Revisiting Robert Cover’s “Nomos and Narrative”:

A Semiotic Approach to Law and Narrative in the Bible

Daniel Reifman*

Over thirty years after its publication, Robert Cover’s landmark essay “Nomos and Narrative”1

remains one of the most influential legal theory articles of our generation. Cover’s essay has been

celebrated for expanding our conception of “law” beyond the purview of the courts to include the

many variant interpretations offered by different communities within society, each with its own

nomos. No less important is Cover’s exposition of the critical role that narratives play in the process

of legal interpretation: in his seminal essay, he posits that the indeterminacy and multiplicity of legal

meaning is fundamentally related to the interdependency of law and narrative.

To a lesser extent, Cover’s essay has also been appreciated for its contribution to the study

of biblical law. In an initial example, Cover cites the Bible’s treatment of primogeniture, a law (Deut.

21:15-17) that reflects a preference for the firstborn – a preference that is flouted at every turn in

biblical narrative.2 Cover argues that this reflects the way law and narrative each establish the

context necessary for the other to have meaning. Within the context of Cover’s essay, the point of

this example is that the Hebrew Bible (along with later Jewish legal texts) can serve as a model for

the study of law and narrative, rather than being treated as a derivative of a broader field – itself an

innovative proposition. But Cover’s analysis also suggests that a full consideration of the relationship

between legal and narrative texts in general has implications for our appreciation of the specific

* Institute for Advanced Torah Studies, Bar Ilan University.

1“The Supreme Court, 1982 Term – Foreword: Nomos and Narrative”, Harvard Law Review 97:1 (1983), 4-68. Subsequent
references will be given in parentheses in the text.
2 Cover is somewhat imprecise in describing the relationship between these narratives and the law of primogeniture. First,
primogeniture is attested in biblical law only in the Deuteronomic law code (21:15-17), which likely post-dates most of the
succession narratives wherein the oldest sons consistently lose out. Second, as Frederick Greenspahn observes,
primogeniture concerns inheritance, whereas the fraternal tensions in biblical narratives usually concern other issues –
familial or national leadership, blessings, or divine promise; When Brothers Dwell Together: The Preeminence of Younger
Siblings in the Hebrew Bible (Oxford: Oxford University Press, 1994), 55. We will address these points in detail below.
character of the Bible. Biblical scholars have frequently observed that the Pentateuch (since the rest

of the Bible contains few legal passages) combines legal and narrative elements in unusually

provocative ways.3 Indeed, Steven Fraade4 suggests that Cover’s argument is reflected in the age-old

midrashic question made famous as the eleventh-century commentator Rashi’s first comment on

the Bible:

Said Rabbi Isaac: There was no reason to begin the Torah, but from “This
month shall be to you…” [Exodus 12:2, introducing the laws of Passover],
which is the first commandment with which Israel was commanded. So why
does it open with, “In the beginning”?5

Although Rashi’s question can be understood as a narrow question about the significance of Genesis

within the Bible, it also reflects a broader tension about what kind of book the Pentateuch is meant

to be. In bringing general legal theory to bear on the Bible’s combination of law and narrative,

Cover’s essay makes an important contribution to the growing body of scholarship on this issue.

A significant factor that has prevented Cover’s work from being more influential in biblical

and Judaic studies is the fact that, while these fields are extremely focused on textual analysis,

Cover’s work is largely conceptual in nature. Not only does he avoid close analysis of either legal or

narrative texts, he also does not articulate what specific features define a given text as law or

narrative. This makes it difficult to analyze forms that appear frequently within both biblical and

rabbinic texts that combine legal and narrative elements, such as casuistic laws, motive clauses and

juridical narratives.

The ambiguous nature of these forms might suggest that law and narrative be thought of as

part of a single continuum. However, Cover’s analysis demonstrates precisely the importance of not

3Calum Carmichael is the most prolific scholar on this issue, beginning with his The Laws of Deuteronomy (Ithaca: Cornell
University Press, 1974), although his conclusions are not always convincing (see below, n. 44). Other important works on
the Bible’s unusual combination of law and narrative include David Damrosch, The Narrative Covenant: Transformations of
Genre in the Growth of Biblical Literature (San Francisco: Harper & Row, 1987); James W. Watts, Reading Law: The
Rhetorical Shaping of the Pentateuch (Sheffield: Sheffield Academic Press, 1999); Edward Greenstein, “Biblical Law,” in
Back to the Sources: Reading the Classic Jewish Texts, ed. Barry W. Holtz (New York: Summit Books, 1984), 83-103.
4 “Nomos and Narrative before ‘Nomos and Narrative’,” Yale Journal of Law and the Humanities 17 (2005), 82.
5Rashi’s formulation of the question reflects more closely the version found in Tanḥuma Bereshit (ed. Buber) 11 while his
answer (which we address below) follows Genesis Rabbah 1:2.
conflating law with narrative: as much as the two genres play off of one another, they serve distinct

functions. Indeed, if not for the fact that we instinctively identify some passages as legal and others

as narrative, there would be no ambiguity to discuss. Recent studies within biblical and rabbinic law

have shown a growing awareness of the need to define law and narrative as distinct but interrelated

genres. For example, rather than speaking broadly about “literary” approaches to law, Assnat

Bartor,6 Barry Wimpfheimer7 and Moshe Simon-Shoshan 8 all identify specific narrative features

within legal texts, and discuss the effect that narrative modality has on the law.9

A Semiotic Approach to Biblical Studies

This paper will propose that a semiotic approach is helpful for understanding the

relationship between law and narrative that Cover articulates conceptually. Semiotics conceives of

meaning as a function of the relationship between different sign-forms; as such, it provides an ideal

framework for analyzing the interplay between legal and narrative texts. Cover himself suggests a

semiotic approach in describing law as a system of signification:

Legal precepts and principles are not only demands made upon us by society, the people, the
sovereign, or God. They are also signs by which each of us communicates with others. There
is a difference between sleeping late on Sunday and refusing the sacraments, between
having a snack and desecrating the fast of Yom Kippur, between banking a check and
refusing to pay your income tax… But the capacity of law to imbue action with significance is
not limited to resistance or disobedience. Law is a resource in signification that enables us to
submit, rejoice, struggle, pervert, mock, disgrace, humiliate, or dignify (p. 8).

Cover refers here to two types of legal signs – principles and actions – and argues that their

significance is determined by the context of the legal system as a whole.

6 Reading Law as Narrative: A Study in the Casuistic Laws in the Pentateuch (Atlanta: Society of Biblical Literature, 2010).
7 Narrating the Law: A Poetics of Talmudic Legal Stories (Philadelphia: University of Pennsylvania Press, 2011).
8Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah (Oxford: Oxford University Press,
2012).
9We should also note that this issue has been debated more explicitly within medieval halakhic literature than in biblical
and rabbinic literature. For example, see Haym Soloveitchik’s argument regarding the use of aggadic sources in medieval
halakhic texts relating to martyrdom. “Halakhah, Hermeneutics, and Martyrdom in Medieval Ashkenaz,” JQR 94 (2004), 77-
108, 278-299; “Maimonides’ ‘Iggeret Ha-Shemad’: Law and Rhetoric,” Rabbi Joseph H. Lookstein Memorial Volume, ed. Leo
Landman (New York: Ktav, 1980), 281-319.
 This point reflects one of the most basic principles of Saussurian semiotics: the meaning of

any sign – which is to say any discrete, repeatable, representational form – is determined most

fundamentally by the signifying system within which it is situated. Saussure asserted that any system

of meaning, such as a language, consists of a network of similar signs, structured by patterns of

difference (or more precisely, similarity and difference) between them. This aspect of meaning is

what Saussure refers to as the value or “negative” meaning of a sign: its semantic range as

circumscribed by the pattern of mutual oppositions within the network of signs. In contrast,

signification, or “positive” meaning, refers to what we typically think of as the “meaning” of the sign

– the fact that the physical form of the sign (“signifier”) is conventionally associated with a particular

meaning (“signified”).10 The upshot of Saussure’s semiotic model is that the meaning of the sign is

not inherent in the sign itself, but rather an amalgam of the pattern of its interactions with other

signs. Umberto Eco proffers that “properly speaking there are not signs, but only sign-functions.”11

While Saussure demonstrates the concept of value with simple signs, such as phonemes and

words, later semioticians, notably Julia Kristeva and Michel Foucault, posit that compound signs –

statements or literary texts – are also defined by their position within a network of similar texts, or

field of discourse. The difference between simple and compound signs is that a compound sign

invariably has at least two layers of meaning: the first determined by the rules of a particular

linguistic code regarding the combination of individual units, the second determined by the sign’s

position within the network of other complex signs within which it is situated. This is an important

aspect (but only one aspect) of Kristeva’s celebrated concept of intertextuality: the meaning of a

literary text is determined not only by its internal structure but also by its relationship to other texts

within a literary canon.12 Foucault articulates a similar insight in his distinction between a sentence

