The Metaphorical Engine of Legal Reasoning and Legal Interpretation

Sylwia Wojtczak

WYDAWNICTWO C.H.BECK
WARSZAWA 2017

Recenzent wydawniczy/Peer reviewer: dr hab. Przemysław Kaczmarek

Redakcja/Publishing editor: Joanna Szypulska

Publikacja sfinansowana ze środków Narodowego Centrum Nauki przyznanych na podstawie decyzji numer DEC-2013/09/B/HS5/02529

This publication is published with funds from the National Science Centre (decision No. DEC-2013/09/B/HS5/02529)

© by Sylwia Wojtczak 2017

Wydawnictwo C.H.Beck Sp. z o.o.
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In memory of my Mother

Introduction

It is a well-known fact that law professors tend to have their own philosophy, psychology, sociology, and what not, more or less reasonable but certainly not professionally sophisticated (Peczenik, 1997, p. 142).

This book and my interest in metaphors are not accidental. They are a direct consequence of my earlier work. My research on the incommensurability of values, which I did several years ago (Wojtczak, 2010), left me with a feeling of marvel about the phenomenon of the human ability to take decisions, which has been a constant source of amazement for me ever since. There are several different theories and methods put forward by different authors with the aim to demonstrate how it is possible for a human being to come to a decision when the given options and their respective values are often incommensurable. None of the available models has proved to be entirely convincing for me. Another facet of the same – in my opinion – problem is that human beings are able to communicate with each other despite the inescapable vagueness of language, despite the fact that language is always underdetermined. The combination, and at the same time the culmination, of the two facets is the amazing fact that lawyers are able to interpret and apply the law with a significant degree of predictability in spite of its inevitable indeterminacy. It is a dilemma similar to Jørgensen’s dilemma, which has bothered legal theorists so much and which shows that in theory we should not be able to do the thing that in reality we do successfully:

So we have the following puzzle: According to a generally accepted definition of logical inference only sentences which are capable of being true or false can function as premises or conclusions in an inference; nevertheless it seems evident that a conclusion in the imperative mood may be drawn from two premises one of which or both of which are in the imperative mood. How is this puzzle to be dealt with? (Jørgensen, 1937, p. 290)

Having taken all these phenomena and questions together I started to suspect that this amazing set of plain human beings’ and lawyers’ abilities should not be a collective product of many specialized instruments or procedures (for example one aimed at linguistic problems, another aimed at logical problems, and still another devoted to the problem of values), but rather a set being part of a greater, more general, and to some extent unified cognitive mechanism.

This conviction was accompanied by the growing feeling that lawyers, especially legal scholars, should do something to adopt for their legal purposes the achievements of contemporary science, especially of cognitive science. Being an active academic teacher I am quite stalked by the prevision that some day after my lecture about pure linguistic interpretation being the boundary for systemic or functional interpretation, or a lecture about unbiased judicial cognition, some student (students are nowadays multidisciplinary and I teach students of law whose first academic degree was gained in a different discipline, e.g. in psychology) will openly tell me that everything I talked about was a lie or a medieval superstition. I naïvely imagine that in the same way judges should have nightmares of similar reaction on the part of the participants of a trial; if only judges knew to what degree their justifications can sometimes be contrary to the state-of-the-art knowledge that contemporary cognitive science has already gained. I am afraid that some of the traditional, widely accepted, and persistently maintained legal theories concerning legal interpretation, legal reasoning, or legal cognition of facts are nowadays in the position that could be identified with constant persistence that the Earth is flat.

At this point many legal scholars could say that my concern is useless and unjustified because cognitive science with its research field is relevant for the context of discovery related to decision taking, while legal sciences and legal practice are interested in the context of justification. After all I have actually heard criticism of that kind on more than one occasion up till now1.

In general scientific methodology and in the philosophy of science a differentiation between the context of discovery and the context of justification is frequently made. The distinction originates from Hans Reichenbach (although it is also sometimes attributed to Karl Popper) and from the beginning, that is at least since 1938, when his book Experience and Prediction was published, it has been widely discussed and reformulated in many ways. For legal sciences – differently than in natural sciences for example – the concept has double application: a classic one – for strictly scientific activity, and the other one – per analogiam – for legal (mainly judicial) decisions being later subjected to scientific research. This means that, at least potentially, both the context of discovery and the context of justification can be identified as subjects of legal sciences; it should be noted that it does not concern a scientific thesis, but only a legal decision – both the final one and every fractional decision leading to the final one (for example a decision of interpretation). However, many legal scholars, especially those of a more traditional stance, copying some positions taken within the philosophy of science, insist that for legal sciences (excluding young and still undervalued legal sociology or legal psychology) the context of discovery of a legal decision is of no significance. They deny that the context of discovery should have any importance because – according to them – the actual process of decision-making is inaccessible for truly scientific research (or for rational reconstruction), and legal decisions are products of intuition, which emerge on the basis of a sense of law, from legal pre-understanding, etc. (the source to be chosen depending on the assumed specific legal philosophical or theoretical concept)2. Such demurs are, in my opinion, founded on at least three important misconceptions. The first problem is both a mistaken understanding of the conception of the contexts, especially in its Reichenbachian version (which in its original frame fits the aims of legal sciences surprisingly well), and mixing it with the descriptive/normative dichotomy. The second mistake is the assumption that there is no necessary connection between the context of discovery and the context of justification. Finally, the third mistake is the conviction that the actual process of decision-making is entirely inaccessible for truly scientific research, or for rational reconstruction.

Let us start by elucidating the first and the second mistake. According to the reliable reconstruction of Reichenbach’s conception presented by M. Aufrecht, for Reichenbach, the difference between external epistemic relations, which include the position and history of a given scientist in the world, and internal relations concerning the content of knowledge and the process of thinking (Reichenbach, 1961, pp. 3–4), was very important:

Reichenbach distinguishes the sociologist, on one hand, from the psychologist and the philosopher, on the other. The sociologist studies external relations of knowledge, while the psychologist and the philosopher both study the internal relations of knowledge. For Reichenbach, philosophers and sociologists differ in what they study, while philosophers and psychologists study the same thing but differ in how they study it. Philosophers and psychologists emphasize different parts of thought processes (Aufrecht, 2010, p. 34).

Reichenbach establishes three tasks for philosophers of science: descriptive, critical, and advisory. And it is mainly the descriptive task where the differentiation between the context of discovery and the context of justification matters. This differentiation is in fact to be a tool for Reichenbach to explain his concept of rational reconstruction:

If a more convenient determination of this concept of rational reconstruction is wanted, we might say that it corresponds to the form in which thinking processes are communicated to other persons instead of the form in which they are subjectively performed. The way, for instance, in which a mathematician publishes a new demonstration, or a physicist his logical reasoning in the foundation of a new theory, would almost correspond to our concept of rational reconstruction; and the well-known difference between the thinker’s way of finding this theorem and his way of presenting it before a public may illustrate the difference in question. I shall introduce the terms context of discovery and context of justification to mark the distinction. Then we have to say that epistemology is only occupied in constructing the context of justification. But even the way of presenting scientific theories is only approximation to what we mean by the context of justification. Even in the written form scientific expositions do not always correspond to the exigencies of logic or suppress the traces of subjective motivation from which they started (Reichenbach, 1961, pp. 6–7).

Simultaneously, it should be remembered that for Reichenbach rational reconstruction cannot be independent of the actual process of thinking and the context of justification cannot be entirely different from the context of discovery:

Epistemology does not regard the process of thinking in their actual occurrence […] Epistemology thus considers a logical substitute rather than real process. […] In spite of its being performed on a fictive construction, we must retain the notion of the descriptive task of epistemology. The construction to be given is not arbitrary; it is bound to actual thinking by the postulate of correspondence.[…] But the tendency to remain in correspondence with actual thinking must be separated from tendency to obtain valid thinking […] It may even happen that the description of knowledge leads to the result that certain chains of thoughts, or operations, cannot be justified; in other words that even rational reconstruction contains unjustifiable chains, or that it is not possible to intercalate a justifiable chain between the starting-point and the issue of actual thinking. [...] [A]lthough description, as it is here meant, is not a copy of actual thinking but the construction of an equivalent, it is bound by the postulate of correspondence and may expose knowledge to criticism (Reichenbach, 1961, pp. 5–8).

Thus, if legal scholars use the concept of the two contexts for the purposes of determining the epistemological conditions of researching legal (judicial) decisions and they want to avoid the first and the second of the above mentioned mistakes, they should remember that:

1) written opinion on a legal decision cannot be directly identified with the context of justification;

2) the context of justification consists of reasons for a legal decision as they are and not as they should be.

Legal scholars should also remember that they use the concepts of the context of discovery or justification only per analogiam. Scientific statements are different from legal decisions not only because of their different logical status, but also because of the aim they are to serve. That is why the criteria of rationality and the points essential for rational reconstruction of the supportive reasoning are different for either of them. Logical consistency is for legal decisions less important than being fair, while fairness is for science of no importance. If a legal decision is uncontroversially considered fair, no one would worry about its logical correctness, but even if a legal decision is logically correct it is often questioned on grounds of justice.

