Electronic copy available at: http://ssrn.com/abstract=1804987

Analogy & Metaphor: An Idiosyncratic Introduction

Patrick S. O‘Donnell Department of Philosophy

Santa Barbara City College (2011)

Philosophers have repeatedly insisted, both in defense and in dismissal of metaphor, that it is deeply different from literal communication because it is indeterminate, complex, rich, evocative, and open-ended. They have failed to notice that not all metaphors fit this model, and that much literal speech does.—Elisabeth Camp (2006b: 21) Metaphor is at once fully aesthetic and fully semantic. It is fully aesthetic, in that its production calls for artistry and its understanding calls for taste. Without some minimal sensitivity to certain aesthetic values, we’d be deaf and dumb when it came to metaphor. Metaphor is fully semantic, in that it constitutes one of our most basic and indispensable strategies for equipping words and phrases with referents, equipping sentences with truth conditions, equipping utterances with speech act potentials, and so forth. If we were completely deaf and dumb when it came to metaphor in particular, we’d be as good as deaf and dumb across the board. Our possession of language, not just our enjoyment of it, would be disastrously compromised.—David J. Hills (2006b) [E]ven the most austerely ‘scientific’ models operate through analogy and metaphor. The Rutherford-Bohr model depicts the hydrogen atom as a miniature solar system. Darwin’s concept of ‘natural selection’ is analogous to the ‘artificial selection’ practised by animal breeders. ‘Plate tectonics’ is about thin, flat, rigid areas of ‘crust’ floating on a highly viscous but fluid ‘mantle.’ Linguists talk of the ‘brain mechanism’ by which grammatical language is generated. And so on. Scientific theories are unavoidably metaphorical. [….] Sometimes a ready-made model can be taken over from another branch of science—for example Fresnel’s model of light as the vibration of an elastic medium. Sometimes the key elements come out of everyday life, as in von Neumann’s model of economic behaviour as a ‘game,’ or the molecular-biological model of DNA as a genetic ‘code.’ This heterogeneity is not a serious defect. The scientific value of a theoretical model, as with all metaphors, does not require it to be literally equivalent to the system it represents. It resides in the variety of phenomena that it makes plain, or suggests. This understanding seldom comes through elaborate formal analysis. [….] Indeed, analogy and metaphor cannot be driven out of scientific reasoning. Scientific ideas cannot be communicated through the ‘literal’ medium of formal logic. [….] [In fact], the history of a scientific discipline can be traced through its changing repertoire of models and metaphors—what Gerald Holton calls its themata. Modern physics, for example, deals in ‘forces’ and ‘fields,’ or ‘waves’ and ‘particles,’ and has no place for pre-modern themata such as ‘sympathies,’ and ‘attractions,’ or ‘essences’ and ‘effluvia.’ [….] It is clear that scientific maps, models, metaphors, themata and other analogies are not just tools of thought, or figures of speech. They are the very substance of scientific theory. As sources of meaning and understanding, they stand on equal footing with explicit verbal and symbolic representations.—John Ziman (2000: 149-150)

Electronic copy available at: http://ssrn.com/abstract=1804987

2

The following is an idiosyncratic introduction to analogy and metaphor. Earlier drafts were previously posted in two parts (pp. 1-10 and 11-23) respectively at the Ratio Juris and The Literary Table blogs by way of an introduction to my online bibliography at Ratio Juris for analogy and metaphor. The notes immediately follow each essay, and a list of ―references and further reading‖ (pp. 24-27) is appended to the end of the paper. Analogy & Metaphor, Part 1: Analogy Perhaps it‘s a commonplace observation, but I‘ll reiterate it in any case: evidence for analogical reasoning is ubiquitous in the (natural and social) sciences and the humanities, in fact, it is integral to, when not prominent alongside, other forms of everyday practical and theoretical reasoning found in academic and public fora alike, as well as in the intimate contexts of everyday life. With regard to the latter, Holyoak and Thagard point out that ―[y]oung children, before they enter school, without any specialized tutoring from their parents or elders, develop a capacity for analogical thinking,‖ indeed, they go so far as to claim the ―analogical mind is simply the mind of a normal human being.‖[1] The canonical philosophical tradition in the West has reluctantly and only occasionally accorded explicit recognition to the fact that such reasoning is, in the words of Baggini and Fosl, ―both powerful and important.‖[2] Yet no less than Hume gave voice to a proposition that motivates one of the more fruitful research agendas in cognitive psychology: All our reasonings concerning matters of fact are founded on a species of Analogy.‖ But of course the significance of analogy is not confined to ―matters of fact,‖ for it readily extends into fiction, the imaginary, and the rarefied realms of philosophy itself, if only because ―analogies make it possible for us to engage our imaginations in philosophical thought,‖ for while it is often ―hard to get a grip on abstract ideas such as truth or reality…people can easily relate to cities, ships, celestial objects and cave dwellers,‖ these being well-known ―source‖ analogues from Plato.[3] Recent research in cognitive science and philosophy has clarified constraints operative in analogical reasoning (e.g., similarity, structure and purpose) and the apparent ―mental leap‖ that traverses the conceptual and representational gap between ―the source‖ (the familiar, or what we ‗know‘) and the ―target‖ (the novel, or what we are seeking to ‗make sense of‘) analogues.[4] The history of science itself can be mined for a wealth of examples that demonstrate the repeated, wide, and varied ―use of analogy in building scientific theories,‖ suggesting we delineate a path from ―analogical thinking to the core of human creativity.‖[5] The late physicist and philosopher of science John Ziman argued, ―Even the most austerely ‗scientific‘ models operate through analogy and metaphor.‖[6] Whether or not it is true that ―All knowledge is ultimately rooted in metaphorical (or analogical) modes of perception and thought,‖[7] as the early Nietzsche appears to have believed, it borders on intellectual irresponsibility to ignore the embarrassment of riches found in recent works on analogy and metaphor in cognitive science and philosophy. We now turn, in a highly abstract and stylized fashion, to the topic of analogy and law. Analogical arguments are especially prominent in Anglo-American jurisprudence,* in particular and especially with adjudication by precedent (stare decisis), the defining

3

feature of common law legal reasoning.[8] Stare decisis (L., ‗to stand by things decided‘) is the doctrinal practice of applying precedent(s) (cases: originally an adjective, hence ‗precedent case,‘ now used largely as a noun: ‗a precedent‘) in the adjudication of later cases (disputes). This means a court is bound to follow ―the point‖ or principle or rule of law arrived at in prior adjudication. In the first instance, this determination of law becomes, in some sense binding (closer to a literal sense in English law, fairly loosely in American law, especially in the case of constitutional law) on all other courts of equal or inferior ranking in its jurisdiction (‗vertical constraint‘). Precedent arises from the broad body of common law, and in particular, from case law (cf. statutory law or legislation, constitutional law, and administrative law), the latter being the collection of published cases in a given jurisdiction. Classical common law judges did not subscribe to an explicit doctrine of stare decisis, for it was not to become a full-fledged doctrine in the common law before the 18th century, although the seeds of stare decisis were long sown in the soil of the common law. Reference to precedent is made when it is said that a case is ―on—‖ or ―in point,‖ synonymous with being apposite, applicable, or germane to the ―instant‖ case, i.e., the case presently before the court. For a case to serve as precedent there should be a clearly ascertainable ratio decidendi (L., ‗the reason for deciding‘), holding, rule or principle of law on which the court‘s decision is based, and behind which, lie reasons: outlined loosely, (and ideally) in argument form. This is a normative ―rationality constraint‖ (of which a principle of coherence is part) that compels the court to give a ―reasoned‖ account for its legal determination or ruling or ―holding‖ in the case. In short, a precedential case is a vehicle for a rule or principle (or standard) that has (or may have) holding in (‗fits‘) the case before the court. Determination of precedent also involves ―professional discourse concerning the precedent, changes in social propositions and doctrine after the precedent was decided, and the judgment of the deciding court concerning what rule would be most socially congruent and systematically consistent.‖[9] Dictum, actually, obiter dictum (pl. dicta) refers to a nondispositive—that is, not precedential—comments made in the course of the majority‘s opinion, although in practice ―the ratio decidendi and obiter dicta often blur into one another‖ (Neil Duxbury). While the latter is typically thought to be tangential to the holding in the instant case, it may later be accorded persuasive value in legal argumentation and/or future decisions; in other words, it may eventually attain the status of ratio decidendi. In contrast to their English counterparts, American judges have more discretionary power to bypass or otherwise disregard constraining or binding precedent (‗relaxed‘ v. ‗strict‘ stare decisis): ―Whenever the substantive reasoning in a case seems at all dubious the case must go through a period of evaluative trial before it can be regarded as settled and therefore valid law.‖[10] An appellate opinion short of unanimity or even a clear majority is dubbed a ―plurality opinion,‖ which may be sufficient reason for an American judge to once more disregard otherwise binding precedent (a plurality opinion nonetheless has ‗persuasive value‘ which means that, while in principle it is defeasible, it should not be ignored or dismissed out of hand). Another reason for declining to defer to precedent may be the belief (there may be less generous ways of characterizing this) that the prior case will likely (i.e., there is a high probability that it will) be overruled on appeal to a higher court. This is called ―anticipatory overruling‖

