The performativity of metaphors: into and beyond the “balancing” exercise of the European Court of Human Rights
A few legal scholars have started challenging the exclusively ornamental significance of metaphors in law and legal reasoning. However, the precise role of metaphors in the creation of authoritative meaning is still the subject of vibrant and cross-disciplinary discussions to which this thesis aspires to contribute from a yet unexplored perspective. This thesis seeks to understand the properly creative nature of linguistic expression through metaphors – or precisely, how metaphors, through the perceptual and affective participation they prompt in their understanding, are specifically necessary to this creative, if not performative, nature. To this end, metaphors cannot only be understood as the representation of cognitive structures or of yet unobserved similarities. What these views miss is the recognition of a moment of spontaneous expressive communication, wherein metaphoric language is understood as the phenomenal existence of a properly novel, and yet to be communally determined sense. The second part of this thesis examines the metaphors found in human rights law and adjudication, and specifically in the case law of the European Court of Human Rights. Approached neither as near universal and objective concepts, nor as empty and flawed rhetorical tools, these metaphors will be (re)situated in their historical context. Starting its examination with the metaphor of balancing, this part mobilises the theory developed in this thesis to shed light on the forms of embodiment that these specific metaphors convey.