Uncertain justice
Chapter 5 The main argument of the book is now taking shape. It implies that there are always ethical elements in legal meaning. The idea is that in the absence of linguistic criteria, the space for choices of meaning is always there, and this opens up legal interpretation to responsibility. We can also express this thought in another way: the search for linguistic criteria on which to found legal interpretations takes us eventually to ethics. Language is essentially communication and requires a will to understand, to enter the hermeneutic circle and to welcome the other speaker, be that person present in the space and time of the listener or absent. The meanings that language is full of are shared in our life as (legal) speakers, writers, listeners and interpreters. Therefore, something exists to base our legal meanings on, but it is not something certain, calculable or easily defined. Ethics as the foundation of meaning is a very peculiar kind of ethics. From it follow neither rules nor other clear methods for legal interpretation. Nevertheless, ethics is significant in interpretation in a concrete way. Deciding on particular interpretations and choosing which interpretations are better than others are political as well as ethical matters. To say that ethical elements always stand behind meaning is not to say very much. That an inbuilt responsibility is always at play whenever language is used and a text interpreted is not a sufficient place for a theory of legal interpretation to stop. Moreover, the idea of legal interpretation having to do with ethics probably does not strike the reader as very novel. Many have argued that law and ethics, or law and morality, are essentially combined. Is there then something new in the way the ethics of legal meaning is argued here? Costas Douzinas and Adam Gearey write in Critical Jurisprudence, that ‘[a]gainst the positivist lack of interest in ethics, the interpretative scholars assert that the law is all morality and that judicial interpretation implies or leads to an ethics of legal reading’ (Douzinas and Gearey 2005: 8). What else is done in this book than just what these writers claimed in 2005 that the ‘interpretative scholars’, namely Dworkin, James Boyd White and others, have already done? The problem with these scholars’ view, according to Douzinas and Gearey, is that they do not acknowledge that the legal system represents the dominant ideology of society and that before and after the meaning-giving act, law is force. Law’s meaning coerces, they claim. It is naïve to present law as exclusively textual and ethical (Douzinas and Gearey 2005: 8–9). So, the basic critique, which has to be taken seriously, is that when stressing the ethics of legal interpretation we downplay the power, force and violence included in it. I will try to answer that critique in this chapter. It is evident that ethics immediately also opens up room for politics, and this is an idea that the two levels of the ethics of interpretation developed here takes into account. And even though I argue that legal interpretation includes a twofold ethicity, this does not lead to an absolution. As for the novelty of the approach of this book, the effort here is to elaborate the twofold nature of responsibility in a way that takes into account both the text and the situation. By turning our attention to the second element of the ethics of reading, that is, the situation in which the reading takes place, we turn our attention to the where and when of interpretation. This element is no less important than the simple commanding ‘I must’ that shapes every reading. When we focus on legal interpretation with its special features, it may be that the connections of interpretation to places, times and legal cases are most important. What sets legal interpretation apart from other ways of reading is its role and function in society at large. The interpretation of legal texts has intensely concrete consequences. Here, the close relationship between interpretation and application also becomes apparent. From this point of view, where interpretation is closely tied to historical, social and political factors, the question arises: Is the ethical nature of legal interpretation an always-present fact, something inevitable? The answer is twofold. As inscribed in the general structure of how language and communication work, interpretation is always ethical in the sense that an ethical attitude, a welcome, is the condition of possibility of meaning. However, this is simply a welcome towards what the text wants to say; it does not define meaning. The situational element of the ethics of reading imposes on the interpreter the difficult task of deciding on a certain meaning and deciding the case. This happening is also loaded with responsibility. It is conditioned by ethical demands that are at the same time political and social. Interpretation in this situational sense is a challenge that the interpreter has to face every time. When we say that interpretation always means a choice, cannot we also assert that legal interpretation is only political, in the sense of being governed by powerplay, the ideology of the strongest group, etc?1 The twofold ethics presented here does not allow such an abrupt conclusion. Even though we connect legal interpretation with choices that are ethical, it need not imply subjective and arbitrary decisions. And just because there are power relations involved, it does not mean that legal interpretation is just politics. The text and the welcome are still there. Besides, theories that construct legal interpretation this way say too much. One can argue that if every decision is biased or subjective, then no decision is, and there is no way of criticising decisions on this ground. Thus the question of justice becomes impossible, or rather, justice disappears altogether. A theory of legal interpretation should