652865

research-article2016
LCH0010.1177/1743872116652865Law, Culture and the HumanitiesWharton and Miller

LAW, CULTURE
AND
THE HUMANITIES
Commentaries: “Law And Narrative”

Law, Culture and the Humanities

New Directions in Law

2019, Vol. 15(2) 294­–304
© The Author(s) 2016
Article reuse guidelines:
and Narrative sagepub.com/journals-permissions
DOI: 10.1177/1743872116652865
https://doi.org/10.1177/1743872116652865
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Robin Wharton
Georgia State University, Atlanta, GA, USA

Derek Miller
Harvard University, Cambridge, MA, USA

Abstract
This commentary assesses the state of scholarship on law and narrative and argues for a more
holistic approach to the topic. Narrative and law do not encounter each other accidentally but
are ineluctably intertwined. Law is a dominant narrative form in the modern world; narrative
suffuses not just testimony but all legal practice. We urge scholarship that recognizes law and
narrative as part of the same socio-cultural project of making the world.

Keywords
law and literature, narrative, narratology, postcolonial theory, precedent

At the 2015 meeting of the Modern Language Association (MLA), we organized a

roundtable on “Desire for Narrative in Law and Literature.” We solicited work that
explored the various ways in which law not only engages narrative, but also seems to
need narrative. In other words we took as granted that law, as Peter Brooks has argued,
“needs narratology,”1 and sought to explore the diverse narratives – and thus the multiple

1. Peter Brooks, “Narrative in and of the Law” in James Phelan and Peter J. Rabinowitz (eds), A
Companion to Narrative Theory (New York: Wiley-Blackwell, 2008), p. 425.

Corresponding author:
Robin Wharton, Department of English, Georgia State University, 25 Park Place, Room 2434, Atlanta,
GA 30302, USA.
Email: rwharton3@gsu.edu
Wharton and Miller 295

narratological perspectives – that law demands. Two articles in this commentary section
originally appeared in that panel. This comment introduces those exciting contemporary
approaches to law and narrative and reflects on the scope of the topic and its persistent
importance.
Law takes advantage of the entire range of rhetorical and representational possibilities
available to it as a narrative form. The law does not merely involve narration – for exam-
ple, in representing the underlying reality from which judicial or regulatory decisions
emerge. Rather, law is narrative, its coherence dependent upon our collective under-
standing of how stories make meaning by connecting characters and events into histories
both factual and fictional. Further, as a narrative form in its own right, like the epic or the
novel, the law exercises considerable influence not only over how we read other narra-
tive forms, but also over the stories such forms are capable of telling. The two comments
gathered here, along with the other material from the MLA panel, demonstrate both the
breadth and depth of new scholarship on law and narrative and make a case for the cen-
trality of the law and narrative paradigm within literary and legal studies.

I. Law and Narrative

In an influential PMLA article assessing law and literature, Julie Stone Peters divides the
joint study of those subjects into three phases.2 First came “humanism,” which offered
literature as the antidote to the technocratic rigor of law and economics. “Hermeneutics,”
swept up in deconstruction and other literary theory, “threatened to unmoor law from its
traditional interpretive bases” of textual interpretation.3 Last but not least comes narra-
tive, which combined the former’s concern with human agency and the latter’s aware-
ness of a text’s multiple meanings.
A similar tripartite division defines the general approaches to law and narrative.
Although Peters lists narrative third in the development of law and literature, narrative
actually features prominently in the contemporary field’s ur-text, James Boyd White’s
The Legal Imagination from 1973. In White’s chapter on narrative, the final section of
his book, he notes that narrative draws together and summarizes his central concerns. He
suggests there that “the central act of the legal mind, of judge and lawyer alike, is this
conversion of the raw material of life – of the actual experiences of people and the thou-
sands of ways they can be talked about – into a story that will claim to tell the truth in
legal terms.”4
Yet law and narrative did not truly come into its own until the late 1980s. White’s
concern with how the minds of jurists, litigants, and other citizens narrate their lives and