10Course in General Linguistics, eds. Charles Bally and Albert Sechehaye, trans. Roy Harris (Chicago and La Salle, IL: Open
Court Publishing Co., 1983), 112-116.
11 A Theory of Semiotics (Bloomington: Indiana University Press, 1979), 49.
12“Word, Dialogue and Novel” in Desire in Language: A Semiotic Approach to Literature and Art, ed. Leon S. Roudiez, trans.
Thomas Gora, Alice Jardine & Leon S. Roudiez (New York: Columbia University Press, 1980), 64-91.
and what he refers to as a “statement” (énoncé). Analyzed as a sentence, a series of words derives

its meaning from the grammatical rules of a given language; analyzed as a statement, the same

series of words derives its meaning from its position within a network of other statements, which

Foucault refers to as the “enunciative field”, but which is more commonly referred to as a genre or

discourse. Thus, a given sentence may take on a range of meanings beyond its “literal” (i.e.,

grammar-determined) meaning depending on the particular discourse within which it is situated.13

In applying this aspect of semiotic theory to biblical studies, we should recognize that it does

not directly address the questions of authorship or historical development that have been the focus

of modern biblical scholarship for much of the past two centuries. Nor does this aspect of semiotics

relate to scholars’ more recent focus on the reception of the biblical text at various points in history,

including our own time. Rather, the semiotic model we are proposing relates to the way textual

meaning is generated by verbal codes – structured networks of similar texts or textual units; it is

these codes which facilitate the twin processes of writing and reading, authorship and reception.

This focus on verbal codes is not as new as it might seem. For example, the field of biblical philology

– which long predates modern critical scholarship and is a vital antecedent to it – is devoted to the

most basic code of the biblical text, namely language. Recent decades have seen significant growth

in the systematic analysis of higher-level codes – the poetics of the dominant genres of biblical

literature, as exemplified by the work of scholars such as James Kugel, Robert Alter, Adele Berlin and

Meir Sternberg in biblical poetry and narrative. This paper will likewise address some of the defining

aspects of biblical narrative, and apply a similar mode of analysis to the genre of biblical law.

Of course, the fact that the study of biblical languages and genres has flourished without the

use of semiotic theory makes it is reasonable to ask what semiotics has to contribute to the biblical

studies. This paper will highlight semiotics’ contribution of a model for describing the relationship

between different genres. However, in a field that is inordinately preoccupied with diachronic

analysis of the text, its origin and development, it is also important to note that semiotics explains

13 The Archaeology of Knowledge, trans. Rupert Swyer (Tavistock Publications, 1972), 108-117.
why the codes – the languages and genres – that the biblical authors use to communicate with their

audience must principally be analyzed synchronically. One of Saussure’s major contributions to

linguistics was his insistence that language must be studied first and foremost synchronically as a

network of mutually defining signs before it could be analyzed diachronically. This is not because

languages or other codes of signification are static (they are not), but rather because “language is a

system of pure values, determined by nothing else apart from the temporary state of its constituent

elements.”14 That is to say, without a clear picture of the structure of a signifying system at a given

point in time, there is no ‘thing’ to analyze.15 For the same reason, Saussure insisted that linguistic

evolution can be analyzed only in terms of changes to individual elements, not to the system as a

whole: in order to be able to speak of change to the system, the structure that is the system cannot

be destabilized. Hence, in order to speak of the biblical language or genre as an object of analysis

(which in turn is necessary in order to have any framework for making sense of the meaning of the

text), the synchronic approach must be primary. Additionally, the synchronic and diachronic

approaches will differ in scope, the former relating to the system as a whole, the latter only to

individual elements within the system.16

Narratives in Legal Hermeneutics

If Cover’s analysis recommends a semiotic approach to law, the main point of his essay is that the

internal dynamic of a legal semiotic system does not provide a full account of legal discourse.

14 Supra n. 10 at 80.
15 Ibid., 79-100.
16Regarding a text of uncertain provenance, like the Bible, an initial stage of synchronic analysis may yield data that is
easier to explain by dividing a given code into multiple chronological strata, as biblical philologists have done in
distinguishing between Archaic, Standard and Late Biblical Hebrew. However, the study of biblical genres has not (yet)
yielded enough data to justify a similar sort of chronological division; to wit, there is not a set of form features common to
a group of narrative, poetic or legal passages that has been used conclusively to designate them as a group as being earlier
or later than other passages of the same genre. Albrecht Alt famously proposed just such a chronological distinction within
biblical law based on the disparity between casuistic and apodictic forms; “The Origins of Israelite Law,” in Essays on Old
Testament History and Religion, trans. R. A. Wilson (Oxford: Basil Blackwell, 1966), 79-132. However, later scholars
thoroughly discounted both the form-critical and comparative literary evidence for Alt’s historical reconstruction.
“Precepts must ‘have meaning,’ but they necessarily borrow it from material created by social

activity that is not subject to the strictures of provenance that characterize what we call formal

lawmaking” (p. 18). To understand the role that narratives play in legal hermeneutics, we must

broaden our sense of the way that semiotic systems generate meaning.

Bernard Jackson, one of the pioneers of the field of legal semiotics, offers an important

perspective on the dynamics of legal interpretation and the role of narratives within it. Like Cover,

Jackson draws on the particularities of the biblical legal corpus to make broad assertions about legal

hermeneutics.17 For Jackson, what makes narrative central to the meaning of biblical law is the fact

that the Pentateuchal law codes originated as orally transmitted systems used to resolve disputes

without professional judicial adjudication. Hence, any attempt to determine how to apply a

particular rule demands that we consider the context that would have been implicit to

contemporary ears, even if there is no trace of that context in the text itself. Whereas modern legal

scholars tend to ask, “What situations do the words of this rule cover?” – what Jackson refers to as a

literal or semantic mode of interpretation, readers of biblical law should ask, “What typical

situations do the words of this rule evoke?” The rule can be understood only when it is informed by

“narrative images – of situations within known social contexts – evoked by the words.”18 Jackson

goes on to contend that “narrative images still underlie much of our case law and jurisprudential

theorising about it, notwithstanding the progression of the law into a professionalised, literate

culture.”19

Jackson’s analysis concerns an area of legal hermeneutics that Cover professes not to be

addressing: the mundane problem of the application of legal precepts, as exemplified by H.L.A.

Hart’s classic question of whether bicycles, roller skates or toy automobiles are covered by a rule

17“Literal Meaning: Semantics and Narrative in Biblical Law and Modern Jurisprudence,” International Journal for the
Semiotics of Law 13 (2000), 433–457.
18 Ibid., 437.
19 Ibid., 450.
prohibiting “vehicles” in a public park.20 After all, the application of precepts is, within modern legal

systems, the purview of the judge, while Cover is positing an aspect of legal meaning that may be

postulated – and contested – by any member of a liberal society. Nonetheless, we may say that

Jackson’s analysis provides the methodological underpinnings of Cover’s thesis. The literal or

semantic mode of analysis that Jackson describes relates to the value of the law in question – its

semantic range (i.e., the range of cases to which it applies) as determined by the patterns of

similarity and difference within the self-contained network of legal texts. In demonstrating the

inadequacy of this literal mode of interpretation, Jackson establishes the existence of a second

dimension of legal meaning, one that is not a product of the internal dynamic of law but rather of

the association of each law with a narrative “image” – a non-legal (and non-textual) sign-form.

The notion that there is another axis of meaning in addition to value is, as we noted above,

posited by Saussure himself: signification relates to the fact that any sign can be analyzed as the

association of two discrete elements – the signifier (sign-form) and signified (sign-meaning).

