Discursive Argument / Analysis Of Case Laws

Font size: Decrease font Enlarge font

The Discursive analysis will reflect the type of case comment that is being written and will involve research being carried out on one or more of the following points:

  • The state of the law (legislation and case law) before the judgment was given.
  • The effect the judgment has had on the law.
  • Why the case was treated differently than other previous cases
  • What the implications are for other similar cases in the future
  • What the implications are on other areas of law
  • What commentators have written about this area of law and whether the ruling was accurately anticipated by them or not.
  • Whether there is any (contrasting) academic commentary on the ruling
  • Interdisciplinary research involving a synthesis with other disciplines such as theology, philosophy (ethics), sociology, political science or economics. This means considering what light these disciplines throw upon the ruling and how the case can be analysed in the context of other disciplines such as these. This involves asking questions about the case such as, “Could  the judgement be said to be in line with the tenets of a particular religion?”  (synthesis between law and theology). “Can the judgement be said to be in  line with a particular aspect of moral reasoning?”  (synthesis of law and philosophy/theology). “Were there any political motivations behind the courts ruling and were these acceptable?” (law and politics). You can no doubt think of many different approaches that could be taken. They key here is to understand how the additional discipline with which the law is being synthesised asks questions of itself and other disciplines. 

Discursive argument: guided exercise
Section 2 gave some examples of the various types of discursive analysis that can be undertaken. After having decided on the type of analysis it is next necessary to find resources and carry out that analysis, writing it up into a coherent case comment. This section will consider the steps that can be taken to complete this process.

1 How to go about arguing discursively and academically

Discursive academic analysis involves considering more than one point of view on an issue, discussing those points of view and weighing them against each other to come to a conclusion as to whether one point of view can be favoured above another. It is also about thinking critically about the issue to come up with some original insights. Even if you personally have an opinion, it is vital to consider the views of others and to take them into account.

2 Finding resources

Having decided on the type of analysis it is then necessary to carry out research using key search terms in order to discover sources of information in which others have expressed their opinions. As an student you are povided with the case law from various courts for research work. The search key generated while generating variable data point can be used to this research.The database of case law provided is around 1500-2000 case laws, and the search key word(tags) generated will be helpfull for carrying out the research on judgments.