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Unreliable Narration in Law and Fiction

  • Daniel Del Gobbo


This article revisits long-standing debates about objective interpretation in the common law system by focusing on a crime novel by Agatha Christie and judicial opinion by the Ontario High Court. Conventions of the crime fiction and judicial opinion genres inform readers’ assumption that the two texts are objectively interpretable. This article challenges this assumption by demonstrating that unreliable narration is often, if not always, a feature of written communication. Judges, like crime fiction writers, are storytellers. While these authors might intend for their stories to be read in certain ways, the potential for interpretive disconnect between unreliable narrators and readers means there can be no essential quality that marks a literary or legal text’s meaning as objective. Taken to heart, this demands that judges try to narrate their decisions more reliably so that readers are able to interpret the texts correctly when it matters most.



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1. According to the Gospel, Jesus Christ speaks these words at the Festival of Tabernacles to a group of disbelievers, skeptical of his claims to divine providence and persecution by Jewish leaders. The group had assumed incorrectly that Jesus Christ was demon-possessed on the basis of “mere appearances” only.

2. White, James Boyd, “The Ethics of Meaning” in Neville Turner, J & Williams, Pamela, eds, The Happy Couple: Law and Literature (Annandale, NSW: The Federation Press, 1994) [The Happy Couple] at 269.

3. The traditional study of “formal narratology” is founded in the pioneering work of Vladimir Propp, Claude Lévi-Strauss, and Tzvetan Todorev who attempt to describe narrative possibilities in the structuralist tradition by identifying constants and patterns of articulation between works. See generally Propp, Vladimir, Morphology of the Folktale, 2nd ed, translated by Scott, Laurence, revised by Wagner, Louis A (University of Texas Press, 1968); Lévi-Strauss, Claude, Structural Anthropology, vol. 2, translated by Layton, Monique (Allen Lane, 1977); Todorov, Tzvetan, The Poetics of Prose, translated by Howard, Richard (Basil Blackwell, 1977). Poststructuralist narratologists have revised structuralist narrative poetics by emphasizing “contextual narratology,” including the role of the reader in producing meaning. For a representative selection of the work done under this banner, see, e.g., Herman, David, Narratologies: New Perspectives on Narrative Analysis (Ohio State University Press, 1999). For a survey of historical and contemporary trends in formal and contextual narratology, see Bal, Mieke, Narratology: Introduction to the Theory of Narrative, 2 ed (University of Toronto Press, 1997); Keen, Suzanne, Narrative Form (Palgrave MacMillan, 2003).

4. Susan Bandes, “Empathy, Narrative, and Victim Impact Statements” (1996) 63 U Chi L Rev 361 at 382-84. Bandes is one of the few legal scholars who have drawn on the work of cognitive narratology. See also Weinstein, Philip M, “The Exploitative and Protective Imagination: Unreliable Narration in The Sacred Fount” in Bloomfeld, Morton W, ed, The Interpretation of Narrative: Theory and Practice (Harvard University Press, 1970) at 193 (suggesting the source of the analogy between the narrator and the novelist is that both seek to comprehend and shape the experience around them in intelligible forms); Steven L Winter, “The Cognitive Dimension of the Agon Between Legal Power and Narrative Meaning” (1989) 87 Mich L Rev 2225 at 2228 (explaining that narrative plays a role in how “the human mind makes sense of experience.”); Catharine Wells, “Situated Decisionmaking” (1990) 63 S Cal L Rev 1727 at 1743-44 (arguing that factual observations and normative judgments cannot be distinguished because judgments are influenced by perceptions within a cognitive framework); Jane B Baron, “Intention, Interpretation, and Stories” (1992) 42 Duke L J 630 at 658-59 (connecting the interpretation of written documents with prior comprehensible “story-types”); J Christopher Rideout, “Storytelling, Narrative Rationality, and Legal Persuasion” (2008) 14 J Legal Writing Inst 53 at 58 (canvassing theories that narrative structures are “endogenous,” or embedded in the structure of the mind and language).

5. Bandes, supra note 4

6. Ibid. This builds on John Locke’s theory that individuals annex forms to ideas, suggesting that meaning is always attributed to observations of the human mind in a way of fashioning the universe, rather than being inherent or already contained within these observations. See Locke, John, An Essay Concerning Human Understanding, vol. 2, ed by Fraser, Alexander Campbell (Dover, 1959) at 23.

7. Saussure’s pioneering work in linguistics has defined the structuralist and poststructuralist views on how meaning is maintained and established in language. One of his fundamental concepts is that meanings given to words are arbitrary, maintained by convention only without any inherent connection between the signifier and the signified. See de Saussure, Ferdinand, Course in General Linguistics, translated by Harris, Roy (Fontana Collins, 1983) at 127. See also Barthes, Roland, The Semiotic Challenge, translated by Howard, Richard (Blackwell, 1988); Culler, Jonathan, Structuralist Poetics (Routledge, 1975); Scholes, Robert, Structuralism in Literature: An Introduction (Yale University Press, 1974); Chatman, Seymour, Story and Discourse: Narrative Structure in Fiction and Film (Cornell University Press, 1978).

8. Bandes, supra note 4 at 384.

9. See Smith, Barbara Herrnstein, “Narrative Versions, Narrative Theories” in Mitchell, WJT, ed, On Narrative (University of Chicago Press, 1981) at 211.

10. This theory of literary and legal jurisdiction is inspired by Dworkin’s principled model of community that is comprised of associative obligations in which members agree on the interpretive practices they will jointly undertake. See Dworkin, Ronald, Law’s Empire (Harvard University Press, Belknap Press, 1986) at 195-202, 211. See also Kim L Scheppele, “Forward: Telling Stories” (1989) 87 Mich L Rev 2073 at 2090 (stating the “objectivist” assumption that “truth can be found by removing the self-serving accounts of those who stand to gain in the process of being partial.”).