2. For a more recent outline of narrative in relation to law and literature, see Greta Olson,
“Narration and Narrative in Legal Discourse” in Peter Hühn et al. (eds), the living handbook
of narratology, (Hamburg: Hamburg University Press, 2014), http://www.lhn.uni-hamburg.
de/.
3. Julie Stone Peters, “Law, Literature, and the Vanishing Real: On the Future of an
Interdisciplinary Illusion,” PMLA 120(2) (2005), 445.
4. James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and
Expression (Boston, MA: Little, Brown, 1973), p. 859.
296 Law, Culture and the Humanities 15(2)

their understanding of law features prominently in that first explosion of law and narra-
tive scholarship that critiqued the force of storytelling in legal cases. Writers such as
Richard Delgado and Robin West hoped attending to narrative would give voice to the
voiceless and offer perspectives that critiqued the hegemony of laws usually narrated by
and for dead white men. Introducing the influential 1989 Michigan Law Review sympo-
sium on law and narrative, Kim Lane Scheppele noted that “what almost all the writers
[in the symposium] shared was a concern with the point of view of outsiders, those
whose perspectives had been excluded in the law’s construction of an official story for
the particular case.”5 As Peters later summarized, this work claimed “a kind of post-
critical real as a viable basis for legal ethics.”6
As this movement of narrative jurisprudence firmly established itself in the early
1990s, scholars shifted their gaze from the stories that litigants tell and those that litiga-
tion excludes to the stories embedded in judicial decision-making. “The stories that theo-
rists such as [Oliver Wendell] Holmes, [Lon L.] Fuller, and [Ronald] Dworkin tell are not
simply ornamental; they are central to – they even constitute – each writer’s conception
of law,” wrote Robin West in her critique of legal narrative. “By reading these jurispru-
dential stories systematically and critically as stories, we may achieve a richer under-
standing of the philosophical arguments those anecdotes are meant to convey.”7 Such
readings seek out narratives that do not mark themselves as such, and thus expand the
scope of narrative studies in law.
The 1995 conference on “Narrative and Rhetoric in the Law” at Yale’s Whitney
Humanities Center summarized some of the myriad ways in which scholars had recog-
nized narrative’s centrality to law in the preceding decade or so. With contributors rang-
ing from Martha Minow and Catherine McKinnon to Elaine Scarry and John Hollander,
the volume on Law’s Stories produced from that conference probed legal narrative as a
political force, as constructed in trials, as confession or victim impact statement, and as
it appeared in judicial opinions.8 So rich had the dialogue about narrative become that
when Richard Posner revised his heavily critical monograph Law & Literature in 1998,
he devoted an entire chapter to narrative, a subject that did not merit an index entry a
decade earlier.9
Peter Brooks, one of the editors of the Yale conference volume, developed a robust
critique of law’s persistent repression of narrative. Brooks argued that the law resists
narratology because narrative fundamentally threatens law’s hermeticism. “Law’s
suspicion of narrative [reveals] its implicit awareness that in certain cases letting

5. Kim Lane Scheppele, “Foreword: Telling Stories,” Michigan Law Review 87 (August, 1989),
2077.
6. Ibid., 447.
7. Robin West, Narrative, Authority, and Law (Ann Arbor, MI: University of Michigan Press,
1993), p. 409, original emphasis. See also Robert A. Ferguson, “The Judicial Opinion as
Literary Genre,” Yale Journal of Law & the Humanities 2(1) (1990), 201–19.
8. Peter Brooks and Paul Gewirtz (eds), Law’s Stories: Narrative and Rhetoric in the Law (New
Haven, CT: Yale University Press, 1996).
9. Richard A. Posner, Law & Literature, Revised and Enlarged Edn. (Cambridge, MA: Harvard
University Press, 1998).
Wharton and Miller 297

narrative breach the bar of repression would risk a veritable deconstruction of all the
legal argumentation – a massive housewrecking of judicial rhetoric-as-usual,” Brooks
writes.10 For instance, Brooks suggests that Fourth Amendment jurisprudence about
“inevitable discovery” exemptions to the exclusionary rule reveal how the law relies
on “retrospectivity” to justify its outcomes. In such examples the known result of an
otherwise illicit search structures the narrative courts hypothesize in determining the
forbidden item’s discovery “inevitable” and thus permissible. A proper understanding
of how narrative structures itself around endings might, in Brooks’ view, reshape such
tendencies in Fourth Amendment law. Whatever the utopian desires implicit in
Brooks’ analysis, narrative here clearly means more than only testimony or confes-
sion (on which Brooks has also written extensively).11 Narrative exists in more than
the stories told in the courtroom or summarized in judicial opinions: narrative suf-
fuses all of legal practice.
Bernard S. Jackson had made precisely this argument in his 1988 book, Law, Fact, and
Narrative Coherence. Jackson, writing from a Greimasian semiotic perspective, urged
that we read not only the explicit narratives related at trial, but also the narratives of the
trial itself. The latter, the “story of the trial,” as distinguished from the “story (told) in the
trial,” “is as much subject to the constraints of narrative coherence as is” the former,
Jackson writes.12 Jackson calls his analytic method the “narrativisation of pragmatics,” in
which the actions of the trial’s participants meet our demands for narrative coherence as
fully as must the competing narratives offered by the trial’s opposing parties.

