I. INTRODUCTION
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 (4).
No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning (4).
Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live (4-5).
The normative universe is held together by the force of interpretive commitments (7).
We construct meaning in our normative world by using the irony of jurisdiction, the comedy of manners that is malum prohibitum, surreal epistemology of due process (8-9).
The [legal] tradition includes not only a corpus juris, but also a language and a mythos - narratives in which the corpus juris is located by those whose wills act upon it (9).
Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative (9).
one constitutive element of a nomos is the phenomenon George Steiner has labeled “alternity”: “the ‘other than the case’, the counterfactual propositions, images, shapes of will and evasion with, which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence.” (9).
A nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our visions of alternative futures. A nomos is a present world constituted by a system of tension between reality and vision (9).
By themselves the alternative worlds of our visions—the lion lying down with the lamb, the creditor forgiving debts each seventh year, the state all shriveled and withered away—dictate no particular set of transformations or efforts at transformation (9).
law gives a vision depth of field, by placing one part of it in the highlight of insistent and immediate demand while casting another part in the shadow of the millenium. Law is that which licenses in blood certain transformations while authorizing others only by unanimous consent (9).
law is that which holds our reality apart from our visions and rescues us from the eschatology that is the collision in this material social world of the constructions of our minds (10).
II. LEGAL WORLDS AND LEGAL MEANING
The nomos that I have described requires no state (11).
the creation of legal meaning—“jurisgenesis”—takes place always through an essentially cultural medium (11).
A. JURISGENESIS
The universalist virtues that we have come to identify with modern liberalism, the broad principles of our law, are essentially system-maintaining “weak” forces (12).
[there are] two corresponding ideal-typical patterns for combining corpus, discourse, and interpersonal commitment to form a nomos (12).
-
world-creating, paideic: (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 or growth that is constituted as the individual and his community work out the implications of their law (12-13).
-
world-maintaining, imperial: norms are universal and enforced by institutions. They need not be taught at all, as long as they are effective. Discourse is premised on objectivity - upon that which is external to the discourse itself (13).
It is the problem of the multiplicity of meaning . . . that leads at once to the imperial virtues and the imperial mode of world maintenance (16).
The paideic is an etude on the theme of unity. Its primary psychological motif is attachment. . . . The imperial is an etude on the theme of diversity. Its primary psychological motif is separation.
Thus, as the meaning [paideia] in a nomos disintegrates, we seek to rescue it . . . by unleashing upon the fertile but weakly organized jurisgenerative cells an organizing principle [empire] itself incapable of producing the normative meaning that is life and growth (16).
the social organization of legal precept has approximated the imperial ideal type (16).
the social organization of the narratives that imbue those precepts with rich significance has approximated the paideic (16).
there is a radical dichotomy between the social or- ganization of law as power and the organization of law as meaning (18).
The uncontrolled character of meaning exercises a destabilizing influence upon power (18).
B. THE THICKNESS OF LEGAL MEANING
But in every instance in the Bible in which succession is contested, there is a layer of meaning added to the event by virtue of the fact that the mythos of this people has associated the divine hand of destiny with the typology of reversal of this particular rule (22).
Every legal order must conceive of itself in one way or another as emerging out of that which is itself unlawful (23).
this conception is the mythic or narrative restatement of the positivist’s concept of the rule of recognition or Grundnorm (23).
Revelation and (to a lesser extent) prophecy are the revolutionary challenges to an order founded on revelation (23).
Secession is the revolutionary response to an order founded on consent or social contract (23-24).
The return to foundational acts can never be prevented or entirely domesticated (24).
The biblical narratives always retained their subversive force - the memory that divine destiny is not lawful (24).
C. THE CREATION OF CONSTITUTIONAL MEANING
Each group must accommodate in its own normative world the objective reality of the other (28-29).
Ultimately, it is the state’s capacity to tolerate or destroy this self- contained nomos that dictates the relation of the Amish community to its political host (30).
The point that is relevant here is not only that private lawmaking takes place through religious authority, contract, property, and corporate law (and of course through all private associational activity), but also that from time to time various groups use these universally accepted and well-understood devices to create an entire nomos—an integrated world of obligation and reality from which the rest of the world is perceived. At that point of radical transformation of perspective, the boundary rule—whether it be contract, free exercise of religion, property, or corporation law—becomes more than a rule: it becomes constitutive of a world (31).
Typically, however, communities with a total life-vision, a nomos entirely of their own, find their own charters for the norm- generating aspects of their collective lives (32).
