Tuesday, March 08, 2005
(2:52 PM) | Old - Doug Johnson:
Part 2 of Covering Agamben's Use of "Critique of Violence"
[This text was originally written with my wife Jodie Boyer in the summer/fall of 2003 as part of a larger project. I have eliminated all footnotes except one. If you'd like further bibliographical references, please ask.]Every year, for its first issue, the Harvard Law Review asks an outstanding Constitutional scholar to review the previous Supreme Court term. In 1983 the task fell to Robert Cover a remarkable scholar from Yale’s law school. The most prominent Supreme Court case that term involved a challenge to a ban on interracial dating at Bob Jones University. The IRS had revoked Bob Jones’s tax exempt status and the university went to court (Bob Jones University v. United States) in an attempt to overturn the IRS’s ruling. The case made it all the way to the Supreme Court. In all likelihood, Robert Cover was chosen to review this particular term because of his academic and political work on racism. The book that put him on the map academically was Justice Accused: Antislavery and the Judicial Process. Cover, a Jew, had also gone to jail while working with the civil rights movement as an undergraduate, and continued to actively protest such evils as apartheid as a professor.
In spite of his revulsion to racism, Cover treated Bob Jones’ position with a great deal of sympathy. Cover’s review, entitled “Nomos and Narrative,” was astounding for a number of reasons. Nomos and Narrative brought together a wide range of sources legal and literary, philosophical and historical. In addition, Cover delightfully exegeted Biblical inheritance narratives, made extensive use of rabbinic literature, treated the history of Anabaptist relations with the state from 1525 to the Wisconsin v. Yoder Supreme court case, and even quoted from Karl Barth. It almost goes without saying that such was unusual fair for the Harvard Law Review.
Rather than simply rendering the Greek word nomos as law, Cover began Nomos and Narrative with a much broader definition: “We inhabit a nomos–a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.” Cover develops a concept of law or nomos that “requires no state.” Rather than requiring a particular nation on a particular plot of land to flourish, Cover takes it that legal worlds can and are created in a variety of cultural settings. In our time, nation-states merely happen to be the most successful at imposing their legal meanings upon those who reside in their territory. For Cover, Law is not merely a collection of rules to be obeyed, but rather “a world in which we live” – hence the title of Cover’s article. If law is seen as merely a body of rules, then law might be treated in abstraction from historical and cultural narratives in which those rules are born and interpreted. As is the general rule in American law, nation-states often pretend as if they can interpret and enforce laws without reference to or an attempt to control the narratives in which those laws are interpreted.
As an instance of a non-statist nomos, Cover points toward Jews who have long inhabited a narrative world created and sustained by Torah. Here an interesting parallel between the thought of St. Paul and Cover should be drawn out. Both insist that a primary function of Torah is as pedagogue. However, Cover simply celebrates the fact that “Torah as law is pedagogic” and shares none of Paul’s concern that it has been outgrown (Paul’s Greek word paidagōgos does not have quite the same meaning as Cover’s English cognate). Cover’s thoughts on Torah as pedagogue come in the midst of contrasting “two corresponding ideal-typical patterns” of law. Here Nomos and Narrative is worth quoting at length:
"The first such pattern, which is … world creating, I shall call “paideic,” because the term suggests: (1) a common body of precept and narrative, (2) a common and personal way of being educated into this corpus, and (3) a sense of direction and growth that is constituted as the individual and his community work out the implications of their law. Law as Torah is pedagogic. It requires both the discipline of study and the projection of understanding onto the future that is interpretation. Obedience is correlative to understanding. Discourse is initiatory, celebratory, expressive, and performative, rather than critical and analytic. Interpersonal commitments are characterized by reciprocal acknowledgements, the recognition that individuals have particular needs and strong obligations to render person-specific responses. Such a vision, of course, is neither uniquely rabbinic nor ancient. The vision of a strong community of obligations has also been at the heart of what the Christians conceive as the Church."
This ‘paideic’ type of Nomos is contrasted with imperial law and imperial virtues where, among other things, “[i]nterpersonal commitments are weak” and there is only a minimal effort to refrain from coercion and violence. Cover describes with great enthusiasm how particular groups or ‘insular communities’ create and maintain paideic legal worlds that have their own traditions of legal interpretation and often even their own legal sources that at times place them at odds with the dominant ruling body.
Here Cover’s observations on the inextricable relationship between rules and the narratives that give them life are particularly potent. Cover, who came to accept the violence of the American legal system, shocked several of his colleagues and friends at the end of his life when he refused to oppose the death penalty. This should have come as no surprise to those who knew his thinking. For Cover, the death penalty and imprisonment are not the only ways that American law exercises violence. Cover believed that American law is inextricably violent. Laws are bound up in their historical settings; it is impossible to treat law separately from the wars that nation-states fight in order to maintain their political hegemony. (Here and following we are taking liberties with Cover’s section on “‘Jurispathic’ Courts.” Cover’s treatment does not specifically spell out what he means with respect to war, but his intent in this regard is unmistakable.) As such, when the Supreme Court rules on any matter (the Bob Jones interracial dating ban and its IRS status as tax exempt or on compulsory education for Mennonite children or even on matters of contract law) the history of the American Revolution, violent takeover of Native American territory, the Civil War, World War II, and Vietnam all have their place in giving meaning to its legal opinions. All of these wars, perhaps to varying degrees, played a role in establishing and maintaining the jurisdictional territory of the United States Supreme Court. An obvious example is the Civil War where numerous Constitutional questions including the nature of the Union, states-rights, the meaning of personhood, and the legality of slavery were ultimately decided on numerous ensanguined battlefields. Today, narratives from this war are still potent in Northern lore and Southern imagination and are continually revisited in a whole gamut of Constitutional debates and discussions.
