Cognitive fictionalizing and legal legitimacy
August 9, 2014: Just after noon on this sunny Sunday, in a suburb of St. Louis called Ferguson, Missouri, 28-year-old Ferguson police officer Darren Wilson shot and killed 18-year-old Michael Brown in the middle of a street in a residential area. Wilson is white, and Brown was African-American. Bystanders and passers-by immediately began discussing the event and comparing accounts of what they had seen.1 A crowd of concerned onlookers grew as local police, unused to gatherings of this size, awaited investigators. Brown’s body lay face-down in the street, visible to the crowd, until detectives erected screens around it an hour and a half later, and his body remained in the street for two and a half hours after that.2 Many members of the mostly African-American crowd saw this treatment of Brown’s body as callous and disrespectful. Police made little effort to explain their activities to community members and did not reveal the identity of Brown’s shooter for six days.
The events of that afternoon touched off months of demonstrations against police brutality and racism in Ferguson and around the United States. In Ferguson, the demonstrations were repeatedly disrupted by violence, looting, and arson. Residents of the already highly segregated St. Louis metropolitan area became more and more anxious about racial conflict, and the absence of any official account of the events of August 9 contributed to widespread feelings of powerlessness and police distrust, as well as to multiple divergent understandings of what occurred during the encounter between Brown and Wilson. Alongside these events, the county prosecutor, Robert McCulloch, opened an investigation into the possible filing of criminal charges against Wilson for causing Brown’s death. Unusually, instead of making the decision himself, McCulloch decided to submit the case to a grand jury to decide whether Wilson should be prosecuted for wrongful homicide.3
The presentation of the case to the grand jury' took three months and more than 70 hours.4 McCulloch finally announced the grand jury’s decision not to indict Wilson on the evening of the Monday before Thanksgiving, November 24, 2014, in a 20-minute-long speech that seemed carefully scripted but was widely perceived as inept and counterproductive. This speech, and the reaction to it, are the focus of this essay. About one-third of the way throughthe speech, just before formally announcing the grand jury’s decision, McCulloch declared, “The duty' of the grand jury is to separate fact from fiction.”5 With this sentence, he invoked a familiar dichotomy' that has structured discussions of law by' the public and by scholars for the past century. The dichotomy identifies “fact” with the true, the objective, and the legitimate, and fact’s opposite—“fiction”—with the false, the subjective, and the illegitimate. The dichotomy implies that the job of legal professionals is to purge fiction from the legal system and to help produce decisions based on fact. Journalists and academics responding to McCulloch’s statements rejected much of what he communicated in the speech as disingenuous, but these critics did not question the validity' of this basic dichotomy. Instead, criticism of the speech mosdy' focused on McCulloch’s failure to investigate or represent the facts of the Darren Wilson case honestly. Critics accused McCulloch of misleadingly presenting his own carefully engineered narrative as neutrally factual. In making this criticism, however, the commentators themselves depended on something very' much like fiction: an imagined alternative course of events that McCulloch did not pursue.
Academic lawyers and scholars interested in fictional discourse are comfortable with the idea that lawyers and judges are always, in a sense, telling stories or constructing narratives. While there is some tension between this notion and the fact-fiction dichotomy' described above, the two positions are not necessarily' inconsistent, since not all narratives are fictional. The idea that legal practice might inevitably involve another kind of fictionalizing is not nearly so familiar. The phenomenon that this chapter begins to investigate, called a form of fictionmaking here, has been described in a number of other ways in various disciplines: as hypothetical or conjectural reasoning, as supposition, as the generation of counter-factual and not-quite-factual possibilities. This essay will refer to the phenomenon as “cognitive fictionalizing,” in order to stress, first, its importance to legal decisionmaking and justification and, second, its kinship to our understanding and description of the kinds of imaginary states of affairs that are more traditionally die subject of fictional statements. It will use McCulloch’s address to explore the fundamental role of the imagination of alternative possible courses of events in legal practice. It will suggest the possibility' that counterfactual thinking and its presentation in legal explanation are basic ways that legal actors conventionally pursue some of the values usually associated with “fact,” including trustworthiness and objectivity. This account does not reject die goal of factual accuracy' in legal decision-making. Instead, it describes a kind of fiction as crucial to attaining that goal.
The first of the sections that follow' describes McCulloch’s address and the critical reactions to it, explaining the roles played by narrative and cognitive fictionalizing in both the speech and the responses. The three sections following consider more broadly the function of cognitive fictionalizing generally and its function in legal practice and offer some tentative explanations for the relative scholarly neglect of the latter issue. A brief concluding section summarizes some of the main arguments made in this chapter. This section suggests more forthright acknowledgment of the ways in which legal legitimacy is not threatened by cognitive fictionalizing, but rather depends on such fictionalizing.
