A tale of Two Metaphors: A Narrative Take on the Canadian Constitution.

• Author: Cloutier, Etienne

This article sheds light on the fundamental role that narratives and metaphors play in shaping how we think, talk, and argue about the Canadian Constitution.

More specifically, the article makes the case that two competing types of metaphors--dynamic and static--largely fashion Canadian constitutional law. The influential metaphors of the "living tree" and "constitutional architecture" represent prime examples of these central conceptual categories.

This article argues that each of these categories stands for different views of the Constitution and, as such, influences the types of stories we tell about it. The case studies undertaken here show that each metaphor sustains dominant narratives about the Constitution, narratives whose structure mostly correspond to the archetypal "birth" and "rescue" stories.

As narratives and metaphors influence our cognition and help us reason about abstract concepts and ideas (a large part of our work as jurists) we would be wise to pay closer attention to them. This article is a call, in short, for greater narrative awareness. *

Cet essai met en evidence le role fondamental que jouent narratifs et metaphores en faconnant la maniere que la Constitution canadienne est conceptualisee, discutee, et debattue.

Precisement, l'essai soutient que deux importantes categories de metaphores, statiques et dynamiques, sont au coeur du droit constitutionnel canadien. Ces deux categories sont exemplifiees respectivement par les metaphores de l'architecture constitutionnelle et de l'arbre vivant.

Chacune de ces categories represente une vision differente de la Constitution et, en tant que telle, elle influence le type d'histoires que nous en racontons. Chacune soutient un narratif particulier sur la Constitution, un narratif qui renvoie, en regle generale, soit a la > ou au > de notre texte fondateur.

L'idee derriere cet essai est que, dans la mesure oU les narratifs et les metaphores influent sur notre cognition et nous aident a raisonner dans l'abstrait, soit une grande partie du travail juridique, nous serions avises de leur preter une plus grande attention. C'est, en somme, un appel a une prise de conscience narrative.

Introduction I. Thinking About the Law: Cognitive Research's Take on Narratives and Metaphors A. The Hidden Power of Metaphors B. Schemas, Metaphor, and Narrative II. A Lawyer's Guide to Narrative Theory: Key Concepts for the Study of Law A. The Storyteller's Starter Kit B. Common Stock Stories 1. Stories of "Birth" and "Creation" 2. Stories of "Rescue" and "Monsters" III. Metaphors of the Constitution A. A Tale otTwo Metaphors: Of Living fives and Architectures 1. The Dynamic Metaphors a. General Overview b. The "Living Tree": Tracing Back its Roots c. The "Living Tree ": Following the Branches d. The "Living Tree ": Acknowledging its Natural Limits 2. The Static, or "Structural", Metaphors a. General Overview b. Structure and Architecture of die Canadian Constitution IV. Stories of the Constitution A. Stones We Tell of the Constitution: From Birth to Rescue 1. Dynamic Metaphors and Birth Stories a. Uncovering the Narrative: Flic "l hi finished Constitution " b. Case Study: Saskatchewan Federation of Labour and the Birth of the Right to Strike 2. Static Metaphors and Rescue Stories a. Uncovering the Narrative: The Endangered Constitution b. Case Study: Senate Refonn and the Rescue of Canada's Architecture Conclusion Introduction

"Man is the storytelling animal."

--Salman Rushdie (1)

Complex ideas are more easily understood by the mind when presented in the form of stories and metaphors. (2) It is thus not surprising to see this fact illustrated in disciplines where complex ideas occupy an important place, like law, philosophy, or political science. The metaphor of the "social contract" is a good example. It stands for the idea that the political obligations of individuals derive from an initial agreement among them to form the society in which they live. (3) This idea is at the heart of modern constitutionalism; it shows how political authority can be linked to individual self-interest and rational consent. However useful the idea of the social contract might be to our understanding of political life, it is not to be taken literally or as an accurate historical account. (4) If we still hold on to the social contract, we do so because it helps us to comprehend abstract concepts like constitution or society. The metaphor of the social contract thus serves as an interpretive framework to make sense of ideas and events. Like all conceptual frameworks, it unconsciously shapes our cognition and reasoning. (5)

Knowing that metaphors and stories impact our perception and help us reason about ideas and concepts--a large part of our work as jurists--we would be wise to pay attention to them in the realm of law and strive to better understand how they function. For the past thirty years or so, the study of metaphors and stories in the realm of law has been the aim of a number of legal scholars. (6) The extensive work that has resulted from this intellectual endeavor--this commitment to looking at law not only as rules and policies but also as stories--is what forms the field of "narrative scholarship". (7) More broadly, this field is concerned with the use and role of metaphor, myth, and narrative within the realm of law.

