Critical discourse analysis

It is mentioned in the foregoing that apart from micro-comparison of national case law, comparison is also made between different human rights instruments, the two authentic language versions of the Convention and consequently the Court’s case law, but also between different linguistic and legal cultures. For this purpose, even macro-comparison is carried out to some extent by means of discourse analysis, and discourse is put in a wider constitutional and legal context. The study of judicial discourse is typically placed within the framework of the science of legal linguistics. There are different ways of characterising legal linguistics as a branch of science. According to Mattila, legal linguistics is a branch of science that studies the development,

charac-35 Alexy 2004, p. 386 and 387.

36 Habermas 1996, p. 38.

37 Habermas 1996, p. 35. In the view of Habermas, there is a tension between facticity and valid-ity, constituting the validity dimension of language: truth and the discursive conditions for the rational acceptability of truth claims are mutually explanatory. (Ibid.)

teristics and use of legal language³⁸. Essentially, legal linguistics has as its main object the linguistic study of legal language in its different aspects and manifestations, in order to find the means and define the appropriate techniques to improve its quality.

In the view of Gémar, the methods of legal linguistics are, due to this close link with linguistics, those of social sciences and particularly socio-linguistics.³⁹ Or, as expressed by Cornu, legal linguistics is, in general, a particular application of the science of lin-guistics to the legal language. He characterises legal linlin-guistics as applied linlin-guistics, where those key concepts (signifié/ significant) and branches of linguistics (semantics, syntax) are chosen that best serve the purposes of the research. For the purposes of applying linguistic analysis to the language of law, it is semantics that plays the most important role.⁴⁰ Without going into details, suffice it to note that semantics is a sub-division of semiotics, which is a relatively new branch of linguistics. Semantics focuses on the relations between the sign (la signe) and the significant (la chose signifiée), in the search for meaning.⁴¹ Semantic theories of law, in turn, refer to such theories of law according to which lawyers must follow certain linguistic criteria when interpreting law, and which originally have focused also on the meaning of words. According to a more modern approach, this encompasses the use of legal concepts.⁴²

It is worth noting that discourse analysis is closely associated to a variety of fields of science such as cultural anthropology, sociology, critical social and linguistic theories, structural linguistics, communication theories, speech act theories and theories of text analysis⁴³. One could also speak of text analysis instead of discourse analysis. In general, in a legal context, linguistic analysis can contribute to correct understanding of what is said or written. However, the difference between the concepts of text and

38 Mattila 2010 (1), p. 719.

39 Gémar 1982, p. 135.

40 For more details, see Cornu 2005, p. 24-31.

41 Didier 1990, p. 91. Words can be studied in isolation or together with other words in which case one can speak of semantics of discourse. (Ibid. p. 111) In the search for the meaning of a particular treaty provision, the ordinary meaning of words, i.e. the way in which a certain word is normally understood by any reader, is relevant. However, as is pointed out by Lauzière, the search for the meaning of words in a piece of legislation is not that easy, and the words may not have the same meaning in a literary work as they have in a piece of legislation. Nor may synonyms be used to the same extent in legislative texts as they are used in literature (Lauzière 1982, p. 41-47).

42 Dworkin 1986, p. 32. According to Dworkin, semantic theories of law presuppose that lawyers and judges use mainly the same criteria when deciding whether the propositions of law are true or false; they suppose that lawyers actually agree about the grounds of law. The semantic theories have a close link with legal positivism (Dworkin 1986, p. 33) and with the literal meaning ap-proach to the interpretation of law.

43 For details, see a figure presented by Titscher & al. 2000, p. 51.

discourse analysis⁴⁴ is not dramatic, and both aim at interpreting the meaning of the text or discourse. Some scholars prefer to speak of critical discourse analysis, referring to a rather recent field of social sciences and putting emphasis on societal aspects of discourse. According to Niemi-Kiesiläinen & al., the traditional methods of legal sociology appear to neglect sociological analysis of legal discourse, i.e. the process in which legal argumentation constructs concepts and social reality⁴⁵ although, according to Levi, the areas of psycholinguistics and sociolinguistics are an increasingly significant trend in linguistics⁴⁶. The present research aims at paying attention to social realities in the interpretation of the European Convention on Human Rights without, however, constituting research in the field of social sciences. Even the European Court of Hu-man Rights pays attention to the prevailing standards and morals in democratic society, which may impose some limits to the development of case law. Through discourse analysis, it is assessed to what extent development may be detected through fragments of discourse, in the light of external factors. Such fragments of discourse could include for example extensive explanations of developments of society or moral conceptions.

