Explaining the legal repression of cognitive fictionalizing
Why have lawyers and legal academics not acknowledged the links between fiction and hypothetical reasoning that philosophers and psychologists have recognized? This section sketches two possible ways to understand the peculiar legal position on the scope of the term “fiction.” The first explanation looks to the twentiethcentury development of American ways of thinking and writing about law, fact, objectivity, and fiction. The second explanation, which is not an alternative to the first but a supplement to it, considers the social-psychological functions served by legal processes, especially criminal prosecution, and by discourse about them.
In the 1920s and 1930s, the American Legal Realists began to insist on acknowledging (and, if possible, closing) the gap between law and action, or between legal discourse and the world on which that discourse claims to act.45 One way to close the gap, pursued by many post-Realists, is to seek more accurate information about the actual world and to use that information to inform decision-making. The empirical legal scholarship of the late twentieth and early twenty-first centuries follows this approach.46 Because the approach requires that law and legal decisions be based on fact, it suggests that legitimate legal decisionmaking cannot involve fiction. If what we want is a closer link between law and the actual world, it might seem to be a foregone conclusion that law cannot incorporate fiction, since fiction does not refer to the actual world.47 McCulloch’s speech participates in this tradition in its blunt contrast between fact and fiction.
McCulloch’s contrast between fallible testimony and infallible physical evidence, or fiction-prone and factual forms of evidence, participates in a related tradition, the demand for legal objectivity. This demand is another response to the perception of a gap between law and the actual world.48 The law depends on human agents, but each of these agents will view the world and the law from a particular individual perspective, and this variability could cause legal rules and decisions to drift away from experiences outside the law, as well as to differ unacceptably from case to case. One way to respond to these risks, once they are perceived, is to describe or assert the objectivity of legal processes and decisions. McCulloch used several techniques of this kind in his address. He stressed the availability of evidence uncontaminated by human agency, and he presented the grand jury as a quasi-expert body. These techniques for communicating objectivity are analogous to those used in other disciplines.49 In this kind of rhetoric, the opposition between objective and subjective maps on to the opposition between fact and fiction. As this chapter has sought to explain, the two oppositions are not identical. A subjective narrative is not necessarily fictional, and a non-factual or non-actual hypothesis or narrative may be objective. Nevertheless, if we must associate fiction with either objectivity or subjectivity, the latter association may seem more natural, since both fiction and subjectivity apparently concern the contents and functioning of individuals’ minds, rather than the world outside them.
We can also explain the features of McCulloch’s failed presentation in another way. This explanation focuses on McCulloch’s resistance to acknowledging any alternatives to the course he pursued. As the previous section explained, cognitive fictionalizing pervades lawyers’ thinking and speech, but this kind of thinking and talking is seldom recognized as pervasive, and even less often considered to be a kind of fictionalizing. Instead, legal writers tend to apply the label “fiction” to narratives that are unreliable or that conflict with acknowledged fact. Drawing an absolute distinction between law and fiction in this way allows legal decision-makers and popularizers to present legal conclusions as certain; this presentation helps assuage Realist-style anxieties about law’s responsiveness to the actual world and about the legitimacy that wouldpresumably flow from that responsiveness. The distinction probably also addresses other psychological needs. Tom Tyler and his colleagues have argued that legal professionals and members of the public have a strong “psychological desire” to “achieve closure” in the resolution of legal disputes, especially criminal matters.50 Since we can almost always learn more about what actually happened in any given case, the goal of closure is not necessarily compatible with actual certainty about the “facts,” but it may be approximated or at least superficially addressed by declarations of certainty about the facts.51
Prosecutors might feel the pressure to address this goal of certainty' more acutely than many other legal professionals do. A number of observers have noted that prosecutors often succumb to a kind of “tunnel vision”: an inability to entertain alternative factual accounts of a putative crime.52 Perhaps especially among prosecutors of McCulloch’s generation, occupational pressure encouraging tunnel vision has been reinforced by popular-culture representations of criminal justice as involving the confident and accurate revelation of culpability'.53 This phenomenon does not usually operate exactly as it did in the Wilson case. More commonly, prosecutors with tunnel vision ignore evidence suggesting innocence, rather than evidence that might support a conviction. But it might be that we seldom see prosecutorial tunnel vision operating to defendants’ benefit simply because most prosecutorial decisions not to charge are invisible to the public.54 Indeed, we can summarize many criticisms of McCulloch’s use of the grand jury in the Wilson case as charging McCulloch with tunnel vision: He had concluded that Wilson was not guilty' and therefore encouraged his assistant prosecutors to present the case to the grand jury' in a way that would lead the grand jurors to the same conclusion.
On the account presented here, McCulloch’s most basic mistake was not that he substituted fiction for fact, misrepresented the facts, or created a story' to confirm his own personal bias, although he might have done each of these things. Before doing any of these things, he failed to do something else: consider various alternative possibilities, without drawing any' firm conclusions about their actuality, and test them against the perceptions of others. McCulloch’s presentation of his conclusions to the public revealed this error, but describing it accurately is challenging, due to the peculiar role that legal discourse and discourse about the law have assigned to the term and concept “fiction.” Nevertheless, the widespread condemnation of McCulloch’s handling of the Wilson case suggests an equally' widespread tacit acceptance of the dependence of legal legitimacy' on cognitive fictionalizing.
