Is Narrative Essential to the Law?: Precedent, Case Law and Judicial Emplotment

627413 research-article2016

LCH0010.1177/1743872115627413Law, Culture and the HumanitiesBricker

LAW, CULTURE AND THE HUMANITIES

Article

Is Narrative Essential to the Law?: Precedent, Case Law and Judicial Emplotment

Law, Culture and the Humanities 1­–13 © The Author(s) 2016 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1743872115627413 lch.sagepub.com

Andrew Benjamin Bricker McGill University, Canada

Abstract Storytelling pervades almost every aspect of the law. Many narrativistic legal elements, however, have in fact been little more than historically transitory. Given the precarious status of narrative at law, I argue we should focus instead on one of the most historically consistent acts of legal storytelling: the judicial opinion. Here I examine in particular the invocation of precedent in legal opinions, what I call “judicial emplotment,” as an almost archetypal act of formalized storytelling. As I go on to argue, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific and heavily formalized legal-narrative structure.

Keywords judicial opinion, precedent, stare decisis, narrative, storytelling, Law and Literature, emplotment

I.  Narrative at Law Is narrative essential to the law? In the most obvious sense, as scholars working at the intersections of legal and narrative theory have observed, storytelling seems to pervade almost every aspect of the law.1 We could point to witness testimony as a form of firstperson narration, opening and closing oral arguments, briefs submitted to the court and   1. For a concise survey, see Greta Olson, “Narration and Narrative in Legal Discourse,” in Peter Hühn et al. (eds), The Living Handbook of Narratology (Hamburg: Hamburg University Press, 2009– 15) (Online: http://www.lhn.uni-hamburg.de/article/narration-and-narrative-legal-discourse).

Corresponding author: Andrew Benjamin Bricker, Andrew W. Mellon Foundation Postdoctoral Fellow in the Humanities, Department of English, McGill University, Arts Building, Room 265, 853 Sherbrooke St. West, Montreal, Quebec, H3A 0G5, Canada. Email: [email protected]

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memoranda circulated internally before trial – even the pretrial selection of evidence that shapes the narratives told to the court and in the courtroom, as Rosemary Coombe has observed, or the “if … then” temporal logic of legal codes, as Meir Sternberg has argued.2 As Anthony G. Amsterdam and Jerome S. Bruner have put it, the law is awash in storytelling. […] This endless telling and retelling, casting and recasting is essential to the conduct of the law. It is how law’s actors comprehend whatever series of events they make the subject of their legal actions. It is how they try to make their actions comprehensible again within some larger series of events they take to constitute the legal system and the culture that sustains it.3

Despite its prevalence, however, narrative has always occupied an awkward position at law. Many narrativistic legal elements, in fact, have been little more than historically transitory: the party-witness rule, established in the late sixteenth century, disqualified “interested parties” from telling their stories in court until the mid- to late nineteenth century as a bar to perjury4; criminal defense lawyers, who offered a countervailing or “adversarial” narrative on behalf of their clients, served virtually no courtroom function until the close of the seventeenth century5 and were only able to represent and speak on behalf of defendants fully in criminal trials after the Prisoners’ Counsel Act of 18366; witness testimony, especially by victims in rape trials, has often been treated skeptically, cavalierly and even sardonically by both the bench and attorneys7; and forensic evidence came increasingly to displace witness testimony over the course of the eighteenth and nineteenth centuries.8 Over the past five centuries – at least – in an effort to focus the

  2. Rosemary Coombe, “Is there a Cultural Studies of Law?,” in Toby Miller (ed.), A Companion to Cultural Studies (Cambridge, MA: Blackwell, 2001), p. 43; and Meir Sternberg, “If-Plots: Narrativity and the Law Code,” in John Pier and José Angel Garcia (eds), Narratologia: Theorizing Narrativity (Berlin: de Gruyter, 2008), pp. 29–107.   3. Anthony G. Amsterdam and Jerome S. Bruner, Minding the Law (Cambridge, MA: Harvard University Press, 2000), p. 110.  4. Joel N. Bodansky, “The Abolition of the Party-Witness Disqualification: An Historical Survey,” Kentucky Law Journal 70 (1981–2), 92–3.   5. See John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2005), chaps. 1–2.   6. For the relationship between criminal defense and narrative, see Jonathan H. Grossman, The Art of Alibi: English Law Courts and the Novel (Baltimore, MD: Johns Hopkins University Press, 2002), pp. 7–36.   7. Simon Dickie, Cruelty and Laughter: Forgotten Comic Literature and the Unsentimental Eighteenth Century (Chicago, IL: University of Chicago Press, 2011), chap. 5, esp. pp. 193– 200 and 235–46.  8. For more, see Alexander Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore, MD: Johns Hopkins University Press, 1991), even if, as Kevin Jon Heller has shown, jurors today routinely undervalue circumstantial evidence and overvalue eyewitness identifications and confessions (“The Cognitive Psychology of Circumstantial Evidence,” Michigan Law Review 105(2) (November 2006), 241–305).