However, Eco observes that Saussure is not at all specific about the nature of the signified, leaving it

“half way between a mental image, a concept and a psychological reality.”21 Eco suggests that this

aspect of meaning is better understood through the work of Charles Sanders Pierce, who defines the

sign specifically in terms of its capacity for signification: “A sign, or representamen, is something

which stands to somebody for something in some respect or capacity.”22 Pierce explains that this

signification is accomplished through the association between the original sign and the interpretant,

a second sign that can substitute for the first.23 Among the specific features of the sign-interpretant

20 "Positivism and the Separation of Law and Morals," Harvard Law Review 71 (1958), 607.
21 Supra n. 11 at 13-14.
22
Vol. 2 of Collected Papers of Charles Sanders Peirce, eds. Charles Hartshorne, Paul Weiss & Arthur W. Burks (Cambridge,
MA: Belknap, 1931-1966), §228. This is not to say that Peirce ignored the role of structures or differences in generating
meaning – see Jakobson, “A Few Remarks on Structuralism,” MLN 91 (1976), 1534-1539.
23“The meaning of a representation can be nothing but a representation” (vol. 1 of Collected Papers, §339). In Peirce’s
voluminous oeuvre, some references to the interpretant suggest a psychological dimension, leading some to explain the
interpretant in terms of the role of the sign as a behavioral stimulus. However, John Dewey ("Peirce’s Theory of Linguistic
Signs, Thought, and Meaning," Journal of Philosophy 43 [1946], 85-95) sharply critiqued this approach, arguing that the
relationship, Peirce emphasizes that the pairing of the sign and interpretant is necessarily imperfect:

the interpretant “denotes but a part of the objects of the sign, A, and signifies but a part of its, A's,

characters…”24

On this understanding of signification, both of Saussure’s aspects of meaning are functions

of the relationship between different representational forms, prompting the question of what

distinguishes one from the other. Implicit in the very concept of a network of mutually defining signs

is the idea that there are signs outside that network that do not participate in the process of mutual

definition. In other words, semiotic networks must be bounded in order to function as systems of

meaning.25 We may propose that this distinction between inside and outside is an important aspect

of the difference between value and signification. Value relates to the way the meaning of a sign is

determined by its relationships with other signs exclusively within a given semiotic system. In

contrast, the interpretant – which determines the signification of the sign – is often (though not

always) drawn from a different semiotic system than the original signifier. For example, a word may

be explained through recourse to another verbal semiotic system (translation into another language,

a scientific notation) or a non-verbal semiotic system (pictorial representation; reference to an

actual physical object that represents, by ostension, a class of similar objects).26 This notion is

suggested by Peirce’s own description of meaning as “the translation of a sign into another system of

signs.”27

Peirce’s model of signification is also critical for the more comprehensive theory of codes

that Eco develops. The types of codes we described above in the context of biblical studies –

interpretant is simply a second sign that is independent not only of an interpreting subject but also of a referential
function. Dewey’s interpretation was adopted by later scholars, including Jakobson ("On Linguistic Aspects of Translation,"
in On Translation, ed. Reuben A. Brower [Cambridge, MA: Harvard University Press, 1959], 232-239) and Eco ("Peirce's
Notion of Interpretant," MLN 91 [1976], 1457-1472).
24Vol. 2 of The Essential Peirce: Selected Philosophical Writings, ed. the Peirce Edition Project (Bloomington & Indianapolis:
Indiana University Press, 1998), 304.
25Yuri Lotman elaborates on the properties of such semiotic boundaries in his work on cultural semiotics; see his Universe
of the Mind: A Semiotic Theory of Culture, trans. Ann Shukman (London: I.B. Tauris, 2001), 131-142.
26 See Eco, supra n. 11 at 69-70.
27 Vol. 4 of Collected Papers, §127 (emphasis added).
languages and genres – are structured networks of similar sign forms, which Eco refers to as “s-

codes” (for “code as system”). However, Eco insists that, properly speaking, a code consists of a

systematic correlation between two or more such networks,28 as in the Morse code, wherein a

system of patterned auditory or visual signals correlates with a system of alphanumeric symbols: the

signs of one system function as interpretants for the signs of the other. However, such

straightforward correspondence between the units of the two systems are not typical of most codes.

Typically, the two semiotic systems that make up a code partition semantic space differently, so that

the units of one “are not necessarily susceptible of one-to-one matching with entities in the opposite

plane;" 29 hence Peirce’s observation regarding the imperfect correlation of the sign and the

interpretant. This is most simply appreciated in the case of translation from one language to

another, where the ideal of perfect semantic equivalence is elusive, often even at the level of

individual words.

Based on Peirce’s model, we can analyze the role of narratives within legal discourse as

interpretants for legal texts. Narratives may serve this function either in the isolated interpretation

of specific legal texts, as in the examples that Cover analyzes (which we will return to below), or in

the context of a formalized code – a systematic correlation between the structured network of legal

forms (terms, texts, practices) and a parallel, independent network of narrative forms. An example

of such a code is the corpus of casuistic laws in the Pentateuch – the dominant form in many of the

biblical law collections, in which descriptive protasis clauses are systematically paired with

prescriptive apodosis clauses. This form is so common as to make examples almost superfluous, but

here are two relatively simple examples:

If you see the ass of one who hates you lying under its burden, you shall refrain
from leaving him with it, you shall help him to lift it up. (Exod. 23:5)

When men fight with one another, and the wife of the one draws near to rescue her
husband from the hand of him who is beating him, and puts out her hand and seizes

28 Supra n. 11, at 36-40; Semiotics and the Philosophy of Language (Bloomington: Indiana University Press, 1984), 164-179.
29Louis Hjelmslev, Prolegomena to a Theory of Language, trans. Francis J. Whitfield (Madison: University of Wisconsin
Press, 1961), 46; see also Eco, supra n. 11 at 73.
 him by the private parts, then you shall cut off her hand; your eye shall have no pity.
(Deut. 25:11-12)

Admittedly these protasis clauses are not representative of the narrative texts that are

typically the focus of studies of biblical narrative. Not only are they brief (even by the laconic

standards of biblical prose), but their dynamic character is also “flattened”, so to speak, by the fact

that they are introduced by a nominalizing particle (ki, im, or occasionally asher). (In many laws, the

protasis is formally a participial or a complex noun clause.) Yet these protasis clauses invariably

contain a key feature of narrative discourse, namely epistemic modality: they describe the necessary

or possible existence of a certain event or state of affairs. The importance of epistemic modality to

the character of narrative is so strong that Gérard Gennette asserts that a sentence describing a

single event (“I walk,” “Pierre has come”) qualifies as a minimal narrative.30 More importantly,

modality is the critical feature that distinguishes narrative from law: the boundary between the

protasis and apodosis in casuistic law is marked by a shift from epistemic to deontic modality.31 This

proves to be a sufficiently rigid indicator that there is rarely any ambiguity within biblical law as to

where the protasis ends and the apodosis begins.

A similar difference in modality serves the same function in another form that combines

legal and narrative elements syntagmatically, namely, laws that contain motive clauses:

You shall not oppress any widow or orphan. If you oppress him and he cries out to
Me, I will surely hear his cry, and My wrath shall be inflamed, and I will kill you

30Narrative Discourse: An Essay in Method, trans. Jane E. Lewin (Ithaca: Cornell University Press, 1983), 30. In a subsequent
book (Narrative Discourse Revisited [Ithaca: Cornell University Press, 1983], 18-19), Gennette elaborates:

The idea of minimal narrative presents a problem of definition that is not slight. In writing that “I walk,
Pierre has come are for me minimal forms of narrative," I deliberately opted for a broad definition, and
I still do. For me, as soon as there is an action or an event, even a single one, there is a story because
there is a transformation, a transition from an earlier state to a later and resultant state.
31Modality is one of the more amorphous categories of verbal semantics, and scholars have proposed a number of
different typologies of modality. To some extent, the differences between these schemes reflect scholars’ subjective
assessments as to which semantic distinctions are most fundamental. Our distinction between epistemic and deontic
modality is based on the influential typology of Frank Palmer (Mood and Modality [Cambridge: Cambridge University Press,
1986]), and seems to me to capture the essential difference between law and narrative most precisely. However, other
articulations are certainly possible.
We may also note that this shift in modality from protasis to apodosis is not always indicated by a shift in verbal
morphology: because the verb forms that are characteristic of biblical law – yiqtol and weqatal – can convey either
epistemic or deontic modality, the distinction between protasis and apodosis must often be made on the basis of syntactic
and semantic markers.
 with the sword, and your wives shall be widows and your children orphans. (Exod.
22:21-23)

You shall observe the Feast of Unleavened Bread – eating unleavened bread for
seven days, as I have commanded you – at the set time of the month of Abib, for in
the month of Abib you went forth from Egypt. (Exod. 34:18)

An Ammonite or a Moabite shall not enter into the assembly of the Lord; even to
the tenth generation none of them shall enter into the assembly of the Lord forever;
because they did not meet you with bread and with water on your way leaving
Egypt, and because they hired against you Balaam the son of Be’or from Pethor of
Aram-Naharaim to curse you… You shall not seek their peace nor their prosperity
all your days forever. (Deut. 23:4-7)

The motive clauses in these passages refer either to historical events (or non-events) or to possible

future events; hence the modality of the clauses is epistemic, in contrast with the deontic modality

of the laws.