11. See, e.g., Sanford Levinson, “Law as Literature” (1981-1982) 60 Tex L Rev 373; Owen M Fiss, “Objectivity and Interpretation” (1982) 34 Stan L Rev 739; Stanley Fish, “Fish v. Fiss” (1984) 36 Stan L Rev 1325 [Fish, “Fish v. Fiss”]; Richard H Weisberg, “Text into Theory: A Literary Approach to the Constitution” (1985-1986) 20 Ga L Rev 939. These articles and others were reprinted (and in some cases, expanded or condensed) in Levinson and Mailloux’s seminal volume in this field: Levinson, Sanford & Mailloux, Steven, eds, Interpreting Law and Literature: A Hermeneutic Reader (Northwestern University Press, 1988). See also Kenneth Abraham, “Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair” (1979) 32 Rutgers L Rev 678; Stephen A Edwards, “Interpretation of Legal Documents” (1979-1980) 20 Jurimetrics J 174; Knapp, Steven & Michaels, Walter Benn, “Against Theory”, reprinted in Mitchell, WJT, ed, Against Theory (University of Chicago Press, 1985) at 1130 ; Ronald Dworkin, A Matter of Principle (Oxford University Press, 1985) at 119-81 [Dworkin, A Matter of Principle]; Dworkin, supra note 10; Robin West, “Adjudication is Not Interpretation: Some Reservations about the Law-as-Literature Movement” (1986-1987) 54 Tenn L Rev 203; Brad Sherman, “Hermeneutics in Law” (1988) 51 Modern L Rev 386; Leyh, Gregory, ed, Legal Hermeneutics (University of California Press, 1992) [Legal Hermeneutics]; Mark Kingwell, “Let’s Ask Again: Is Law Like Literature?” (1994) 6:2 Yale JL & Human 317.

12. Hirsch, Eric, “Objective Interpretation” in Validity in Interpretation (Yale University Press, 1967) at 209-44 [Hirsch, “Objective Interpretation”]. Accord Eric Hirsch, The Aims of Interpretation (University of Chicago Press, 1978). Another classic statement in support of objectivism founded in authorial intent is William K Wimsatt & Monroe Beardsley, “The Intentional Fallacy” in William K Wimsatt, The Verbal Icon: Studies in the Meaning of Poetry (Noonday Press, 1958) at 21.

13. Hirsch, “Objective Interpretation,” supra note 12 at 236.

14. See, e.g., Robert M Cover, “Nomos and Narrative” (1983-1984) 97 Harv L Rev 4 at 10 (arguing that the intelligibility of written forms is derived in the communal character of narratives, locating them in a “common script”).

15. Fiss, supra note 11 at 739. See also Earl Maltz, “The Failure of Attacks on Constitutional Originalism” (1987) 4 Constitutional Commentary 43.

16. Fiss, supra note 11 at 744. Dennis Klinck describes the orthography of such an approach, stating that authoritative legal texts intend to adopt conventional language which should correspond to real classes of things in nature, such that it is possible to read these texts and settle on “valid” interpretations that are objectively intelligible and accessible to authors and readers. See Klinck, Dennis R, The Word of the Law: Approaches to Legal Discourse (Carleton University Press, 1992) at 9 (explaining that while different languages may adopt different linguistic conventions, the assumption is that authors’ intended meanings should be perfectly translatable and readings of texts are secure).

17. Christian Biet, “Judicial Fiction and Literary Fiction” (2008) 20 Law & Literature 403 at 419 (“The reader can decide to forgive, to acquit, to morally, religiously, legally condemn the hero and all the other characters in the eternal life, in the abstract literary world that reading constitutes, or in the fiction determined by the discourse. […] There are no limits to how the reader can judge.”).

18. Barthes famously argues that objective intelligible and accessible authorial intent is an undesirable standard for interpreting a text’s meaning, or at least interpreting a text written for intransitive ends. See Barthes, Roland, “The Death of the Author” in Sears, Sallie & Lord, Georgianna W, eds, The Discontinuous Universe: Selected Writings in Contemporary Consciousness, translated by Howard, Richard (Basic Books, 1972) at 10 [Barthes, “The Death of the Author”]. Barthes’s essay was one of the first to explore the consequences of dissociating the interpretive process from author, origin, and identity. For this reason, it is significant for approximating the transition from structuralism to poststructuralism in literary theory. See also Barthes, Roland, “From Work to Text” in Image-Music-Text, translated by Heath, Stephen (Hill and Wang, 1977) (summarizing the poststructuralist theory of the “text”).

19. Derrida’s “logic of the supplements” is that an act of writing (a signifier) is a mediation for speech (also a signifier), filling in as its crude and unequal substitute when speech is absent. Speech, in turn, is a mediation for some unmediated thing—in this case, objectively intelligible and accessible meaning (the purported signified). His claim is that if this unmediated thing must be self-sufficient, it could not be accurately represented by a sign. Thus, we are left with a series of representations of representations ad infinitum, and the purported signified is actually a signifier in disguise that may be subjectively interpreted. Accordingly, readers should deconstruct a text because there is no objective meaning behind it to reconstruct, or il n y’a pas de hors-text, “there is nothing outside of the text.” See Jacques Derrida, “The Exorbitant Question of Method” in Of Grammatology, translated by Gayatri Chakravorty Spivak (Johns Hopkins University Press, 1976) at 158. Two of the most concise and accessible summaries of the application of Derrida’s theory to the law are JM Balkin, “Deconstructive Practice and Legal Theory” (1987) 96 Yale L J 743 and Stephen M Feldman, “How to Be Critical” (2000) 76:2 Chicago-Kent L Rev 893.

20. See Kingwell, supra note 11 at 351; Michael J. Shapiro, Language and Political Understanding: The Politics of Discursive Practices (Yale University Press, 1981) at 132 (“The hermeneutical approach to meaning involves elucidating not only the symbolic system that is the subject matter of analysis, but also the interpreter’s frame of reference.”).