4

(i.e., anticipating the higher court will overrule the cited precedent). As Atiyah and Summers warn us, widespread adoption of this—so to speak—avoidance rationale would prove highly corrosive to stare decisis. Even the ―binding‖ character of precedent must be qualified in the English case, as we see in the following summary of Lord Denning‘s discussion by E.W. Thomas: ―Binding it may be, he states, but there are always ways and means of getting around a previous decision that is wrong. It may be distinguished by finding some minor distinction on the facts, or on the law, which, although minor, will ‗serve its turn.‘ Another means is by ‗pouring cold water‘ on the reasoning in the previous case; for example, by saying that it was too widely stated, or that the judges cannot have had such cases as this in mind. Or, Lord Denning can depart from a previous decision by simply saying that things are different now that equity and law are fused.‖[11] Antecedent to the full-fledged doctrine of judicial deference to precedent was the belief common to English and French royal courts that like cases should be treated, hence decided, alike. In application, this is known as the principle of consistency, and is at the same time a formal principle of equality (a property of Rawlsian ‗formal justice‘), although we still depend on criteria for determination of the relevant likeness(es) and difference(s). Reliance on this principle contributes to the structural integrity of the legal system. Cass Sunstein cites the consequent triune virtues of ―fostering planning, maintaining predictability, and protecting expectations‖ as integral to the belief that the law is, after all, a certain way.[12] In addition, legal arguments made in the context of precedent strive to incarnate the virtues or principles associated with epistemic coherence for ascertaining the truth or falsity of legal propositions. Finally, as ―law-and-economics‖ practitioners are quick to remind us, resort to precedent ideally economizes on time for all the relevant parties. The attempt to instantiate the principles of consistency and equality implicates legal practitioners (arguably, it turns out) in analogical reasoning because, of course, no two cases will ever be identical in all respects. However, the most conspicuous ―difficulty with constraint by analogy is that every case is analogous to every other case in some ways and disanalogous in other ways.‖[13] Or so it seems. But this way of putting the problem is insensitive to the manner in which analogical argument in (and outside) the law is subject to operative constraints which, while not leading to anything like deductive certainty, need not leave us floundering in sheer indeterminacy. Analogical reasoning is suggestive, plausible, and presumptive—and often even persuasive, even if it is not conclusive in a rigorous deductive or formal sense. It is employed in the context of legal rules, doctrinal standards, and sundry legal principles and community values that help to narrow the scope of indeterminacy when reasoning analogically. It has an ineluctable ―open-texture‖ that makes it more, or less, persuasive. What counts in analogical comparison is, within limits, inherently contestable. According weight or salience to the items of an analogy is an evaluative process in part dependent upon normative judgments or growing out of background rules, standards, principles, and theories. However, reference to a norm ―beyond‖ the facts of the case is still in implicit reference to those facts, accounting for disparate or competing analogies but not

5

rendering them solely or exclusively the product of idiosyncratic value preference or the bias of prior theory selection (even ‗fact finding‘ is dependent on the exercise of judicial discretion: in the words of E.W. Thomas, ‗[facts] must be probed, discerned, extracted, and weighed from a mass of evidence, often poorly organised‘). After all, the question time and again is the proper ―fit‖ (coherence) with the facts, such that theory or values or principles can never be singularly or entirely dispositive. Rather, and perhaps roughly, something like Rawls‘ ―reflective equilibrium‖ may be at work here, which is indeed the claim made by Sunstein, and perchance the only way one can save his depiction of analogical reasoning from vicious circularity (for Larry Alexander, no such salvation is possible). Cass Sunstein claims that the principle or rule which ―accounts for results in the source and target cases‖ is discovered in the process of analogical reasoning itself, but this seems hopelessly confused if not viciously circular (reflective equilibrium being ‗virtuously circular‘): analogical reasoning cannot get started without a ―governing idea,‖ yet that governing idea (or rule or principle) does not exist ―until we have assessed the cases‖ (emphasis added).[14] Keep in mind, however, that it is likely that one reasons analogically in conjunction with or alongside other forms of reasoning (syllogistic and otherwise) in which proper fit or coherence is a minimal desideratum. Like the doctrine of precedent itself, analogical reasoning involves the simultaneous reliance on constraints and the exercise of discretion (even here, as E.W. Thomas makes clear with regard to the doctrine of precedent, such discretion is bounded by ‗internal‘ and ‗external‘ constraints). While a deciding court is strictly bound (vertically constrained), stare decisis does not require the court to follow the precedent of coequal, autonomous courts, or of lower courts within the same system, or of any courts outside the jurisdiction. And yet the deciding court is free to consider cases from other courts authoritative (the court of last resort if you will), in other words, to freely bind itself.[15] A prima facie case of precedent may be ―distinguished‖ if the court finds the earlier decision addressed an issue in some respect or on the whole different from the case at hand. Or some characterization of the facts may cause it to be distinguishable or significantly different from the instant case to exempt it from the constraint of precedent. In addition, finding a case distinguishable can be a roundabout way of circumventing outdated or otherwise unsound precedent. Inconsistent distinguishing may reflect a rational (i.e. with ‗good reason‘) stepwise strategy of a court toward the (provisional) goal of overruling, as succinctly explained here by Melvin Eisenberg: ―It may sometimes be best for courts to move to the best rule in steps, even at the price of inconsistency during the transition. A court may properly decide that if it is uncertain how given conduct should be treated, it may give effect to its uncertainty by carving out only a portion of the conduct for special treatment, on a provisional basis, provided the line it carves out is rationally related to the court‘s purpose. For example, a court may believe that a doctrine is not normatively justified and yet may not be confident that its belief is correct. The court may then properly draw an inconsistent distinction as a provisional step toward full overruling. Alternatively, a court may properly formulate an exception at a level of generality below that necessary for the exception to be fully principled, as a provisional step toward full generality.‖[16]

6

This is an altogether remarkable practice by the court that well illustrates several phenomena first discussed by Jon Elster in Ulysses and the Sirens: Studies in Rationality and Irrationality (1984) wherein man is metaphorically characterized as a ―globally maximizing machine‖ (in contrast to the ‗locally maximizing machine‘ evidenced in the theory of natural selection) that employs ―waiting and the use of indirect strategies [as] crucial features of human choice.‖[17] In this case, waiting akin to ―investment‖ in economics, which exemplifies a ―global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forwards.‖ I think we might fairly characterize the practice of ―inconsistent distinguishing‖ as an indirect strategy akin to investment in which case it is viewed as prima facie ―irrational.‖ By all appearances (from outside looking in as it were) the court is behaving irrationally (i.e., its inconsistent distinguishing), i.e., the ―step backwards,‖ but only in order for it later—after the waiting period—to possess the capacity to articulate a new rule or move ―two steps forward.‖ Here, the admission of ignorance or ―uncertainty‖ does not result in a myopic or a-theoretical incrementalism, as the court implicitly or explicitly entertains the ―big picture‖ or long-term view when articulating its decision, a picture that perchance only members of the court are privy to. The court is relying on a stepwise strategy through inconsistent distinguishing, but in this instance its eyes are looking up or ahead, as opposed to down, at the very next step: short-term (prima facie) inconsistency is the price paid for indirectly approaching the long-term regulative ideals of consistency and coherence, among the prominent and fundamental rational principles of stare decisis. The practice of precedent thus artfully combines some of the features one associates with traditional or Burkean-like conservatism (e.g., presumptive weight with tradition and a gradualist approach to social change) with the progressive orientation of classical liberalism (e.g., due consideration of changing circumstances or new ‗social propositions‘). To overrule precedent the court must be in a superior position in the legal system or at least equal to it in authority. And yet, while the California Supreme Court, for example, is precedentially constrained by its previous decisions (‗horizontal constraint‘), it may still (with reason…) overrule itself, provided the precedent is thought to ―be wrong and also mischievous to a certain degree of gravity.‖[18] Deference to past decisions or the binding constraints of the doctrine of stare decisis serves to save the courts (or judges) from the exercise of unfettered discretion on the one hand, and from having to decide every case de novo or afresh on the other. Perhaps inspired by the growing number of cognitive and computer scientists and philosophers seeking to model or map analogical reasoning across the myriad fields of intellectual inquiry, legal theorists and philosophers of law have begun to address the comparatively ―impoverished understanding‖ of the ―logical form‖ (i.e., linguistic, semantic, and pragmatic) and ―rational force‖ of analogical reasoning or the use of analogies in reasoning from judicial precedent. Analogies are employed in both inductive reasoning and deductive inferences, although they are clearly dependent on broader legal principles and values, making manifest contributions to the aforementioned ―coherence‖ of legal reasoning and the structural integrity of the rule (or system) of law. In common law legal arguments, for example, ―analogies that work as justifications do so because of the way they instantiate the implementation of some

7

general legal principle that cover both (or all) cases.‖[19] Furthermore—and relatedly—as Neil MacCormick reminds us, analogies ―are relevant to what judges call ‗developing the law,‘ that is extending or restating a legal rule or principle to make it cover or show how it covers, novel situations of a kind that Joseph Raz calls ‗unregulated cases.‘‖ To explore a bit more deeply the use of analogy in precedential legal reasoning I‘m going to draw upon Neil Duxbury‘s illuminating discussion in The Nature and Authority of Precedent (2008). As Duxbury explains, ―to follow a precedent is to draw an analogy between one instance and another; indeed, legal reasoning is often described—by common law lawyers at least—as analogical or case-based reasoning.‖[20] To be sure, ―[n]ot all instances of analogy drawing…are instances of precedent following.‖[21] Prior to the development of the doctrine of stare decisis in the English common law tradition, precedent was often thought to exemplify proper legal reasoning wherein judgments endeavored to exhibit ―constancy and consistency,‖ broadly construed, within the law as a whole. Analogical reasoning is here part and parcel of the ―artificial‖ or cultivated reason of Coke and Hale, for such reason was—and remains—the fruit of ―study and experience of the law over a long period of time.‖[22] This is precisely the sort of rationality soon disparaged (unfairly I think) by Hobbes in postulating the superiority of ―natural reason,‖ in other words, the sort of reason that in the first instance is the moral and political prerogative of the sovereign, and only derivatively or by implication entrusted to judges to exercise on the sovereign‘s (and thus the subjects‘) behalf: ―For in the acts of Judicature,‖ writes Hobbes, ―the Judge doth no more but consider, whither the demand of the party be consonant with naturall reason, and Equity; and the Sentence he giveth, is therefore the Interpretation of the Law of Nature….‖ While Hobbes‘s natural law reasoning is axiomatically grounded, as Sharon Lloyd has well argued, in ―the reciprocity theorem of reason‖ (which ‗articulates the primary constraint in Hobbes’s moral and civil philosophy on the justifiability in reason of actions‘),[23] the ―artificial reason‖ cherished by the likes of Coke and Hale and exemplified in common law reasoning would come historically to entrench the centrality of analogy—in cases, and as a form of reasoning—in stare decisis. As I find the historical narrative compelling, I‘ll quote at length from Duxbury‘s account: ―The standard of law reporting improved in the nineteenth century not only because the activity became steadily more professionalized, and eventually institutionalized, but also because the development of the Pitman shorthand system in the 1830s made it possible for reporters to reproduce judicial opinions more or less verbatim. By the mid nineteenth century, law reporting had become accurate to the point that reporters would customarily send judges transcripts of their oral arguments for approval and correction. The fact that reporters were generally replicating the ipsissima verba of the judges would most likely have contributed to the fortification of stare decisis; for a prior decision in an analogous case is likely to be less easy to ignore or even distinguish if the reasons informing that decision are presented clearly, in their entirety, and with the approval of the judges who articulated them. The introduction of the hierarchical system of appellate courts under the Judicature Acts of 1873-75 further helped to consolidate the doctrine of precedent, for, once this system was established, judges looking to earlier analogous decisions for guidance could be constrained by the status of the precedent-setting court rather than by the quality of its reasoning alone. [….] The doctrine of stare decisis did

