Analysis
The two paragraphs I have chosen to analyze from Robert Cover’s article, “Nomos and Narrative” (1983), juxtapose “paideic” and “imperial” forces in order to encapsulate their unique dynamic within American jurisprudence. To expound on this, Cover first establishes the two opposing forces that form a nomos, or the laws, customs, and norms governing a society. On one hand, he presents the paideic, based on voluntary community participation and borne from shared beliefs. In contrast, he depicts the imperial, upheld by formal institutions and lacking consistent normative underpinnings.
Despite the fact that the two forces differ, Cover uses identical language to describe them. He writes, “the paideic is an etude on the theme of unity. Its primary psychological motif is attachment” and then explains that “the imperial is an etude on the theme of diversity. Its primary psychological motif is separation” (16). By plugging the characteristics of paideic and imperial forces into identical sentence structures, Cover posits these as two sides of the same coin. They are similar in function, aiming to create a nomos and elicit desired behaviors. Yet, they are radically different in their methods of achieving this purpose. In the aforementioned pair of sentences, the obvious juxtapositions between paideic and imperial and their characteristics—unity and attachment versus diversity and separation—advance this goal while adding nuances on the forces’ roots in homogeneity and heterogeneity, respectively.
This framing of the opposite nature of paideic and imperial is essential to the argument Cover makes across this article. He offers a diverse array of evidence, from ancient Israel’s Torah-based communities to modern court cases like Bob Jones University v. United States. All the examples have something in common: conflict between paideic and imperial forces. Employing varied examples unified by a shared theme, Cover weaves a narrative thread through his paper centered on the eternal tug-of-war between these forces. These paragraphs establish the antithetical relationship between paideic and imperial.
The juxtapositional framework Cover employs is also rhetorically valuable. Desiring clarity and connection, readers are typically receptive to rhetorical techniques that make complex passages digestible and even moving. Cover’s depiction of the paideic-imperial relationship plays into this idea by featuring both dichotomies and narratives. Posing the seemingly intimidating question “How does a nomos form?”, he boils the answer down to two approachable terms with opposite meanings. Binaries are easy to grasp, reducing big ideas down to two concepts and identifying a clear, conflicting relationship between said concepts. For Cover, this conflict is also instrumental in establishing a narrative, as readers respond viscerally to stories. By presenting the history of law as a struggle between these two forces, Cover compels readers to actively engage with jurisprudence and intently follow this adversarial saga lasting millennia.
To highlight this clash in action today, Cover shines a spotlight on the United States, which enjoys a remarkably balanced mixture between the two fundamental nomos-forming forces. American law features a distinctive contrast, endowed with imperial “social organization of legal precept” yet paideic “social organization of the narratives” (Cover 16). This means that while the institutions that create law are predominantly imperial, the narratives surrounding legal text are under paideic control. Once again, the identical usage of “social organization” underscores the similar role that the paideic and imperial play in different aspects of the American nomos, even amid their opposite natures.
Such a hybrid nomos cannot be taken for granted. The American duality can be distinguished from the Amish communities Cover later describes, which are largely paideic not only in their formation of narratives, but also their organization of law. On the other side of the spectrum, American jurisprudence is distinct from a country like Ghana, featuring almost absolute imperial control over the nomos. This is evident from Cover’s depiction of the 1979 Ghanaian coup, where meaningful resistance to military rule primarily came through judicial opposition and imperial institutions. The Amish and Ghanaian examples both highlight nomoi dominated by a single force, depriving Cover of the paideic-imperial conflict he finds so fascinating and justifying his focus on a more diverse nomos.
Thus, Cover’s focus on the American nomos and its duality is necessary to properly capture the paideic-imperial clash. On paper, a “systematic hierarchy […] that conforms all precept articulation and enforcement to a pattern of nested consistency” seems irreconcilable with any paideic force (Cover 17). Yet, coexisting with that regimented formation of formal law lies “radically uncontrolled patterns that constitute the dynamic between precept and material universe” (Cover 17). Those narratives shape how citizens view and engage with the law. Consequently, though political elites largely shape the initial precepts that form law, society retains control over the stories and culture that give the law its meaning.
