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1 Critical Analysis L. 1 (2014)

handle is hein.journals/cclaysolw1 and id is 1 raw text is: Pluralism and Empire: From Rome to Robert Cover Clifford Ando* Abstract 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 al- ternative 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 rela- tionship 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 re- ligious law. But it also raises problems of political theology, by surrendering the ontolog- ical priority vis-a-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. The law of the land is the law. Mar Samuel (d. 254), Baba Qamma 113a1 I. Introduction Ancient empires were pluralist as a matter of form.2 I frame the matter in this way in or- der to distinguish the ideology and practice of ancient empires from those obtaining in * Clifford Ando (clifford.ando@uchicago.edu) is David B. and Clara E. Stern Professor and Professor of Classics, History, and Law at the University of Chicago, and a Research Fellow in the Department of Clas- sics and World Languages at the University of South Africa. For conversation about this essay, my thanks to Ari Bryen, Markus Dubber and Simon Stern; and for aid above and beyond the call, to Ruth (once again). A number of abbreviations are used below to refer to classical texts: Dig. =The Digest of Justinian, Latin text (Theodor Mommsen & Paul Kruger eds., 1868), reprinted with English translation (Alan Watson ed., 1985); Lenel = Palingenesia Iuris Civilis (Otto Lenel ed., 1889). 1 See also Nedarim 28a, Gittin 10b, and Baba Batra 54b, 55a (discussed in Philip Leon Biberfeld, Dina de- malkhuta dina (1925)); David Daube, Collaboration with Tyranny in Rabbinic Law, The Riddell Memorial Lectures, Thirty-Seventh Series, Delivered at the University of Newcastle upon Tyne on 9, 10, and 11 No- vember 1965 (1965). ISSN 2291-9732

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