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Law and Narrative: An International Approach

Greta Olson (University of Freiburg

Narratology has arguably become a “master discipline” (Fludernik 47) for law-as-
literature. Increasingly, law and legal practices are analyzed using the elements of
stroytelling: questions of narrator, or witness, reliability decide the outcome of trials,
as do the manner in which narrattees (judges and jury members) receive and
reconstruct the often conflicting narratives they hear. Intentionality is invoked when
wills, contracts, and legislation are interpreted.
A problem with the adoption of narratological tools in analyses of law is that
the stories being rehashed are solely Anglo-American ones. Discussions of narrative
in the law commonly assume that all story-telling in courtrooms is of the adversarial
kind familiar from Anglo-American trials (Gerwitz 7). Yet a contest of stories aimed to
persuade the jury is not the narrative script that applies in trials in cultures with civil
law traditions; there judges also act as prosecutors, seeking to determine the ‘truth of
the matter’ and produce coherent legitimizing narratives (Gibbons 4). Similarly, much
law-as-literature work assumes the centrality of the US Constitution and its
interpretation by the Supreme Court. However, the British common law tradition
claims to rest on ‘unwritten’ origins. Another source of difference concerns the
narratives that inform protocols for legal interpretation and reasoning. With their
allegiance to the Roman tradition, civil law cultures do not argue analogically by
precedent as do common law ones. Rather, judgement is arrived at through a
process of deduction from the general abstract norms of written laws to particular
cases. The emphasis on rhetoric in the adversarial trial courtroom is replaced by a
focus on the ‘objective’ presentation of evidence.
This paper names differences between stories told in American, British, and
Continental legal cultures in an effort to de-Americanize prevailing modes of Law-
and-Literature scholarship. It works towards a comparative law-as-literature approach
that would note that most stories that law tells are not universal ones.

Works Cited
Fludernik, Monika. “Histories of Narrative Theory (II): From Structualism to the
Present.” A Companion to Narrative Theory. Ed. James Phelan and Peter J.
Rabinowitz. Malden, MA: Blackwell, 2005. 36-59.
Gerwitz, Paul. “Narrative and Rhetoric in Law.”’ Law’s Stories: Narrative and Rhetoric
in Law. Ed. Peter Brooks and Paul Gerwitz. New Haven: Yale University Press,
1996. 2-13.

Gibbons, John. Forensic Linguistics: An Introduction to Language in the Justice


System. Oxford: Blackwell, 2003.