Law in Contemporary Society
This paper is a revised version of MichaelDignanFirstPaper.

Demystifying Narrative

-- MichaelDreibelbis - 21 Apr 2009

I. Introduction

Like poles for fishing; like drums for playing: people use narratives to order the world into a framework with which to make sense of the past, get the most out of the present, and prepare for the future. Narratives perform these functions within the lives of individuals as well as within the context of the lawmaking and fact-finding processes of the judicial system. While we might readily admit that, say, a belief in God helps us cope with uncertainty, however, we are normally more inclined to say that the latter processes eliminate it. However, Felix Cohen and Jerome Frank's accounts of abstract legal reasoning as transcendental nonsense and judicial fact-finding as modern legal magic suggest that our judicial system is as much about satisfying our need for meaning as it is about seeing justice done. Taken together, these critical accounts of the law remind us that when we treat our tools for judicial meaning-making as ends in themselves, we risk making an idol out of the law at the expense of justice.

II. The Function of Narratives in Human Life

Personal Narratives

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.

Incorporating such depressing events into 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.

Legal Narratives

Given the uncertainty of the external world, it benefits people collectively to create meaningful narratives about the way they and their institutions act. To that end, the legal system acts for us collectively as religious beliefs, personal philosophies, and carefully constructed identities function at an individual level. A failure to synthesize past difficulties (read: lawsuits and crimes) into a meaningful narrative can give rise to powerlessness and resentment in a social context as well as an individual context. And a capricious system where prosecution and incarceration appear subject entirely to whim will inevitably produce the same negative results. A system of predictable legal rules and the collective conviction that they are correctly applied can replace feelings of arbitrariness and hopelessness with certainty on a societal level, just as making personal plans in a narrative context creates meaning and order within a personal life.

III. Legal Narratives and the Problem of Certainty

Transcendental Nonsense

The certainty society derives from the legal system may come at a price, however. By treating the law as though it were purely a system of abstract concepts existing independently of their real world consequences, argues Felix Cohen, judges and lawyers imbue the law with the illusion of objectivity. What appears to be a concrete basis on which to decide cases in fact fails to take the potential real-world consequences of the legal concepts into consideration. When empirical attention to the facts of the case and the impact of applying a rule reveal that the abstract concepts do not serve the interests of society, even though they may be internally consistent, allowing such “transcendental nonsense” to pass as the rule of law sacrifices the interests of justice to society's need for certainty.

Modern Legal Magic

Jerome Frank points out a similar disparity between the court's story and the reality of fact-finding. Setting up rules for evidence that gloss over the complexities and uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases. Given the immense difficulty of finding facts reasonably reliably, it is no surprise that a narrative structure has been invented that allows for courts to decide cases by applying law to some set of facts that were decided in a seemingly predictable and fair way. But when a premium is put on evidence entered by witness testimony, the very real problem of human bias and subjective observation can create injustice. This modern legal magic creates an aura of objectivity that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

IV. Approaching Solutions

Given the limitations of being human, it does not seem that narratives can be totally done away with. Without a coherent framework from which to interpret the world, it's hard to imagine how we could go about making law at all.

An appropriate response to Cohen’s and Frank’s criticisms would be to try and construct new narratives, that are more adaptive; narratives that produce better outcomes. With regard to transcendental nonsense, such narratives would have to recognize that legal concepts such as property or personal jurisdiction are only useful to the extent that they help us identify the just course of action. Testing laws against their consequences rather than shielding them from them might help us fine-tune our laws to comport with social reality.

Additionally, the recognition of our underlying need for certainty creates the opportunity to question the value thereof. To that end, we should take Holmes' words to heart: “certainty is generally an illusion, and repose is not the destiny of man.”

  • I think this is a sound edit. You do the necessary work of untangling the relation between the argument and the sources it relies upon. Your restraint isn't so great as to prevent the devising of a better opening, but it does hold you true to the task of getting at Michael's first draft's intentions.


Webs Webs

r3 - 08 Jan 2010 - 22:27:22 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM