Jahangirnagar University Journal of Law Volume VIII: 2020 Published: 30 November 2020 Editor Professor Dr. Rasheda Akhtar Executive Editor Tapos Kumar Das Journal of the Faculty of Law Jahangirnagar University Savar, Dhaka Jahangirnagar University Journal of Law Volume VIII: 2020 Advisors to the Editorial Board Professor Antony Anghie, SJD Samuel D. Thurman Professor of Law University of Utah, USA Dr. Mohammad. Shahabuddin Professor in Law, University of Birmingham, U.K. Editorial Board Editor Professor Dr. Rasheda Akhtar Dean (Acting), Faculty of Law, Jahangirnagar University Executive Editor Tapos Kumar Das Chairperson (Acting), Department of Law and Justice, Jahangirnagar University Members Md. Rabiul Islam K M Shazzad Mohashin Department of Law and Justice Department of Law and Justice Jahangirnagar University Jahangirnagar University Shaila Alam Asha Md. Abu Sayeed Department of Law and Justice Department of Law and Justice Jahangirnagar University Jahangirnagar University Suprobhat Paul Ferdous Rahman Department of Law and Justice Department of Law and Justice Jahangirnagar University Jahangirnagar University Preeti Kana Sikder Department of Law and Justice Jahangirnagar University Published by Jahangirnagar University Savar, Dhaka-1342, Bangladesh © Jahangirnagar University ISSN: 2664-1054 Printed by: Momin Offset Press, Dhaka-1205 Price: Taka 200 q US $ 5 Jahangirnagar University Journal of Law © Jahangirnagar University Volume VIII: 2020 Published: 30 November 2020 Contents S M Masum Billah Testing Constitutional Metaphors: Some 1 - 27 Insights from Bangladesh Md. Rabiul Islam Racial Dichotomy to Escalate 29 - 46 Discrimination: An Account of Legal- historiography in Colonial India Moha. Waheduzzaman Measuring Constitutional “Laws” and 47 - 77 “Conventions” in Same Parlance: Critiquing the Idrisur Rahman Tapos Kumar Das The Positive Complementarity: An 79 - 93 Alternative Approach for the ICC’s Engagement Preeti Kana Sikder Medical Waste Management and 95 - 112 Processing System in Post-COVID Bangladesh: A Legal Analysis Md. Waliul Hasanat Virtual Classrooms in Bangladesh: 113 - 125 Md. Yamin Rahman Assessing Child Vulnerability in the Light of International Law Rafea Khatun Medical Negligence Issues in Bangladesh: 127 - 146 An Urge for a Separate Medical Negligence Law Md. Abdur Razzak Non-State Actors and International 147 – 166 Human Rights Law: What Obligations for Business Enterprises? Jahangirnagar University Journal of Law, Vol. VIII, 2020 Testing Constitutional Metaphors: Some Insights from Bangladesh Dr. S M Masum Billah* Abstract: Metaphors are powerful devices to revitalize an idea or a concept. They appeal to the readers' mind as they contrast between a known experience and an unknown idea. As such, their usage is widely hailed as a communicative tool having sophisticated literary value. However, legal scholars have extensively written on the desirability of resorting to metaphor in writing legal opinions. The judges interpret the law to render justice, however, they offer their reasoning for reaching a decision. In this exercise, the judges coin metaphorical terms widely known as legal metaphors. In the realm of constitutional jurisprudence, the use of metaphor has been transcendental. ‘Penumbra’, ‘the marketplace of ideas’, ‘fruits of a poisonous tree’ from American jurisdiction, the ‘living tree’ from Canadian jurisdiction, ‘incoming tide’ from the UK jurisdiction are globally appraised metaphors. They have been a commodity readily available for judges of common law traditions as interpretive tools, however, with a cultural variation. Many metaphors have got new dimensions and many have fallen into disuse. In Bangladesh, the use of legal metaphors, their vitality or significance have drawn less scholastic attention. Even then, the judges have epitomized a good number of constitutional metaphors in moulding Bangladesh’s constitutional jurisprudence. In this paper, I have examined the perils and promises of legal metaphors used in the leading common law jurisdictions and have added a Bangladeshi insight to them by analyzing the metaphors used in Bangladeshi case law. Keywords: Constitutional Metaphor, Constitutional Law, Legal Metaphor, Living Tree, Constitutional Interpretation. 1. Introduction Judges communicate with the community through their judicial opinions. In their opinions, which we may call ‘communicative social documents’1, they offer an interpretation of law through rational discourse and present them in a legal language communicated to the public broadly defined. In so doing, the judges at times resort to metaphorical terms to convey and portray a better meaning of a legal text and context. Therefore, we find that legal discourse is replete with * Associate Professor, Department of Law, Jagannath University. The author can be reached at: [email protected]. 