21. Gadamer explains that these “prejudices” imbue readers with a first understanding of texts that initiate and order the remaining interpretive processes. See Hans-Georg Gadamer, Truth and Method, 2nd ed (Crossroad Publishing Corporation, 1997) at 202. For useful discussion of Gadamer’s influence on the hermeneutical turn in jurisprudence, see Allan C Hutchinson, “Work-in-Progress: Gadamer, Tradition, and the Common Law” (2000-2001) 76 Chicago-Kent L Rev 1015.

22. Gadamer, supra note 21 at 301.

23. Stanley Fish, “Interpreting the Variorum” in Is There a Text in This Class?: The Authority of Interpretive Communities (Harvard University Press, 1980) [Fish, “Interpreting the Variorum”] at 171. Similarly, Culler argues that interpretive conventions must be seen as part of a boundless context: “Any given context is always open to further description. There is no limit in principle to what might be included in a given context, to what might be shown to be relevant to the interpretation of a particular speech act.” See Jonathan Culler, “Convention and Meaning: Derrida and Austin” in EC Davis & R Schleifer, eds, Contemporary Literary Criticism (Longman, 1989) at 24.

24. Fish, “Fish v. Fiss”, supra note 11 at 1332 (arguing that one cannot articulate and apply objectively intelligible and accessible disciplining rules because the act of doing so involves making subjective assumptions within a context where the rules are already intelligible and accessible). On this account, Fish claims that judges do not base their decisions on objective and abstracted legal principles, but they artificially assemble precedents to justify their decisions in a manner perceived to be consistent with their social, cultural, and political assumptions. See generally Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) [Fish, Doing What Comes Naturally] (asserting his provocative “anti-foundationalist” thesis).

25. See generally Fish, “Fish v. Fiss,” supra note 11; Fish, “Interpreting the Variorum,” supra note 23; Stanley Fish, “Anti-Professionalism” (1986) 7:3 Cardozo L Rev 645; Fish, Doing What Comes Naturally, supra note 24.

26. Agatha Christie, The Murder of Roger Ackroyd (Harper Collins, 1926).

27. Dworkin, A Matter of Principle, supra note 11 at 173.

28. The term “pragmatic” applies here in both its plain and jurisprudential sense. See Lief H Carter, “How Trial Judges Talk: Speculations about Foundationalism and Pragmatism in Legal Culture” in Legal Hermeneutics, supra note 11 at 219.

29. See Gerald Prince, Narratology: The Form and Functioning of Narrative (The Hague: Mouton, 1982) at 157 (“Narrative often displays itself in terms of an end which functions as its (partial) condition, its magnetizing force, its organizing principle.”).

30. Weisberg, supra note 11 at 980.

31. Gadamer himself insists that “[w]hat [people] need is not just the persistent posing of ultimate questions, but the sense of what is feasible, what is correct, here and now.” See Gadamer, supra note 21 at xxxviii.

32. Supra note 23 and accompanying text.

33. See Wayne Booth, The Rhetoric of Fiction (Chicago University Press, 1961) at 155-59 (explaining that the concept of reliability is linked to convergence between the implied author, narrator, and reader’s norms).

34. Ibid at 158-59 (“I have called a narrator reliable when he speaks for and acts in accordance with the norms of the work (which is to say, the implied author’s norms), unreliable when he has not.”) [emphasis in original].

35. Gérard Genette calls this the “zero focalization” perspective: see Gérard Genette, Narrative Discourse (Basil Blackwell, 1972) at 189-94. Alternately, the omniscient narrator is called “covert,” “effaced,” “non-intrusive,” or “non-dramatized” in literary criticism. David Lodge argues that the prospect of an “omniscient unreliable” narrator may be a contradiction in terms because it is difficult to conceive how a narrator could be all-knowing, and therefore incapable of observing, reporting, or evaluating badly, and consciously or unconsciously evasive at the same time. Lodge suggests that such a narrator could only figure in a very “deviant, experimental text.” See David Lodge, The Art of Fiction (Penguin, 1994) at 154-55; Keen, supra note 3 at 43. As if responding to Lodge’s invitation, several critics have challenged the automatic of the reliable omniscient narrator: see, e.g., Tamar Yacobi, “Interart Narrative: (Un)Reliability and Ekphrasis” (2000) 21:4 Poetics Today 711; Emily R Anderson, “Telling Stories: Unreliable Discourse, Fight Club, and the Cinematic Narrator” (2010) 40:1 Journal of Narrative Theory 80.

36. Correspondingly, the internal or external focalized narrator is called “overt,” “intrusive,” or “dramatized” in literary criticism. Such a narrator may be “heterodiegetic,” meaning not a character in the story she narrates, or “homodiegetic,” meaning a character in the story she narrates. See generally Genette, supra note 35 at 245; Gerald Prince, “Narratology” in The Cambridge History of Literary Criticism, vol 8 (Cambridge University Press, 1995) at 122-25; Keen, supra note 3 at 30-54.

37. James Phelan, Living to Tell about It: A Rhetoric and Ethics of Character Narration (Cornell University Press, 2004) at 50.

38. Booth, supra note 33. Booth’s account of unreliable narration has inspired numerous case studies. See, e.g., Theresa Heyd, “Understanding and Handling Unreliable Narratives: A Pragmatic Model and Method” (2006) 162:1-4 Semiotica 217. Scholars have criticized Booth’s account for placing too little significance on the role of the implied reader in “constructing” the unreliable narrator persona. See, e.g., Kathleen Wall, “The Remains of the Day and its Challenges to Theories of Unreliable Narration” (1994) 24:1 Journal of Narrative Technique 18; Monika Fludernik, “Defining (in)sanity: The Narrator of The Yellow Wallpaper and the Question of Unreliability” in Walter Grünzweig & Andreas Solbach, eds, Transcending Boundaries (Tübingen, Germany: Narr, 1999); Bruno Zerweck, “Historicizing Unreliable Narration: Unreliability and Cultural Discourse in Narrative Fiction” (2001) 35:1 Style 151.

