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LAW, FACT AND NARRATIVE COHERENCE

PREFACE

	This book argues that structural semiotics provides crucial 
insights which may enrich both our theoretical accounts of legal 
phenomena and our observation and description of the phenomena 
themselves.  Two themes run throughout: first, that we should 
consider seriously the implications of linguistic scepticism in 
general, and doubts about the status and place of "reference" in 
particular; second, that abandonment of the reification of law as 
an object of study, and substitution of a discursive framework, 
leads to an appreciation of the multiplicity and complexity of 
signifying practices within what we conventionally call a "legal 
system".  The argument is pursued primarily through consideration 
of one particular legal phenomenon - adjudication in court.  For 
many, this has achieved the status of the paradigm of legal 
activity - and this, paradoxically, as much as a result of the 
work of the American "Legal Realists" as of traditional 
positivists.  The account that follows puts into relief the 
complexity of this activity of adjudication, in contrast to the 
formalist account provided by the theory of the "normative  
syllogism".  This complexity consists not merely in the different 
signifying practices encountered in the many different 
interactional contexts which make up this "activity"; it is consti
tuted also by the inevitable involvement within these discursive 
practices of nonlegal structures of understanding. In short, 
"narrative coherence" structures the intelligibility of both fact and 
law in the adjudicatory process.
	Chapter One sets the scene.  It commences with some notes on 
Anglo-American evidentiary practices.  Some practitioners endorse 
the "polemic" image of the trial as a ritualised battle, but at the 
same time affirm the importance of narrative structures in forensic 
rhetoric.  Jerome Frank, the leading American "fact sceptic", sub-
scribes to the former image, and also puts forward a "holistic" 
view of fact construction within the trial.  However, this turns out 
not to depart substantially from traditional linguistic and 
epistemological positions.  In particular, it assumes the correctness 
of the conventional "correspondence" theory of truth.  In recent 
years, there have been signs of the emergence of an alternative 
model, often setting out its stall under the banner of "narrative 
coherence" (narrative being understood, broadly, as actions 
arranged in a time sequence and forming a meaningful totality1).  
Lawyers have used it to account for the justifiability of fact-
finding (MacCormick) and particularly of the making of inferences 
in fact-finding (Twining); van Roermund has adumbrated a 
narrative theory of law-application; James Boyd White sees law 
as a literary, compositional exercise (in a quite different way from 
Dworkin's).  I outline Greimasian narratology, which I argue can 
provide a more comprehensive theoretical alternative to the 
correspondence theory (which MacCormick and Twining, in any 
event, are reluctant to abandon).  Particular importance, I suggest, 
attaches to a strategy which may be called the "narrativisation 
of pragmatics".  It is beautifully exemplified in the Common Law 
trial process, but has a universal application.  Truth is a function 
not of discourse, but of the enunciation of discourse.  If we cannot 
judge whether the semantic content of stories ("factual" or 
"fictional") is true, we can at least judge who we think is telling 
the truth, in the sense of most adequately persuading us that s/he 
is fulfilling the sincerity conditions of the act of making a truth-
claim.  We make such judgments by narrativising the pragmatics 
of the act of enunciation.  There, we have to ask who has 
succeeded best in the activity of persuasion, and we have narr-
ative models to guide us in making such judgments.  This is not to 
say that truth is exclusively a matter of presentation.  
Plausibility enters into the assessment of both the semantic and 
the pragmatic levels, and such plausibility (for both) is 
constructed through social structures of understanding (which are 
capable of conveying meaning insofar as they manifest universal 
structures of signification).  
	Chapter Two considers the normative syllogism, a 
formalisation of the process of (deductively) applying law to 
facts.  For ideological reasons, this is not a "pure" syllogism, since 
(unlike the logical model) it involves a crucial temporal 
dimension.  However, for it to work in this way, it requires a 
conception of "reference" wedded to a correspondence theory of 
truth.  I argue from the account of reference provided by Strawson, 
and from debates within the analytical philosophy of language, 
that the syllogism cannot work in this way.  Moreover, from the 
viewpoint of discursive semiotics, the normative syllogism is a 
justificatory discourse which attributes a particular status to 
adjudicatory discourse: it cannot actually "refer" to it, in the sense 
of corresponding to the external reality of adjudicatory discourse.
