Embodied Cognition and Legal Concepts

When lawyers determine what the law says about a certain case, they claim to do so by way of “classifying” the facts. This means that what the law says about the case is supposed to depend on certain properties that the facts display. Another way to put this is that events or objects in the case fall into certain legally relevant concepts in virtue of certain relevant properties they possess. Suppose Giovanni is caught shoplifting. Should Giovanni go to jail? Should he pay a fine? This depends on how we can classify this event. Was it a theft? A robbery? An attempted theft? The solution of the case will depend on the relevant legal concepts the case can be said to fall into. The act of classifying the facts in this way is not equivalent to a simple description of them, because it requires the speaker to make a double commitment about the properties of the case. The first commitment is that these properties exist, i.e., that they de facto characterise the case in question. The second commitment is that these properties are the ones that should de iure be selected as relevant for identifying that particular concept and thus deciding the case. Thus, to classify a fact as a referent of a concept is to take a stance not only on the nature of that fact, but also on the structure of the concept used to present it, and thus on the content of the law and, indirectly, on how the case should be decided. In this paper, we will try to explain some peculiar aspects of how legal concepts are used to describe and criticise states of affairs, drawing on cognitive science, and in particular the perspective on cognitive science called embodied and grounded cognition.