The law is made from a “narrative”!?

“Equality” created by categorizing people

Many people will be surprised to hear that the law is made of fiction. Because it is thought that the law consists of articles that are applied according to reality.

But, of course, people vary greatly in abilities, knowledge and experiences. That is the reality, but the law presupposes that they should be treated uniformly, so to speak, as normal or rational people.

For example, when you sign a contract for a smartphone, some people understand all the plans offered by the salesperson and can choose the best one for them, while others do not understand the salesperson’s explanation and sign the contract as they are told.

But, in law, people are equal, and they are treated as having freely and independently made decisions and transactions. Naturally, you will be responsible for the transactions that have been completed.

However, after such contracts were signed, there were many cases of problems, which became a social issue. Therefore, a rule was established to check one by one whether the contents of the contract were understood and judged. This is true not only for smartphones but also for financial products.

This is good from a consumer protection perspective. It became easy to understand. However, this means that the uniformity level has been lowered, so to speak, making it troublesome for those who can understand without checking.

Thus, the law is created by the fiction of classifying and categorizing people’s diverse abilities and regarding them as equal by some standard.

The reason why the law has such a structure is, of course, that there is a reality that it will take a lot of time and money if we examine each person’s real ability and deal with it accordingly.

However, even more important is that some kind of “equality” is believed to be good. This is because we now have a common sense of value that it is right to see people as equal, instead of changing our perspective based on ability and personality.

Why does that happen?

Egalitarian ideas created by the spread of narratives

The spread of the concept that all people are equal is very recent in human history. And perhaps it has yet to be achieved.

For example, in Japan, it was from the Meiji period onwards when Shimin byodo (equality of all people) was advocated, and full-scale democracy spread after the war. It is really only recently that many people have come to think that discrimination based on such things as sex, disability, nationality, race, or place of origin is bad.

I think the reason for this is that there has been a teaching of the spirit of equality by Christianity and other religions from old times, or the knowledge of medical science that everyone has the same body regardless of their status has been widely spread. On the other hand, it is widely known that many forms of discrimination persist.

But I think the main thing is that the narrative that everyone is equal is good has spread. There are those who say that people are born equal in a powerful language that is very easy for people to understand.

When people began to accept this unconsciously in a sense, a narrative that underlies the construction of a social system called egalitarianism started to be told, which was unprecedented in human history.

Conversely, there are many areas in the world where narratives that value equality have not been created. In areas where women, young children, the elderly and people with disabilities are discriminated against, a narrative agreeing with that continues to be told.

Because we were born in Japan, which is based on equality, we tend to think that equality is right and discrimination is absolutely wrong. But it is also a preconception or assumption based on narratives and does not face the question of what should be equalized and to what extent.

As I mentioned in the smartphone contract example, people are quite different, and each person has different skills. However, presupposing equality, the question arises as to what category normal people should be placed in, and in a way this ends up limiting the freedom of those who are more capable than the standard.

Still, it is not as if we should give up equality itself. It is necessary to always realize that it follows a narrative based on a certain bias.

In fact, we can never avoid bias, whether good or bad, as we grow from birth. Because we learn how to live from the narratives in the society in which we were born.

However, we can see that such narratives are not absolute, that there are other possibilities, and that there are other narratives in the world. That is important.

What matters is the ability to imagine others

We actually live in a very small world. I think the real world we can see and hear is within the range of family, friends, schools and workplaces.

And people in that range are a very homogeneous group. Families and friends, as well as people who have passed certain entrance or employment exams, are likely to be at the same level or in the same living environment.

I think it takes a lot of effort to get in touch with people who live in a completely different world.

We tend to assume that common sense and values in our homogeneous group are absolute. But the common sense and values are established in the narrative of the world.

The best way to realize this is to push ourselves to see and hear a different world; however, this takes time and money. We at least need to be able to imagine a different world.

If you do not have the ability to imagine a different world, and you do not know you are preoccupied with certain preconceptions and prejudices, it can be very dangerous.

For example, in a trial, not only the facts that have occurred but also the information of the defendant greatly influence the judgment. It is a preconception that people who look like this will do bad things, and people who have this kind of background or living environment will naturally go wrong.

Such information is easily drawn out in court, and prosecutors use it to insist on severe punishment of defendants, while the defense side takes advantage of it, pointing out biases and claiming that there is room for extenuating circumstances. These are rhetoric that take advantage of the persuasiveness of fiction. While rhetoric may seem to distract from the facts, it may also define what the truth is.

I said that the law is made from fiction, but the decision as to which article to apply and how to interpret it is largely due to fiction created by popular narratives.

Law tends to be thought of as a logical and scientific construct, but it is all about fiction to be told. The interpretation and application of individual articles and laws are given meaning in the great legal narrative.

Just as society is built by narratives, so is the law. The background narrative is different between Japanese law and foreign law.

When we think like this, the problem is that we do not see our common sense and values in the narrow world as relative; we believe in them as absolute, and we are unable to understand people in different worlds. Legal narratives shape the world and the way we see the law, but because they are based on fiction, existence that deviates from that is always missed.

That is “other people.” If we only apply the words of the parties to the logic of our laws, that means we lack imagination for them, the “other people” different from ourselves.

Of course, we cannot fully understand other people, but if we force them into a narrative to understand them, we ignore their reality that was not included in the categorization and create discrimination.

It is not only logic that is actually used in trials, but rather fiction and rhetoric that are born from narratives. Good lawyers, then, are nurtured not only by learning knowledge and logic, but also by developing an imagination for and increasing sensitivity to different things.

Gaining such an imagination starts by realizing that your decisions are based on fiction biased by the narratives of your world.

The point is to suspect that your judgment may be self-righteous and dangerous. That is what motivates you to know and imagine the other person or the different world.

I think this is true not only for lawyers, but also for citizens. You may unconsciously judge or discriminate based on prejudice around you. In order to realize this, it is very necessary and important to have an imagination for a world different from your own narrow world.

* The information contained herein is current as of December 2021.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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