The law of the oppressed: storytelling in (poetic) legal arguments

O direito do oprimido: contação de história em (poéticos) argumentos jurídicos

Taís Penteado tais.penteado@gvmail.br

FGV Law School, Brazil

In 1975, amidst the terror regime that took place during the Brazilian military dictatorship, playwriter Augusto Boal published the first edition of “Teatro do Oprimido: E Outras Poéticas Políticas”² (“Theater of the Oppressed: And Other Poetic Politics”) (BOAL, 1993). The book is a collection of essays, divided in four parts. The first three are dedicated to criticizing previous conceptions of theater - specifically the Aristotelian, the Machiavelian and the Brechtian. The fourth advances a new theatrical method: the poetics of the oppressed.

Part four begins with the following brief introduction³:

In the beginning, theater was the dithyrambic song: free people singing in the open air. The carnival. The feast.

Later, the ruling classes took possession of the theater and built their dividing walls. First, they divided the people, separating the actors from the spectators: people who act and people who watch. The party is over! Second, among the actors, it separated the protagonists from the masses: coercive indoctrination began! (BOAL, 1993, p. 119)

This passage embodies Boal’s main ideas: the ruling class appropriates power. Then, it captures the means to exert power, excluding others. Finally, it produces and imposes narratives. The solution, he suggests, appears in the next passage:

Now the oppressed people are liberated themselves and, once more, are making theater their won. The walls must be torn down. First, the spectator starts acting again: invisible theatre, forum theater, image theater, etc. Secondly, it is necessary to eliminate the private ownership of characters by individual actors: Joker System.

Here, Boal exposes the emancipation process. The oppressed re-appropriate narratives regain the means, and then, achieve protagonism - in theater, and society.

Boal’s theater of the oppressed arose from Paulo Freire’s - another Brazilian author - ideas on critical pedagogy, presented in the groundbreaking book entitled Pedagogy of the Oppressed (FREIRE, 2005). Freire’s educational philosophy - built from his experience of trying to end illiteracy among children and grandchildren of former enslaved people in Brazil - is predicated in liberating subaltern individuals from conditions of oppression. Mostly, by challenging the idea that teachers should preach, and students listen without critically reflecting about what is being said (FREIRE, 2005, p. 72)⁴. The focal point of the pedagogy of the oppressed is to break the binary of protagonist/spectator and confer the latter the conditions to expose counternarratives that could serve the process of knowledge-production through consciousness-raising⁵.

What both theater and pedagogy of the oppressed have in common is the insight that some narratives have prevailed over others and that this hegemony has served the powerful in the detriment of the powerless (MANOJAN, 2019, p. 127). The remedy for that, accordingly, would be to free the oppressed from the place of depositaries of narratives and give them the tools to both expose and perceive world realities. A pervasive question always arises in this point. In a world of hegemony, how can counter-narratives even be possible? The answer given in both pedagogy and theater of the oppressed is simple: exposing lived experiences and thinking about power from there.

Boal and Freire are talking about theater and education, of course. But they might as well have been talking about the law. Law has been created and time and again appropriated to serve those that occupy positions of power in complex and deep ways.⁶ But, paralleling the insights of both the pedagogy and the theater of the oppressed, oppressed groups and critical legal theorists associated with outsider jurisprudence have resisted.⁷

Outsider jurisprudence branches - such as Critical Race Theory, Feminist Legal Theory, LatCrit and ClassCrit - have given us many insights. Among them, the idea that, although purporting to be neutral and being treated as neutral, law is built and interpreted from the point of view of power and, as such, serves the purpose of reinforcing subordination. Power is not an abstraction: it is an interlocking system of converging structures (COMBAHEE RIVER COLLECTIVE, 1977) that create concrete social relations and that have real impact on the establishment of rules, the conditions in which rules are applied and the legitimating narratives that sustain them (GUINIER; TORRES, 2002, p. 110). These insights about the relationship between law and power have only emerged because of a distinctive factor: the development and adoption of a methodology that favors a ground up knowledge production model.

Ditching abstractions, critical theories depart from the perspective of the oppressed to challenge and reconstruct law (MOREIRA, 2018, p. 75). Not only its application, in a liberal fashion, but its most fundamental categories, concepts, values and principles, in a radical fashion. This critical methodology has many expressions - consciousness raising, asking the “woman question”, looking to the bottom - and it has in its core a search for experiences that problematize social relations of power.⁸ One way of doing that - advanced and adopted within Critical Race Theory - is by telling stories, or, as it has been called, storytelling (or counter-storytelling). To tell stories is not new: stories have been an important way of resisting, in many settings and many places.⁹ What is new about storytelling in outsider jurisprudence is its application as an interpretative method in law. Storytelling operates on the same level as analogy or other fancy-latin-named methods that tell us what the law is or what it should be.

