To begin our discussion here it is necessary that we first define a term: nomos. For the legal theorist Robert Cover, the nomos is a ”normative universe,” a ”world of right and wrong, of lawful and unlawful, of valid and void” (“Nomos and Narrative” 4).1 This nomos consists in its narratives, the shared texts of a culture, in all of their variety, that ”locate [the nomos] and give it meaning” (NN 4). The norms and laws of a culture are not ”merely a system of rules” but ”a world in which we live” (NN 5). We inhabit the nomos; we cannot separate ourselves from it. Furthermore, we cannot separate our laws from our narratives. Indeed, for Cover, ”[e]very prescription is insistent in its demand to be located in discourse” and ”every narrative is insistent in its demand for its prescriptive point, its moral” (NN 5).
But, far from some peachy, utopic vision of the world, a vision that cannot, does not, and truly should not, ever exist, Cover’s nomos is grounded in material reality, “held together by the force of interpretive commitments” (NN 7). No text simply is, and this is especially true of our cultural narratives. Such narratives require constant interpretation and reinterpretation to determine their validity. And herein lies the crux of the issue. Every cultural narrative has a certain degree of inherent validity by virtue of its emergence from a specific cultural group. But in a pluralistic and diverse society, where different cultural groups with different commitments live side by side and are required to cooperate, differing cultural narratives will always come into conflict. Take any hot-button issue of the day and at the heart of the matter you will find narrative and commitment fuelling the debate. There is never just one nomos, but many, and it is the constant work of the public, in whatever form the public takes, to negotiate this multiplicity.
In an ideal world this negotiation would take place through discourse. Individuals and groups would reason with other individuals and other groups, discuss their respective claims and commitments, and eventually come to accept one another. This is the ”universalist” mode of ”modern liberalism” that Cover identifies, but this mode is only a ”system-maintaining ‘weak’ force,” which ultimately finds its end in the coercive force of jurisdiction (NN 12). People are not essentially reasonable, and interpretive commitments are often irreconcilable. Cooperation and acceptance must inevitably be forced, and the ideal collapses on itself.
The alternative, for Cover, is the ”strong” force, the ”world-creating” force, the creative force of jurisgenesis, which he terms ”paideia.“ The paideic force can be most clearly understood as the ”sense of direction and growth that is constituted as the individual and his community work out the implications of their law” (NN 13). The laws and interpretations and commitments of such a system are intrinsically valid because they emerge from within, instead of being imposed from without. But paideic communities are necessarily small, depending on interpersonal commitments, the recognition and acknowledgment of one’s others, to persist (NN 13), and in our modern states the public is simply too large for these interpersonal commitments to exist between each and every person. The ”system-maintaining” force must intervene between the smaller but stronger paideic communities of a state to keep the state from fracturing.
As I discuss at length in my undergraduate thesis, and as Cover writes, this ”system-maintaining” force that opposes the ”world-creating” force of paideia is the force of empire. And, where paideia is grounded on interpersonal commitment, empire is grounded on blood. The right to violence is what ensures the maintenance and validity of the system. This is a ”weak” force for Cover, because rather than do the hard work of law, rather than participate in the ”system of tension between reality and vision” that defines all law-making (NN 9), empire bypasses the system entirely, using violence to impose its will (a constructed, static, monolithic will) on the natural and inherently valid will of the paideic communities that comprise it. When a community will not cooperate, there is no need for discussion, nor even debate. Discourse is superfluous when violence will get the job done in a fraction of the time.
Enter Daredevil Season 2, Episode 7: “Semper Fidelis.” For those of you who do not watch the show, I will summarize quickly. Matt Murdock is Daredevil, a masked vigilante who lives in and fights crime in the New York neighbourhood of Hell’s Kitchen. Defense attorney by day, hero by night, Murdock uses his canny mind, supernatural senses (caused by the accident which also blinded him as a child), and fighting prowess to bring the law to his community. The first of Marvel’s Netflix Originals, Daredevil’s first season was praised for its gritty take on the super-hero genre and its thrilling fight sequences. Attaining to depth, Daredevil regularly explores its titular character’s guilt and sense of duty and responsibility, but in Season 2 especially, the show has been criticized for its self-seriousness and bloodlust, all in the name of said “depth.” And yet, Daredevil remains popular and well received by fans. Something about the show continues to compel its viewers.
In Season 2 we are introduced to another (anti)hero of the Marvel Universe: Frank Castle, the Punisher. In the show, Castle is a rogue vigilante out for blood, hunting down the gangs of Hell’s Kitchen and brutally murdering them. Murdock, of course, feels compelled to stop him. Daredevil beats criminals to a pulp, but he doesn’t kill them. When the Punisher captures Daredevil, the two growl back and forth at each other about the “morality of vigilante justice,” but their scenes together serve mostly as a near episode-long interlude before another extended fight sequence that concludes Episode 3—the sort of work Daredevil does best.
