¹ Benjamin Nathan Cardozo, The Growth of the Law 5–6 (1924).Google Scholar

² Justinus Gobler, In Legem Respiciendam Explanatio (1543). “Wenn du, Jurist, die Tatbestände gut feststellst, dann wird Recht folgen. Der Sachverhalt geht in der Reihe vor, die rechtliche Beurteilung folgt nach.” GUSTAV RADBRUCH, KLEINES RECHTS-BREVIER 58 (1954).Google Scholar

³ James Boswell, The Life of Samuel Johnson LL.D. 168 (1830) (asking Johnson's view).Google Scholar

⁴ This is the main topic of Jeanne Gaakeer, Configuring Justice, 9 No Foundations 20 (2012).Google Scholar

⁵ On the topic of what Karl Larenz, following Karl Engisch, in his Methodenlehre der Rechtswissenschaft called “das Hin-und-Herwandern des Blickes” (the wandering back and forth of the gaze). Karl Larenz, Methodenlehre der Rechtswissenschaft 204 (1991). See also Gaakeer, Jeanne, European Law and Literature, in Dialogues on Justice 44, 15 (Helle Porsdam & Thomas Elholm eds., 2012); Jeanne Gaakeer, On the Study Methods of Our Time, in Intersections of Law and Culture 131 (Priska Gisler et al. eds., 2012). The original maxim ex facta ius oritur was coined by the Italian jurists Bartolus and Baldus in the thirteenth century. Bartolus de Saxoferrato & Baldus de Ubaldis, Digests D.9.2.52.2.Google Scholar

⁶ The idea of the iudex deductor is closely connected to the positivist separation thesis of fact and norm that is guided by the view that judging is the unmediated application of objective(ly existing) legal norms to the (so-called undisputed) facts.Google Scholar

⁷ See Bal, Mieke, Narratology 227 (2009) (arguing that “narrative is a cultural attitude, hence, narratology a perspective on culture.”). One of Bal's theses concerns the use of narratology for cultural analysis; she advocates differentiation with respect to the place of narrative in different fields.Google Scholar

⁸ Aristotle, Poetics § 1450b (1999) (explaining that an action of event should be whole, for example, “[a] whole is that which has a beginning, middle, and end”.). Narratology is the translation of narratologie, the French term introduced by Tzvetan Todorov. See generally Todorov, Tzvetan, Grammaire du Decameron (1969).Google Scholar

⁹ Algirdas Julien Greimas & Joseph Courtes, Semiotique, Dictionnaire raisonne de la theorie du langage 249 (1979). Greimas and Eric Landowski applied a semiotic analysis to French commercial law of trusts and corporations. Algirdas Julien Greimas & Eric Landowski, Analyse semiotique d'un discours juridique, Semiotique et Sciences Sociales 79 (1976).Google Scholar

¹⁰ See generally Propp, Vladimir, Morphology of the Folktale (Laurence Scott trans., 1958).Google Scholar

¹¹ See White, James Boyd, Heracles' Bow 169 (1985)Google Scholar

(One fundamental characteristic of human life is that we all tell stories, all the time, about ourselves and others, both in the law and out of it. The need to tell one's story so that it will make sense to oneself and others may be in fact the deepest need of that part of our nature that marks us as human beings, as the kind of animal that seeks for meaning.);Google Scholar

Jerome Bruner, The Reality of Fiction, 40 McLegal, Gill J. Educ. 55, 58 (2005) (“[N]arrative is also our simplest mode of imposing a moral structure on experience” and “a principal function of narrative is to explore alternative versions of the human condition, ‘possible worlds’ as it were.”).Google Scholar

¹² See Olson, Greta, Futures of Law and Literature, in Recht und Literatur im Zwischenraum/Law and Literature in-between 37, 43 (Christian Hiebaum et al. eds., 2015) (“The term ‘narrative’ is often used in an undifferentiated fashion in work on the narrative properties of law to include a number of phenomena.”). See also Schernus, Wilhelm, Narratology in the Mirror of Codifying Texts, in Current Trends in Narratology 277, 290 (Greta Olson ed., 2011) (“The disciplinary status of narratology appears unclear or at least somewhat uncertain.”).Google Scholar

¹³ See Meister, Jan Christoph, Narratology, The Living Handbook of Narratology (Aug. 26, 2011) http://www.lhn.uni-hamburg.de/article/narratology; Schernus, supra note 12, at 281; De, Christy H.Sanctis, Narrative Reasoning and Analogy: The Untold Story, 9 Legal Comm. & Rhetoric: JALWD 149 (2012). See also Kiernan, Derek H.-Johnson, A Shift to Narrativity, 9 Legal Comm. & Rhetoric: JALWD 81, 81–82 (2012) (differentiating between story, narrative, and storytelling: Story and storytelling are limited to events and people, narrative is the broader term also used in legal reasoning, and narrativity is the latest flower on the terminological tree).Google Scholar

