13.1 Introduction

Metaphors are a fundamental resource of both formal and informal legal discourse, as many recent studies testify (Smith Reference Smith2007; Houbert Reference Houbert2008; Morra Reference Morra2010; Richard Reference Richard2014; etc.). In non-technical discourse about legal topics, metaphor serves as a means of conceptualising processes which are frequently abstract or hard to comprehend. Justice may exploit the source domain of machines (‘to oil the wheels of justice’, Cognitive Metaphor justice is a machine) or that of roads (‘the paths of justice’, Cognitive Metaphor life is a journey). (On the theory of Cognitive or Conceptual metaphor, see Kövecses Reference Kövecses2010 and also Chapters 1 and 2 in this volume.) It may call on ‘light’ in the darkness, it may conceive of justice as a commodity with a ‘price’, as a ‘game’, and so on.

These linguistic practices are long-established; Shakespeare’s ‘the insolence of office’ may sound metonymical to modern ears, but ‘the law’s delay’ is clearly metaphorical.Footnote ¹ Thus, metaphor is an important resource for the layman to conceptualise justice, to permit discussion of its complexities. Turning to the professional use of legal language, the contribution made by metaphor is far stronger, and this constitutes the topic of our chapter. Our fundamental aim is to show that metaphor is closely involved in the formation and delineation of precise legal concepts, and in the discursive processes by means of which they become accepted or applied, modified, and so on.

In a traditional, ‘Aristotelian’, conception of the functions of metaphor, they are seen as a component of good verbal style, and as part of the verbal resources of ‘forensic rhetoric’. Aristotle thought of metaphor as a compressed form of analogy, which gave aesthetic pleasure because of its ‘clarity and sweetness and strangeness’ (Aristotle 2007, p. 200). He saw it, at least partly, as a means of conceptualising the unfamiliar in terms of the familiar (Kirby Reference Kirby1997, pp. 541–542). One of his metaphorical analogies, old age as the sunset of life (Aristotle 1997, p. 151), exemplifies this; the source domain or ‘sunset’ is a familiar, repetitive experience for all, while no one can fully comprehend what old age (the target domain) is like until it happens to them.

Modern perspectives in cognitive metaphor theory, such as Lakoff and Johnson’s (Reference Lakoff2003) influential model, relegate to a secondary position what was probably key for Aristotle: the aesthetic/pleasurable dimension to metaphor and its role in winning arguments. From being seen as just another among many rhetorical devices, a central role is claimed for metaphor in human language development, in cognition, and in the evolution and structuring of human thought (Lakoff & Johnson Reference Lakoff2003, p. 202). Recent studies of legal language are in harmony with cognitive approaches to the point that it has been argued (Klinck Reference Klinck1992, in Richard Reference Richard2014) that legal reasoning is itself metaphorical and that metaphor may constitute an intrinsic feature of the law itself (Philippopoulos-Mihalopoulos Reference Philippopoulos-Mihalopoulos2016).

In this chapter, we suggest that legal metaphors are vital resources for legal specialists, on many fronts. They have a function in rhetoric, an obligatory continuation of the ancient business of forensic rhetoric, where ars bene dicendi, a wide-ranging concept that includes the skilful deployment of metaphors, may help win cases. However, as we shall see, they also play a vital role in the processes through which laws are made and debated, commented on by legal specialists, revised, redrawn, commented upon again, and so on. In other words, they are central to the legal system’s understanding of itself, to its ‘cognitive’ functioning (to state the matter, appropriately enough, metaphorically).Footnote ² Philippopoulos-Mihalopoulos (Reference Philippopoulos-Mihalopoulos2016, p. 50) claims that the law is ‘understood through metaphors’, indeed, that one ‘can no longer talk of law and legal metaphors as mere symbolic entities, but as a shared surface between the semiotic and the material’.