be able to say something about how and on which conditions a particular act of legal interpretation is just or unjust or at least more just than another act. Of course this implies that the demand for justice is taken to be a built-in premise of law. This is not something that this book aims to prove. Rather, it is taken for granted as an axiom. Law should be just, and it is hard to see how any theoretical account of law could deny this. The challenge that the demand for justice places on law is indeed great, as was seen already in the discussion of Levinas’s theory. Throughout the practice of law this need for justice is echoed, from legislation to legal decision-making. The structure of the argument connected with justice in this book is that in order for legal interpretation to be able to take justice into account, it has to include ethical elements. It is ultimately through the idea of justice that interpretation gets its purpose. It is also through reference to justice that legal interpretations can be criticised. For sure, legal interpretation is united with power and force. This chapter discusses these issues. There are scholars who think that there is no room for a belief in justice in the strategic power-play that law actually is. Others think that law simply cannot be just because of its general character. Interestingly enough, some of the discussions get their inspiration, at least partly, from Levinas. The idea is that law can never be like ethics, in which we are obliged to take full responsibility for the other person. This is a slightly different approach to law’s tragic nature than the one presented above according to which the law always ends up being a violent system because language founds legal interpretation on emptiness. In his classic essay on law and justice titled ‘Force of Law: The “Mystical Foundation of Authority”’, Derrida discusses the possibility of justice. This is an interesting text for many reasons. It has become important in critical legal theory and been an inspiration for critical and deconstructive accounts of law (see, for example, Cornell et al. 1992; Wolcher 1996; Hirvonen 2001; Goodrich et al. 2008a; de Ville 2009a).2 Although the text has been commented a lot, it is nevertheless still enigmatic. There are some issues that are of particular interest to us here. Derrida starts by asking what deconstruction has to do with justice. Does it somehow insure, permit, or authorise the possibility of justice? Does it permit justice, or does it constitute a threat to law, right and justice? Perhaps what makes deconstruction problematic and even frustrating is that it deconstructs. It deconstructs things we would like to believe in. In the feld of legal interpretation, it is precisely the absence of rules and clear criteria that contribute to the crisis of interpretation. Derrida agrees: deconstruction torments because of the absence of rules and defnite criteria that would allow one to distinguish unequivocally between law (droit) and justice (Derrida 1992c: 4). Derrida says that he cannot offer any response to the question of whether deconstruction permits or threatens justice. There cannot be an either/or answer. It is too simple to formalise the question in such a ‘yes or no’ way. What is interesting in Derrida’s essay, and what makes it an important essay for our topic, is that he discusses language at length. He even says that the question of language and idiom is at the heart of the discussion (Derrida 1992c: 5). He maintains that deconstruction, at least in his own texts, has indeed been concerned with justice. Discourses on double affirmation, the gift beyond exchange and distribution, the undecidable, the incommensurable or the incalculable, or on singularity, difference and heterogeneity are through and through, although perhaps obliquely, discourses on justice. In fact, he reckons that deconstruction might be more at home in law schools than in philosophy or literature departments. Studies that tackle law and politico-institutional problems are, according to him, from a certain viewpoint most fertile and also most necessary. Deconstruction should not remain enclosed in a purely academic or theoretical discourse but intervene also in the cité, the polis and the world (Derrida 1992c: 7–9). The expression ‘force of law’ implies that law always carries within itself the possibility of its being enforced, that is, applied by force. Even if there are laws that are not enforced, there is no law without enforceability. Applicability or enforceability is not some exterior supplement added to law but implied in the concept of law. Law is always connected to authorised force. How can we distinguish between this force of the law and an unjust force? What difference is there between a force that can be just and violence that is unjust? What is a just force? (Derrida 1992c: 5–6). Derrida says that the expression ‘to enforce the law’ reminds us that: […] if justice is not necessarily law (droit) or the law, it cannot become justice legitimately or de jure except by withholding force or rather by appealing to force from its first moment, from its first word. (Derrida 1992c: 10) We can distinguish between law and justice in the sense that justice requires force because there are also wicked people who do not follow justice if it is not enforced, and in the sense that law is not the same as justice, as one obeys laws because they have authority. There are two structures that can be discerned here. The first is the way law hides and reflects the economic and political interests of the dominant forces in society. The second, and which is more important, is another, more intrinsic structure beyond the first one. Derrida says: The very emergence of justice and law, the founding and justifying moment that institutes law implies a performative force, which is always an interpretative force: this time not in the sense of law in the service of force, its docile instrument, servile and thus exterior to the dominant power, but rather in the sense of law that would maintain a more internal, more complex relation with what one calls force, power or violence. (Derrida 1992c: 13) Law implies an internal force or power when it justifies itself. This performative force is an interpretative force. Does this mean that there is always a structure of performative force or violence at play in legal interpretation? The answer for Derrida is ‘yes’. The moment when law is inaugurated and justified, the moment of the legal decision, is a moment of interpretative violence. It is interesting, however, that Derrida says that this violence is in itself neither just nor unjust. Nothing can justify, guarantee or validate a particular legal decision. This is what Derrida calls ‘mystical’ (Derrida 1992c: 13–14). There is silence around the legal decision. No previous judgment, no previous law, can validate this decision right here. The decision has no foundation, or, it is founded in a mystical silence. Also the origin of authority and the grounds of law cannot rest on anything but themselves. The authority of the law is simply that it has authority. It is violence without ground. This does not mean injustice in the sense of illegality. Law is neither legal nor illegal in its founding moment. The mystical silence appears at the origin of law, in its earlier conditions and conventions and also at the origin of its dominant interpretations. Law is deconstructible because it is, on the one hand, founded – that is, constructed on interpretable and transformable textual material and, on the other hand, essentially unfounded. According to Derrida, this is not bad news. It may be a stroke of luck for politics and historical progress. Law can be studied, deconstructed and changed. Its legality, authority and legitimacy can be questioned. Law can be deconstructed, criticised and developed (Derrida 1992c: 14–15). Justice is for Derrida an aporia in a slightly similar way that it is a problem in Levinas’s theory to combine law and justice. Justice is an experience of the impossible. Every time that a good rule is applied to a particular case or an example according to a determinant judgment, law finds itself accounted for but certainly not justice, says Derrida. Here he holds on to the central, and difficult, distinction that law is not justice. Law is the element of calculation, and it is just that there be law, but justice is incalculable, it requires us to calculate with the incalculable; and aporetic experiences are the experiences, as improbable as they are necessary, of justice, that is to say of moments in which the decision between just and unjust is never insured by a rule. (Derrida 1992c: 16) Derrida discusses the general nature of law. We can recall Levinas’s problem of justice, which is that it demands singular decisions that pay attention to individuals and the specific characteristics of a case, that is, to the uniqueness of the other person, whereas law as rules or norms is general in nature. To respect singularity and otherness seems to be impossible in law because the idiom of law is that of the third party, not that of the other. Justice as right, which means justice the way it appears in law, implies universality (Derrida 1992c: 17). This problem might be exaggerated by the absoluteness of the way it is formulated.3 There is no reason why in principle a general rule could not respect singularity. We could well have a legal norm that commands us to respect otherness, individuality and singularity. Why is this not enough? In Levinasian theory one could argue that it is not enough because it means that otherness is not really respected as otherness, but the problem is that if otherness is respected in a really ethical manner, as passivity in which the other takes me hostage, then this results in a law that is not able to do anything or to protect anybody. Interestingly enough, from a Levinasian point of view it is not only law that has problems. The central question is how we are supposed to carry responsibility for everyone and if we do not, then how are we ever going to be able to justify only caring for certain people instead of others? It seems that inside the logic of responsibility there is a structure of irresponsibility because when we save one person, we sacrifice others. Derrida discusses this on many occasions. He gives his own cat as an example. How can he justify that he takes care of his own cat when so many other cats are suffering? This experience of irresponsibility haunts us in our everyday lives. It is a feature of the human condition (see Derrida 1995b, 2002; Miller 2009: 216–221). This is the problem that Levinas discusses in connection to the third. But it is not only a problem for law but for all action and decisionmaking. There is always violence, if violence means falling short of my responsibility to the other (Llewelyn 1995: 144). Absolute and boundless responsibility is impossible, and this goes for all life, not only legal. Or, as Marinos Diamantides puts it, Levinasian ethics results in the acknowledgement that one has to serve the other ‘infinitely, that is, never well enough and to the unjustifiable neglect of other Others’ (Diamantides 2007: 184). Derrida’s text is unquestionably very complex, and many different interpretations of it can be productive. It is certainly interesting to read it in a manner that keeps in mind Derrida’s other writings. This is an attractive approach especially for the questions posed in this book, as it includes the idea of the importance of language for questions of justice. But there is no point in distancing the text completely from Levinasian themes of responsibility either. In a way justice is for Derrida something impossible, but he does not want to give it up. He keeps up hope for law and the tasks it