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Article Excerpt
The scales of justice is one of the most enduring metaphors in law. The image of Justice as a blindfolded woman holding a sword in one hand and a scale in the other has existed for more than 2000 years, appearing across continents and cultures (Curtis & Resnik, 1987, p. 1729). Cesare Ripa, a sixteenth century Italian iconographer, notes that the scale serves as 'a metaphor for justice, which sees that each man receives that which is due him, no more and no less' (cited in Curtis & Resnik, 1987, p. 1749). Like archetypal metaphors that associate light with good and darkness with evil, the scale as a metaphor for justice equates balance with fairness and imbalance with unfairness and mistreatment. Osborn and Ehninger (1962) note that archetypal metaphors 'grow out of situations that move men deeply and which, consequently, exert strong control over how they think and feel' (p. 229). In American jurisprudence, the appeal for balance resonates strongly with the American ideals that all people are created equal and are guaranteed equal treatment under the law.
Perhaps nowhere is the need for balance more important than when a jury faces a death sentence decision. In capital murder cases, achieving a balance is a matter of life and death for the convicted defendant. The US Supreme Court's rulings on the constitutionality of the death penalty require jurors to use a 'balancing test' as a means for determining whether a convicted defendant deserves to be sentenced to death. During the penalty phase of a capital murder trial, the defendant's lawyer presents jurors with mitigating evidence to argue against a death sentence, while the prosecution presents aggravating factors that support a sentence of death. Jurors then balance the aggravating factors against those that mitigate to render a judgment about whether the defendant lives or dies (Logan, 1999/2000).
In 1991, in Payne v. Tennessee, the US Supreme Court issued a ruling that dramatically changed the weights that could be used in this balancing test to such an extent that this paper argues the Court created a new scale of justice for death penalty decisions--one that is unfair to both victims of crime and convicted defendants. The powerful appeal of the balance metaphor, however, makes these consequences very difficult to see. In Payne, the Court ruled that during the penalty phase of a capital murder trial, testimony about the impact of the crime on victims and their families does not violate the constitutional rights of defendants. This decision overturned the Court's two recent holdings, Booth v. Maryland (1987) and South Carolina v. Gathers (1989) on the use of victim impact statements. In Booth, the Court declared that the use of victim impact statements risked introducing arbitrary evidence about the victim into a jury's death sentence decision and therefore violated a defendant's Eighth Amendment right not to be subjected to cruel and unusual punishment. In Gathers, the Court extended its ruling to prohibit statements made by the prosecutor about the victim's characteristics. However, just two years later in Payne, the Court ruled that the defendant's right to be treated as a unique individual must be balanced by the victim's right also to be presented as a unique individual to the jury. In fact, the Court reasoned that a jury making a death determination could not reach a just sentence without taking characteristics of the victim into account because these characteristics speak directly to the harm inflicted by the convicted defendant.
For a number of reasons, these three US Supreme Court cases offer an important opportunity to analyze the role of metaphor in the Court's legal reasoning and decision-making process. First, the Court's ruling in Payne relies predominantly on the dissenting opinions in the two cases it overturns. Those dissenting opinions evoke a scale that balances the victim against the defendant, which becomes the foundation of the Court's new ruling on victim impact statements. Therefore, an examination of the development of this metaphor in the dissenting opinions can yield insights about the persuasive power of metaphor in Court decision making, especially when the Court overrules its precedents.
In addition, analysis of the balanced scale metaphor in these opinions can reveal a great deal about the Court's ideological commitments by facilitating a close examination of what the scale of justice measures, how those measurements are determined, and who matters when ensuring that a balance is made. In other words, the scale balances power. Metaphorical analysis not only offers a means for examining how the Court defines and measures that power but also yields insights about the Court's sense of its own power as well. Yet the metaphor of the balanced scale is so deeply embedded in notions of fairness and justice that it makes these ideological positions difficult--and crucial--to discern. Moreover, the Court's assumptions about a balanced legal system have important consequences not only for death penalty jurisprudence, but also for the treatment of defendants and victims in any criminal case. Indeed, this paper asserts that a 'balanced scale' of justice makes it difficult to see how unfair the ideal of 'balance' is for both victims and defendants.
Finally, and perhaps most importantly, analysis of the balanced scale metaphor in these three US Supreme Court cases provides a means for critiquing the liabilities of achieving 'balance' as a legal goal, especially in matters of life and death. A close reading can disrupt the power of the metaphor by calling into question the assumptions it puts into place. By disrupting the power of the metaphor, such questioning can also facilitate the invention of alternative metaphors for justice that may better serve the interests of both victims and defendants. Therefore, this analysis can demonstrate the exceedingly practical role of rhetorical criticism as a means for enhancing legal decision making. In doing so, it illustrates that metaphors are the very tools needed to critique metaphorical thinking.
The paper first discusses the persuasive power of metaphor and methods for metaphorical analysis. Next, I examine the use of the balanced scales metaphor in victims' rights rhetoric to provide a foundation for analyzing the rhetorical shifts in the Court's opinions from 1986 to 1991. The third section of this paper analyzes the majority and dissenting arguments in Booth to examine the differing scales of justice that implicitly ground these opinions. In the fourth section, the paper concentrates on Justice O'Connor's dissent in Gathers, which begins to identify specific weights that should be considered when balancing defendants against victims. Fifth, the paper analyzes the Court's ruling in Payne, which establishes as law both the scale of justice constructed by the dissenters in Booth and the means for determining its balance detailed by O'Connor in Gathers. The conclusion identifies the liabilities of the Court's new scale, offers an ahernative metaphor as a means for recognizing those limitations, and highlights the importance of metaphorical analysis in legal decision making.
Metaphorical Analysis
In their classic work, Lakoff and Johnson (1980) assert that metaphor is a fundamental conceptual tool that structures everyday thought and action. Indeed, they stress that the use of metaphors is so ordinary and normal that 'we are hardly ever conscious of' using them (p. 5). Lakoff and Johnson's example, 'argument is war', illustrates that certain metaphors can seem to provide an accurate description of relationships (i.e., the relationship between war and argument) and in doing so, naturalize that relationship to such an extent that that it is difficult to think of arguments as anything but war-like. As Ricoeur (1977) stresses, metaphor's 'most intimate abode is neither name, nor sentence, nor even discourse, but the copula of the verb to be' (p. 7). Metaphors tell us what is.
By telling us what is, metaphors implicitly shape perspective. In his 'Four Master Tropes' paper, Burke (1969) asserts that one can substitute the word 'perspective' as the literal application of metaphor because 'metaphor is a device for seeing something in terms of something else' (p. 503, emphasis in original). As such, metaphors pose a paradox. They are a 'way of seeing something in terms of something else', which can illuminate understanding and enhance vision. Yet metaphors are also a way of not seeing. This is to say that by illuminating one perspective, metaphors can make us blind to other points of view. Jamieson (1980) notes that archetypal metaphors 'simultaneously create inventional possibilities and impose inventional constraints' (p.54). This does not mean that the use of metaphors is by definition problematic; it means that their users and their critics should not forget that metaphors both reveal and conceal....
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