The Semiotics Of Law In Legal Education.pdf

The Semiotics of Law in Legal Education

Jan M. Broekman • Francis J. Mootz III Editors

The Semiotics of Law in Legal Education

Editors Jan M. Broekman Dickinson School of Law Penn State University W. South Street 333 Carlisle, PA 17013 USA [email protected]

Francis J. Mootz III University of Nevada South Maryland Parkway, 89154-1003 Las Vegas 4505, NV 89154–9900 USA [email protected]

ISBN 978-94-007-1340-6 e-ISBN 978-94-007-1341-3 DOI 10.1007/978-94-007-1341-3 Springer Dordrecht Heidelberg London New York Library of Congress Control Number: 2011931285 © Springer Science+Business Media B.V. 2011 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Cover design: eStudio Calamar S.L. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Preface—Semiotics in the Seminar

This book on semiotics of law in legal education is not a theoretical essay about semiotics or pedagogy. Rather, this is a study of the educational experiences in a seminar course, including reflections on the issues involved and fragmentary results rather than presenting a comprehensive theory. The subject of legal semiotics—the scientific approach that regards law as a system of signs and meanings—is not a topic in the programs of US or EU Law Schools, although signs and meanings are at home in the context of laws of different national, political and cultural character. The book introduces education in legal semiotics as it evolves within a program of the Dickinson School of Law, Penn State University. That University harbored extensive legal semiotic research by Roberta Kevelson, then Distinguished Professor of Philosophy at its Berks campus in the last decades of the twentieth century. The actual Seminar is named in her honor. Teachers, collegially interested scholars and students contributed texts that are written to deepen the insight of lawyers and laymen alike. All of the participants in the seminar experienced the power of semiotic analyses and the need to become aware of law’s limitless potency to create meanings.

Introduction The semiotic awareness cultivated by the seminar could inspire other law school programs on both sides of the Atlantic in the Civil as well as the Common Law legal system. Thus, the history and structure of the Seminar and its Round Tables are the basic themes for this book. Part I considers the relationship between legal semiotics and a truth concept: truth as a matter of Law’s grounding, as a matter of face-to-face interrelations and finally as a matter of new insights and discoveries in Peirce’s semiotic philosophy. Historical theses presented during the Round Tables are included in Part II—on History, Law and Semiotics. These contributions raise a fascinating semiotic question in historical context: what does it mean for the ­concept of law when it becomes the subject of teaching? In other words, what is the essence of teaching law, and how was that subject developed during first lessons in law? v

vi

Preface—Semiotics in the Seminar

The early history of legal education in the United States—politically loaded as that activity was—evolved in 1790, when courses on law were for the first time taught by James Wilson at the University of Pennsylvania, and by St. George Tucker at the College of William and Mary in Virginia. The latter offered a course on law between 1790 and 1803, the gist of which he published in 1803 as appendices to Sir William Blackstone’s Commentaries on the Laws of England. Today’s program of the Dickinson School of Law, which includes the Kevelson Seminar, looks back at The Honorable John Reed’s first Law Lectures in Pennsylvania 1834. “Why do we teach law, and what does it mean to teach law?” remain challenging questions since those years. There is a natural link between reflections on the origin of legal education and the recent globalization tendencies as well as the development of legal theory, the subject of Part III. Trial practices in the Common Law are analyzed as well as the idea of legal semiotics in the context of contemporary legal theory. These essays engage in comparative semiotic analysis as well as theoretical issues. Part IV on “Gender and Family” is entirely authored by Seminar students. It develops the insight of Claude Lévi-Strauss that gender and family structures were essential in a structuralist analysis of social relations. He suggested that not only the material aspects of the issue (how kin people appreciate each other) but also the ­‘mathematical’ (read: structural) aspects are of interest. This insight inspired student reactions in the Seminar sessions. They tend to appreciate human relations in terms of signs, symbols and meanings as a foundation for legal regulations that reflect patterns and structures of social, in particular relational, questions. The fifth and final part (Part V), also entirely written by students, shows in the example of trademarks how semiotic approaches can enrich economic and business legal issues, whilst deepening the experience of how lawyers are making meaning. Each chapter thus demonstrates the power of semiotics as a valuable approach to law and legal issues. This book, a first description of the evolving importance of semiotics of law, is a completion of the many fragmentary studies in journals on semiotics, in particular the International Journal for the Semiotics of Law. It honors the many individual contributions to the field by scholars in universities in the US and the EU who labor without an institutional foundation in a formal legal education program. This is in contrast to the Roberta Kevelson Seminar, which is an institutionalized education program initiated under the patronage of Penn State’s Dickinson School of Law and the visionary decision of its Dean, Philip McConnaughay, in January 2008 to offer a regular, three credit Seminar on Law and Semiotics at the initiative and directed by Distinguished Visiting Professor of Law Jan M. Broekman. Students and Faculty participate in the two locations of the Dickinson School, in Carlisle and State College, Pennsylvania, USA. Earlier publications resulting from the Seminar are in the 2009 and 2010 Special Issues of the International Journal for the Semiotics of Law, with Professors Jan M. Broekman and William A. Pencak, (Penn State University) as guest editors. There exist scores of definitions of a “sign”—the core issue of semiotics, which is commonly understood as the scientific enterprise to study and understand signs and meanings in general. The philosopher Charles Sanders Peirce wrote ­extensively ­during

Preface—Semiotics in the Seminar

vii

the final years of the nineteenth and at the beginning of the twentieth century about this subject, inspiring philosophers, logicians, psychologists and literary ­scientists, among others. It is only in our own time, however, that law and legal ­science have confronted the concept of a “sign”, or semiotics as a discourse on signs. Does the idea of a “sign” play another role in the mind of a lawyer than, for instance, as a “symbol”? Or are the two identical, and what does that mean in ­relation to the more general question about the use of expressions of a natural l­anguage for purposes of legal nature? It seems evident that lawyers use language to perform their tasks, and their performance seems to be determined by the freedoms and limitations of a natural language. How lawyers give issues names is of importance to all of us, but their name-giving is seldom completely clear for any of us, neither for lawyers themselves nor for us citizens. It requires analyses of considerable depth to understand the expressiveness of these names and how only they themselves can “say for law”, or urge such a saying correctly and effectively in the context of a natural language that belongs to all of us. Or do they, perhaps unknowingly, go beyond the boundaries of a natural language? This question concerns more than components of daily experience alone. The suggestion that a lawyer’s activity is exclusively verbal but possibly beyond the reach of a natural language does not lead to jurisprudential debates or matters of interpretation, precedence or legislative authority but rather to other dimensions of the characteristics of a lawyer. Take the example of a lawyer pleading before the Court to “say for law” what he just came to formulate. He or she, functioning as a lawyer, initiates that saying—but that is not all. The members of the Court must follow her proposal very much like speakers who belong to a community must always follow in order to reach a level of understanding and communication. At this point, the situation is not different from any natural language and its manifold speech situations. We must press to greater depth to understand what is special in the lawyer’s use of language. Try to answer the question why the lawyer needs the Court to actually “say for law” while (a) he or she is a lawyer like all others, and (b) the suggestion to say for law has apparently to be laid in the hands of others, often including non-lawyers. This leads to a remarkable differentiation in sign-evaluating and consequently in sign-using behavior, which could be specific for legal discourse and the social organization of the law. In other words, lawyers speak as if they use a natural language, but their use of words and expressions suggests at least a parallel realm of meaning that is often called “institutional”, but is richer in meaning and effect. It is such an immanent parallel of natural and artificial language elements that was explored already during the first decades of the twentieth century by philosophers of language such as Russell, Wittgenstein, or others focusing on meaning in particular such as Morris or Ogden and Richards. Here one could conclude that semiotics possesses an important key for lawyers, legal practice, and especially legal theory. Semiotics of law focuses on the foundational dimensions of lawyers’ activity, which make the management of meanings their first and most important task in society. In this regard, this book puts forward the first intuitions that legal discourse and its ­practices would profit from semiotic analyses in a particularly socialized manner.

viii

Preface—Semiotics in the Seminar

That social dimension not only determines the important profile of legal activity in general, but of legal education in particular. To study law is not a solitary activity; it requires training and extreme skill-formation in complex social behaviors. To be involved in legal training is a matter of socializing at more than one level. As a consequence, legal semiotics does not excel in classical ex-cathedra teaching but in the wonderful mixture of information and discussion taking place in seminars. When this book reports on the experiences of legal education in a seminar, it reports about the heart of the matter called law. It is a remarkable fact that the average reader of legal literature is not expecting texts with legal education as their source. She is rather used to reading (that is, interpreting) other components of law and legal discourse in our society, such as court opinions that reveal judgments, explain doctrines, and serve as precedents, and also legislative activities, politics, international treaties, and so on. The thesis of this book is, however, that texts based on educational aspects deserve equivalent attention as issues of traditional jurisprudence. It is a virtue of semiotics to show the importance and fascination of experiences and thought patterns emerging from legal training. The latter focuses on meaning and sign behaviors that direct the minds of lawyers. How can one become a reliable and successful lawyer without insight and training in that field? This book is a first effort to document and analyze a specific field of legal studies with at least two important goals in mind. On the one hand, there is the hitherto neglected issue of legal education as such, which directly influences the activities of lawyers as future actors as well as mediators of past experiences. That source is rich and important in society, but remains underexplored and little appreciated when compared with the bulk of jurisprudential literature. On the other hand, this focus on education sheds a different light on one of law’s most challenging features, which is hidden in the fact that lawyers are trained to become meaning-makers. Meaning as its central issue includes social sensitivity, since the understanding and management of meaning is, like law itself, never a sole individual’s task! These two perspectives lead arguably to the quest for further documentation and analysis whereby teachers and students fulfill firsthand roles—even more than judges and legislators do! There are in legal education several issues that are a sign of important social skills with direct importance for mastering the profession, such as for example legal writing, legal speech formation, and advocacy in general or more simple conversation techniques with clients. Those explorations excel in a different teacher-student relationship, as they are based on two sets of life-experiences, social skills and intelligence, each one characteristic for a participant in the process, student and teacher alike. A deeper understanding of the importance of the issue of legal education is at least in one important aspect featuring law’s efficacy: the strong demand that law has to fit. Social dimensions meet legal knowledge and skills in that requirement, and this is the point at which the educational form of a seminar comes to the fore. In seminar sessions, not unlike sessions pertaining to legal writing or speech formation in advocacy, meaning makers can master the various semiotic theories, they can furthermore explore their own life experiences as intertwined with a deepened knowledge of signs, symbols, and other components of meaning and they can easily look back at the specifically legal knowledge they acquired hitherto.

Preface—Semiotics in the Seminar

ix

This book shows results and reflections upon both, thus combining a ­growing perfection of legal knowledge with a deeper insight into the semiotic processes within which each lawyer seems involved. From the first attempts to teach legal semiotics, Roberta Kevelson recognized that the most apt forms would be the seminar and the Round Table. For this reason, the Penn State Law “Seminar on Law and Semiotics” was named after her. These roots of legal semiotic activities are clearly evident in these Round Tables.

The Kevelson Round Tables As she was obtaining her Ph.D. in Semiotics in 1978—an interdisciplinary program of her own construction—at Brown University, Roberta Kevelson (1931–1998) seized on a suggestion of Thomas Sebeok (1921–2001), Director of the Center for Semiotic Research at Indiana University, that the law would be an ideal field for semiotic inquiry. Laws are symbols of social and political goals and realities, yet laws and their interpretation in a judicial system take on a life of their own, becoming symbols of nationhood, justice, corruption, etc. Kevelson’s interest in law coincided with her devotion to the philosophy of Charles Sanders Peirce (1839–1914). She viewed him as a philosopher of radical freedom, the interpreter of a universe of chance—unpredictable, shaped by and not merely shaping living creatures with free wills of their own. As a housewife who attended college and then graduate school in her thirties and forties, who was not only a scholar, but also a pioneer of a new field of scholarship, this open universe made perfect sense. The institutional existence of legal semiotics began in 1984 when Kevelson, as Distinguished Professor of Philosophy, founded the Center for the Semiotics of Law, Government, and Economics at the Berks Campus of the Pennsylvania State University. Three years later, she instituted annual Round Tables for Law and Semiotics, whose proceedings were published in book form first by Plenum Publishing (2 years) and Peter Lang Publishing (subsequently), which she directed until her death. The Center also sponsored the publication of monographs with Peter Lang. Colleagues continued these meetings for 3 more years before the Round Table joined forces with the International Association for Law and Semiotics. Kevelson had been one of its five founders—Bernard Jackson of England, Eric Landowski of France, Domenico Carzo of Italy, and Roberto Carrion-Wam of Venezuela were the others. The International group was also founded in 1987, held annual meetings and published a journal, the International Journal for the Semiotics of Law, now in its 24th year and edited by Professor Anne Wagner of the Univérsité du Littoral Côte d’Opale in Boulogne-sur-Mer, France. Related to the International Association are two monographic series in legal semiotics: Deborah Charles Publications, under the direction of Professor B. S. Jackson, now at the University of Liverpool, and Ashgate Publishers’ series linked to the papers and topics presented at the annual meetings of what is now called the International Round Table for Law and Semiotics. Beginning in Spring Semester 2008,

x

Preface—Semiotics in the Seminar

Professor Jan M. Broekman reinstituted a second series of Round Tables in Carlisle, Pennsylvania, as a semester-ending feature of his Seminar course on Legal Semiotics at the Dickinson Law School of Penn State University. Papers of those years were published in 2009 and 2010 as Special Issues of the International Journal of the Semiotics of Law. This rather complicated institutional history reflects the international enthusiasm for legal semiotics among its practitioners, yet also the fact that while many lawyers and legal scholars unknowingly are thinking and acting semiotically, the conferences and publications of the legal semiotic community exist at the margins of law schools and the publishing industry. For instance, the course in Penn State Law is currently the only course on legal semiotics offered in the United States in the regular program of a law school. Outside of Indiana University and the University of Toronto, it is hard to think of a research center in North America funded by a university devoted to semiotics. Semiotics is widely misunderstood, in part because many of its practitioners use complicated jargon only comprehensible to initiates (if then), and because it is widely confused with deconstruction, which is (erroneously) believed to be the philosophical theory that we can know nothing of reality but only discuss the way we perceive and interpret it. Also, there are those who do semiotic theory, that is, study the world to deepen the study of semiotics, and those who use semiotics (such as lawyers and marketing executives) to do their own jobs better. The informal structure and diverse content of the conferences Kevelson instituted are symbolized by the title she gave them: ‘The Round Table.’ She was a fervent egalitarian: a round table meant no hierarchy among senior and junior scholars, although her own insights and contributions made her very much the first among equals. Everyone had the same amount of time—usually a generous 45 min—and no one was ever turned down who wanted to present a paper. Graduate students and professional lawyers had the same opportunity to speak as the most prestigious legal scholars. Each speaker could divide the 45 min into lecture/discussion as she chose. People from disciplines such as history, art, anthropology, philosophy, economics, political science, theater, and literature were invited to lend their insights as well. People who knew little of semiotics but were curious were invited; Kevelson instructed them how a semiotic approach could add much to their work. Participants from India, Bulgaria, Great Britain, Israel, China, Canada, and France among other nations attended. Sessions usually began early (8 or 8:30 a.m.) and ended late (sometimes as late as 11 p.m.) and stretched, if necessary, from Friday to Sunday to accommodate everyone. This same all-inclusive approach applied to the annual Round Table publications: everyone was urged to include their paper, revise based on the conference, with length restrictions reluctantly imposed in the interests of cost. A sampling of the scholars who attended the Round Tables must necessarily exclude many people. We only mention here those who are most widely known: Bernard Jackson, whose work on ancient Jewish law and history used a Greimasian perspective that clashed at times with Kevelson’s Peircean orientation, although in general the presence of the two approaches only added to the insights; John Brigham, who later took over the Round Tables at the University of MassachusettsAmherst, who not only brought many of his students but offered his stimulating

Preface—Semiotics in the Seminar

xi

research on the significance of the architecture and layout of courthouses; Denis Brion of Washington and Lee Law School, who usually presented legal cases that showed how individuals could both be victimized by the law and yet use it to empower them; Peter Goodrich, now of Cardozo Law School, and his fascinating insights into the courts of love in medieval France; Robin Paul Malloy of Syracuse University, who looked at property and the economy and now directs a seminar on the Semiotics of Property; Joel Levin, a practicing attorney from Cleveland, Ohio, whose sharp but never unpleasant critiques caused many of us to revise our work; Virginia Black of Pace University, who as editor of Vera Lex and President of the Natural Law Society initiated a dialogue between semiotics and natural law; Jack Rooney of Cooley Law School, who was never afraid to take unpopular positions (battered husbands as opposed to battered wives) and introduced many of us to Polish semiotics; Paul Ryan, of the New School in New York, a video artist who thought deeply about legal issues and preserving the environment; Bruce Rockwood of Bloomsburg University, important facilitator in the law and literature movement; Robert Benson of Loyola Marymount, William Charron of St. Louis University, and two independent scholars, the late Gordon Whitney and Jay Knaack, all added much to these intense yet cordial meetings. Bill Pencak attended annually and wrote on historical topics.