The state’s explicit or implicit acknowledgment of a limited sphere of autonomy is under- stood from within the association to be the state’s accommodation to the extant reality of nomian separation. Such an acknowledgment is welcome as a preventative of suffering, but it does not create the inner world (32).
Sectarian communities . . . construct their own myths, lay down their own precepts, and presume to establish their own hierarchies of norms. More importantly, they identify their own paradigms for lawful behavior and reduce the state to just one element, albeit an important one, in the normative environment (33).
Associations, then, are a sword as well as a shield (33).
It is this social organization, not the datum of identity of interest, that requires the idea of liberty of association (34).
redemptive constitutionalism: the positions of associations whose sharply different visions of the social order require a transformational politics that cannot be contained within the autonomous insularity of the association itself (34).
Redemption takes place within an eschatological schema that postulates: (1) the unredeemed character of reality as we know it, (2) the fundamentally different reality that should take its place, and (3) the replacement of the one with the other (34).
Utopian constitutionalism such as that envisioned by the radicals has as its raison d’etre the transformation of the conditions of social life. It arises out of the utopian’s inability to bear the dissonance of the lawfulness of the intolerable, and it is therefore, like all nomic eschatology, extremely unstable (39).
If law reflects a tension between what is and what might be, law can be maintained only as long as the two are close enough to reveal a line of human endeavor that brings them into temporary or partial reconciliation (39).
All utopian or eschatological movements that do not withdraw to insularity risk the failure of the conversion of vision into reality and, thus, the breaking of the tension. At that point, they may be movements, but they are no longer movements of the law (39).
D. JURISPATHIC COURTS
In an imaginary world in which violence played no part in life, law would indeed grow exclusively from the hermeneutic impulse—the human need to create and interpret texts (40).
the jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence (40).
Interpretation always takes place in the shadow of coercion (40).
in myth and history the origin of and justification for a court is rarely understood to be the need for law. Rather, it is understood to be the need to suppress law, to choose between two or more laws, to impose upon laws a hierarchy (40).
the classic apology for a national supreme court in The Federalist: “To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. . . . If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the Judges of the came [sic] court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice” (41).
The supreme tribunal removes uncertainty, lack of clarity, and difference of opinion about what the law is (42).
different interpretive communities will almost certainly exist and will generate distinctive responses to any normative problem of substantial complexity (42).
theorists . . . the general justice of the political structure of which the courts are a part . . . Professor Owen Fiss: In what ways is the interpretation of the judge uniquely authoritative? There are two answers to this question …. [First, a] judicial interpretation is authoritative in the sense that it legitimates the use of force against those who refuse to accept or otherwise give effect to the meaning embodied in that interpretation.
The second sense of authoritativeness . . . stresses not the use of state power, but an ethical claim to obedience—a claim that an individual has a moral duty to obey a judicial interpretation, not because of its particular intellectual authority . . ., but because the judge is part of an authority structure that is good to preserve (43).
The challenge presented by the absence of a single, “objective” interpretation is . . . the need to maintain a sense of legal meaning despite the destruction of any pretense of superiority of one nomos over another (44).
By exercising its superior brute force, however, the agency of state law shuts down the creative hermeneutic of principle that is spread throughout our communities. The question, then, is the extent to which coercion is necessary to the maintenance of minimum conditions for the creation of legal meaning in autonomous interpretive communities (44).
III. COMMITMENT
a legal interpretation cannot be valid if no one is prepared to live by it (44).
Creation of legal meaning entails, then, subjective commitment to an objectified understanding of a demand (45).
Narrative is the literary genre for the objectification of value (45).
A. UNOFFICIAL INTERPRETATION
the proliferation of legal meaning is at odds, however, with the effort of every state to exercise strict superintendence over the articulation of law as a means of social control (46).
- The Special Case of Civil Disobedience. The decision to act in accord with an understanding of the law validated by the actor’s own community but repudiated by the officialdom of the state, including its judges, is commonly understood as a decision to engage in justifiable disobedience (46).
judges characteristically do not have to use their own blood to create meaning; like most power wielders, they usually write their bloodier texts in the bodies of the inmates of the penal colony. But the fact that all judges are in some way people of violence does not mean they rejoice in that quality or write their texts lightly (47).
- Commitment and the Problem of Violence. Justice Brandeis: “silence coerced by law — the argument of force in its worst form” (48).
the coercive dimension of law is itself destructive of the possibility of interpretation (48).