	Chapter Three offers a critical consideration of the theory of 
Bennett and Feldman as to construction of facts within the 
courtroom.  Their treatment of bias and of courtroom strategies 
indicates an overly reductive, "semantic" reading, resulting from 
an underlying ambivalence regarding the concept of truth.  It also 
fails to attend to the complexity of psychological processes 
involved in the activity of testifying.  Their theory can be 
improved, I suggest, consistently with their overall approach, by 
incorporating narrative accounts of these psychological processes, 
by adopting a non-referential view of language, and by insisting 
upon separate consideration of the narrative construction of the 
pragmatics of the trial.
	In Chapter Four, I consider the construction and application of 
rules and attempt a systematic application of the narrative 
models used in Chapter Three to explain the construction of fact.  I 
argue on the basis of historical evidence that rules are themselves 
meaningful as socially-constructed narratives, accompanied by 
particular (and increasingly institutionalised) forms of approval 
or disapproval.  The fact that legal rules have tended to become, 
in Western legal systems, increasingly abstract and conceptualised 
tells us more about the pragmatics of rule-telling (its increasing 
bureaucratisation and specialisation) than about the nature of 
rules themselves.  Some modern examples are given of problems 
which arise when such specialised dogmatics get out of tune with 
their underlying narrative frameworks.  I suggest that it is the 
interplay of such narrative patterns (and the associations of 
binary oppositional categories within them) which also explains 
why some cases present themselves as "easy" while others appear 
"hard" - a question prior to that of either decision-making or 
justification of decision-making in such cases.  Applying my 
conception of the "narrativisation of pragmatics", I conclude the 
chapter with a formalisation of the processing of a point of law 
which may arise incidentally during a trial - an "objection".
	The theory here proposed makes possible a new account of the 
relations between "fact" and "law" - one quite different from that 
provided by the formalist account of the normative syllogism.  
Here, "law" and "fact" are reduced to the same level - of 
narrative structures, and the process of "application" becomes one 
of comparison.  But comparison is necessarily a more loose and 
opaque process than the deductive aspect of the normative 
syllogism (which gives the latter so much of its ideological force).  
	Chapter Five turns to a critical account of the traditional ass-
umptions behind "interpretation", viewed as a justificatory disc-
ourse deployed particularly in "hard cases".  These assumptions 
relate to (1) the unity of the legal system; (2) the relationship 
between decision-making and justification; and (3) the autonomy of 
legal reasoning.  The alternative model here proposed rejects the 
traditional assumptions on all three points.  I consider each in 
turn, and offer suggestions as to how the plausibility of the 
traditional view is constructed.  The issues, I suggest, are much 
broader than is represented in much modern interpretation theory.  
The reason for what I see as an over-emphasis on the phenomenon 
of "interpretation" resides in a neglect or simplification of the 
pragmatic processes involved.  With the "narrativisation of 
pragmatics", we may be able to provide a more complete and 
integrated view of what is involved.
	Chapter Six turns to some wider theoretical issues.  Semiotic 
approaches to law have sometimes been criticized as themselves 
being a species of "formalism", and for neglecting "history" 
(meaning both the diachronic aspects of discourse in general, and 
the particular history of the production of particular discourses).  
For such critics, "history" itself seems to appear as unproblematic.  
I offer here the suggestion that those narrative conceptions of 
truth, and of truth-production, which emerge from my analysis of 
the process of adjudication, may themselves be applicable to 
"history".  There, too, we have analogues to "facts", "laws", and 
"application of law to facts".  Moreover, the historian as much as 
the protagonist in litigation cannot avoid the narrativisation of 
the pragmatics of his or her own discourse.  The attempt of the 
historian to persuade an audience that s/he is telling the truth 
may be differently institutionalised from that of the advocate or 
the witness, but it is institutionalised nonetheless.  I suggest here 
that the historiography of Hayden White, though rightly 
acclaimed as theoretically sensitive, is internally ambivalent on 
the underlying semiotic issues.  White makes the same kinds of 
compromise as are to be observed in the work of Bennett and 
Feldman.
