ABSTRACT
A great deal of legal writing tends to obscure the reality that this is a very human process. Common law jurists, such as Ronald Dworkin,3 may define the common law as the depository of a society’s legal and political commitment to principle but others champion the joy of encountering the vagaries of human existence and story telling:
Law’s collective experience is recounted through narrative and the power of the state to apply coercion in giving effect to legal judgment is in turn judged, in part at least, by the aptness of that application in light of the events recounted in narrative. The appeal to justice, the application of logic, the reference to past ‘cases’ (legal precedents), the structuring of arguments so that they are legally relevant, so that they fit the matter at hand, so that they carry substantive weight, is located amidst and between many factors. We may mention for example, the court hierarchy, the adversarial profession, the variability of audiences, and one may start with the imbalance of resources, both material and intellectual of the parties (the State against an individual defendant, a well-resourced insurance company against an individual on state pension). A great deal of this richness is lost in any legal education that deals with textbooks, where, in the name of a positivist science of law, cases are reduced to one-line catchphrases, where we are told that such and such a case stands for a particular rule or interpretation of principle. The desire to present the full ‘syllabus’ leads to teaching the width of contract law, or insurance law, or of the law of Torts, a teaching that runs against the desire to show depth, to uncover how, where and when, a principle came out of the ‘swamp’ of law’s existence in social life.5 By contrast, problem-based modes of learning start from a factual scenario and cast the student(s) in the semi-professional role of legal advisors, asked to research and reconstruct the social situation into arguments, propositions in legal discourse that strive to command attention as valid assertions to conclude the argument. The successful conclusion is one that best fits with the collective memory of law’s enterprise, but this memory may be of tactics, of procedure, of the actual and not the ideal which may manifest itself in the conclusion that the outcome fits with what the law is, but is not ‘just’. Law’s stories are always partial, incomplete and never fully innocent. Law’s storytelling is purposeful, undertaken within constraints of time, finance and the vagrancies of the adversarial profession. There is no one story, although only one story may be told (and how that story, and only that story surfaced, was allowed is again another story). The choices may reveal an ongoing and constant contest between shifting narratives about the role of and claims of law, government, political and social interests and identities. The resultant decision, the decided case, is also not a simple plain fact; its holding is interpreted and in the hands of future lawyers may be confined, extended, distinguished or even overturned. A particular legal case may be formally located in terms of historical categories, such as forms of ‘trust’ recognised in law, but these themselves are presented in argumentative propositions structured in narrative (lawyers may say that such and such judge got it wrong, and they got it wrong because they listened to that argument, gave weight to this or that specific consideration, but if they had read the story of the development of the principles in this
area better, then they would have …). Understood thus the appeal of law’s experience is neither logical (analytical power) nor empirical (grasp of facts or secure reference) but historical.