The trial process itself is a complex of pragmatic interactions each one of which individually,
and all of which collectively, are themselves discursive constructions, their very intelligibility
depending upon their character as such. For not only is the “evidence” judged in the light of
narrative frameworks of typical social action; the behaviour of participants – and particularly
the lawyers – is judged in the light of narrative frameworks of typical legal action: how counsel
behaves in a particular context, how the judge behaves, how the jury behaves, etc.13

By recognizing narrative as fundamental to humans’ understanding of the world, Jackson

sees that we narrativize every aspect of the law, not only those that we might name
“stories.”
Three major intertwining strands thus thread through law and narrative. The first
strand concerns itself with storytelling such as in witness testimony, asking questions
about who speaks and what stories get told. The second strand considers how legal opin-
ions narrativize their own logic and tidy the narratives presented as evidence. And the
third (and seemingly least developed) strand considers narratives of the law that con-
strain and define the possibilities of legal practice. In any of those forms, narrative

10. Peter Brooks, “Policing Stories” in Law’s Madness, Austin Sarat, Lawrence Douglas, and
Martha Umphrey (eds) (Ann Arbor, MI: University of Michigan Press, 2003), p. 43.
11. Peter Brooks, Troubling Confessions: Speaking Guilt in Law & Literature (Chicago, IL:
University of Chicago Press, 2000).
12. Bernard S. Jackson, Law, Fact, and Narrative Coherence (Roby, Merseyside, U.K.: Deborah
Charles Publications, 1988), p. 35.
13. Ibid., p. 88.
298 Law, Culture and the Humanities 15(2)

suffuses law because law is a human activity that, like all other human endeavors, we
narrativize so as to make comprehensible.

II. Narrative and Law

While the examples above focus on what narrative means to law, law also means much
to narrative, particularly for writers such as Hayden White. White’s discussion of Hegel
and the state’s role in history’s genesis highlights the law as an essential condition of
narrative: “Where there is no rule of law, there can be neither a subject nor the kind of
event which lends itself to narrative representation.”14 For White, “the reality that lends
itself to narrative representation is the conflict between desire and the law.” Perhaps even
more significantly, “some notion of the legal subject” must be present to “serve as the
agent, agency, and subject of historical narrative in all of its manifestations, from the
annals through the chronicle to the historical discourse as we know it in its modern reali-
zations and failures.”15 Notions of legal subjectivity underlie depictions of the subject in
narrative, whether that narrative subject acts within commonly accepted legal bounds
placed on individual agency, or whether that subject transgresses or transcends such
limits. In White’s construction of history, the law forms a sort of regulatory backdrop
against which events unfold and become visible and relatable as narrative:

If every fully realized story, however we define that familiar but conceptually elusive entity, is
a kind of allegory, points to a moral, or endows events, whether real or imaginary, with a
significance that they do not possess as a mere sequence, then it seems possible to conclude that
every historical narrative has as its latent or manifest purpose the desire to moralize the events
of which it treats. Where there is ambiguity or ambivalence regarding the status of the legal
system, which is the form in which the subject encounters most immediately the social system
in which he is enjoined to achieve a full humanity, the ground on which any closure of a story
one might wish to tell about a past, whether it be a private or public past, is lacking. And this
suggests that narrativity, certainly in factual storytelling and probably in fictional storytelling
as well, is intimately related to, if not a function of, the impulse to moralize reality, that is, to
identify it with the social system that is the source of any morality that we can imagine.16

The law does more than circumscribe action within a particular social context; it also
exercises a profound influence over the literary imagination. Mary L. Dudziak has
recently described “the way law makes an indelible mark, or acts as a legitimizing force,
affecting what historical actors imagine to be possible,” in the field of international rela-
tions.17 As White challenges us to remember, law contributes substantially to how we
write and interpret the stories that we tell about ourselves and our history.

