Metaphor and Reason in Judicial Opinions

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SIU Press, 1992 - Literary Criticism - 240 pages
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To the public, judges handing down judicial decisions present arguments arrived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "Rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn’t law be?" Haig Bosmajian examines the crucial role of the trope—metaphors, personifications, metonymies—in argumentation and reveals the surprisingly important place that figurative, nonliteral language holds in judicial decision making.

Focusing on the specific genre of the legal opinion, Professor Bosmajian discusses the question of why we have judicial opinions at all and the importance of style in them. He then looks at specific well-known figures of speech such as "the wall of separation" between church and state, justice personified as a female, or the Constitution as "colorblind," explaining why they are not straightforward statements of legal fact but examples of the ways tropes are used in legal language.

A useful example can be found in Judge Learned Hand’s response to a 1943 case involving news gathering and monopoly. Hand found the need to protect the public’s right to the "dissemination of news from as many different sources, and with as many different facets and colors possible," an interest "closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be folly; but we have staken upon it our all."

 

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Contents

The Functions of the Judicial Opinion
19
Style and Tropes
35
The Metaphoric Marketplace of Ideas
49
The Metaphoric Wall of Separation between
73
The Metaphoric Chilling Effect
95
The Metaphoric Captive Audience
118
Shedding Rights at the Schoolhouse Gate
144
Personifying Justice the Constitution
167
Metaphorizing Speech into Fire Leading
186
Conclusion
199
Index
231
Copyright

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About the author (1992)

Haig Bosmajian is a professor in the Department of Speech Communication at the University of Washington, Seattle. Among his many books and publications is The Language of Oppression, which received the 1983 NCTE George Orwell Award.

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