Narrative Jurisprudence James R. Elkins College of Law / West Virginia University Notes on Reading Marie Ashe, Zig-Zag Stitching and the Seamless Web: Thoughts on "Reproduction" and the Law, 13 Nova L. Rev. 355 (1989) Supplementary Reading: Marie Ashe, Mind's Opportunity: Birthing a Post-Structuralist Feminist Jurisprudence, 38 Syracuse L. Rev. 1129 (1987); Kathryn Abrams, Hearing the Call of Stories, 79 Calif. L. Rev. 971, 1005-1012, 1040 (1991). <1> What story shall we focus on here: a story about law, a story about women, a story about a woman law professor, the Marie Ashe story? There is a story here, but what is it? <2> How would it help you understand Marie Ashe's various stories if you imagined her as a translator, a translator of feeling into a public story, which could be made the subject of a law review article? Why should any of us be particularly interested in Marie Ashe's feelings? And if we have no particular reason to be interested (as public citizens) in her feelings, does that undermine the significance of her story? How does a law professor like Marie Ashe bring herself around to doing a law review article like "Zig-Zag Stitching"? Consider her statement that: "Whenever I read law relating to women and motherhood, I find myself sickened." (355). Is this a prelude to a story worth telling? And consider this passage: "When I read Roe v. Wade I am filled with anger; when I read the Baby M trial court decision, I am enraged. When I hear women referred to as "surrogates," I have the same reaction as arises when I hear women called "bitches" or "sluts." Feelings of humiliation, of indignation, of desperation, of horror, of rage." (355) What interest should we have in these kind of feelings? Can such feelings be translated into stories that anyone will listen to? Can the feelings be translated in a way that they can be used to rethink aspects of American law? My reaction to what Ashe is trying to do with her feelings: It is hard to imagine these feelings out of context, outside a world of experience, conversation, relations, study. These feelings are unlikely to have arrived full-blown, already shaped, fully realized. It takes time for feelings of this sort to be recognized, re-collected, given a structure, so they can be known and carefully differentiated (anger set apart from helplessness, rage pulled apart from the glum of horror, humiliation caught before it dissipates into apathy). When feelings (of the sort Marie Ashe works with) are sorted out, mapped, they require something–good friends, political allies, theory, story. Ashe's writing provides a context for the mapping of feelings and weaving them into an intellectual tale that become part of the world of public, legal, scholarship. The feelings made known here relate to the law of women and children, motherhood, birthing for others, abortion. These are feelings about law and about women. How are these feelings about the law and its (dis)regard for women to be addressed? By the reader? By legal scholars? By judges? By women lawyers and women judges? These feelings, as Ashe explores them, extend beyond court decisions that discount and devalue women's experience of the world. They are feelings that speak to law and how the law speaks to us. "Law reaches every silent space." (355). How does Ashe use her story to explain her feelings and how they might be stitched, zig-zag fashion, into a life of teaching, writing about the law, and for understanding jurisprudence? Feelings complicate things, and the complications in this case find their way into the story. Ashe talks about her sense of hopelessness (355) and the need for a haven, a haven which she creates in her sewing, embroidery, needlepoint, and knitting. For Ashe, there is a need for "respite from the feelings that overwhelm" and for "restoration." The "silent space" of her haven activities is contrasted with law's noisy invasion of women's silence. Who can confront these sorts of feelings? Who can afford to turn away from them? Is it the coalescence of feeling into critique, and critique poetized, that we craft a zig-zag stitching of stories? <3> What does Marie Ashe's story, the story she is trying to tell in her writing, in her life, her teaching, tell us about the obstacles one confronts in telling such stories? In finding a place for them as legal scholarship? <4> "[W]hat does Ashe's zig-zag stitching of legal narratives have to offer those who would make the law surrounding reproduction more responsive to women?" Kathryn Abrams, Hearing the Call of Stories, 79 Calif. L. Rev. 971, 1008 (1991). A rather round-about way of answering this question may go as follows: For Ashe, feelings woven into a story that connect and contextualize; the feelings are