The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It (...) contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions are implemented, functions as one of the central social practices that constitute citizens as equals and addresses the question of how to ensure that government by the people operates for the people. The rule of law has many independently valuable qualities, including impartiality and predictability. But, to valorise the rule of law for its own sake is to fetishize authority. The fundamental values of the rule of law are as the instrument of democratic self-governance and the expression of the equal dignity of all persons. Democracy thus entails the rule of law, but both implicate the yet more comprehensive ideal of equality. Core rule-of-law values require political norms and conditions of equality, generality and comprehensiveness. In a modern, differentiated society, however, the constitutive relation between democracy and the rule of law is fractured and law becomes the agent of authority. Courts in the modern constitutional state have contributed to the decline of rule-of-law values, supporting role specialization through judge-made immunity doctrines that protect officials at all levels. The crisis of police violence against minorities is a symptom of this breakdown. Greater accountability can ameliorate the problem. But an effective solution requires the fair and equal distribution of political power. (shrink)

We offer a theory regarding the symbolism of the human body in legal discourse. The theory blends legal theory, the neuroscience of empathy, and biosemiotics, a branch of semiotics that combines semiotics with theoretical biology. Our theory posits that this symbolism of the body is not solely a metaphor or semiotic sign of how law is cognitively structured in the mind. We propose that it also signifies neurobiological mechanisms of social emotion in the brain that are involved in the social (...) and moral decision-making and behavior that law generally seeks to govern. Specifically, we hypothesize that the symbol of a collective human body in the language of law signifies neural mechanisms of pain empathy which generate a virtual, neurally simulated, emotional sense of sharing the feelings or pain of others and of thereby being one-in-body with or virtually equal to them. We speculate that this may be the neural basis of what is signified in legal and political theory as the “body politic” or “sense of equality,” because neuroscience and psychiatry further suggest that such pain empathy may provide the natural, emotional motivation to think and act in a rights-based manner. We conclude that misunderstanding of these neural mechanisms of pain empathy and related misinterpretation of this corporeal symbolism for the same may have long resulted in legal discourse that misinterprets the function of “pain” in the law and misinterprets the associated positive law, specifically the law regarding individual, equality-based rights and criminal justice, in particular, punishment theory. (shrink)

The essay deals with the mechanism of interpretation for legal metaphorical expressions. Firstly, it points out the perspective the cognitive approach induced about legal metaphors; then it suggests that this perspective gains in plausibility when a new bilateral model of language understanding is endorsed. A possible sketch of the meaning-making procedure for legal metaphors, compatible with this new model, is then proposed, and illustrated with some examples built on concepts belonging to the Italian Civil Code. The insights the bilateral model (...) of understanding provides are compared with the practice followed by legal communities for dealing with the metaphorical expressions they coin and use. (shrink)

The article uses embodiment and the experiential basis of conceptual metaphor to argue for the metaphorical essence of abstract legal thought.concepts like ‘law’ and ‘justice’ need to borrow from a spatial, bodily, or physical prototype in order to be conceptualised, seen, for example, in the fact that justice preferably is found ‘under’ law. Three conceptual categories of how law is conceptualised is examined: law as an object, law as a vertical relation, and law as an area. The Google Ngram Viewer, (...) based on the massive library of books that Google has scanned, has been used to study legally relevant conceptions over time within each of these three categories, from 1800 to 2000. In addition, the article suggests a type of analytical method of ‘metaphor triangulation,’ that is, the replacement of prevailing metaphors with unusual ones in order to increase the level of awareness of what conceptual content the prevailing metaphors involve. (shrink)

The article uses conceptual metaphor theory to analyse how the concept of “copy” in copyright law is expanding in a digital society to cover more phenomena than originally intended. For this purpose, the legally accepted model for valuing media files in the case against The Pirate Bay (TPB) is used in the analysis. When four men behind TPB were convicted in the District Court of Stockholm, Sweden, on 17 April 2009, to many, it marked a victory over online piracy for (...) the American and Swedish media corporations. The convicted men were jointly liable for the damages of roughly EUR 3.5 million. But how do you calculate damages of file sharing? For example, what is the value of a copy? The article uses a model for valuating files in monetary numbers, suggested by the American plaintiffs and sanctioned by the District Court in the case against the BitTorrent site TPB, in order to calculate the total value of an entire, and in this anonymous other, BitTorrent site. These calculated hypothetical figures are huge—EUR 53 billion—and grow click by click which, on its face, questions some of the key assumptions in the copy-by-copy valuation that are sprung from analogue conceptions of reality, and transferred into a digital context. This signals a (legal) conceptual expansion of the meaning of “copy” in copyright that does not seem to fit with how the phenomenon is conceptualised by the younger generation of media consumers. (shrink)

