• You don't seem to like my summaries of Cohen and Frank, and those are my premises. Since they are used throughout the whole essay, I must have missed the "simple and effective theme" that you spoke about in the first criticism.

• Are you saying that art (painting, music, dance, sculpture, poetry) is fundamentally different from writing narrative? That those things don't help people create explanatory narratives about what has happened to them? I don't really see them as a fundamentally different method of coping, so the writing example is merely that, an example. I suppose I could have included other work to show other ways people cope, but unless you are saying those methods are fundamentally different I don't see that they add anything except more examples.

• I didn't know I was trying to out-argue Cohen here. I was just trying to show that the system's logic takes fuzzy realities and makes them certain, at least within the confines of the system. Don't corporations have places of residence within the system, even if when we thought about the underlying social reality we thought it absurd? What have I misunderstood?

• So, what was the simple and effective theme buried in the first draft that you saw? I seem to have left that theme entirely behind somehow.

• This way of summarizing the two arguments so they turn out to be about "explanatory devices" is necessary to your use of them in this context, but it does violence to both authors' accounts. In Cohen's case, you make him out to be criticising fictions in particular—a misleading interpretation at best, and one which would be more appropriate to Jeremy Bentham than Felix Cohen, thus making Cohen appear to be one hundred years behind his time instead of marginally ahead. Cohen asks what makes a proposition about law meaningful, and concludes that meaning depends upon relation to real-world consequences. But he's located himself very carefully against a philosophic backdrop that runs from Wittgenstein to Gödel, and to say he's writing about "explanatory devices" doesn't reflect his own understanding of his subject. In Frank's case we have a slightly different problem. Frank does speak, unscientifically and without much precision, about explanatory devices, and magic as precursor of and equivalent to rationalistic explanation. He also points out, briefly, more accurately, but not in an analytically sophisticated fashion, that juries are rationalistic successors to magical modes of fact-finding, and that their human fallibility then becomes an imperfection to disguise or conceal. To say that this is a point about explanatory devices is true, but it's not the most true thing you could say, in the sense that it presents the reader with an accurate but interpretively misleading proposition.

• Having said which, it's the "just as" move at the end of the graf which is the smuggle. There's no evident basis for going from "kinship" in the first graf to equivalence in the second. But similarity of two things in some respect doesn't prove anything about similarity or common causation in other respects, unlike equivalence, which is a basis for logical entailment. Apples and oranges are similar in being fruits, but if they were equivalent, you could prove the skin of an orange edible by eating an apple. Your argument now depends on a strengthened assertion that's been smuggled in rather than earned. That's almost always an insurmountable problem.

• But you could also have cited work to show that people derive value in coping with trauma by painting, making music, dance, sculpture and other art as well as by writing narrative. And of course, you could have appealed to the literature about the value of non-narrative writing, such as poetry, in therapeutic situations. By discussing part of the relevant body of information, you can make an interpretation seem unavoidable which against a larger background would look at best plausible and would more likely seem underinclusive.

• To say that things depend is not to say that they depend on whim. The manifold contingencies involved in social process, including but not limited to legal process, tend to confuse and therefore frighten and therefore render intolerant those people who have not been trained to cope with them. Lawyers, whose answer to every question is that it depends, are often therefore regarded as obscurantist, and people tend to value their own personal lawyers for helping them navigate through complex issues in a clear sequence with lucidly-presented options, risks and possible results. The final sentence seems to me indistinct in its meaning until "people" is clearer. Is that laymen, lawyers, politicians, clients, bystanders?

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes.

• This is a conclusion. Cohen doubted it for one reason, Frank for another. You're now simply asserting its truth as an intermediate step in the argument.

Predictability is an important component of any legal system, and the transcendental nonsense buttresses and supports case precedent by rationalizing judicial holdings. Thinking that judges are supposed to rely on logic and precedent in determining case outcomes can be comforting when compared to a system where legal logic and reasoning are abandoned in favor of whim and personal biases. Fuzzy real-world realities can be slotted into existing legal fictions and the outcome becomes a matter of deduction. If a corporation is a person, it has to reside somewhere.

• But if you can't tell where it doesn't do you any good and doesn't create certainty. If it were certain, it could be expressed in terms of the underlying social realities that made it certain. You aren't actually out-arguing Cohen on this point, you're simply refusing to understand him.