The Interplay between Law and Narrative in Casuistic Laws

Obviously this minimalist definition of narrative will not suit all contexts or purposes. Others in the

field of narrative theory set the bar for a minimal narrative somewhat higher;32 Cover himself offers

a different definition of narrative, which we will analyze below. The advantage of analyzing these

protasis clauses as narratives is that it allows us to apply Eco’s model of codes to legal theory, and to

observe patterns of correlation between these narrative and legal texts. This in turn enables us to

articulate general principles about the way legal and narrative semiotic systems partition semantic

space differently, which we can then apply to the associations – both positive and negative –

between more fully developed legal and narrative passages.

Let us begin by considering one of Jackson’s examples of narrative interpretation in the

Bible: the distinction between murder and manslaughter. In his analysis of Exodus 21:12-14,

Albrecht Alt regards the provision of refuge for manslaughter referred to in vv. 13-14 as a late,

32For example, see Gerald Prince, A Grammar of Stories: An Introduction (The Hague: Mouton, 1974), 31; and Shlomith
Rimmon-Kenan, Narrative Fiction: Contemporary Poetics (London: Routledge, 2001), 19-21.
casuistic emendation, and contends that the original law of v. 12 “treats every killing as a crime

punishable by death.”33 Jackson counters that

the institution of (altar) refuge in Israel is ancient, as is shown by the narratives

regarding Adonijah and Joab (1 Kings 1:50-53, 2:28-35). Exodus 21:12 should be
understood against the background of the contemporaneous institution of places of
refuge, and the distinction between intentional and unintentional killing is implicit
in that institution… If, then, we ask what was the typical narrative image evoked by
the words, the case of homicide which would typically generate a demand for
death, the most likely answer is a direct, deliberate assault accompanied by an
intention to kill.34

In other words, the reader’s awareness of the legal institution of refuge forces her to

conclude that the legal element in v. 12 – mot yumat (“[he] shall be put to death”) – cannot apply

across the board. Hence even without the explicit mention of an alternate case, she already knows

that the narrative element in that verse – makeh ish va’met (“He who fatally strikes a man”) –

cannot refer to all instances of homicide: there must be a case or set of cases for which the law

would mandate exile rather than capital punishment. Jackson’s analysis underscores a simple point

about the relationship between legal and narrative planes: every distinction within the legal plane

must be matched by a corresponding distinction in the narrative plane.

However, the perspective of the Bible scholar is decidedly not representative of legal

interpretation. Usually we don’t interpret legal texts in order to reconstruct the legal systems of the

past, but rather to determine how they apply to new circumstances as they arise. Hence a more

revealing example of Jackson’s narrative interpretation is the way the law of manslaughter is

presented in Deuteronomy 19:4-5:

Now this is a case of a manslayer who may flee there and live: one who killed
another unwittingly without having been his enemy in the past. As when a man goes
with his neighbor into a grove to cut wood, and as his hand swings the ax to cut
down the tree, the blade flies off the handle and strikes his neighbor so that he dies
– he shall flee to one of these cities and live.

In this case, the biblical text itself provides the (unusually vivid) narrative image that should

be associated with the law. Regardless of whether the story of the hapless woodcutter originated as

33 Supra n. 16 at 110.
34 Studies in the Semiotics of Biblical Law (Sheffield Academic Press: Sheffield, 2000), 81.
an actual event or is purely hypothetical, it offers a far more realistic example of a homicide than the

general description found in v. 4 (“one who killed another unwittingly without having been his

enemy in the past”) or in Exodus 21:13 (“If he did not do it by design, but it came about by an act of

God”). By “realistic,” I do not mean that it is a more accurate reflection of “reality” (a philosophically

difficult – though functionally critical – issue in legal hermeneutics) but rather that it is closer to the

kind of specific, detailed accounts of the event in question that a court would be presented with and

required to analyze. What this sort of account demonstrates is that, whereas every distinction in the

legal plane necessarily generates a corresponding distinction in the narrative plane, the opposite is

not true. Within the narrative plane, every detail becomes a potential point of distinction, in the

sense that changing (or omitting) a given detail might yield what we would consider a different story,

yet these distinctions rarely generate new distinctions in the legal plane. Notwithstanding the

innumerable possible narrative accounts of homicide, the Pentateuch offers only two legal

possibilities for these events – capital punishment or exile.35

In other words, Jackson’s distinction between literal and narrative interpretation of legal

texts captures an essential difference between legal and narrative forms of representation. Relative

to one another, narrative forms tend toward singularity – descriptions of narrow ‘slices’ of semantic

space – whereas legal forms tend toward generality – prescriptions or prohibitions that apply ‘across

the board’. If a legal code is a system of correlation between legal and narrative planes, then the

challenge of legal adjudication is how to project the broad, often binary distinctions of law onto the

highly fractured landscape of narrative.

As the original narrative associated with the law of manslaughter (at least within the

Deuteronomic passage), the woodcutter narrative functions as an initial landmark in the process of

mapping the boundary between murder and manslaughter in the narrative plane: every subsequent

instance of homicide will be judged in comparison to the case of the woodcutter whose blade flies

35 Rabbinic texts consider a third possibility – complete exoneration, even from exile (see next note).
off the handle on an upswing.36 As cases continue to accrue, the contours of that boundary become

increasingly clear. From this perspective, the most mature presentation in the Pentateuch of the

distinction between murder and manslaughter is found in Numbers 35:16-25:

Anyone, however, who strikes another with an iron object so that death results is a
murderer; the murderer must be put to death. If he struck him with a stone tool
that could cause death, and death resulted, he is a murderer: the murderer must be
put to death. Similarly if the object with which he struck him was a wooden tool that
could cause death, and death resulted, he is a murderer: the murderer must be put
to death. The blood-avenger himself shall put the murderer to death; it is he who
shall put him to death upon encounter.

So, too, if he pushed him in hate or hurled something at him on purpose and death
resulted, or if he struck him with his hand in enmity and death resulted, the
assailant shall be put to death: he is a murderer. The blood-avenger shall put the
murderer to death upon encounter.

But if he pushed him without malice aforethought or hurled any object at him
unintentionally, or inadvertently dropped upon him any deadly object of stone, and
death resulted – though he was not an enemy of his and did not seek his harm – in
such cases the assembly shall decide between the slayer and the blood-avenger.
The assembly shall protect the manslayer from the blood-avenger, and the assembly
shall restore him to the city of refuge to which he fled, and there he shall remain
until the death of the high priest who was anointed with the sacred oil.

This arrangement, with its chains of cases distinguished from one another by minor

differences, reinforces the point that on the narrative plane, no two cases are ever completely

identical: even seemingly insignificantly variables – such as the material construction of the fatal

instrument – can yield substantively different narratives.37 This passage reflects the stage of legal

development at which case rulings have already accrued and the various distinctions in the narrative

plane have been ruled relevant or irrelevant to the legal distinction between murder and

manslaughter. It has been determined, for instance, that wooden and stone implements must be

36The Mishnah (Makkoth 2:2) makes several such inferences from the case of the woodcutter in determining when an
accidental killer should be exempted even from exile:

One who throws a stone into the public domain and [accidentally] kills is exiled… If he threw the stone
into his courtyard, if the victim had permission to enter – he is exiled; if not – he is not exiled, as [the
Scripture] states: “As when a man goes with his neighbor into a grove” [Deut. 19:5] – a grove [is a
domain which] both the victim and the assailant have permission to enter, [such that the Scripture’s
formulation would] exclude a private courtyard which the victim has no permission to enter.

Abba Sha’ul states: Chopping wood is a voluntary activity, [hence this formulation] excludes [an
accidental killer who struck the victim in an official capacity, such as] a father striking his son [in
reprimand], or a teacher chastising his student, or an officer of the court [lashing a criminal].
37Jackson describes this sort of systemization at length in his analysis of the effect of drafting on the development of
biblical and other ancient Near Eastern law (supra n. 34 at 101-111).
judged to be capable of causing death (as indicated by the modifier asher yamut bo – “that could

cause death”), whereas an iron implement seems always to be considered potentially fatal (hence

the absence of this modifier). From this point on, each subsequent case will be judged not in

comparison to the original narrative image associated with the law, but rather based on how it is

positioned within the network of narrative signs that has already been established. This is a fuller

sense of the notion that law should, as Jackson puts it elsewhere, “be conceived of… in terms of

cases rather than principles.” 38 Regardless of how legal rules are articulated, the process of

adjudication invariably concerns distinctions within the narrative semiotic plane.

