Normative Jurisprudence and Cover’s “Obligation: A Jewish Jurisprudence of the Social Order”
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”?