This critical dichotomy between teleological rules of drama and interpretation, on the one hand, and the mostly random rules of real life, on the other, had profoundly important implications for our legal system. When we import the narrative for of [sic] storytelling into our legal system, we confuse fiction with fact and endanger the truth-finding function of the adjudicative process. Fact finders are familiar with the dramatic form – not only from Chekhov but also from pulp novels, mysteries, movies and television shows. They expect a beginning, middle and an end to each story. –A. M. Dershowitz, “Life Is Not a Dramatic Narrative,” Law’s Stories: Narrative and Rhetoric in the Law, Ed. P. Brooks, P. Gewirtz, Yale University Press, New Haven (1996) at 101
Moral crusades advance claims about both the gravity and incidence of a particular problem. They typically rely on horror stories and “atrocity tales” about victims in which the most shocking exemplars of victimization are described and typified. Casting the problem in highly dramatic terms by recounting the plight of highly traumatized victims is intended to alarm the public and policy makers and justify draconian solutions. At the same time, inflated claims are made about the magnitude of the problem. A key feature of many moral crusades is that the imputed scale of a problem … far exceeds what is warranted by the available evidence. —[supply cite]
… debates about free proof are only partly about epistemology, but become impassioned because they go to the core of the constitutional settlement: what is the justifiable basis on which the court, as an organ of the state, decides whether an individual (citizen) is telling the truth, and consequently whether the state should exercise its power to deprive an individual (citizen) of her liberty or property in some way. —Dwyer, Deirdre M. (2005) “What Does It Mean To Be Free? The Concept of ‘Free Proof’ in the Western Legal Tradition,” International Commentary on Evidence: Vol. 3 : Iss. 1, Article 6.
I did this within a philosophical framework, and a moral and legal framework. And I have been turned into a cartoon of the greatest villain in the history of lobbying. –Jack Abramoff, cooperating federal witness
Oedipus the King sets out to discover the identify of the man who murdered his father, the king. He discovers that he is the man who murdered his father, the king. He punishes the murderer, blinding himself.
This is why justice is blind. Or so the story goes.
Pogo: “We have met the enemy, and they are us.”
- Life Imitates Art: Larry Rohter on the Death of the King of Bahia
- Larry Rohter Leaves Brazil: “I Feel Like a Prostitute Lynched by Hypocrites”
In his farewell interview with the Estado de S. Paulo, Rohter uses this topos several times, most notably when he compares himself to the figure of Geni in Chico Buarque’s “Geni e o Zepelim,” from the Opera do Malandro — an adaptation of The Threepenny Opera of Brecht and Weill.
The narrative fallacy and the politics of moral panic — as practiced by Condoleeza “Mushroom Cloud” Rice and Judy “Aluminum Tubes” Miller, for example — have a lot to do with it.
In Veja (Brazil): Behind the Scenes of an “Exemplary” Investigative Report, for example, I noted that
“Relative plausibility” is a concept that turns up a lot in debates over “narrative journalism” and the “narrative fallacy,” defined very roughly as “creating a story post-hoc so that an event will seem to have a cause.”
This is a thought I have been chewing on lately in the context of trying to understand the kind of “narrative journalism” championed and churned out by, among others, the Brazilian yellow press.
Brazilian yellow journalism tends to promote moral panic designed to provoke lynch mob behavior. (See, for some recent examples, The Mengele of Milk! Notes On Brazilian Moral Panic Journalism.)
In defending this way of proceeding, it invokes principles of radical epistemological relativism very similar to those adopted by the PBS ombudsman in recent years
PBS recognizes that the producer of informational content deals neither in absolute truth nor in absolute objectivity. Information is by nature fragmentary; the honesty of a program, Web site, or other content can never be measured by a precise, scientifically verifiable formula. Therefore, content quality must depend, at bottom, on the producer’s professionalism, independence, honesty, integrity, sound judgment, common sense, open mindedness, and intention to inform, not to propagandize. –PBS Editorial Standards
It is also promoted by the likes of Richard Edelman of Edelman Worldwide, for example, who constantly cites the so-called “Rashomon Effect” as a human dilemma that is insoluble in principle — ignoring the fact, among other things, that at the end of Kurosawa’s film, something, after all, actually is revealed. See
Edelman either has not seen the movie, or else claims the right to interpret it as he wishes, under a theory that all interpretations are equally valid.
If the woman says, no, she does not want to fuck you, you can, if you wish, interpret that “no” as “yes.”
Words are meaningless.
Intersubjectivity is an unattainable ideal.
No one can be accused of wilful miscommunication (lying) because human communication itself is an illusion. (Never mind that when Marcão here, fixing up the place, asks me to hand him a martelo, upon which I hand him a hammer — a short wooden handle with shaped metal on the end, designed for beating nails in with. Which I would argue counts as a counterexample to this metaphysical thesis.)