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function of storytelling at law, the courts have attempted to contain, delimit and shape the kinds of narratives told at trial. One thinks, perhaps, of Christine Künzel’s observation that the law privileges forms of realist narration, making the sometimes nonlinear, affective and dissociative testimony of rape victims seem particularly suspect,9 or even of the strict limits placed on victim-impact statements to prevent them from excessively shaping legal outcomes.10 Moreover, especially before the nineteenth century, trials tended to be brisk affairs. Some cases lasted only minutes, and the courts could cycle through dozens of litigants and defendants in a single day – hardly the atmosphere that would give rise to the voluminous, first-person testimonial drama of today’s courtrooms on TV and in Hollywood.11 Some narratologists have theorized this precarious and sometimes antagonistic relationship between law and storytelling as an act of repression. Peter Brooks, in particular, has argued that the law aggressively occludes its basis in narrative, displacing its functions with claims to abstract norms and logical reasoning.12 He has called narrative “the impensé of the law: its untheorized or even repressed content.”13 This anxiety about legal storytelling is hardly new. Peter Goodrich, for instance, has argued that repression of the law’s narrative elements extends all the way back to the medieval period.14 Rather than being essential to the law, then, perhaps narrative is in many ways incidental, a changeable element in the history of common law. Storytelling might be everywhere, but it is equally the redheaded stepchild of legal discourse, forever and perilously on the margins of legitimacy. 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   9. Christine Künzel, Vergewaltigungslektüren: Zur Codierung sexueller Gewalt in Literatur und Recht (Frankfurt: Campus, 2003), pp. 249–54. 10. For the controversy around such statements, see Phillip A. Talbert, “The Relevance of Victim Impact Statements to the Criminal Sentencing Decision,” UCLA Law Review 36(1) (October 1988), 199–232; and Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Outcomes and Processes,” British Journal of Criminology 39(2) (Spring 1999), 216-39. 11. See J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press, 1986), pp. 376–8. 12. Peter Brooks, “Narrative in and of the Law,” in James Phelan and Peter J. Rabinowitz (eds), A Companion to Narrative Theory (Malden, MA: Blackwell, 2005), pp. 415–26. 13. Brooks, “Narrative in and of the Law,” p. 415. For a slightly skeptical response to Brooks, and Sternberg, see Monika Fludernik, “A Narratology of the Law?: Narratives in Legal Discourse,” Critical Analysis of Law 1(1) (2014), 87–109. 14. Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis (New York: St. Martin’s Press, 1987), p. 33.

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of formalized storytelling – what I call here “judicial emplotment.” In effect, the courts justify legal outcomes by invoking precedent, thereby placing decisions within a specific legal-narrative structure. Judicial opinions thus possess a kind of latent narrativity: the causal logic of precedent simultaneously employs the building blocks of plot and legal storytelling while repressing, through an appeal to reason and analogy, the historicalnarrative basis of precedent itself. This article, then, is an attempt to bypass the overt instantiations of narrative within the law – those elements that have been most closely studied and yet aggressively contested at law – to see one of the most common elements of trial law in the adversarial system as its own archetypal form of legal-historical storytelling. My goal is to bring to the surface the latent narrativity of judicial rulings, to delineate their formal storytelling elements as endemic and fundamental to judicial opinions. In so doing, I hope to return to the question with which I started: Is narrative essential to the law? The answer, I contend, is yes, but perhaps only from a very specific vantage point and one, I suspect, the courts would be eager to deny.