The Roberta Kevelson Seminar At Penn State Law So the Round Table now lives on in two guises: an extensive organization that links scholars from all over the world, and an intensive study of semiotics at Penn State’s law school. Kevelson taught us that any worthwhile idea evolves, changes, and that efforts to fix things in stone not only stultify but are impossible. She would be greatly pleased that, as Senator Edward Kennedy once said about American democracy: ‘The work goes on, the cause endures, the hope still lives and the dream shall never die.’ Insofar as the Kevelson Seminar that unfolds at Penn State Law is concerned, three important components should be highlighted: (a) the didactic, (b) the text-directed and (c) the Seminar’s Round Table function. A few lines describe each of those components, which taken together play a prominent role in the more general perspective of teaching law. (a) The didactics of legal semiotics comprises, as was already suggested, much more than merely informative ex cathedra teaching. There are of course moments in the sessions when the professor presents information, but apart from that, there is an ample discussion of background ideas on signs, signification, meaning or naming as well as the core literature from standard publications and recent journal articles. Every student has, after all, his or her own experiences with sign interpretation or name giving in daily life! All those issues embrace considerations of a philosophical nature without ever identifying legal semiotics with the philosophy of law. One should not forget that there is no semiotics without philosophy although both show their independence.

xii

Preface—Semiotics in the Seminar

It is thus important that those didactic provisions excel in various confrontations with legal knowledge and experiences of the participating students. The students now see the latter in another light. Legal semiotics is never treated as if the discipline concerns knowledge and insights ab ovo—on the contrary: there always is a two-way move between legal and semiotic knowledge/practices. Growing awareness about differences between Civil Law and Common Law and their consequences—an awareness, which is often not provoked in usual Law School focus on laws and legal materials of a discipline or a State—is a new experience. The world map of legal systems is continuously at the background of the seminar, whereas the diversity of legal systems around the globe fortifies the unity of semiotic approaches towards law. (b) A special emphasis on texts works in the Seminar in two directions. One is practical insofar as the series of seminar sessions are from the beginning colored by the challenge of competition: the two best final student papers will be named “prize winning” and published. The other is theoretical and shows the importance of texts in the different legal systems as well as the proximity of any study of signs and meanings in texts as an important issue to study and experience. The Civil Law tradition—which is more text-related than the Common Law culture—is important to the seminar’s legal-theoretical context. Text and speech are differently distributed and valued in both systems and as a consequence offer different semiotic views: for instance there is no legal activity in Civil Law countries without complete sets of written documents. The idea of a competition unfolds in the middle of the semester with an open and general discussion of paper themes for all participants, sustained by a list of proposals and related literature. The discussion serves two purposes: students can learn from each other’s ideas, and know how their colleagues’ interest in a specific paper subject directs their participation, their questions, and contributions. A renewal of those exchanges is in each session open to arrangement, including the reading of a draft page conceived by the student, information sharing of literature, and the like. As a consequence, there is never a fixed session program, although a predetermined list of issues is known by every participant and has to be worked out accordingly. In the third month of the seminar, students participate in a Round Table of which their own papers form a considerable part. Contributors to the Round Table are aware that students can raise questions related to their paper-writing activities during the conferences and in private, so that this full-day Round Table provides general information and new perspectives on legal semiotics as well as individual feedback from others than the teaching staff. Approximately 2 weeks before the final session, each student must provide an electronic draft copy of his or her text. After receiving and discussing teacher commentaries, students are obliged to decide about the final form and content of their seminar paper on their own. The prize-winning essay titles/authors are noticed after all papers are graded. This concentration on texts led to the publication of two papers in the 2009 and 2010 International Journal for the Semiotics of Law Special Issues, reprinted in this book. They are published in this book together with two papers from the

Preface—Semiotics in the Seminar

xiii

Spring 2010 seminar and a third student paper of that semester. So the book comprises in total nine student papers, among which three from the 2010 ­session, two from earlier prize winning students also participating in the 2010 Round Table, and four reprints from the 2009 and 2010 IJSL Special Issues. (c) The spirit of the Round Tables, which highlights the seminar activities, is in the context of a Law School what Kevelson wanted to realize during international gatherings. These activities are a happy mixture of information and reflection, of speech and writing, of reconsideration of past experiences and adaptation of important new data—in short: of semiotics, philosophy, and law. The teaching and studying goes therefore hand in hand with discussion, guidance, mutual opinion building and preparation for the great task at hand: to become a know­ ledgeable lawyer in a context that unfolds beyond the strict teacher-student relationships. The day of the Seminar’s Round Table functions in that spirit. The mandatory part is in the hands of students and invited speakers alike, which helps to augment the scale of opinions, provides more information than any teacher alone can do, stimulates independent participation, and invites all the participants to belong to a community. The Round Table contributes in a novel way to the teaching of law, which is considered the prime task of any Law School. The last remark raises the central, and fascinating, issue. A seminar on law and semiotics is essential for teaching law. But this insight not only fascinates, it also surprises. The acknowledgment to have semiotics as a regular component in the curriculum to teach law is not generally accepted. Law professors generally have no interest in, or knowledge of, semiotics. Consequently, they do not incorporate semiotic analysis in their teaching because “they themselves never took the trouble to understand anything about that issue and are yet good lawyers and successful in making their living”. How important is that argument? The question is about an attitude, a question that is respectable but not fundamental. If legal semiotics is a component of teaching law, the basic question “what is teaching law?” is at stake. The seminar makes clear that once the law becomes subject of teaching, it starts to differ considerably from law as a social practice. An important issue in this discussion is the ‘usefulness’ of legal semiotics. Students took Barton Beebe’s ‘Semiotic Analysis of Trademark Law’ as a lesson in legal semiotics. His presentation of semiotics, semiotic structuring of signs, and semiotic theories were immediately applied to how the Trademark was object of a parallel structure. And they learned in the light of those connections to appreciate Roberta Kevelson’s article on ‘Semiotics and Methods of Legal Inquiry’—a text they would never had read on their own initiative. Their inherent pragmatism seems advantageous in this regard. Notice, how they focus the interpretation of legal practice by means of informing about attitudes and styles of reading that are semiotic and therefore new to them. However, the question remains, whether this is the ultimate purpose of a legal semiotics Seminar. Should one indeed focus on interpreting legal practice, and should semiotics only be an appropriate means to that end? In particular US law students would like to acquire a broader view on the deep structures of a legal case, a view mostly provided by courses in general jurisprudence.

xiv

Preface—Semiotics in the Seminar

They should also acquire an insight into the coherence of specific systems of law and their characteristic speech acts. The omnipresent codes of norms that require legal translations is relevant, because it looks as if the gaps between law and norm can be bridged by semiotic operations. Finally, ensembles of dynamic directives within nationally defined systems, often simply viewed in US lawyer’s eyes as ‘non-law’, can be re-interpreted by means of semiotic analysis, such as the semiotic square of Greimas. All this may engender a wider view on pragmatism in general and the pragmatic attitude of the Law School in particular. In his final and additional Harvard lecture on May 14, 1903, Peirce already offers a deeper view on Pragmatism than before. He explains in that additional lecture how ‘any flight of imagination pertaining to possible practical effects’ will be allowed, if ‘conceptions’ pertain to ‘conceivable practical effects’. This deepens and completes the maxim of Pragmatism. The reasoning involved enriches the semiotic project considerably. But is that all there is to say about the pragmatic attitude of a Law School’s course on Legal Semiotics? The question leads back to the consideration whether teaching law can be understood within the confines of pragmatism. There are competing ideas in ‘teaching law’. First, the law as a concept comes out of the shadows of evident practices or applications and becomes an issue of foundational consideration when the concept is considered in the light of semiotics. The change this provokes is an attitude change with important epistemological consequences in semiotic perspective. In other words: law students confronted with legal semiotics know more about law than those who did not experience this new view. Their enhanced knowledge and awareness is beyond determinations of pragmatism. Second, ‘law’ is no longer considered as a unique social unity, a totality of components and their management, a psychical entity within which one can speak, debate, write, judge, and settle social relations. In other words, one loses the capacity to say how “this or that is not good for the law” because law as a system of signs and meanings incorporates another level of consideration than this pragmatic attitude. It is not a thing (philosophical Latin: res), nor any issue to be valued beyond human activity and responsibility. Third, teaching law is an activity that changes its institutional aspects. To enter the architectonic of law requires forms of participation, which have to be taught. After years of driving the vehicle, students are challenged to open the hood and study what was unquestioned before. No wonder, that students of semiotics consider the Critical Legal Studies movement from the 1960s and 1970s of the last century a prelude to their actual contributions, for which this book offers texts from students and teachers as an example. The change initiated by CLS, one of the earlier approaches to meanings and signs in US legal literature, is in a renewed understanding that a lawyer’s ­management of meaning transcends all actual political norms and values. This is a revitalizing insight for all aspects of teaching law, and for making law fit, as this publication shows. Jan M. Broekman Francis J. Mootz III William A. Pencak

Contents

Part I  Philosophical Dimensions Introduction Jan M. Broekman   1 “Die Sache”: The Foundationless Ground of Legal Meaning.............. Francis J. Mootz III

5

  2 Faces Face to Face.................................................................................... Jan M. Broekman

21

  3 Tarski, Peirce and Truth-Correspondences in Law: Can Semiotic Truth-Analysis Adequately Describe Legal Discourse?...................................................................................... Paul Van Fleet

57

Part II History, Law and Semiotics Introduction Jan M. Broekman   4 History and Semiotics: Preliminary Thoughts...................................... William A. Pencak   5 Teaching Law and Semiotic Sensitivity In the Life and Career of John Reed, Founder of the Dickinson School of Law........................................................................................... William E. Butler   6 Initiating the Two Legal Cultures of the Early United States: St. George Tucker vs. James Wilson............................. William A. Pencak

77

81

95

xv

xvi

Contents

Part III  Semiotics and the Legal System Introduction Jan M. Broekman   7 Common Law Lawyers Should Mind Their Trial Practices: Understanding, Identifying, and Correcting a Semiotic Imbalance............................................................................... 115 Edward J. Cyran   8 Semiotics in Legal Theory Design.......................................................... 129 Jeffrey A. Ellsworth Part IV  Gender and Family Introduction Francis J. Mootz III   9 Semiotics of Parenthood in Legal Perspective: Using Semiotic Tools to Deconstruct Legal Determinations of Who Holds Parenthood Obligations and Privileges......................... 157 Michelle L. Wirth 10 Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised in Legal Thought..................................................... 183 Jeffrey A. Ellsworth Part V  Economy, Business Introduction Francis J. Mootz III 11 Trademarks: A Social Perspective.......................................................... 205 Elizabeth Karnezos 12 Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law......................................................................... 221 Meghann L. Garrett 13 The Semiotics of ‘Public Use’: “Use the Purpose by Which All May Benefit”..................................................................... 237 Nathan S. Harvill About the Authors............................................................................................ 249 Index.................................................................................................................. 253

Part I

Philosophical Dimensions

Introduction Jan M. Broekman

There is hardly any discussion about the fact that semiotics has its roots in philosophy. This omission would hide the fact that texts from this seminar refer to philosophical issues. The theme is, however, so complex, that even international teamwork and encyclopedic dimensions would not cover an appropriate presentation of the philosophical roots of semiotics in a sufficient manner. Matters become even more ­complicated by looking not only to philosophy and semiotics, but also to law and legal discourse and their close and defining relations with the process of semiotics. The philosophy of law has a rich and global tradition, which has evolved in Western cultures over many centuries. However, the philosophical foundations of semiotics in law are only now in the first phase of investigation by lawyers and legal scholars. As a result, it is impossible to appropriately represent the philosophical dimensions in the context of this book. Moreover, it is crucial that we not forget that philosophy is not the only discipline implicated by semiotics. The disciplines and scientific approaches emerging in ­sociology, psychology, linguistics, communication studies, electronic transmission—the sending of information from one network-connected computer to another—and electronic data interchange—the use of uniform electronic network protocols (formats) to transfer information between organizations—as well as neurosciences and related disciplines, belong to the rich and overwhelming fields of interest for legal semiotic research and scholarship. To render this chapter manageable, it will focus on one particular theme that plays an important role in grounding the relationship between law and semiotics— a theme that emerged in the seminar sessions in the form of a remarkable mix of communication and truth-value studies. The general question about meaning as an issue of law and legal judgment relates to the philosophical issue of ground,

J.M. Broekman () Dickinson School of Law, Penn State University, W. South Street 333, 17013 Carlisle, PA, USA e-mail: [email protected]

Part I  Philosophical Dimensions

3

grounding and foundational understanding, as Mootz first explains in this chapter. It is remarkable that philosophy has an old concept that is important for modern understanding: all considerations find their center in the German expression “die Sache”. The latter leads to questions of a hermeneutical nature: an idea that is featured in theology, literature and law alike and which Mootz locates in the philosophy of Hans-Georg Gadamer, whose major work of interest in this context is on Truth and also on Method. Interpretation seems the major dynamics of understanding in legal practice as well as in related cultures of literature. That experience widens the semiotic vision, which clarifies how legal practice is a narrative endeavor founded on hermeneutic and rhetorical innovation within legal discourse as a complex economy of signs. Hence Mootz: It is not the case that one person knows more than the other, but that both persons gain understanding when they attend to die Sache by engaging in a genuine dialogue with each other, in which they are oriented toward the (dynamic, and ever-evolving) truth of the subject matter at hand.

How human faces function semiotically in wider legal contexts is explained in Broekman’s expanded reflections on his earlier texts about Faces. Human communication has faces as signs, as meanings embedded as it were in life itself. Faces are most important artifices in a communicative context, and that fact is the basis for legal and semiotic dimensions of truth in social life. What law does and how law appreciates human faces relates to the constructive nature of the truth concept in the innermost center of legal thought formation. It is important to notice in this context how the artifice-character plays a key role in the semiotic and legal need for name giving. But beyond that surface-structure in legal discourse, dimensions of a hermeneutical nature (as unfolded in Mootz’s text) appear to provoke as it were two names for faces before any name can be given: the ‘other’ and: the ‘Other’. That is exemplarily told in Torah narrations. They ask: what do such named faces mean, how do they function, what understanding of a psychological (a ‘self’) or a legal (a ‘­subject’) reference do they initiate? Meaning making seems a form of self-realization in which the face plays a multiform role, and thus fulfills and essential function in human communication, based on its reality named ‘truth’. Here is an important aspect of Peirce’s philosophical view on life, which is the crux of his philosophy: there is no life that is not embedded in what we notice as being potentially significant. So we are a being as a possible sign and understand ourselves as living in a field of transformational energy. If we understand that signs of law are everywhere in social life, we must accept how those signs are not there by nature but are created by lawyers driven by their encompassing energy of transformation. All this is grounded in dimensions of logical nature pertaining to truth functions. The third contribution in this chapter on Tarski, Peirce and Truthcorrespondence in Law, conceived by a student participant in the 2010 Law and Semiotics Seminar, completes the preceding paragraphs. The point of departure here is that the “truth” of legal discourse is founded primarily on the presuppositions of analytic-legal philosophy, the basic analytical-philosophical premise that

4

Part I  Philosophical Dimensions

“propositions are true when they correspond to reality”. Tarski’s “Convention T” theorem holds that a proposition is true if and only if that proposition can be proven true within the language expressing it. This limits the scope of analysis to the point where the sign-relations find themselves devoid of meaning except that which legal discourse tolerates. “Truth” is constructed time and again with each case and each legal finding, yet each finding leads no closer to any particular legal truth. The author of this essay proposes a fascinating development of this idea whilst referring to Peirce: Charles Sanders Peirce provides a third factor to the truth-test that invites an analysis that is best characterized as semiotic, or sign-related. Peirce allows that truth and falsity can both describe a proposition, but he also allows for the possibility of the “unknown”. If a proposition is “unknown,” then its truth-value cannot be determined, and as a result, the proposition’s relation to other propositions is also unclear. This lack of clarity expands semiotic analysis, where a single sign can evoke a myriad of convergent, divergent, or even unrelated interpretations, providing a wellspring of meanings through which a signifier may communicate experience. The introduction of uncertainty into truth-theory does not necessarily create existential problems within general discourse. However, legal discourse seeks to avoid this malleability at all costs, resulting in a self-referential system that taints general discourse by imposing legal meanings as “truth”.

From here, the reflections on truth as a theme within the context of meaningful communication unfold in a most original and relevant manner, which focuses the strength and power of philosophic-semiotic considerations regarding the foundations of law in a process of continuous renewal of understanding.