1 Benjamin L Berger, ‘Trial by Metaphor: Rhetoric, Innovation, and the Juridical Text’ (2002) 39(3) The Journal of the American Judges Association 133. 1 Jahangirnagar University Journal of Law, Vol. VIII, 2020 metaphors.2 In the American context, Thomas Ross in an eloquent commentary on the paradox of metaphor wrote: We live in a magical world of law where liens float, corporations reside, minds hold meetings, and promises run with the land. The constitutional landscape is dotted with streams, walls and poisonous trees. And these wonderful things are cradled in the seamless web of law.3 Here, Professor Ross refers to popular yet profound known legal metaphors. These metaphors travel beyond America and the legal fraternity of analogous jurisdictions, the judges of the common law world for example, usually greet them with a few exceptions.4 In this way, metaphors represent the world of law in a dominant and perhaps in a positively or misleadingly emotive manner. It is not always easy, however, to identify and locate a metaphor. Some metaphors are more subtle than others or they have merged with the general language so much so that their separate existence is not recognised anymore. For example, the use of ‘defence’ and ‘defendant’ in a judicial proceeding, indicate the hidden metaphor of seeing the court procedure as an act of ‘war’ and that someone has to ‘win’ the case than resolve.5 Again, when we speak of a body of law, we use a metaphor so apt that it hardly remains a metaphor.6 Metaphors take a particular stand in this regard, as found in legal literature. The use of metaphors reveals how lawyers and judges perceive different case scenarios. Thus, they fashion the legal discourse and, in some sense, determine the validity of legal arguments. Metaphor, thus, is a common device in writing a judicial opinion. Of late, the use of metaphors in legal decisions have ignited an increased interest among legal scholars concerned with the metaphor’s role in advocacy and judgment writing.7 It is because metaphors can appeal to the human thought process with admirable easiness and precision. Harold Lloyd compellingly argues that metaphor plays a 2 Burr Henly, ‘Penumbra: The Roots of a Legal Metaphor’ (1987) 15 Hastings Constitutional Law Quarterly 81. See also Adam Arms, ‘Metaphor, Women and Law’ (1999) 10 Hastings Women's Law Journal 257. 3 Thomas Ross, ‘Metaphor and Paradox’ (1988) 23 Georgia Law Review 1053. 4 For example, I may name a few legal metaphors in a general way: ‘miscarriage of justice’; ‘slippery slopes’; ‘floodgates’; ‘shield, not a sword’, ‘legal transplantation’; ‘golden thread’; ‘bright and blurred lines’; ‘constitutional foothills’; ‘scales of justice’; ‘level playing field’; ‘edifice of Constitution’; ‘legal bridge’; ‘Constitution not as a railway excursion ticket’; ‘Constitution as ballet dancer’s mirrored wall’; ‘Constitution as architecture’; ‘wall of separation between the Church and the State’; and ‘migration of constitutional ideas’. 5 Sheng-hsiu and Wen Yu-Chiang, ‘Fight Metaphor in Legal Discourse: What is Unsaid in the Story’ (2011) 12 (4) Language and Linguistics 877. 6 Maitland quoted in Garry J Jacobsohn, The Wheels of Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press 2003) 84. 7 Haig A Bosmajian, Metaphor and Reason in Judicial Opinions (First edn, Southern Illinois University Press 1992). 2 Testing Constitutional Metaphors much deeper role in legal thought than style,8 ornament or verbal virtuosity.9 A well-structured metaphor provides an intuitive perception of the similarity of the dissimilar.10 Metaphors, however, bring perilous consequences in many respects. They do not yield precise legal tests. One of the reasons for this is that legal scholars and judges at times use figurative language without properly categorizing them.11 Richard Posner thinks that they are ‘powerful through a logical modes of persuasion.’12 Benjamin Cardozo J in the same vein wrote, ‘A metaphor, however, is, to say the least, a shifting test whereby to measure degrees of guilt that mean the difference between life and death.’13 Cardozo J—wearing his judge’s hat—further added that ‘metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.’14 Interestingly, in attacking metaphors in his stylistic way, Cardozo J took recourse to a dual metaphor, namely the ‘liberation of thought’ and its reduction to ‘slavery’.15 In this paper, I will discuss the promises and perils of legal metaphors and examine the extent to which they can be exploited in rejuvenating the law and jurisprudence. In particular, I will attempt to draw a Bangladesh