‘When Truth is Stranger than Fiction’: Studying Emotional Truth’s Persuasive Power through Legal Fictions

I want you to feel what I felt. I want you to know why story-truth is truer sometimes than happening truth. —Tim O’Brien[1]

Given law’s position as a mechanism of social control and organisation, along with its inherently persuasive focus, it follows that studying effective storytelling can enhance law’s power.^[2] However, a successful narrative is seldom strictly factual. In literature, this is where persuasive and rhetorical devices often enter: to convince a reader to believe something that resonates with their emotions or values. Law is similar; ‘an emotionally engaging narrative bypasses the intellectual resistance of the most skeptical judge or juror and enables your story to be heard’.^[3] To this end, jurist Henry Sumner Maine described ‘legal fiction’ as the idea that most legal doctrines are persuasive fictions, having been generated by courts to fill in legislative gaps. Primarily, Maine writes, legal fiction is expressed by the proposition that courts do not make new law but merely find the law.[4]

The concept of persuasive legal fiction has a substantive parallel in literature’s pursuit of emotional truth to find resonance with readers, despite its inherently creative or fictitious nature. Tim O’Brien’s body of work illustrates this tension well, his 1990 novel The Things They Carried being a particularly good example. In it, a narrator with the author’s name—and many of his same characteristics and experiences—depicts his time as an American platoon soldier fighting in the Vietnam War. The book’s structure is fragmented, it contains short stories, essays, anecdotes, sketches, and asides, and because the author blends his own voice and the narrative voice, the limit between fiction and fact is blurry and uncertain. The Things They Carried is categorised as metafiction, which Patricia Waugh describes as ‘fictional writing which self-consciously and systematically draws attention to its status as an artefact in order to pose questions about the relationship between fiction and reality’.^[5]

I argue that both law’s exertion and metafictional literature focus on emotional truth at their cores. In establishing this, I use Jane Baron’s narrative lens, which takes interest in stories told within law ‘not for moral uplift or interpretive insight, but rather for evaluating the stories’ persuasive impact, their evidentiary value, and their epistemological implications’.^[6]

Legal doctrine as legal fiction

Constituted by Henry Sumner Maine, a legal fiction is best defined as a ‘legal assumption that something is true which is, or may be, false—being an assumption of an innocent and beneficial character, made to advance the interests of justice’.^[7] These fictions are ‘necessarily under the control of trial judges and juries from case to case’.^[8] This control is due to the fact that legal fictions have allowed laws to change while avoiding outward alteration in the rules since before the Magna Carta in 1215 and Parliament’s subsequent formation in England.^[9] Maine’s is the definition of legal fiction used over the course of this paper, given its acknowledgement that legal fictions have historically worked to aid the development of jurisprudence and are inherent to common law. Maine recognises the ubiquity of legal fictions and thus focuses on their role in social progress, rather than indicting their mere existence. He calls attention to the fact that even when law is stable, society is progressive, and that fictions ‘at a particular stage of social progress are invaluable expedients for overcoming the rigidity of law’.^[10] Legal fictions call attention to the ways in which law has been shaped by individuals to suit the needs of both the craft of persuasion and subsequent desired human ends based on our changing social values. After all, ‘law is often quite open about its creative capacity’—and today’s commentators are interested in law’s ability to invent concepts as a means of ‘narrative coherence’.^[11]

The purpose of legal fictions might be to achieve legal values like convenience, consistency, equity, or justice. These fictions are articulated by legal courts seeking to preserve the rights of certain individuals and institutions and advance particular areas of public policy in doing so. Notably, legal fictions are distinguishable from legal presumptions, which assume a certain state of facts until proven otherwise. For instance, a legal presumption might be a court’s statement on a motion to dismiss that, for the purposes of the motion, they must assume all allegations pleaded in the complaint to be true.^[12] This statement is not strictly a legal fiction but rather a presumption because it does not, by Maine’s definition, claim to adjust a particular area of law on the basis of desired public policy change or different legal results for the impacted individuals. Rather, it is a conditional feature of law applicable across contexts.

For instance, in England—in 1930s Brighton—divorce had to be ‘arranged’ by legal fiction. During this period, divorce by consent alone was not permitted by law; it was necessary to petition for divorce on grounds of adultery. To bypass this legal requirement, courts acknowledged and supported ‘stage-managed’ evidence of adultery introduced by the parties of the divorce.^[13] In fact, courts deemed this ‘fiction […] morally preferable to real adultery’, denying contesting the falsified evidence.^[14] This constitutes a legal fiction as courts colluded with divorce parties through their proceedings in the pursuit of specific public policy ends; namely, the granting of a divorce to parties seeking one despite the state of law at the time.