Chapter 1

“Die Sache”: The Foundationless Ground of Legal Meaning Francis J. Mootz III

It is a familiar theme of contemporary legal education that lawyers must interpret and create narratives in order to represent their clients. Clients do not approach their lawyer with a legal problem; they approach the lawyer with a problem in their everyday life that is articulated through narratives that are not exclusively, or perhaps not at all, legal in nature. The lawyer then must find the legal narrative to adapt to the problem, which really means to construct a narrative of law out of competing and confused notions that form the resources of legal reasoning. There can be no deduction of a solution to a legal problem. Instead, legal actors work through a semiotic discourse in a practical and creative engagement that shapes a reasonable solution to the problem at hand. Seen in this way, legal practice is a narrative endeavor that is founded on rhetorical innovation within a complex economy of signs. Unfortunately, this insight about the work of lawyers as makers and managers of meaning is all too often reduced to a simplistic picture in which the lawyer tells a “story” in a crafty manner that is designed to trigger application of the proper “objective” legal principles. Under this impoverished account, narratives are simply appeals to the pathos of the client’s circumstances and do not impinge on the fixed and objective character of the law. Law stands apart from the lawyer’s narrative as an abiding conceptual reality to which she must connect her client’s story through artful manipulation. In short, legal practice is the effort of the subject to narrate her client’s case so as to bring it within the objective principles of law. It is necessary to move beyond such a simplistic view of narratives in legal practice by recognizing the semiotic character of law itself. A semiotic perspective makes clear that narratives constitute legal principles no less than they present the client’s story. Legal practice is the constant creation of legal discourse by means of signs that exist in the form of precedents, principles, and policy prescriptions. But we

F.J. Mootz III (*) University of Nevada, S. Maryland Pkwy, 89154-1003, Las Vegas 4505, NV, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_1, © Springer Science+Business Media B.V. 2011

5

6

F.J. Mootz III

must remain vigilant at this point, and not fall victim again to a simplistic picture of the semiotic insight in terms of a dyadic subject-object relation. It is a grave error to understand legal semiotics in purely formal terms. Legal arguments are not empty signs that lack intrinsic meaning and they can’t be deployed by a self-possessed subject as if they are a tool, such as a hammer that can be wielded for good (to build a house for shelter) or for bad (to strike someone else on the head). Jack Balkin provides the canonical argument against this simultaneous formalistdeconstructionist articulation of legal semiotics that attempts to distinguish the semiotic form of legal discourse from the actual work of legal reasoning, but even his argument lacks a sufficiently radical understanding of the ground of legal meaning. In response to Jeremy Paul’s charge, that legal semiotics has no political valence, because it merely charts the recurring forms of legal argument, Balkin insists that legal semiotics goes beyond the ordinary lawyer’s tools. It systemizes and organizes the process of discovery in legal analysis. The algebraist and the school child can both do sums, but the former can explicate the more general principles which ensure the correctness of the latter’s work, and may permit much more powerful insights. . . . The work of the legal semiotician is indeed the work of the lawyer, but raised to a higher power of abstraction. (Balkin 1991, pp. 1839–40)

Balkin is correct to accord greater significance to legal semiotics than merely the “moves” in lawyering discourse, but he simply moves the analysis to a more abstract plane rather than fully recognizing the grounding of legal meaning in semiotics. We can approach the semiotics of legal meaning by accepting Balkin’s thesis and then moving beyond it. Balkin writes: The purpose of semiotic study is to understand the system of signs which creates meaning within a culture. It is to understand the underlying structures that make meaning possible. The legal semiotician seeks to identify what might be called the “grammar” of legal discourse – the acceptable moves available in the language game of legal discourse. These may occur at the level of permissible argument forms, modes of factual characterization, categories of social perception, or in many other ways. The semiotician traces the way that the system reproduces meaning, and if she has fully assimilated the post-structuralist critique, she tries to see the gaps or uncertainties within the structure, the many different levels at which rhetorical tropes can occur, and the many possible ways of re-describing them. Yet, the fact that legal discourse is rhetorizable says nothing about its lack of authenticity. To the contrary, I would insist that the only type of discourse that is truly authentic is that which is permissible within our existing language games, and is thus always rhetorizable. Authenticity is not freedom from the linguistic or cultural sources of meaning. Rather, it is precisely the opposite phenomenon – it comes from living within and through the structures of meaning that constitute a culture. At the same time, those structures of meaning can be understood as structures, and hence we can see to some degree how we live and think through them. Thus, semiotics does not show that the forms of discourse that we live within and through are inauthentic. Rather, the study of semiotics makes us somewhat more self-conscious of the rules of our own language games of moral, legal, and political discourse, even as it shows the interpermeability of these discourses with each other. (Balkin 1991, p. 1845)

Balkin’s suggestion that semiotic analysis occurs at a greater abstraction than lawyering, thereby providing perspective on the “structures” of argumentation is hardly a strong vindication of legal discourse against Paul’s claim that legal semiotics promotes a relativistic ennui. In this chapter I intend to augment Balkin’s argument

1  “Die Sache”: The Foundationless Ground of Legal Meaning

7

by uncovering in greater detail the means by which substantive legal argumentation (which can never be fully divorced from moral, ethical, and political argumentation) is possible, and how we can avoid the instrumentalist account of semiotics as sophisticated tool wielding. To fully overcome resistance to law’s fundamentally semiotic nature, I turn to Hans-Georg Gadamer’s philosophical hermeneutics and his recuperation of the philosophical term die Sache. Die Sache is a complex term with multiple valences. I will concentrate on die Sache in regard to the “grounding” of discourse within legal practice, which is only one manifold of the term as it is used in technical disciplinary discourses of law, philosophy and ethics. For example, Gadamer’s hermeneutical ethics is premised on the assumption that the other’s horizon of pre-understanding may provide a different angle on the subject matter under discussion. It is by confronting a different approach to the subject matter that leads to one’s own greater understanding of that subject. Therefore, Gadamer concludes, hermeneutical responsibility is not owed to the other person as a supposed separate subjectivity. Instead, we owe responsibility to the subject matter about which the dialogue partners converse: die Sache. It is not the case that one person knows more than the other, but that both persons gain understanding when they attend to die Sache by engaging in a genuine dialogue with each other, in which they are oriented toward the (dynamic, and ever-evolving) truth of the subject matter at hand. Gadamer’s ethical deployment of die Sache is just one sense in which he invokes the concept, and it provides one of several ways in which we can employ the concept to gain insight into legal practice. The grounding function of die Sache that I propose as a central issue in the study of law and legal education embraces broad philosophical themes as well. First, die Sache is Gegenstand, something that stands out and serves the function of the specific object of discourse. If law, legal discourse and legal procedure cannot identify the Gegenstand, no legal resolution of the conflict is possible because it simply is not a legal conflict. Die Sache sustains the referential activity that makes it possible for us to interpret, understand and speak in a social milieu. Gadamer follows Heidegger’s analysis of Gegenstand by regarding die Sache as something that stands in opposition to the subject, exercising a magnetic effect that draws the subject outside of her presumed insularity and making referential activity possible. This process of reference initiated by die Sache is the foundational semiotic function that grounds meaning, although we must be careful to define this “grounding” at the outset, to avoid misunderstanding. The “grounding of legal meaning” is not a metaphysical truth, but rather is a product of our finite and hermeneutical existence. Finally, Gadamer’s emphasis on “pre-understanding” (Vorverständnis) underscores that die Sache is not a product of our interpretive-referential activity as a subject approaching an object, but rather is a precondition of interpretive activity and the very notions of subjectivity and objectivity. We never raise a wholly new subject matter in discourse; instead, our orientation to a pre-existing subject matter with another person in dialogue is the condition for the possibility of inventing new topics for discussion. If there can be no legal argumentation without the identification of a Gegenstand, it is equally true that there can be no object of discourse that confronts us as a legal

8

F.J. Mootz III

problem without the constitutive features of legal discourse. The subject matter under discussion is not a moral or technical problem that subsequently is addressed through legal discourse. Rather, the narratives of law constitute the object of discussion, just as the object of discussion shapes the legal narratives. To argue a legal claim is to recognize a legal problem, which is to say that one constitutes an object for discussion through the evolving narrative of law. There is a complete interpenetration of object and subject in this regard: the object of discussion has shaped the legal discourse before we take up the discussion, but it is only through the ongoing legal discussion that the object may be constituted as such. In this chapter I wish to elaborate these themes in the context of legal analysis and legal education. First, I briefly review the rich and variegated philosophical history of the term die Sache that Gadamer takes up as a central part of his hermeneutical philosophy. Recalling this development is a helpful way to avoid some of the cul-de-sacs that have detoured thinking in the past. Next, I relate Gadamer’s use of die Sache to key aspects of his philosophy. In addition to “preunderstanding,” I discuss how Gadamer’s central concepts of “the fusion of horizons” and “the priority of the question” can be understood best by relating them to die Sache. In the final part, I demonstrate that Gadamer’s hermeneutical ethic to attend to die Sache has practical import for lawyers. Once we acknowledge that legal reasoning presents an exemplary case of our responsibility to die Sache, we can trace the important implications this holds for legal education.

1.1 A Brief History of Die Sache As a philosophical concept, die Sache has a long and complex provenance. Platonism regards the subject of inquiry to be timeless universals (eidos) that exist prior to language and which are corrupted by discussing them in the necessarily imprecise terms of language. Platonism is the source of the Western philosophical belief that we might clarify things by analyzing them in discussion, but reality exists beyond the discussion. The matter under discussion, in other words, always is outside the discussion. Modern philosophy was shaped indelibly when Kant provided the corrective to the received wisdom of Platonism by acknowledging the limitations of our capacity to understand the thing-in-itself that exists outside our faculty of understanding, which is to say outside of language. Kant shows the very limited scope of pure reason, and laments the necessity to employ practical reasoning and aesthetic judgment. Where Platonism had cautioned us, Kant merely consoled us. Hegel, who charted the continually self-presenting of die Sache as it emerges historically, sundered this continuity of ancient and modern philosophy. For Hegel, the matter under discussion is not an extra-historical absolute to which reference can be made; rather, it is a dynamic self-unfolding of thought that can be traced philosophically. Husserl’s injunction to return to the things themselves (die Sache selbst) by means of phenomenological observation carried forward this tradition, but also took a very different tack. The phenomenological reduction sought to recover our originary

1  “Die Sache”: The Foundationless Ground of Legal Meaning

9

experience by stepping back from the entanglement that our conceptual frameworks and habituation impose on the world. The goal was to seat the natural sciences on a rigorous and exact footing that has not been corrupted by everyday existence. Both Hegel and Husserl, in their different ways, sought access to reality in ways that could survive skeptical attacks without embracing a mindless and reductionist scientism. Although he succeeded Husserl at Freiburg and dedicated Being and Time to him, Martin Heidegger transformed phenomenological inquiry by drawing from Aristotle’s hermeneutics of facticity to emphasize our “care-full” involvement in a world into which we always already are thrown. To speak of “the things themselves” – free of theoretical frameworks or subjective intentions – was no longer sensible after Heidegger’s intervention. Heidegger asked: what can we say of die Sache after the hermeneutical turn in philosophy? My argument is that his student, Hans-Georg Gadamer, provided the answer to this question in a manner that provides the resources to develop die Sache as the ground of meaning.

1.2 Gadamer’s Use of Die Sache We can understand the semiotic ground of legal meaning by drawing from HansGeorg Gadamer’s recuperation of die Sache within the post-Heideggerian hermeneutical tradition. Gadamer’s critical insight is that the “subject matter” of dialogue is a key element of understanding. Conversationalists slip into banal or manipulative talk if they do not attend to the subject matter. In Heidegger’s terms, without die Sache dialogue is mere idle chatter. Gadamer also draws from Hegel’s historical approach to die Sache by insisting that reason is a product of interwoven dialogues that develop historically; what unfolds in dialogue is real and cumulative, but Gadamer also is quick to emphasize that dialogue never culminates in a final and definitive Aufhebung. My thesis is that Gadamer establishes that the ground of legal meaning just is being responsive to die Sache. The ethical imperative to be responsive is not conceptually determined; it flows from ontology. The ontological ground is a semiotic realm, which constitutes die Sache, but this is the condition of human finitude and is not a metaphysical claim. Human understanding is possible only by attending to the matter under discussion and renouncing deconstructive playing, strategic manipulation, or the use of force. Gadamer’s key themes – that we always come to an interpretive event with a pre-understanding, and so we must always be prepared to accept the potential superiority of our interlocutor’s grasp of the subject matter; that we understand through the logic of question and answer rather than by insular cognitive effort; that understanding involves a (Hegelian-like) dialectical fusion of horizons; etc. – all revolve around attending to die Sache. Once placed in this perspective, Gadamer’s themes provide an important insight into the ground of meaning. Gadamer repeatedly emphasizes that he embraces Plato’s philosophy even while he steadfastly rejects Platonism. Although we saddle Plato with our Cartesian angst

10

F.J. Mootz III

arising out of our skeptical attitude toward metaphysics, Gadamer insists that Plato did not endorse what we now know as Platonism. Instead, Plato rejected empty eristic by holding out the dialogic engagement of Socrates and his interlocutors as a model of coming to understanding (Barthold 2010, pp. 2–5). The significance of Plato’s model for Gadamer is that dialogic responsibility is not owed to one’s dialogue partner, but rather is a shared responsibility with another toward the subject matter under discussion. For this reason, finding the right question that will put the subject under discussion is more important than reaching definitive answers about the subject of dialogue. Gadamer’s extensive discussion in Truth and Method of the hermeneutic priority of the question develops these insights. When we try to examine the hermeneutical phenomenon through the model of conversation between two persons, the chief thing that these apparently so different situations – understanding a text and reaching an understanding in conversation – have in common is that both are concerned with a subject matter that is placed before them. Just as each interlocutor is trying to reach agreement on some subject with his partner, so also the interpreter is trying to understand what the text is saying. This understanding of the subject matter must take the form of language. It is not that the understanding is subsequently put into words; rather, the way understanding occurs – whether in the case of a text or a dialogue with another person who raises an issue with us – is the coming-into-language of the thing itself. Thus we will first consider the structure of dialogue proper, in order to specify the character of that other form of dialogue that is the understanding of texts. Whereas up to now we have framed the constitutive significance of the question for the hermeneutical phenomenon in terms of conversation, we must now demonstrate the linguisticality of dialogue, which is the basis of the question, as an element of hermeneutics. Our first point is that the language in which something comes to speak is not a possession at the disposal of one or the other of the interlocutors. Every conversation presupposes a common language, or better, creates a common language. Something is placed in the center, as the Greeks say, which the partners in dialogue both share, and concerning which they can exchange ideas with one another. Hence reaching an understanding on the subject matter of a conversation necessarily means that a common language must first be worked out in the conversation. This is not an external matter of simply adjusting our tools; nor is it even right to say that the partners adapt themselves to one another but, rather, in a successful conversation they both come under the influence of the truth of the object and are thus bound to one another in a new community. To reach understanding in a dialogue is not merely a matter of putting oneself forward and successfully asserting one’s own point of view, but being transformed into a communion in which we do not remain what we were. (Gadamer 1989, p. 378, emphasis added)

This idea of a “communion,” generally characterized by Gadamer as a fusion of horizons, is often misunderstood as a flattening consensus in which the dialogue partners shed their individual perspectives. However, Gadamer makes clear that by “communion” he means a shared orientation to die Sache, and he most certainly does not mean to suggest an erasure of otherness. To conduct a conversation means to allow oneself to be conducted by the subject matter to which the partners in the dialogue are oriented. It requires that one does not try to argue the other person down but that one really considers the weight of the other’s opinion. Hence it is an art of testing. But the art of testing is the art of questioning. For we have seen that to question means to lay open, to place in the open. As against the fixity of opinions, questioning makes the object and all its possibilities fluid… . It is not the art of arguing (which can make a strong case out of a weak one) but the art of thinking (which can strengthen objections by referring to the subject matter). (Gadamer 1989, p. 367, emphasis added) …

1  “Die Sache”: The Foundationless Ground of Legal Meaning

11

What emerges in its truth is the logos, which is neither mine nor yours and hence so far transcends the interlocutors’ subjective opinions that even the person leading the conversation knows that he does not know. (Gadamer 1989, p. 368, emphasis added)

The “fusion of horizons” is not two people becoming one through the elimination of difference. Instead, it is two distinct horizons finding common ground in their orientation to, and development of, die Sache. We must be careful not to misunderstand Gadamer as adopting a dualistic approach that regards communication as an activity involving two subjects exchanging static information. The two dialogue partners always exist within a semiotic economy established by their shared language, and this is a social realm rather than merely a conduit between two individuals. We never speak about something that is peculiarly “ours,” for the simple reason that speech is not “ours” but rather is a shared realm of referential discourse. Therefore, the matter under discussion, die Sache, always implicates the entire social world in which the speakers are rooted, and this too is an integral part of the semiotic grounding. Gadamer’s discussion of the hermeneutical power of the classical text clarifies the significance of die Sache. He explains: “when we call something classical, there is a consciousness of something enduring, of significance that cannot be lost and that is independent of all the circumstances of time – a kind of timeless present that is contemporaneous with every other present” (Gadamer 1989, p. 288). The classical text “epitomizes a general characteristic of historical being: preservation amid the ruins of time” (Gadamer 1989, p. 289). The classical functions in this way because it poses questions that orient us to die Sache and bring us outside a simplistic and instrumental use of the text for preconceived purposes. The classical foregrounds die Sache, and thereby rises above the vagaries of its production and initial reception. And, because the “classical” text is only acknowledged within social discourse and against the “history of its effects” within that social realm, it is always a referent that exists beyond the particular dialogue by two persons at a given point in time. By recognizing that our responsibility to die Sache is at the core of Gadamer’s hermeneutical ethic, we may put to rest the allegation that Gadamer advocates surrendering to one’s dialogic partner and abandoning the quest for critical insight. In his famous debate with Jürgen Habermas, Gadamer was not arguing that we abandon the goal of critique. Rather, he was challenging Habermas’s monological tendency toward critical theory and away from an engaged dialogue with another about the matter in dispute, an engagement in which both dialogue partners are able to gain critical insight about the subject matter precisely because they are confronted with the Gegenstand. Critical insight is the motivation for action, but it follows from answering the call to be responsible to die Sache rather than from theoretical prowess. However, this correction raises the possibility that we might misunderstand Gadamer’s philosophical hermeneutics in a different manner. If we have a responsibility to the subject matter under discussion, and if one’s dialogue partner is merely a provocation that facilitates our engagement with the subject matter, one may legitimately ask whether Gadamer’s development of the concept of die Sache tends too much in the direction of Hegelian idealism, wholly discounting any manner of responsibility owed to our dialogue partner.

