Structuralist Semiotics of Law
From IVR encyclopedie
Semiotics is the study of how sense — in principle, any kind of sense — is constructed. It thus ulitilises a wholly external framework to the study of law, and in so doing provides an approach to the philosophy of law which may be located primarily within the “realistic” camp, although it is “positivist” in that it insists that we restrict our subject matter to the empirical data of communication, and “naturalist” insofar as it claims that the manner in which we construct sense depends in part on certain “natural” and “universal” characteristics of the human mind. This does not, however, lead to a reductivist account, which pays no attention to the differences between law and other forms of communication; rather, semiotic methods may be used in order to provide a sharper insight into the nature of those differences.
The particular tradition within semiotics which I have attempted to apply to law and legal philosophy is that of A.J. Greimas, based on the structural semantics of Saussure, rather than the more philosophical and logical tradition of Peircean semiotics. Greimassian semiotics applies to discourse the same distinction which Saussure applied to the individual sentence, viewing sense as created by the interplay between syntagmatic and paradigmagtic axes. The former relates to sequence: we have a natural tendency to construct sense in “narrative” terms (based on the “narrative syntagm”, a model of narrative structure); the latter relates to the choice of elements within any such sequence: we apply conventional closure rules in order to privilege binary oppositions (the “semiotic square”). While the tendency to construct sense along these axes is claimed to be natural and universal, the particular narratives and binary oppositions which we deploy are socially contingent.
Sense, however, is not constructed in the abstract, as an isolated process in the human mind. Rather, it is mediated through acts of communication (what linguists call “pragmatics”), and the same form of semiotic analysis explains how those acts of communication themselves make sense. I call this the “narrativisation of pragmatics”, and have illustrated it within the legal context by distinguishing between “the story in the trial” (the factual issues which the trial is called upon to decide) and “the story of the trial” (the narrative or narratives of how the various participants behave within the trial, and how successfully they perform their respective tasks of persuasion).
It follows from the basic empirical ontology adopted by semiotics that there is no conceptual distinction between law and fact. A fact is a claim constructed within language that a certain state of affairs in the real world is true; a law is a claim constructed within language about the normative significance of particular behaviour, linked to a claim that such a rule is “valid”. Both truth and validity (like the normative significance of the behaviour) are “modalities”, qualifications which we use (and whose precise meaning are themselves constructed within our discourse) in order to make claims about the status of the propositions we advance. How such claims are received depends upon the interaction of the semantics of communication with their pragmatics: who makes the claim, to whom, with what received authority, by means of what kind of language.
The importance of narrative has been widely accepted by psychologists of perception as well as semioticians. In any culture, we internalise (what I have called) “narrative typifications of action”, typical sequences of behaviour together with the social evaluations which we tacitly attribute to such behaviour. We thus come to the construction of sense armed with predispositions to view matters according to such internalised patterns. The phenomenon of “confabulation” is found even in visual perception: we sometimes think that we have seen what we expect to see, and what we expect to see are such sequences as we have come regard as meaningful. Sense construction thus involves a process of comparison of the empirical data we have observed with our internalised narrative expectations; we interpret the empirical data in terms of the most similar internalised narrative. But we also have narrative expectations of who tells the truth, in what circumstances and through what forms of speech and language.
The semiotic analysis of law and adjudication proceeds along the same conceptual and methodological lines. The interpretation of laws cannot be explained on the basis only of some “artificial reason of the law”, nor even in purely linguistic terms, as the sum total of situations generated by the application of semantic and syntactic rules to the words of statute. There is a prior level of narrative expectation brought to the reading even of laws: their words evoke typical narratives or “standard cases” (to use the language of Hart in describing the “core are settled meaning” of legal rules). How far the rule extends then becomes a matter not of linguistic analysis alone, but rather linguistic analysis influenced by the criterion of narrative similarity: how similar is a proposed extension to the typical narratives evoked by the rule? When interpretation is located within the institutional setting of courtroom adjudication, the same cognitive processes still apply: the perception of cases as “hard” or “easy”, as well as their resolution, may be analysed in terms of perceived relative similarity to already internalised legal narratives. What differs is the pragmatic context, the interaction of the “stories of the trial”, including the communicative behaviour of those involved in debating the legal issues.
In what respects, then, does semiotics assist us in giving an (external) account of the “artificial reason of the law”? The particular characteristics of legal language have been widely studied by socio-linguists, not least in the context of the attempt to translate legal documents into “Plain English”. In addition to problems of cognitive intelligibility (long sentences with multiple embeddings; impersonal abstractions; logical complexity arising from the unnecessary use of passives and negations), pragmatic issues also arise: legal language is endowed with aesthetic qualities of “thickness” and formality, designed to convey its sense of authority.
Semiotic attention to the paradigmagtic axis of legal communication reveals the particular closure rules which define legal discourse. Particularly important in this context is the limited range of modalities used within normative statements. Deontic logicians tell us that norms may contain only three types of (logically interrelated) statement: behaviour may be required, permitted or prohibited. Legal norms thus take behaviour whose meaning is based on internalised social narratives and apply to it one of the modalities available within legal discourse. We may readily compare this range of available modalities with those available in other forms of discourse (where we may say, for example, that such behaviour is kind or beautiful). Moreover, we may use this approach to arrive at meaningful comparisons with other legal systems: Islamic law, for example, has two additional modalities: behaviour may also be recommended or discouraged. This casts light on a wider issue: the relationship between law and morality. The fact that the modalities of recommended and discouraged do not figure within modern secular legal systems (as perceived by positivists) reflects the desire to keep law and morality separate; their integration within Islamic law reflects the opposite.
B.S. Jackson, Semiotics and Legal Theory, London, Routledge & Kegan Paul, 1985; paperback ed. 1987, reprinted Liverpool: Deborah Charles Publications, 1997; Law, Fact and Narrative Coherence, Merseyside, Deborah Charles Publications, 1988; paperback ed. 1990; Making Sense in Law. Linguistic, Psychological and Semiotic Perspectives, Liverpool: Deborah Charles Publications, 1995; Making Sense in Jurisprudence, Liverpool: Deborah Charles Publications, 1996.