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Proximate Inventions


© Christopher Fennell

Department of Anthropology, University of Virginia

First posted: 23 January 2002


This essay explores the use of metaphors for the construction of indwidual and social realities, including ascendant metaphors utilized in Anglo-American law. Using a narrative approach derived from the writings of Jorge Luis Borges, metaphoric concepts of causation in law and social science are explored through an argumentative dialogue between two characters.


What we mean by "time," and the thing that stands behind this whole landscape of cycles, the situational, the innately human, the movement and evolution of "natural force" and the phenomenal world, is the inventive dialectic - the contradictory, paradoxical, and moving aspect of culture. [1]

My inventions and I are headed out into the world for a smoke.

"Have they no unity with it?"

Lord, I hate that question. It beckons pessimism to chase me down, like Schopenhauer running from his harpies of gloom. I should leave this scientist, leave this space of books and tables, and go smoke a cigar under the stars and winter air. Some feel alive and real when their heart pounds and their lungs sting, gulping air after a hard run. I feel rather real when smoking a cigar in cold air, caught one moment in a gray caress of aroma, the next in the crisp bite of air, my scalp waking to the nicotine, skin alert to the chill. One feels a bit listless after too many hours in this space, configured in its orderly progression of columns, books, voids, patterns and niches. I should step out.

"Define 'it."' A weak riposte, but what the heck.

"It? Well, you, your inventions, or the world, take your pick."

"I reject the disjunctive. And I'm leaving."

My interrogator enjoys an optimism, a joy in externalities. He subscribes to the view that there exists a real world separate from the perceiving individual. A world of phenomena, causes and effects. He questions me in earnest, with little malice. For he hopes always to shape his own inventions to be as close to reality as possible, to move in closer and closer proximity to an observable, graspable set of things. There are those who view the world "as a totality of facts, not of things," but this gives him little pause.[2] He holds faith that a world of external things exists, even if we cannot achieve a unity of observers and observed. It is the shaping of facts most closely to mirror those things which is his engaging enterprise. Cast out of an eden of omniscient unities, he can still worship at an altar of mimicry and consensus.

"Listen Horatio, you can't look at the crab nebula or a comet hanging in the sky and tell me everything is cranial calisthenics. Those things are real, they're beautiful, magnificent, and that's what drives us. No?"

I should have left sooner. He reminds me of one of those unfortunate archaeologists in a Borges story who mined rich deposits of artifacts only to create new stories of a past by generating a mimesis of metaphors. They uncovered no insights, only new refractions of the past and present metaphors which sustained them. But they did enjoy their efforts. Were they like my mend here, blissfully riding along on a turnip wagon of positivism? Or had they arrived at that point of fortitude where they could accept the pleasure of the monstrous hall of mirrors on its own terms, not caring which image was closest to the depicted object? [3]

I concede: "You are quite right. My solipsism should collapse when confronted by such a reality that imposes itself with glowing comets and exploding galaxies --"


"But go a step further. Isn't it questions of 'why' and 'how' that really drive us? It's not just the observation of beautiful things. Isn't it discovery of the causes that create such effects that impels us further?"


Now I have him. It is one thing to play positivist with isolated things, quite another to capture a process which cannot be observed, to insist that your causal story is other than a metaphor. I confront him with Vaihinger's tome, an inexhaustible catalogue of mentalism, of a world planted firmly, repeatedly in the subjunctive. [4] Sliding its mass across the table, a page is chosen, and we find:

Only within the world of our ideas are there things, things that are causes; in the real world these ideas are but empty echoes.