The contributions of storytelling have been acknowledged, but the method has also been criticized. Traditional scholars accuse storytelling of being self-serving and partisan - and, as such, incapable of offering the neutral answers that liberalism praise so much. This paper, however, is interested in the problematization that came from non-traditional scholars: the impossibility of verifiability of stories and, hence, the weakness of storytelling-based legal arguments.

Verifiability is important for outsider scholars because there might be conclusions about the law that arise from experiences with which we, nevertheless, disagree with. And, unlike in “traditional” scholarship in which we can question the methodology and the data collected (e.g. did you interview people? Which questions did you ask? Which language did you speak?), it is hard to tell when and how it is possible to question personal experiences. In fact, it is not farfetched to say that it is impossible. This paper does not offer one final answer to this criticism of storytelling as a legal method. However, it provisionally suggests that, if storytelling-based legal arguments are analyzed in a holistic manner, we can see that even if the stories that are at their core cannot be verified- or, in the limit, even if they are not true - some of the broader social claims that derive from them and that anchor the legal argument, can - and should.

The paper is structured as follows: Part 2 presents storytelling as a legal method and places it in the broader realm of outsider jurisprudence - particularly Critical Race Theory. Part 3 explores the criticism directed at the impossibility of verifiability, as well as some previous responses to it developed by outsider scholars. Part 4 develops the tentative response to the problem, by analyzing the conditions of sustainability of two claims developed by Critical Race Theorists - Mari Matsuda’s challenge of free speech doctrines and Patricia Williams’ challenge of equality views that permeate anti-affirmative action decisions. The paper concludes in part 5, with some thoughts on the place stories have in legal arguments.

Before starting, a bracket is in order. This paper aims to show how storytelling-based arguments can be verified. This can be read as an incentive for deconstructing critical thinking. However, the intent is the opposite: to make critical arguments stronger, to avoid their appropriation for the maintenance of the status quo.

For many years, legal scholarship has been concerned with narratives. The interest in stories and the law is transversal to many different intellectual movements that, in different ways, try to investigate how they permeate legal discourse, law-teaching and law in general (RIDEOUT, 2015, pp. 248-249). This paper, however, is interested in the place of stories in one of them: Critical Race Theory. Critical Race Theory is a body of scholarship characterized by its distinctive methodology - to reflect about the law as it happens in the lives of real people -, its substance - seek antisubordination -, and its posture - engagement with social change (WILLIAMS, 1987). This paper is about method - which, in the end of the day, is what enables antisubordination through structural social change¹⁰.

Method “organizes the apprehension of truth; it determines what counts as evidence and defines what is taken as verification” (MACKINNON, 1982, p. 527). In the context of liberal legalism, doing in law have, for many years, been restricted to traditional methods, such as deduction, induction, and analogy - methods of interpretation that arise from the premise that answers about the law are to be found in the existing law. Those methods, however, have long been challenged by critical thinkers that have realized that structural change could not happen through the mobilization of the same instruments that arose from and perpetuated the system of oppression they sought to challenge (BARTLETT, 1989, p. 836). The insight that the “master’s tools will never dismantle the master’s house” (LORDE, 2018)- that equally permeates the pedagogy and the theater of the oppressed - has been transported to law. This critical insight has put traditional methods into question in two dimensions: first, they were seen as insufficient to deal with problems. Secondly - and more importantly - they were seen as insufficient to the extent they did not allow one to grasp problems that should be addressed in the first place. For instance, no law in the world would be able to deal with segregation or sexual harassment if sexual harassment and segregation were not perceived as problems to begin with.

The view of liberal legalism - as well as its premises, like objectivity and neutrality, its categories, like rights, and its methods - as constitutive of subordination has led to its rejection by many legal scholars (TUSHNET, 1984, p. 1363). However, other scholars have taken a different position: law could be a relevant instrument of transformation if the methods of legal knowledge-production and interpretation were revised, allowing for radical changes in law that would go beyond the drive of assimilation that permeated much of the liberal discourse (CRENSHAW, 1988). The former authors have mostly engaged in a deconstructive project (DELGADO, 1987, p. 302). The latter, on the other hand, have gone beyond to propose a positive reconstructive agenda (MACKINNON, 1989, p. 81).

