Metaphors persuade because metaphoric thinking structures and influences the way that an audience reads and reacts to a legal argument. If the audience accepts the metaphor that copyrights constitute “property” like real estate, for example, it will transfer inferences and rules from the former to the latter, and accept that like real estate, copyrights can be bought and sold, divided and leased, and even protected against trespass.

We Absorb New Concepts Through Metaphors

Metaphor is most obviously necessary to understand new and unfamiliar concepts such as technological advances like the Internet. For example, you receive electronic “mail” on your “desktop”; because of this image, it seems appropriate to treat a legal issue concerning the delivery of an e-mail as you would a letter written on paper, deposited in a mailbox, and delivered to your physical desk. You also “browse” for information as you might in a bookstore, and you set “bookmarks” as you might mark a page in an actual book. Depending on the results they want, lawyers characterize Internet providers of information as publishers or distributors; or as newspapers, radio or television stations, and even bulletin boards. The choice of metaphor determines legal consequences.1

Conceptual Metaphors Are Hidden But Potent

One specific type of metaphor—conceptual metaphor—is especially effective for understanding the often-abstract concepts at issue in legal arguments. These metaphors are not the kinds of vivid images or attention-getting comparisons that most people envision when they think about metaphors, such as “he cowered at the brink of an abyss of criticism,” or “her career has become a train wreck.” Instead, conceptual metaphors lie mostly beneath the surface, influencing audiences more subtly and pervasively.

Conceptual metaphors’ quiet presence supports its persuasive power, in part because it goes unquestioned but also because these metaphors are unconsciously and automatically acquired simply through living in the world. According to cognitive metaphor theorists, conceptual metaphors grow out of our bodily experiences, the images we see in the world, and the stories we are told. They are learned so gradually and embedded so deeply that their application to a new experience or concept will appear seamless and unremarkable.2

The persuasive potential of conceptual metaphors made political news several years back when metaphor theorist George Lakoff suggested that progressives should frame their policies using what he considered to be a more favorable underlying image of the government as a nurturing parent. This, he claimed, would help progressives win favor and more votes than those who projected an image of the government as a strict father.3 Whatever the merits of Lakoff’s political advice, the ability to favorably “re-frame” arguments by shifting the underlying image holds promise for lawyers.

For example, the lawyer who wishes to argue that corporate political advertising should be protected by the First Amendment relies on the metaphor that a corporation is a person and is thus able to portray corporate advertising as protected expression, no different from the speech of individuals. This metaphor is barely noticed; most of us are so used to “seeing” the corporation “as a person” that it does not even occur to us to question the characterization of the corporation as a speaker similar to other protected speakers. As long as it goes unnoticed, the metaphor is at its most persuasive; the consequences of treating the corporation as a person will be accepted without argument. If the opposing lawyer can successfully persuade an audience that the corporation should be viewed not as a speaker but instead as a manufacturer of images and products, then the question of its First Amendment protection is at least open for discussion.4

Post from: The Complete Lawyer

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