Tagged: legal theory

Narrative and legal validity

What wish is enacted, what desire is gratified, by the fantasy that real events are properly represented when they can be shown to display the formal coherency of a story?

Hayden White, “Narrativity in the Representation of Reality,” The Content of the Form: Narrative Discourse and Historical Representation (Baltimore: Johns Hopkins University Press, 1987), 2.

 

In the early time, long ago, an Indian maiden was taken into the sky. When she came back to the land, the man who took her turned into a grizzly bear. Her three brothers searched for her but found the bear first and killed it without realizing that it was their sister’s husband. They brought the skin to where the river calls back the salmon every year. The Gitksan peoples have been in Kispiox ever since.

“Canadian Indians Celebrate Vindication of their History,” Anthony DePalma, New York Times, Feb. 9, 1998, A8.

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Angelia Means’ essay “Narrative Argumentation: Arguing with Natives” (2002) grapples with the question of how the proceduralist methodology employed in democratic constitutional interpretation might hermeneutically place putative forms of “cultural difference” in the “best possible light.” One of the strengths of this essay is the way Means spells out conditions in which groups with manifestly incommensurable worldviews might achieve some degree of mutual recognition—in this case, the translation of the meaning of property rights. However, I want to raise critical questions about the specific proposals offered in this essay for understanding how the admission of the narratives of the “non-Western, colonized Other” might contribute to intercultural democracy. I am presumably in full agreement with Means on the question of whether indigenous populations in the Americas should receive equitable and just legal treatment: they should. However, my disagreement concerns the analytical and normative arguments she makes on the basis of Delgamuukw v. the Crown, a case which she defines as a “disagreement over the interpretation of rights that reaches into modes of argumentation and evidence adduced to prove rights” (Means 2002: 223). The issues I want to address are whether sacred narratives – infused with ethical meaning – should “count” as evidence of property rights (prior possession) in a legal proceeding and whether the admission of these texts by the Canadian Supreme Court provides an appropriate model for processes of democratic cultural recognition. In short, I’m not persuaded by Means’ assertion that

In a democracy, we cannot legitimately discount the argumentative authority of those who make arguments that cannot possibly be persuasive absent our willingness to revise what we find persuasive… (Means 2002: 237-238).

Two points covered below:

1. Unavoidable problems of validity arise from truth claims made on the basis of narratives that mix reality and imagination in narrativized form.

2. I’ll briefly defend the hermeneutics of suspicion.

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1. On the Narrative as Argumentation

On the surface, I find the arguments for the inclusion of narratives in legal proceedings to be uncontroversial. Before the law, prosecutors, defense attorneys, plaintiffs, and defendants tell stories. What matters in a legal process, of course, is whether the evidentiary basis of these stories can withstand the test of cross examination: in other words, evidence must be viewed by a jury or panel of judges as valid (unbiased and not artifactual); witnesses, who corroborate or refute opposed narrations of the same objective event, must be viewed as credible. The strong claim in Means’ essay is that the narratives of the Other, who is alleged to interpret differently, must count as persuasive evidence if ethnocentrism is to be avoided.

…we can and must learn to comprehend cultural narratives which appear to be untranslatable from the perspective of modern law. From the vantage point of democratic legitimacy, we must provide intercultural support for democratic norms for two reasons: 1) to ensure equal rights for “all,” including the “cultural stranger” and 2) to persuade the “cultural stranger” that argumentative practices of rights justification are not ethnocentric. (Means 2002: 221)

In the absence of cultural recognition as an element of constitutional interpretation, it would be impossible to give meaning to a concept of property rights that was not ethnocentric, and the effect would be to once again dispossess Native persons of rights, only this time they would be dispossessed of constitutional rights. (Means 2002: 224)

However, I am not sure that the authority and validity of the narrative form itself can be taken as self-evident. A few definitional questions are worth asking: what is narrative? What does interpretation involve? And, what model of intercultural democracy best fits cultural difference so construed?

