It offers three propositions: (1) we must continually evaluate the narratives we employ against the purposes they are intended to serve; (2) the narratives society selects for its legal institutions, like those employed by individuals, must be amenable to change; (3) we must be careful not to automatically conflate the stabilizing function legal narratives currently provide with the provision of justice.

Like the stories individuals craft to render their emotional landscape intelligible, our judicial system employs narrative devices to expedite the administration of predictable outcomes: a process we hope produces just results.

For example, when legal logic becomes an entire basis for decision and oversteps its purpose as a limited aid, it serves to obscure decision-making and deprives the judicial system of the predictability originally sought. Similarly, placing a premium on evidence entered by witness testimony elevates the ability of subjective observation and human bias to create injustice.

Future drafts should interrogate the need for judicial formalisms. If the certainty benefit thought to be derived from formalisms is discovered to be ill-founded or if formalisms are found only to mask capriciousness in judicial decisionmaking, we must construct a new narrative transaparent in its evaluations and the inputs considered. Should formalisms possess the utility suggested above, solutions which preserve this utility and are responsive to the over-reliance concern should be devised.

Unwilling to accept irresolution about the how’s and why’s of life, humans instinctively look for explanations of behavior and justification for action. Though they vary in terms of parsimony and explanatory power, narratives operate as devices which render complex phenomena understandable. The following paper provides a comparative analysis of the narratives we invent to explain and order the world individually and collectively. It offers two propositions: (1) we must continually evaluate the narratives we employ against the purposes they are intended to serve; (2) the narratives society selects for its legal institutions, like those employed by individuals, must be amenable to change; (3) we must be careful not to automatically conflate the stabilizing function legal narratives currently provide with the provision of justice.

Individual Narratives: Necessary Components for Mental & Emotional Wellness

When asked to write seriously about an extremely important emotional issue that has affected their lives, people often find it upsetting in the short run to do so. Instead, many individuals elect to either suppress or unproductively ruminate on these events. Rumination tends to prolong and lengthen depression. Repetitive thoughts about negative events can give rise to a feeling of powerlessness without ever leading to actions that improve one’s situation.

Numerous studies show that rumination leads to self-defeating patterns of thought, especially when the ruminator is already depressed: “Ruminators are worse at solving problems related to their distress, focus more on negative aspects of their past, explain their behavior in more self-defeating ways, and predict a more negative future for themselves.” (Wilson, Strangers to Ourselves pp. 175). Suppression of these repetitive thoughts rarely works. It can even backfire in a type of feedback loop which yields yet more rumination.

As time passes, however, people are generally more receptive to and derive remarkable benefits from the above sorts of writing exercises. Writing enables people to make sense of a negative event by constructing a meaningful narrative to explain it. Authorship supplies objective distance from the subject matter and explanatory power that helps to short circuit rumination. The coherent picture of the events that emerges allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

Transcendental Nonsense and Modern Legal Magic: Useful Narratives for the Legal System’s Operation?

Like the stories individuals craft to render intelligible their emotional landscape, our judicial system employs narrative devices to expedite the administration of predictable outcomes: a process we hope produces just results. The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. Concepts like the personhood of corporations smooth the ground for navigating the complexities of real world cases. Setting up rules for evidence that gloss over the uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases.

The rules create an aura of objectivity that glosses over the difficulties that would lead to emotional misgivings if openly acknowledged. It is thought that these formalisms enable citizens to predict when and to what extent one will be subject to penalty. Their absence, it is feared, will give rise to capricious systems of prosecution and incarceration which will erode system legitimacy and promote feelings of citizen powerlessness.

Toward the Adoption of Adaptive Legal Narratives

As noted above, narratives vary by their parsimony and robustness – in the portion of the world considered and the portion of the world meaningfully explained. Their utility in imposing order and stability within judicial proceedings diminishes, however, when narrative use crosses a threshold into over-reliance. For example, when legal logic becomes an entire basis for decision and oversteps its purpose as a limited aid, it serves to obscure decision-making and deprives the judicial system of the predictability originally sought. Similarly, placing a premium on evidence entered by witness testimony elevates the ability of subjective observation and human bias to create injustice.

An appropriate response to Cohen and Frank’s criticisms would be to attempt the construction of new narrative which produces more just outcomes. Devising solutions which preserve the utility this author finds in certain formalisms in ways responsive to the over-reliance concern lies beyond the pale of this draft, but seems a logical and necessary next step step for this essay.