Interpreting the ‘Quality of Law’ at the European Court of Human Rights: Metaphorical Framing and Evaluative Judgment
iCourts Working Paper Series, No. 143, 2018
26 Pages Posted: 11 Oct 2018 Last revised: 14 Feb 2019
Date Written: September 18, 2018
This paper looks at the use of metaphor and its effect on the interpretation of the ‘quality of law’ of contracting parties in Art. 8 cases of the European Court of Human Rights. This paper demonstrates the Court’s reliance on and reproduction of specific metaphorical frames - a finding consistent with the use of metaphor in judgment experiments in cognitive linguistics, but a first in studies of legal language. The Court employs metaphors conceptually coherent with those used in their cited precedent, in their representation of the successful pleadings within their judgments, and insists (implicitly) on different metaphors in dissent. This paper argues that rather than being simple judicial rhetoric, the use of congruent metaphors may be indicative of metaphor as a modulating factor in how judges reason. In the least, it is a significantly understudied phenomenon and this paper provides evidence for the saliency of its approach for understanding judicial reasoning. It approaches case law as data to understand the effects metaphorical framing has within them.
Keywords: European Court of Human Rights, interpretation, international courts, cognitive linguistics, law and language, article 8, judicial reasoning, quality of law
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