The idea of causality is entirely inapplicable to reality itself. Actual reality will not tolerate this category. If sensations are, in fact, essential reality, then their reduction, together with space, matter, etc., to the impact of some unknown object, is an unjustified extension of the concept of cause and effect. [5]

Or another page, and Nietzsche's admonishment is reproduced:

"'Cause' and 'Effect' must not erroneously be made concrete . . . they should be used only as pure concepts, i.e., as conventional fictions for the purpose of defining, understanding and explaining . . . It is we ourselves who have invented the causes . . . interdependence, relativity, compulsion, number, law, freedom, end: and when we read this sign-world into things as something really existing and mix it up with them, we are merely doing what we have always done, namely mythologizing." [6]

Repetitions of the point do not persuade him.

"You should have left earlier," he says, "Now you're getting tedious."

Perhaps another tack is needed to persuade my fine scientist, something more concrete in detail, more behavioral and normative at the same time.

"Ok, forget crazy German idealists. How about our own legal system? Are the cause and effect of an accident real things, externalities, and not just concepts?"

"Sure, the system is sound in theory and should be sound in practice. Cause and effect can be determined and liability found, without everyone viewing it dl as some grand fictional game. I've often thought of going into law," my scientist confesses. "It's one of the oldest, most central disciplines of thought and analysis -a great deductive machine producing predictable results of justice, applying consistent, time-tested principles to the facts of each case brought into dispute . . . ." He drifts off, an underpaid academic wistfully considering the alternatives.

"Now who's getting tedious? Do you really believe all that? I know the lawyers do. Ever notice how they always have their pictures taken standing in front of those tall stacks of law books, and the volumes all stand lie so many bricks churned out by your machine of predictable results. Do you know why? It reinforces what Milner Ball calls an 'ascendent metaphor.' He views those books as the "[e]ndless extrusions of statutes, judicial opinions, and regulations collected in volumes about the size and weight of a common variety of concrete block.' Lawyers are 'instinctively' drawn to those shelves, because they are the 'iconography of stability, a visual appeal against change."' [7]

"So, what's this 'ascendent metaphor'?" he asks.

"That law exists, that it is a real assemblage of predictable uniform blocks of knowledge and outcomes. But more than that, it is a belief that the law operates as a kind of machine, a deductive clockwork of principled gears that takes each array of messy facts in a case and trims and molds them into a predictable resolution and outcome, immediately consistent and commensurable with every other outcome produced by the machine."

Those creases in his forehead have deepened. I didn't expect this. I thought he'd be pleased with this view of things.

"I don't like calling the law a 'machine.' Justice has to be concerned with every case individually, and reaching the right outcome for each person involved. It's not some clockwork grinding through the caseload."

"But the machine is far preferable to the alternatives, don't you think?"

"What alternatives?"

"Unbridled, incommensurable casuistry for one. Look, remember that library far grander than this one, the Library of Babel, with its cataloguing of all possible knowledge statements in its many volumes? You always enjoyed that idea, thought it a future goal toward which human sentience should aspire."


"But it's not even good as an imaginary goal, because that is not the way human sentience works. Here, consider this --"

[I]f we were to augment the English vocabulary by construing 23 eight-lettered words from 23 letters of the English alphabet, we would end up with a hundred thousand million such words, each of which would replace every sentence that was ever said or written in the English language. These words would be usable only once in a lifetime, which would be insufficient for them to acquire meaning. Meaning can only be established through repeated usage, and repetition can only occur within a limited vocabulary. This is a simple law that functions as a precondition for the formulation of meaning and (given that there is no meaningless language) language itself.' [8]

"And that's the beauty of the metaphor. We do not create new knowledge claims ex nihilo. Instead, we use metaphor every step of the way. Radman puts it well: 'Metaphor formulates the not-yet-known in terms of what is already known, thus enabling a transition from stability of custom to novel uncertainty." [9] The metaphor of law as machine is valuable, because we want to see the law as functioning with some consistent baselines, producing commensurable results from case to case."

I'm feeling somewhat smug. There's an advantage to holding this debate in our library of propositions; I have useful ammunition ready at hand, and sling poignant passages across the table. But I notice my opponent has no desire to find texts to support his faith in external reality. He is content to rap his knuckles on the undeniable solidity of the table.

