Robert Cover's 'Nomos and Narrative': The Court as Philosopher King or Pontius Pilate?

Abstract

This paper suggests that Robert Cover`s project of distancing courts from state violence is doomed to failure. Disagreements between the nomoi postulated by Cover are matters of incommensurable value judgements, in relation to which legal rationality is inappropriate. Disagreement between nomoi is more plausibly regarded as a matter of feeling rather than rationality and expressed by the notions of the sublime and the beautiful as advanced by Edmund Burke. Furthermore, according to Cover`s premise, the nomos of a community can be externally evaluated only from the perspective of another nomos so that the notion of an objective standpoint apparently represented by Cover`s `imperial community` seems to be contradictory. The notion of a court with a `committed constitutionalism` of its own but having no privileged status also seems contradictory since it allows judges to wash their hands of responsibility for their decisions (in a manner reminiscent of Pontius Pilate). If this is so, then the court is not the most appropriate mechanism to make choices between competing value systems and violence may be avoided only by appealing to sentiment as the basis for a modus vivendi. This approach reflects Cover`s insistence that a community is held together by non-rational factors and may provide the basis for a more vibrant democratic political process.