¹⁴ Stefan Iversen, Narratives in Rhetorical Discourse, in The Living Handbook of Narratology, (Jan. 31, 2014) http://www.lhn.uni-hamburg.de/article/narratives-rhetorical-discourse.Google Scholar

¹⁵ Peter Brooks, Narrative Transactions—Does the Law Need a Narratology?, 18 Yale J.L. & Human. 1 (2006).Google Scholar

¹⁶ See Brooks, Peter, The Law as Narrative and Rhetoric, in Law's Stories: Narrative and Rhetoric in the Law 14, 16 (Peter Brooks & Paul Gewirtz eds., 1996) (warning that “[s]torytelling is a moral chameleon, capable of promoting the worse as well as the better cause every bit as much as legal sophistry.”).Google Scholar

¹⁷ See Goodrich, Peter, Legal Discourse 1 (1987).Google Scholar

¹⁸ Ruthann Robson & Elkins, James R., A Conversation, 29 Legal Stud. F. 145, 172 (2005).Google Scholar

¹⁹ See Preface to Anton-Hermann Chroust, The Rise of the Legal Profession in America (1965); Roscoe Pound, The Lawyer from Antiquity to Modern Times 78 (1953).Google Scholar

²⁰ Cornelia Vismann, Die unhintergehbare theatrale Dimension des Gerichts, in Medien der Rechtsprechung 19, 20 (Vismann ed., 2011) (“Sie konvertieren das strittige Ding in eine aussprechbare Sache.”). Compare the Icelandic term Althing and the German Thingstätten for the place where people gathered to render or receive justice.Google Scholar

²¹ See Olson, supra note 12 (providing an overview of the “narrative turn”).Google Scholar

²² David Herman, Histories of Narrative Theory (I), in A Companion to Narrative Theory 19, (James Phelan and Rabinowitz, Peter J. eds., 2005).Google Scholar

²³ Id. at 31.Google Scholar

²⁴ Id. at 21.Google Scholar

²⁵ Paul Ricoeur, 1 Time and Narrative xi (Kathleen McLaughlin & David Pellauer trans., 1984).Google Scholar

²⁶ Story-time is defined as the narrated time within the story or “the sequence of events and the length of time that passes in the story,” and discourse-time, as “the length of time that is taken up by the telling (or reading) of the story.” See Anglistik der Universität Freiburg, Time Analysis, Universität Freiburg, http://www2.anglistik.uni-freiburg.de/intranet/englishbasics/Time02.htm (Mar. 26, 2015).Google Scholar

²⁷ Paul Ricoeur, Life, in Facts and Values 121, 129 (Doeser, Marinus C. & J.N. Kraay eds., J.N. Kraay & A.J. Scholten trans., 1987).Google Scholar

²⁸ Riffaterre's statement remains poignant that: “The narrative need not be judged true because it corresponds to an external image of the world, but because it is consistent with the linguistic usages current in a given social context, at a given moment in time.” Michael Riffaterre, Fictional Truth vii–viii (1990).Google Scholar

²⁹ See Gaakeer, Jeanne, Futures of Law and Literature: A Jurist's Perspective, in Recht und Literatur im Zwischenraum/Law and Literature in-between 71 (Christian Hiebaum et al. eds., 2015); Fisher, Walter R., Narration as a Human Communication Paradigm, 51 Comm. Monographs 1, 2 (1984) (denoting narrative paradigm as “a dialectical synthesis of two traditional strands in the history of rhetoric: the argumentative, persuasive theme, and the literary, aesthetic theme.”). Compare James Boyd White's emphasis at the start of Law and Literature that jurists should be able to bridge the difference, in themselves and when recognized in others, between the narrative and the analytical, or the literary and the conceptual. White calls this the difference between “the mind that tells a story, and the mind that gives reason,” because “one finds its meaning in representations of events as they occur in time, in imagined experience; the other, in systematic or theoretical explanations, in the exposition of conceptual order or structure.” James Boyd White, The Legal Imagination 859 (1973).Google Scholar

³⁰ Fisher, Walter R., The Narrative Paradigm, 52 Comm. Monographs 347, 348 (1985).Google Scholar

³¹ Id. at 355 (expressing his indebtedness to Ricoeur, whose “recent writings inform and reinforce the narrative paradigm.”).Google Scholar

³² Fisher, Walter R. & Filloy, Richard A., Argument in Drama and Literature, in Advances in Argumentation Theory and Research 343 (J. Robert Cox & Charles Arthur Willard eds., 1982).Google Scholar

³³ Id. at 347.Google Scholar

³⁴ Fisher, supra note 29, at 2.Google Scholar

³⁵ Fisher, supra note 29, at 7.Google Scholar

³⁶ Fisher, supra note 29, at 8.Google Scholar

³⁷ See Fisher, supra note 30, at 349. See James Phelan & Rabinowitz, Peter J., Introduction to Narrative Theory 3, 7 (David Herman et al. eds., 2012) (“Audiences develop interests and responses of three broad kinds, each related to a particular component of the narrative: mimetic, thematic, and synthetic.”). This is to say that as far as the mimetic is concerned, the questions are, Is this world possible? Are these people possible, either hypothetically and conceptually?Google Scholar

