Closing the Gap: Narrative and the law

Chapter 12

Closing the Gap

Narrative and the law

How can we uncover the assumptions and presuppositions of ‘institutional’ law so as to understand better its underlying reality? This question addresses and forces us to acknowledge something that is easily and often forgotten when we start to think about and analyse law and legal reasoning; namely, that there is a difference between thinking of law as a structured institution and our thinking about thinking of law as a structured institution. So it may well be that although the propositional form of statements is characteristic of our thinking about law as a structured institution, precisely as MacCormick suggests, a narrative form might still be the more appropriate way to consider law in relation to practices. Indeed, if this is the case, then it may well be that the logic of the Institutional Theory of Law (ITL) is not incompatible with a narrative methodology. This chapter aims to explore these possibilities and to examine the usefulness of narrative as a means for understanding law.

Similarities between legal reasoning and literary studies are frequently noted by legal scholars. However, just as interesting as the question of the similarities between the two is the extent to which narrative theory may actually be applied to the study of law and legal reasoning. In this respect, what is being suggested is an extension of the argument presented above; that is, that the significant features with which we are concerned are not those which we entertain on account of their propensity to predict a certain future but which will act as signposts, pointing out a way forward by disclosing hitherto hidden associations and suggesting novel relations and connections. Rather than understanding the structural functioning of law as something which aims at a reduction of complexity by means of an underlying system of unifying doctrines and complementary principles, we are more concerned to look for ways of pushing at law’s boundaries, expanding its horizons of possible thought and action and generating new insights through the operation of a narrative view-point and a metaphorical use of the idea of complexity.

According to MacCormick:

It is of course the snake bite, not the theory that snake bites can be fatal because of the property of snake venom, that causes Cleopatra’s death. But what enables us so to conceptualize the death of Cleopatra is that the particular fact of the biting snake belongs as minor premise in an argument of which the major premise is a hypothesis culled from the snake-venom theory and the conclusion is the death.

(MacCormick 2005: 97)

But does this explanation really capture the essential difference between the two modes of thought operating here? In the logical proposition, ‘If X, then Y’, the word ‘then’ operates differently than it would in, for example, ‘the snake bit, and then the queen died’. While the first precipitates a search for universal truth conditions, the second looks for probable connections between the two. In the first there is an assumption of conjoinment; in the second, connection; that is, the first emphasises separation while the second emphasises continuity. How can we understand these two modes of thinking and how are they related?

A senior army officer was sometimes heard to say to his junior officers when asked for their assessment of a situation and possible courses of action: ‘Great idea, bad plan!’ In other words, there is a difference between saying that something sounds good and that it argues well. Good stories do not always make sound arguments (but, arguably, sound arguments are always good examples of a particular kind of story)! Murray Gell-Mann defines complexity as ‘the length of the shortest message that will describe a system, at a given level of coarse graining, to someone at a distance, employing language, knowledge and understanding that both parties share (and know they share) beforehand’ (Gell-Mann 1994: 34). Thus, in the first place, complexity relates to the ease or difficulty with which information that conveys a sufficient and correct account of an experience of some phenomenon can be transmitted; it is linked directly to the subject experiencing the phenomenon, dependent on their ability to represent it. In this sense, complexity is ‘necessarily context dependent, even subjective … In actuality, then, we are discussing one or more definitions of complexity that depend on a description of one system by another, presumably a complex adaptive system, which could be a human observer’ (Gell-Mann 1994: 33). In the second place, complexity relates to the compressibility of information, so that information that can be condensed into short, sharp phrases will be less complex. Complexity, on this account at least, has more to do with the experiencing of complex phenomena and the amount of work involved in communicating this experience than with independent and objective complex states of affairs. It has to do with the compression and transformation, the reduction for simplification of complex sense experience into commonly recognised and accepted forms of speech.

