Reframing Law\u27s Domain: Narrative, Rhetoric, and the Forms of Legal Rules

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\u27s role is simply to find the meaning inherent in law\u27s language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine\u27s 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\u27s 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\u27s legitimacy in a modern democracy depends on a judge\u27s willingness to consider the divergent voices of those who write the rules and who are bound by or benefit from them