Legal Research as Informed by Comparative Discourse

Project period: 2024-2026

Part of the self-conception of modernity is that legal ideas are not immutable and always require justification. Our assumption is that these justifications are produced by processes of discourse and can therefore be researched using methods of social science discourse analysis. The aim of this project is to reconstruct the developments which result in certain justifications being embraced or, conversely, rejected in legal discourse communities. In particular, we are interested in determining which events, actors, or processes account for shifts in what is deemed plausible or (un)sayable.

We will explore this topic by investigating three thematically discrete subjects of discourse: first, the question of whether animals should or could have rights (‘animal rights discourse’); second, the question of whether surrogacy should be opened up or, alternatively, why it should not be opened up (‘surrogacy discourse’); and third, the question of whether children should have a right to a non-violent upbringing or, conversely, whether parents should have a right to administer corporal punishment (‘corporal punishment discourse’). The study is designed to be diachronic so as to produce findings over time. In addition, the study is in several respects comparatively conceived. The aim is to analyse the path of discourse in several legal systems in order to gain insights into national discourse traditions or supranational discourse communities through a comparison of the different fields of discourse. The project is in the first instance a methodological inquiry that should make discourse analysis and discourse comparison fruitful for jurisprudence. Secondly, and simultaneously, it will offer insight on the ongoing national debates in three legally controversial fields (animals as legal persons, motherhood, parental rights).

Literature

Anne Röthel, Körperliche Selbstbestimmung. Dogmen, Diskurse, Deutungen, Klostermann, Frankfurt 2024, 332 pp.