II.  Historicizing Precedent: Judicial Emplotment and Legal Legitimacy Understanding judicial opinions as a kind of narrative requires us to historicize the conditions that have lent legitimacy to the law and such rulings. In short, we need to understand how precedent works – and how it has worked historically – to understand how its cognitive pull, its persuasive and seemingly logical structure, is enabled by a latent narrative act. As Tom Tyler famously observed, we don’t obey the law because we fear it; we obey the law because we believe it to be legitimate.15 That perception of legitimacy – a belief in legality, rule of law, and its institutions – extends all the way back to the early modern period. As J.A. Sharpe has ventured, “By the eighteenth century the law, it might be argued, had come to replace religion as the main ideological cement of society.”16 Part of that perceived legitimacy and authority is a product of the law’s own ability to create narratives – even plots – about its history and logic. As E.M. Forster put it, a plot places the events of a story into a causal relationship: the king died; the queen died out of grief.17 Plot, here, is the key word. As Hayden White has argued – a point I will return to in section III, below – historical narratives tend to be emplotted: “the way by which a sequence of events fashioned into a story is gradually revealed to be a story of a particular kind.”18 The Seventh Coalition doesn’t simply defeat the French at the Battle of Waterloo in 1815. Instead, for a certain kind of historian, the avenging Duke of Wellington, in a

15. Tom Tyler, Why People Obey the Law (Princeton, NJ: Princeton University Press, 2006). 16. J.A. Sharpe, Crime in Early Modern England, 1550–1750 (London: Longman, 1984), p. 145. 17. E.M. Forster, Aspects of the Novel (1927), Oliver Stallybrass (ed.) (London: Edward Arnold, 1974), p. 60. 18. Hayden White, Metafiction: The Historical Imagination in Nineteenth-Century Europe (Baltimore, MD: Johns Hopkins University Press, 1979), p. 7.

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grand transcontinental militaristic tragedy, brings down the hubristic Napoléon Bonaparte. In a similar manner, this is what the courts do when invoking precedent. They explain a set of events by placing them within a specific legal-narrative structure. In judicial opinions, much of this plotting – what I call judicial emplotment – happens around the establishment and invocation of precedent: we have these laws now, the courts reason, because we had them before. The invocation of precedent, while seemingly objective and logical, however, has also allowed sitting justices to instrumentalize case law by not only ignoring it on occasion, as I argue below, but also deploying it when most convenient. To some extent, the binding logic of precedent makes sense. As Chief Justice Lord Mansfield argued in 1779, “The great object in every branch of the law […] is certainty.”19 Between the mid-seventeenth century, when the Inns of Court’s educational system broke down, and the 1760s, when William Blackstone published his lectures on the common law, most attorneys and even judges, trained largely through self-directed reading and by listening in on cases, had to supplement thin (and sometimes misleading) surveys of the law or specialized treatises with manuscript notes.20 Blackstone’s Commentaries had the laudable virtue of putting so many discontinuous legal doctrines into some semblance of order. As one contemporary noted, case law was “confused and uncertain” before the Commentaries, with precedents “not only badly reported but contradictory.”21 Even still, as Blackstone himself admitted, the Commentaries weren’t so much a comprehensive account of the common law as it then stood as an introduction to the law student (or even lay reader) trying to find his footing in the garbled mess that was legal history.22 By adhering to precedents, the courts gave the common law a visible narrative coherence that it often lacked in its material transmission. Precedent allowed judges and lawyers to use the courts’ history, to instrumentalize case law – to put to work what Neil Duxbury has called the “usable past.”23 Blackstone felt modern laws were in part incomprehensible without recourse to earlier ones, arguing that “the reason of the one could never be clearly apprehended, without some acquaintance with the other.”24 By continually referring back to earlier cases, the courts were able recursively to justify their decisions, mitigating potential charges of capriciousness and irrationality. Rather than contesting the legitimacy of

19. Milles v. Fletcher (1779), 1 Doug. 231, 99 Eng. Rep. 151. 20. David Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar, 1680– 1730 (Oxford: Oxford University Press, 1990), chap. 5, esp. pp. 93–109. 21. Qtd. Ruth Paley, “After Somerset: Mansfield, Slavery and the Law in England, 1772–1830,” in Norma Landau (ed.), Law, Crime and English Society, 1660–1830 (Cambridge: Cambridge University Press, 2002), p. 168. 22. For Blackstone’s analysis of the common law structured by “underlying principles” and part of an “overall scheme” (p. 62), see Simon Stern, “Blackstone’s Criminal Law: Common-Law Harmonization and Legislative Reform,” in Markus D. Dubber (ed.), Foundational Texts in Modern Criminal Law (Oxford: Oxford University Press, 2014), pp. 61–78. 23. Neil Duxbury, The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008), pp. 1–30. 24. Blackstone, Commentaries on the Laws of England (1765–69) (4 vols.) (Chicago, IL: University of Chicago Press, 1979), III, p. 270.

