-- Edited version of MichaelDignanFirstPaper

Narrative in Legal Institutions

People have a deep psychological need for convincing narratives that justify and explain both personal experiences and social practices. In cases where we are deeply uncertain about why something happens the way it does, we often invent and adopt narratives to try to explain the phenomenon anyway, rather than admit our fundamental uncertainty. The social practices of the law are no exception: we tell ourselves stories about the function established legal practices serve in promoting justice or finding truth, often without critically examining whether the practices we have actually do end up serving those goals.

Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” analyze two such legal practices--the use of abstraction in legal argument gives legal decisions a dubious claim to logical inevitability, while the rules of evidence and other courtroom procedures are generally (and erroneously) assumed to be necessary for accurately establishing facts.

The answer isn’t to do away with these legal practices or the narratives that serve to justify them altogether, since some abstractions and evidentiary processes are likely to be useful in pursuing justice (though this could also be a dubious narrative). Instead, the answer is to try critically to assess how well the practices we have serve the goals we tell ourselves they serve, without buying into the narrative wholesale.

Self-narrative as a 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 at first. As time goes by, however, they experience remarkable benefits from the exercise, Timothy D. Wilson, Strangers to Ourselves 177 (2002). Writing seems to help people make sense of a negative event by constructing a meaningful narrative to explain it to themselves. Id.

In contrast, ruminating on past events, without putting them in an explanatory narrative, 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 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.

Transcendental Nonsense and Modern Legal Magic As Legal Narratives

People benefit immensely from narratives that explain and justify the external world, which would otherwise be seen as overwhelmingly uncertain, complex, and purposeless. We try to construct narratives that likewise explain our social practices, including legal practices, in ways that make them appear more predictable and rational; we also construct those practices in ways that have some predictability and internal rationality. If we believed that our legal system was totally capricious, and that the decisions to prosecute and incarcerate were made completely at whim, feelings of powerlessness would 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 legal practice, so that it appears rational.

The narrative of legal logic gives judicial decision-making an aura of inevitability. Though that feeling of inevitability can be comforting, because it makes law appear to be the product of a rational and consistent process, it also masks the role that the person of the judge has making the decisions which shape the lives of the people in front of her.

Likewise, if decisions are to be made on the basis of some plausible connection to facts in the world, some structure is required for dealing with the complexity and uncertainty that is so characteristic of our epistemological relationship with reality. It is also no surprise that a narrative has been invented which makes it appear as if the rules of evidence serves this function in a predictable, accurate, and fair way. The narrative surrounding the rules create an aura of objectivity that glosses over the difficulties and uncertainties that would lead to emotional misgivings if openly acknowledged.

Revising Legal Narratives and Practice

People come up with many different, sometimes conflicting narratives to explain different aspects of themselves. Some of these narratives are more accurate than others; some are more adaptive than others. In any event, the process of constructing narratives is an integral part of the human condition.

When looking to narratives that explain and justify social practices like the law, the narrative itself can sometimes yield important social benefits. Nor is it likely that we could completely do without narratives, given the limitations of being human. We should be conscious of the narratives we do use, however, and continually assess whether the underlying social practices actually fit the narratives we tell. Being conscious of the role of narratives the behavior of social institutions is critical for appraising the effectiveness of the underlying institution.

• Here too you took the editorial course of playing it as safe as possible. You tried, as you should, to keep what was strong, and to address the weak places. But you mostly tried to smooth over the problems, giving an appearance of solving what was merely postponed or made a little more obscure. In the process, you softened the language to the point of loss of contour. The final graf even achieves a bureaucratic linguistic approach to "narrative," which is usually assumed to be a pre-bureaucratic structure. This is not particularly desirable in an edit. I think I'd make another attempt at this, were I you, to see if you can manage to put both the ideas and the language on a higher-energy diet.