Creating Legal Worlds: Story and Style in a Culture of Argument PDF
Preview Creating Legal Worlds: Story and Style in a Culture of Argument
CREATING LEGAL WORLDS Story and Style in a Culture of Argument This page intentionally left blank Creating Legal Worlds Story and Style in a Culture of Argument GREIG HENDERSON UNIVERSITY OF TORONTO PRESS Toronto Buffalo London © University of Toronto Press 2015 Toronto Buffalo London www.utppublishing.com Printed in the U.S.A. ISBN 978-1-4426-3708-5 Printed on acid-free, 100% post-consumer recycled paper with vegetable- based inks. Library and Archives Canada Cataloguing in Publication Henderson, Greig Edward, 1952–, author Creating legal worlds : story and style in a culture of argument / Greig Henderson. Includes bibliographical references and index. ISBN 978-1-4426-3708-5 (bound) 1. Law – Language. 2. Law and literature. 3. Forensic orations. 4. Rhetoric. I. Title. K213.H45 2015 340'.14 C2015-901217-1 This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario. University of Toronto Press acknowledges the financial support of the Government of Canada through the Canada Book Fund for its publishing activities. Contents Foreword vii Acknowledgments ix Introduction 3 1 The Cost of Persuasion: Figure, Story, and Eloquence in the Rhetoric of Judicial Discourse 16 2 Pure and Impure Styles: Formalism and Pragmatism in the Language of Decision Writing 38 3 The Perils of Analogy: Legal World-Making and Judicial Self- Fashioning in Palsgraf v. Long Island Railroad 58 4 Murder, They Wrote: The Rhetoric of Causation in the Language of the Law 74 5 Narrative Theory and the Art of Judgment: The Anatomy of a Supreme Court Decision 89 6 The Look in His Eyes: Rusk v. State, State v. Rusk 119 7 Rhetoric, Philosophy, and Law 144 Postscript: Rhetoric, Postmodernism, and Scepticism 157 Works Cited 169 Index 173 This page intentionally left blank Foreword Alfred North Whitehead, the mathematician and philosopher, said that nobody can be a good reasoner unless by constant practice he or she has realized the importance of getting hold of the big ideas and hang- ing on to them like grim death. In Creating Legal Worlds: Story and Style in a Culture of Argument, Greig Henderson gets hold of a big idea that is fundamental to good legal reasoning and good judgment writing. Lawyers and judges have long known the importance of storytelling to persuasion, but they have not often understood how or why it is that stories are so powerful and so effective. In Creating Legal Worlds, Profes- sor Henderson gives theory to why stories persuade, and he explains the correctness of the conventional wisdom that the facts are more im- portant than the law in legal reasoning and in legal decision-making. He also shows and explains that a judge’s choice of what facts to nar- rate and how to express those facts as a story says a great deal about legal culture and about the character of the judicial decision-maker and the persuasiveness of his or her judgments. Legal argument has been long studied. Aristotle theorized that there were three modes of successful persuasion in public speech, including legal argument. First, persuasion depended upon ethos, the advocate’s success in conveying to the audience the perception that he or she can be trusted. Second, success depended upon pathos, the advocate’s abil- ity to awaken the emotions of the audience as a way to accept the argu- ment. Third, success depended upon the logical validity or logos of what is argued. As revealed by Creating Legal Worlds, storytelling plays a prominent role in the construction of logos, pathos, and ethos. Reasoning, be it in science, mathematics, philosophy, or jurisprudence, is in pursuit of the truth, and Professor Henderson’s big idea about the viii Foreword creation of legal worlds through storytelling is very valuable to judges, who must of necessity be practical reasoners or pragmatists. A judge cannot be a radical sceptic or nihilist. In coming to a judgment, a judge finds what passes for truth, and that truth is found by rhetorical reason- ing in the sense described, explained, and ultimately recommended by Professor Henderson. While not a manual or a handbook for legal writing, Creating Legal Worlds offers substantial practical lessons about legal writing, particu- larly judgment writing. Professor Henderson undertakes a rhetorical analysis of several judgments, some of them quite famous in the de- velopment of the law, and others commonplace or routine exercises in judgment writing. His illustrations show the everyday craftsmanship of judges, and his analysis reveals that a judge being oblivious to the effect of storytelling on persuasion leads to a discordant and unsuccess- ful judgment, where the judgment not only fails to persuade but also produces an untrue and unjust outcome. Professor Henderson shows that a judge cannot be a good reasoner unless by constant study he or she gets hold of the big idea of the importance and power of storytell- ing to the pursuit of justice. Paul M. Perell, Justice, Ontario Superior Court of Justice, October 2014 Acknowledgments As Supreme Court Justice Louis LeBel memorably noted more than a decade ago, the duty to make full, fair, and frank disclosure in affidavits does not require the disclosure of “all information”: So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. (R. v. Araujo, [2000] 2 S.C.R. 992) I am not sure what the standard required for acknowledgments is, but I do aspire to be clear and concise if not full and frank. Since 1985 I have been a faculty member in the judicial writing program sponsored by the Canadian Institute for the Administration of Justice. Over the past few decades, I have also conducted writing seminars for various courts, boards, agencies, tribunals, and law firms. As an interloper in law and literature scholarship, I look at the choices and challenges that be- set a judge, adjudicator, or lawyer mainly from the point of view of the writer. The book that has emerged is, I hope, as lengthy, lively, and detailed as the subject demands. Most of what I have learned about legal writing comes from the friends and colleagues I have had the good fortune to be associated with: Steve Armstrong, Dale Barleben, Victoria Bennett, Ed Berry, Jonathan Butler, George Byrnes, Jim Carnwath, Michael Dixon, Jane Griesdorf,
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