Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, but also that of a rhetorical situation (as Lloyd Bitzer defines it) and a stock story, in which the story's elements are reduced to classes of things, acts, and circumstances. As a result, lawyers must tell stories, and legal decisions are a complex act of categorization in which a judge must decide whether the story before the court fits within the category of stories defined by the governing legal rule. This essay further suggests that if storytelling is inherent in law and legal practice, then legal textualism is flawed because it ignores both actual authors and actual audiences. In a very real sense judges do make law, and law's legitimacy in a modern democracy depends on a judge's willingness to consider the divergent voices of those who write the rules and who are bound by or benefit from them.
Copyright © 2021 by The Ohio State University. Also available at Project MUSE.
Reframing Law's Domain: Narrative, Rhetoric, and the Forms of Legal Rules,
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/1011