Metaphor and reason in judicial opinions By Haig Bosmajian (review)

598 LANGUAGE, VOLUME 70, NUMBER 3 (1994) should be required reading in every intermediate BH course. Among the overview articles, there are two which succeed in demonstrating the value of analytical abstraction: these are Greenstein's beautifully crafted piece 'An introduction to a generative phonology of Biblical Hebrew' (29-40) and Faber's 'Innovation, retention , and language comparison: An introduction to historical/comparative linguistics' (191-207). Neither the philologist nor the linguist will put this anthology down without having learned something useful and significant. [Brian M. Sietsema, Merriam-Webster, Inc., and Westfield State College.] Metaphor and reason in judicial opinions . By Haig Bosmajian. Carbondale : Southern Illinois Press, 1992. Pp. 240. $22.50. We typically think of the language of the law in terms of such categories as courtroom speech, legalese, and maxims of statutory interpretation . Bosmajian's Metaphor and reason in judicial opinions presents a new way of looking at the language oflaw: by examining the controlling metaphors that judges employ to craft and buttress their written opinions. As in many other fields, terms of the experiential world are pressed into service as figures of speech. Often these figures come to play a recurring role in legal reasoning and argumentation. This is what B's book seeks to document. The central thesis of the book is that style in legal opinions matters, both rhetorically and historically. Rhetorically, fresh metaphors exploit what Roman Jakobson called the 'poetic dimension ofprose' to impose concrete meaning on an otherwise abstract argument and to impress a reader stylistically. However, a judicial decision, perhaps more than any other Western written form, is a kind of hypertext which depends on apt citation of precedent as well as on cold logic. As facets of literary history, legal metaphors provide rhetorical precedents which evolve over time from figures of speech into doctrines of law. And it is just those metaphors which are the most effective that are likely to affect future cases, since, as Judge Griffin Bell remarked (201), style can 'govern the frequency with which the opinion will be cited in other cases and thus determine the influence the opinion will ultimately have'. B's book begins with chapters on the rhetorical and legal function of judicial opinions (19-34) and on the role of style in legal writing (35-48). It continues with a series of chapters treating such metaphors as the 'marketplace of ideas' (49-72), the 'wall of separation' between church and state (73-94), the 'chilling effect' of censorship (95-117), the 'captive audience' for offensive speech (118-43), and dangerous speech as 'setting fire to reason' (186-98). The book also includes a chapter onjudicial metonymies like the nostalgic 'schoolhouse gate' (144-66) and one on the personification ofjustice (167-85). The book is rich in historical, legal, and literary detail and is written for a general academic audience with some knowledge of the law. In the course ofhis exposition, B provides interesting background on legal metaphors, discussing, for example, the erroneous attribution of the market metaphor to Milton's Areopagitica and John Stuart Mill's On Liberty. He also points out some of the consequences of legal figures of speech, noting, for example, that schools are both 'marketplaces of ideas' and 'captive audiences '. And B also does a nice job of illustrating the range of various figures of speech. His discussion of dangerous speech as fire suggests that other legal metaphors for dangerous speech (poison, snakes, sown seeds) lacked the emotional impact of fire, especially in the earlier twentieth century, when the memory ofthe 1906 San Francisco earthquake and fire was fresh. He then traces the metaphor through Justice Holmes's opinion in Schenck v. the United States ('falsely shouting fire in a theatre') to such cases as Frohwerk v. the US, where speech kindles a flame, to Abrams v. NY, where circulars were 'inflammatory', to Gitlow v. NY, where a 'single revolutionary spark ... may burst into a sweeping and destructive conflagration .' Occasionally, however, B seems too content to simply present metaphors and their history, when more analysis of the figures would have been useful. I would have liked to see more discussion , for example, of why speech is like a fire...