultimately developed. Through this bottom-up approach to law, this part explores the issues of how nomic groups develop legal norms, how those legal norms come to be enforced by the state, and how the recursive process of legislation, judicial decisionmaking, and group norm-formation leads to the dynamic process we call a legal system. Part IV concludes with a brief discussion of how the jurisgenetic model relates to the three dominant strains of modern jurisprudential thought: positivism, natural law, and legal realism.
It has been suggested in recent years that the current debate on the nature of law--once a fundamental question not only for philosophers but for legal writers and citizens--has reached a dead end and has become largely meaningless.(25) If so, a vision that looks at these questions from a new angle--from the bottom up(26)--may give a fresh perspective on how to think about what judges do and why we care about it.
Robert Cover had a vision: an image of gore-spattered American judges wielding the violence of the imperial state against the weak and the outcast in a "field of pain and death."(27) He also had an insight: a picture of laws as ontic entities arising naturally from the differing normative universes of various groups. It is apparent that the insight arose from the vision. Cover was vitally concerned about the interaction of the state with marginal groups--no doubt heavily influenced by his experiences in the South while working in the civil rights movement in the 1960s(28)--and the core of Nomos and Narrative is his attempt to demonstrate that the norms of such groups are anterior to those of the state, the only juristic function of which, he claimed, was to select one or another of the preexisting norms to support with the violence (his word) of the state.(29) By denying that the state creates norms, and hence laws, Cover argues the primacy of smaller groups as jurisgenerative entities.(30)
Social Constructs and World-Creation
Modern and postmodern legal thought consistently has stressed the constructed and artificial nature of law, its contingency, and its origins in human choice.(31) Cover agrees that law is a social construct, in the sense that creation of legal meaning "takes place always through an...