12

F.J. Mootz III

Nicholas Davey provides a helpful explanation of Gadamer’s notion that die Sache always transcends the finite horizons of particular individuals and yet can only be known within these horizons. Sachen are dynamic and historical, and so they are an accumulation of interpretations that do not reach an end except insofar as they cease being the subject of dialogue between persons. Davey’s analysis merits extended quotation. The rich suggestiveness of the term Sache stems in part from its ambiguous meaning. On the one hand, die Sache is treated as an objective entity that transcends the horizon of an individual’s understanding. A Sache will have a scope of cultural and historical reference larger than any individual can grasp. . . . On the other hand, die Sachen do not appear to be fully independent of individuals and their understanding. Subject matters would lie forever dormant if they were not made to function. Their cultural effectiveness depends upon whether they are engaged with. This raises a question . . . How can that which is ontologically autonomous be acted on or added to by individuals unable to master it? . . . The Sachen that underwrite preunderstanding operate as the precondition of individual hermeneutic practices, but it is only by means of the effective operation of the latter that the Sachen underwriting such practices can function and be renewed. Once again, two of the major leitmotifs within philosophical hermeneutics become apparent. A subjective process assumes an importance because of the objectivities it makes discernible, which, at the same time, reveals to the hermeneutic subject its ethical obligation toward that which ontologically sustains and yet transcends it. (Davey 2006, pp. 69–71)

The significance of this clarification is profound: we owe responsibility to die Sache, but Sachen can be approached only through our engagement with others. The dialogue partner is not merely a provocation that permits one to approach a noumenal subject matter; rather, subject matters exist only in the dynamic play of dialogue. The distinctiveness of these interpretations are embodied in dialogue partners who approach the subject matter against a broad history of its effects within the cultural circumstance in which they pose a question about die Sache. If die Sache is found only in the interpretations of dialogue partners, so too it is not reducible to subjective outlooks. This is the dynamic that permits both parties to appeal outside their own prejudices and the prejudices of the other. Davey describes this form of quasi-transcendence with subtlety: Once a Sache has been formed and has entered the general vocabulary, it acquires an intellectual efficacy that transcends the circumstances of its provenance. . . . Subject matters, it can be argued, share the rope-like characteristics of Wittgenstein’s description of general terms, that is, discontinuous strands of meaning still inform how a semantic “whole” can be perceived. An identity of meaning would not permit a Sache to become more. Discontinuous strands of meaning offer a different perspective on the whole. They suggest openings or loose ends enabling other strands of meaning to be woven in, thereby adding to how a Sache might be perceived. It is, furthermore, precisely the moments of difference and discontinuity with a Sache that challenge our understanding (expectancies) of it. The discontinuities and differences of meaning within a Sache therefore contribute to the possibility of hermeneutic transcendence. In time a Sache will come to mean incalculably more than its original creator(s) could have envisaged. . . . The realization that a Sache has come to mean something different than it once meant, can quite alter a hermeneutic subject’s contemporary understanding of a term. The point here is that although the meaning of a Sache can, in part, be determined by

1  “Die Sache”: The Foundationless Ground of Legal Meaning

13

the activities of a hermeneutic subject, that subject is also subject to the autonomous meanings of a Sache. In this sense, Sachen have an effectiveness of their own, for once they escape the particularity of their origin and enter general usage, they start to shape the preunderstanding of a given linguistic horizon. How a hermeneutic subject deploys a given subject matter is never arbitrary. An articulation of a Sache will always be subject to how that Sache has shaped the historical horizon in which it is articulated. Sachen shape and orient preunderstandings. As such they are key formative elements in what Husserl describes as the life world (Lebenswelt), that is, that anonymous world of presuppositions that grounds our subjectivity, which functions in all experiencing and thinking. . . . (Davey 2006, pp. 71–72)

Having explicated the complex dimensions of Sachen in Gadamer’s philosophy, Davey concludes by emphasizing their double nature: First: they are the intentional objects of subjective consciousness, and second: they denote objective structures of meaning that influence how the world is assimilated. In the latter case, they form part of the reality beyond every individual consciousness that language makes visible (Gadamer 1989, 449). This duality of nature is central to what Gadamer describes as their factualness (Sachlichkeit). We do not experience a Sache in a vacuum but against a historical backdrop of received expectations not all of which are fully articulated. Both past and forgotten determinations of meaning as well as unrealized future potentialities of meaning are held within a Sache. Following Heidegger, Gadamer describes these aspects of meaning as “the withheld.” It is, in part, the withheld dimension of a Sache’s meaning that lend it its weight and depth. Furthermore, it is because we experience the nature of a Sache against the backdrop of previously experienced or expected aspects of a subject matter that “permits (us) to recognize its independent otherness” (Gadamer 1989, p. 445). .... Sachen are the subject matters of a culture. They are intentional objects attracting and reflecting the concerns of a community. The link between them and communicative activity is insoluble. As we have argued, Sachen are transcendent rather than metaphysical entities. Though the product of human communication, they are not reducible to the activity of individuals alone. Even in the case of subject matters that do emerge as a consequence of the creative interventions of individuals, the full potential of such interventions does not become apparent until they are assimilated by a cultural community. Philosophical hermeneutics is persuaded that Sachen emerge as a consequence of communicative engagement. (Davey 2006, pp. 71–72)

Drawing from Davey’s nuanced and persuasive clarification, we find that Gadamer’s focus on die Sache is legitimately viewed as the fulcrum of hermeneutical ethics because it constitutes the ground of legal meaning. This ethics does not abandon the concrete subject as dialogue partner in search of transcendent principles, but neither is it exhausted in the ethical demand of the other person before whom one stands. The dialectical play of Sachen in dialogue builds up an ethic that is fully and irremediably hermeneutical. This ethical dimension of hermeneutics is captured in Heidegger’s notion of the call of conscience. As Michael Hyde explains, conscience is rooted in our cumulative experiences, but it must be “cultivated and instructed” through casuistic reasoning in order to be effective (Hyde 2001, p. 3). The call of conscience is not a call from a force outside of human life, but rather is an awareness from within the finitude of human life that the world is always open to question and that we are responsible for our interpretation of the circumstances and our resolve to pursue a course of action

14

F.J. Mootz III

(Hyde 2001, p. 47). I contend that Hyde is describing an engagement with Sachen in precisely the hermeneutical-rhetorical terms that Gadamer might use: we take up an ethical dilemma – euthanasia, in Hyde’s presentation – not as a logical puzzle to be overcome, but as a commitment to working through the relevant issues in the particular circumstance. There is no truth of the matter regarding euthanasia that exists outside of dialogue, there is no truth that can be apprehended monologically without an engagement with another about the topics raised in relation to the decision. Ironically, then, the deeply individual responsibility we bear toward the call of our conscience can be fulfilled only with others, with whom we may re-active the Sachen. We sometimes believe that we can think through such dilemmas alone in the dark of the night, but Chris Smith has undermined this conceit in a forceful manner, emphasizing that “we never think in wordless ideas, but only in the words we have first heard from others and then hear again in our thinking.” (Smith 2000, p. 740) He explains: In other words, language, audible speech, is not invented by private individuals to signify thoughts they already have but is the gift of the community that allows the individual to think in the first place. Not cogito ergo sum [“I think, therefore I am”] is the truth of the matter, rather loquimur ergo cogito [“We speak, therefore I think”]. (Smith 2000, p. 735)

1.3 Die Sache and Legal Semiotics If this were exclusively a philosophical paper, I would now deepen my discussion of Gadamer’s analysis of die Sache by tracing detailed implications of this important aspect of his philosophy. I will not undertake this project, in part because it has been a topic of recent commentary (Barthold 2010, pp. 2–16, 102–11; Davey 2006, pp. 68–89, 190–97; Wachterhauser 1999, pp. 56–61). Instead, my goal for the remainder of this chapter is to render the philosophical issue concrete by exploring its manifestation in legal practice and by describing the significance that this holds for legal education. Gadamer acknowledges the exemplary significance of legal hermeneutics at a critical juncture of Truth and Method. In the same vein, I argue that legal practice exemplifies our responsibility to die Sache, and that responsible legal hermeneutics is a guidepost to understanding the grounding of legal meaning.

1.3.1 Between Positivism and Natural Law Legal practice purports to be aligned with an objectively ascertainable entity: “The Law.” Judges and lawyers continually make appeals to “The Law” in the course of their argumentation. We are guided by a faith that the judge gives voice to “The Law,” but the judge is not the law unto herself. This faith too often translates to a metaphysical commitment that there is an abiding force that rises above contingent legal discourse, which amounts to an effort to subvert the semiotic construction

1  “Die Sache”: The Foundationless Ground of Legal Meaning

15

of legal Sachen through dialogue. The implausibility of this metaphysical subversion yields the contemporary intellectual dilemmas of law and legal education. One of the nagging doubts of modernity is to question whether “The Law” is anything other than a conclusory platitude, an empty placeholder that is invoked to assert the legitimacy of exercises of power by legal actors. I wish to provide a phenomenology of the use of this commonplace and to argue that “The Law” is neither an objective touchstone of our intentionality in the form of a historically-unfolding truth, nor is it mere rhetorical cover for the exercise of power. Rather, “The Law” is a reference to the ongoing hermeneutical-rhetorical practice of argumentation about a subject matter by drawing upon legal signs. “The Law,” to put the matter in Gadamerian terms, is die Sache. We should begin by clearly stating the problem that confronts contemporary legal theory. Stephen Smith has articulated law’s quandary in an unsettling and straightforward manner, describing: “how our understanding of law has deteriorated due to our wanton neglect (or, rather, our systematic suppression) of its ontological dimensions” (Smith 2004, p. ix). Smith argues that law’s quandary follows from the fact that legal practice outstrips the ontological presuppositions of both everyday experience and natural science with its reference to “The Law,” but the only other available option – the ontological inventory of religious concepts, as epitomized in Aquinas’s natural law theory – is irredeemably divorced from law in our (post)modern age (Smith 2004, pp. 36–37). More precisely, our quandary is that the discourse of law depends on some form of transcendent reality, but we expressly disavow such an ontological grounding despite the undeniable character of our practices (Smith 2004, p. 21). Seeking a “practical metaphysics” of law, Smith goes behind the successful manipulation of legal discourse by lawyers and judges to discover the ontological commitments that anchor this everyday activity. He argues that legal practice cannot just be the discourse of lawyers and judges because they continually refer to “The Law” as something driving their discourse. “That is the predicament of modern law and legal discourse: it seems that we cannot believe in “the law,” and we also cannot live without quietly harboring something like this belief” (Smith 2004, pp. 50–51). He concludes that … there is at least a strong prima facie case that modern legal discourse is operating in an “ontological gap” that divides our explicit or owned ontological commitments (which preclude us from recognizing the reality of “the law”) from the ontological assumptions not only implicit in but essential to our discourse and practice (which seem to presuppose the reality of “the law”). (Smith 2004, p. 63)

Smith describes not just a quandary, then, but a full-blown metaphysical crisis. Smith is a wily Socrates who ensnares his readers by asking for a definition of “The Law” and then upsets their thinking by demonstrating that all proffered definitions are flawed (Smith 2004, p. 39). But rather than despairing, we should conclude that his Socratic questioning has revealed the unproductive character of the question as posed. Smith paralyzes the reader by offering an either-or proposition: either “The Law” refers to something outside legal practice that can direct it, or it is just a nonsensical reference that exposes an ontological gap in which our discourse operates.

16

F.J. Mootz III

These unsatisfactory alternatives obscure the fact that the rhetorical appeal to, and hermeneutical retrieval of, “The Law” does not gesture outside of legal practice. The metaphysical response to law’s quandary lies in recovering the hermeneutical and rhetorical dimensions of the practice, and Gadamer’s recuperation and extension of die Sache is a key to this project. At the same time, by investigating the nature of legal reasoning and argumentation we can come to a deeper understanding of the ground of legal meaning, of which it is a part.

1.3.2 The Rule of Law as Practice, Not Ideology Modern legal systems are founded on the ideology of the “rule of law,” which represents a break from social systems (such as hereditary monarchies) in which political power was vested in individuals in favor of legal systems in which democratically enacted laws are applied equally to all persons (Mootz 1993). Thus, the most common characterization of constitutional democracies is to describe them as being subject to “the rule of law, and not of men.” But this phrase is a talisman more than a political theory capable of implementation. As Chaïm Perelman famously summarized, there can be no justice without a judge. The idea that laws can be perspicacious and therefore self-executing is absurd, and yet in the United States it is precisely this ideology that dominates popular consciousness and is in abundant evidence when the Senate questions nominees to the federal Supreme Court in front of the television cameras. This leads many observers to the cynical conclusion that the “rule of law” is a charade – a cloak for the power that is wielded by government officials, including judges. The vacillation between ideology and cynicism is destabilizing to the point of being politically corrosive. Gadamer’s hermeneutics of responsibility explains how to address this problem, which represents the most general manifestation of law’s quandary. To put the matter concisely, the rule of law is achieved when government officials and private parties embrace their responsibility to die Sache and relinquish subjective strategies. We might refashion the guiding ideology of our polity as securing “a government of dialogue about the laws, and not a government of the assertion of subjective power.” The quandary of legal authority is that invocations of “The Law” appear to be grounded only if they are premised on claims to an abiding authority outside legal discourse; otherwise, the claims appear to be simply deceptive masks for the exercise of power. However, when legal actors rhetorically invoke “The Law” in the course of practice they are seeking a commitment from their opponent and the judge to attend to die Sache rather than to assert subjective aims or goals. The matter in dispute is never subject to a deductive answer, and so legal practice is necessarily a continuing creative adaptation of “The Law” to the circumstances of the case through practical reasoning. The law is not an authoritarian natural law of commands, then, but instead obtains its binding authority through the social nature of communicative action that always extends beyond the speaker and hearer and involves a subject matter that is not, and can never be, fully encompassed by either discourse partner.

1  “Die Sache”: The Foundationless Ground of Legal Meaning

17

Law has the peculiar rhetorical structure of denying its rhetoricity: this is why the invocations of “The Law” are facially empty. Nevertheless, participants in the discourse of legal practice in fact are often enmeshed in the social character of their activity by recognizing that die Sache trumps the hubris that a lawyer can create legal meaning ex nihilo. This brings Gadamer’s hermeneutical ethic to bear directly on the nature of legal practice. To practice law is to practice restraint. It requires the lawyer to subsume her presumed insular subjectivity to the social milieu from which subjectivity arises. It is an ethic of attending to a subject matter that is greater than the wants or needs of particular individuals. Academic commentators might criticize the characterization of legal practice as attending to die Sache as nothing more than philosophical hogwash. These commentators would insist that lawyers are simply advocates who zealously present their client’s case as wholly virtuous, and that judges are relatively free to decide the case in accordance with their own view of law and social norms because of the complexity of the legal system. At this point, the seasoned practicing attorney can teach the philosophers of law a great deal. It is a foolish rhetorical strategy to seek every advantage for one’s client as if it naturally accords with “The Law.” Sophistic manipulation is easy to spot, and reveals the lack of ethos of the advocate. A lawyer who seeks to manipulate legal discourse as if it is merely a neutral set of tools that can be employed in an infinite variety of ways misses the substantive character of signs that results from them being embedded in ongoing discourses; she fails to acknowledge die Sache and therefore is sharply limited in her ability to be persuasive. We can easily find many examples from legal practice, but perhaps a simple hypothetical will be most illustrative. Assume that a public agency is charged with managing the city’s mass transportation network, and that the enabling legislation provides that the agency must ensure the “economic provision of mass transportation services.” It should be immediately apparent that there are many ways to interpret this legislation. Plausible interpretations of the dictate include: it is a requirement that the agency ensure that the system provides mass transportation services for the least cost possible; it is a requirement that the agency ensure that the ratio of receipts to expenses is as high as possible; it is a requirement that the provision of services generates the most economic benefits possible; and so on. Critical legal theorists easily demonstrate that the law is not perspicacious in such cases, and that the ground of meaning cannot be found in the words of the statute. But it is equally important to recognize that every plausible reading of the words is not equally persuasive or convincing in light of the history of interpretations and pre-understandings that inform the social dimensions of the text. Legal signs are not inert tools at the disposal of lawyers; instead, they are embedded in ongoing discourses that constitute the subject matter that lawyers must engage. First year law students perennially fall into the trap of regarding the law as an infinitely malleable set of signs that can be arrayed to support any conclusion; this is the nadir of the educational experience. When they take their first exams, however, the find how difficult it is to marshal legal arguments in support of a particular claim. After a full year of deconstructing the belief that certain results in the cases that they read are inevitable, the students suddenly find how difficult it is to make a persuasive argument (not to mention persuasive arguments on both sides of an issue).

18

F.J. Mootz III

What the students lack is experience. They are new to the conversation and have only the most rudimentary vocabulary and only a tenuous understanding of the historical path of the law. They have a conceptual understanding of the terms in issue, but they lack the grounding provided by being engaged in the ongoing public dialogue. What they lack is the ground of legal meaning: die Sache.

