ISSN 1062-7421
Vol. 10 No. 8 (August 2000) pp. 501-504.
BOYCOTT IN AMERICA: HOW IMAGINATION AND IDEOLOGY SHAPE THE LEGAL MIND by Gary Minda. Carbondale: Southern
Illinois University Press. 1999. 271 pp. Cloth $34.95. ISBN: 0-8093-2174-2.
Reviewed by Michael McCann, Department of Political Science, University of Washington.
Professor Minda's study of boycotts in American law is both a fascinating and a frustrating exercise in critical
legal analysis. The author fuses two fundamental enterprises in this ambitious book. One project is a critical
historical study of judicial rulings and cultural images regarding boycott activity, beginning in mid-nineteenth
century Ireland and then focusing exclusively on the United States. The second undertaking involves the development
of an elaborate theoretical framework grounded in cognitive science, psychology, and linguistic theory to explain
judicial decision-making as a highly constrained and constraining exercise in primarily metaphorical, as opposed
to rational, thinking that denies its own blatantly ideological biases.
Part One, composed of four chapters, introduces the two enterprises. Chapter One begins with an intriguing study
of the English captain Charles Cunningham Boycott, from whose name the term at the heart of this study derived.
Captain Boycott was an agent who, by most accounts, brutishly managed rental land tracts in late nineteenth century
Ireland for an absentee British owner. In the context of generally hard economic times, a particularly bad harvest
year that left little money for rents, and growing Irish nationalism, radical leaders mobilized the Irish Land
League in 1880 to unite tenants in County Mayo for a general rent strike and refusal to
conduct any future business with Captain Boycott. This populist act of social and economic ostracism soon came
to be known as a "boycott," and its practice as
"boycotting." Criminal charges were brought against the boycotting tenants, but the jury could not agree
on a verdict, thus freeing the protestors. From the start, Minda contends, the case against Boycott generated an
"idealized cognitive model" including two rival imaginative narratives. In the prevailing Irish narrative,
Boycott was imagined as a malicious predator on common folk and the boycotting group was viewed as a just, law-enforcing
populist movement. The alternative, and secondary, narrative envisioned Boycott as a lawful property agent "victimized"
by unruly, unlawful protestors; one national press article likened the boycotting tenants to a "host of Zulus
thirsting for blood."
Chapter Two explores the legacy of this dualistic metaphoric tradition involving constructions of "boycotts"
by American judges. Minda argues that the first use of the term boycott in the U. S. was in an 1887 Connecticut
Supreme Court decision. Upholding an injunction and criminal conspiracy charges against union members boycotting
a publishing company, one judge likened the workers to "tigers" who thirsted after human blood. This
was the beginning of a dominant legal tradition in which labor
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boycotts have most often been portrayed through negative metaphors connoting unruly, law-threatening, animalistic,
and violent action. This tradition created a new idealized cognitive model in the U. S. that preserved but reversed
the popular ordering of the original dual narratives from Ireland.
Chapters Three and Four introduce the reader to the author's complex explanatory framework. In brief, Minda contends
that judges rely more on metaphorical than on rational, categorical logics to create meaning in law. The imaginative
ideas with which judges organize their knowledge, thinking, and classification efforts are labeled "idealized
cognitive models" or, sometimes, "conceptual frames." The metaphoric usages, and especially their
"default" usages or meanings (e.g. "boycott" signals "violence"), at the heart of
such models are "transferred" through stare decisis over time and "embedded" in law as controlling
forces on future judicial decisions. Minda argues that these legal frameworks are at once fixed and indeterminate,
"chameleon-like," and thus revisable, especially as new cases emerge
that stray from prototypes and invite revision. Generally, though, judges are limited, largely unconsciously,
to development of new "radial categories" that remain "chained" to the original "default"
metaphorical concepts; radical breaks in thinking are rare. Moreover, prototypical metaphors are not value-free;
they come loaded with ideological biases that metaphorical thinking works to "conceal" and keep "secret"
or "hidden." Metaphors thus facilitate meaning creation but, because they are assumed to be "neutral"
representations of reality, also obscure their ideological content, like "reptiles hidden in the weeds"
beneath the forest of trees. In short,
metaphorical reasoning enables judges to make law through adjudication "without ever having to reveal their
true ideological role." (p. 56). Chapter Four develops further this line of thinking about metaphor and adjudication,
challenging the realist tradition with the insight that judges use metaphoric reason "to make correlations,
to create ideologies, and to deny the truth of things" -- that is, to pretend to be following law's commands
when in fact they are creating law loaded with ideological
bias.
Part Two joins the historical interpretation and explanatory theory in studies of three separate developments in
the basic "radial categories" of boycott. Chapter Five examines the radial categories that develop in
response to disputes over secondary labor boycotts. Minda demonstrates that the early negative, violent images
of labor boycotts were supplemented with threatening metaphors of cancerous "disease" and "metastasis."
