For influential psychologist Jerome Bruner, the law was made of stories
Photo courtesy of Harvard University Press
One brief illustration
In previous Journal columns, I have discussed the importance of narrative techniques, including choice of “perspective or point of view” (see ABA Journal, October 2014). I quoted novelist and writing teacher David Lodge’s admonition: “The choice of point(s) of view from which the story is told is arguably the most important single decision that the [storyteller] has to make, for it fundamentally affects the way readers will respond emotionally and morally to the story.”
In Minding the Law, Bruner (and Amsterdam) go Lodge one better. Analyzing civil rights cases decided by the Supreme Court, the authors reveal how fundamental and axiomatic storytelling choices (including choice of narrative perspective) are outcome-determinative.
The authors explore the pre-Civil War fugitive slave case of Prigg v. Pennsylvania, an appeal from the criminal conviction of a slave catcher for capturing a fugitive slave without adhering to the procedures and protections established by Pennsylvania law. The fundamental conflict was between the federal Fugitive Slave Act, permitting the slave catcher to return the fugitive to the slave owner in the home state, and the procedures and protections provided to Pennsylvania residents under Pennsylvania criminal law.
In overturning Edward Prigg’s conviction, the high court adopted an omniscient (biblical) narrative perspective, set in an expansive historical time frame. Legal storytelling often involves telling stories about the law itself and not just the facts of the case. And here, the story told is an “origin” story about the law.
The court returns to the crucial historic compromise at Philadelphia’s Constitutional Convention between slave and free states and reaffirms the necessity of compromise of the various characters’ (states’) interests forming and guaranteeing a unitary federal government. The federal Fugitive Slave Act was purportedly adopted in service of this higher and exalted purpose.
The choice of a godlike omniscient perspective predetermined the narrative logic and fitness of the outcome of Justice Joseph Story’s, um, “story.” The result was never in doubt: A nonslaveholding state cannot punish as an abduction, “the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold.”
Absent the politics of the day, could the court have adopted a different narrative perspective and told a different tale about the relationship between the Constitution, the Fugitive Slave Act and Pennsylvania state law? Of course it could have.
It might have employed third-person “limited” perspective, set in the then-current day, telling the story of the slave seized by the slave catcher without recourse to laws applicable to all other residents of Pennsylvania.
Simply put, the plot would be about whether a slave catcher could take it upon himself, under the protection of the federal Fugitive Slave Act, to determine that another is a fugitive slave, human cargo for transportation back to another state, in violation of the procedures Pennsylvania has rightfully put in place to protect its residents from the horrific and unjustified consequences of kidnapping.
eyeing the outcome
Bruner believed that the storytelling choices we make give meaning to our lives and to the law as well. Today, as I look back on the story told by Justice Story in Prigg, I still see the billboard of T.J. Eckleburg looking down from above.
The eyes no longer belong to Jerry Bruner and are no longer ineluctably wise, all-seeing and beneficent. The faded image here is of Justice Story and the deadened eyes of the court behind him, upholding the evil of slave catching as it watches grimly over that Valley of Ashes, telling a law story that makes the outcome seem preordained.
Bruner’s and Amsterdam’s analysis suggests that the Supreme Court could have told a different story, one that might have helped to rescue and sustain a moral universe. Bruner’s work argues that our storytelling choices, including telling stories about the law, are ultimately creative moral and intellectual acts. And, if we are honest about it, these are necessary acts as well—and we can never simply defer to the power of an all-seeing God (or court, or fate, or even of an Eckleburg) to tell us the right thing to do.
Philip N. Meyer, a professor at Vermont Law School, is the author of Storytelling for Lawyers.
