Law in Contemporary Society

Indeterminacy in Self-Narrative and the Rule of Law

-- By StephanieZielinski - 27 May 2023

Tell Me About Yourself

“So, Stephanie, tell me about yourself.” It was early January, and I was sitting across from the law firm hiring partner in a spacious office on the 26th floor of the Helmsley Building in Midtown Manhattan. I smiled and took a deep breath. Of course, I had my formulaic elevator pitch memorized for this exact question: a polished and succinct 45 second narrative that captured my background, motivation, and purpose for being in law school and interviewing at this firm. It stuck the right balance of accomplishment and personality, of charm and wit. It was structured precisely to illuminate why I would be an excellent fit for their summer fellowship program, and was built using the many Career Center training sessions and affinity group guides created to prepare us law students for this exact scenario. Unfortunately, I had already answered the question so many times in the previous week that my answer was beginning to feel particularly inauthentic. It was such a small sliver of “myself”– it was the “self” that was perfectly groomed into becoming a corporate lawyer– that it just didn’t seem to capture my real identity anymore.

Memory and Identity

Human identity is dynamic. In today’s complex world, most people wear a diverse set of “hats” in various family, work, social, religious, and athletic contexts. In between, we have rituals and behaviors that allow us to adjust to our next “identity.” We dress, and even think, differently in our different states.

In The Way We Are, Frank Putnam suggests that our autobiographical memory is strongly influenced by our state of being at any given time; “Memory and identity are inextricably linked and that changes in one go together with changes in the other.” Historians have even noted this phenomenon in their craft. Anything a historian says in 2023 about a different historical epoch in some way reflects their assumptions, prejudices, and passions of the present day. As J.H. Hexter notes, “When we look back on the past, we do so from the present.” When telling a narrative, our recollection is influenced both by what we are feeling at the time of recall and by what we were experiencing and feeling at the time the memory was created. Putnam suggests that the variations in memory that result from the various lenses we use to recall events directly reflect the distinct facets of our identity. Additionally, over time, our memory degrades, and our gaps in memory are increasingly filled by reconstructed and reinterpreted understandings of events.

What Version Do You Want?

When someone asks about my life or my childhood, I’m always tempted to ask: “Which version do you want?” Do you want the version where my life has been joyful, uncomplicated, and privileged? Or, would you prefer an underdog story; a tale of overcoming hardship and struggle? By focusing on their troubles or achievements or emphasizing one event and entirely leaving out another, anyone can tailor their narrative to fit the surroundings.

Legal Indeterminacy and Prediction

There exists a surprisingly symmetrical analogy to this dynamic interaction of self-states resulting in indeterminate self-narratives in the legal school of thought known as Critical Legal Studies (CLS). A critical assertion of CLS theorists is that the law is indeterminate– that the same set of legal principles can be used to yield competing or contradictory results. CLS theorists note the ambiguity and subjectivity present in legal decision-making, and argue that legal doctrine can be used “as an arsenal of weapons… to justify virtually any position a client wishes to maintain.” An experienced advocate can skillfully manipulate facts to support their client under the controlling authority, find a basis for distinguishing whatever doctrine her opponent advances, or advocate for a change of law in their favor.

And yet, how is this indeterminacy reconciled with “the object of our study” of predicting legal outcomes as Holmes in The Path of the Law purported? On one hand, indeterminacy and prediction need not be entirely incompatible (one may make an accurate prediction as to the outcome of a case even when both sides have made proper doctrinal arguments). For example, lawyers can always utilize and analyze the larger socioeconomic or historical patterns of legal decision making. Law has historically tilted in favor of perpetuating existing power structures at the expense of marginalized groups. Even if the law is the result of indeterminate impartial judicial reasoning, it still has largely benefitted the powerful and privileged. Alternatively, we might view predictability as a spectrum, with cases getting harder to predict only in certain circumstances. And, of course, there are certainly counterarguments to the various tenets of CLS itself, including in regards to the claim that language itself is indeterminate, allowing for the introduction of personal biases in judicial decision making.

Perhaps the predictability of law resolves the indeterminacy question and endorses a sense of stability in the rule of law. And yet, even if that were true, it unearths the deeper question of should we endorse the stability of the rule of law, especially when judges are human beings subject to the same dynamic interaction of self-states described above, and who might potentially reach different conclusions when faced with similar cases (even if one judge, in isolation, writes predictable opinions).

One answer to this question is that law itself cannot be the only tool for progressive advancement. Secondly, law schools should focus on teaching students how to unwind and reframe legal arguments to address inequalities and injustices in our society rather than as tools to preserve the current structure that systematically favors the powerful. Students should learn the counter principles to the prevailing normative underpinnings of law; for example, social responsibility and fairness should be seen as equally important normative values as competition and efficiency. Only once we are able to recognize the subjectivity and indeterminacy that pervade our legal system, will we be able to wield law as a tool for social change.


Webs Webs

r6 - 27 May 2023 - 13:47:18 - StephanieZielinski
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