Nomos, Narrative, and Hercules

Robert Cover’s article for the Harvard Law Review that opened the Supreme Court’s 1982 term makes reference to a concept we find in myth: Hercules. The person who introduced Hercules to jurisprudence was Ronald Dworkin, a prominent legal philosopher.

This description of Hercules is from Wikipedia:

The right answer thesis

Suppose the legislature has passed a statute stipulating that ‘sacrilegious contracts shall henceforth be invalid.’ The community is divided as to whether a contract signed on Sunday is, for that reason alone, sacrilegious. It is known that very few of the legislators had that question in mind when they voted, and that they are now equally divided on the question of whether it should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to enforce the terms of the contract, whose validity Tim contests. Shall we say that the judge must look for the right answer to the question of whether Tom’s contract is valid, even though the community is deeply divided about what the right answer is? Or is it more realistic to say that there simply is no right answer to the question? (Dworkin, 1985, p. 119)

One of Dworkin’s most interesting and controversial theses states that the law as properly interpreted will give an answer. This is not to say that everyone will have the same answer (a consensus of what is “right”), or if it did, the answer would not be justified exactly in the same way for every person; rather it means that there will be a necessary answer for each individual if he applies himself correctly to the legal question. For the correct method is that encapsulated by the metaphor of Hercules J. This metaphor of JudgeHercules, an ideal judge, immensely wise and with full knowledge of legal sources. Hercules (the name comes from a classical mythological hero) would also have plenty of time to decide. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, Dworkin argues, would always come to the one right answer.

Dworkin does not deny that competent lawyers often disagree on what is the solution to a given case. On the contrary, he claims that they are disagreeing about the right answer to the case, the answer Hercules would give. Dworkin’s critics argue not only that law proper (that is, the legal sources in a positivist sense) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case. Some of them are incommensurable. In any of these situations, even Hercules would be in a dilemma and none of the possible answers would be the right one. 

 

Why is Hercules used at all to create the idea of the ideal judge? What does choosing Hercules over other mythical heros indicate about what Dworkin thinks a justice is? What does Cover think about Herculean judging?