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the law, case-law narrative as a kind of legal storytelling had the paradoxical effect – perhaps to modern ears, anyway – of legitimating the precedential logic of the judicial ruling itself. The rhetorical persuasiveness of such common law narratives is clearest in the courts’ anxiety about the transmission of case law. Precedential logic, the chain of cases settling a legal issue and consequently shaping the rulings of later and lower courts, occasionally broke down. This was especially true in the early modern period, before stare decisis – conceptually known from the late seventeenth century, but not “an absolute fetter on the courts,” as John Baker has put it – became an inviolable judicial philosophy in the latter part of the nineteenth century.25 Between the twelfth and seventeenth centuries, judges instead adopted a “canonist” approach to case law: that is, judicial decisions “could be used to illustrate legal principles, but were not themselves an authoritative source of law.”26 Collecting cases and opinions allowed one to see the law in action, as a rough guide, but as judge after judge nervously asserted, “judges did not make law. Their opinions were not sources of law, but simply evidence as to what the law was commonly held to be. Nor were they exclusive evidence.”27 As the English jurist Henry de Bracton announced in the thirteenth century, “one must judge not by examples but by reasons” (non exemplis sed rationibus adjudicandum est).28 Earlier rulings, instead, were provisional. As Michael Lobban writes, precedents were not absolute, nor did they create precise rules. Rather, they acted as a source of legal analogy. […] There could be no monolithic rules, derived either from legislation or from precedent, to cover all cases: rather, there were only guidelines for future determination. […] Every case was in effect a new deliberation of circumstances, to be guided but not bound by past analogies.29

As a result, rulings seemingly contrary to reason could be set aside as inconvenient or disanalogous, even if that required some fancy rhetorical footwork. As Jim Evans has observed, by the late eighteenth century jurists were still propagating the fiction that the common law was nothing more than the “original common custom of the realm.” Accordingly, he writes, “when a later decision refused to follow a previous decision it merely purported to declare the original custom more accurately.”30 Somehow, the logic went, a supposedly relevant earlier ruling on closer inspection might prove disanalogous 25. John Baker, Introduction to English Legal History (4th edn) (Oxford: Oxford University Press, 2007), p. 199. For the emergence of the concept, see Hanslap v. Cater (1673), 1 Vent. 243. 26. Harold J. Berman and Charles J. Reid, Jr., “The Transformation of English Legal Science: From Hale to Blackstone,” Emory Law Journal 45(2) (Spring 1996), 445. 27. Baker, English Legal History, p. 198. 28. Bracton, On the Laws and Customs of England, Samuel E. Thorne (ed. and trans.) (Cambridge, MA: Harvard University Press, 1968). 29. Michael Lobban, The Common Law and English Jurisprudence (Oxford: Oxford University Press, 1991), pp. 83, 87. 30. Jim Evans, “Change in the Doctrine of Precedent during the Nineteenth Century,” in Laurence Goldstein (ed.), Precedent in Law (Oxford: Oxford University Press, 1987), p. 36.

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and thus erroneous. Further, as Blackstone argued, a judge’s opinion on a case and the law itself were not one and the same thing. Thus a ruling “contrary to reason” could also be ignored, for such a sentence was not “bad law” but “not law” at all.31 Lord Mansfield agreed. Case law served “to fix Principles,” but “precedent, though it be Evidence of law, is not Law itself, much less the whole of the Law.”32 Custom likewise dictated in some instances that a precedent be disregarded. In addition, something along the line of expert jurors – non-legal actors who understood the ins and outs of the issues at hand thanks to years of firsthand experience – were not only welcome but also actively sought. Lord Mansfield, for instance, often encouraged the impanelling of “merchant jurors” to handle cases turning on a specialized understanding of commerce, and it was not unusual for impanelled jurors who lived in the neighborhood of the incident or had firsthand knowledge of it to serve simultaneously as witnesses.33 Not that this did not sometimes lead to legal comedy in the hurly-burly courts of the period. As Henry Fielding, by then a magistrate for Middlesex, perhaps apocryphally reported in the Covent-Garden Journal, a judge called upon “a boozing Cobler” to settle a seemingly insoluble case, in which the unattended ass of a “Rag-Man” had drank a “Basin of Julep” belonging to an apothecary. The cobbler begins his interrogation: “Did the Ass drink the Julep in one Draught?” Yes. “Did the Ass sit down?” No. “Why then […] I can decide this Affair immediately,” the cobbler declares. “It is a Custom among [drunkards], that any Man may drink once standing for Nothing; therefore you, Rag-Man, go about your Business.” The apothecary, predictably enraged, curses the cobbler – who promptly fines him for the oath.34 No strict and fully binding system of precedents could exist before procedures for reliable law reporting emerged in the early nineteenth century.35 Late medieval and early modern legal records, as those who have had the distinct displeasure of working with them know, were at best shoddily kept. As Chief Justice Sir John Holt complained at the beginning of the eighteenth century, the “scrambling reports” from which judges and barristers worked “will make us appear to posterity for a parcel of blockheads.”36 Half a century later, the situation was little better. As one critic noted, “the materials of the law have long been suffered to lie [… in a] rude and indigested state.”37 For good reason,

