Law's Stories

Narrative and Rhetoric in the Law

Edited by Peter Brooks and Paul Gewirtz

Yale University Press/New Haven and London

Peter Brooks

The Law as Narrative

and Rhetoric

"Narrative and Rhetoric in the Law": it has become evident that topics traditionally
studied by literary scholars and critics have taken a place in legal studies. Rhetoric,
the art of persuasion and, by extension, the organization of discourse, is a property
of all statements. Narrative appears to be one of our large, all-pervasive ways of
organizing and speaking the world-the way we make sense of meanings that
unfold in and through time. The law, focused on putting facts in the world into
coherent form and presenting them persuasively-to make a "case"-must always
be intimately intertwined with rhetoric and narrative. Yet only recently have the
implications of law's dependence on narrative and rhetoric become an object of
intense investigation and interrogation. Many lawyers, judges, and legal scholars
would no doubt acknowledge the presence of rhetoric and narrative in their disci-
plines but then ask, So what? What follows? Does it follow that legal studies should
let themselves be invaded by the concerns of literary criticism? And if so, how?
It is no secret that "law and literature" has become something of a movement, a
subject addressed in scholarly journals and even an occasional law school course.
But the rubric covers different uses of that "and." For some, and perhaps most
obviously, the "and" means law in literature: study of representations of the law in
literature, law as a recurrent and important literary theme. This is not a negligible
topic, since literature, from Aeschylus to Kafka, keeps encountering the law as that

14
which speaks most profoundly of its own nature as a reflection on the human
condition. Tragedy is always the story of the discovery of the law-perhaps the
Law-and in this manner it makes clear, maybe more than any other genre, that
literature's exploration of the individual's destiny always encounters those systems
of constraint, those basic interdictions, that both frustrate individual endeavors and
constitute irrefutable elements of the definition of the human condition.
The "and" has also meant literature in the law: a use ofliterary representations of
persons struggling with the law in order to make the legal profession more acutely
aware of the effects of its actions on human actors. When judges, for instance,
gather in seminars to discuss literary texts-as they now sometimes do-the intent
is to make them respond with a fuller imaginative range to the predicaments and
entanglements of human actors before the law. In this understanding, law and
literature is much like the movement for medicine and literature: a use of literature
as a humanizing device.
But the most powerful claim for an "and" linking law and literature is different.
It has been a claim that interpretive methods developed in literary study can,
and should, be imported into the study of the law. Maybe because literary theory
gained a certain prestige, or notoriety, in recent decades from its flamboyant and
well-publicized debates about interpretation, legal scholars have turned, with en-
thusiasm or bemusement, to issues raised by hermeneutics and various forms
of poststructuralism, including deconstruction, asking, for instance, whether the
grounds of legal interpretation are as stable as they traditionally are claimed to be.
Are there any grounds of interpretation that do not themselves derive from the
practice of.interpretation? Lawyers and judges tend to assume that, as professionals,
they work in reference to an objective standard or original intention that stands
outside the rhetorical system. But one may ask whether there is any outside of
rhetoric-meaning the norms, the topoi, the commonplaces that govern legal think-
ing as a professional discourse.
On the other hand, literary critics-who often harbor a bad conscience about
their profession-have displayed a desire to break out of the realm of fictions, to
engage large cultural issues: to make their interpretive techniques work on some-
thing closer to "reality." And law, in contemporary American culture, offers an
exceptional intersection of textuality and social power. If literary analysis can offer
insights into the law, it might prove anthropologically useful.
Issues of interpretation, intentionalism, rhetoric, and objectivity have been ex-
plored from various perspectives by such scholars as Richard Posner, Stanley Fish,
Ronald Dworkin, and Owen Piss; and a number of students in both law and litera-
ture are pursuing work that crosses the borders between the two fields. More
recently, another kind of intersection of law and literature has gained attention: the