39. Heyd, supra note 38 at 227. Suzanne Keen explains that along the axis of intentionality, there may be several reasons a narrator is unreliable. These include psychological states such as grief or denial; mental incapacities such as a low IQ; an incomplete grasp of language caused by senility or youth; limited access to information; and dishonesty or another deliberate motivation to tell the story in a misleading way. See Keen, supra note 3 at 43.

40. See Gadamer, supra note 21 (“for it is not [the] purpose [of legal hermeneutics] to understand given texts, but to be a practical measure to help fill a kind of gap in the system of legal dogmatics.”); Dworkin, Law’s Empire, supra note 10 at 94, 96, 109, 110 (arguing that judges advance their own interpretation of laws in order to justify the coercive power of the state); Cover, supra note 14 at 6.

41. Christie, supra note 26.

42. The novel’s structure has been considered by authors as diverse as Raymond Chandler, Roland Barthes, Algirdas Julien Greimas, Gérard Genette, and Umberto Eco. Pierre Bayard’s monograph Who Killed Roger Ackroyd?, translated by Carol Cosman (The New Press, 2000), is the most thorough exploration of the implications of unreliability in the narrative. For complementary analyses, see also Martin Priestman, “Writers and their Work” in Crime Fiction from Poe to the Present (Northcote, 1998); Carl R Lovitt, “Controlling Discourse in Detective Fiction, or Caring Very Much Who Killed Roger Ackroyd” in Ronald G Walker & June M Frazer, eds, The Cunning Craft (Western Illinois University Press, 1990); Stephen Knight, Form and Ideology in Crime Fiction (Indiana University Press, 1980); Peter Messent, The Crime Fiction Handbook (John Wiley & Sons, 2013).

43. Supra note 11 at 173.

44. It is a frequent criticism of law-and-literature scholarship that much of it lacks a principled methodology for selecting certain literary sources over others from which to draw insight about the legal process. See, e.g., Jane B Baron, “Law, Literature, and the Problems of Interdisciplinarity” (1999) 108:5 Yale L J 1059 at 1067; Daniel A Farber & Suzanna Sherry, “Telling Stories Out of School: An Essay on Legal Narratives” (1993) 45:4 Stan L Rev 807 at 831.

45. Neil C Sargent, “Mys-Reading the Past in Detective Fiction and Law” (2010) 22:2 Law & Literature 288 at 291.

46. Ibid. For analyses of the generic conventions of crime fiction generally, see, e.g., Knight, supra note 42; Tzvetan Todorov, “The Typology of Detective Fiction” in Chris Greer, ed, Crime and Media: A Reader (Routledge, 2010); Patricia Merivale & Susan Elizabeth Sweeney, eds, Detecting Texts: The Metaphysical Detective Story from Poe to Postmodernism (University of Pennsylvania Press, 1999); Dennis Porter, The Pursuit of Crime: Art and Ideology in Detective Fiction (Yale University Press, 1981); Stephen Knight, Crime Fiction 1800-2000 (Palgrave, 2004); John Clarke, “The Pleasures of Crime: Interrogating the Detective Story” in J Muncie & E McLaughlin, eds, The Problem of Crime (Sage, 2001); Lawrence M Friedman & Issachar Rozen-Zvi, “Illegal Fictions: Mystery Novels and the Popular Image of Crime” (2001) 48 UCLA L Rev 1411 at 1418-419.

47. Cecil Day-Lewis, “The Detective Story—Why” in Howard Haycraft, ed, The Art of the Mystery Story (Carroll & Graf, 1949) at 399. Rosanna Cavallaro has suggested that crime fiction’s capacity for offering factual certainty is what makes the genre “both plausible and satisfying.” See Rosanna Cavallaro, “Licensed to Kill: Spy Fiction and the Demise of Law” (2010) 47:3 San Diego L Rev 641 at 651, 667. See also DA Miller, The Novel and the Police (University of California Press, 1988) at 36-39, 45-46; Knight, supra note 42 at 117-18.

48. See Richard Posner, Law and Literature: A Misunderstood Relation (Harvard University Press, 1988) at 272.

49. Occasionally in crime fiction, after the detective has revealed the unambiguously correct solution to readers, he or she gives an alternative explanation to police on account of some higher imperative, usually to spare the surviving victim continued hardship or the murderer undeserved punishment. This explanation is usually accepted by the police because the detective has strategically withheld certain facts. In such cases, readers are almost always in on the deception which does not challenge the certainty of the correct solution—that is, the solution which the narrator intends the readers to perceive as the right one—unless the narrative is unreliable. One of the best known examples of such a story is Agatha Christie, Murder on the Orient Express (Harper Collins, 1934).

50. See Bayard, supra note 42 at 83.

51. The subgenre of Classical crime fiction, first popularized and closely associated with the interwar period in Britain, is alternately termed the “Golden Age,” “clue-puzzle,” or “whodunit” subgenre in literary criticism. Agatha Christie, Dorothy Sayers, Margery Allingham, and Ngaio Marsh are the most representative and enduring authors.

52. Day-Lewis connected the rise of Classical crime fiction with the rise of secularization at the end of the Victorian era in Britain. See Day-Lewis, supra note 47 at 399. This anticipates the arguments of modernist critics that the hermeneutical certainty of crime stories provided interwar readers an antidote to the increasing instability of Victorian modes of thinking, which had been shocked by the carnage of the First World War and sustained intellectual challenges by Freud, Darwin, and other writers. On this account, the role of law enforcement in Classical crime fiction is seen as a comforting presence which restores order to the chaos of murder in particular and modernity in general. For more on the links between Classical crime fiction and modernism, see, e.g., Alison Light, Forever England: Femininity, Literature, and Conservatism Between the Wars (Routledge, 1991); Michael Holquist, “Whodunit and Other Questions: Metaphysical Detective Stories in Postwar Fiction” in Glenn W Most & William W Stowe, eds, The Poetics of Murder: Detective Fiction and Literary Theory (Harcourt: 1983); Carolyn Durham, “Modernism and Mystery: The Curious Case of the Lost Generation” (2003) 49:1 Twentieth Century Literature 82; Gill Plain, Twentieth Century Crime Fiction: Gender, Sexuality, and the Body (Edinburgh University Press, 2001); Charles J Rzepka, Detective Fiction (Polity Press, 2005).