14. Hayden White, “The Value of Narrativity in the Representation of Reality,” in W.J.T. Mitchell
(ed.), On Narrative (Chicago, IL: University of Chicago Press, 1981), pp. 1–23, 12.
15. Ibid., pp. 12–13.
16. Ibid., p. 14.
17. Mary L. Dudziak, “Legal History as Foreign Relations History,” in Michael J. Hogan, Thomas
G. Patterson, and Frank Costigliola (eds), Explaining the History of American Foreign
Relations (3rd ed.) (Cambridge, forthcoming). Paper accessed via Social Science Research
Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476016, p. 1.
Wharton and Miller 299

We only know the law through the narratives we create about it – narratives that
include statutes and judicial decisions. And these legal narratives, like medieval chroni-
cles and Victorian novels, are generated by a fundamental epistemological “impulse to
moralize reality, that is to identify it with the social system that is the source of any
morality that we can imagine,”18 or to put it another way, a desire to know the law. At the
same time, the law itself provides an essential condition for the legibility of all narra-
tives, both legal and non-legal.
For example, Stephen Best has asked us to consider, “How does the ‘form’ in the com-
modity form generate social phenomena in ways that are neither mechanical (historical
causality) nor fully contingent (analogy)?”19 In stitching together a history of property
law in the United States, Best demonstrates how a particular “figure of the person,” one
in which personhood itself is increasingly figured as a species of property in a wide vari-
ety of contexts, moved from law into culture and from culture into the law.20 As a conse-
quence, in spite of the potential discursive discontinuities created by emancipation and
constitutional amendment, antebellum juridical constructions such as the “fugitive” con-
tinued to inform the genesis and evolution of Equal Protection jurisprudence after the
Civil War.21
To see law and narrative as mutually interdependent as Best or White does is to under-
stand, as Jackson suggests, that the “events” in a legal narrative include more than the
transaction that gives rise to a particular case, or the actions of lawyers, litigants, and
witnesses at trial. Such a perspective also opens the door to considering aesthetics, poet-
ics, and other aspects of form as essential characteristics of sound legal decision-making.
They are not mere ornamentation of judicial process but perhaps as influential in shaping
the judicial process as the doctrine of stare decisis or the rules of evidence. If law is nar-
rative then we must read legal narratives as attempts at representation (rather than acts of
perfect mimesis), attempts that depend upon familiar strategies and tropes found in other
narrative genres, including fiction.

III. New Directions

The two other essays in this cluster, from Amanda Waugh Lagji and Andrew Benjamin
Bricker, examine how narrative forms enable a recursive and complex rhetorical and
epistemological exchange between legal and literary modes of production. This deep
entanglement was the subject of all the position papers in our MLA panel.22 The other
participants, whose work was not available to be included here, were Michael Bachman,
Kelly Rich, Simon Stern, and Christopher Warren. Bachman, drawing on the tradition of

18. White, “Narrativity,” p. 14.

19. Stephen Best, The Fugitive’s Properties: Law and the Poetics of Possession (Chicago, IL:
University of Chicago Press, 2004), p. 20.
20. Ibid., p. 89.
21. Ibid., pp. 269–76.
22. Papers from the roundtable are collected on an MLA Commons site at https://mla15lawand-
narrative.commons.mla.org/.
300 Law, Culture and the Humanities 15(2)

