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Published online by Cambridge University Press: 24 April 2015
“The completion of this project was greatly facilitated by the intellectual guidance and personal encouragement of Bob Cover. He was a man who practiced, but did not preach; a scholar, and a mensch.” So reads the final acknowledgement in my book First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft, which addresses the theory, law, and political practice concerning groups in Canada with special rights by virtue of their special history.
The law and life of traditional groups was a fundamental concern for Bob Cover. His Nomos and Narrative is a masterful word portrait of how the understanding of rights in a traditional group is influenced by its historical myths and by its encounters with the moral and legal standards of the larger world. The article is one of the very few law review articles that deserve the name “literature.” It could only have been written by an artist with an understanding and sympathy for the history and scriptures of a diverse array of traditional communities. It never degenerates into pedantic and empty abstractions. Its broad assertions are constantly illustrated, substantiated and vivified by reference to experiences and self-understanding of real human beings.
1. Schwartz, B., First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (1986)Google Scholar.
2. Cover, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)Google Scholar.
3. Garet, , Communality and Existence: The Rights of Groups 56 S. Cal. L. Rev. 1001 (1983)Google Scholar.
4. Id. at 1066.
5. Id. at 1066-67.
6. Id. at 1009. At pp 1068-69, Communaiity briefly considers and peremptorily dismisses “existential individualism.” The discussion at that point remains unresponsive to the point that subjective experience is located only in individuals.
7. Id. at 1073.
8. Id. at 1068.
9. 406 U.S. 205 (1972).
10. In the discussion of Madison's Federalist argument, at p. 1009 to 1011, Communality discusses the tensions between the individual and “society”, even though Madison as speaking about factional tensions within a single state. But Communality later defines “as a social right” the right to move towards the “realization of our common humanity” (p. 1069). One would expect “common humanity” to transcend the boundaries of a single state. The “triple value schema” is, with respect to the definition of “society”, both ambiguous and incomplete. It does not adequately account for the international legal and political order.
11. See Garet, supra note 3, at 1069.
12. Id. at 1069.
13. Id. at 1074.
14. Id. at 1073.
15. The tendentious term “celebration” casts a perspective on “group experience” that is one-sidedly positive. That makes it look as though participating in a group activity were necessarily joyful. My primary objection is not that some group experiences are profoundly sad. When orthodox Jews gather to mourn the destruction of the temple, the experience is mournful, but at least in some, strained, sense “celebrational”; the community of worshippers support each other and each one mourns the same loss. The main objection is that group experience can be stultifying and destructive to individual members.
16. Id. at 1045.
17. Id. at 1045.
18. 436 U.S. 49 (1978).
19. For a further discussion of these matters, see First Principles, Second Thoughts, supra note 1, at chapter 25.
20. 406 U.S. 205, 216 (1972).
21. Id. at 232.
22. 347 U.S. 483 (1954).
23. 406 U.S. 205, 239-40 (1972). In the circumstances of this case, although the question is close, I am unable to say that the state has demonstrated that Amish children who leave school in the eighth grade, will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the state is, after all, only 16. I would disagree only with this penultimate sentence. It seems to me that in the fourteenth and fifteenth years of a child's life, he is just beginning to develop the ability to critically reflect on his own traditions and consider alternatives. To cut off education prior to these years will seriously impair the child's ability to explore, and perhaps choose, alternatives. It is never easy, moreover, to make up two lost years of intermediate education.
24. Id. at 241-42.
25. Id. at 243.
26. Id. at 237. My own view is that unless the child demonstrates to a court that he or she is sufficiently intellectually developed and mature to decide the matter for himself or herself, the compulsory schooling law ought to prevail over even the child's objections.
27. Fiss, , Groups and the Equal Protection Clause 5 Phil. & Pub. Aff. 107 (1975)Google Scholar.
28. In First Principles, Second Thoughts, supra note 1, I have contended that “history-based groupism” is a major theme of Canadian constitutional philosophy and practice. Different groups have claimed, and some have achieved, special status based on special histories. In my view, the historical aspect of groupism leads to the arbitrary assignment of privileges, and discriminates against groups and individuals who cannot claim them. Furthermore, we would better spend our emotional energy and moral courage trying to build a better future, rather than attempting the consuming, and often futile, task of agreeing on what happened in the distant past. The groupist element in our philosophy can lead, and has led, to the unwarranted suppression of individual and minority rights.
29. Id. at 150-151.
30. Id. at 159-60 and 171-72.
31. City of Richmond v. J.A. Croson Co., — U.S. —, 109 S. Ct. 706, 730 (1989) Justice O'Connor goes on to note “such findings also serve to assure all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in service of the goal of equality itself.”
32. See Cover, supra note 2, at 9.
33. Id. at 66.
34. Id.
35. It is interesting to observe that the basic method of rabbinical judaism—which is to meditate at length on a short scriptural passage—is often Cover's message; note, for example, how the “world-creating” versus “world-maintaining” distinction in Nomos and Narrative is derived from two aphorisms in the magnificent Talmudic tractate “Ethics of the Fathers.”