53. Numerous literary and legal studies have identified these and other conventional characteristics of the Classical crime fiction subgenre. For representative studies, see, e.g., George Grella, “Murder and Manners: The Formal Detective Novel” (1970) 4:1 NOVEL: A Forum on Fiction 30; Messent, supra note 42; Friedman & Rozen-Zvi, supra note 46.

54. Christie, supra note 26 at 292.

55. Bayard, supra note 42 at 34.

56. Ibid at 46.

57. Ibid at 310.

58. Another example of double-edged discourse occurs in Sheppard’s account of his thought process during his final conversation with Ackroyd, narrated as follows: “Suddenly before my eyes there arose the picture of Ralph Paton and Mrs. Ferrars side by side. Their heads so close together. I felt a momentary throb of anxiety. Supposing—oh! but surely that was impossible. I remembered the frankness of Ralph’s greeting that very afternoon. Absurd!” Christie, supra note 26 at 43. Really, Sheppard’s “momentary throb of anxiety” and lessened command of language—“Supposing—oh! but surely that was impossible.”—refers to the terrifying prospect that Dorothy Ferrars, who is being blackmailed by Sheppard, confided the facts of the blackmail to Sheppard’s friend Ralph Paton before she died. For the reader who does not yet suspect Sheppard of having blackmailed Ferrars, Sheppard’s anguish figures as an innocent reaction to the idea that Ferrars had privately accused Paton of the blackmail. See Bayard, supra note 42 at 34-35.

59. Knight, supra note 42 at 121-23 (arguing that the novel’s plot was so disturbing because the murderer is a doctor, “the very man to be trusted with the individual’s bodily secrets and hope of continuing life, the emerging figure of wise authority in an increasingly secular society.”).

60. Kathy Mezei, “Spinsters, Surveillance, and Speech: The Case of Miss Marple, Miss Mole, and Miss Jekyll” (2007) 30:2 Journal of Modern Literature 103 at 107.

61. See Bayard, supra note 42 at 34.

62. Ibid.

63. Sargent, supra note 45 at 289.

64. Ibid.

65. See Christine Corcos, “Presuming Innocence: Alan Pakula and Scott Turow Take on the Great American Legal Fiction” (1997) 22:1 Okla City UL Rev 129 at 146.

66. See Sargent, supra note 45 at 289. See also RA York, Agatha Christie: Power and Illusion (Palgrave MacMillan, 2007) at 26.

67. The novel resulted in a “prohibition” of narrator-murderers in crime fiction by the Detection Club, an association of crime fiction authors with which Christie was affiliated. One of the Detection Club’s founding members, Ronald Knox, listed the prohibition as one of his “Ten Commandments of Detection” published in Essays in Satire (Sheed & Ward, 1928). Similar rules against narrator-murderers were added to other lists from the period, including one written by SS Van Dine who called Christie’s device “insidious” as quoted. The newspaper Daily Sketch called Christie’s gambit a “tasteless, unforgiveable let-down by a writer we had grown to admire.” One irate reader, a doctor like Sheppard, wrote to The Times: “Until now I have always been a great admirer of Agatha Christie but in the latest book I feel she has let the whole of the medical profession down and therefore propose in the future not to buy any more of her books.” Throughout her life, Christie defended the novel from critics who challenged her device of the narrator-murderer. As she explained to Francis Wyndham: “I have a certain amount of rules. No false words must be uttered by me. To write ‘Mrs. Armstrong walked home wondering who had committed the murder’ would be unfair if she had done it herself. But it’s not unfair to leave things out. In Roger Ackroyd I made the narrator write: ‘It was just on ten minutes to nine when I left him.’ There’s lack of explanation there, but no false statement. Whoever my villain is it has to be someone I feel could do the murder.” Dorothy Sayers, a contemporary of Christie’s and some-considered rival, defended her in public by saying, “Fair! And Fooled you … it’s the reader’s business to suspect everybody.” For full accounts of these and other critics’ responses to the novel at the time of its publication, see Gwen Robyns, The Mystery of Agatha Christie (Doubleday & Company, 1978) at 56-58; Robert Barnard, A Talent to Deceive: An Appreciation of Agatha Christie (Dodd, Mead, and Company, 1980) at 37-39.

68. See Heyd, supra note 38 at 240.

69. Bayard, supra note 42.

70. Christie, supra note 26 at 310.

71. Ibid at 309.

72. Ibid at 128.

73. Culler, supra note 7 at 157.

74. Supra note 35 and accompanying text.

75. For example, the presumption of reliability would not attach, at least not in the same way, to autobiographies, memoirs, or other personal histories which are properly classified as “non-fiction,” but which are understood to represent one individual or group’s limited perspective on real life events. See generally Sidonie Smith & Julia Watson, “The Trouble with Autobiography: Cautionary Notes for Narrative Theorists” in James Phelan & Peter J Rabinowitz, eds, A Companion to Narrative Theory (Blackwell, 2008).

76. Supra note 35 and accompanying text.

77. Supra note 33 and accompanying text.

78. On the narratological approach to legal discourse, see generally David R Papke, ed, Narrative and the Legal Discourse: A Reader in Storytelling and the Law (Liverpool: Deborah Charles Publications, 1991); Peter Brooks & Paul Gerwitz, eds, Law’s Stories: Narrative and Rhetoric in Law (Yale University Press, 1996); Peter Brooks, “Narrativity of the Law” (2002) 14:1 Law & Literature 1 [Brooks, “Narrativity”]; Peter Brooks, “Narrative Transactions—Does the Law Need a Narratology?” (2006) 18:1 Yale J L & Humanities 1.