Timeline 2: The Absolutely Most Important Legal Events Ever

3000 BCE – Hinduism emerged

1300 BCE-The Ten Commandments

1000 BCE Enuma Elish

610 BCE- Rome creates the Senate

594 BCE SOLONS LAW OF DEMOCRACY

400 BCE Justinian Code

1453 CE – The Fall of the Byzantine Empire

1517 CE- Martin Luther’s 95 Theses

1500 CE – The Reformation

1776 CE Declaration of Independence

1787 CE- Constitution of the United States was adopted and ratified by 11 states.

1789 CE Declaration of rights of man

1794 slavery abolish in French colonies

beginning of 19th Century CE: Napoleonic Law

1807 CE Slavery Abolition Act

1814-1815 C.E. Congress of Vienna

1858 Lincoln’s House Divided speach

1863 CE- The Emancipation Proclamation

1864 CE- Geneva Convention

1920- 19th Amendment

1933 CE- Enabling Act is passed for Hitler to declare any laws

1963 The Limited Tespiant Treaty

1964 CE Civil Rights Act

Timeline 1: The Strange Career of Law in World History

17000-10000 BCE Rise and Fall of Hyborian Age

4400 BCE Horses Domesticated

4000 BCE God created Adam and Eve

1184 BCE Fall of Troy

1780 BCE Code of Hammurabi

1600 BCE  Rise of the Myceanean Civilization in Greece

1500 BCE Law of Manu

1350 BCE Moses received the ten Commandments based on Exodus

1250 BCE Establishment of the Yahweh (YHWH) Worship

1150 BCE Olmec Civilization Begins

750 BCE Rise of the Greek Empire

732 BCE Assyrian Empire Rise

728 BCE Romulus creation of Rome

6th century BCE Zoroastrianism Emerges

529 B.C.E.-565 B.C.E.- Codex Vitus, Code of Justinian

500 BCE Zapotec Civilization Begins

475 BCE Legalism emerges

449 BCE Law of the 12 Tables

1 CE Rise of Christianity

507- 511 CE Salic Law

820 C.E.- Islamic Law School established in Medina

1054 CE The Great Schizm

1201 CE- Knights Templar

1265 CE-Parliament meets for the first time

1683 C.E. Battle of Vienna

1688 CE- Glorious Revolution

1692 CE Salem (MA) Witch Trials

16-18 Centuries CE- Spain’s Laws of the Indies

1814-1815 CE- Congress of Vienna

1823 CE- Monroe Doctrine

1896 CE Plessy v. Fergusson

1917 CE Balfour Declaration

1917 CE Bolshevik Revolution

1920 CE Prohibition

1945-1947 CE The Nuremburg Trials

1998 CE Impeachment Trial of US President William J. Clinton

The Ten Commandments as Scripture, Law and Scriptural Law

The Judeo-Christian scripture known popularly as The Ten Commandments appear in two books of the Bible: Exodus 20-1-17 and Deuteronomy 5:4–21. [The links are to several different translations of the same text.]

Jews and various Christian denominations use one of three historical divisions of Exodus 20:1–17:

  • Phi. The Philonic division is the oldest, from the writings of Philo and Josephus, Jewish writers of the first century C.E., who labeled verse 3 as number 1, verses 4–6 as number 2, and so on. Denominations of Jews and Christians that generally follow this scheme include Hellenistic Jews, Greek Orthodox and Protestants except Lutherans. Most representations of the commandments include the prologue of verse 2 as either part of the first commandment or as a preface.
  • Tal. The Talmudic division, from the third-century Jewish Talmud, makes verses 1–2 as the first declaration, and combines verses 3–6 as the second commandment. Orthodox, Conservative, and Reform Jews
  • Aug. The Augustinian division (fifth century) begins the first commandment with number 2 of the Talmudic division, and makes an extra commandment by dividing the prohibition on coveting into two. Both Roman Catholics and Lutherans adopted the Augustinian method. Roman Catholics use Deuteronomy by default when quoting the Ten Commandments whereas Luther used the Exodus version.
The Ten Commandments
Phi Tal Aug Exodus 20:1-17 Deuteronomy 5:4-21
1 1 And God spake all these words, saying, 4–5 The Lord talked with you face to face in the mount out of the midst of the fire … saying,
Pre 1 2 I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage. 6 I am the Lord thy God, which brought thee out of the land of Egypt, from the house of bondage.
1 2 1 3 Thou shalt have no other gods before me. 7 Thou shalt have none other gods before me.
2 2 1 4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: 8 Thou shalt not make thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the waters beneath the earth:
2 2 1 5 Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourthgeneration of them that hate me; 9 Thou shalt not bow down thyself unto them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourthgeneration of them that hate me,
2 2 1 6 And shewing mercy unto thousands of them that love me, and keep my commandments. 10 And shewing mercy unto thousands of them that love me and keep my commandments.
3 3 2 7 Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain. 11 Thou shalt not take the name of the Lord thy God in vain: for the Lord will not hold himguiltless that taketh his name in vain.
4 4 3 8 Remember the sabbath day, to keep it holy. 12 Keep the sabbath day to sanctify it, as the Lord thy God hath commanded thee.
4 4 3 9 Six days shalt thou labour, and do all thy work: 13 Six days thou shalt labour, and do all thy work:
4 4 3 10 But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: 14 But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy manservant and thy maidservant may rest as well as thou.
4 4 3 11 For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it. 15 And remember that thou wast a servant in the land of Egypt, and that the Lord thy God brought thee out thence through a mighty hand and by a stretched out arm: therefore theLord thy God commanded thee to keep the sabbath day.
5 5 4 12 Honour thy father and thy mother: that thy days may be long upon the land which theLord thy God giveth thee. 16 Honour thy father and thy mother, as the LORD thy God hath commanded thee; that thy days may be prolonged, and that it may go well with thee, in the land which the Lord thy God giveth thee.
6 6 5 13 Thou shalt not kill. 17 Thou shalt not kill.
7 7 6 14 Thou shalt not commit adultery. 18 Neither shalt thou commit adultery.
8 8 7 15 Thou shalt not steal. 19 Neither shalt thou steal.
9 9 8 16 Thou shalt not bear false witness against thy neighbour. 20 Neither shalt thou bear false witness against thy neighbour.
10 10 9 17 Thou shalt not covet thy neighbour’s house, 21 Neither shalt thou desire thy neighbour’s wife,
10 10 10 thou shalt not covet thy neighbour’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour’s. neither shalt thou covet thy neighbour’s house, his field, or his manservant, or his maidservant, his ox, or his ass, or any thing that is thy neighbour’s.

* All scripture quotes above are from the Authorized Version. See also the New Revised Standard Version.