Adoption is also one of the earliest legal fictions. Maine wrote, ‘[t]he earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially’.^[15] In Rome, adoption reached its widest and most documented acceptance.^[16] The family unit was an element of society’s objective normative structure and manifested in law as patria potestas. This ‘power of a father’ allowed a family’s male head authority over his descendants, including inflicting capital punishment and determining descendants’ rights in private law.^[17] Accordingly, Romans resorted to legal fiction in their adoption of a male person into a family as a son and descendant of the line where a son was not born. This civil legal process was supervised by Roman magistrates, who, in legally transferring the adoptee to their adopter, ensured the adoptee’s life prior to adoption disappeared.^[18] The adoptee’s debts, if any, were cancelled, and their legal records prior to adoption were expunged, so they took on full legitimacy as their adopter’s heir, both legally and socially. Legal fiction allowed Romans to exert their social values, which took on truth and importance to them in their best-recognised form: the family unit.

These examples underscore Maine’s proposition that legal fiction is expressed through the belief, noted above, that courts ‘find’ the law based on their social milieu rather than making it based solely on legal thinking. I concur that ’finding’ the law comes from judges and courts considering the emotional or moral truth of the society they promulgate in their legal decisions.

Past academics have considered the same theme of emotional truth’s significance to legal fiction—namely, Maine and Simon Stern. Maine was one of the first jurists to discuss legal fictions, working in the mid- to late 1800s. Stern is a current law and literature professor at the University of Toronto, who has interpreted and adapted Maine’s views to draw his own conclusions about legal fictions. This chronological canvassing of pertinent literature allows my own analysis to draw upon a stronger understanding of legal fiction when applying the concept of emotional truth to legal doctrine.

Maine’s definition includes any assumption where a legal rule or its operation has undergone alteration, even if its strict letter might remain unchanged. He believed that legal fictions ‘satisfy the desire for improvement […] at the same time that they do not offend the superstitious disrelish for change which is always present’. This analysis is prescient for a nineteenth-century writer: it speaks to the consistency with which common law courts have shaped public policy through strict doctrinal interpretation to better match social values and development. For instance, he characterised the legal fiction of adoption as an advancement in the creation of family ties, without which society would never have ‘escaped from its swaddling clothes’.^[19] 

Legal fictions as Maine has described them enable courts to practice attaching operative facts to their normative consequences. Those courts might then evaluate, on a mix of jurisprudence and analytical thinking, where it might be appropriate to explicitly solidify some of these associations which prove useful to society at large. Even mature societies constantly evolve and develop in their values.

In the modern context, Stern explicitly links legal fiction to literary and narrative inquiry. This is why his work is valuable to this exploration of legal and literary fiction coalescing in emotional truth. Unlike Maine, Stern posits the ‘significance of legal fiction lies not only in its starting point but also in what flows from it’—namely, the fiction ‘holds the seed of a plot’. Stern theorises that legal fiction solicits a heightened attention to a case’s narratological inquiry, much as literary fiction—particularly metafiction—calls attention to its own narrative by making its fictional nature clear to readers. In law, Stern points to the characterisation of ‘corporate personhood’ as an example of this. This ingrained use of metaphor solicits attention to an area of study—corporate law—not usually considered to ‘exhibit such self-consciously literary features’.^[20] Stern applies this lens to legal doctrine as a whole. He draws the connection that ‘legal fictions seem, to modern commentators, to do for law what metafiction does for imaginative writing’, a proposition upon which this article fundamentally builds its case.^[21]

Stern argues that analogies and equivalencies alike are critical ingredients of legal reasoning, and the ‘lines of argument they will ultimately support are rarely discernible in advance’.^[22] Thus, he suggests that it is irrelevant to pick apart which legal doctrines might constitute legal fictions—most legal doctrines involve fiction through their work in cohering a plot of persuasive argument or slotting non-legal phenomena into legal analyses. As for metafiction, Stern sees the appeal of Maine’s work as the attitude it conveys, not the framework it delineates. Maine recognised something about the productive, creative work of fictions separating them from other forms of legal invention. As a modern commentator, Stern applies that recognition to a different focus—law’s creative capacity—to Maine’s on fiction’s falsity and instrumental value. However, Stern draws a critical distinction between literary and legal fictions: whereas literary fiction writers self-consciously work to break the illusion of realism, legal fictions are not deployed by judges seeking to remind those reading their decisions about law’s creative capacities. As a result, legal fictions tend to work ‘in the eye of the beholder’.^[23]

In my view, most legal doctrines involve legal fiction as judges work to compel audiences to find truth and trust in their written words. It is therefore necessary to explore the impact of emotional truth as a means of persuasion across literature and law.

Law, literature, and emotional truth

While the scholars above discussed the utility of legal and literary fictions, it is prudent to extend this consideration of fiction to the broader notion of narrative, along with its utility to law and literature. Critical race and feminist theorists started making the case for legal scholarship to incorporate the lived experiences and stories of members of marginalised communities over 30 years ago. They noted that traditional scholarship had excluded the perspectives of subordinated groups for centuries. This resulted in ‘neutral’ legal principles with sexist and racist normative roots that therefore failed to serve individuals equally.^[24] These theorists taught jurisprudential scholars that stories provide shared understandings working as ‘powerful means for destroying mindset[s]’.^[25] 

This increasing emphasis on narrative was met with opposition by traditional legal scholars, who argued that stories pose issues of reliability and validity. They felt stories were one-sided and emotional, making them insufficiently analytical or verifiable for legal application.^[26] Nonetheless, cognitive neuroscience and psychology studies, as cited by Nancy Levit, underscore the practical utility of narratives: storylines are fundamental to how humans understand and remember events and experiences. Our brains are structured to detect patterns, which stories furnish by providing a structure for organising and understanding disparate events and concepts. Notably, people retain about 20 percent of what they read, but closer to 80 percent of the images they form in their minds. As they activate both the rational and emotional hemispheres of the brain, stories ‘provoke interest, invite involvement, encourage empathetic imagination, [and] create a connection between listener and teller’.^[27] These cognitive studies emphasise narrative both generally and in law as an influential method of persuasion.