Narratives and Jurisgenesis

Of course, the biblical legal corpus offers little explicit evidence of the processes of adjudication and

legal development. Biblical law is presented almost exclusively synchronically, so that any sense of

the laws’ diachronic development must be garnered from a critical analysis of the text – i.e., analysis

that subverts the text’s own account of itself. The few exceptions are the so-called oracular stories,

judicial narratives in which an actual case comes before Moses and serves as the impetus for the

creation of a new law or set of laws – what Cover refers to as jurisgenesis. In two of these – the

episodes of the blasphemer (Lev. 24:10-23) and the wood-gatherer (Num. 15:32-36) – the ruling

seems simply to fill a lacuna in the law.39 However, in the other two episodes – the Second Passover

(Num. 9: 1-14) and the daughters of Zelophehad (27:1-11) – individuals come forward to protest the

existing legal order, much like the cases in American law that are the main subject of Cover’s

analysis. In contrast to most cases of adjudication, where the judge correlates the narrative account

of the case with an existing legal category, in these episodes the petitioners’ narrative accounts – in

which they emphasize the singularity of their situation – lead to the creation of new distinctions

38 “Reflections on Biblical Criminal Law,” Journal of Jewish Studies 24 (1973), 11.

39The text states that the wood-gatherer was placed in custody “for it had not been specified what should be done to him”
(Num. 15:34). Similarly, the blasphemer was detained “until the decision of the Lord should be made clear to them” (Lev.
24:12).
within the legal plane: now men who die without sons will be able to pass on their inheritance to

their daughters, and individuals who are ritually impure during the Passover holiday have a second

chance to fulfill their obligation. In acceding to the petitioners’ demands not to be excluded from the

Israelite community, God effectively incorporates their narratives into the framework of the law, co-

opting them as the protasis clauses of new legal rulings. As a result, their narratives are recognized

not only as singular – representing a specific sequence of events at a specific time and place – but

also formally endorsed as exceptional, thereby amending the standard legal norms that govern

behavior.

But Cover also speaks of the jurispathic process, in which the court suppresses the

proliferation of new laws. If jurisgenesis is the process of translating narrative distinctions into legal

ones, the jurispathic process denies the difference between narrative scenarios based on the

consistent application of the law across all cases. This could have been the outcome in the cases of

the daughters of Zelophehad or the Second Passover: God might have dismissed their petitions,

relegating them to the mode of narrative rather than translating them into legal categories. More

importantly, this is what the Deuteronomist actually does regarding the law of primogeniture (21:15-

17). Had this law been formulated apodictically (“You shall bequeath a double portion to your

firstborn,” or something of the sort), we would have asked ourselves – à la Jackson – “What typical

situations do the words of this rule evoke?”, and presumably arrived at a case of the eldest son of a

single (or first) wife. The decision to formulate this law in reference to the atypical case of two wives

and two eldest sons generates, in Cover’s words, “an extremely problematic psychodynamic” (p. 20),

an acute tension between the normative law and the demands posed by this singular set of

circumstances. We can well imagine this father, like the daughters of Zelophehad or the petitioners

for the Second Passover, presenting a narrative – i.e., descriptive – argument for exempting him

from the general law of primogeniture. He might recount the family’s history – the events that

generated his favoritism for the beloved wife and her firstborn (or his aversion to the unloved wife
and her son40), or describe his vision for the future – the ways in which he expected that son to

prove himself a more worthy heir. In ruling that even such a father cannot transfer the birthright

from his eldest son, the Bible denies these narratives any legal significance. The unity of the legal

field is imposed on the narrative field; the singular case does not become an exception to the rule.

It is precisely this jurispathic ruling that sets up the tension between law and narrative that

Cover uses primogeniture to demonstrate. For despite the law’s rejection of narrative arguments for

favoring a younger son, the narratives persist: as Cover notes, the rejection of the firstborn is among

the dominant motifs of the succession narratives in both Genesis and the book of Samuel. According

to Cover, the opposition with the norm of favoring the firstborn is precisely what classifies these

texts as narratives: he defines narrative as “the account of states of affairs affected by a normative

force field” (p. 10). In other words, according to Cover, narratives describe not merely events but

exceptional events, occurrences that stand in opposition to universal rules.

Frederick Greenspahn insists that the election of younger siblings throughout Genesis does

not conflict with the Deuteronomic law of primogeniture since “what is at stake in the patriarchal

tales is neither property nor office, but the transmission of a blessing—‘mere words unaccompanied

by even the slightest token of material possession’.”41 Strictly speaking, Greenspahn’s generalization

is not quite accurate. While blessing is certainly the focus of the tension between Jacob and Esau

(and later between Manasseh and Ephraim), in the other fraternal conflicts in Genesis there are also

other, more tangible factors – property and leadership – at stake: Abraham disinherits Ishmael and

his sons from Keturah by sending them away (Gen. 21:10, 25:6), and Joseph’s brothers’ hatred is

stoked by suggestions of his future hegemony over them (37:8). But more importantly, Greenspahn

greatly understates the significance of the blessings – and the promise of destiny that accompanies

them – around which the patriarchal narratives revolve. As irrational as it may seem to the modern

40 Jacob offers just such a narrative justification for his rejection of Reuben (Gen. 49:4).
41 Supra n. 2 at 55. To the extent that Greenspahn acknowledges a connection between the patriarchal narratives and the
law in Deuteronomy, it is to say that these narratives demonstrate that one may legally favor younger sons in certain
circumstances (p. 57). Yet this assumes that the law should be harmonized with these narratives – precisely the point Cover
is calling into question.
reader to stake everything on the divine promise of greatness and land for one’s descendants, this is

exactly what the characters in Genesis consistently do.

None of this evidence demonstrates that the patriarchal stories were formulated in

deliberate contravention of the law of primogeniture, in Deuteronomy or elsewhere. Indeed,

Greenspahn observes that there is little historical evidence to support the notion that primogeniture

was the norm throughout the ancient Near East,42 as Cover assumes. But this observation, too,

entirely misses Cover’s larger point. Without the assumed pre-eminence of the first-born son,

regardless of what privilege or position is at stake, many of the patriarchal narratives simply make no

sense. The preference for the firstborn is a critical factor in the conflicts between Jacob and Esau and

among Jacob’s sons, as well as in the minor episodes of the birth of Peretz and Zeraḥ (38:27-30) and

Jacob’s blessings to Joseph’s sons (ch. 48). The “normative force field” that defines narrative for

Cover may be explicitly legal or a more amorphous cultural norm (a distinction of questionable

significance in many pre-modern societies), but it is only that normative force that imbues a given

sequence of events with a particular meaning. In this context, we may note that Jackson’s insight

about the narratives which facilitate legal interpretation is just as relevant to the laws or other

norms which shape our understanding of stories: just as the narratives which impart meaning to

legal texts are often implicit (especially in the case of orally transmitted laws), so, too, the norms

that frame narrative texts are often unstated assumptions that the author and reader share. A novel

of manners, for instance, rarely needs to spell out the social mores that produce the dramatic

tension in the story.

What makes biblical narrative an exemplar of Cover’s definition of narrative is the fact that

the norms that define it are almost always explicit. For example, in the one of the first narratives in

the Bible, the sin surrounding the Tree of Knowledge (Gen. 2:25-3:24), the narrative tension is

generated by distinctly legal elements set within the narrative text: God’s command not to partake

of the fruit of the tree (2:17, 3:3), and the accusations and punishments that He issues following the

42 Ibid. 36-48.
sin. This reflects the narrative pattern that dominates the rest of the Bible: a series of human actions

framed by an overt divine command and direct, divinely ordained consequences. There are few

works in the Western literary canon in which the normative field weighs as heavily upon the

narrative as it does in the Hebrew Bible.

Yet while the outsized presence of law within biblical narrative exemplifies Cover’s notion of

the “normative force field,” it also makes the Bible resistant to Cover’s theory of narrative as the

driving force behind jurisgenesis. Cover describes a society in which the existence of multiple

interpretive communities – each with its own narrative canon – generates multiple conceptions of

the law. But the Bible displays the opposite dynamic: the law imposes its rigidity on the narrative, as

the binary divisions of the legal semiotic plane are mapped onto the narrative plane; the legal

categories of permissible and prohibited behavior correlate closely with the narrative categories of

favorable and adverse outcomes. We may even go so far to say that whereas in general, narrative

can be defined as non-legal, biblical narrative frequently depicts something illegal. Large portions of

the Bible’s narrative corpus – the pre-history of Genesis, the Exodus saga and its aftermath, the

central portion of Numbers, almost the whole of Judges, and much of Samuel and Kings – concerns

instances of human transgression followed by divine punishment. If Cover associates narrative with

redemptive vision, the Bible often associates it with sin and its aftermath.

