VOL.6 NO. 9 (SEPTEMBER, 1996) PP.
LAW'S STORIES: NARRATIVE AND RHETORIC IN THE LAW by Peter Brooks
and Paul Gewirtz (Editors). New Haven and London: Yale University
Press, 1996. 320 pp. Cloth $30.00.
Reviewed by Ira L. Strauber, Department of Political Science,
Grinn ical, and legal utility of confessions (the last for
reducing death penalty sentences). Yet, in a nice post-modernist
twist, Scarry goes with lawyers and their doubts about victim
impact statements and against Gewirtz's qualified endorsement of
them, arguing, in essence, that there is never a good reason to
absolve the state, and the state alone, from being totally
responsible for punishing citizens.
In the second comment the Weberian voice returns, via the
skepticism of practitioner Louis Seidman. He assembles a set of
short "confessionals" about his work as a public
defender to say that all there is to the law is story upon story,
and that it is futile to make more of it than that. The
concluding section concerns the rhetoric of judicial opinions.
John Hollander, a poet, provides a short historical and
conceptual sketch of linkages between classical and modern
analyses of metaphor, analogy, and simile to demonstrate how
precedents might be better understood as a rhetoric of authority
and not persuasion. Sanford Levinson addresses this and other
issues of authority and persuasion from the context of the
judicial hierarchy. One of his purposes is to encourage scholars
to ask empirical questions about context even as they interpret
judicial rhetoric, so as to be more attentive to the possibility
that higher courts use rhetorics of authority (force) more than
persuasion. Another purpose is to encourage questions about the
intended audience of opinions, as when, for instance, one tries
to evaluaconcerns as the precise fit between literary and legal
analysis and the political promise of legal storytelling resonate
throughout the volume so as to provide a lively and profitable
read.
In Section One, devoted specifically to the concern over fit,
Martha Minow identifies storytelling with common-law reasoning
and the political theory storytelling of Hannah Arendt. This
leads her to argue that storytelling about the law, like the
common law, is always incomplete because it attends to specifics
that are complex and always susceptible to various
interpretations. And, like Arendt's theorizing, storytelling
struggles with, but cannot resolve, fundamental dilemmas about
the meaning of modernity and scholarly methods. Nevertheless,
Minow sees promise in storytelling's challenge to scholarly
conventions and its willingness to confront messy and complex
social realities.
Daniel Farber and Suzanne Sherry situate storytelling in the
"deep intellectual divide" (51) between devotees of
Enlightenment rationality and critical theorists who want to
displace conventional scholarship--in other words, between
advocates of the coherence of legal formalisms and advocates of
the indeterminacy thesis. Farber and Sherry favor that thesis and
its challenge to conventional scholarly methods. But they are
decidedly troubled by the intellectual messiness that supervenes
and so propose three ways to achieve greater intellectual
coherence: 1) use the language of the other side to win the
battle of persuasion; 2) invent alternative approaches to legal
reasoning; or 3) clarify what the divide is about to reduce
hostilities if not discover some common ground. They prefer the
last of these, but warn that the divide between the sides may be
too deep to bridge.
Anthony Kronman, commenting as a legal scholar, issues a
(Platonist) warning against the displacement of conventional
scholarship: reason, he asserts, is required to guide actions,
and storytelling that appeals to the emotions without giving
conventional rationality its due leads to the abyss of moral
indeterminacy. Taking the contrary position, Harlon Dalton, also
a legal scholar, praises Minow's approach to storytelling and
attacks Farber and Sherry's systematizing efforts as subversive
to the interrogation and displacement of conventional methods.
Section Two concerns narrative constructions in and about
(primarily) criminal law. Robert Weisberg, a legal scholar, takes
a skeptical view of the ways the "law-as-narrative
trope" is used to interpret litigation. Skepticism leads him
to take issue with claims that storytelling has led to pungent
challenges to conventional law or legal analysis. Much of the
time he finds storytellers overly infatuated with their own
ethical or political sentiments. Rather, like Minow, Weisberg
locates storytelling's promise in its capacity to demonstrate why
there is no single truth, nor even a dialectic between two
competing truths, but only a persistent contest between
polymorphous narratives about law, government, political
interests, and identities.
