II. THE MEANING OF A METAPHOR

 

II. THE MEANING OF A METAPHOR

Much of the difficulty, as regards legal terminology, arises from the fact that many of our words were originally applicable only to physical things; so that their use in connection with legal relations is, strictly speaking, figurative or fictional. n61

A. Metaphors of Thought

The law is committed to the use of reason. New discoveries about the nature of reason, therefore, have a natural and necessary place in legal scholarship. To fail to recognize them ultimately would be to deny the role of reason in law.

In ordinary legal discourse, we treat the term "standing" as a legal term of art — a label for a concept or body of doctrine. But much of what goes on in standing can be understood in terms of metaphors and their relation to human cognition. The key to understanding — and to  [*1383]  unlocking the barrier of standing law — lies in an appreciation that the term "standing" is a metaphor. n62 Its origin no doubt comes from the physical practices of the courtroom: A court will only hear a participant if he or she is standing. "Standing" is therefore a natural metaphor for when a court will consider a litigant's claim; n63 the metaphor is motivated by our experience. n64

The power of a metaphor is that it colors and controls our subsequent thinking about its subject. "This is so, in part, because the concepts by which language expresses an otherwise unrepresentable ... reality are themselves generalizations importing preconceptions about the reality to be expressed." n65 Recent scholarship on human cognition suggests that metaphor is powerful because it is a fundamental

component of human reasoning. n66 Metaphor enables us to see systems of analogies not previously recognized. n67 It allows us to use a source domain  [*1384]  with an existing conceptual structure to understand and structure another conceptual domain. n68 That is, the structure or attributes of the source domain are "carried over" n69 and applied to the target domain.

This process of metaphoric projection is essentially the same as the way in which we use models. "[M]odels ... too, bring about a wedding of disparate subjects, by a distinctive operation of transfer of implications of relatively well-organized cognitive fields." n70 A model, thus, is another way of describing the source domain of a metaphor or an analogy. Recent scholarship indicates that these reasoning processes are cognitively and epistemologically central.

There is a developing body of work on human cognition which suggests that human thought is grounded in physical experience and extended by means of idealized cognitive models and metaphoric projections. n71 According to this theory, basic preconceptual experiences (or schema) provide the organizing principles for the construction of conceptual models. n72 Examples include link schema (such as the umbilical cord, hand holding); container schema (we experience our  [*1385]  bodies as having an in-out orientation); part-whole schema (we experience directly the relationships between our hands and the rest of the body); n73 and source-path-goal schema (from earliest childhood, we move from one place to another to obtain desired objects). n74 The human capacity to conceptualize allows us to project these structures and to use them to organize other aspects of our experience. To take a simple example, we conceptualize purposes in terms of the source-path-goal schema; this gives rise to systematic source-path-goal metaphors that we use in our thinking about purposes. We can therefore perceive our purposive efforts as going a long way toward our goal, conceptualize something or somebody that interferes with our purposes as an obstacle that gets in our way, and describe some of our failings in terms of being sidetracked. n75

An important part of this theory is premised on the phenomenon of prototype effects. In the classical theory of categorization, all objects having the same relevant criteria are classed together. In this view, no category member is any more "representative" of a category than another. Empirical work in psychology, however, has shown that people within cultures, and sometimes across cultures, n76 pick out the same "prototypes" or best examples of categories. Thus, robins and sparrows are typically identified as prototypical birds; owls and eagles, although birds, are not viewed as prototypical. n77

What explains this phenomenon is the notion that categories have an internal structure which produces these perceptions of best examples. The claim is that categories are structured by means of idealized cognitive models — culturally shared "theories" of how to organize some portion of our experience. These models may be organized in terms of image-schemata like the source-path-goal schema or in terms of a group of related propositions grounded in a physical/cultural experience. An example is the stereotypical conceptualization of "mother" by means of an idealized cognitive model that assumes natural childbirth by a woman who is married to the biological father, and who is also the primary nurturer and full-time caretaker of the child. Women who fit this idealized cognitive model are prototypical "mothers" and are referred to as such. But nonprototypical mothers are marked as such by the linguistic conventions resulting from this model: They are stepmothers, surrogate mothers, biological mothers, foster mothers, working mothers, or unwed  [*1386]  mothers. n78 Thus, the overall category of "mother" can be understood as a radial category — that is, a category defined by a central model extended by certain "conventionalized variants." n79

Because "prototypes act as cognitive reference points of various sorts and form the basis for inferences," n80 they tend to play an important role in reasoning about categories. Sometimes, we may not distinguish the variants from the prototype of the idealized cognitive model. An extreme example is when a child thinks that the teacher or daycare worker is the mother of the other children. In that case, we have a radical prototype effect in which the prototype overshadows the rest of the category. Other times, we simply fail to perceive the variants as examples of the same category; some might not see any of the nonprototypical mothers as real mothers. In that case, we have a reduction-to-prototype effect in which the category is reduced to the central case of the model, resulting in the exclusion of nonprototypical cases. One consequence of these extreme prototype effects n81 is that the variants may be left unexpressed by the linguistic conventions of the culture. Because they have no name, these variants become suppressed aspects of our social consciousness. Examples would be women who supply an egg to be planted in someone else's womb, legal guardians who do not provide nurturance (Auntie Mame), or transsexuals who had a child before their sex change operation.

