Robert Cover’s Nomoi and Thelma and Louise March 14, 2007Posted by andyw in Female Power, Thelma and Louise.
This post is an attempt to move a theory from its original theoretical space (in this case, American critical legal studies) into the realm of cultural theory (i.e. to extract from it a methodology, a hermeneutic device, that can be used to examine cultural objects). There are three parts: the first is an exegesis of the hermeneutic device; the second is a specific application of it to Thelma and Louise; the third is a brief comparison of it with Althusser. I apologize for the post’s length (feel free to skip over parts if you get bored, or, I suppose, just skip it entirely), but I think it’s necessary to explain, apply, and analyze the theory.
I. Exegesis of Robert Cover’s article Nomos and Narrative
To start with, Robert Cover sets about the business of explaining law. The most basic point that he makes is that everyone lives in a nomos, by which he means a normative universe (he is not claiming that everyone lives only in one nomos, but that everyone occupies at least one nomos). A normative universe is “a world of right and wrong, of lawful and unlawful, of valid and void”. This universe is not identical with law, but contains within it both law and “the narratives that locate it and give it meaning”. (He puts it succinctly when he writes “[f]or every constitution there is an epic, for each decalogue a scripture”). The law, connected with its narratives, constitutes a world. He means this very literally: “[t]his nomos is as much ‘our world’ as is the physical universe of mass, energy, and momentum”.
Importantly, normative intelligibility “inheres in the communal character of the narratives that provide the context of that behavior”. By locating our lives (however singly lived they may be) within a common discourse or community where they can be shared, they become sane. Even more than that, the community (understood culturally) generates the law that defines the nomos (in Cover’s language, the community is jurisgenerative or enacts jurisgenesis). Broadly speaking, Cover delineates two types of nomoi (which are constituted by “corpus, discourse, and interpersonal commitment”): the paideic, or world-creating, normative universe and the imperial, or world maintaining, normative universe. The paideic universe is constituted by “(1) a common body of precept and narrative, (2) a common and personal way of being educated into this corpus, and (3) a sense of direction or growth that is constituted as the individual and his community work out the implications of their law”. The imperial universe is constituted by enforcement (as opposed to creation), effectiveness (as opposed to education), and weak interpersonal commitments “premised only upon a minimalist obligation to refrain from the coercion and violence that would mark impossible the objective mode of discourse and the impartial and neutral application of norms”.
These two types of communities never actually exist: all nomoi are constituted by both of these ideal types to a greater or lesser degree. The pure paideic community’s jurispotence (capacity for jurisgeneration, or producing law) destroys it, and makes it into a fleeting imaginary second that happened long ago. Members of the community use its jurispotence to produce many divergent laws, shattering the imaginary unity. However, this imagined moment is very important since the divergent laws are interpretations of that moment (he calls it “legal DNA”). The divergences in meaning necessitate the imperial community, since (left by themselves) they are “unstable and sectarian in their social organization, dissociative and incoherent in their discourse, wary and violent in their interactions”. Importantly, he explains the imperial community as holding “the mirror of critical objectivity to meaning” (this is important for its possible relation to Lacan’s theory of the mirror stage and, therefore, also Mulvey’s theory of the male gaze). Cover succinctly summarizes the relationship between the two communities: “as the meaning in a nomos disintegrates, we seek to rescue it — to maintain some coherence in the awesome proliferation of meaning lost as it is created — by unleashing upon the fertile but weakly organized jurisgenerative cells an organizing principle itself incapable of producing the normative meaning that is life and growth”.
Divergent nomoi contest the significance of the founding acts that constitutes them. For instance, American may all accept the Constitution, but there are a plethora of divergent interpretations of that text, and – even if everyone agreed on one interpretation – a divergent relationship to that interpretation. The room for different nomoi arises from such founding acts. Since each normative universe must be grounded in a founding act, law must arise from the illegal (the time before the founding act, or Grundnorm). This founding in the illegal “provides the typology for a dangerous return”. It provides the ground for another foundational act (that can yield not only a different interpretation of the founding act, but an entirely new founding act). Thus, the founding act of the Declaration of Independence gave rise to a whole new (though, obviously, related) normative universe, with a very different corpus and narrative. Cover maintains that, no matter how hard such acts can be discouraged by the imperial mode of community, they can never be completely foreclosed (the founding act of creating new law can always be seen as exemplary, and no technique is “persuasive to a person sufficiently convinced of the destiny or providence that marks him or her as its agent”).