Let me now explain the mechanism of the third mistake. It is not true nowadays that the actual process of decision-making is entirely inaccessible for truly scientific research and rational reconstruction. The achievements of cognitive science, especially neuroscience, in researching the processing of the human mind and thinking are really impressive. Even if we cannot formulate reliable positive statements about the concrete course of thinking (that is by a concrete individual concerning concrete matter in a concrete moment), even if we cannot discover the actual way of thinking of a given judge while giving a concrete sentence, we can at least falsify certain statements about such thinking process in a way entirely fulfilling criteria accepted for natural sciences. For example, now we know for sure that for a human being it is impossible to exclude emotions from the process of decision-making and that it is impossible to be completely unbiased, and that we cannot exclude from the process of thinking the influence of our cultural identity, etc. (Damasio, 1994, 2000, 2003, 2010). Up till now the hypotheses of this kind were widely discussed in philosophy or in science, but because there was no hard evidence for them we (scientists, lawyers and others) could hope that they were false and that hope was nourished by us for a long time. We could expect or imagine that having fulfilled some severe conditions we, or at least some of us, God-like men – judges (or scientists), would reach the ideal of entire rationality and emotional neutrality; or that at least some of us could try and get close to these regulatory ideas. And now we have to face the dramatic dilemma: if we say that a judge should decide in an unbiased or unemotional manner, are we infringing the impossibillium nulla est obligatio principle? I do not believe any lawyer would agree. Something then should be changed. Even if we say that while speaking of neutrality; or objectivity of legal reasoning we, as a matter of fact, were talking about different things, we meant different propositions than those disqualified by cognitive science (that we meant a different level of description for example), it does not let us leave the things untouched. If we are not to abandon our up-to-now-cherished views about the nature of legal (judicial) decision-making, we at least must change the language we speak. We must at least admit: “Yes, the Earth is a sphere from the cosmic perspective but from the perspective of a single human being it is flat” (“Yes, judges are not able to be completely unbiased and culturally neutral, but from the perspective of a great number of simple cases a certain kind of bias or a certain kind of emotion has no significant influence on the fairness of their decisions.”). And then we must also admit that even from the perspective of a single human being the sphericity of the Earth may sometimes be important (“Yes, there are legal cases which are especially hard, or in which the decisions may not be completely fair due to the difficulty arising from irremovable cultural and cognitive limitations or emotional reactions of judges.”). That means that legal scholars have no option but to conduct research into the context of discovery of legal decisions, even just in order to avoid false theses or to adjust their language to the language of contemporary science. They cannot maintain the present language justifying this convention by the features or the internal assumptions of the practice or the domain they are working in. For this practice or domain is not separate and autonomous in relation to other social practices and domains and it is not – in spite of the claims of some philosophers – the kingdom or empire or ownership, whose kings, princes or owners are judges or other lawyers.

Finally, I shall present the last and a completely different argument to support the claim of there being the necessity of researching the context of discovery of legal (judicial) decisions. R. Alexy, analysing general practical discourse of which a legal discourse is, according to him, a special case, states:

(1.2 [Every speaker may only assert what he or she actually believes]) is constitutive of every linguistic communication. Without (1.2) it would not even be possible to lie, for in absence of the presupposition of a rule requiring sincerity, deception is inconceivable. (1.2) does not thereby exclude the utterance of conjectures; it only demands that they be marked out as such (Alexy, 1989, pp. 189–190).

And he treats such sincerity as something more than an assumption about (the nature of) communication, as it is usually treated by linguists. He treats it as a demand, rule or requirement which must be fulfilled if the discourse in question is to be rational. Thus, if we accept Alexian rules of rational practical discourse, we must consequently admit, that every legal decision-maker is required to believe the justification she gives. She must be convinced that the reasons of the decisions she states were really the reasons she actually took into consideration in the course of the decision-making. It means that there is a requirement to firmly connect the context of justification and the context of discovery. Thus, if one assumes that legal discourse should be rational and that legal discourse in our legal culture is rational, one cannot place this rationality within only one context – the context of justification. One must admit that the rationality of the context of justification must be derivative with respect to the context of discovery. The other, and quite different issue is the question of what kind of rationality is involved in such situations. Maybe the rationality present within the context of discovery is not exactly the same as the rationality we ascribed to our thinking process within the context of justification. Should the difference between the two kinds of rationality identified in both contexts appear too big, it could be a sign that our reconstruction of rationality made within the context of justification (though – or maybe because – it was performed earlier in the course of the history of ideas) was not very successful (cf. also (MacCormick, 2005, p. 208)).

Thus I wanted to research the actual thought process which reveals itself on the surface of justifications of legal decisions. Furthermore, I wanted to resolve at least partially the mysterious puzzle of our human ability to make acceptable decisions in situations where they are allegedly impossible: a puzzle of constant and statistically successful legal decision-making while law is indeterminate, the language of the law is vague, or values are incommensurable. However, at the same time, I do not believe that gaining some general all-in-one-explaining theory would be possible today. I believe in Thomas Nagel’s position, expressed in the field of ethics but, in my opinion, being true in all areas of practical thought. This philosopher insists that:

To look for a single general theory how to decide the right things to do is like looking for a single theory of how to decide what to believe. Such a progress as we made in the systematic justification and criticism of beliefs has not come mostly from general principles of reasoning but from the understanding of particular areas, marked out by the different sciences, by history, by mathematics […] [O]ne need not make progress at the most fundamental level to make progress at all. […] The lack of a general theory leads too easily to a false dichotomy: either fall back entirely on the unsystematic intuitive judgement of whoever has to make a decision, or else cook up a unified but artificial system […] What is needed instead is a mixed strategy, combining systematic results where these are applicable with less systematic judgments to fill in the gaps (Nagel, 1979, pp. 135–139).

That is why I did not have an imperial ambition to invent a general theory, which explains all the niggling questions troubling my and other legal scholars’ minds in connection with the above-mentioned human ability. I looked for a concept, which – even if partial – could give the right direction to the quest. Some hope was given to me by cognitive linguistics, which – being focused on language – seemed to me the nearest to the problems legal scholars are concerned with. In this way a problem of cognitive conceptual metaphor has drawn my special attention, because of the close connection between metaphor and analogy. I consider analogy as a capital of a legal reasoning empire, whereas L. Berger considers both metaphor and analogy the sun and the moon of legal persuasion, pointing out that “providing comparison, categorization and perspective, they are our primary sources of generated and reflected light” (Berger, 2013).

I want to emphasise in advance very strongly that granting so significant a role in legal reasoning to analogy, I do not understand analogy in a very strict way as being an inferential operation where one norm is inferred from another, such as analogia legis or analogia iuris. My concept of legal reasoning is also wider and I do not believe that it only concerns performing inferential rules. I am of the opinion that analogy is present in almost every part of legal decision-making, even in the very act of choosing between settled options (general or partial), since we are predisposed to make choices similar to those that we have successfully made before. And I believe that the borderline between legal reasoning and legal interpretation is very faint. I would even dare to say that there is no border between legal reasoning and legal interpretation when they are made in concreto, that is, for resolving a concrete case. Hermeneutics drew our attention to this phenomenon a long time ago. Arthur Kaufmann particularly insisted that the process of discovering the law is neither purely deductive nor purely inductive, but it is of mixed deductive-inductive character, and it is exactly this kind of reasoning that was called “analogy” by Aristotle. Kaufmann believed that law is not any substance, but a relation of correspondence between “ought” and “is” (Pomarici, 2003). It can be seen in Chapter V, but also in other chapters of this volume, that his position has strong support from the cognitive theory of metaphor.

Cognitive linguistics proved that figurative thinking, especially metaphor, is central for human cognition. The indispensable and wide role of conceptual metaphor in human cognition, being an instrument of conceptualization and reasoning, could not be less frequent in the legal sphere than in other spheres, not only because conceptualization is so important for legal reasoning, but also because the legal sphere is a sphere of abstract concepts and the language of law is an instrument of communicating solely the things that are abstract. The categories used by law and by the language of the law are not the same categories that are being used in everyday discourse and reasoning, even though they look similar. These categories are always legal categories. Even if it seems that a law refers to a very concrete, physical reality – real-world phenomena, things or actions – even if we use dictionary meanings or concepts while interpreting the law, these phenomena, entities, actions, meanings and concepts only look like ordinary ones; in fact they have been reconceptualized by the law. They are legal categories. They are abstract3 in a special sense. And how is it possible to communicate the abstract? Cognitive linguistics insists that the only possible way to do that is by using metaphor or other figures of speech. The reason is that we do not have any direct access to any abstract reality. We do not have any additional sense to detect and experience the abstract. A simple way to realize this fact is a thought experiment consisting in closing one’s eyes and trying to imagine some legal institution – for example a legal person, marriage, adoption, limitation of actions, etc. We can imagine only surface symptoms of the institution, but it is not possible to imagine the institution as such. General (or common, ordinary) language is full of metaphors – this is the basic thesis of cognitive linguistics. Certainly some of these general (common and ordinary) language metaphors are used to construct social institutions. But in general (or common, ordinary) language there are also expressions that have literal meanings which are absent from legal language or the texts of the law. Why? Because in this language one sometimes (or maybe quite often – it does not matter) speaks of physical phenomena, of things and actions; one can communicate experiential knowledge and can refer to a concrete domain. And this is something that does not ever happen in law. As a result law must use metaphors instead of literally understood utterances.

Cognitive linguistics draws our attention to an important aspect of human cognition, which can be seen both in the metaphoricity of our cognition and language, and in the legal domain. Due to the fact that human beings, as indicated above, do not possess any special sense to detect the abstract, they construct and construe abstract concepts by means of figurative thinking and language, mainly using metaphorical mapping as an indispensable and convenient tool, while utilizing at the same time their bodily experience as the fabric of the system. There is no other way to construct and construe abstract concepts but to build them on the basis of the widely understood knowledge4 gained in the course of interactions between the human body and its external and internal milieu. According to the main thesis of cognitive science – the thesis of embodiment – our mind, cognition, culture, and, consequently, also law, are dependent on the fact that we are living creatures, mammals; on the fact that we have erect bodies, with the front and the back, standing on two legs, with two operational hands, with a movable head, with two eyes situated in front of our head and two ears on the sides, etc. One should observe that the shape of the body is quite a contingent fact and – just look like the cognitive concept of embodiment and Hart’s minimum content of natural law coincide with each other (which cannot be accidental) – “things might have been, and might one day be, otherwise”5 (Hart, 1994, p. 194). If we were bats our bodily experience would have been completely different and even if, arguendo, we had used exactly the same cognitive mechanisms, our conceptual world would have been completely different (Nagel, 1991). And, exactly in the same way, our legal world would have to change if we were, for example, turtles or other

species of animals whose physical structure (including exoskeletons or a carapace) renders them virtually immune from attack by other members of their species and animals who have no organs enabling them to attack. If men were to lose their vulnerability to each other there would vanish one obvious reason for the most characteristic provision of law and morals: Thou shalt not kill (Hart, 1994, p. 194).