8

not come about because of the creation of a hierarchy of courts, even though the introduction of that hierarchy did much to consolidate it. The doctrine evolved, rather, primarily because the shift to post-verdict arguments made reasoned judgments more visible and significant, and because gradual improvements in law reporting (including headnote writing) ensured that, in general, such judgments were carefully documented and the key points of reasoning easily identifiable. For counsel, seeking judicial precedent became a matter of searching for an analogous earlier decision, reached by an appropriate court, based on reasoning which, if considered persuasive by the court deciding the current case, would probably guarantee a ruling in their client‘s favour. The authority of precedents came to be understood, and valued, as sources of reason, not merely as rulings, in materially identical cases.‖[24] In The Nature of the Common Law (1988), Melvin Eisenberg persuasively argued that reasoning by analogy is, ―At its core…the mirror image of the process of distinguishing. In distinguishing a court normally begins with a rule, announced in a prior case that is in terms applicable to the case at hand, and then determines that there is good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or what is the same thing, formulates an exception) that requires the two cases to be treated differently. In reasoning by analogy, the court normally begins with a rule, announced in a prior case, that is not in terms applicable to the case at hand, and then determines that there is no good reason to treat the case at hand differently. The court therefore reformulates the announced rule (or, what is the same thing, formulates a new rule) in a way that requires the two cases to be treated alike.‖[25] Reformulating a rule or formulating a new rule frequently entails, as Eisenberg notes, a consistent extension or generalization of an existing rule, the court having determined ―that the statement of the announced rule in the relatively narrow form r, rather than in the relatively general form R, was or has become adventitious.‖[26] Eisenberg illustrates this with a rule that existed prior to the nineteenth century in which a husband could bring suit for alienation of his wife‘s affections by a third person. The question of why a wife did not suffer a legal injury when her husband‘s affections had been alienated was quickened when the law changed allowing married women to sue in their own name. Now ―the question had to be faced whether a wife suffered a legal injury if her husband‘s affection had been alienated. In Bennett v. Bennett [116 N.Y. 584, 23 N.E. 17 (1889)] the New York court held that she did suffer such an injury because applicable social propositions did not support treating a wife differently from a husband for this purpose.‖[27] [….] In effect, the court concluded that the rule that a husband could bring an action for alienation of affections (rule r) should be deemed only a special case of the more general rule that a spouse could bring such an action (rule R). …[T]he rule must be reformulated by generalizing from husbands to spouses, so that it covers both the precedents and the case at hand.‖[28]

9

Eisenberg concludes, like Duxbury after him, that analogical reasoning is a prominent and unavoidable feature of stare decisis. Analogical reasoning in the common law therefore plays a role in furtherance of doctrinal stability and systemic coherence, it instantiates the principle that like cases be treated alike, advances the values and principle of replicability and, therefore, predictability and planning. And in the end, of course, it is not precedent per se that is (or should be) binding, but the persuasive or substantive reasoning—ratio decidendi—that animates it, that adds up to a case on point. What is important here is that both distinguishing and overruling require the giving of reasons, thus departure from precedent itself ―might be considered evidence that the precedent has some authority, for explicit departure from a precedent invariably entails an explanation‖ (Duxbury). The picture we‘ve sketched here might be filled in or made a bit more complex when we consider the interactions, say, between common law and constitutional law, or common law and statutory and/or regulative law, but these complications should not undermine the basic framework of the picture itself. *Analogy, or qiyās, is also very important in Islamic law, but that deserves a separate treatment on another occasion. Postscript: For a more thorough analytical examination of this topic, see Grant Lamond‘s entry in the Stanford Encyclopedia of Philosophy on ―Precedent and Analogy in Legal Reasoning.‖ E.W. Thomas‘s chapters 6 and 7, ―The Piety of Precedent,‖ and ―The Foibles of Precedent‖ respectively in his book, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (2005), are indispensable for explaining the shortcomings of any formal theory asserting the absolutely or strongly binding character of precedent. Neil Duxbury‘s The Nature and Authority of Precedent (2008) seems to me the definitive treatment of the subject to date, artfully combining historical discussion with philosophical analysis in a way that enables us to fully appreciate precisely how and why ―the value of the doctrine of precedent…rests in its capacity simultaneously to create constraint and allow a degree of discretion.‖ Properly employed, I think the same could be said about analogical reasoning in the law. After assembling this bibliography I learned of a promising book that proffers ―the first systematic normative theory of analogical arguments in many years,‖ namely, Paul Bartha‘s By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments (New York: Oxford University Press, 2010). At the publisher‘s website we read that ―In elaborating the connection between analogy and…broad epistemic principles, By Parallel Reasoning offers ―a novel contribution to explaining how analogies can play an important role in the confirmation of scientific hypotheses‖ in particular, and more generally, that it seeks ―to formulate and justify the standards for the critical evaluation of analogical arguments.‖ Notes to Part 1: [1] Keith J. Holyoak and Paul Thagard (1997), ―The analogical mind,‖ American Psychologist, 52: 35-44. Available: http://cogsci.uwaterloo.ca/Articles/Pages/Analog.Mind.html

10

[2] Julian Baggini and Peter S. Fosl, The Philosopher’s Toolkit: A Compendium of Philosophical Concepts and Methods (Malden, MA: Blackwell, 2003), p. 47. [3] Ibid., p. 46. [4] Keith J. Holyoak and Paul Thagard, Mental Leaps: Analogy in Creative Thought (Cambridge, MA: MIT Press, 1995). [5] Ibid., p. 12. [6] John Ziman, Real Science: What it is, and what it means (Cambridge, UK: Cambridge University Press, 2000), p. 149. [7] David E. Leary, ed. Metaphors in the History of Psychology (Cambridge, UK: Cambridge University Press, 1990), p. 2. [8] See, for example, Scott Brewer, ―Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,‖ 109 Harvard Law Review 923, March 1996, and Dan Hunter, ―Reason is Too Large: Analogy and Precedent in Law,‖ 50 Emory Law Journal 1197 (Fall 2001). Cf. Larry Alexander and Emily Sherwin‘s skeptical (or ‗eliminativist‘) argument that ―so-called analogical reasoning does not contribute in a meaningful way to judicial decision-making,‖ in their book, Demystifying Legal Reasoning (Cambridge, UK: Cambridge University Press, 2008), p. 118. I cannot here attempt a rebuttal of this argument so suffice to say I think they‘re mistaken, all the same, I do think they‘re right in more modestly contending that ―purely analogical decision making [in law] does not exist‖ [emphasis added]. [9] Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988), p. 51. [10] P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford, UK: Clarendon Press, 1987), p. 120. [11] E.W. Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge, UK: Cambridge University Press, 2005), p. 133. [12] Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford, UK: Oxford University Press, 1996), p. 76. [13] Larry Alexander, ―Precedent,‖ in Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Malden, MA: Blackwell, 1996), p. 509. [14] Sunstein, pp. 65-66. [15] On self-binding mechanisms generally, see Jon Elster, Ulysses Unbound (Cambridge, UK: Cambridge University Press, 2000). [16] Eisenberg in Peter Benson, ed., The Theory of Contract Law: New Essays (Cambridge, UK: Cambridge University Press, 2001), p. 217. [17] Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality (Cambridge, UK: Cambridge University Press, revised ed., 1984). [18] Larry Alexander in Patterson (see n. 12 above), p. 512. [19] Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (New York: Oxford University Press, 2005), p. 211. [20] Neil Duxbury, The Nature and Authority of Precedent (Cambridge, UK: Cambridge University Press, 2008), p. 2. [21] Ibid. [22] Ibid., p. 49. [23] The ―reciprocity theorem:‖ ―If one judge another’s doing of an action to be without right, and yet does that action oneself, one acts contrary to reason. That is, to do what one condemns in another is contrary to reason.‖ Hobbes believed this to be a faithful application of the

11

Golden Rule found in the New Testament, and Lloyd appears not to disagree with this, but the Golden Rule is not reducible to a principle of reciprocity, even if it frequently is seen as exemplifying same. See, first, Lloyd‘s brilliant and boldly original interpretation of Hobbes‘s moral and political thought in Ideals as Interests in Hobbes’s Leviathan: The Power of Mind over Matter (Cambridge, UK: Cambridge University Press, 1992), and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge, UK: Cambridge University Press, 2009). Then, as to why the Golden Rule is not equivalent or reducible to the (Hobbesian), or a reciprocity principle, see Duxbury‘s article, ―Golden Rule Reasoning, Moral Judgement and Law,‖ 84 Notre Dame Law Review (2009): 1529-1605, and Anna Wierzbicka‘s discussion in What Did Jesus Mean? (New York: Oxford University Press, 2001), pp. 191-202. [24] Duxbury, 2008: pp. 55-57. [25] Melvin Aron Eisenberg, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988), p. 87. [26] Ibid. [27] Ibid., p. 88. [28] Ibid., p. 89.