³⁸ See Wolf, Werner, Narratology and Media(lity), in Current Trends in Narratology 145, 156 (Greta Olson ed., 2011).Google Scholar

³⁹ Fisher, supra note 29, at 9.Google Scholar

⁴⁰ Terry Eagleton, The Event of Literature 207 (2012).Google Scholar

⁴¹ Id. at 171.Google Scholar

⁴² See Gerrig, Richard J., Conscious and Unconscious Processes in Readers' Narrative Experiences, in Current Trends in Narratology 37, 39 (Greta Olson ed., 2011) (“Readers' general knowledge is critical to narrative processing.”).Google Scholar

⁴³ Fisher, supra note 29, at 18.Google Scholar

⁴⁴ Fisher, supra note 30, at 354 (noting that narrative rationality resembles, “Aristotle's view of phronesis, which recognizes a contingent world, the particularities of practical existence and the possibility of wisdom—a virtue that involves an interest in matters that transcend immediate circumstances.”). See Gaakeer, supra note 4, at 24–27, for an extensive discussion of phronèsis. Google Scholar

⁴⁵ Aristotle, The Nicomachean Ethics, V.v.1, 1140a24–29 (2003).Google Scholar

⁴⁶ Id. at VI.v.3-4, 1140a32–1140b7.Google Scholar

⁴⁷ Id. at VI.viii.9, 1152a26–28.Google Scholar

⁴⁸ Gregory Currie, Narratives and Narrators 1 (2010).Google Scholar

⁴⁹ Aristotle, supra note 45 at VI.v.3-4, 1140a32–1140b7.Google Scholar

It [phronèsis] is not Science, because matters of conduct admit of variation; and not Art, because doing and making are generically different, since making aims at an end distinct from the act of making, whereas in doing the end cannot be other than the act itself: doing well is in itself the end. It remains therefore that it is a truth-attaining rational quality, concerned with action in relation to things that are good and bad for human beings.Google Scholar

⁵⁰ Paul Ricoeur, The Rule of Metaphor 23 (1986).Google Scholar

⁵¹ Paul Ricoeur, The Metaphorical Process as Cognition, Imagination, and Feeling, 5 Critical Inquiry 143, 146 (1978).Google Scholar

⁵² Id. at 148.Google Scholar

⁵³ Ricoeur, supra note 50.Google Scholar

⁵⁴ Compare Kantian imaginatio as the faculty to bring about a synthesis between intellectual attitude, intuition, and deliberation, and thus, a link between the essential requirements for lawyers, for example, sympathetic understanding and necessary detachment, as set forth in Anthony Kronman, Practical Wisdom and Professional Character, 4 Social Phil. & Pol'y 203 (1986).Google Scholar

⁵⁵ Ricoeur, supra note 25, at 157.Google Scholar

⁵⁶ See Edwards, Linda H., The Convergence of Analogical and Dialectic Imaginations Legal Discourse, 20 Legal Stud. F. 7, 8–9 (1996).Google Scholar

⁵⁷ The Dutch Penal Code (Louise Rayar & Stafford Wadsworth trans., 1997).Google Scholar

⁵⁸ Hoge Raad (Dutch Supreme Court), 31 January 2012, ECLI:NL: HR:2012: BQ9251. See DeSanctis, supra note 13, at 161 (providing an example of a “story of the evolution of the law,” the case of United States v. Martinez-Jimenez, 864 F.2d 664 (9th Cir. 1989), which considered whether a toy gun counts under the relevant statute, for example, in the doctrinal development of the federal armed-bank-robbery statute on the use of “a dangerous weapon or device,” because this counts as an aggravating circumstance leading to an increase of penalty. Another field where metaphoric insight is of great importance is in questions of intellectual property rights).Google Scholar

⁵⁹ See Gaakeer, supra notes 4 and 29, for an elaboration of this argument. For a general introduction to Ricoeur's views on narrative, see Dowling, William C., Ricoeur on Time and Narrative (2011).Google Scholar

⁶⁰ Ricoeur, supra note 27, at 129.Google Scholar

⁶¹ Ricoeur, supra note 25, at xi.Google Scholar

⁶² Id. at 54.Google Scholar

⁶³ Id. at 54, 65.Google Scholar

⁶⁴ In Heracles' Bow, White distinguishes between legal vocabulary and law's “cultural syntax” or “invisible discourse”: “Behind the words, that is, are expectations about the ways in which they will be used, expectations that do not find explicit expression anywhere, but are part of the legal culture that the surface language simply assumes.” James Boyd White, The Invisible Discourse of Law, in Heracles' Bow 169 (1985).Google Scholar