From the late 1950s until 1975, cognition was understood mainly as disembodied symbol manipulation in cognitive psychology, linguistics, artificial intelligence, and the nascent field of Cognitive Science. The idea of embodied cognition entered the field of Cognitive Linguistics at its beginning in 1975. Since then, cognitive linguists, working with neuroscientists, computer scientists, and experimental psychologists, have been developing a neural theory of thought and language (NTTL). Central to NTTL are the following ideas: (a) we think with our brains, that is, (...) thought is physical and is carried out by functional neural circuitry; (b) what makes thought meaningful are the ways those neural circuits are connected to the body and characterize embodied experience; (c) so-called abstract ideas are embodied in this way as well, as is language. Experimental results in embodied cognition are seen not only as confirming NTTL but also explained via NTTL, mostly via the neural theory of conceptual metaphor. Left behind more than three decades ago is the old idea that cognition uses the abstract manipulation of disembodied symbols that are meaningless in themselves but that somehow constitute internal “representations of external reality” without serious mediation by the body and brain. This article uniquely explains the connections between embodied cognition results since that time and results from cognitive linguistics, experimental psychology, computational modeling, and neuroscience. (shrink)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

Šiame straipsnyje analizuojamos metaforos ES direktyvose dėl kai kurių baudžiamųjų veikų, konkrečiai, dėl pinigų plovimo ir prekybos žmonėmis. Tyrimas grindžiamas šiuolaikine metaforos samprata, kai abstraktesnė sritis aiškinama konkretesne ir tas turinys reiškiamas kalba, konkrečiai, kalbos metaforomis. Šio tyrimo tikslinė sritis – teisė. Tyrimu siekta nustatyti pagrindines ištakų sritis, pasitelkiamas teisei konceptualizuoti. Be to, siekta nustatyti, ar tos pačios metaforos išlaikomos direktyvų vertimuose į lietuvių kalbą. Tyrimui pasitelkta programinė įranga AntConc leido atrinkti pagrindinius žodžius pagal dažnį. Vėliau analizuoti metaforiniai junginiai. Tyrimo (...) rezultatai parodė, kad objekto metafora ir personifikacija vartojama dažniausiai. Šie rezultatai atitinka ankstesniuose tyrimuose nustatytas tendencijas. Kiek netikėta, kad karo metafora buvo itin reta, tačiau gana dažnai direktyvose buvo vartojama metafora galia / kontrolė yra aukštai. Vertime dažniausiai išlaikytos pagrindinės metaforos – objekto metafora ir personifikacija. Įdomu, kad metafora galia / kontrolė yra aukštai vertime į lietuvių kalbą beveik visais atvejais buvo reiškiama kita metafora arba verčiama nemetaforiniu būdu. Atidžiau panagrinėjus metaforas, susijusias su pinigų plovimo ir prekybos žmonėmis sritimis, paaiškėjo, kad anglų kalboje labai nuosekliai laikomasi pinigų plovimo scenarijaus, lietuvių kalboje jis gerokai fragmentiškesnis. Angliškas terminas trafficking in human beings ir jo lietuviškas atitikmuo prekyba žmonėmis grindžiami skirtingomis ištakų sritimis. (shrink)

An argument that makes use of a generalization activates the prototype for the category used in the generalization. We conducted two experiments that investigated how the activation of the prototype affects the persuasiveness of the argument. The results of the experiments suggest that the features of the prototype overshadow and partly overwrite the actual facts of the case. The case is, to some extent, judged as if it had the features of the prototype instead of the features it actually has. (...) This prototype effect increases the persuasiveness of the argument in situations where the audience finds the judgment more warranted for the prototype than for the actual case, but decreases persuasiveness in situations where the audience finds the judgment less warranted for the prototype than for the actual case. (shrink)

Recent studies of conceptual metaphors in a legal context have often dealt with the power of embodiment. However, the connotations of culturally originated metaphors could be different when they appear in laws and regulations. In particular, the role of metaphor when the legislator wishes to define intention in hybrid organizations is investigated here. The case studied is how a conceptual metaphor of ‘business’ manifesting itself in the Swedish simile adjective affärsmässig has spread over 40 years. ‘Business’ early on acquired connotations (...) such as impartiality and methodical approach, and can be used metaphorically. Introduced in the regulation of public procurement, ‘businesslike’ was later used to regulate conflicts of interest, restrict state aid and also entered tax legislation. Analysis of Swedish court decisions where ‘businesslike’ occurs shows how the emphasis has shifted from public sector efficiency to neo-liberal principles of competition, while stronger social norms related to environmental effects have led to the term being removed from the Public Procurement Act. Elements of a mixed jurisdiction arise from reliance on EU case-law, and national use of ambiguous cultural metaphors in legal texts and court decisions is a plausible response. (shrink)

The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the Court’s idiosyncratic translation policy.