Law in Contemporary Society

Self-Narrative and Legal Narrative

-- By MichaelDignan - 20 April 2009

I. The need for explanation is kin to the need for a convincing self-narrative.

It is difficult for people to be indefinitely unresolved about how or why something happened. People readily look for explanations of behavior that fits into a rational, ordered framework. Scaffolds are erected for explaining why and how things happen, offering mechanisms and justifications. Individually, people tend to create narrative structures about their own behavior to explain why they, as distinct and unified persons, do what they do. The narratives that are constructed on the personal level to explain someone’s history are kin to the narratives constructed on a society-wide level to explain the legal process.

Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are critical analyses of two prominent legal explanatory devices. Both devices are narratives constructed by society to explain how the actual work of deciding cases is done. Cohen criticizes the invention and development of legal fictions. Fictions, like the concept of the corporation, are used by courts to develop a supposedly logical framework for deciding cases. Frank criticizes the court’s system for presenting evidence and facts, which are often unquestioningly presumed to be the whole truth relevant to the case at hand. Both frameworks operate by smoothing over the rough patches of reality in favor of a well-defined narrative, just as individuals smooth over conflicting or unpleasant realities in their own self-narrative.

  • This way of summarizing the two arguments so they turn out to be about "explanatory devices" is necessary to your use of them in this context, but it does violence to both authors' accounts. In Cohen's case, you make him out to be criticising fictions in particular—a misleading interpretation at best, and one which would be more appropriate to Jeremy Bentham than Felix Cohen, thus making Cohen appear to be one hundred years behind his time instead of marginally ahead. Cohen asks what makes a proposition about law meaningful, and concludes that meaning depends upon relation to real-world consequences. But he's located himself very carefully against a philosophic backdrop that runs from Wittgenstein to Gödel, and to say he's writing about "explanatory devices" doesn't reflect his own understanding of his subject. In Frank's case we have a slightly different problem. Frank does speak, unscientifically and without much precision, about explanatory devices, and magic as precursor of and equivalent to rationalistic explanation. He also points out, briefly, more accurately, but not in an analytically sophisticated fashion, that juries are rationalistic successors to magical modes of fact-finding, and that their human fallibility then becomes an imperfection to disguise or conceal. To say that this is a point about explanatory devices is true, but it's not the most true thing you could say, in the sense that it presents the reader with an accurate but interpretively misleading proposition.

  • Having said which, it's the "just as" move at the end of the graf which is the smuggle. There's no evident basis for going from "kinship" in the first graf to equivalence in the second. But similarity of two things in some respect doesn't prove anything about similarity or common causation in other respects, unlike equivalence, which is a basis for logical entailment. Apples and oranges are similar in being fruits, but if they were equivalent, you could prove the skin of an orange edible by eating an apple. Your argument now depends on a strengthened assertion that's been smuggled in rather than earned. That's almost always an insurmountable problem.

  • You don't seem to like my summaries of Cohen and Frank, and those are my premises. Since they are used throughout the whole essay, I must have missed the "simple and effective theme" that you spoke about in the first criticism.

II. Self-narrative is an important component of mental and emotional wellness.

When people are asked to write seriously about an extremely important emotional issue that has affected their lives, they often find it upsetting in the short term to write about deeply personal experiences. As time goes by, however, people show remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to work by helping people make sense of a negative event by constructing a meaningful narrative that explains it. Id. It is important for individuals to come to an understanding about what has happened to them and why it has happened.

Ruminating on past events tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation. Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” Id. at 175. Suppression of the repetitive thoughts rarely works. It can even backfire, leading to more rumination.

Construction of a meaningful narrative provides some objective distance from the subject, while providing some explanatory power that helps to short circuit rumination. Providing a coherent picture of the events allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

  • But you could also have cited work to show that people derive value in coping with trauma by painting, making music, dance, sculpture and other art as well as by writing narrative. And of course, you could have appealed to the literature about the value of non-narrative writing, such as poetry, in therapeutic situations. By discussing part of the relevant body of information, you can make an interpretation seem unavoidable which against a larger background would look at best plausible and would more likely seem underinclusive.

  • Are you saying that art (painting, music, dance, sculpture, poetry) is fundamentally different from writing narrative? That those things don't help people create explanatory narratives about what has happened to them? I don't really see them as a fundamentally different method of coping, so the writing example is merely that, an example. I suppose I could have included other work to show other ways people cope, but unless you are saying those methods are fundamentally different I don't see that they add anything except more examples.

III. Transcendental Nonsense and Modern Legal Magic are convincing narratives about the uncertainty in the outside world and our role in it.