Robert Ferguson, both a literary and legal scholar, concurs. His
emphasis is on how the clash between opposing stories in trials,
the need to persuade the court, the constraints of legal
formalisms and procedures, and socio-political narratives outside
the court produce manifold hidden, neglected, or repressed
stories waiting to be recovered in trial transcripts and through
cultural history by scholars and lawyers alike. Ferguson refers
to an 1800 Virginia slave insurrection trial to explain why, in a
polity committed to the rule of law and to social justice, some
black legal scholars have come to see it as "both a
prerogative and a burden to speak about the failures of the law
in a personal or confessional mode (96). The commitment to such
speaking out, Ferguson says, helps us to confront the future and
its problems with less political alarm.
Practitioner Alan Dershowitz is among those who are not sanguine
about storytelling, either in or about the law. Betraying a
Weberian habit of mind, he asserts that "events are often
simply meaningless, irrelevant to what comes next" (100). He
claims that good narratives story lines make for bad trial law.
Referring to the O.J. Simpson trial and the alleged associations
between spousal abuse and murder as a case point, Dershowitz
contends that dramatic story lines--which he bemoans as
inevitably more attractive to jurors than statistical or
probabilistic lines--distort the legal process and the good law
that arises from rules for evidence, relevant testimony, and
prejudicial accounts.
In the comments section, literary scholar Janet Malcolm and
practitioner David Rosen present a fatalistic, yet sanguine, view
of storytelling's effects in litigation. Malcom contrasts the
hidden negotiations of trial side-bar conferences with the open
antagonism of trial litigation. Although the hidden, she says,
gives outsiders a false impression of lawyerly malevolence in a
trial's story, it also has the positive effect of containing the
malevolence and antagonism within the otherwise brittle
procedures of judicial fair play. Rosen also refers to false
impressions, acknowledging that the story he tells a jury for the
sake of winning a trial differs from the political or moral story
a client would prefer to tell. But compromising a client's
preferred story is the inevitable, he says, price to be paid to
protect a client's best judicial interests.
The editors hold sway in Section Three about the tendency of
narratives to intrude on the law's capacity to exclude the messy
and complex realities of social life. Brooks uses the narrative
role of confessions in literature (e.g., Rousseau, Dostoevsky,
and Camus) to suggest how and why confessions may be an attempt
to assure punishment or to avoid it altogether or at least avoid
greater punishment for another crime; they may even be an
admission of something that is psychologically troubling but no
crime at all. For Brooks, since the meaning and motives of
confessions are unstable and unreliable (125), they are therefore
unreliable indicators of legal guilt that the law should
distrust.
For Gewirtz, victim impact statements at the sentencing stage in
death penalty cases, as well as greater public interest in
criminal trials as "a central moral arena for society"
and "a source of entertainment" (151), introduce messy
factors into the law. Gewirtz has some confidence in victim
impact statements as a way to clarify harms to victims or
relatives. But there may be unintended results as well, such as
jurors being overwhelmed by emotional impressions that cloud
their reasoning (e.g., thinking a greater penalty is due a
criminal because they have been persuaded that some victims'
lives are comparatively more valuable than some others').
As for the risks posed by public interest in trials, the
greatest, says Gewirtz, is the delegitimization or corruption of
the judicial process, when, as in the Simpson trial, the public
rejects the story a jury tells for the one that the public wants
told. But Gewirtz advises against trying to forestall all the
risks of impact statements and public interest in trials;
non-legal narratives always try to intrude into the law, he says,
and the tension between the two is necessary in a republic.
Litigators and adjudicators who are
"self-conscious...theorist(s) of narrative forms" (147)
should instead seek to balance the costs and benefits of the
tension between what the law is and what the public wants from
it.