The next reason for which the cognitive theory of metaphor presents itself as suitable in the context of pursuing the goal that I set myself is the characteristic parallelism between metaphor and law. According to traditional view, metaphors are the tools of poetic or rhetoric speech, not suited for everyday use. They are products of imagination whereas imagination is absolutely free and, if used by a person gifted enough, is not necessarily determined by any external or internal limitations. In particular within the traditional view, imagination does not have to follow any externally or internally dependent routes. It cannot be crammed into any schemata. Imagination by its nature acts randomly. And – still describing the traditional position – metaphor has the same characteristics: its content, its form and its consequences are contingent, if not entirely random. If created by a person gifted enough there is no recognizable pattern in it (but – again a paradox of the same kind – these random products of imagination and these random metaphors are usually quite comprehensible and perceivable for others). Cognitive linguistics and its theory of metaphor, having its grande entrée in intellectual and scientific discourse with Lakoff and Johnson’s Metaphors We Live By, have entirely undermined such assumptions. Lakoff and Johnson showed with a great degree of certainty that, firstly, metaphor is a tool used in all fields of human cognition and life, and that it is not an exclusive domain of poetry and rhetoric. Secondly, it was shown that imagination, though flexible and creative, is always limited by different factors, both of external and internal character, and that it does not act randomly but follows some regular and observable routes and schemata. Thirdly, metaphors, though not stable and universal, simultaneously are not random either. From inside metaphors are governed by attributes of the human body (the proper body and the brain together; both flesh and mind), from outside – by the culture and the social milieu of the authors of metaphors, and finally from the interface of the inside and the outside they are governed by the way the human body interacts with its external, natural and social milieu. Metaphors follow some quite well recognizable patterns, usually identifiable for a given culture, part of culture or a domain in a cross-cultural perspective. That is why there are metaphors common for one national culture or different linguistic areas or common for different, sometimes quite big, linguistic areas but only within certain domains, such as, for example law, or even shared within given domains independently from the language to which they belong. They change in the course of time in quite coherent or even predictable way.

And finally – still sketching the parallelism – as it has been mentioned before, legal sciences have always been bothered a lot by the amazing fact – the phenomenon that law is at the same time both determined and underdetermined. It is exactly this alleged paradox of simultaneous determinacy and indeterminacy of the law that makes many legal practitioners and legal scientists embarrassed and makes them look for outmost explanations of legal decisions – for example strictly formalistic ones (as in different applications of formal logic to law) or almost anarchical (as in some versions of American realism). If we, on the contrary, were to acknowledge the role and significance of imagination and metaphor in legal reasoning, the puzzle would be solved. The explanation can be the fact that they are cognitive tools which on the one hand let one refer to an unlimited range of contexts (current and future, concrete and abstract), and on the other hand that they are structured and do not act randomly. The fact that imagination is very flexible but at the same time does not act randomly explains how it is possible that the results of its operations are both flexible (and heavily underdetermined) and intersubjective (thus, somehow determined). And such an explanation is valid also for the legal domain.

For the sake of clarity it should be mentioned that the present discussion is based on the achievements of cognitive linguistics and the theory of metaphor in Lakoff and Johnson’s approach with some improvements added by their commentators and critics. However, such improvements will also be used in a limited way with the main concept being that metaphor is a cognitive tool founded on a relationship between two domains, the source and the target domain, created in the process of metaphorical mapping. I do not deny the explanatory power to such concepts as, for example, the idealized cognitive model, the semantic frame, blending theory, cognitive grammar, and so on, but firstly, I had to make some methodological choices and commitments. Secondly, making such choices I had to take into consideration that legal scholars and practitioners are strangers in the field of cognitive linguistics, that there had only been few trials of using this perspective in legal studies6. That is why I decided that at the beginning of the task the most reasonable strategy would be to use methods that are the simplest and the easiest to understand. Comparing my task with teaching and applying physics I would say that it is easier to teach and practically apply physics starting from classical mechanics than from quantum field theory. Thirdly, I made the choice being driven by the operational capability of the theory – I am convinced that for now the two-domain concept of the conceptual metaphor is the most efficient tool for analysing the texts of law and for showing practical consequences of such an analysis. This concept, thanks to its simplicity, lets us analyse a great number of texts and cases and to draw some general conclusions from such a research programme. Some of the linguistic material (coming from the Polish language of the law and legal language) and the results of such analysis performed within the project financed by the National Science Centre (Poland) granted pursuant to the decision no. DEC-2013/09/B/HS5/02529, are presented in Polish in a book by Sylwia Wojtczak, Iwona Witczak-Plisiecka and Rafał Augustyn, prepared and published concurrently and entitled Metafory jako narzędzia rozumowania i poznania prawniczego w świetle ich manifestacji/realizacji w polskim języku prawnym i prawniczym/ Metaphors as tools of legal reasoning and cognition in light of their manifestations/realizations in Polish language of the law and legal language.

It is very important to emphasise just from the very beginning of the book that the idea of metaphor as used here is entirely different from the traditional one promoted in literature studies or rhetoric where metaphor is usually defined as a linguistic or a stylistic trope. It is also different from positions presented in certain branches of the philosophy of language, for example it is different from the stance taken by John Searle, who situates metaphor on the level of pragmatics and not semantics, treats metaphor as an aberrance from regular usage of language and, consequently, makes it difficult to differentiate between metaphor and indirect speech acts (Searle, 1993). It is noteworthy that there are many experimental proofs that the cognitive view of metaphors promoted here presents the actual mechanism of human cognition, while the Searlian view does not (Ortony, 1987).

It should also be emphasized here, in order to avoid confusion, that in none of the hypotheses put forward in the present discussion it is suggested or assumed that the law is approached here as a source of inspiration for literature or arts, or that attention is paid to the fact that the law can provide means for artistic imagery (e.g. as when in a painting God can be represented as a severe judge). Neither is it of interest to us here that the law can be a source domain for some other non-legal target domains, such as ethics (see comments on the “legal” metaphors such as “God’s commandments are the law” or “Christ is both a judge and an advocate” – Krzeszowski, 1999, p. 80).

The structure of the book is as follows. Chapter I is devoted to the explanation of all the concepts and methods used in further analysis. By necessity it shall be in part an introduction to cognitive linguistics – a lecture on some basic concepts, well-known to linguists, but usually not known among lawyers and legal scholars. I will also explain in the first chapter some of my conceptual and methodological choices within the legal sciences and relevant methodology wherever they seem not to be widely accepted or where they may even appear controversial. I assume that the future readers of the book will mainly be legal scholars and legal practitioners, and only to some limited extent – linguists. I believe that problems and questions considered in the book are relevant, interesting and understandable mainly for lawyers.

Chapter II, entitled Metaphors in the texts of the law, in practice, and in jurisprudence, is to show examples of metaphors in the texts of the binding law, in the opinions supporting court decisions, in legal monographs, etc. These examples will be shown with the analysis of their content and their linguistic manifestations originating from the actual texts. They are to prove to all lawyers who are often doubting Thomases that the language of the law and legal language are entirely metaphorical in nature. They also serve as an illustrative material to show how varied the role of a metaphor present in a linguistic image can be in such texts. The subject of the analysis is mainly the Polish binding law and current Polish legal dogmatics and jurisprudence, the language of the doctrine and of the judges.

Chapter III, entitled Metaphors – their role in legal interpratation and legal reasoning, is a kind of preface to the following two chapters. It comprises some explanation refering to the comprehensive role of metaphors in legal thinking.

Chapter IV, entitled Metaphors and legal interpretation – meaning construction and reconstruction by means of metaphors, provides the answer to the question of what kind of consequences for the concept and tools of interpretation sensu stricto can be inferred from the assumption of metaphoricity of legal language and of the language of the texts of the law. Among other issues there is an attempt to explain and situate within jurisprudential conceptual network the phenomenon of the change of meaning over time.

Chapter V, entitled Metaphors and legal reasoning – the place of analogy in legal cognition, deals with the problem of the mechanisms which involve metaphors in the process of legal reasoning. The main, but not the only, field of interest will be the widely understood process of reasoning by analogy. The main thesis of this chapter, and in fact of the book, is the thesis of the uniform character of legal reasoning.

Chapter VI, entitled ‘Ought Is Is’ metaphor as a source of the naturalistic fallacy, is to present a special theory of normativity. According to this theory, constructing and construing the notion of normativity and other derivative concepts is possible only thanks to a special metaphor projecting metaphorically from the source domain of IS to the target domain of OUGHT. Having made such an assumption the mechanism of the naturalistic fallacy can be explained. This fallacy is a result of taking the relation of metaphorical projection for a relation of identity.

The aim of this book is not to give a thorough ready-made theory. Even if it was the case that such an ambitious project appeared prima facie completed, the apparently thorough theory founded on cognitive linguistics would always be inherently uncertain and underdetermined because cognitive linguistics is itself a very young branch of science, still developing and changing. It is constantly looking for experimental corroboration, which is why the hypotheses presented here should be treated as defeasible, but significant at the same time. They are significant because of their heuristic and explanatory power, especially within the range of problems that have seriously bothered lawyers for a long time, but to which until now they have not been able to provide satisfactory solutions.

1 About the reasons of lawyers’ aversion to cognitive theory of conceptual metaphor see (Wojtczak, Witczak-Plisiecka, & Augustyn, 2017, pp. 11–18). Cf. A. Kaufmann about the taboos and silence on the subject of analogy (Kaufmann, 1966, p. 365).

2 There are of course legal scholars whose position is quite different, but their voices are neither very strong, nor influential. For more details see for example (Anderson, 1996).

3 The argumentation for the thesis that legal concepts are abstract concepts, different from everyday concepts even if they look like them, shall be developed in Chapter V.

4 “Widely understood knowledge” – this means both the knowledge that has been consciously gained and used and the knowledge that has been unconscious or automatically gained and used; the meaning of the phrase exceeds what can be propositionally accounted for and embraces elements such as skills, reflexes, etc.

5 The technological development and posthumanistic trends make extreme bodily changes much more probable than they would be in Hart’s time. We must be prepared for cognitive, cultural and legal changes appearing as inescapable consequences of such bodily modifications.

6 Here we should mention the works of Steven Winter, Stefan Larsson, Linda L. Berger, Haig Bosmajian, Milner S. Ball. There are more single papers about law and metaphor, but most of them would use the traditional concept of metaphor or would treat the law as a source of inspiration for literature or arts, or present the law as a source domain for some other non-legal target domains, such as ethics.