1.3.3 The Implications for Legal Education Educating future legal professionals poses a challenge, but this challenge is made all the more difficult by misconceiving the nature of legal practice. In the United States, students are trained by reading exemplary appellate court opinions, and then discussing the analyses in class. Students are expected to mimic the analytical process of the appellate judges in order to learn how, in the common phrase, “to think like a lawyer.” The assumption in this model is that there is a unique methodology to be imparted, one that will clear away the confusions that lay people experience when thinking about legal issues. However, because legal practice is a hermeneuticalrhetorical discourse that occurs within a semiotic field, there can be no methodology of the practice. There are no rules for teaching professionalism to law students because lawyers rely on judgment rather than calculation. Developing professional judgment requires a liberal education in “ethics” – in the broadest sense of the term as used by the ancient Greeks to mean an acculturation to a normative lifeworld. Conceptual analysis is incapable of getting at this dimension of lawyering, which is why most modern reform proposals advocate integration of clinical- and simulation experiences for students. The recent Report of the Carnegie Foundation makes this point in epistemic terms, recognizing that practical engagement is not simply a chance for the students to employ their analytical knowledge. In terms of my argument, experts understand more because they attend to die Sache, and introducing students to this reality should be at the core of their professional education. Although it looks so to the outsider or novice, experts do not simply act intuitively. Expertise is judgment fully realized. This is not a cognitive either-or. Experts reflect and deliberate, especially when confronting difficult or strikingly novel cases and situations. . . . The expert’s knowledge is well grounded in subtle, analogical reasoning achieved through a long apprenticeship to more expert practitioners. In this process of learning, formal models and rules play an essential role, but the formal models are themselves based on practice. Put another way, in the teaching and learning of expertise, practice is often ahead of theory. Formal knowledge is not the source of expert practice. The reverse is true: expert practice is the source of formal knowledge about practice. Once enacted, skilled performance can be turned into a set of rules and procedures for pedagogical use . . .. But the opposite is not possible: the progression from competence to expertise cannot be described as simply a step-by-step build-up of lower functions. In the world of practice, holism is real and prior to analysis. Theory can – and must – learn from practice. (Sullivan 2007, p. 118)

Legal educators must look to the practical world of semiotic meaning making for guidance, and then reflect on how we might foster these capabilities in our students by moving beyond sterile and artificial conceptual analysis.

1  “Die Sache”: The Foundationless Ground of Legal Meaning

19

Perhaps the most important lesson is that we must connect knowledge with action, preparing students to act in the world of practical affairs. Students must understand that invention is the mainstay of the practicing lawyer, who always takes up legal discourse in a slightly new manner to best get at the matter at issue with her present client. Legal argumentation is not just a toolbox of signs with which to embellish a dialectical demonstration; rather, legal expertise is cultivated through an educational program that is best conceived in experiential terms. Professionalism cannot be formalized and taught as an analytical skill in the classroom because it is a semiotic achievement rather than a deductive exercise. Students can fully understand the ground of legal meaning only by experiencing that dynamic ground by arguing both sides of an issue by drawing on legal signs and topoi in response to a practical problem. Clinical placements are designed to provide just this kind of experience to advanced students, but clinical placements must embody a reflective grasp of the semiotic ground of legal meaning. It is one thing for a student to mimic a teacher while playing a role, even if this role takes place in the real world of lawyering through a clinical assignment. It is another thing altogether for the student to be taught the rhetorical character of the activity, the commonplaces of argument, and a means of engaging in invention and argumentation in a self-reflective manner. The cornerstone of this educational practice, the ground of the legal meaning that we seek to train our students to create and employ in practice, is the subject matter under discussion. Students should not be misled into thinking that legal doctrine is entirely plastic and wholly subject to their manipulations to produce any desired result, any more than they should be misled into thinking that rigorous legal analysis will generate a unique right answer to any practical problem. Excellent lawyers understand that the most vigorous advocacy begins by relinquishing strategic manipulation in favor of addressing the evolving subject matter in a new and responsible manner. Excellent lawyers understand that they do not create meaning ex nihilo, because the ground of legal meaning is the historical and public practices that have defined the subject matter that is raised by the case. Excellent lawyers understand that they must relinquish their professed subjective aims and attend to die Sache.

References Balkin, J.M. 1991. The promise of legal semiotics. Texas Law Review 69: 1831. Barthold, Lauren Swayne. 2010. Gadamer’s dialectical hermeneutics. Lanham: Lexington Books. Davey, Nicholas. 2006. Unquiet understanding: Gadamer’s philosophical hermeneutics. Albany: State University of New York Press. Gadamer, Hans-Georg. 1989. Truth and method, 2nd rev. ed. (rev trans: Joel Weinsheimer and Donald G. Marshall). New York: Crossroad. Hyde, Michael J. 2001. The call of conscience: Heidegger and Levinas, rhetoric and the euthanasia debate. Columbia: University of South Carolina Press. Mootz III, Francis J. 1993. Rethinking the rule of law: A demonstration that the obvious is plausible. Tennessee Law Review 61: 69.

20

F.J. Mootz III

Smith, P.C. 2000. The uses of Aristotle in Gadamer’s recovery of consultative reasoning: Sunesis, Sungnômê, Epieikeia, and Sumbouleuesthai. Chicago-Kent Law Review 76: 749. Smith, Steven D. 2004. Law’s quandary. Cambridge: Harvard University Press. Sullivan, William M. et al. 2007. Educating lawyers: Preparation for the profession of law. San Francisco: Jossey-Bass (published as part of “The Preparation for the Professions Series of the Carnegie Foundation for the Advancement of Teaching,” and known colloquially among legal educators as “The Carnegie Report”). Wachterhauser, Brice R. 1999. Beyond being: Gadamer’s post-Platonic hermeneutical ontology. Evanston: Northwestern University Press.

Chapter 2

Faces Face to Face Jan M. Broekman

2.1 Introduction Karl Llewellyn wrote on the first pages of his 1930 The Bramble Bush: Our law and its Study: “We have discovered in our teaching of the law that general propositions are empty. We have discovered that students who come eager to learn the rules and who do learn them, and who learn nothing more, will take away the shell and not the substance” (Llewellyn 1930). This book and this chapter are a contribution to a deeper understanding of Llewellyn’s more. His more includes in our contemporary view the proper location of legal semiotics. The word embraces many chances to contribute to a teaching of law that focuses on the special study of meanings and signs. Faces play an important role within that complexity. Who is surprised by that observation in an era where Facebook is a major social communication network? Faces also enhance the relevance of any semiotic approach to law. Seminar sessions or other academic training situations thus exemplify the chapter’s main title by means of presence and interchange of faces. Classroom sessions bring faces together, and those faces must always be exposed to other faces in order to truly become a face. And, furthermore, those faces seem entangled in the process of engenderment of a self—an issue of immense cultural and social importance. We speak in daily life about ‘face-to-face’ relations when we focus on proximity, intimacy, and other social features that determine—albeit by definition temporarily— a face, and not on the engenderment of a personality. An important dimension of education is thus in the appropriate understanding of facial relations. Semiotics in law unveils surprisingly new dimensions here. First, the developments and strategies of legal meaning are subjected to discussion in legal education. Faces play a role

J.M. Broekman (*) Dickinson School of Law, Penn State University, Distinguished Visiting Professor of Law, W. South Street 333, Carlisle 17013, PA, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_2, © Springer Science+Business Media B.V. 2011

21

22

J.M. Broekman

here because the relations between legal and facial expressivity fit a predominantly narrative context and its democratic tradition. Second, one discovers how and within what limits law appreciates facial expressivity. Law treats ‘the face’ only as one specific face, although that approach in its own right is hardly an issue in education settings.

2.1.1 Faces in Legal Semiotics A closer look at the topography of “faces in the context of legal semiotics” shows that facial aspects are of essence in Llewellyn’s expression ‘more’. Law students should develop that insight in the course of their legal training. Llewellyn could hardly imagine how semiotics fit his ideas on becoming a ‘lawman’. Faces are not independently treated and respected in law, and lawyers demonstrate hitherto little semiotic sensitivity in that regard. Consider how semiotic arguments are rarely accepted in court sessions; how briefs are never explicitly written in semiotic perspective and how training in legal writing is not oriented towards a lawyer’s management of meaning beyond doctrinal boundaries. All this is in accordance with the rigorous individualization of a human face in law (Broekman 1979, Ch. 8). There is, for instance, no legal system that admits a passport picture with two or more faces, or with a picture of husband and wife or of both partners in life. The individual has a central position in law and legal discourse; signification and experiences of the body are subordinated as incidental aspects of the person as the owner of that body. The concept of a person fulfills the major role in law because a person is believed to create social patterns. Properties of the body, in particular of body-parts, are only treated as traces a person leaves behind in social conduct. Body-parts have no independent semiotic function or task in law. Look at extreme cases: facial transplants refer solely to the individual person as the owner in the process of medical transplantation. That attitude is confirmed in body art movements. All this is a sign of the legal-semiotic complexity in the educational situation itself.

2.1.2 Legal Meaning, Legal Training Does legal meaning exist without faces entangled in face-to-face relations, one asks, and how do law and legal procedure cope with the wildly varied engendering of facial expressions and meanings? Such questions are not only a training issue in its own right, but also a foundational topic for semiotics in legal education. Legal training focuses on how legal meanings reveal the structures of their engenderment: meanings are historic in essence; they grow and never exist in pre-fixed, independent and autonomous forms. It is our experience that semiotic sensibility grows during intense lectures and seminar conversations about signs and signification in legal discourse,

2  Faces Face to Face

23

consequently about being a lawman as privileged signifier. That growth is an essential element of instruction, training, and education as it is embodied in the purposes of our law schools. It is important in what framework this sensibility is embedded. Jeremy Paul argued 1990 in his well-known essay The Politics of Legal Semiotics (Paul 1990, p. 1779) how … despite the fancy label, legal semiotics holds significant potential for bringing together people of diverse training and background in ways that will foster a true sense of intellectual community.

In addition he observed that … legal semiotics can help challenge traditional notions of meritocracy, notions that in my judgment form the most sincere and powerful response to the brand of progressive politics, so that “the importance of legal semiotics becomes apparent” …The classroom challenge is to convey to the student some sense of connection between legal decision making and political ideology that escapes the trap of trying to explain one in terms of the other.

These remarks present political implications as the main form of the “more” in Llewellyn’s sense. They do not yet cover the specific education situation, which could change experiential profiles of law students thanks to their confrontation with semiotics. Yet Paul focuses on the reflective dimensions of semiotics, which are linked with argumentative skills (Paul 1990): semiotics will be anti-conservative if only in its ability to create reflection. To deny this aspect of the legal semiotics project is to ignore the extent to which students may find their improved argumentative skills liberating and, in any event, will find the semiotics classroom exciting …

Paul thus understands the quality of legal argumentation as a property acquired during legal training. It remains undecided whether that property is a new attitude which students encounter when they gain insight in legal semiotics. Hence he focuses on teacher-student relations and their imminent political qualities in law school, not on the semiotic sensitivity explored, initiated, and practiced by students through understanding the semiotic approach or modus operandi in law. New semiotic sensitivity for legal discourse and its various components lightens the faces of students and teachers when they share professional thoughts and experiences. The subject, legal semiotics, is not only folded in spoken words, but is also present in perceptions of facial expressiveness. Without faces and their ever-changing meanings perceived, one could say, no law and no semiotics. Paul is right in suggesting that any emphasis on the significance of faces and their sign-function in society is never without political relevance. It is hardly necessary to refer to recent migrant problems in the European Union to confirm the important role of a human face in legal search and judgment, not to mention criminal laws, rehabilitation, or social work in general. Another example is a new Arizona immigration law, which became a major feature of US politics in April 2010. Citizen protests and human rights initiatives (all related to legal action initiated by the sole perception of faces) spread all over the US and created a new awareness of how law treats a human face. How can one justify a police identification control by perceiving facial characteristics only? Does this not lead to racial profiling; can we find any

24

J.M. Broekman

well-grounded legal justification for this activity? In July 29, 2010, The New York Times reported that judge Bolton put for that reason major passages of the project on hold: The law will still take effect Thursday, but without many of the provisions that angered opponents – including sections that required officers to check a person’s immigration status while enforcing other laws. The judge also put on hold a part of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places. U.S. District Judge Susan Bolton put those sections on hold until the courts resolve the issues. Opponents say the law will lead to racial profiling and is trumped by federal immigration law.

That law project understood a human face “on face value” and a human body as a natural datum. In doing so, law did not display any semiotic sensitivity about legal meanings and their social impact. One has thus to keep in mind why Kevelson (1996) underlined almost continuously that law (as a system of signs) demonstrates how semiotic awareness is exclusively a matter of (ever changing) human culture. She shared that attitude with Charles Sanders Peirce as she was meticulously reading his texts on signs and semiotics. She thus highlighted a central issue in Peirce’s philosophy: his ongoing analysis of a sign. This is an important semiotic lesson for lawyers: laws are signs in the context of a culture. Peirce contemplated how a human “state of mind” is never a state of “feeling, pure and simple”, because “whenever we are awake, something is present to the mind” and that presence itself is a matter of culture (Peirce 1894, p. 4). Culture and Face: Four facets in the intertwining of culture and face are omnipresent in our considerations: 1. Human faces are not a natural fact but should be understood as a cultural value, that is, as a matter of human culture in general. This observation relates to the depth and wealth of the philosophical and semiotic analyses of Charles Sanders Peirce. His approach reaches beyond any renewal of pragmatism in particular and reaches out to much wider philosophical themes than one finds in any philosophical “ism”. 2. A human face is in semiotic perspective a body part that shares its artifice-character with the other parts of the body. No human body exists completely beyond any form of human culture and its technical-cultural features. This observation leads away from the individual face to the plurality of faces, which constitutes a form of social life, a community, a communication, or humane life tout court. That idea has been an inspiration for many philosophers who focused the theme mostly without any semiotic notion or insight in the constitutive powers of legal discourse. 3. The artifice-character plays a key role in the semiotic and legal need for namegiving; faces appear to provoke as it were two names before any name can furthermore be given: the ‘other’ and: the ‘Other’. That is exemplarily told in Torah narrations: relations between human individuals are described on the basis of those two articulations: (a) What do they mean, how do they function, and (b) and what understanding of a psychological (a ‘self’) or a legal (a ‘subject’)

2  Faces Face to Face

25

reference do they initiate? Meaning making seems a form of self-realization in which the face plays a multiform role. 4. Faces are thus faces in an age of semiotics. That is a surprisingly new theme with particular relevance for legal semiotics. Faces show presuppositions at work in law as a social discourse, diminishing the role of interaction (the traditional social-sciences concept based on the Sender-Receiver model) and challenging our understanding of human relations in terms of “interactivity” (in particular being in a state of interactivity), a theme that profiles legal semiotics. All those issues relate to various aspects of the connections between law and faces in our occidental culture, and furthermore to the quality of communication in its own right, and the concept of Verständigung as its counterpart, which highlights faces as they are lived in our age of semiotic complexity.

2.2 Faces and Law Emphasis on faces, human and divine, increases when words are spoken rather then written. This is the more important where Law unfolds in oral communication. Faces in a speech situation lighten up in a decidedly different manner than faces that are reading. The difference between spoken and written word is relevant in semiotic perspective, whereas silent faces have a semiotic fascination in their own right. We learn about the relation between Face, Word, and Law from the Torah, which unveils the sacrum of what Peirce described in his days as Firstness. That particular state of mind, or attitude, provokes as it were by definition a change towards reassessment of positions and qualities of communication, so that Peirce once spoke about “the embryo of being” (Peirce 1903b, p. 269). When togetherness becomes apparent (in particular togetherness as a People), ‘being on speaking terms’ receives a new importance and requires new rules, even new Laws.

2.2.1 Written and Oral Law The Torah follows the episodes of the Golden Calf with a new and fascinating story. It marks the transition from written to oral lawgiving, from a Moses presenting God-given Laws when returning to his community to a Moses having listened to the Divine voice while making notes, which he brings with him upon his return. The immediate presence of a (speaking) face constitutes the difference between oraland written law. A “Tent of Meeting”, most probably the tent of Moses himself—a reference to the future Tabernacle, with a column of clouds above its roof when Moses is absent and in front of the entrance when he is inside—is mentioned as a predominant place to function as a sign of communication. That communication has explicitly faces (of Moses and God) and language (between them) as its two major

26

J.M. Broekman

components. The scene forms a primal image of the two. It is important to notice that face and words access, but not immediately fulfill communication. The entire narrative is about genesis, about engendering language and understanding, whereby talking awakens a desire to see faces and seeing faces a desire to talk: ‘… make your way known to me …’ Moses expressed. That is a truly religious experience: words are made flesh, as flesh creates words. The context at stake is desire. Read the story: Moses’ speaking to his God makes his tent no longer his own place but a public and symbolic dwelling at a distance to the camp of the people. The speech situation shows a new geography and a different psychic dynamic: desire is distance and proximity as well as unveiling and veiling as one: faces are shown and hidden, or forbidden to be seen; meanings are shown and concealed in interpretations, they heighten a blistering rapture. The scene in which a transition from written towards oral communication has to take place is full of cosmic symbols. Exodus 33 tells us an essential occurrence … at the entrance of his tent…YHWH would speak to Moses face-to-face, the way a man speaks to his fellow man…

and reports language on perception: you won’t be able to see my face, because a human will not see me and live…I’ll cover my hand over you until I’ve passed, and I’ll turn my hand away, and you’ll see my back, but my face won’t be seen.

The divine face makes itself a subject of veiling and unveiling and the hand that protects the observer a sign of divine language. There are three phases: (a) the desire to encounter YHWH, which expresses itself in (b) the desire to see His face, and (c) the latter as necessarily embedded in language. Language is the medium, the sign, the protection needed for communication with The Other. The ways of the hand remain unveiled; nobody will ever see the hand: we confront language as an object, and as such, the surface of communication will not tell us about the will and what more is behind it. That observation is valid for all types of human communication. An individual’s awareness of his or her position in language is profiled by unification and separateness, which are basic elements of interrelations. Linguistic expressiveness seems the only bridge between them.

2.2.2 Lightening Faces In her reflections on Exodus, Zornberg (2000, pp. 258, 444) characterizes the transition towards oral communication by means of the metaphor of light shining from faces. In doing so, the heightened meaning of faces becomes evident: The fire of idolatrous passion, of erotic desire for and repulsion from the object, has been subsumed into the more modest phenomenon of light. …In these narratives of origin, the light is explained by a motif of indirection: in the sparks, in the elusive central section of the tablets, in the vestiges of ink left over from the explicit text of the Torah … this most personal revelation, intuitive, at the very margins of language, glimmers out of Moses’ face.

