The Perplexity of Judges Becomes the Scholar's Opportunity

Abstract

Benjamin Cardozo, a great promoter of the concept of the unity of form and content in law and literature, once wrote that “[t]he perplexity of judges becomes the scholar's opportunity.” Cardozo's observation prompts my contribution on narratives in the law to this special issue on pluralities in the law because of the interrelation between law in academic theory and law in practice. My experience as a judge and an academic working in both the fields of law and literature, and law and humanities, allows me to provide a unique point of view. This Article argues the following: First, “to narrate is already to explain” as Paul Ricoeur wrote; the way in which the facts of a case are narrated largely determines the outcome of that case, therefore jurists need to develop and cherish narrative knowledge. Second, jurists should be imaginative about both the law and the people whose fates they determine when they use language to translate brute facts into the reality of the legal narrative. Third, this Article investigates and critically responds to literary theorists' various views on narrative and narratology, explaining which elements can be fruitfully incorporated into a legal narratology. I argue that jurists, while acting as authors and readers of legal narratives, all too often disregard what literary theory and the humanities more generally have to offer to legal practice, which is to highlight points of misunderstanding in our interdisciplinary literary-legal discussions. Here, too, scholarly opportunities remain to be seized for further clarification and theoretical elaboration of the bond of law and narrative.