Chapter I. Concepts, assumptions and methodology

I.1. General remarks

By the language of the law1 – following well-established Polish theoretical tradition – I mean the language in which legal acts are formulated (being fully aware of the reservations voiced with regard to such conceptualization – cf. e.g. (Gizbert-Studnicki, 1979, passim; Rey, 1995, p. 168). In contrast, legal language is understood as the language in which statements about legal matters are formulated. Meanwhile, common language is understood as a language whose vocabulary is a set of elements of an ethnic language widely available to an average member of a particular ethnic group, and therefore suitable for everyday use. For the sake of simplicity I shall use interchangeably the term “common language” and “general language”, although I do realize different connotations, positions and arguments connected with both terms in linguistics, especially the ones in which special languages alongside common language are variants of the general language (Cabré, 1999, pp. 58–61).

The most fundamental assumption announced here is that the language of the law raises an explicit claim to universality. This assumption is not made by those who examine human languages from a general point of view2. It is internal to legal discourse and practice.

At the beginning, before explaining the concept of the claim to universality raised by the language of the law, it is indispensable to fight the anticipated first reaction of some readers. They can voice a doubt: How can it be that a language should raise a claim? The answer is: in the same way in which the law can, according to some eminent legal philosophers, such as for example Robert Alexy, raise a claim to correctness (Alexy, 1998). Like for Alexy, for whom a claim to correctness raised by the law means a conceptually necessary assumption that law is connected with morality, for me the claim to universality also means a conceptually and functionally necessary assumption that the language of the law is powerful enough to transmit all necessary information to the law’s addressees. Both – Alexy’s claim to correctness raised by the law and “my” explicit claim to universality raised by the language of the law – are in my opinion culturally conditioned, but of a very great, even constitutive importance for contemporary Western legal culture.

The explicit claim to universality raised by the language of the law is here understood differently than the universality that is attributed to language in general by the philosophy of language and linguistics (Gadamer, 2000, p. 10; Hintikka, 1991, 1997). It does not mean that

[l]anguage […] must be equipotential. It must be serviceable for the innumerable new situations we encounter (Fauconnier & Turner, 2002, p. 182)

in the epistemic meaning of the word “must”. The explicit claim to universality adopted herein means the claim, or an a priori assumption, raised publicly, and even officially and normatively (in the legal sense – as it is articulated overtly for example in the valid legislation), to:

1. the necessity, and simultaneously, the possibility of encapsulating in the language of the law the whole vast and unpredictable wealth of “future worlds” and contexts in which the law in question may be applied and;

2. the necessity, and simultaneously, the possibility of encapsulating in the language of the law issues whose recognition, interpretation and application depends largely on valuation and;

3. the necessity, and simultaneously, the possibility of full intersubjectivity of the statements made in the language of the law.

Such a claim to universality is not raised, and definitely not so explicitly voiced, by the general language. It may be said that language in general is universal and that language at large refers to a wide variety of issues, and that in principle it can describe them all. But it is a reflection of a general nature about this language, which in its main part is natural language. In terms of specific language actions, however, it should be noticed that there are relatively few individual statements made in common language that would be intended by their author to be valid for decades or even hundreds of years and for numerous potential audiences, and that would affect so many different areas of social life, as the statements made in the language of the law.

It is just the law that can and must be able, under certain conditions specified in the relevant political and legal system, to regulate every aspect of life in any temporal, personal or territorial range. While using the language of the law one is not allowed to say: “This issue cannot be expressed in words”. Legislation must, in principle, be phrased in such a way that it can be understood by every citizen, current and future. It is required that it must be able to be complete3 (and therefore must be able to legally qualify any type of behaviour), that it can be in force indefinitely (i.e. usually without predicting in advance the termination of its validity), must be “continually speaking” and often atemporal (Williams, 2005), and therefore, at least potentially, it can and should be able to be used (and applied) for decades. In addition, the language of the law, much more frequently than general language, must be used to express issues that are inherently associated with the necessity of valuation. Although it is not usually valuation in terms of “good/bad” or “beautiful/ugly”, but rather “legal/illegal”, “right/wrong”, “fair/unfair”, “important/unimportant”, etc., still, it is a kind of valuation, which means the differentiation on the “positive/negative” scale (Krzeszowski, 1999, p. 12 ff.).

The capacity and sublimation of the language of the law – on the basis of the assumption of its universality – must be much stronger than the capacity and sublimation of general language; it is so also due to the fact that the language of the law is an instrument of communicating solely the things that are abstract. Every well-educated lawyer knows (and almost every dilettante does not know) that the categories used by law and by the language of the law are not the same categories that are used in everyday discourse and reasoning, even though they look similar. These categories are always legal categories. Even if it seems that a particular law refers to a very concrete, physical reality – world phenomena, things or actions – and even if we use the dictionary meanings or concepts while interpreting the law, such phenomena, things, actions, meanings and concepts only look like ordinary ones. In fact they have been reconceptualized by the law in a more or less visible way. They are legal categories4. They are abstract. John Finnis explains it in the following way:

[A] lawyer sees the desired future social order from a professionally structured viewpoint, as a stylized and manageable drama. In this drama, many characters, situations, and actions known to common sense, sociology, and ethics are missing, while many other characters, relationships, and transactions known only or originally only to the lawyer are introduced. In the legally constructed version of social order there are not merely the ‘reasonable’ and ‘unreasonable’ acts which dominate the stage in an individual’s practical reasoning; rather, an unreasonable act, for example of killing, may be a crime (and one of several procedurally significant classes of offence), and/or a tort, and/or an act which effects automatic vacation or suspension of office or forfeiture of property, and/or an act which insurers and/or public officials may properly take into account in avoiding a contract or suspending a licence… etc. So it is the business of the draftsman to specify, precisely, into which of these costumes and relationships an act of killing-under-such-and-such circumstances fits (Finnis, 2011, pp. 282–283).

If the language of the law communicates solely the abstract, while researching into this language one must take into consideration how it is possible to communicate the abstract. Cognitive linguistics insists that the only possible way to construct, construe and communicate the abstract is by using metaphors or other figurative means of speech (Lakoff & Johnson, 1980)5. By the way this means that not all human thought (and therefore language) is metaphorical. Especially

[t]hings that we think of as being straightforwardly physical – rocks and trees and arms and legs – are usually things that we have conceptualized not metaphorically but rather in terms of what we take to be our bodily experience (Lakoff & Turner, 1989, p. 59).

The accomplishment of a claim to universality raised by the language of the law and the necessity to construe abstract legal concepts in the course of legal discourse implies that the lawmaker needs to apply appropriate means of legislative techniques. Special means are demanded not only because legal concepts are abstract but also because they are normative. Normativity is an abstract frame in which the abstract legal concepts present themselves. That is why normativity is an important element of meaning for the transfer of which the language of the law must be powerful enough. In Chapter VI there is a detailed presentation of this issue.

At this point it is necessary to pay attention to another important aspect connected with the means of the legislative technique. According to Polish tradition, expressed in the § 5 of the appendix to the regulation of the President of The Council of Ministers of 20 June 2002 on the legislative drafting measures6, legal acts should be edited in a concise and synthetic way, avoiding excessive details (Malinowski, 2009, p. 279). Let us contemplate this demand taking into consideration Andrew Ortony’s opinion:

The expression of the otherwise inexpressible is not the only communicative function that metaphors serve. They also achieve a certain communicative compactness, since all the applicable predicates belonging to the metaphorical vehicle are implied succinctly through the vehicle itself. Thus, even if what a metaphor expresses may have been more or less expressible without the metaphor, its use may be more economical and hence more effective than the long list of predicates it entails (Ortony, 1987, p. 480).

The following analogy can lend credence to the importance of the thesis presented here7. The language of ethics should undoubtedly by its definition describe all that refers to ethical valuation. The language of aesthetics is also required to express valuation in an effective and comprehensive way. Both languages – the language of ethics and that of aesthetics – by their nature must not be solipsistic or private. If ethics or aesthetics are to be possible as significant disciplines of human thought, they must be intersubjectively communicated. One of the intersubjectively shared ways of thinking, reasoning and speaking about valuation is metaphor. The second point and at the same time a continuation of the above-mentioned analogy is that the language of the law is an instrument of communicating solely the things that are abstract. The same can be said about ethics and aesthetics – they both use mainly abstract categories – ethical or aesthetic. They often use metaphors specific for these domains, different from those used in every day cognition. Thus both languages – that of ethics and that of aesthetics – are – beyond any doubt – to a considerable extent (higher than trivial) metaphorical.

I.2. The concept of metaphor

While using the cognitive theory of metaphor, the most important thing to remember is the underlying assumption that there is no necessary connection between the actual structure of the world (if there is any relevant at all, of course) and the structure of the categories ordering human knowledge about the world. Our mind (with all its abilities) is not a mirror which only reflects transcendent and independent reality. What we see and what we know about the world, how we see and how we structure our knowledge about the world, depends on our bodies – their attributes and internal processes – and the relations of these bodies to the reality they are surrounded by (Johnson, 1987).

Keeping the above in mind one must also understand that according to Lakoff and Johnson metaphor is not a purely linguistic phenomenon. Its main function is not communication or description, but cognizing, categorizing, reasoning, and achieving new information about the world (Lakoff, 1990b; Lakoff & Johnson, 1980). It is one of the most important tools of human cognition. Metaphors are of conceptual character. Linguistic utterances, which are commonly considered to be metaphorical (or to be metaphors themselves), are only surface expressions of mental processes making use of this tool, i.e. metaphorisation. As people generally share this metaphorical way of cognition, especially within the scope of the so-called embodiment, such utterances are created and used for communication. Lakoff explains it in the following way:

The metaphor is not just a matter of language, but of thought and reason. The language is secondary. The mapping is primary, in that it sanctions the use of source domain language and inference patterns for target domain concepts (Lakoff, 1993).

Thinking with metaphor means thinking about some element of the world (an object, a phenomenon, a relation, an event, etc.) using in a specific way the categories attributed to some other element of the world. Such a method of transferring structures or attributes from one domain8 to the other is called metaphorical projection or metaphorical mapping. Projection or mapping is always partial, never complete. If it were complete it would create a relation of identity and not of metaphorical mapping. The consequence of partiality of mapping is twofold: first, the elements of the source domain that are transferred to a target domain are highlighted in a way, made more visible; second, the target domain is not completely constructed by the mapping and the metaphor leaves some places hidden or empty. This second phenomenon is strongly connected with the fact that a lot of concepts are constructed and construed by more than one metaphor. Sometimes one concept is influenced by several overlapping or even prima facie conflicting metaphors. So what is not filled in the concept by the metaphorical projection from a given source domain, is taken either from another metaphor/metaphors, or from the knowledge about the concept (or the object described by the concept) that a person already has.

