Legal Narrative and Legal Disagreement

Vt. L. Rev., 1993

("[lt seems to me that properly directed and purged of obvious abuses, the juxtaposition of two contrary perspectives, the impact of challenge and counter-proof, often discloses to a neutral intelligence the most likely structure of Truth."); ALEXANDER WELSH, STRONG REPRESENTATIONS: NARRATIVE AND CIRCUMSTANTIAL EVIDENCE IN ENGLAND (1992). For the past two hundred years, irrespective of their differences, Anglo-American and Continental courts of law have put primary emphasis on true representations of the facts.

2024

Most legal systems recognize authoritative legal rules based both on (some version of) reason and (some version of) choice. Reason is legal reasoning, doctrinal reasoning; “will” or “fiat” are the choices made by lawmakers among available options, including choices made by judicial lawmakers. Because law is the product of both reason and will, there will always be the potential – greater in some legal systems than others – that the two criteria will conflict, leading to uncertainty in what the legal truth on some matter lies, including the possibility that two contradictory propositions about the law will have equally (or at least comparably) strong claims to be correct. The purpose of the present work is not to offer any general claims – and certainly no revolutionary claims – about the nature of truth. “Truth” in law is particular; it is woven into the practice of law, and it is that practice which grounds the somewhat paradoxical claims here discussed. And I would not call those claims “unconventional.” as it is only articulating something that experienced practitioners already know at some level, even if they are not always conscious of it. The ultimate point is that, because of the conflicting sources of authority, truth in law is, in small ways – on the margins or in the background – unstable and unsettled, or at least subject to being unsettled.

International Journal of Legal Discourse, 2016

This article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of ‘becoming’ rather than a discourse that revolves around the ‘existence’ of law. The advantage of such a reconstruction is that the focus on the process of ‘becoming’ provides answers to ‘how-questions’ rather than ‘what-questions’. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper ...

Abstract In this paper, we continue our research on a hybrid narrative-argumentative approach to evidential reasoning in the law by showing the interaction between factual reasoning (providing a proof for 'what happened'in a case) and legal reasoning (making a decision based on the proof). First we extend the hybrid theory by making the connection with reasoning towards legal consequences. We then emphasise the role of legal stories (as opposed to the factual stories of the hybrid theory).

Disagreement is a pervasive feature of human discourse and a crucial force in shaping our social reality. From mundane squabbles about matters of taste to high-stakes disputes about law and public policy, the way we express and navigate disagreement plays a central role in both our personal and political lives. Legal discourse, in particular, is rife with disagreement - it is the very bread and butter of courtroom argument and legal scholarship alike. Consider a debate between two legal philosophers, Ronald and Herbert, about the Eighth Amendment of the U.S. Constitution, which prohibits ‘cruel and unusual punishment’. Ronald asserts: ‘It is the law that capital punishment is prohibited’. In response, Herbert states: ‘It is not the law that capital punishment is prohibited’. We intuitively think Ronald and Herbert are disagreeing, which reveals in the fact that they are licensed to use ex¬pressions like no (it isn’t) and nuh-uh when responding to their opponent’s claim. But despite the ubiquity and significance of legal disagreement, its precise nature remains elusive. This chapter discusses what exactly is going on when two people disagree about what the law requires, and how can hybrid theory may answer this question.