The creation of legal meaning [paideia] cannot take place in silence (49).
Whenever a community resists a rule of silence or some other law of the state, it necessarily enters into a secondary hermeneutic — the interpretation of the texts of resistance (49).
Bentham failed to recognize that texts of resistance, like all texts, are always subject to an interpretative process that limits the situations in which resistance is a legitimate response (50).
In interpreting a text of resistance, any community must come to grips with violence. It must think through the implications of living as a victim or perpetrator of violence in the contexts in which violence is likely to arise (50).
the understanding of law is the projection not only of what we would in fact do under different circumstances, but also of what we ought to do. And we commonly believe situations of violent interaction to be dominated by special principles and values. The invocation of these special principles, values, and even myths is a part of the hermeneutic of the texts of resistance (50).
Just as living in the economic world entails an understanding of price, so living in the normative world entails an understanding of the measures of commitment to norms in the face of contrary commitments of others (53).
B. THE ACT OF COMMITMENT FROM THE POINT OF VIEW OF THE JUDGES
Judges are people of violence. . . . Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest (53).
judges are also people of peace. Among warring sects, each of which wraps itself in the mantle of a law of its own, they assert a regulative function that permits a life of law rather than violence (53).
The resistance of a community to the law of the judge, the community’s insistence upon living its own law or realizing its law within the larger social world, raises the question of the judge’s commitment to the violence of his office (53).
In the face of challenge, the judge — armed with no inherently superior interpretive insight, no necessarily better law — must separate the exercise of violence from his own person (54).
The only way in which the employment of force is not revealed as a naked jurispathic act is through the judge’s elaboration of the institutional privilege of force — that is, jurisdiction (54).
The significance of the jurisdictional principles through which courts exercise violence is that they separate the exercise of the judge’s authority or violence from the primary hermeneutic act that that exercise realizes. . . . The court ultimately responsible for the interpretation need never commit itself separately to the proposition that the particular interpretation warrants violence. It is the regime of obedience — of state superiority — that warrants the violence (55).
[obedience] subordinates the creation of legal meaning to the interest in public order (55).
Even when wrong, the judge is to act and is entitled to be obeyed (55).
the judge is to be aggressive in confronting private resistance, because his authority will be vindicated even if in error (55).
equity is “strong” when the court is aligned with state violence and “weak” when the court is a counterweight to that violence. The result in all cases is deference to the authoritarian application of violence, whether it originates in court orders or in systems of administration. Law, even constitutional law, succumbs to the hermeneutic of jurisdiction (56).
The jurisdictional principles of deference are problematic precisely because, as currently articulated by the Supreme Court, they align the interpretive acts of judges with the acts and interests of those who control the means of violence (57).
[in the Supreme Court there is a] hierarchical ordering of authority first, and to interpretive integrity only later (58).
The logic of the judge’s practice of justifying his violence through a commitment not to the end that the violence serves in the particular case, but to the structure of jurisdiction need not have the largely state-serving implications it generally has today (58).
It is possible to conceive of a natural law of jurisdiction that might supplant the positivist version I have described. In elaborating such a law of jurisdiction, a judge might appeal to narratives of judicial resistance. . . . He might thus defend his own authority to sit in judgment over those who exercise extralegal violence in the name of the state (59).
It is easier by far to pursue the positivist hermeneutic of jurisdiction (60).
IV. THE IMPERIAL VIRTUES
Precisely because the school is the point of entry to the paideic and the locus of its creation, the school must be the target of any redemptive constitutional ideology (66).
Through education, the social bonds form that give rise to autonomy, to the jurisgenerative process. In education are the origins of the processes in which “law” is given meaning (66).
authority is vindicated without the expression of judicial commitment to principle that is embodied in constitutional decision. . . . The insular communities deserved better — they deserved a constitutional hedge against mere administration. And the minority community deserved more — it deserved a constitutional commitment to avoiding public subsidization of racism (67).
Judges are like the rest of us. They interpret and they make law (67).
They do so in a niche, and they have expectations about their own behavior in the future and about the behavior of others (67).
The statist impasse in constitutional creation must soon come to an end. When the end comes, it is unlikely to arrive via the Justices, accustomed as they are to casting their cautious eyes about, ferreting out jurisdictional excuses to avoid disrupting the orderly deployment of state power and privilege (67).
Legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence. We ought to stop circumscribing the nornos; we ought to invite new worlds (68).