Everything Is Narrative (Joe)

Speaking of why we need the humanities, I accidentally stumbled across this post a couple weeks back.

Now, granted, I probably should have been a medievalist instead of a litigator or a law professor or whatever I'm going to be--in which case I would have a sturdier foundation of knowledge for making this claim, but still, I feel confident in asserting that no literarian would make the mistake of forgetting that everything is narrative.  Consequently, no literarian--seriously, feel free to go get Michael Bérubé from the shadows of Crooked Timber to correct me if I'm wrong about how the English/literature professors feel about this--would make the mistake that Professor Henderson makes in his blog post (linked above) and article about which the post is... about.

Essentially, he argues that law and literature has not "worked" because, if literature helped judges to understand the human condition, to be more empathetic, then federal judges would cite to fiction in their judicial opinions at rates greater than whatever the current (very small) rates are.

On its face, this proposition is asinine.  No one who "took a fabulous class called 'Law & Literature' from Professor Nussbaum" at the University of Chicago should make this error.  Putting aside professional norms (and this is an important and powerful factor), and putting aside also the crucial fact that what judges should cite as legal authority is legal authority (and incidentally, law is the only field in which it is not fallacious to cite the fact that something has been said as proof of the thing that has been said), this is absurd purely in terms of what it would look like.  "As I was saying, in my consideration of Mr. Boumediene's habeas case from Gitmo, I have read the briefs in light of the inarticulable lessons I have learned, and experiences that have changed me, from reading Tolkien's The Hobbit, Eliot's The Waste Land, Chaucer's discussion of fame, and Eggers's A Heartbreaking Work of Staggering Genius, and consequently, I think that torture is bad."  Ha!

That is, the argument is that if literature makes people more humane, and more humane people make better judicial decisions, then we can know that judges who read literature (ignoring declining reading rates in this country) are not making better decisions because they are not referencing Shakespeare in their opinions on the business judgment rule and Article III standing.  (One notable exception would evidently be Chief Justice Roberts, a truly humane person if I have ever seen one, because of his flatly idiotic use of that stupid Dylan lyric in whatever recent case it was that made people on such thoughtful law blogs as PrawfsBlawg and the Volokh Conspiracy take notice.)

Anyhow, I promised myself I wouldn't rant, or go off on Todd Henderson, with whom I am otherwise unfamiliar.  I may have broken that promise.  (See above.)  BUT the point I wanted to make about literature, narrative, and if we stretch it broadly enough, the humanities, is that the need for statistics can be terribly misused when we forget that numbers do not tell stories until we infuse them with meaning, or tell stories with them.

Technically, Professor Henderson's statistics tell us precisely one thing: the number of hits he got when he plugged in whatever search terms he used in the Westlaw searches that he ran. 

The problem is that we're at a point where narrative is mistrusted.  We don't want people to tell us stories, we just want facts.  So we look for numbers and we model our scholarship on the social sciences and we get unvarnished truth--which we then promptly turn into a lie because we need that story to take meaning from our empty true facts, only we don't realize that we're making up a story so we do it badly and our interpretation is that "the law and literature movement" has not "worked" because of the results of an empirical study of the opinion-writing practices of federal judges.

Comments

[Andrew Rosenblum]

Hear hear. The reason people should study the humanities is not because of particular applicability to a job function, unless like me, you're a masochist and actually want to try making money off your literary criticism. As Joe points out, the idea of citing The Hobbit as legal precedent would be totally inappropriate.

The importance of the humanities, rather, is their applicability to those areas of human knowledge that are extremely important, but where scientific certainty is impossible to achieve (for example, beauty, justice, morality, religion). Kant famously divides knowledge into two major categories -- the scientific, objective, "sensible," inarguable type of knowledge that he calls "phenomenal." And secondly, there are certain types of questions where objectivity is impossible to achieve, such as questions of God, or of moral freedom. He gave this crucial category the strange, slippery name "noumenal." Which is not to say, as many intellectually lazy technocrats and scientists do, that since no certainty is possible, therefore discussing these questions has no value -- but rather that some discussions of "noumenal" topics can be more learned and thoughtful, but in the end, one can not appeal to outside authority or the scientific method to close off discussion on them. In a nutshell, the traditional definition of the humanities is an erudite conversation on crucial topics of human experience -- but which can never end.

So the glory of a strong humanities background for a judge is not, as Henderson rather ludicrously suggests, finding actual precedent in fictional sources. But rather, as Joe suggests, in noting that subjective narratives shape our perception of reality, even in areas like law and behaviorism, where people are all too eager to falsely claim scientific certainty. I'd much rather have a judge who acknowledges that, in reaching a tough decision, she is making an informed choice between two subjective possibilities, rather than someone who claims to have "objectively" interpreted the case in relation to the original intent of the Framers.

[joe]

When you put it that way, the line between "masochism" and "living the dream" just sort of collapses. I like it.

[Dean C. Rowan]

Thus Fish on Milton in a recent NYT column: "the questions posed by the poetry are few, a finite set, but the ways of answering them are infinite, and because they are the ultimate questions, we want always to be returning to them." Exactly as Andrew describes the matter.

I believe literature has more than narrative to offer legal thought and writing. Rhetoric was once a core legal practice. Nowadays it has a bad name, but its mild revival as a buzzword, if not exactly as a full fledged discipline, by literary theorists like Paul de Man illustrated how a particular form of "close reading" might challenge the logical limits of legal discourse, among other kinds. See, for instance, de Man's essay on "Pascal's Allegory of Persuasion." De Man, of course, turns out to have done little to improve the status of rhetoric, for biographical reasons arguably unrelated to his work on Pascal.

Still, I agree that the L&L movement hasn't exactly "worked," but for me this is because it so often involves facile correspondences of patterns in literature to patterns in legal writing. This is a sweeping characterization, unfair to perhaps many exceptions, but I've generally been left unsatisfied by L&L writing, which mostly remains bogged down by instrumental concerns such as those worried upon by Henderson.