Power Fictions Pt. 1: Brainwashed
So…I want to take a break from the Lost Art theme for a minute. It’s important, in my opinion, to take little detours once in a while and explore the world in new ways, from different perspectives, and there has been something heavy on my heart for the past few months that I’d like to share with you.
Ok. This story started back when I was in law school. Right after finishing up my Bachelor’s degree in History from Grove City College, I attended law school for one semester at Villanova University. It turned out to be a huge mistake for me. I felt very out of place. I didn’t fit in. I wasn’t at all interested in the things they were teaching me. And I was pretty sad most of the time I was there, because I was just kind of totally lost. But the most clear and vivid memory I have of the time when I was in law school is that I felt like I was being brainwashed. It may or may not have been true that I was being brainwashed, but it was how I felt. I’ve never forgotten that feeling, and I still think about it pretty often. I’ve spent a lot of time trying to figure out why I felt that way, and I keep going back to my Legal Writing class.
Legal Writing was taught by a local practicing attorney. On the first day of class, she made the statement, “Legal writing is the most clear and precise type of writing.” At that time, I considered myself a bit of an amateur writer, so I was intrigued. I even thought maybe writing could become my niche as a lawyer. But by the end of the semester, I concluded that there was nothing clear or precise about legal writing and that in fact the exact opposite of her statement was true. Since then, I’ve been able to think about this with a more open mind, and I see now that lawyers do select their words very precisely. But they are aiming at a very different target than the one I try to hit when I’m writing (more about that a bit later).
What I did begin to see while I was in law school was that legal writers were doing something with words that I had never noticed before in writing. Lawyers write fictions with the intention to make them real. The clearest example of this is when a lawyer drafts a law, a statute, a rule, or regulation. They write a way that the world is ordered that does not actually exist. They craft a fictional story about how the world works, and if the law is ratified or the rule is implemented, then their fictional story comes to have real consequences for real people in the real world. Laws can create organizations, concepts, categories, limitations, roles, terms, standards, and prohibitions that did not previously exist. Lawyers determine the order of a society by writing fictions. I started calling this phenomenon “Power Fiction,” because they are fictional stories designed to bring a thing out of nothing using only words…or…to position their own agenda in such a way that it gains authority in the life and time of real people.
But this is also very clearly realized in the writing of contracts. A lawyer crafts an agreement that does not exist in reality. As the lawyer is writing a contract, neither side has agreed to the terms that are being outlined. After the lawyer writes the contract, the parties agree to the terms. The lawyer determines the ordering of a relationship by writing fictions. This is a way of exerting power. They determine a starting point where they are the creator, and you are just an editor or a critic. So a contract builds a relationship between a creator and a critic. But the really genius thing about a contract is when the lawyer creates fictional parties who enter into the contract.
Let’s say you start a business making egg shakers and selling them to local churches for use in their worship bands. Well, you don’t want to be held personally liable if a congregant shakes one of your eggs so passionately that it bursts open and all the little beads inside scatter and five people end up with chronic eye issues. So you get a lawyer to draw up a document, and voila, you’ve invented a fictional entity that now exists in the world. You’ve invented your own company, an LLC perhaps. There is nothing tangible about your company. You can’t trip over it or invite it over for dinner, but that fictional character that you made up and your lawyer wrote into being can enter into contracts, pay taxes, get sued and is bound by the same laws as everyone else…just like a real person.
So when a lawyer writes a contract between two corporations, she is writing about a fictional relationship between two fictional entities, and when she’s done and her document is approved by both parties, her fictional story has tangible consequences in the real world for real people. But if her document is not approved, then it remains just a fiction, and it has no impact on reality. It’s nothing but garbage.
Something that fascinates me about this whole story is that one single word could be the difference between a piece of garbage and something that has real impact on people’s lives with real consequences on real people in the world. A document is a fiction, change one word in it, and now I can use it to sue my landlord for breach of contract and take thousands of dollars from him. It’s absolutely amazing.
The only person I’ve ever heard or read who explains this phenomenon well, in my opinion, is Israeli historian Yuval Noah Harari. He calls lawyers sorcerers or shamans, and he explains how they cast spells to bring fictions into reality. His way of understanding fictions and the way that they impact the world is really interesting, and it mirrors the lessons I learned in my legal writing class.
You can also see this fiction to fact phenomenon happen when lawyers write arguments for cases. As far as I can tell (I only went to 1 semester of law school after all) legal arguments mostly consist of briefs and motions. A motion is when you ask a judge to make a decision about a specific aspect of the argument. A brief is a summary of the reasons why you think your way of interpreting the facts, opinions, statements, situations, artifacts, and the relevant historical, scientific, and psychological information relevant to a particular case is the right way to interpret all of those things. Ok. So when you write a motion, you write a fictional story about a judge making the decision that you want him to make. If he approves of your story, then it becomes real. If he does not, it becomes trash – a fiction not even worth reading.
Now a legal brief is an interesting example. This is the one that kind of turned my thinking on this topic inside out. A legal brief is basically a summary of the argument you plan to present in court. You make a story that is based in reality, but it’s not a story about the way that things are. You create a lens through which to see the world. This lens is based more on the outcome that you hope to achieve than it is on reality. You have 2 different fictional stories, one written by the prosecution and one by the defense, that each represent a different way of seeing the world…or perhaps 2 different worlds with 2 different futures. In one world, the defendant goes free. In the other world, he goes to jail. This is where I started to see parallels with other types of writing and other areas of life. This is something slightly different. They aren’t writing a fiction with the intent to make it reality. They’re writing a fiction designed to influence your thoughts, emotions, and beliefs in order to create a future outcome. And sadly, this sort of Power Fiction happens all around us, all the time. Our lives are constantly being shaped by Power Fictions.
To be continued...