Herein lies the primary significance of the Pentateuch’s unique combination of legal and

narrative genres: it associates the law with a single authoritative narrative. Cover notes that

[i]n the world of the modern nation-state – at least in the United States… [t]he
precepts we call law are marked off by social control over their provenance, their
mode of articulation, and their effects. But the narratives that create and reveal the
patterns of commitment, resistance, and understanding – patterns that constitute
the dynamic between precept and material universe – are radically uncontrolled (p.
17).

The Pentateuch, however, tightly intertwines the law with the set of narratives that inform it, so that

there can be no confusion – or debate – about why one must free one’s Hebrew slaves (Lev. 25:42;

Deut. 15:15) or return purchased fields in the Jubilee year (Lev. 25:23). Cover does consider what
might happen were there to be a legally mandated version of American history, but he concludes

that even this would not prevent the proliferation of narratives, since

we could not share the same account relating each of us as an individual to that
history. Some of us would claim Frederick Douglass as a father, some Abraham
Lincoln, and some Jefferson Davis. Choosing ancestry is a serious business with
major implications. Thus, the narrative strand integrating who we are and what we
stand for with the patterns of precept would differ even were we to possess a
canonical narrative text (p. 18).

But the Pentateuch fills even this last hermeneutic valence: the Israelite whose world was framed by

the biblical text could not plausibly choose any ancestry other than the Abrahamic line passing

through the Israelites who were redeemed from Egypt. In canonizing such a wide swath of historical

narrative and in integrating it so thoroughly with the legal canon, the Pentateuch leaves an

extremely narrow range for personal interpretation.

The kind of society addressed (or depicted) by the Pentateuch is aptly described as what

Cover refers to as a paideic nomos, a normative world “in which law is predominantly a system of

meaning rather than an imposition of force.” Cover explains that

[i]n this transparent nomos, that which must be done, the meaning of that which
must be done, and the sources of common commitment to the doing of it stand
bare, in need of no explication, no interpretation – obvious at once and to all… The
shared sense of a revealed, transparent normative order corresponds to the ideal
type of the paideic nomos. The divinely ordained normative corpus, common ritual,
and strong interpersonal obligations that together form the basis of such a paideic
legal order may indeed be potent. They combine to create precepts and principles
enough to fill our lives, as well as to fit those precepts into the common narratives
locating the social group in relation to the cosmos, to its neighbors, to the natural
world. The precepts, then, not only are there – they are also infused with the full
range of connotation that only an integrated set of narratives can provide (pp. 14-
15, emphasis added).

Through its thorough integration of law and narrative, the Pentateuch transforms a body of personal

and national commitments into a strong sense of personal and national identity.

Law, Narrative and Destiny

Based on this analysis, the status of the firstborn constitutes an exception rather than the rule: it is

one of the few concepts in the Bible whose value in the legal plane (favored) does not correlate with

its value in the narrative plane (unfavored). Appreciating the relevance of Cover’s thesis to the Bible
thus requires us to understand how God’s explicit and implicit approval of the Patriarchs’ antinomian

choices of successors relates to the Bible’s typically inflexible attitude toward the violation of legal

norms. Cover explains that this pattern reflects the fact that

the mythos of this people has associated the divine hand of destiny with the
typology of reversal of this particular rule… To be an inhabitant of the biblical
normative world is to understand, first, that the rule of succession can be
overturned; second, that it takes a conviction of divine destiny to overturn it; and
third, that divine destiny is likely to manifest itself precisely in overturning this
specific rule (p. 22).

According to Cover, a sense of destiny entails awareness that a norm has been breached; it is a

distinctly non-legal mode of thought. To perceive an action or event as a manifestation of destiny is

to recognize it as exceptional, immune to the standards by which most actions or events are

assessed. Hence a sense of destiny is always expressed in the form of narrative: only in a narrative

discourse – wherein the values of actions and events are not governed by the sharp binary

distinctions of law – can we attach positive value to exceptional actions without normalizing them.

Indeed, we find in the Patriarchal narratives a number of episodes not directly connected to the

issue of succession which nonetheless display a degree of moral ambiguity that is unusual for the

Bible. The most striking of these is the kidnapping and sale of Joseph by his brothers, an

unequivocally immoral act that Joseph repeatedly justifies as part of God’s design for the patriarchal

family (Gen. 45:5-8, 50:20).43

A further sense in which destiny is by nature antinomian is that it necessarily involves the

upending of an entrenched social or political order. Cover suggests that within the biblical sense of

destiny, “there is an implicit correspondence between the private law norm of familial succession...

and an ‘international’ law regulating relations among those who have long been well settled and

those who are self-proclaimed wanderers or newcomers” (p. 22). But we can further broaden this

insight to say that the bearer of destiny always represents the disenfranchised, and that the call to

43Other examples include the binding of Isaac (Gen. 22), and the massacre and plunder of Shekhem at the hands of Jacob’s
sons (ch. 34). In addition, the succession narratives in Genesis are often marked by morally problematic behavior alongside
the rejection of the older son, such as Sarah’s harsh treatment of Hagar (16:6, 21:10), and Rebecca and Jacob’s deception
of Isaac (ch. 27).
destiny is necessarily a challenge to the existing state of affairs. This creates another layer of conflict

between destiny and law, whose purpose is to maintain social stability, to preserve – and when

necessary restore – the status quo. Every new order, Cover maintains, “must conceive of itself in one

way or another as emerging out of that which is itself unlawful” (ibid.). In this context, the function

of narrative is to justify the upheaval that the call to destiny has wrought: “one must know the

narratives to live as the problematic latecomer and usurper but bearer of destiny nonetheless, to

have the fine-tuned sense of a horizon of will and of divine destiny at which the objective,

universalized norm ceases to operate” (pp. 22-23).

Accordingly, a second purpose of the Bible’s intertwining of law and narrative is precisely to

define this horizon, to situate the Israelites within the morally precarious terrain of their existence.

Remarkably, Rashi offers a similar idea in answer to his question why the Bible begins with the

Creation narrative rather than the first set of laws given to Israel:

Because of [the verse]: “He revealed to His people His powerful works in giving
them the heritage of nations” [Ps. 111:6]. For if the nations of the world should say
to Israel, “You are robbers, for you conquered by force the lands of the seven
nations [of Canaan],” they will reply, "The entire earth belongs to the Holy One,
blessed be He; He created it and gave it to whomever He deemed proper. When He
wished, He gave it to them, and when He wished, He took it away from them and
gave it to us.

This idea can be used to further illuminate the highly casuistic formulation of the law of

primogeniture in Deuteronomy 21:15-17. Cover points to the general tension between this law and

the election of younger siblings in the Bible. However, there seems to be a more explicit point of

tension as well: Calum Carmichael makes a strong case that the specific wording of the

Deuteronomic law is a deliberate allusion to the story of Jacob, his two wives and their firstborn

sons.44 The Bible makes several references to Jacob’s great love for Rachel (Gen. 29:18, 30), whereas

44Laws of Deuteronomy, 61-2; “Inheritance in Biblical Sources”, Cardozo Studies in Law and Literature 20 (2008), 230. This
association is also made in Tanḥuma Vayeitzei (ed. Buber) 13.
Carmichael’s observation is part of his broader hermeneutic agenda of interpreting many biblical laws as intentional
references to events in the Patriarchal narratives. I find his assertion regarding this particular passage to be convincing: the
assumed later date of Deuteronomy makes it plausible that the author of this passage had before him something close to
the current text of the Jacob/Joseph narratives, and the high density of close linguistic parallels suggests that he was
consciously referring to that text. However, many of Carmichael’s other proposed parallels are far more speculative. On
Leah is the only character in the Bible described as senu’ah (“hated” or “unloved”; 30:31, 33), and

Jacob’s deathbed ‘blessing’ to Reuben refers to him as “my firstborn, my might and first fruit of my

vigor” (49:3). To all appearances, the Deuteronomist singles out the behavior exhibited by Jacob for

prohibition. We might interpret this, in fact, as a critique of Jacob’s own decision to favor Joseph

over Reuben. However, we might also suggest that the point of this reference is to establish Jacob’s

behavior as singular, and thus unrepeatable: it denies the possibility of there being a subsequent

overturning of the normal order like that perpetrated by Jacob. In this interpretation, Deuteronomy

21:15-17 signifies that the antinomian process of divine election described in the patriarchal

narratives has reached its end, and it fixes that new world order – in which Israel is designated as

God’s ‘firstborn’45 – in the indelible ink of law.

