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< | The Restatements of Law as a Narrative Account | >
> | Abstract: Narratives are the most common form of modern historiography. Although other forms of history exist, and were used on a regular basis in earlier times, they are rarely used anymore. For a number of reasons the narrative account is considered superior to those other, older styles, of historical expression. However, this transition in history from annals and chronicles to narratives seems to hold interesting parallels to the transition in law from the vast web of common law precedents to the organized – and very narrative-like – accounts of law in the Restatements.
The Restatements of the Law as a Narrative Account | | | -- By GideonHart - 10 Feb 2008 | |
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< | Topic Statement: Narratives are the most common form of modern historiography. Although other forms of history exist, and were used on a regular basis in earlier times, they are rarely used anymore. For a number of reasons the narrative account is considered superior to those other, older styles, of historical expression. However, this transition in history from annals and chronicles to narratives seems to hold interesting parallels to the transition in law from the vast web of common law precedents to the organized – and very narrative-like – accounts of law in the Restatements. | | | Historical Narratives
The Annals | |
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< | One of the earliest forms of historical account is the annals. These primitive accounts consisted primarily of lists of years and events – unlike the modern historical narrative there is no commentary or plot connecting the events. Rather, each event exists alone in space, separated from the other points in history by a seemingly troublesome void. The annalist was not attempting to tell a particular story of history, he was merely recording events as they happened. The gaps and holes in the account would not have troubled the annalist – the years with incomplete or missing accounts merely had no events occurring in them that were worth recording. | >
> | One of the earliest forms of historical accounting is the annals. These primitive accounts consisted primarily of lists of years and corresponding events; unlike, the modern historical narrative there is no commentary or plot connecting the events. Rather, each event exists alone in space, often separated from the other points by years with no corresponding events. The annalist was not attempting to tell a particular story of history. He was merely recording events as they happened. The gaps and holes in the account would not have troubled the annalist – the years with incomplete or missing accounts merely had no events occurring in them that were worth recording. | | | Development of Narrative Voice in History | |
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< | As the process of recording shifted from the annals to chronicles, the form of the history again reflected the writer’s purpose for the historical account itself. These accounts were much closer to the modern narrative – although usually still a list of years and events like the earlier annals, the chronicles tend to be focused on a particular topic. Often, they were commissioned to tell the history of a particular people or geographic area. Importantly, these works take an important step towards narrating – the chroniclers begin selectively choosing events to fit a particular goal, rather then merely recording events. However, these accounts have an important characteristic that prevents them from being a true narrative. The chronicles were not able tell a complete story because they, like the earlier annals, tended to end at an arbitrary point, often the present. These accounts provided no true sense of closure, as is necessary in the modern narrative. | >
> | As the process of recording history shifted from the annals to the chronicles, the form that history took again reflected the purpose for the account itself. The chronicles were much closer to the modern narrative – although they usually were still a list of years and events like the earlier annals, the chronicles tended to be focused on a particular topic. Often, they were commissioned to tell the history of a particular people or geographic area. Importantly, these works take an important step towards narrating – the chroniclers begin selectively choosing events to fit a particular goal, rather then merely recording events. However, these accounts have an important characteristic missing that prevents them from becoming true narratives. The chronicles were not able tell a complete story because they, like the earlier annals, tended to end at an arbitrary point – often the present. These accounts provided no true sense of closure, as is necessary in the modern narrative. | | | | |
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< | From the chronicles, it was not a huge leap to the modern historical narrative. The modern narrative, like the historical chronicle, focuses on telling a particular history. The narrative historian selects particular events to best fit his conception of what he envisions past reality to be. The modern narrative takes the enormous step of telling a finished story. Unlike the annals or chronicles that described an ongoing story, the modern historical narrative tells a completed story. The world described in the narrative is finite, finished, and understandable. The narrative account is the thread that weaves the events of history into a single, linear plotline. Often the historian must fill gaps in the story with inference and guesswork; the life-work of countless historians has been spent closing the gaps between known dates and events with conjecture and inference (a story is not complete if it has holes). However, the historian must, in an attempt to separate his own story-telling from the historical events, make the account appear as though it was naturally occurring and discovered, and not created – otherwise, the historian would sacrifice his own credibility as a teller of truth. | >
> | From the chronicles, it was not a huge leap to the modern historical narrative. The modern narrative, like the historical chronicle, focuses on telling a particular history. The narrative historian selects particular events to best fit his conception of what he envisions past reality to be. The modern historical narrative takes the important step of telling a completed story. The world described in the narrative is finite, finished, and understandable. The narrative account is the thread that weaves the events of history into a single, linear plotline. Often the historian must fill gaps in the story with inference and guesswork; the life-work of countless historians has been spent closing the gaps between known dates and events with conjecture and inference (a story is not complete if it has holes). However, the historian must, in an attempt to separate his own story-telling from the historical events, make the account appear as though it was discovered, and not created. Otherwise, the historian would sacrifice his own credibility as a teller of truth. | | | Restatements as a Legal Narrative
