Law relies on a positivist conception of knowledge. That is, there is a straight line between the knower and the known. In law, judges and juries discover the truth from the array of information put before them. There is only one objective truth and it is empirically provable. Reason features prominently and emotion is ruthlessly banished. The rule of law is "the consistent application of prior stated rules", a process theoretically uninformed by politics or ethics (Massaro, 1989, p. 2099). Story-telling in law, then, is an intellectual movement that is "a rebellion against abstractions" (p. 2099). Its purpose is to interrogate the space between the knower and the thing known; its function is one of putting the context back into law. Scheppele (1989) writes of the conceptual scheme of the observer that stands between him or her and the event. Story-telling is a theoretical attention to narrative, to the nature and consequences of this conceptual scheme. Concretely, it is an interrogation of how courts come to convert information into fact, how judges, juries and lawyers come to `objectively' know the truth: "Those whose stories are believed have the power to create fact" (Scheppele, 1989, p. 2079).
Legal rules and conventions suppress the stories of outsider groups. The fiction of objectivity, for example, obscures that key players in the legal system have tended to share a conceptual scheme. Thus judges who do not see the harm of rape or of racist speech are considered to be simply interpreting what is before them. They are not seen to possess norms and values that derive directly from their social location and that are sustained by such practices as considering individuals outside of their social contexts. Stories of members of marginalised groups must therefore "reveal things about the world that we ought to know" (Delgado, 1990, p. 95). They are "a means of obtaining the knowledge we need to create a just legal structure" (Matsuda, 1989, p. 2326). Matsuda argues forcefully that those who have experienced discrimination speak with a special voice to which we should listen" (Matsuda, 1987, p. 324). Stories, in the context of law, bring feeling back and they tend to work from experiential understanding. (Massaro, 1989, p. 2105). How this happens in a court-room is clear from feminist jurisprudence.
Feminists working in law describe for the court's benefit the nature of women's oppression and then make an argument that policies and practices that perpetuate that oppression ought to be declared illegal. (In Canada, section 15, the equality rights section of the Charter of Rights and Freedoms, is usually invoked in support.) The Women's legal Education and Action Fund (LEAF), formed in 1985, is one of the major groups developing and making this argument in Canadian courts (Razack, 1991). The challenge has been to bring into the courtroom details about women's daily lives in a forum constructed to negate or silence such realities. For instance, Western law functions on the basis of liberalism where the individual is thought to be an autonomous, rational self, essentially unconnected to other selves and dedicated to pursuing his or her own interests. To present an individual in her community, and further, to describe that community as LEAF has done as "the disadvantaged, the disempowered, the marginalized" is to pose a fundamental challenge to legal discourse. The individual in her community is less empirically provable, and courts are inordinately fond of empirical proof.
Feminists working in law theorise on the nature of the challenge they pose to law's `truth'. Robin West, for instance, sees the process as one of telling women's stories. Thus feminism applied to law consists of flooding "the market with our own stories until we get one simple point across: men's narrative story and phenomenology is not women's story and phenomenology" (West, 1988, p. 70). An example of this kind of flooding is the defence mounted by the Federation of Women Teachers of Ontario when they found themselves in court defending their right to exist as a women-only teachers' union. The Federation argued that women were and are an oppressed group and that in this specific context, a mixed sex union would only perpetuate that oppression. The men teachers' federation who supported the challenge to the Federation's right to exist as an all-female institution maintained that women teachers are equal in every way to men teachers; a mixed sex union would serve all teachers best. Whereas the side arguing for a mixed union only felt obliged to point to the collective agreement as proof of equality between men and women, the Federation enlisted the aid of over 20 women, experts in women's history, women's studies, women's unions etc. to flood the court with information about the past and daily lives of women in general and women teachers in particular. For instance, Dale Spender was asked to testify on her research that men dominate in mixed sex groupings. Joy Parr, a Canadian historian, gave evidence that historically Canadian women have had to fight to protect their rights. Management studies testified that `the routines of inequality' blocked women's advancement. Principals, for instance, had to have training in curriculum studies, which one could only get after school, a time when most women shouldered family responsibilities. At times, the tale became highly subjective, as when Sylvia Cold, then president of the Canadian Advisory Council on the Status of Women testified that she felt that the Federation had directly influenced the creation of women leaders. At other times, details about women came into the court-room in full scientific dress. Margrit Eichler, a sociology professor, quantified inequality for the court's benefit and then measured the Federation by 20 indices of inequality. Her conclusion: the Federation advanced women's interests.
