Interdisciplinary Reflections on Legal Method
Edited by Sanne Taekema, Bart van Klink and Wouter de Been
Chapter 3: Imitation of life: Resonances between law and fact and fact and law
AbstractThis chapter will demonstrate that the key to understanding facts in law is not to be found in the strict dichotomy between fact and law, however rhetorically important this distinction is in an actual legal practice. The key is to be found in the way in which one engages with what might be called ‘actual’ facts – that is to say, with an empirical event such as a car accident, an illness caused by a defective product, a failure to speak or any other event likely to attract the attention of lawyers. Such an engagement is not one in which there is ‘the law’ on one side and ‘the facts’ on the other. It is an engagement that involves categorisation and virtualisation that is as much internal to the facts themselves as externally rooted in some scientific discourse. Another factor that contributes to the virtualisation of facts is the level at which they are observed; different levels reveal different information. Given this ability of lawyers to construct facts, what often emerges in legal disputes are competing narratives. Can these competing narratives be modelled, if not theorised? It will be argued that the idea of ‘resonance’ – an idea taken from film studies – might be a useful tool for such a model.
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