Book Review

The place of narrative in the writing of history has been the subject of considerable debate in the postmodern academy. But the ways in which historical actors themselves have constructed narratives in their own lives is perhaps a more interesting question, and it is the one Mary Frances Berry addresses in her new work. Scholars as diverse as Derrick Bell, Richard Delgado, Annette Gordon-Reed, Michael Grossberg, and David Dante Troutt have brilliantly demonstrated the central place of storytelling in the law. Following these various leads, Berry interrogates the narratives recounted in appellate court cases, both civil and criminal, concerning fornication, adultery, homosexuality, concubinage, prostitution, seduction, abortion, infanticide, incest, and rape. The historical actors include prosecutors and defense attorneys, the accused and their victims, the police, reformers, witnesses, jurors, judges, and a larger public.	1
Understanding the patterns and meanings of legal storytelling, Berry asserts, is crucial to the mission of more inclusive justice. "If the law is regarded only as a series of formal rules, reformers will focus their energies on changing the rules," she warns (9–10). But if one understands the shaping of law as dependent, in part, on narratives with deep historical roots, Berry proposes, it becomes clear how much more complex is the struggle for equality before the law.	2
Lawmakers and judges, Berry shows, rely upon a host of narratives (perhaps one could even say "scripts," although Berry does not invoke that word) about the personal qualities and characteristics of different categories of human beings. There are, for example, promiscuous poor women and licentious black women, honorable white men and pure white women, polluted prostitutes and sinful sodomites. Through the book's chapters, Berry discerns the moments in history when various actors attempted to introduce new narratives into the courts; she then determines which of these narratives juries and judges (and by extension a broader public) were willing to embrace.	3
Despite the repeated tropes, Berry strives to portray a complex, nonlinear process. To be sure, there were (and are) reigning narratives. But there were (and are) also intersections of old and new stories and uneven acceptance of stories or parts of stories. Narratives compete with one another, coexist and contradict each other, and more often than not become convoluted and confused. Such multiplicity precludes wholly predictable verdicts, and yet it is clear that the law has historically worked to preserve privilege in the forms of patriarchy and whiteness. To give just one example, in an 1880s case of the rape of two young sisters, the key factor in finding the rapist guilty was the revelation that he "was not the girls' father"—indicating that a conviction for rape would have infringed upon the "paternal rights" of a man who sexually assaulted his own daughters (185).	4
At times there is a degree of abstraction concerning who exactly crafted and disseminated the stories that helped to determine legal outcomes. Berry invokes a singular, disembodied "public mind" (or occasionally "the white public") and with the use of passive voice, readers learn only that narratives "developed" or "became redefined" (143). Sometimes the author lends an anthropomorphic agency to the narratives themselves, as when she discusses "the new story that allowed women to vote, hold a job, and experience premarital sex" (145).	5
In her strongest analyses, Berry is firm about agency: "a Massachusetts court decided to develop a new legal narrative about sexual orientation," for example (75), or "feminists and moral reformers tried to imprint different stories that they hoped would contain prostitution" (109). Indeed, Berry has unearthed a great many fascinating cases. Each chapter takes a different kind of sexual crime as its focus, and in each one, Berry offers numerous cases by recounting and interpreting the courtroom testimony. In this way, the scripted narratives become apparent: that sex between white men and black women was inconsequential, say, or that white men always protected the honor of their wives. Berry demonstrates as well how defiance of conventional narratives could bring about dire consequences for those who hoped to challenge society and the law.	6
The cases themselves make abundantly clear just how central narrative is to the legal process. In an effort to prove that a pregnant woman was lying when she accused a minister of seduction in 1872, for example, the alleged victim had to answer the question, "'Have you never been blackberry hunting with young men and brought no blackberries back?'" (129). In terms of historical methodology, then, Berry's work reminds us that historical actors lived their lives in part through the crafting of stories, both for themselves and for others. Readers will likely, in fact, come away with the impression that all ideologies about sexuality are inextricably bound up with stories. Berry has identified—to name only a handful—racial-subordination stories and racial-equality stories, gender-subordination stories and women's-autonomy stories, evil-and-perversity stories and due-process stories.	7
Language is central to storytelling, and so it is surprising that Berry employs the terms "gay" and "lesbian" anachronistically; because she is concerned precisely with the stories told by and about these actors, the lack of historical precision seems odd here. There is also little attention to regional variation, and at times the chapters move backward and forward without regard to chronology. But this is a rich book, and students and scholars in search of legal overviews of the history of sexuality, race, and gender will find much to ponder in these pages—and anyone in search of a research topic will find the work a gold mine. One of the most valuable aspects of this study is that it reaches so far into the present.	8
Moreover, Berry's own narrative is highly readable. Notably, the rehearsal of testimony is elegantly rendered and wondrously never tedious. In the end, Mary Frances Berry illuminates the inadequacy of a simple model of legal change. The stories that have shaped United States law from the end of the Civil War are deeply entrenched products of history. History, in turn, is shaped by those stories, and "changing the law," Berry makes clear, "requires changing the stories" (243).	9
Martha Hodes New York University

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.