Chapter II Legal Discourse
2. Discourse Analysis
analysis' or 'discourse theory'.157 That is, since this thesis is not concerned with legitimate, truthful or valid outcomes of the discourse that takes place in the area of bioethics but with the way the structure within which this debate takes place constitutes, constructs and limits the field of bioethics, this thesis will be concerned with discourse theory and analysis.
1.2. A Brief Overview of Discourse Theory and Analysis
Discourse theory or analysis is often famously ascribed to the work of such philosophers and thinkers as Michel Foucault, Jaques Derrida, and more recently Ernesto Laclau, Chantal Mouffe and Judith Butler.158 In essence, to these scholars language and other elements of discourse, such as non-verbal communications or physical acts or any other interaction between human beings, are not neutral means for describing or analysing the social, metaphysical and biological world. Rather they effectively construct, regulate and control knowledge and institutions159, as well as all human interactions. Discourse theory is concerned with the processes that produce such knowledge and institutions and that determine the form and outcome of human interactions.160 In contrast to discourse ethics discourse analysis then, however, asks not so much about legitimate or morally valuable ways of human interaction. Instead it tries to understand how a certain interaction, field of knowledge or institution came about or was constituted from the structures within which it took place.
meaningful statements and regulate discourses in different historical periods.161 Discourses to him are “groups of statements which provide a language for talking about ...a particular topic at a particular historical moment.”162 Discourses, Foucault argues, thereby construct the topic itself.
They define and produce the objects of our knowledge.163 They determine the way a topic is talked about, reasoned about, resolved or analysed.164 In short, to Foucault nothing has meaning outside of the discourse that constitutes and constructs it.165
Discourse then shows itself in and consists of the general domain of all statements or utterances, including speech and writing but also non-verbal communications, such as physical acts or visual symbol, in silence and generally in any other 'discursive practice', defined as any “habituated patterns of activity and thought, speaking and doing”.166 Thus a simple social practice such as shaking hands is as much part of a discourse that can be understood by others taking part in this discourse as are conversations, the wearing of specific cloths, such as ties or suits, or symbols, such as the displaying of the cross in some churches or class rooms.167
Institutions, defined as fields that come with “persistent and connected sets of rules that prescribe behavioural roles, constrain activity, and shape expectations”168 such as for example the family, governmental institutions, a legal system, a church etc., play an important role in the development, maintenance and circulation of discourses.169 That is so because within institutions certain
episteme, i.e. “classificatory grids” along which knowledge is ordered and meaning is allocated, operate.170 Episteme impose the framework of categories and classifications within which thought, communication and action are ordered, they are what “gives meaning to actions by relating them to their wider context of knowledge in a given context.”171 It is thus only by applying a certain
episteme that a coherent interpretation of the social world becomes possible at all.
One example of an imaginary episteme is provided by Foucault. It is that of an imaginary Chinese encyclopaedia which classifies animals as animals divided among others into a) belonging to the Emperor (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous (g) stray dogs…(n) that
161 See for example M. Foucault, The History of Sexuality: The Will to Knowledge, 1998; -The Archeology of Knowledge, 1972; - Power/Knowledge, note 24.
162 Hall, note 23, 44.
163 Ibid.
164 M. Foucault, The Order of Things, 1970, 3.
165 Hall, note 23, 44. And A. Hunt/G. Wickham, Foucault and the Law, 1994, 14.
166 M. Foucault, The Archeology of Knowledge, note 161, 49.
167 H. Dreyfus/P. Rabinow, Michel Foucault, 1982, 155.
168 Keohane/Nye, note 159, 3.
169 Mills, note 140, 10.
170 Foucault, The Archeology of Knowledge, note 161, defining episteme at 211 as "the total set of relations that unite, at a given period, the discursive practices that give rise to epistemological figures, sciences, and possibly formalized systems; the way in which, in each of these discursive formations, the transitions to epistemologization, scientificity, and formalization are situated and operate".
