Journal Title
The Journal Jurisprudence
Volume
1
Issue
1
First Page
11
Document Type
Article
Publication Information
2008
Abstract
Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.
The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which his culture consisted. The bard's stories, while entertaining, also served a much more lasting purpose, that of teaching, and in teaching, affirming, what choices his society valued. In particular, by reading the bard's stories one can identify which virtues (always courage and love, sometimes charity and chastity) the bard's society honored and which vices (always cowardice and cruelty, sometimes intemperance) it condemned. The bard extracted from his culture's fabric samples representative of the whole. In short, the bard reinforced for his contemporaries and identified for his successors what choices and cultural commitments his society considered right and good.
A society's laws function in much the same ways. The law contains a narrative, which has two aspects, (1) preservation of an account of human choices and cultural commitments, which reflects the culture's values and (2) instruction that informs and shapes future choices. In other words, the law's narrative preserves samples of a cultural fabric for the benefit of contemporary and future generations, and in turn teaches which individual and cultural choices are just.
The preservation function of the legal narrative is most easily discerned in judicial decisions, in which courts tell stories about particular human choices, which are meant to be representative of the choices participants in a culture make generally. A judicial decision literally renders judgment on the rightness of a particular human choice. That judgment rests upon, among other things, cultural assumptions about what is good and virtuous, as well as conclusions about what is efficacious and useful. When read later, the decision reveals a tale of an individual who came to a crossroads and chose one course and not another. The decision also preserves the culture's expression of approbation or disapprobation of that choice.
Recommended Citation
Adam J. MacLeod, The Law as Bard: Extolling a Culture's Virtues, Exposing Its Vices, and Telling Its Story, 1 J. Juris 11 (2008).