Metaphor and Reason in Judicial Opinions

Metaphor and Reason in Judicial Opinions

Metaphor and Reason in Judicial Opinions

Metaphor and Reason in Judicial Opinions

Synopsis

To the public, judges handing down judicial decisions present arguments arrived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "Rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn't law be?" Haig Bosmajian examines the crucial role of the trope- metaphors, personifications, metonymies- in argumentation and reveals the surprisingly important place that figurative, nonliteral language holds in judicial decision making.

Focusing on the specific genre of the legal opinion, Professor Bosmajian discusses the question of why we have judicial opinions at all and the importance of style in them. He then looks at specific well-known figures of speech such as "the wall of separation" between church and state, justice personified as a female, or the Constitution as "colorblind," explaining why they are not straightforward statements of legal fact but examples of the ways tropes are used in legal language.

A useful example can be found in Judge Learned Hand's response to a 1943 case involving news gathering and monopoly. Hand found the need to protect the public's right to the "dissemination of news from as many different sources, and with as many different facets and colors possible," an interest "closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be folly; but we have staken upon it our all."

Excerpt

In his autobiographical Of Men and Mountains, Justice William O. Douglas describes some of the experiences and relationships that influenced him as he was growing up in the Yakima, Washington, area and the Cascade country. At the outset of the book, Douglas observes: "The boy makes a deep imprint on the man. My young experiences in the high Cascades have placed the heavy mark of the mountain on me."

So that the reader can get a partial explanation of how I have come to write this book on language and style in the reasoning of judicial opinions, I take Douglas's "The boy makes a deep imprint on the man" as a starting point. At least on the intellectual level, it probably began in 1945 when as a student at a California community college (then known as Reedley Junior College) I was introduced to the world of philosophy, psychology, sociology, and logic. This new world of ideas created new questions for me about knowledge, justice, and society that I had not been exposed to -- not at least through reading John Stuart Mill, Karl Marx, Immanuel Kant, Arthur Schopenhauer, Thomas Jefferson, and others -- and discussing them with a professor like Dr. W. Vincent Evans at a community college surrounded by the vineyards and orchards in the San Joaquin Valley. This new world of ideas made a deep imprint on a seventeen-year-old farm boy, who found this heady stuff. When I left Professor Evans's classes in 1947, I was not the same person who had entered two years earlier.

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