⁶⁵ See Scharffs, Brett G., The Character of Legal Reasoning, 61 Wash. & Lee L. Rev. 733, 745 (2004) (“The judicial decision or holding corresponds to the action required of practical wisdom.”).Google Scholar

⁶⁶ See Kukkonen, Karin, Plot, in The Living Handbook of Narratology (Jan. 25, 2014) http://www.lhn.uni-hamburg.de/article/plot (examining mimēsis₃ as “a refined grasp of the real world”); Michael Scheffel, Antonius Wexler & Lukas Werner, Time, in The Living Handbook of Narratology (Nov. 20, 2013) http://www.lhn.uni-hamburg.de/article/time (examining mimēsis₃ as the recipient's activation of the narrated actions and his or her realization of the ‘synthesis of the heterogeneous’ manifested in mimēsis₂. Subsequently, this activation may influence and change the reader's actions, including the models that determine his image of himself and of the world in which people act, and may become the subject of another narration, another ‘synthesis of the heterogeneous.‘).Google Scholar

See also Scheffel, Michael, Narrative Constitution, in The Living Handbook of Narratology (May 16, 20110) http://www.lhn.uni-hamburg.de/article/narrative-constitution [explaining that “mimēsis₃ (refiguration) concerns the recipient's realization of the mise en intrigue manifested in mimēsis₂.” This realization influences “his image of himself and of the world in which people act.”].Google Scholar

⁶⁷ Paul Ricoeur, Narrative Time, 7 Critical Inquiry 169, 178 (1980); Paul Ricoeur, The Human Experience of Time and Narrative, 9 Res. in Phenomenology 17, 24 (1979). See also Eagleton, supra note 40, (suggesting that this is done in “an always-already ‘textualised’ environment.”).Google Scholar

⁶⁸ Ansgar Nünning & Michael Basseler, Literary Studies as a Form of “Life Science,” New Theories, Models and Methods in Literary and Cultural Studies 189, 197 (Greta Olson & Ansgar Nünning eds., 2013).Google Scholar

⁶⁹ Paul Ricoeur, The Just 130 (2000) (noting especially Chapter 8, The Act of Judging, at page 127).Google Scholar

⁷⁰ The Honorable Justice I.D. F. Callinan, AC, Symposium: The Power of Stories: Intersections of Law, Literature, and Culture: Stories in Advocacy and in Decisions: The Narrative Compels the Result, 12 Tex. Wesleyan L. Rev. 319, 323 (2005) (“It is … not only the way the actual facts are narrated that determines the case, but also the order in which they are narrated and the facts that are omitted.”).Google Scholar

⁷¹ Brooks, supra note 15, at 14. See Amsterdam, Anthony G. & Bruner, Jerome S., Minding the Law, 110, 115, 117 (2000) (differentiating between “endogenous theories of narrative” [the central claim of which “is that narrative is inherent either in the nature of the human mind, in the nature of language, or in those supposed programs alleged to run our nervous systems”]and “a second sort of theory” that argues “that narratives and genres of narratives serve to model characteristic plights of culture-sharing human groups,” the latter being the form to which legal narrative tends to conform).Google Scholar

⁷² Brooks, supra note 15, at 3–4 (discussing Robert Burns's view that “the bedrock of human events is not a mere sequence upon which narrative is imposed but a configured sequence that has a narrative character all the way down.” (citing Robert Burns, A Theory of the Trial 222 (1999))).Google Scholar

⁷³ Peter Brooks, Narrative in and of the Law, in A Companion to Narrative Theory 415 (James Phelan and Rabinowitz, Peter J. eds., 2007).Google Scholar

⁷⁴ Brooks, supra note 15, at 3.Google Scholar

⁷⁵ Id. at 24.Google Scholar

⁷⁶ Id. at 24.Google Scholar

⁷⁷ Brooks, supra note 73, at 417.Google Scholar

⁷⁸ Id. at 418.Google Scholar

⁷⁹ Brooks, supra note 15, at 10. See Amsterdam and Bruner, supra note 71, at 110–11, for the comparable view that law lives on narrative so that “the administration of the law and even much of its conceptualization rest upon ‘getting the facts.‘”Google Scholar

⁸⁰ Brooks, supra note 73, at 419; Brooks, supra note 15, at 14. I would also like to point to Justice Rehnquist's opinion in DeShaney v. Winnebago County Department of Social Services [DSS], 489 U.S. 189 (1989), on the question of whether the DSS, who knew that four-year-old Joshua DeShaney was repeatedly beaten by his father, was responsible for his ultimate brain damage since they failed to intervene: “The facts of this case are undeniably tragic,” an opening statement followed by a cold enumeration of reasons why DSS was not responsible, one that Justice Brennan in his dissent refers to as “the Court purport[ing] to be the dispassionate oracle of the law, unmoved by ‘natural sympathy.‘ … But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts,” as, for example, Rehnquist's narrative is driven by doctrine.Google Scholar