"So, you do believe the law is predictable and logical."

"No, no, no!" I went too fast, and now he mistakes my metaphor for a reality. Well, that's its purpose after all, so I can't complain too much.

I gaze over at the coffee bar, a recent addition tucked away in a comer of this library. Very civil, having teas, coffees and breads at hand to sustain the laboring intellects. Those espresso and cappuccino machines always fascinate and frighten me, full of hissing, steaming ducts spitting superheated water out on black powders set in papery thin cups.

"Alright, let's try this another way," I suggest. "Let's return to concrete questions of accidents and causes. Look over there, under the east entrance, you see that pretty young lady hanging on that guy's arm? She's not even looking where she's walking, just staring up at him, laughing, smitten and oblivious. Now look in front of her. See that printer set out on that rickety little table, cables and wires snaking all around it on the floor? She's heading right for it, without looking. Somebody set that thing out right in the path of traffic coming and going in that hall. Now if she were to bump into that printer and knock the whole thing over, who would be to blame?"

"Well, I don't think highly of the fool who put the printer there, but she should watch where she's going and avoid it. I'd say she should bear the blame."

"Beautiful: you've just summarized the philosophy of But For, which is one of law's additions to the philosophy of As If: We ask if an accident would have happened but for each person's conduct. So, even though it was some library knucklehead who created thls hazardous situation by setting that printer in the way of traffic, we would ask: but for (or 'in spite of) the conduct of the young lady, would the damage to the printer have occurred? The answer is no, and so she may be potentially liable. And she is particularly susceptible to blame, because she is the last link in the chain of events that led to the printer crashing to the floor; she was the link with closest proximity to the final event. If we ask the same 'but for' question about the person who set the printer in the hall, we also answer 'no.' But his case is different. His conduct did not destroy the printer in the absence of the intervening act of the young lady bumping into it. His conduct is more remote from the final event. Here's another pithy quote for you --"

[This] theory of causation relied on two metaphors: a chain of causation and the distinction between remote and proximate cause. Thus, someone could be held responsible for causing harm to another only when a chain of proximate rather than remote causes could be established from that person's act to the effect of damage on the other. These metaphors helped to construct a narrative of very limited liability, of very limited duties that all owed to all. [10]

My colleague found this a pleasing state of affairs. "Well, if I ignore your self-serving use of the word 'metaphor' here, I find this all quite logical, predictable and tangible. We have observable conduct, observable resulting events, and a systematic way to determine what conduct bears primary causal force. And that conduct is the result of individual agency and demands individual responsibility. Pretty neat and tidy."

"Not so fast. What if I told you the library clerk was fog-headed with a bad cold and a head full of medicine when he placed that printer there, and he would otherwise have thought such an act stupid and hazardous. But he had to work this morning, because his supervisor was unreasonable and wouldn't let him go home sick. And what if I told you the young lady and her boyfriend were walking on that side of the hallway only because that plumbing repair crew over there has taken up all of the rest of the hallway, leaving only a narrow space around the printer for others to get by? It's not so clear a case any more is it? Here's another thought for you -"

Agreement, like disagreement, can be the result of a variety of factors, individually or working in tandem. One should usually not ascribe certainty or consensus to one factor rather than another. Calling a single factor 'the reason' for a case being 'easy' is much like the way we talk about causation. We tend to label as 'the cause' of an event the factor that was least expected in the situation or most important for our purposes, even though a number of other factors were also necessary for that event to have occurred. Singling out one factor among many may suit our immediate purposes, but it can also cause us to forget that other factors were equally 'responsible." [11]

"Yet, I guarantee you that the average lawyer will not get muddled up when applying these concepts. She will know to deploy this inventory of legal categories in a seemingly straight- forward manner, labeling as a 'proximate cause' the conduct of every person involved, except her own client."

