Normative Jurisprudence and Cover’s “Obligation: A Jewish Jurisprudence of the Social Order”
posted by Amy Uelmen
My reading of Normative Jurisprudence coincided with a re-reading of one of my all-time favorite pieces, Robert Cover’s Obligation: A Jewish Jurisprudence of the Social Order (it is included in the wonderful reader by Howard Lesnick, Religion in Legal Thought and Practice that I assign for my “Religion and the Work of a Lawyer Seminar”).
In this very short essay, Cover opens up the categories of jurisprudence to recognize the integrity of religious systems of thought and the contribution that they can bring precisely in this integrity. Asked to reflect on Judaism and human rights, he has the courage to say: “the categories are wrong”—because “Judaism has its own categories for expressing through law the worth and dignity of each human being.” In his analysis, discussions about jurisprudence do not need to be stuffed into, or reduced to, the categories and frameworks of philosophical liberalism. Within the field of jurisprudence, there is space to explore other “fundamental words” and the “fundamental stories” from which those words receive their force and meaning.
As he tells the “stories” behind two different key words, “rights” and “mitzvah” (obligation), Cover sets an appreciative, conversational tone. Because each system of rhetoric has a differently “loaded, evocative edge,” each goes to the nub of different problems. Each has strengths and weaknesses, but there is room and need for both—“Sinai and social contract both have their place.”
He concludes with a reflection on where the “loaded, evocative edge” is in his own personal and religious experience. Scanning his own “privileged position” and the blessings in his own life, Cover concludes “it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights.”
With Cover’s piece in the background, first a rhetorical appreciation for Robin’s work: to me, her Normative Jurisprudence project has “feel” similar to Cover’s essay – a capacity to appreciate and engage the depth of common key questions, while at the same time respecting profound differences, and also realizing that systems of thought can converse without polarizing or collapsing into each other.
Second, a question about categories and frameworks, in light of the project “to develop a liberal and progressive natural law jurisprudence” (57): Considering Robin’s concerns about the moral obligations of legislators, and the question of what a legislator ought to do with the lawmaking power that one has (“We do not have a way of even asking, let along answering, what law that we currently lack legislators might have a positive moral duty to enact”) (37) – at what point might these kinds of questions and concerns in some sense push the project off the map of what is “liberal”?
Amy Uelmen
October 23, 2012 at 10:43 am
Posted in: Symposium (Normative Jurisprudence)
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Responses (4)
A.J. Sutter - October 23, 2012 at 11:32 am
This post makes a nice point; and for me, at least, there’s even a nuance of difference between the rhetoric of mitzvah and that of obligation, maybe something like the difference between those mutual contemporaries, Immanuel Kant and the Baal Shem Tov. But can we also push the project off the map of Western religion? I live in Japan, and neither arguments based on Catholic doctrine nor on Torah are likely to be very persuasive for most people. From this perspective, it’s difficult to hear talk of “natural” law without feeling that what people are actually talking about is tied to very specific cultures and religions, and that the use of “natural” comes across as a bit ignorant or worse. (Arguments based on Buddhist tradition might have slightly better traction in Japan, but I suspect people here would hesitate to brand those with the confident generic term “natural.”)
If one were to describe the gist of normative jurisprudence to, say, vaguely animist/vaguely Buddhist Japanese, or to atheist Chinese, among others with little knowledge or sympathy for Western religious traditions, what kind of vocabulary could one use? Or should we openly acknowledge that “natural” is simply narrower than what it purports to be?
Patrick S. O'Donnell - October 23, 2012 at 1:17 pm
A.J.
“Natural” can denote and connote several different things in the natural law traditions of philosophy and I think the more clearly “secular” versions can be universalized (going as far back as the Stoics) in a way that nonetheless finds educated members of the major religious worldviews of Asian provenance (here I speak of them in a fairly abstract and stylized or idealized sense, not so much as the actual praxis of their adherents ‘on the ground’ as we say) can countenance (i.e., reason toward, endorse, etc.), much like they’ve done with the concept of human rights. Axiomatially, natural law propositions make assumptions (or possess presuppositions) about human nature and a “moral order” that is somehow intrinsic to, related to, or derived from some larger natural or cosmic order. The factual-seeming and evaluative claims of natural law propositions are best thought of in modal terms and thus, in the words of one of my teachers, are “often about what a human being MUST be assumed to be, or how human beings MUST be treated if we are to assign abiding, universal, and meaningful statue to being human; that is, it we are to regard all human beings (biologically defined) as rational and moral agenst, or if we are to differentiate decisively between the human and other species of being without detaching man entirely from nature.” The concept of “must” could be said to render things metaphysical (as it passes beyond presently verifiable experience in some respects), but it is capacious or open enough in formulation and implication so as not to preclude assent from the fundamental beliefs and values of most if not all of the major religious worldviews, all of which are likewise involved in the ambitious endeavor to make sense of how we might at least plausibly if not persuasively combine notions of “is,” “ought,” and “can” (existence, norm, and potentiality). In relying on conceptions of “man” and human nature as well as a cosmological and moral order, natural law propositions can explicity or implicity refer to “generally shared (or shareable) notions of human self-awareness, felt needs and ideals, common feeling of deprivation, self-alienation, and moral autonomy, as well as mutually recognizable signs of striving after a deeper and larger fulfillment than is capable of conceptualization.”
A.J. Sutter - October 23, 2012 at 7:52 pm
Thanks, Patrick. BTW, I’ve tried to teach here from Cicero’s De legibus, and it leaves my Japanese students cold. (So far, I’ve been teaching about natural law in its political context, rather than a jurisprudential one; even the Declaration of Independence gets a better response.) One can express natural law ideas in modal terms, but then when asked “how do you know?,” theologians or guys in togas are usually dragged in; an alternative like Kant is a slight improvement, but also rather dry. Maybe one solution is to avoid the word “natural,” whose connotations are too presumptuous, and, as Amy has suggested to me in an email offline, to be more explicit about the tradition one is relying on. This might make it easier to suggest that there are analogous ideas in other cultures, rather than One-size-fits-all.
Patrick S. O'Donnell - October 23, 2012 at 8:15 pm
I certainly would draw on the Confucian corpus, Daoist texts, Buddhist literature, and so on by way of illustrating similarities and differences. I’m reluctant to abandon the word “natural” simply because it does make reference to a history of theories and ideas rather than, say, constructing some term afresh. And I’m not sure a natural law philosophy need rely on any one tradition. Again, I think the analogy with “human rights” is apropos. In any case, much to think about on all sides….
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