From this theory of jurisgenesis, Cover outlines a number of interesting and exciting impacts to legal theory. The only one that need detain me(since I do not yet see a way to make the other impacts relevant to cultural theory) is that he believes the normative universes, and particularly the laws, of the state and every other community are equally valid. This is relevant, because it encourages him to reject the simple acceptance of the state’s worldview, since he understands it to simply be one particular worldview among many. Also important is the fundamental importance of the normative community in constituting one’s being: persecuted communities do not seek merely a liberty to be “but a liberty and capacity to create and interpret law — minimally, to interpret the terms of the association’s own being”. This can be understood through its attempt to change reality (through a negotiation of sorts with other normative communities) as well as to preserve their worldview. Cover uses this distinction to identify “redemptive communities”: “the positions of associations whose sharply different visions of the social order require a transformational politics that cannot be contained within the autonomous insularity [insular autonomous communities being those which seek only to preserve their worldview] of the association itself”. Redemptive communities are characterized by “(1) the unredeemed character of reality as we know it, (2) the fundamentally different reality that should take its place, and (3) the replacement of the one with the other”. Redemptive communities must reveal a tension between what is and what ought to be, but “the two must be close enough to reveal a line of human endeavor that brings them into temporary or partial reconciliation”. If they don’t, then the movement is no longer a nomos, since it can no longer give laws (which could no longer tell individuals what to do if there is no visible course of action that could bring about the world that ought to be).
All persecuted communities (whether redemptive or insular) face a special task unique to their identity as persecuted. Cover calls this task a “secondary hermeneutic”, by which he means laws governing what must be done in the face of the violence of persecution. This is important for Cover because it gives persecuted communities an additional obligation that judges of the state ordinarily lack: they must “accept responsibility for the results of the confrontations that will ensue”, they must accept the cost (perhaps even “in blood”) of holding to their normative universe. The dominant nomos, embodied in the state for Cover, affects the persecuted nomoi in two ways. “First, the state influences interpretation: for better or worse, most communities will avoid outright conflict with a judge’s interpretations, at least when he will likely back them with violence. Second, when state and community offer conflicting interpretations, the community must elaborate the hermeneutics of resistance or of withdrawal — the justificatory enterprises of institutional stances chosen by or forced upon those who would make a nomos other than that of the state.”
Thus, the formation of a persecuted nomos faces the unique challenges posed by the state, as well as the already difficult challenges of founding a law in narrative that governs the way people act in the world and maintaining a commitment to that law in the face of a too potent jurisgenerative capacity that threatens to destroy the nomos internally.
II. Application of Cover’s theory to Thelma and Louise
My thesis for Thelma and Louise is (unsurprisingly) that together they attempt to form a redemptive nomos that is persecuted by the state.
The first part of the movie, culminating in killing Harlan, details the process by which the two women found their normative universe. Initially, Thelma seeks to escape her husband and Louise her boyfriend for a weekend getaway. At this point, they are still part of the nomos that I will (still tentatively) name the male legal order. They still envision it as a tryst with a clear return to their ordinary lives. They borrow Darryl’s fishing equipment, they are using Louise’s boss’s vacation house which has been used before for this purpose, and they pack everything so that they can still be up to the standards of dress set up by the male legal order (which is getting tiresome to type, and I’m sure to read, and which I will henceforth abbreviate as MLO). Thelma still calls Darryl, intent on soothing him and assuring him that everything is okay. (I am putting aside the possible reading of some elements of these things – for instance, taking the fishing equipment – as subversively constituting them in a new nomos. I don’t yet read such actions in that light, and – even if I am wrong – at any rate, they never went fishing and so were unsuccessful in constituting a new nomos in that way.)