He deepens the creases between his eyes. 'While we're on this general topic, why the heck do they say a judge will 'split the baby' in a case? You know, when somebody thinks a court is just going to give each side half of what it requests, instead of making harder decisions and doing what justice would require."

"You remember King Solomon and the two women who both claimed to be the mother of a child. When the villagers couldn't resolve the dispute, they brought the two women and the infant to King Solomon and sought his advice."

"Yeah, but he didn't 'split the baby' for goodness sake! He rendered justice by exposing the truthful woman and the lying woman by the threat of splitting the baby and dividing the halves between them. The lying mother readily agreed to his proposition, while the true mother begged him to spare the baby even if it meant giving her child to the liar. How is such a beautiful test rendered down in time to such a crass metaphor as 'split the baby'?"

"You have a point. It's not enough to simply say that metaphors truncate, or abbreviate, larger expressions of meaning. The valence of the abbreviation is certainly telling. Why isn't our current metaphor something like 'expose the liar' instead of 'split the baby'? It may be a rather sad comment on what progress our tradition of justice has or hasn't made in the past millennium."

"But, let's spread our causality chain out a bit further. When the printer crashes to the floor, the sound is so loud as to startle that cashier at the coffee stand over there, just as she is handing a large container of very hot coffee to a customer. The two of them startle and flinch at the crashing sound, and send the coffee splashing all over the other counter worker. She screams out in pain, scalded by the too-hot coffee. Worse yet, this happens as she is working the steam spouts of the cappuccino maker. As she flinches due to the coffee poured onto her, she accidentally bends that steam spout around so that it points up at her face. This is not good, because that machine has been malfunctioning lately, allowing excess steam to build up inside it before expelling it from the spout in dangerous bursts. In fact, the workers have wondered if the contraption was even designed and manufactured properly, or whether it is defective in some way. And the worst happens, it blows out the excess pressure at that very moment, burning her face with a spray of super-heated steam and water."

"Lord, do you lie awake at night dreaming up these ghoulish scenarios?"

"Occasionally. In any event, Sherlock, who is to blame here? Who should compensate this poor worker of the coffee machine for her pain, suffering and medical expenses? Who caused those injuries?"

"Well, I need to know more about the machine."

"The machine of justice?"

"No, the coffee machine, you twit."

"You'll soon find that one machine has shaped the other, and not in the direction you think. The coffee machine was designed by one firm, and assembled by another corporation using parts manufactured by a variety of other companies. It has been malfunctioning for a few weeks now. The workers protested to the coffee stand manager. The manager asked the sales representative of the equipment leasing company to figure out what's wrong with it. The sales rep said it would take some time to get a replacement delivered. She asked the manager to work with the existing machine, and to bleed off any excess pressure before it might bust out in an uncontrolled or dangerous manner. And the manager instructed her workers to follow that procedure for weeks now, even though the machine obviously was not performing the way it should. On the morning of our fateful accident, the worker who was burned had failed to release the excess pressure in the manner recommended by the sales rep and the manager."

"Well, I should be able to skin this cat, but I'm not sure what individuals to start with for your series of questions on remote and proximate causes. There's an array of manufacturers, but also various people, end-users who may have misused the thing."

"Exactly, and you fall into a mire of confusion for good reason. That 'proximate cause' metaphor becomes obsolete when addressed to situations like this one. With mass produced goods, designed, manufactured and distributed by an array of disparate corporate entities, we lose the ability to track individual agency and any meaningful assignment of proximate causes. The machine of the assembly line came to alter aspects of the machine of justice. Consider - "

In short. as the accident narrative leaves the confines of the industrial era where human negligence, though mediated by a mechanical device, is still discernible, it enters those of the post- industrial era where, in Siegfried Giedion's ominous phrase, "mechanization takes command." It takes root, in other words, in a world in which mechanical products are often made by other products in an endless and virtually untraceable regression, a world in which some products are no longer even mechanical objects but processes, chemical transformations, or recombinant technologies. Even if still manufactured by human hands, these are products that are so far removed from the site of their original manufacture that they appear to have taken on a life of their own. Hence the category of accident cases known as products-liability.' [12]

"Remarkable, isn't it? Even the category label shows the shift away from individual agency and individual responsibility. It's 'products-liability,' rather than a single person's liability. Never expected to find ergativity in the accident law of America did you? You'll certainly find it in the law of many other cultures as well." [13]

"So, what's the result?"