The Law as Narrative and Rhetoric 15

claim that narrative-storytelling-is a central component of legal practice and
thinking. Here, it seems, there has been less sustained critical attention paid to a
concept and an issue in which law and literature could find crucial common ground.
The concept of narrative has entered legal studies largely with an emphasis on its
use as a vehicle of dissent from traditional forms of legal reasoning and argumenta-
tion. In this view, storytelling serves to convey meanings excluded or marginalized
by mainstream legal thinking and rhetoric. Narrative has a unique ability to embody
the concrete experience of individuals and communities, to make other voices
heard, to contest the very assumptions of legal judgment. Narrative is thus a form
of countermajoritarian argument, a genre for oppositionists intent on showing up
the exclusions that occur in legal business-as-usual-a way of saying, you cannot
understand until you have listened to our story. This currently popular use of
narrative in legal discourse bears analysis for both its revisionary force and its
limitations.
The place of the concept of storytelling in legal talk was thus the starting point
for the symposium that resulted in this volume, and the subject of its first session,
where presentations by Daniel Farber and Suzanna Sherry and Martha Minow
consider the claims urged for storytelling and the impact of these claims, with
comments offered by Harlon Dalton and Anthony Kronman. The legal storytelling
movement has tended to valorize narrative as more authentic, concrete, and embod-
ied than traditional legal syllogism. But as many of the contributors here point out,
storytelling is a moral chameleon, capable of promoting the worse as well as the
better cause every bit as much as legal sophistry. It can make no superior ethical
claim. It is not, to be sure, morally neutral, for it always seeks to induce a point of
view. Storytelling, one can conclude, is never innocent. If you listen with attention
to a story well told, you are implicated by and in it.
Attention to the place of narrative in legal thinking is only a starting point. When
one reflects on the role of storytelling at the law in general, the topic proliferates,
showing its pertinence on every head. It need not take an 0. J. Simpson trial to
remind us that the law is in a very important sense all about competing stories, from
those presented at the trial court-elicited from witnesses, rewoven into different
plausibilities by prosecution and defense, submitted to the critical judgment of the
jury-to those retold at the appellate court, which must pay particular attention to
the rules of storytelling and the conformity of narratives to norms of telling and
listening, on up to the Supreme Court, which must tress together the story of the
case at hand and the history of constitutional interpretation, according to the con-
ventions of stare decisis and the rules of precedent, though often, because dissents
are allowed, presenting two different tellings of the story, with different outcomes.
Narrative is indeed omnipresent in the law, something that has no doubt always

16 Peter Brooks
been recognized but has rarely been attended to in an analytic manner. The more's
the pity, for the analysis of narrative is one area in which literary study has produced
a body of work that has a certain coherence and force. What came during the 1970s
to be known as narratology-the analytic study of the phenomenon of narrativity
and its various discursive manifestations-has developed some hypotheses, dis-
tinctions, and analytic methods that could be useful to legal scholars, if they were to
pay attention. Early in the history of literary theory, Aristotle told us the obvious but
important fact that stories must have beginnings, middles, and ends and to be so
constructed that the mind of the listener, viewer, or reader could take in the relation
of beginning, middle, and end. Aristotle implies that we need to see the end as
entailed by a process and to view it as casting retrospective illumination on the
process of the middle and, indeed, defining the beginning as that which eventually
leads to the end.
In our own century, starting from the Russian Formalists' distinction between
fabula (the order of events as they took place in the world referred to by the narra-
tive discourse) and sjuzet (the order and the manner in which events are presented in
the narrative discourse), literary analysts have reflected on the ways in which
discourse reorganizes stories to give them a certain inflection and intention, a point,
perhaps even an effect on their hearers. The fabula-sjuzet distinction leads to a
further reflection: that all we, as readers or listeners, have to work with is the pre-
sentation of events in the vehicle of narrative discourse, that our understanding
of events as they happened out there, in the world, is an inference we make, a
normalized chronology and causality we intuit from what the narrative tells us-a
process that, in the case of a Conrad or a Faulkner, for instance, can be inhabited by
doubt. The study of the modalities of narrative presentation-use of points of view,
verb tenses, flashbacks, and the like-· induces a sense of the uneasy relations of
telling and told, an awareness of how narrative discourse is never innocent, but
always presentational, a way of working on story events that is also a way of
working on the listener or reader.
No doubt any courtroom advocate knows the importance of narrative presenta-
tion instinctively. The courtroom lawyer's task would seem to be to take an often
fragmentary and confusing fabula and tum it into a seamless, convincing sjuzet. But
this is not a simple process of addition, stringing the beads of events into a necklace
of narrative. There are contradictions and incoherencies to be dealt with, alibis and
excuses to be found, gaps to be filled. Hypothetical narratives are formed to cover
and explain events; they are narratives that themselves modify events, change their
status, produce other events to fill the gaps, lend intention to action. The lawyer with
her or his client must at once elicit and construct a story, and the distinction between
the elicited and the constructed is by no means clear. How could it be, in an

