The Analysis of Legal Cases

A Narrative Approach

Flora Di Donato

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351839822
• Edition: 1
• Topic: Lingue e linguistica
• Subtopic: Studi sulla comunicazione

This book examines the roles played by narrative and culture in the construction of legal cases and their resolution. It is articulated in two parts. Part I recalls epistemological turns in legal thinking as it moves from theory to practice in order to show how facts are constructed within the legal process. By combining interdisciplinary paradigms and methods, the work analyses the evolution of facts from their expression by the client to their translation within the lawyer-client relationship and the subsequent decision of the judge, focusing on the dynamic activity of narrative construction among the key actors: client, lawyer and judge. Part II expands the scientific framework toward a law-and-culture-oriented perspective, illustrating how legal stories come about in the fabric of the authentic dimensions of everyday life. The book stresses the capacity of laypeople, who in this activity are equated with clients, to shape the law, dealing not just with formal rules, but also with implicit or customary rules, in given contexts. By including the illustration of cases concerning vulnerable clients, it lays the foundations for developing a socio-clinical research programme, whose aims including enabling lay and expert actors to meet for the purposes of improving forms of collective narrations and generating more just legal systems.

Part I
Theoretical and methodological frameworks

1 Culture, narrative and law

With the aim of constructing a theoretical framework for cases analysis, this chapter stresses the works of cultural psychologists, philosophers, anthropologists, literary critics and linguists, contributing to highlighting the nexus between mind, culture and narrative and to the development and improvement of the narrative turn in legal scholarship since the 1980s.

By conducting an extensive analysis of certain characteristics of narrative, such as those advanced by an interdisciplinary array of scholars over the centuries, the chapter proposes a definition of the term ‘story’ that lends itself to use in conducting a plot analysis in the field of law.

1. What is reality? What is a fact?

I lay no claim to any putative ability to furnish an indisputable answer to a question as complex as this, one involved with the very mystery of the existence of the world and as ancient as the tradition of philosophical thought, from the pre-Socratics to the post-moderns. And yet, as some parts of the human and social sciences have demonstrated, especially since the middle of the twentieth century, the question ‘What is reality?’ can be broken down tangibly into the question ‘How can we know reality?’.

In this way, without denying the difference between what is real and what we can get to know (Putnam, 2012), the question is shifted from one of ontology to one of epistemology. To a significant extent, in fact, it is research conducted by human sciences that has demonstrated the importance of studying the methods whereby reality is constructed by those who inhabit it, in a process that has little or nothing to do with the passive acquisition of information. It has taken centuries of philosophy to debunk the kind of naïve realism that would have us believe that reality is something independent of the act of perceiving it, that it is a given that is situated somewhere, just waiting to be known.

When the question then arises of approaching legal and judicial reality, an analysis that fails to grasp its socially constructed nature may give rise to further observations that turn out to be simplifications and illusory. In particular, with regard to the process of acquiring facts in the course of legal proceedings, although the majority of contemporary legal theorists are prepared to acknowledge a constructed component in this process, rarely does one come across any exhaustive investigations aimed at incorporating theoretical thinking and analyses of legal and judicial practice for the purpose of demonstrating the extent to which what is defined as a “fact” is actually the result of a process of classification of reality. This is a process that is conditioned by apparently objective dimensions – such as the institutional and legal context – and apparently subjective dimensions – such as sometimes diverging perceptions and representations of the reality to which the parties refer in their legal and judicial proceedings.

