Mirror of Justice

Professor Judith Resnik has a new paper, "Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover", that looks to be very interesting and thought-provoking.  Here (sorry for the length) is the abstract:

Law in action is a familiar phrase in legal circles that have come to accept that law on the books does not necessarily mean its translation into life. But lawmaking through community action is less commonly perceived to be plausible in liberal secular nation-states such as the United States. Although the production of law is seen as an artifact of social and political movements (as well as a tool to organize them) and legal interpretation is understood to be affected by political views, law is also presumed to have some autonomy from politics and social movements. Given these assumptions, official organs within a polity - such as courts, legislatures, and the executive - can be readily identified as the lawmakers, and members of that polity who seek to change law are channeled into certain routes to address those authoritative figures.

That vision of law is incomplete, as was powerfully explained by Robert Cover in "Nomos and Narrative." Cover aspired to expand the inquiry (and hence our understanding) of legal actors and processes to encompass a normative universe . . . held together by the force of interpretative commitments - some small and private, others immense and public. Within Cover's frame, such community lawmaking is not aberrational but commonplace.

The distinction between, as well as the conflation of, public and private obedience depends upon two factors: the form taken by communal or religious obligations and the content of a nation-state's laws. Some people (the majority in social orders described as secular) are committed to sub-communities or religions that segregate acts of affiliation by placing them primarily inside households or special buildings (churches, synagogues, clubs) and by limiting the performance of certain obligations to special days or places. For members of such groups, the tension between their private affiliations to particular communities of culture and their conformance to the norms of a liberal nation-state is not acute. In contrast, if one adheres to a community or a religion in which one must always, for example, wear a head covering, fast during daylight hours for a month-long span, or say prayers several times a day, the capacity to separate one's communal obligations from one's role as a member of a nation-state diminishes. At times, direct conflict erupts.

A central example of such tensions for Robert Cover - writing in the early 1980s - came from the Supreme Court decision addressing the practices of Bob Jones University, a Christian religious organization that was unaffiliated with a particular denomination and that ran a school for children as well as a university. The University had an unusual reading of Christian scriptures, interpreted to forbid interracial dating and marriage. Because of Bob Jones' racist policies, the Internal Revenue Service withdrew the University's exemption from federal taxes, and the University protested. A contemporary illustration (with important differences) of contestation between the norms of the liberal-state and those of communities of affiliation is the debate about whether Muslim girls living in France may wear headscarves in public schools.

What is instructive about the full exploration of the conflict about Bob Jones is that it produced more than a decade of contestation inside the United States government about what its own anti-racist norms entailed. That occasion for conflict within and between the nation-state and paideic community eventually produced the revelation of each legal regime's commitments. By the time the case reached the Supreme Court, anti-segregationist premises - that is to say, rejection of explicit racial segregation - had already become an embedded and unself-conscious facet of American truth. The moment for frank acknowledgement of American law's jurispathic powers had passed because the particular form of racism embraced by Bob Jones University had already become implausible.

Thus, this essay offers a reading of Bob Jones different from those of Bob Cover. I conclude by taking up an issue that Cover did not: conflict within paideic communities about their own practices and authoritative interpretations. I return to the practice of veiling, as well as address the question of federal toleration of patrilineal membership rules, as I argue that today's central conflicts involve contestation from within. This aspect is often obscured as debates are posited to exist between a homogenous self (such as the United States or the West) and an undifferentiated other (be it Indian tribes, Islam, or the veil). Twenty-five years after "Nomos and Narrative," our central issues are whose voices within paideic communities are heard by which speakers of the secular order's power.

For starters, those interested in Professor Resnik's discussion would likely also appreciate a relatively recent article by Madhavi Sunder, "Piercing the Veil", in which she considers (among other things) the law's stance toward disagreements within Islam touching on women's human rights.  (I also took up some of the questions considered by Resnik and Sunder in this article on the "state's interest in the development of religious doctrine").

Now, Professor Resnik notes (above) that "our central issues are whose voices within paideic communities are heard by which speakers of the secular order's power."  These tricky "issues" often surface -- as readers are probably aware -- in religious-freedom cases:  If there is an intra-church dispute about, say, the selection of a minister, or a stance on a moral question, who "speaks for" that church if the dispute finds its way into the arena of "the secular order's power" (e.g., a courtroom)?  And, even if we (properly, in my view) accept that, in cases involving religious communities with their own clearly identified structures of authority, the "secular order" should -- out of respect and concern for religious freedom -- refuse to "look behind" those structures, what do we do about disputes within communities that lack such structures?