Monday, October 7, 2013

Metaphors Be With You

I’m developing a short, fun article on metaphors in the law, and my research got me thinking about the prevalence of legal metaphors.  So many of our legal concepts are metaphors, similes, and the like.  Consider the “fruit of the poisonous tree” concept so important to criminal law.  And Constitutional concepts such as the “wall of separation” between church and state, the “chilling” effect on free speech, and the requirement that the exercise of personal jurisdiction comport with concepts of “fair play.”
Contracts often contain “boilerplate” language; a party may seek to pierce the “corporate veil;” an attorney may object to discovery as a “fishing expedition;” many contracts and statues contain “safe harbor” provisions; and a party may argue that a particular holding would create a “slippery slope.”
Some folks believe legal metaphors are bad—those people argue that metaphors muddle already confusing concepts and are often inaccurate.  Others, like me, see legal metaphors as indispensable.  After all, metaphors are an essential part of everyday life and rhetoric.  A person might be described as having a sunny disposition or a cloud hanging over her head; a crafty person is a sly fox, whereas a glutton makes a pig of himself; an intelligent person is sharp as a tack, while an uneducated person is described as “not very bright.” 
Since metaphors abound elsewhere, I don’t see how they can be avoided in the law.  Or why they should be.
What do you think? Are legal metaphors helpful or harmful?  

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