2010

It has already been some time now since the theory and method of Law and Literature first developed the narrative model for analyzing legal and literary sources.This model, founded on a view of man as homo narrans, describes a tendency to observe the law as narrative, applying this idea equally to law and to any other product of culture. Thus literary narrations (as well as ones from the nonliterary arts) have been considered not only as a mirror in which law is critically reflected, but as tools useful in bringing to us what may be described as “law’s unheard voices.” It is mainly along this line investigation that the narrative approach has developed in the United States, as a technique by which to construct alternative stories - based on personal experiences, whether real or fictional—to be brought into comparison with law’s “official” narratives. Looking at these “alternative” and “official” texts in comparison has made it possible to show that the law is itself narrative, such that law has no claim to objectivity and cannot invoke a single, universalizing discourse; but even more so, we have learned from this comparative study that the narrative which law consists of has shut out the perspective of minority groups. It is these concerns that form the backdrop against which the storytelling movement has sprung up, and its aim remains that of putting the narratives and claims of the weak on an equal footing with the law’s narrative of the strong, in such a way as to encourage between them a dialogue and an exchange. We have seen in this sense numerous “legal” narratives put together by women and blacks, and generally by those belonging to groups having little protection: these stories draw on the theory of narrative to ground and develop a rights movement proper.Of course, the law which Law as Narrative looks at is the positive law, and the approach is thus concerned with formalized law (the law set down in the law books), or with the law in the process of being formalized through the court’s activity, or with the unformalized law urged by those claiming rights and a corresponding status that they feel they are legitimately entitled to.But Law as Narrative has some further potential still waiting to be developed. I thus propose here to develop the idea of law as narrative working from a conception of law that takes into account not only positivized law but also the law permeating the fabric of social relations. And so we have to do here with law such as it manifests itself in culture understood in an anthropological and sociological sense.The discussion will revolve around rights and rules, and not just law; and it will also take into account such rules as can exist and can be pronounced only as possible, which is what Carbonnier meant by nonlaw: together with law, nonlaw forms part of that broader legal realm inclusive of social life which Carbonnier refers to as juridicite.Culture is understood as a symbolic universe that provides the meanings necessary for mediation, but it is also the space where the function is carried out (among others) of bringing order to social relations, and this function reveals itself in the process whereby we create and affirm (as well as reaffirm and recognize) rules of behaviour that stabilize mutual expectations in such a way as to enable coexistence when the social order weakens. In this broader sense, then, any narration that has a role in helping to establish an order in the realm of the symbolic can be considered a legal narration.I thus propose here to do two things, in short: (1) to work out and defend a theory of legal narration; and (2) to offer a model for analyzing narrations, making it possible to fruitfully understand the modalities and contents of the social function served by such legal narrations as are found not only in the “official” texts of positive law but also in the “texts” produced by the other arts.

Studies on Argumentation and legal philosophy. Further Steps Towards a Pluralistic Approach, 2015

A fair number of relevant argumentative issues are discussed in this volume in the light of different perspectives of current legal philos-ophy: from a more “continental” approach to a clearly analytic one. The authors provide many insights, which are in part overlapping and in part not. A situation, which is typical in scientific literature and which must be regarded not as a limit, but as an opportunity.

Global law finds itself increasingly confronted with situations of overlap between normative orders. Overlaps may occur as a result of conflict between different territorially-anchored legal orders as well as between functionally-differentiated regimes. The theoretical challenge appears as a positivist concept of law with its traditional resort to conflict rules has a very limited capacity to deal with constellations of legal overlap when conflict rules themselves are contested. While some have argued that in this case the relations between different legal systems become merely political in character, the argument of this article is that there do exist legal relations governing these conflicts in between different legal orders. These legal relations are reflected in particular procedural requirements of legal argumentation. The article suggests procedural rules based on the requirements of discourse ethics that are necessarily to be followed if a legal order wants to satisfy its inherent commitment to reflexivity and tolerance. The article thus aims to show that even in the absence of clear conflict rules the inherent rationality of a legal system creates procedural legal obligations between both systems.

There are two competing views on what makes propositions of law true. The one, legal realism, takes it that propositions of law are true because they reflect an independently existing reality of legal facts. These facts would be generated by legal rules which would operate autonomously, without need for human intervention. The institutional theory of law illustrates this view. On this view it is the function of legal arguments to reconstruct the results of the autonomous rule application. The other view is legal constructivism, according to which propositions of law are true because they are the conclusion of the best (possible) legal argument. On this view the function of legal argumentation is constitutive: argumentation determines the contents of the law. This paper argues that legal realism is not very plausible because it is based on metaphysical assumptions which cannot be verified or falsified. Legal constructivism would be more plausible, in particular in the variant where the law is determined by the best actual legal argument. This position is defended by means of a brief exposition of the so-called ‘Erlanger-approach’ to legal justification.