It was fun to watch the audience of mostly first-year students during Mark Johnson's presentation. Seven weeks into their first semester of law school, this was clearly the most fun they had had so far. And it was easy to see why: law school takes place "from the neck up," so to speak. It is so relentlessly about reason abstracted from the ordinary interests, passions, and other embodied considerations of everyday (not to mention college) life. This deracination of law is ritualized metaphorically in the black robes that enshroud our judges' bodies as if to say, "See, it is all from the neck up." And that is one of the most wonderful things about the work that Mark Johnson and George Lakoff have been doing: it reconnects us to ourselves in our embodied wholeness-as not just minds, but as embodied human beings.
This classic Western opposition between mind and body-and its correlates, such as reason and the passion, logic and rhetoric, etc.-is mirrored in twentieth-century legal theory's absorption with the problem of meaningful constraints on judicial decisionmaking and the consequent danger of unchecked subjectivity. The fear, conventionally identified with the Supreme Court's infamous decision in Lochner v. New York, is that without constraints, judges and other powerful legal actors will be free to impose their personal values. On this view, law operates as law only if there is some disciplining, external constraint on the discretion of the legal decisionmaker. In Frank Michelman's words, law is "an autonomous force" that provides "an external untouchable rule of the game." This constraint may be an objective quality of the legal materials-that is, of the facts and holdings of the cases-or a higherorder reason grounded in general concepts or rules, the intent of the Framers, political theory, moral philosophy, or as is current today, the utilitarian rationality of microeconomics and rational choice theory. But, in each of these cases, the structure of legal reasoning is essentially the same: it strives to reduce a complex problem to a policy, principle, propositional rule, or some other set of necessary and sufficient criteria. In theory, these definitional criteria will allow professionals to delineate legal categories with greater precision, draw appropriate distinctions, and then make correct decisions.
Winter, Steven L.
Mercer Law Review: Vol. 58:
3, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol58/iss3/5