As a result, narratives have taken on greater value across legal discourse. Law review articles, decisions, and other legal texts have transformed from objective and depersonalised media to those willing to convey experiential insight. This was once controversial—lawyer Louis Auchincloss’s short story ‘The Senior Partner’s Ghost’ was the first piece of fiction published in a law review when it reached the Virginia Law Review in 1964.^[28] 50 years later, Parker B Potter Jr’s 63-page account of judicial decision references to Kafka’s work was published in the Pierce Law Review to no apparent fanfare.^[29] Now, it is widely accepted that a lawyer is also a ‘raconteur’, constructing stories and sharing them persuasively with other lawyers and decision-makers.^[30] 

As legal scholarship’s acceptance of narrative has grown, so has the discipline’s understanding of many legal structures’ inadequacy in conveying the complicated realities of marginalised people’s experiences. Mainstream legal narratives are not neutral. Rather, they represent the entrenchment of dominant perspectives—the upper-class, male, white, heterosexual, cissexual—historically allowed entry into the legal profession. Patricia Bryan has observed that the role of any legal judgement ‘depends on community acceptance and validation’.^[31] This makes intuitive sense when one considers a courtroom’s reliance on a ‘reliable narrator’—a trained lawyer—persuasively detailing a party’s individual experience. Legal emphasis on narrative can counter the systemic narrowness of structures and stories historically accepted within law, along with providing a platform for diverse experiences that can reshape justice to better reflect the human experience.

For these non-traditional narratives to succeed persuasively and achieve community validation, they must use schemata—frameworks used to understand a story—sufficiently identifiable for audiences to process and understand the information.^[32] This is particularly necessary when the traditional chronology of events does not paint a positive image of the client or party in question. A compelling advocate must sometimes challenge traditional means to achieve successful ends. The following schemata may be used persuasively in both law and literature, but are described primarily in a legal context to lend focus to their persuasive nature.

One alternate schema recognisable enough for this persuasion is disruptive narrative. Disruptive narratives tell stories out of chronological order, as a series of flashbacks or snapshots of moments in an individual’s story. It is a particularly persuasive tactic because it allows audiences to see the steps of an event or moment separated from the timing of the event itself. This strategy deters audiences from seeing events in a cause-and-effect context, placing emphasis on factors and characters outside the client’s role in an incident that might reflect on them poorly.^[33]

Another untraditional yet persuasive schema is point of view. Here, a story generally focuses on a linear series of events—but from the different perspectives of characters playing a role in the incident in question. This technique is particularly effective for a client’s advocacy because it follows a familiar, recognisable narrative structure but enriches the audience’s view of the inciting event’s cause by forcing them to question that view multiple times over. Thus, the audience is encouraged to re-examine the assumptions that led to their preconceived notion of how the story would or should end, resulting in an unexpected ending supporting the client’s perspective.^[34]

Stephanie Kane writes, ‘novelists and lawyers alike […] must create and operate in a domain structured to resonate with other human beings’.^[35] A lawyer who uses a diversity of methods—like point of view or disruptive narrative—to tell their ‘litigation stories’ thereby largely controls the theme or understanding their listener draws from their advocacy.^[36] Fundamentally, the lawyer who tells a compelling story is the lawyer who achieves their desired outcome by imparting a certain understanding of events. This is not limited to law or literature alone. We tell ourselves certain convincing stories that constitute emotional truths, even if those stories do not align strictly with fact. For example: a person might tell themselves they tried their hardest to accomplish something, whether successful or not. Finding evidence of such a claim is difficult, given its subjectivity and reliance on factors including the person’s individual and variable capacity of energy, time, and focus. But by telling oneself this is the case and casting one’s actions in a specific light—like focusing on one’s efforts in a specific chronology or on their ability to balance their efforts with other personal commitments—it may very well be an emotional truth. This ability to use persuasive narrative to find an understanding of a person’s own actions or the actions of others has great intrinsic and instrumental value.

James R Elkins observes that ‘one might experience, in writing, the power of telling a story, or getting at the truth […] or revealing something new about yourself. Whatever you write—legal or otherwise—there must be something of you reflected in the outcome.’^[37] In this way, one’s understanding of their own actions—particularly when those actions are emotionally, factually, or morally complex, like fighting in a war—can be heightened by using a narrative framework to determine the emotional truth. In so doing, one establishes emotional truth to be just as psychologically and practically relevant as the factual truth in some cases.