Then they get to the bar, stopping at Thelma’s childlike insistence to have “fun”. Cover specifically denies this motivation as being able to constitute a normative universe. “If the Amish lived as they do because it was fun to do so, they might still fight for their insularity. They would not, however, be disobedient to any articulable principle were they to capitulate. And they could not hold someone blameworthy — lawless — were he to give in.” Thus, they are still operating within the MLO, even when Thelma dances with Harlan. (Of course, this is an oversimplification. There is, realistically, no such thing as an overarching MLO, but rather a group of different nomoi that are all assembled along a similar basis and governed by the state. Thus, it is perfectly viable to contend that Thelma was violating her and her husband’s nomos: the specific community that they constituted certainly did not legalize leaving unexpectedly or dancing with other men. However, due to the importance in the film of shooting Harlan, I am ignoring these complexities to focus on what I perceive to be the economy of actions set up by the film.) Even when Harlan takes her outside and attempts to rape her, Thelma is not committed to a new nomos: thus her increased docility in the face of violence constitutes a betrayal to the burgeoning nomos that literally gets slapped down. (Note well: I am not condemning Thelma’s increased docility, or approving of it. I am merely trying to interpret it.) Even when Louise holds the gun to Harlan’s head and begins to walk away from him, they have not grounded a new nomos in a founding act (this is intuitively seen by the complete acceptability of Louise’s actions thus far within the MLO). I think (and I don’t think it’s that controversial an opinion) that the new nomos gets its founding act when Louise kills Harlan. Prompted as a reaction to Harlan’s coercive, persecutory speech, Louise (not yet Thelma) declares her commitment to a new nomos, which is not yet completely defined (i.e. the action hasn’t yet been interpreted in a way that generates laws – although Louise is at least partially interpreting it through running afterwards: it is defined even then by an unwillingness to participate, or accede to, the authority of the MLO).
The second part of the movie constitutes the struggle towards jurisgenesis and world maintenance (which is inevitably jurispathic, or law-killing, since it has to reduce the jurispotence of the imaginary paideic moment). This is first marked by the shock of Louise having founded a new nomos for both Louise and Thelma. Then, fairly quickly, Louise (still relatively in charge of the meaning of what is happening, a rough equivalent to a Catholic priest through whom one must go to get to God – although, interestingly, it is her very impotence, through being unable to control Thelma, as a priestess in the MLO that leads Thelma to the situation where she is about to be raped) decides on a course of action: she must go to “goddamn Mexico”. This act (as well as the attendant means to achieve that goal like procuring money) is prescribed by the further cementing of the interpretation of her founding act as putting her outside of the MLO, and in fundamental resistance to it. In response to Thelma’s argument about going to the police, Louise responds with her interpretation of the interaction between the two nomoi – and the nature of this interaction must always be accounted for within each and every nomos according to Cover – as being mutually exclusive: to go to the police is to subject herself (not yet Thelma) to the destruction of the newly established normative universe (and unlike Thelma, who becomes more docile in the face of Harlan’s violence, Louise is more committed to this new nomos). (As a brief aside, I think that the exemplary action which Louise and Thelma end up following – the action that gives them an example of a founding law – is the divorce that Louise’s boss’s wife gets. That action takes a much more cooperative stance towards the MLO – using law to procure the very house that Thelma and Louise never reached – i.e., arguably, the imagined paideic moment. But it is still the first founding act visible within the movie, and Louise even suggests it – and apparently has previously suggested it – as an option for Thelma.)
