Micro-comparison through discourse analysis

The essential method used for the purposes of comparing and analysing the judgments of the European Court of Human Rights and those of the supreme jurisdictions of Finland against one another is discourse analysis. It is based on the understanding that judicial discourse is a demonstration of legal culture where legal linguistic expressions gradually change along with changes of law, bearing in mind that the more profound changes of legal culture may require more time than the judicial discourse. The more there

28 See Husa 2011, p. 223 and 224. Husa finds that this concerns, in particular, legal translation.

Indeed, for a comparatist studying the legal system, knowledge of the language at least to some extent is necessary for the understanding of that system.

29 For more details, see Glenn 2004, p. 343-347.

30 Glenn 2004, p. 347 and 348.

is variation in the linguistic expressions, the less complete the change is. The linguistic fragments are necessarily analysed for the purposes of the micro-level comparison of judgments to detect the signs of change. Those linguistic fragments both in European and national case law include the use of various concepts and expressions that demonstrate cultural change such as references to the Convention as a living instrument, references to the existence of a European standard or explicit references to the development of law or morals. Relevant linguistic fragments may also consist of increased presence of such references as the Convention as a living instrument or autonomous meaning, or certain standards of methods of interpretation. It is presumed that certain methods of interpretation are resorted to in those cases where the protection of human rights has been strengthened more clearly than in other cases and thus the legal culture has under-gone a transition. In the national case law, the relevant linguistic fragments include, in particular, the fragments of discourse where references are made to the European case law and the ways of doing it. Micro-comparison through discourse analysis is used to see how the way of applying the European Convention and the European case law has gradually changed. It is also applied to the judgments of the Finnish supreme jurisdic-tions. The purpose is to arrive at a conclusion concerning the changes in legal culture by means of analysing the supreme jurisdictions’ discourse, in an effort to see whether the changes in legal culture are traceable through changes in discourse.

The European Court of Human Rights combines a variety of sources of law, includ-ing sources indicatinclud-ing changes in society (makinclud-ing the Convention a livinclud-ing instrument).

The Convention provisions are rather static, but the Court uses other sources of law in the interpretation of those provisions, and developments in the Court’s judicial discourse demonstrate changes in how the judges see the European standards of pro-tecting human rights. In the same way, the changing judicial discourse of the Finnish supreme jurisdictions indicates how the approach to the application of the European Convention and the relevant case law has changed. Those changes may include, among others, not only changes in opinions or interpretation but also additional elements in the discourse which have not existed before. In particular, the judgments of the Finn-ish supreme jurisdictions are compared against one another to see whether there are increased details, references to concepts, standards or methods of interpretation that have not been used before, or different style of argumentation. In view of the limita-tions set by the legal system on the discourse used by the national courts, it is also relevant to analyse the approach of the legal system to the sources of law and methods of interpretation of law, to explain the particular characteristics of the discourse of the Finnish supreme jurisdictions. The implications of those factors on the discourse of the supreme jurisdictions of Finland are assessed not only in the light of the domestic approach, but also in the light of the sources of law and methods of interpretation used by the European Court of Human Rights and the jurisdictions of the selected legal systems used as sources of comparison.

The focus of the research into case law is on micro-comparison through discourse analysis, but discourse cannot be analysed in isolation from the principles and methods of interpretation of law. This allows not only comparison between different human rights instruments, the two authentic language versions of the Convention and conse-quently the Court’s case law, but also between different linguistic and legal cultures³¹. In the conclusions, an effort is made to see whether and how the Court’s discourse has been received by Finnish supreme jurisdictions, and what the general attitude of the national courts is to the discourse of the European Court of Human Rights, including the methods of interpretation of law. However, Van Hoecke points out that problems of statutory interpretation are often approached from the point of view of interpretation arguments rather than interpretation methods. Furthermore, a distinction is drawn between objective or scientific methods, on the one hand, and subjective or evaluative methods, on the other. According to Van Hoecke, in most argumentation approaches a mixture of both is found. He refers to external and internal perspec-tives of argumentation.³² When put in the context of interpretation of the European Convention on Human Rights, internal perspectives of argumentation would include various aspects such as the facts of the case and applicable provisions of law, whereas external perspectives would consist of a wider context including prevailing conditions of society. Argumentation analysis could focus on the means by which the parties at-tempt to convince the court of their views, on the one hand, and by which the court attempts to convince the audience (the parties, higher courts, and the general public) of its judgment, on the other.³³ Both appear in the judgments of the European Court of Human Rights and in those of the Finnish supreme jurisdictions, although the structure of reasoning has some differences.

