Nomos and Nation: On Nation in an Age of “Populism”

Robert Cover’s Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals’ ability to participate in the development of an idea of nation, is necessary to avoid “a total crushing of the jurisgenerative character” of nomoi by the state, or by ascendent national groups. This need is underscored by the rise of populist nationalist movements that seek to capture the state to impose on their fellow citizens a particular vision of the nation.

Such groups, like the segregationist Bob Jones University that Nomos and Narrative addressed, pose a problem for rights regimes by underscoring the limits of a state neutrality in the face of illiberal visions of the nation. This second dimension of rights builds on and ultimately revives the revolutionary elements of Cover’s seminal article – a fitting tribute to his brilliance.