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.

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.

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 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.

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.

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.

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