12

Analogy & Metaphor, Part 2: Metaphor Having introduced analogy and analogical reasoning in Part 1, we‘ll do the same for metaphor, a far more difficult topic to tackle, and no less so even if our aim is only, as it is here, to provide a taste of the subject matter. If metaphor is construed as involving a gap between the conventional meaning of words and their occasion-specific use, its analysis would appear to fall largely within the rubric of pragmatics (or ‗speaker‘s meaning‘) rather than semantics (the meaning of an utterance or sentence in a given language and involving ‗truth-‗ or ‗assertibility conditions,‘ i.e., epistemic justification). But if we think of metaphor as somehow continuous with literal speech (which need not deny a ‗contextualist‘ component: metaphor as a contextually variable semantic meaning), semantics earns pride of place in the first instance, and thus pragmatics is parasitic upon semantic analysis, such analysis a necessary condition yet perhaps not a sufficient condition for understanding metaphorical utterances. Pragmatics clearly has something to contribute to an understanding of metaphor for, as Elisabeth Camp (2009: 265) explains, ―the same sentence can receive dramatically different metaphorical interpretations in distinct contexts. For instance, ‗Juliet is the sun.‘ will be interpreted differently when spoken by Romeo (very crudely, as meaning Juliet is beautiful), by his friend Benvolio (Juliet is dangerous) and by his rival Paris (Juliet is the most important socialite in Verona).‖ Relatedly, metaphorical utterances have been associated with Gricean implicature (Grice 1975), although a body of work suggests metaphor is more often about ―direct and explicit‖ meaning, that is, about ―what is said.‖ All the same, recent research about the ―mental processing of unfamiliar and novel metaphors does find something like Gricean ―indirectness‖ applicable: ―it seems plausible to take ‗indirectness as claiming that a good rational reconstruction of successful metaphorical communication will first rule out a literal interpretation as being contextually inappropriate, and also appeal to that literal meaning in determining the speaker‘s intended meaning‖ (Camp 2009: 265). Camp proceeds to enumerate a number of reasons why we might not want to assimilate Gricean implicature to metaphorical understanding, in other words, against treating metaphors simply as implicatures. In speaking of semantics and pragmatics, we‘ve begun our discussion within the framework of philosophy of language[1], a field that has engaged some of the best philosophical minds of our time. Yet it is not the preferred starting point among the more popular academic treatments of metaphor, which favor vantage points provided by linguistics and cognitive psychology, or ―cognitive because conceptual‖ accounts of metaphor, while accounts in which metaphor is in the first place a linguistic phenomenon and frequently ―cognitive‖ in a broader sense, are found among philosophers of language (this does not rule out the possibility there are, increasingly, exceptions to this division of labor and one should not read too much into the labels, especially before examining the respective arguments in detail). Let‘s take a moment to look at a few of the actual and possible relations between philosophy and cognitive science, if only because the ―conceptual‖ accounts and accounts in which metaphor is

13

about a ―figure of speech (i.e., a non-literal use of speech within a class that includes irony, metonymy, synecdoche, hyperbole, and meiosis) and sometimes even ―non-cognitive,‖ tend to fall out into science and philosophy respectively, although philosophers like Camp have proven adept at appreciating the relative epistemic virtues found among all the parties in this discussion. Philosophers who collaborate with researchers from the sciences often uncritically defer to their scientific colleagues, at least in the sense that they do not thoroughly examine or question the fundamental conceptual and philosophical presuppositions and assumptions that undergird (psycho)linguistics or cognitive science. Instead, they assume the role of the Lockean ―underlaborer‖ for the natural sciences, to adopt a term from the idealized distinction drawn by Steve Fuller (2006) (and first used by Locke and later part of Roy Bhaskar‘s ‗critical realist‘ theory of science) between the ―philosophical legislator‖ ―who questions the presuppositions of ongoing scientific research‖ (cf. Bennett and Hacker 2003 with regard to neuroscience), and the ―philosophical underlaborer, whose role is one of clarifying and defending the presuppositions and assumptions of a particular scientific research program. The philosopher as underlaborer is close to Paul Thagard‘s (2009) proposed conception of the indispensable role of philosophy for cognitive science: philosophy does and should continue to contribute ―generality‖ and ―normativity‖ to an interdisciplinary field like cognitive science. Generality betrays a concern for the ―unity‖ of the sciences (such as that traditionally purchased by commitments to reductionism or naturalism or represented by E.O Wilson‘s notion of ‗consilience‘), hence it ―attempt[s] to address questions that cross multiple areas of investigation, thereby helping to unify what otherwise appear to be diverse approaches to understanding mind and intelligence‖ (or nature and reality, for that matter) (Thagard 2009: 238). Normativity is necessary because cognitive science, in performing its descriptive work, may assume or imply how people ―ought‖ to think and act, and thus philosophy can assist science in making explicit this unavoidable normative and prescriptive enterprise; as Thagard rightly says, ―Cognitive science often assumes epistemological and ethical norms without adequate philosophical discussion‖ (246). While Thagard‘s model would appear to soften the distinction between the philosophical legislator and underlaborer insofar as it takes on board the question of normativity, he makes it clear that the role of the underlaborer does not aim to provide philosophical (e.g., metaphysical) foundations for any of the sciences (although reference to same is unavoidable insofar as we‘re anxious to demonstrate the ‗unity‘ of the sciences) and, what is more, it does not see itself as involved in clearing up any alleged ―conceptual confusions in the study of the mind‖ (238). Thus, for example, philosophy of mind has no privileged role vis-à-vis cognitive science, that is, unless it‘s inclined toward scientism or is unabashedly scientistic: ―Philosophy can be…useful to cognitive science in providing defenses against philosophical arguments challenging the core assumptions of cognitive science concerning representation and computation. In this way, philosophy can provide self-defense methods for cognitive scientists against philosophers critical of the whole field‖ (238). I think this envisages an unduly deferential and defensive role for philosophy in relation to (cognitive) science. It‘s not that one can‘t imagine a philosopher justly playing the part

14

of an underlaborer, but the underlaborer model hardly does justice to the various roles philosophy might assume in relation to cognitive science or any other natural or social science. We‘ll return to some of these issues near the end of our introduction, but for now it helps us appreciate why some philosophers have been critical of the immensely popular conceptual theory of metaphor within cognitive linguistics first formulated by Lakoff and Johnson (1980 and 1999), and have chosen instead to examine metaphor from within the parameters provided largely by philosophy of language (without in any way belittling the pioneering contributions of Lakoff and Johnson). In effect, they have not seen their role as constrained by the model of the ―underlaborer,‖ thus they frequently point out contestable presuppositions and assumptions from perspectives provided by philosophy of language or philosophy of mind (and those perspectives need not be ‗consensual‘ within these branches of philosophy). This ―big picture‖ is especially important for legal theorists to consider, given their historic tendency to embrace with unbridled enthusiasm this or that finding from the latest scientific enterprise or research program: the empiricism of legal realism, the rational choice model of neo-classical economics, behavioral economics, social psychological ―situationism,‖ cognitive linguistics or cognitive science in general, evolutionary psychology, and so forth and so on. And this enthusiasm is not even tempered by awareness of methodological doubts, discussions and debates within the social sciences themselves! By way of illustration, we need only read Dennis Patterson‘s (2003) review essay—aptly titled ―Fashionable Nonsense‖—of Amsterdam and Bruner‘s Minding the Law (2000) and Winter‘s A Clearing in the Forest: Law, Life, and Mind (2001), to be apprised of some of the more glaring philosophical pitfalls and blind spots that result from uncritical reliance on the latest scientific literature from a popular or (potentially) interdisciplinary field of study, evidenced of late among legal theorists in the fawning over the latest findings of neuroscience (see Pardo and Patterson 2010). Given the structurally ―conservative‖ character of legal systems and institutions, it‘s perhaps not surprising that legal theorists look to science by way of analyzing the law, especially owing to the difficulty of having anything original or creative to contribute to analytic jurisprudence or traditional philosophy of law, which still pivots around questions generated from well-worn debates between theorists of natural law and legal positivism. Scientific literature, by its very nature, is ripe for exploitation by legal theorists, providing a veritable endless resource pool of potential research topics for bringing to bear fresh perspectives on the law: after all, science deals with the enormous complexity of both the natural and social worlds, encompassing what, after Nicholas Rescher (2000), we might characterize as the ―cognitive inexhaustibility of things.‖ The scientific enterprise transforms what at first glance appears as a liability, namely, the ―cognitive opacity of real things‖ (including the fact that we will never be ‗in a position to avoid the contrast between things as we think them to be and things as they actually and truly are‘), into an intellectual and disciplinary virtue: ―[the] susceptibility to further elaborate detail—and to changes of mind regarding this further detail—is built into our very conception of a ‗real thing‘‖(Rescher 2000: 31). If the ―ongoing process of information enhancement‖ intrinsic to the scientific endeavor entails a concomitant process of ―conceptual innovation,‖ legal theorists will find it hard to resist the temptation to turn to