According to posttraumatic stress disorder psychologists, traumatic memory manifests itself as ‘experience that reoccurs’.^[38] This manifestation aligns with a reality of war that soldiers reconsider over and over, weighing various events, actions, and morals from different perspectives. Finding an emotional truth in these cases means coming to terms with a personal understanding of one’s own wartime experience, recognising while that understanding is not universal, it is individually useful if it brings peace and closure. This parallels legal cases across practice areas, from criminal to employment law and beyond—one’s understanding of events is not necessarily universal, but it is helpful for them to understand the consequences of their actions. This is also explored in The Things They Carried. I draw this connection to underscore the validity of emotional truth in reasoning and persuasion. Creating a narrative out of one’s complex moral or ethical experience can help individuals process surrounding emotions.

This is where metafiction becomes useful. Waugh states that, because our knowledge of the world is largely mediated by language, metafiction is a useful model for learning about the construction of ‘reality’ itself.^[39] It is only possible to represent our environment’s discourses in literature, rather than any one universal truth about the environment itself. Exploring metafiction’s utility has a specifically legal context, too: ‘legal fictions seem, to modern commentators, to do for law what metafiction does for imaginative writing’.^[40] In an increasingly pluralistic and uncertain world, contemporary metafictional writing can assist us in exploring different conceptions of reality and calling attention to artificial social structures.^[41] This same ability may be translated into legal fictions, allowing us to critically parse which legal institutions, customs, and norms were created to reflect and uphold traditional values and power structures, rather than being ‘found’ by courts.^[42] Narrative and fiction’s capacity to call attention to morally ambiguous structures in society is therefore subsequently explored through the vehicle of the metafictional novel The Things They Carried. O’Brien engages in several metafictional writing strategies to depict the Vietnam War which are of unique potential and interest in displaying the necessity of emotional truth to the nuanced discussion of seemingly objective past events.

The Things They Carried: Emotional truth as reality

Through studying The Things They Carried, I point to three ways in which O’Brien uses the genre of metafiction in his narrative to call attention to the importance of emotions in establishing truth. These three ways are his blurring of narrator and author, his ambiguous structuring of the novel, and the intentional nature of his revisions between drafts and final publication.

I. Narrator/author distinction

Tim O’Brien the author and his book’s narrator Tim O’Brien share several similarities. Both men are from Minnesota and attended Macalester College. Both fought in the Vietnam War. Both describe themselves as politically opposed to the war they fought in. Both are named Tim O’Brien.^[43] And yet they are not the same person. The author is clear about this distinction. As he said in one interview, ‘the guy who’s narrating this story has my name and a lot of my characteristics, but it isn’t really me’.^[44] For instance, Tim has a daughter, but O’Brien does not. Tim speaks of the aesthetic beauty of war: ‘sunlight’, ‘the special way that dawn spreads out on a river’.^[45] O’Brien, however, ‘never felt or thought that war’s pretty’.^[46] Seeing similar biographical characteristics shared between narrator and author, yet differentiating their mentalities, calls readers’ attention to their own role as audience to a careful performance. ‘[S]tory-truth is a product which evolves more or less unconsciously in the reader’s mind through the act of reading’, but that makes ‘story-truth’ no less genuine or valuable than the ‘relatively passive’ ‘happening-truth’.^[47] By making the reader an active participant in the text through forcing such critical thinking, O’Brien asks the reader to ‘become immediately involved in the incredibly frustrating act of trying to make sense of events that resist understanding’.^[48] The reader witnesses firsthand the war’s ‘only certainty’: ‘overwhelming ambiguity’, and accordingly gains a more thorough feeling for the narrator’s tentative portrayal of his own reality.^[49]

While the reader grasps at stable—that is, truthful—footing, Tim seeks to position himself as a reliable narrator. He describes one character as not just from Oklahoma City, but ‘Oklahoma City, Oklahoma’, as if mentioning the state provides a sense of authority or attention to detail.^[50] Similarly, in the first chapter about things the soldiers carried—‘slingshot’, ‘brass knuckles’, ‘antipersonnel mine’, ‘pebble’, ‘a silent awe for the terrible power of the things they carried’—Tim uses neutral transitional phrases typically associated with factual description, akin to a government report. These include repetition of examples introduced with ‘for instance’ and ‘because’,^[51] and weight measurements of everything the soldiers carried, including letters (‘4 ounces’)^[52] and a ‘VC corpse[‘s]’ thumb (‘3 ounces’).^[53]

Describing tokens of sentiment and conflict in these strict terms displays the narrator’s desire to convince readers of his own authority in sharing the narrative he does. Despite this, Tim admits to his own embellishments. For instance, the chapter ‘Notes’^[54] discusses the writing of another chapter, ‘Speaking of Courage’, ‘in 1975 at the suggestion of Norman Bowker, who three years later hanged himself in the locker room of a YMCA in his hometown in central Iowa’.^[55] It includes excerpts of Bowker’s letter, who suggested Tim write about Bowker’s depression after taking responsibility for the death of another platoon member, Kiowa. Tim writes in ‘Notes’ that by telling stories, you objectify your experience. You ‘start sometimes with an incident that truly happened […] and you carry it forward by inventing incidents that did not in fact occur but that nonetheless help to clarify and explain’.^[56]

As Tim explains his process in telling these stories, he references writing earlier drafts designed for a previous novel O’Brien, in fact, wrote: Going After Cacciato. Nonetheless, at the end of ‘Notes’, Tim says: ‘In the interests of truth […] I want to make it clear that Norman Bowker was in no way responsible for what happened to Kiowa. […] That part of the story is my own’.^[57] Passages like this, vacillating between admissions of fictionality and references to reality, point to the objectifying function of stories as a place of confession and trauma processing. The reader gets a sense of the story-obsessed narrator’s desire to relieve his conscience and understand his own experiences. O’Brien’s publication of letters from other characters citing the importance of storytelling as a means of processing trauma further lends the narrator’s stories an interpersonal function. Even when a letter’s lifespan exceeds its writer’s lifespan, as with Bowker, it can connect two people over their shared experience and make that narrative permanent. In doing so, it works as a record that establishes an emotional truth.

Readers do not know if Bowker or Kiowa exist outside the book, and if they do, whether Bowker does bear responsibility for Kiowa’s death. Nonetheless, the reader is left with an impression of the extent of trauma, guilt, responsibility, and connection carried by Vietnam soldiers like O’Brien. The narrator as writer, character, and theorist at once displays the relative irrelevance of ‘what really happened’ by calling attention to the chasm between depictions of the same experience, as with Kiowa’s death. In writing a narrator who describes telling stories as ‘partly catharsis, partly communication’, O’Brien equates one’s understanding of their own experience with truth.^[58] In doing so, the author convinces his readers of the ‘concrete certainty’ of the things he carries with him: not facts, but feelings.^[59]

II. Ambiguous book structure

The Things They Carried is structured as a series of chapters varying in length and structure, from brief anecdotes to longer narratives. Some stories are abandoned and continue chapters or pages later; in other cases, Tim starts a story just to have another character pick it up or challenge its validity pages later. This structural variation draws the reader’s attention to the stories as epistemological tools, allowing the ways of storytelling to be viewed from different angles and perspectives.^[60]

This begins early in the book, with its ‘loving’ dedication to the ‘men of the Alpha Company’, including several characters by name—‘Jimmy Cross, Norman Bowker, Rat Kiley, Mitchell Sanders, Henry Dobbins, and Kiowa’.^[61] This dedication’s strict fact is challenged on the title page immediately prior: ‘A work of fiction by Tim O’Brien’.^[62] The author’s use of the word ‘loving’ despite the apparent fictionality of the named men is inherently emotional. It implies that one can love these characters and honour their memories, regardless of whether they exist outside the book. This happens in the first pages of the novel, priming the reader for what is to come: a real devotion to the emotional truth of the stories, regardless of whether their content can be fact-checked.

From the jump, O’Brien establishes his central theme with the reader: the relationship between fact and fiction. He does so on pages typically skipped by a reader, suggesting that the reader must actively engage in every aspect of the text to understand its purpose. This is reminiscent of the creative capacity legal fictions have within the strict structural confines of a legal decision’s majority or concurrence. Across both contexts, it suggests fictions may be—and are—accepted within traditional formatting. This acceptance of alternative realities could have implications for accepting marginalised perspectives within structures that unthinkingly reproduce dominant voices as unquestioned truth, as in law.

The same attention to structure may be afforded to the first three chapters of the novel: ‘The Things They Carried’, ‘Love’, and ‘Spin’, in the context of character deaths throughout the book portrayed as core events through different narrative perspectives. The death of Ted Lavender, a platoon soldier, is first mentioned in ‘The Things They Carried’ in an almost academic, overt fashion: ‘Ted Lavender, who was scared, carried tranquilizers until he was shot in the head outside the village of Than Khe in mid-April’.^[63] This tone carries the reader through several more casual mentions in the chapter, as with the two-pound poncho only worth its weight when used to wrap Lavender’s dead body.^[64] Tim then moves to a more animated, but still neutral, description of Lavender’s death from Kiowa’s perspective: ‘Kiowa said, the poor bastard just flat-fuck fell. Boom. Down’.^[65] From Jimmy Cross’s perspective, lovelorn over a girl back home, ‘Ted Lavender was dead because he loved her so much and could not stop thinking of her’.^[66] These three perspectives repeat through the first story so the reader can imagine the seemingly simplistic death.

However, in ‘Love’, the reader finds that Lavender’s death still holds weight with his fellow soldiers years post-war. Tim and Cross look over old photographs and pause on Lavender’s photo, at which point ‘Jimmy rubbed his eyes and said he’d never forgiven himself for Lavender’s death’. Tim agrees: ‘It was something that would never go away’.^[67] The spatial and narrative gap between these two references call the reader’s attention to what goes unsaid between chapters, and how the narrator’s undramatic portrayal in the first story is potentially untrustworthy. In so doing, O’Brien challenges his own narrator’s veracity of statements and implies that the emotional weight of such trauma is not easily articulated nor processed in words alone. The writing calls attention to the messy lack of linearity in life and in feelings, and how it makes those experiences’ emotions no less significant or true. As a result, the story resists easy unification or categorisation. It brings the reader’s focus to the reality of disparate views of the same single event.

