September 02, 2015
In sharing my experience with methodological issues during my Ph.D., I would like to focus on the aspects I considered essential when selecting the frameworks that informed my case law analysis. In what follows, I outline the main criteria I used to select some of these frameworks and then zoom in on the process I followed in making further selections from within one of my frameworks: critical discourse analysis.
My Ph.D.: Questions and Objectives
My Ph.D. looked at how the Strasbourg Court construes the religious and cultural human rights subject (or applicant) and at the unequal implications these constructions carry for different groups of applicants. One question I posed myself was: What assumptions and conceptions, if any, had served to construe the religious and cultural human rights subject against whom applicants appearing before the Court are judged?
I wanted to know which experiences or characteristics the Court’s assumptions and conceptions regarded as essential in the construction of this subject. I also wanted to know which experiences or characteristics these assumptions and conceptions rendered invisible or negligible. These included assumptions about certain religious and cultural groups as well as conceptions of religion and family life that end up privileging certain groups of applicants over others. My ultimate aims were to uncover any cultural and religious inequalities created as a result (both across and within cultural/religious groups) and to suggest ways to reduce such inequalities.
My Analytical Frameworks: The Reasons Behind My Choices
My case law analysis was analytically informed by frameworks that crossed disciplinary boundaries. They included insights from critical human rights theory, feminist legal theory, deconstruction, and critical discourse analysis. The reason for these choices rested in the purposes of my study: identifying and disrupting exclusionary mechanisms not always apparent to the naked eye. A purely, traditional legal analysis would have not enabled me to adequately look beneath the surface of the Court’s case law. Nor would it have allowed me to effectively uncover and critique the assumptions underlying the Court’s reasoning and their unequal implications along cultural and religious lines.
All the selected frameworks thus share one important feature apt for the task at hand: their critical force. Critical accounts of human rights highlight their ambivalence “for producing and cloaking privilege and yet, simultaneously . . . for the unveiling of oppression”. Feminist legal methods are well known for exposing law’s gendered assumptions that reinforce women’s inequality. Deconstruction, famously associated with Derrida, is well known for its capacity to challenge taken-for-granted assumptions and hierarchies in binary thinking. Critical discourse analysis offers tools to reach the ideological underpinnings of apparently innocuous language.
So the questions and objectives of my Ph.D. were the point of departure for selecting what would end up being my analytical toolbox. They were in fact the “propellers” in the choice of my analytical frameworks. Moreover, in selecting these frameworks, I strived for coherence by bringing to the forefront what I thought was the major feature cutting across all of them: their critical capacity.
Selecting Within Selected Frameworks: The Example of Critical Discourse Analysis
Once I selected the major frameworks that would illuminate my analysis, the selection process was far from over. Within several of the adopted frameworks, there were in turn multiple strands requiring further selection. To illustrate this process, let me share how I selected the tools I employed from critical discourse analysis (CDA).
CDA – which is one strand within discourse analysis – “focuses on the ways discourse structures enact, confirm, legitimate, reproduce, or challenge relations of power and dominance in society” (Van Dijk). CDA’s concern with how texts and talks (re)produce inequalities was certainly in line with the main purposes of my Ph.D. This was the main reason behind my choice for CDA. In turn, CDA does not have a single theoretical framework, as there are many types of CDA (Van Dijk). A further challenge along the way was therefore to select the most suitable scheme for my analysis from within CDA.
So, after getting myself more acquainted with the literature and attending a conference on Critical Approaches to Discourse Analysis across Disciplines (CADAA), I selected Theo Van Leeuwen’s scheme. The reason for my choice is fully explained in one of my Ph.D. chapters. In short, the purpose of his scheme coincided with the main purpose of my research. His is scrutinizing the ways in which social actors and practices are represented in discourse. Mine was scrutinizing the ways in which groups of applicants and their religious/cultural practices were represented in the Court’s discourse.
I borrowed only those notions from Van Leeuwen’s scheme (again another choice justified in the chapter) that were – as per my hypothesis – potentially highly relevant. My hypothesis was that the Court was making problematic over-generalizations about certain religious and cultural groups. One of the notions my analysis of the Court’s discourse crucially benefited from was what Van Leeuwen calls exclusion of social actors. He explains: “When the relevant actions (e.g., the killing of demonstrators) are included but some or all of the actors involved in them (e.g., the police) are excluded, the exclusion does leave a trace.” The application of this notion to the Court’s case law was quite revealing. It helped me realize that the Court tended to suppress or background some groups of applicants through linguistic moves that in turn opened the door to essentializing and stereotyping (“the wearing of the headscarf” in cases like Dahlab and Leyla Sahin comes to mind). The notions borrowed from Van Leeuwen’s scheme thus served as an important starting point for my analysis (they acted as red flags when examining the Court’s language), which I further supplemented with insights from (legal) scholarship on stereotyping and essentialism.
In reflecting back on my Ph.D. analytical frameworks, I can say that I tried to keep in mind three main elements: clarity, justification and coherence. The first is being clear about the frameworks used for the analysis. This implies spelling them out and explaining them in detail. The second is soundly justifying the choices for each of these frameworks, including the choices for each of the strands and notions within the selected frameworks. The last is bringing together the selected frameworks in a more or less coherent way.
 Grear, Anna, “‘Framing the Project’ of International Human Rights Law: Reflections on the Dysfunctional ‘Family’ of the Universal Declaration” in Conor Gearty and Costas Douzinas (eds.) The Cambridge Companion to Human Rights Law (Cambridge University Press, 2012) at 25.
Bartlett terms this “asking the woman question, which includes asking “how existing legal standards and concepts might disadvantage women.” Bartlett, Katharine T., “Feminist Legal Methods,” 103 Harvard Law Review (1990) at 837.
 See Balkin, Jack M., “Deconstructive Practice and Legal Theory,” 96 Yale Law Journal (1987) 743-786.
 Van Leeuwen, Theo, Discourse and Practice: New Tools for Critical Discourse Analysis (Oxford University Press, 2008).
 Ibid. at 29.