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.

• 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.

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.

• 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.

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 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.

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.

• 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.

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.

• 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.