1 February 2014

Law's Spooky Narrative

He always received his guests in the same living room where I'd had my interview, probably because its friendly sofas and displays of oriental ghost-catchers provided an appropriate atmosphere for discussions that bridged the banal and the strange. (Jonathan Stroud, The Screaming Staircase (Doubleday 2013) p 117)

Law students are guests until fully initiated. Realistically, this might not occur--at least in student-perceptions--until after graduation with the ancillary recognition of ability. University can intimidate. The jargon, detail, pressure, the intelligence of peers and teachers, the imposing fa├žades and absence of a single, accessible, approachable person who represents the university. Just like the manufactured aura in the quote above, narrative might help law students relax in law school's alien, stressful environment.

1. From Screaming Staircases to Law School

Haunting and spectral paraphernalia are the least of students' problems. Even the ordinary thrown into a legal cauldron becomes somewhat occult. This trickery, however, need not prevail. Some clever pedagogy might fix it.

It is proposed by some--with whom I partly and often agree--that narrative should be used to teach law (see further reading, below). Narrative, in my view, can redecorate the legal academy to improve the feng shui.

A good narrative--for example in a novel or film--can simplify complex plots. Narrative may be transposed onto law and used to cleave apart its intimidating features.

The novel itself may also be an object for discussion. To get students talking and brains engaged is often difficult in an environment where nobody wants to be wrong, lose face, or hazard ridicule.

Law may be put into a narrative format with less emphasis on (traditional or doctrinal) legal structures. For new students, this re-structuring might be easier to understand; it might help create the 'appropriate atmosphere (…)' in Jonathan Stroud's description.

I now extend the idea that narrative can facilitate discussion.

2. Promoting Reading Fiction

It may sound counterintuitive to encourage extracurricular reading when I know from personal experience that law students can feel guilty when not reading law: if there is time to read, the text should link to one of the monumental reading lists for one of up to, say, any of five given modules. Sure, learning law is about reading law--how else to assimilate the wealth and mass of legal knowledge? But I simultaneously advise law students to embrace distraction. It will happen anyway--in another tipple of cheap Vodka or ten more minutes on Facebook--one may as well use distraction to one's advantage; and that means inculcating an awareness of what good distraction can entail.

Narratives, I submit, are good distractions. Law students should thus be encouraged to read fiction and watch films. Novels and blockbusters sometimes, unbeknownst to many, link closely to the legal texts that students are expected to analyse. The following few paragraphs discuss this.

2.1 From Banned Books to Europe

Law is shaped by social fashions. Joseph Heller's Catch-22 was banned in the the US and that ban was successfully appealed against in the early 1970s in Minarcini and others v Strongsville City School District and others (1976) 541 F2d 577 (US Court of Appeals, Sixth Circuit). The ban was lifted with recourse to the United States Constitution's First Amendment, which--in an almost identical way as Europe's (including the UK's) Freedom of Expression laws--sets a high threshold for artistic expression's protection. The law was engaged, applied, and thereby influenced what society is allowed to ban or disallowed from interfering with.

Freedom of Expression in the UK is protected by ECHR Article 10 (see below), which involves human rights. Human rights are studied during a qualifying law degree. Human rights law is tricky to comprehend. This is for many reasons but an initial one in the UK, I suppose, is because it is difficult to grasp the difference between the two major European institutions that at first seem very similar, and which popular opinion tends not to differentiate between. These two bodies are the Council of Europe (COE), and the European Union (EU). Their functions differ.

2.2 The European Union

EU laws are adjudicated in the European Court of Justice in Luxembourg. There are 28 EU Member States (MS). To give some indication of jurisdiction, the EU concerns the Euro (€). Confusingly, all these 28 MS have signed and ratified the ECHR. The EU is a complicated field. But its technicalities, at least, are easily framed with reference to popular journalism because British politicians have loved to encourage a silly debate about whether to stay or leave, or to join the Euro, or become more involved. (I say 'silly' because the debate always seems like a smokescreen. The EU is governed by treaty law and it cannot simply be undone overnight, and even if the UK left, 'leaving' would not achieve as much nor be as straightforward as some opinions would have us believe.)

2.3 The Council of Europe

The COE is, instead, human rights-based and its laws are adjudicated in the European Court of Human Rights (ECtHR) at Strasbourg. There are 47 ECHR Signatory States. This simply means 47 countries have signed the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR). Freedom of Expression in Article 10 is part of this convention. (If it is silly to debate leaving the EU in the terms offered and imposed by recent political machinery, it is even sillier to consider 'leaving' the ECHR while pretending that is a simple matter of being involved or not. The reasons for this are outside this post's scope, but see Human Rights' Public Image for some discussion before I have time to explain the reasons further.)

So, learning human rights law is difficult. One reason for this may be due to a lack of accurate background information about what human rights concern, which may otherwise usefully be used to provide context for problems. Media, popular culture, and holidays to Europe using Euros may provide students with background details about the EU before studying law, the same details may be missing for the context surrounding the COE and human rights.

2.4 Providing the Context

I propose that reading texts that are banned and then legally released from banned-status will provide some context students may frame the legal perspectives with. That is, by reading a book such as Catch-22 when reading human rights law (the law ensures such books are freely available to read) may give students something relatable to discuss. Sparking that discussion may provide the necessary hook to engage students in the process of criticising and evaluating the law. It may be easier for students to say why an empowering law is good or bad if one understands the subject or object that is subsequently to be empowered or restrained. And therefore the narrative in Catch-22, which is easy reading, may be used to lure students into a critical and rigorous legal argument.

3. Conclusion

My purpose in this post was to set up my reasons for exploring possible uses for narrative in legal education. I explored an experimental line of thought. I hope to conduct this process again with other sources. Regular readers, or even new readers who have checked this website's archives, may notice that I have attempted this experiment before. But this post appreciates it is time fully to articulate what has been done, and what I will attempt to do again.

Throughout this essay, it was convenient to conflate UK human rights and Freedom of Expression law with only its transnational manifestation in the ECHR. Note that much domestic UK jurisprudence concerns the same area, but I chose to ignore it here because the essay seems complicated enough as it is.

In conclusion, narrative can be used to create a living space, a welcoming atmosphere, in which students may feel more comfortable. Even if I am wrong, at least reading narratives may help build one's vocabulary and take one's mind off work so that a return to studying is met with enthusiasm.

4. Further Reading

This post's ideas involve an entrenched field. A few sources are listed next, for anyone interested in law and narrative.

Created: 31 January 2014. Version 1.0.

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