The Rule of Metaphor and the Rule of Law: Critical Metaphor Analysis in Judicial Discourse and Reason

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Legal practitioners and commentators have shown a historical distrust of metaphor. English utilitarianist Jeremy Bentham portrayed legal fictions as ‘syphilis’ which runs along the veins of legal arguments, arguing that metaphors are not valid as a basis for reasoning in legal arguments. Justice Cardozo warned that while metaphor begins by liberating thoughts, they often end up by enslaving thoughts. Often a phobia of indeterminacy led to a confusion of the real with the literal, and mistakenly linked metaphor to falsity. Despite the prevalent suspicion, there exist numerous metaphoric expressions in law. Metaphorical reasoning is closely related to the doctrine of binding precedents – the fundamental principle of Common Law jurisdiction. Some metaphors are arguably at the heart of jurisprudential debates and became the actual basis of legal reasoning.

With the advent of inter-disciplinary research pioneered by Winter’s A Clearing in the Forest: Law, Life, and Mind (2001), the past decade has witnessed a growing interest in metaphor research within the legal community and the recognition of the positive role of metaphor in legal discourse and the legal process. However, research on the role of metaphor in legal discourse carried out by linguists is scant. It is the aim of this thesis to look into the heuristic and constitutive role of legal metaphor from a hybrid perspective of Critical Discourse Analysis (CDA) and cognitive approaches including Conceptual Metaphor Theory (CMT) and Blending Theory (BT). iii

While Charteris-Black (2004) proposes a pragmatic discourse model to metaphor analysis which integrates corpus approaches, CMT and CDA, Hart (2008) contends that CMT is fundamentally incompatible with CDA. Utilizing a revised version of Critical Metaphor Analysis as the methodological framework (Charteris-Black, 2004; Semino, 2008; Hart 2008; Musolff & Zinken, 2009), this thesis examines the ambivalent role of metaphor in legal discourse. This thesis...
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