Thelma ends up committing herself to this new nomos out of fidelity to Louise and also as an expression of her rejection of the MLO. For Louise, the founding action means a rejection of Jimmy’s proposal and a withdrawal from that world (with the dubious idea that there could be a compromise later, after she has achieved the current task she has set for herself of getting to “goddamn Mexico”). For Thelma, the founding action precludes a certain kind of participation in the MLO, but actually encourages a different role. Thus, she admires D.J. and his hold-ups and thus, also, she has sex with him. The founding action has foreclosed certain kinds of activities in the MLO: being a housewife, staying faithful to her husband (which she is, at least in part, still doing earlier despite dancing with Harlan), etc., but not activities within the MLO in general. A different interpretation is that she gets fooled by the romantic nature of D.J.’s character into thinking that he too rejects the MLO and lives in a world that cannot be reconciled with the law (we know that to be false: D.J. quickly capitulates the information the MLO desires, again seeming to register as someone who is not committed but just after some “fun”). This view would then interpret Thelma’s naiveté in leaving D.J. in the room with the money (which, I think importantly, can be disaggregated from the MLO, although that is neither here nor there) as faith in the community of the new nomos she has discovered herself in (mistaken faith, it turns out). I suggest that both of these interpretations are true: Thelma believes D.J. to be a part of her new nomos as opposed to the MLO, but she has not yet as radically rejected the terms of the MLO as Louise has.
Obviously Thelma’s perspective undergoes a transformation at this point in the movie, as she becomes the one in charge and robs a bank. She saves Louise from forsaking her commitment to the new nomos – a commitment that would have been forsaken precisely because the new nomos could no longer connect reality with what ought to be in a way that allowed for legal prescriptions (since they did not have the money to get to “goddamn Mexico”). In so doing, she enacts a reinterpretation of the founding act: she latches on to the aspect of killing Harlan that was a violation of the MLO, while Louise interpreted it merely as a negative resistance to the MLO. Louise is not ready to violate the MLO in a positive way (by which I mean proactively violate more laws), but is instead merely content to flee from the law and escape its grasp. Louise has an insular interpretation of the new nomos. Thelma augments that interpretation by turning it into a redemptive one: not only are they fighting for a space to be, they are now imposing their conception of reality on people (namely, those people who get robbed). Both aspects of the nomos are contained within the founding act, but only after Thelma’s interpretation does the redemptive quality of it become evident in the laws governing the community.
From now on, I will merely annotate the rest of what I perceive to be the section of jurisgenerative and –pathic actions. The redemptive aspect leads them to lock the police officer in his trunk after stealing his gun and shooting his radio. It also leads them to destroy the trucker’s fuel tank. The pause where Louise disastrously stays on the phone too long comes from her temptation to abandon the nomos through an empathetic connection with the MLO in the form of Slocomb (who “understands” her, and knows what she is going through since he knows what happened in Texas). The imperialist mode of their community is clear in this example: Thelma kills a certain act of jurisgenesis that Louise was about to adopt (she denies the reconciliation as staying true to the founding act). Likewise, when Thelma comes up and threatens the police officer: she is preventing (again) the potential reconciliation between their nomos and the MLO as a correct way of interpreting the founding act.
The third part of the movie is the culmination of their nomos as persecuted. Throughout the movie, persecution by the MLO rears its head again and again. But the final scene is arguably where the two first have to face responsibility for their nomos. In all the other scenes of persecution (from the attempted rape to the belittlement by the truck driver), it is others who are forced to face responsibility. (Of course, I’m not denying that the attempted rape was something that Thelma had to face, but I don’t think that qualifies for constituting the persecution of the nomos, since the nomos did not yet exist. There was an element of sacrifice and persecution, but it was not endured for the new nomos.) Also, I think that the persecution that they face at the end for their nomos is its highest, and thus it is what actually constitutes the additional cost that they must bear for there nomos. And I think one of the reasons that Cover’s analysis is particularly helpful in the case of this movie is its ability to explain the joy at the end of the movie. The two remain firmly committed to their nomos, but it is becoming clearer that the link between what is and what ought to be cannot be found in “goddamn Mexico”. (I keep on using the term “goddamn” because I think there is something important about religion in the constitution of their nomos. Most of Cover’s examples come from religious sources because they are the most obviously self-contained and illustrative types of nomoi. Thus, I think the consistent use of religious and irreligious rhetoric throughout the movie has to do with the way that their nomos is constituted – and also lends itself to an analysis from Cover’s perspective. They have a very self-contained normative universe in a way that is mirrored in religious communities. They have a very obvious myth of the Promised Land, they are a persecuted people – obviously understanding people loosely, but that will be discussed later –, they even fail to make it all the way in a way that echoes Moses’ death in the desert.) Thus, they face a moment of crisis (in more then just the obvious “they are about to be sent to jail” way) and they surmount that crisis through a reinterpretation of their law that connects reality with what ought to be. This is a moment of joy, because it allows them to reaffirm their fidelity to their nomos. It is also joyful because they have accepted responsibility for their nomos. It is sad to the audience because Thelma and Louise had to give up their other vision of the law, but that is an inevitable fact of persecuted nomoi (indeed, it is both an elaboration of a hermeneutic in the face of persecution and a change in interpretation due to the power that the state exercises).
