A CLEARING IN THE FOREST: LAW, LIFE, AND THE MIND by Steven L. Winter. Chicago: The University of Chicago Press, 2001. 440 pp. Cloth $38.00. ISBN 0-226-90221-8.

Reviewed by Lief Carter, Department of Political Science, The Colorado College.

Professor Winter, of Brooklyn Law School, has written two books within the covers of one. Winter’s primary message intrigues and persuades. The second and more conventional book, however, does not sit very comfortably with the first, so I will devote the bulk of this review to “Book One.”

A currently hot topic in social philosophy sometimes carries the label of “biologism.” This Rorty-driven approach holds that, since all foundationalist and essentialist efforts to say meaningful philosophical things about the world have failed, philosophy should embrace the biological sciences and make what it can of the empirical
evidence about how the mind and body combine to create behavior. Since Kuhn has placed science squarely within the non-foundationalist paradigm, there is nothing unholy about such an alliance. Within law, this field is now known as “cognitive legal studies.” Winter’s book tramps over a great deal of this field and makes many provocative finds. In a nutshell, he urges that advances both in the study of the wiring of the brain and in experimental cognitive research in patterns
of human choice show that the human brain does not and cannot generate the linear rationality that much liberal thought, and hence conventional approaches to legal reasoning, have long assumed.

A “theory of imagination,” is the “lynchpin” of Winter’s argument, but imagination turns out not to be what we conventionally believe. The brain constructs thoughts by reference to concrete physical images. The brain is not a binary digital processor. “It follows that cognition is not principally representational, propositional, or
computational, but rather involves processes that are imaginative, associative, and analogical” (p. 5). Winter takes his book title from a William James report in which James sees a clearing in a forest for a homestead site as an ugly destruction of nature, but then realizes that the homesteader, who associates the clearing with home and family, sees it as beautiful (p. xi). Our cognition is motivated as is all behavior. Winter frequently describes cognitive processes, and imagination itself, as “embodied,” a word which itself illustrates how we use physical images, in this case of bodily functioning, to understand phenomena.

Winter’s prose at times gets fairly dense (denser than, say, a typical NEW YORK TIMES’ Tuesday Science Times essay), but he provides plenty of lucid illustrations of his thesis from everyday life and from law. The images that lie behind thought are indeed pervasively physical, spatial, and simple. We often, for example, conceive of events as motions. Our retirement portfolios are “down.” Crime is “down” nationwide while worker productivity

Page 279 begins here

is “up” (p. 31). In law we refer to “slippery slopes” (pp. 254-256), and we use phrases like “the color of law,” not as legal doctrines but as basic concepts (Chapter 7). Winter is not surprised that Justice Holmes concluded in U. S. v. MCBOYLE that an airplane is not a “vehicle” within the meaning of the National Motor Vehicle Theft Act. In spite of the “plain meaning” of the statutory language and the fact that every linear principle of reasoning leads to the conclusion that an airplane falls precisely within the purpose of the act (not to mention that the defendant had ample notice that theft is a legal wrong), Holmes’ mind could not construct a credible physical image of an airplane that made it seem like a horse-drawn carriage or a Stanley Steamer (p. 37). Humans do construct abstract concepts and categories,
which Winter calls “idealized cognitive models,” but these ICMs are themselves assembled from discrete physical associations (pp. 88-89). Shifts in legal doctrine occur not because the illogic of prior lines of reasoning gets exposed but because common collective mental maps of the physical world change over time.

Winter highlights many fascinating consequences of the biologistic approach. Here are three of them:

1. THE NEW NEW PRAGMATISM. The classical pragmatism of Dewey and James is often distinguished from the “new pragmatism” of Rorty and Fish by
noting that while the former emphasized experience as the source of practical knowledge, the latter claim that language prefigures experience; indeed, language is all we have. Language, being a pure social construct, does not correspond to any separately existing reality. However Winter insists, often persuasively, that image-driven cognitive processes DO exist separately from language. He notes that animals that possess nothing like human language solve problems and
that toddlers, whose vocabulary goes no further than “mama” and maybe “ball,” frequently associate one image with another quite creatively (pp. 36-41). Cognitive processes, though they are creative, poetic, and narrative, are still powerfully constrained by the image-driven cognitive processes of the brain itself. The schema, frames and paradigms that constrain all normal brain outputs thus show us that the human brain IS rational, but not in the way we have hoped for (p. 106).

Just as he suggests that language is constrained and shaped by cognitive processes, so Winter believes, conversely, that Stanley Fish is wrong to assert that the anti-foundationalist position “delivers us from the grip of one system only to deposit us in the (equally frozen) grip of another” (p. 352). Here and elsewhere in the book, Winter blasts this sort of binary thinking. With Merleau-Ponty, Winter suggests that the mere existence of constraint does not demonstrate that we have no freedom whatsoever. The same cognitive structures that constrain by the process of creating associations among concrete images necessarily entails the creation of new and sometimes persuasive images that generate new law (pp. 353-55). We applaud jurists like Cardozo for doing just so (p. 250, 257, and see all of Chapter 10, “Innovation”).