In this chapter we first review some of these theoretical issues, which have formed part of the debate within legal philosophy. We then focus on legal metaphors as they appear in the British online legal journal, Cambridge Law Journal (CLJ hereafter), which contains articles characteristic of the ‘Case and Comment’ genre; that is, they describe recent cases from criminal or administrative law and comment on the decisions. Thus, we focus on legal discourse that is freely available and frequently shares the same rhetorical/persuasive aims as the more directly interactive kind found in courtrooms. The comments are generally not neutral; it is usual for the commentator to have a particular point of view, sometimes in favour of the decision, sometimes critical. Thus, there is an implicit argumentative dimension to this discourse, as the writer attempts to engage with possible pro and contra opinions, and construct support for a particular view. Since contributors to CLJ and its readers are legal professionals of one kind or another, it is plain that such discourse about current cases is highly relevant to the formation and application of current laws.

13.2 Courtroom Discourse: Applying a Syllogism or Developing an Argument?

We must first explore some background issues in the nature of courtroom discourse; in particular, it is necessary to distinguish between a view of justice that sees it as the application of an all-inclusive legal code, and one which instead privileges interpretation and conviction through verbal processes.

Metaphor and analogy, arguably, are rhetorical figures rather than tools for logical reasoning, even though they may be used in legal argumentation to solve problems and justify judicial decisions. They may be, on the one hand, a means of explaining complicated or abstract concepts, but, on the other, they can be used by an able counsel to influence the opinions of judge and jury.

To attempt to draw a line between logic and rhetoric, in legal reasoning, is to refer to a long-standing issue within legal philosophy, which has practical implications for the daily business of courtroom practice (see, e.g., Tarello Reference Tarello and Castignone1989, Reference Tarello2013; Siltala Reference Siltala2000). The question is whether the law is to be viewed as something which needs to be interpreted by jurists or only applied. The former of these positions entails the use of rhetorical tools by counsels, judges, and many other social actors involved in the legal process. Legal discourse, in this perspective, is inherently persuasive. From the latter point of view, by contrast, the law is a more static entity, a body of rules and judgements which, potentially, covers every possible offence and simply needs to be applied.

Clearly, if law needs to be interpreted, the interpreter is also acting, to a certain extent, as a lawmaker, because interpretation assumes that a given legal text can convey different meanings, and hence, different norms may emerge from cases trying to apply it. Interpretation is, per se, a guarantee that dialogical processes, persuasive discourse, and rhetorical figures will be involved in the effort to win a particular case.

To give a concrete example: if there is a sign at the entrance of a children’s playground reading ‘dogs are not allowed’, what does this really mean? Would it be possible to enter with a lion? Or a snake, a cat, a turtle? This, it will be seen immediately, involves interpretation. If an analogy is used (and metaphor, from one perspective, is a figurative form of analogy, as we shall see below), a certain argument can be advanced (lex minus dicit quam voluitFootnote ³) that would exclude such an extension. In other words, it would be argued that, in its ruling on dogs, the law implicitly intended to include other domestic animals, as well as – by analogy – other potentially dangerous animals such as lions or snakes.Footnote ⁴ Such discursive processes are implicit in the Latin term ratio. On the other hand, consider the contrary argument (a contrariis), which would result from the application of the concept ubi lex voluit dixit ubi noluit tacuit.Footnote ⁵ According to this principle, it can be argued, if the law prohibits dogs it may be assumed to prohibit only dogs and nothing else. This argument prevents inclusion of the cases not expressly and clearly included, and makes for a narrow interpretation of the law.

Even such an apparently simple example as the above, then, illustrates the issue. If the law is simply seen as a formal code to be applied, then a multiplicity of signs will be necessary in front of every park, specifying explicitly which animals are not permitted entry. If interpretation is permitted, then rhetorical figures and persuasive discourse instantly become central features of the legal process.

This distinction, between the law as something to be interpreted, on the one hand, and as an all-inclusive code requiring only to be perfected and then applied, on the other, was a matter of major concern for the legal philosopher Giovanni Tarello (1934–1987), the founder of so-called legal realism as opposed to ‘legal positivism’. According to his doctrine, interpretation of the law is a creative process. A given law, expressed as a legal statement, might have several meanings, and these very meanings in themselves constitute different norms expressed by the same text (see Tarello Reference Tarello and Castignone1989, Reference Tarello2013). As a consequence, figures of legal speech are seen as rhetorical tools rather than logical devices. It is up to the interpreter to use these tools in order to justify norms based on legal statements.