The conclusions concerning the Finnish supreme jurisdictions are made on the basis of analysing to what extent they resort to the case law and style of judicial reasoning of the European Court of Human Rights as an external or internal perspective of argumentation in relation to the elements of the national legal system as an internal perspective. The concepts used by Van Hoecke are brought to a more concrete level in the light of the references to European case law. It is suggested that the closer to

31 Legal culture is understood as meaning the characteristics or qualities that a State or group of States has in its procedural and substantive law and legal system. Bunn-Livingstone includes in the concept of legal culture the country’s or group of countries’ (or regions’) set of rules, values, ideologies, traditions, attitudes, and norms inherent in the law and legal system. She points out that these are dynamic concepts that change with time as they are shaped by historical, political, economic and social factors. (Bunn-Livingstone 2002, p. 41 and 43)

32 Van Hoecke 2002, p. 134 and 135.

33 Van Hoecke 2002, p. 125. Van Hoecke observes that those sets of arguments consist of both elements that are worded in terms of ”empirical truth” and of elements that inevitably require some evaluative choice. The latter cannot be approached in terms of “true” or “false” but in terms of “better” or “worse” interpretation.

the style of argumentation of the European Court of Human Rights the discourse of the Finnish supreme jurisdictions is, the more it is used as a strong internal element of argumentation. Signs of such strong internal elements include, among others, the use of similar methods of interpretation – although not necessarily bearing the same name – and the use of autonomous concepts as developed through the European case law. It is also assessed through discourse analysis to what extent there is transition in the use of such elements of argumentation. This can be done through objective analysis.

However, apart from what types of expressions are clearly visible in the discourse of the supreme jurisdictions and may be analysed on objective grounds, it is inevitable that there are also subjective elements present, which may be more difficult to analyse. Such elements would include for example signs of a general attitude of judges. Thus, a further element subject to discourse analysis in the present study is the use of the subjective or evaluative perspectives of argumentation advocated by Van Hoecke. Those perspec-tives may, in particular, include societal elements. An effort is made to see whether the European Court of Human Rights and the Finnish supreme jurisdictions focus mainly on legal argumentation, or whether it is supplemented by practical argumentation.

In the view of Alexy, mere legal discourse or argumentation is not sufficient but a decision needs to be reached, by reducing the number of solutions into one by means of the rules of rational practical argumentation.³⁴ Thus, particularly in the field of hu-man rights, the judges need to resort to even complicated balancing of rights against one another, with a view to giving priority to one of them. That is typical particularly in the balancing of the freedom of expression or the protection of national security against the right to private life. The outcome may be different depending on how much weight the judges put on the different criteria. This, in turn, is particularly challenging for a legal system which traditionally underlines literal interpretation of law. Further, even if the legal system relies on rather strict legalistic traditions and judgments are bound by the rules of law, there may be differences in the ways in which the judges combine the legal rules with a wider perspective. The possibility for different outcomes even through the application of the same provisions of law or the same case law constitutes a further challenge for discourse analysis. However, signs of change in the legal culture may be detected by looking into the presence and ways of balancing of the different criteria for giving priority for a certain constitutional right or Convention right, in an effort to see those fragments of discourse have changed.

How successful this is depends on how explicitly the judgments set out the balancing of those criteria. Insofar as constitutional rights argumentation is concerned, Alexy appears to be of the view that there necessarily is a rationality gap. The constitutional rights argumentation is determined and structured to some extent by the legal basis, but this determination is incomplete. Therefore, general practical argumentation is a

34 See Alexy 2004, p. 371.

necessary component of constitutional rights discourse, sharing also the uncertainty of its outcome.³⁵ This could be said to apply to the argumentation of the European Court of Human Rights and there are examples of such supplementing general practi-cal argumentation. Inevitably, the discourse and argumentation is supplemented with general practical arguments based on experience and on the subjective views of the judges and not everything is necessarily explicitly written in the text of the judgment, as part of the reasoning of the courts remain behind “closed doors”. Nevertheless, even in the case of constitutional rights argumentation, or fundamental rights argumenta-tion, rationality is relevant to make it convincing and to afford it a law-making effect, i.e. to make it legitimate, and it is necessary to justify the argumentation by sufficient proof. Habermas draws a distinction between two sides of law: its positivity and its claim to rational acceptability³⁶. According to Habermas, there is an internal relation between the validity of a proposition and the proof of its validity. In the words of Habermas, “what is valid must be able to prove its worth against any future objec-tions that might actually be raised”.³⁷ Thus, the receptiveness of the argumentation of the European Court of Human Rights by its audience, i.e. the national courts and authorities, requires internal coherence between the statement and the justifying arguments. It must be both understandable and acceptable in the experience of the audience. The requirement of acceptability of argumentation also imposes restrictions on the formulation of the courts’ discourse i.e. on the manner of using the language.

Legal argumentation, when supported with binding rules, is usually legitimate as such, but the persuasiveness of judgments may be supplemented by means of general practical argumentation.