B. "Standing" as Metaphor

To the reader unfamiliar with this new scholarship, this may seem either strange or far afield for an article about the law of standing. But by bringing to the surface the models and metaphors that animate standard legal thinking, we will be able to see and talk about both the history of standing and troublesome aspects of the doctrine in a new and enlightening way.

Metaphor is successful in structuring understanding — that is, metaphor is interactive and has ontological effect — because in organizing our  [*1387]  view of the target domain it both highlights similarities with the source domain and suppresses and hides dissimilarities, which become a species of epistemic "noise." n82 Metaphor can, thus, have as great a potential to mislead as to enlighten.

[W]hile metaphors can be abused in many different ways, the most serious and interesting danger is that a given metaphor or its allegorical extension may be transformed into myth.... [M]yth results when the mask, lens filter, or construing subject is mistaken for or equated with the subject construed. By suppressing those aspects of the principal subject which are not amenable to the subsidiary subject, or by allowing the subsidiary subject to exert an undetected influence on the principal subject, the difference between the two referents of the metaphorical sign focus tends to be lost altogether. The metaphor is turned into, not only a literal truth, but the literal truth about the principal subject in question. n83

The metaphor of "standing" is a myth that has become "the literal truth" and shaped — or misshaped — our thinking about adjudication. It has shaped our thinking about adjudication to conform to two separate "truths" embedded in the metaphor, and to think about them as one. The first is the "truth" of individualism: One stands alone; one stands up; one stands apart; one stands out; one stands head and shoulders above the crowd.

The metaphor of "standing" is thus the lens through which we view the question of who has rights and who may assert them. Through this lens we see only the disconnected individual in a fragmented society. But this perspective obscures the fact that individuals exist only as part of groups and larger communities of interest. And it obscures our ability to think about how best to protect and effectuate those interests in an interdependent world. In the metaphorically structured reality of  [*1388]  the law of standing, there are no forests and no ecosystems. There are only trees; and only the trees have "standing." n84

The second "truth" embodied in the metaphor is that the individual must have a particular kind of relationship to the court whose power he or she is seeking to invoke: A court will only consider what a party has to say if he or she is standing (read: has "standing"). This view colors our thinking because it focuses us on the relationship between a party's status and a generalized conception of legal process.

Modern standing law defines this relationship between the individual and the process in terms of a particular cognitive model: the private rights model. We structure this model by means of two metaphors premised on the source-path-goal schema: a causal source-path-goal metaphor and a remedial source-path-goal metaphor. We identify the subject matter of a lawsuit through the elements of the causal schema. n85 The defendant's act is the source, the causal chain is the path, and the plaintiff's injury is the goal. The remedial source-path-goal metaphor is virtually a mirror image of the causal one: The individual's injury is the source of a process that has as its goal an order from the court redressing that injury; the path that connects them is the plaintiff's proof that the acts of the defendant caused the injury. n86 The mirror image quality of these two source-path-goal metaphors gives rise to the conception of damages and other forms of legal redress as designed "to put the plaintiff back in the position he occupied" n87 (or as near as possible) before occurrence of the legal wrong.

The model just described is the idealized cognitive model of a private  [*1389]  cause of action. n88 The tripartite test of standing which focuses on injury, causation, and redressability is thus an extrapolation from the essential elements of the source-path-goal schema of the private rights model. This reductive legal test is a natural byproduct of the "standing" metaphor's ontological effect.

This analysis may seem reminiscent of the traditional view of the origins and functions of the law of standing that I referred to above. n89 What differentiates these perspectives is that the traditional view sees standing law as a rational deduction from objective historical practice. In contrast, I am suggesting that it is historically incorrect and, thus, can only be explained as a function of particular cognitive processes. My view is premised on the recognition that the use of a particular cognitive model has ontological effects in the real world. For example, the primacy of purpose or intent in the definition of widely disparate causes of action n90 is the result of a coherence prototype effect n91 arising from the  [*1390]  overlap of related cognitive models. Our use of the causal source-path-goal metaphor to conceptualize the subject matter of a lawsuit overlaps with our use of source-path-goal metaphors to structure our view of both purposes and causation. A cause of action is defined in terms of the confluence or intersection of these source-path-goal metaphors. In defining causes of action, we unconsciously experience purpose as prototypical because it is coherent — that is, it fits the entailments of all three uses of the schema.

