Who Is on the Outside Looking In, and What Do They See?: Metaphors of Exclusion in Legal Education - David T. Ritchie

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

Who is On the Outside Looking In, and What Do They See?: Metaphors of Exclusion in Legal Education^* by David T. Ritchie^**

I. Introduction

Many people might assume that metaphors are linguistic devices that pithily play on associations between unrelated kinds of things.¹ These associations, many might further assume, show how deft an author can be at using a turn of phrase or how agile a speaker might be using widely known imagery to illustrate a point.² Such assumptions are not completely arbitrary, as metaphors do indeed have important literary aspects. This device, though, is often presumed to be a mere literary or rhetorical trope³ designed to enliven one's language or show intellectual dexterity in discourse.⁴ Metaphor is, in this view, a mere trick designed to conceal or cover over the truth by making a superficial comparison with unrelated phenomena.⁵

In fact, there are well known theorists and jurists in Anglo-American jurisprudence who have expressed skeptical views about the power of metaphor in legal discourse.⁶ England's Lord Mansfield cautioned that "nothing in law is so apt to mislead [as] a metaphor,"⁷ and the British philosopher Jeremy Bentham suggested that metaphor was the antithesis of legal reasoning.⁸ This cynicism was picked up on this side of the Atlantic by the nineteenth century Yale law professor Wesley Hohfeld,⁹ and later by Benjamin Cardozo who suggested that metaphors in legal analysis and communication had "to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it."¹⁰ Other prominent jurists, such as former U.S. Supreme Court Justice Felix Frankfurter,¹¹ agreed. More recently, the constitutional theorist Robert Tsai has said that "[l]egal scholars have traditionally understood metaphor as, at worst, a perversion of the law, and at best, as a necessary but temporary place-holder for more fully developed lines of argument."¹²

What if these skeptical views about the role of metaphor in human reasoning and communication are misplaced, however? If, as some have persuasively argued,¹³ human cognition is profoundly metaphorical in nature,¹⁴ would not the evaluation and discussion of the role of metaphor in all areas of human enterprise take on a more important role in understanding how we as a species do the things we do?¹⁵ In fact, this is the emerging consensus.¹⁶ The academic literature in almost every area of human concern¹⁷ has embraced the importance of metaphor, not as linguistic chicanery but as a fundamental aspect of human reasoning about those areas of concern.¹⁸

Certainly, within the realm of legal scholarship, the status of metaphor has risen considerably.¹⁹ Dozens and dozens of articles have appeared in the last couple of decades²⁰ that acknowledge the importance of metaphor both in legal analysis and reasoning, and in the way lawyers, judges, and scholars communicate about the law. Virtually all of these contributions endorse the notion that metaphors in legal discourse are fundamental to the way we understand and use legal concepts. These endorsements have led to innovative and important discussions about the nature of legal analysis and communication in our tradition of jurisprudence.²¹ Following on the ground-breaking work of the philosopher and cognitive theorist Mark Johnson,²² Steven Winter has suggested that "a cognitive understanding of metaphor provides a more genuinely pragmatic alternative to the insistence on dichotomous thinking that so dominates and distorts contemporary legal thought."²³ Leading voices in legal communication²⁴ have taken up this mantle,²⁵ evaluating how the metaphors used in business and corporate law indelibly shape the way we think about how business is carried out.²⁶ Some have even developed theories about how to construct and employ metaphors²⁷ in the context of the American adversary system.²⁸ In short, contrary to what Bentham and Cardozo thought, metaphor has come to be seen as a fundamental and liberating way of forming and expressing our intellectual imagination in the context of legal reasoning and communication.

In this Article, I intend to do two things. First, I will briefly discuss²⁹ the way in which metaphor has a formative and ontological effect on how we see and live in the world. Here, I will draw upon the work of George Lakoff and Mark Johnson, touching upon the notion that we "live by"³⁰ certain metaphors. In Part II of this Article, I will discuss the basic theory behind cognitive or conceptual metaphor. While not an exhaustive treatment, this discussion should orient the reader to the fundamental aspects of this theory. Then I will develop one particular category of metaphors that Lakoff and Johnson have identified,³¹ which has subsequently been picked up by others in discussions of contemporary political theory (especially in the European context).³² This class of metaphors relates to the theme of exclusion.³³ My decision to discuss this particular class of metaphors is not happenstance. These are metaphors that are frequently used in the legal academy to discuss the status of people who teach legal skills-related courses.³⁴

