Structure of Judicial Oratory

Structure of Judicial Oratory

28/09/2018

Journal of case laboratory (3)


Here is a body of case maerial from the European Court of Human Rights for studying the conflicts between individual freedom and social morality. These include 70 cases where the respondent state has invoked 'protection of morality' as the legitimate end of interfering with individual freedoms under Articles 8 to 11.


Document Title
CASE OF JANSEN v. NORWAY
CASE OF MARIYA ALEKHINA AND OTHERS v. RUSSIA
CASE OF MOHAMED HASAN v. NORWAY
CASE OF WETJEN AND OTHERS v. GERMANY
CASE OF SINKOVA v. UKRAINE
CASE OF SEKMADIENIS LTD. v. LITHUANIA
CASE OF STRAND LOBBEN AND OTHERS v. NORWAY
CASE OF BAYEV AND OTHERS v. RUSSIA
CASE OF BUCHLEITHER v. GERMANY
CASE OF NOVIKOVA AND OTHERS v. RUSSIA
CASE OF JOVANOVIC v. SWEDEN
CASE OF PARRILLO v. ITALY
CASE OF DMITRIY RYABOV v. RUSSIA
CASE OF AGEYEVY v. RUSSIA
CASE OF H. v. FINLAND
CASE OF KNECHT v. ROMANIA
CASE OF COSTA AND PAVAN v. ITALY
CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND
CASE OF STUBING v. GERMANY
CASE OF PONTES v. PORTUGAL
CASE OF S.H. AND OTHERS v. AUSTRIA
CASE OF NEGREPONTIS-GIANNISIS v. GREECE
CASE OF TSIKAKIS v. GERMANY
CASE OF RYTCHENKO v. RUSSIA
CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND
CASE OF A, B AND C  v. IRELAND
CASE OF ALEKSEYEV v. RUSSIA
CASE OF KUROCHKIN v. UKRAINE
CASE OF AKDAŞ v. TURKEY
CASE OF KHAN A.W. v. THE UNITED KINGDOM
CASE OF ERRICO v. ITALY
CASE OF CLEMENO AND OTHERS v. ITALY
CASE OF IORDACHE v. ROMANIA
CASE OF VLASOV v. RUSSIA
CASE OF WAGNER AND J.M.W.L. v. LUXEMBOURG
CASE OF ERBAKAN v. TURKEY
CASE OF C. v. FINLAND
CASE OF AYDIN TATLAV v. TURKEY
CASE OF İ.A. v. TURKEY
CASE OF K.A. AND A.D. v. BELGIUM
CASE OF HAASE v. GERMANY
CASE OF GUNDUZ v. TURKEY
CASE OF SAHIN v. GERMANY
CASE OF SOMMERFELD v. GERMANY
CASE OF COVEZZI AND MORSELLI v. ITALY
CASE OF HOPPE v. GERMANY
CASE OF KUTZNER v. GERMANY
CASE OF BUCHBERGER v. AUSTRIA
CASE OF SAHIN v. GERMANY
CASE OF SOMMERFELD v. GERMANY
CASE OF HOFFMANN v. GERMANY
CASE OF K. AND T. v. FINLAND
CASE OF T.P. AND K.M. v. THE UNITED KINGDOM
CASE OF SCOZZARI AND GIUNTA v. ITALY
CASE OF ELSHOLZ v. GERMANY
CASE OF A.D.T. v. THE UNITED KINGDOM
CASE OF K. AND T. v. FINLAND
CASE OF L. v. FINLAND
CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM
CASE OF OLSSON v. SWEDEN (No. 2)
CASE OF OPEN DOOR AND DUBLIN WELL WOMAN v. IRELAND
CASE OF RIEME v. SWEDEN
CASE OF MARGARETA AND ROGER ANDERSSON v. SWEDEN
CASE OF ERIKSSON v. SWEDEN
CASE OF NORRIS v. IRELAND
CASE OF MÜLLER AND OTHERS v. SWITZERLAND
CASE OF OLSSON v. SWEDEN (No. 1)
CASE OF SILVER AND OTHERS v. THE UNITED KINGDOM
CASE OF DUDGEON v. THE UNITED KINGDOM
CASE OF HANDYSIDE v. THE UNITED KINGDOM



























































































































































































































22/03/2017

Analysis of rhetoric: how to do it?



Case-laboratory, 22 March 2017
Samuli Hurri

Last time we decided to move in our work from analysis of grammar to analysis of rhetoric. This time, I will try to provide a few lines of groundwork to clarify what this move, in my mind, would essentially mean. Furthermore, I will try to lay before you a brief suggestion for an outline of facets of rhetorical analysis. In accordance with the broader aims of our most recent research plan, I will use another occasion to connect a genealogical dimension to this outline. Let me just note at this point that a certain analytical division between types of dispute in legal cases exists in the ancient tradition of rhetoric, which seems to resemble substantively what we have in the outline.

I would like to start by pointing at the difference between grammar and rhetoric as objects of analysis. What does this shift from the one to the other mean?