• Here too, you are missing the point. Those rules about what evidence to receive may or may not be helping the trial court to reach just outcomes, but what they are not doing, from Frank's point of view, is making it possible for appellate courts to do what they claim to do, namely tell correct outcomes from clearly erroneous outcomes by applying the right rules to the facts the court found. To say that they are providing a reliable basis for approximating reality closely enough for the purposes of doing justice may be true, but that's not relevant to Frank's point that once you have decided to receive a witness' testimony you then have to decide, and are supposed to decide on the basis of evanescent and unnamed evidences that cannot be grasped unless you were there, whether that witness is "credible" or not. What mostly concerns Frank is something that isn't part of your account of the situation at all.

• But this conclusion is based on calling anything that Cohen and Frank support "suggestions for creating new legal narratives," which is mostly done by making "narratives" a synonym for everything. I think we could agree that neither Cohen nor Frank would recognize this as a description of his own project, and that should be a sign of trouble.

IV. Just as some self-narratives are better than others, we should strive to find legal narratives that comport with the available evidence while still being helpful.

• Did you mean principle? I cannot figure out what the word, objectiveness, means. But no wonder it wasn't caught by the spellchecker.

• Here's something to be on the alert about. You didn't use the first paragraph of the essay to explain what your thesis is, the idea you are trying to express and then employ. You stated a theme at the start of the second paragraph, but it's a "false theme," wrapping paper rather than the real idea. If you remove the word "practical" from the first sentence, you have a platitude. So what did "practical" mean? At the end of the paragraph, then, we come at last to the essay's claim: that one use of explanatory narrative is similar to another use of explanatory narrative.

• No wonder you buried the lead. From the editor's point of view, you didn't have a lead. You assert A is similar to another instance of A, called B. You then explain B, in its particular context, and by golly, it is indeed similar to A. Resolve, fade to black.

• Of course, the situation isn't that dire: you actually do have a theme for the essay. But it's sort of gotten twisted in with this artifact that came from not figuring out at the outline stage what it was you were saying and how to present it in the clearest fashion.

• What did the modifier "self-" add to the word "narrative" in that paragraph? If it did not add anything in that paragraph, I do not think it gained any meaning from any other sentence. This, if true, would allow the reduction of "self-narrative" to "narrative" throughout the essay. That in turn would allow the reduction of "explanatory narrative" to "narrative," which I think might make the thesis of the paper clear and a line of development possible.

• The choppiness of this graf is a signal of trouble. The second sentence tells us something has gone awry; the least of its troubles is the careless conflation of uncertainty with chaos. From there to the third sentence, as from the penultimate to the last, is a pretty jolting transition. The prevailing impression one gets is that the paragraph can be reduced to its first sentence without making the following paragraph in any way harder to understand.

• That they are abstract is part of the definition. That they are just is not proved, since the debate about them centers entirely on invented concepts, and is therefore incapable, from a realist point of view, from ever even making a statement about justice.

• And since when, the realist wants to know, did we ever have this crazy theory that judges weren't supposed to make wise decisions in difficult cases, but instead to be guided only by abstract principles of automatic application? The Western traditions all acquired from Aristotle the recognition of "equity," that achieves justice in the particular cases where every general rule inevitably works unforeseen and unintended injustice. And the public of our society, like the public of pretty much every human society, defers to "wisdom," usually associated (for reasons reaching all the way down to the biological stratum of social action theories) with the experience, gravity and deportment of advancing age. To say that the public doesn't want judges to make judgments conflicts with everything we see around us.

Setting up rules for evidence that gloss over the complexities and uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases. Given the immense difficulty of finding facts reasonably reliably, when they can be found at all, it is no surprise that a narrative structure has been invented that allows for courts to decide cases by applying law to some set of facts that were decided in a seemingly predictable and fair way. The rules create an aura of objectiveness that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

• That isn't a word. You meant "objectivity." Proofreading is not an optional activity. What you say you have to get into the habit of checking.

• This graf might be an explanation of why there is such a concept as evidence at all: it says that, given how hard it is to find facts reliably, there are going to be rules. But it doesn't explain the content of any particular rule, or define in any way what sort of rules those are going to be. So I think the graf amounts to the proposition just stated and no more. Taken with the predecessor graf, this section establishes that formalisms make it easier to "navigate" complex cases and that there will be rules of evidence.

• Here we have the same choppy sequencing that we saw at the conclusion of the last section. The transition from sentence two to three is obscure. Six is altogether a mystery. Seven seems to mean that Cohen and Frank would be satisfied if there were more justice. But how does that lead to eight, and why is that proposition the conclusion of the essay?