Following Hayden White (1987: 2), we can distinguish between “a historical discourse that narrates and a discourse that narrativizes, between a discourse that openly adopts a perspective that looks out on the world and reports it and a [narrative] discourse that feigns to make the world speak itself and speak itself as a story.” In historical discourse, ‘subjectivity’ “is given by the presence, explicit or implicit, of an ‘ego’ who can be defined ‘only as the person who maintains the discourse.’ By contrast, the ‘objectivity’ of narrative is defined by the absence of all reference to the narrator’ . […] The events are chronologically recorded as they appear on the horizon of the story. No one speaks. The events seem to tell themselves” (1987: 3). What White describes as narrative seems to fit the “Aboriginal” stories entered as a factual (i.e., real) basis for property rights claims (for “Aboriginal Title”).

White poses a series of critical remarks that I think are appropriate for judging these expressive narratives. He asks

What is involved in the production of a discourse in which ‘events seem to tell themselves,’ especially when it is a matter of events that are explicitly identified as real rather than imaginary, as in the case of historical representations? In a discourse having to do with manifestly imaginary events, which are the ‘contents’ of fictional discourses, the question poses few problems. For why should not imaginary events be represented as ‘speaking themselves’. […] But real events should not speak, should not tell themselves. Real events should simply be; they can perfectly well serve as the referents of a discourse, can be spoken about, but they should not pose as the subjects of a narrative.” (White 1982: 3)

Can a narrative in which imaginary events “speak themselves” as real events count as a persuasive argument? Here, Habermas’s theory of communicative action offers insight : “I call interactions communicative when the participants coordinate their plans of action consensually, with the agreement reached at any point being evaluated in terms of intersubjective recognition of validity claims. […] Those claims are claims to truth, claims to rightness, and claims to truthfulness, according to whether the speaker refers to something in the objective world (as the totality of existing states of affairs), to something in the shared social world (as the totality of the legitimately regulated interpersonal relationships of a social group), or to something in his own subjective world (as the totality of experiences to which one has privileged access)” (Habermas 1990: 58). In the case of Aboriginal narratives, it would seem that typical methods of persuasion, involving assessments of truth, rightness, or sincerity, do not arise (1) because neither an objective world nor a shared social world is a referent and (2) because the authorial role is effaced.

What might this mean for interpretive practice? According to Paul Ricoeur, when an interpretive situation does not allow for a dialogue between the author of a text and a reader, the “text” ceases to have a referent and it replaces speech. In this “space of literature,” texts relate to other texts (and the interpretations of texts) and nothing else (neither to the author nor to the world of the author). “This relation of text to text, within the effacement of the world about which we speak, engenders the quasi world of texts or literature. . . . Words cease to efface themselves in front of things; written words become words for themselves” (Ricoeur 1991: 109). For Ricoeur, interpretation of this imaginary world of the text moves in two directions. As readers we can explain the “internal relations” of the text by situating ourselves in the “closure” of the text, which “has no outside but only an inside;…has no transcendent aim, unlike a speech that is addressed to someone about something” (Ricoeur 1991: 113). Or we can seek to understand the text through an act of appropriation, which Ricoeur defines as “the interpretation of a text [that] culminates in the self-interpretation of the subject who thenceforth understands h[er]self better, understands h[er]self differently, or simply begins to understand h[er]self” (Ricoeur 1991: 118).

What might this approach to narrative texts and interpretation imply for the possibility of the intercultural reinterpretation of rights? Creation stories might “disclose” to non-Aboriginals a different way of relating to and experiencing their relationship to the natural environment; it might move non-Aboriginals to take up a re-enchanted relation to the objective world as a matter of lifestyle; these stories might move non-Aboriginals to adopt or imitate what they take to be Aboriginal folkways (as an act of love or theft or both). Or, more generally, the aestheticization of life portended by such stories might find an analogous critical example in the Dadaist and Surrealist intention to bring art out of the museum and back into life. But such stories would seem to have little to offer with regard to disclosing empirical truth about the objective world of property relations. If the distinction between historical discourse (that has an empirical referent) and narrative discourse (that has an imaginary referent) is not made, then there would be no way to distinguish, for instance, between Thomas Dixon’s novel The Klansman and W. E. B. DuBois’ historical account of Black Reconstruction in America as factual evidence about post-civil war life in the American South.

