|
Volume 20, Number 1/2 reprinted by permission Legal Studies Forum NARRATIVE RESISTANCE AND THE STRUGGLE FOR STORIES KIM LANE SCHEPPELE* hears no stories. A model petition to this court reads: "Paragraph 47 of the 25th law of 1991 violates Article 70A of the Constitution." It's as if you're a student taking a test and the only instruction' is: "Discuss." So, what do you do, if you're a judge, with a petition like this? Well, first you look up paragraph 47 of the law. Then you look at article 70a of the constitution. Then you work out whether there is an abstract logical space in which the two are inconsistent. If there is any such space, the statute is unconstitutional. If you can hold both in your mind without logical inconsistency, then the statute is fine. When you have figured this out, then you write. Of course, this exercise is not the way we lawyers in common law systems have learned to think about judging. It's not the way we file briefs with a court either. And it's not the way we teach. If a judge in America tried to write an opinion without facts, she would be held not to have been acting as a judge at all. Instead, she'd be a philosopher or a legal theorist. If a lawyer in America tried to file that single sentence about paragraph 47 as a brief with the Supreme Court, she'd be liable to a charge of frivolous lawyering - if she were in fact recognized as having made any sort of legal claim at all. If a law professor in America taught a class using only abstract interpretation as a method, she would not be preparing her students for the "real world" of law. And she'd have a very hard time finding a textbook to use. We (those who subscribe to American law as a set of practices) need cases; we thrive on facts. With facts, we make stories, and we worry about the application of rules to the stories we make. But the petition about paragraph 47 that I have just described is in fact the model form that requests for judicial review take at the Constitutional Court in Hungary. I won't go on about the competencies and practices of the Hungarian Constitutional Court in any detail - except to say that it is the most powerful court in the world - but I do want to make one point. If you write a long personal story, full of the authority of the pronoun "I" and carrying what American lawyers would recognize as a serious complaint against a government or court decision that has affected you - and you don't say something like the formula above - the court won't hear your case. Stories don't count. Stories aren't necessary. You don't even need to be personally involved in anything to which paragraph 47 might apply to get the court to listen. Anyone can file a petition. And all the Hungarian Constitutional Court does is review laws in the abstract to see whether they violate the constitution in the abstract. It has no power to hear "concrete cases." Having written for several years before I moved to Hungary about the power of narrative in legal settings - American legal settings, that is - I was originally quite disconcerted by the idea of a court with no facts. No characters. No details. No stories. Nothing, I thought, to hang on to. How can you even remember that "the abortion case" is 64/1992 instead of something with a real name like Roe v. Wade? I spent my first few months at the court totally disoriented. But here is the moral of my tale of Hungary: With this as a point of contrast, I could see that American lawyers, judges and law professors - even litigants - hang onto facts whether we "do narrative" or not. Law comes in cases; cases come with facts; facts are arranged into stories. Our understanding of what the "law" is in a given case is conditioned powerfully by our understanding of how the facts limit the application of the rule in hypothetical future cases themselves envisioned as having, well, facts. Law is mixed up with facts all the way down. And we arrange facts in stories not in lists. It's not this way for all lawyers everywhere; in fact, for most of the world, law is not only thinkable absent facts but it gets muddy and confused with facts. As one of my Hungarian research assistants said half-way through his American LLM degree: "How can they think they are teaching law when they don't even make you read the statutes?" In much of the writing currently being done about legal narrative in America, the assumptions of the background legal culture "go without saying." American legal culture is addicted to facts. We name our cases after people; the actors on opposite sides of the "versus" are in some relationship with each other which the story of the facts sets out to describe. We can no more do law without stories than we can fly without mechanical devices. Stories are already always everywhere in American legal scholarship, no matter how doctrinal the scholarship is. To a civilian lawyer, Americans appear obsessed with stories. So when American legal scholarship turned to narrative and storytelling as theoretical devices in the 1980s, why was there such an uproar? (I take "uproar" to be the number and severity of articles devoted to promoting and attacking narrative as a method.) There was an uproar because the focus on legal narrative itself has a context in contemporary American legal culture that makes the current uses of narrative theory controversial. Despite the fact that figures from Jesus to Reagan spoke primarily in stories as ways of making points, conveying information and making vivid a particular moral point of view, the stories of Patricia Williams, Derek Bell, Richard Delgado, Mari Matsuda, Marie Ashe, and other feminists and critical race theorists were the target of quite aggressive critiques written by those self-identified as being in the "mainstream" (for example, Daniel Farber and Susannah Sherry) or even in leftish legal scholarship (for example, Mark Tushnet). These critics called for "standards," "reason, and "integrity" in the use of stories in legal scholarship, implying that the stories of women and people of color were short on those things already. (I'd hate to see how either Jesus or Reagan would fare in these evaluations, but they fortunately weren't writing in the law reviews.) Some of these critics came perilously close to accusing those engaged in "outsider storytelling" of