Self-Narrative and Legal Narrative

-- By MichaelDignan - 20 April 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 that fits into a rational, ordered framework. Scaffolds are erected for explaining why and how things happen, offering mechanisms and justifications. Individually, people tend to create narrative structures about their own behavior to explain why they, as distinct and unified persons, do what they do. The narratives that are constructed on the personal level to explain someone’s history are kin to the narratives constructed on a society-wide level to explain the legal process.

Felix Cohen’s Transcendental Nonsense and Jerome Frank’s “Modern Legal Magic” in Courts on Trial are critical analyses of two prominent legal explanatory devices. Both devices are narratives constructed by society to explain how the actual work of deciding cases is done. Cohen criticizes the invention and development of legal fictions. Fictions, like the concept of the corporation, are used by courts to develop a supposedly logical framework for deciding cases. Frank criticizes the court’s system for presenting evidence and facts, which are often unquestioningly presumed to be the whole truth relevant to the case at hand. Both frameworks operate by smoothing over the rough patches of reality in favor of a well-defined narrative, just as individuals smooth over conflicting or unpleasant realities in their own self-narrative.

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. It is important for individuals to come to an understanding about what has happened to them and why it has happened.

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 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.

It benefits both individuals within society and institutions as a whole to have convincing narratives about the way institutions operate. Given the uncertainty in the external world, especially with regards to other persons’ behavior, it is important to have narratives that explain such uncertainty within the confines of a rational narrative. Any individual case hinges on what evidence is produced, the judge’s and jury’s inclinations, the arguments made by counsel, and so on. With so many factors seemingly subject to the caprice of individuals, the result of an individual case can leave someone bewildered and confused. In a capricious system where prosecution and incarceration are subject entirely to whim, feelings of powerlessness, anger, resentment, and depression can follow. So people have invented narratives to make sense of the legal system.

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

The narrative provided for determining the facts of cases also provides a relatively stable framework for deciding cases. Given the difficulty in obtaining reliable facts, the court uses strict procedures for determining what is and is not allowed. Since fairness often depends on the predictability of a legal outcome, and uncertainty makes it more difficult to apply the law evenly, the rigid rules are able to create a veneer of fairness. While this aura of objectivity would probably not withstand an assault by the complexities of reality, it does provide a comforting and finite realm for the court to conduct its business in.

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.

While narratives are often helpful, the further they drift from reality, the more they tend to produce undesirable outcomes. When legal logic and the rules of evidence become a hindrance to achieving justice rather than an adaptive narrative, they lose their value. Luckily, Frank and Cohen are willing to provide suggestions for creating new legal narratives that might produce better outcomes, legal narratives that better reflect reality, having done away with specious logical formalisms or rigidly ineffective rules of evidence.