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Waysdorf: POPULAR TRIBUNALS, LEGAL STORYTELLING, AND THE PURSUIT OF A JUST POPULAR TRIBUNALS, LEGAL STORYTELLING, AND THE PURSUIT OF A JUST LAW By Susan L. Waysdorf* "I will ... establish a tribunal, a tribunal to endure I Introduction for all time . " ' The current and historical realities of the U.S. legal system are best characterized by the contradiction between justice and order. Is this an irreparable rift? Have alter- "Law has been threatened by the disintegration of native forums for the pursuit of justice, contrary to the the public values in the larger society, and its future entrenched and formal legal system, emerged from com- can only be assured by the reversal of those social munity, political, or academic initiatives? What have been processes. In order to save the law we must look the social costs of the legal system's failure to deliver its beyond the law .... The analytical arguments intended good - justice? What examples exist of altema- wholly internal to the law can take us only so far. tive justice systems from other countries and other times, There must be something more - a belief in public from which we can create a visionary mosaic of possibili- values and the willingness 2 to act on them." ties towards a more just and ethical legal system? Is there a role for the excluded voices of the oppressed and for legal storytelling? I intend to show in this article how legal storytelling, * J.D., University of Maryland School of Law; A.B., in serving a concrete and quasi-legal function, can help us University of Chicago. The author has been a social activist to address these broader jurisprudential questions.3 The since the 1960s, when she was a member of the People's Law goal is more than an academic exercise. Rather, this arti- Office collective. In recent years, she has been active in cle emerges from the dialogue, about diversity and the support of political prisoners in the U.S., the campaign and lawsuit to close the Lexington Control Unit, and the defense role of public interest law, currently engaging many at of the Resistance Conspiracy case. Ms. Waysdorf is a recipient law schools across the country. This dialogue is itself part of a Skadden Arps fellowship for 1991-93. She is a staff at- of the process of developing morally effective and politi- torney at the Whitman-Walker Clinic's AIDS Legal Services cally responsive lawyering for the next decade and be- Project, in Washington, D.C. This article was first presented yond. by the author at a Law and Literature seminar led by Professor Robin West at The University of Maryland Law School during the fall of 1989. The author is particularly grateful to Robin West for her encouragement and support. Great appreciation is also due to Mary K. O'Melveny, Richard 3. The term "legal storytelling" is taken from Richard Boldt, and the editors of LAW & LIBERATION for their com- Delgado, Mari Matsuda and others, who form a sector of the ments and encouragement of this project. "Law and Literature" movement that focuses on the excluded 1. Athena, quoted in EUMENIDES by Aeschylus, as cited by voices of the dispossessed and oppressed, the victims of social David Luban, Some Greek Trials: Order and Justice in Homer, injustice - those whose voices are not ordinarily allowed ex- Hesiod, Aeschylus and Plato, 54 TENN. L. REv. 279, 296 pression or validation within the formal legal system. See, (1987). Symposium on Legal Storytelling, 87 MICH. L. REv. 2073 2. Owen Fiss, The Death of the Law?, 72 CORNELL L. (1989). Legal storytelling is the use of the narrative in legal process - the otherwise silenced voices tell their own first-hand REV. 1, 14 (1986). stories of oppression and struggle. Published by Yale Law School Legal Scholarship Repository, 1991 1 Yale Journal of Law and Liberation, Vol. 2 [1991], Iss. 1, Art. 8 Law and Liberation It is the contention of this article that legal story- storytelling also has its own historical legacy in this coun- telling can provide the nexus between justice-seeking try, most particularly in the 1960s, the lessons of which values and the narrative form, within the context of more are a background to the ideas presented in this article. traditional legal discourse. In this way, legal storytelling The contention here is that there is a significant can play a constructive role in mediating the tension value to legal storytelling, as well as to the conscious and between justice and order, by drawing on the popularist organized promotion of this narrative form. Legal and community values of people in struggle with the legal storytelling may actually contribute to transforming and system. My central claim is that it is the social humanizing the law, as well as the value system around responsibility of progressive lawyers, legal scholars, which and out of which the law operates. As a teachers, and law students to help generate, develop and progressive methodology, legal storytelling can provide a nourish forums for legal storytelling