31. Blackstone, Commentaries, I, pp. 69–71. For more, see David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), pp. 122–43. 32. Jones v. Randall (1774), Lofft 385, Cowper 39. 33. James Oldham, English Common Law in the Age of Mansfield (Chapel Hill, NC: University of North Carolina Press, 2004), pp. 20–24. 34. Fielding, no. 10 (February 1, 1752), The Covent-Garden Journal and A Plan of the Universal Register-Office, Bertrand A. Goldgar (ed.) (Middleton, CT: Wesleyan University Press, 1988), pp. 464–5. 35. J.P. Dawson, The Oracles of the Law (Ann Arbor, MI: University of Michigan Press, 1968), p. 78. 36. Sloater v. May (1704), 2 Raym. 1071–2. 37. Review of Blackstone’s Discourse on the Study of the Law, in The Monthly Review 19 (November 1758).

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then, figures like Lord Kames felt the holes in the law could be filled logically. As Andreas Rahmatian has observed, Kames rejected the “rote learning of statutes and cases and their mechanical application,” preferring instead “a [jurisprudential] craft […] rooted more in reason than in authority.”38 For all the rose-tinted positivism of Kames’s arguments, many both then and today have been skeptical of precedent’s uses. Thomas Hobbes, for instance, argued that the use of precedent, to some extent, indicates one’s failure to exercise reason when determining the right course of action. As he put it, in some instances, “men’s judgments have been perverted by trusting precedents.”39 Haphazard trial reporting remained the bane of judicial life. Onlookers were simply baffled, with the ever-improving Jeremy Bentham – a man who couldn’t play a game of badminton without stopping to design a better shuttlecock, as Leigh Hunt quipped – advocating in the 1770s for an authoritative system of record keeping.40 What needs to be kept in mind, above all, is that when the courts invoke precedent, they are always telling a story about the common law with the explicit objective that past decisions bind us to and perhaps even justify present evaluations. For legal scholars, however, it is perhaps unsurprising how often the courts plotted the common law based on a fiction. Sloppy recordkeeping was certainly part of the problem. But sitting justices continued to instrumentalize case law in a second way: not only ignoring it when it was illogical, muddled or predictably forgotten, but also deploying it, even if muddled, illogical or not wholly applicable, when convenient. As Gulliver pungently remarks to his Houyhnhnm master, “It is a Maxim among these Lawyers, that whatever hath been done before, may legally be done again: And therefore they take special Care to record all the Decisions formerly made against common Justice and the general Reason of Mankind. These, under the Name of Precedents, they produce as Authorities to justify the most iniquitous Opinions; and the Judges never fail of directing accordingly.”41 Take, for instance, the law of seditious libel, a seventeenth-century offshoot of the law of the libel of magistrates, a subcategory of written defamation, and an early remedy to protect officials from manuscript defamation.42 The offense was in effect concocted by the Attorney General, Sir Edward Coke, in the early seventeenth century, just a few months before he was elevated to Chief Justice of the Common Pleas. Coke argued that public libels should be punished more severely than private libels because they directly

38. Andreas Rahmatian, Introduction to Henry, Lord Kames, His Principles of Equity (Clark, NJ: Lawbook Exchange, 2011), p. 59. 39. Hobbes, Leviathan, Edwin Curley (ed.) (Cambridge: Hackett, 1994), pt. II, chap. 26, sect. 24, p. 182. 40. Lobban, The Common Law and English Jurisprudence, p. 122; Ross Harrison, Introduction to Jeremy Bentham, A Fragment on Government, J.H. Burns and H.L.A. Hart (eds) (Cambridge: Cambridge University Press, 1988), p. xvii. 41. Jonathan Swift, Gulliver’s Travels, David Womersley (ed.) (Cambridge: Cambridge University Press, 2012), part IV, chap. 5. 42. Case de Libellis Famosis, 5 Coke 125 (1605), 77 Eng. Rep. 250. For the standard overview of the law of seditious libel, see Philip Hamburger, “The Development of the Law of Seditious Libel and the Control of the Press,” Stanford Law Review 37(3) (February 1985), 661–765, esp. 691.