I've got my poor scientist deflated and spinning in his chair. Nothing like the vertigo of legal concepts to shake someone from their convictions of consistency and predictability. I prod him further. "Well, do you think the poor worker should be blamed for her own injuries? After all, she was the one who had failed to bleed off the excess pressure in the machine that morning."

"NO, I don't think she is to blame. I mean, the machine should have been fixed or replaced. It wasn't fair to make the workers just tinker with it, not knowing what the real problem was."

"Exactly. And this is where a new metaphor is brought in: we ask who was in a position to detect and correct the defective condition of the product. Agency is not focused on who 'acted badly' here. Instead, we view the product as the agency of the damaging occurrence. The question is who could have detected and corrected the malevolent condition of the product. It's more like proximate detection instead of proximate cause. Judges have dealt with this difficulty by emphasizing that, because manufacturing processes have become so complicated, a consumer typically is no longer able to judge the safety and soundness of a product she is about to use. With an increasing focus placed upon the manufacturer, designer and distributor of a product, the legal system emphasized another, accompanying requirement for finding someone to be responsible -which party not only could have detected the danger, but should also have foreseen the hazards to the end-user? [14]

"You've certainly shown the complexity of things, but that doesn't prove to me that legal cause and effect are not real, or that they ire merely shifting contrivances. It's just a matter of the difficulties of determining causes and immediate effects in complex settings." My opponent is rallying his faith again. "In fact, I suspect I could play lawyer or judge fairly effectively with these additional categories you've laid out. I'd want to identify all companies involved in the design, manufacture and distribution of that machine and its constituent parts. And then I'd want to figure out who could be responsible for the defect in the first instance, and who was in a position to detect that defect thereafter and prevent this injury. And I would ask these questions of the injured worker as well, since she was a commercial user of the machine, and not just a victimized passer-by who had never handled the contraption."

The challenge re-issued, I proceed further. "Alright then, consider the gentleman sitting at that table near the coffee counter. He's in his late 50s, and looks to once have been fairly athletic in build. But now he's out of shape, and there's a distinct gauntness to his face, a withdrawn look in the eye."

"Ok, and how does he relate to the coffee machine?"

"He doesn't. He comes here because he enjoys the peacefulness. He likes to be surrounded by other people, without having to interact with them too much. About thirty years ago he was an infantryman in the U.S. Army. He served two tours in Vietnam, and he swore by three things during that time: his love of family, his unit and aerial support."

"Not 'country,' but aerial support? He's a rather pragmatic fellow."

"Very. The Army depended critically on aerial bombardments of key enemy locations during the various campaigns undertaken on the ground. But the ground was covered by lush jungle. To see the enemy movements and locate likely targets, all those leaves had to be dealt with. So, the U.S. government hired chemical manufacturers to produce an herbicide that would strip the jungle of its leaves. They did so in short order, and the Air Force used it to defoliate vast stretches of jungle. They simply sprayed it down from airplanes, since it had been designed to defoliate trees without causing harm to the ground forces in the area. It was remarkably effective."

"This is all fascinating, but we were discussing law and causes, weren't we?"