⁸¹ Ayelet Ben-Yishai, Common Precedents 22, 39 (2013) (emphasis in original).Google Scholar

⁸² Monika Fludernik, Histories of Narrative Theory (II), in A Companion to Narrative Theory, supra note 22, at 46.Google Scholar

⁸³ Id. at 50.Google Scholar

⁸⁴ “One of the key features of such narratives is not (only) cultural preconceptions about ranges of causality, but the various narrators' deliberate (or perhaps sometimes unintentional) selection of circumstances, that is to say their neglect or repression of other important evidence,” Fludernik, A Narratology of Law?, 1 Critical Analysis of L., 87, 88 (2014).Google Scholar

⁸⁵ Id. at 89. See Edwards, supra note 56, for an early, path-breaking account of the concept of narrative reasoning.Google Scholar

⁸⁶ Id. at 92. See Olson, Narration and Narrative in Legal Discourse, in The Living Handbook of Narratology, supra note 13 (last visited on December 15, 2014), arguing that “the legal code represents a form of narration involving if-plot.”Google Scholar

⁸⁷ Fludernik, supra note, 84 at 102; Fludernik references the N.Y. Penal Law § 10.00 et seq. (2009).Google Scholar

⁸⁸ Fludernik, supra note, 84 at 108.Google Scholar

⁸⁹ Id. at 109.Google Scholar

⁹⁰ Id. Google Scholar

⁹¹ Brooks, supra note 15, at 10.Google Scholar

⁹² Aristotle claims in Poetics that plots are subject to the laws of probability and necessity; see also Halliwell's Introduction to Poetics, supra note 8, at 12. In the situation of a criminal trial, Ricoeur writes that “[t]he application consists both in adapting the rule to the case, by way of qualifying the act as a crime, and in connecting the case to the rule, through a narrative description taken to be truthful,” Ricoeur, Reflections on the Just 55–56 (2007). See Mootz, Francis J. III referring to Gadamer on human experience as interpretive, “within legal practice we can understand a binding norm only within a practical context: understanding and application are a unified pact,” see Foreword to the Symposium on Philosophical Hermeneutics and Critical Legal Theory, 76 Chi.-Kent. L. Rev. 719, 721 (2000). See also Bruner, Jerome, The Narrative Construction of Reality, 18 Critical Inquiry 1 (1991); Jerome Bruner, Making Stories, Law, Literature, Life (2002).Google Scholar

⁹³ Brooks, supra note 73, at 425.Google Scholar

⁹⁴ See Meuter, Norbert, Narration in Various Disciplines, in The Living Handbook of Narratology, supra note 13.Google Scholar

⁹⁵ See François Ost, Towards a Critique of Narrative Reason, in Living in a Law Transformed: encounters with the works of James Boyd White 37, 38 (Julen Etxabe and Gary Watt eds., 2014), on one of the disqualifications of narrative for law:Google Scholar

[a] modern one, going back to the philosopher David Hume. It stems from the great divide between facts and norms, between describing and prescribing, between the “is” and the “ought,” and from the prohibition which goes with that—that is, that it is forbidden to pass from one to the other. In this case the disqualification of narrative is a double one: as well as being denied any role either in positing a fact or prescribing a norm, in consequence of the first repression, it is also denied any role as a mediator between these two ontological realms, since any possibility of a logical passage from one to the other is prohibited.Google Scholar

⁹⁶ See Olson, Greta, De-Americanizing Law-and-Literature Narratives: Opening Up the Story, 22 Law and Literature 338, 352 (2010), “legal reasoning proceeds through a process of deduction from abstract norms of codified law to the particular case at hand.” See also Olson, supra note 12. See Porsdam, Helle, From Civil to Human Rights, Dialogues on Law and Humanities in the United States and Europe 174 (2009), “Civil law starts with certain abstract rules, that is, which judges must then apply in concrete cases.”Google Scholar

⁹⁷ “[A] cause of action” being a factual situation that one person stated in order to obtain a remedy against another person.Google Scholar

⁹⁸ For these examples I draw on Geoffrey Samuel, A Short Introduction to the Common Law 55–56 (2013).Google Scholar

⁹⁹ Stephen Paskey, The Law is Made of Stories: Erasing the False Dichotomy Between Stories and Legal Rules, 11 Legal Comm. & Rhetoric: JALWD 51 (2014). See on the level of story contents, Fotis Jannidis, Character, in The Living Handbook of Narratology, supra note 13 [retrieved 16 February 2015] on story skeletons, e.g., the betrayal story in divorce stories.Google Scholar