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affected the state. A libel “against a magistrate or public person,” he claimed, is “a greater offence; for it concerns not only the breach of the peace, but also the scandal of Government; for what greater scandal of Government can there be than to have corrupt or wicked magistrates.”43 In Coke’s view, the libel of magistrates looked a lot like regular libel: the work had to be published (and this simply meant a third party was given intentional access) and its truth was immaterial. Moreover, only individuals, not institutions, like the House of Commons, could be defamed.44 Coke’s historical account of the law of seditious libel – that is, the very narrative foundations of the crime itself – was, however, severely flawed.45 In 1606, when asked for the case-law roots of the crime, Coke simply skirted the question, claiming it could be found at common law (it couldn’t). More than two decades later, Coke finally uncovered two fourteenth-century cases, he argued, that established seditious libel’s common law ancestry.46 But these, too, were red herrings. Neither was a case for libel.47 The law of seditious libel, despite Coke’s claims and the judges who later cited him, had no common law foundation. Decades later, Chief Justice Holt repeated the story; as did Lord Mansfield, in the latter part of the eighteenth century, who thought Holt had done his homework.48 In the end, whether the legal narrative told by the courts could be found at common law hardly mattered. The result was a set of pernicious legal doctrines for persecuting the press based on a series of cases that manifestly failed to support the ostensible precedents that undergirded the law. What should be clear here, above all, is that the judicial opinion is constituted and supported by both logic and narrative. Narrative is essential to the law, then, though in an epistemologically convoluted way. Because the common law finds so much of its perceived legitimacy in its own precedents, the narrativization of the common law is a kind of histoire: neither totally history nor story, but a confabulation of the two. Without its own narrative system of both history recording and storytelling, the perceived legitimacy of the common law would be lost. A certain naïve reverence for history, even a belief in our own access to it, undergirds any appeal to the common law’s premodern history. This, in effect, is the most Humean quality of the law itself: the fiction of the common law’s coherence, like all fictions of continuity, is predicated on the smoothing out of omissions. We make sense of randomness by creating narratives. At the beginning of the eighteenth century, that narrative coherence was often missing. As one critic complained in 1720, the laws are “heap’d up together without 43. Case de Libellis Famosis, 5 Coke 125 (1605), 77 Eng. Rep. 250. This logic was later echoed by Holt in R. v. Tutchin (1704), Holt 424 (Q.B.), 90 Eng. Rep. 1133. 44. Holt later ruled that institutions, too, could be libelled. See R. v. Tutchin (1704), Holt 424 (Q.B.), 90 Eng. Rep. 1133. 45. On Coke’s use of case law, see Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, CA: Stanford University Press, 2003). 46. Institutes of the Laws of England (4 vols.) (London, 1628–44), III, p. 174. 47. Irving Brant, “Seditious Libel: Myth and Reality,” New York University Law Review 39(1) (January 1964), 8–11. 48. James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (2 vols.) (Chapel Hill, NC: University of North Carolina Press, 1992), II, pp. 778–82.

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beginning or end.”49 In the nineteenth century, stare decisis did the important cultural work of creating for the law the illusion of logical uniformity – what Ayelet BenYishai has called “precedential reasoning,” which “enables the recognition of the new and its assimilation as part of a continuous past.”50 Narrative served and continues to serve, despite its supposed repression, a fundamental role in the construction of the law’s legitimacy. As case law has grown, and as the doctrine of stare decisis has displaced the selectivity that typified judicial opinions all the way up through the eighteenth century, precedent as an act of storytelling has assumed a greater value and a larger role in the legitimation of judicial opinions. For all of the courts’ emphasis on the logical foundations of judicial reasoning, at the heart of every ruling is a dependence on narrative for the legal-historical basis of the ruling itself.