Thanks to Searle’s theories (1969), for example, we have already known for some time that many of the facts that have to be proven in a court of law do not consist in empirical events, but can be classified under the heading of what he calls “institutional facts”. Money, the age of majority, marriage and adultery exist as a consequence of legal, political, social and institutional conventions that confer an institutionally significant qualification on events that would otherwise be juridically irrelevant. At the same time, we are less used to thinking that what we call ‘natural events’ may also be analysed – over and above their empirical existence – as constructions or, maybe more precisely, as reconstructions. We have recent analyses and in particular the narrative turn (Kreiswirth, 2008, pp. 377–382) to thank for our understanding that it is not the material nature of the facts that is involved in legal proceedings, but their nature as linguistic statements, as some have defined them (Taruffo, 2009), or more explicitly as narrations (Amsterdam and Bruner, 2000; Di Donato, 2008). These narrations are constructed ex post by the parties as a function of the version of reality that they intend to convey as the truth in the legal dispute in question. They are mediated by a series of factors: by the normative, cultural and institutional context, by the roles played by the parties and by their emotions, perceptions, cultural backgrounds etc.

As I will explain fully in this chapter and in the following one, starting in the 1980s, in fact, the changeover in favour of narrative understandings of the law facilitated the awareness that “to narrate events is not simply to recount them as they occurred, but to impose an order, perhaps to embellish or invent. A narrative is a construction, an artefact” (Binder and Weisberg, 2000, p. 205). This belief is not confined to the literary realm, as narrative is a basic cultural tool whose purpose is to make sense of experience to construct meanings (Bruner, 1990). Furthermore, we have now understood that narrating people’s stories and the impact that the application of the law can have on their lives can be considered to be a human strategy and a cure (Charon, 2006). A strategy that is “in no way inferior to, ‘scientific’ modes of explanation that characterise phenomena as instances of general covering law” (Herman et al., 2008, p. X).

‘Narrative’ has thus become one of the most overused terms in contemporary scientific language, which is applied in a variety of different fields, such as literature, literary critique, philosophy and legal theory, with a growth of research and teaching activity. It has also generated a host of clichés and, according to some scholars, sometimes “academic cocktail party chit-chat” (Taruffo, 2009, p. 34). In consequence, by adopting the distingue frequenter method, this chapter sets out to favour a specific approach to studying legal narrations for answering the questions: What is a fact? How can it be perceived and known? How can it be translated in legal proceedings, transforming an everyday event into a judicial fact? This is the approach known as the “narrative construction of reality” (Bruner, 1991), elaborated in a specific field of social and cultural psychology and subsequently applied in the legal field (Amsterdam and Bruner, 2000). Since it is rooted in anthropological, philosophical and psychological conceptions and literary studies, the narrative construction of reality paradigm can help us understand how reality and meanings are constructed, how links of cause and time do not exist in nature, but are created by placing elements of fact in a narrative structure.

As pointed out also by Greta Olson, referring specifically to the theories of Jerome Bruner, theories of the mind are known to have become a key concern in narrative studies in the last thirty years, contributing to developing “perhaps the single most important issue in narratology” (2014, p. 42). Narratology – the attempt to theorise narrative or promote it as an analytical instrument (Kreiswirth, 2008, pp. 379–380) – involves the more general process of how humans make sense of their world through storytelling:

Narrative studies of law and medicine depart from the insight that humans make sense of their word via stories, a position associated with the work of the psychologist Jerome Bruner (1991). This has led, for instance, to investigations of the role of storytelling in the creation of identity and in psychic and physical healing processes […]. In the field known as Law and Literature, narrative elements are used to read or decode legal texts and legal iconography […].

(Olson, 2014, p. 13)

Thus, in an attempt to provide a theoretical grounding necessary for demonstrating how the construction of factual narrations comes about in the framework of a legal process, this chapter first reconstructs Bruner’s perspective about mind and culture (par. 2); secondly, it emphasises the functions of language and how it acts as a bridge between human action and the surrounding social context (par. 3); thirdly, it analyses some of the leading characteristics of narration (par. 4), thereby furnishing a definition of a legal story (par. 5) and, finally, it argues that the culturalist approach is thought-provoking for a culturally situated narrative case analysis (par. 6).

