If there is one central aspect to the study of the law, it is the study of discourse. A term that comes from linguistics (the study of language), ‘discourse’ is simply the way we think, talk, and write, or generally communicate, about a given topic. Discourses permeating a given society serve to organize and dictate our perceptions of the preferred and dominant ideologies. Sociologists see discourses as embedded in and emerging out of relations of power because those in control of institutions—like media, politics, law, medicine, and education—control its formation. As such, discourse, power, and knowledge are intimately connected, and work together to create hierarchies. Some discourses come to dominate the mainstream (dominant discourses), and are considered truthful, normal, and right, while others are marginalized and stigmatized, and considered wrong, extreme, and even dangerous (Cole, 2019). To analyze a discourse means to locate and define this way of communication on a given topic, and look into its deeper connotations: Whose interest does it represent? What power dynamic does it reproduce? What ‘ideal type’ does it project and why?

Discourse analysis in legal studies

As a method discourse analysis is a great tool as it enables researchers to uncover/ look at the social context and the political and cultural dynamics behind legislative processes or the policy implementation. It proves very useful for discerning any textual, visual, or aural message, looking not just at the obvious content, but rather the more deeply embedded and less visible notions, underlying assumptions, ideologies and hidden meanings, usually very telling in the context of political power dynamics that exist in the processes of law creation and execution.

Critical discourse analysis

Critical discourse analysis communicates a specific theoretical approach to the concept of a discourse. While used by numerous social and legal scholars, such as Antonio Gramsci (1891-1937), Pierre Bourdieu (1930-2002), or Anthony Giddens (b.1938), the most prominent critical discourse scholar usually immediately associated with it is a French social thinker, Michele Foucault (1926-1984).

Foucault was most interested in the issues of power and its unequal distribution throughout the society, and wanted to understand how in modern democracies small groups of people can control large populations. He saw the process of creating the dominant discourses by institutions in all categories of social life (in politics, law, media, education, medicine, even entertainment) as a tactic used by those in power to keep their control over society (knowledge production). Institutions shape the production of discourse and knowledge, all of which is framed and prodded along by ideology. If ideology is a worldview, discourse is how we organize and express that worldview in thought and language. Ideology thus shapes discourse, and, in turn, discourse influences the reproduction of ideology (Cole, 2019).

To summarize, Foucault in tracing power dynamics understood the connection between discourse and institutions: Those in control of institutions and knowledge production are also in control of our worldview, and the very same ideology that allows them to stay in power.

Overview

1. What is a ‘discourse’:

- “Communication in speech or writing; a speech or piece of writing about a particular, usually serious, subject” (Cambridge Dictionary)

- “Discourse refers to how we think and communicate about people, things, the social organization of society, and the relationships among and between all three. [It] typically emerges out of social institutions […], and by virtue of giving structure and order to language and thought, it structures and orders our lives, relationships with others, and society. It […] shapes what we are able to think and know any point in time”(Cole, 2019)

2. Examples of discourse

- Lawyers are men in suits who speak with confidence while leaning back in their office chair.

- Police are men in uniforms who stand in the street.

- Muslims are most likely to be terrorists, and vice versa (see the Baker-Beall article about creating the discourse of the terrorist ‘dangerous other’).

3. What can be analyzed using discourse analysis:

• Written word, i.e. texts of political speeches, government briefs, laws, policies, parliamentary debates, media articles, journalism articles, academic articles and books, educational materials, and more

• Spoken word/aural messages, i.e. texts of songs, any speech, political addresses, TV/Youtube

• Visual media, i.e. theater, movies, TV, paintings, posters, advertising, magazines

4. What can we gain by using discourse analysis:

• Tracing evolution of ideology over time

• Locating shifts in socio-political framing of ideology

• Locating linguistic tactics of framing and problematizing of various socio-political issues and events

• In essence, a well conducted discourse analysis is capable of exposing the process, trends and typology of ‘othering’ and discrimination within the society

5. The process of using discourse analysis:

• Choose the item to analyze: written, spoken, or visual communication.

• Deconstruct the elements that create the message of that item; closely examine use of emotional language or visuals, and focus on not just the obvious content, but rather the underlying message. Ask yourself, who does this message benefit? What worldview/ideology does it support? Whose voice does it represent, and what societal groups are not included?

• Focus on a specific issue, topic, or a societal problem to write up your analysis, the one you see as the most socially or politically pertinent, or most relevant to your study.