This leads me to my second task. The remainder of the Article (Part III) will be devoted to evaluating and discussing some of these metaphors of exclusion with an eye to the ontological effect they have upon those who teach legal skills courses³⁵ (particularly "legal writing").³⁶ I must caution that this discussion is not simply another in a long line of calls for the increased status of legal writing and legal skills professors (although it might be that at some level as well), but is instead a look at how those of us in these positions sometimes unwittingly contribute to the reinscription of exclusionary metaphors and ultimately to the re-entrenchment of the hierarchy itself. In my view, this reinscription, in turn, makes it impossible to change the dynamic of power and status that reigns in the contemporary legal academy.³⁷ If I am correct, we (those of us who teach legal skills) have as much responsibility as anyone for the current state of affairs. Who we are and how we are perceived can be changed. By recognizing that status is—in a very true way—a metaphorical relationship, we perhaps have more power to change our own situations than we might dare to imagine.

II. The Power of Metaphors of Exclusion

The linguist George Lakoff and the philosopher Mark Johnson have, over the past twenty-five years, developed a robust theory of how metaphor works in the way humans analyze and make sense of the world.³⁸ Their work in this regard has been widely cited in fields as diverse as clinical psychology, cognitive science, law, linguistics, literary studies, philosophy, and politics.³⁹ Below, I will briefly discuss some of the salient features of the cognitive theory of metaphor, laying out its basic structure. This discussion is necessary, I believe, so that the reader can see why the last part of this Article contains some troubling implications. After setting out the basic features of the cognitive theory of metaphor, I turn to examining one particular set of metaphors that illustrate how this theory is used in constructing an understanding of a complex moral and political problem and analyzing that understanding. This category of metaphors relates to notions of exclusion. I am convinced that current debates surrounding the status of some members of law faculties in the United States can be amply explained by drawing on this theory of metaphor. As such, the following examination of Lakoff's and Johnson's work could have a far-reaching impact on an important and raging debate within the legal academy.

A. The Cognitive or Conceptual Theory of Metaphor

Advocates of the cognitive theory of metaphor maintain that metaphors are fundamental to the way we understand and experience the world.⁴⁰ George Lakoff and Mark Johnson, for example, have said that "our ordinary conceptual system is metaphorical in nature."⁴¹ In essence, the way we think is dependent on metaphor.⁴² This theory has profound implications.⁴³ If this idea is correct, and it has gained wide currency,⁴⁴ then human cognition is determined in no small part by the ability to recognize, understand, and use metaphors.⁴⁵ This, in turn, suggests that who we are is determined by metaphors.⁴⁶ In effect, we "live by" metaphors in the truest sense.⁴⁷ Far from being a mere linguistic device, according to this view metaphorical reasoning is a metaphysical principle of the highest order.⁴⁸

Metaphors are ways of describing or illustrating one concept by equating it to something else.⁴⁹ The relationship between the first concept ("target" in Lakoff's scheme) and the second concept ("source") is one of ascription.⁵⁰ In ascribing the characteristics of the source concept upon the target concept, we are conveying meaning about the target concept by playing on one's conceptual understanding of the attributes of the source concept.⁵¹ It is this relationship that conveys meaning, not the words that are used.⁵² In effect, when we are faced with understanding a concept that is new or difficult, we cognitively seek to relate the unknown idea to something we do know in order to make the new or difficult concept more intelligible.⁵³ Very often, perhaps almost always, this ascriptive relationship is created without consciously thinking about it.⁵⁴

Some, like Lakoff and Johnson,⁵⁵ suggest that this metaphoric aspect of reasoning is cognitive in nature.⁵⁶ That is to say, advocates of the cognitive theory of metaphor maintain that metaphors are deeply ingrained in the way our brains work.⁵⁷ According to Lakoff and Johnson and those who follow their views, metaphors make so much sense to us because we are—at base—creatures who understand concepts in metaphorical terms.⁵⁸ As Lakoff and Johnson put it, "we systematically use inference patterns from one conceptual domain to reason about another conceptual domain."⁵⁹...