Speaking of Stories and Law

Abstract

In a recent article about the relationship of narrative to law, Stephen Paskey gives us much food for thought. I applaud much of the article. Most importantly, I agree with what may be the article’s key stance — that “stories are central to law and legal reasoning in ways that lawyers and legal scholars have yet to fully explore.” As Paskey correctly points out, “stories are not simply a tool for persuasion: they are embedded in the structure of law itself. In a very literal sense, no one can make laws or practice law without telling stories.” From its title (The Law is Made of Stories) to its final paragraph and on nearly every intervening page, the article reminds us that law and narrative are inextricably linked. The article concludes that “the law is made of both stories and rules.” I couldn’t agree more.

On other pages, The Law is Made of Stories seems to take a different position — not that rules are made of stories but that rules are stories. Stories and rules are the same thing, the article asserts, and any perceived differences are simply illusory matters of form. The article observes that no one else has yet staked out this bold position, and as far as I know, that claim is true. After characterizing existing narrative scholarship as having “stopped short” of collapsing distinctions between rules and stories, the article redefines the topic’s key terms: “rules,” “stories,” “stock stories,” and “narrative reasoning.” It then applies these new definitions to a set of examples, aiming to show that any perceived dichotomy between rules and stories is false. These three moves — the characterization of existing scholarship, the instrumental redefinition of key terms, and the set of examples offered to debunk distinctions — give me pause. What follows are some thoughts, respectfully offered as a concurring opinion, about these moves and about the points of disagreement between Paskey’s The Law is Made of Stories and my own earlier work in The Convergence of Analogical and Dialectic Imaginations in Legal Discourse.

Keywords: legal writing, narrative, storytelling