Mental Capacity as Metaphor*

Mental capacity is a foundational concept in contract law, but the term is metaphorical, and a detailed analysis of three representative judicial opinions shows that the explanations that courts give of the term are equally metaphorical. As such, the term illustrates well the cognitivist view that abstract concepts arise through an imaginative but orderly projection from the domain of bodily and social experience. Legal Realists such as Felix Cohen condemned metaphors for their supposed failure to constrain judges, but recent empirical work suggests that metaphorical thinking is indeed constrained, and accordingly thinkers such as Cohen would probably in fact have welcomed cognitive analysis of law, both for its methods and for its substantively progressive disposition. ^*I am grateful to Andrea Coles-Bjerre, Mark Johnson, Jim Mooney, and Steve Winter for insightful comments on a draft of this article, to Stephen Morse for insightful commentary at a panel of the International Congress on Law and Mental Health in Amsterdam, and to participants at the International Roundtables for the Semiotics of Law in Lyon, the American Association of Applied Linguistics in Portland, and the Association for the Study of Law, Culture and the Humanities in Austin. For much-appreciated editorial support I thank Sophie Cacciaguidi-Fahy and Anne Wagner, and for financial support I thank the Luvaas Faculty Fellowship Endowment Fund.