As a matter of fact, as Tarello says, ‘the line between interpretation of pre-existing norms and the “creation” of new rules is anything but clear cut’. This applies particularly to modern criminal legal systems such as those of the United Kingdom or United States that are, on principle, adversarial. In such contexts, the judicial decision-maker has no previous opinion or knowledge regarding the facts of the case, and the parties (counsels for defence and prosecutor) bring evidence to the trial and present it to the judge or jurors (i.e. the decision-makers). Counsels make extensive use of rhetorical figures in presenting their cases, in the examination and counter-examination of witnesses, and in closing statements.

Contrast the above picture with the more traditional model, in which deductive reasoning in judicial decisions was thought to hinge on Aristotelian syllogism, the application of perfect logic. The importance of this deductive position was particularly stressed in the age of Enlightenment, when most philosophers of the positive school thought that the application of law, especially if carried out by judges, was a logical and potentially perfectable process. They thought it possible to achieve perfect codification, by following rational thought or natural law. Hence, legal positivism (see Siltala Reference Siltala2000; Alexy Reference Alexy2002) is a doctrine of law that emphasises the search for norms drawn up by the legislator (in civil law systems); in common law models, these are considered to be common law or case law.

These norms and codifications were supposed to be clear, complete, with no faults or contradictions, without antinomy, and, hence, also without any need for interpretation. In consequence, when applying the law, the relevant discursive device was the Aristotelian syllogism. Montesquieu, in this context, speaks of the judiciary as not really a power but ‘only the mouth which proclaims the formulation of law’ (Montesquieu, in Siltala Reference Siltala2000, p. 3), while Voltaire said that interpretation was always a corruption of the text. Such ideas were common among jurists in the European Enlightenment and most lawmakers in the seventeenth and eighteenth centuries. The picture has changed in the modern period, with the consolidation of practices involving legal argumentation and the use of rhetorical techniques, including metaphor.

13.3 More on the Interpretation of Metaphors

Most accounts of metaphor, including Aristotle’s, devote attention to the question of similarity; indeed, metaphor has traditionally been thought of as an elliptical simile (Fogelin Reference Fogelin1988, p. 27), and the following discussion adopts this perspective, seeing it essentially as a type of figurative comparison (p. 32). Searle (Reference Searle1979a, p. 105) says, ‘Where an utterance is defective if taken literally, look for an utterance meaning that differs from sentence meaning’, and it is this defectiveness, or apparent deviation from Grice’s truthfulness maxim (Grice Reference Grice1989), that alerts listeners to the figurative nature of the language used. ‘Blind justice’, for example, has to be figurative, since there is no literal sense in which justice, which is basically a set of social and discursive processes, can ‘see’; and if it cannot see, then of course it cannot be ‘blind’. The hearer will therefore engage in a series of automatic cognitive processes in order to identify the grounds of comparison between the source domain (Lakoff & Johnson Reference Lakoff2003), blindness, and the target domain, the law. Interpretation usually involves the dimension of salience (Oakes et al. Reference Oakes, Haslam and Turner1994), where possible attributes are considered, before one is selected as the most probable. Giora (Reference Giora2003, p. 10) states that this involves a search through the ‘coded meanings foremost on our mind due to conventionality, frequency, familiarity, or prototypicality’. Some typical associations of blindness, for example, would be loss of vision/short-sightedness (as in the case of a political decision, for example), helplessness, darkness, limitation, misfortune, and so on.

It may appear rather strange that, among all possible meanings, that of impartiality has been settled on, by convention, as the most suitable for this metaphor. It is not obvious, for example, why a blind person should be more impartial than a seeing one. Indeed, the interpretation is paradoxical, because one could argue that those engaged in the activities of justice ought to possess unusually clear vision, in order to correctly assess the rights and wrongs of a case. However, when interpreting a metaphor, knowledge of the context in which it occurs is always a necessary inclusion. In this case, knowledge of the legal context, and especially of the quasi-universal principle that ‘the law is equal for all’, may conjure up a mental picture of a blindfolded judge, indifferent to the fine clothes or pauper’s rags worn by the prisoner, who gives judgement solely on the merits of the case, unmoved by these extraneous circumstances. In the words of David Hills (Reference Hills2017), what happens next is as follows:

The ideal of the impartiality of legal proceedings has produced, over time, an uncontroversial understanding of the ‘meaning’ of this particular metaphor. It has become by now a conventional metaphor, like the other mentioned above, ‘the long arm of the law’, which is generally taken to indicate the power of justice to apprehend even well-hidden criminals. Let us take the following example, from our CLJ data, of an innovative metaphor (Deignan Reference Deignan2005, in Douthwaite Reference Douthwaite, Marcato and Orioles2009, p. 84), to see if the same mechanisms may produce a satisfactory interpretation. In one of the cases, we find:

The immediate co-text gives some clues to interpretation here, as it indicates that the salient features of the elephant are to be sought not in the hearer’s ‘list’ of potential characteristics (greyness, size, mnemonic capacity, etc.), but rather in the area of recognisability. However, we then have to ask in what respect the recognisability of the elephant is different from that of any other real-world object, such as a post office or a palm tree. These things are equally recognisable. Here proverbial or cultural associations, expressed in phrases such as ‘the elephant in the room’ or indeed ‘the elephant never forgets’, may be invoked to explain why Lord Hughes chose this object for his metaphor. The ‘elephant in the room’ is usually a taboo subject for those present, which resonates with a notion of guilty or possibly criminal secrets, while criminals have records for their past actions, which live long in the memory of the law. As Sperber and Wilson (Reference Sperber, Wilson and Gibbs2008) note, the onus is on the listener to infer the intended meaning of any metaphor, drawing on the perceived relevance of the ‘sights, sounds, utterances, thoughts, memories, suppositions’ (p. 88) that are evoked by the words used.

To illustrate the operation of metaphors within the legal process itself, as opposed to their operation at the level of popular culture, consider the well-known proposition that ‘a man is innocent until proven guilty’, a concept familiar enough at the level of common knowledge today. Less well-known is a metaphor relating to it, that of the ‘Golden Thread’, first mentioned in 1935 by Lord Sankey, who said:

In making this claim, he was taking issue with Lord Justice Avory, who, in rejecting the prisoner’s right to appeal, had been guided by the following passage in Foster’s Crown Law:

To a degree, then, until Sankey’s pronouncement, the onus was on the prisoner to prove their innocence, rather than the contrary. Sankey’s metaphor sums up centuries of debate that had centred on this point, and represents a landmark in its acceptance within the British legal system. The episode is made richer, in the terms of our study, by the fact that Sankey used other metaphors alongside that of the thread.Footnote ⁷ First, he characterises the law as a ‘web’, then proceeds to mix metaphors, by claiming:

The metaphors here, put in Lakoff and Johnson’s (Reference Lakoff2003) form for what they call ‘conceptual metaphors’ are, respectively: the law is a web, and the law is a piece of wood. Among the threads of the web is a golden one; hence, of great value compared with the rest. The metaphor does not necessarily also include the presence of a spider; however, applying the interpretative processes outlined above, the hearer will consider the associations of the keyword. A criminal, for example, may become ‘entrapped’ in the law like a fly in a web; the law itself, like a spider, is waiting to visit punishment on the criminal. Each legal case and individual sentence form part of the web, which builds up through time into a complete structure. Part of the web is its golden thread; in the position of entrapped fly, the prisoner will find comfort in the fact that at least one of the threads in which they are caught is a source of hope, and may in the end constitute grounds for release. The second conceptual metaphor (the law is a piece of wood) compares the law to a structure, something solid, substantial, which would be weakened by ‘whittling down’.

To extrapolate the meaning of such metaphors in this way cannot be seen as unduly ‘poetic’ or fanciful. On the contrary, it is precisely these interpretative associations that may explain not just the surface meaning of the metaphor but arguably its deeper levels of appeal, its functioning as a persuasive resource, and even its place as an element in the normative power of the law itself. The ‘golden thread’ was to become, over time, a fundamental component in the cognitive as well as argumentative resources of barristers, justices, and other legal agents, a way of conceptualising the laws they seek to apply.