Then, in Episode 7, something interesting happens. Castle has been arrested and accused on over thirty counts of murder. The prosecution wants him executed. Suspecting foul play and feeling responsible as ever, Murdock decides that he and his colleagues should represent Castle, both to uphold the sanctity of the law and the defendant’s right to representation, and to get to the bottom of the apparent conspiracy. But, rather than begin with the court room, Episode 7 begins with the jury-selection process, intercut with Castle in his cell preparing for the trial. It plays out as follows:
Interviewer: ”Can you state for the court any preexisting opinion, any at all, that you may hold for the defendant, Frank Castle?”
Interviewee 1: ”You mean the Punisher? I think he’s an animal, a sick, twisted, venal—”
Interviewee 2: ”—hero. That’s what we should be calling him. Doing the things the cops won’t do. Frank Castle is a—”
Interviewee 3: ”—grotesque insult to the second amendment, a fascist without the authority. If you ask me, people like Frank Castle ought to be—”
Interviewee 4: ”—applauded, for putting all the thieves and muggers and rapists in the morgue where they belong. Let those bastards feel scared walking down the street for a change.”
Interviewee 1: ”It’s Son of Sam all over again.”
Interviewee 3: ”It’s Bernie Goetz.”
Interviewee 5: ”It’s like the only thing protecting us is Frank.”
Interviewee 6: ”I just moved my family to New York, and now we’re moving out. If anyone can kill anyone in this town, where does the insanity end?”
Judge: ”Councillors, over four hundred potential jurors have come through this court room, so I should tell you, if you can’t agree to move forward with the twelve men and women selected, I will make this trial a living hell for all of you.”
Murdock: ”Your honour, New York hasn’t seen a trial this divisive in its public in years. Finding an impartial jury is not easy.”
Nelson: ”Everyone has an opinion about Frank Castle.”
Judge: ”It’s New York Mr. Nelson. Everyone has an opinion about everything.”
It is a remarkably meta-theatrical moment, because we the viewers—we the people—have been thinking and saying the same sort of things all along. We are complicit in our entertainment by virtue of our attention, and so also we are complicit in the legal proceedings portrayed. So we must ask: is Daredevil challenging entertainment or is it torture porn; is it campy or is it genre-television true to form; is it brainless or is it actually trying to do something thoughtful—and most importantly, are Daredevil and the Punisher maniacs, or are they justified in what they do? Having the people speak draws the viewer in, welcoming us to make our own judgments. And this, Cover would say, is the power and character of the nomos in which we find ourselves constantly entangled.
Remember that the nomos is the body of shared texts which constitute our culture, and Daredevil, as a work of entertainment (we could say, even, as a work of art), is one such text. For Cover, ”legal tradition” is not the “corpus juris” alone (the law proper), but the ”language” and ”mythos … in which the corpus juris is located by those whose wills act upon it” (NN 9). Law does not only happen in the court; the law “takes place always through an essentially cultural medium” (NN 11). Our response to Daredevil’s contribution to the nomos will also inform our response to the realities that Daredevil seeks to represent. None of this is to say that Daredevil is some brilliant work of cultural commentary, but rather that, as a cultural text embedded in its context, reading Daredevil as a particular object produced by a particular nomos allows us to better understand the people and systems with which it is intimately, inextricably involved.
Because, as we have discussed, the nomos is not singular but multiple, we know that the mythoi which constitute it—all the different narratives and texts of our culture and their respective interpretations and commitments—must also be multiple, and must be so to an exponential degree. In this virtually infinite variety of meaning every subject’s nomos is essentially unique; Cover’s ”jurisgenerative” force (that is, the creation of normative meanings) is incredibly, constantly productive. I can never be certain that another’s perspective is entirely consistent with my own. And yet, because the jurisgenerative force always acts in a ”cultural medium” (NN 11), the mythoi that it produces are also always shared. The divide between selves is not impassable. Relation occurs in the intersections and overlappings, in the like-nesses, of our experiences, and the nomos in which I participate can be seen as the sum-total of these likenesses. I can relate to other Canadians, for instance, because there are certain principles, certain myths, which we agree upon, regardless of personal history.
Here however a pause is necessary. The idea of likeness is precisely that, an idea, which means, in the terms used here, that the idea of likeness is another one of our cultural myths. Likeness forms the core of liberal, democratic humanism, the sunny principle that, no matter how different, people can always find a common ground by virtue of their humanity. And certainly, this myth is not untrue. Families, tribes, cities, nations—every human community, on every scale, depends on this myth, citing blood, or interest, or geography, or constitution to bind together its disparate members. But, as Cover identifies, when the nomos is brought face to face with its own difference—for Cover, its alternity2—and finds that its differences far exceed its likenesses, the nomos enters into a state of crisis.
We find, then, in Daredevil Season 2 Episode 7, this crisis portrayed, the differences of a people, embodied in their interpretive commitments, put on display. Of all the various mythoi that constitute the law as it is transmitted from generation to generation, the rule of law and the rule of the people are two of the most potent, and it is these particular mythoi here that Daredevil taps into. What happens when a man takes the law into his own hands, and does so in such a disturbingly violent way? What happens when the people cannot decide whether his actions, his violence, is justified? And what happens when we, the viewers, are forced to reckon with our entertainment habits, and the violence of the images that we consume on a regular basis? We are never just viewers; we are always complicit.