The following ‘Spin’ is just six pages, made up of more than a dozen short narrative fragments, all from different perspectives. At this point in the book, the reader knows only of Lavender’s fate, though the deaths of Curt Lemon and Kiowa, along with a Vietnamese civilian, are introduced. Despite the serious content, these memories of the tragic—a Vietnamese boy with one leg, Curt Lemon’s body ‘soar[ing] into a tree’—are interspersed with moments of peace, like playing checkers and imitating a rain dance. Tim explicitly editorialises on these perspectives throughout in the context of memory and storytelling. He describes his stories as ‘memory-traffic feed[ing] into a rotary up in your head’ and says that as a writer, ‘all you can do is pick a street and go for the ride, putting things down as they come at you’.^[68]

Through this, the narrator makes clear that he wants to make his past experiences permanent. To do so, one can give memories a life of their own by objectifying them as stories. Again, this calls attention to the fictionality of stories given their constantly subjective nature. The dissonance of jumping from narrative to narrative, from the playful to the catastrophic, is exacerbated by the narrator’s wandering style, which is true to how most people process the world around them. The disruptive narration and point of view separate audiences from clean cause-and-effect interpretation; they persuade readers of the truth of the story being told despite its jumbled movement. As a result, the novel’s structure asserts emotional truth as persuasive, even when the described experience lacks traditional linearity.

III. Revisions

Readers of The Things They Carried know from the text that O’Brien serially revises the events he writes about, as he tells and contradicts the same stories from different viewpoints. John K Young, a literary scholar, takes a critical view of these revisions through a textual lens in his book, How to Revise a True War Story, where he treats chapter drafts and different published versions as equal objects of study. As he rephrases O’Brien: ‘You can tell a true war story if you just keep on revising it’.^[69]

Young asserts that ‘the most faithful aesthetic representation of […] memory is through the fiction that reoccurs’.^[70] In digging through archival chapter iterations, he finds several instances within which O’Brien has removed signals pointing to stories’ fictionality through the editing process. For instance, in the original version of the chapter ‘Good Form’, Tim admits he never killed anybody, did not have a daughter, and never knew anybody named Jimmy Cross or Kiowa: ‘it’s all made up’.^[71] This is deleted in the published copy. Studying this, one can only guess the motivation behind these edits, such as that these admissions might have lessened reader engagement or trust in the narrator. I take the position that in so doing, O’Brien asks his reader not to simply delineate fact and fiction, but to observe them working in tandem and find truth in the feelings he describes. My stance is underscored by O’Brien’s own statement in an interview that classifying fact or fiction is artificial: literature ‘should be looked at not for its literal truths but for its emotional qualities’: ‘whether it moves me or not, whether it feels true’.^[72]

To this end, one of O’Brien’s real-world war buddies, Erik Hansen, wrote a letter to him in 1972 upon reviewing early drafts of the book’s chapters. Hansen states, ‘When will yuz guys learn that when it comes to the big “I” there are no facts! Precisely because it’s there that you run up against the dialectic of the inner self and the outer order—and then you’ve got hot, for angst ain’t no statistic’.^[73] O’Brien’s revisions display his focus in the story not on a strict retelling of war, but on the difficulty of categorising the traumatic experience either individually or collectively. The reader is called to mediate the book’s statements in protest against war’s traditional description in terms of performative statistics around deaths and medals. Tracing these revisions’ path affords readers a more complex interaction with the ambiguity of war and other seminal life experiences.

This is seen in the penultimate chapter of the book, ‘Night Life’. O’Brien adjusted the original description of a soldier’s difficulty completing duties in darkness to add the following introductory lines in a later revision: ‘A few words about Rat Kiley. I wasn’t there when he got hurt, but Mitchell Sanders later told me the essential facts. Apparently he lost his cool’.^[74] This third-person narrative shift is underscored by the narrator’s repetition of ‘Sanders said’ five times in the chapter’s first three pages. Read in isolation, this revision seemingly lends the story authenticity, as it comes from a character separate from the narrator who admits to playing with memory and storytelling. By transferring the responsibility for the ‘happening-truth’ to a fellow soldier, the narrator offers the reader more trust in what really happened to Kiley.

However, Sanders is the same character who, in the earlier chapter entitled ‘How to Tell a True War Story’, tells a blatantly fantastic story he clearly wants Tim to ‘feel [as] the truth, to believe by the raw force of feeling’.^[75] Sanders later tells Tim that while he invented the story’s facts, ‘it’s still true’.^[76] O’Brien’s revised inclusion of this abdication of responsibility for the narrative focuses the reader on the soldiers’ shared focus on emotional truth. It works as an example of how a ‘true’ war story will always communicate a felt experience, rather than the exact ‘happening-truth’. By placing this acknowledgement toward the novel’s end, it denies readers the ability to become complacent toward the importance of perspective in storytelling.