should fulfil. Incalculable justice can lead to terrible things. Left to itself, it can go bad. And so justice requires us to calculate. We must calculate and negotiate the relationship between the incalculable, which is justice, and the calculable, namely law, politics, economics, ethics, literature, and so on (Derrida 1992c: 28). The relationship between law and justice has to be considered and reconsidered. Justice, for Derrida, is something that is always to come. The idea of justice being never present but ever-elusive bears a resemblance to the way Derrida thematises meaning in his earlier work. We can call to mind the transcendental signified and the trace (see, also, Weber 2008: 179). As we recall, there is no transcendental signified that would be the thing itself in its self-presence. Logocentrism and the metaphysics of presence involve an impossible desire for such a signified. Likewise, there can be no access to ‘justice itself’ regardless of how much we would like such a reassuring presence. ‘[O]ne cannot speak directly about justice’ (Derrida 1992c: 10). The trace is a possibility of meaning in Derrida’s theory. The trace is the way the other (the thing) announces itself. It is not fully present but presents itself in the dissimulation of itself. The thing or the object that a sign refers to is always hidden behind the never-ending chain of signs The possibility of failure, of meaning getting lost or changing on the way, is a necessary characteristic of language. Perhaps it is so for justice as well. Just as the uncertainty of language is at the same time its possibility, we can think of justice as necessarily uncertain. Justice would not be just if it were easy.4 But how can we live with empty and insecure justice? This problem is certainly one reason why many commentators have wanted to read Force of Law through Levinasian spectacles. Respect for the other would be a way to give some substance to the emptiness of Derrida’s justice. There is no way of defining justice. But this does not mean that there would not be possibilities for thinking anew questions of justice, such as property, the subject, the responsible subject or the legal subject (Derrida 1992c: 8). Legal concepts, practices and definitions can be reappraised and revalued. This is highly important also regarding the situational elements of the responsibility of legal interpretation. We can find in Specters of Marx a comment that has bearing on the emptiness of justice. Here Derrida talks of absolute hospitality as justice and the messianic character of it. He says that it may seem strange and inhospitable that the promise of absolute hospitality is so impossible and so extremely poor, so unsure and anxious. This can lead to despair. But: […] without this latter despair and if one could count on what is coming, hope would be but the calculation of a program. One would have the prospect but one would not longer wait for anything or anyone. Law without justice. One would no longer invite, either body or soul, no longer receive any visits, no longer even think to see. To see coming. Some, and I do not exclude myself, will find this despairing ‘messianism’ has a curious taste, a taste of death. (Derrida 1994: 169, emphasis in original) Justice has a taste of emptiness. But consider the alternative: Ready-made justice? A justice already negotiated and easy to use? Justice the commodity? 5 This would be law without justice. Ultimately, it would mean that we would not even need to think. Would not this apathy have a sour taste as well, an alarming taste of death? The above discussion on justice leads us to the problem, discussed already in connection to Levinas, that a legal decision is a situation in which the general (a rule) and the particular (a concrete situation in life) have to be combined. The tension between law and justice is portrayed in Levinas’s thinking as the discrepancy between the ethical face-to-face relationship, which is singular and situational, and the moral, political or legal relationship between people, where things like equality and fairness matter and which comply for this reason with a general logic including comparisons and calculations. To simplify: the problem is that law is general whereas justice is singular and particular, which means that law can never be just. This has been described by Emmanuel Melissaris in the following way: What originated as a reaction against the levelling effect of legal formalism and was expressed as a demand for responsiveness and context-sensitivity in law tends in recent years, and especially with the increasing popularity of postmodern theory, to regress to a sort of fetishism of the particular. Very often this tendency goes as far as to even deny the possibility of achieving justice through the application of universal (or at least universalizable) norms or, indeed, the very existence of such norms. (Melissaris 2006: 129) So law is doomed to be a failure; it cannot be compatible with ethics and justice.6 The problem of merciful law can be seen as one version of the universal–particular dilemma. It is the very nature of law to operate through rules, which brings us the question of whether mercy as an ethical attitude towards people can ever be part of law. The definition of mercy is that it is always an exception (see Christodoulidis 1999). Because law functions in generalisations and operates through rules, law cannot be merciful. Law is general, justice is particular. Aristotle notes this basic problem of justice. In Nicomachean Ethics, he discusses the interconnectedness of justice and equity. First, he remarks that they appear to be neither absolutely the same nor generically different. The same thing can be both just and equitable, but he notes that the equitable is superior. What is equitable is just but not legally just. It is a correction of legal justice. This is because ‘all law is universal