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Self-Narrative and Legal Narrative |
| | assertion that's been smuggled in rather than earned. That's
almost always an insurmountable problem. |
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- 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.
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| | 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. |
| | which against a larger background would look at best plausible
and would more likely seem underinclusive. |
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- 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.
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| | 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. |
| | it certain. You aren't actually out-arguing Cohen on this
point, you're simply refusing to understand him. |
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- 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?
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| | 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.
- Here too, you are missing the point. Those rules about what
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| | not. What mostly concerns Frank is something that isn't part of
your account of the situation at all. |
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> | * I didn't say that the rules were or weren't a reliable enough basis for approximating reality to "do justice". I thought I was saying that they were reliable enough to provide a coherent narrative that explains, and perhaps more importantly, predicts outcomes in the legal system to the satisfaction of most (maybe few?) of those who are affected by those outcomes. |
| | 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. |
| | 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. |
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- 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.
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