In other words, narratives (stories) might offer a form of persuasion regarding imaginary worlds, which might be evaluated according to culturally diverse aesthetic standards for world disclosure, but they would seem to lack persuasiveness regarding either the objective world or the shared social world. At least it would appear questionable whether they could withstand critical scrutiny. In the case of Delgamuukw, this would make the inclusion of such stories a procedural concession that does not guarantee a favorable outcome; and it is worth noting that the Canadian Supreme Court did not decide whether the Aboriginal stories were in fact a persuasive legal argument; it only ruled that such stories could not be excluded as forms of evidence. Therefore, it might be premature to describe this ruling as a model of intercultural democracy. However, given the account of narratives and interpretation by White and Ricoeur, intercultural democracy might better be construed as entailing the mutual appropriation of cultural practices among Aboriginals and non-Aboriginals, and the recognition of such appropriations as transformative for the self-understanding (or identity) of both the participants and their cultures. Intercultural democracy would then entail facilitating choice among cultural identities, the creation of new identities, and the equitable distribution of symbolic and material resources that facilitate practical recognition: that is, the institutionalization of identities in the public sphere.

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2. The Hermeneutics of Suspicion

Having defined intercultural recognition in this way, as an instance of symbolic democracy, I want to briefly consider the broader implications of the relationship between cultural recognition and methods of critical reasoning by defending the relevance of a hermeneutics of suspicion for any critical theory of cultural recognition.

Two points:

First, the institutional domains of the public sphere and the law are not identical; the difference between the two has implications for the politics of recognition. One of the strengths of existing liberal democracy as an ethic project is its cultivation of a finely tuned awareness that public policies enable some actions and constrain others; and that the unintended side effects of normatively worthy projects and policies should be assessed in order for some level of democratic responsibility and accountability to be present. Standards for adjudicating rights claims in the legal domain are and should be higher than standards for coming to consensual agreement in the diffuse settings of the public sphere because the outcomes of legal decisions affect third parties that are not part of specific cases. In other words, the domain of law, as a socially differentiated institution, should not be assimilate into the public sphere or the lifeworld. (Conversely, Habermas [1996: 301-302] has argued against the application of deliberative democratic procedures to the whole of society: “The normative self-understanding of deliberative politics certainly requires a discursive mode of sociation for the legal community, but this mode does not extend to the whole of society in which the constitutionally organized political system is embedded. Even on its own self-understanding, deliberative politics remains part of a complex society, which, as a whole, resists the normative approach practiced in legal theory. […] In this regard, the discourse-theoretic reading of democracy has a point of contact with a detached social-scientific approach that considers the political system neither the apex nor center nor even the structural core of society, but just one action system among others. […] What is more, deliberative politics is internally connected with contexts of a rationalized lifeworld that meets it halfway.”).

Second, the politics of recognition is compatible with the hermeneutics of suspicion employed by critical theories (whether deconstructive, psychoanalytic, or social democratic). Interpretive vigilance with respect to unintentional forms of bad faith – like unrecognized forms of power embedded within otherwise good intentions – remains a important task of critical thinking. On this account, Habermas’s deliberative political theory remains a critical theory since, in his model of discourse ethics, validity claims that are grounded on the economic or cultural authority of the speaker, or the assertion of a privileged access to the truth on the basis of such authority, would be open to discursive challenges. Even when cultural recognition is at stake, I would argue that reason does not demand that a democratically constituted citizenry must accept the identity claims, claims of cultural authenticity, or assertions of privileged access and means to historical truth of any individual or group at face value.

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Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996)

Jürgen Habermas, “Discourse Ethics: Notes on a Program of Philosophical Justification,” Moral Consciousness and Communicative Action (Cambridge: MIT Press, 1990).

Angelia K. Means, “Narrative Argumentation: Arguing with Natives,” Constellations 9, 2 (2002): 221-245.

Paul Ricoeur, “What is a Text?” From Text to Action: Essays in Hermeneutics, II (Evanston: Northwestern University Press, 1991).

Hayden White, “Narrativity in the Representation of Reality,” The Content of the Form: Narrative Discourse and Historical Representation (Baltimore: Johns Hopkins University Press, 1987).