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Suppose that Lizzie Borden was truly (not just legally) innocent of the murder of her father and stepmother. And suppose further that she was nonetheless convicted of these crimes and eventually hung. And suppose still further that it subsequently became clear from interviews and other evidence that the jury had been in part swayed by prosecution's characterization o women as by their nature more ferocious than men, more cunning, and mo inclined to nurse a grudge. Here would be a situation in which the power of the culture itself, residing in the deeply inculcated beliefs of a dominant element of that culture (from which were drawn the male members of the jury), would have prevailed without at all violating the letter of the law. We have made a number of suppositions in this instance, but there are many who would argue that fidelity to the law is no guarantee that those on the margins of cultural power - those marked by race, ethnicity, sex, sexual inclination, religion, or some other sign - will achieve justice in a way that comports not just with the letter of the law but also with democratic ideals of fairness.
How would you change such a state of affairs? One way, of course, would be to change the legal system so that women and others on the margins of power are included in juries. Change the audience for these narrative contests, in other words, by enlarging the pool from which it is drawn. And this has happened, though it is not so much a revolution as a greater fidelity to the original US constitutional right to be tried by a jury of one's peers. But another way to lessen the power of cultural assumptions in these legal contests would be to change the audience by changing the way it thinks. And since the prejudicial types that play a role in judicial unfairness are embedded in cultural masterplots, it has been argued that the way to make a deep cultural transformation is through the dissemination of counter-narratives, narratives that undermine or counterbalance the dominant masterplots of a culture and thus weaken the power of prejudicial types. Given how throughly narrative forms saturate our thinking about the world, it would seem logical that stories of the disempowered would be excellent instruments of cultural transformation. In the last couple of decades, two movements, Critical Legal Studies and Critical Race Theory, have both stressed the power of narrative to mitigate the kinds of injustice to which the legal system is, or has been, blind — kinds of injustice like that of my suppositional Lizzie Borden. Broadly, "the storytelling movement" in legal study is founded on the belief that
[n]arrative has the unique ability to embody the concrete experience of individuals and communities, to make other voices heard, to contest the very assumptions of legal judgment. Narrative is thus a form of countermajoritarian argument, a genre for oppositionists intent on showing up the exclusions that occur in legal business-as-usual - a way of saying, you cannot understand until you have listened to our story.2
A trial, then, for all the narrative contestation that goes on within it, may still exclude important counter-narratives simply by cultural inertia. What is advocated by the storytelling movement is the dissemination of narratives that would enlarge the ways in which a culture thinks about the people within it, opening up possibilities of justice that a mere following of the rules would not allow.
The argument that has raged over the storytelling movement has focused on several interrelated issues. One is the extent to which the legal system should broaden the range of stories allowed into legal decision-making. Should, for example, the lawyer defending my suppositional Lizzie Borden be allowed to call up witnesses to give first-person narrative accounts of how they have been victimized by gender stereotyping? If so how many? Are there any limits to what they may include and how they narrate? Must they typify? How is the typical determined? Another issue is whether or not stories should, or for that matter could, be used as a basis for law. As Martha Minow has argued, "commitments to narrative revel in particularity, difference, and resistance to generalization." As such, they are a risky foundation for law, which is a structure of propositions and therefore necessarily abstract: "Stories alone do not articulate principles likely to provide consistency in generalization to guide future action; stories do not generate guides for what to heed or what additional stories to elicit. Stories on their own offer little guidance for evaluating competing stories."3 In reply, it is argued that precisely because of the hard abstractness of the law we need the human leavening that narrative allows. This is implicitly acknowledged already in the sentencing phase of capital cases. Because the life of the accused is at stake in such cases, there is considerable latitude in allowing the introduction of narrative material that might mitigate the argument for capital punishment. A third issue turns on just how completely we are the prisoners of the masterplots we grow up with. In the extreme position, our reason is helpless when it comes to changing the predispositions that have been loaded into our minds through stories. It is therefore only through stories that these predispositions can be changed. On the other side, it is argued that, powerful as stories can be, we are also amenable to reason. Indeed, because stories can be so powerful, working as they do directly on our emotions, it is essential that we give final authority to rational argument.
As of this writing, both sides in this argument are still quite far from agreement. And it may well be that there can be no final consensus about where lines can or should be drawn in these issues. This is yet another field with many gray areas. Of course, just because there are gray areas and there may be no hope in gaining some final exactitude is no argument against taking the issues seriously and trying to sort out answers.
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|1. The Cambridge Economic History of Europe. Cambridge: Cambridge U. P, 1977. Вып. 2nd ed. 1 с Deutsches Handwerk in Spätmittelalter und Früher Neuzeit: Sozialgeschichte, Volkskunde, Literaturgeschichte. Göttingen: O||The Ivan Franko National University of L’viv (Ukraine) the Ukranian Catholic University|
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