The Law as Narrative and Rhetoric 17

adversarial system that expects prosecution and defense to tell different stories, and
leaves it to listeners-the jury, however instructed by the judge-to judge the
plausibility of the results?
Part II of this volume addresses the narrative construction of cases in the law,
with presentations by Robert Weisberg, Robert Ferguson, and Alan Dershowitz and
comments by Janet Malcolm and David Rosen. Their extraordinarily rich and
varied explorations of this issue-ranging from Henrico County, Virginia, in 1800
to The Thin Blue Line, from Bobby Seale to the judicial side-bar conference-give
a sense of the prodigious variety of narrative artifacts and genres confronted and
created by the operations of the law. When one prob~s the storytelling elements of
legal business-as-usual, the narratives proliferate vertiginously. There is matter for
a whole volume, so many questions does the probing raise.
How is it, for instance, that a case decided by a jury "beyond a reasonable doubt"
can then go on to appeal, and have the narrative that won out in the courtroom
reversed? Appeals court judges are not supposed to second-guess the triers of fact.
They look for judicial error, or story events overlooked or excluded from the jury's
attention, or, on the contrary, events illegitimately brought to its attention or items
wrongly given the status of events. So it is that one sees appellate courts retelling the
story with a different outcome, using a different narrative glue to bind events
together. And when the majority opinion is countered by dissent, two retellings are
in competition, the one uneasily, though conclusively, victorious because it con-
vinces at least one more of these professional listeners than did the other. The law
fascinates the literary critic in part because people go to jail, even to execution,
because of the well-formedness and force of the winning story. Conviction in the
legal sense results from the conviction created in those who judge the story. Be-
cause some narratologists have meditated on the issue of how stories create convic-
tion, one can argue that here the work ofliterary critics could usefully be read within
the legal community.
The plea for attention to narrative-the formal, analytic sort of attention brought
by the literary critic-may take on particular cogency when we confront the radical
question of the pertinence of the very notion of narrative to the law. Alan Dershowitz
raises this radical question in his contention that the whole notion of a well-for-
med narrative-as exemplified in Chekhov's rule that a gun introduced in act I must
by act III be used to shoot someone-is misleading in the court of law, for it leads
jurors to believe that real-life stories must obey the same rules of coherence. If we al-
low into evidence the narrative of spousal abuse, then the eventual murder of for-
mer wife by former husband becomes a logical narrative conclusion to the story.
But Dershowitz wants to argue, Who is to say that life provides such narrative
logic? Dershowitz offers here his version of a theory of narrative advanced by Jean-

