Re-embodying Law - Steven L. Winter

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

Re-Embodying Lawby Steven L. Winter^*

It was fun to watch the audience of mostly first-year students during Mark Johnson's presentation. Seven weeks into their first semester of law school, this was clearly the most fun they had had so far. And it was easy to see why: law school takes place "from the neck up," so to speak. It is so relentlessly about reason abstracted from the ordinary interests, passions, and other embodied considerations of everyday (not to mention college) life. This deracination of law is ritualized metaphorically in the black robes that enshroud our judges' bodies as if to say, "See, it is all from the neck up." And that is one of the most wonderful things about the work that Mark Johnson and George Lakoff have been doing: it reconnects us to ourselves in our embodied wholeness—as not just minds, but as embodied human beings.

This classic Western opposition between mind and body—and its correlates, such as reason and the passion, logic and rhetoric, etc.—is mirrored in twentieth-century legal theory's absorption with the problem of meaningful constraints on judicial decisionmaking and the consequent danger of unchecked subjectivity. The fear, conventionally identified with the Supreme Court's infamous decision in Lochner v. New York,¹ is that without constraints, judges and other powerful legal actors will be free to impose their personal values. On this view, law operates as law only if there is some disciplining, external constraint on the discretion of the legal decisionmaker. In Frank Michelman's words, law is "an autonomous force" that provides "an external untouchable rule of the game."² This constraint may be an objective quality of the legal materials—that is, of the facts and holdings of the cases—or a higher-order reason grounded in general concepts or rules, the intent of the Framers, political theory, moral philosophy, or as is current today, the utilitarian rationality of microeconomics and rational choice theory. But, in each of these cases, the structure of legal reasoning is essentially the same: it strives to reduce a complex problem to a policy, principle, propositional rule, or some other set of necessary and sufficient criteria. In theory, these definitional criteria will allow professionals to delineate legal categories with greater precision, draw appropriate distinctions, and then make correct decisions.

Now, as Mark Johnson points out in his paper, one obvious problem with this approach is that it makes it more difficult to explain how the law changes and adapts to new social circumstances. This observation is part of a larger point about the development of rationality: human intelligence, including the capacity to categorize, arose as a successful evolutionary adaptation. In the words of the Nobel-winning biologist Gerald Edelman, "evolution teaches us that the selection of animals formed to carry out functions that increase their fitness is at the very heart of the matter."³ We know from evolutionary biology that rigid systems rarely survive because they are maladaptive. It only makes sense, therefore, that as an evolutionary development, human rationality would be flexible and adaptive rather than rigidly propositional and truth-conditional. Metaphoric thought is one of the principal (but not exclusive) forms of an adaptive human intelligence.

So far, so good. But notice that this account also creates a problem. One way to make a propositional legal category—say, the rule that once required personal presence within the state as a prerequisite to the exercise of state court jurisdiction—adaptable to new circumstances is to extend it via metaphor. Thus, under the regime of Pennoyer v. Neff,⁴ a court could exercise jurisdiction over an out-of-state corporation if it did sufficient business in the state that "the corporation shall have come into the state."⁵ The legal realists decried such metaphors and legal fictions as "transcendental nonsense" that afflicted formalist legal reasoning. As Felix Cohen caustically observed:

Clearly the question of where a corporation is, when it incorporates in one state and has agents transacting corporate business in another state, is not a question that can be answered by empirical observation.

Nobody has ever seen a corporation. What right have we to believe in corporations if we don't believe in angels? To be sure some of us have seen corporate funds, corporate transactions, etc. (just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the right to hypostatize, to "thingify," the corporation, and to assume that it travels about from State to State as mortal men travel.⁶

Within the classic Western oppositions, metaphor has historically been understood as subjective and a matter of mere rhetoric. Thus, Locke condemned metaphor and other figurative speech as "perfect cheat" and insisted upon literal prose "if we would speak of Things as they are."⁷ In their critique of legal metaphor, the realists were relying on this classic conception. In his famous article on fundamental legal conceptions, Hohfeld complained: "Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional."⁸ In much the same vein, Cohen objected: "When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than poetical or mnemonic devices . . ., then [one] . . . is apt to forget the social forces which mold the law. . . ."⁹ On the bench, judges as distinguished as Benjamin Cardozo and Charles Evan Hughes warned against the distortions caused by metaphors in law.¹⁰

Legal metaphor, in other words, is a double-edged sword. On one hand, metaphorical thought makes possible the flexibility that law needs if it is to accommodate the complexities of social life. On the other hand, if a putatively propositional law changes via metaphor, then this transformation vitiates the constraint supposedly provided by the law's criterial logic.

This is the kind of conundrum that drives conventional scholars into paroxyms of platitudes about maintaining stability in the face of change. But we can do better. To do so, we need to understand first, that human rationality is not linear and criterial to begin with, but imaginative and adaptive (that is, involving metaphor, image-schemas, metonymies, and radial categories); second, that imaginative thought (including metaphor) is systematic and regular rather than arbitrary and unconstrained; and third, that innovation (whether via metaphor or otherwise) is itself a contingent and, therefore, highly constrained phenomenon. Legal metaphor presents neither the problems perceived by the realists nor those feared by conventional scholars. That is because, as I hope to demonstrate, successful legal metaphor derives its force from the very discipline of constraint that defines its conditions of possibility.

In the next two sections, I will walk you through two familiar examples of innovative argument in constitutional law. The first is the landmark case of NLRB v. Jones & Laughlin Steel Corp.,¹¹ in which the Supreme Court made what is widely understood as a radical break with prior Commerce Clause¹² doctrine. The second is Holmes's introduction of the "marketplace of ideas" as the organizing metaphor for modern free speech doctrine. In the third section, I examine the restrictive implications of the market metaphor and its relation to the much troubled but still oft-invoked speech/conduct distinction. In each of these cases, we will closely observe the constitutive relationship between imagination and constraint, innovation, and contingency.

I. STREAMLINING COMMERCE

The U.S. Supreme Court's 1937 decision in NLRB v. Jones & Laughlin Steel Corp.¹³ upheld the constitutionality of the National Labor Relations Act.¹⁴ The case marked a watershed in Commerce Clause analysis and, as one of the two "switch in time that saved nine" cases, reflected a major shift in the legal/social consensus on the constitutional status of the regulatory programs of the New Deal.¹⁵ Hughes's landmark opinion is often read as rejecting the "stream of commerce" metaphor in favor of a realistic assessment of congressional power over commerce. But a closer reading of Hughes's opinion shows him refashioning, rather than refusing, the stream of commerce metaphor. Though Hughes radically reorganized Commerce Clause doctrine, he did not operate free-form. Rather, he worked with the metaphorical material already in the cases to refashion the doctrine in a manner that was simultaneously constrained and enabled by the very precedents he was rejecting.

The National Labor Relations Board had found that the Jones & Laughlin company coerced, intimidated, and discriminated against its employees in an effort to prevent unionization.¹⁶ As the case came to the Supreme Court, the primary question was jurisdictional: could the federal government exercise its Commerce Clause power to regulate labor relations in manufacturing?¹⁷

The steel manufacturer relied on the Court's decision in United States v. E.C. Knight Co.,¹⁸ which declared that manufacturing is not com-merce.¹⁹ Although the distinction seems tendentious today, this position is firmly rooted in a rationalist, criterial logic that distinguishes manufacturing and commerce according to the rigors of a P-or-not-P categorization. This rationalist paradigm was also mirrored in the categorical approach to the federalism question taken by Justice McReynolds in his dissent:

One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, . . . has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships...