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Politics of coding: On systematic content analysis of legal text

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Last week IE Law School hosted an interesting presentation by Dr. Or Brook, Lecturer in the University of Leeds, in which she shared her experience in conducting systematic content analysis, which represents a shift from an authority to science-based study of the law.

Research, teaching and practice of law are predominately based on the case analysis method. According to this paradigm, the legal scholar or practitioner must identify and articulate the legal rules as they manifest in a limited number of “leading” cases. There is no objective method to identify such cases. Instead, most legal methodologies rely on an authoritative source – such as a judge or prominent scholar – to single out the relevant cases and point out their significance. As such, research, teaching and practice of the law are inherently authority-based.

This chapter presents a different paradigm to understanding law, known as systematic content analysis of legal text. This empirical methodology studies law by analysing a representative dataset of cases, such as courts’ judgments or administrative bodies’ rulings. The scholar – typically having a social science or a legal background – systematically selects, reads and records quantitative or qualitative features of the dataset of cases, categorising them into common themes and drawing inferences about their use and meaning.

Decisions of judicial and administrative bodies are seen not only a reflection of the law but rather as the law itself.

Systematic content analysis represents a methodological shift in the study of law. It moves the focus away from the analysis of leading cases – which are viewed as idiosyncratic – to the general and day-to-day application of legal rules. Inspired by Legal Realism, this shift is based on the assumption that law is not an autonomous and independent system of formal rules. Law is rather understood as the expression of contentious political and moral choices, divorced from natural law or morality principles. The law is shaped by the manner in which the legal rules are administrated by judicial and administrative bodies. It is affected by the decision-makers’ political and policy preferences, their personality and experiences, and changes in the economic-social environment in which they operate. According to this approach, understanding what constitutes the law is akin to predicting what a court or an administrative authority is likely to do in a specific case. Thus, decisions of judicial and administrative bodies are seen not only a reflection of the law but rather as the law itself.

This methodological shifts carries important political implications. Because conclusions about the law are (expected to be) divorced from the legal authority of a judge or the authoritative expertise of a researcher, systematic content analysis represents a shift from an authority to science-based study of the law.

This chapter is comprised of five parts: Part 1 provides an introduction of systematic content analysis as a legal methodology. It presents the research design and appropriate research questions and illustrates that systematic content analysis is of particular value for the study of legal discretion. Part 2 discusses the epistemological roots of systematic content analysis, originating from a combination of a social sciences method and legal realism methodology. It demonstrates that from its early days, systematic content analysis was used to expose and evaluate legal, economic and political divisions of power.

 

About Dr. Or Brook

Or Brook is a lecturer of competition law at the University of Leeds. Her Phd, from the Amsterdam Centre for European Law and Governance (ACELG), is a quantitative and qualitative empirical study, examining the role of public policy and non-competition interests in the multi-level governance enforcement system of EU competition law. Or holds an LLB in economics and law from the Hebrew University (distinction) and an LLM from the University of Amsterdam in European Competition Law and Regulation (distinction). Before re-joining academia, she was an associate attorney dealing with commercial litigation matters.  is a lecturer of competition law at the University of Leeds. Her Phd, from the Amsterdam Centre for European Law and Governance (ACELG), is a quantitative and qualitative empirical study, examining the role of public policy and non-competition interests in the multi-level governance enforcement system of EU competition law. Or holds an LLB in economics and law from the Hebrew University (distinction) and an LLM from the University of Amsterdam in European Competition Law and Regulation (distinction). Before re-joining academia, she was an associate attorney dealing with commercial litigation matters.