Backer on Robert Cover and International Law--Narrative Nudges and Nomadic Nomos @BackerLarry @TouroLawReview

Larry Catá Backer, Penn State Law, is publishing Robert Cover and International Law -- Narrative Nudges and Nomadic Nomos in the Touro Law Review. Here is the abstract.

What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.

Download the article from SSRN at the link.