"I'll get there. But first, I'll take a poignant aside from this apparent tangent. This was a new phenomenon in a tropical jungle where there are no deciduous trees. So, the Vietnamese people came to associate the defoliation of their trees with the onset of brutal air bombardments. When the leaves began to fall, they knew to run. Later, in the summer of 1974, a large contingent of Vietnamese refugees were brought to the U.S. and set up in a refugee camp located in southeastern Pennsylvania. When autumn came, they were terrified. The folks operating the refugee camp couldn't figure out why they were so desperate to escape the area. They finally figured it out, and slowly convinced the refugees that the beautiful orange and red blaze of a maple tree's falling leaves did not mean they would all be blown to pieces within the week."

"Lord. . . . I don't know whether that supports my view that reality imposes itself upon us, or your view of the contingency of world-views."

"Agreed. It's a hard call conceptually, because the 'reality' is so twisted. But, back to the main track. That defoliant was not entirely harmless to people on the ground. It was a dioxin mix known by the name Agent Orange. Dioxin was later found to be a potential cause of certain diseases and cancers over long periods of time. When army personnel like our friend at the table there started developing cancers years later, they sought to attribute their illnesses to the dioxin sprayed over them when in Vietnam. We now have a new challenge for the law: how to assign causation for illnesses which develop over long time periods and which can be caused by a multitude of agents. At this point, we lose even the certainty of knowing which product is to blame, let alone the human agency of causation behind the product. Goodman puts it this way --"

In the toxic tort . . . the longevity of the injurious agent is complicated by factors like latency, ubiquity, and a pandemic potential that make not just the human but the individualized focus of the causal inquiry . . . obsolete. [15]

"But this is exactly where scientific methods can help out." My happy scientist rallies again. "You describe this as some insoluble problem. All you need is a knowledge of epidemiological schemes and you can conduct a longitudinal, multivariate analysis that will tell you the probability that dioxin will cause one form of disease or another and over what period of time."

"Impressive. But how long would such a research project take?"

"As long as it takes for the diseases to manifest themselves. Then we can derive statistical probabilities associating different diseases with past exposures to dioxin. I can't believe you chose this as an example of difficult causation issues!"

"So, Mr. Science, what are you going to do? Walk over to that gentleman and say 'sorry, but we have not yet completed the longitudinal, multivariate study which would prove your cancer is due solely to dioxin, but we hope to do so some day'? The man's got bills to pay, and not just for his super-heated coffee. Will he still be around when you finish your study?"

"So what do the courts do?"

"They craft some new metaphors and basically cut a lot of deals. For example, a fairly wise judge who handled an enormous class action lawsuit on Agent Orange split the causation question down into constituent parts, asking whether 'dioxin can cause certain diseases and whether it did cause a particular disease or defect in a particular person.' Then he brokered a deal by threatening all sides with the dangers they faced in determining the answers to these questions. Ultimately, he settled the disputes by deciding that ill Veterans and their families deserved the nation's financial support, even if they could not prove that Agent Orange caused their maladies. [16] And most so-called toxic torts, from cases involving pesticides to electro- magnetic fields to breast implants, all share this same difficulty. Resolution is not found in scientific proof of causation, but rather in the cutting of a deal to silence the lawyers and their endless deployment of ill-suited inventories. The cause and effect is fairly simple in the end: plaintiffs need money to pay medical bills, and companies will pay a sum certain in settlements rather than face the uncertainty of protracted litigation and the monetary drain of armies of lawyers playing ineffective and self-serving language games."

We'd talked around this subject until we were listless again.

"Hey, how about temporality? I'll grant you that identifying specific causal agents may often be challenging, but we can at least assume that there is often an orderly succession of events over time."

"Well . . . ." I fear he'll blow a cranial gasket when I decline to agree to this point as well "Some see an inability of different agents to view the time and space perceptions of each as commensurable with the other, even when they would like to consider themselves contemporaneous with one another. Borges calls this the first refutation of time and space."' [17]

His forehead crinkles again. "And . . . ."