We have touched on the operation of metaphors within legal discourse, but a further point remains to be made. It is that if metaphor constitutes, as we suggest, a fundamental resource through which the business of justice is carried out, then we must also accept that there are limitations to the so-called objectivity of the law (Stavropoulos Reference Stavropoulos1996), in the terms of the above discussion. The law, in this perspective, is not simply a system of codes, or rules that citizens must observe. Nor is justice to be thought of in terms of the dispassionate, objective enforcement of these rules, with clear, unequivocal sentences and utterly predictable punishments. The Aristotelian syllogism is not the basic discursive instrument of legal process. Rather, the law is viewed more as a developing organism, each case progressively adding layers of interpretation, adjustments to the system; and negotiation, of which verbal persuasion and rhetorical devices are at the heart, becomes a central feature of the process.

Since metaphors have to be interpreted, and since a range of interpretations are standardly possible, their use in a legal context means that there is generally an element of subjectivity in legal proceedings, at the very least at the discursive level, where a great proportion of such activity takes place. The process of establishing legal meaning involves negotiation of opinions and ideologies, which foregrounds the exercise of argumentation through rhetoric. The application of the law, therefore, requires the exercise of persuasive verbal techniques (Pawlowski Reference Pawlowski1980, pp. 65–72; Amsterdam & Bruner Reference Amsterdam and Bruner2000, pp. 178–179; Heffer Reference Heffer2005, p. 95; etc.); in sum, as Heffer (Reference Heffer2005, p. 84) declares, though both naturally have a role, the practice of law is more concerned with the use of rhetorical skills than the syllogistic application of pre-established norms. In our chapter, we focus on the circulation of legal opinions in an influential legal journal, where the writers present recent sentences and discuss them, thereby engaging in implicit dialogue with colleagues in the profession, and thus carrying forward debate that may shape future legal practices.

13.4 Data and Methodology

The data consists of thirty papers, taken from volumes of the Cambridge Law Journal (CLJ) from 2016 to 2019, which were analysed in order to identify instances of metaphorical language. The focus of this qualitative study is on the functional role of metaphors as components of legal argumentation, and only those instances were selected where the metaphor could be seen as playing some role in this sense. As an example of this, consider this contribution from Swain (Reference Swain2019) on employment law, where the title contains a metaphor that encapsulates some of the issues dealt with in this chapter: ‘A Historical Examination of Vicarious Liability: A “Veritable Upas Tree”?’ On the first page, we find:

The Upas tree metaphor characterises a particular domain of legal practice, vicarious liability, which has proved notoriously difficult for legal specialists to define. The poison arrows are metaphorically associated with the legal problems encountered in the past by lawyers attempting to apply the doctrine. The paper goes on to argue that clarity in this area would be extremely desirable, and the metaphor, by stressing the dangerous potentialities of the law in its current state, underlines the argument and adds to its persuasive force. This is indeed the kind of metaphor we are concerned with. Equally relevant is Denning’s metaphorical term for employees, from the same paper:

The argument here is that, since the employee is a kind of ‘machine’, any misdeeds committed by him in the exercise of his functions are his ‘handler’s’ responsibility, and the employer rather than the employee should be held legally liable for them.Footnote ⁸ To the extent that the metaphor is felt to be an apt one, the force of the argument will be augmented (see, e.g., Charteris-Black Reference Charteris-Black2006; Lakoff Reference Lakoff and Johnson2014).

These metaphors are of central interest because of the dialogical work they engage in; they can be situated within an implicit argumentative structure in which the speaker/writer attempts to persuade the hearer/reader that their view is correct and should therefore be adopted. This interpretation supports Charteris-Black’s (Reference Charteris-Black2004, p. 7; Reference Charteris-Black2005, p. 15) view of metaphor, that its chief pragmatic characteristic resides in the domain of persuasion. In the example just given, the writer reports the words of a prominent judge, Denning, who is both giving grounds for a specific decision and simultaneously arguing that his position on vicarious liability is the correct one. Arguably, then, Denning engages in an implicit process of argumentation with other legal specialists, pre-empting objections and warding off contrary positions.