¹⁰⁰ The greatest Dutch legal theorist of the twentieth century, Paul Scholten, once observed: The judge does something other than observing in favor of whom the scales turn, he decides. That decision is an act, it is rooted in the conscience of he who performs the act. That which is expected of a judge is a deed. It is not without meaning that in our judicial decrees, after much thinking and weighing, after sometimes infinite “re-weighing” of that which is advanced pro and con, the words “delivering judgment” are inserted before the dictum. After the long chewing-over of the deliberations, there is this word, which demands attention for the decision and thereby defines its nature—[and] then the ruling itself: short and decided. It is the task of the judge to deliver judgment. I think that there is more than merely observation and logical argument in every scientific judgment, but in any case, the judicial judgment is more than that—it can never be reduced to those two. It is not a scientific proposition, but a declaration of will: this is how it should be. In the end it is a leap, just like any deed, any moral judgment is.Google Scholar

Paul Scholten, General Method of Private Law (originally 1931), Digital Paul Scholten Project, University of Amsterdam (2014).Google Scholar

¹⁰¹ See Lempert, Richard, Telling Tales in Court, 13 Cardozo L. Rev. 559 (1991), for an account of a study on the difference in the rate of guilty verdicts depending on whether (mock) jurors were presented with information in story order or in witness order: 78% of guilty verdicts were made on the basis of story order.Google Scholar

¹⁰² See Baldwin, Clive, Who Needs Facts, When You've Got Narrative? 18 Int'l J. for Semiotics L. 217 (2005); Richard Sherwin, Law Frames: Historical Truths and Narrative Necessity in a Criminal Case, 47 Stan. L. Rev. 39 (1994).Google Scholar

¹⁰³ Olson, supra note 12, at 37.Google Scholar

¹⁰⁴ See Olson, supra note 86, that “narration plays a central role in legal discourse … and that legal narration in the narrow sense as the act of telling a story is a contestation of narratives such as witness testimony, defense and prosecution statements.” Note that again the Anglo-American common-law settings is the default.Google Scholar

¹⁰⁵ See Bex, Floris, Arguments, Stories, and Criminal Evidence: A Formal Hybrid Theory 12 (2011), “[t]he facts of the case often denote the events or states of affairs that are assumed, at least for the moment, to have happened or existed.”Google Scholar

¹⁰⁶ Olson, supra note 12, at 44, discourse includes “[the] perspective from which the story is told, for example, the often non-chronological order in which events are told, and how directly or indirectly it is related. Discourse, or the form of the telling, is typically used in contradistinction to ‘story’ (what happened).” See Currie, supra note 48, at vi, for the distinction between “the story told,” for example, events and characters, and the vehicle of telling, for example, narrative, so that “narratives convey stories.”Google Scholar

¹⁰⁷ Olson, supra note 12, at 44. See Fludernik and Olson, Introduction, in Current Trends in Narratology, supra note 12, at 15, referencing Marie-Laure Ryan who differentiates “[b]etween text originally composed as a narrative and a text that has qualities which allow its recipient to read it as a narrative,’ for example, the difference between a text ‘being a narrative’ and its ‘possessing narrativity.‘”Google Scholar

¹⁰⁸ Olson, supra note 12, at 44.Google Scholar

¹⁰⁹ See generally W. Lance Bennett and Martha Feldman, Reconstructing Reality in the Courtroom (1981) on “story grammar” in a legal context; Bernard Jackson, Law, Fact and Narrative Coherence (1988) and Making Sense in Law (1995); Wagenaar, Willem A., Peter J. van Koppen and Hans F.M. Crombag, Anchored Narratives: The Psychology of Criminal Evidence (1993), the premise of the theory of anchored narratives is that a “good story” in criminal law is not only compatible with the evidence but also “anchored: in our general knowledge of the world around us.”Google Scholar

¹¹⁰ See Margolin, Uri, Narrator, in The Living Handbook of Narratology, supra note 13 [retrieved 10 February 2015].Google Scholar

¹¹¹ See Fludernik and Olson, supra note 107, at 5, on the subject of cognitive narratology that addresses “how narratives reveal the phenomenology of perception … how they control the decision-making processes by which we intuit how stories are most likely to turn out.”Google Scholar

¹¹² See Edwards, Linda H., Once Upon A Time In Law: Myth, Metaphor, and Authority, 77 Tenn. L. Rev. 883, 913 (2010) (“Stories are true or false, depending not so much on what they say as on what they omit and what they imply.”). See Meyer, Philip N., The Darkness Visible: Litigation Stories and Lawrence Joseph's Lawyerland, 23 Syracuse L. Rev. 1311, 1314–15 (2003) (on the “subtext of a case,” the stories of the parties that matter to them but are filtered away in the course of the legal proceedings. It should be noted that in Kant's Critique, the second stage is reflection on the sensus communis that is to be taken into consideration in judging. As important as this is for legal decision-making, it falls outside the scope of this article.).Google Scholar

¹¹³ See Scheppele, Kim Lane, Telling Stories, 87 Mich. L. Rev. 2073 (1989) (that all that courts have is stories; Cicero's De Inventione already deals with the topic of the plausibility of narrative; the topic of how to influence the judge's mind and decision has been with us since Aristotle.).Google Scholar