O’Brien himself stated that ‘exercising the imagination is the main way of finding truth’.^[77] This directly connects to legal fiction’s legitimacy in law’s practice and study. Legal judgements are inherently persuasive through careful narrative and strategic use of evidence and perspective. Even black-letter law scholars have noted that ‘we no longer live in a legal culture dominated by formalism where we believe that legal reasoning is the process of finding one true “correct” answer’. Instead, to understand law, we should acknowledge its ‘indeterminacy’ and ‘subjective influences on legal interpretation’.^[78] Truth is a subjective exercise, as exemplified by common law. Within common-law courts, textual and evidentiary interpretation and depiction are largely what make the difference between a majority, concurrence, and dissent decision. This is only highlighted by the recognition that legal structures we take for granted—adoption, divorce—were invented to reflect and serve changing social values and priorities.

By studying O’Brien’s metafictional practice, legal scholars may gain a stronger ability to critically parse the law instead of taking the social values it reflects for granted. O’Brien’s writing underscores the infinite difference a separate perspective or word choice can make to a narrative, and how that narrative might remain truthful regardless through its emotional resonance. The law as it stands primarily reflects dominant narratives. As shown by O’Brien’s distinction between ‘story-truth’ and ‘happening-truth’, legal doctrine and decision-making could benefit from acknowledging the emotional truth upon which they already rely.

Conclusion

Persuasive story-telling is fundamentally driven by emotional truth. Metafiction’s exploration of emotional realities may thus be effectively applied to recognise legal fictions as manifestations of past and current social values framed as fact by dominant legal systems. Legal fictions underscore the power of persuasion inherent to law’s determination and reinforcement of our social rules and standards. Similarly, metafiction as studied through The Things They Carried belies the subjectivity of any experience woven into a given narrative. This comparison may be leveraged to emphasise how acknowledging emotional truth in law does not betray law’s supposed neutral arbitration of fact. Instead, once acknowledged and accepted, emotional truth can be used to build stronger, more convincing narratives and provide a window for powerful legal institutions to better understand and appreciate marginalised voices. Literature’s device of metafiction should garner greater attention in the study of law and its persuasive ability so law may more effectively serve broader swaths of our society.

It is helpful here to provide some brief examples of how this acknowledgement might tangibly shape law moving forward. In writing about the gendered implications of a woman accused of murdering her allegedly abusive husband in 1901, Patricia Bryan noted that ‘stories give us the potential to acquire an empathetic understanding of other people, an understanding which helps us to recognise the stereotypical notions that may be embedded in the law even though they stand at odds with the reality and complexity of the lives of many’. As metafiction displays, narratives focusing on emotional truth offer audiences the ability to envision an unfamiliar context—an abusive marriage, for instance—they may never otherwise encounter. In acknowledging the emotional truth inherent to one’s experience and motivating one’s decisions, legal decision-makers and scholars may be better able to mete out justice by focusing on truly restitutive outcomes based on the context at hand. As a result, those decision-makers can ‘define justice in a way that more broadly reflects the diversity of the human experience’.^[79]

O’Brien has commented that ‘fiction is a way of testing possibilities and testing hypotheses, and not defining’.^[80] This view should be applied to studying law to gain an understanding of experiences outside our own scopes. After all, justice works best when its outcomes are tailored to the context at hand. If law is intended to sensitively serve a diverse society of varying needs, it may do so best by acknowledging its own reliance on values-based fictions in the narratives it creates and legitimises.

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Meredith Wilson-Smith

Meredith Wilson-Smith practices public, constitutional, and administrative law in Toronto, Ontario. She graduated from Osgoode Hall Law School in 2024. As a recovering journalist and editor, she’s interested in questions of truth, narrative, and access to justice.

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[1] Tim O’Brien, The Things They Carried (Mariner Books 2009) 179.

[2] Douglas Lind, ‘The Pragmatic Value of Legal Fictions’ in Maksymilian Del Mar and William Del Twining (eds), Legal Fictions in Theory and Practice (Springer International Publishing 2015) 83.

[3] Stephanie Kane, ‘Narrative, the Essential Trial Strategy’ (2008) 34(4) Litigation 52.

[4] Henry Sumner Maine, ‘Legal Fictions’ in Ancient Law (Routledge 2017) 26.

[5] Patricia Waugh, Metafiction: The Theory and Practice of Self-Conscious Fiction (Methuen 1984) 2 quoted in Simon Stern, ‘Legal Fictions and Legal Fabrication’ in Hans Lind (ed), Fictional Discourse and the Law (Routledge 2020) 199.

[6] Jane B Baron, ‘Law, Literature, and the Problems of Interdisciplinarity’ (1999) 108 Yale LJ 1066.

[7] Sidney T Miller, ‘The Reasons for Some Legal Fictions’ (1910) 8(8) Mich L Rev 623.

[8] John Baker, ‘Legal Fictions’ in The Law’s Two Bodies: Some Evidential Problems in English Legal History (Oxford University Press 2001) 53.

[9] ibid 34.

[10] Maine (n 4) 24 quoted in Miller (n 7) 623.

[11] Stern (n 5) 190.

[12] ibid 191. 

[13] Baker (n 8) 36.

[14] ibid 39.

