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Legal Discourses

Marcus Galdia

The book approaches law from the legal-linguistic perspective. Its aim is to clarify the processes in which the meaning of law emerges in legal discourses. In order to enable the understanding of law as a discursive practice, professional and non-professional discourses are analyzed. With this aim in mind, the author focuses on the epistemological consequences of the discursiveness of law. Other relevant legal-linguistic operations such as legal interpretation or legal translation are scrutinized in terms of their theoretical prerequisites and their practical consequences. Their analysis also shows the potential and the limits of law as a social and as a linguistic phenomenon that is determined by its discursiveness. Finally, the book demonstrates how the discursiveness as the distinctive feature of law establishes the connection between the science of law and other social sciences.
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Part 3: Discursiveness of Law

Extract

Part 3:  Discursiveness of Law

3.1  Speaking about law

Speaking about law is different from speaking about weather or about quantum mechanics. Law does not exist beyond social discursive practices and therefore, at least theoretically, all speaking about law is rooted in its discursiveness. The discursiveness as notion means primarily that a legally relevant issue that attracts speakers’ attention can be approached only with linguistic means. The fact that law is rooted in discursiveness has one fundamental consequence: it seems worthwhile to describe it from the perspective of a discourse. Several eminent scholars such as Michel Foucault, Mikhail Bakhtin, John Searle and Jürgen Habermas developed broad theoretical frameworks that can be used to identify and better understand legal discourses. All of the mentioned approaches are useful in a legal-linguistic analysis. Although they emerged in different intellectual traditions, they are not contrary but rather complementary. They will be used in the following chapter in different degrees, depending on their particular usefulness for the discussed issue. Discourse is a complex notion that is researched in most works on this topic in a reduced form that reflects the actual needs of a researcher’s approach. However, some researchers such as Michel Foucault dealt also with the philosophical prerequisites of the discourse. Foucault’s approach is therefore well adapted to the needs of investigating legal discursiveness.

3.1.1  Foucault as pilot

Michel Foucault constructed in his two fundamental works Les mots et les choses (1966) and L’archéologie...

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