The object of the analysis of grammar, as we have had it, is to individuate the necessary elements in complete legal argumentation. We seek to reconstruct these elements on the basis of the standard questions posed in the ECtHR cases on Articles 8–11: Was one of the Convention’s individual rights interfered with? Was the interference authorized or arbitrary from the point of view of national legality? Was there a legitimate policy-end that justifies the interference? Were the measures taken appropriate and proportionate in the particular circumstances of the case? Our task in this respect is to examine whether these standard questions somehow stand for the necessary elements of legal argumentation in general and therefore reflect its linguistic deep structure (grammar).

The aim of such analysis is a system of argumentation that we presume to be reducible to a set of fixed relations between the said elements (rights, legality, ends, and means). It appears to be that the relations between the grammatical elements form differently according to the speaking position of the party in question. For instance, an applicant in a human rights case will typically say that his rights and the circumstances of the case will outweigh the possible legality and legitimate end that would justify the interference. The respondent State, in turn, will typically be in a position to say the opposite. This is of course too rough simplification, but generally speaking it makes sense to say the following: argumentative basic positions are constituted by the structures of legal argumentation. In other words, what the litigants on different sides will argue derives from the intrinsic structure of legal language.

Now, what does the move from analysis of grammar to analysis of rhetoric mean? Let me suggest, first, that the object of analysis is no longer the structures of legal argumentation as such, but the strategic choices that these structures make available for actors. Whereas the elementary grammar gives a rather fixed network of speaking positions, rhetoric requires fair amount of genius and creativity from the speaker. Speakers will have to make something out of the language; perhaps we can even say that they should turn themselves from subjects to masters of language. When it comes to rhetoric, the positions given to speakers do not determine what they will say; by speaking, they subject legal language to strategic use, giving it strategic meaning and purpose.  In terms of classical structuralism, we would move from analysis of (social) systems of language to (individual’s) actual practice of speaking (from langue to parole).

This way, and unlike in grammar, choosing is at the centre of everything in rhetoric. In this regard, the question of methodology will be raised. How to analyse rhetoric? Where to perceive choices? In our last meeting, we already made the preliminary individuation of facets where rhetorical and strategic choices could be found. We thought that choices may be found in strategies of narration, conceptualisation and composition, and finally, in strategies of distinguishing and analogy. Let me provide a brief resume of what I suppose we all had in mind when we agreed to embark on the analysis of rhetoric.

1. Narration, as we had it, is basically the way in which litigants and judges pick the facts and forge a story about the course of events that have led to the case at hand. Here the idea could be to point out the way in which the choices made in presenting certain “facts” rather than others (or emphasising certain facts and downplaying others) works the ground for the argumentation that will follow afterwards. Notable in this regard is the very last part of case dossier, where normative principles are applied to the circumstances of the case in order to determine whether interference was ‘necessary in democratic society’. One could perhaps say that narration, to some extent, is an art of perceiving significant details. In S.H. case, for instance, the fine distinctions between the different medical methods of helping parents to get children were brought in the foreground. Yet there are of course more stakes involved in the analysis of narrative choices. Narrative may be seen as a way of understanding human life and the world in which we live: human actions, as well as state actions, become meaningful when inserted – as they originally are – in a storyline. For example, our Castells case can hardly be understood without the background story of Franco’s dictatorship, supressed legacy of republicanism, and Bask activism. Likewise, in Vona’s background there is the history of how fascist totalitarian regimes once came about. In the background of S.A.S. is the history of French colonialism in northern Africa.

2. Distinguishing/analogy is about comparing the case at hand with previous cases. I have moved it right next to narration, because, as I now see it, it should perhaps be considered together with narration as one single facet, because here the choice of facts and details reappear most palpably in argumentation. What is distinguishing/analogy? As a matter of course, one way to relate previous case law is to simply draw on the so-called “precedents”. Precedents are the cases where the Court at some point has clarified significantly the principles “enshrined in the law” (in the Convention), that is, reconstructed new principles for questions that were not covered in the written law. Also, one may try to make analogies between different fields: for instance, principles that were reconstructed in the context of freedom of speech may be offered as valid also in the field of freedom of assembly. This type of analogy was attempted by the Hungarian Government in Vona, but rejected (“distinguished”) by the Court. Yet these types of arguments are not strategies of distinguishing and analogy properly so called. What marks out distinguishing and analogy is that they work with the facts and circumstances of the cases compared, which creates the vital connection of this facet to narration facet. Accordingly, one may say that the fact of veiling one’s face is a significant difference from veiling other parts of the body, which made S.A.S. different from certain previous cases. Furthermore, one may draw on the doctrine of “dynamic interpretation” and say that because of the evolution of society (its values, its technologies, etc.) the circumstances are not the same as they had been in previous cases.