For feminists working in law, story-telling has always been particularly seductive; women's stories have not been told. Until recently, there has been little concern with the difficulties that arise from an uncritical use of stories. There are two features of story-telling in law that bear mentioning. First, how are the stories going to be received? Can the Man hear it the way she means it? This is particularly evident in the court-room when the story has to do with violence against women, a story that heavily implicates men. A second problem is that one cannot be ambiguous or contradictory when playing this kind of game in a court of law, given the power of law's positivism. The stories are being told to make a particular point and they are being heard in a particular way. It will not be possible to squeeze all the realities of daily life into this framework; some realities are distorted to the point of their being unrecognisable. Canadian Native women in prisons, for instance, are currently wondering if their stories of oppression are `translatable' for the court's benefit.
Indeed, story-telling as a methodology in the context of law can lead very quickly into dichotomies and generalisations that make it difficult to describe the intersections of race, class, gender and disability. Is the search for facts, Carrie Menkel Meadow, a feminist lawyer asks, "a feminine search for context and the search for legal principles a masculine search for certainty and abstract rules?" (Menkel Meadow, ] 985, p. 49). Gender, uncontaminated by race, class, disability or sexual orientation is the prism through which daily life is viewed and differences among women fit awkwardly into the story. When gender is constructed in its pure form, i.e. uncontaminated by race or class or culture, Norma Alarcon has pointed out, the woman thus imagined names herself; her culture, race or class do not name her. Thus, ironically, she remains the old, autonomous liberal self, only female; another abstraction (Alarcon, 1990, p. 357).
Concerns about the "coercive power of stories" (Scheppele, 1989, p. 2077) and thus about how they are used and the uses to which they are put have troubled legal scholars working on race critiques of law. Toni Massaro, for instance, has reflected on the consequences of an unproblematic call for stories and context, identifying one important difficulty: in the end, law has to privilege one story over another. A judge has to choose and it is not so much his understanding that is required as certain actions. Furthermore, given the fact that most judges continue to come from dominant groups, they are unlikely to be able to empathise with marginalised groups. In any event, in the area of discrimination, for instance, Massaro points out, empathy is not the ultimate goal. It is not enough to try to find ways to communicate to the judge that discrimination is hurtful. It is equally necessary to convince him or her that an action is morally wrong and requires legal sanction. Massaro suggests that how we hear different stories is therefore dependent on the moral code with which we function (Massaro, 1989, 2127). While we experience many unpleasant things, only some are considered both morally reprehensible and `actionable' in law. Justice is all about drawing the boundaries between wrong and right.
Mari Matsuda's work on legal sanctions for racist speech provides a careful reflection on how we might evaluate the stories of victims from the basis of what we as a society consider to be morally wrong. Arguing that a "legal response to racist speech is a statement that victims of racism are valued members of our polity" (Matsuda, 1989, p. 2322), Matsuda grapples with the complexities of how we decide whose perspectives to take into account in determining the kinds of racist speech that require legal sanction. She notes, for instance, that the typical reaction of oppressed groups to an incident of racist propaganda is alarm and calls for redress whereas the typical reaction of dominant groups is denial and dismissal of the incident as a harmless prank (Matsuda, 1989, p. 2327). Denial of the impact of this form of racism helps to sustain the view that censorship of racist hate messages is a greater harm than the harm of the messages themselves. If we listened to the voices of those harmed by racist propaganda, however, basic principles would emerge that help us to assess the context in which racist speech occurs. Victims of racism make clear that racism must be fought on all levels and that their lives would be improved by an explicit legal condemnation of racist speech.