¹¹⁴ See Herman, David, Cognitive Narratology, in Handbook of Narratology 30 (Peter Hühn et al. eds., 2009); David Herman, Cognitive Narratology, in The Living Handbook of Narratology, supra note 13 [retrieved 1 December 2014] (on the focus of cognitive narratology “[…]mental states, capabilities, and dispositions that provide grounds for — or, conversely, are grounded in—narrative experiences.”). See Fludernik and Olson, supra note 107, at 10 (“Frames, and particularly scripts, for example, culturally recurring sequences of actions or processes, are even more important to narratology, since they concern ingredients of plots”); Chestek, Kenneth D., Judging by the Numbers, 7 J. of the Ass'n of Legal Writing Directors 1, 34 (2010) (“Focusing on the story of the case is the most likely route to finding that sweet spot where a deep frame is activated (becoming the foundation of persuasion) without it being so obvious that the reader's natural defenses are triggered.”). See Prince, Gerald, Reader, in The Living Handbook of Narratology, supra note 13 [retrieved 16 February 2015], and Catherine Emmot and Marc Alexander, Schemata, in id. [retrieved 16 February 2015]) (on how texts guide the production of meaning and gap-filling done by readers.). For narrative empathy, see Keen, Suzanne, Narrative Empathy, in id. [retrieved 15 February 2015].Google Scholar

¹¹⁵ See Festinger, Leon, A Theory of Cognitive Dissonance (1957).Google Scholar

¹¹⁶ See the seminal article by Amos Tversky and Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Science 1124 (1974).Google Scholar

¹¹⁷ The idea was first brought forward by Cesare Bonesana, marchese Beccaria, Dei Delitti e delle Pene (1764 trans. Ingraham, Edward D., Of Crimes and Punishments (1778)).Google Scholar

¹¹⁸ See Richard Weisberg and Jean-Pierre Barricelli, Literature and Law, in Interrelations of Literature 150, 162 (Jean-Pierre Barricelli and Joseph Gibaldi eds., 1982) (“The legal process, like the literary, moves from an experience in life towards a narrative re-creation of that experience.”); see Mônica Sette Lopes, Clarice Lispector and Forgiveness, in Dossier Law and Literature, Discussion on Purposes and Method 43, 46 n.3 (M. Paola Mittica ed., 2010) t)hat when Clarice Lispector told her law professor that she opted for criminal law, he replied “You became interested in the literary part of Law,” referring to Clarice Lispector, Cadernos de Literature Brasileira (2004)).Google Scholar

¹¹⁹ I adopt this term from Ben-Yishai, supra note 81, at 43.Google Scholar

¹²⁰ See Hühn, Event and Eventfulness, in The Living Handbook of Narratology, supra note 13 [retrieved 10 February 2015].Google Scholar

¹²¹ I draw on Cleanth Brooks and Robert Penn Warren's definition of plot as “[t]he structure of an action as it is presented in a piece of fiction, not the structure of an action as we hap pen to find it out in the world but the structure within a story. It is, in other words, what the teller of the story has done to an action to present it to us,” as cited in Scheffel, supra note 66, at par. 3.1. Scheffel defines narrative constitution as “the composition of narratives.” Kukkonen, supra note 66, distinguishes between plot as a pattern yielding coherence to a narrative and plot as authorial design. See also Weresh, Melissa H., Morality, Trust, and Illusion, 9 Legal Comm. & Rhetoric: JAWLD 229, 251 et seq. (2012), for an account of how “[p]ersuasive narrative relies on three psychological properties: coherence, correspondence, and fidelity,” with coherence as “[a] matter of the story corresponding to what a judge and a jury knows about what typically happens in the world and not contradicting that knowledge.”Google Scholar

¹²² See Brooks, supra note 15, at 7, for the related example of Justice Potter Stewart in Bumper v. North Carolina, 391 U.S. 543 (1968), lamenting that: “The transcript of the suppression hearing comes to us … in the form of narrative; for example, the actual questions and answers have been rewritten in the form a continuous first person testimony. The effect is to put into the mouth of the witness some of the words of the attorneys.”Google Scholar

¹²³ On gaps and the assumption that in the real world, as opposed to fictional narratives, there are no gaps, see Wistrand, Sten, Time for Departure?, in Disputable Core Concepts of Narrative Theory 15 (Göran Rossholm and Christer Johansson eds., 2012); see also Marie-Laure Ryan, Cheap Plot Tricks, Plot Holes, and Narrative Design, 17 Narrative 56 (2009), on “plot holes” and “cheap plot tricks” in stories used to cover up problems of linearity, chronology, and logic.Google Scholar

¹²⁴ See also Aristotle, Art of Rhetoric 159 (2006), I.xv. 17, 1376a, “In regard to the confirmation of evidence, when a man has no witnesses, he can say that the decision should be given in accordance with probabilities, and that this is the meaning of the oath ‘according to the best of one's judgement.‘”Google Scholar

