Document Type

Article

Publication Year

1999

Journal Title

William and Mary Law Review

Abstract

The world is bubbling over with law. As the late Robert Cover tells us in Nomos and Narrative, it springs up about us incessantly and inexorably in a spontaneous riot of luxuriant foliage. It bursts forth not from gods or kings or parliaments or courts but from the normative universe--what Cover calls the nomos --of each group within a society, a process he calls "the creation of legal meaning" or "jurisgenesis." As there are unnumbered groups in society, all with their unique nomoi, all jostling each other, the very air is alive with divergent legal meanings on every contested issue in the law. For any such issue there may be a dozen, a hundred, or a thousand legal meanings clamoring for attention, each claiming to be the one true meaning.

The purpose of this Article is not to evaluate Cover or to discuss whether his views would lead to results that the reader might find good, bad, or indifferent. Nor is this piece, for present purposes, interested in his moral insights or his prescriptions for a radicalized new and better world. Instead, its goal is more focused: to explore whether Cover's insight has any potential relevance to the questions of what law is and what judges do. To begin to answer those questions, it is necessary to do what Cover did not: develop his insight analytically into a model for how the process of jurisgenesis would work. The context for this exercise comes from looking briefly at the relationship of Cover's insight to one very narrow slice of jurisprudential theory--the debate over what judges do in hard cases.

Part I of this Article explains the central points of Cover's analysis in Nomos and Narrative and puts them in the context of a much older tradition of legal pluralism that is in some respects closer to medieval legal theory than to modern jurisprudence. This context is necessary to understand the model as it is subsequently developed. Part II of the Article is a necessary detour. It very briefly summarizes the three most influential modem explanations of what judges do when they decide hard cases, and it shows how the idea of group jurisgenesis differs from each. This background is necessary to understand Part III, which is the core of the Article. Part III is a lengthy reconstruction of the concept of jurisgenesis into a theory--albeit a very incomplete one--that I call the "jurisgenetic model." This model locates the source of law not in the traditional sovereign or judge or in the apparatus of a government, but in the people and groups who live and breathe the law and in whom legal meaning is ultimately developed. Through this bottom-up approach to law, this part explores the issues of how nomic groups develop legal norms, how those legal norms come to be enforced by the state, and how the recursive process of legislation, judicial decisionmaking, and group norm-formation leads to the dynamic process we call a legal system. Part IV concludes with a brief discussion of how the jurisgenetic model relates to the three dominant strains of modern jurisprudential thought: positivism, natural law, and legal realism.

First Page

1623

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