"And, he sees as well a second refutation of time, which he states as follows: 'Outside each perception (real or conjectural) matter does not exist; outside each mental state spirit does not exist; neither does time exist outside each present moment.'" [18]

"So time does not exist outside each moment of perception, eh? All scientific longitudinal studies which lack a moment-by-moment interview with some sentient critter must now be discarded? What of Charles Lyell and the uniformitarian theory of geologic changes over the eons? What of Darwin's descent of species and natural selection over time?" The scientist's voice began to drip with disdain.

"I have two answers. First, many would not apply Borges' refutations of time and space to subjects which lack sentient agents, such as your geologic and genetic processes. Second, when I see analysts applying evolutionary theories to human socio-cultural systems diachronically, time does have an existence: it becomes a metaphor for causality itself. Perhaps we've come full circle."

I couldn't help myself, and pressed the point further. "You see, a separation of time from the recording of meaningful events resulted in a view of time as a neutral, uninterrupted succession of equal units. Such 'naturalized' time is often referred to as 'commodified' time, measured as if on a spatial rule. [19] One of the dangers of applying this concept in evolutionary accounts of socio-cultural phenomena is that time can next become a reified proxy for causality -- the uninterrupted succession of events is viewed as the embodiment of change and the vehicle of causality. This relationship between a naturalized time and a hypostatized social entity has been identified similarly for the concept of 'nations' existing and progressing in time: 'The idea of a sociological organism moving calendrically through homogenous, empty time is a precise analogue of the idea of the nation, which is also conceived as a solid community moving steadily down (or up) history." [20] Naturalized, homogenous time provides a stage on which the imagined entity can perform."

"Well, I'm no expert on competing theories of socio-cultural evolution," my scientist concedes, "but some of these folks are simply pushing the concepts of natural selection and adaptation too far."

"Agreed. But there's another impetus for falling into this view of time as somehow a causative force in its own right. We always talk about time flowing, don't we? Even my dear Borges ends his refutations of time by saying 'Time is the substance I am made of. Time is a river that sweeps me along, but I am the river.’" [21]

"Better than imagining oneself a frozen pond, eh?"

"Perhaps, but there is also a long tradition among social anthropologists of professing to 'freeze' time in their synchronic analyses of social relations, and thus to freeze the configurations of those relationships and the so-called social structures that they can discern and dissect. [22] But it is often in studies of long-term, diachronic changes in social systems that time steps up from being a mere dimension to becoming a force in its own right. I think Max Black has it right -"

A cause is something that we can or might be able to control. But we invoke causes also when our interest is in explaining something rather than controlling it. And as our accepted patterns of explanation become more complex, our notion of a cause becomes correspondingly more elusive, until it threatens to vanish altogether into the abstract conception of a law, a parameter, a boundary condition, or some combination of all of these. As scientific modes of investigation develop, the language of cause tends to its own supersession. [23]

"I find that some analysts' models of socio-cultural evolutions become sufficiently complex that they cannot provide a manageable narrative of causation. The breadth of their subject leads them to omit any account of individual persons as agents of stasis or change. They must place agency in the skin of a reified cultural system -- an 'organism,' with certain defining features and tendencies, which can move and progress across a chronological stage. They then end up reducing causation into the flowing of time."

"Yeah, but you won't get to that point until you first reify cultural systems, correct?"

"Correct. Yet, even at that point, I don't think we can borrow Borges' prose and say that 'Time is the substance the culture system is made of. Time is a river that sweeps it along, but it is the river.' You need a narrative of sentient players to make that move, and the evolutionists typically have abandoned that type of narrative to get at 'change over time.' Having created a reified 'organism' to replace so many individual players, they initially are left without a sentient actor. They then overcome this by, in a way, anthropomorphizing the critter, and assigning it sentience in the form of an unceasing intent to adapt to its surroundings." [24]

"Well, I wouldn't want to make that 'move' in any event," growled my happy scientist. "I prefer your friend's end-note here: 'The world, unfortunately, is real; I, unfortunately, am Borges.' Better him than me. What about you?"

