Metaphor and moral plausibility in legal judgment: constructing culpability on fragile foundations?

Abstract

The struggle for justice is commonly articulated in literature and drama through metaphors of physical encumbrance (cramped, constraining conditions, being entangled and mired) and escape (e.g. to open landscapes and a view of the horizon and sky). What is less well known or observed is that a comparable metaphorical opposition of encumbrance/escape plays an important role in legal language too. This article traces the appearance of this metaphor across some key moments in English criminal law in which injustice is conceptualised metaphorically in terms of being held up, kept down or back, impeded, constrained or contained, and that achieving a just outcome necessitates shaking off the encumbrance and getting free. The article argues that analysis of this metaphor establishes an important intersection between literature and law. Following a discussion of the relevant general themes, the article offers a close reading of a number of appellate judgments on a range of criminal legal issues. Some of these judgments are very well known and concern questions such as how courts should set standards of culpability (e.g. on dishonesty and recklessness) and assess a defendant’s responsibility (e.g. the availability of ‘excusatory’ defences to murder). We seek to throw light on the way that the metaphors of encumbrance and escape work (or in some cases fail to work) in legal language, and thereby to advance understanding of the moral intelligibility, persuasiveness and longer-term prospects of judicial rulings as authorities.

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ORCID for David Gurnham: orcid.org/0000-0002-6807-7587

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