Usually (though there are some doubts about this regularity) we think about some more complicated, harder to cognize, less known element of the world using the categories attributed to less complicated, easier to cognize, or a better known element of the world.

This more complicated, harder to cognize element (or rather our knowledge about it – see the assumption summarised in the first paragraph of this chapter) we shall call, as it is often practiced in cognitive theory of metaphor, target domain. The less complicated, easier to cognize or better known element we shall call source domain. The specific way of transferring the structure (or attributes) from source domain to target domain we shall call metaphorical mapping.

Though in fact the domains (both source and target) are never single entities or objects, or single propositions, but rather coherent structures of knowledge about some element of the world, concepts or models (sometimes quite simple, sometimes very complex), cognitive linguists for practical reasons, mainly to aid analysis give them “names” – labels – which are usually written with capital letters (in this book particular domains coming from the general domain of LAW will be marked with the letter [L] in square brackets).

G. Lakoff explains this method of metaphor registration in the following way:

To make it easier to remember what mappings there are in the conceptual system, Johnson and I adopted a strategy for naming such mappings, using mnemonics which suggest the mapping. Mnemonic names typically (though not always) have a form: TARGET-DOMAIN IS SOURCE-DOMAIN, or alternatively, TARGET-DOMAIN AS SOURCE-DOMAIN. […] It is a common mistake to confuse the name of the mapping […] for the mapping itself. The mapping is the set of correspondences.[…] If mappings are confused with names of mappings, another misunderstanding can arise. Names of mappings commonly have a propositional form, for example, LOVE IS A JOURNEY. But the mappings themselves are not propositions. If mappings are confused with names for mappings, one might mistakenly think that, in this theory, metaphors are propositional. They are, of course, anything but that: metaphors are mappings, that is, sets of conceptual correspondences. […] [W]hen we refer to the LOVE IS A JOURNEY metaphor, we are referring to the set of correspondences […] The English sentence Love is a journey, on the other hand, is a metaphorical expression that is understood via that set of correspondences (Lakoff, 1993).

That is why under a very short and simple phrase9:

ARGUMENT IS WAR (where ARGUMENT is a mnemonic-label for target domain and WAR is a mnemonic-label for source domain)

which has innumerable linguistic manifestations in everyday communication such as:

Your claims are indefensible.

He attacked every weak point in my argument.

His criticisms were right on target.

I demolished his argument.

I’ve never won an argument with him.

You disagree? Okay, shoot!

If you use that strategy, he’ll wipe you out.

He shot down all my arguments.

one should understand a very complex way of thinking, which can be schematically shown as follows:

SOURCE DOMAIN

TARGET DOMAIN

war

argument

enemies

opponents, parties

position

stance

weapon

arguments, claims

attack

giving an argument

counter-attack, counteroffensive, defence

counter-argument

battle

discussion

conquest

refutation of the other’s argument

peace

agreement between parties

victory

proving one’s point

surrender

admitting that sb is right

As metaphors are the tool of categorization it is important to remember that – according to Lakoff – human knowledge is organized by means of structures called idealized cognitive models (ICM) (Lakoff, 1990b, p. 68).

An ICM is a relatively stable mental representation that represents a “theory” about some aspect of the world and to which words and other linguistic units can be relativised (Evans, 2007, p. 104).

These are the ICMs that determine the meaning of the words and not the objects in the world to which words are related. An interesting example of the ICMs results, simultaneously drawing attention to axiological aspects of meaning (this problem will be discussed below), is given by T. Krzeszowski. He describes the difference between “father” and “daddy”. According to the traditional view the meaning of these two words is definable by its common component, which is “male parent” and the difference between them is attributed to the emotive charge of “daddy” and the absence of such a charge in “father”. Krzeszowski believes that both words are emotively and axiologically charged but they are defined relative to two different ICMs. These ICMs differ with respect to such components as “endearment”, “goodness”, “kindness”, which are obligatory in the “daddy” ICM and are optional or absent in the ICM for “father” (Krzeszowski, 1990, p. 149). S. Winter, referring back to Hart’s famous example of “no vehicles in the park”, shows how the interpretation of this and other cases concerning parks depends on the current ICM of the park (Winter, 2001, pp. 205–206, 260–266).

I.3. Embodiment

Why do we need metaphors for cognizing and where do metaphors come from? Even if it is assumed that the most important element of being a human being is to reason and to have a mind it must also be admitted that human beings like other creatures of the natural world cannot exist (so cannot reason and use their minds) without bodies. It is the body that lets a human being interact with his external and internal milieu. The shape of the body and the senses that are at its disposal determine the way in which the mind may collect and process information coming from the milieu. If we were not erected warm-blooded creatures, with two legs and two hands, a head, the front of the body and the back, equipped with eyesight, hearing, smell, the sense of touch and taste, but, for example, bats, the image of the world accessible to our minds would be quite different. What is more, we – human beings – are not even able to imagine what such an image could be if it came from a different body, if it were for example a batty one (Nagel, 1991).

Making the above-stated claims the foundation of his conception M. Johnson suggests that:

[H[uman bodily movement, manipulation of objects, and perceptual interactions involve recurring patterns without which our experience would be chaotic and incomprehensible. I call these patterns “image schemata”, because they function primarily as abstract structures of images. They are gestalt structures, consisting of parts standing in relations and organized into unified wholes, by means of which our experience manifests discernible order (Johnson, 1987, p. XIX).

The structures called image schemata are, according to Johnson, of non-propositional, analog nature and have a figurative character (Johnson, 1987, p. XX). Image schemata are not composed of rich, concrete images or mental pictures, but rather of recurrent patterns and shapes with regularity in, or of, activities such as actions, perceptions and conceptions (Johnson, 1987, pp. 23, 29). Because the schema of BALANCE is extremely important for the purposes of this book, let us look at it as an illustration of what image schemata are. Here is Johnson’s description of BALANCE:

The experience of balance is so pervasive and so absolutely basic for our coherent experience of our world, and for our survival in it, that we are seldom ever aware of its presence. […] It is crucially important to see that balancing is an activity we learn with our bodies and not by grasping a set of rules or concepts. […] We also come to know the meaning of balance through the closely related experience of equilibrium, or loss of equilibrium. We understand the notion of systemic balance in the most immediate, preconceptual fashion through our bodily experience. There is too much acid in the stomach, the hands are too cold, the head is too hot, the bladder is distended, the sinuses are swollen, the mouth is dry. In these and numerous other ways we learn the meaning of lack of balance or equilibrium. Things are felt “out of balance.” There is “too much” or “not enough” […]balance becomes conspicuous by its absence (Johnson, 1987, p. 75).

There are but a few of image schemata, but they play the fundamental role in human cognition. V. Evans lists the following (Evans, 2007, p. 108), though it should be remembered that the number of them is indeterminate (Johnson, 1987, p. 126):

1. SPACE (UP-DOWN, FRONT-BACK, LEFT-RIGHT, NEAR-FAR, CENTRE-PERIPHERY, CONTACT, STRAIGHT, VERTICALITY).

2. CONTAINMENT (CONTAINER, IN-OUT, SURFACE, FULL-EMPTY, CONTENT).

3. LOCOMOTION (MOMENTUM, SOURCE-PATH-GOAL).

4. BALANCE (AXIS BALANCE, TWIN-PAN BALANCE, POINT BALANCE, EQUILIBRIUM).

5. FORCE (COMPULSION, BLOCKAGE, COUNTERFORCE, DIVERSION, REMOVAL OF RESTRAINT, ENABLEMENT, ATTRACTION, RESISTANCE).

6. UNITY/ MULTIPLICITY (MERGING, COLLECTION, SPLITTING, INTERACTION PART-WHOLE, COUNT-MASS, LINK (AGE)).

7. IDENTITY (MATCHING, SUPERIMPOSITION).

8. EXISTENCE (REMOVAL, BOUNDED SPACE, CYCLE, OBJECT, PROCESS).

Image schemas are mutually interrelated; they can form clusters while structuring concepts and they are differentiated with regard to their complexity. Some of them can be subschemata of the others. For example such schemas as UP-DOWN or FRONT-BACK are quite simple, while the schema SOURCE-PATH-GOAL is more complex. The former one structures only an orientation in the space. The other consists of subschemata SOURCE, PATH and GOAL, which may or may not be an element of concrete conceptualization and its linguistic realization (as in expressions such as “his origins are unknown” or “they left yesterday”, where PATH and GOAL are not presupposed) (Krzeszowski, 1997, pp. 109–110).

Image schemas are used by human minds in different ways. Among others they are used as source domains in constructing and construing metaphors; they are extended and elaborated metaphorically to connect up different aspects of meaning, reasoning, and speech acts. (Johnson, 1987, p. 65).

For example, an Aristotelian notion of a concept is based on the image schema of CONTAINER (CONCEPT IS A CONTAINER), where the concept is a container, the objects belonging to the denotation are inside the container, the objects that are not named with the concept are outside the container, the walls (boundaries) of the container are the set of necessary and sufficient conditions.

Another significant example just from the legal field is the concept of law and normativity, which is constructed and construed by different extensive elaborations of the image schema of FORCE, especially the image of BLOCKAGE (LAW IS AN OBSTACLE). This schema is described by Johnson in the following way:

In our attempts to interact forcefully with objects and persons in our environment, we often encounter obstacles that block or resist our force. When the baby learns to crawl, for instance, it encounters a wall that blocks its further progress in some direction. The baby must either stop, ceasing its exertion of force in the initial direction, or it must redirect its force. It can try to go over the obstacle, around it, or even through it, where there is sufficient power to do so. In such a case the child is learning part of the meaning of force and of the forceful resistance in the most immediate way. This experience of blockage involves a pattern that is repeated over again throughout our lives. The relevant gestalt can be represented as a force vector encountering a barrier and then taking a number of possible directions (Johnson, 1987, p. 45).