displaced (momentarily) from the psyche to a socio-political, cultural realm. And it is from this realm that we attempt to understand law (and its failure)(that is the promise of law which has not been delivered). Ashe uses feelings experienced in reading law to focus our attention on the way law responses to the feeling of women. "Law reaches every silent space. It invades the secrecy of women's wombs. It breaks every silence, uttering itself." (355). In this story, law reaches, law invades, law breaks, law utters. These verbs ascribe to law as an agency of action, a crude, brutalizing power. Law is becomes IT. Uttering itself. Invasive. IT speaks, defines, commands, forces. Law becomes the "seamless web we believe and die in." (355). We are in law, entangled in it, conscious of it as a belief to have and to die with. Law surrounds from birth to death, the Mother of us all. We are born/aborted pursuant to laws language for the silent (living) womb space. We die in this same seamless, uttered, invasive, web of law-language. And so this is what we do with stories: bring the matter of one realm–the personal, interior, inner, inchoate world of feelings, privacies, behind the scenes secrets, unarticulated strong feelings and impulses–into another realm, the realm of public discourse. The realm of public discourse supports another phantasy, this one focusing on rational valuing, confirmation, generalizing theory. When we tell a story, or articulate the story of feelings or knowledge or experience (that we know first hand or from the story of another), we speak from one realm to address another, from one world to another. The connection of one realm, one world to another, the relation of these realms and worlds, their movements in relation to the other, their assimilation one into another, their distancing and threatening of each other, their planned and unintentional invasions of each other, the withering demise of one and the growing power of the other, the possibilities and pathologies of endless relation of the different realms, requires narrative. <5> Kathryn Abrams, in "Hearing the Call of Stories," 79 Calif. L. Rev. 971 (1991), has made a number of observations we might consider here: Abrams observes that the narratives of feminist scholars concern "the problems of a vision . . . which is capable of invading, embarrassing, and sometimes, of saving." (972). Abrams points out that legal feminist scholars' narratives have both aesthetic value and have a political purpose. (972) (She says of the politics of Patricia Williams' stories, that they involve the "Sisyphean task of social reconstruction through law." (1003). We must rethink the question of how we know about discrimination and other forms of injurious human behavior. Williams' stories illustrate two components of this way of knowing. First, her choice of experiential narrative–the fact that she works from the knotty details of life–suggests that decisionmakers must begin with more attentive observation of the way those humans before them live in the world. Williams' effort to work her way around the practice of discrimination from an eye-opening variety of perspectives suggests a second message: that legal actors must learn to view the world from more than a single, reflexive position. (1004). The "voice" heard in feminist narratives is not that of judges (975) and implicitly or explicitly addresses the distortions of legal discourse focused exclusively on judicial decisions. There is in feminist narratives a "prominence of disempowered narrators." (975, n. 12) "Feminist narratives present experience as a way of knowing" that should be respected along with, or even privileged over, traditional legal analysis and argumentation. (976). (But note that narrative too has long been a part of the common law tradition. See Kim Lane Scheppel, Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2073 (1989)) "The discomfort triggered in some scholars by hearing anyone (but particularly a colleague) discuss her rape, marital abuse–or even her childbirth, in particularly graphic terms–makes them eager to discount, discredit, or otherwise distance themselves from such discussions." (979) "Most feminist narrative scholars start from a few shared premises: a preference for particularity of description, a belief that describing events or activities 'from the inside'–that is, from the perspective of a person going through them–conveys a unique vividness of detail that can be instructive for decisionmakers." (982) In the case of Patricia Williams' writing (and one might assume, Marie Ashe's), "[i]f you don't see the point of the stories, you are likely not to draw a message from the article [book] as a whole." (1001) The use of narrative