Making Sense of Metaphors: Visuality,
Aurality, and the Reconfiguration of American Legal Discourse
16 Cardozo Law Review 241 (1994); reprinted by permission of the Cardozo Law Review

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I. Metaphors in Life and Law

Metaphors embody and configure both the abiding and the changing preoccupations of an age.30
etaphors explicitly or implicitly identify one phenomenon with another phenomenon from which the first is literally distinct. A game of chess may thus be characterized as a "battle" of wits; a leading citizen may be described as a "pillar" of the community. In each instance, the metaphor suggests an image31 or experience that emphasizes a specific quality (here, competition or support) of its referent. Metaphors are generally offered to illuminate their referents' sense or significance; they are most useful and most successful in this respect when they associate an unfamiliar and/or abstract referent with something familiar and/or concrete. At the same time, the very specificity, familiarity, and tangibility that may recommend a metaphor may incidentally enable it to obscure and distort. Calling chess a battle distracts attention from the cooperative aspects of that game; calling a leading citizen a pillar of the community hides the benefits she derives from leadership. Paradoxically, the better a metaphor is, the worse this kind of problem threatens to become. In extreme circumstances, a good metaphor may be so compelling that it altogether subverts its referent's original meaning. No longer recognized as a metaphor, it redefines truth on its own limited terms.32

[1.2] Metaphors appear in virtually all branches of discourse. Assuming metaphors to be products of the imagination, conventional wisdom has traditionally identified them with the arts of poetry and literature. Many metaphors certainly appear in these contexts, but metaphors can also be found in other more overtly analytic realms. Historians routinely call a portion of the early medieval period the "Dark Ages." There was, of course, no more darkness in the "Dark Ages" than in any other time, before or since; the term "Dark" is a metaphor designed to suggest ignorance and barbarism. Scientists similarly speak of super-dense collapsed stars as "black holes." But "black holes" are not really holes; the term "hole" is a metaphor chosen to communicate the fact that neither matter nor light can escape the gravitational pull of these bodies.

[1.3] A string of recent articles and books has stressed that metaphors are commonplace in law.33 The multiple visual and aural metaphors with which I began this Article help to create and sustain what has imaginatively been described as "a magical world . . . where liens float, corporations reside, minds hold meetings, and promises run with the land."34 To say that jurisprudential metaphors exist and even flourish is not, however, to say that they have been uniformly welcomed, even by the most creative lawyers and jurists. In the eighteenth century, England's Lord Mansfield commented that "nothing in law is so apt to mislead than a metaphor."35 In the early years of this century, Yale legal theorist Wesley Hohfeld agreed.36 In 1926, Benjamin Cardozo was willing to tolerate metaphors in law, but held that they had "to be narrowly watched, for starting out as devices to liberate thought, they end often by enslaving it."37

[1.4] As we have come to appreciate that metaphor is omnipresent, we have come to take it very seriously.38 Today, few would dismiss it as mere semantic decoration, ornament, or rhetorical device. Some scholars have indeed gone so far in the other direction as to suggest that metaphors are fundamental tools of thought and reasoning-so much a part of the deep structure of our mentality that "our ordinary conceptual system . . . is . . . metaphorical in nature."39

[1.5] As an aspect of our mentality's deep structure, our metaphors can reveal a great deal about us, both as individuals and as members of a broader culture. I may use a certain metaphor because I am, or at least my culture is, familiar with the metaphor's subject matter. Coming readily to my mind as a pole of comparison, the metaphor will be meaningful to others sharing similar life experiences or backgrounds. For example, using the metaphoric expression "I struck out" to communicate failure suggests a personal and/ or cultural familiarity with baseball. Alternatively, I may use a particular metaphor because I and/or my society value or devalue its subject; using the metaphor can therefore accentuate positive or negative reaction to the metaphor's referent. For instance, were I a libertarian, or were I living in a libertarian culture, I might label government a "parasite." My choice of metaphor would not only communicate my dislike of government, but, by association, my dislike of parasites as well.

