Norms and Narrative

Abstract

As a normative social practice, law mediates between the “is” and the “ought,” between prescription and description. Obviously, narratives and narration play a role in law when it comes to describing facts and events: The testimony of a witness in court, the presentation of the case in a judgment, or (semi-)fictional cases used for legal education spring to mind. In this Article, however, the focus is on the prescriptive side of law. If, in line with the definition given by Matías Martínez and Michael Scheffel, a narrative is to be understood as a “sequence of events and actions producing at the level of [literary] action an autonomous structure of meaning,” it becomes possible to identify narratives and narrative elements within legal norms and provisions. The first part of this paper will deal with grand historical —or historicizing—narratives and cast some light on how they are used to give sense and direction to the interpretation and application of, especially, constitutional principles. The second part will suggest a narratological perspective on statutory law and attempt to reconstruct the process of norm application. This Article argues that this process relies mainly on comparative methods, and that narratives mediate between the seemingly opposed spheres of law and fact. Both kinds of narratives, thegrands récitsof constitutional law and thepetits récitsof statutory law, though quite different at first sight, possess common traits. They both fit the definition of narrative just cited; they both result from a process of selection and are thus prone to exclusionary effects. Moreover, the grand narratives of constitutional law also affect statutory law, its interpretation, and its application.