It can also be represented in a visual way:

This schema represents the duality of the legal assessment expressed by the terms legal/illegal. The barrier being the part of this cognitive gestalt when mapped into a legal domain is a symbolic border between two worlds: that of the legal and that of the illegal. This barrier, being originally a physical object, is metaphorically mapped to the domain of duty, but – in this case – a special duty whose source is the law (or the rule, or the contract). This mapping from the physical barrier to the duty, having a source in the law (or the rule, or the contract), is a part of the more compound metaphorical mapping BREACHING THE LAW (THE RULE, THE CONTRACT) IS BREAKING A PHYSICAL OBSTACLE (A PHYSICAL OBJECT). In this metaphor the domain of breaking a physical object gives the partial structure to the domain of BREACHING THE LAW (THE RULE, THE CONTRACT). The act of using physical force to overcome a physical object (being an obstacle for that force) is used to construct and construe the act of doing something, which is against one’s duty, which is not allowed, or is prohibited by the law (the rule or the contract). Such a cognitive operation is indispensable because the notion of doing something that is not allowed, or is prohibited by the law (the rule or the contract), is an abstract notion and cannot be cognized in the same way as physical actions are, even though some of its tokens may be in the form of physical actions.

Let me insist that this analysis of the legal cognition of the concept of “breaking the law (the rule, the contract)” is strongly coherent with other legal concepts and their cognition, coming from the field of the binding law, jurisprudence, or legal sciences. In the Polish tax law, for example, and in other legal systems too, there appears the institution of the circumvention of the law, which can also be clearly explained in terms of the image schema of BLOCKAGE10.

It is further important to notice that the thesis of embodied cognition was experimentally verified and that related experiments have provided massive evidence for its relevance (Lakoff, 2012).

I.4. Metaphors – random or systematic?

Metaphors serve mainly (though not only) two strictly connected functions – they are both creative and heuristic.

Conceptual metaphors construct the concepts (understood as representations and fundamental units of knowledge), which can then be (but do not have to be) encoded in certain lexical concepts. That is why metaphors are one of the basic means of conceptualization, as thanks to their being a cognitive tool, it is possible to conceptualize this part of human experience that is not the brute physical experience of an interaction between a human body and the external world. It is worth mentioning that even our physical bodily but internal experience is in its majority conceptualized and then verbalized through metaphors. For example the feeling recognised in English as “vertigo” is in Polish called “zawrót głowy”, which literally means “head’s turning round”, although, in fact, during vertigo the head does not move; the sensation connected with some thermal processes inside the body is called “a rise in temperature” though temperature is not an object which has the dimension of height, etc.

Thanks to metaphorical mapping it is possible to ascribe certain attributes and structures to widely understood objects (material things or immaterial phenomena), it is possible to classify certain widely understood objects into sets of objects according to unified criteria, and to make generalizations about these sets of objects and the individual objects on their own.

It is important to remember that one concept can be constructed through many metaphors. Sometimes such metaphors, making up one concept, prima facie seem incoherent, but because of the partiality of metaphorical mappings (focusing on different elements of domains) they can work together, building in overall quite a coherent concept. At some other time they can be really incoherent, for example because they come from different cultures or different upper-level domains, and in such cases they can be a source of some cognitive and interpretational difficulties.

A significant legal instance of the concept constructed through many metaphors is the concept of the legal person. Thanks to metaphors such as

LEGAL PERSON [L] IS AN OBJECT or LEGAL PERSON [L] IS A PERSON

LEGAL PERSON [L] IS A FICTITIOUS PERSON or LEGAL PERSON [L] IS A REAL BEING

LEGAL PERSON [L] IS AN ARTIFICIAL CREATURE or LEGAL PERSON [L] IS A NATURAL ENTITY (LEGAL PERSON IS A HUMAN BEING)

LEGAL PERSON [L] IS THE WHOLE (ORGANISM) or LEGAL PERSON [L] IS AN AGGREGATE OF ELEMENTS

LEGAL PERSON [L] IS AN AGGREGATION OF ASSETS AND LIABILITIES (LEGAL PERSON [L] IS AN AGGREGATION OF PROPERTY, RIGHTS, DUTIES etc.) or LEGAL PERSON [L] IS AN AGGREGATION OF PEOPLE (LEGAL PERSON [L] IS AN AGREEMENT OF PERSONS/SHAREHOLDERS; LEGAL PERSON [L] IS AN AGGREGATION OF PERSONS/MEMBERS etc.)

accepted in a given legal culture lawyers can construct and construe the concept of the legal person (Kaufmann, 1966, pp. 377–378; Millon, 1990, 2001). Though the legal person is not a tangible living entity and it hasn’t got a body and reason as a human being would have, lawyers are able to ascribe to the legal person such attributes or capacities as for example will, civil liability, some rights and duties, the capacity to perform legal deeds, etc. Simultaneously – thanks to the partiality of the metaphorical mapping and some limitations connected with the regularity which Lakoff and Johnson called “the invariance principle” (see page 20 and next below) – they do not want legal persons to marry or adopt children and they insist that the legal person must act through ‘its’ bodies.

By the way, the above example shows in a perfect way the strong limitation of universality of metaphors, even within the same domain and within similar cultures. In the Polish language a legal person does not act through its bodies (and in the English language ‘she’ does), but through its organs (which mirrors biological terminology). This may be a reflection of how different metaphors over time exerted their influence in both cultures – the Anglo-Saxon and the Polish culture.

Besides the fact that one concept can be constructed and construed by more than one metaphor it should also be borne in mind that very often metaphors concerning one concept are parts of hierarchically structured sets. Lakoff and Turner explain this phenomenon in the following way:

The difference between metaphors like EVENTS ARE ACTIONS and those like LIFE IS A JOURNEY is analogous to the difference between a genus and a species in biology. […] We will refer to metaphors like EVENTS ARE ACTIONS as “generic-level metaphors” since they lack specificity in two respects: they do not have fixed source and target domains, and they do not have fixed lists of entities specified in the mapping. We will refer to metaphors like LIFE IS A JOURNEY as “specific-level metaphors”, since they are specified in these two ways (Lakoff & Turner, 1989, pp. 80–81).

Metaphors play a significant heuristic role in human cognition because they let people reason about the concepts in question and draw the conclusions which broaden the knowledge accessible at the time. The metaphorical character of such reasoning is very often not obvious, rather unconscious. Cognitive linguists call its results “metaphorical implications” or “metaphorical entailment”. V. Evans explains the mechanism of this kind of reasoning in the following way:

In addition to the cross-domain mappings that conceptual metaphors bring with them, they can also provide additional […] knowledge. This is because aspects of the source domain that are not explicitly stated in the mappings can be inferred and mapped onto the target domain by specific linguistic utterances (Evans, 2007, p. 139).

These metaphorical implications or metaphorical entailments can be premises for further elaboration as if they were literal non-metaphorical statements. The results of such operations can be really amazing and significant. Suffice to mention the metaphor MIND IS A COMPUTER which served as a basis for the development of many conceptions in cognitive science, philosophy and other fields (cf. (Pinker, 1998, p. 25 ff.; Searle, 2004, p. 74 ff.; Zawisławska, 2011, pp. 171–217)).

The above-mentioned set of the LEGAL PERSON metaphors is also a significant example revealing the heuristic force of metaphors. The dominance of some of these metaphors within a given culture can be a reason (usually unconsciously internalized) for many legal decisions, for example for choosing Societas delinquere non potest or Societas delinquere potest principles and legal institutions adequate for them. The inconsistency of metaphors constructing the concept of the legal person deeply rooted in the Polish legal culture with the demands of criminal liability was a cause of difficulties which appeared in the Polish legal system, as in some other legal systems (cf. Weigend, 2008), when those two contradictory ideas struggled one against the other. Until 2002 in the field of Polish criminal law there was a strict principle that only a human being could be a subject within criminal law. In 2002 as a consequence of international commitments11 the Act of 28 October 2002 on Liability of Collective Entities for Punishable Offences12 was adopted (though what is significant, the name of the Act was changed – in the course of legislative process it was called the Act of Criminal Liability of Collective Entities13). The Act was the subject of many critical arguments and discussions. In 2004 the Act was examined by the Constitutional Tribunal who stated that the model of liability imposed by the Act was not criminal liability sensu stricto. According to the opinion of the Constitutional Tribunal this liability was not primary and independent, but secondary and derivative; though it is the liability of repressive character – “criminal” in the constitutional sense14. The main source of the difficulty and the reason for such a sophisticated and twisted verdict was the fact that, according to Polish tradition, criminal liability demanded ascribing the guilt and the offence to the defendant. And within contemporary Polish culture it is possible only with regard to human beings as morally autonomous persons.

A very important question is, especially if the theory of metaphor is to be used for elaborating the problems of legal interpretation, whether the appearance of a given metaphor, its shape and influence is a matter of random accident or, instead, there is some regularity in it. Cognitive linguists prove that the phenomenon of metaphoricity is not random and that it functions with systematicity. They mention several factors connected with this regularity.

First, there is the phenomenon of embodiment described in section I.3 above. If the basis of human cognition is the way human body interacts with an external and internal milieu (strictly determined by the physical shape and abilities of the body), it is also the basis of conceptualization and metaphorisation. This is for instance the reason why metaphors, and especially primary metaphors, are motivated by embodied experiences, and this is why conceptual metaphors in general preserve the structure of image schemas. Lakoff sums up that conceptual metaphors:

[…]are embodied in two ways: via embodied cognitive primitives [image schemas] that structure the frames in frame-to-frame mappings and via hundreds of primary metaphors that ground human metaphor systems and more complex metaphors in embodied experience. Via the embodiment of cognitive primitives and primary metaphors abstract (that is, non-physical) concepts become embodied. The embodied frames may characterize abstract ideas, and the embodied metaphors usually do (Lakoff, 2012, p. 778).

The second factor is the direction of metaphorical mapping. Consistently with the principle of cognitive economy, the things, which are more difficult to understand or more cognitively distant (for example because of cultural, social or educational reasons), are usually cognized through the easier to understand or more familiar things. This direction is realized by metaphorical mappings from the source domain (easier, unstructured, more familiar) to the target domain (more highly structured, more difficult or distant). That is why the more abstract concepts are conceptualized in terms of less abstract concepts and very often abstract concepts are constructed just through concrete/physical concepts. Conceptual metaphors are mostly unidirectional, though – according to Lakoff’s selected followers – it is not an unexceptional rule (Kövecses, 2010, pp. 27–28).

