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Narrative Jurisprudence: The Remystification of the Law

Published online by Cambridge University Press:  24 April 2015

Tristan Layle Duncan
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Extract

Over the years, law has been denned variously as a “brooding omnipresence in the sky,” the decree of a sovereign, the mores of human experience, the practical realization of truth and justice, what operates when there is peace and order. From a societal perspective, all of these have a ring of truth. When one does not think in terms of “me” but in terms of “we,” then law as social order makes sense. But the individual does not comprehend the law so abstractly. Law is a world of violence, death, pain, and suffering imposed on those who are loved, hated, respected, feared, scorned, and pitied. For those who are forced to bend to the coercion of the law, law is not so vague a concept as ‘truth’, ‘justice’, ‘tradition’, ‘conventional morality’, ‘mores’. Law is pain. It is profound to the extent violence and death are profound. It is abstract to the extent pain is an abstraction. It is neutral as coercion and suffering strike us as neutral. Law, for those who make it and for those who are subject to it, is as objective and impartial an enterprise as law's violence allows. As violence is world destroying, law is deobjectified. It remains impersonal only for those who are removed from it. But for those who live it and are therefore touched by its coercion, the meaning of otherwise abstract impersonal principles is colored by the experience of law's violence.

Type
Research Article
Information
Journal of Law and Religion , Volume 7 , Issue 1 , 1989 , pp. 105 - 129
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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References

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The problem is that our language is not necessarily adequate to our needs. Language which has ceased to express felt needs is empty rhetoric. … We need words to keep us human …. Being human is a second nature which history taught us, and which terror and deprivation can batter us into forgetting.

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3. The terminology, “to deal pain,” was originally penned by Cover, Robert in Violence and the Word, 95 Yale L.J. at 1609 (1986)CrossRefGoogle Scholar. Cover was the first to draw our attention to law's violence and the specific role it plays in legal interpretation. In large part, the thrust of this paper is an examination of the extent to which Cover correctly analyzed the role of violence in the law.

4. 374 U.S. 483 (1954).

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9. Id. at 60. 10. Id. at 92.

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20. Id. at 98.

21. Id. at 103.

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26. Cover, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983)Google Scholar.

27. 461 U.S. 574 (1983).

28. Id. at 604.

29. Cover, Nomos and Narrative, supra note 26, at 60-68.

30. Id. at 58.

31. Id. at 59.

32. Michelman, supra note 5, at 4.

33. 475 U.S. 503 (1986).

34. Id. at 513.

35. Id. at 522.

36. Id.

37. Wechsler, , Toward Neutral Principles, 71 Hary. L. Rev. 1 (1959)Google Scholar.

38. See generally Ricoeur, supra note 23, at 279.

39. For a sophisticated analysis of the mixture of positivism and normativism evident in “interpretive jurisprudence,” see Moore, Michael S., Psychoanalysis and the Mind/Body Problem—The 1986 Charles Phelps Taft Lectures in Philosophy, Cincinnati, Ohio, 04 18, 1986Google Scholar. See also M. Moore, The Metaphysics of Judging: A Return to Natural Law Jurisprudence, ch. 1, 3 & 16, presented in Usc/Oxford Legal Theory Workshop, June 10, 1987.

40. I am grateful to Professor Jeff Powell for citing both the exclusionary rule and Justice Douglas' penumbral methodology as examples of Aristotelian practical reason. In this footnote I will offer, however, a Platonist or Wechslerian response to such Aristotelian reasoning. Since the exclusionary rule cannot be logically derived from the fourth amendment, a Wechslerian judge would be forced to conclude that to go ahead and ground the exclusionary rule in the fourth amendment is an example of judicial activism. Practical reason simply is not a good enough constraint on the human tendency to inject one's own value preferences into a moral calculus of law. Indeed, practical reason pushes judicial decisionmaking toward a “Rule of Men” not a “Rule of Laws.” A Wechslerian judge, however, might say that just as the first amendment is a better basis for invalidating “separate but equal,” so for the same reason, the fifth amendment is a better source of neutral principle for the exclusionary rule than the fourth amendment. The Court has simply misidentified the proper source of neutral principle for the exclusionary rule. The exclusionary rule can be logically derived from the fifth amendment in a way it cannot be so deduced from the fourth amendment. The train of logic would go something like this: The fifth amendment protects the individual from having to testify against himself in a court of law. This is premise number one. Premise number two is one's property is an extension of oneself and as such it is a form of self-expression. Conclusion: it follows from premise number one and two that presenting one's property in a court of law as evidence against oneself is self-incrimination and as such is prohibited by the fifth amendment. This decision procedure, as an evidentiary matter is more demonstrably objective than Aristotelian practical wisdom—although they are both reasoning toward an end-state. The real challenge is locating the objective source of principle from which secondary principles are logically derived. Aristotelian practical wisdom, on the other hand, by being less constrained, too easily begins to resemble a Machiavellian decision procedure whereby the albeit objective ends justify nearly any means.

41. Michelman, supra note 5, at 29.

42. Id. at 23.

43. Id. at 32.

44. Cover, Violence and the Word, 95 Yale L.J. 1602 (1986)Google Scholar.

45. Cover makes his thesis in Violence and the Word more explicit in The Bonds of Constitutional Interpretation of the Word, the Deed, and the Role, 20 Ga. L. Rev. 816 (1986)Google Scholar.

46. Id. at 832.

47. Id.

48. Id. at 833.