Rehumanizing Law: A Theory of Law and Democracy (review)

This book offers a thoughtful consideration of the role of narrative in legislation and case law and introduces a compelling argument in favour of expanding its presence in law-school pedagogy. Of particular value are the numerous examples of stories, written with careful detail and in startling prose, that have influenced legal decision making. However, the book falls short in reconciling the role of narrative in informing the public and influencing new legislation with its potential to undermine a critical feature of law: objectivity.

Rehumanizing Law is divided into four parts. Part 1 explores whether narrative can bridge the divide between the view that law is an autonomous discipline and a view of law as humanities based. In untangling the controversy regarding narrative’s role in the development of law, Gordon distinguishes among narrative as rhetoric, narrative as historical story-telling, and narrative as a compendium of beliefs that crystallize into social norms, which may individually or collectively be sufficient to influence the creation of legislation.

Gordon gently confronts the critique of the law and literature movement by providing several examples that demonstrate how literary works can lead indirectly to the adoption of legislation. As an example, he describes the influence of Upton Sinclair’s The Jungle on the enactment of the Meat Inspection Act in the United States. Sinclair’s book, which focused on the plight of American workers in the meat-packing industry, motivated President Theodore Roosevelt to order an independent investigation of the assertions upon which the book was based.

In Part 2, Gordon analyzes the meaning of “fact” and what it takes to “justify” a decision in law. He develops a critique of law’s drive to find a single truth rather than recognizing the coexistence of simultaneous narratives, asserting that this approach has three fundamental weaknesses: First, there may not be a “common sense” standard applicable to all situations, and the drive to find one may cloud important nuances in a case. Second, the commitment to stare decisis is inextricably bound to an acceptance of previous stories, with little opportunity to establish new norms where appropriate. Third, law’s conservative nature translates into an inability to easily and flexibly transform. In line with his critique, Gordon uses stories to illustrate these points.

In Part 3, Gordon uses fiction to explore the disastrous consequences of law’s failure to consider “the whole story.” He argues that democracy is undermined when the law ignores the public’s view of important facts. In demonstrating that the health of democracy requires constant mediation, balancing, and adjustment, Gordon suggests that the public’s essential role has been asserted through the jury. The jury process ensures that individuals outside the legal community interpret and evaluate the judicial system. This interpretation may lead to unexpected results. The O.J. Simpson case provides an example in which the legal system was forced to acknowledge that “where one person may see a ‘cause’ or a ‘motive,’ another person may see a non sequitur” (p. 156).

In his final chapter, Gordon explores the gap between legal and moral reasoning, suggesting that the former often omits the background story. This, he argues, contributes to a disconnect in the process of making “law’s narratives democracy’s narratives” (p. 200). Moreover, he suggests that the absence of sufficient narrative within court decisions, particularly those from appellate courts, may limit the development of analytical skills in the legal community. He offers the humble suggestion that appellate decisions could be better used as democratic and teaching tools if they included additional background information about the cases they address. Here Gordon appears to be treading a careful line between honouring the legal system’s approach of making decisions based on existing common-law principles and arguing for a more expansive role for narrative within the law. It is difficult to object to this proposal.

It would have been helpful to see a greater distinction between the development of laws and the adjudication of...