Metaphor and reason in judicial opinions

the long version

While much has been written on the use of metaphor in literature and religion, science and philosophy, few articles and no books have discussed its function in legal opinions. To the public, judges handing down judicial decisions present arguments derived 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 "color-blind," explaining why they are not straight-forward statements of legal fact but examples of the ways tropes are used in legal language.