Metaphors that have been in the language a long while may be seen as conventional or dead (Searle Reference Searle and Ortony1979b; Closs Traugott Reference Closs Traugott, Paprotte and Dirven1985; Black Reference Black and Ortony1993); a dead metaphor is one whose metaphorical nature, as Leech (Reference Leech1969, p. 147) puts it, has become ‘institutionalised’ through many appearances in dictionaries. In Nöth’s words, ‘through multiple recurrence, metaphors can themselves finally become conventionalized and therewith a part of the language norm’ (Nöth Reference Nöth, Paprotte and Dirven1985, p. 6). Here are some examples of such conventional metaphors, from our CLJ data:

• In this regard, A and B provides a tentative roadmap (CLJ 2017 76, s. 3)

• sow the seeds for new disputes (CLJ 2017 76, s. 3)

• The rule has deep roots (CLJ 2018 77, s. 1)

• the most adventurous steps were taken in XYZ (CLJ 2018 77, s. 1)

• thus buttressing the case for reform (CLJ 2018 77, s. 1)

Nöth (Reference Nöth, Paprotte and Dirven1985) uses the term ‘demetaphorization’ to apply to such terms as these, at one time ‘creative metaphors’ but which have become, through repeated use, part of the lexicon.

However, the notion of how dead such metaphors really are has been a focus for research (Lakoff Reference Lakoff1987, Müller Reference Müller2008), and it is plain that metaphors of this type may also play a role in argumentation, as in the final instance, above, ‘buttressing the case for reform’. In this fragment of text, an implicit argumentation pattern may be identified, and put in the standard form (Sinnott-Armstrong & Fogelin Reference Sinnott-Armstrong and Fogelin2009, p. 55) as follows:

• SINCE: It is a good thing that the doctrine of benefit and burden should be strong,

• (and since) the weakness of the current system has been exposed

• THEREFORE: there is a strong need for reform

It should be noted that the metaphor plays a significant role in this argumentative structure, adding rhetorical strength to the conclusion, and we shall have more to say about the pragmatic force of metaphor in argumentation below. The metaphor also underlines the notion of this doctrine, and by extension, the law itself, as a kind of structure (buttresses are found almost exclusively on ancient buildings such as cathedrals). Such associations also contain evaluative positions and ideologies, the latter term comprising what Simpson (Reference Simpson1993, p. 161) describes as ‘cultural assumptions, political beliefs and institutional practices’. The writer implies a type of conservative attitude and at the same time a range of persuasive notions, connected to possible collapse, to the need for preservation, to the law as a venerated institution, and so on.

Conventionalised or dead metaphors, then, may also play an important role in construing implicit argumentation. Our basic approach to metaphors, however, in this chapter, does not consider whether a metaphor is conventionalised, dead, or innovative. Rather, we focus principally on the function the metaphor plays, within an implicit argumentative structure, as in the following instances:

In these cases, the metaphor is the crucial element in an implicit argument; it can be seen to concentrate a series of deontological propositions and covertly advance a specific position on the case under discussion. This is so in each of the above instances, and also in the buttress example, as we have seen. To better understand this point, something of the legal contexts, in each case, must be appreciated. Consider the following example:

To understand this, we need to know that the case concerns an award of damages, and the ‘intention’ refers to the litigant’s plan to spend the money on making good the damage suffered. For example, let us presume the court awards a complainant a large sum to repair faulty building work. The complainant may decide, in the interim period between bringing the action and receiving the award, that they no longer need the proposed building, and decide to spend the money on something else. Through the metaphor, the money is compared to a windfall apple, that is, something good which appears in one’s way, purely by chance and without one having done something to merit it. This may appear paradoxical; after all, we are talking about money which belongs to the complainant, who should arguably be free to decide what they spend their money on. Nevertheless, from the legal point of view, it is money which the court has awarded for a specific purpose, and the complainant is not free to decide what it should be spent on (at least, in the view of the legal agent[s] represented in the text).

The text, especially the evaluative pre-modifier ‘undeserved’ and the semantics of the verb ‘to avoid’, suggests that ‘a windfall’ is a bad, unjust, or unfair thing: this is the crux of the persuasive attempt. To frame the scenario just outlined – where a litigant is awarded money to repair a wall, for example, and instead spends it on a world cruise – as a ‘windfall’ is part of a persuasive line of reasoning that aims to convince the reader that it is a bad thing and should not be allowed. Behind this, arguably, are a set of quasi-religious attitudes, of the Weberian kind, that typify the Anglo-Saxon culture from which this particular instance has emerged (Weber Reference Weber2001). This is strongly suggested by the semantics of the modalising qualifying adjective ‘undeserved’; it is simply ‘not fair’ that the complainant should enjoy the possible pleasures afforded by a large sum of money, and fairness is well-known as an important, quasi-legal, social value for the British (Mullan Reference Mullan1975).