[1.6] "Modal" metaphors of the sort examined in this Article can be particularly revealing of our circumstances and values. Modal metaphors directly or indirectly evoke specific modes or forms of human sensory experience: sight, sound, touch, smell, or taste. For example, if I call an attitude an "outlook," I am using a modal metaphor evoking visual experience. Alternatively, if I speak of the "texture" of an argument, I am using a modal metaphor evoking tactile experience. Over time, individuals may develop or demonstrate a penchant for modal metaphors favoring a particular sense. Far from being arbitrary, such a penchant may (as we shall see) reflect a broad cultural bias for that sense, an association with a group which in a specific historical or social context has indulged or has been forced to privilege that sense, and/or an inclination towards values which that sense has been deemed to phenomenologically support or promote.

[1.7] Ironically, we may reveal more of ourselves by our general and our modal metaphors than by statements and sayings that are the products of more calculated deliberation. Insofar as metaphors are privy to our most profound thoughts and experiences, they may tap into cultural or personal truths of which we are not at first aware, and into notions of which we may not even approve. Calling a mental crisis a nervous "breakdown" may unwittingly manifest a modern tendency to regard the mind as a machine;40 calling an African American football player "a little monkey" may unwittingly manifest racism.41 In this context, metaphors operate as the "sonar" of our minds, revealing deeply submerged-but nonetheless fundamental-realities that we cannot or will not consciously acknowledge.

[1.8] As an integral part of our mentality, metaphors can also shape our thoughts and even our actions.42 Calling chess a battle (or hearing someone else call it a battle) certainly encourages me to conceive of it, however inaccurately, as a harsh, even potentially violent confrontation between grim-faced opponents. The psychological impact of the metaphor may be all the more powerful if I have had little or no previous experience with the game. The way I think about chess may in turn affect my behavior. In light of the metaphor, maybe I will decide to play, or maybe I will choose to do something less aggressive. If I do choose to play, the metaphor I used or heard might well influence how I play. For instance, if chess is a battle, an intimidating, combative strategy may seem appropriate. If the "battle" metaphor becomes popular, an entire culture may be led to the same conclusion, and play chess accordingly.

[1.9] Modal metaphors can have an especially strong impact on how we think and what we do. If, for example, I call "thought" itself "reflection," I am figuratively characterizing thought as a visual enterprise. Insofar as reflection literally presumes a visual subject, the metaphor may subtly encourage thinkers to believe that they should look for intellectual stimulation, rather than listen for it; in other words, the metaphor may affect their epistemological orientation. The same visual metaphor may alternatively imply that only individuals from visually biased backgrounds can properly engage in thought, prompting individuals from other traditions that prize other senses to be dismissed (or not to regard themselves) as legitimate or competent participants in intellectual inquiry. In this context, the "casual" choice of a "simple" metaphor may have profoundly divisive social implications. Describing thought as "reflection" may even induce thinkers to behave in a manner considered appropriate to a visual process: for example, the metaphor may suggest that thinkers should passively watch the world, rather than become actively engaged with it.

[1.10] Regardless of whether metaphors are considered as consequences or causes, the partial or total displacement of one metaphor by another is a significant cultural event. As a general matter, such displacement may reflect the development of new conditions or values, some of which may not, as yet, have risen above the horizon of awareness. Alternatively, or even additionally, displacement may help bring about new conditions or values. In law, a shift in metaphor may indicate or promote a new doctrine or even a new jurisprudential theory that cannot easily be brought into the fold of existing figures of speech. The reconfiguration of American legal discourse that is the topic of this Article is, however, even more fundamental than this, for it involves the partial-displacement of one entire family of modal metaphors (indirectly appealing to the eye) by another (indirectly relating to the ear). If the preceding overview of the cognitive, cultural, and behavioral significance of metaphors in general-and modal metaphors in particular-is accurate, such a sensory shift would seem both to reflect and portend major paradigmatic changes in American law and society.43 For this reason, it is well worth exploring.

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