Catherine Cole’s work on truth and reconciliation trials, interrogated how “theatrical
witnessing” negotiates tensions between documentary and testimonial narrative in the
Eichmann trial. His approach follows Jackson’s idea that narrative assumptions drive the
story of, as well as in, the trial. Rich investigated contemporary British fiction’s persis-
tent attempt to close with the jurisprudential innovations after World War II. For Rich,
British literature’s constant return to the post-war period reveals precisely the desire to
know the law that White defines.23 Stern expanded the approach to judicial opinions
found in Robert A. Ferguson or Robin West’s work by emphasizing the narrative struc-
ture of legal analysis. Finally, Warren challenged the Hegelian strand in White’s work
that associates law and the state, identifying international law (and other forms of non-
national law) as “narrative poor.” As this short summary suggests, the work on this panel
emphasized the broad significance of law and narrative. Narrative appears in perfor-
mances as well as texts, law permeates fiction’s attempt to wrestle with the aftermath of
war, narratives structure legal analysis, and narrative demands attention in international
as well as national spheres. Thus argued four of our panelists, simultaneously working
within the tradition of law and narrative and pushing its boundaries.
The two papers included here similarly expand boundaries. In her commentary, “A
Post-Colonial Perspective: Law and the Literary World,” Amanda Waugh Lagji demon-
strates how postcolonial methodology can enrich law and literature studies by complicat-
ing our understanding of what “law” itself comprises. She offers a reading of Nuruddin
Farah’s novel Maps that calls into question critical interpretations of the novel in which
scholars presume the Western, imperialist judicial system is Farah’s primary referent in
his novel’s final passage. She suggests an alternative reading in which Askar, the pro-
tagonist, has a more complex notion of judicial process, one informed by Somali custom-
ary law, or Xeer, as well as European legal forms. Waugh Lagji does not suggest that
Maps is a novel about Somali customary law. Rather, she demonstrates how Farah’s
complex emplotting of events, the novel’s narrative structure, and Askar’s own sense of
his guilt or innocence, has been influenced by the iterative, oral, heterodiegetic form of
Xeer, as well as by European law:

My contention, in framing my reading of Maps with a discussion of the multiplicity of legal

systems co-existing in Somalia generally and the Ogaden in particular, is that this ambiguity
over Misra’s death also points to the indeterminacy of what constitutes a crime. Maps leaves
open not only what Askar did (or did not do), but also the ethical or legal framework that
imposes on Askar such strong feelings of guilt and responsibility.

Waugh Lagji’s postcolonial perspective provides additional insight into Askar’s charac-
ter and motivation, as well as into the novel’s representation of “the realities in Somalia
that Maps addresses: the troubled history of the integration of legal systems; clan-based
systems that give Xeer jurisdiction and frustrate Askar’s sense of belonging and blood-
lines; and the role of oral recounting in the service of truth and justice.” Her essay also

23. A version of this paper will appear in this journal. Kelly M. Rich, “Troubling Humanities:
Literary Jurisprudence and Crimes Against Humanity in Remains of the Day and Atonement,”
Law, Culture, and the Humanities 12(3): 496–508.
Wharton and Miller 301

demonstrates the relevance of postcolonial literary criticism to legal scholarship: it pro-

vides a vocabulary for describing how and why concepts of the subject, of guilt and
innocence, of criminality and legality, of justice itself that are considered normative in
Western law and literature are in fact culturally and geographically contingent.
Andrew Benjamin Bricker, in “Is Narrative Essential to the Law?: Precedent, Case
Law, and Judicial Emplotment,” turns a narratological lens on the law itself:

Given the bizarre status of narrative at law – its omnipresence and yet its precariousness – we
might look beyond the most overt modern instantiations of storytelling in the courtroom, and
especially witness testimony, which has held such sway over scholars of law and literature.
Instead, we should direct our attention to one of the most historically consistent acts of
storytelling that the common law has always seemingly embraced for its rationality and yet
whose narrativity the courts have always tacitly and even vocally suppressed: the judicial
opinion. In particular, I believe we need to look more closely at the invocation of precedent in
legal opinions as a very specific and almost archetypal act of formalized storytelling – what I
call here “judicial emplotment.”

Bricker’s analysis theorizes a narrative poetics of the law. Through a careful survey of
legal history, Bricker demonstrates how judicial reliance on precedent evolved from the
twelfth through the seventeenth centuries, from pre-modern canonical use of previous
decisions to illustrate important legal rules and concepts into modern stare decisis in
which previous rulings are binding precedent in subsequent cases involving analogous
factual scenarios. In order to accomplish this transition, early modern jurists and legal
theorists had to “narrativize” the common law, transforming it from an arguably ad hoc
jumble of sometimes wildly inconsistent outcomes into a coherent histoire of doctrinal
cause and effect. The result is a narrative archetype that shapes all modern common law
judicial decisions:

All of this is to suggest that, at the heart of the judicial ruling, is a double act of storytelling and
displacement. The courts recite the facts of the case as a kind of omniscient historical narrative,
and then apply to those facts, logically and analogically, a series of cases bearing similar legal
principles. But both of these acts of storytelling, while gathering their force and legitimacy
through the appeal of narrative, are also sublimated – they only gain their force, the law claims,
through reason.

