The Literary Jurist

The sometimes discomfiting effects of metaphor help loosen the habits of the heart and mind, and urge jurists to cultivate their story sensibility or, more broadly, their narrative intelligence to prevent them from falling into the professional abyss of the psychological errors to which all humans are prone. The same obviously goes for satire, irony, hyperbole and tropes in general when found in a legal setting. Cognitive psychology also shows convincingly that professionals rely on a variety of skills rather than simply applying the relevant rule. Thus, sophisticated knowledge of how narrative works both in the world and in us is crucial, and for the simple reason that misreadings and misunderstandings − reinforced by our natural tendency to cling to our initial beliefs when combined with professional overconfidence about how things are habitually done − easily lead to miscarriages of justice. The epistemological question to be kept specifically in judicial minds should always be whether there is indeed a chain of circumstance ‘out there’, or whether someone carefully fits together the evidence with other established facts. And whether that someone is you.

We can complement this cautioning approach with a more constructive one. ‘Seeing as’, especially when connected to the requirement of using the imagination, suggests yet another reason for the development of the jurist's narrative intelligence. Law and Literature's strand that premises the idea that literary works appeal to the emotion as well as to the intellect, and thus engender the reader's empathy, elaborates on this. Martha Nussbaum argues that literature ‘speaks about us, about our lives and choices and emotion, about our social existence and the totality of our connections’, so that ‘our interest in literature becomes … cognitive: an interest in finding out (by seeing and feeling the otherwise perceiving) what possibilities (and tragic impossibilities) life offers to us, what hopes and fears for ourselves it underwrites or subverts’. Nussbaum builds on earlier work in which she combines ethical philosophy along Aristotelian lines with the suggestion to study the narrative and emotional structures of novels. It is intimately connected to her construction of the truly moral judge whose phronetic virtue lies in correctly applying the equity of the flexible ruler.