Aviam Soifer said that Robert Cover's death left many of us with the feeling that a vital conversation had been interrupted in mid-sentence. What follows are notes for an unfinished conversation on the metaphor of law as bridge and the prophetic function of the judge. They are only preparatory background material. Their focus is upon some tough biblical texts, the kind that leave the mark of their infectious truculence upon those whom they irresistibly engage.

And he said,

“Go and say to this people:

‘Hear and hear, but do not understand;

See and see, but do not perceive.’

Make the heart of this people fat,

and their ears heavy,

and shut their eyes;

lest they see with their eyes,

and hear with their ears,

and understand with their hearts,

and turn and be healed.

Bob Cover's work was, at the end, explicitly concerned with the law as an instrument of violence. Unsurprisingly, then, he addressed himself to the question of capital punishment. Surprisingly, though, he said “I am not an abolitionist” — surprisingly, that is, to those who understood that Cover was a radical in politics and who believed that because one touchstone of contemporary liberalism is opposition to the death penalty, radicals (who are however not liberals, after all) should support abolition of the death penalty. As Avi Soifer said, “We all are the worse for being unable to argue about that issue with Cover, and therefore to learn from him.” In this essay I want to think about why someone who is drawn to Cover's legal thought, as I am, might be inclined to take a similar position to his on the death penalty. I hasten to add, though, that I do not pretend here to represent Cover's thought; I have no idea why he was not an abolitionist, only why I am ambivalent about the death penalty. Nor do I have any reason to believe that the lines of argument that I will sketch here are ones that Cover would have found acceptable or even interesting.

In 1968, a young Robert Cover wrote what he later called a “short polemic” against judicial complicity in the Vietnam War. “Polemic” is something of an understatement. Cover's short book review of an 1856 abolitionist broadside directed against judicial enforcement of the Fugitive Slave Act became the occasion for a powerful general indictment of morally blind “obedience to, let alone enforcement of, law which violates all that is worthwhile in human community”.

Drawing on the memory of the Holocaust and “the screaming silence of the German people,” Cover excoriated the federal judiciary for “re-main[ing] faithful to its long tradition as executors of immoral law,” in relation to enforcement of the draft laws in the Vietnam War era:

No judge has resigned in protest. No judge has availed himself of the opportunity presented by a draft case to instruct the public on the moral issues of the war. No judge has publicly engaged in creative judicial obstruction of the war effort.

Imagine a strange and common experience—you reach for something concrete, immediately in front of you—only to find that the solid has evaporated. Accelerate towards a pool of water on the road, outline a column of light, cup your hand around smoke or fog. The reflection waits on the pavement before you, the column stands endlessly beside you. When you open your hand, it is empty. Only a residue, carbonate or cool, attests to the reality that was smoke or cloud.

Thus we create a curious category of realities undeniable but impossible to grasp. Older now, but still determined, we continue to fill the category: it grows more sophisticated, stranger and more various with our experience. It is fed each time we try to capture, this time in words or memory, a scent, a face, a motion that defies definition. It is fed by all the realities language cannot describe and by all that is known in the way of an old routine, with familiar and fading certainty. It is fed by everything eminently sensible and constantly elusive. Power perhaps.

Over the years, law has been denned variously as a “brooding omnipresence in the sky,” the decree of a sovereign, the mores of human experience, the practical realization of truth and justice, what operates when there is peace and order. From a societal perspective, all of these have a ring of truth. When one does not think in terms of “me” but in terms of “we,” then law as social order makes sense. But the individual does not comprehend the law so abstractly. Law is a world of violence, death, pain, and suffering imposed on those who are loved, hated, respected, feared, scorned, and pitied. For those who are forced to bend to the coercion of the law, law is not so vague a concept as ‘truth’, ‘justice’, ‘tradition’, ‘conventional morality’, ‘mores’. Law is pain. It is profound to the extent violence and death are profound. It is abstract to the extent pain is an abstraction. It is neutral as coercion and suffering strike us as neutral. Law, for those who make it and for those who are subject to it, is as objective and impartial an enterprise as law's violence allows. As violence is world destroying, law is deobjectified. It remains impersonal only for those who are removed from it. But for those who live it and are therefore touched by its coercion, the meaning of otherwise abstract impersonal principles is colored by the experience of law's violence.

“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.

The fabric of life was torn in a way I could not comprehend on the summer afternoon in 1986 when I learned that Robert Cover had died. In the midst of the shock, I recalled the special presence he brought to us at Hamline during a week's residency in October 1985. There was something very special, and difficult to name, in his quiet manner and depth of commitment, as he worked with us in colloquia and classrooms. He invited dialogue in a way that brought students to speak out of their experience, not simply out of their heads. I had heard of Cover's special classroom manner, but the experience of it spoke to me in a way that words could not duplicate. I came to see his writings in a new light. My mind then turned to the provocative work Cover embarked on in his 1983 article entitled Nomos and Narrative. What would become of that? Where might it have led him— and us along with him? Silence was all I had to offer in response. And yet, a thought kept occurring to me: beyond the imaginative character and analytical brilliance of Nomos, something else of significant importance was emerging in that work and those that followed. Did others sense it, or was I simply projecting onto Cover's work my own yearning for some respite from what seemed to be the desperation in recent legal scholarship?

This issue of the Journal of Law and Religion, dedicated to the memory of Robert M. Cover, publishes a variety of work in his honor. Some of that work takes Cover's scholarship as its subject. Other pieces may stand in a less direct, but no less important, relation to Cover's interests. The following article on the trial of Charles Guiteau is in the second category. The direct citations to Cover seem less significant than the larger sense in which this piece is connected to fundamental themes in Cover's work.

The trial of Charles Guiteau for the assassination of James Garfield is used as the point of entry for a treatment of law and religion in 19th century America. A biblical text, Genesis 22, provides a focus for a discussion of a culture engaged in a debate over science and religion. This in itself would have interested Bob Cover, who was deeply concerned with the multiple meanings of religious and other normative texts as well as with problems of legal pluralism and the reality of competing normative orders. The relationship of official law and higher law, with an emphasis on the role of the judge, was the focus of Cover's Justice Accused. Problems of legal pluralism and of law and violence, were the subjects of much of the work that followed, including the discussion of conflict underlying the idea of “redundant jurisdiction” and the treatment of multiple ordering in “Nomos and Narrative.” Placed in this framework, the trial of Guiteau litigated the issue of individual antinomianism, the ultimate problem of pluralism.