Law in Contemporary Society

Writing the Law

-- By GabrielleKloppers - 26 Feb 2020

The Law is Language

The interpretive powers of storytelling take on a special significance in a courtroom. After all, law students learn through narrative. Of course, the Socratic method is not just creating narrative; but the feeling of reciting the facts of a case comes close to an oral tradition. Lawyers use narrative techniques in the courtroom to influence the jury and judges. Ruth Anne Robbins details how legal storytelling can go further than is almost conceivable in Harry Potter, Ruby Slippers, and Merlin: Telling the Client’s Story Using the Characters and Paradigm of the Archetypal Hero’s Journey, 29 U.L. Rev. 797 (2006). A domestic violence victim can be presented as the “innocent” type of hero; a protective order as a talisman of hope as she faces the hero’s trials and tribulations, her abuser as the anti-hero or monster in her path. Why is this inclination to narrativize law so strong?

Language Fails

Turning things into stories linearizes a world that is decidedly muddier. Yet, the world is more complicated than words can convey. Even one person’s thoughts or feelings are too complicated to facilitate perfect communication - even the world’s best writers could only come close.

I would I could adopt your will, See with your eyes, and set my heart Beating by yours, and drink my fill At your soul’s springs, -- your part my part In life, for good and ill.

The disturbingly legalistic first line impedes the romance … intimacy, as soon as it is expressed in language, becomes self-conscious and somewhat grotesque. Words, even in the hands of Browning, fail. Of course, in this case the failure is intentional; but it is indicative that even Browning struggles with communicating the depths of his experience orally. “I pluck the rose/ And love it more than tongue can speak --/ Then the good minute goes.” The human experience is momentary; in fragments of understanding and emotion. The linear structure of narrative, in an attempt to help us convey this, obscures reality even further.

Is this effect limited to the sacred, or does it also extend to the profane? After all, much of what the Law deals with is far more gruesome than Browning’s love for his wife. It is, however, no less delicate. Take for example, the legal storytelling approach described by Robbins. Most would agree that if it creates a better outcome for the victim of domestic violence, legal storytelling is a force for good. What, then, if Harvey Weinstein’s team had chosen to tell his story, one of a flawed hero who strives towards good (making more multi-million dollar movies) despite setbacks (“normal” sexual impulse, just women looking for a payout!)? The power of legal storytelling is not relegated to those we consider “good.”

Legal Language is Particularly Deceptive

Law, like literature, generates narratives that vast swathes of people come to believe. Yet, deceit in law’s narrative form takes us even further from the Capital T Truth or Capital R Real. Law denies language. CREAC-ing and objective analysis of “facts” uses language itself to conceal that verbal reconstruction, not events themselves, are what is judged. It does so by using terms like “laches” and “in rem.” Latinisms abound. The effect is to neatly remove Law from the everyday and the mundane. If you’re not trained in lawyer-speak, the effect is of the profound, the just – not of just another tall tale. On the other hand, the law permutes ordinary words into ones whose meanings are only clear to the in-crowd. Perhaps they’re simply some type of cognate, and it’s a mere case of a common term evolving different meanings in different contexts. This would be akin to the common Latin root “fabula” (conversation, narrative, tale, play or fable) developing into “fabula” meaning “fable” in Spanish, and “fabulous” in English. Regardless of innocent roots, the effect is profound; normal people simultaneously find law inaccessible, yet the very parts they feel most comfortable with are those they are most likely to misunderstand. After all, after a full semester of law school, I still don’t know what the hell “wickedness” or “malice” mean in Crim.

My legal education has focused so far on what people, such as juries, bring into the courtroom. According to certain Professors, preconceived stereotypes define the process of law. Yet, one thing that has not been touched upon (and perhaps it shall) is the effect of imposing narrative that conceals narrative on people who do not understand it, combined with these preconceived notions. As per Wolfgang Iser, it is the convergence of the text and the reader that brings the literary work into being, giving rise to its dynamic nature. In Woolf’s study on Jane Austen, she notes that the triviality of Austen’s writing stimulates the reader to provide what is not there. In this way, it becomes a deeply imaginative work. Law functions in much the same way. By blanketing facts with Latinisms and legalisms and mundane words that don’t describe much at all, the average person has boundless room to impose their own thoughts. Law doesn’t function merely as literature, but as particularly evocative literature that denies it is even there.

How Does the Lawyer Interact With Language

The law is language. Language fails. Legal language is deceitful in multiple ways. The flawed (?) narrative of law has real effects. Yet language is the very thing that made me want to study Law. I wanted to write stories, I wanted to drown myself in words. I didn’t know what I wanted to say, so let me write stories for others instead, rewrite the past. In 2018, I spent a summer writing memoranda for refugees identifying grounds for asylum status in Australia. I spent hours listening to their stories. I was able to translate these stories into the sort of evocatively bland legalese that I knew would appeal to a committee. Perhaps this is a more responsible use of -isms. It’s still taking a million inputs and putting them in that familiar linear form, disguising “Truth” and “Fact”. I’m ambivalent about my role in it all, Truth be told.

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r1 - 26 Feb 2020 - 21:19:41 - GabrielleKloppers
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