2  Faces Face to Face

27

Indeed, essential for a human face is that it lights up in contexts of communication as a sign of expressiveness, or darkens as a sign of the opposite. The dynamics of veiling and unveiling seem fundamental for communication, even where it reaches beyond grammars of language, or will be understood as a “non-verbal” or even an “extra-linguistic” language pattern. Is the lightening face such a phenomenon? Essential for understanding the importance of the face in Zornberg’s analysis of the Torah narrative (Zornberg 2000) are at least the following points: 1. In his speaking with an uncovered face, Moses “acquires his central identity as teacher.” “The fire in his bones is transformed into the light in the face; and Moses allows his people … to see it, deliberately, as an aid in their learning process.” Do not forget how this focuses on a process of socializing! 2. When Moses speaks to his people, “only after he has finished speaking with them does he place a veil over his face. And, thereafter, this becomes a pattern: the shining face is characterized by language…” and, as we should add, language is definitively characterized by the shining face! 3. “…as with any teacher, the face is a potent learning aid. Expressive, ironic, intimating a hinterland of meaning, it is part of the teaching” so that the role of leader and speaker is in the indispensable offer to fully perceive the face. Learning means distancing oneself from subject-positions and acknowledging a face as an offer. 4. All this characterizes not only faces but language as well. Language, in particular in educational situations, unfolds because of the energy of radiating faces, which show the essence of human relations. That essence is in change, in transformations, in growth, in emergence, in translation, and transmission—the occurrences of the people when they have to orientate themselves towards oral lawgiving show the difficulties that go with such a new scale of experience. Not only the face of the teacher but also and in an equivalent manner the face of the student, who also belongs to a people and is nowadays called a citizen, is important. The student/citizen receives, as the Torah narrative underlines, light from the face of the teacher. He opens himself up to the wisdom of the teacher or leader, and in doing so, “receives his face”. One should again be challenged to meditate the difference between the structures of communication expressed in each turn of Torah phrases and contrast them with our traditional Speaker-Hearer or Sender-Receiver model. Central focus is, as we underlined many times, on the rich meaning of the face. One should consider the question, whether faces in today’s Western democratic hemisphere are much different from those who are or were inspired by theocratic ideas. Should modern parliamentarians also show shining faces that teach citizens their basic social orientation and in doing so, guide them? The apparent challenge in the Torah narratives was in the difference between faces in- and beyond face-to-face relations, both divine and popular. Are these differences still important and are faces in face-to-face relations for us different from faces beyond those relations? This relates to the question how law treats our face. In other words: does legal discourse solely perceive our face when it is alone (like a passport must show one face) or does it perceive our face in social context, expressed in the presence and perception of

28

J.M. Broekman

other faces (as is forbidden to show on any identity-document anywhere)? Our legal identity, we are told, should not be based upon a portrait in social relations! That shows particular meanings of a face in a social context designed by the rule of law. It limits legal judgment pertaining to a personal identity in law.

2.2.3 Faces Among Faces Such considerations are rather aspects of a more general issue: how to understand the meaning of a human face among other human faces in an age of semiotics. All research seems embedded in a culture characterized by semiotics and its approach to meaning. Hegel (1931/1967) gave this quest in 1806/07 an almost cosmic dimension when he focused on “the innermost center of nature” for which he had two metaphors: that center was “the night”, and “the pure self”. Again, not unlike the Torah narration, we notice a tension between veiling and unveiling in which the night is the veil and the self the unveiling of meaning. The face is essential in that regard, because “one catches sight of this night when one looks into the eyes of a human being”: a move that is relevant because “the sight” is more than pure perception, and relates to “the world” or even the cosmos. Night, nature, self, face and world are sliding panels to express the human being in a state of signifying: The human being is this night, … the night, the innermost center of nature, which exists here – pure self. One catches sight of this night when one looks into the eyes of a human being – into a night, which becomes frightening; because one encounters the night of the world. (Hegel 1931/1967)

The bond between individual and world would thus include a reference to the cradle of a self: the emergence of a face. Interaction has—despite its suggestion of dynamism—a static character. Its inherent sender-receiver scheme determines the idea of interaction and qualifies it as “action between (inter) actors”. Umberto Eco demonstrated 1979 in his analysis of the role of the reader (Eco 1979), how this idea does not fit our experience that each action in life focusing others (the face is essential here) is rather the unfolding of a new vision and interpretation of life! Precisely that awareness, which is face, seems folded in the concept of interactivity. The process of “being in a state of interactivity” changes the quality and substance of all what is meant by “interaction”, so that the two expressions (interaction and interactivity) are not interchangeable. Emphasis on interactivity characterizes all sorts of semiotic approaches in contrast to interaction. Interactivity pertains to social reality, not in the least because most of our social activities are folded in modes of activity: first of all the establishment of relations with sub-/objects, and further pertaining to the perceiver(s) of it all. Changes and variations in the process of activity lead away from traditional models of communication. One has to accept that “creating meaning” is a multifaceted process built upon the acceptance of indeterminacy and the refutation of invariant narratives or fixed codes. Faces tell lawyers that story!

2  Faces Face to Face

29

2.3 Verständigung Our fascination intensifies when we consider once more the importance of the face in the Torah stories focusing on oral lawgiving. Faces indicate how the everyday social sciences concept of communication will not suffice to fully appreciate and understand togetherness—an essential riddle in law and society. A deeper insight remains desirable. Verständigung is the keyword here, as this German expression describes appropriately what happens in a state we called interactivity. It has most commonly been translated into English as communication and became in that form a profiled issue in the last decades of the twentieth century social philosophy of the Anglo-Saxon world. But there is a clear development from age-old insights in the relations between oral lawgiving, faces, language, and togetherness to the contemporary basics of social philosophy, expressed as Verständigung. The desire described in the Torah’s account of oral lawgiving is existentially important. Yes, we have heard it also in our days in expressions such as: “we want to see”; “we want to see our King”; “we want to see our Great Leader”—we want to see. The desire to see God includes the desire to see Him and to hear Him. Faces are the only organs with the physiological capacity to perform socially, and the Divine Face seems to accept and embody these limitations. Faces have eyes: no other body parts have. Faces have ears, no other body parts have. The Divine promise that the people will hear Him must interrelate with the security that He will be before the eyes of the people. Our modern television appearances meet that same desire, only in a technically changed form. The conditions of the ritual of such an appearance are severe but they can be fulfilled, and communication will thus be transcended in orally transmitted Laws, as Exodus 20 reported. The words of these Laws have a remarkable formal similarity with comparable documents of other ancient Near Eastern countries, so their sole uniqueness is that they are facially ordained—words heard and seen thanks to the transition from written to oral laws (Friedmann 2001, p. 234). The uniqueness is thus the face, and in particular the fact that a (human and divine) face is not a face separated from face-to-face relations, no matter how those are ritually embedded in strong rules, injunctions and prohibitions.

2.3.1 Verständigung vs. Communication As was said before, the German expression Verständigung embraces that semiotic sensitivity of faces in face-to-face situations in a different manner than the AngloSaxon communication concept. It is philosophically important to notice how the distinction between communication and Verständigung involves a change of perspective on philosophical grounds. Heidegger inserted a remark in his Nietzschelectures at Freiburg University in 1939 (Heidegger 1961) that leads to Verständigung instead of communication. Habermas (Habermas 1988) noticed in his theory of communication (which he mainly conceived in the seventies and later decades of

30

J.M. Broekman

the twentieth century) how, as Heidegger wrote, a human being is always in relation with other human beings and with things. Any self-understanding of a human being as an individual is therefore embedded in and the result of relationships, and never the sole outcome of a power that constitutes a self on its own (Habermas 1985). However, in this context there is a tension between a written word that will be interpreted and discussed as text, and a spoken word that creates a people. Habermas refers at this point to Levinas who formulated how the Torah, the Law, Scripture, God, is even more important than He. Levinas and Derrida thus “forsake God but perpetuate a Torah, Scripture or Law in their own displaced and ambivalent way”, Habermas concludes (Habermas 1985, p. 218). Derrida’s 1967 Speech and Phenomena (Derrida 1973, Ch. 1) distances itself from formulations of Husserl, which read like Peirce: “Every sign is a sign for a something”—because the problem is elsewhere, namely in the differences of meaning to be expressed and grounded in a seeming certainty about that something. In his 1967 essay on Levinas, Derrida focuses the Divine Face as a unique something: the Divine Face, which veils itself and issues Orders, gives Laws and thus is less and infinitely more Face than faces. He quotes E. Jabès’ Le Livre des Questions, 1988, about the Divine Face All Faces are His; for that reason HE has no face.

That sentence challenges us to think faces beyond a self—in other words: to develop a thought-pattern on inter-subjectivity beyond the uses of identity. That is, of course, a challenge for each semiotic endeavor. Such a challenge is not feasible in the context of communication, where two entities (often in the guise of a self) are needed: a sender and a receiver, a speaker and a hearer, an ego and an alter. One concludes, how in contrast to communication, semiotics embraces experiences beyond the conceptualization of a self. Semiotics thus confirms how faces in Verständigung shine—their shining has a meaning, which is closely related to being in a state of interactivity. To posses meaning beyond an identity in the form of a self includes also a different experience, in particular pertaining to the constitution of inter-subjectivity.

2.3.2 Faces as a Learning Aid A sign lightens up as an index of reality. Faces are such semiotic devices; human individuals have no face in terms of possession of one and the same facial identity, but they show a face that becomes denominated as ‘their’ face by others in all everchanging circumstances. The showing is their constitution of meaning and their face (the individual determination in the possessive mode) is the place of social and cultural embedding. Both are necessary conditions that ground human life. “…as with any teacher, the face is a potent learning aid”, writes Zornberg (2000, p. 258). That learning aid is the aid of the face as a sign. It is part of any teaching, so that the role of the teacher is first and foremost in the indispensable offer to fully perceive his or

2  Faces Face to Face

31

her face. Learning means distancing from subject-positions and acknowledging a face as an offer. The absence of the Face of God, initiated by Him and safeguarded by His Hand, is the primal image of such an offer—although it seems as if it is the opposite of a truly pedagogic relation and its semiotics. So, one must formulate differently: that absence has to be absented to make a facial light shine in any educational relation. This confirms the fact that nobody is ever educated purely and simply as an individual on its own and in its own right. The absence mentioned here finds its form in the fact that all humans are educated along linguistic patterns (which can vary enormously) and their inherent speech habits, according to norms and values cherished by a group, a profession, a subculture, ultimately by a culture in general. A lawyer’s education is no exception here. Patterns of law and legal thinking are unfolded before the eyes of law students. They do not go through an exclusively individual experience but are confronted with specific meanings of a group, a people, a fragment of culture. Reality as offered to them is from the very beginning a shared reality, a spiritual modality, a self-to-be. Reality in legal education and training is thus essentially historic from the moment of the students understand what is taught to them. All this clearly transcends the fixed ‘teacher-student’ model, which would be based on the ‘speaker-hearer’ or ‘sender-receiver’ model in linguistics and communication theory. Teachers and students alike should first and foremost learn and internalize how to transcend those models, which became so dominant in social theories. Semiotics in legal training starts at this point of departure. It is in this perspective that we quoted Heidegger who underlined how Verständigung as a foundation for human relations differs from any incidental consensual feature (Heidegger 1961).

2.3.3 Identity That is a substantial observation, since Verständigung includes agreement about the same, about dasselbe. That same evokes the idea of identity. Identity seems the basis for Verständigung in semiotic perspective on human relations, because Verständigung is always already agreeing about something being the same. The deeper sense of communication is in this perspective founded in a reference point beyond diversity and difference where all subjects agree upon the sameness of a something. An individual self will thus not be recognized anymore as the creator of the common but as an element of the process of commonness itself. Heidegger thus concludes, that Verständigung represents the historic character of man, and the essence of human reason as based on the sameness of the same. His statement refers to Nietzsche who ventured in a truly semiotic mode that … the development of human reason is an arrangement, the poetic profiling of similarity, of sameness – the same process that reigns each impression of the senses …

However, the “poetic profiling of sameness” is a philosophical and semiotic problem in itself! It would, on the one hand, imply that the entire historical development

32

J.M. Broekman

of humanity is ultimately a semiotic issue: the construction of meaning inspired by the human mind’s poetic profiling of reality. But it would furthermore imply a total emphasis on sameness or identity. The latter is truly a challenge for any semiotic endeavor. Habermas (Friedmann 2001, p. 119) shows the consequences of that viewpoint in his 1988 publication where he writes how human communication unfolds as a mutual Verständigung of identities resulting from an inner rapprochement that occurs beyond coercion. “Unscathed inter-subjectivity”, he suggests, “would reveal symmetric relations between free and mutually recognized individuals”—a dream of democracy in a technological era, one could say. But is it realistic in a semiotic sense? By no means: the answer is in the presupposition that carries the weight of all observations and dreams—the sameness or the character of identity. Could the Ancient Greek still generate an identity through performances of the tragedy (including their uses of personae and masks)? Today’s lack of such commonness shows the deficiency of any attempt to create sameness in a world of diversity. That has far-reaching semiotic consequences, as faces tell us. To understand the complexity of the issue, we have to go back to Peirce’s understanding of semiosis and in particular his definition of a sign. That definition belongs to the most quoted passages of his oeuvre. His 1907 essay on Pragmatism (Peirce 1907, p. 410) states famously: I am now prepared to risk an attempt at defining a sign … I will say that a sign is anything of whatsoever mode of being, which mediates between an object and an interpretant, since it is both determined by the object relatively to the interpretant, and determines the interpretant in reference to the object, in such wise as to cause the interpretant to be determined by the object through the mediation of this ‘sign’.

A sign is therefore not determined by communication between an utterer and an interpreter (that would repeat the speaker-hearer model) but by the fact that a sign creates an interpretant in view of its own determination by the object. The opening up of the in se closed speaker-hearer model is an important event, which has fascinated many readers of Peirce’s texts. A sign creates its own interpretant—that is the key issue when Peirce understood semiosis as a process of continuous and infinite creation, not restricted by any fixating notion of sameness or identity. Each sign must create its own interpretant and that creates the indefinite, infinite, and openended character of the semiotic process. Semiosis does not stop once the sign has determined an interpretant. Only under the condition that the determination is infinite and each phase is created newly again, is the sign a sign in a proper sense. This is one of Peirce’s crucial insights pertaining to the openness of the semiosis. Umberto Eco has coined the expression “unlimited semiosis” for this openness in Peirce’s approach—a description playing an important role in analyzing communication as well as the idea of the self in the world of Peircean concepts (Broekman 1979, p. 195; Bergman 2009, p. 166; Colapietro 1988). We must once more conclude that accepting the foundational function of common as sameness and identity (as Heidegger and Habermas suggested) is against the true character of a semiotic understanding of meaning, because it closes its openness and limits its unlimited features. If communication could perhaps be correctly founded on the striving for sameness and the creation of identity, Verständigung definitely

2  Faces Face to Face

33

cannot. Emphasis is again on faces: plural and ever-changing features of faces in face-to-face relations deny uniformity that can be understood as the constancy of sameness. No face is ever the same, and no face ever expresses sameness! Facial variety and dynamics surprise, even when we search for constant and common traits as legally conceived passports exemplify.

2.4 Culture The expression “Semiotics of Culture” entails all elements of a pleonasm, one could argue. Culture determines all considerations about signs, in particular when it becomes clear how each sign needs an interpretant. That particular theme of Peirce’s 1903 Harvard Lectures and of his later texts on Pragmatism (Peirce 1958) around 1906/07 suggested how signs mostly function each between two minds, or theatres of consciousness, of which the one is the agent that utters the sign (whether acoustically, optically, or otherwise), while the other is the patient mind that interprets the sign.

These formulations should by no means lead to maintain a speaker-hearer model and understand this model as the foundation for semiotics—it would immediately annihilate the meaning and sense of a human face. Peirce shows how a sign is an actual moment of an ongoing engenderment and an evolving chain of meaning(s) of social relations. Do not forget: sign-activity is human activity in its many cultural manifestations. Each sign has its proper pre-history and needs a presence after it has manifested itself, as one concludes from the his notes pertaining to (a) the pre-history: …before a sign could be uttered, it had already to be present in a human consciousness. So the thought is itself a sign and should itself find an utterer in the ego of a previous moment.

and to (b) the posterior life of a sign: after a sign has been interpreted for a first time, … it will remain in the consciousness of its interpreter, where it will also be a sign—and, as a sign should, have in its turn an interpreter, and so on.

2.4.1 Face, Communication Peirce focuses on plural dependency: speakers, voices, and interpreters change position in their communication in parallel with the emerging chain of signs that creates meaning. This makes clear how (a) communication between human individuals depends on sign-activity and (b) how that communication modifies itself along within the described chain history of sign-appearances. A consequence is, that signs (even without an actual interpretant) are never beyond the scope of human

34

J.M. Broekman

consciousness tout court. Faces and facial expressions witness the performances played at what Peirce called the “theatre of consciousness”(Peirce 1907, p. 403). The unfolding of that play can mainly be observed via facial activities that often but never completely find their zenith in linguistic expressions. Faces thus complete and perfect linguistic utterances of the agent; they combine, integrate, and relate to acoustic, optical, and other components stipulated as its theatrical ‘make-up’. As a consequence, signs convey human intelligence despite the overwhelming complexity of the sign-concept as conceived by Peirce (1907, 401 f.), an intelligence that, considering its spirit and pictorial effect, cannot otherwise be conveyed.

