451 - Lying Down Together: Law, Metaphor, and Theology

Lying Down Together: Law, Metaphor, and Theology
By Milner S. Ball
Madison, University of Wisconsin Press, 1985. 198 pp. $24.00.

Milner S. Ball, a professor of law at the University of Georgia, has written a subtle, beautifully crafted, and intensely felt book. His central thesis is that our conception of law is constituted by interrelated clusters of metaphors, that the currently dominant metaphors in American law (which he calls "Fortress America") inappropriately constrict the possibilities for realization of human community, and that alternative metaphors ("The Peaceable Kingdom") are possible and preferable.

452 - Lying Down Together: Law, Metaphor, and Theology

Ball illustrates this thesis with an extended account of the rules and. institutions governing the use of the sea in international law and. American national and state laws. The dominant fortress metaphor' expresses itself, according to Ball, in rules that divide the sea into exclusive realms of exploitable commodities. The alternate metaphor, in. Ball's account, would portray the sea as an entity shared among all the earth's inhabitants, human and nonhuman. Ball argues on behalf of this alternate metaphor in two ways.

First, in the specific context of the law of the sea, he shows how the effort to carve up mutually exclusive dominions repeatedly fails in practice. His most vivid illustration for this proposition is state law purporting to bestow property rights on shorelines-efforts that are recurrently confounded by natural forces. In international and American national law, a similar confounding arises not from nature but from human nature-from the inevitable inconsistency of different uses of the sea pursued by different people. Ball shows how these competitive pursuits have produced institutional arrangements-the conference mechanism in international practice and the complex scheme for obtaining use permits in American national law-that convert claims for exclusive dominion into occasions for negotiation in which widely shared consensus becomes the only practicable norm.

Ball thus maintains that the effort to establish fixed boundaries of exclusive dominion is inevitably eroded and tends to yield to processes of conversation-induced consensus as a practical matter. This is a kind of natural law argument-an astute, straightforward, lawyerly argument-to establish the relevance, and even the preferability, of the peaceable kingdom metaphor, notwithstanding that all of the competitive claimants initially prefer simply to defeat others' claims and thereby conceive the law as an instrument for domination in the fortress metaphor.

Ball's second main argument in favor of the peaceable kingdom metaphor is more elusive, and apparently purposefully so. For this argument, Ball rests on theology-not religion, but theology. For Ball, religion implies hierarchy and the exercise of power that he means to eschew; as I understand him, theology that coherently addresses the relationship of human lives and institutions to transcendent value must persuade but not command.

Ball maintains that the choice between the competing metaphors for law depends on one's theology. The fortress metaphor and its conception of power is rooted in a significant American cultural vision of religion, with "the apocalyptic Jesus as absentee commander" whose return " to settle accounts and conduct Armageddon is imminent." Ball rejects this vision, but not through invocation of an alternative command (whether by logic or by Scripture) since the command modality is inconsistent with his theology. He rejects the fortress vision by holding out the possibility of an alternative ideal and by relying on its intrinsic appeal to each individual beholder.

454 - Lying Down Together: Law, Metaphor, and Theology

Precisely because the authority Ball invokes for this vision is so elusively stated, most lawyers would tend to reject it out of hand: hence: the rhetorical importance of Ball's extended (and conventionally accessible) discussion of the law of the sea and' its practical lessons. But the real resistance to Ball's vision may come, not simply from the unconscious grip of the dominant fortress metaphor that he identifies. It may come more fundamentally from the fact that Ball's vision of the: peaceable kingdom would constitute a defeat for those with the ambition and apparent means to dominate others (including the ambition and means to divide and dominate the sea). How can he (or anyone) assure that the surrender of this ambition is an act of peace rather than the end result of war? Ball's ambition is not simply to offer an alternative metaphor for law as power or to argue the preferability of that alternative. He aims to induce voluntary renunciation, to redeem from a. fallen state, to convert sin to goodness. This ambition also has substantial roots in American culture; and Ball's success in this endeavor cannot be evaluated in conventional scholarly terms.

Robert A. Burt

Yale Law School
New Haven, Connecticut