Early Common Law as an Annals | |
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< | The modern common law, as we are familiar, has its origins in medieval English history. Through use of stare decisis, a system of basic legal rules and practices eventually developed. To determine what the law was, the judge, when faced with a particular fact pattern was forced to apply a record of past decisions to the case-at-hand. The law itself was a record of past events (legal disputes); the common law was not a coherent narrative, but was simply a record of decisions. The gaps in the law in a particular jurisdiction were not particularly troublesome. If a dispute was sufficiently different from any other previous dispute in the jurisdiction, a legal decision was recorded and became a binding event for future disputes. | >
> | The modern common law has its origins in medieval England. Through use of stare decisis, a system of basic legal rules and practices eventually developed. To determine what the law was, the judge, when faced with a particular fact pattern applied a record of past decisions to the case-at-hand. The law itself was a record of past events (legal disputes). The common law was not a coherent narrative, but was simply a record of decisions. The gaps in the law in a particular jurisdiction were not particularly troublesome. If a dispute was sufficiently different from any other previous dispute in the jurisdiction, a legal decision was recorded and became a binding event for future disputes. | | | Restatements as a shift to Narrative in Law | |
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< | As the number of earlier decisions binding judges increased, so did the complexity of the common law. To better organize the law, the decisions were grouped into categories such as “torts,” “property,” and “contracts.” Each of these subjects recorded the history of a particular legal subject up to the present – stopping at the most recent case in the jurisdiction. These sub-divisions were a major first step towards the modern legal narrative. Although these accounts retained the record-like structure of the annals, these histories assumed the form of a chronicle because the jurists writing them took the major step from merely recording decisions to selectively choosing the decisions that were important to that type of law. | >
> | As the number of earlier decisions binding judges increased, so did the complexity and scope of the common law. To better organize the growing law, decisions were grouped into categories such as “torts,” “property,” and “contracts.” Each of these subjects recorded the history of a particular legal subject up to the present – stopping at the most recent case in the jurisdiction. These sub-divisions were a major first step towards the modern legal narrative. Although these accounts retained the record-like structure of the annals, they assumed the form of a chronicle because the jurists writing them shifted from merely recording every decision, as was the former practice, to selectively choosing what decisions were important for the story of each type of law. | | | | |
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< | Beginning in 1923 the legal chronicles began to take the form of a modern narrative. The American Law Institute began publishing the widely studied and accepted Restatements of Law. Each of these legal narratives told the story of particular field of law. Although the law continued developing the moment the Restatement was completed, each Restatement described a finite, understandable, and seemingly complete field of law. By combining the law from all jurisdictions into a single code, the Restatement filled the gaps in law, much as the modern historian must if he is to create a coherent narrative. However, the Restatement does not create law; it merely restates it – an utterly passive enterprise. The law must appear to be naturally discovered and occurring, or else the very efficacy of the legal narrative would collapse.
However, the legal narratives created in the Restatements are faced with a wholly unique problem that does not trouble the historical narrative. As each jurisdiction appends its own up-to-date account of the law to the end of each Restatement narrative, the neat narrative structure of the Restatement collapses into a document resembling the earlier chronicles. From this dilemma stems the need for the ALI to publish updated Restatements, incorporating the most recent chronicling into its narrative story. While modern historian can package the past into neat narratives with relative ease, the continual development of the common law makes this task much more difficult, and seemingly futile for the modern jurist. | >
> | Beginning in 1923 the growing legal chronicles began to take the form of a modern legal narrative. The American Law Institute began publishing the widely studied and accepted Restatements of the Law. Each of these legal narratives tells the story of particular type of law. Although the common law continued developing the moment each Restatement was completed, they each describe a finite, understandable, and seemingly complete field of law. The Restatement, rather than just regurgitating law, provides the analysis and commentary that ties the law together into a coherent narrative. By combining the law from all jurisdictions into a single code, the Restatement fills the gaps in the law –much as the modern historian must do if he is to create a meaningful narrative. However, the Restatement does not create law; it merely restates it – an utterly passive enterprise. The law must appear to be naturally discovered and occurring, or else the very efficacy of the narrative would collapse. The law must be telling the story, not the jurist. | | | | |
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> | However, the legal narratives found in the Restatements are faced with a unique problem that does not generally trouble historical narratives. The continual development of law constantly transforms each Restatement into a document resembling an unfinished chronicle. Each jurisdiction must constantly append its own chronicle of the law to the end of the Restatement, destroying the neat narrative structure. From this problem stems the need for the ALI to continually update the Restatements, incorporating the most current law into its story. While histories can usually be neatly packaged into narrative accounts, the very nature of the common law makes this task much more difficult, and seemingly futile. | | | | |
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< | Please Note: Much of my theory regarding the transition from primitive histories to the modern narrative derives from the theories of Hayden White. The theories, as used in this paper, are so extremely distilled, summarized, and altered that I have not included any specific references to his works. | >
> | Please Note: Much of my theory regarding the transition from primitive histories to the modern narrative derives from the theories of Hayden White. The theories, as used in this paper, are so extremely distilled, summarized, and modified that I have not included any specific references to his works. | | |
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