The laws of fiction

This short essay considers the different ways in which law professors and English professors teach courses in Law and Literature -- particularly the differences in the course materials and the analytic approaches used in understanding those materials. Courses taught on law faculties generally include fewer readings drawn from case law and legal theory. On the other hand, courses taught in English departments are more likely to emphasize similarities between the legal readings and works of fiction or drama. I discuss some of the disciplinary habits that make it difficult for faculty members in each area to come to terms with materials taken from another discipline, but I end by arguing that these barriers are not insurmountable and can even be addressed, to some extent, by focusing on analytical habits already available in the home discipline.

Archives for Philosophy of Law and Social Philosophy, 2020

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis.

Journal of Law and Society

Michigan Law Review, 1988

This paper treats the question of knowledge of fact in the legal context, especially in the paradigmatic context of a trial. Moving through the analysis of its fundamental dialogical structure, and lingering on the transcendental value of dialogue, attention is given to the activity of the parties involved in a trial (namely lawyers and prosecutors), with the aim of understanding how they come to acknowledge and represent fact. The idea is to avoid the extremes of both dogmatic and sceptical stances with regard to the existence of fact, stating that both facts and interpretation exist, in the sense that it is impossible to acknowledge facts without interpretation. The final aim is to show the peculiar role that vagueness of language plays in a trial so as to outline a “classical” model of legal logic.

Law, like fiction, is one of those domains in which the saying so makes it so. The main purpose of this essay is to show how various aspects of law and fiction are closely related, and how they exhibit features that are generally shared by expressive artifacts. Both law and fiction belong to a type of intangible artifacts, created by communicative means, giving rise to closed prefixed contexts in which truths in that context are constituted by performative speech acts. The law, however, is very much unlike fiction in that it is essentially authoritative. I conclude by showing how law’s spacio-temporal aspect, which it does not share with most other expressive artifacts, derives from its authoritative nature.

2002

Narrative and Metaphor in the Law

Please refer to the published version to quote or cite: https://books.google.ca/books?id=NP5DDwAAQBAJ&pg=PA121&dq=%22Judicial+Opinions+and+The ir+Narratives%22&hl=en&sa=X&ved=0ahUKEwiI1piyuqjYAhUI0YMKHf2kA4QQ6AEIKTAA#v=one page&q=%22Judicial%20Opinions%20and%20Their%20Narratives%22&f=false Abstract: the law's most familiar and characteristic mode of written expression, the judgment, lacks two of the key ingredients that contribute to the lure of literary narrativenamely, the drive, fueled by uncertainty and anticipation, that propels readers on towards the conclusion, and the pleasure of observing and reflecting on others' mental states, which accounts for a considerable part of fiction's cognitive appeal. The absence of these features should alert us to the questionable premises underlying any treatment of the judgment as simply one more form of narrative, whose fundamental similarity to novels and films can be taken for granted. Using a few fundamental concepts in the study of narrative, involving the definition of plot and the power of the "reality effect" (whose analogue, I propose, is the "legality effect"), this chapter asks what we can learn about legal decisions by considering them as a distinctive kind of narrative, rather than summarily lumping them together with literary narratives. Narrative is essential to numerous aspects of legal practice and writing, from pleading and negotiation to the interpretation of evidence and conflict resolution. Indeed, one of the earliest senses of narrator in English, dating from the thirteenth century, refers to a pleader or serjeant-at-law tasked with reciting a party's statement. 1 Yet the law's most familiar and characteristic mode of written expression, the judgment, lacks two of the key ingredients that contribute to the lure of literary narrative-namely, the drive, fueled by uncertainty and anticipation, that propels readers on towards the conclusion, and the pleasure of observing and 1

10th International Society for the Study of Argumentation Conference, 2023

Legal fiction" is a technical tool enabling the law to create assumptions or treat situations as if they were true although they may not correspond to empirical reality. Focusing on "legal person," a typical legal fiction treating a non-natural person entity as a person in the law, the paper discusses the rhetoricalargumentative functions it performs in legal discourse.