79. See Brooks, “Narrativity,” supra note 78 at 1. Brooks explains that these arguments are uncontroversial to narratologists but remain heretical to legal scholars who fail to recognize the role of narrative in the adjudicative process. Brooks observes that the best-known book in the law-and-literature field remains Posner’s Law and Literature: A Misunderstood Relation, which argues at bottom that literary theory has little to offer the law in practice. See Posner, supra note 48.

80. While there are few similar analyses of crime fictions and judicial opinions, this article is not the first to analyze judgments using methodologies borrowed from literary studies. See, e.g., Walker Gibson, “Literary Minds and Judicial Style” (1961) 36 NYU L Rev 915 at 928-30; Richard Weisberg, “How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with an Application to Justice Rehnquist” (1982) 57:1 NYU L Rev at 42-58; Robin West, “Jurisprudence as Narrative: An Aesthetic Analysis of Modern Legal Theory” (1985) 60 NYU L Rev 145; Judith H Resnick, “On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges” (1988) 61 S Cal L Rev 1877 at 1882; Deborah S Gordon, ““‘Jug Jug’ to Dirty Ears”: Maryland v. Craig Through a Literary Lens” (1991) 66 NYU L Rev 1404; David R Papke, “Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions” in Papke, supra note 78 at 210; Shulamit Almog, “As I Read, I Weep—In Praise of Judicial Narrative” (2001) 26:2 Okla City U L Rev 471; Arthur Glass, “James Boyd White and the Character of Judgments” in The Happy Couple, supra note 2 at 290; Posner, supra note 48 at 281-89; Klinck, supra note 16 at 304-23.

81. Robert Ferguson, “The Judicial Opinion as Literary Genre” (1990) 2:1 Yale JL & Human 201 at 205 (arguing that judicial speech works to appropriate other voices into its own monologue). See also David Ray Papke & Kathleen McManus, “Narrative and the Appellate Opinion” (1999) 23:4 Legal Studies Forum 450 at 462.

82. Ferguson, supra note 81 at 208 (“Every court makes a fundamental decision about the question before it, and the wording in that first decision controls all others.”).

83. Ibid at 213 (suggesting that hyperbole, certitude, assertion, simplification, and abstraction are the essential devices which contribute to the declarative tone of judgments).

84. See generally Wayne Booth, Modern Dogma and the Rhetoric of Assent (University of Notre Dame Press, 1974); Richard Weaver, Language is Sermonic (Louisiana State University Press, 1970). For example, George Rose Smith advises judges to write opinions in a “point-first” manner—that is, judges should state the court’s conclusions near the beginning of their judgments—which practice “induces the reader to be on the court’s side from the start; he is preconvinced that the decision is right.” See George Rose Smith, “A Primer of Opinion Writing, For Four New Judges” (1967-1968) 21 Ark L Rev 197 at 204.

85. Ferguson, supra note 81 at 206-07. See also Erwin Chemerinsky, “The Rhetoric of Constitutional Law” (2002) 100:8 Mich L Rev 2008; Peter Brooks, “Inevitable Discovery—Law, Narrative, Retrospectivity” (2002) 15 Yale JL & Human 71; Rosanna Cavallaro, “Solution to Dissolution: Detective Fiction from Wilkie Collins to Gabriel Garcia Marquez” (2005) 15 Tex J Women & L 1.

86. Ferguson, supra note 81 at 206-07. See also Pierre Bourdieu, “The Force of Law: Towards a Sociology of the Juridical Field” (1987) 38:5 Hastings LR 814 at 819-20; Papke & McManus, supra note 81 at 461. Klinck remarks on the general reluctance of judges to use the personal pronoun “I” in their formal writing because they feel it is inappropriate that judges should manifest “personal” perspectives. He concludes that unlike an omniscient narrator in fiction, the judge has an interest in how the legal case unfolds and therefore becomes a character in the story herself. See Klinck, supra note 16 at 307.

87. Per curiam reasons by the Supreme Court of Canada are rare. They are typically reserved for cases with exceptional implications, a high public profile, or great potential for controversy. Notable recent examples are Reference re Same Sex Marriage, [2004] 3 SCR 698 on the constitutional validity of same-sex marriage legislation in Canada; Canada (Prime Minister) v Khadr, [2010] 1 SCR 44 on the Charter rights of Omar Khadr, a Canadian-born combatant in the War on Terror who was captured and held in Guantanamo Bay; and Reference re Senate Reform, [2014] 1 SCR 704 on certain constitutional and legislative issues arising from efforts to reform the Senate of Canada.

88. See Smith, supra note 84 at 204 (prescribing a similar five-step formula that opinions should generally follow); Neil C Sargent, “Murder and Mayhem in Legal Method: or, the Strange Case of Sherlock Holmes v. Sam Spade” in Logan Atkinson & Diana Majury, eds, Law, Mystery, and the Humanities (University of Toronto Press, 2009) at 39 (finding a shared structure in crime fiction and legal analysis that promotes logical reasoning).

89. Rosanna Cavallaro, “Pride and Prejudice and Proof: Quotidian Factfinding and the Rules of Evidence” (2004) 55 Hastings LJ 697 at 697 (arguing that while “the traditional assumption has been that the primary purpose of adjudication is truthseeking,” concerned with the accurate and orderly evaluation of disputed facts and past events, “this premise has been challenged by a variety of scholars proposing alternative purposes”).

90. Cavallaro, supra note 47 at 648.

91. To appropriate Knight’s description of crime fiction that is equally applicable in this context, judicial resolutions are “consistent, often highly artificial and deeply comforting.” See Knight, supra note 42 at 125.