One immediate criticism of the position that we ought to listen to the voices of the oppressed in determining what is and is not just is, as Matsuda herself observes, the sorting out of who is oppressed and who is not. Anticipating such critics, Matsuda directs us to examine such social indicators as wealth, mobility, comfort, health, and survival which tell us which groups have status. She allows for the fact that oppressed groups participate in each other's oppression but claims that racist speech from a member of a historically subjugated group is not to be judged as harshly as racist speech from a member of a dominant group. The former's racism "is tied to the structural domination of another group" (Matsuda, 1989, p. 2362). A member of a historically subjugated group forfeits this privilege when she allies herself to the dominant group (Matsuda, 1989, p. 2364). Clearly, deciding which voices to privilege in law is enormously complicated and relies not only on our being able to thread our way through historical domination but also on the clarity of our moral vision. The alternatives, however, are to ignore the voices of marginalised groups or to accept them uncritically. This latter option would leave us with no way of evaluating the difference between zionism and generic white supremacy, to use Matsuda's example. We would have no guidelines for assessing the context in which stories originate. Story-telling in Critical Pedagogy
In traditional educational theory, the existing arrangement of society is taken as given and schools "are seen as the means of rationally distributing individuals in what is conceived as a basically just society" (Weller, 1988, p. 5). In contrast, (and like outsider jurisprudence), critical educational theory recognises, as Henry Giroux, has put it, that "ideology has to be conceived as both source and effect of social and institutional practices as they operate within a society that is characterised by relations of domination, a society in which men and women are basically unfree in both objective and subjective terms" (Giroux, cited in Weiler, 1988, p. 22). Thus a radical or critical pedagogy is one that resists the reproduction of the status quo by uncovering relations of domination and opening up spaces for voices suppressed in traditional education. How critical educators do so is once again through the methodology of story-telling. Individuals who develop critical thinking can challenge oppressive practices; the critical educator thus "takes as central the inner histories and experiences of the students themselves", seeking to foster critical reflection of everyday experience (Weller, 1988, pp. 22-23).
As in outsider jurisprudence, story-telling for social change in an educational setting is more complicated than the phrase would indicate. In her work on how the school covertly regulates the production of self-regulating, autonomous individuals, Valerie Walkerdine stresses that those who are most targeted in the school system, the poor, the working class and ethnic minorities, also resist and engage differently with the systems of domination in which they are enmeshed. As Walkerdine put it, "the constitution of subjectivity is not all of one piece without seams and ruptures" (Walkerdine, 1985, p. 204). The voices of the oppressed are not simply left out of the system. Rather, the school regulates what a child is and children of outsider groups (and all girls) respond in a number of contradictory ways. The critical educator has to understand how "particular children live those multiple positionings". For example, she writes:
How might a girl's [socially produced] docility in school produce both losses and gains? She might be denied in the status of `active learner' and yet at the same time be enabled to maintain another site of power, for example by taking the position of mother. Yet she must experience pain and anxiety if the contradiction between those positions is not recognized and understood as an effect of the pathologising process [i.e. where masculinity is the norm]. What, too, if that pathology operates in relation to different and contradictory assumptions of the normal? How then are the resultant splittings lived? (Walkerdine, 1988, pp. 228-229)
The double strategy which Walkerdine recommends, "one which recognises and examines the effects of normative models, whilst producing the possibility of other accounts and other sites of identification," (1985,p. 238) is an important reminder of the multiple and contradictory nature of subjectivity, hence of the complexities of working with the stories of outsiders to resist domination.