One may note that discourse analysis does not exclude analysis of external factors, as is explained below in section 1.4.1, and in view of the Court’s approach to the inter-pretation of law, they are even called for. Discourse does not take place in isolation from external factors but is dependent on the legal framework and is affected by social realities. As pointed out by Niemi-Kiesiläinen & al., the system of facts is independ-ent from the existence of a text or discourse, whereas discourse analysis is based on a theory of social construction in which the discourse, including legal discourse, is seen as constructing the social world.⁴⁷ Therefore, extensive analysis is carried out of the constitutional developments and traditions of interpreting law. Following the idea of critical discourse analysis, the purpose in the present research is to carry out research into the change of legal culture through the analysis of three stages of development, where three major stages of the research all require a considerably different approach.

Therefore, a flexible method of discourse analysis is chosen. Also, considering the need for cross-disciplinary materials, the concepts of argumentation and discourse are used

44 Some scholars prefer to draw a distinction between discourse or conversation analysis and text analysis, the first one meaning in the first place the analysis of speech acts, and the latter mean-ing the analysis of written language. However, for the purposes of this study, discourse analysis is understood as a wider concept, covering also written discourses. (See Green 1990, p. 249) In the view of Garre, also translation strategies have a close link with legal interpretation, both dealing with aspects of text and sentence structure. (Garre 1999, p. 116) However, the objective of translation is different from that of legal interpretation, and the strategies of translation are not discussed in this study.

45 Niemi-Kiesiläinen & al. 2006, p. 24 and 25.

46 Levi 1990, p. 8.

47 Niemi-Kiesiläinen & al. 2006, p. 21-23.

interchangeably⁴⁸. Only the study of case law is close to the traditional idea of discourse analysis but is still focusing on the signs of change in the legal culture through judicial discourse, since individual linguistic elements would not be very useful for that purpose.

In view of the wide range of elements to be compared, Fairclough’s approach to discourse analysis appears to be particularly convenient in that in each case of changes in society – in the present case changes in the legal culture of protecting human rights and fundamental rights – critical discourse analysis is brought into dialogue with other sociological and social scientific research in order to investigate to what extent and in what ways these changes are changes in discourse, as well as to explore the socially transformative effects of discursive change⁴⁹. According to Fairclough & al. (2011), “in contrast with some branches of linguistics, critical discourse analysis is not a discrete academic discipline with a relatively fixed set of research methods, but a problem-oriented interdisciplinary research movement, subsuming a variety of approaches. Those approaches share interest in the semiotic dimensions of power, injustice, abuse, and political-economic or cultural change in society.”⁵⁰ In the present case, research into historical constitutional developments as well as development of the legal system and legal language in Finland represents the other sociological and social scientific research of relevance for the research into judicial discourse. The judgments of the Finnish supreme jurisdictions reflect the transition of legal culture of protecting human rights to the extent that there are changes in discourse. Fairclough sees discourses as diverse representations of social life, and critical discourse analysis is the analysis of the dialectical relationships between semiosis (including language) and other elements of social practices⁵¹. In the present study, the approach of the Finnish legal system to applying and interpreting the European Convention on Human Rights and the relevant case law of the European Court of Human Rights is treated as an example of social practice, and the case law of the supreme jurisdictions of Finland are treated as a discourse representing that system.

48 In doing so, the author does not intend to neglect the fact that linguists rather see argumentation as a specific type of discourse. See e.g. Van Eemeren & al., according to whom argumentation uses language to justify or refute a standpoint, with the aim of securing an agreement in views.

The study of argumentation typically centres on one of two subjects: either interactions in which two or more people conduct or have arguments such as discussions or debates; or texts such as speeches or editorials in which a person makes an argument. (Van Eemeren & al. 2011, p. 85) Thus, a court judgment typically involves argumentation.

49 See Fairclough & al. 2011, p. 362.

50 Fairclough & al. 2011, p. 357. The critical discourse analysis has, however, its origins in linguistic research and is closely associated with critical linguistics and social semiotics. (Ibid. p. 361 and 362.)

51 Fairclough 2001, p. 123. “Semiosis” refers to semiotics/ semantics, and includes all forms of mean-ing makmean-ing – visual images, body language, as well as language. (Ibid. p. 122.) See also Fairclough 2010, p. 234-239, where he proposes a four-step methodology for critical discourse analysis (a dialectical-relational version of critical discourse analysis), which is rather a combination of theory and methods instead of a clear-cut method.

Discourse is both historical⁵² (context bound) and interpretative and explanatory⁵³. The constitutional protection of fundamental rights and the international protection of human rights constitute a wider historical context, to which the application and interpretation of the European case law belong. However, for the purpose of discourse analysis, it is necessary to even limit the context. Context can be used as a representation of a whole communicative episode, including the communicative event (text, talk) itself, or as a representation of the relevant social environment of such an event⁵⁴. In other words, one may speak of a verbal context or a social situation or context⁵⁵. Consequently, the analysis of context may be restrictive and focus only on the user context (e.g. the court), or assess wider implications that the use of particular discourses may have even externally⁵⁶. One manner of limiting the analysis is the principle of local interpretation.