15

science by way of tilling and cultivating fertile fields of research (one might say they are, metaphorically and otherwise, the academic equivalent of post-colonialist capitalists or ethical cosmopolitans in the era of neo-liberal globalization: they are well poised and positioned to engage in cross-disciplinary cognitive trades and raids). The progress of scientific knowledge is marked by the ―proliferation of ever more restructured specialties,‖ which in turn prompts attempts at interdisciplinary synthesis. Attempts at interdisciplinary synthesis are naturally attractive to legal theories cognizant of the non-linear character of legal systems and institutions, for they require holistic and comprehensive inquiries belied by scientific models bound to the parsimony of Ockham‘s razor. Conditions of opacity and complexity are quickened for legal theorists who look to both the natural and the social sciences, the latter marked by need to explicitly address questions arising from the nature of consciousness (or, more broadly, subjectivity), intentionality and normativity, questions that invariably bring the social sciences within the province of philosophy. Unlike their counterparts in the natural sciences, who more often than not can go about their work with little attention devoted to the philosophy of science, taking the Lebenswelt more or less for granted, social scientists, and legal theorists after them, cannot (or should not) avoid deliberately confronting what, at bottom, are difficult philosophical topics on which there exists a proliferation of plausible perspectives, indeed, so much so that it can undermine the credibility of ―expertise:‖ ―Economists, for example, are notoriously at loggerheads on the explanation of how modern commercial culture actually ticks. Even when they are not uttering the wishful thoughts of a political party or sector of industry, they do not produce knowledge which a sensible person ought to trust unreservedly in deciding to build a factory or buy a block of shares. [….] [M]any university-based researchers are now so reliant on government contracts for research on practical problem that they cannot easily dissociate themselves from government policies. [….] In effect, to obtain resources for research, many post-academic human scientists are forced to relaunch themselves as technical consultants. They compete with one another for research projects on political, social or industrial problems commissioned by private or public organizations. Very often, however, their research findings and expert advice are desired as much to rationalize a particular policy on a contentious practical matter as to present an independent analysis of the situation.‖ (Ziman 2000: 177-178)[2] All of this by way of an indirect apologia on behalf of a view closer to the ―philosopher as legislator‖ model, in other words, in defense of an introduction to metaphor by way of a few philosophical accounts, albeit accounts that are not non-cognitivist in any polemical or agonistic sense. While an avowed bias for pragmatics in the study of metaphor finds common ground among philosophers and cognitive scientists, philosophers of semantic suasion, notably Josef Stern (2000), have brought renewed philosophical respectability to ―Literalist‖ (v. ‗Contextualist‘) accounts of metaphorical interpretation.[3] While earlier and well-known analytic accounts of metaphor by the likes of Max Black[4] and Donald Davidson thought truth-conditions were irrelevant to metaphorical interpretation, both contemporary Contextualists and Literalists concur in the belief that metaphors express truths of a kind, the differences centered on the precise determination of the truth conditions of a metaphorical utterance, perhaps an implicit

16

reference to the fact that we cannot abandon the dependency of the metaphorical on the literal in making such a determination. Indeed, there are, as Stern (2008) has argued, ―semantic constraints on both metaphor and deferred reference imposed by the meaning of the literal vehicle.‖ And in the spirit of Black‘s seminal thoughts on metaphor, Stern notes ―how a metaphorical mode of expression can bear a kind of information apart from its truth-conditional content that carries explanatory power in belief-ascriptions‖ (Stern 2008: 276-277). At the very least, it would seem those who identify with Contextualism or Pragmatics will have to concede one facet of Stern‘s Literalist brief: ―that metaphorical interpretation falls in part under semantics‖ [emphasis added]. Stern‘s analysis in fact softens the boundaries between Pragmatics and Semantics, for his theory of metaphorical meaning ―takes into account both its context-dependence and literal dependence:‖ ―[T]he different metaphorical interpretations that utterances of one expression (type) can express in different contexts and on different occasions are their (propositional) contents, the factors that bear on the truth-value of their utterances. Because the individual features (e.g., being greater than her peers for ‗is the sun‘ [as in ‗Juliet is the sun‘]) expressed in these contents depend in part on the speaker‘s extra-linguistic skills and presuppositions, the contents of these metaphorical interpretations are not themselves known solely in virtue of semantic competence. But it does not follow that metaphor lies entirely outside semantics. What the speaker does know in virtue of his semantic knowledge is the character of the metaphor, that is, a rule or directive to map the parameter of the context into the content of the metaphor in that context. Metaphorical character constrains which contents can be metaphorically expressed by which expressions in which contexts. And insofar as the function of meaning is generally to constrain which intentions can be expressed by which linguistic items on which occasions, we can takes its character to be the meaning of a metaphor.‖ (Stern 2008: 270) Concern with metaphorical meaning and truth as understood in the philosophy of language likewise animates Samuel Guttenplan‘s Objects of Metaphor (2005). Guttenplan outlines a ―Semantic Descent‖ (SD) account of metaphor that, like Stern‘s project, attempts to identify principal interpretive constraints. Camp argues that Stern did not wholly succeed in this regard, the constraints so identified being merely ―patterns of default interpretation and of infelicity‖ and thus defeasible in a way that a ―genuinely semantic‖ constraints should not be. Guttenplan postulates three basic constraints as part of his larger argument: 1) that metaphorical content is truth-evaluable, 2) that paraphrase (as a demand for sufficient ‗restatement‘) is ―inappropriate,‖ and 3) that metaphors are transparent (in the sense that we understand them in an immediate or direct way). Guttenplan endeavors to show how his SD account can establish the necessity of these constraints by rethinking our understanding of predication and reference. Heretofore, philosophers of logic and language have accorded disproportionate attention to the question of reference, or what is being spoken about, at the cost of neglect of the ―object‖ itself, or what the act of predication is about: ―According to the standard picture, reference and predication are importantly complementary processes. To make an assertion, it must be clear what is being spoken

17

about (reference), and something must be said about the thing (predication). In language, subjects and predicates jointly form a ‗basic combination‘ capable of performing these functions. [….] [Guttenplan] is concerned about the asymmetry between the two with respect to the possibility of non-linguistic devices performing these functions. It‘s clear that ordinary non-linguistic objects can be used referentially (as when having a saltcellar acts as my car while I explain a recent accident), but the general consensus seems to be that only linguistic items can act ‗predicationally.‘ This is what Guttenplan wants to resist. Instead, he argues for a notion of qualification, such that non-linguistic objects can be used to qualify just as they are to refer.‖ (Wearing 2006) SD therefore entails moving from a string of words down, as it were, to a ―sub-linguistic‖ object, event, or state of affairs: ―Via semantic descent, we move from an ordinary predicate (e.g., [Juliet] ‗is the sun‘) to a proto-predicate, a hybrid composed of words and objects (e.g. ‗is the sun‘—…semantic descent to an object), and the object in this proto-predicate (the sun) then qualifies the subject of the metaphor, [in this case], Juliet‖ (Wearing 2006). In this way, SD demonstrates the predicatory point played by a non-linguistic background and related contextual information in the determination of metaphorical content. It also is said to have thus met our three aforementioned constraints: the result of SD and qualification is truth-evaluable content, the ―hybrid‖ predicate of word and object resists paraphrase, and the transparency condition is met insofar as this sub-linguistic movement proceeds from particular words. Guttenplan makes predication a species of qualification, given our use of reference to refer to objects, gestures, sounds, thought constituents, as well as words; in short, reference involves both mental and non-mental objects of various kinds. Importantly, these metaphorical constraints are not universal, as fictional, poetic, or other imaginary contexts (e.g., ‗thought-experiments‘) are often ―truth-irrelevant‖ contexts, in which cases it could be said we return to something like Davidson‘s non-semantic, ―use-based,‖ ―picture‖ theory of metaphor, as metaphors produce conspicuous effects upon their hearers through intimation or suggestion that prompts non-propositional insight: ―Seeing as is not seeing that.‖[5] And while pragmatic factors clearly contribute to semantic indeterminacy, ―the words from which semantic descent is made exercise some control over the way the relevant object is used‖ (Guttenplan 2005: 153). While Guttenplan‘s philosophical account of metaphor appears to have some affinity with research in linguistics and cognitive psychology, as Wearing (2006) points out in her review, he does not leave us with any suggestions as to how SD ―relates to the actual comprehension of metaphorical language.‖ Nevertheless, Guttenplan does distinguish SD theory from Lakoff and Johnson‘s influential view that metaphors are primarily conceptual phenomena, ―the dominant view in what is now the dominant area of metaphor research: cognitive science‖ (Reimer and Camp 2006). Guttenplan reminds us that the SD account of metaphorical meaning involves two distinct kinds of process: ―There is descent from ordinary linguistic expressions to objects; and there is the use of these objects as qualifiers or ‗proto-predicates,‘‖ thus qualification alone ―is simply not metaphor:‖ ―From this perspective, the cognitive account [of Lakoff and Johnson] can be seen as a rather confused attempt to treat something rather like qualification as though it were