3. Conceptualisation, as we had it, is the way in which one defines what the case is about, giving it a context. This facet differs from the narrative facet in that society is conceived in a synchronic register, not in the diachronic one. The metaphor is the “map” rather than story. Conceptualisation is about giving the case a locus in society by defining it, for example, as a matter of economic governing or as a matter of security administration. To borrow more concrete examples from Kati’s work: is religious attire to be conceived as an expression of someone’s personal belief, expression of her belonging to a culture, or her performance that is best understood in the context of political activism? This type of conceptualisation and contextualisation need not necessarily rely on the concepts and categories that the law (the Convention, in our case) makes available. Nevertheless, one way to trace the choices made in this dimension is, for instance, by looking at which of the Convention rights is considered most relevant (for instance, all the Articles 8 to 11 were invoked in the S.A.S. case, but the Court’s argumentation revolved around Art 9 dominantly) and which of the legitimate ends (of those enumerated in the second paragraphs of Articles) is considered the appropriate justification.  

4. With composition, in turn, we wanted to denote the design of strategic structure in argumentation: how the pros and cons are played out, how the connection between the applicable principles and their application to the case is made. While composition in a broad sense involves the legal speech in its entirety (how narration, conceptualisation and argumentation are made into a whole) there may be good reasons to consider composition in a narrow sense as well. In the narrow sense, composition would target that part of legal argumentation where justification of acts is discussed. This part is ‘decisive’ in the legal sense, but all the same it is built on the ground of narration and conceptualisation. However, here facts and their correct understanding is no longer the problem. Rather, the problem is, first, the reconstruction of the normative principles that would regulate the dispute at hand. These principles most often give some type of counter values in scales, as it were, so that a balance needs to be struck between them in each case separately. The second problem should be to find out about the facts of the case, which facts either call for or undercut the application of the principles laid down in the first phase. For one thing, to analyse composition means that one tries to see how facts of the case and generally valid norms are made into an argumentative whole. More importantly, however, it is about conceiving the strategic situation between opposing litigants who would present opposing arguments. It is about analysing apart the ways in which someone incorporates the counter-arguments (what the opponent would say) in one’s own argumentation.

In the end, let me once again return to the main thing: as rhetoric, structures of legal argumentation expect the speaker to use the language, not according to some set of rules, but creatively. Analysis of the work of a speaker will have missed the point from the beginning, if it sets as its object some sort of mapping out of all the possible choices available. The horizon of possible inventions should be seen boundless in principle. This is what distinguishes analysis of rhetoric from analysis of grammar in another way: instead of the limited possibilities that constitute the position given by legal language, an analyst of rhetoric will be given a case that is in all essentials constituted by the speakers involved.

24/02/2017

Journal of the case laboratory (2)




Autumn term 2016

Our autumn term started with a workshop we organized in the Critical Legal Conference (University of Kent, Canterbury) in September on Parrhêsia. In October, we worked on our research plans for the purposes of obtaining further funding from the Academy of Finland, and submitted an application for research on Structures of Legal Argumentation: Analysis, Critique and Genealogy.

In November and December we resumed our normal functions in case laboratory. We carried out our plan to experiment the method of BEM (Basis, Ends, Means) analysis of legal grammar with selected four cases from our materials. This period included four sessions of case laboratory, held in the premises of Helsinki Collegium for Advanced Studies. At the end of the autumn term, we organized a Field Day for wrapping up the work done so far and for deciding about the future work.

9 November, Case Laboratory
Samuli Hurri presented the case of S.A.S.

23 November, Case Laboratory
Kati Nieminen presented the case of Castells.

14 December, Case Laboratory
Sanna Mustasaari presented the case of S.H.

15 December, Case Laboratory
Ukri Soirila presented the case of Vona.

20 December, Field Day
Field Day was organized in Cafe Bergga in Kallio, where we invited Professor Juha Karhu from the University of Lapland. As our guest, he commented and discussed our work done so far and future plans. For the future, we decided to proceed from analysis of grammar (the BEM-analysis) to analysis of rhetoric. This is to focus on the choices that structures of legal argumentation make available. For the spring term 2017, we agreed to focus on developing four specific methods of analyzing rhetoric in legal cases, and moreover, on the following distribution of work:
  • Strategies of narration of facts: Samuli Hurri and Ukri Soirila
  • Strategies of composition of argumentation: Samuli Hurri and Kati Nieminen
  • Strategies of conceptualization and contextualization: Samuli Hurri and Sanna Mustasaari
  • Strategies of analogy and distinguishing between facts of the cases: collectively
Each method will be first developed and then tested to the four cases of S.A.S, Castells, S.H., Vona.

 

24/05/2016

Journal of the case laboratory (1)



Spring term 2016

Below are the sessions of the research project Legal Language of Moral Struggles over the spring term 2016. This period included nine sessions of case laboratory, held in the premises of Helsinki Collegium for Advanced Studies, and one field day for wrapping up the work done so far.


14 January, Setting up the case laboratory (1): Requirements of collective work.
25 January, Setting up the case laboratory (2): What to look for in the cases?

19 February, Case Laboratory
Samuli Hurri presented the following five cases:

24 February, Case Laboratory
Kati Nieminen presented the following ten cases:

March, break

13 April, Case Laboratory
Samuli Hurri presented the following four cases:

26 April, Case Laboratory
Ukri Soirila presented the following five cases:

4 May, Case Laboratory
Sanna Mustasaari presented the following five cases:


8 June, Field Day in the premises of Gallery Huuto, Jätkänsaari