For Cover, this complicity flows from the countless interpretive acts that we make every day—in particular, those of a legal character—which we can refer to here as our judgments. The nomos requires constant negotiation, a process which we saw at the beginning of this essay as the negotiation of ”right and wrong, of lawful and unlawful, of valid and void” (NN 4). As hermeneutic creatures we must constantly interpret, constantly judge, what is like and what is different, what is acceptable and what is unacceptable, what is true and what is false. But how are we to judge when the parameters of our judgments are so often arbitrarily defined, and our knowledge of any given situation is necessarily limited by the material constraints of our existence? There comes a time when we all must judge, whether or not we know with certainty that our judgments are correct.
For this reason Cover writes in ”Violence and the Word”³ that ”[l]egal interpretation takes place in a field of pain and death” (VW 1601). Many of our judgments seem inconsequential—whether or not I should get a muffin with my coffee, whether I should wear a blue shirt or a white shirt to work, whether I should stay in bed an extra few minutes in the morning—but the most serious of our judgments result in ”somebody los[ing] his freedom, his property, his children, even his life” (VW 1601). When our judgments concern other people, the verdict of ”wrong” or ”unlawful” or ”void” necessarily entails a violence to be done to the object of our judgment, a marking out of the other as different. In imperial systems such as ours, where the jurisgenerative force must constantly be regulated in order for the nomos at large to be maintained, the law, rather than acting as a creative, binding force, becomes an ”organized, social practice of violence” (VW 1601). When we collectively interpret the nomos we share in the creation of a world, but when we collectively “interpret” that another is ”unlawful” the consequence of our interpretation is that other’s subsequent ”pain and death,” their separation from the shared world of interpretation. In law there are always ”bodies on the line” (VW 1605).
And so we return to the Punisher and his violence. We learn that Frank Castle watched his family get cut down in a firefight between rival gangs, that he was shot in the head during the same firefight, and that the DA, for reasons yet to be determined, pushed for a ”do not resuscitate” order on him. We learn that Castle escaped from the hospital, and that from then on he has pursued the men that murdered his family. We see, in Castle’s story, the collapse of a man’s ”normative world,” and the resultant collapse of the legal hierarchy, the ”pyramid of violence” (VW 1609) that is responsible for the seeking of justice. Normally, the “social practice” of the law allows for a community of individuals to distance themselves from the ultimately violent outcomes of their legal system. We can all agree that criminals should be punished, but ask any one of us to take upon oneself the responsibility of this punishment, verdict through penalty, and the judgment becomes far more difficult. Instead, our system allows one man to pass judgment, another to guard the guilty, and another to carry out the sentence—no individual bears the burden of the law alone. For Castle, this is not the case.
When Castle’s world is destroyed he has no recourse but to carry out the rule of law himself. He is judge, jury, and executioner, the entire ”pyramid of violence” collapsed into one person, his entire nomos severed from that of his society by a single act of horrific violence. He does not have the privilege of separation. This is the challenge he poses to Daredevil, the challenge posed to the show itself. Daredevil’s method still takes advantage of the distance provided by the system, circumventing its short-comings only to absolve his rage and his violence by asserting the law’s validity. And the juror selection scene quoted above captures our ambivalence, as viewers, to his actions. How far is too far? Who is in the right? We are hardly given enough time to even think of these questions before the next adrenaline-fueled action sequence begins. But more so, as our reading of Cover demonstrates, these questions are beside the point. Our judgments will always precipitate ”pain and death.”
So long as we see the need to legislate the level of ”acceptable” difference in our society the law will continue in its violence. I am not so naïve to think that this will change, nor to think that the necessity of violence in particular situations will ever go away, though I wish it weren’t so. I find myself caught up in this bloodthirsty system, see it represented in the media in both positive and negative lights, only to have its authority reinscribed once more. Are our solutions only ever to be ”good enough”? I cannot say. Maybe the final episodes of Daredevil Season 2 will come to a better conclusion, but I doubt it.
I see no answers in the law, no answers in the violence that it carries out. But outside the law, there is something, outside the likenesses of our communities and the particularities of our commitments, and it is something I know as mercy. It is the force beyond our similarities that insists in the differences, the gaps, between people, the force that transcends blood, and interest, and geography, and constitution, the force that is fundamentally open to all that the other is and seeks to be. Perhaps, after all, Daredevil in his hope, in his faith in people, in his refusal to kill, is on to something. I suppose I’ll have to wait and see.
3. Cover, Robert M. “Violence and the Word.” Yale Law Journal 95.8 (1986): 1601-1629. PDF.
Cover, Robert M. “The Supreme Court, 1982 Term – Foreword: Nomos and Narrative.” Harvard Law Review 97.1 (1983): 4-68. PDF. ↩
Cover cites George Steiner’s After Babel (1975) to define the term: ”Thus, one constitutive element of a nomos is the phenomenon George Steiner has labeled “alternity”: “the ‘other than the case’, the counterfactual propositions, images, shapes of will and evasion with which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence.” (Steiner 222) ↩