	By way of conclusion, Chapter Seven discusses the place of 
legal semiotics in modern legal philosophy.  In particular, it 
considers the criticism of legal semiotics as a form of legal 
positivism, and the relationships between legal semiotics, 
Critical Legal Studies and postmodernist Deconstruction.  The 
climate of debate in contemporary radical circles might suggest 
that legal semiotics suffers from a double handicap: first, that it 
is insufficiently political; second, that it might seem to lead (at 
least in the version here presented) to the kind of "nihilism" of 
which deconstruction is sometimes accused.  I argue against both 
these views.  I suggest that legal semiotics can contribute very 
substantially to the enterprise of critical legal studies, even if it 
is not an "essentially" transformative discourse.  At the same time, 
by endorsing a conception of truth-telling based upon notions of 
personal integrity, it may avoid some of the worst excesses of 
postmodernism.
	In the last two chapters, I adumbrate a concept of truth as 
"integrity".  This is integrity in relation to one's own subjectivity, 
having made as honest and thorough an investigation of the object 
of study as one is capable of doing.  Such integrity extends to the 
pragmatics of one's own act of enunciation, as well as the 
semantics of the enunciation itself.  In this spirit, I conclude this 
introduction with a few remarks regarding the status of this book.
	The issue may be posed by asking in what "voice" the language 
is couched.  Is it intended to be taken seriously, or is it play, or 
even a joke?  I can envisage readers who might take it in any one 
of these voices.  Those who find its assumptions (regarding law 
and language) as preposterous and inconceivable, might read it as 
a joke designed to show, by an elaborate reductio ad absurdum, the 
facile character of some modern intellectual fashions.  Others 
might take it as playful: an interesting idea (narrative coherence) 
has been taken from one context (the construction of facts) and 
applied in a series of other, inappropriate contexts (construction 
and application of law, historiography, and theorising more 
generally), as a playful exercise, designed primarily to entertain.  
Without excluding the occasional playful remark, I have to say 
that the overall intention is serious.  But what kind of seriousness 
is here involved?  As I hope will be clear even from this 
Introduction, no claims are here being made to "objectivity" or 
"scientificity" in anything like their traditional senses.  What I 
have done is to assume (not argue) the validity of a small number 
of initial premises, and then seek systematically to apply these 
premises in contexts which appear at first sight to be 
inappropriate, but where such application is warranted by the 
scope of the claims made in the initial assumptions.  Specifically, 
I have assumed the correctness of a non-referential theory of 
language, even though offering a "Trojan horse" argument against 
the normative syllogism from within the referentialist camp; I 
have assumed the correctness of the Greimasian claim to the 
existence of universal structures of signification, and of the semio-
narrative formulation of (part of) those basic structures of 
signification; and I have assumed also the basic correctness of the 
theory of narrative frameworks, as a description of the individual 
acquisition and deployment of social knowledge.  Combining these 
elements together has generated a conception which I have called 
the "narrativisation of pragmatics".  I have then sought to apply 
these ideas to all the principal components of the activity of 
adjudication, and indeed to a form of discourse, history, which is 
sometimes put forward as in opposition to discursive semiotics.  
The type of seriousness with which these claims are put forward 
is that of the "thought-experiment".  I have drawn out the 
implications of a particular theoretical model.  I have not sought 
to verify the results, even in terms of such "verification" as is 
compatible with the notion of truth as integrity which I 
adumbrate in these pages.  I do, however, indicate some areas of 
legal research, specifically at the interface between semiotics, 
sociology and social psychology, where I consider that empirical 
work will enrich our understanding of the legal process.
	But what kind of understanding should we seek?  What is the 
purpose of the enterprise?  Is it "trashing", reformist, or legitima-
tory of present practices?  In effect, the argument of this book is 
all of these - at different points.  It is trashing in respect of 
certain ideological claims, which appear to be unsustainable even 
in terms of traditional philosophical assumptions; it is reformist 
insofar as it implies that some practices of adjudication inhibit 
access to a full narrative account (as in some exclusionary rules, 
and some continental practices of evidence-taking); it is 
legitimatory insofar as present practices do appear to enable 
adjudicators to construct a "whole" picture.  The fact that this 
project can be simultaneously all of these, indicates that it is 
located, primarily, at the epistemological level.  Above all, the 
value of "integrity" requires each subject to indulge in as honest, 
thorough and critical an introspection upon the basis of his/her 
own perceptions as he or she is capable.  To say that is not to 
revert to some arbitrary subjectivity.  For the bases of the subject's 
perception are social and human, as well as individual.  "Social" 
includes internalisation of the values not only of a particular prof-
essional group, but also of society as a whole.  This book, then, 
endorses the wisdom of the Delphic oracle, and in so doing seeks 
to make a small contribution to the humility of lawyers.


	

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