The plausibility of this interpretation depends on the extent to which we can imagine the

biblical writers being concerned with the possibility of another party claiming to supplant Israel in its

covenantal relationship with God. But Cover deems this fear – conscious or not – central to the

biblical worldview, and not only because of the fact that it is eventually realized:

…[T]he sacred beginning always provides the typology for a dangerous return… The
return to foundational acts can never be prevented or entirely domesticated. As we
remember the special discontinuities that endow foundational acts with their
authority, we cannot but risk drawing the inference that they are exemplary. There
are a host of techniques for fending off such a conclusion, but they are not
foolproof; nor are they persuasive to a person sufficiently convinced of the destiny
or providence that marks him or her as its agent.

The biblical narratives always retained their subversive force – the memory that
divine destiny is not lawful. So it was that Paul could put the narratives to the
service of a revolutionary allegorical extension of the typology in his Epistle to the
Galatians. There the Jews with their law are compared to Hagar and Ishmael, the
firstcomers, whose claim is based on law. The new Christian Church is Sarah and
Isaac, the later comers, who lack any legal entitlement but who hold the divine
promise of destiny. The whole edifice of law is thus torn down – through an allegory
upon the pervasive narrative motif that itself relates the problematic dimension of
rules to the mystery of destiny. It is particularly powerful to use in the critique of the

evidence of intra-biblical allusion in general, see Benjamin D. Sommer, “Exegesis, Allusion and Intertextuality in the Hebrew
Bible: A Response to Lyle Eslinger”, Vetus Testamentum 46 (1996), 479-489.
Carmichael also indicates that the law in Deuteronomy would recognize an exception if the eldest son committed “a
serious offense meriting disinheritance”, such as Reuben’s laying with Bilhah (Gen. 35:22), and thus does not directly pass
judgment on Jacob’s decision. I find little evidence for this in the text; above we suggested that the law in Deuteronomy
seems precisely to rule out such exceptions.
45 See Exodus 4:22.
 law of Israel an allegory built on the theme that itself expresses the extralegality of
Israel's destiny.

Thus, to know the narratives is not only to know of the psycho-familial complexities
of succession, not only to see the motif of overturning the rule of succession as a
vehicle for the problem of dynastic succession, but also to understand that motif as
an expressive vehicle for the unresolved moral problems of geopolitics and as a
potential source of sectarian division (p. 24).

The independence of legal and narrative semiotic planes from one another determines that law

fundamentally cannot prevent the proliferation of narratives. Above we analyzed the way some

narratives generate corresponding divisions within the legal field, while others remain unrealized in

legal terms. But occasionally there is a narrative so subversive in its legal implications that it cannot

be incorporated, and so potent in its sense of destiny that it cannot be contained, that it leads to the

complete upheaval of the regnant legal order. The story of Paul’s conversion is one such narrative,

but Paul had the added advantage that Israel’s own founding narratives provided a template for his

own. If the Bible’s canonization of these narratives alongside its laws allows for tight control over

legal interpretation, it also exposes the law to the possibility of being undermined by these

narratives’ subversive force.

Cover’s analysis of the tension between law and narrative suggests an even more essential

dynamic within the Bible, one that molds its sense of history. A fundamental difference between

narrative and law relates to their representation of time. In his seminal work, Time and Narrative,46

Paul Ricoeur contends that narrative representation is essential to creating the human sense of time.

The plot of a narrative is a syntagmatic arrangement of action statements, drawn from our pre-

understanding of the world of action – the endless possibilities of someone doing something in a

particular set of circumstances. This syntagmatic arrangement is what creates a linear conception of

time: we proceed cognitively from a synchronic pre-understanding of human action to a diachronic

understanding of the way any action is linked causally to those actions that precede and follow it.

In contrast, law is an essentially static form of representation. In its purest form – a simple

command – a legal prescription is tenseless; it does not distinguish between different moments in

46 Trans. Kathleen Blamey & David Pallauer (Chicago: University of Chicago Press, 1984-88).
time.47 At most, an isolated legal command may reflect a cyclical conception of time, mandating

that certain actions be performed at regular time intervals.48 What situates a legal sign in the linear

flow of time is its syntagmatic association with one or more narrative signs, as in the casuistic laws

we analyzed above: the narrative protasis that precedes the legal ruling determines when in the flow

of events that ruling will apply.

In exploring the affinity between destiny and narrative, Cover focuses on the notion that the

call of destiny is necessarily antinomian. But an equally fundamental association between detiny and

narrative is that destiny involves a purposeful movement forward through time, toward some goal,

and thus entails a linear sense of time. In the Hexateuch, the goal in question is the fulfillment of

God’s promises to the Patriarchs, but this goal-oriented conception of history is no less central to the

redemptive visions of later stages in the Bible: David’s aspiration to build the Temple, the

universalist utopian visions of First Isaiah, and the prophecies of return of the exilic and post-exilic

prophets. The notion of history as progress toward a more perfect future is central to the biblical

worldview.

However, narrative representation alone cannot convey a sense of destiny. Destiny entails

not only the sense of forward movement, but also the recognition of when the goal has been

achieved and when a new order has been established. The problem with a purely narrative mode, as

far as destiny is concerned, is that history keeps unfolding; upheaval has the potential to become the

norm rather than the exception. Thus the new order toward which destiny leads is always in some

sense a legal order: law becomes the embodiment of the new state of affairs. This notion is

particularly relevant to the Bible, where the creation of a covenant is closely linked with the

47 The timelessness we are referring to is distinct from the notion of legal continuity – that a law endures until such time as
it is repealed, which H.L.A. Hart regards as one of the key features that distinguish law from mere habit or command (The
Concept of Law [Oxford: Oxford University Press, 1961], 60-64). (Jackson [supra n. 34 at 144-170] discusses to what extent
this assumption holds for biblical law.) Rather, we mean simply that for whatever period a legal statute is in place, it
‘refers’ (i.e., applies) to all times, in contrast with narrative, which refers to something that takes place at a particular point
in time.
48I think it is not coincidental that the passage Rashi identifies as the first major legal section in the Pentateuch (Exod. 12)
begins with a definition of the Jewish calendar year – in essence, the introduction of a cyclical conception of time.
establishment of law.49 For instance, God’s covenant with Noah after the Flood (Gen. 8:21-9:17)

frames the antediluvian world order with a set of commandments relating to the treatment of

human and animal life (9:3-6): the set of laws that demand that all life be treated with respect is a

correlative of God’s promise never again to destroy the world by flood. Likewise, the laws of

circumcision (Gen. 17:9-14) express the nature of God’s covenant with Abraham in that they create a

permanent sign that adheres to all of his male descendants. The fact that the Noahide and

Abrahamic covenants seem not to be contingent on man’s actions suggests that these laws serve a

constitutive, rather than conditional, function: they establish the nature of the newly founded

relationship.

In contrast to these examples, the Mosaic covenant contains a very strong conditional

element; indeed, one of the major passages that the Bible refers to as a “covenant” is the Execration

of Deuteronomy 27-28,50 which stipulates severe consequences if Israel does not adhere to God’s

laws. Yet even in the context of God’s relationship with Israel, we find evidence that law also serves

a constitutive function. For instance, the introduction to the Holiness Code (Lev. 19:2) describes this

relationship in terms of imitatio dei – “You shall be holy, for I, the Lord, am holy” – and suggests that

the purpose of the laws that follow is to facilitate Israel’s achieving that goal. But the constitutive

function of law in the Mosaic covenant is formulated most explicitly in Deuteronomy 26:17-18:

You have affirmed the Lord this day to be your God, and to walk in His ways, and to
observe His laws and commandments and rules, and to obey Him. And the Lord has
affirmed you this day to be His treasured people, as He promised you, and to
observe His commandments.

In this passage, law is portrayed not as something that the Israelites observe to stay in God’s good

graces, but rather as an aspect of the commitment between God and Israel in both directions: not

only does Israel designate God by observing His commandments, but God designates Israel by

49On this point, see Nanette Stahl’s perceptive study, Law and Liminality in the Bible (Sheffield: Sheffield Academic Press,
1995). Stahl emphasizes the ambiguity and multivocality in the way some of these legal covenants are expressed. Without
disputing her analysis, we may say that the choice to formulate these covenants in legal form – however indefinite the
meaning of those laws may be – is inherently significant, due to the characteristics of legal discourse relative to narrative
discourse.
50 See Deut. 28:69.
choosing them as the ones to do so.51 Like circumcision, observance of the law serves as a tangible

symbol of the bond between God and Israel, and the nature of law – perpetual, uniform,

exceptionless – reflects the character of that bond.

