Mind, Metaphor, Law - Mark L. Johnson

• Citation: Vol. 58 No. 3
• Publication year: 2007

Mind, Metaphor, Lawby Mark L. Johnson^*

Change, as John Dewey observed, is a basic fact of human experience. We are temporal creatures, and the situations we find ourselves in, the situations that make up the fabric of our lives, are always evolving and developing. The omnipresence of change throughout all human experience thus creates a fundamental problem for law, namely, how can law preserve its integrity over time, while managing to address the newly emerging circumstances that continually arise throughout our history? If, following one extreme, we think of law as fixed, static, and univocal in its content, then law runs the risk of losing its relevance to the new conditions and problems that face us each day. However, the opposite extreme—that law is completely malleable—is equally untenable, for that would make law nothing more than a tool of those in power. Our problem, therefore, is how law can be both stable and capable of growth.

I believe that part of the answer to this foundational question is beginning to emerge from recent research in the cognitive sciences. Human law is a many-splendored creation of the human mind, that is, of human understanding and reasoning. The primary business of the cognitive sciences is to study empirically how the mind works. Therefore, cognitive science ought to give us insight into the nature of legal concepts and legal reasoning.¹

Even though the "cognitive science of law" is a very recent development, its potential for transforming legal theory is substantial. However, most people do not believe that the cognitive sciences are theoretically rich enough, and sufficiently non-reductionist in character, to do justice to the depths of legal understanding. This prejudice is based, I suspect, on the fact that people tend only to know about what I call "first-generation" cognitive science, which grew out of work in the 1950s in computer science and artificial intelligence and assumed views of meaning and thought that came straight out of early information processing psychology, analytic philosophy of mind and language, and generative linguistics. I have to admit that this type of cognitive theory has almost nothing to tell us about the nature of law because it has turned out to tell us very little about how the mind actually works.

I. The Need for a Cognitive Science of Law

Happily, things have changed dramatically over the past two decades in light of the emergence of a second generation of cognitive science, which has called into question virtually all of the major assumptions of the first-generation paradigm.² Instead of seeing the mind as a disembodied computer program, the newer research reveals that our conceptualization and reasoning are grounded in our bodily experience and shaped primarily by patterns of perception and action.³ There is a logic of our bodily experience that is imaginatively appropriated in defining our abstract concepts and reasoning with them. Imaginative processes of this sort depend on the nature of our bodies, our brains, and the patterns of our interactions with our environment. Imagina-tion—which is the soul of human thinking—is therefore constrained and orderly, even though it can be flexible and creative in response to novel situations.⁴

This new cognitive science of the embodied mind is predicated on the assumption that there is no human conceptualization or reasoning without a functioning human brain, which operates a living human body that is continually engaging environments that are at once physical, social, cultural, economic, moral, legal, gendered, and racialized. Our embodiment shapes both what and how we experience, think, mean, imagine, reason, and communicate. This claim is a bold one, and it directly challenges our received folk wisdom that what we call "mind" and "body" are somehow two fundamentally different kinds of entities. From a philosophical point of view, one of the hardest tasks you'll ever face is coming to grips with the fact of your embodiment because this fact requires a serious rethinking of the nature of mind, thought, and language. What makes this task so very difficult is the omnipresent idea of disembodied mind and thought that leaves its traces everywhere we turn, from claims about pure logical form, to pure concepts, to ideas of non-corporeal thought, to spectator views of knowledge, to correspondence theories of truth.

What is at stake here? Why should any of this matter? My answer is this:

1. A disembodied view of mind is often used to support a literalist and objectivist view of thought, concepts, and reason.

2. On the objectivist view, concepts are believed to have strict, fixed boundaries defined by necessary and sufficient conditions. This is what George Lakoffcalls the "classical theory" of categories, according to which any concept is allegedly demarcated by a particular unique set of features that jointly identify some entity as falling under a specific concept.⁵

3. An objectivist/literalist paradigm supports a view of moral and legal reasoning as the application of literally-defined objective categories to situations in an all-or-nothing fashion, based on fixed criteria.

4. This objectivist/literalist theory is based on an empirically false view of cognition, mind, and language. It presupposes a dangerously false view of what a person is and how the mind works.

5. As a result, empirical research on the nature of cognition should have important implications for our understanding of moral and legal concepts and reasoning.

II. Where Does Meaning Come From?

If you think, as I do, that there is no mind without a body—a body in continuous interaction with ever-changing environments—then you've got to explain how this bodily activity gives rise to all our glorious abstract thoughts and symbolic interactions. I want to give a sketch of my version of certain key parts of this massive story of embodied meaning and thought and then suggest how this new view bears on our understanding of legal reasoning.

Second generation cognitive science has been developing a bold new theory of the bodily basis of meaning, imagination, and reason.⁶ Here, I can focus only on three of the most important aspects of human cognition that have potentially profound implications for law:

• Radially structured categories that manifest prototypicality effects.

• Image schemas, as a basis for embodied meaning and logical inference.

• Conceptual metaphors, by which we extend embodied meaning into our abstract conceptualization and reasoning.

III. RADIAL CATEGORIES AND PROTOTYPICALITY EFFECTS

The classical theory of categories, which is the default view held by nearly everyone in our culture, is that categories have a fixed, stable, and objective structure.⁷ In this view, a concept like "dog" is believed to be defined by a set of features an object must possess to be that particular type of thing we call a dog. If some object has those features, then it is a dog, and not otherwise. Notice that assuming this view of concepts leads us to a very specific view of moral and legal reasoning. If a principle, rule, or law consists of a set of classically structured concepts, then that law would apply in a certain clear fashion solely to those situations where the defining conditions for the concepts were satisfied in our experience. If "thou shalt not murder," and if you know the necessary and sufficient conditions that define murder, then your only problem in evaluating a proposed course of action is to determine precisely whether it involves an act of murder. If a certain act manifests the requisite properties that constitute murder, then it is prohibited, period. This classical objectivist view of categories, ifit were true, would make law a neat little process of strict rule application. How a legal concept might grow without completely redefining the concept, and how legal judgment might change in a rational, stable manner, could never be explained using this view. But at least a conservative view of law would be upheld.

Contrary to the classical objectivist view, there is now a massive and steadily growing body of empirical evidence supporting the proposition that large parts of human conceptualization and reasoning do not work in the way the classical theory requires.⁸ What the evidence shows is that many of our most basic concepts, from those for simple objects like cups and beds, all the way to abstract concepts in morality, politics, science, religion, and law, have complicated internal radial structures and exhibit what are known as "prototypicality effects."⁹

To illustrate my point about this complex structure of concepts, I want to tell an extremely sad story. Something awful happened this past summer. You know what I'm referring to, right? I'm talking about the planet Pluto, which—I can hardly utter the words—is now not a planet. And I'm really upset with President George W. Bush for not standing up for Pluto. Our President is someone who claims to stand four-square behind the idea that our most important concepts are literal and are fixed in their essence—fixed by God, man, or both. He stood for this principle, for example, when he insisted that marriage is a blessed union between a man and a woman. He asserted that marriage has always been that way and that this is clearly a manifestation of the essential nature of marriage. But I ask you, where was our President when those planetary activists decided to ignore the obvious essence of planethood and brazenly declared Pluto kicked out of the planetary family? Well, he was not there to defend conceptual objectivism. In fairness, I suppose he did not regard it as his job to wade in on science (unless that science is evolutionary science).

You thought Pluto was quite obviously a planet, right? Your whole astronomical education was based on this. And now what are we supposed to do with all those little solar system models we made with Styrofoam balls?

What happened to Pluto...