36. R. Cover, Justice Accused (1975).
37. The Canadian Constitution Act of 1982 contains not only American-style commitments to liberty and equality, but certain commitments to providing “essential public services” and economic opportunities to citizens. “Freedom of association” is expressly guaranteed, so the “laissez faire, unregulated market” idea of how human relationships should be formed is given some confirmation. There is, however, no “social welfare” idea of human relationships. The state is not, in general, encouraged to tolerate “free enterprise” in human interactions, but not to intervene in order to help individuals to achieve supportive human relationships. There are, to be sure, guarantees of tolerance, and in some cases, subsidies, for certain groups that claim special legal rights by virtue of their distinctive roles in Canadian history. There is also a more inclusive form of communitarianism. The Canadian constitution recognizes, but as an interpretive principle only.the value of Canada's “multicultural heritage.” Ethnic groups of more recent arrival to Canada are thus given some acknowledgment.
38. Rawls, J., A Theory of Justice (1971)Google Scholar.
39. Ackerman, B., Social Justice in the Liberal State (1980)Google Scholar.
40. Id. at 4.
41. Id. at 7.
42. Id. at 11.
43. Dworkin, , 29 N.Y. Rev, of Books, 01 20, 1983, at 47Google Scholar.
44. By the way, I think The Liberal State is internally inconsistent in this respect; leaving extra “manna” to your children should be no worse than giving extra “manna” to them when you are still alive. The Liberal State's principle of the free transfer of resources should apply just as much to willed property as to property transferred inter vivos. Allowing inherited wealth does not necessarily imply the inferiority of those who receive less.
45. An important and refreshing contribution to the debate over individuals and community is Bob Cover's piece in this Journal, entitled Obligation, A Jewish Jurisprudence of the Social Order, 5 J. Law & Relic 65 (1987)CrossRefGoogle Scholar. It argues that the Talmudic, obligation-based system of justice is especially well adapted to moral claims to “material benefits of life and dignity flowing from the community to the individual.” The rights-based jurisprudence of mainstream Western jurisprudence, on the other hand, more readily facilitates claims to political participation. Cover's piece should wake its readers out of their “dogmatic slumbers.” Mainstream jurisprudence contains much formal analysis of the meaning of rights. Such analysis tends to be both tedious and sterile. Cover's little piece reminds us that “rights” are part of one particular political tradition; they may not be the starting point of the most sophisticated and humane political philosophy. My own view is that “rights” do not have one, fixed meaning, with different people merely disagreeing on whether certain claims are rights.
The meaning of “right” depends on the overall political mind-set in which it is situated. Different systems and traditions will attribute different meanings and functions to “rights.” The foundation element of a moral vision is an understanding of the nature of human reality and what is to be valued about it. The precise definition of the concept of rights and responsibilities, and the assignment of them, can be worked out in light of that perspective.
46. As this article went to press, a story entitled “Gay Marriage” appeared in the June 3-9 issue of the Economist. It noted that the San Francisco Board of Supervisors had enacted a system for recognizing “domestic partnership.” It would be available to both heterosexual and homosexual, nonmarried, persons who are cohabiting. The story goes on to cite a new enactment by the Danish Parliament, the Folkesing. It passed a “registered partnership” law, which gives homosexuals all the legal rights of married couples-except the right to adopt.
47. 367 U.S. 497 (1961).
48. Id. at 542.
49. Id. at 546.
50. Id. at 548.
51. Id. at 553.
52. Note, Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156 (1980)CrossRefGoogle Scholar.
53. Id. at 1179-80.
54. 410 U.S. 113 (1973).
55. 478 U.S. 186 (1986).
56. Id. at 196.
57. Id. at 194.
58. Id. at 197.
59. To date there is little reliable research respecting the effect on children of rearing by homosexual parents. In Gay and Lesbian Parenting, 12 Journal Of Homosexuality 101 (1986)CrossRefGoogle Scholar, Mary Harris and Pauline Turner, after examining several studies on gay parenting, conclude that gay parents are not significantly different from heterosexual parents, except in their sexual orientation, and that their children are similar to other children. (Id. at 104.) However, the authors concede that there are weaknesses in the research upon which their conclusions are based and that their findings should be viewed as suggestive rather than as conclusive. (Id. at 104.)
60. Wechsler, , Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959)CrossRefGoogle Scholar.
61. Harvey, J. & Katz, C., If I'm So Successful, Why Do I Feel Like a Fake? The Imposter Syndrome (1985)Google Scholar.
62. Sennett, R., The Fall of Public Man 327–30 (1977)Google Scholar.
63. Shorris, E., Scenes From Corporate Life: The Politics of Middle Management (1984)Google Scholar.
64. Employment Protection (Consolidation) Act, 1978, s.67.
65. Calabresi, , Tribute to Robert M. Cover, 96 Yale L.J. 1699 (1987)Google Scholar.
66. Id. at 1700.
67. Id.
68. From my somewhat anti-historicist perspective, of course, it ought not to be decisive whether there is a strong historical record of mistreating white collar or academic workers. The application of labor and administrative law norms to academic communities can be justified on the basis of general considerations of fair play and respect for personal authenticity.
69. Reisman, W., Folded Lies: Bribery, Crusades and Reforms (1979)Google Scholar.