Space considerations prohibit the explication of more than a few of these instances, and the rest of our chapter concerns a case study in greater depth of one of these metaphors, exploring its functioning and role in legal argumentation.

13.5 Case Study: The Question of the Narrower Ground

One of the primary functions of metaphor is that it enables us to comprehend – or at least to have the illusion that we comprehend – matters that are intrinsically too complicated for ‘ordinary’ understanding. This is implicit in much of Lakoff and Johnson’s writings on metaphor (e.g. Lakoff Reference Lakoff and Ortony1993; Lakoff & Johnson Reference Lakoff2003), and at times explicitly spelled out:

Though the domains of law and economics are widely different conceptually, this reflection may provide a clue about the importance of metaphor in the legal context. Like economic texts, legal language is notoriously complex, and consists of labyrinthine stretches of prose that are beyond the grasp of the layman. In this section we present an illustration of the functions of argumentative metaphor, showing how it not only clarifies the issues for the uninitiated, but also facilitates practical argumentation among specialists. The metaphor in question is that legal arguments are grounds, which assimilates the domains of spatial logic and abstract reasoning. The grounds may be broad – of wide, general application – or narrow, in which case they will apply in specific circumstances only.

The case is that of Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd, 1994. The Cambridge Law Journal lays out the circumstances thus:

The problem was, essentially, identifying the party who was entitled to claim damages. The original lessee had ceded his interest in the property to a third party, so apparently had no interest in claiming. However, since the third party’s letting contract had a technical fault that rendered it invalid, that party had no legal right to make the claim. This situation was described by another vivid metaphor, a ‘legal black hole’ (Rowan Reference Rowan2017, p. 624), and the House of Lords were called on to resolve the impasse.

Their solution, which became known as ‘the narrower ground’, was to propose an exception to the rule that damages could be claimed only by the actual landowner. Lord Griffiths (who was in favour of a ‘broader ground’ solution) opposed this, arguing that it was sufficient that damage had been suffered for a claim to be advanced. However, Lord Griffiths placed a strong emphasis, in arguing that damages should be awarded, on the intention of the third party to actually make good the damages:

This requirement was not present in the alternative solution proposed by the House of Lords. This led to the observation, which was noted in Chitty on Contracts, the principal reference work for contract law, that

For the layman, one would suppose that it is quite challenging to follow even the simple outline of the case provided above, let alone enter into its merits on one side or another; however, it is possible for anyone to appreciate the force of the above conclusion, once the matter has been transported onto a metaphorical plane. For the legal specialist, meanwhile, the development of such a metaphorical frame is a crucial resource in the business of negotiating, and shaping, the law itself. The metaphor becomes a key element of argumentation, which can be appreciated from Table 13.1.

We can see that the opinion of the House of Lords is the ‘narrower’ position, since it rules out a claim by the third party – only the actual owner of the land can make a claim for damages. Griffiths waives this, and is therefore appropriately seen as occupying a broader position. However, his requirement about remedial work is significantly more restrictive than the position of the House of Lords. Thus, a metaphor of this kind (broader, narrower ground is the conceptual metaphor interpretation/application of the law is spatial dimension) plays a role in an implicit argumentative structure, as follows:

The metaphor forms a key component of the basic premise (Allen Reference Allen, Van Eemeren, Grootendorst, Blair and Willard1995) of the argument. In this example, the argumentation remains at an implicit level (Van Eemeren & Grootendorst, Reference Van Eemeren and Grootendorst2004; Van Eemeren et. al. Reference Van Eemeren, Garssen, Krabbe, Snoeck Henkemans, Verheij and Wagemans2014). In this instance, the metaphor is seen to occupy a central place in legal argumentation: not only does it bring legal concepts within the purview of the layman, but it makes abstract concepts concrete, permitting specialists to debate the points involved, and thereby shape the law.

13.6 Conclusion

Our study focused on written discourse; it would be useful to conduct further research, for example, to explore the role of metaphor in spoken language in courtrooms or in other contexts of legal interaction, where it may be used to debate the issues involved.

