Metaphor as Analogy: Reproduction and Production of Legal Concepts

Date01 March 2016
DOIhttp://doi.org/10.1111/j.1467-6478.2016.00738.x
AuthorAngela Condello
Publication Date01 March 2016
JOURNAL OF LAW AND SOCIETY
VOLUME 43, NUMBER 1, MARCH 2016
ISSN: 0263-323X, pp. 8±26
Metaphor as Analogy: Reproduction and
Production of Legal Concepts
Angela Condello*
Metaphor can be compared to analogy because they both have, addi-
tionally to their rhetorical competence, an epistemic force. Through
analogy legal concepts are reproduced according to similarity; repro-
duction is always a new production and thus analogy and metaphor in
law have a poietic force. The reproduction and production (poiesis) of
legal concepts through metaphor by analogy concerns the interference
between classificatory operations in law and legal epistemology: in
every categorization of the unknown by means of the known, legal
ontology and legal epistemology intersect.
INTRODUCTION: ANALOGICAL AND METAPHORICAL
PROCESSES IN LEGAL DISCOURSE
By arguing that metaphor ± from the legal perspective ± is like analogy, in
this article I advance a diachronic idea of the connection between law and
language. The main thesis I discuss is that every ontology entails an
epistemology and therefore every process of classification through analogy
in legal discourse shows the interaction between two dimensions that
philosophy tends to separate (ontology ± `what is there', and epistemology ±
`what we know about what is there'). Because of this interaction,
categorization is not a simple semantic operation, but through the structural
alignment preliminary to the comparison from which analogical inference
derives, categorization entails imagination and it thus also (re)produces
knowledge.
Analogical and metaphorical processes are crucial in legal discourse since
law is permanently adapting to the changes in reality and, therefore, is
permanently facing the challenge of classifying new objects and concepts:
8
*Department of Law, Universita
Ádi Roma TRE, Via Ostiense, 161, 00154
Roma, Italy
angela.condello@uniroma3.it
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School
We are temporal creatures, and the situations we find ourselves in, the
situations that make up the fabric of our lives, are always evolving and
developing. The omnipresence of change throughout all human experience
thus creates a fundamental problem for law, namely, how can law preserve its
integrity o ver time, whi le managing t o address the n ewly emerg ing
circumstances that continually arise throughout our history? (.. .) Our problem
is how law can be both stable and capable of growth (. . .).
1
Like ordinary language, legal language connects the general and the
particular through classificatory operations. For instance, the classification
of a term in a contract as a `condition' will depend on various aspects, among
which are:
(i) th e gene ral an d abst rac t char acte riza tion o f a `co ndit ion'
conventionally accepted;
(ii) the cases where the classification of that term has been in issue;
(iii) the role that `conditions' play within the contract and within
contractual liability;
(iv) the interrelation with other concepts and with other aspects of
contract law.
In order to give a general and abstract definition of a term, one has to refer to
the term's prototypical relation of reference.
Yet deciding whether one aspect or another of the characterization of the
semantic frame of a term is prevalent is obviously complex. The problem for
the interpreter is to decide whether a case falls within the frame of a par-
ticular norm and, more specifically, whether an object falls into a particular
category. As Charnock points out,
2
in his presentation of open texture Hart
used the term `penumbra' to refer to what in prototype theory is called the
`periphery'. He followed a tradition found in American jurisprudence.
3
He
thus presented roller skates ± among other things ± as penumbral instances of
vehicles. Even more unlikely examples have been envisaged in both English
and American cases. In Garner v. Burr,
4
a poultry shed was accepted as a
vehicle, while in McBoyle v. US
5
an aircraft was not. In the case of Garner, a
farmer had added iron wheels to a poultry shed and pulled it with his tractor
on the highway. He was prosecuted, and finally acquitted of violating the
British Road Traffic Act 1930, which stipulated that any `vehicle' travelling
on a public highway must be fitted with pneumatic tyres. The reason that
motivated this decision was that a `vehicle' was understood as a means of
transportation on wheels or runners and used for the carriage of persons or
9
1 M. Johnson, `Mind, metaphor, law' (2006±2007) 58 Mercer Law Rev. 845.
2 R. Charnock, `Hart as Contextualist? Theories of Interpretation in Language and the
Law' in Law and Language: Current Legal Issues Vol. 15, eds. M. Freeman and F.
Smith (2013) 128.
3 See Olmstead v. US 381 U.S. 479 (1965) and Griswold v. Connecticut 277 U.S. 438
(1928).
4Garner v. Burr [1951] 1 K.B. 31.
5McBoyle v. US 283 U.S. 25 (1931).
ß2016 The Author. Journal of Law and Society ß2016 Cardiff University Law School

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