Flesh of the Law: Material Legal Metaphors
| Date | 01 March 2016 |
| Published date | 01 March 2016 |
| DOI | http://doi.org/10.1111/j.1467-6478.2016.00740.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 1, MARCH 2016
ISSN: 0263-323X, pp. 45±65
Flesh of the Law: Material Legal Metaphors
Andreas Philippopoulos-Mihalopoulos*
Existing legal metaphors, even the predominantly spatial and cor-
poreal ones, paradoxically perpetuate a dematerialized impression of
the law. This is because they depict the law as universal, adversarial,
and court-based, thus ignoring alternative legalities. Instead, there is a
need to employ more radically material metaphors, in line with the
material turn in law and other disciplines, in order to allow law's
materiality to come forth. I explore the connection between language
and matter (the `flesh' of the law) through legal, linguistic, and art
theory, and conclude by suggesting four characteristics of material
legal metaphors.
Ex-voto, `for a favor granted':
for a life saved, an image.
It's the contract of the ex-voto, exemplary painting.
1
LEGAL METAPHORS: WHY AGAIN, WHY NOW?
Legal metaphors are no longer an original topic, neither in legal research
specifically, nor linguistics in general. The research credentials hark back to
Thomas Hobbes, Jeremy Bentham, and Lon Fuller,
2
complemented more
recently by a surge of mainly North American literature either specifically
45
*The Westminster Law and Theory Lab, University of Westminster, London
W1W 7UW, England
andreaspm@westminster.ac.uk
I am grateful to the IUAV University, Venice, for funding this research, and to Roswitha
Gerlitz, Anna Grear, Steve Greenfield, Sakis Kyratzis, Mirko Nikolic, and Elias
Avramidis for their feedback.
1 P. FalguieÁres, Danh Vo: mothertongue (2015), exhibition flyer, The Norwegian
Pavilion, Venice Biennale.
2 T. Hobbes, Leviathan (1660); J. Bentham, Theory of Legislation (1871); L. Fuller,
`Legal Fictions' (1930±31) 25 Illinois Law Rev. 363.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
on the topic of legal metaphors,
3
or the broader cognitive science of law
field, in which metaphors feature heavily.
4
Equally, legal metaphors have
been endorsed with gusto by linguists as case studies for linguistic theories;
5
and by philosophers in order to explore the laws of metaphor,
6
to confine
metaphors to their literal statements,
7
to think of the normative appeal of
disease metaphors,
8
to explore the speculative laws of object oriented
ontology,
9
and to analyse the normative connection between language and
biology.
10
There have been critiques of metaphors,
11
endorsements of
metaphors,
12
and even exhortations to carry on metaphorically speaking
because in this way the law can develop in more imaginative ways.
13
Lakoff
and Johnson's conceptual metaphor theory
14
± a most influential analysis
with a sizeable following in law ± changed our understanding of metaphors
from pure language construction to thought. So, while there are always new
things to be said, the debate is so well established that it risks becoming part
of the legal norm, adding nothing new to the frontiers of legal theoretical
thinking. Why is it then that another text or indeed series of texts on legal
metaphors is needed? What will it add and where will it take the discourse?
New research on legal metaphors is needed because the legal theoretical
context is changing, or more precisely, turning. The law (and I am using this
generic term deliberately for reasons I show below) is turning in a spatial,
corporeal, and generally material way.
15
In the same way, I suggest, legal
metaphors must also change. Standard spatial and corporeal metaphors on
46
3 See J.C. Rideout, `Penumbral Thinking Revisited: Metaphor in Legal Argumentation'
(2010) 7 J. of the Association of Legal Writing Directors 155.
4 See (2002) 67 Brooklyn Law Rev., dedicated to Steven Winter's Clearing in the
Forest: Law, Life, and Mind (2001), and, in particular, M. Johnson, `Law Incarnate',
949.
5 M. Johnson, `Mind, Metaphor, Law' (2007) 58 Mercer Law Rev. 845.
6 See, for example, P. Ricoeur, The Rule of Metaphor (2003).
7 R. Rorty, Contingency, Irony, And Solidarity (1989).
8 S. Sontag, Illness as Metaphor (1978).
9 I. Bogost, Alien Phenomenology, or What It's Like to Be a Thing (2012).
10 D. Haraway, How Like A Leaf: An Interview with Thyrza Nichols Goodeve (2000).
11 Rosi Braidotti's call against metaphors in `Animals, Anomalies, and Inorganic
Others' (2009) 124 Theories and Methodologies 526.
12 For example, L. Morra, `New Models for Language Understanding and the Cognitive
Approach to Legal Metaphor' (2010) 23 International J. of Semiotics of Law 387.
13 Johnson, op. cit., n. 5.
14 G. Lakoff and M. Johnson, Metaphors We Live By (2003).
15 Admittedly later than most social sciences and humanities. See B. Warf and S. Arias
(eds.), The Spatial Turn: Interdisciplinary Perspectives (2009), which typically does
not have a chapter on law. On law and matter, see A. Pottage, `The Materiality of
What?' (2012) 39 J. of Law And Society 167; A. Grear, `Human rights, property and
the search for world's other' (2012) 3 J. of Human Rights and the Environment 173;
A. Philippopoulos-Mihalopoulos, `A Sociolegal Metatheory' in Exploring the Legal
in Sociolegal Studies, eds. D. Cowan and D. Wincott (2015); A. Philippopoulos-
Mihalopoulos, `Critical Autopoiesis and the Materiality of Law' (2014) 27 Inter-
national J. of Semiotics of Law 165.
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
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