18

itself metaphor. It is of course something like qualification because none of the background discussion of this notion, or anything close to it, figures in the cognitive account. Still, what Lakoff and Johnson regard as ‗conceptual‘ devices lying behind a whole range of linguistic metaphors—‗formulae‘ like TIME IS MONEY—are by my lights a kind of qualificational claim: money (by which is meant a whole range of determinate monetary transactions) qualifies time. [….] People say such things as ‗Professor X is not spending his time wisely.‘ When they do, we could imagine there to be semantic descent to some object, in this case a course of action in which money is not spent wisely and this object will then qualify the subject of the metaphor, in this case Professor X‘s course of action. Many such metaphors are possible, and they cluster around a theme in the qualifications that could be called on in each case. This qualificational theme can be summarized (without the capital letters) as: time is money. But the latter is not itself a metaphor. Thus, far from thinking that some cognitive device is the real metaphor grounding a range of ways of speaking, that device simply indicates that the relevant range of metaphors potentially makes use of a recognizably similar kind of qualifying object.‖ (Guttenplan 2005: 189) In sum, ―It is our perfectly ordinary knowledge of monetary transactions which allows us to use them for conveying information about events involving time, and it is around this basic scheme of qualification that a whole series of expressions have clustered‖ (191). Guttenplan in effect argues for a point apparently neglected in the literature on Lakoff and Johnson‘s theory, namely, that ―Virtually all of Lakoff and Johnson‘s examples involve metaphors that are dead‖ (we therefore ‗do not actually need to call on descent or qualification in dealing with them‘). The reliance on dead metaphors is not far from the general reliance among many philosophers on ―appeal to examples of metaphor which are implausibly simple in syntactic structure and are neither vivid, inspirational, creative, nor, to use a popular expression, ‗high octane‘‖ (182). In other words, the examples are not true to what Guttenplan correctly calls the richness or complexity of metaphor. Lakoff and Johnson‘s oft-cited formulae that undergird groups of linguistic metaphors are not, according to Guttenplan, ―cognitive metaphors‖/―metaphors in thought,‖ indeed, ―they are not metaphors at all‖ (190). While it may be true that ―dead metaphors‖ are still, after all, metaphors, Guttenplan argues that Lakoff and Johnson‘s examples are typically ―dead‖ in the important sense that their non-literal meaning is readily available to English speakers without the special effort, so to speak, required of live metaphors or in metaphorical understanding generally (an effort also required in cases where dead metaphors are, in the right context, brought back to life or ‗revivified‘). Camp makes the selfsame point: ―As metaphors become lexicalized they are no longer processed as metaphors‖ (Camp 2006a: 158). Even if we chose to characterize these ―dead‖ metaphors more generously as ―highly conventionalized‖ metaphors, the problems associated with relying on such metaphors to make theoretical generalizations about metaphors, language or thought are no less acute. As we cannot here survey all of the leading accounts of metaphor from the philosophy of language, linguistics, and cognitive science, not to mention literary theory or poetics and aesthetics, we‘ll end our introduction with a few more comments on Lakoff and Johnson‘s ―conceptual metaphor‖ theory which dates back, as a collaborative venture, to

19

their 1980 publication, Metaphors We Live By (2nd ed., 2002). Lakoff is a linguist and Johnson is a philosopher, and their theory is a product of cognitive science generally and cognitive linguistics in particular, in which case I would characterize Johnson‘s role in this joint project as that of ―underlaborer.‖ For Lakoff and Johnson, metaphor is not so much about our use of language as it is about the way we think or our reliance on certain ―conceptual devices,‖ and this is in fact in keeping with a basic premise of cognitive science: metaphor is first and foremost a conceptual phenomenon or more generally about thinking and a linguistic phenomenon only secondarily or derivatively. Camp (2006) is in keeping with the tenor and tone of Guttenplan‘s critique of Lakoff and Johnson‘s theory in noting ―the fact that many ways of using words seem to have originally been metaphorical doesn‘t itself show that thoughts we now use them to express involve metaphorical cross-domain mappings,‖ in the jargon of Lakoff and Johnson. Again in the same vein as Guttenplan‘s re-description of Lakoff and Johnson‘s theory, Camp contends that, ―Prima facie, a much weaker hypothesis suffices to explain much of the data to which Lakoff and his colleagues rightly bring our attention. We do find metaphorical talk natural and useful because of the roles that metaphors play within cognition, but this need not imply that our representation of one domain is entirely parasitic on our representation of the other. It might be just that metaphors reflect and reinforce similarities between our independent mental representations of the two domains: for instance, our distinct representations of arguments and of war.‖ (Camp 2006a: 159) And we can appreciate how extensively metaphor figures in natural language and suspect, with Guttenplan, that ―there is something right about the aspiration of the cognitive account in respect of metaphor‖ (emphasis added), without being convinced that Lakoff and Johnson ―have handle[d] this aspiration correctly‖ (Guttenplan 2005: 202, n. 28). Camp concedes a measure of truth might be gleaned from this aspiration, but the measure is quite modest: ―The claim that metaphor is unavoidable may well be true for thought about unfamiliar or mysterious topics, such as computers or particle physics. But even here, this doesn‘t imply that we can‘t think about—that is, refer in thought to—those topics at all except in metaphorical terms. Metaphors are powerful tools for structuring thought, and they make it easy to focus on certain facts and ignore others. But with the possible exception of extremely abstract subjects, like God, we can think about the relevant topics directly enough to discover facts that metaphorical mapping can‘t accommodate. …[N]o one should grant that metaphors impose an absolute filter on which information we are capable of processing.‖ (Camp 2006a: 159) I‘d like to mention one last insight from Camp‘s analysis that applies more broadly to the cognitive science literature on metaphor, as she makes a distinction often missed or elided and that is the difference between prototypes, scripts, and schemas (e.g., Rosch, Shank and Abelson, and Holyoak and Thagard respectively) as mental representations and concepts. While psycholinguists, cognitive linguists, and other cognitive scientists (and a few of their fellow travelers in philosophy) typically conflate these categories,

20

referring to prototypes, scripts, and schemes as concepts, Camp, ―like many philosophers,‖ ―finds this terminology misleading, because these don‘t do much of the work that concepts traditionally have been assumed to do. (Most notably, they don‘t compose into whole thoughts such that the truth-conditions of the whole thought is a systematic function of the meaning of the parts.) [….] Whatever we call them…these mental representations are fairly clearly not themselves metaphorical.‖ (Camp 2006a: 160) Like all work in cognitive science, Lakoff and Johnson‘s theory is not without its arguable axiomatic or fundamental presuppositions and assumptions. Contemporary work in the philosophy of mind which swims against the current in as much as it denies the popular premise that properties of the mind will someday be explanatorily reduced to the properties of the brain or, in the case of eliminativism, that we‘ll do better by banishing all talk about ―the mental‖ as redundant and illusory, and therefore unnecessary, can help us appreciate the contestable quality of the assumptions and premises in Lakoff and Johnson‘s argument. Philosophers drawn to folk-psychological explanations of mental phenomena and foreswearing theories involving emergentism, ephiphenomenalism, and supervenience, while granting pride of place to non-reductionist descriptions of consciousness, intentionality and normativity, can help us see why the cognitive/conceptual theory of metaphor is at best plausible and thus, in the end, far from persuasive. While non-reductionist theories in the philosophy of mind are typically not ―naturalist,‖ a non-reductionist because ―non-represenatationalist‖ and ―neo-behaviorist‖ yet ―naturalist‖ account (owing to the necessity of descriptions of our causal encounters with the natural world) of intentionality and meaning like that provided by Michael Luntley‘s Contemporary Philosophy of Thought: Truth, World, Content (1999), or Ralph Wedgwood‘s (2007) equally non-reductionist account of normative and mental properties said to be ―reconcilable‖ with the ―strong naturalist thesis that all contingent facts are necessarily realized in physical facts,‖ provide us vantage points from which to call into question the fundamental assumptions and premises of Lakoff and Johnson‘s theory. All the more so in the case of Lakoff‘s ―neural theory of metaphor,‖ tentatively foreshadowed in Lakoff and Johnson‘s Philosophy in the Flesh (1999), a philosophically immodest if not grandiose work.[6] Neuroscience (and by implication, such bastard hybrids as ‗neuroethics‘ and ‗neurolegalism‘), as one of the disciplines within cognitive science (the others being psychology, linguistics, artificial intelligence, anthropology, and philosophy) defined by Thagard (2005) as ―the interdisciplinary study of mind,‖ has proven prone to ―conceptual confusion‖ on a variety of fronts, at least that‘s the conclusion one can readily draw from recent arguments penned by Vincent Descombes, Maxwell Bennett and P.M.S. Hacker, Daniel N. Robinson, Max Velmans, Michael S. Pardo and Dennis Patterson, and Steven Horst (see the references in the link in note 6 below). Core premises in the cognitive science literature generally concerning two conspicuous ―isms:‖ representationalism and computationalism, are challenged in works by Vincent Descombes, the late Gregory McCulloch, David H. Finkelstein, and Charles Travis (among others; for better and worse, many of these philosophers are of Wittgensteinian provenance in one way or another).

21

To be sure, much of the work in contemporary philosophy of mind is compatible with, if not overtly supportive of, the cognitive science literature, as it is broadly and thus roughly described as ―naturalistic,‖ and it is usually although not necessarily at the same time ―reductionist.‖ This is one reason why most philosophers today, if only by default or tacit consent, have been far from critical of the latest research in cognitive science. But one need not be a ―Wittgensteinian‖ of one sort or another to question common suppositions in the philosophy of mind that, in turn, strengthen our sceptical case against the conceptual theory of metaphor and, in addition, serve to reinforce our earlier reflections on the necessity of a more ―legislative-like‖ role (at any rate, something greater than the mere ‗underlaborer‘ role) for philosophy vis-à-vis cognitive science. Consider, for instance, a recent philosophy of science argument made by Steven Horst in Beyond Reduction: Philosophy of Mind and Post-Reductionism (2007). Invoking recent and well-known works in the philosophy of science, Horst suggests we consider afresh regnant premises in the philosophy of mind that support the supposition ―that the mind must be ‗naturalized,‘ and that the way to do this is to reduce mental states and properties to something else—something that can be captured in the language of physics, neuroscience, or other natural sciences‖(Horst 2007: 3). Yet three centrally important properties of the mind: consciousness, intentionality, and normativity have historically (and notoriously) proven to be, and are properly viewed as, structurally recalcitrant to scientific reduction (hence, for example, the oft-cited ‗explanatory gap‘ and the ‗hard problem of consciousness‘). It might strike some as almost banal to be reminded by Horst that what we‘ll christen philosophy of mind‘s ―holy trinity‖ remains rather mysterious (and not just among ‗Mysterians‘ like Thomas Nagel and Colin McGinn), that it is not at all ―reducible to what the brain does, or indeed to any facts specifiable in the language of the natural sciences‖(4). Horst‘s argument, coming as it does from philosophy of science, is clearly original and might be considered that much more useful owing to the fact that it is not of Wittgensteinian provenance, given the hostility the mere mention of Wittgenstein arouses among many philosophers. Horst‘s assessment of the latest literature in the philosophy of science (his book was written at the same time as a recent and fairly vigorous and polemical exception to the rule: Ladyman and Ross‘s Every Thing Must Go: Metaphysics Naturalized (2007)) finds the program of reduction increasingly untenable and abandoned both in theory and practice, for ―in the relevant sense of ‗reduction,‘ chemistry is not reducible to physics, and thermodynamics is not reducible to statistical mechanics,‖(4) a conclusion that can only raise the ire of those holding out for a reductionist scientific ―Theory of Everything‖ (TOE), a dream that ―has enchanted philosophers and scientists throughout the centuries‖ (Rescher 2000: 73) although today could be described as the prerogative and product of physicists‘ fantasies.[7]