lying about their own experiences or strategically misrepresenting "the facts." The more charitable interventions suggested that perhaps accuracy wasn't really all that important after all since the stories were intended to be "literary." (One critic suggested that the precise truth value of stories always be made clear. I can imagine a warning label like those on cigarettes. Caution: believing that this story is true may be hazardous to your legal scholarship.) That the critics focused quite largely on truth, falsehood, sincerity, lying and "standards" is itself interesting. Their biggest anxiety seemed to be that they might be misled by hearing stories that were not confirmable by other evidence, so they missed what the outsiders were trying to say - that the insiders should imagine what it would be like if the world were like this and they (the insiders) were victims of arbitrariness and bias. The insider critics wanted to know only if the stories were true. But the discursive space of the responses that the storytellers and their allies used was also very revealing, featuring the vocabulary of voices, points of view, diversity, multiplicity and outsiderness. This vocabularity denies the singularity of description, so crucial to some ideas about truth. The storytellers emphasized that the authority of the stories should rest on the perspectives from which they were told, which only made the critics more nervous about truth. These two frames share very little; the two groups were talking past each other. So much for the compelling qualities of narrative, which provoked anxiety rather than understanding. But so much also for the compelling quality of appeals to truth, which provoked the response that the idea of truth itself needed to be examined. Since I now reenter American legal culture rather like someone who has spent the last two years on a spaceship circling a different (civil law) planet, the level of misunderstanding in the debate looks very strange to me, even though I participated in establishing the case for narrative scholarship in American law. How can two groups who - from my position in the spaceship - are really so close to each other in their near-total dependence on facts for thinking law at all be so much at odds over the uses of stories in legal scholarship? Surely the fight can't be this bitter over simply which stories should be used as primary examples? Instead, I think that the fight is over something else. (Some of it may be due to general hostility on the part of mainstream legal scholars to the feminist and critical race theory perspective on law, but let me put that aside because it would involve more ad hominem and ad femininem attacks that have become staples of this literature.) I think that the fight is over the power of what I have called "evidentiary habits." People may be willing to debate what the rules should be, how legal problems ought to be resolved, even what right and wrong should be. But people do not like having their sense of reality challenged. If we believe something is true, we do not like to have that unsettled. Battles over methodology are battles over who gets to judge what truth is. Our methodologies for figuring out what truth is are as deeply engrained as habits. And the narrative battles are just like battles going on in the social sciences and humanities these days, where intersubjective agreement through previously specified methods counts as objectivity (i.e. could two observers see the same thing if they followed the same rules?). But in the social sciences and humanities also, insurgent movements are challenging the way in which this elimination of the unique or unusual observer biases knowledge. What has gotten the narrativists and the critics so exercised is the use of stories to highlight "outsider" experience. The narrativists use their own experiences to try to explain why they do not share the common reactions of their non-outsider colleagues to legal problems and to legal thinking. The critics see people hiding behind the "I" of personal experience as a way of refusing criticism. Who could deny that stories - however singular, however challenging, however ordinary, however unrepresentative, however tragic, however illuminating - are central to the way in which we think about and practice law in America? For example, explain what the separation of church and state means without any stories or facts. Or explain what an adhesion contract is without reference to cases. Such descriptions will seem hopelessly vague and not very helpful to an American lawyer. And who could believe that the stock stories we have in our heads when we think about abstract legal questions are irrelevant for how we think about those questions? For example, if you believe that "ideal free market" stories are facts, then you'll think differently about the regulation of commercial establishments than you will if you believe that Pat Williams' Benetton story is a better description of the practice of retail sales in America. (By the way, no one in the critical articles I've read about narrative theory has taken note of the fact that law and economics is one branch of legal theory spinning out idealized stories all the time, and recommending policy options based on their idealized stories. Perhaps we should ask whether these stories of rational actors being moved by incentives are really true, self-believed, conforming to standards of empirical typicality.) In fact (!), I think that is true even in legal cultures where facts are less overtly important than in common law systems - that we always bounce our abstract analysis off the imagined facts and collected stories in our brains before pronouncing our analysis to be sound. So it matters that we have a collection of stories to use for such purposes - stories that represent different points of view, stories that embed different values and opportunities, stories that reflect different tragedies and social pathologies. *Kim Lane Scheppele is Professor of Law, Political Science and Sociology, University of Pennsylvania and Co-Director, Program on Gender and Culture, Central European University, Budapest. This essay is based on a presentation at the American Association of Law Schools, San Antonio, Texas, January 6, 1996. |
