Narrativity of the Law

Abstract

“Law and literature,” amorphous as the concept may be, increasingly commands attention as a Ž eld of study, one that now offers books that attempt to present a conspectus of its possibilities and methods. And within that broad Ž eld, an attention to the narrativity of the law has begun — though just barely — to assert its importance. The notion of “narrativity” postulates that there is a recognizable discourse or operation we call narrative that, while not necessarily wholly independent of its expressive medium (in words or in Ž lm or ballet, for instance, in French or in Chinese) can nonetheless be abstracted from that medium — as in the “plot summary.” Narrative is not wholly deŽ ned by the plane of its expression: stories can be translated, they can be transposed to other media, they can be summarized, they can be retold “in other words” and yet still be recognizably “the same story.” Legal scholarship Ž rst registered the importance of narrative through an attention to “storytelling for oppositionists” — the claim that narrative is an important tool for individuals and communities who need to tell the concrete particulars of their experience in a way normally excluded by legal reasoning and rule. Now we encounter the larger and more radical claim that “Law lives on narrative,” in the words of Anthony Amsterdam and Jerome Bruner. If the traditional supposition of the law was that adjudication could proceed by “examining free-standing factual data selected on grounds of their logical pertinency,” now “increasingly we are coming to recognize that both the questions and the answers in such matters of ‘fact’ depend largely upon one’s choice (considered or unconsidered) of some overall narrative as best describing what happened or how the world works” (111). These assertions seem unimpeachable to literary narratologists, who have long argued that narrative is one of the large categories in which we order and construct reality. But I think that they remain heretical within the world of the law, which does not overtly recognize “narrative” as a category in the process of legal adjudication. SigniŽ cantly, and sadly, the best-known book on law and lit remains Judge Richard Posner’s Law and Literature: A Misunderstood Relation,