Reading Notes--mostly précis and summary!
Adam Kissel

Narrative has always had a place in law. Now that the power of abstract reasoning has been thought to wane, legal scholars have found more interest in concrete narrative. Narrative has the power to transform. But while narrative helps construct meaning, deeper factors institutionalize meaning. "Narrative," taken by itself, lacks three things necessary to justify an institutionalized legal order in society: generality, unreflexivity, and reliability.

What cognitive process gives narrative its power? We organize our rationality via metaphors (e.g., that "life is a journey," 2232) and by idealized cognitive models (ICMs: "stock stories" or "folk theories," 2233). An ICM is any structure of thought that uses generalization of past experience and knowledge to respond to something new. Words themselves make use of our ICMs; so do syntax and narrative structure.

In our metaphor that "life is a journey" (2237), we expect that this journey includes obstacles (even if only time or space, or the challenge of constancy). Virtually all narrative includes some ICM of agon, or acknowledgment of obstacles. The four agon schemata are part-whole, source-path-goal, balance, and force-barrier (2239).

These schema are universal because our raw individual and group experiences constantly reinforce them. Meanings built up from these are in a sense socially constructed, but in another sense inevitably constrained to be so. Therefore meaning is neither objectively determinate nor subjectively arbitrary; it is "nondeterminate" ["underdeterminate" following Solum would be better].

Human communication relies on an assumption of similar (not identical) human experience (at root, in these schemata). Narrative, one form of communication, has been conventionalized as story, academic essay, and other genres. Some narrative like Joyce's Ulysses "challenges the reader's capacity to configure" the agon schemata in the experience of the work, even while the narrative itself disfigures it--here, the reader carries the burden of extracting meaning (2251). Even Ulysses, in this way, points to our reasonable presumption of common (overlapping) human experience.

Story is a form of concrete narrative that is hard to generalize from--hard enough to get the intentional meaning of. It fails the requirements of being generalizable and reliably understood. This means that story is not enough to legitimate a code of law.

Law, as communication, recognizes a certain universality of shared human experience as well as a multiplicity of individual experience); as narrative, it takes its place as a conventionalized genre. Those who see law only as narrative, as mere convention, unfairly ignore that law is also grounded on and constrained by conceptions arising out of human experience. Narrative thus ungrounded cannot be found legitimate. Law, however, is indeed legitimate because it is a specific kind of human communication that is generalizable, unreflexive (i.e., automatically understood in its cultural context), and seen as reliably communicated. (This argument is nearly identical to Llewellyn's regarding "situation sense," 2262-65.) Nevertheless, while the grounding of law is legitimate, its instantiations must acknowledge the "inevitable subjective nature of judging" (2263). Legal reasoning is, then, culturally bound but not fully culturally determined (cf. Solum on rule-bound vs. rule-determined legal outcomes).

Law must recognize its power and limitations as one collection of ICMs (idealized cognitive models). The legitimacy of law is limited by the extent to which it truly is generalizable to all members of the society on which it acts, unreflexive for them, and adequately communicated to them.

Law can be improved by refining or transforming the ICMs that it uses as shared experience. An ICM used by law may actually ignore or misrepresent real generalizable human experiences. Storytelling--if the meaning of the story is at least potentially representative and the meaning can be understood--can encourage law to adapt or transform the ICM that it is using.