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Nancy Cook

Abstract

A decade ago, in her book, Narrative, Authority and Law, Robin West posed these questions: How might we develop a moral sensibility with which to criticize law that is independent of the influence of law? How should we criticize law from a moral point of view, given the influence of law over our moral beliefs? What is the role of narrative in this enterprise?

The “Call to Witness” is an entreaty to look to narratives as acts of witness for a partial answer to these questions. Narratives bring to light the real conflicts underlying court cases and law, the motives that are dismissed as irrelevant, and the ever-present ambiguity of circumstances. Picking up at key moments in time before or after the law is invoked, stories demonstrate the consequences of our actions and the agonizing responsibilities of choice. These are the stories people want to tell, but cannot in the confines of the legal system, and the stories people are afraid to tell, but recognize as crucial to justice.

If narrativity is a necessary part of moral claims made on behalf of those traditionally excluded from processes of law, and if the telling of heretofore silenced experiences in narrative form is essential to correcting the imbalance, lawyers must be engaged in the narrative process. Certainly, lawyers are well positioned to serve as witnesses to the operations of law and justice institutions in society. The Article examines the meanings that might be attached to the witness role and the ways in which such a role might be performed. The contextual lenses of legal history and literary testimonial narrative provide the mechanisms through which concepts of witnessing can be analyzed and understood.

The position of lawyers in the social order provides them with the opportunity, and a privileged position from which, to testify. Legal history affords some clues as to how this might be accomplished, but narrative theories provide significantly greater guidance. What history demonstrates is that both in the way it frames and focuses the search and in the way it defines and limits roles, the law has evolved over time to assure that facts, if not truth, will be obscured in the judicial system. Long ago, legal developments led to strict limitations on the role witnesses play in the system and, consequently, on the role of lawyers in the system. Thus, a different construct is called for.

Literary and narrative theories provide the best strategies for communicating and otherwise breaching the gaps between what is experienced and what is understood by the community to be truth. Narrativists have explored the relationships between primary subject and listener or observer, and they are concerned with form and process and their attendant ramifications for truth. They can instruct our ideas about how we relate to client populations, especially those least well served by the existing judicial system. Literary analysts have also addressed the ethical implications involved in telling and, more importantly, re-telling. These are all matters that concern lawyers.

While narrative theory is emphasized in the analysis of witness role and method, another essential historical element in law and history brings the discussion full circle. It is not just the act of bearing witness, facilitated by lawyers’ professional privileges, that can make a difference, but the promise of truth—a covenant, a sacred oath—that signals and constitutes a return to authentic witnessing. Here the oath is shown to be a key connector between the lawyer’s role as advocate and the lawyer’s role as public citizen, between courtroom narrative and testimony, and between storytelling and truth.

Using literary narrative witnessing strategies, lawyers can shed light on hidden aspects of the justice system and on laws’ effects. Lawyers should therefore take a serious look at the role of witnesses in society, not in the isolated and confining context of the judicial system but in the community at large, where we all have an interest in, and responsibility for, nurturing truth.

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