In Bricker’s analysis, what we often take for granted as a fundamental rhetorical feature
of the law becomes a historically constructed narrative form or genre with a specific nar-
rative function – legitimation through application of previous judicial precedent.

IV. The Stakes of Law and Narrative: Implications and

Insights
The approaches to law and literature studies presented by Bricker and Waugh Lagji
comfortably work within both what Paul Heald has called the “law as literature as lan-
guage” and “law and literature as ethical discourse” categories of law and literature
302 Law, Culture and the Humanities 15(2)

scholarship.24 They combine study of “the form of legal argument and the form of liter-
ary rhetoric,” with attention to whether “the lessons taught in fiction have direct appli-
cability to how substantive legal decisions should be made.”25 In doing so, however,
they take important strides beyond critical methodology and vocabulary that depend
upon analogy and equivalence, a type of criticism that never quite captures law and
literature’s shared identity within and as narrative. To the extent that law and literature
are narrative, they participate in the same project. They are two sides of the same coin,
the currency with which historical continuity and socio-political cohesion are pur-
chased. If, as Heald suggested in 2009, “Law and Literature” as a field of academic
study continues in mattering little to the law, legal scholarship will continue to account
inadequately for how gendered, racist, ableist, and classist constructions of human sub-
jectivity lead to and perpetuate structural inequality within legal systems.26 And legal
education, especially in the United States, will continue to produce scholars and practi-
tioners blind to the extra-judicial or extra-legislative content that “pours in” to the law
via literary and other narrative forms of cultural production.27
We are particularly interested in reasserting the stakes of law and narrative as defined
by Peters. Law and narrative battles the layman’s misconception or rhetorically con-
structed notion that the law always represents the “real.”28 In fact legal narrative some-
times quite openly operates as fiction, and explicitly demands a willing suspension of
disbelief in the reader’s mind. At other moments, though, legal narrative can venture
unintentionally into fictional speculation. As Best shows, a tendency to accept without
examination legally significant, yet extra-legal interpretations of disputed concepts and
forms can lead to implicit bias that is all the more difficult to eradicate because the her-
meneutic and rhetorical operations of legal discourse obscure its presence.29 At the same
time, however, by insisting the law is ideally a closed system that works most perfectly
when it no longer needs to refer beyond itself, some legal scholars and judicial authori-
ties create legal arguments that unmoor the law from any grounding in the real, lived
experience of the individuals it governs. Such is the case with Justice Clarence Thomas’s
recent pronouncement in Obergefell v. Hodges that “[s]laves did not lose their dignity
(any more than they lost their humanity) because the government allowed them to be
enslaved.”30 This bit of sophistry is not even clearly true in an abstract legal sense given
that one could hardly be said to own or possess a thing when those rights are neither

24. Paul Heald, “The Death of Law and Literature: An Optimistic Eulogy,” The Comparatist 33
(May 2009), 20–28, 20–21, 22–3.
25. Ibid., 21, 22.
26. Ibid., 25–7.
27. Ibid27.
28. Stanley Fish, “The Law Wishes to Have a Formal Existence,” in There’s No Such Thing
as Free Speech … and It’s a Good Thing Too (Oxford: Oxford University Press, 1993),
pp. 142–3.
29. Best, Fugitive’s Properties, pp. 269–71. See also Fish’s discussion of the law’s systematic
erasure of its interpretive and rhetorical origins in “The Law Wishes,” pp. 168–79.
30. Obergefell v. Hodges, 576 U.S. ___ (2015), p. 17.
Wharton and Miller 303

universally acknowledged in the collective social imagination nor enforceable in a court

of law. Of what personal or even symbolic value are one’s dignity and humanity when
one can legally be bought, sold, raped, killed, or tortured by one’s legal owners? To
accept Thomas’s reasoning on this point, even if it were logical from a purely legal stand-
point, requires one to ignore the terrible reality of slavery.
Further, judicial arguments over the extent to which the interpretation of legal prece-
dent should refer beyond the four corners of a document might be read, in part, as aes-
thetic disputes over how much fiction is too much in a legal narrative. Responding to the
majority’s central holding in Citizens United v. FEC that government speech regulation
cannot discriminate on the basis of a speaker’s corporate identity, Justice John Paul
Stevens writes on behalf of the dissenters, “The fact that corporations are different from
human beings might seem to need no elaboration, except that the majority opinion almost
completely elides it.”31 Stevens certainly criticizes the majority’s interpretation of the
law, but he describes in great detail and seems even more concerned by the majority’s
disregard for both history and contemporary reality. In essence, he accuses the majority
of adjudicating in a fantasy world:

If individuals in our society had infinite free time to listen to and contemplate every last bit of
speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to
influence elections apart from the merits of their arguments (to the extent they make any); and
if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s
premise would be sound. In the real world [emphasis added], we have seen, corporate
domination of the airwaves prior to an election may decrease the average listener’s exposure to
relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the
democratic process.32

Kennedy’s majority opinion deals heavily in abstraction of both “speech” and “person-
hood” and is replete with prolepses into future scenarios where he imagines how an
incorrect decision in the case at hand may have disastrous results down the line. Stevens,
by contrast, relies on analepsis as well as exhaustive citation to the legal and historical
record to justify his argument that his particular interpretation of the law is the only just
result for this particular case. The two opinions not only offer two divergent legal out-
comes, they also exhibit very different narrative characteristics. These formal distinc-
tions are more than a matter of mere style, however. They substantively affect the kind
of story each justice is able to tell about the law, and reflect their implicit and perhaps
unexamined decisions about the poetics of legal narrative – that is their ideas about
things such as what a legal narrative should include, the order in which to tell it, whose
perspective to foreground, the sources from which to draw, the extent to which it can
refer or allude to other narratives and the substance of those allusions, whether it follows
the conventions of allegory or historiography or something in between.
In his essay “The Law Wishes to Have a Formal Existence,” Stanley Fish argues that
“the law is continually creating and recreating itself out of the very materials and forces

31. Citizens United v. FEC, 558 U.S. 310 (2010), p. 465.

32. Ibid., p. 472.
304 Law, Culture and the Humanities 15(2)

it is obliged, by the very desire to be law, to push away.”33 As Fish describes it, the law’s
authority as law stems in large part from the manner in which legal narrative disavows,
through fancy rhetorical “legerdemain,” its origins in linguistic interpretation and situa-
tional morality.34 Law and narrative has always meant more than this, as the papers on
our panel and those printed here make clear. There remains much work to do.
Acknowledging and exploring the complex interdependence between legal and literary
modes of cultural production might bring greater transparency and flexibility to the legal
process. Rather than keeping up a false pretense that the law is a closed formal system,
and insisting it must be freed from contaminating outside influences, we should spend
more time examining how the law participates within a larger narrative project.35
The overview we offer here, the essays by Bricker and Waugh Lagji, and the position
statements offered by the other participants in the original MLA roundtable, reveal both
how thoroughly narrative suffuses all legal practice and how much work the narratives
produced in and by the law do in the world. In reasserting these suppressed but, we hope,
unavoidable facts, we might establish a more systematic and productive – as opposed to
obscure and haphazard – evolutionary relationship between law and other narrative
forms. Such an approach may empower petitioners and litigants by providing a more
complete picture of the discursive process from which the law emerges and yet of which
it remains only a part. It could also foster greater mindfulness and clarity in legislative
and judicial decision-making by creating a broader awareness of how deeply legal narra-
tives draw upon and how profoundly they influence the creation of a collective socio-
cultural identity.

Acknowledgements
Thanks to the participants in our MLA panel, to Austin Sarat, and to our anonymous reviewer for
helpful suggestions.

33. Fish, “The Law Wishes,” p. 156.

34. Ibid., pp. 159, 175–8.
35. Acknowledging the constructed, contingent, composite nature of legal narrative does not
require abandoning things such as convention, proper methodology, and procedural rules, i.e.,
things designed to lend uniformity and predictability to legal decision-making. To draw upon
Bruno Latour’s idea of “compositionism,” attentiveness to the law’s status as a narrative genre
or even a set of genres “draws attention away from the irrelevant difference between what is
constructed and what is not constructed, toward the crucial difference between what is well or
badly constructed, well or badly composed” (Bruno Latour, “An Attempt at a ‘Compositionist
Manifesto,’” New Literary History 41(3) (Summer 2010), 474). Opening up and peering into
law’s black box might afford better opportunity to “repair, take care, assemble, reassemble,
stitch together” (Latour, “Manifesto,” 475).