Self-Narrative and Legal Narrative

-- Originally By MichaelDignan

I. Devices for Legal and Self Narratives Serve a Similar Purpose

In general, human beings find it difficult to leave probing questions about their own feelings and behavior unresolved. In order to explain behaviors and feelings that are often very challenging to explain, people create "explanatory devices. " These devices vary; some may have more or less basis in reality than others, and may differ in their predictive power. Similarly, in the study and practice of law, scholars and practitioners invoke legal explanatory devices to explain how the legal system works. Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are two such attempts. The use of legal reasoning 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. These explanatory devices are similar to the individual self-narratives we use to render our own emotional landscapes intelligible.

II. Self-narrative is important for emotional wellness, legal narrative is important for societal wellness.

In the short term, many people find it upsetting to write seriously about an important emotional issue that has affected their lives. As time goes by, however, people can derive remarkable benefits from the writing exercise. Timothy D. Wilson, Strangers to Ourselves 177 (2002). According to Wilson, writing seems to work by helping people to make sense of a negative event by constructing a meaningful narrative that explains it. Id.

Writing is also helpful because it helps prevent people from dwelling on the past. Repetitive thoughts about negative events can lead to depression and feelings of powerlessness without ever helping to improve a 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. By constructing a meaningful self narrative, people can short circuit rumination. Writing these narratives 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.

Just as individuals can benefit from constructing narratives about themselves, people as a collective can benefit from creating meaningful narratives about the way that legal institutions work. Its nether comforting, nor productive, for humans to exist in a state of uncertainty as to the operation of the law. For example, with criminal punishment, people value the ability to predict when and to what extent they will be subject to penalty. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness will inevitably follow. Cohen's 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 can go a long way towards providing a concrete, relatively smooth ground for navigating the rough complexities of real-world cases. Although it appears to take the focus off of the real world, in fact transcendental nonsense helps provide a consistent framework for judges to make ethical decisions. Justice comes from the judge's mind and sense of ethics, but consistency and thus dependability must be rooted in something other than individual people. Transcendental nonsense, then, does for judicial reasoning what composing self-narratives does for emotional sanity: it provides a structure, through which the substance can be utilized effectively.

IV. Narrative devices are not all created equally: we should strive to improve legal narrative devices.

Various narrative devices can be used to describe the various aspects of the self. Just as some can be more or less adaptive, general narratives about the legal institution can also be more or less adaptive. Cohen’s and Frank’s critical analyses of legal narratives illustrate that when legal logic becomes nothing more than a crutch upon which to base decisions rather an actual guiding process, the result is meaningless debate that obscures rather than clarifies the system. The first step to addressing this problem is acknowledging the important role that explanatory devices play in shaping legal thought. Humans, including judges and legislators, are necessarily subjective and biased beings. Such biases, if not controlled by some universal framework can lead to injustice via a fractured and discriminatory system of applying the law. Thus, just as people need a structure through which to see themselves emotionally to avoid feelings of disjunction, people making legal decisions need structure even if, as Cohen and Frank argue, sometimes that structure looks arbitrary and leads us in the wrong direction. In the vein of Cohen and Frank, legal explanatory devices should be critically evaluated and improved to become as adaptive, and thus, as effective as possible at channeling the legal reasoning substance of the law into something that can be evenly applied to the general population.