A corpus-based study of the language of judicial activism

Cabral Lima, Debora 2024. A corpus-based study of the language of judicial activism. PhD Thesis, Cardiff University. Item availability restricted.

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Abstract

This thesis is the first study to take a linguistic approach to the analysis of judicial activism. After the Second World War, the judiciary in many democracies was given the role of safeguarding constitutional rights and the democratic process. However, the over-reliance on the role of the judiciary as “checks and balances” in democratic societies has raised a debate about the judicialisation of politics and the democratic process itself, and about the extent to which it is acceptable for (unelected) judges to directly engage with policy-making. This debate is intrinsically related to the discussion of the interpretative role of judges. Therefore, the distinction between some concepts regarding judicial discretion (i.e. the exercise of judgement, Garner 2019: 585) becomes crucial to understand and discuss the role of judges in a democratic society. One of these concepts is „judicial activism‟. Despite thorough research on law and legal procedures, the definition of judicial activism is still unclear because it shares characteristics with other forms of judicial discretion. Furthermore, there has been no linguistic work on judicial activism to date. In order to bridge this gap, this thesis provides a corpus linguistic investigation to offer an insight into linguistic patterns and help clarify the meaning of judicial activism. Framed by the Socio-Cognitive Approach to Discourse Studies (SCDS), the thesis first proposes linguistic-based definitions of „activism‟ and „judicial activism‟. Then, it examines the language of „activism‟ in general and the language of „judicial activism‟ in particular. Finally, it investigates the sentencing decisions of Operation Lava Jato – a police investigation of a corruption scheme in Brazil – as a case study, based on claims that it was activist. This thesis examines the extent to which Lava Jato sentencing decisions share linguistic traits of activism, found in the previous steps. The identification of shared traits of activism in a judicial genre and further analysis based on scholarship on the characteristics of judicial activism, as offered in this thesis, provide linguistic evidence of the realisation of judicial activism. Surprisingly, the materials in the Operation Lava Jato case study did not show enough activist traits to be classified as judicial activism, even though the combination of procedural decisions and the role of the media in broadcasting the events of the Operation do carry activist traits. On one hand, this study contributes to the discussion of judicial activism as a tool to safeguard fundamental rights; it identifies that the need for change, rooted in social values, is the reason for the judiciary overreaching role. On the other hand, it provides evidence that activist decisions have low reliance on legal background which in turn enables judges to accumulate the dual role of making and applying the law. Thus, this thesis provides future research with material to develop models to identify judicial activism and measure its level in judicial decisions.

Item Type:	Thesis (PhD)
Date Type:	Completion
Status:	Unpublished
Schools:	English, Communication and Philosophy
Subjects:	K Law > K Law (General) P Language and Literature > P Philology. Linguistics P Language and Literature > PE English
Date of First Compliant Deposit:	9 January 2025
Last Modified:	09 Jan 2025 16:14
URI:	https://orca.cardiff.ac.uk/id/eprint/175154

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