The study followed lines similar to those of Dee (Reference Dee2009), who explores the impact of a particular metaphor, the ‘penumbra’, on American legal discourse. She writes:

It will be observed here how heavily the writer herself leans on the expressive power of metaphor. Metaphors are ‘concrete’, they have ‘a life of their own’, they provide a ‘shorthand’, and so on. Dee’s case study concerned an episode in which it was ruled that the actions of the United States tax authorities, who used wiretapping in a case of liquor importation in 1928, in the era of prohibition, had not infringed the defendants’ rights under the fourth and fifth constitutional amendments. A dissenting judge argued:

The judge in question, Oliver Wendell Holmes, was in this case quoting from an earlier work of his own, in which he had used the metaphor to explore the formation of legal precedent:

These instances illustrate what we have been suggesting in this chapter, that the role of metaphor is not confined to influencing the jury in a courtroom harangue; stated differently, its impact is not solely at the level of verbal rhetoric. Rather, it is closely involved in the formation and delineation of precise legal concepts, on the one hand, and in the real-world dialogical contexts in which the law progressively emerges, on the other. The penumbra is the zone of twilight that occurs during an eclipse, between the zone of complete darkness or shadow that exists where the sun’s light is completely cut off, and the zone of light outside the eclipse’s influence. We can also observe the presence of implicit metaphors here (light is good, dark is bad, light is understanding/knowledge, seeing is understanding), which arguably guide the judge’s thinking. ‘The justice system is the sun’, and this recognition also helps us unpack the significance of the penumbra metaphor. In an ideal world, cases would be black and white; the light of justice would fall on a criminal, whose offence would be immediately discernible, together with the appropriate punishment. Such idealistic conceptions of the legal process recall the discourse of legal positivism in the age of Enlightenment, discussed above. However, it is noticeable that, as an individual judge, conceptualising the law, Holmes’ thinking was intrinsically metaphorical. Moreover, when it came to the business of applying and developing the law, in the day-to-day business of negotiating in the courtroom, Holmes used the metaphor as a central component of his argument. Dee (Reference Dee2009, p. 56) cites three other judges who subsequently used the penumbra metaphor, to refer to the ‘shadowy, unsettled areas of law in which judges struggle to find the correct place to draw legal lines’. The rest of her paper offers ample proof of the role which this particular metaphor was to play in American legal discourse throughout the twentieth century and into our own time.

The idealistic, positivist vision of justice discussed above rests on a conception of the law that is static, whose most appropriate discursive form is the Aristotelian syllogism. Fundamentally, the ideal conception may be reduced to a three-step process:

• ‘fact finding’ (the collection of relevant facts concerning the offence and assembly of a convincing case against the accused)

• ‘law finding’ (the task of the legal process was to find an appropriate norm for the offence which had been committed)

• ‘law applying’ (the sentence, which would match offence and rule and decide on appropriate punishment).

In an Aristotelian perspective, therefore, applying a syllogistic model, the major premise is represented by the proposition of law involved, the minor premise is the proposition of fact concerning the crime committed, and the judgement the conclusion. As we have suggested above, the ideal model leaves little scope for the exercise of any rhetorical processes, nor for the work of interpretation. There may be some scope for the sophist’s skills of forensic rhetoric at various stages of a trial, especially during cross-examination and the final harangue. However, as soon as more dynamic models of legal systems prevail, and the function of interpretation becomes an integral part of the process, the centrality of rhetorical processes, and metaphor, becomes apparent.

The position we have been advocating is not universally accepted. Rideout (Reference Rideout2010), for instance, as well as discussing the role of the penumbra metaphor, explores the general history of legal metaphor in the United States, providing other episodes such as the ‘wall of separation between church and state’ (Rideout Reference Rideout2010, p. 156), and suggesting that the explicit use of such metaphors in legal discourse could be controversial. Some judges, he suggests, would prefer counsel to use ‘the simple language of the Constitution’ (p. 156).

However, despite such contrary voices, our thesis – in line with ordinary language philosophy and cognitive linguistics – is that metaphor is not just widely recognised as a component of legal discourse of all kinds, but rather is an essential feature, a sine qua non, a means both of talking about the law and of making the law, without which it is hard to imagine how the legal profession would get on at all.