Norm Contestation for Strategic Effect: Legal Narratives as Information Advantage

Abstract

Telling stories is intrinsic to legal practice. Clients, lawyers, and courts constantly tell stories about the facts and the law to make sense of the world around them. Legal narration is thus a familiar feature at the domestic as well as at the international level. In formal venues, legal storytelling is subject to arange of procedural and substantive requirements. For example, not everyone enjoys standing before a particular court. By contrast, in informal venues, few if any such conditions apply. Press releases, official statements and social media posts provide legal actors with considerable latitude and communicative freedom to give their version of events. Much of this has emancipatory potential, as it can lend a voice to those who lack representation in more formal circumstances. However, it also enables actors to engage in legal discourse, and to spin their stories, without the various checks and balances that apply in formal settings. Legal narratives are also a source of conflict, polemics and even misinformation. The purpose of this article is to take a closer look at the role that legal narratives play in the contestation of, and contestation through, international norms. The article argues that legal narratives display certain distinct features that set them apart from other types of storytelling. Specifically, they are marked by normative constraints imposed by the formal nature of legal reasoning and interpretation and by the logic of rhetoric and the policy choices they are meant to serve. These two features – the formalism of the law and the demands of rhetoric and instrumentalism – pull legal narratives in different directions. Outside formal processes and venues, this tension becomes acute. In the absence of epistemic scrutiny by experts and authorities, legal narratives may stray far from the formalism of the law in pursuit of competing goals. Where these goals gain the upper hand, attaining an information advantage may become their primary purpose, a point the article illustrates with reference to the justifications Russia offered for its invasion of Ukraine in 2022. In such circumstances, legal narratives may invoke the language and authority of the law not just unpersuasively, but falsely.