[15] Quoted in Louis Quarles, ‘The Law of Adoption – A Legal Anomaly’ (1949) 32(4) Marq L Rev 238.

[16] Leo A Huard, ‘The Law of Adoption: Ancient and Modern’ (1956) 4(4) Vand L Rev 743.

[17] Andrey M Shirvindt, ‘The Meaning of Fiction in Roman Law: The Case of Adrogatio’ (2011) 278(3) Journal of Ancient History 1.

[18] Huard (n 16) 745.

[19] Maine (n 4) 26-7.

[20] Simon Stern, ‘Legal and Literary Fictions’ in Elizabeth S Anker and Bernadette Meyler (eds), New Directions in Law and Literature (Oxford University Press 2017) 317.

[21] Stern (n 5) 193.

[22] Stern (n 20) 320.

[23] Stern (n 5) 199.

[24] Nancy Levit, ‘Reshaping the Narrative Debate’ (2011) 34(3) Seattle UL Rev 753.

[25] ibid 757.

[26] ibid 754.

[27] ibid 758-9.

[28] Louis Auchincloss, ‘The Senior Partner’s Ghosts’ (1964) in Fred R Shapiro & Jane Garry (eds), Trial and Error: An Oxford Anthology of Legal Stories (Oxford University Press 1998) 357.

[29] Parker B Potter, Jr, ‘Ordeal by Trial: Judicial References to the Nightmare World of Franz Kafka,’ (2005) 3 Pierce L Rev 195.

[30] Levit (n 24) 756.

[31] Patricia L Bryan, ‘Stories in Fiction and in Fact: Susan Glaspell’s A Jury of Her Peers and the 1901 Murder Trial of Margaret Hossack’ (1997) 49 Stan L Rev 1303-4.

[32] Kimberly YW Holst, ‘Non-Traditional Narrative Techniques and Effective Client Advocacy’ (2014) 48(2) L Teacher 169.

[33] ibid 170.

[34] ibid 173.

[35] Kane (n 3) 53.

[36] Philip N Meyer, ‘Telling Unfinished Stories: How Lawyers can Craft a Case Narrative to Spark Jurists’ and Jurors’ Interest in Writing the Ending’ (2015) 101(1) ABA Journal 29.

[37] James R Elkins, ‘The Things They Carry into Legal Writing (and Legal Education)’ (1998) 22(4) Legal Stud F 753.

[38] John K Young, How to Revise a True War Story: Tim O’Brien’s Process of Textual Production (University of Iowa Press 2017) viii.

[39] Patricia Waugh, ‘What is metafiction and why are they saying such awful things about it?’ in Metafiction (Routledge 1984) 3.

[40] Stern (n 5) 192.

[41] Waugh (n 39) 7.

[42] Stern (n 5) 195.

[43] For the sake of clarity in this paper, I henceforth refer to the author as ‘O’Brien’ and the narrator as ‘Tim.’

[44] Martin Naparsteck, ‘An Interview with Tim O’Brien’ (1991) 32(1) Contemporary Literature 9.

[45] O’Brien (n 1) 81.

[46] Naparsteck (n 44) 9.

[47] Mats Tegmark, In the shoes of a soldier: Communication in Tim O’Brien’s Vietnam narratives (PhD thesis, Uppsala University 1998) 219.

[48] Steven Kaplan, ‘The Undying Uncertainty of the Narrator in Tim O’Brien’s The Things They Carried’ (1993) 35(1) Critique: Studies in Contemporary Fiction 48.

[49] O’Brien (n 1) 78.

[50] ibid 3.

[51] ibid.

[52] ibid 2.

[53] ibid 12.

[54] This chapter’s title furthers the blurring of narrator and author: it is taken from the literary tradition of an author’s explanatory note meant to clarify an aspect of their story for the reader.

[55] O’Brien (n 1) 149.

[56] ibid 152.

[57] ibid 154.

[58] ibid 151.

[59] Kaplan (n 48) 45.

[60] Catherine Calloway, ‘“How to Tell a True War Story”: Metafiction in The Things They Carried’ (1995) 36(4) Critique: Studies in Contemporary Fiction 249.

[61] O’Brien (n 1) iii.

[62] ibid ii.

[63] ibid 2.

[64] ibid 3.

[65] ibid 6.

[66] ibid 6.

[67] ibid 26.

[68] ibid 33.

[69] Young (n 38) 2.

[70] ibid viii.

[71] ibid 89.

[72] Naparsteck (n 44) 9.

[73] David Buchanan, ‘Reporting Is Not a Holy Word: Tim O’Brien’s Edits in If I Die in a CombZone, Box Me Up and Ship Me Home and The Things They Carried (2019) 65(4) MFS Modern Fiction Studies 622.

[74] O’Brien (n 1) 208.

[75] ibid 70.

[76] ibid 73.

[77] Naparsteck (n 44) 10.

[78] Adam M Dodek, ‘Lawyering the Intersection of Public Law and Legal Ethics: Government Lawyers as Custodians of the Rule of Law’ (2010) 33(1) Dal LJ 23.

[79] Bryan (n 31) 1305.

[80] Naparsteck (n 44) 8.