171 Hunt/Wickham, note 165, 14.
look from a long way like flies.172 An example of a real-world episteme that is of relevance to the area of bioethics is the categorisation of diseases over centuries and in different societies, as evidenced for example in medical dictionaries or related records. The Greek physician Galen, for example, divided types of diseases based on the idea that bodies are ruled by four types of fluids, which determine an individual's personality and his or her reaction to various diseases.173 Another much observed categorisation of illnesses in 17th century Britain grouped diseases according to a patient's zodiac sign.174 The different categorisation or episteme applied in both, the fictitious and the real world example, make it clear that episteme generally are not fixed, premeditated or necessarily coherent categories of ordering knowledge. That is, any present reader's most likely initial response to the suggested episteme in Foucault's and the other stated examples will either be to consider them incoherent and arbitrary or to acknowledge that the offered categorisation of animals or diseases may have made or still make sense to someone part of the discourse that gave rise to this classification of animals or diseases, i.e. to someone living in the context, time and space in which this fictitious encyclopaedia or the above mentioned categorisation of diseases constituted common knowledge. If that, however, holds true for the stated examples it seems logical that other, more contemporarily used episteme, too, will seem equally incoherent and arbitrary if judged from someone outside of the particular discourse. That is so because according to discourse theory, episteme never exist self-evidently, primary or outside of human consciousness. Rather, human consciousness uses these categories or episteme to divide and order knowledge along certain, more or less arbitrarily defined grid-points, in an effort to make sense of the world.175
Yet the stated examples also point to another finding which is that the 'institutions', in the present examples, the institutions of the study of diseases (medicine) or of the study of animals (zoology), in their respective forms are only constituted by an episteme, and, consequently, must be adapted or are sometimes rendered irrelevant if the episteme that construct and define them change or are no longer used. For example, today, the institution of medicine has generally expanded to include such areas as bacteriology, virology etc. while it commonly excludes fields of knowledge previously relevant to the subject, such as the study of star signs or the study of Galen's concept of body fluids.176 The institution of medicine thereby changes with the episteme that is used to think about medicine. In the same way are new institutions constituted by the development of new episteme,
172 Foucault, The Order of Things, note 164, xv.
173 P. Ekman, "Galen", in: C. Blakemore/S. Jennett, The Oxford Companion to the Body, 2001, 225 et seq.
174 B. Woolley, Heal Thyself, Nicholas Culpeper and the Seventeenth-Century Struggle to Bring Medicine to the People, 2004, 1 et seq.
175 Examples for episteme and their influence on the ordering of knowledge abound, ranging for example, from the way history is usually taught (at for example German higher schools) according to certain eras, such as the stone or bronze era, over the way different cast or class systems are applied to divide human beings into different segments of society with specific attributes, functions and roles, to how law is for example divided into different segments of expertise, such as family law, tax law, corporate law etc. to the way appropriate sexual behaviour is construed at any one point in various cultures and times. See for example T. Höhne, "Die Thematische Diskursanalyse dargestellt am Beispiel von Schulbüchern", in: R. Keller/A. Hirseland/W. Schneider/W. Viehöfer (eds.), Handbuch Sozialwissenschaftlicher Diskursanalyse. Forschungspraxis, 2010, 423 et seq.
176 W. Bynum/R. Porter (eds.), Companion Encyclopedia of the History of Medicine, 1993, 1; see generally W. Cockerham (ed.), The Blackwell Companion to Medical Sociology, 2001, introduction.
while other institutions are rendered meaningless by the abrogation of a certain episteme. For example, gay or queer studies at Universities only came into existence because there exists a categorisation of human beings and their experiences along the line of sexual orientation. Would no one categorise human beings along the line of sexual orientation (or not anymore) or would a different categorisation of human beings and their experiences be applied altogether, for example one that categorises human beings along such lines as height, body weight or number of atoms in the body, the institution of gay or queer study would be rendered meaningless and likely be replaced by other institutions.
In essence episteme and the discourses that are built on and around them enable and delimit fields of knowledge and inquiry.177 They govern what can be said, thought and done within institutions. They authorise some to speak, certain things to be said, thought and done and some views to be taken seriously while others are excluded, marginalised or prevented from being said, thought or done.178 For example, regular medical course curriculums at Universities, at least in most European Union countries, no longer teach Galen's concept of body fluid as a valid source of knowledge and any approbated physician trying to treat patients according to Galen's concept of body fluids would likely face charges of misconduct. Understood in that way it is obvious that discourses are inextricably linked to concepts of power and that power relationships necessarily show in discourse.179 Discourses never exist in a vacuum but are constantly conflicting with other discourses and other social practices.180 Power is what determines the dominant discourses, and their episteme, in this example power is what determines whether Galen (or homeopathy, for example) are considered relevant to medical studies. But such power, according to discourse theory, must not be confused with repression. Since discourse theory is not interested in which discourse is a true or accurate representation of the real world, power is neither good nor bad.