III.  Judicial Emplotment: Form and Structure of a Narrative Type What kind of act of storytelling, then, is a judicial opinion? One might presume judicial opinions cluster around the anti-storytelling end of the reason-contra-narrative spectrum of legal discourse, exhibiting “the law’s general assumption that it solves cases with legal tools of reason and analysis that have no need for a narrative analysis.”51 Yet at the heart of the modern judicial opinion is this cross-contamination of story and reason. This supposed tension between and yet simultaneous presence of logic and narrative in a ruling gives the lie to the implicit proposition that the two can be safely parsed. Despite protests to the contrary, story and reason interpenetrate at every level, such that the fuzzily plotted logic of narrative always infects the syllogistic story of precedent. As Amsterdam and Bruner have observed (with reference to Ronald Dworkin), “a line of precedent is like a continuing story, with the links between its continuing episodes forged as much by metaphor and analogy as by any strictly logical derivation from first principles.”52 This tension between narrative and logic lies between the so-called “facts of the case” – the bench’s almost omniscient-style narration of the events that led to the trial – and the “law of the case”: the general legal principles relevant to the case and the application of those principles to the facts at hand. That the nominal “facts of the case” is an act of selective and interpretive narration should be clear enough – the judge tells a story, no matter how shabbily or cursorily, which in its telling requires him or her to make the kinds of selections and omissions that define the act of narration. Judicial opinions thus simultaneously repress and control narrative, insofar as a judge’s retelling becomes the final recounting, settling the facts of the case. And yet “Narratives do not simply recount happenings,” as Brooks reminds us, but “give them shape, give them a point, argue their import, proclaim their results.”53

49. Institute of the Laws (1720) (5th edn) (London, 1734), I, p. ii. 50. Ayelet Ben-Yishai, Common Precedents: The Presentness of the Past in Victorian Law and Fiction (Oxford: Oxford University Press, 2013), p. 3. 51. Brooks, “Narrative in and of the Law,” p. 424. 52. Amsterdam and Bruner, Minding the Law, p. 141, citing Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap, 1986). 53. Brooks, “Narrative in and of the Law,” p. 419.

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The recitation of the facts of the case is a necessary though insufficient step in issuing a judicial opinion, and yet the most important part is perhaps the case law itself. The application of case law requires on its surface nothing more than straightforward analytic reason and yet it is also, as I argued above, a narrative apparatus that lends legitimacy and authority to the law by invoking the patina of history as a binding force. The application of case law thus might itself be construed as its own act of judicial storytelling. Understanding the invocation and analogization of case law as a narrative act requires us to make sense of the form and structure of the judicial opinion as an act of emplotment, to borrow a term from Hayden White. In his seminal Metahistory (1973), White offers a “theory of the historical work’’: that is, how historians take the “unprocessed historical record” and make it “more comprehensible to an audience of a particular kind.”54 As part of making that story comprehensible, the historian provides “the ‘meaning’ of the story by identifying the kind of story that has been told,” which he calls “explanation by emplotment.” Emplotment for White involves the recasting of the historical record into an identifiable explanatory narrative structure. “Emplotment is the way by which a sequence of events fashioned into a story is gradually revealed to be a story of a particular kind,” he writes, and proposes, after Northrop Frye, at least four “modes of emplotment”: romance, tragedy, comedy and satire. Historians, in effect, actively shape the unprocessed historical record into a preexisting or seemingly archetypal model.55 Following White, we might discuss judicial rulings as their own type of emplotment. Insofar as the invocation of precedent is a kind of historicist act, combining historical reconstruction (not only the facts of the case but also the preceding case law) and analogy (how those facts and case law graft onto one another), we might think of the judicial opinion as a kind of historical narrative: the invocation of precedent proposes a kind of legal plot – what I call here judicial emplotment. Like White’s conception of the “mechanist” model of history – the way the historian “studies history in order to divine the laws that actually govern its operations and writes history in order to display in a narrative form the effects of those laws” – judges study case law to understand how earlier rulings should shape later judicial opinions.56 In what we might call the juridico-mechanist model, all history is used instrumentally and functionally. Precedent is only useful insofar as it can be instrumentalized to shape and legitimate later legal outcomes. And their finality, barring appeal, means that judicial opinions are the culminating legal and narrative event, the terminus post quem of a trial. However, despite judicial emplotment being the archetypal narrative form of a ruling, it is also one way the law attempts to naturalize – perhaps even obscure – its narrative functions into forms of disinterested reason. Just as narrative provides certainty, so too does the application of precedent.57 “The hallmark of narrative is assurance,” Gerald Prince has argued. “It lives in certainty: this happened then that; this happened because

54. Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Baltimore, MD: Johns Hopkins University Press, 1973), p. 5. 55. White, Metahistory, pp. 5–11. 56. White, Metahistory, p. 17. 57. See Lobban, The Common Law and English Jurisprudence, pp. 82–5.