18 Peter Brooks
Paul Sartre (among others), in his contention that narrative, as opposed to living,
really starts at the end of the story, which is there from the beginning, transforming
events into indicia of their finality, their making sense in terms of their outcome. For
the critic and theorist Roland Barthes, narrative is a kind of sentence writ large,
which reaches its conclusion with a full predication of the initial subject. Or, as
Barthes also puts it, narrative is a large-scale demonstration of the logical error of
the post hoc ergo propter hoc: that because something follows something else, it is
caused by it, follows from it.
It is indeed in the logic of narrative, as one of our large ways of speaking the
world, to explain by way of etiology, to show by way of the enchainment of events
how we got to where we are. Dershowitz may be right to protest that life is blinder
and more formless than that. Yet his protest may be in vain. For our literary sense of
how stories go together-of their beginnings, middles, and ends-may govern life
as well as literature more than he is willing to allow. Our very definition as human
beings is very much bound up with the stories we tell about our own lives and the
world in which we live. We cannot, in our dreams, our daydreams, our ambitious
fantasies, avoid the imaginative imposition of form on life. Life is in many respects
narrativized in series and bunches of intersecting stories-never complete until our
death, of course, but nonetheless oriented toward the significant chapterization of
our existence. Life in this manner is made to imitate art. It would be an important,
though no doubt impossible, task to address the legitimacy of our sense of story, and
our need for narrative plots, at the law. If Dershowitz utters a significant caveat
about putting too much trust in our sense of how stories tum out, it is not clear that
we could even put together a story, or construe a story as meaningful, without this
competence-acquired very early in life-in narrative construction. If narrative
form were to be entirely banished from the jury's consideration, there could be no
more verdicts.
Since the law at least implicitly recognizes the power of storytelling, it has been
intent, over the centuries, to formalize the conditions of telling-to assure that
narratives reach those charged with judging them in certain rule-governed forms.
Against what may often appear as the fragmented, contradictious, murky unfolding
of narrative in the trial courtroom stand formulas by which the law attempts to
impose form and rule on stories. The judge must know and enforce these rules. And
when stories are culled from the trial record and retold at the appellate level, it is to
evaluate their conformity to the rules. At this level, all narratives become exem-
plary: they illustrate a point oflaw, a crucial issue injustice, a symbolic moment in
the relations of individual and state. So it is that the law has found certain kinds of
narrative problematic and has worried about whether they should have been al-
lowed a place at trial or what place they should have been allowed. All the rules of

The Law as Narrative and Rhetoric 19

evidence, including the much-debated exclusionary rule, touch on the issue of rule-
governed storytelling.
Two striking instances of narratives that have caused the law intense uncertainty
and anxiety are the age-old problem of confession and the more recent question of
victim impact statements. When and how cHn a confession be certified as voluntary,
both uncoerced and-therefore?-true to the facts? Can the law create contextual
rules that will assure that these most intimate and damaging of personal stories be
correctly told and listened to? Where victim impact narratives are concerned, how
does one balance the need to include the story of harms done with the need to do
evenhanded, dispassionate justice? And if one is to allow the victim's narrative of
harm, what is its place at trial? The issues here tum on calculations of the effect of
stories told on their listeners-first and last, the jurors, the listeners who matter.
Hence these issues point us toward other, related ones, for instance, how judges
may instruct juries to listen to stories. These are some of the questions taken up in
the presentations by Peter Brooks and Paul Gewirtz and commented on by Louis
Michael Seidman and Elaine Scarry.
In U.S. law, all the issues-including those that concern the telling of and the
listening to stories-find their ultimate commentary in the judicial opinion, espe-
cially the Supreme Court opinion. And so it is with discussion of the judicial
opinion, with presentations by John Hollander and Sanford Levinson, comments by
J.M. Balkin, Pierre Leval, and Reva Siegel, and concluding remarks by Catharine
MacKinnon, that we end. By focusing on the rhetoric of the judicial opinion, we
intend no trivial or pejorative sense of rhetoric. Rather, we would call attention to
the fact that the judicial opinion, like other forms of legal discourse, belongs to
rhetoric and uses certain rhetorical forms-indeed, as some of the contributors here
point out, rhetoric was originally conceived as the art of argument in law courts.
When one uses language, there is no escape from rhetoric. The point is to know
where one is in it, what topoi one is using, and what their effect may be.
"It is so ordered," the opinion of the court typically concludes. This rhetorical
topos inevitably fascinates the literary analyst, who normally deals with texts that
cannot call on such authority. Much literature, one suspects, would like to be able to
conclude with such a line-to order an attention to its message, to institute a new
order or a new point of view on the basis of the imaginative vision that it has
elaborated. It is powerless to do so, except insofar as it has been rhetorically
persuasive. Literary narratives, especially those that stage the reactions oflisteners
to a story told, sometimes contain marks of their intended effect, of the change in the
lives of their readers they would hope to bring about. The judicial opinion appears
to start from the other end, to announce an effect that has the force of law and then