Thus, we do not ordinarily define a cause of action in terms of the experience of the plaintiff (the source of the remedial source-path-goal metaphor). n92 Rather, we define it in terms of the purposive, causal aspects of defendant's behavior. This explains the Court's otherwise bizarre statement in Daniels v. Williams that "the word 'deprive' in the Due Process Clause connote[s] more than a negligent act...." n93 The victim, of course, experiences precisely the same physical deprivation whatever the defendant's mental state. Similarly, a bystander who simply observes the events would see exactly the same physical actions with exactly the same consequences for the victim regardless of the defendant's state of mind. But the Court, whose view of the scenario is necessarily mediated by cognitive processes, perceives a different and narrower reality. The Court then asserts that its perception is the product of a conventional linguistic expression (that is, "the word ...  [*1391]  connote[s]"). n94

There are analogous narrowing effects in the context of standing. When the metaphor of "standing" becomes the conduit of certain "truths," it structures our perception of the boundaries of the legal world in a way that is distorting. n95 The "standing" metaphor affects both how we perceive our past and what we receive from it in terms of available legal tools. n96 Viewed through the lens of "standing," adjudication was always about the settlement of private disputes; questions of public values are implicated only incidentally. But this was not always the case. At the time of the Framers, non-individualistic, group models of adjudication, like mandamus and informers' actions, had been designed to deal with public issues. n97 These public rights models were structured in terms of other schemata very much at odds with the modern conceptualization of standing. The "standing" metaphor, therefore, deprives us of a knowledge of our own history. As a result, we lose an understanding of what that history could say to us about our possibilities.

The "standing" metaphor also interferes with our practical ability to face the underlying substantive issues that confront us. When we focus in standing cases on what the metaphor makes us see, we miss some of the suppressed aspects of our reality. The law of standing is, thus, an example of the obfuscatory power of metaphor. n98 We focus on issues such as the role of prudence in standing law or the relationship between standing and the separation of powers, while other real and important issues in the cases remain hidden and largely unexamined. n99 In  [*1392]  a case like Lyons, the substantive issue left unexamined may be a matter of life or death.

In every standing case, the unexamined issues concern the nature of the right that society is being asked to recognize and the shape of the correlative remedy that it is willing to bestow. They concern the role of law in shaping a self-governing society. Viewed from this perspective, the question "who may sue?" is really a question of "what are rights and how may they best be effectuated?" n100 — a question at the heart of law. Standing obscures consideration and analysis of the underlying questions of rights and remedies, of policies and values, by imposing a single, unidimensional conceptual ordering of the process of adjudication. But, these questions in fact present disparate policy choices that a democratic society must make across an entire spectrum of vastly different problems of social organization.

Analytically, then, standing doctrine is neither a series of rules about when a court will reach the merits nor a shill for a decision on the merits. It is a determination that, regardless of the blinders we employ, necessarily entails considerations that go to the merits. It is not so much a question of the who or the when, n101 as it is inevitably a question of the what. Standing is a decision about the scope of and the policies governing rights and remedies in the underlying subject matter area. Its shape can therefore change from area to area: The question "who may sue?" will be answered differently depending on what they wish to sue about. It may be answered differently in a first amendment case than in an antitrust or tax case. In each, it is a question about how far the benefits of the particular law at issue extend, about the ability of those affected to assert their interests, and about what we gain and what  [*1393]  we lose when we encourage perception of and action upon shared interests. It is these important questions of policies and values that are obscured by the metaphoric individualist and process oriented approach to standing.

A determination of who has standing, moreover, is a determination about the way society is shaped and structured. In structuring and ordering the universe of legal relationships, standing law inevitably orders the way rights and other legal interests may be distributed. When we persist in seeing only the individual as a cognizable social unit, we limit also the recognizable interests that are available for our consideration either in adjudication or legislation. Thus, for example, there is no meaningful legal interest in a public report of Central Intelligence Agency appropriations because no individual can document a concrete injury as a result of the lack of knowledge about these appropriations. n102 But once a court has said that the citizen has suffered no injury, it will be difficult for the rest of society to see why it should be concerned about the issue at all. If no one is harmed, there seems little reason to devote time and energy in the legislative process to deal with what appears to be a nonproblem. Standing law thus becomes a sort of "harmless error" doctrine for the political process. In this way too, our perception of the who affects our understanding of the what. n103

The question of standing, thus, is also a question about the nature of our relationships in society and our ability to sustain our community. It divides us from one another by reinforcing our individual and conflicting self-interests and by submerging our common stake in the community. It alienates us so that we do not control our government or, ultimately, our fate.

I have stated my thesis. But the test of a theory is in its application. I will develop these ideas in the nitty-gritty of legal doctrine and real cases. We begin with our history.