and the public justice vehicle to legal practitioners who refuse-to participate in a values which they create and promote. By doing so, we system which silences the oppressed. By choosing instead ourselves learn, while becoming better advocates and help- to support and help empower those whose voices are si- ing to empower those silenced by the formal legal system. lenced by the system, lawyers participate in reviving the value and potential of the law itself. It follows that justice might therefore be a more realizable goal. Popular tribunals have served to relate It is my aim here to gain a clearer understanding of the well-entrenched contradiction between justice and or- real life and struggle to the law itself, der in the U.S. legal system, and how it is that the sys- through legal storytelling. tem has become so divergent from, and antithetical to, the true pursuit of justice.7 I intend to do this by first dis- cussing the lessons from "people's lawyering" of the To the extent legal storytelling can provide more 1960s for the challenges facing legal practitioners, justices, than a humanistic gloss to the rigidly defined terrain of and legal academics today. thelegal system and the process of adjudication, it can Second, I explore the jurisprudential constructs of actually serve areal jurisprudential function. In fact, the several legal scholars, including Owen Fiss, Mari Matsuda, concept of legal storytelling has engendered one of the Robert Cover, Robin West, Richard Delgado, and David most compelling and innovative methodologies in recent Luban, and their arguments within the "interpretive de- times for changing the legal system from within, while bate" of the "Law and Literature" movement, as applied challenging it frontally, from without. As a methodology, to the issue of justice versus order. Third, I will discuss legal storytelling is also having an impact on legal legal storytelling within this context, as an important mod- education, as shown by recent works embracing and el which gives expression to those voices ordinarily ex- analyzing "narrative jurisprudence"'4 . cluded from the legal system, and as a concrete way of The premise that legal storytelling can actually play mediating the tension between order and justice. a concrete jurisprudential function is illustrated by the Finally, I will compare and contrast models of example of popular tribunals. 5 These tribunals have people's or popular tribunals from Cuba, Nicaragua, and served, both in this country and in other, more progressive the United States, as effective examples of legal storytell- societies, to relate real life and struggle to the law itself, ing and as alternative pursuits of justice. I will conclude through legal storytelling. Popular tribunals, and the strug- with the suggestion that within these examples of relative- gles out of which they arise, keep the pursuit of justice ly informal and alternative forums for legal storytelling alive within the current constructs of this unjust society. lies a compelling, and inherently empowering, critical They can be understood as examples of how "law is the projection of an imagined future upon reality."6 Legal 1601, 1605 (1986) argued that martyrdom, rebellion and revo- lution are all alternative responses of groups that have "failed 4. See, Pedagogy of Narrative: A Symposium, 40 J. LEOAL to adjust to or accept domination while sharing a physical EDUC., Numbers 1&2 (Association of American Law Schools, space . [and] are alternative responses when conditions March/June 1990). make such acts feasible, and when there is a willingness not 5. People's tribunals, or popular tribunals, are generally only to die but also to kill for an understanding of the norma- speak-outs, gatherings to which people come to hear and to tive future that differs from that of the dominating power." give witness, to provide oral testimony, to chronicle stories of My claim is that people's tribunals, as struggles for justice oppression, to share common grievances, and perhaps to chart outside the established bounds of the formal legal system, are common plans for resistance. They can take many different also valid examples which fall squarely within Cover's forms, as the examples given in this paper will reflect: they definition of alternative responses to domination. can be part of the actual justice system of a country, such as 7. Robert Cover discussed the core of this contradiction in the Cuban Popular Tribunals; they can be extra-judicial, but the following way: officially sanctioned, emergency forums, such as the Nicara- Thus, because law is the attempt to build future worlds, guan Popular Anti-Somocista Tribunals; or they can be com- the essential tension in law is between the elaboration of munity-initiated, informal gatherings, entirely independent of the legal meaning and the exercise of or resistance to the formal legal system, such as those which have occurred in the violence of social control.

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