This conveyance again fortifies the cultural foundations of semiotics for which Peirce gave many examples. It is for instance concentrated in the observation, that a sign can be understood as a medium for communication: …it is necessary that there should be two, if not three, quasi-minds, meaning things capable of varied determination as to the forms communicated. As a medium, a sign is essentially a triadic relation…that which is communicated from the Object through the Sign to the Interpretant is a Form…is a power, is the fact that something would happen under certain conditions…the conditional relation which constitutes the form is true of the Form as it is in the Object. In the Sign it is embodied only in a representative sense, meaning that … the Sign becomes endowed with the power of communicating it to an interpretant.

This implies a mediating role of the face and its expressions in as far as Peirce describes here the complexity of communication in more than one step. The sign as determined by the object, determines the interpretant. A form is communicated among them, but that is not the communication we imagine in our daily language, it is rather a first step in the direction of that effect. The form must furthermore be embodied, and in this second part of the communication, faces play their semiotic role. They thus play a role in the constitution of a semiotic relation—the embodiment of form in expression—as well as in the final play at the theatre of consciousness, which we as outside spectators call ‘communication’. Communicative activity is thus inherent in the semiotic concept of a sign. Peirce (1907, p. 411) thus refutes the idea of classical philosophers that there exists always a realm of objects that affects the human mind as it were from outside the mind. There are differences in the nature of an object and that of an interpretant, as caused by the object through the mediation of this ‘sign’. The object and the interpretant are a sign is anything, of whatsoever mode of being, which mediates between an object and an interpretant; since it is both determined by the object relatively to the interpretant, and determines the interpretant in reference to the object, in such wise as to cause the interpretant to be determined thus the two correlates of the sign, the one being antecedent, the other consequent of the sign.

Communication among and by speakers and interpreters seems not to be restricted to spoken language but involves all types of signs and human culture. Although writers in ancient Greek culture were thoughtful semioticians, the scale of their semiotic interest and awareness was in an exemplary manner much wider than spoken language. Peirce’s keyword is the expression “all types of signs”. That category

2  Faces Face to Face

35

is for him too large to articulate, as a passage from his Pragmatism manuscript shows (Peirce 1907, p. 403): Now how would you define a sign, Reader? I do not ask how the word is ordinarily used. I want such a definition as a zoologist would give of a fish, or a chemist of a fatty body, or of an aromatic body, – an analysis of the essential nature of a sign, if the word is to be used as applicable to everything which the most general science of semeiotic must regard as its business to study.

Reaching from quality to pattern, from possibility to event, from truth or fiction to thing, from a tone or any action to concrete examples of them all (in particular the facial expressiveness), the variety can never become exhausted because a semiotic awareness depends always on its function between ‘theaters of consciousness’, a field that sustains every possible form of human culture. No further explanation is needed how the human body belongs to this expanded area of semiotic interest. Yes, the human body plays a major role, and a human face, accompanied by gestures, images and related phenomena is its key. All these signs, gestures, aspects of the body, etc. unveil the deep meaning of human communication, which is the backbone of human culture, reaching oftentimes even deeper than organic life. Humans know that unique depth of communication via their faces, so that one can venture the idea that a human face forms the heart of each semiotic enterprise. The two body metaphors—face and heart—fortify this semiotic vision on human reality.

2.4.2 The Body as Artifice The semiotic project transcends the idea of the human body as a natural fact and focuses the body as non-natural, as an artifice. This is in our era no longer a revolutionary insight. We contemplate such facts amid citizens who live with implants or artificial body parts. They live with a new hip, knee, cardiac valve or a diabetic pump; they consult their laptops as if those were artificial brains enhancing their intelligence. Features of the cyborg are everywhere: “The cyborg is a potent cultural icon of the late twentieth century. … The line between biological self and technological world was, in fact, never very firm … new technologies merely dramatize our oldest puzzles …” Clark writes (2003, p. 5). There is no way to suggest that semiotics can exclusively deal with natural issues or decide between nature and culture. The relevance of semiotics is in its cultural assessment. Lévi Strauss reported to have met a tribe where all members had painted their faces to signalize that they were different from their natural environment, plants and animals included. And those faces were painted with geometrical figures, which do not appear in nature and do not belong to any natural habitat. A face expressed here in two ways its artificiality to show its human essence. Lawyers who tend to underline that ‘being human is bearing rights’ should remember this. Legal semiotics shows them the strong tie between the meaning-creation of the painted face and the picture of a citizen who proudly bears rights and obligations.

36

J.M. Broekman

That is an example for every semiotically relevant relationship among humans. We could say that law accompanies semiotics in its endeavor to explore the cultural structures of social life. Painted faces do not only symbolize the human character of the face, nor do they solely underline the artificial, manmade character of the facial appearance. Those painted faces play an important role among the humans as social beings. Geometric figures represent a social order among human individuals, an order based upon the need to create a firm distinction between themselves and the world around them! A basic semiotic component of that distinction is in the differentiation between the observable and the understandable. Already Plato was fascinated by the question why we can only partially understand what we observe and hold for reality. This is not exclusively a matter of understanding the world around us, but also of perceiving and understanding other human beings. A critical point in keeping a relationship intact is in the words “I don’t understand you anymore”. The tension between what I observe and what I understand is essential here and everywhere present in life. Any face-to-face relationship is based upon a regulative discourse that is encapsulated in life—a fact that differs decidedly from faces opening up to solely ethical dimensions, as Levinas observed (Levinas 1961). Of course, one may touch borderlines of that regulative discourse, but the discourse must always be honored to keep the social web intact.

2.4.3 Faces, Meaning All in all, one comes to the conclusion that faces are meaningful because they are constantly given a meaning, not because they have a meaning. That is important in all regards, in particular where the process of language acquisition is at stake. The understandable becomes understood and interpreted when the constitutive forces of signs are set free in an acquired linguistic competence. Faces as an artifact fulfill their role in this competence, which implies three philosophically important aspects: First is the mental component, which undoubtedly shapes and influences the effect of faces in life. Second is the fact that faces are not understandable and even not perceivable without an abstract dimension. This relates to the generalizing power of everyone who perceives a face, because the comprehension of a face needs forms of abstraction in order to try to understand the very essence of the facial features at hand. Third is the existential dimension, which is embedded in the fact that faces always need to be interpreted. An encounter with a “blank face” does not form an exception in this regard. If ever faces are meaningful, than the bearer of that face is not the only one that creates meaning! The meaning of a face includes the result of an interpretation of the O/other who participates in that encounter. There exists no natural and solipsistic expressive autonomy. Faces relate to the bearer as well the observer who is at the same time interpreter—both activities determine the sign quality of the face in a process of interactivity

2  Faces Face to Face

37

(Broekman et al. 2008, 25 ff.). Each particular property of a face forms a series, or a set of series, that possess a more general character in social life. Pure presence (Peirce speaks of ‘presentness’) is left behind in that process of articulation, and the idea relates to more abstract categories that one finds concretely in individual images and symbols. The power of articulation is one of the most fascinating properties of a human face. Changing faces are thus varying and differing articulations—and that is what makes them human!

2.5 Thirdness as Artifice All this also constitutes what Peirce called Thirdness as one of the foundations for what we called the artifice. This idea parallels the phenomenology of Levinas, which forms a foundation for the majority of face-to-face relations (Levinas 1961, p. 52). Signs and symbols are for interpretation; whatever is interpreted must have properties of the symbolic—otherwise there could not be interpretation at all. Symbols are thus a genuine Thirdness because of their innermost relationship with interpretation. Hence (Peirce 1903b, pp. 269–271) it is better worthwhile to remark upon the conception of Life, that Thirdness essentially involves the production of effects in the world of existence (…) for it can be said, without dispute, that no sign ever acts as such without producing a(n) (… ) interpretant sign.

In his additional lecture at Harvard on May 14, 1903 (Peirce 1907, p. 240), Peirce offers a deeper variant of Thirdness with an also deeper view on Pragmatism in explaining how ‘any flight of imagination pertaining to possible practical effects’ will be allowed, if ‘conceptions’ are equivalent to conceptions of ‘conceivable practical effects’. This completes the maxim of Pragmatism. The reasoning involved enriches the semiotic project considerably. Thirdness is not reducible to Secondness and Firstness, he says: But even if so much be granted, three attitudes may betaken: first, that Thirdness, though an element of the mental phenomenon, ought not to be admitted into a theory of the real, because it is not experimentally verifiable; second, that Thirdness is experimentally verifiable; third, that it is directly perceived, from which the other cotary1 propositions can hardly be separated.

This really third of all three outlined positions shows in particular to the logician that it is in action itself where logical energy returns to the uncontrolled and uncritical parts of the mind. Peirce concludes his Harvard lectures with the maxim of a philosopher in that particular situation of return. He shapes a sentence with legal metaphors, which could be an adage for everyone who tries to understand the semiotic dimensions of a “human face-in-interactivity” (Peirce 1907, p. 241): The elements of every concept enter into logical thought at the gate of perception and make their exit at the gate of purposive action; and whatever cannot show its passports at both those two gates is to be arrested as unauthorized by reason. “Cotary” is derived form Horace: “ergo fungar vice cotis”, “I will thus perform the function of a whetstone”, so that the sharpest conclusion can be drawn on Pragmatism.

1 

38

J.M. Broekman

The artifice-character, which is reinforced by interactivity that in its turn leads away from logic and re-turns to the dynamics of a human mind, plays a key role in the semiotic and legal need for name-giving; faces face two names before any legally relevant name can be given; those names are: the other, and: the Other. Levinas has concluded the same when he explored his phenomenological dynamics and returned to the Torah narratives. Named relations between human individuals are grounded in their turn in those two articulations for which we use the abstract form before the ordinary language takes over: the other and The Other. What do they mean, how do they function, and what understanding of a psychological (a ‘self’) or a legal (a ‘subject’) reference do they initiate? Meaning making seems a form of self-realization in which the face plays a major role. All this leads to focus artistic or artifice- moves with faces functioning in public. Some concrete examples are given.

2.5.1 Tilda Swinton The face of Tilda Swinton, actress in the film Michael Clayton who was honored during an Oscar ceremony as best supporting actress, did not show the usual make-up at that ceremony. Alex Kuczynski describes the situation (Kuczynski 2008, p. 88): At the Oscar ceremony, she appeared brazenly pasty, unstained by rouge and bronzer, a white waif in an ocean of spray-tanned limbs and bobbing plastic torsos. Her asymmetrical dress exposed an ivory arm. The virginity of her unpainted flesh made everyone around her look like a crowd of aging, insecure hookers. I admired her for going without a double check of fake eyelashes, for braving the television lights without a whisper of powder of blush—for being what passes for naked in Hollywood in front of millions, if not billions, of people. On television, she looked like a fabulous alien. In person, people must have stopped and stared. Don’t you think the other actresses must have gossiped to one another in the bathroom?

The situation is filled with semiotic relevance. Tilda understood and treated her face as a sign and not a natural datum. She tried to solve that contrast by destructing the make-up sign through abolishing the makeup entirely at the occasion of a star event, which implies a different role and image, breaking the code by appearing ‘nude’. Also important is her transformation from sign to symbol in referring to the entire act of make-up as another appearance—the traditional Pierrot or Harlequin and their snappy outfits and faces, the mimics of beauty, which were less standardized than the Hollywood make-ups. In doing so, also the symbols at the background of it all were in disorder. A most visible issue is, that semiotic considerations touch an entire life pattern, a social and moral network of an individual’s life. Kuczynski understood this and reported that Tilda mocked (Kuczynski 2008, p. 90): We were messing around with the makeup, and this is basically what I did” she said in an interview from Seville, Spain, … With her lashes drooping, eyebrows scrawled on as if by a reckless but deviously accurate child an mouth smeared and unsmiling, she is Pierrot, the heartbroken clown of Italian commedia dell’arte, the cuckold dressed in a white, loose

2  Faces Face to Face

39

tunic, his mouth a gash of red. In each telling of the story, he pines for but loses his great love … Crayons and unguents dare to mimic real beauty; here she mocks them. They are clearly painted, an overlay, a spackle that disfigures her real face. Any woman who has used makeup can look at this photo and imagine the actual shades in the service of beauty, and realize, with a shudder, that there is nothing more yearning and sinister than a woman’s face covered in carefully applied paint, mascara and shadow. … Swinton was describing the clown as one of the unconsciously embedded ur-images in every actor’s quiver.

Tilda was playing with the transitions from sign to symbol to create a provocative disorder by means of a purposefully designed confrontational situation. In other words, she practiced Peirce’s 1894 remark (Peirce 1894, p. 10): Symbols grow. They come into being by development out of other signs, particularly from likeness or from mixed signs partaking of the nature of likeness and symbols. We think only in signs…. Omne symbolum de symbolo. A symbol, once in being, spreads among the peoples. In use and in experience, its meaning grows. … The symbol may, with Emerson’s sphinx, say to man: ‘Of thine eye I am eyebeam’.

Tilda’s practice shows at least two dimensions, which were articulated in this view of Peirce about sign and symbol. First, there is a forceful creative energy entailed in her decision to withdraw from any makeup shows. Second, her motivation is that each appearance in public is a challenge to change attitude. In both actions is a face’s artificial character—a general conclusion beyond the elements of her individual behavior. So we conclude: the face’s artificial character is a major issue in semiotics, because there is not one particular individual face or facial expressiveness at stake, but the function of a human body in its entirety as a semiotic issue of paramount importance. This conclusion shows how signs in legal discourse are just a component of more general social practices. What happens to constituent signs when they become revolutionized? (Broekman 2007, p. 235) Tilda’s facial nakedness did not stand alone, but was part of an openly charged criticism pertaining to the relation between body and clothing as expressed in the slogan how to wear your cloth as a skin. And, as the world of sports and fashion could conclude very soon, that difference between cloth and skin is very thin indeed! What if we agree that our clothing is nothing but another skin, an artificial covering for what we are born with? On the 2010 Australian Open tennis court, Venus Williams took the consideration to its public practice by creating and wearing a dress that suggested she was playing the game in and with a faux nudity. It was just an extrapolation of Tilda’s facial nakedness. The magic of the trompe l’oeil creates fundamentally semiotic questions! And the nakedness is not incidental. In the 2010 film I Am Love by the Italian producer Luca Guadagnino and starring the same Tilda Swinton, she plays a role that incorporates a tragic denouement between stable patriarchal family life, with all the weight of history and family structures, and the power of frailness inherent to an existentially unbound personality. Luca recently said about Tilda and her role in his film: “This woman has the strength to go against everything, I like the idea of watching the destruction of a monolithic bourgeoisie that seems indestructible”. Indeed, Tilda’s facial nakedness was really not a stand-alone!

40

J.M. Broekman

2.5.2 Orlan When a man is surprised he knows that he is surprised. Now comes a dilemma. Does he know he is surprised by direct perception or by inference? … Now, as I said before, it is idle and indeed really impossible to criticize perceptual facts as false. You can only criticize interpretations of them. …Nothing remains but to accept it as experience (Peirce 1907, p. 194).

Neither Tilda nor Orlan would have embraced Peirce’s philosophical conclusion. A human face, they would have said, is a perceptual fact and in order to change interpretations of our faces, we want to change those faces. This breaches the immediate semiotic relation between face and interpretation. Sufist or Hebrew views see in the human face the proof of God’s beauty, since Adam was created to His form. So the two ladies rebelled against the Power of the Creator. Tilda would smile that objection away, whereas Orlan, the French performance artist of our post-modern age, would fully accept and even reinforce that act of rebellion, and tell us how this is the foundation for her art. “Art”, she said, “is a dirty job, but someone has to do it” (Akman 2006, p. 2). She could have added with Nietzschean expressiveness, how man is the animal that strives for a perfect self-interpretation. The creation of a human self requires, in other words, an utmost technical perfection. Tilda’s internationally acclaimed performance art deletes the traditional concept of clean and beautiful operations based on truthful semiotic correlations between reality and interpretation. On the contrary, she transforms her body during publicly accessible operations on herself, or at least parts of her body, in a gesture to enact a most radical critique of our Western concept of body/beauty. The idea of an individual identity and its right to privacy in dealing with the proper body is vehemently attacked in her performances. The latter take place in public areas and enroll, like life itself, in a ‘theater of exploration’ which is in the cases of her performances also a ‘theater of operation’ (in the medical sense of the word). The theater is not a passive scene—on the contrary, its performance pertains to a new feminist utopia. It did not happen before that this utopia, built on the female body, appeared as a forceful public semiotic challenge. From sign to symbol and from symbol to another body and its interactivity: to the icon that is no longer exclusively the socially standardized female body but the one that Hobbes called the ‘body politic’. Akman (2006) describes how Orlan focuses from the very beginning of her performances the human body in general and especially her own female body, as an outstanding social representation: Orlan’s decision to turn surgery into art followed an operation for an extra uterine pregnancy under a local anesthetic where she played both roles of observer and patient. Her present operation/performances are directed by the artist and involve music, poetry and dance. Videos of the surgeries are for sale in the art market as are samples of her flesh and blood drained off during the “body sculpting” process. In the “theatre of operation” members of an audience may also play a role as interactive participants. The role of the audience is an uneasy one as the surgeons insert needles into Orlan’s skin, slice open her lips, or may sever an ear from the rest of her face while Orlan remains silent. Importantly, what Orlan is doing and what may make the audience so uneasy, is her effort to embody the objectification of the so-called “subject” in a very real way…

2  Faces Face to Face

41

There is no doubt that Orlan’s performances play as radically as possible with the female identity (and with identity in general) as a basic semiotic option in modern society. To show how faces are an artifice and are managed by their bearers is one of the objectives of her activities. Since she performs in public and sells DVDs and printed manifestos, one could venture the thesis that her work is a text like a political pamphlet. She creates her appearance in concordance with texts to proclaim what her appearances and style underline. The semiotic relevance of the artificiality of the face being an index for the body becoming a discursive appearance is evident. Here again, one should conclude how the expression “semiotics of culture” threatens to become pleonastic: the body shows via its discursive features a remarkable equivalence of body and signs, symbols and meanings.

