Many law students learn about "narrative" at some point in law school. Of course, narratives (or more simply "stories") are all over the law. Individual cases include narratives in their recitation of the facts and procedural history. Sequences of cases can be studies as narratives, with events both internal and external to the law woven into a story about how and why the law changed. Some legal narratives stress the internal development of the law: the law works itself pure. Other legal narratives lay emphasis on forces external to the law: a Marxist narrative might explain legal change as a response to the interests of the capitalist class. Narratives like these seek to explain legal change. We might call them "causal narratives."
But in addition to the role of narrative in causal explanation, stories about the law can play a normative role. By telling a story that explains how the law came to be the way it is, we may also be making implicit or explicit normative claims about the goodness or badness of the content of the law (or of a theory about law). This entry in the Legal Theory Lexicon is about the normative role of narrative in law and legal theory. As always, the Lexicon provides a short introduction aimed at law students with an interest in legal theory.
How Narratives Go Normative
Not all historical narratives are strongly normative--although all legal narratives may have some normative elements. We can distinguish between narratives which primarily aim to give causal explanations and those narratives which primarily aim at influencing normative evaluation of the actions and events recounted in the narrative. Thus, we might distinguish between "causally implicated narratives" and "normative charged narratives." Almost all narratives are causally implicated; stories explain actions by invoking folk psychological explanations: "Ben voted for the legislation in order to get reelected." Ben's action, voting for the bill, is explained by a motive, to get reelected. Stories implicitly explain actions and events--even when they do not make explicit causal claims.
How do narratives acquire a "normative charge"? The normative claims of narratives are frequently implicit and they rarely come in the form of fully developed normative arguments. The deep normative assumptions of narrative frequently come to the surface in the form of value-laden descriptions. Actions are explained by motives that are characterized as selfish or altruistic, progressive or conservative, foolish or wise. Events are characterized as disasters or triumphs. At one level, the normativity of narrative is inescapable. Many of the stories that interest humans are “morality plays,” with heroes and villains, happy endings and tragic finales, poetic justice and cruel twists of fate. No one should expect narrators to engage in “normative abstinence.”
Narrative and Identity
Narratives can acquire normative significance in another way, by telling a story about that ties the identity of some group to some trajectory of historical development. The entanglement of narrative with identity is common in constitutional history. Consider the following example, which presents a very simplified and somewhat altered version of a narrative account of the New Deal associated with Bruce Ackerman:
Suppose that the transformation of constitutional law during the New Deal was an act by "We the People" that rejected formalist doctrines that hobbled the development of a national administrative state and empowered the President to make transformative appointments to the Supreme Court. These appointments resulted in New Deal constitutional moment that authorized Congress and the President to solve the pressing problems of the Great Depression, then our current identity as Americans (as part of "We the People") is tied to support for these constitutional changes. Because the New Deal constitutional moment is part of our identity as a people, supporting this historical event is part of "being American" or being one of "We the People"--and conversely, rejection of the New Deal constitutional moment is rejection of one's connection to American history and hence of one's status as "one of us," a member of "We the People."
Of course, this narrative is contestable--another story could be told about the New Deal constitutional moment that portrayed it as a usurpation that lead to an out-of-control bureaucracy that has hobbled the economy and endangered democracy. The point is that this kind of constitutional narrative is normatively charged--even if it does not explicitly make normative claims or employ the conventional resources of normative legal theory.
Narratives and the Normative Evaluation of Beliefs
Some narratives are about beliefs. These narratives tell a story about how we came to have our beliefs about some aspect of law. Some of these narratives "debunk," aiming to delegitimate a belief--by showing that the origins of the belief are such that the belief is unreliable or tainted. Other narratives "vindicate," aim to establish the process by which the belief was formed is reliable and hence that the belief is likely true. Similarly, the origins of a belief might be associated with right actions or good people, suggesting that the belief itself is good.
The use of debunking and vindicating narratives is especially relevant to legal theory when a story is told about the development of a legal theory itself. For example, a vindicating narrative about American legal realism might begin by identifying legal formalism with the interests of the wealthy and powerful and rationalization of injustice for the poor and powerless. Legal realism, the narrative might continue, was championed by progressives, who developed the new legal theory in order to put law in the service of the common good and the struggle against injustice and oppression. Formalist beliefs, the narrative suggests, are "bad," whereas realists beliefs are "good." In this toy example, the narrative vindicates legal realism and debunks legal formalism.
The Genetic Fallacy
Although normative narratives may be rhetorically powerful, some critics of the normative use of narrative are worried that their persuasive force may rely on rhetoric rather than reason. One version of this worry is expressed by invocation of the "genetic fallacy"--one of the informal fallacies identified in standard accounts of informal logic. The key idea is that the origins of an idea or belief may not be relevant to its truth or falsity. Sometimes this is clear. From the fact that Hitler was a vegetarian, it does not follow that vegetarianism is morally abhorrent. From the fact that Franklyn Delano Roosevelt, Jr., a great President, approved the internment of Japanese Americans, it does not follow that their detention was morally permissible.
Likewise, it is not clear that narratives that a link between some legal phenomenon and identity provides good reasons for supporting the legal phenomenon. From the fact that a narrative associates some historical development with a particular identity (e.g., being an American), it does not follow that the development is good, right, or justice. The fact that a given legal practice is part of a group's identity is consistent with that practice being thoroughly bad: if racism is part of American identity, it does not follow that racist laws are good. Although identity claims may be persuasive, it is not clear that they rest on valid arguments.
Although some normative narratives about beliefs or theories commit the genetic fallacy, this is not always the case. In other cases, the origins of a belief truly are debunking--because it can be shown that the causal mechanism that induces the belief is such that it is inconsistent with the truth of the belief. Or the debunking explanation might show that whether or not the belief is true, the causal mechanisms that induced the belief did not rely on good evidence and hence that the belief is not well grounded--even if it might turn out to be true upon further investigation. In either event, the debunking narrative provides good reason to question the belief. What is sometimes called "critique of ideology" works in this way. If it could be shown that the ideal of the rule of law is an ideological construct that was developed in order to further the interests of the capitalist class, that would be a good reason to question the belief that the rule of law is normatively valuable.
Normative narratives are common in contemporary legal theory, but the theoretical foundations for the claims that narratives have normative significance are seldom made explicit. This aim of this entry in the Legal Theory Lexicon was to provide an introduction to these issues and to give readers a basis for reflection.
Related Lexicon Entries
- Legal Theory Lexicon 003: Hypotheticals
- Legal Theory Lexicon 014: Fact and Value
- Legal Theory Lexicon 020: Causation
- Legal Theory Lexicon 040: Functional Explanation in Legal Theory
- Legal Theory Lexicon 046: Legitimacy
- Raymond Geuss, The Idea of a Critical Theory: Habermas and the Frankfurt School (1981).
- Lawrence B. Solum, Narrative, Normativity, and Causation, 2010 Mich. St. L. Rev. 597, 602 (2010).
- Jacob Van Vleet, Informal Logical Fallacies: A Brief Guide (2010).
(First posted on June 4, 2017.)