It is less philosophically exotic or exceptional, and thus more intuitive or reasonable, to postulate the ―irreducibility of the mind‖ in light of the shortcomings of the reductionist program in science. Horst avers that philosophy of science reveals an increasing commitment to what he calls Cognitive Pluralism, a view that rests content with the (metaphysical and methodological) ―disunity‖ of the sciences (in the sciences ‗it is explanatory gaps all the way down‘), hence a commitment to reductionist metaphysical

22

naturalism is explanatorily unnecessary and superfluous, the various sciences distinguished instead by their dependence on local, piecemeal, and representational systems (this need not entail denying the unique qualities of science as as distinct system or form of knowlede production and acquistion). The irreducibility of the ―special purpose models‖ one finds in the sciences leaves us with a pragmatic pluralism and leaves us without a compelling rationale in favor of physicalism or naturalism in any reductionist sense. And with regard to the philosophy of mind, where naturalism approaches the status of an ideology, we‘re prompted to question the apparent consensual view that, whatever the disagreements between the parties (emergentism, epiphenomenalism, supervenience, eliminativism, for example), what is required for respectability amongst one‘s peers is the flying of one‘s ―naturalistic‖ colors. If irreducibility is true of the ―mature‖ natural sciences, it would seem compelling as well with regard to the putative ―sciences of the mind‖ that are at the same time ―sciences of the brain.‖ If the sciences are irrevocably marked by an unavoidable, indeed availing plurality of idealized representational systems, even the mere plausibility of a reductionist science of the mind is utterly bereft of suasive power. This conclusion is agnostic with regard to the question of scientific realism, for the ―approximating idealizations‖ by our multiple representational systems doesn‘t entail the denial of a ―common reality‖ (or the significance of objectivity for that matter) but rather enables us to see the relative and perspectival character of our pictures or maps that provide us with a mediated access to that reality, immediate or direct access is therefore denied—in Kantian fashion—to ―the things themselves,‖ due to the constraints of our ―cognitive architecture‖ (we might be agnostic as to whether unmediated access to ‗reality‘ is possible though non-rational or supra- or para-rational means, such as that found in the ‗cognitive‘ experiential claims of apophatic mysticism, including arguments for ‗pure consciousness events‘ generated from several religio-philosophical worldviews). This Cognitive Pluralism is also compatible with Idealist and Pragmatist arguments in the history of philosophy in which everything about the mind cannot be understood in non-mental(ist) terms, that is, without recourse to a non-naturalist vocabulary of consciousness, intentionality, and normativity. This should suffice by way of dampening the routine or reflexive enthusiasm accorded Lakoff and Johnson‘s conceptual theory of metaphor, deflating its more extravagant philosophical premises and grandiose claims or speculations. All the same, we can admit their salutory role in disturbing the comparative philosophical slumber with regard to the systematic study and appreciation of metaphor. Taking a cue from Elisabeth Camp‘s work, we should strive to objectively assess and learn from the various theories of metaphor, be they the handiwork of cognitive scientists, philosophers, literary theorist, or aestheticians, making the presumption that each of these theories may have something to teach us, some insight from which we might benefit, thereby sublimating our academically cultivated agonistic drive to prematurely parade the theoretical superiority of any one theory at the price of neglect or trivialization of its competitors. Even a cursory familiarity with the literature on metaphor should convince one that only an epistemic immodesty, intellectual hubris, and unbounded ambition, can motivate the desire to impatiently seek theoretical sovereignty over the vast and rich territory that is the study of metaphor.

23

Finally, if it is true, as Steven L. Winter has written, that ―lawyers and mainstream legal theorists generally take a dim view of metaphor‖ (Winter 2008: 263), we can safely conclude that this collective judgment is misguided. Within legal theory, Winter (2001) was among the first to seriously entertain the cognitive science literature on metaphor. Nonetheless, along with Patterson (2003), we should be wary of the philosophical naïveté evidenced in his pioneering exploration of fairly uncharted terrain for legal theory (and be disappointed in his subsequent failure to engage any of the philosophical critiques of the cognitive science literature that continues to enchant him). Notes to Part 2:

[1] For one of several helpful surveys and introductions, see Bob Hale and Crispin Wright, eds., A Companion to Philosophy of Language. Malden, MA: Blackwell, 1997. On ―pragmatics,‖ see the chapter by Charles Travis, pp. 87-107. For a helpful introduction to the various kinds of semantic approaches to metaphor, see Josef Stern‘s ―Metaphor, Semantics, and Context,‖ in Raymond W. Gibbs, Jr., ed., The Cambridge Handbook of Metaphor and Thought. Cambridge, UK: Cambridge University Press, 2008: 262-279. [2] Philosophical and ethical issues are also closer to the surface in the social sciences to the extent that ―powerful material interests or value systems‖ found in the surrounding society are actively engaged and inextricably tied otherwise ―academic‖ arguments and controversies (Ziman 2000), even if both the natural and social sciences ―belong to the same culture, and operate institutionally under the same ethos‖ (109), and not neglecting the fact that post-academic natural scientists are prone to a proprietary attitude toward research findings, for ―the ‗context of application‘ is largely determined by the material interests of bodies outside of science‖ (177), research communities everywhere under the giant pressed thumbs of policy and profit. [3] For an excellent review of Stern‘s book, see David Hills‘ piece in Philosophical Review 111 (3), July 2002: 473-478. See too the expanded version (October 31, 2006a) of his comments at the APA‘s ―Author Meets Critic Session‖ on Stern‘s book (January 2004), found on his webpage: http://www.stanford.edu/~dhills/APA_Stern.pdf. Elisabeth Camp has a critical discussion of Stern‘s Metaphor in Context (2000) in Noûs, 39: 4 (2005): 715–731. Stern‘s contribution to the Gibbs volume (2008) can be read in part as a reply to criticisms of his earlier argument by philosophers like Camp. [4] Max Black‘s position here needs to be qualified, for while he argues against a focus on a conventional truth-value analysis of metaphorical sentences, he is no less concerned with questions of truth-of-a-kind, hence his concern to ―do justice to the cognitive, informative, and ontologically illuminating aspects of strong metaphors,‖ for metaphors ―can, and sometimes do, generate insight about ‗how things are‘ in reality.‖ See his essay, ―More About Metaphor,‖ in Andrew Ortony, ed., Metaphor and Thought. Cambridge, UK: Cambridge University Press, 2nd ed., 1993 (Black‘s essay first appeared in the 1979 edition). [5] As Patti Nogales explains, for Davidson ―the metaphorical is a matter neither of meaning nor of language but one of effect. Using terminology from Austin‘s speech act theory, Davidson‘s claim can be translated into a statement that metaphoricity is a matter of illocutionary force.‖ See Nogales‘ book, Metaphorically Speaking. Stanford, CA: CSLI (Center for the Study of Language and Information) Publications, 1999: 114-115. Nogales makes quick work of the explanation that metaphor is a matter of illocutionary

24

force, among several reasons, we note the simple fact that illocutionary force is defined in relation to the speaker and speaker‘s intention and metaphoricity, as is widely appreciated, is relatively independent of the speaker and speaker‘s attention.

[6] Please see this recent post from Ratio Juris for a sample of the relevant literature: ―Swimming Against the Current: Mind is a Mind is a Mind is a Mind…and Not a Brain:‖ http://ratiojuris.blogspot.com/2011/03/swimming-against-current-mind-is-mind.html . [7] Even the celebrated Cambridge physicist, Stephen Hawking, after reflecting upon Kurt Gödel‘s famous incompleteness theorem of 1931, has recanted his views on the possibility of one day attaining a naturalistic TOE. Rescher comes to this conclusion by way of a different route, one traversed in the history of philosophy: ―The fatal flaw of any purported explanatory theory of everything arises in connection with the ancient paradox of reflectivity and self-substantiation. How can any theory adequately substantiate itself? Quis custodiet ipsos custodes? What are we to make of the individual—or the doctrine—that claims, ‗I stand ready to vouch for myself?‘ And how can such self-substantiation be made effective? All the old difficulties of reflexivity and self-reference come to the fore here. No painter can paint a comprehensive picture of a setting that includes this picture itself. And no more, it would seem, can a theorist expound an explanatory account of nature that claims to account satisfactorily for that account itself. For in so far as that account draws on itself, this very circumstance undermines its validity.‖ See Rescher‘s Nature and Understanding: The Metaphysics and Methodology of Science (2000): 73-91. References & Further Reading:

Alexander, Larry and Emily Sherwin. Demystifying Legal Reasoning. Cambridge, UK: Cambridge University Press, 2008.

Atiyah, P.S. and R.S. Summers, Form and Substance in Anglo-American Law. Oxford, UK: Clarendon Press, 1987.

Baggini, Julian and Peter S. Fosl, The Philosopher’s Toolkit: A Compendium of Philosophical Concepts and Methods. Malden, MA: Blackwell, 2003.

Bartha, Paul. By Parallel Reasoning: The Construction and Evaluation of Analogical Arguments. New York: Oxford University Press, 2010.

Bennett, M.R. and P.M.S. Hacker. Philosophical Foundations of Neuroscience. Malden, MA: Blackwell, 2003.