Rather, it inevitably exists everywhere and inevitably shows in every form of social relations as the condition of all speech.181 Power produces reality and generates knowledge and truth-claims
“...[] ...power produces knowledge (and not simply by encouraging it because it served power or by applying it because it is useful); that power and knowledge directly imply one another; that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute at the same time power relations…[]…”182
Knowledge can thus never "flourish independently of power. To understand the formation of any body of knowledge always involves the consideration of the power structures and dimensions
177 Hunt/Wickham, note 165, 7.
178 Ibid. For an example see M. Foucault, Discipline & Punish, 1975, 195 et seq.
179 H. Dreyfus, "Being and Power: Heidegger and Foucault", 2004, Selected papers, 1, available online at:
http://garnet.berkeley.edu/~hdreyfus/html/paper_being.html (last visited 27.04.2012).
180 Foucault, The Order of Things, note 164, 57; Mills, note 140, 11.
181 Foucault, The Order of Things, note 164, 194; Foucault, Power/Knowledge, note 24, 125.
182 Foucault, The Order of Things, note 164, 27-28.
within which knowledge is produced. 183 Knowledge is a resource of power in the sense that experience always involves some kind of power/knowledge relationship.184 Similarly, truth-claims are wedded to the concept of power and hence part of discourses. Truth thereby is not the opposite of false or error. Truth regimes simply set out what truth is, i.e. the truth claims in which current power formations in discourses have resulted in
“Each society has its regime of truth, its general politics of truth: That is, the type of discourse which accepts and makes function as true; the mechanisms and instances which enable one to distinguish true and false statements, the means by which each is
sanctioned; the techniques and procedures accorded value in the acquisition of truth; the status of those who are charged with saying what counts as truth.”185
Knowledge, power and corresponding truth claims are thus fundamentally linked in discourse, in fact “power and knowledge are joined together in discourse…” 186 The questions of whether or not a patient's treatment based on Galen's idea of the physical body is considered sound or 'medical' is then not so much a matter of inherent moral truth or accurate representation of reality but a question of discourses and of the particular power/truth constellation displayed in them.
However, while discourses are inevitable their specific power/knowledge and truth-claim set up is not.187 Exactly because the concept of a discourse is wedded to power and thus means the
marginalisation of certain views there is always inbuilt in discourses a site of resistance: “Power reinforces it [discourse], but also undermines and exposes it, renders it fragile and makes it possible to thwart it.”188 Again, the question of whether or not Galen or homeopathy are
considered 'proper' medicine is a question of the power set up and its corresponding truth claim.
Yet particularly the example of homeopathy, which has long been excluded from European
University medical course curricula but by now has become a much more accepted practice in these countries, also shows that discourses can change.189
183 Hunt/Wickham, note 165, 7. Foucault, The History of Sexuality, note 161, 93 et seq.
184 Hunt/Wickham, note 165, 7.
185 Foucault, Power/Knowledge, note 24, 131.
186 Foucault, The Archeology of Knowledge, note 161, 101.
187 Ibid.
188 Ibid.
189 See e.g. V. Prasad, "Toward a Meaningful Alternative Medicine", 39 Hastings Center Report, 2009, 16 et seq.
Foucault’s concept of power has been the subject of severe criticism from a variety of authors, including maybe most prominently by Habermas. One point of critique is that Foucault conflates power with truth and that there may be legitimate reasons to oppose dominant power regimes. Another point of critique is that Foucault’s engages in a retorsion: His concept of power cannot be overcome as any new discourse that might replace a previous power constellation inevitably only represents another, new power constellation. Yet, by critiquing current discourses and power constellations Foucault (or any other engaging in critical theory), performs a retorsion (performativer
Wiederspruch). See in particular, J. Habermas, Der philosophische Diskurs der Moderne, 1985; M. Kögler, Foucault, 2004; N. Hartsock, "Foucault on Power", in N. Hartsock, Feminism and Postmodernism, 1990, 157 et seq.; M. Hardt/A.
Negri, Empire, 2000, 22-28 and 327-330; S. Žižek, The Ticklish Subject: The Absent Centre of Political Ontology, 2000; B. Flynn, "Derrida and Foucault: Madness and Writing", in: H. Silverman, Derrida and Deconstruction, 1989, 45 et seq. and T. Lemke, Foucault, Governmentality, and Critique, 2011.