20 Peter Brooks
find the rhetoric that will persuade its audience that this effect has behind it an
inexorable logic leading to an inevitable result.
But the authority of the court opinion is not a given-it must be earned; and the
audiences from which assent must be won are often multiple. In many a Supreme
Court opinion-Miranda v. Arizona is a good example-one can detect the Court's
attempts to address different listeners: dissenting Brethren first of all, then lower
court judges, then state legislatures and the police forces of the nation, then the
public at large. The rhetoric of persuasion has several prongs in such an opinion.
And there are moments when the Court's authority to order appears so threatened
by the noncompliance of its audiences that the rhetoric of persuasion is tensed in
defense of the very notion of the Court's legitimacy, as, notably, in Cooper v.
Aaron, where the Court faced the open defiance of the state of Arkansas to its school
desegregation decisions. In such cases, the story of rule and precedent told by the
Court must be so overwhelmingly persuasive (and in all the important desegrega-
tion cases of the 19 50s and 1960s, backed by a unanimous Court) that resistance is
made to appear aberrant.
Even in less dramatic cases, courts must attempt to present their opinions as
seamless webs of argument and narrative. The story of the case at hand must be
interwoven with the story of precedent and rule, reaching back to the constitutional
origin, so that the desired result is made to seem an inevitable entailment. If
narrative may be said to start at the end-in that we know an end is coming and that
beginning and middle will retrospectively make sense in its terms and seem an
enchainment of cause and effect-constitutional adjudication claims to start from
the beginning, in first principles laid down in the Constitution itself. Constitutional
adjudication is always in some measure a story of origins, reaching back to our
founding text and ur-myth. Yet as with so many stories of origin, this may be
something of a trompe l 'oeil. What the Court must do is rule on a present matter in a
plausible and persuasive way, according to established principle, then find the
connecting thread of narrative to take it back to origins. As in Sartre's description of
narrative, the story really proceeds in the reverse: its apparent chronology, from
beginning to end, may cover up its composition, from end to beginning.
In Planned Parenthood v. Casey, Justice Souter, writing for the plurality, elo-
quently states: "Our Constitution is a covenant running from the first generation of
Americans to us and then to future generations. It is a coherent succession" (505
U.S. 833, at 2837). The covenant is a master narrative, into which each new
narrative episode must be fitted. How does this work? In Justice Souter' s words
again, "[T]he Court's legitimacy depends on making legally principled decisions
under circumstances in which their principled character is sufficiently plausible to

The Law as Narrative and Rhetoric 21

be accepted by the Nation" (at 2814). The narrative of the covenant relies on
precedent and stare decisis in order that change or innovation appear to be princi-
pled, so that sequence appears not random but consecutive. The most apt words in
Souter's sentence may be "sufficiently plausible." What does suffice here? Only
that which is rhetorically effective, that which persuades, that which assures con-
viction. "Sufficiently plausible" invites assent, but also a degree of awareness of
how one is being worked on by rhetoric. "Sufficiently plausible" offers a pretty
good definition of what we, as listeners, demand of any narrative proposed to our
attention.

At the end of the symposium, I felt that we were ready to begin. By this I mean
that in the manner of successful conferences-and this one was marked by an
exceptionally high level of thinking, storytelling, and rhetoric-"Narrative and
Rhetoric in the Law" had begun to clear the terrain, define the issues, provide the
terms for a more sustained consideration of the questions raised. One would have
liked to be able to shut all the participants in a room and make them work through to
further definition and clarification. Still, what had emerged clearly enough by the
end of the sessions was not only that the law is consubstantial with narrative far
more than is usually acknowledged but that the law turns on what we might call
narrative in situation: stories in their dynamic transaction between tellers and
listeners. How stories are told, listened to, received, interpreted-how they are
made operative, enacted-these are issues by no means marginal to the law nor
exclusive to theory; rather, they are part of law's daily living reality. If the essays
and comments in this book succeed in making this point-as I believe they do-
they open the way to continuing research that would make imperative the closer
cooperation oflegal and literary analysts. Here, I think, we find a shock ofrecogni-
tion as two disciplines with disparate aims discover that they have important matter
of common concern and that transgressing the boundaries that separate them has a
real logic, indeed a certain necessity.

22 Peter Brooks