Pluralism and Empire: From Rome to Robert Cover

Clifford Ando


In his famous engagement with pluralism and sub-political associations, “Nomos and Narrative,” Robert Cover invokes empire as both an exemplar of statal power and an alternative to contemporary liberal democratic regimes.  This essay takes his reflections as a point of departure, in order to explore two themes.  First, Cover posits a dynamic relationship between jurispathic and jurisgenerative regimes.  This invites reflection on the stability of pluralist regimes in practice.  This essay takes up that challenge in the case of Rome where, it is argued, structural features of both politics and practice impelled a standardization of legal regimes in both procedural and positive law, despite a principled commitment on Rome’s part to the autonomy of alien communities within the empire.  Second, Cover seeks to elide the true object of his inquiry, the autonomy of religious groups, by assimilating them to voluntarist associations.  This brings certain advantages in respect to constitutional law and anticipates potential liberal and feminist critiques of religious law.  But it also raises problems of political theology, by surrendering the ontological priority vis-à-vis the state that in the self-understanding of religious groups normally justifies their claims to self-regulation.  One form such problems might take is illustrated by Hobbes, in his theory of sovereignty by acquisition, which draws on Roman theory.  That theory has been now been vindicated by Roman legal instruments, discovered in the 19th and 20th centuries and therefore unknown to Hobbes, in which conquered parties were ordered to continue their ancestral legal practice, on sufferance of Rome.

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