Law as a “Bridge”
The two main genres that comprise the text of the Pentateuch – narrative and law – reflect two

critical aspects of the biblical view of history: a sense of progress wed to a sense of perpetuity. Yet as

much as these two aspects of history can be seen as complementary, they can also be in tension.

The linear movement of history represented by narrative does not stop when the goal in question is

achieved, and – as we noted above – the continued flow of time brings the possibility of new

narratives to threaten the unity represented by the law. Cover focuses on the way the narratives of

the Christian Bible undermine the election of Israel, but the Pentateuchal writers themselves needed

no assistance in imagining the possible severing of Israel’s covenant with God. Their anxieties are

expressed in future-tense narratives of disobedience and punishment: the Execrations (Leviticus 26

and Deuteronomy 27-28), the Ha’azinu poem (Deuteronomy 32), and other passages scattered

throughout Leviticus and Deuteronomy.52

Cover makes a similar point in discussing the fundamental instability of paideic nomoi, like

the society addressed by the Bible. If a paideic nomos is sustained by the narrative vision at its

center, then

the very "jurispotence" of such a vision threatens it. Were there some pure paideic
normative order for a fleeting moment, a philosopher would surely emerge to
challenge the illusion of its identity with truth. The unification of meaning that
stands at its center exists only for an instant, and that instant is itself imaginary (p.
15).

In effect, what threatens any paideic nomos is the flow of time itself, the fact that any moment in

time can be represented by a narrative sign distinct from the one that preceded it, thereby

51 Cf. Jeffrey Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: Jewish Publication Society, 1996), 246.
52 Lev. 18:24-28, 20:22-24; Deut. 4:23-28, 6:12-15, 8:19-20, 11:16-17, chaps. 29-30.
undermining the integrated narrative structure that holds the nomos together. In light of this radical

instability, one function of law is to maintain order among the divergent communities that splinter

off of the original united community, a mode that Cover refers to as “imperial” or “world-

maintaining”.

Yet in the Bible, law also reflects the possibility of return. We noted above that to the extent

that law reflects a particular conception of time, it is cyclical, and commandments that recur at

regular time intervals, such as the Sabbath (Exod. 31:16) and the weekly showbread ritual (Lev.

24:8), serve as expressions of the “eternal covenant” between God and Israel. Likewise, annual or

multiennial rituals such as the Passover sacrifice (Exod. 12:24-27, 13:5-10), the bringing of the first

fruits (Deut. 26:1-11), the tithe declaration (26:12-15) and the hakhel ceremony (31:10-13) serve to

renew the people’s personal and national commitment to God. In an important sense, the covenant

– and the cyclical laws associated with it – acts as a centripetal force on the continuous unspooling

of time. Hence the Passover sacrifice features prominently in the Josianic reformation (2 Kings

23:21-23; 2 Chr. 35:1-19), as do the Sukkot holiday and enforcement of Sabbath observance in the

time of Nehemiah (Neh. 8:13-18, 13:15-32). Even more evocative is the way Jeremiah’s redemption

of his cousin’s field – a commandment linked to the cycle of the Jubilee year (Lev. 25:25) – becomes

the symbol of God’s assurance that he will eventually redeem Israel (Jer. 32).

This ability of law to project a narrative into the future – in this case, the narrative of

redemption and return – reflects another important aspect of Cover’s thesis. Cover describes law “as

a system of tension or a bridge linking a concept of a reality to an imagined alternative – that is, as a

connective between two states of affairs, both of which can be represented in their normative

significance only through the devices of narrative” (p. 9). Cover demonstrates this idea by analyzing

the role of legal interpretation in the struggle for African-Americans’ rights, including the abolition

movement of the mid-nineteenth century. For example, Cover describes how Frederick Douglass,

following his escape from slavery in 1838, gradually came to support the view that slavery was

unconstitutional, a position considered radical at the time. Cover suggests that this view was
essential to Douglass’ constructing the narrative of his life as a free man, since the normative force

of law allowed him to connect the past event of his physical escape with a future condition in which

his freedom would be universally recognized. Moreover, the belief that slavery could be abolished

by law was crucial to establishing Douglass’ public persona as the paradigmatic escaped slave, since

it linked the event of his own liberation with the future liberation of all African-Americans. We may

propose that this ability of law stems from the way legal discourse transcends the boundaries of

time. The time-bound nature of narrative discourse allows narrative signs to be linked to one

another only if they are perceived as being causally related. The essentially tenseless character of

legal signs – the fact that they create normative expectations that are always in force – enables them

to serve as interpretants for both present-tense and future-tense narrative signs. The statements,

“Frederick Douglass was enslaved,” and, “Frederick Douglass is a free man,” are linked in a single

continuous identity when they are both interpreted through the lens of the precept that slavery is

illegal, since this precept establishes that Douglass was always, in fact, a free man.

For Douglass and other African-Americans, law served a function similar to that which it

served for Jeremiah and his generation: it facilitated a redemptive vision of the future that

transcended their plight in the present. However, Cover also finds a different sort of example of law

functioning as a bridge in the support of the Mennonite and Amish Churches (both descendants of

the sixteenth-century Anabaptist Church) for an expansive interpretation of the Free Exercise clause

of the First Amendment. Cover explains that the narrative at the heart of the Anabaptist nomos

posits a line of continuity between the first-century Christians and the contemporary community of

believers: “The Mennonite narratives, whether the quasi-sacred tales of martyrs or the more recent

stories of conscientious objectors, help to create the identity of the believer and to establish the

central commitment from which any law – and especially any organic law – of the state will be

addressed” (p. 28). What allows the Anabaptists to view the early Christians as their forebears in the

absence of a direct historical (i.e., narrative) connection) is their espousal of the same normative

commitment that these narratives embody, “a dedicated, sacred space, a refuge carved out from the
general secular, legal space of the state” (p. 30). In the context of American legal discourse, this

value is manifest as a broad understanding of the precepts of freedom of religion and association,

since only through this understanding will the Constitution’s self-declared status as “the supreme

Law of the land” (article VI, section 2) not impinge upon the Christian dictate “to obey God rather

than men” (Acts 5:29).

The Anabaptists’ constitutional commitment demonstrates how law is able to link the

present not only to an ideal state in the future, but also to an idealized point in the distant past. As in

the case of the abolitionist and civil rights movements, the timeless nature of legal discourse allows

the law to serve as an interpretant for multiple narrative signs, regardless of their tense. Yet the

function that law serves in these cases is fundamentally different. Whereas for African-Americans,

law served as vehicle for societal change, for the Mennonite and Amish Churches, law serves a

conservative function – to reinforce and preserve an established identity.

We find this conservative mode of law as a bridge in the Bible as well, most overtly in laws

that use narrative texts as motive clauses. For example, in linking the observance of the Sabbath to

God’s cessation from work on the seventh day of Creation (Exod. 31:17, et al.), the Bible presents

Israel’s Sabbath as a perpetual reenactment of God’s Sabbath. Similarly, in connecting the exclusion

of Moabites and Ammonites from Israel with these nations’ unwelcoming and even confrontational

behavior toward the Israelites during their journey forth from Egypt (Deut. 23:4-7), the Bible renders

these past hostilities a permanent feature of the Israelite nomos. Along these lines, Harry Nasuti53

analyzes the way legal passages which invoke either the “sojourner formula” (“For you were

sojourners in the land of Egypt” – Exod. 22:20, 23:9; Lev. 19:34; Deut. 10:19, 23:8) or the “slave

formula” (“You shall remember that you were a slave in the land of Egypt” – Deut. 5:15, 15:15,

16:12, 24:18, 22) project the historical experience of the Exodus on all future Israelites, by way of

demanding that one be sensitive to the plight of others as only a former sojourner/slave could be. In

53“Identity, Identification, and Imitation: The Narrative Hermeneutics of Biblical Law,” Journal of Law and Religion 4 (1986),
9-23.
all these cases, law creates a bridge between the moment represented by the narrative and the

moment inhabited by the future reader – the subject to whom the law is addressed. Through the

translation from narrative to legal discourse, the singular historical event becomes an eternal

feature of Israel’s character.

Conclusion
Of all the innovative aspects of “Nomos and Narrative,” Cover’s use of biblical law to analyze a U.S.

Supreme Court decision may have been the most unorthodox. We have proposed that a semiotic

approach allows us to relate Cover’s conceptual analysis of law and narrative to a close reading of

the biblical text, and also to appreciate the full benefit of cross-pollination between biblical and legal

studies. Though in some ways idiosyncratic, the Bible’s combination of precepts and narratives

informs the way historical accounts and redemptive visions continue to animate legal interpretation

in our own time.