Bill Long 12/21/04
The Language of Law
We saw in the previous essay that ancient (and modern) rhetoric has many technical terms for vivid description of some aspect of the world. We are sensual creatures, and we starve if the senses are not fed. What I am interested in here is the way that the common law tradition has bequeathed pictures to us to help us visualize concepts that actually are quite important in law. In this and the next mini-essay I will explore about 9 of these pictures. I will begin by differentiating what I do from the work of another scholar who speaks about legal metaphors.
About 10 years ago Professor Bernard Hibbits, of the University of Pittsburgh Law School, wrote an article entitled "Making Sense of Metaphors," in which he argued that legal language is increasingly dominated by "aural" metaphors at the expense of "visual" metaphors. Hibbits argues that American jurisprudence formerly had a preference for visual metaphors (such as "penumbras" or "bright-line" distinctions) but that, under the influence of modern linguistic philosophers as well as pressures/accommodations of groups whose "voice" has long been ignored or silenced, we are moving to a more "aural" culture in legalspeak. He may be correct, but what he is about is not my concern. I would locate our use of visual images deeply in our nature as sensual beings; I am interested in giving examples of these pictures so that our visual imaginations are enriched and even fired.
We recall from last essay that hypotyposis is derived from a Greek word meaning a "sketch" or "outline" and may be defined as a "vivid description of a scene," or, in Peacham's felicitous phrase, "painted in tables rather than expressed in words." Let me paint a few legal phrases in tables for you.
1. "Laughing Heirs." This is a term from trusts and estates law and refers to relatives beyond the fourth or fifth degree, who normally do not know the deceased but may, under various statutes of intestate succession, receive money from an intestate's estate. They are "laughing heirs" because they do not mourn the deceased at all; rather they laugh all the way to the bank. Because of the problem with laughing heirs, some states are even considering legislation that will permit remote heirs (as they are humorlessly called) to inherit, in the case of an intestate's death, only if they can show by "clear and convincing evidence" a "cordial" relationship with the decedent. In the meantime, they are still laughing.
2. "Locus Poenitentiae." At first glance this doesn't look visual, so to speak. This is the Latin phrase for "place of repentance" and has a utility in both criminal and civil law. It really means a time to change your mind or, in more cool student jargon, a "chickening out zone." Its oldest signification seems to be in contract law. In an auction the locus poenitentiae is that time, sometimes only a split second, between the time of the last bid and the fall of the hammer. In that split second, the bid can possibly be rescinded (if the auction rules permit) or a new bid can be placed. You can almost see in your mind's eye the auctioneer lifting the mallet, standing poised as he says, "Going once, going twice..." In that moment your whole life may flash before your mind. Do I really want this thing? Can I afford it? I must decide instantly. Do I have it in me to decide? Oh, well, here goes!! And then you must leave your safe place, your locus poenitentiae and you launch into the world of choice. So, in one sense, locus poenitentiae captures an almost Edenic world, a world before choice and sin and complexity and responsibility entered into the world. Some people would like to make their entire lives a kind of huge locus poenitentiae, and stretch out indecision forever.
The term also has a meaning in the law of criminal conspiracy. A conspiracy is a joint venture that only becomes criminal when an overt act is made by one or more of the conspirators to commit a crime. As prosecutors examine criminal responsibility of conspirators, they must ask themselves the question whether any of the participants "withdrew" (the punchless legal phrase) from it before consummation. Another way of putting this was whether any entered into a locus poenitentiae in which they changed their mind and renounced the scheme. When is it too late to enter the locus poenitentiae? How do you do it? In any case, the locus poenitentiae in the law of conspiracy is almost like a biblical city of refuge or a sanctuary, where you can go and not be rooted out by authorities. To change heart you must, figuratively speaking, enter into the locus poenitentiae and renounce your past ways.
Thus, the locus poenitentiae is the place where you have a choice, even a second chance, to make a decision truly your own. I can see a novel emerging that picks up on this resonant concept...What would I call the novel? I have it. Living in the Locus. And then volume two comes quickly to mind. Leaving the Locus. Oh, maybe I need a volume before Living in the Locus which I might call Loving the Locus. I have my trilogy here. Let Star Wars or Indiana Jones or Tokien have their trilogies. I will have my Locus trilogy. All thanks to hypotyposis.
Copyright © 2004-2008 William R. Long