Bennett, Maxwell, Daniel Dennett, Peter Hacker, John Searle, and Daniel Robinson. Neuroscience and Philosophy: Brain, Mind and Language. New York: Columbia University Press, 2007.

Benson, Peter, ed., The Theory of Contract Law: New Essays. Cambridge, UK: Cambridge University Press, 2001.

Black, Max. Models and Metaphors. Ithaca, MY: Cornell University Press, 1962.

Black, Max. ―More about metaphor,‖ in Andrew Ortony, ed. Metaphor and Thought. New York: Cambridge University Press, 2nd ed., 1993: 19-41.

Brewer, Scott. ―Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy,‖ Harvard Law Review, 109 (March 1996), pp. 923-1027.

25

Brown, Theodore L. Making Truth: Metaphor in Science. Urbana, IL: University of Illinois Press, 2003.

Camp, Elisabeth. ―Joseph Stern, Metaphor in Context (2000),‖ Noûs, 39: 4 (2005): 715–731. Available: http://www.sas.upenn.edu/~campe/Papers/Camp.SternMICNous.pdf

Camp, Elisabeth. ―Metaphor in the Mind: The Cognition of Metaphor,‖ Philosophy Compass, 1/2 (2006a): 154-170. Available: http://www.sas.upenn.edu/~campe/Papers/Camp.MetinMind.pdf

Camp, Elisabeth. ―Metaphor and That Certain ‗Je Ne Sais Quoi,‘‖ Philosophical Studies (2006b): 1-25. Available: http://www.sas.upenn.edu/~campe/Papers/Camp.JeNeSais.pdf

Camp, Elisabeth. ―Metaphor,‖ in Louise Cummings, ed. The Pragmatics Encyclopedia. New York: Routledge, 2010: 264-266. Available: http://www.sas.upenn.edu/~campe/Papers/Camp.RoutledgeMetaphor.pdf

Descombes, Vincent (Stephen Adam Schwartz, tr.). The Mind’s Provisions: A Critique of Cognitivism. Princeton, NJ: Princeton University Press, 2001.

Duxbury, Neil. The Nature and Authority of Precedent. Cambridge, UK: Cambridge University Press, 2008.

Eisenberg, Melvin Aron. The Nature of the Common Law. Cambridge, MA: Harvard University Press, 1988.

Elster, Jon. Ulysses and the Sirens: Studies in Rationality and Irrationality. Cambridge, UK: Cambridge University Press, revised ed., 1984.

Elster, Jon. Ulysses Unbound. Cambridge, UK: Cambridge University Press, 2000.

Fauconnier, Gilles and Mark Turner. The Way We Think: Conceptual Blending and the Mind’s Hidden Complexities. New York: Basic Books, 2002.

Finkelstein, David H. Expression and the Inner. Cambridge, MA: Harvard University Press, 2003.

Fuller, Steve. The Philosophy of Science and Technology Studies. New York, NY: Routledge, 2006.

Gentner, Dedre, Keith J. Holyoak and Boicho N. Kokinov, eds. The Analogical Mind: Perspectives from Cognitive Science. Cambridge, MA: MIT Press, 2001.

Gibbs, Raymond W., Jr. ed. The Cambridge Handbook of Metaphor and Thought. Cambridge, UK: Cambridge University Press, 2008.

Grice, J. Paul. ―Logic and Conversation,‖ P. Cole and J. Morgan, eds. Syntax and Semantics, Vol. 3: Speech Acts. New York: Academic Press, 1975: 41-75.

Guttenplan, Samuel. Objects of Metaphor. New York: Oxford University Press, 2005.

Hale, Bob and Crispin Wright, eds. A Companion to the Philosophy of Language. Malden, MA: Blackwell, 1997.

Hills, David J. Review of Metaphor in Context (2000) by Josef Stern. Philosophical Review 111 (3) July 2002: 473-478.

Hills, David J. APA Piece: Joseph Stern‘s Metaphor in Context (2000), October 31, 2006a. Available: http://www.stanford.edu/~dhills/APA_Stern.pdf

Hills, David J. ―Aptness and Truth in Verbal Metaphor,‖ Philosophical Topics, 25 (1) Spring 1997: 117-153. Corrected version: October 31, 2006b. Available: http://www.stanford.edu/~dhills/Aptness_and_Truth.pdf

26

Holyoak, Keith J. and Paul Thagard. Mental Leaps: Analogy in Creative Thought. Cambridge, MA: MIT Press, 1995.

Horst, Steven. Beyond Reduction: Philosophy of Mind and Post-Reductionist Philosophy of Science. Oxford, UK: Oxford University Press, 2007.

Hutto, Daniel D. The Presence of Mind. Amsterdam: John Benjamins, 1999.

Hutto, Daniel D. Beyond Physicalism. Amsterdam: John Benjamins, 2000.

Hutto, Daniel D. Folk Psychological Narratives: The Sociocultural Basis of Understanding. Cambridge, MA: MIT Press, 2008.

Ladyman, James and Don Ross (et al.). Every Thing Must Go: Metaphysics Naturalized. New York: Oxford University Press, 2007.

Lakoff, George and Mark Johnson. Metaphors We Live By. Chicago, IL: University of Chicago Press, 1980.

Lakoff, George and Mark Johnson. Philosophy in the Flesh: The Embodied Mind and Its Challenge to Western Thought. New York: Basic Books, 1999.

Lamond, Grant. ―Precedent and Analogy in Legal Reasoning.‖ The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/fall2008/entries/legal-reas-prec/ .

Leary, David E., ed. Metaphors in the History of Psychology. Cambridge, UK: Cambridge University Press, 1990.

Luntley, Michael. Contemporary Philosophy of Thought: Truth, World, Content. Malden, MA: Blackwell, 1999.

Lynch, Michael P. Truth in Context: An Essay on Pluralism and Objectivity. Cambridge, MA: MIT Press, 1998.

MacCormick, Neil. Rhetoric and the Rule of Law: A Theory of Legal Reasoning. New York: Oxford University Press, 2005.

McCulloch, Gregory. The Life of the Mind: An essay on phenomenological externalism. London: Routledge, 2003.

Nogales, Patti D. Metaphorically Speaking. Stanford, CA: Center for the Study of Language and Information, 1999.

Ortony, Andrew, ed. Metaphor and Thought. New York: Cambridge University Press, 2nd ed., 1993.

Pardo, Michael S. and Dennis Patterson, ―Minds, Brains, and Norms‖ (July 10, 2009). Neuroethics, Forthcoming. University of Alabama Public Law Research Paper. Available: http://ssrn.com/abstract=1432476

Pardo, Michael S. and Dennis Patterson. ―Philosophical Foundations of Law and Neuroscience‖ (February 6, 2009). University of Illinois Law Review, 2010. University of Alabama Public Law Research Paper No. 1338763. Available: http://ssrn.com/abstract=1338763.

Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory. Malden, MA: Blackwell, 1996.

Patterson, Dennis. ―Fashionable Nonsense,‖ Texas Law Review, Vol. 81, 2003; Princeton Law and Public Affairs Working Paper No. 02-4. Available: http://ssrn.com/abstract=347281

Putnam, Hilary. The Threefold Cord: Mind, Body, and World. New York: Columbia University Press, 1999.

27

Reimer, Marga and Elisabeth Camp. ―Metaphor,‖ in Ernest Lepore and Barry C. Smith, eds. The Oxford Handbook of Philosophy of Language. New York: Oxford University Press, 2006: 845-863. Available: http://www.sas.upenn.edu/~campe/Papers/Reimer&CampOUPMetaphor.pdf

Rescher, Nicholas. Nature and Understanding: The Metaphysics and Method of Science. Oxford, UK: Oxford University Press, 2000.

Robinson, Daniel N. Consciousness and Mental Life. New York: Columbia University Press, 2008.

Stern, Josef. Metaphor in Context. Cambridge, MA: MIT Press, 2000.

Sunstein, Cass R. ―Analogical Reasoning,‖ in Legal Reasoning and Political Conflict. New York: Oxford University Press, 1996.

Thagard, Paul. ―Being Interdisciplinary: Trading Zones in Cognitive Science,‖ in S.J. Derry, C.D. Schunn, and M.A. Gernbacher, eds. Interdisciplinary Collaboration: An Emerging Cognitive Science. Mahwah, NJ: Erlbaum, 2005: 317-339. Available: http://cogsci.uwaterloo.ca/Articles/Pages/interdisciplinary.pdf

Thagard, Paul. ―Why Cognitive Science Needs Philosophy and Vice Versa,‖ Topics in Cognitive Science, 1 (2009): 237-254. Available: http://cogsci.uwaterloo.ca/Articles/whycogsci.2009.pdf

Thomas, E.W. The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles. Cambridge, UK: Cambridge University Press, 2005.

Travis, Charles. ―Pragmatics,‖ in Bob Hale and Crispin Wright, eds. A Companion to the Philosophy of Language. Malden, MA: Blackwell, 1997: 87-107.

Travis, Charles. Unshadowed Thought: Representation in Thought and Language. Cambridge, MA: Harvard University Press, 2000.

Velmans, Max. Understanding Consciousness. London: Routledge, 2000.

Wearing, Catherine. Review of Samuel Guttenplan‘s Objects of Metaphor (2005), Notre Dame Philosophical Reviews, 2006/09/04. Available: http://ndpr.nd.edu/review.cfm?id=7504

Wedgwood, Ralph. The Nature of Normativity. New York: Oxford University Press, 2007.

Winter, Steven L. A Clearing in the Forest: Law, Life, and Mind. Chicago, IL: University of Chicago Press, 2001.

Winter, Steven L. ―What Is the ‗Color‘ of Law?‖ in Raymond W. Gibbs, Jr. ed. The Cambridge Handbook of Metaphor and Thought. Cambridge, UK: Cambridge University Press, 2008: 363-379.

Ziman, John. Real Science: What it is, and what it means. Cambridge, UK: Cambridge University Press, 2000.