Hamburg: rowohlt. Johnson, Mark The Body in the Mind. Chicago: The University of Chicago Press. Kleist, Cornelia von Zur Verwendung von Metaphern in den Selbstdarstellungen von Psychotherapieklienten.
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Ein Sammelband zur Medizinethnologie pp. For example, norm has to conform with constitutional rules, or human rights policies. Functional interpretation is less specific and connects to the largest context: among others, social, economic, ethical. As a result, two implications exist: theoretical and practical. Secondly, conceptual theory of metaphor can be effectively used in the process of legal interpretation. However, the use of cognitive metaphor in the process of legal interpretation demands caution due to its specific character. Three kinds of the doubts can be identified.
Firstly, linguistic doubts.
The use of a vague language would be an example of such. Secondly, systemic doubts. They can be exemplified by a relationship between the valid norms present in a particular legal system.
Thirdly, functional doubts are the doubts concerning consequences of applying legal norm to a specific case. Some of the consequences can be of social, economic or ethical nature. These directives aim to help the interpreter to make appropriate decision regarding the meaning of the norm.
Additionally, when first degree directives do not provide agreeable outcome, second degree directives are applied. At this point, two sets of theories are distinguished: static and dynamic. Static theories favor linguistic directives. Within static theories group, subjective theories stress the bond between the legal text and a will of lawmaker and are most common. Dynamic theories contrast the static theories. Within dynamic theories group, functional directives are most significant, while linguistic carry least importance. Additionally, these theories distinguish: teleological-sociological theories, theories of value, and others.
Somewhere among them so called objective theories exist. In practice, an established country with the functional government and effective legal system leans towards the use of static theories. Current situation in Poland exemplifies predominant use of static theories. On the contrary, dynamic theories seem to be more effectively applied in the countries going through transformational processes. During transformation from communistic, non-democratic country into capitalistic democratic country, new government adjusted legal system to new circumstances.
Transitional process proved to be complex. During this time functional interpretation was applied. Due to this application transformation process was possible, even though the legislation was drafted by historic, communist lawmaker. Thus, even though, clear recognition of directives is available, the result of interpretation might still be unpredictable In each case, the personality of the interpreter, and factors affecting him influence the interpretation.
Hence, a twilight zone exists with other factors influencing legal interpretation. Additionally, until these factors remain unknown, predictability within interpretation process is impossible to achieve. Such metaphors are called verbal or point metaphors see: Rybarkiewicz , 3. On the other hand, conceptual metaphors as described by Lakoff and Johnson influence the way of thinking as well. This point of view, defines language as a top layer of something greater.
Conceptual metaphors structure our cognition and perception of abstract phenomena.
gorelka-kotel.ru/profiles/kef-plaquenil-vs-chloroquine.php As a result the issue relates rather to the way of thinking than the way of speaking. The whole process of metaphorical thinking is described in terms of source domain and target domain. Source domain is a domain where metaphor is drawn and is rather tangible e.
On the other hand, target domain is abstract e. Comprehension of target domain can be achieved by referring to source domain. To support this claim, they provide some utterances illustrating transition from war to argument. Lakoff and Johnson also note that idea of argument as a war is something greater than just linguistic expression. For instance, 3 Rybarkiewicz distinguishes three types of metaphors: verbal point metaphors, systemic which allow to think outside the box and are created consciously, and hidden systemic conceptual.
Additionally, strategies can be involved in the argument in order to win it.
Therefore, structure of argument seems to resemble structure of war. Imagine a culture where an argument is viewed as a dance, the participants are seen as performers and the goal is to perform in a balanced and aesthetically pleasing way. In such a culture people would view argument differently, experience them differently, carry them out differently and talked about them differently Repercussions may hide some other aspects of the abstract concepts. In example mentioned above, potentially argument does not need to be perceived as a war.
This is made possible via the movement of the Hegelian Aufhebung. Leiden, E. Though it does play a central role in social persuasion, metaphor, restricted by the mechanics of similarity and substitution, does not carry with it any speculative or philosophical importance. A corpus study of most frequently used English verbs by Chinese beginner learners from a conceptual transfer perspective. Further landmarks in the decade are constituted by Sacks' On Metaphor , by the work of psychologists cf. Metaphorical concepts : Metaphors do not appear in isolation but form metaphorical concepts which are capable of reconstruction.
An example of the cluster is prototype causation, which is a basic concept. For example, prototypes are small, flying birds. On the other hand, chickens or penguins are not prototypical birds Lakoff and Johnson , Such properties constituting prototype are experienced as gestalt. I believe, such gestalts can be found in law and in the following paragraphs it will be demonstrated. If the observations of Lakoff and Johnson are true, than this theory should also work in the field of law.
Law and legal language concern abstract concepts, and most legal institutions contain the abstract feature. Hence, legal text is saturated with metaphors, revealing some aspects of legal institutions and hiding others. For example, in penal code there is plenty of metaphors referring to responsibility as a burden and not many referring to responsibility in the context of freedom.
Similarly, goods being an object of a crime are viewed as a treasure. On the other hand, Polish copyright law treats subject of intellectual property equally to an exclusive and fenced piece of land demanding guardians. Examples mentioned above, demonstrate the way to perceive legal institutions and law itself.
Sometimes, due to specific metaphors certain aspects of legal institutions are disregarded. Mataphors are built in the structure of language, secretly influencing our thinking and the way we perceive the world, especially abstract phenomena such as legal institutions. In law meaning is often artificially shaped. The temptation to miss some aspects in favor of highlighting others might be strong. Additionally, it might be a political decision to do so. In next paragraphs, I will make attempt to demonstrate the interplay of legal interpretation and metaphors.
Firstly, a discussion regarding compatibility of conceptual metaphors in legal sphere will be held. Next, I will argue that due to character of metaphors, the caution is demanded when employing metaphors as directives of legal interpretation. Finally, the issue of incompleteness of directives and their relation to metaphors will be explored.
Returning to theory of legal interpretation, imagine a judge interpreting the text. He has three directives of legal interpretation at his disposal. Probably, at first he uses linguistic directives, followed by systemic and functional directives. As it has been mentioned before, when possible, interpreter is obliged to use common language at first step. Alternatively, when necessary, he should use expert language used for certain field of science or law.