¹²⁵ A factum probandum is a fact that is the subject of proof; a factum probans is the fact from the existence of which that of the factum probandum is inferred. See Bex, supra note 105, at 12 for the inclusion in the “facts of the case” of “propositions the truth of which is unknown,” for example, the “facta probanda,” and the “facta explananda [as]”that which has to be explained“.Google Scholar

¹²⁶ Brooks, supra note 15, at 17. With respect to scope, is a victim impact statement literally just that, for example, only about the impact of the crime on a victim's life? Or is the victim allowed to say something about evidence and sentencing? And if so, how would this influence the judge?Google Scholar

¹²⁷ See Brooks, Storytelling without Fear?, in Law's Stories, supra note 16, at 114; Brooks, Troubling Confessions (2000). Brooks discusses the circumstances in which confessions are obtained and calls confessions ‘troubling’ when the defendant's rights (such as the right not to incriminate oneself) are (deliberately) violated.Google Scholar

¹²⁸ See Brooks, supra note 73, at 416, “‘Conviction‘—in the legal sense—results from the conviction created in those who judge the story[,]”; Brooks, supra note 16, at 18; Bex, supra note 105, at 79, “one of the main dangers of stories is that a coherent story is judged as more believable than an incoherent story, regardless of the actual truth of the story.”; Wagenaar et al., supra note 109, at 40, that a good story is more likely to be believed to be true than a weak story.Google Scholar

¹²⁹ See Amsterdam and Bruner, supra note 71, at 118, for a hilarious story of a jury verdict gone wrong: “A jury in Alabama was called to try a poor farmer charged with stealing a mule from a rich one. The jury's first verdict was: ‘Not guilty, provided he returns the mule’. The judge refused to accept the verdict…. The jury … rendered a second verdict: ‘Not guilty, but he has to return the mule.’ The judge again rejected the verdict … the jury came back with a third verdict, which the judge finally accepted: ‘Not guilty, let him keep the damn mule.'”Google Scholar

¹³⁰ Elaine Scarry, Speech Acts in Criminal Cases, in Law's Stories, supra note 16, at 165–74.Google Scholar

¹³¹ Friedman, Lawrence M., Law, Lawyers, and Popular Culture, 98 Yale L.J. 1579, 1595 (1989), “A trial is also a narrative competition.”Google Scholar

¹³² See Brooks, supra note 73, at 417, reflecting on the O.J. Simpson case,Google Scholar

All the “rules of evidence”—including the famous “exclusionary rule” barring illegally seized evidence—touch on the issue of rule-governed storytelling. The judge must know and enforce these rules. And when stories are culled from the trial record and retold on the appellate level, it is in order to evaluate their conformity to the rules. Appellate courts are not supposed to second-guess the “triers of facts” in the case, but to judge the framework in which the verdict was reached.“Google Scholar

In Europe, the term that is generally used is “fruits of a poisonous tree”.Google Scholar

¹³³ “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law,” states Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It rests on classical principles from Roman law: nemo tenetur prodere se ipsum (no one is obliged to incriminate himself); nemo tenetur edere contra se (no one is obliged to speak against himself); and nemo tenetur se accusare (no one is obliged to accuse himself). As a legal right this right is indissolubly connected to the rule of law in a democratic society in the protection that it guarantees against unlawful intrusions into people's lives. As a prohibition against putting pressure upon a person suspected of having committed a crime, it refers to the deference for the defendant in criminal proceedings when it comes to respecting human dignity in the sense of both the free will and physical and mental integrity. See the Miranda rule in American law, Miranda v. Arizona, 384 U.S. 435 (1966).Google Scholar

¹³⁴ The point is made by the late Witteveen, Willem J. in his analysis of Pirandello's short story “The Truth”: this is the story of the farmer Tararà who kills his wife after he catches her in bed with another man; he admits that he knew about the affair but did not act on this knowledge until his wife dishonored him by having sex in the marital home. Witteveen, Willem J., De waarheid, onschuldig opgebiecht, in Verbeeldingsmacht 277 (Witteveen and Sanne Taekema eds., 2000).Google Scholar

¹³⁵ E.g., Eur. Court H.R. Krumpholz v. Austria, Final judgment of 18 March 2010, Application no. 13201/05. Note that when the witness statement is that of an expert, the narrative relevance and the credibility are often judged higher.Google Scholar

¹³⁶ I adopt the term libido puniendi from Damaška, Mirjan R., The Competing Visions of Fairness, 36 N.C. J. Int'l L. & Com. Reg. 365, 369 (2011).Google Scholar

¹³⁷ Maria Aristodemou, Law and Literature, Journeys from Her to Eternity 3 (2000), “narratives are not neutral: they investigate but also suggest, create, and legislate meanings.”Google Scholar

¹³⁸ Benjamin Nathan Cardozo, The Nature of the Judicial Process 126 (1921).Google Scholar