Law in Contemporary Society

Abstract: Narratives are the most common form of modern historiography. Although other forms of history exist, and were used on a regular basis in earlier times, they are rarely used anymore. For a number of reasons the narrative account is considered superior to those other, older styles, of historical expression. However, this transition in history from annals and chronicles to narratives seems to hold interesting parallels to the transition in law from the vast web of common law precedents to the organized – and very narrative-like – accounts of law in the Restatements.

The Restatements of the Law as a Narrative Account

-- By GideonHart - 10 Feb 2008

Historical Narratives

The Annals

One of the earliest forms of historical accounting is the annals. These primitive accounts consisted primarily of lists of years and corresponding events; unlike, the modern historical narrative there is no commentary or plot connecting the events. Rather, each event exists alone in space, often separated from the other points by years with no corresponding events. The annalist was not attempting to tell a particular story of history. He was merely recording events as they happened. The gaps and holes in the account would not have troubled the annalist – the years with incomplete or missing accounts merely had no events occurring in them that were worth recording.

Development of Narrative Voice in History

As the process of recording history shifted from the annals to the chronicles, the form that history took again reflected the purpose for the account itself. The chronicles were much closer to the modern narrative – although they usually were still a list of years and events like the earlier annals, the chronicles tended to be focused on a particular topic. Often, they were commissioned to tell the history of a particular people or geographic area. Importantly, these works take an important step towards narrating – the chroniclers begin selectively choosing events to fit a particular goal, rather then merely recording events. However, these accounts have an important characteristic missing that prevents them from becoming true narratives. The chronicles were not able tell a complete story because they, like the earlier annals, tended to end at an arbitrary point – often the present. These accounts provided no true sense of closure, as is necessary in the modern narrative.

  • This is specious historiography. It is Eurocentric, though the subject is supposedly universal, and even within the European tradition, it is ludicrously false. Thucydides precedes your annalists by the greater part of two millennia, while one of the greatest works of analytic history ever written, the Muqadimmah of ibn Khaldun, is contemporary with Froissart and Holinshed. Arguments that depend on the narrowness of one's own reading are inherently problematic.

From the chronicles, it was not a huge leap to the modern historical narrative. The modern narrative, like the historical chronicle, focuses on telling a particular history. The narrative historian selects particular events to best fit his conception of what he envisions past reality to be. The modern historical narrative takes the important step of telling a completed story. The world described in the narrative is finite, finished, and understandable. The narrative account is the thread that weaves the events of history into a single, linear plotline. Often the historian must fill gaps in the story with inference and guesswork; the life-work of countless historians has been spent closing the gaps between known dates and events with conjecture and inference (a story is not complete if it has holes). However, the historian must, in an attempt to separate his own story-telling from the historical events, make the account appear as though it was discovered, and not created. Otherwise, the historian would sacrifice his own credibility as a teller of truth.

Restatements as a Legal Narrative

Early Common Law as an Annals

The modern common law has its origins in medieval England. Through use of stare decisis, a system of basic legal rules and practices eventually developed. To determine what the law was, the judge, when faced with a particular fact pattern applied a record of past decisions to the case-at-hand. The law itself was a record of past events (legal disputes). The common law was not a coherent narrative, but was simply a record of decisions. The gaps in the law in a particular jurisdiction were not particularly troublesome. If a dispute was sufficiently different from any other previous dispute in the jurisdiction, a legal decision was recorded and became a binding event for future disputes.

  • This description of medieval common law is utter nonsense. You have been ill-served by ignorant teachers. I doubt very much on the basis of this statement that you've ever so much as looked in a Year Book.

Restatements as a shift to Narrative in Law

As the number of earlier decisions binding judges increased, so did the complexity and scope of the common law. To better organize the growing law, decisions were grouped into categories such as “torts,” “property,” and “contracts.” Each of these subjects recorded the history of a particular legal subject up to the present – stopping at the most recent case in the jurisdiction. These sub-divisions were a major first step towards the modern legal narrative. Although these accounts retained the record-like structure of the annals, they assumed the form of a chronicle because the jurists writing them shifted from merely recording every decision, as was the former practice, to selectively choosing what decisions were important for the story of each type of law.