It benefits both individuals within society and institutions as a whole to have convincing narratives about the way institutions operate. Given the uncertainty in the external world, especially with regards to other persons’ behavior, it is important to have narratives that explain such uncertainty within the confines of a rational narrative. Any individual case hinges on what evidence is produced, the judge’s and jury’s inclinations, the arguments made by counsel, and so on. With so many factors seemingly subject to the caprice of individuals, the result of an individual case can leave someone bewildered and confused. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness, anger, resentment, and depression can follow. So people have invented narratives to make sense of the legal system.

  • To say that things depend is not to say that they depend on whim. The manifold contingencies involved in social process, including but not limited to legal process, tend to confuse and therefore frighten and therefore render intolerant those people who have not been trained to cope with them. Lawyers, whose answer to every question is that it depends, are often therefore regarded as obscurantist, and people tend to value their own personal lawyers for helping them navigate through complex issues in a clear sequence with lucidly-presented options, risks and possible results. The final sentence seems to me indistinct in its meaning until "people" is clearer. Is that laymen, lawyers, politicians, clients, bystanders?

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes.

  • This is a conclusion. Cohen doubted it for one reason, Frank for another. You're now simply asserting its truth as an intermediate step in the argument.

Predictability is an important component of any legal system, and the transcendental nonsense buttresses and supports case precedent by rationalizing judicial holdings. Thinking that judges are supposed to rely on logic and precedent in determining case outcomes can be comforting when compared to a system where legal logic and reasoning are abandoned in favor of whim and personal biases. Fuzzy real-world realities can be slotted into existing legal fictions and the outcome becomes a matter of deduction. If a corporation is a person, it has to reside somewhere.

  • But if you can't tell where it doesn't do you any good and doesn't create certainty. If it were certain, it could be expressed in terms of the underlying social realities that made it certain. You aren't actually out-arguing Cohen on this point, you're simply refusing to understand him.

  • I didn't know I was trying to out-argue Cohen here. I was just trying to show that the system's logic takes fuzzy realities and makes them certain, at least within the confines of the system. Don't corporations have places of residence within the system, even if when we thought about the underlying social reality we thought it absurd? What have I misunderstood?

The narrative provided for determining the facts of cases also provides a relatively stable framework for deciding cases. Given the difficulty in obtaining reliable facts, the court uses strict procedures for determining what is and is not allowed. Since fairness often depends on the predictability of a legal outcome, and uncertainty makes it more difficult to apply the law evenly, the rigid rules are able to create a veneer of fairness. While this aura of objectivity would probably not withstand an assault by the complexities of reality, it does provide a comforting and finite realm for the court to conduct its business in.

  • Here too, you are missing the point. Those rules about what evidence to receive may or may not be helping the trial court to reach just outcomes, but what they are not doing, from Frank's point of view, is making it possible for appellate courts to do what they claim to do, namely tell correct outcomes from clearly erroneous outcomes by applying the right rules to the facts the court found. To say that they are providing a reliable basis for approximating reality closely enough for the purposes of doing justice may be true, but that's not relevant to Frank's point that once you have decided to receive a witness' testimony you then have to decide, and are supposed to decide on the basis of evanescent and unnamed evidences that cannot be grasped unless you were there, whether that witness is "credible" or not. What mostly concerns Frank is something that isn't part of your account of the situation at all.

* I didn't say that the rules were or weren't a reliable enough basis for approximating reality to "do justice". I thought I was saying that they were reliable enough to provide a coherent narrative that explains, and perhaps more importantly, predicts outcomes in the legal system to the satisfaction of most (maybe few?) of those who are affected by those outcomes.

IV. Just as some self-narratives are better than others, we should strive to find legal narratives that comport with the available evidence while still being helpful.

While narratives are often helpful, the further they drift from reality, the more they tend to produce undesirable outcomes. When legal logic and the rules of evidence become a hindrance to achieving justice rather than an adaptive narrative, they lose their value. Luckily, Frank and Cohen are willing to provide suggestions for creating new legal narratives that might produce better outcomes, legal narratives that better reflect reality, having done away with specious logical formalisms or rigidly ineffective rules of evidence.

  • But this conclusion is based on calling anything that Cohen and Frank support "suggestions for creating new legal narratives," which is mostly done by making "narratives" a synonym for everything. I think we could agree that neither Cohen nor Frank would recognize this as a description of his own project, and that should be a sign of trouble.

  • So, what was the simple and effective theme buried in the first draft that you saw? I seem to have left that theme entirely behind somehow.


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r7 - 08 Jan 2010 - 22:10:48 - IanSullivan
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