Tsoukas (1998a) calls this ‘algorithmic compressibility’, and uses this to help convey the basic difference between ‘propositional knowledge’ and ‘narrative knowledge’ as that between conditional ‘If, then’ statements derived from empirical observation and knowledge expressed through stories, anecdotes and examples. He argues that while the former can be represented via an abbreviated formula the latter cannot, since no abbreviated formula exists by which it may be properly represented. In this way, what we experience may be considered simple or complex depending on how readily our experiences submit themselves to ‘algorithmic compressibility’; that is, how easily they can be described and analysed. Notice then, that propositional knowledge, which is algorithmically compressible, is inherently reductionistic and therefore ill-suited to accommodating non-propositional forms of understanding, or complex experiences, at their own level of communication and how this then results in a deficiency, or deficit, that propositional knowledge cannot overcome.

Much of the recent trend in legal theory towards emphasising reflexivity, paradox, ambiguity and contradiction may, in this way, be seen as an attempt to overcome this difficulty by further complicating the language of law, as an attempt to render it more complex. But, against this, consider for example, Christoudolidis’ objection to MacCormick’s updating of the Solomonic tale with a number of contemporary maternity disputes. How, he asks, would a judge in this situation ‘know’ that she was faced with a new problem? ‘How, given universalizability, would she know that “she has two choices?”’ Christodoulidis explains:

This is an argument directed at the potential of surprise and at how law might harbour this potential … On the one hand … every case is unique in its particularity … On the other hand … the recognition of a maternity dispute … already occurs in terms of classifications available in the law, so that any ‘first impression’ is over-determined by classifications … already in place.

(Christodoulidis 2006: 106)

In other words, how can the complexity deficit resulting from law’s inherent tendency to reduce complexity ever be overcome? By resort to what vocabulary could any legal practitioner even begin to make sense of it? What mode of thought could she utilise to accommodate it? This is a question that strikes right to the heart of any attempt within law to increase the complexity of our understanding so as to mirror the complexity of the situation before us. However, it also a question that while presupposing law’s institutional and propositional structure appears to ignore the significance of its existence as law in terms of the narrative structure associated with law as practice. Might judges be able to increase the complexity of their legal understanding so as to mirror the complexity of the situation they are contemplating through equivocality; that is, through the formulation and accumulation of multiple inequivalent descriptions? We have returned to a familiar question: how, if at all, in law and as law, might it be possible, in Bańkowski’s terms, through ‘paying attention to the story’ to get inside it, to ‘lift the veil’?

The difficulty with the argument being presented here is that features such as non-linearity, recursiveness, sensitivity to initial conditions, emergence, and so on, can be understood and articulated only from a position of second-order complexity; that is, by moving from a position where every focus is on the system’s reductionistic tendency to one where we can entertain descriptions of the system as complex. For Christodoulidis, this is not possible: law’s ‘structural inertia’ operates to cut off this possibility. However, for the moment let us simply note how, by moving from propositional statements to interpretative or narrative statements, we move from talking about properties of the system to understanding our statements in respect of the system as a part of a vocabulary that describes the system and, in this sense, they cannot, as Taylor argues, be separated from our beliefs and goals (Taylor 1985: 23). In the propositional mode, this is not obvious; in the narrative mode, the dependence is openly acknowledged.

How might a property of the system become accepted as a descriptor? In the first place, this must involve bringing the teller of the story actively into the focus of the story itself. Take, for example, the case of Lord Justice Ward’s rendering of Re A as ‘very unique’. It is precisely because we expect linearity here that the lack of proportionality between what we would normally identify as cause and effect secures our interest. So, we interpret the non-linearity of complex systems as surprising. However, the surprise itself is not part of the system but is down to our expectations not being met or fulfilled and depends on our perspective; similarly, it is our concepts that are indeterminate, not the system they describe. To alter our perspective on something, to try and define where an event or occurrence begins and where it ends, or to suggest that a certain coincidence of features mark it as systemic, each of these is an interpretative move: it does not identify system properties. Moreover, if we reveal complexity by using these methods, it is precisely because of our involvement that this is introduced. How, then, in law, can we gain access to second-order complexity, and how might a narrative approach help to do this? Here we will try to answer these questions by looking again at a Newtonian style of thinking and how it has influenced directions in legal theory.