Beginning in 1923 the growing legal chronicles began to take the form of a modern legal narrative. The American Law Institute began publishing the widely studied and accepted Restatements of the Law. Each of these legal narratives tells the story of particular type of law. Although the common law continued developing the moment each Restatement was completed, they each describe a finite, understandable, and seemingly complete field of law. The Restatement, rather than just regurgitating law, provides the analysis and commentary that ties the law together into a coherent narrative. By combining the law from all jurisdictions into a single code, the Restatement fills the gaps in the law –much as the modern historian must do if he is to create a meaningful narrative. However, the Restatement does not create law; it merely restates it – an utterly passive enterprise. The law must appear to be naturally discovered and occurring, or else the very efficacy of the narrative would collapse. The law must be telling the story, not the jurist.

However, the legal narratives found in the Restatements are faced with a unique problem that does not generally trouble historical narratives. The continual development of law constantly transforms each Restatement into a document resembling an unfinished chronicle. Each jurisdiction must constantly append its own chronicle of the law to the end of the Restatement, destroying the neat narrative structure. From this problem stems the need for the ALI to continually update the Restatements, incorporating the most current law into its story. While histories can usually be neatly packaged into narrative accounts, the very nature of the common law makes this task much more difficult, and seemingly futile.

  • This vision of the American Law Institute as exacting historians of the development of American law is so excessively absurd that not even the ALI itself could with a straight face deliver this proposition. Not only are your analogies a piling of one ill-considered non-fact on another, the outcome is self-discrediting. The Restatements are actually tombstones, retirement housing for exhausted pomposity, formalist redescriptions of the obsolete. Current creative thinking and the ALI are inevitably two, and neither the courts nor the scholars believe that the ALI narrates the law's development. ALI publications are aggressive lobbying on behalf of the past by segments of the professional and academic community with nothing better on their minds. It's a machine for converting stultification into status. Even if it weren't almost precisely the 20th century equivalent of the 15th century abridgement, the Restatment form wouldn't serve your purpose. As it is, the thing devastates your argument.

Please Note: Much of my theory regarding the transition from primitive histories to the modern narrative derives from the theories of Hayden White. The theories, as used in this paper, are so extremely distilled, summarized, and modified that I have not included any specific references to his works.

  • I've known Hayden White for just a scant bit less than thirty years. We have, I hope, a healthy sense of mutual respect. I can't be sure I've read every word of his any more than I suspect he's read every word of mine. But for all his satisfaction in life as intellectual provocateur (a passtime in which I find myself his equal in enthusiasm, if not effect), I do not think you would be wise attempting to father this on him. This mess is your own.

  • It isn't clear to me what the real ambition of the essay is, so I'm a bit at a loss when it comes to the best step forward. If the analogy was the life of the essay we must take it for what it is, even though I cannot say that (regardless of my particular disagreements with its conclusions) it fully satisfies the aim. If the goal was to describe an actual directional movement in the intellectual history of the law, it is simply wrong, and must be returned to store for a new thesis. The legal history isn't right and can't be made right; no matter what you do, wrong is still wrong. If the purpose was to praise the Restatements as a form of legal literature, I suppose the best thing one could do would be to read them; that is, to show how the language of the Restatements somehow does better than judicial literature at expressing the content of our law. This will be difficult, both because the individual Restatements vary in the proportion of foolishness to skullduggery, and because the quality of elite jurisprudence in the US common law is so much lower than that in, say, the worlds of Jewish and Islamic law, where the best available minds really do turn their attention to such bullshit.


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r9 - 12 Jan 2009 - 22:58:24 - IanSullivan
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