The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules

Legal Comm. & Rhetoric: JALWD, vol. 11 (Fall 2014, Forthcoming)

SUNY Buffalo Legal Studies Research Paper No. 2014-031

31 Pages Posted: 1 Jun 2014 Last revised: 19 Jul 2014

See all articles by Stephen Paskey

Stephen Paskey

State University of New York (SUNY) at Buffalo, Law School

Date Written: May 30, 2014

Abstract

When lawyers think of legal analysis, they think chiefly of logic and reason. Stories are secondary. As Michael Smith explains, our legal system “is not founded on narrative reasoning” but on “a commitment to the rule of law.” The article suggests that this dichotomy between “rule-based reasoning” and “narrative reasoning” is false, and that narrative and stories are central to legal reasoning, including rule-based reasoning. In doing so, the article uses literary narrative theory to show that every governing legal rule has the structure of a “stock story”: the elements of the rule correspond to elements of a story. It follows that lawyers do not rely on stories simply because they are persuasive. They do so because a story is literally embedded in the structure of governing rules, and those rules can be satisfied only by telling a story. Thus, many analytical moves we label “rule-based reasoning” can be understood as a type of narrative reasoning, in which a client’s story is compared to and contrasted with the stock story embedded in the rule.

Keywords: narrative, storytelling, legal theory, legal reasoning

Suggested Citation

Paskey, Stephen, The Law is Made of Stories: Erasing the False Dichotomy between Stories and Legal Rules (May 30, 2014). Legal Comm. & Rhetoric: JALWD, vol. 11 (Fall 2014, Forthcoming); SUNY Buffalo Legal Studies Research Paper No. 2014-031. Available at SSRN: https://ssrn.com/abstract=2443831

Stephen Paskey (Contact Author)

State University of New York (SUNY) at Buffalo, Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States

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