92. See Biet, supra note 17 at 416-17. Biet explores the functions and truth value of what he calls “legal fictions,” meaning the value of an external rule that permits readers (or judges) to make a decision, and “judicial fictions,” meaning the narrative which weaves legal fictions and literary elements into a persuasive document (e.g., a factum). Biet distinguishes legal fictions and judicial fictions from “real court judgments,” which he does not expressly classify as “non-fictions” as this article does, but which he agrees function as authorities for the specific application of “legal fictions” to specific facts.

93. See Klinck, supra note 16 at 297.

94. Brooks, “Narrativity,” supra note 78 at 8; Peter Brooks, “Law and Humanities: Two Attempts” (2013) 93:4 BUL Rev 1437 at 1462-63.

95. Alan Dershowitz argues that if we “import the narrative form of storytelling into our legal system, we confuse fiction with fact and endanger the truth-finding function of the adjudication process.” See Alan M Dershowitz, “Life is Not a Dramatic Narrative” in Brooks & Gerwitz, supra note 78 at 99, 101. Similarly, the Canadian Judicial Council stresses in its ethical guidance to federally appointed judges that, given the independence accorded to judges, they share a collective responsibility to promote a certain standard of conduct: “The rule of law and the independence of the judiciary depend primarily upon public confidence. Lapses and questionable conduct by judges tend to erode that confidence.” See Canadian Judicial Council, Ethical Principles for Judges (Canadian Judicial Council, 2004) at 10, online: Principles_en.pdf. One judge of the Court of Appeal for Ontario, Justice David Watt, has recently come under fire in the media for his use of narrative embellishments in his decisions “reminiscent of crime novels” that may undermine their appearance of legitimacy. Speaking about Justice Watt’s “literary panache,” one law professor was quoted in The Globe and Mail stating “He is out of control” and “I am frankly surprised that no one on the court—including the Chief Justice—has said anything to him. I would not be surprised if there is not a judicial council complaint if he continues.” See Kirk Makin, “The judge who writes like a paperback novelist,” The Globe and Mail (5 April 2011), online: news/national/ontario/the-judge-who-writes-like-a-paperback-novelist/article 1937791/.

96. In one case, Lord Denning showed remarkable candor by explaining why he should not be bound by a relevant precedent that he had himself drafted: “I am afraid that I am the cause of all the trouble: because of what I said in [The Mandarin Star]. I must confess now that I was wrong there”. See Shell Petroleum Ltd v Gibbs, [1982] 1 QB 946 at 987. Lord Denning’s reasons in The Mandarin Star can be found at [1969] 2 QB 449.

97. [1988] 6 WDB (2d) 112 (Ont HC) [Lodge].

98. RSC 1985, c C-46.

99. Ibid at paras 1-14.

100. Christie, supra note 26 at 292.

101. Angela Fernandez, Pierson v. Post, the Hunt for the Fox: Law and Professionalism in American Legal Culture (forthcoming, Cambridge University Press) (copy on file with the author) at 37. Beyond these, the law books are replete with examples of judicial opinions that defy generic conventions. See, e.g., John B McClay & Wendy L Matthews, eds, Corpus Juris Humorous in Brief: A Compilation of Humorous, Extraordinary, Outrageous, Unusual, Infamous, and Witty Opinions from 1256 A.D. to the Present (Barnes and Noble, 1994).

102. See LaTouraine Coffee Co v Lorraine Coffee Co, 157 F.2d 115 at 123-24 (C. C. A. 2d 1946), per Frank J.A. (dissenting opinion), cited in Jerome Frank, “Say It With Music” (1948) 61:6 Harv L Rev 921 at 928 (“Fact-finding, when a judge sits without a jury and the record consists of oral testimony, is his responsibility, not that of the upper courts. Only when it is clear beyond doubt that he has closed his eyes to the evidence, may an upper court properly ignore his version of the facts. Since his ‘finding’ of ‘facts,’ responsive to the testimony, is inherently subjective (i.e., what he actually believes to be the facts is hidden from scrutiny by others), his concealed disregard of evidence is always a possibility. An upper court must accept that possibility, and must recognize, too, that such hidden misconduct by a trial judge lies beyond its control. Only, perhaps, by psycho-analyzing the trial judge could his secret mental operations be ascertained by us; and we are not skilled in that art, which, at the least, would require many hours of intensive personal interviews with the judge.”).

103. This “indeterminacy thesis” of judicial reasoning has been articulated before, but without analogy to crime fiction or detailed reference to contemporary advances in narratology. See generally Frank, ibid; JAG Griffith, The Politics of the Judiciary (Manchester University Press, 1977); Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory” (1984) 94:1 Yale LJ 1; Duncan Kennedy, “Freedom and Constraint in Adjudication: A Critical Phenomenology” (1986) 36:4 J Legal Educ 518; Mark V Tushnet, “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles” (1983) 96:4 Harv L Rev 781.

104. To the contrary, Michael Hancher and other scholars have argued that literary interpretation can be distinguished from legal interpretation because appellate judges are able conclusively solve the meaning of a subject text. See Michael Hancher, “Dead Letters: Wills and Poems” (1982) 60:3 Tex LR 507; Michael Hancher, “What Kind of Speech Act is Interpretation?” (1981) 10 Poetics 263. However, while appellate judges can order meaning with practical certainty for a time, it is unclear that they can order meaning with hermeneutical certainty for any time or at all. Appellate courts often contradict and even explicitly overrule themselves, which suggests that a plurality of meanings or at least an evolution or malleability of meaning can derive from a text over time.

105. West, supra note 11 at 150-51. See also Papke, supra note 80 at 208. (“[D]espite their literary features, appellate opinions, because they are backed by state power, have more in common with legislation and government decrees than with great poems or novels.”). Others have made similar arguments that subjective interpretivist theory is contrary or counterproductive to the task of legal interpretation in contexts where making the right judgment is a practical necessity. See generally Daniella Murynka, “Some Problems with Killing the Legislator” (2015) 73 UT Fac L Rev 11 at 24-26.

