Exemplarity and Narrativity in the Common Law Tradition

Abstract

This paper argues that for the purposes of analyzing legal reasoning, exemplarity is profitably understood as a complex concept with the following dimensions: first, typicality; second, atypicality; and third, modelling for the future. These dimensions can also be usefully thought of in temporal terms: typicality is backward-looking, atypicality is present-regarding, and modelling is future-oriented. Any instance of exemplarity delicately balances these dimensions. This is equally so for any legal reasoning process, which must balance respect for the particularity of the present case, with respect for relevant past decisions and respect for the way in which the case might be used by future courts and those citizens most likely to be affected by the decision. The paper argues further that a useful device for balancing these dimensions of exemplarity is narrative. However, when we combine exemplarity and narrativity, we must be careful not to fall into the trap of thinking of narratives in a narrowly exemplary way, that is, as tales with a moral. To combine narrativity with exemplarity usefully—for the purposes of analyzing legal reasoning—narrative is best understood thinly, namely as a temporally organized matrix of happenings that resonates emotionally with the audience. So conceived, the processes of common law reasoning are full of exemplarity and narrativity. The paper is structured in two parts: the first elaborates on the concepts of exemplarity and narrativity used in the paper, situating them in the relevant literature; the second applies those concepts to a particular common law case, Williams v, Roffey (1991).