This principle instructs the hearer/ reader not to construct a context any larger than he needs to arrive at an interpretation.⁵⁷ Although the historical and legal framework plays a role in the shaping of discourse, for the final stage of the present study it is only relevant to look into those cases where the European Convention on Human Rights and the case law of the European Court of Human Rights have been applied. Thus, while bearing in mind the wider historical context of protecting fundamental rights and human rights, research is carried out into such Finnish judgments over a certain period of time and the fragments of discourse in those judgments are compared with one another. It is noted in the foregoing that the discourse of the European Court of Human Rights – as an example of constitutional rights argumentation – and the discourse of national courts inevitably entails some degree of general practical argu-mentation as well as subjective evaluative elements. Thus, it is useful to assess also some

52 There is also a historical approach to critical discourse analysis, which is nevertheless not treated in more detail in the present study. The discourse-historical approach, which is closely associated with the idea of emphasizing context, adheres to the socio-philosophical orientation of critical theory, and follows a complex concept of social critique. (See Wodak 2001, p. 64.) However, some of the general ideas of critical discourse analysis relevant for the present research are also found in the historical approach, the interdisciplinary nature, the problem oriented nature, and the analysis of the historical context and its integration into the interpretation of discourses and texts (Ibid. p. 69 and 70).

53 Fairclough & al. 2011, p. 372. Discourse is not produced without context and cannot be under-stood without taking the context into consideration. Discourses are always connected to other discourses which are produced synchronically and subsequently. Discourse can be interpreted in very different ways, depending on the context and audience. (Ibid.)

54 Van Dijk 2010, p.117. Van Dijk speaks of an inclusive definition and an exclusive one, and appears to prefer in his book the latter definition, i.e. the one referring to the relevant social environment.

(Ibid. p. 118)

55 Van Dijk 2009, p. 2. The verbal context includes preceding or following words, sentences, speech acts or turns within a discourse or conversation, whereas the social situation refers to the specific situation of a given text or talk.

56 Ruuskanen 2006, p. 57.

57 Brown & Yule 1983, p. 59.

wider implications instead of the communicative event only. Furthermore, one needs to bear in mind that even context-bound discourse allows some degree of variation in the choice of expressions⁵⁸, which have an impact on the judicial style⁵⁹.

Critical discourse analysis begins with defining the research topic, and methodology is the process during which this topic is further refined so as to construct the objects of research⁶⁰. To define the topic, a decision needs to be made on what one wishes to observe. To do that, it is necessary to know why it is interesting to carry out research on a particular part of cultural change. Once that has been established, the procedures to arrive at the observations can be decided.⁶¹ Various scholars have stated that the culture of applying international human rights instruments in Finland has dramati-cally changed over the past two decades since accession to the European Convention on Human Rights, and some have also said that this has had an impact on the judg-ments. It is interesting to assess whether and to what extent this has taken place, and whether the change in that part of the legal culture is visible in the national courts’

discourse. For that purpose, it is necessary to find those types of Convention rights under which the national case law shows the strongest examples of cultural change, and further to detect those fragments of judgments in which it may be seen, through the phase of micro-comparison of the references to the case law of the European Court of Human Rights. Upon detecting the elements of discourse demonstrating cultural change, the research method may be further refined to assess the degree of transition in the reception of the argumentation of the European Court of Human Rights. It is further interesting to assess what would be the recommended approach of the national courts to the application and interpretation of the case law of the European Court of Human Rights, to continue the scientific dialogue.

58 See Van Dijk 2010, p. 134. Apart from variation, discourse is related to the concept of style, which is a property of discourse and could be described as being the result of choices among alternative, variable structures. Most of the properties of style coincide with those of variation. (Ibid. p. 143.) For the purposes of the present study, one could speak of judicial style.

59 Another concept which is closely related to those of discourse and context is that of genre. Ac-cording to Van Dijk, genre may refer to either the contextual features or the discourse structure type. (Van Dijk 2010, p. 149.) For the purposes of the present study, the relevant genre would be the discourse type or style of judgments.

60 Fairclough & al. 2011, p. 358. Fairclough does not wish to present a strict method of critical discourse analysis, but provides a suggestion for the analytical framework. According to the proposed framework, analysis should be carried out on the network of practices within which the analysed problem is located, on the relationship of semiosis to other elements within the particular practice concerned, and on the discourse (the semiosis itself). (See Fairclough 2001, p. 125.)

61 See Titscher & al. 2000, p. 12.