January 22, 2016

Lloyd on Law as Trope

Harold Anthony Lloyd, Wake Forest University School of Law, has published Law as Trope: Framing and Evaluating Conceptual Metaphors. Here is the abstract.
Though perhaps better known for their stylistic use of metaphor, lawyers’ substantive use of metaphor drives the law. Like other disciplines, law requires its categories and thus its metaphors. For utility’s sake, lawyers put similar things in categories and thereby treat them as categorically the same. However, good lawyers understand that such categorical equating is not literally true since nothing truly is what it is not. Instead, good lawyers understand the metaphorical nature of categorization. Good lawyers also understand the need to identify both the conscious and unconscious metaphors in play in a given situation. They understand the need to avoid uncritically accepting others’ metaphors, categories, and narratives, the need where possible to construct metaphors, categories, and narratives that benefit one’s case, and the need to be aware of what operative metaphors, categories, and narratives highlight and conceal so that one can proceed accordingly and avoid surprise. Good lawyers further understand that predictability, precedent, simplicity, and coherence in the broadest sense not only help them evaluate their own categories and other metaphors and the “flexible” logic of metaphor discussed in this article. These tests also help good lawyers evaluate the categories and metaphors of others. Finally, good lawyers understand that metaphor is more than powerful kennings. Metaphor is more than blood as “raven-wine,” more than raven as “battle-gull.” Metaphor lives in and generates blood, flesh, and bone of that living thing we call the law.
Download the article from SSRN at the link.

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