106. This recommendation should not be controversial. See Canadian Judicial Council, Commentaries on Judicial Conduct (Cowansville, Quebec: Êditions Yvon Blais, 1991) at 12-13 (“There is no human being who is not the product of every social experience, every process of education, and every human contact with those whom we share the planet … [T]he wisdom required of a judge is to recognize, consciously allow for, and perhaps to question, all the baggage of bad attitudes and sympathies that fellow sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.”). Several judges have been more forthright about accepting the limitations of their interpretive processes. See, e.g., John W Morden, “The ‘Good’ Judge” Ontario Justice Education Network (5 March 2004) at 6, online: hon_john_morden_the_good_judge_mar0504.pdf.

107. See, e.g., Allan Hutchinson, “Part of an Essay on Power and Interpretation (with Suggestions on How to Make Bouillabaisse)” (1985) 60 NYU L Rev 850 at 861 (arguing that legal discourse, being a form of narrative, favours some aspects of human experience over others and therefore contributes to power imbalances); Milner S Ball, “Stories of Origin and Constitutional Possibilities” (1989) 87:8 Mich L Rev 2280 (providing an account of how outsider stories can challenge insider privilege); Debora L Threedy, “The Madness of a Seduced Woman: Gender, Law, and Literature” (1996) 6 Tex J Women & L 1 at 17 (suggesting the study of narrative as a means of exposing the ways that traditional legal discourse tends to silence the voices of historically marginalized groups).

108. See, e.g., Frank, supra note 102 at 932 (describing how trial judges cannot formulate his instinctive and intuitive responses to conflicting oral testimony in traditional linguistic forms, which “wordless knowledge” is integral to the judges’ decision-making process).

109. See, e.g., Martha Minow, “The Supreme Court, 1986 Term—Foreword: Justice Engendered” (1987) 101 Harv L Rev 10 at 45-50 (explaining that judges fail to appreciate the role of standpoint bias in decision-making).

110. For one example of how narratology can be mobilized in law toward socially progressive ends, see Kathryn C Swiss, “Confined to a Narrative: Approaching Rape Shield Laws through Legal Narratology” (2013-2014) 6 Wash U Jurisprudence Rev 397.

111. The study of narratology has been critically applied in fields as diverse as musicology, art criticism, philosophy, and psychology. See, e.g., Anthony Newcomb, “Schumann and Late Eighteenth Century Narrative Strategies” (1987) 11:2 19th-Century Music 164 at 164-74; Wendy Steiner, Pictures of Romance: Form against Context in Painting and Literature (University of Chicago Press, 1988); Christian Metz, Film Language: A Semiotics of Cinema, translated by Michael Taylor (University of Chicago Press, 1991); Christine G Glenn, “The Role of Episodic Structure and Story Length in Children’s Recall of Simple Stories” (1978) 17 Journal of Verbal Learning and Verbal Behaviour 229 Nancy L Stein, “The Definition of a Story” (1982) 6 Journal of Pragmatics 487.

112. See generally Farber & Sherry, supra note 44 (on both the use of storytelling in legal scholarship as well as widely-accepted indicia of quality legal scholarship in the Anglo-American tradition).

113. See generally Keen, supra note 3 at 128-40 (explaining the narrative mechanics of fiction taking the form of non-fiction). One of the most spectacular examples of revealed-to-be fictional academic “nonfiction” is Glenn Boyer’s edited memoir of Josephine Earp, which was discovered nearly twenty years after its original publication by a respected university press to be “creative nonfiction” having a “fictional format.” See Glenn G Boyer, I Married Wyatt Earp: The Recollections of Josephine Sarah Marcus Earp (University of Arizona Press, 1976).

114. Roger Ackroyd was published in spring of 1926. The year was a tumultuous one for Christie, as it had become plain that her marriage to Archie Christie so badly deteriorated that he was publicly carrying on an affair with another woman, Ms. Nancy Neele. On December 3, 1926, after Archie had left to visit Ms. Neele for the weekend, Christie packed her bags and drove off. Her car was found the next morning abandoned on an embankment covered in frost. Inside the car, the police found a small case, women’s clothing, and driving license bearing Christie’s name. The newspapers were soon ablaze with speculation about the writer’s disappearance. The Daily News even offered a sizable reward for information leading to Christie’s discovery. By the following weekend, police officers from four counties and thousands of volunteers had become involved in the search. On the evening of December 14, 1926, Christie was recognized as a guest at the Hydropathic Hotel in Harrogate where she had checked in under the name of Ms. Teresa Neele, claiming to be a visitor from South Africa. When asked by a Daily News reporter how she had got to Harrogate, Christie said that she did not know and that she was suffering from amnesia. Archie Christie positively identified his wife, announcing in the press that she had suffered near complete memory loss, which statement was later corroborated by two doctors. However, this did not stop the press from accusing Christie of having planned her disappearance to obtain publicity. Christie makes no direct reference to her disappearance in her autobiography, stating merely that after illness came sorrow and heartbreak, and that there was no need to dwell on it. For a more detailed account of Christie’s mysterious disappearance, see Charles Osborne, The Life and Crimes of Agatha Christie (Harper Collins, 2000) at 51-57.

115. For its onomatopoeic quality, this article owes a credit of inspiration to Part IV of Jerry Frug, “Argument as Character” (1988) 40:4 Stan L Rev 869.

I am indebted to Richard Bronaugh, Simon Stern, Janet Halley, Alan Stone, Ryan Teschner, Trevor Guy, Morgan Vanek, Alex Howard, Max Rosen, and the Honourable John Morden for their generous and challenging comments on earlier drafts. The article benefited from feedback received at the Yale University interdisciplinary conference Law and Fictional Discourse in May 2015 and the Annual Meeting of the Association for the Study of Law, Culture, and the Humanities in March 2017. Above all, I owe a credit to Paul Bozzo for lighting the spark that became R v. Lodge.


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