We are all prostitutes. Everyone has his price.
In the Veja case, for example — the story of how Veja received a dossier on senior officials, failed to establish its authenticity, but decided to run it anyway — we are presented with a rather stark example of the kind of “methodological choice” at stake here. As I described their procedure:
Veja is offered the documents. It receives the documents. It has them examined for authenticity. The examination cannot confirm their authenticity — for reasons left unstated except as a vague mention of “inconsistencies.” It runs them anyway, on a theory of relative plausibility.
There arrives a moment at which the magazine, defending its article, draws a very clear line between the value of the “dossier” as evidence and its relative plausibility as an element in a narrative:
The magazine made it clear that it could not prove the authenticity of these papers, which could all be a fraud. Even so, it is difficult to believe that the banker would have spent so much time and money to hire and equip international spies only to come away with a bunch of phantom documents.
This is the narrative fallacy in its starkest form.
It is radically dishonest.
This off-the-cuff observation was the product of some reading I have been doing in a recent debate on narrative epistemology in trials, including:
- Doron Menashe and Mutal E. Shamash, “The Narrative Fallacy,” International Commentary on Evidence, Volume 3, Issue 1, 2005 (Article 3)
- Ronald J. Allen, “The Narrative Fallacy, the Relative Plausibility Theory, and a Theory of the Trial,” International Commentary on Evidence, Volume 3, Issue 1, 2005 (Article 5)
Menashe and Shamash’s position with respect to criminal trials rather neatly parallels the debate over the “journalism of baseless accusation” here in Brazil, I think, and its version of the theory of “freedom of expression.” They write:
we challenge the approach that requires that litigants, lawyers, and adjudicators be given maximal narrative freedom in presenting factual arguments and in making decisions in conditions of uncertainty.
Menashe and Shamash make the connection between “narrative freedom” and radical skepticism:
To the extent that the legal system relies on free use of narrative to justify the application of legal principles, it tells jurors that they need not base their verdict on specific evidence, but may instead reach a decision based on their own preconceptions. Jurors who did so would be substituting consonance with emotional preconception for cognitive commitments regarding the perception of reality.*
The footnote draws the connection:
*Unless one accepts a radical version of skepticism regarding the existence of objective reality and the ability to do justice within that reality. See W. Twining, “Some Skepticism About Skepticisms”,” in: W. Twining, Rethinking Evidence, Northwestern Univ. Press, Evanston, Illinois (1994) at 92. Legal fact finding itself rests on presuppositions that implicitly reject radical skepticism, especially with regard to the existence of reality and the possibility of perceiving it with judicial fact-finding tools. See W. Twining, “The Rationalist Tradition of Evidence Scholarship” n 21 above, at 211.
Skepticism about the existence of reality, usually expressed in the crudest and most sophomoric of “sitting around the dorm room doing bong hits” forms, is the first refuge of a scoundrel in the Edelmanian mode.
That is also the case, for example, with Luciano Pascoe Rippey’s review of Mandoki’s documentary film, Fraude:
… it seems to me that Mandoki makes a mistake in suggesting it is an objective and impartial attempt to document this period. Mandoki ought to have been calmly honest and genuine and admitted that this is his truth, and the version of history that worked best for him and his producers, among them Federico Arreola.
The debate with Allen highlights another methodological choice here: The question of “realism.”
“If juries we studied actually tend to make judgments based on narrative thinking, despite evidentiary mechanisms designed to prevent them from doing so (admissibility proceedings, for example) then why not let them? Efforts to prevent them from doing so have obviously failed? Why fight human nature?”
That is to say, the third pillar in the triad in this theory of the narrative fallacy as the foundation of Journalism 2.0 is something like pessimism about the perfectibility of human nature.
James Watson: Niggers are of inferior intelligence. Get used to it.
On which see also
In reissuing a Schopenhauer treatise on informal fallacy, Olavo de Carvalho — a Brazilian fascist wingnut who lives in suburban Viriginia, on a U.S. journalist visa, and gets, or used to get, prominent play in such major dailies as Zero Hora and the Folha de S. Paulo — relies heavily on a reading of Schopenhauer’s observations about the tendency of persons to defy the evidence and adopt beliefs based on their primitive wishes and desires.
It is a reading that exaggerates Schopenhauer’s pessimism, however, from “it is extremely difficult to get human beings to think straight” to “it is impossible to get naked apes to think straight, so we should not even bother.” Schopenhauer also viewed the application of reason as a way of compensating for human “villainy and baseness.”
It is a hard job, but — to employ an argument from plausibility — if Schopenhauer thought it was too hard to even bother trying, he would not have written the book, now would he?
This is the entire point of studying fallacious reasoning, from Aristotle on: Because it helps us stop wallowing in our own ignorance and at least make some effort to rise above it.
That is to say, the language of moral condemnation Schopenhauer uses in his treatise makes it very clear that our own tendency toward dishonesty is something we ought to try and overcome, rather than simply wallowing in it.
Schopenhauerean pessimism was (is) often invoked by antidemocratic theorists of the authoritarian state, who deny that general education can produce a democratic citizenry capable of exercising the deliberative faculty properly.
- Walter Lippman in the Tropics: A Note on Why The Study of Neo-Fascism in the Americas Is Not a Meaningless Exercise
On the notion that there is no alternative to wallowing in our own essential wickedness — Carvalho bills himself as a student of Gnosticism, some variants of which view earthly existence, nihilistically, as a mere illusion concocted by the evil Demiurge — see also “Violence is a Natural Part of the Political Process”: Diogo Mainardi and the Hog Heaven of the Hard Men.
In a nutshell, then, I guess you could say that the thinking that drives the kind of “journalism” produced at Veja magazine and the like is “there is no point trying to teach our soap opera-addicted, daydream-believing readers how to think critically. They are moral and intellectual idiots. Unlike us. So we tell them stories that induce them to believe what they need to believe in order to choose properly.”
People (particularly mud people) are stupid.
There is no point in trying to teach them anything.
Popular culture instills expectations about stories and their form. To the extent hegemony exists in any culture within which fact finders operate, the stories it tells are accessible by definition: such stories replicate themselves. Admittedly, on some levels popular culture’s effects on judgments of credibility may work to defendants’ advantage. For example, popular films such as “The Green Mile” may make fact finders more open to the idea that defendants who appear to be guilty may, in fact, be innocent. Even so, in the long run, permitting fact-finders to rely on narratives without constraint would hurt criminal defendants more than it helped them. Fact-finders in a criminal case who had little or no specific information to support a conviction, could nevertheless rely on broadly-distributed cultural narratives as a source of information based on which they might find the defendant guilty. Popular culture offers more stories of guilt than of innocence, and the predominance of stories of guilt diminishes fact-finders’ efforts to empathize with defendants. “Stories of guilt” are prevalent because popular culture is ridden with bias. Prejudices regarding women, homosexuals, lesbians, and ethnic minorities of all kinds exist symbiotically with stories about manipulative women, perverted homosexuals or lesbians, and cowardly, greedy, violent, and lawless (substitute any derogatory word here) members of ethnic minorities. Battles against sexism, homophobia, racism, and indeed inequality of all kinds, do not eliminate such stories from the culture immediately. In fact, in the short run, the most reformers can hope to do is to show that these narratives are only stories, and not truths — a far cry from their eradication.
Robert Burns objects to this argument:
… the central fallacy of “The Narrative Fallacy” is its claim that the less evidence that the parties are free to present, the more protection there will be against over-generalized story telling. That is exactly backwards. The more significant evidence that the common sense of the jury finds persuasive that a party may present, the more refined a common sense judgment, the jury is likely to be able to make.
The key notion here being signficance — or maybe better, relevance.
We must take care not to foreclose the “baffle ’em with bullshit” defense”
In the parallel inquests over 11-M — in which one party tried to undermine the other in order to advance the notion that “ETA did 11-M” could not be entirely ruled out as a theory of the case — the judicial body charged with the case harshly criticized attempts to undermine public confidence in the proceedings by introducing irrelevancies, pure speculation, and other forms of gabbling noise.
Which seems about right to me, from what I have read of the case.
What is at stake, I guess you could say, is the notion that providing equal time to nonsense — O.J. Simpson’s hunt for the “real killers,” maybe — is a waste of time, a distraction, and likely to lead one on wild goose chases.
In other words, the notion that decision-makers and fact-finders should not be forced to waste their time worrying about a specious notion of fairness which implies “providing equal time to quacking nonsense”:
We were able to agree that it was an essential element of impartiality that when a matter was controversial the viewer or listener would be able to make a judgement based on a fair assessment of all the relevant arguments and information. Relevant information should not be excluded nor should the presentation clearly favour one view over another. We recognised that this requirement had to meet the familiar point that it was not necessary to be impartial between sense and nonsense. –The Budd Commission on BBC Business Journalism.
To sum up this hasty thought, then:
- Radical skepticism (rejection of the Reality Principle)
- Moral relativism
- Humpty Dumptyism
- Theory of natural (hereditary, endowed by supernatural election) supremacy
- The narrative fallacy (“it must be true because it is perfectly plausible”)
- Failure to provide “equal time for nonsense” is Stalinism! (“Fair and Balanced 2.0,” David Sasaki-style)