These logics, along with a "signal" theory designating certain types of speech as dangerous, have motivated
or compelled judges to rule regularly against labor boycotters and to "forget" fundamental First Amendment
protections for expression. Chapter Six tells a very interesting story about how the radial category of boycotts
by civil rights activists has been constructed
quite differently. In short, civil rights boycotts have often been likened to legitimate protests (as among the
Irish tenants or American colonists) that seek to enforce basic legal rights and civil republican principles against
the violent, disorderly, unlawful actions of desegregationists and racists. As such, the civil rights radial category
has been "chained" to images of "legality" in the dominant cognitive model of boycott. Chapter
Seven explores yet another radial development of judicial construction dealing with business or commercial boycotts.
The key metaphors in this body of law have been "balance,
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equilibrium, and homeostasis," and the legacy of rulings emanating from these metaphors have been very mixed
in outcome, logic, and even definition of the core concepts at stake. Minda argues that this body of rulings only
illustrates that legal meaning does not develop categorically and logically from rules, but rather is a product
of imagination and ideology facilitated by chameleon-like metaphorical reason.
Part Three recounts the explanatory theory developed in earlier chapters and explores the complexities of imagining
boycotts in our rapidly changing world today. Chapter Eight reviews studies of boycott opinions by other legal
scholars, and it strives to demonstrate how and why such analyses are futile. In short, most legal scholars rely
on traditional legal reasoning to try and construct some rational coherence to case law regarding boycotts. Such
endeavors are fruitless, Minda insists, because they mistakenly assume that judges are neutral decision-makers
using ideology-free categorical rationality. Chapter Nine again turns away from theory to
ponder the present postmodern context of boycotts, which have become a staple of political action in recent years.
The chapter presents a quick anecdotal tour of boycotts by a host of contemporary groups and a wide range of issues.
The tour is a fun read for social movement junkies like myself. Minda also raises a good question regarding whether
traditional idealized models and metaphors of boycott can make very good sense of these proliferating, often novel
types of boycotts in a globalized, post-industrial world. The author seems to suggest there is an opportunity
for change in prevailing cognitive models created by new social practices and relationships. Chapter Ten returns
to the explanatory theory to contemplate "how new metaphors and a new meaning of group boycotts could be reconstructed
in legal decision making to create a new legal right to boycott" (p. 201). As I read it, the author is hopeful
but not highly optimistic about legal change. An Epilogue
briefly summarizes the author's overall position about "Ideology and the Legal Mind."
My review began by noting that I find the book both fascinating and frustrating. The most fascinating parts for
me are the interpretive discussions regarding historical legal constructions of different activities that have
come to be defined, somewhat inconsistently, as boycotts, from the initial event that generated the term in Ireland
through the very recent flowering of similarly named protests of all kinds in and beyond the United States. These
sections of the book on boycott activities and legal constructions are often lively and interesting. They make
the book worthwhile for those readers interested in the history of how labor struggle and other forms of social
protest have been constructed by American courts.
By contrast, the more frustrating dimension of the book, at least for me, is the theoretical scheme. To be sure,
the general explanatory theory of metaphorical thinking in adjudication to some degree fits nicely with the interpretive
historical study of metaphors constructed by judges to make sense of boycotts. Moreover, the concerted effort
to add greater conceptual rigor to critical legal theory is very welcome, and language theory is one promising
way to do so. However, Professor Minda's complex theoretical project also tends to distract from as much as to
enhance his interpretive study. For one thing, the author's theorizing is heavily laden with esoteric jargon,
repetitive in its basic claims, and yet still quite opaque in its logic. The book is tedious reading in several
chapters, with uncertain payoff.
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More fundamentally, the effort to develop from language theory a quasi-scientific explanation regarding how metaphorical
thinking constrains and even "determines" what judges do, "hiding" their ideological biases
from them in the process, no doubt will strike many readers, like me, as unconvincing and misguided. Even, and
perhaps especially, those socio-legal scholars who have found great value in the proliferation of interpretive
scholarship regarding the "constitutive" power of legal language are likely to find this specific effort
to formalize critical ideological analysis to be problematic or unsatisfying. At the same time, there is equal
reason for
frustration regarding how this theorizing about the internal determinative logics of legal language detracts from
systematic study of institutional context, hierarchical power relations, and political contestation in society,
which the author says matter greatly but rarely addresses. In these regards, this doctrine-centered book is another
exercise in critical legal analysis that resembles traditional legal scholarship far more than it claims.
Still, on balance, I learned a fair amount from this book about the history of judicial responses to boycotts that
enhanced my understanding about the legal fates of labor and social protest. Moreover, for all my reservations,
the book provoked me to rethink my basic assumptions about the constitutive power of legal language and logic.
Minda's volume thus is worthwhile reading for scholars with interests in these subjects.
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Copyright 2000 by the author, Michael McCann.