If the poetics and pedagogy of the oppressed adhere to the idea that theater and education are means that should be appropriated by the people, in outsider jurisprudence, law is one of the chosen means. And in all three cases, the means should be mobilized by the people for “its own ends”, “in its own ways” (BOAL, 1993, p. 139). “Its own ways” means, of course, through its own methods.

Critical methods are not imposed in a top-down fashion. In fact, critical methods are themselves constructed from the bottom-up. From the realities of the oppressed, theories were forged, and, with them, theories about the methods that helped the oppressed know what they came to know (MACKINNON, 2000, p. 688)¹¹.

In general lines, the core idea of critical methods is to look at law in context, without abstracting the operation of the institution from the “position of the least advantaged” (MATSUDA, 1987, p. 325). These methods are derived from an epistemological stance that takes the perspective of those at the bottom as a privileged source of knowledge (MATSUDA, 1987, p. 325).

The critical lens (comprised of both epistemology and method - if it is possible to make such a blunt distinction) has been exported to many areas of knowledge¹², but what is particular to Critical Race Theory (and other critical theories) as applied to law, though, is the fact that it becomes not only a way of reflecting about the law as an institution from the perspective of an external observer (like, let’s say, a form of sociology of law), but it is also a method of legal interpretation, that allows one to actually offer normative answers to legal problems, arguing within the law¹³. In other words, it is possible to use a critical method to develop an argument that can be used in and accepted by a Court. It is a branch of Jurisprudence (MACKINNON, 1983; MOREIRA, 2019).

Critical methods of legal interpretation have been thoroughly theorized in both Critical Race Theory and other branches of outsider scholarship. The core of the method is contextualization, but that can happen in multiple ways. Feminist authors, for instance, have explored the methods of “asking the woman question” - that is, exposing how “the substance of law may silently and without justification submerge the perspectives of women and other excluded groups”¹⁴. Another method is consciousness-raising - or the “collective critical reconstitution of the meaning of women’s social experience, as women live through it” (MACKINNON, 1989, p. 83). This method provides a means for diagnosing problems and making sense of them, from the personal to the political.¹⁵ The knowledge produced in this setting becomes a guide for approaching law. Yet another method is intersectionality. Intersectionality adds to the critical lens the idea that “systems of race, gender, and class discrimination converge” (CRENSHAW, 1991, p. 1246). It demands not only that one asks the “woman question”, but that one asks the “other question” (MATSUDA, 1991).

Those methods are - or should be - overlapping and they share the common ground of “looking to the bottom” to think about the law. This can be done in many ways, that includes types of knowledge that do not limit itself from traditional scholarly works produced by those at the bottom, such as “briefs in the great civil rights cases, speeches and persuasive writings, art, literature and oral histories” (MATSUDA, 1987, p. 345).

The use of stories to talk about the law has been widely accepted, in various critical works (DELGADO, 1989, p. 2411). Authors have engaged in writing or engaging with both fiction (BELL, 1984; HARRIS, 1990) and non-fiction about personal (ESTRICH, 1986) and non- personal stories (MAHONEY, 1991). To tell stories is seen by some authors as a form of resistance to and subversion of the stories told by dominant groups that create an ideology that naturalizes their superior status, purporting not to be there at all. Stories told by outsiders - groups whose voice has been excluded from the mainstream narratives -, on the other hand, create “bonds, represent cohesion, shared understandings and meanings” (DELGADO, 1989, p. 2412). By exposing/creating a new counter-reality, stories told by outgroups challenge the status quo (DELGADO, 1989, p. 2414).

Storytelling starts at the particular but is a methodology directed at tackling the structural. Just like in the theater of the oppressed,

A political contribution which we feel we have already made is the expansion of the feminist principle that the personal is political. In our consciousness-raising sessions, for example, we have in many ways gone beyond white women’s revelations because we are dealing with the implications of race and class as well as sex (BOAL, 1993, p. 150)

As exposed above, storytelling has many virtues. This article, however, is interested in exploring the role of stories in legal arguments.

