Narrative Interpretation

Abstract

Abstract Chapter 5 develops an account of narrative constitutional interpretation, oriented around an imaginary of analogy, as the interpretive paradigm able to sustain the virtues of anti-reification. Drawing on the work of American legal theorist Robert Cover, it argues that maintaining the temporal depth of law requires conceiving legal principles to depend upon the narratives that give them meaning. Cover’s innovative conception of legal narrative clarifies how courts resist reification by elaborating constitutional principles and the present patterns of fact in narrative form: that is to say, in light of past genealogy and future iteration. To tell a story about law’s development and possibility is to lay an open-ended claim to the analogical resonance of legal meaning across domains of democratic life: a governing rule, a factually analogous court decision, a public policy, a social custom, and cultural and moral values. Because analogical narratives hew closely to the lived experience that attends the realization of legal principles, faithful analogy illuminates fragments of a forgotten past, as much as it imagines an unpredictable future. Unlike previous imaginaries, analogy replaces the drive towards closure and abstraction with the more time-bound sensitivities of intelligibility. The chapter concludes with a concrete example of narrative interpretation at work: the remarkable Opinion of Advocate General Mengozzi in X and X v Belgium. From a narrow question of the provision of humanitarian visas under EU law, Mengozzi’s opinion builds a systemic critique of the crisis of refugee protection and international justice on the Mediterranean Sea.