Law as a set of possible worlds

Although narrative accounts carry’ the risk of bias, most of us would accept that we need narratives to make sense of what happens in the actual world. We would have a hard time assigning responsibility' for actions, for example, on the basis of forensic evidence alone, without generating a narrative to explain the evidence. We also know that not all narratives are fictions. When lawyers and members of the public say they want legal processes and decisions to track “fact,” they are after narratives that accurately describe the actual world, as it is perceived by as many other people as possible. (In this context, a “fictional” narrative would describe a possible world conjured up by its author, who might also be its narrator, and communicated to others without regard for those others’ first-person perceptions of the world.) Thus McCulloch’s use of narrative in his speech was not necessarily inconsistent with his dismissal of fiction. But his dismissal of fiction was based on an oversimplified conception of “fiction,” one apparently shared by many of his critics. In this conception, while not all narratives are fictional, all fiction takes narrative form, and such narratives are inappropriate to legal practice (making many if not all narratives presumptively suspect in a legal setting). The goal of this chapter has been to suggest that legal practice in fact requires a type of thinking and talking that is very' closely related to the kind of thinking involved in generating and understanding fictional narratives—not because they are narrative in form, but because they concern possible worlds. In law, this type of thinking does not result in extended narratives; it serves other purposes, such as creating premises for planning and reasoning, or allowing practitioners to certify their objectivity by laying open their assumptions and considerations for scrutiny by clients, colleagues, and other interlocutors.

We could describe the generation of alternative possibilities, and micronarratives based on them, as a kind of folk remedy developed by legal practitioners and educators to combat cognitive bias, tunnel vision, our tendency to be overconfident about the accuracy of our own perceptions. Generating alternative accounts allows the generator, or her interlocutor, to identify those possibilities that are more aligned with the experiences of others. Thus, this sort of fictionalizing enables agreement and objectivity', even though it begins in an act of subjective creativity'. Unfortunately, the widespread use of these practices has not been matched by' widespread acknowledgment or discussion of them. Use of these practices has remained unnamable, due to at least two phenomena: first, the widespread equation of fiction with extended narratives presented for purposes of entertainment or self-indulgence,⁵⁵ and second, the concern, shared by' legal practitioners and the public, that law and legal activity' deal with real-world events, or “fact,” as much as possible as those events are perceived by the people affected, and do not operate in a separate “law-world” accessible only' to insiders. The unfortunate result of this state of affairs is that lawyers and legal popularize« have been prevented from discussing some of the ways in which quintessen-tially legal activity'—hypothetical reasoning and the consideration of alternatives— is not all that different from everyday' imaginative activity'.