but about some things it is not possible to make a universal statement which will be correct’ (Aristotle 1984: V.10). Law speaks universally and conforms to usual cases. When a case arises that is not covered by the universal statement, then it is right to make an equitable decision. This is a way of correcting the error that arises from the absoluteness of the universal speech of law. According to Aristotle, this is the nature of the equitable, a correction of law where it is defective owing to its universality. Here, the equitable functions as a mediator between universal law and particular justice. It is worth noting, however, that Aristotle’s discussion concerns things about which it is impossible to lay down a law, or situations in which the legislator has failed and ‘erred by over-simplicity’. In the latter cases it is necessary to correct the omission by saying what the legislator would have said and would have put into the law if he or she had known (Aristotle 1984: V.10). For legal theories that stress the autonomy and the integrity of law, the conceived gap between law that has the form of rules and the real world that has the form of particulars is a serious problem. Different theorists, especially those labelled ‘legal positivists’, have tried to fill this gap with different intra-legal means, such as values (for instance fairness), principles or rights.7 Universals and particulars have also been discussed in legal theory in connection to problems of justification. Here the question concerns the possibilities of justifying a decision by reference to universals, that is, to rules and principles. For instance, MacCormick argues for universalism and says that there is no justification without universalisation. Even though legal decision-making requires us to weigh particular reasons found among the facts and circumstances of the case, universalisation is essential to justification. This follows from the nature of practical reasoning (MacCormick 2006; see, also, Walker 2006). These varied legal theoretical discussions focus on legal reasoning and argumentation, but there is some resemblance to the Aristotelian problem described above, which is close but not identical to the aporetic nature of Derrida’s law. For the questions at hand regarding legal texts and their meaning, the tension between the universal and the particular has another dimension than the abovediscussed ancient dilemma of general law and singular justice. Our primary concern is interpretation, which is not problematised, for instance, in Aristotle’s discussion. It is simply assumed here that the content and meaning of ‘the law’ is known. It is not part of the problem that we would not know what the law commands, as the question is rather that what the law commands does not match the real world in all its manifoldness. It is interesting to look at the universal–particular dilemma specifically from the point of view of legal interpretation because in this context it appears slightly different. According to Aristotle, law speaks universally. Law speaks. This implies that what it says is clear. Problems arise when a case does not fit the law’s command. This book tries to locate the fundamental problem of legal decision-making on a deeper level in underlining that law does not speak by itself either universally or in any other manner. It only speaks with the mouth of interpreters, and depending on the meaning they give it, it can conform to usual or less usual cases. Studying the moment before the application of a rule to a case, the juxtaposition between the universal and the particular can be rethought. In the interpretation process an oscillation occurs between the general and the situational. Understanding a text is a movement from generalisations to particulars and from the parts to the whole. On this level, we see that a sharp distinction between the universal and the particular does not hold. Every text is singular and has to be approached as such, but at the same time it contains something universal, rule-bound and general, which connected to our presuppositions makes understanding possible. As Gadamer points out, tradition is the background for understanding, but every text is nevertheless unique and the reader has to focus on what this particular and singular text says. We can therefore question the generality law. If, according to the hermeneutic view, we hold that every understanding and interpretation happens in a hermeneutic spiral in which the text and what it commands are understood through the facts of a case (an actual case that the judge is deciding or historical or hypothetical ones) and the facts of the case chosen and considered with a certain text in mind, then an amount of particularity already exists at the level of understanding the text. The meaning of a text is not pure general normativity. Through always being interpreted with some facts or cases in mind, the meaning of legal texts includes both universal and particular features. (And vice versa. As the particulars of a case are considered in the legal context this means that the case always gets some universal features) The idea of the twofold ethics of legal interpretation takes into account both the text and the situation. It includes both universality and particularity. It focuses on the real situation of the person interpreting the text and the choices that he or she makes on the meaning of it. The situation spreads to different contexts, but begins with and returns to the person who is face to face with the words of the text. The structure of this thought is similar to the way that Levinas’s ethics is simultaneously individual but universal (see, for example, Ciaramelli 1991 on a discussion of this theme). Ethics is based on a radical asymmetrical responsibility which is mine, that is, something ultimately very individual. Yet it transcends into something universal as Levinas holds