Law & Humanities Blog |
| The Influence of Robert M. Cover Posted: 17 Oct 2013 07:58 AM PDT Roy Andrew Partain, Soongsil College of Law, has published Ecologies of Paideic Law: Environmental Law and Robert M. Coverʼs Jurisprudence of 'Nomos and Narratives' , at 24 Hanyang Law Review 423 (2013). Here is the abstract. This article provides an extensive introduction to the legal philosophy of Robert M. Cover and begins a discussion on how his principles of jurisgenesis could be applied in environmental law. This article suggests that a deeper appreciation of Cover's jurisprudence could better assist in the development of climate change legislation. |
A 'hard' case exists when both sides of an adversarial courtroom can provide sound legal support for their arguments; Dworkin posited that jurisprudence is simply the investigation of how judges resolve that conflict. Whereas Hart, Kelsen and Dworkin saw a shortage of law, of a need to explain how law was created by judges, Cover concluded to the contrary that law actually existed in over-supply and that judges act to eliminate surplus laws to resolve 'hard' problems.
Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations 'nomos', borrowing from the Greek language for 'law'. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.
A legal scholar, in Cover's world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar's nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary's jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.
This article provides a preliminary example of Cover's theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover's theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover's theories could be applied to climate change legislation.
Donwload the article from SSRN at the link.
Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations 'nomos', borrowing from the Greek language for 'law'. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.
A legal scholar, in Cover's world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar's nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary's jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.
This article provides a preliminary example of Cover's theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover's theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover's theories could be applied to climate change legislation.
Donwload the article from SSRN at the link.
| You are subscribed to email updates from Law & Humanities Blog To stop receiving these emails, you may unsubscribe now. | Email delivery powered by Google |
| Google Inc., 20 West Kinzie, Chicago IL USA 60610 | |
