106 Mark Washofs

evaluation rests upon assumptions as to the nature of law and of legal reasoning that are not universally shared. The legal storytelling movement questions these assumptions and suggests that they, like the governing assumptions of those who posit a view of law that lies outside the scholarly mainstream, are ultimately grounded in stories, in narrative constructions of social reality and of legal relevance.”

The foregoing brief survey hardly does justice to the conflicting positions on the subject of narrative jurisprudence. While I have no desire to try to decide which view— that of the “narrativists” or of the“mainstream scholars”— has the better of the debate, the discussion yields three points that will be crucial to my discussion of the Ettlinger responsum and of some related rabbinical decisions. First, it suggests to us that story— in this case, Katz's “legal fiction”— is as much a part of the law as are hard and fast “black-letter” rules. The very definition of“law” is the issue here, and while one need not agree with the more extreme views of the “narrativists,” it is difficult to deny the crucial role that narrative plays in legal discourse. In other words, I would not exclude 2 statement from the category of“law” simply because it is communicated in the form of a story rather than a syllogism. Second, the disputes in the literature over narrative jurisprudence highlight the extent to which the ideal of legal objectivity has become a matter of deep controversy. What one side holds to be the settled meaning of the law has become, in the view of the other side, a narrative structure imposed upon the law by the dominant social and political elites. The third point is that, even if there is no objective systemic criterion by which to evaluate and to measure the truth claims of a legal narrative, it does not follow that no such standard exists. On the contrary: the adequacy of legal narrative, like the adequacy of any sort of legal statement, is judged in the crucible of rhetoric, by which I mean the persuasive discourse by which jurists construct their world. It is through this rhetoric, this language of argument, that they test, contest, and establish meaning within their legal community.’