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of that.”58 Creating that narrative coherence out of the story – the raw succession of events before those events have been put into a causative narrative framework – is often called “normalization” or “naturalization” by narratologists. On the special cognitive pull of narrative, White has observed, “The very distinction between real and imaginary events that is basic to modern discussions of both history and fiction presupposes a notion of reality in which ‘the true’ is identified with ‘the real’ only insofar as it can be shown to possess the character of narrativity.”59 We might then think of judicial emplotment as a form of latent narrativity. That is, the causal logic of precedent simultaneously employs the building blocks of plot and narrative while repressing the narratorial basis of the precedent itself. In this manner, judicial emplotment retains an air of narrativity, giving the precedential ruling itself the luster of plausibility while also occluding its basis in storytelling. As a result, the precedential ruling possesses an air of Colbertian “truthiness”: vaguely logical, yet framed by a kind of judicial storytelling.60 The difference between the kinds of plots that appear in stories and judicial emplotment is also the source of the latter’s perceived legitimacy as disinterested logical reasoning. For a story only intimates the causal logic between the events it depicts – we, as readers, project causation onto seemingly related yet merely successive events. “The mainspring of narrative,” as Barthes put it, is “the confusion of consecution and consequence, what comes after in narrative as what is caused by”61 – whereas precedential reasons insists openly on the deeply logical structure of the ruling itself. All of this is to suggest that, at the heart of the judicial ruling, there 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 repressed – they only gain their force, the law claims, through reason. I have focused so doggedly on the use of precedent in this article to suggest the ways in which judicial rulings are a kind of legal storytelling, but, more importantly, a kind of

58. Gerald Prince, Narratology: The Form and Function of Narrative (Berlin: Mouton, 1982), p. 149. 59. Hayden White, The Content of the Form: Narrative Discourse and Historical Representation (Baltimore, MD: Johns Hopkins University Press, 1987), p. 6. For a critique of the implied indistinguishability of historical and fictional narratives as “verbal artifacts” (Hayden White, Tropics of Discourse: Essays in Cultural Criticism (Baltimore, MD: Johns Hopkins University Press, 1978), p. 122), see Dorrit Cohn, “Signposts of Fictionality: A Narratological Perspective,” in The Distinction of Fiction (Baltimore, MD: Johns Hopkins University Press, 1999), pp. 109–31, esp. pp. 112–17; and Peter Lamarque and Stein Haugom Olsen, Truth, Fiction and Literature: A Philosophical Perspective (Oxford: Oxford University Press, 1994), pp. 224, 308–10. 60. Stephen Colbert, “The Word – Truthiness,” The Colbert Report. Comedy Central (October 17, 2005) (Online: http://www.cc.com/video-clips/63ite2/the-colbert-report-theword—truthiness). 61. Roland Barthes, “Introduction to the Structural Analysis of Narratives,” in Susan Sontag (ed.), A Barthes Reader (New York: Hill and Wang, 1982), p. 266.

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emplotment, because the judicial opinion is such an archetypal element of courtroom procedure itself. Other scholars studying the function of narrative at law have rightfully pointed to storytelling’s most overt instantiations. The law, undeniably, is steeped in such narrative acts. But when approached historically, so many of those narrative elements have proven transitory or severely delimited – perhaps even repressed – by the law itself. The inescapability of the judicial ruling, however, as a double narrative act that finalizes the outcome of a trial, is tantalizingly close to the most fundamental moment of legal storytelling. Moreover, that act of storytelling is so formalized, so consistent, both as a feature of the law and also internally as a narrative type that conforms to a set of narrative procedures, that I have pushed the idea that we can think of the judicial ruling not only as a fundamental act of legal storytelling but also as an archetypal form. From this vantage point – to return to the question I started this article with – narrative is essential to the law. But the very ungovernability of narrative is clearly evinced in the invocation of precedent, despite its claims to reason and logic: the accidents of history, the selectivity and omissions that characterize all narrative acts, the dubious causal logic between the succession of mere events. Judicial opinions are complicated acts of storytelling – but it is only through the hazy interpenetration of reason and narrative that we see the latent and essential narrativity of the law itself. Acknowledgements I would like to thank Simon Stern for his detailed feedback on this article, and my reader at Law, Culture and the Humanities.

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