As we have already noted, the Newtonian approach involves the adoption of a particular attitude towards the world. First, there is an emphasis on what is quantifiable and measurable. Second, in line with this, it operates by constructing ideal models, providing a method of analysis that is both a-contextual and a-historical so that the construct is released from the stimulation of temporal and situational influences. In this way, the phenomenon under investigation may be thought of as complete in itself, a self-sufficient bounded entity, at the point in time when the investigation takes place.

Examples of this style abound throughout the legal theoretical literature. However, for our purposes here, we will confine our interest to noting the relation of ITL to this mode of thinking. As we have seen, MacCormick moves effortlessly from talking about law as an institution to the institutions of law and their underlying structuring principles. If we ask how we discover these principles, the answer is that we discover them from the accumulation of identifiable, self-contained life-situations. In other words, abstracted from context and from diverse contingent influences we can proceed to discover the relevant universal, or generally applicable, principles. But notice how, in effecting this transition, we move effectively from the experience of events in their uniqueness to a theoretical construction of them that swaps contingency for necessity.

The methodological procedure adopted by MacCormick in ITL is that of seeking out regularities within situations marked by set limits and conditions. Under this procedure, rules can be constructed and codified, and their validity established, that can then be followed by legal subjects and legal practitioners alike. MacCormick’s account of ITL may be seen to conform to what Jerome Bruner has described as logico-scientific thought. Bruner presents a comparison of ‘two modes of cognitive functioning’, the logico-scientific mode and the narrative mode (Bruner 1986: 11–43). According to Bruner, while each provides ‘distinctive ways of ordering experience’ and ‘constructing reality’, they are nonetheless ‘irreducible to one another’, so that ‘[e]fforts to reduce one mode to the other or to ignore one at the expense of the other inevitably fail to capture the rich diversity of thought’. Conversely, those tendencies within ITL which may be thought of as discouraging, or at least constraining, are those that find representation within Bruner’s narrative mode.

For MacCormick, as we have already noted, legal institutional knowledge is organised around a propositional form of statements that relates a factual predicate to a consequent. These conditional statements are used to explain the recurrence of certain institutional phenomena and they also provide the basis for the framing of legal norms to guide subsequent behaviour. Here knowledge operates recursively inasmuch as it is used for both explanation and prediction of behaviour and for the guidance of legal practitioners; that is, events that occurred in the past form the basis for the factual predicate that will guide questions relating to future action. Thus, when the legal system is disturbed by encountering a ‘new’ situation, that new situation is reduced to and described by reference to those constituent parts that can be accounted for in the familiarity of past situations so that the behaviour in question may be examined by legal norms (rules). Therefore, in this sense at least, time is made redundant: the future is reducible to the past, in whose terms it is understood.

Of course, as MacCormick is quick to point out, regulating life by subjecting human behaviour to the governance of rules has its advantages, for once a particular interpretation has been assigned in a particular case they become applicable across a range of contexts. Nonetheless, as we have seen, with generalisations it is difficult to properly account for particular circumstances or experiences. Propositional statements have reference to purposes and motives that cannot be articulated propositionally. Moreover, because the propositional form makes time redundant this often results in paradoxes. In these ways, the propositional structure and form on which ITL is made to depend may be considered to be limited.

Just so, it is in order to address these limitations that the complementary capabilities of a narrative approach ought to be considered. The main point is to ask in what ways, if at all, a narrative approach may be thought to act in tandem with the sort of approach suggested by ITL so as to address the complexity deficit highlighted above; that is, in what ways may a narrative mode be considered to complement rather than to conflict with the mode of thinking engaged in ITL? MacCormick describes his model of legal reasoning as utilising the following method: universalisability; consequences; coherence and consistency. Here, the aim is to demonstrate the usefulness of the narrative approach as a necessary supplement, or corrective, to counter the perceived shortcomings of ITL. In other words, to ask how we may ally to those methodological features of MacCormick’s approach, the following features characteristic of a narrative mode that MacCormick’s approach seems to preclude: contextuality and reflexivity; the articulation of purpose and motive; sensitivity to the temporal aspect.