"Let's just say that I am haunted by smoke."



My thanks to Roy Wagner and Lee Anne Fennell.



[1] Roy Wagner, The Invention of Culture, at 75 (Chicago: University of Chicago Press, 1981).

[2] Ludwig Wittgenstein, Tractatus Logico-Philosophicus, at 1.1 (D.F. Pears and B.F. McGuiness, translators; London: Routledge, 1974).

[3] Jorge Luis Borges, Tlon, Uqbar Orbis Tertius, in Labyrinths, at 14, 11,3 (New York: New Directions Books, 1964).

[4] Cf. Roy Wagner, Symbols That Stand for Themselves, at 8-9 (Chicago: University of Chicago Press, 1986).

[5] Hans Vaihinger, The Philosophy of As If: A System of the Theoretical, Practical, and Religious Fictions of Mankind, at 75 (C.K. Ogden, translator. New York: Harcourt Brace & Co., 1924).

[6] Vaihinger, The Philosophy of As If, at 354, quoting Friedrich Nietzsche, Collected Letters, Vol. XIV, at 33.

[7] Milner S. Ball, Lying Down Together: Law, Metaphor, and Theology, at 24 (Madison: University of Wisconsin Press, 1985) (footnote omitted).

[8] Zdravko Radman, Metaphors: Figures of the Mind, at 158 (Dordecht: Kluwer Academic Publishers, 1997) (footnote omitted), citing Michael Polanyi, Personal Knowledge, at 79 (New York: Harper Torchbooks, 1964).

[9] Radman, Metaphors, at 153.

[10] Nan Goodman, Shifting the Blame, at 8 (Princeton: Princeton University Press, 1998) (endnote omitted).

[11] Brian Bix, Law, Language and Legal Determinacy, at 18 1 (Oxford: Clarendon Press, 1993).

[12] Goodman, Shifting the Blame, at 160 (emphasis in original; endnote omitted).

[13] John M. Conley and William M. O'Barr, Just Words: Law, Language, and Power, at 106- 13 (Chicago: University of Chicago Press, 1998).

[14] The highest appellate courts in California and New York often took the lead in setting trends in such legal developments. See, for example, Justice Traynor's concurring opinion in the California Supreme Cow's decision of Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal2d453,467-68 (1944), and Justice Cardozo's opinion in Palsgraf v. Long Island Railroad Company, 248 N.Y. 339,345-47 (1928).

[15] Goodman, Shifting the Blame, at 165.

[16] In re 'Agent Orange" Product Liability Litigation, 597 F. Supp. 740, aff’d 818 F.2d 145 (2d Cir. 1987); see also Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts, at 224-54 (Cambridge: Harvard University Press, 1986).

[17] Jorge Luis Borges, A New Refutation of Time, in Labyrinths, at 222-23 (New York: New Directions Books, 1964).

[18] Borges, A New Refutation of Time, at 230.

[19] Michael Shanks and Christopher Tilley, Re-Constructing Archaeology, at 10 (London: Routledge, 1987); see also Wagner, The Invention of Culture, at 73-74; Wagner, Symbols That Stand for Themselves, at 84-85.

[20] Benedict Anderson, Imagined Communities, at 31 (Thetford: Thetford Press Limited, 1983).

[21] Borges, A New Refutation of Time, at 234; see also Max Black, Models and Metaphors: Studies in Language and Philosophy, at 182-93 (Ithaca: Cornell University Press, 1962); George Lakoff and Mark Johnson, Metaphors We Live By, at 109 (Chicago: University of Chicago Press, 1980).

[22] See, e.g., Johannes Fabian, Time and the Other: How Anthropology Makes Its Object, at 20 ( New York: Columbia University Press).

[23] Black, Models and Metaphors, at 168.

[24] Wagner, The Invention of Culture, at 86-87.







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