That explains what I understand to be the three movements of the film in terms of Thelma and Louise’s nomos. I would like to take a second and explore the objection that the two are insane, and that they don’t actually constitute a nomos. Cover argues that “[t]he intelligibility of normative behavior inheres in the communal character of the narratives that provide the context of that behavior. Any person who lived an entirely idiosyncratic normative life would be quite mad.” I think that there is another way in which madness can exist: depending on the severity of the divergence between two nomoi, I think that they can view each other as mad. It clearly seems like that is the perspective adopted by the MLO, who don’t even consider the possibility of them driving off of the cliff. I would affirm, however, that the two do constitute a normative universe because they clearly form a (tiny) community that is committed to a founding act.
Finally, I would like to point out that Cover’s theory can be extended to not just evaluating the movie, but rather evaluating the movie’s function as a narrative, founding act, and/or myth (perhaps even law) for nomoi. I do not have the space to explore this theory, but there is certainly a way of reading Thelma and Louise as constituting the founding act (seen in the term of movie histories: a revisiting of the laws of various genres, like the road trip or the western genres; it returns to the founding film of those movies and grounds another law out of the illegal) that lead to a nomos of films (this is obviously stretching Cover’s theory, and this particular idea may not pan out). Alternatively (and more in line with Cover’s theory), it can be seen as a founding act (not in the sense of movie histories, but rather in the sense of the content as it is related to reality — e.g. a rewriting of the Constitution in the movie could be seen as a founding act) that generates a nomos among actual people in the sense of an actual community with various laws, etc.
II. Comparison to Althusser
This is just a tentative outline of a comparison between Cover’s theory and Althusser’s theory. There seems to be a general parallel between a nomos and an ideology. They both constitute an “imaginary relationship of individuals to their real conditions of existence” (Althusser, 109). Cover explicitly uses the term imaginary only in defining the moment of the pure paideic, but the nomos does express (through law) the relationship between what is and what ought to be, where what ought to be is the imagined utopia. It invests reality with a meaning through a reference to an imaginary world. I will not take up the materiality of either of these ideas in any length that does them justice, although it should be obvious that Cover’s nomos is material (remember that he claims the paideic moment constitutes the “legal DNA”, and that the nomos is just as real as mass and energy). Also there is the more obvious parallel in that everyone belongs to a nomos in the same way that everyone is always already a subject to an ideology. The founding act is at least analogous to the Subject (and I think it is delightful that the example that Althusser uses is a religious one). The founding act constitutes a Subject in the sense that every member of a nomos subjects him/herself to the founding act as a governing gesture that defines his or her conception of reality.
I think that Cover elaborates a theory that allows for shifts in nomoi (through the exemplary function of founding acts) that Hall criticizes Althusser for lacking. (I will admit that this is one of the reasons that drove me to explore the possibility of Cover’s theory as a hermeneutic device for cultural object.) However, I think that Althusser expresses the importance of ISAs: there is not a simple persecution by the state, but a persecution also through a variety of ISAs and their ideologies. But Cover elaborates other distinctions that Althusser is lacking (redemptive versus insular and paedeic versus imperial). Thus, I think they both establish interesting tools that can be used in the elaboration of cultural objects.
This is not at all even remotely sufficient as a comparison between the two theories, but I think that there is insufficient room (and, mainly, insufficient knowledge on my part) to elaborate the comparison in more detail here.
The Cover article is entitled Nomos and Narrative and can be found in Lexis-Nexis Law Reviews