While this field of research has prompted the publication of books and a proliferation of academic conferences on the topic in the United States, it has not enjoyed the same rapid expansion north of the border. To be sure, Canadian legal scholars have written in recent years on such various subjects as the weight of storytelling in judicial opinions, (8) the poetics of legal doctrine, (9) and the subjective character of narration in judgments. (10) Others have taken up the task of studying the artistic dimensions of the "constitutional architecture" metaphor, (11) or of showing how this concept can coexist with the "living tree". (12) Yet, in the Canadian landscape, these few instances are more of the exception than the rule.

It should also be noted that most of what has been written in Canada in this regard has focused primarily on the explicit use of metaphors and narratives in traditional legal discourse. Much less attention has been given to such things as the cultural narratives that shape the development of the law, or to the persuasive power of storytelling in legal practice. Likewise, publications about metaphors in law have been mainly doctrinal, tracing the use of particular metaphors through time, the same way that we study the evolution of a legal principle through case law. Questions about why these devices have exerted such great influence on the development of the law, and why they remain so deeply ingrained in our collective legal imagination have usually been left unanswered. (13)

The general aim of this article is to shed light on the central role that metaphor and narrative play in shaping how we talk, think, and argue about the Canadian Constitution. It makes the case that two competing types of metaphors--termed dynamic and static--largely fashion Canadian constitutional law. It will be shown that these two types of metaphors convey different ideas of the Canadian Constitution and, as such, influence the stories we tell about it. In more specific terms, it will be argued that these categories sustain dominant narratives that are similar in structure to "birth" and "rescue" stories. The article will then explore the implications of this finding for scholars and lawyers.

The article is divided into three Parts. The first Part focuses on cognitive science and narrative theory research on how metaphors and narratives shape our cognition. The second Part briefly reviews the basic building blocks of fiction writing and offers an overview of two central plot structures: "birth" and "rescue" stories. The third Part introduces the dynamic and static metaphors used in relation to Canadian constitutional law, with a focus on the "living tree" and "constitutional architecture" metaphors, two prime examples of these categories. The fourth Part explores, through a narrative study of two recent Supreme Court decisions, Saskatchewan Federation of Labour v. Saskatchewan (14) and the Reference Re Senate Reform, (15) how these two types of metaphors influence the stories we tell in relation to the Canadian Constitution. The article then considers what the findings mean for constitutional scholars and jurists generally.

1. Thinking About the Law: Cognitive Research's Take on Narratives and Metaphors

   "[The human species] thinks in metaphors and learns through stories."

   --Mary Catherine Bateson (16)

   Historian Louis 0. Mink once suggested that narrative is a "primary cognitive instrument--an instrument rivalled only by theory and by metaphor as irreducible ways of making the flux of experience comprehensible." (17) The following discussion builds on the idea that, for us to truly grasp the role of metaphor and narrative in law, it is useful to first understand the source and nature of their power--to look at the processes at work in our mind when we are told a story or asked to picture concepts in the form of images.

   1. The Hidden Power of Metaphors

      Cognitive researchers claim that the way we think about abstract ideas is, to some extent, metaphorical. (18) In this context, the meaning of the term "metaphor" extends further than a figure of speech whereas a word denoting one idea is used in place of another to suggest an analogy. It stands, broadly, for a way of "conceiving of one thing in terms of another," (19) of "seeing one thing as another." (20) In other words, metaphorical thinking works by "transferring the characteristics, reasoning processes, and outcomes of one domain (the source) onto another (the target)." (21) It associates, by a partial analogy, two mutually exclusive conceptual fields. (22)

      It seems worthwhile to illustrate this claim in...