2.1 Narration in law

1Law is a language, and as such, it conveys stories (White 1981, 415). It is intrinsically linked to rhetoric, lives through symbols and myths, and goes beyond a reflection of reality: a story told is reality constructed (Bianchi 2016, 287). Narrative refers to the structure and background of the story, as well as the creative exercise of shaping and impacting reality, since ‘Narrative determines the emphasis put on certain elements rather than others, and the silences of unspoken statements or untold truths, which are buried under disciplinary traditions or set aside on the basis of vested interests’ (Bianchi 2016, 292).

2This selectivity determines which stories are told, and which ones are not, which characters are given centre stage, and whose voices are silenced. Narratives compete, which is especially visible in legal interpretation, where legal texts are interpreted, re-interpreted and applied over time (Olson 2014, 378). The aim of this paper is to look beyond the basic legal building blocks – composed of rules, principles and concepts – and focus instead on how narration unveils the discursive dimension of law, thus filling it with meaning that draws from personal, social and cultural beliefs (Bianchi 2016, 294). The temporal dimension of storytelling is a crucial one, since it points to the temporal modalities between the told and a story’s telling (Brooks 2006, 24). One useful starting point is to consider that ‘a nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our visions of alternative futures’ (Cover 1983, 7). The relevance of this statement will become clear in the next chapters, which present the vision of a legal and political order whose primarily premise is the protection of the individual. At the same time, narrative is in a certain sense retrospective, since a story is often consciously structured around the anticipated point or ending of the story (Brooks 2006, 16). Paul Ricoeur, coming from a background of literary and historical theory, has argued that narration involves, on the one hand, a chronological or episodic dimension, and on the other hand, a dimension that aims to unearth a meaningful totality out of scattered events (Ricoeur 2010, 3:274). This points to the question of perspective. There is no ‘view from nowhere’: no neutral perspective exists (Bianchi 2016, 292). This is true for the narrator, the audience, as well as the characters that inhabit every story. Narratives can, and usually do, ‘enable identities and institutions, and personify abstract entities’, thus creating characters and endowing them with a certain role (Bianchi 2016, 294). This creative capacity illustrates the narratological links to institutions and discourses of and about power (Olson 2014, 380). Stories unfold within dynamics of power and hierarchy (Kennedy 2013, 23).

3Narrative in legal scholarship has been captured by the law and literature movement. Still, many traditional international lawyers might feel uncomfortable with approaching the discipline of law from the narrative perspective. One reason for this was captured by Brooks, who contends that law attempts to hide its storytelling qualities in order to preserve the impression that law as a discipline relies exclusively on abstract, rational norms as well as logical reasoning, and this is seen by many as an important factor contributing to law’s autonomy from other disciplines (Olson 2014, 372; as broadly explained in Brooks 2005, 415). The close relationship between law and the analytic branch of rhetoric, to which narratology belongs, is seen by some to upset the supposedly complete, hermetic system of legal discourse (Brooks 2006, 20). Many legal scholars consider narrative to be a vehicle of emotion, crashing into the logically constructed world of law (Brooks 2006, 5).

4In contrast to this, instead of considering the narrative dimension of law as a pitfall, Robert M. Cover famously and convincingly stated that law is dependent on narratives to lend it meaning, since ‘once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live’ (1983, 4‑5). The standpoint of the following chapters is hence that narrative in law is ‘inevitable and irreplaceable’, given that facts are given meaning within and by way of narratives, recounted from a certain perspective (Brooks 2006, 5). As homo fabulans, rationality is chiefly narrative and only secondarily theoretical or practical (Schultz and Ost 2018, 6).

5A cursory glance at the available literature on storytelling in law tends to focus on trials, where narrative content is said to be policed by the judge, and the formal conditions of telling and listening (Brooks 2006, 21). But what about narratives within the law that roam free, outside of the courtroom? What if the story draws not only from legal texts, but is also influenced by speeches directed at audiences outside of legally trained circles, supported by pictures and footage capable of provoking emotional reactions?

6For the purposes of this paper, which consciously explores the story of humanitarian intervention as an area of law – which is not just black and white, and where morality, politics and law collide – the thrust of a carefully constructed narrative is especially visible. Political action is commonly intertwined with expressions of and about legality and legitimacy, and rhetoric is played out on stages – the world stage as well as the domestic one. Often, the story contains elements reminiscent of a drama. What we will be looking at here is not the staging of law in theatre, but the idea of international law unfolding similarly to a drama, enacted by actors on a stage, supplemented by audio and visual effects; an angle that has barely been explored (for some examples to the contrary, see Gaakeer 2015, 76; Deutschmann 2015, 207–221). Couldn’t one contend that opinions in the contemporary world, whether legal or not, are informed by a mixture of things written, spoken and seen? Law, in this sense, is also performed. This more expansive view marries the more traditional law and literature approach, preoccupied with physical texts, with a modern multimodal approach, which recognizes the relevance of auditory, visual and spatial elements for the questioning of law-based stories (Olson 2015, 47). Although space constraints will not make it possible to truly explore this multimodality and its impact, it should be kept in mind that the physical text is just one medium for the transmission of a story, and surely not an exclusive one. Today’s culture is one of images, and arguably, society has become one of spectacles (Carpi 2015, 111). The choice to take a dramaturgically-inspired view also reflects the recent turn in the law and literature movement to emotion and affect, where the new focus is on suffering and human rights claims based thereupon (Olson 2015, 49‑50).

7In all likelihood, the same professionals mentioned above would feel even more sceptical about the comparisons drawn here. One inference would namely be that in the unfolding of this drama, law might only be part of the script. Dramaturgy suggests that the impact on the audience is largely affected by the performance of the actors, specifically whether the actor suits the role he or she is playing. This opens up space to think about how characters depict themselves, and how this might not conform to their true nature behind the scenes. For this reason, the following sections will be concerned with seeing events through the prism of the ‘unreliable narrator’, although it hopefully will not be afflicted by the same fallacy.

2.2 Unreliable narration

8As outlined above, narratology makes a distinction between events in the world and their presentation in narratives, with the facts viewed as being constituted by narrative (Brooks 2006, 2‑3). The teller reorganizes events and portrays them in a certain way to give them intention, aiming to influence the audience. Attention must thus be paid to the ‘possible omissions, distortions, rearrangements, moralizations, rationalizations’ inherent in such a telling, because narrative discourse is not neutral or innocent, but always ‘presentational and perspectival’ (Brooks 2006, 25).

9The concept of an unreliable narrator comes from literary theory, as coined by Wayne Booth.1 The idea of an unreliable narrator can be approached from different perspectives. Booth’s concept of an unreliable narrator inevitably involves the elusive figure of an implied author, vacillating between groundedness within authorial intention and interpretation by readers as the audience,2 and adding this layer for our purposes might appear more confusing than useful. The choice to focus on the cognitive frames of the reader, and leave this concept behind, will be touched upon in the next chapter (see below 2.3 Importance of frames; Windsor 2015, 754). The core of the matter, however, is that by misreporting, misinterpreting, misevaluating/misregarding or underreporting, underinterpreting/underreading, underevaluating/underregarding, the narrator reveals their untrustworthiness, and causes their mask to slip (Phelan 2005, 31‑65). Within these six kinds of unreliability, while the distinction between the ‘mis-’ and ‘under-’ categories lies in the difference between being wrong and being insufficient, these two categories can also naturally interact with or stem from each other (Shen 2011, 2; Phelan 2005, 49‑52). This distinction sounds clearer than it probably is in practice, yet this basic grid of thought can be fleshed out if we look at the identifying features of unreliable narration, conceptualized by Shlomith Rimmon-Kenan, and summarized by Matthew Windsor as follows:

Unreliable narration might exist where there is: (i) a contradiction between the narrator’s views and the real facts, (ii) a gap between the true outcome of the action and the narrator’s erroneous early report, (iii) a consistent clash between the views of other characters and the narrator, and (iv) internal contradictions, double-edged images, and the like in the narrator’s own language. (Rimmon-Kenan 1983, 7‑8; Windsor 2015, 753‑54)

10Related to this are the four types of unreliability, developed by Per Krogh Hansen; namely, intranarrational (within a single narrator’s discourse), internarrational (where the contrast with other narrative depictions reveals a narrator’s unreliability), intertextual (flowing from manifest character types) and extratextual (which depends on the knowledge a reader brings to the text) (Hansen 2007, 754). The transposability of this concept of unreliable narration to the performance of international law seems quite natural, as exemplified by Windsor, who provides valuable insight into this mechanism. In his words, ‘unreliable narration is a mode of narration in which the teller of a story cannot be trusted or taken at her word, compelling the audience to “read between the lines”’ (Windsor 2015, 752). He contends that unreliable narration as well as cognitive frames can bring added value to the table of international law, as they draw much-needed attention to subjectivities (Windsor 2015, 756).

11In terms of theatre, it has been said that law is concerned with masks. As a substratum, law serves as a language into which situations are translated, so ‘law can be seen as a mask we put on reality, emphasizing some of its traits, hiding others, retaining a version of the phenomenon to be accounted for which could easily be swapped for another’ (Schultz and Ost 2018, 18). An additional layer is then constituted by the role assumed by the actor, which can hide their true nature or intentions. Actors might then wear ‘masks of concern for their constituencies’, underlining their link to authority (Schultz and Ost 2018, 19). Both masks and authority are connected to roles and their credibility. An assertion is perceived as authoritative, and believable, because it is uttered by a particular person wearing a specific, socially sanctioned mask (Schultz and Ost 2018, 25). Masks are hence deference-entitling properties (for more on marks of authority in international law and how authority creates a voice, see Zarbiyev 2018, 291), and a well-fitting mask will make the narrator appear more reliable.

12The main audience of the narrators in international law can be described in reference to the interpretive community associated with legal practice. The notion of ‘interpretive community’ was conceived by Stanley Fish (1989, 304) as a vehicle for understanding the source of interpretive authority, in the context of literary studies. A useful starting point can be found in his emphasis on the fact that it is not the text’s intrinsic qualities that determine meaning, but the cultural situatedness of the informed reader (Bianchi 2016, 305). However, this view gives the most attention to the relationship between the text and the audience. Although it leaves space for the teller, I would contend that the spotlight is not focused enough on the narrator, and their performative impact on the reception of the story they tell.

13Despite the controversy surrounding the notion of interpretive community in legal theory, Ian Johnstone has developed a concentric model to explain this community, and determine the criteria and parameters for acceptable argumentation within international law (Johnstone 2005, 186; Bianchi 2016, 305). This community consists of an inner circle, composed of governmental and intergovernmental officials directly engaged in the act of adopting legal rules, a second circle of professionals concerned with the issue covered by the law, and an outer circle made up of a heterogenous group of various actors whose interests are affected (for example, transnational civil society or the media) (Windsor 2015, 755‑56; Johnstone 2011, 41‑44). The interpretive community, or communities, themselves are far from neutral. To criticize one narrator as unreliable is to promote one’s own narrative, with its own purposes and goals (Windsor 2015, 767). By acknowledging the various layers that the interpretive community consists of, it becomes clear that opinions within this community might diverge on different legal issues. Thus, in these contested areas of the law, some contend that one cannot speak of any meaningful interpretive community at all, although I prefer to see the matter as one of multiple interpretive communities (Johnstone 2011, 44; Windsor 2015, 756). In the same vein, Koskenniemi highlights that political conflict often concerns the competition of different narratives, which describe and re-describe aspects of the world so as to subsume these happenings under the jurisdiction of specific institutions (Koskenniemi 2007, 337; Windsor 2015, 755). Keeping this, and the importance of the wider audience in mind, in tales that deal with grey areas of the law, where the consensus of the interpretive community or communities are lacking, the influence of the potentially unreliable narrator on shifting contours and contents takes centre stage.

2.3 Importance of frames

14Narrative analysis differentiates between the telling and the told, identifies types of tellers and also refers to ‘frames of telling’ (Olson 2014, 371). It is concerned with strategies of containment that curtail cognitive flexibility (Singh 2014, 309). Law is not an independent system of meaning, but intervenes in a particular cultural and social context. It is a way of talking about actual events and real people; it is a way of ‘telling a story about what has happened in the world and claiming a meaning for it by writing an ending to it’ (White 1985, 684, 691-692). Although it is doubtful to my mind that law actually manages to write such an ending, a story is surely told with an end in mind, and thus choosing the most fitting frame to persuade and to lead to this ending is important. A narrator might not always be aware of the connotations their telling might provoke, yet the default position shall be that they are, and that they thus consciously attempts to control the cognitive frames of the audience.

15In sociology, frame theory analyses the frames of a reference a reader mobilises in order to interpret a text (Goffman 1974, 754). Today, frames are studied within various other disciplines, and the linguistic perspective examines the ‘interaction of language, interpretation, abstraction, categorization, and our cognitive system’ (Wählisch 2015, 333). In narrative terms, frames thus serve a gap-filling and sense-giving function, but in turn create their own blind spots, which an unreliable narrator might exploit (for more on cognitive narratology, see Jahn 1997; Windsor 2015, 754). In the interpretation of a story, frames allow a reader to streamline the facts into conclusions that fit within a pre-existing frame, blocking or downplaying other possible scenarios. Martin Wählisch (2015, 334‑45) explains that cognitive frames contain images and emotions stored in memory, which are activated when certain titles are mentioned, ‘initiating a “mind cinema” of assumptions, expectations, and beliefs’ (Wählisch 2015, 333). The initiation and support provided by such mental backdrops gives power and authority to the narrator (Surel 2000, 495; Wählisch 2015, 336). Whoever manages to control the framing of information will invariably have the ability to manipulate the interpretation, and thus the meaning that recipients of the information will give to it (Gross and Ní Aoláin 2014, 243). What is valid for the human mind generally also functions in the political and legal context. When certain terms are used in advancement of a policy interest, the underlying aim could be to accommodate or engage specific favourable mental frameworks in the audience (Wählisch 2015, 337). Executive legal interpretation, subject to public scrutiny, might even be bypassed: the ‘real analysis and the one for popular consumption’ (Goldsmith 2013, 230‑31; Windsor 2015, 763).

16At the same time, cognitive frames are also at work within the narrator. To advance a legal position might prove to be a tactical attempt to deliberately (re)frame a context and influence the audience (Wählisch 2015, 337), but the selectivity of the legal interpretation is also determined by the subconsciously active beliefs of the teller and the institutional framework they might operate in. An international court might interpret a matter differently to a governmental entity or an advocacy group, but all of them have predefined assumptions and inferences in common (Wählisch 2015, 331). It is not only their interpretive agenda, but also their cognitive frames, that derive partially from their personal as well as professional background and role (Windsor 2015, 766). A human rights lawyer will naturally approach a situation involving human suffering differently from a lawyer trained in international humanitarian law (IHL), which in turn will lead to diverging frame-consistent inferences (Windsor 2015, 766). To conclude, cognitive frames have an influence on perceptions and outcomes (Bianchi 2016, 306). They are not synonymous with cognitive biases, though – they are broader and more complex. The human mind is irreducibly imaginative, yet this imagination is not limitless.