Robert Cover and Legal Pluralism - Redux

Abstract

This short essay meditates on and reconsiders Robert Cover’s distinct vision of legal pluralism in the light of today’s political and legal environment. In a 2013 talk, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3302988, I discussed three dimensions of Cover’s legal pluralism: its centering of narrative, its frank focus on state violence and non-state resistance in the encounter of legal orders, and its important insight that non-state communities could articulate and defend their own distinct accounts of the state’s legal order. Each of these ideas looks different today than it did even a few years ago. The narrative of the moment is a specific form of polarization that threatens to hollow out whatever nomos comes within its expanding orbit. The state today is no longer just an imperial ruler asserting its will over smaller scale, paedeic communities, but an increasingly fragile legal order that has become deeply vulnerable to a jurispathy from below. And the scholarly effort to chart the complex dynamics of legal encounter can verge on looking precious in the light of our current brokenness. Nevertheless, it remains vital to take up Robert Cover’s challenge and continue to try to search for an account of nomos and narrative that can make sense of both richly thick communities and atavistic teams, of both imperial states and fragile polities.

Keywords: Robert Cover, legal pluralism, law and narrative, law and society, Nomos and Narrative, polarization, religious liberty, religion based exemptions, January 6