Elaine Scarry comments directly on the essays of Brooks and
Gewirtz. A literary scholar, she distrusts their focus on the
narratives of participants (perpetrators and victims), for it
omits, she says, sufficient attention to narrative in the context
of the adversarial profession. As for confessions, Scarry holds
that lawyers discourage confessions to preserve themselves. In
effect, she faults Brook's analysis for its capitulation to legal
self-interests, and she defends the moral, psychological, and
legal utility of confessions (the last for reducing death penalty
sentences). Yet, in a nice post-modernist twist, Scarry goes with
lawyers and their doubts about victim impact statements and
against Gewirtz's qualified endorsement of them, arguing, in
essence, that there is never a good reason to absolve the state,
and the state alone, from being totally responsible for punishing
citizens.
In the second comment the Weberian voice returns, via the
skepticism of practitioner Louis Seidman. He assembles a set of
short ÒconfessionalsÓ about his work as a public defender to
say that all there is to the law is story upon story, and that it
is futile to make more of it than that. The concluding section
concerns the rhetoric of judicial opinions. John Hollander, a
poet, provides a short historical and conceptual sketch of
linkages between classical and modern analyses of metaphor,
analogy, and simile to demonstrate how precedents might be better
understood as a rhetoric of authority and not persuasion. Sanford
Levinson addresses this and other issues of authority and
persuasion from the context of the judicial hierarchy. One of his
purposes is to encourage scholars to ask empirical questions
about context even as they interpret judicial rhetoric, so as to
be more attentive to the possibility that higher courts use
rhetorics of authority (force) more than persuasion. Another
purpose is to encourage questions about the intended audience of
opinions, as when, for instance, one tries to evaluate what it
means to say that an opinion is persuasive or not. Levinson
asserts that ever fewer judges and academics read opinions, and
that consequently scholarship about an opinion's
ÒpersuasivenessÓ (whatever that may mean) says more about the
scholar than the opinion. Nonetheless, and on yet another
Weberian note, Levinson confirms such scholarship as a way of
imposing intellectual order on the messy and complex realities of
law and politics.
In the comment section, legal scholar Reva Siegel takes issue
with Hollander's literary approach to tropes and Levinson's
treatment of authority and persuasion. She finds them both stuck
on (modernist) dichotomies that cause them to miss more important
and less discernible ways in which figurative language
contributes to the construction of social relationships and
experiences. Siegel's premise is that figuratives knot together
social facts, values, and descriptions so tightly that a
different kind of analysis than either Hollander or Levinson
provides is necessary to reveal how figuratives and power
relations together shape the perceived authority and
persuasiveness of legal rules and their social consequences.
In the comments section, Judge Pierre N. Leval delightfully takes
notice of the similarity between his role at the conference and
the corpse in Rembrandt's Anatomy Lesson! Leval, an archetypal
formalist, is altogether unsympathetic to talk about rhetoric in
the law. For him, storytelling is nothing more or less than a way
to cover up unpersuasive arguments and weak legal reasoning.
J.M. Balkin makes an implicit rejoinder to Laval by arguing that
rhetoric's intrinsic role in arguments in and about the law can
be understood only by recalling classical rhetoric's treatment of
topoi as problem-solving devices that help locate, categorize,
and organize legal issues. Balkin claims that studying topoi will
help (lawyers) clarify legal doctrines, foster legal creativity,
increase understanding of shared social practices and background
assumptions, and provide a more discriminating sense of law as an
instrument of social policy.
The volume closes with a typically trenchant call by Catharine
MacKinnon for unabashed storytelling about the excluded and the
marginalized. She warns against regressive storytelling about the
law that stops at descriptions and interpretations of messy and
complex realities and therefore fails to attack existing power
relations, inequalities, and conceptions of legitimacy.
In all, LAW'S STORIES is a worthy attempt to fulfill the editors'
hope to encourage more research on stories in and about the law
and to expand the audience for it beyond the legal community.
Those who are unfamiliar or untutored in narrative and rhetoric
will find the contributions accessible and provocative. Those who
are more experienced will enjoy sorting out the disagreements
among the contributors and acquire a clearer sense of what is at
stake here.
Copyright 1996