The Legal Universe After Robert Cover

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Abstract:

The idea that law consists of a set of rules emanating from a sovereign authority is so ingrained in our ordinary ways of thinking about the law that Robert Cover's metaphor of the law as a nomos or universe of meaning may appear as surprising and suggestive today as when he first announced it. One of the aims of this essay is to explore Cover's metaphor as a paradigm of law alternative to those proposed by the most influential legal philosophers of the last century.

The analysis is divided into four main sections. Part one speaks of the nomos as an entity and elucidates its constitutive elements, structure, and growth. I show that 'narrative' bridges the seemingly unbridgeable gap between is and ought and gives us a glimpse into how norms acquire their specific normative grip. Part two deals with two contrasting ways in which normative universes interact with the larger social world, the insular and the redemptive. Part three considers the possibility of clashes among diverse nomic entities and the adjudication of 'hard cases'. Part four brings this discussion to the context of the European Court of Human Rights, in light of a recent decision concerning the dissolution of the Basque separatist party Herri Batasuna. I conclude with suggestions that might direct legal theory in a different direction, with the purpose not of enclosing law in a set of 'necessary and sufficient' truths about its nature, but rather of opening it up for further exploration.

Document Type: Research Article

Publication date: June 1, 2010

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  • Law and Humanities is a peer-reviewed journal, providing a for for scholarly discourse within the arts and humanities around the subject of law. For this purpose, the arts and humanities disciplines are taken to include literature, history (including history of art), philosophy, theology, classics and the whole spectrum of performance and representational arts. The remit of the journal does not extend to consideration of the laws that regulate practical aspects of the arts and humanities (such as the law of intellectual property). Law and Humanities is principally concerned to engage with those aspects of human experience which are not empirically quantifiable or scientifically predictable.
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