2. LEGAL REASONING. Chapter 8, “How Do Rules Work?,” and Chapter 9, “Reasoning by Analogy,” argue that “we recognize, understand, and apply rules in just the same way that we recognize, understand, and determine facts,” and that this process is simply the process by which we organize and make sense of anything (p. 223). Chapter 9 poses three distinct forms of analogy, “similarity or resemblance”

Page 280 begins here

(cross-burning is like flag burning, and is therefore protected speech; cross-burning is like libel and therefore not protected speech), “inductive inference” (my late golden retriever was a loving and loyal dog, therefore I will get another golden retriever), and “classical analogy” (“cookie is to pastry as tabby is to cat”) (pp. 224-27). But of course it follows from Winter’s main argument that all three processes are really variants of the same “conceptual mapping … that highlights connections that are otherwise not well established in our conceptual system” (p. 237). Classical analogy, because it requires more thorough and conscious reflecting on the images being associated, will, Winter suggests, generate more persuasive legal arguments, a point he illustrates by explaining and preferring Justice White’s
dissent in INS v. CHADHA (1983) to the majority opinion (pp. 245-51).

3. PERSUASION. While for rationalists, persuasion “introduces capricious elements that make the law less predictable,” in the cognitive model, “the life of the law is not logic but persuasion” (p. 317). Since each individual brain creates its own ongoing stream of image-driven schema, it is persuasion (“selling,” to put it more
crassly) that converts an individual cognition into a collective one. However, persuasive conversions can only happen within the framework of what the listener already believes. “I am not arguing that people can never be persuaded to change their beliefs, only that one must be able to refer to some other aspects of their believes, values, and understandings in order to effect that change” (p. 320). “What a given judge will do in a case depends on what she thinks will fly with the
much larger constituency to which she must appeal both for her legitimacy and efficacy” (p. 321). Neither consistency nor generality, neither neutrality nor an appeal to moral principle, can, given the way the brain works, carry the burden of persuasion.

Here I will indulge in a personal story in order to illustrate Winter’s point. I have had the fortunate chance, on separate occasions, to ask Richard Rorty and Ronald Dworkin roughly the same question: Suppose, while flying over some remote and primitive land, you are forced to parachute out of a crippled plane. You land among a people with no experience of western values. Given your “supernaturally” sudden arrival, you are treated with great respect and deference. While waiting for a rescue, you discover that the tribe practices female genital mutilation (FGM). What do you say to persuade them to stop the practice? Dworkin’s answer (I paraphrase both responses) was blunt. “I would tell them the practice was monstrous!” Rorty’s answer was longer. “I would explain that we don’t practice FGM
and that we find our women are happier. That makes our men happier. Try it, you might like it.” Rorty’s persuasive strategy is much closer to Winter’s than is Dworkin’s.

About that pesky second book, which is so marble-caked into the first that it is hard to avoid, readers will find that Winter could not resist the law professors’ urge to cite (and usually to criticize) every conceivable academic utterance that bears, sometimes only tangentially, on his own argument. We learn in the acknowledgments section that Winter has here reworked and integrated many articles written since the mid-1980s, and we can’t begrudge anyone’s desire to
“put it all together.” Yet much of the time it distracts to wade through the elaborate treatments of why, e.g., Dworkin, Cass Sunstein, Richard Posner, Frederick Schauer, and Duncan Kennedy have missed the point, while Karl Llewellyn, Robert Cover, Edward Levi, and

Page 281 begins here

Jan Deutsch come closer to the mark, distract. Even the exhaustive analyses of the flaws in some important cognitive behavioral research distract us from the positive message.

However, there is a deeper problem with the “second book.” Winter repeatedly claims that the same basic cognitive structure shapes ALL normal human cognitive outputs. But if that is true, then Sunstein, Schauer, and Dworkin must not be wrong. Rather, they must be using some image-driven cognitive mapping that differs from Winter’s. Their thought is embodied and motivated, too. Winter would have strengthened his book considerably if he had more attentively practiced what he
preaches about the evils of binary thinking. Indeed, Winter’s prose seems too often to follow the very linear rationality model that he criticizes. More important, if persuasion trumps all else, and if, as he concludes, we who are dissatisfied with “the sedimented social field of public interactions, cultural objects, and common experiences” must act to transform “that social field directly” (p.357), job one would seem to be to identify what kind of book would motivate such action. What creative and imaginative reconfiguration of familiar images might actually reach law-doers and persuade them to create richer and more sensitive legal decisions? A more catholic and less academic book might have served its author and his audience better.

That said, this thoroughly footnoted and well-indexed book is full of juicy plums of wisdom for lectures in advanced undergraduate classes. Graduate seminars in legal theory should include it on their reading lists.

CASE REFERENCES

IMMIGRATION AND NATURALIZATION SERVICE v. CHADHA, 462 U.S. 919 (1983).

UNITED STATES v. MCBOYLE, 283 U.S. 25 (1931).

**************************************************************************

Copyright 2002 by the author, Lief Carter.