Although critical storytelling has innumerable virtues, it has been thoroughly criticized. Some critics refer to the incompleteness of the method in giving us a correct answer for a legal problem. If, in legal disputes, both sides rely on stories to build their cases, how can we choose between them? Storytelling, according to this perspective, cannot, by itself, help with that (MASSARO, 1989, p. 2099). The criticism this paper focuses on, however, has to do with the credibility of arguments based on storytelling, that, sometimes, affect their scientific character (FARBER; SHERRY, 1992). The credibility of storytelling is often put into question by the problem of verifiability (ABRAMS, 1991, p. 978), which refers to the possibility or not of assessing the truthfulness of the stories that lay in the root of storytelling-based arguments (ABRAMS, 1991, p. 979). The fact that such arguments cannot be confirmed (WILLIAMS, 1991, p. 47). Or, simply put, some scholars find it troublesome not being able to assess “what actually happened”.¹⁶

Some authors have come in defense of narrative as a method, against the problem of verifiability. For instance, Kathryn Abrams addresses this question in a 1991 article, in the context of feminist legal theory.¹⁷ Her response is not a direct answer to the question of whether the claims are or not true, but a challenge to this question itself. According to Abrams, it is “neither necessary nor advisable to respond to this question in precisely the form in which it has been framed”. That, because it reflects the “evaluative premises of objectivity” (ABRAMS, 1991, p. 1013).

The idea of objectivity, as seen by Abrams, has been contested as a feature of both legal methodology and legal substance. And, as such, using its premises are “antithetical to the assumptions of narrative” - a methodology that merged precisely from the denial of objectivity (ABRAMS, 1991, p. 1013). Consequently, Abrams proposes that truth as correspondence to reality should not be used as criteria for the credibility of storytelling-based arguments. Instead, she proposes that credibility can be achieved through “revealed pain, through the cohering, particularized knowledge of the expert witness, through the ignition in the reader of a flash of recognition” (ABRAMS, 1991, p. 1024).

This understanding about the measure of truth in storytelling is similar to Richard Delgado’s, which argues that stories should be noncoercive and “invite the reader to suspend judgement, listen for their point or message, and then decide what measure of truth they contain”. Stories, in this context, are seen as “insinuative”, rather than “frontal” (DELGADO, 1989, p. 2415).

Abrams’ and Delgado’s arguments are interesting; however, it is not necessary to get away with the possibility of objective truth to defend storytelling as a credible legal method. In fact, their presupposition that storytelling arguments live and are built in a paradigm of skepticism toward the possibility of objectivity and, hence, of truth about the law is not accurate about all the production on the critical field.

Challenges to objectivity are true for some authors - storytelling has been used to show the multiplicity of points of view that can shape different readings of stories and, as such, has been seen as a challenge to objectivity (BARON, 1998, p. 68).

One example is Richard Delgado’s storytelling about a black law professor who is denied a job at an elite institution. In his exercise, Delgado tells the same story as recounted by the professor - who emphasizes the many micro aggressions suffered during the interview process - by a member of the faculty - who emphasizes the fact that the prospective professor’s scholarship did not meet the standards required by the institution, that of a student - who is enraged by the injustice of what happened, and, of course, by the judge who eventually decides the lawsuit in which the professor claims he was discriminated. This last one focuses on the lack of evidence (DELGADO, 1989). Delgado’s storytelling exercise is aimed at showing the lack of objectivity in perspective in general, and in law, in particular.

Other authors, however, are preoccupied with reality as understood as something that really happened, in an objective fashion (MACKINNON, 2002, p. 688). And I would go as far as saying that they are interested in establishing that one can consider one reality at least more accurate than others. In those cases, stories are used to “demonstrate the gap between the reality of the described experiences, on the one side, and existing legal doctrine, on the other” (BARON, 1998, p. 68). In this context, although the possibility of truth and right answers in law is accepted, those answers are often seen as situated and provisional, which encourages the constant process of knowledge production and dialogue about which answers should be given (BARTLETT, 1989, p. 880).

For those authors, in my reading, it matters less that readers believe in them because they are compelling or cohesive, than that what they are describing is the lived reality of real people. Themselves and others. They claim to themselves the “power of truth” (SCHEPPLE, 1989, p. 2074). And, as such, the possibility of establishing a reality is not something to be thrown away. Not only because they want their accounts to be heard, but also - and maybe more importantly - because they want other accounts to mean less than what they actually do. In this context, reality is important, to the extent that it is also a mechanism that outsiders can use as a defense. In the end of the day - and now I can tell from my own experience - it is very violent to hear that something just happened in your head.¹⁸

Having said that, because many storytellers are committed to reality, I believe that it is important to take the verifiability problem into account, from a perspective that adheres to the possibility of at least some objectivity. In the next section I will argue that even if it is hard - perhaps even impossible? - to verify if the story that lies at the source of a legal argument is true, what matters in those kinds of arguments is not the story per se, but what it tells us about structural problems and, eventually, about the law. The stories that critical storytelling is concerned with are not about what happened to a person. They are entry points to social problems. Those problems, as will be exposes in the remainder of this article, can - and should - be verified.