There are two key characteristics that Cover identifies that form this equilibrium between imperial and paideic.
The first is the gradual establishment of American political-legal mythos and culture, granting the words of the imperial law meaning through associations with historical icons. These icons can range from ideas like the American Dream to figures like Thomas Jefferson. Cover demonstrates this by depicting Roger Williams and Jefferson’s views of church and state as referenced in court cases to this day. True to Cover’s point about “no necessary pattern of acquiescence,” these references show the varied sources of legal meaning that form after significant political history (17).
Just as important to the equilibrium is the “radical message of the first amendment” (Cover 17). Within the First Amendment of the US Constitution lie two key rights supporting paideic narrative-building. For one, religious freedom allows the formation of paideic religious communities like the Amish and jeopardizes total imperial control. Secondly, free expression empowers the public to voice their visions and challenge government efforts to monopolize control of the nomos. Instead of allowing governmental control, the First Amendment promotes pluralism by placing narrative-building in “the domain of Babel” (Cover 17). In referencing Babel, the biblical story depicting the fragmentation of language and culture, Cover asserts that legal meaning can emerge from many different corners of society. Despite associations of Babel with a discombobulated jumble of cultures, Cover argues in a footnote that Babel “suggests not incoherence but a multiplicity of coherent systems” (17). This reference entrenches the powerful role of a diverse populace in the formation of legal meaning.
Cover’s framing of the adversarial paideic-imperial relationship defining American jurisprudence is timeless; it resonates decades after the publication of Nomos and Narrative. For example, in the 2020 Supreme Court case McGirt v. Oklahoma, despite clear language from Congress defending Indian autonomy, the government of Oklahoma felt persuaded by the paideic mythos of Manifest Destiny to exercise jurisdiction. This illustrates the perpetual tug-of-war between imperial and paideic forces.
Excerpt
From Nomos and Narrative by Robert Cover (pg 16-17):
The paideic is an etude on the theme of unity. Its primary psychological motif is attachment. The unity of every paideia is being shattered — shattered, in fact, with its very creation. The imperial is an etude on the theme of diversity. Its primary psychological motif is separation. The diversity of every such world is being consumed from its onset by domination. Thus, as the meaning in a nomos disintegrates, we seek to rescue it—to maintain some coherence in the awesome proliferation of meaning lost as it is created—by unleashing upon the fertile but weakly organized jurisgenerative cells an organizing principle itself incapable of producing the normative meaning that is life and growth.
In the world of the modern nation-state—at least in the contemporary United States—the social organization of legal precept has approximated the imperial ideal type that I have sketched above, while the social organization of the narratives that imbue those precepts with rich significance has approximated the paideic. We exercise rigid social control over our precepts in one fashion or another on a national level. There is a systematic hierarchy—only partially enforced in practice, but fully operative in theory — that conforms all precept articulation and enforcement to a pattern of nested consistency. The precepts we call law are marked off by social control over their provenance, their mode of articulation, and their effects. But the narratives that create and reveal the patterns of commitment, resistance, and understanding — patterns that constitute the dynamic between precept and material universe — are radically uncontrolled. They are not subject to any formal hierarchical ordering, no centralized, authoritative provenance, and no necessary pattern of acquiescence. Such is the radical message of the first amendment: an interdependent system of obligation may be enforced, but the very patterns of meaning that give rise to effective or ineffective social control are to be left to the domain of Babel.
Works Cited
Cover, Robert M. “Nomos and Narrative.” Harvard Law Review, vol. 97, Nov. 1983, pp. 16–17.
United States, Supreme Court. McGirt v. Oklahoma. Docket no. 18-9526, 9 July 2020.