Trust and Social Power
23 Pages Posted: 20 Nov 2012
Date Written: November 19, 2012
A sophisticated account of narratives in law must provide for the complex relationships between hearers and storytellers. In this paper, I consider the failures of imagination that are a necessary risk tied to the use of empathetic reasoning in legal proceedings. I will contend that toleration, as a form of restraint, may actually prevent a jurist from accepting narratives as truthful. This is not to say that identifying with a storyteller or sympathising with her situation are vices; on the contrary these can be desirable – even laudable – reactions, but like taking mercy or pitying, sympathy shares something with toleration in that these reactions on the part of the jurist may be uncomfortable for the storyteller. Thus rightly implied, empathetic reasoning must not be confused with toleration. I further develop a definition of narrative injustice – the use of socially-situated stereotypes to enact a deficit of credibility whereby a narrator may lack believability through no fault of her own. As a distinctly epistemological claim, my definition of narrative injustice pulls on critical and feminist theory to examine how the narratives of outsiders are often left out of legal proceedings.
Keywords: toleration, empathy, legal imagination, narratives, legal narrative, legal storytelling
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