Robert M. Cover

Obligation: A Jewish Jurisprudence of the Social Order *

Every legal culture has its fundamental words. When we define our subject this weekend as human rights, we also locate ourselves in a normative universe at a particular place. The word “rights” is a highly evocative one for those of us who have grown up in the post-enlightenment secular society of the West. Even those among us who have been graced with a deep and abiding religious background can hardly have escaped the evocations that the terminology of “rights” carries. Indeed, we try in this conference, to take alittle credit here and there for the lustre which the edifice of rights reflects, perhaps suggesting now and again that the fine reflection owes something to some ultimate source of the light. Judaism is, itself, alegal culture of great antiquity. It has hardly led a wholly autonomous existence these past three millennia. Yet, I suppose it can lay as much claim as any of the other great legal cultures to have an integrity to its basic categories. When I am asked to reflect upon Judaism and human rights, therefore, the first thought that comes to mind is that the categories are wrong. I do not mean, of course, that basic ideas of human dignity and worth are not powerfully expressed in the Jewish legal and literary traditions. Rather, I mean that because it is alegal tradition Judaism has its own categories for expressing through law the worth and dignity of each human being. And the categories are not closely analogous to “human rights.” The principal word in Jewish law, which occupies a place equivalent in evocative force to the American legal systems “rights”, is the word “mitzvah” which literally means commandment but has a general meaning closer to “incumbent obligation.”

For James Wm. Moore: Some Reflections on a Reading of the Rules

We have become so transfixed by the achievement of James Wm. Moore and his colleagues in creating, nurturing, expounding and annotating a great trans-substantive code of procedure that we often miss the persistent and inevitable tension between procedure generalized across substantive lines and procedure applied to implement a particular substantive end. There are, indeed, trans-substantive values which may be expressed, and to some extent served, by a code of procedure. But there are also demands of particular substantive objectives which cannot be served except through the purposeful shaping, indeed, the manipulation, of process to a case or to an area of law. What follows is by no means an attempt to denigrate or undermine the ongoing trans-substantive achievement of the Federal Rules of Civil Procedure. Rather it is an exploration to rediscover the feel of a tension. That this tension has by no means been buried strikes me as one of the least appreciated dimensions of the achievement of Professor Moore. His treatise has kept before the profession a vision of the Federal Rules as a coherent structure; at the same time it has embraced the flexibility of application which lets them serve so many ends. From the outset, Professor Moores vision of the integrity of the Federal Rules has struck me as akin to the structure of a coastline. Washed by litigation, the line must shift and shape itself to tides and storms. Viewed from the coastline itself, the shape may seem to alter dramatically. But from a continental perspective it appears remarkably stable and coherent. It is to the particularistic interaction of case and process that I shall address myself. But the choice of that focus should in no sense be read as a denial of the continental form.