Third comes the principle/hypothesis of invariance. As Lakoff explains it:

The Invariance Hypothesis is a proposed general principle intended to characterize a broad range of regularities in both our conceptual and linguistic systems. Given that all metaphorical mappings are partial, the Invariance Hypothesis claims that the portion of the source domain structure that is mapped preserves cognitive topology (though, of course, not all the cognitive topology of the source domain need be mapped). Since the cognitive topology of image schemas determines their inference patterns, the Invariance Hypothesis claims that imagistic reasoning patterns are mapped onto abstract reasoning patterns via metaphorical mappings (Lakoff, 1990a, p. 40).

A good illustration of the invariance principle work is the example of the concept of DEATH given by Evans. DEATH is a subject of personification in many ways, for instance as a reaper, devourer, one who destroys, takes, etc., but it is never metaphorically structured as a person knitting, filling a bath with water, or sitting in a rocking chair. It is because death is conceptualized mainly as an event of (usually sudden) non-existence while knitting, filling a bath with water, or sitting in a rocking chair have a different, incompatible structure, they are not sudden and their result cannot be seen as non-existent (Evans, 2007, pp. 117–118).

In other places Lakoff sets a limit to the invariance principle: metaphorical mappings preserve the cognitive topology of the source domain, but in a way consistent with the inherent structure of the target domain. That is why while mapping “image-schema structure inherent in the target domain cannot be violated”, “inherent target domain structure limits the possibilities for mapping automatically”. And Lakoff explains the limitation as follows:

What the invariance principle does is guarantee that, for container schemata, interiors will be mapped onto interiors, exteriors onto exteriors, and boundaries onto boundaries; for path schemata, sources will be mapped onto sources, goals onto goals, trajectories onto trajectories and so on. […] As a consequence […]: One cannot find cases where a source domain interior is mapped onto a target domain exterior, or where a source domain exterior is mapped onto target domain path. This simply does not happen (Lakoff, 1994, p. 55).

For the purposes of our legal cognition analysis Krzeszowski’s development of the invariance principle is especially significant. There are several theses that serve as bases of this development. First, there is the thesis that “goodness” and “evil” are metaphorical concepts – they can be understood and experienced in terms of other concepts and, what is more, they are grounded in human sensory experience. Second, all words are axiologically charged relative to some idealized cognitive model (ICM) and the amount of such axiological load is semantically relevant (Krzeszowski, 1990, pp. 138, 145–149). Third, all preconceptual image schemata must incorporate an additional parameter, which can be called PLUS-MINUS and

[…]this parameter is directly responsible for the dynamism of the metaphorization processes inherent in the formation of concepts based on relevant schemata. Among these concepts are the abstract concepts of <good> and <bad>, <beauty> and <ugliness>, <truth> and <falsehood> as well as other concepts of varying degrees of abstraction and of varying degrees of axiological load (Krzeszowski, 1993, p. 310).

This means that the presence of the PLUS-MINUS polarity and an internal dynamism between the poles built into a schema allows us to assign values to concepts arising from that schema (Krzeszowski, 1997, p. 132).

The PLUS/MINUS poles are the poles of the most general axiological preconceptual image schema – SCALE – in terms of which the axiological dynamism built in the other preconceptual schemata can be valuated and in some cases quantified or measured (Krzeszowski, 1997, p. 109).

The analysis of image schemata made Krzeszowski formulate the following eight preconceptual axiological principles (Krzeszowski, 1993, p. 325):

1. Image schemata are bi-polar; they have a plus pole and a minus pole (they include axiological SCALE schema).

2. Being is plus, not being is minus; negation is fundamentally experienced as LACK.

3. WHOLE, CENTRE, LINK, IN, GOAL, UP, FRONT, RIGHT are plus; PART, PERIPHERY, NO LINK, OUT, NO GOAL, DOWN, BACK, LEFT are minus.

4. BALANCE is plus, IMBALANCE is minus.

5. In their canonical form all things are plus, because they are in the state of BALANCE.

6. When OFF BALANCE everything tends to RESTORE BALANCE.

7. When IN BALANCE everything is prone to LOSE BALANCE.

The two above (6. and 7.) underlie the dialectical struggle between plus and minus, positive and negative, and, on the conceptual level, between <good> and <bad>, as basic axiological concepts15.

In his further works Krzeszowski indicates other preconceptual relations between the SCALE schema and other schemata, for example16:

1. FORCE is PLUS, NO FORCE is MINUS; but when FORCE interacts with CONTROL, excessive force or force out of control is MINUS.

2. RHYTHM is PLUS, LACK of RHYTHM is MINUS.

3. BLOCKAGE is MINUS, NO BLOCKAGE is PLUS.

4. CONTACT is PLUS, NO CONTACT is MINUS.

5. ATTRACTION is PLUS, REPULSION is MINUS.

These pre-conceptual principles should be completed with the following axiological principle:

Words have a tendency to be axiologically loaded with “good” or “bad” connotations in proportion to the degree of the human factor associated with them (Krzeszowski, 1990, p. 150).

This principle explains – according to Krzeszowski – among other things why for most people (as it depends on the adopted ICM) such nouns as “a stone”, “a tree”, “a river”, “copper”, “water”, etc. appear to be neutral, whereas such concepts as “friendship, “enmity”, “democracy”, “communism”, “slavery”, “motion”, “freedom”, etc. are evidently situated near either end of the good-bad scale. Another manifestation of the axiological principle is that the process of metaphorisation intensifies otherwise weakly presented tendencies to gravitate towards the good-bad poles. That is why some lexical items show a much higher degree of axiological charge when used figuratively or in a metaphorical sense. Krzeszowski gives here an example of the word “divide”, which in its literal sense is axiologically almost neutral, but in figurative senses (e.g. “divide and rule”) strongly gravitates to the bad pole (Krzeszowski, 1990, p. 151).

As a result of his theoretical commitments, Krzeszowski acknowledges the Axiological Ivariance Principle of the following content:

A given configuration of PLUS-MINUS poles in the preconceptual image schemata, from which a particular concept arises is preserved in the arising concept, whether directly meaningful or metaphorically extended (Krzeszowski, 1997, p. 161).

The limitation of the Axiological Invariance Principle is the assumption that no metaphorical mapping can reverse/change into the opposite the present axiological charge inherent for the target domain. Krzeszowski gives JESUS IS A THIEF17 as an example. In the metaphor the source domain (THIEF) is negatively charged, but the target domain is undoubtedly positively charged. As a result the mapping does not encompass the axiological load. In spite of the mapping the axiological parameter built into the source domain cannot be transferred into the target domain (Krzeszowski, 1997, pp. 163–164).

Krzeszowski’s theses explain in a convincing way why metaphors are so effective rhetorical and persuasive instruments, widely used by policy makers to manage controversial social issues. A confirmation of Krzeszowski’s conception in the field of legal philosophy can be seen in different philosophical concepts of CRIMINAL PUNISHMENT AS A BALANCE RESTORATION, whose main aim is to legitimize criminal punishment, that is to push it towards the plus pole on the axiological SCALE (cf. (Wojciechowski, 2010)). According to the preconceptual axiological principle no. 8 presented above, BALANCE is plus, so this metaphor is an efficient tool in legitimization. The theory also explains why such legitimizing function is better performed by the metaphor CRIMINAL PUNISHMENT IS A REPAYMENT than by the metaphor CRIMINAL PUNISHMENT IS A REVENGE, though the two may seem rather similar (Hough, 2012). It appears, and some empirical research confirms it that the word “repayment” can be connected to different ICMs and where such ICMs are separate from REVENGE and connected with a return on an investment, either literal, financial, or an abstract one, they are of positive evaluation (Deignan & Armstrong, 2015, pp. 88–89).

I.5. Dead metaphors, conventional metaphors, novel metaphors

According to the traditional view metaphors are mainly a matter of the aesthetics or persuasiveness of language. That is why there is common expectation that a linguistic utterance considered as metaphorical should be novel, surprising and perceptible as metaphor. Linguistic phrases that are familiar, widely used and understood imperceptibly and automatically, even if they were novel and surprising some time ago, are not – according to this view – metaphors, at most dead metaphors. This traditional view has been challenged by cognitive linguistics. Two theses critical towards the traditional view are of special importance. First, that any strict dichotomic divisions between dead/alive or conventional/novel metaphors are not possible. As Lakoff and Turner describe this position:

It is important to avoid simpleminded dichotomies when talking about metaphor. Metaphors have many statuses. One cannot just talk of them as being basic versus nonbasic, poetic versus everyday, conventionalized versus nonconventionalized, and so on. Metaphors differ along many parameters, and often the difference is a matter of degree.[…] At the conceptual level a metaphor is conventional to the extent that is automatic, effortless, and generally established as a mode of thought among members of a linguistic society (Lakoff & Turner, 1989, p. 55).

The authors warn against the popular mistake of mixing the conceptual and the linguistic level:

Any discussion of the uniqueness or idiosyncrasy of a metaphor must […] take place on two levels: the conceptual level and the linguistic level. A given passage may express a common conceptual metaphor in a way that is linguistically either commonplace or idiosyncratic. An idiosyncratic conceptual metaphor is another matter. By its very nature, it cannot yet be deeply conventionalized in our thought, and therefore its linguistic expression will necessarily be idiosyncratic in at least some respect. Modes of thought that are not themselves conventional cannot be expressed in conventional language. In short, idiosyncrasy of language may or may not express idiosyncrasy of thought, but idiosyncratic thought requires idiosyncratic language (Lakoff & Turner, 1989, p. 50).

In the context of the demands set with regard to the language of the law (see for instance Fuller’s desideratum of clarity of law – (Fuller, 1964, p. 63)), we may digress slightly and emphasise that special attention should be paid to that part of the above observation, which focuses on the idiosyncratic conceptual metaphor. Such a metaphor by its very nature cannot be realized by conventional linguistic means – its linguistic expression will necessarily be idiosyncratic, while common metaphors can be expressed in both ways – conventional and idiosyncratic. If the clarity of the language of the law is tantamount to its conventionality the conclusion that the law should not be constructed through metaphors which are idiosyncratic is quite justified.