• I think, as I said at the top, there was a simple and effective theme here, and that the need was for careful outlining to hold the surrounding tendency to complexity at bay. The editorial inquiry that was helpful at each turn was, could this be put more simply? I think that's the principal that should guide revision.

Self-Narrative and Legal Narrative

-- By MichaelDignan - 27 Feb 2009

I. The need for explanation is kin to the need for a convincing self-narrative.

It is difficult for people to be indefinitely unresolved about how or why something happened. People readily look for explanations of behavior or justification for action. In the many situations where there are no readily available answers that explain things in black and white terms, explanatory devices are invented and adopted. The devices may have more or less basis in reality than others, and may differ in their predictive power. Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are critical analyses of two explanatory devices that people have invented for explaining and justifying the operation of the legal system.

The use of legal logic and the court’s method of doing history are two sides of the same problem: how to achieve practical justice. Legal logic is a convincing (or not) narrative that provides justification for legal decisions, while the court’s procedures for evidence and testimony provide a narrative that explains what happened in well-defined boundaries. This use of an explanatory narrative is similar to the individual use of self-narrative to render intelligible our own emotional landscape.

II. Self-narrative is an important component of mental and emotional wellness.

When people are asked to write seriously about an extremely important emotional issue that has affected their lives, they often find it upsetting in the short term to write about deeply personal experiences. As time goes by, however, people show remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to work by helping people make sense of a negative event by constructing a meaningful narrative that explains it. Id.

Ruminating on past events 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.” Id. at 175. Suppression of the repetitive thoughts rarely works. It can even backfire, leading to more rumination.

Construction of a meaningful self-narrative provides some objective distance from the subject, while providing some explanatory power that helps to short circuit rumination. Providing a coherent picture of the events allows for resolution of the topic and explains it in a more adaptive manner, improving mood and mental well-being.

III. Transcendental Nonsense and Modern Legal Magic are convincing narratives about the uncertainty in the outside world and our role in it.

Given the uncertainty of the external world, it benefits people collectively to create meaningful narratives about the way they and their institutions act. It would not be comforting or productive to see chaos in the surrounding world and respond in kind. One of the most highly esteemed values in any legal system is predictability. Being able to predict when and to what extent one will be subject to penalty is one of, if not the, most important attributes of an ideal system. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow. Such powerlessness can easily morph into resentment, depression, or another similarly negative emotional outlook. The inventions of legal logic and legal magic are explanatory narratives designed to make sense of the external world.

The transcendental nonsense of legal logic provides a relatively stable framework for analyzing legal disputes. While debate certainly centers on invented concepts, like the personhood of corporations, the concepts go a long way towards providing a concrete, relatively smooth ground for navigating the complexities of real-world cases. It is important to have such concepts in order to reduce the role the judge has on deciding the law in the eyes of the public. The caprice of the judge is minimized, while abstract, just legal principles do the work of resolving the dispute.

Setting up rules for evidence that gloss over the complexities and uncertainties of ascertaining the truth of particular facts provides a similarly stable structure for deciding cases. Given the immense difficulty of finding facts reasonably reliably, when they can be found at all, it is no surprise that a narrative structure has been invented that allows for courts to decide cases by applying law to some set of facts that were decided in a seemingly predictable and fair way. The rules create an aura of objectiveness that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

IV. Just as some self-narratives are better than others, we should strive to find legal narratives that comport with the available evidence while still being helpful.

There can be many and varied narratives explaining different aspects of a person’s self. Just as some can be more or less adaptive, in the sense that they correspond more or less to external actions and others’ narratives about someone, some general narratives about an institution can be more or less adaptive. Cohen’s and Frank’s critical analyses of legal narratives illustrate their respective shortcomings. When legal logic becomes a crutch upon which to base decisions rather an aid, it creates meaningless debate that obscures the real reasons that cases come out one way rather than another. When a premium is put on evidence entered by witness testimony, the very real problem of human bias and subjective observation can create injustice. Given the limitations of being human, it does not seem that narratives can be totally done away with. An appropriate response to Cohen’s and Frank’s criticisms would be to try and construct new narratives, that are more adaptive; narratives that produce better outcomes. Being conscious of such narratives and the role they play in human and human institutions’ behavior is critical for appraising the effectiveness of different explanations.

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