that this is the general foundation for ethics, first philosophy, and it binds us all. According to this picture of legal interpretation, it is impossible to see law as simply universal and the facts, the case as particular. This way, as we question the way the opposition between the universal and the particular has been understood in legal theory as a situation in which the meaning of the law is given, we find that the opposition is mitigated, if not resolved completely. The classic problem described by Aristotle as the universal law that does not fit a singular situation thus changes as we turn our attention to meaning and how it is established. Also, if we accept that ethical elements are already internal to the interpretation of legal texts as it has been argued here, then a sharp conceptual distinction between law and justice (as responsibility) is impossible. The content of the law is only accessible through interpretation, which already contains ethical elements and there is no law before interpretation. Justice shapes law from within so that the meaning of a legal text is not first a rule that then has to be applied in a responsible way to a case. Meaning already carries with it elements of responsibility that derive from the twofold ethics of legal interpretation. If the demand of justice that is the ultimate criterion of legal interpretation is related to responsibility, then what kind of responsibility are we talking about? We have to pay attention to the ‘who’ and the ‘where’of legal interpretation. We have been discussing responsibility so far in an individualistic way as every human being’s own. Does this really apply to law? If legal interpretation is about responsibility, then whose responsibility is it? Of the many writers who connect law and injustice, Robert Cover is of seminal importance. He was one of the first scholars to claim that legal interpretation is intrinsically violent in nature. His perhaps best-known text, ‘Violence and the Word’, was published in 1986, but already in 1983 he had published an important article called ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’. Cover’s views on the violence of law are intriguing in many ways, but his main argument is quite simple. He claims that law is always connected with violence and pain, and that legal interpretation is necessarily violent. I will first present some of his arguments and then discuss possible objections to them and the importance of the issues he discusses in the context of the ethics of legal interpretation. Of the many writers who connect law and injustice, Robert Cover is of seminal importance. He was one of the first scholars to claim that legal interpretation is intrinsically violent in nature. His perhaps best-known text, ‘Violence and the Word’, was published in 1986, but already in 1983 he had published an important article called ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’. Cover’s views on the violence of law are intriguing in many ways, but his main argument is quite simple. He claims that law is always connected with violence and pain, and that legal interpretation is necessarily violent. I will first present some of his arguments and then discuss possible objections to them and the importance of the issues he discusses in the context of the ethics of legal interpretation. Cover’s perspective on legal interpretation is a holistic one in the sense that he emphasises the roles and structures in which legal interpretation takes place. No judge acts alone, but the interpretation he or she does and the verdict he or she passes take part in a complex system in which word and deed come together. A judge does not carry out their verdicts, for instance. This is done with the help of lawyers, police, wardens and magistrates. For this reason it is misleading to see legal interpretation primarily as the mental acts of one person. It should rather be understood as the violent activity of an organisation of people (Cover 1986: 1628). The trend in legal scholarship to compare legal interpretation with other forms of interpretation, say literary, was prominent at the time of Cover’s writing. Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. (Cover 1986: 1601) Cover says that the problem of meaning in law, or the problem of legal interpretation, is often associated with the narrow quest of finding out what the law commands. A decision must be made about the meaning of a legal text. He refers to the famous vehicle example discussed above, where it must be decided whether or not an airplane or a toy car is a ‘vehicle’ in the same sense as it is meant in the statute prohibiting vehicles from entering a park. These problems form one type of questions that are important, but they are not what Cover himself wants to concentrate on. He studies law as a normative universe held together by interpretive commitments. The commitments of officials, judges and ordinary people define what law means and how it is to be applied (Cover 1983: 6–7).8 There are many normative worlds. Different groups of people have different normative universes with their own laws and narratives. Laws are linked to discourses that supply, for instance, their history, explanation and purpose. Our apprehension of the normative world is fundamental for us, just as our apprehension of the physical universe. Cover says that to inhabit a nomos is to know how to live in it (Cover 1983: 4–8). The normative worlds of different communities clash, and the State’s legal order imposes its own nomos on the other worlds. For Cover, the State order is not necessarily superior. But the government’s norms are able to kill off the norms of other communities because they are backed by force and the power to suppress (see Minow et al.
Uncertain justice
Justice and the force of law
Justice in despair
The problem of the universal and the particular
Uncovering violence in legal interpretation