There is special attention given in cognitive linguistics and in the cognitive theory of conceptual metaphor to the distinction between dead and alive metaphors. Lakoff declared the position according to which speaking of “dead” metaphors would be justified only in those very rare cases when the source domain of such a metaphor is “dead” – which means it is not understandable any more, and the relevant mapping does not in fact exist. Lakoff provides an example of the word “pedigree”, whose origin is in old French “pie de grue” meaning “foot of a crane”, and which was used because the family-tree diagram looked like a crane’s food (it was shaped as a three-line claw). Nowadays, no one (apart from specialists) knows what “pie de grue” means and what was the shape of family-tree diagrams at the time. So the metaphor – PEDIGREE IS A PLACE IN THE FOOT OF A CRANE (IN THE DIAGRAM) – does not influence anyone’s thinking and may be considered dead. But, according to Lakoff, no other cases of metaphors, even those strongly conventionalized, should be called “dead”. Indeed, they still influence cognition, understanding and the conceptual system (Lakoff, 1987). They constitute deeply entrenched ways of thinking about or understanding abstract domains, they can still be productive in the sense that they can serve as bases for metaphorical entailment. Of course, this productivity is a matter of degree depending on the place that a particular metaphor takes on the scale of conventionality (Kövecses, 2010, pp. 34–35).

Looking for examples of dead metaphors (in Lakoff’s understanding) in the domain of the LAW leads the researcher to different historical institutions and terms. A good illustrative instance here may be the term “mortmain”. The term comes from old French “morte meyn” and the Mediaeval Latin phrase “mortua manus”, which both literally mean “dead hand”. Similarly in German – “tote hand”, in Spanish – “manos muertas”, in Italian – “manomorta”, in Netherlands – “dode hands”. In the contemporary Polish language of the law and in legal language an analogous term “dobra martwej ręki” (literally meaning “dead hand’s possessions”) exists thanks to the still valid Act of 20 March 1950 of the State Taking Over the Dead Hand’s Possessions, the Guarantee for Parish Priests of the Possession of Agricultural Farms, and Establishing the Church Fund18.

The terms in different languages have similar meaning: “the state or condition of lands or buildings, held inalienably, as by an ecclesiastical or other corporation” (Collins Dictionary of Law, 2006).

There are many explanations of the original meaning and of the essence of the legal institution named by the terms – all of which reveal the terms’ and institutions’ metaphorical character. For instance:

Some have said, that it is called mortmain, manus mortua, quia possessio eorum est immortalis, manus pro possessione, et mortua pro immortali; and the rather for that, by the laws and statutes of realm, all ecclesiastical persons are restrained to alien. Others say it is called manus mortua per antiphrasin, because bodies politique and corporate never die. Others say that it is called mortmaine by resemblance to the holding of a man’s hand that is ready to die, for what he then holdeth he letteth not goe till he be dead.[…] but the true cause of the name, and the meaning thereof, was taken from the effects […] so as the lands were said to come to dead hands as to the lords, for that by alienation in mortmaine they lost wholly their escheats, and in effect their knights-services for the defence of the realme, wards, marriages, reliefes, and the like; and therefore was called a dead hand, for that dead hand yeeldeth no service (Coke, 1823, p. B4).

The metaphors that are suggested in the explanations above are no more alive in the contemporary Polish language of the law; they can be acknowledged as alive only in the language of legal historians (just as the metaphor constructing “pedigree” for historians and genealogists). The proof for this thesis is the content of the Act of 20 March 1950. Though the title and the preamble of the Act contain the term “dobra martwej ręki” (“dead hand’s possessions”) they are understood as all immovable properties belonging to religious communities (churches) no matter whether they could be alienated or not (there is no prescription even recalling inalienability or alienability), no matter whether they are in dead or alive, or in any other hand.

It is much easier to find examples of legal metaphors which are strongly conventional and, at least for lawyers, do not look like metaphors at all. Such phrases like “higher-level” or “lower-level” norms (LEGAL SYSTEM IS A PYRAMID), “sources of law” (LEGAL ACTS ARE SOURCES OF THE LAW), “entering into force” (LEGAL VALIDITY IS FORCE), “legal collision rules” (RULES ARE PATHS), “gaps in the law” (LAW IS THE STRUCTURE), “expungement of the conviction” (CONVICTION IS A STAIN), “burden of proof” (PROOF IS HEAVY OBJECT), “fruit of the poisonous tree” (RESULTS ARE THE FRUITS OF THE CAUSES), etc. are among very common linguistic means of expressing very common legal metaphors.

It is in turn a hard task to find any novel metaphors in the law, especially when the law is stable and culturally well-established, when it has been in force for a long time. It is easier to find idiosyncratic linguistic means of commonplace metaphors, like for instance “piercing the corporate veil” or “lifting the corporate veil”. It seems that the term “electronic cigarette” may be seen as a realisation of quite a novel metaphor. A device named with this term was invented in 2003. In the Polish language of the law the phrase appeared approximately in 2012 (in some local but generally binding acts) and since 2015 it has been used in the Act of 9 November 1995 on the Protection of Health Against the Consequences of Tobacco and Tobacco Products19. Article 2 of the Act gives the following definitions:

“17) smoking of electronic cigarettes – consumption of steam containing nicotine, given out by electronic cigarette;

[…]

20) electronic cigarette – a product, which can be used to consume steam containing nicotine by means of mouthpiece […]”20

The metaphors established by the Act can be labelled as ELECTRONIC NICOTINE DELIVERY DEVICES ARE CIGARETTES and USING THE ELECTRONIC NICOTINE DELIEVERY DEVICES IS SMOKING. By the way, these metaphors were earlier non-legal metaphors and they most probably contributed to the legal politics promoted nowadays in Poland and to the fact that using electronic nicotine delivery devices is treated by the law as smoking. One may reflect on what would be the legal regulation of this practice if the shape of the devices had not been similar to traditional cigarettes and if other metaphors had become common, for instance ELECTRONIC NICOTINE DELIVERY DEVICE IS AN INHALER (A MEASURE / AN INSTRUMENT FOR QUITTING SMOKING).

The transformation of a novel metaphor into a strongly conventional one, and accordingly from comparison to categorization, is called by a cognitive psychologist, D. Gentner a career of metaphor. This idea will be discussed later while reflecting on analogy (cf. p. 133).

1 J. Finnis strongly insists that we should “distinguish between «the law» (of a particular community, the topic of thought by that community’s lawyers and judges) and «law» (a topic of thought of anthropologists, sociologists, other historians, moralists and jurisprudents such as Hart, Kelsen and Dworkin)” (Finnis, 1987, p. 368).

2 Linguists cannot even notice the claim I’m insisting on because of its legally normative character. They can only say, like Alain Rey, that “the intellectual and conceptual functions of terminology, which are cognitive and theoretical in most sciences, can have a utilitarian and a pragmatic function in technology and a standardising function in law” (Rey, 1995, p. 57).

3 The requirement of being able to be complete (or of being able to legally qualify any type of behaviour) is something weaker, or in fact something different from the requirement of being complete (or the requirement of legally qualifying any type of behaviour). So what I mean is not identical with what Wróblewski described as qualification completeness (Wróblewski, 2015a, passim).

4 A. Choduń examined a corpus of 52 Polish statutes and showed that in their content there is not even one phrase originating from common (colloquial) language (Choduń, 2006).

5 Cf. A. Kaufmann’s words: “[…] virtually all juristic concepts, even the so-called descriptive ones, are analogical concepts, because they never express a meaning which is merely perceptional but always (at least additionally) an intellectual, a specific legal meaning” (Kaufmann, 1966, p. 382).

6 Regulation of the President of The Council of Ministers of 20 June 2002 on the legislative drafting measures, consolidated text Journal of Laws of 2016, item 283.

7 The summary of the thesis: (1)The language of the law raises a claim to universality. (2) This claim is the source of the distinctive feature of the language of the law that is its necessity to cope with valuation. (3) This claim is the source of the necessity for the language of the law to cope with expressing and construing concepts that are abstract and in addition normative. (4) The phenomena described in thesis (1), (2), and (3) are the main causes that make the language of the law metaphorical in a way that is far from being trivial.

8 A domain (a conceptual domain) is a relatively complex knowledge structure which relates to a coherent aspect of experience (Evans, 2007, p. 61). Cf. LOVE, JOURNEY, TIME, SPACE, LAW, JOB, MARRIAGE etc.

9 This is a famous example given by Lakoff and Johnson – (Lakoff & Johnson, 1980, p. 4).

10 More about the metaphor LAW IS AN OBSTACLE see (Wojtczak et al., 2017).

11 The Convention on the protection of the European Communities’ financial interests, the Protocol of 29 September 1996, the Protocol of 29 November 1996 on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests and the Second Protocol of 19 June 1997. Also (Prusak, 2009; Pniewska, 2010).

12 The Act of 28 October 2002 on Liability of Collective Entities for Punishable Offences, consolidated text Journal of Laws of 2016, item 1541, as amended.

13 http://orka.sejm.gov.pl/Druki4ka.nsf/%28$vAllByUnid%29/AC421E35C88955B7C1256BF9003CF72C/$file/706.pdf, access 4 October 2016.

14 The verdict of the Constitutional Tribunal of 3 November 2004, case reference number K 18/03, Journal of Laws of 2004, No 243, item 2442.

15 More developed and recent version of this view (Krzeszowski, 2012, pp. 198–212).

16 It is not possible to explain within the range of this work and to present all the relations described by Krzeszowski. Using them (especially fundamental axiological matrix, so called FAMA) for researching legal reasoning can be a subject of a further, more detailed project.

17 “So stay awake, because you do not know the day when your master is coming. You may be quite sure of this, that if the householder had known at what time of the night the burglar would come, he would have stayed awake and would not have allowed anyone to break through the wall of his house. Therefore, you too must stand ready because the Son of man is coming at an hour you do not expect”. New Testament (Matt. 24:42–44) http://www.catholic.org/bible/book.php?id=47&bible_chapter=24, access 2 November 2016.

18 The Act of 20 March 1950 of the State Taking Over the Dead Hand’s Possessions, the Guarantee for Parish Priests of the Possession of Agricultural Farms, and Establishing the Church Fund, Journal of Laws of 1950, No. 9, item 87.

19 Act of 9 November 1995 on the Protection of Health Against the Consequences of Tobacco and Tobacco Products, Journal of Laws of 2017, item 957.

20 „17) palenie papierosów elektronicznych – spożycie pary zawierającej nikotynę, wydzielanej przez papieros elektroniczny;

[…]

20) papieros elektroniczny – wyrób, który może być wykorzystywany do spożycia pary zawierającej nikotynę za pomocą ustnika, […]”