Mark Washofsky NARRATIVE AND THE LAW

Let me begin with the term“legal fiction,” which Katz uses to minimize the legal substance of Ettlinger’s opinion. It is difficult to blame him for this. Many legal systems rely upon fictions— i.e., statements that legal writers make while knowing that they are not literally true— and this fact, in the eyes of the non-lawyer, is evidence at best of the law’s immaturity and at worst of its duplicity. Why will the law not call reality by its true name? The lawyer, on the other hand, recognizes that“fictional” language is endemic to legal discourse—“(t)he influence of the fiction extends to every department of the jurist’s activities”-- and is a necessary means by which jurists reconcile reality with the perceived constraints of the law and its conceptual world." Put perhaps over-simply, law is 2 language, and like any other language it is therefore artificial, a creation of a particular culture. The lawyer’s job is to translate the “facts” into the artificial language of the law, and this will always require the resort to devices that partake more of the world of literature than of empirical science. As one observer puts it, the legal fiction“is frequently a metaphorical way of expressing a truth.”” Law, like language itself, cannot do without metaphor, without figures of speech and literary device. When we encounter metaphor in legal writing, we are therefore dealing with law, with genuine legal discourse, and not with some lawyer's sleight-of-hand designed to disguise the truth.

The preceding remarks are informed by the insights of the “Law and Literature” movement, a loose association of academics ir law schools and elsewhere whose research focuses upon the possible points of contact between these two disciplines. Although thes scholars differ widely in their approaches, methodologies, and theoretical assumptions,'® many of them unite around the proposition that the activity of law is to a great extent a literary enterprise, 2 discourse, a mode of communication that works out its meanings