While critical educational theorists like Walkerdine begin here, popular education theorists and practitioners often fail to theorise multiple and contradictory subjectivities. Paolo Freire's (1970) pioneering work on the fostering of critical consciousness in oppressed groups continues to be applied relatively straightforwardly in North America, for instance, in ways that stop short of interrogating the category oppressed for the North American as opposed to the Latin American context in which Freire's work originated. In Freire's work, as Charles Paine writes, a pedagogy that is radical, whether in the popular education or in the academic classroom, "must help students transcend culturally imposed consciousness, allowing them to exit their circular, self-enclosed, and self-perpetuating `uncritical immersion in the status quo'" (Paine, 1989, p. 558). Popular education, grounded in this theoretical approach, writes one practitioner,
stresses dialogue, group learning, and valuing the participants' experience as the foundation for further learning and knowledge. The educator is considered a facilitator of a collective educational process, someone who is able to question critically different perceptions of reality and custom, and to contribute to the formulation of new knowledge that addresses the problems of poor communities and the actions those communities want to undertake (Magendzo, 1990, p. 50, emphasis added)
Ironically, popular educators have been slow to critically reflect on their own practices. Ricardo Zuniga (1988), in an article called La Gestion Amphibie laments the lack of critical reflection on the part of popular educators and attributes it to an us/them mentality. For instance, the funders (the state) are thought to be the bad guys, thus placing emphasis on the unity and internal solidarity of those who receive funding. It then becomes difficult to critically evaluate the project (other than in carefully constructed reports to the funding agency). Zuniga identifies the tendencies that exacerbate dichotomous thinking and make it difficult to deal with contradiction. The popular educator embodies contradiction, he argues: "he [sic] is responsible for training in a context where only self-training is acknowledged; he does not want to control and he is conscious of the distance between him and his `clients', `collaborators' or `students'. The problems with appropriate terminology well illustrate the contradictions" (Zuniga, 1988, p. 158). The only palliative, Zuniga argues, that is available for this anguish is the reassurance of being on the right side, the alternative to the status quo.
If you are on the good side, then you define yourself by reliance on `le savoir populaire', popular knowledge, and not `le savoir bourgeois'; a firm rejection of empiricism, positivism and science and a warm embrace of emotions, stories, narratives, nature, spontaneity (Zuniga, 1988, p. 162). Stories cannot really be critiqued in this framework; they are unproblematically conceived of as suppressed knowledge. There is an assumption that the living voices (and sometimes the written texts) of the oppressed express a truth that will win out. There is little room for questioning that voice or text as the transmitter of authentic `human' experience (Greene & Khan, 1985, p. 25). Here the authentic voice rests on a conception of the self as unitary and coherent. Language is seen as simply representing reality rather than constructing it. (Zuniga, however, is only objecting to the oppositional thinking and not to the view of language and voice as straightforwardly representational of reality. Thus, he ends up arguing for more rationality and less emotion.)
Feminists have long warned of the ultimate dangers of dichotomising. With poetic eloquence, Gloria Anzaldua writes:
But it is not enough to stand on the opposite river bank shouting questions, challenging patriarchal white conventions. A counterstance locks one into a duel of oppressor and oppressed; locked in mortal combat, like the cop and the criminal, both reduced to a common denominator of violence. The counterstance refutes the dominant culture's views and beliefs, and for this, it is proudly defiant. All reaction is limited by, and dependent on, what it is reacting against. Because the counterstance stems from a problem with authority--outer as well as inner--it's a step towards liberation from cultural domination. But it is not a way of life. At some point, on our way to new consciousness, we will have to leave the opposite bank, the split between the two mortal combatants somehow healed . . . (Anzaldua, 1987, p. 78).
To heal the split, we have to think about our way of life. "The massive uprooting of dualistic thinking" (p. 80) which Anzaldua and many other feminists have long called for requires new ways of knowing. Yet, the narratives or stories, of which Zuniga complains, are frequently advanced by feminists as the way to challenge patriarchal dichotomies, in spite of the fact that they are primarily described as everything patriarchal knowledge is not. Thus, Bettina Aptheker concludes her book Tapestries of Life with this suggestion:
The point is that more than one thing is true for us at the same time. A masculinist process, however, at least as it has been institutionalized in Western society, accentuates the combative, the oppositional, the either/ or dichotomies, the `right' and `wrong'. What I have been about throughout this book is showing that the dailiness of women's lives structures a different way of knowing and a different way of thinking. The process that comes from this way of knowing has to be at the centre of a woman's politics, and it has to be at the centre of a woman's scholarship. This is why I have been drawn to the poetry and to the stories: because they are layered, because more than one truth is represented, because there is ambiguity and paradox. When we work together in coalitions, or on the job, or in academic settings, or in the community, we have to allow for this ambiguity and paradox, respect each other, our cultures, our integrity, our dignity. (Aptheker, 1989, p. 254).
In critical educational and feminist theory, what are being sought, then, are ways to come to terms with the contradictions of everyday life, contradictions that reveal themselves in the stories of the oppressed and in which are located the seeds for critical consciousness. How does this project take shape in the classroom?