and story-telling by feminist legal scholars is part of the challenge to the fantasy of objectivity in law. "The emergence of narrative as a form of legal persuasion takes place against a backdrop of radical questioning, in law as well as in other disciplines, including the history of science and philosophy, of the role of objectivity in human rationality." (1013)(see also, 1013-1016) [Additional Reading Notes] <6> Notes from other Marie Ashe writings: "Law's recognition of its own limitation may open its ears to hearing the namings, the self-definitions, and the claims of oppressed persons, and more significantly, may permit Law's recognition that its customary namings and classifications have no greater claim to validity than do the self-narratives of those whom it has kept in silence." Marie Ashe, Mind's Opportunity: birthing a Post-Structuralist Feminist Jurisprudence, 38 Syracuse L. Rev. 1129, 1172 (1987) "The gift of feminism . . . is the gift of voices asserting the truth-claims of female bodies." (Mind's Opportunity, at 1172) The discourse that Ashe seeks, feminist critical discourse has the following "distinguishing features": "It will escape the tedious rounds of argument and debate that bind abortion discussion. It will occur outside the prison of a disembodied rational discourse, which has little to do with women's experience. It will test itself always against female bodily experience. It will recognize that our bodies tell the truth. It will honor the ways of knowing unique to female bodies." Marie Ashe, Conversation and Abortion (Book Review), 82 Nw. U. L. Rev. 387, 401 (1988) This discourse "may allow us to speak with respect to one another. Our own accounts, our 'true confessions' of female experiences, will permit us to recognize the likenesses and differences among us, will allow us to see one another, and will lead us away from judgment and in the direction of recognition, upon which respect relies." (Conversation and Abortion, at 401). "Engaging in such discourse will be difficult work, because it will draw us inevitably toward 'where the passions come from,' where we are most vulnerable." (Id.) "Feminist jurisprudence has disclosed the silencing of female voices in the public discourse and has attributed that silencing to the cultural valorization of modes of discourse which negate or distort certain realities of female experience. Feminist critique of legal discourse has perhaps been most vigorous in its inquiry into the law's direct control and oppression of female bodies. This inquiry has begun to focus on a phenomenon which is uniquely–though not definitionally–female, that of maternity: the female experience of pregnancy and childbirth. Feminist theorists have begun to give accounts of the most egregious attacks upon female personhood which occur at the intersection of law and maternity." Marie Ashe, Law-Language of Maternity: Discourse Holding Nature in Contempt, 22 New Eng. L. Rev. 521, 522-23 (1988) Ashe warns that "no escape from the incoherence of public discussion of pregnancy and childbirth will be available without reference to the discourse of women who have, in our own bodies, experienced maternity. I propose that such first-person narrative, without claiming to be the 'voice of nature,' can contribute to resolution of the contradiction inherent in present legal theories of maternity." (Law-Language of Maternity, at 526) Ashe argues that "introduction of the private, emergent, 'inner discourse' of mothers into the law-language of maternity is essential to our making any significant progress toward true sexual equality; that there can be no 'due process' which does not entail attentive, interpretative hearing of such 'other' voices; that there can be no 'equal protection' of law which fails to recognize the uniquely female realities defined by their accounts." (Law-Language of Maternity, at 527) "It . . . becomes urgent that women break silence, making ourselves heard in our own accounts of our relationships with pregnancy and childbirth and of what these relationships signify with regard to our personhoods, proposing different metaphors which might inform law-language." (Law-Language of Maternity, at 543) "The task . . . of women-mothers and of women-non-mothers oppressed by law becomes that of speaking clearly of the experiences grounded in our own bodies, motivated by the particular hope which Adrienne Rich has called 'the dream of a common language.'" (Law-Language of Maternity, at 544) "[O]ur public policy must move beyond its ordinary frame of reference to an understanding of the nature of the bodily experiences and realted self-definitions that constitute, for women, our personhoods." (Law-Language of Maternity, at 556)    Home