Points of Departure

This chapter continues the search for the specific building blocks for a humanistic approach to law that favours the idea of language as our cultural software. The suggestion that judges need narrative intelligence leads me to consider the possible elements of a narratology applicable in and for law. To be able to make the distinction, important for practice, between narrative in the sense of the story that is told and narrative as the way in which a story is transferred in a specific manner and has a specific impact on its audience, jurists need guidance as far as the production and the reception of narratives is concerned. That is why this chapter is prompted by Benjamin Cardozo's succinct reminder of the intertwinement of theory and practice in law: ‘the perplexity of judges becomes the scholar's opportunity.’ At the moment that it becomes apparent that judges crave more guidance than usual, academic scholars are offered a topic for further research. So here is an opportunity for interdisciplinary co-operation on the plane of narratology that can illuminate for practice its foundation in a broader cultural framework of which law is a part; hence the title of Part III of this book, which offers three examples of developments that may cause judicial perplexity.

Jerome Bruner has already argued that because ‘narrative constructions can only achieve “verisimilitude”’ they are ‘a version of reality whose acceptability is governed by convention and “narrative necessity” rather than by empirical verification and logical requiredness’. Jurists, therefore, should learn to differentiate between the construction of a narrative as text and narrative as operative in terms of how we construct the world as we know it. These aspects of narrative have recently been elaborated upon in connection with the notions of credibility and persuasiveness when these are judged against the background of factual evidence − or the lack of it − in legal cases, a topic closely related to the bond between facticity and normativity, as discussed in Chapter 6. Here too the human psychological make-up returns with a vengeance. What happens if our mind's natural proclivity to structure reality by means of narratives falls into the pitfall of their becoming set stories, and therefore, as will be addressed in Chapter 10, results in our applying them as set rules?