Narrative Transactions - Does the Law Need a Narratology?

Abstract

I have for some time been puzzled about the status of narrative in the law, and more particularly the status of talk about narrative in the law. On the one hand, there has been plenty of legal scholarship-starting more or less from the "storytelling" issue of Michigan Law Review in 1989 - on the uses (and the virtues) of "outsider" narratives in the law, and even before that there was Robert Cover's foundational Nomos and Narrative. It has become something of a commonplace - too much of one - that legal storytelling has the virtue of presenting the lived experience of marginalized groups or individuals in a way that traditional legal reasoning doesn't. This view has of course been criticized, and some of the more naïve assumptions about the moral benefits of storytelling have been questioned. On the other hand, I am not aware that all this story talk has made any difference to legal actors. Trial advocates tell stories - they have always told stories - and clinical training in advocacy includes some attention to construction of the story you will tell in the courtroom (which of course echoes the training in rhetoric given to lawyers in antiquity, when rhetoric and the law were inextricably interwoven). In particular, it is assumed that juries often decide verdicts on the basis of the more persuasive story presented at trial. Yet you search in vain for any explicit recognition by legal decisionmakers that how a story is told can make a difference in legal outcomes. That is not quite true: there are moments when the law notes that a story has been mis-told, or not told according to the rules (of evidence, for instance), or doesn't make sense as told. Appellate courts are to some degree the enforcers of rule-governed storytelling. Yet they don't talk narrative talk. They are conspicuously lacking in the analytic vocabulary and tools of literary "narratology," for instance. Narratology - which I shall discuss in more detail later on- distinguishes between events in the world and the ways in which they are presented in narratives. It pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that reestablishes order. Narratology also studies perspectives of telling: who sees and who tells, the explicit or implicit relation of the teller to what is told, the varying temporal modalities between the told and its telling. I know of only one instance when the Supreme Court shows an explicit, quasi-narratological awareness of narrative as a category of thought and presentation of reality (I'll come back to it later), and it has not produced a sequel.