The verifiability critique has been too focused on the story that prompts the legal argument, without considering the argument in its entirety. Because of that, responses to the criticism have been directed at showing how stories can or can’t be verified. These responses, as I have exposed above, are not satisfying. In this section I offer another response: a response that is less focused on the verifiability of the story per se and more interested in the verifiability of the legal argument as a whole. To do that, I will present two now canonical storytelling-based arguments. I will then discuss their structure. From there, I will try to show that arguments can stand or not stand based on the strength of its second level - that is, the social discussion that arises from the story told, independently of the truth status of the story told. The argument made here is that maybe it is hard or impossible to verify a personal story, but it is possible to verify the argument. And this is what matters for the kinds of legal arguments presented.

The present paper proposed a reflection about storytelling as a legal method, particularly interested in the matter of verifiability - can those arguments hold up when we have virtually no way of establishing the truth of the stories presented? I have argued that the weight stories have in legal arguments depends more on the legal syllogism presented in its entirety, than in the story per se. In other words, what really matters is not the story (that might or not be true), but the equality-based reflection prompted by it. Conceição Evaristo sums up this idea in an interesting way. When talking about her short stories book, she states: “Nothing that is being narrated in Becos da Memória is true, nothing that is narrated in Becos da Memória is a lie”²⁰. The way I read it - and I guess it is only one way - Evaristo’s point is to show how the truth of the stories are attached to the truth in the broader social context in which they happen.

Telling stories has always been a way of resisting in the most diverse settings. This paper started by showing that one of the most important ways through which inequalities are maintained is by the appropriation of narratives by those in power. Stories permeate the status quo, even if they seem not to be there at all. In response to that, many critics have adhered to the idea that subversion could be found in counter-stories.

For many years now, critical scholars associated with outsider jurisprudence in general and Critical Race Theory in particular have embraced this technique - storytelling - in order to reflect about the world and the law. This paper has tried to explore the place stories can have in a legal argument, addressing the criticism that such arguments could not stand, for the impossibility of verification of individual stories. As has been argued, verifiability is important, but the truth or not of certain stories does not really matter for the purpose of making justice claims - what matters for the strength of a legal argument is the meaning they have in determined contexts.

The place stories have in legal reasoning, however, is not limited to the constitution of the baseline of legal arguments. Just like what happens in other settings - such as the pedagogy or theater of the oppressed, exposed above - stories are triggers for reflection. Consciousness-raising is what sparks the fire for criticism. If one person tells a story about a lived experience that is shaped by subordination, chances are the other members of the group will have suffered it as well - something that once upon a time seemed personal, emerges as a political problem. Some groups have - let’s say - an advantage point to unearth inequalities (MOREIRA, 2019, p. 75). Stories are also a way of community-building (DELGADO, 1989, p. 2414) and self-preservation (DELGADO, 1989, p. 2436) and can positively affect ingroups, minimizing resistance against change (DELGADO, 1989, p. 2438). That, because they create empathy and, as such, can make events seem more relatable and challenges to them, more persuasive (MASSARO, 1989, p. 2105). These functions of stories - which are, at the same time, practical, political, and poetic - despite being less directly connected to the destabilization of legal doctrine, are just as important for the antisubordination drive that animates outsider jurisprudence. These features confer legal arguments a poetic status, to the extent they touch people in ways that are similar to art and that go way beyond what legal arguments are traditionally for.

Finally, and perhaps, more importantly, storytelling, in any setting, can be an imaginative exercise to show “that there are possibilities for life other than the ones we live” (DELGADO, 1989, p. 2414). The poetics of the oppressed considers the theater of the oppressor to be a close-ended spectacle, as the powerful already know how the world is. The oppressed, on the other hand, still don’t know what a liberated world would look like and, as such, can never present a finished spectacle²¹. Stories are a provisional way to envision a new world - and, in outsider jurisprudence - a new law.