Cover uses the immediate example of Bob Jones v. U.S. to shine a high beam on jurisdictional matters. Cover was disappointed that the U.S Supreme Court did not simply admit that it ruled against Bob Jones because it was working from a narrative that believes that racial equality is as an important goal and that the court can be the vehicle of redemption in such matters. In fact, the Court rarely makes explicit its jurisdictional claims. If writing today Cover might have discussed the narrative of compromised ‘homeland security’ that undergirds the treatment of many alleged terrorists, regardless of the constitutionality of such action. Cover argues that, although often buried well below the surface, jurisdictional issues are always close at hand when courts pass judgment. With rare exception the U.S. Supreme court can easily shirk its responsibility to deal with such issue because it is backed ferociously by an enormous and diffuse bureaucratic machinery that constantly makes use of violence in support of its jurisdiction.
For Cover, it is inconceivable that a nation-state’s jurisdictional claims should be granted automatic moral superiority to other, insular communities’ jurisdictional claims. In fact, in Nomos and Narrative Cover displayed a definite preference for non-statist communities that are strongly committed to their legal sources and interpretation. Cover believed that communities that are willing to thumb their noses at powerful, statist courts are often at the forefront of creating bridges to better worlds (the essential, redemptive element of law according to Cover). With such jurisdictional matters in hand, Cover brought his analysis to fruition in splendid, though somewhat underdeveloped, criticisms of both the Supreme Court (Cover believed the court should have boldly announced that it would use its violently backed jurisdiction to declare tax exemption unconstitutional for racially discriminatory institutions) and Bob Jones (Cover took Bob Jones’ commitment to its racist Biblical interpretation to be weak since they had already compromised and changed their rules three times).
Nomos and Narrative is in many ways a freewheeling, unfinished literary gem. Lurking as heroes in Cover’s criticism of Bob Jones’ weak commitment to Biblical interpretation are the traditions of Jewish law and Anabaptist (particularly Amish and Mennonite) communities. Cover showed great admiration in Nomos and Narratives for the willingness of Mennonites to sell their farms and move to another country if the ruling in Wisconsin v. Yoder had interpreted the Constitution to require or allow the state to compel them to violate their Christian duties. Still, Anabaptist legal practices are, to say the least, underdeveloped, especially when held up to the standard of Jewish law (sources to which Cover was devoting increasing attention before his untimely death).
We believe that the legal system of diaspora Judaism provides an alternative to the violent jurisprudence of nation-states. Nation-states enforce their legal boundaries by war, reassert their values through civil war and civic protest, and maintain their laws through police forces, magistrates, and militias. For eighteen centuries Judaism enforced its moral boundaries by a thick, Torah derived identity, reaffirmed its communities’ values through Talmudic debate, and maintained their laws’ jurisdictional force solely through moral suasion. As these Jew steadfastly kept the Law the Law kept them. In Eurasia, America, and Europe, diaspora Jews were able to maintain a distinctive identity. Better than many Christian churches, they lived in this world as resident aliens.[1]
Recently, New Testament scholars have been exploring the anti-imperial character of Paul’s doctrine of the church in I Corinthians and the ways in which he uses halakah (Jewish law) in his letters to gentile converts. We do not find these features of the letter to be coincidental. These two themes are naturally inclusive of each other. In combating idolatry, either in the form of sexual immorality or in participation in pagan feasts, Paul is enjoining the Corinthians to not only live as an ekklesia set a part from the rest of empire, but also to understand themselves as yhwh’s people. Indeed, for Paul the Corinthians lived at the apocalyptic cusp of time. Standing on the far side of the turning point in salvation history, he encouraged them to live as a people who realize that the God of Israel does not countenance play with idols. Thus, Paul warns them to steer clear of idol meat eaten in the temples and, by extension, the social networking that occurred in the banquets and fetes where this meat was served. Moreover, since the old order with its rulers and powers is passing away, Paul commanded the Corinthians to pick judges from amongst themselves to settle disputes within their church community.
The idea of choosing judges from the church to decide our disputes seems strange to most of us. Yet, for those of us committed to the Gospel as nonviolent, Cover’s work brings with it penetrating questions. Moreover, Nomos and Narrative opens up a previously unforeseen vista: the possibility of Torah as a powerful way to witness to and resist fallen, imperial powers. Of course, there is a seemingly impregnable obstacle to Christians taking this tract; the letters of the apostle Paul have long been taken by Christians to strictly forbid the use of Torah as law. Is such a reading still necessary? Most definitely, no. But I will again have to content myself with a reference to my long promised post regarding Romans 9-11 and I Corinthians 8:1-11:1. At least now I think such a reading has been properly prepared.
[1] Such statements should not be seen as committing us to the position that Jews ought to have intentionally remained diasporized in the aftermath of World War II. Such judgments cannot be made hastily by those of us who are heirs to a tradition that has a long history of Jewish persecution. On the other hand, we are not suggesting in this note that Christians ought to turn a blind eye to the plight of Palestinians. In fact, we would simply like to reserve our opinions on this thorny matter until another time.