2. A constructivist philosophy of mind and culture: Jerome Bruner’s perspective

To introduce some topics of Bruner’s thinking, I start out from an interview I conducted with him in 2009. A basic question I put to Bruner concerned ways of approaching our knowledge of the world:

Flora:	How do we learn about the world?
Jerry:	I will tell you that what the world does when it impinges upon us is not to deliver reality, but to confirm or disconfirm some hypothesis that we are entertaining. This is what we call hypothesis theory – that we are always looking at the world with some hypothesis in mind. The mind is active, not passive. This view is in the European tradition of Act Psychology and of theorists like Heidegger and Husserl. It is not a passive view in the manner of the British associationists, but an active view.
	(Except from the interview with Bruner, Di Donato, 2009)

The first thing that emerges from Bruner’s answer is that the mind is active. It is not a mere receptor of information, as Descartes (1637) supposed, but frames hypotheses about the world. The main outcome of the sixties cognitive revolution, in which Bruner played a leading role, is thus the assumption that man actively selects and constructs experience. As Bruner than went on to say in the interview:

It was Tolman who provoked my interest in the purposive nature of cognition. I came increasingly to believe that the development of cognition was in the interest of testing hypotheses about the world, which made one very selective and in need of something to guide your selectivity. So what guides your selectivity? The culture you live in, of course: what you take to be ordinary, and you begin to work to confirm what you take to be ordinary.

(Except from the interview with Bruner, Di Donato, 2009)

What stands out from the very outset in this exchange is the crucial role played by culture in appraising the hypothesis about knowledge of the world. Reality and meaning are created in the framework of pertinent history and culture, not merely ‘discovered’. Human beings act on the basis of meanings they give to events or to other people’s actions.

It is no coincidence that Bruner (2003, p. 76) detects the first signs of constructivist thinking in Vico (1938), who extended the criterion of verum-factum to historical reality, to include the world that is constructed by man. Man is no passive spectator of the world, but can get to know it from the inside, since he himself plays a leading role in it. According to Vico, the individual is always inside history: it is history that produces knowledge (Bruner, 2003, p. 76).¹

1 Even so, Vico’s stance can be considered to be isolated for his time: he was the only philosopher in the late seventeenth and early eighteenth centuries who criticised both the empiricists and the rationalists (Löwith, 1989; Otto, 1992). On the contribution made by Vico and other Italian philosophers, such as Cattaneo, to cultural psychology, see Iannaccone and Smorti (2013).

The understanding of the mind as a tool for making the world was then later theorised by the celebrated Harvard philosopher Nelson Goodman, who influenced Bruner’s thought.

Drawing on Kant (1781/1855),²Goodman (1978; 1984) replaces the a priori with a process that witnesses the elaboration of new versions of the world from previous versions. He proposes a concept of the mind as a tool for making worlds. There is no such thing as a single real world that pre-exists and is independent of human mental activity and symbolic language. Worlds can be created by an artist’s cognitive activity (such as Joyce’s Ulysses), by that of scientists (such as geocentric theories) or by everyday life (common sense, made up of trains, potatoes and so on). All these worlds are made, but on the basis of data that we have accepted from others. Goodman’s approach allows the idea of an unchangeable, definitive world to wane, replacing it with a conception that he calls a “stipulation”, i.e. a process of elaboration within a symbolic system. This enables Goodman to account for the extraordinary variety of forms that reality can take, including the one offered by science.

2 In fact it was Kant who developed a form of ‘constructivism’, whereby what exists is a product of what is thought (Bruner, 2005, p. 119; Ferraris, 2012, pp. 146–147). As we know, Kant in his turn attributed his intuition to Hume’s (1739–1740) discovery that, rather than being attributable to events, certain relationships in the world – the emblematic example being the relationship between cause and effect – are the result of an inductive process.

A more radical stance is adopted by Bruner, who acknowledged Goodman’s fundamental merit for having contributed to introducing a concept of ‘mind’ construed as a tool for producing worlds, thus obliging psychology to study:

How mind and its mental processes transform the physical world through operations on ...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgements
• Introduction
• Part I Theoretical and methodological frameworks
• Part II Trajectories of case analysis
• Index