2.5.3 Kathleen Bogart Kathleen was featured in The New York Times, April 2010, as a social worker dealing with Hurricane refugees 5 years earlier. In her work, her conversations showed the sympathy, commitment, and other emotional aspects that were expected from her, but her face did not participate, so that what she said was often neither respected or trusted. Our common facial expressiveness underlines thoughts, words and deeds and makes them have an interpersonal value. Kathleen displayed the Moebius syndrome, a congenital condition that causes facial paralysis. Her case confirms what has been concluded hitherto about the human face, its expressiveness as well as its crucial role in culture and social life. I wasn’t able to return it. I tried to do so with words and tone of voice, but it was no use. Stripped of the facial expression, the emotion just dies there, unshared. It just dies.

This observation is very precious for semiotics. Its power to integrate social relations within a cultural pattern appears to be limited by bodily and psychological functions, whereas on the other side—revisit Orlan—those functions are challenged in order to be appreciated as artifices and technically manageable. The borderline between the two situations is interesting. When are signs, transmitted by a human face, effective? Facial mimicry seems to be central in social exchanges, and the responses in such exchange situations are often not a total duplication of the faces of others: the variations make not only the difference, but after all the meaning itself. The Moebius syndrome is not about identifying emotions, but about incapacity to share emotions and letting know in an extra-verbal manner one’s commitment by means of facial expressiveness. The latter domain, the non-verbal, seems crucial. It is also the field where training and learning behaviors like laughing, torso shakes and the like, can become effective in cases such as Kathleen’s. It fascinates philosophically, that this training leads again to the borderline between the natural and the artificial. Transgressing that line will never take place as long as the lines or energies of the natural are followed as the sole position to be taken. In other

42

J.M. Broekman

words, the power of the artifice must be recognized in all dimensions of human life: a lesson learnt by means of semiotics.

2.5.4 Isabelle Dinoire The case of Isabelle Dinoire is the perhaps most radical in our sequence of female facial changes and their semiotic implications. In her case there is no doubt whatsoever about the idea that a human face is an artifice. She received international attention through the medical surgery she had to undergo, which was published as the first case of “facial transplant”. The surgery was a medical necessity and her life history was complicated and sad. Some report that her black Labrador was trying to wake Dinoire after she took sleeping pills. The hospital denied she wanted to commit suicide and in 2006, Dinoire declared: after a very upsetting week, with many personal problems, I took some pills to forget … I fainted and fell on the ground, hitting a piece of furniture.

The dog, finding she wouldn’t wake up, got more and more frantic, and began scratching and clawing her. Isabelle’s family is sure that the dog mutilated her accidentally. This world’s first face transplant on a living human was carried out in France on November 27, 2005. A triangle of face tissue, which included the nose and mouth was taken from a brain-dead female donor and grafted onto the patient. Scientists performed scalp and ear transplants in another hospital. The claim is the first for a mouth and nose transplant, which are apparently the most difficult parts of the face to transplant. The New York Times published December 18, 2007 three pictures of Isabelle and wrote: Ms. Dinoire’s body nearly rejected the transplant twice, 18 days after the surgery and again seven months later. Pictures of her face and a video of her talking 18 months after the operation were posted last week on the Web site of The New England Journal of Medicine (www. nejm.org). Within six months, according to the progress report with the pictures, she could feel the touch of a light fishing line and detect heat and cold on her new cheeks. After 10 months, she made her lips meet to say b’s and p’s. “And here is the smile,” the doctor says at the video’s end. Ms. Dinoire’s is a bit crooked, with one side slightly higher and one eye more open. But it is not unlike that of a typical Frenchwoman trying to convey a vaguely insouciant sarcasm, with hints of mordant wit and a certain je ne sais quoi.

In October 2004, a team of transplant surgeons at the University of Louisville, USA, had published in The American Journal of Bioethics an analytical report “On the Ethics of Facial Transplantation Research” in which a position was taken against all who had formulated objections against such an operation. Their report shows a remarkable link between semiotics and medical discourse, which should be of interest for all who are interested in legal semiotics. Semiotic analysis harden the question whether medicine becomes increasingly relevant for legal discourse, as becomes clear where for instance political positions bring bioethical issues to the Courts. A major theme in today’s medicine and law-sustained bioethics pertains to identity. Identity is a groundbreaking semiotic issue in law and medicine; both discourses are

2  Faces Face to Face

43

particular important in cases of the otherness of the other (Broekman 1996, pp. 100, 153). Should a woman who lost her nose, lips and chin after being savaged by a dog undergo an operation with tissues, muscles, arteries and veins taken from a braindead donor and attached to her lower face? Entering a medical-technically controversial situation has important legal and ethical dimensions, and the process of decision is not simple in that context. Nobody should be subjected to such a procedure without being informed and without consent. Central is the issue of identity: doctors stressed in this case that the woman will not look like her donor, but nor will she look like she did before the attack—she will have a “hybrid” face. It is important to underline that skin from another person’s face is better for transplants as it will be a better match than skin from another part of the patient’s body, which could have a different texture or color. But ethical concerns of a face transplant, and the psychological impact pertaining to the patient looking differently had held teams back. Concerns relating to immuno-suppression, psychological impact, and the consequence of technical failure have so far prevented ethical approval of the procedure although doctors are technically fully able to perform transplants. Apart from further detailed semiotic considerations, we have to conclude that the theme at hand, the artificial character of faces, has become an issue of enormous technical and social importance. A devastating injury, sign of a catastrophe in life, was in this case successfully compensated while transferring it into a symbol of modern medicine. Ethical controversies did not meet the real character of the face as a sign of catastrophe, and the fear of ethicists for yet another race for a beauty contest seemed absurd in the light of a more precise semiotic analysis. Such popular narratives were filled with misconceptions, such as: • There is no free choice to undergo a facial transplant in order to look better; • The risks of total rejection or other life-threatening situations were not the result of an ethics directed against potential consumers; • The entire project did not result in one person wearing another’s visage, thus embracing a risk in identity formation and in positioning oneself in public (legal) life with a stolen identity; • The cultural and personal value of a face is never threatened or diminished in the facial transplant situation, since insight in the human face as an artifact never threatened human dignity; • The extreme facial transplant of Isabelle was neutralized (and socialized) by a carefully applied makeup, so that there was at the end virtually no public evidence of the trauma and its technical compensation.

2.5.4.1 Semiotics of Medical Techniques Those (mis)conceptions show a mixture of everyday language expressions, legal notions, and medical reflections. They persist in cases after Dinoire’s partial face transplantation when nine more followed in France, the United States, China, and Spain, where the world’s first full-face transplant took place in Barcelona, which

44

J.M. Broekman

Reid described (Reid 2010). The medical techniques may show improvement and progress, and change from case to case, but the meaning making discourses and their semiotic implications do not. They circle around three concepts: (a) ownership, (b) identity, and (c) naturalness. (a) Ownership, in the legal sense pertains to owning a “new face”, whatever that may be. Although any transplant exchanges body tissue from one person to another, the distinction between one owner and another remains dominant in the entire case and its multi-disciplined procedure. Surgeons are obliged to use this language and their ethical frame of action embeds a human tissue in the legal concept of ownership. Patients and their families are in their turn in the grip of this expressiveness as a means to understand what happened and how to cope with it. The legal concept coerces all participants to see the transplant in a contractual sense, as a process between two individuals who bear the right to be treated, dead or alive, as an owner of tissue. About the Spanish transplant patient, the April 2010 (UK) Daily Mail writes (Reid 2010): The skin covering his face, the muscles and bones underneath, his nose, lips, chin, palate, eyebrows and eyelids belonged to another person who was several years his junior. Today, this patient can only claim ownership of his eyeballs and tongue. They are all that remain of the original face.

The possessive pronouns are written in a most natural way, and just these grammar elements form an interesting access to the semiotic dimensions of the transplanted face as a case in all its dimensions. What is the meaning and the bandwidth of the ‘his’ or ‘her’—even beyond the borderlines between living and dead body and tissue? The question can apparently only be answered in legal terms, including the concept of ownership. As a culmination point of intertwining understandings, ownership is coordinated with the concept of identity. (b) Identity, in the legal and a public interest sense, as outcome of the transplantation and as if it was about a change of photo in a passport, is an issue here in many regards. First there is the identity of both ‘owners’, each with their own story, ties to life in a physical and also psychological sense. Then there is the clash with the new transplanted tissues and the recognition of the receiving self and his or her others (Reid 2010): No one knows how the patient will cope with his new identity … His face bears no resemblance to the donor because the underlying bone structure created by the doctors is different. But neither does his face look anything like his old one.

Has the patient after a facial transplantation a new identity? There are other means of expressiveness and patterns of thinking possible. “He has the same identity” one could defend, “but now looking back at a unique turn in his history”. He “remains what he was but now has received an enriched life because of his changed exterior he can offer to the world around him”. But this is not the average way of thinking, expressing and evaluating issues like these. It shows, how uniformly we think and how we judge according to legal standards and rules. Identity is a most general and commonly accepted good that helps us survive in a complex society with many legal differentiations and ethical

2  Faces Face to Face

45

viewpoints. To not have an identity is a disaster, to acquire one a matter of urgency. Along those lines it was reported about the Barcelona transplantation (Reid 2010), that The operation on the ‘Mystery Man’, whose identity is being kept secret by doctors under the strict orders of the Catalan government, was paid for out of public funds. This raised concerns among politicians in Spain over the wisdom of spending thousands of pounds on operating on a patient whose life is not at risk. At the heart of the debate, too, is whether the human face is so sacrosanct that it should never be superimposed on anyone else’s body.

This cluster of meanings, highly intertwined but also entangled into confusion, is unveiling how we think in a non-semiotic manner. The patient has an identity in its legal sense, and as such this is an issue of social policies and of budgetary politics. Medical functionaries in the first line exist to protect not only the health but also the identity of the patient, particularly if social interests are connected with the medical case. The traditional definition of medicine in its Hippocratic formulation plays, however, a role when social acceptance of medical acts is concerned: medicine is there to save lives, to care for and act when endangered lives are the issue, and not to just improve a life’s quality. Not to improve an identity but to save an endangered identity is the task of medicine, although innumerable cases occur every day where this view and its limits cannot be sustained. And, as in the case of Dinoire, the face might not be such an organ that threatens the life of a patient-identity. What is the criterion here? (c) Naturalness of the new face seems an ethical impetus, especially in the context of social life and its psychosocial dimensions. The criteria are complex and divided, but one should envisage that naturalness is a criterion for a successful transplantation because it fits what others around the patient expect to see! The perception by others is a major issue in judging transplantation results. If the face looks natural, it is functioning the way it should—who would dislike or reject that? Today, he is starting a life anew. His new face is beautiful, he tells me, Dr Barret in Barcelona said. You could see he is getting handsome. He looks less than his chronological age because the donor was a little younger. We are amazed at the result. His face is so natural. The muscles are firm. You can see just one scar across his neck, which looks like a wrinkle (Reid 2010).

What criteria? Listen to this doctor. It is as if he sums up the basic criteria of a fashion journal or a Lady’s Digest. Social factors are listed for a new face. Whether it is new, and how it is new, seems a complex matter to judge. The artificial character of a face is, however, dominant in each of the components of these cases.

2.6 A World as Thirdness The introduction of those so-called ‘new’ faces, in particular the face resulting from a total face transplant (the most recent case in Barcelona) is important when understood in relation with Peirce’s Thirdness. It is beyond discussion that his distinctions represent semiotic relations predominantly of a linguistic nature. Signs are in his

46

J.M. Broekman

philosophy related to expressions, gestures, and appearances, which always correlate with linguistically determined expressions. The latter are culturally shaped, no matter what state of culture or what cultural pattern is concerned. Acts of reference result from indexical devices (Peirce’s iconic signs) and the world referred to offers a structured and organized content for that process of reference. So there is an evident self-sufficiency provided by culture. Lying Signs? In other words: faces are like their culture—both are ultimately “in our hands”. The latter reads like an extremist conclusion, because it seems against all odds of facing the qualities of a face! But can a sign be correlative to another, for instance a fictitious world? Umberto Eco explains how the self-sufficiency of the universe of content can explain why signs can be used to lie, and thus used to elaborate ideologies, art works (see the case of Orlan), political doctrines and the like: Semiotics is concerned with everything that can be taken as a sign. A sign is everything, which can be taken as significantly substituting for something else. This something else does not necessarily have to exist or to actually be somewhere at the moment in which a sign stands in for it. Thus semiotics is in principle the discipline studying everything, which can be used in order to lie. If something cannot be used to tell a lie, conversely it cannot be used to tell the truth: it cannot in fact be used ‘to tell’ at all. I think that the definition of a ‘theory of the lie’ should be taken as a pretty comprehensive program for a general semiotics.

and: Every time there is a possibility of lying, there is a sign-function: which is to signify (and then to communicate) something to which no real state of things corresponds. (Eco 1979, pp. 7, 58, 179)

Levinas would not like to read Eco! The uniqueness of a face-to-face relationship, which he brings together with language, encounter and talk as the seat of human essence—a metaphysical issue of importance—does not put any truth function into perspective (White 1973). However, Eco concludes that the relationship between sign and meaning possesses autonomy in itself and does not require the presence of an object as an element of its definition, or of any other truth function as VanFleet explains in his chapter on the philosophical dimensions of semiotics. Eco suggests that a purely intentional semantics can be the foundation for an elaborate theory of sign and signification—a suggestion that would puzzle Peirce. Eco would bring each possible fictitious state of the world back into the network of referential activities, which is so important for any linguistic inspiration. But are fiction and truth truly semiotic issues? Its linguistic inspiration awakens questions of legal-semiotic importance: is language the basis of a possible reference to a fictitious reality? Is identity in law’s language a construct within a construct, i.e. specific legal expressiveness in legal discourse, as the German legal scholar J. Esser concluded in 1940? A further question relates to the heart of this essay: does the legal definition of a human identity challenge the fate of faces? (Esser 1940).2

Notice a slightly different meaning of the word ‘fiction’ in English, and in particular in English legal language, with conclusions like: a fiction is that “the law promises what it cannot give” or: how layman and lawyer understand ‘offer’ and ‘acceptance’ differently.

2 

2  Faces Face to Face

47

2.6.1 Identity Legal That is by no means an abstract or artificial issue: ask those who enter the US as a non-US citizen and the requirements of photo-identity and fingerprinting. “Signs can be sent back to objects or states of the world only vicariously”, Eco suggested. Is the implicit autonomy of the relation between sign and meaning the essence of policies and ideologies? Or are they parallels? The question is far beyond the issue of how to lie with signs, or the truth functions of reference. Human life is continuously in confrontation with faces: images of one’s own face and those of others. Lawyers meet faces and words of individuals in a specific social setting called ‘law’. The possibility of discussing or distrusting the truth-values in reference and social contact seems to be gravitating here. Consider, how signs, gestures, verbal and other utterances of participants in legal discourse have a vital function. If it seems that the autonomy of the relation between sign and meaning leaves room for references of a fictitious nature, what then is there to say about situations in which we live face to face? Levinas often characterized the face-to-face relationship as a “verbal neighboring” (Levinas 1961), a situation in which a conjunction of oneself and the other appears as a specific social form, which differs fundamentally from any parallelism or confrontation between two human individuals. What about this unique relation, if semiotic analyses show that faces are open to fictitious gestures or verbal expressiveness as an element of the infinite semiosis? The painted faces described by Levi Strauss show us how faces are artifices; they indicate the common human features and their contrast to the world around us thanks to that artificiality. The question whether those faces are indexes of fiction, truth, justice or injustice is inappropriate here. Semiotic considerations begin with underlining the non-natural character of the human face, and then challenge our understanding the consequences of being an Aristotelian ‘animal symbolicum’. The world of Thirdness is rich on presuppositions and their consequences— perhaps richer than any semiotic project can grasp.

2.6.2 Law, Face Has law a problem with our face? Most probably, and that leads to a challenging paradox: a discourse that focuses on social order and its manifold conflicts has problems with the human face, the most vital human (re)-presentation! Especially the open, uncovered face seems to create a disturbing situation in some legal procedures. Of course, one remembers first of all the blinded face of the Roman Goddess Justitia and perhaps the covered faces subjected to the Sharia law as well. Covered faces often stem from unknown cultural contexts. By means of encountering a human face, problems of identity arise. Identity as a fact in occidental social life has legal origins. The Civil Law world remembers the Napoleonic Code and its strict identity regulations, which encompass persons, goods, and rights. Today’s difficulties with birth certificates—for instance in cases of transsexuals, unlawful migrants, facial transplants, or people lacking valid identity papers and legal permits—emphasize how

48

J.M. Broekman

modern life unfolds in the spell of a legally determined identity. There is evidently more to say. Signs of law are everywhere. Literally everything can become a sign for us. As a consequence, signs unfold amidst all there is—not pertaining to the way it is but rather as a potential for whatever there is. So how can law disregard the importance of faces in times of popular communication networks, such as Facebook, involving faces together with thousands of their photos? People communicate nowadays by means of facial representations, and identify their exchanged images with the seemingly old-fashioned word “friend”. That observation manifests the power of change. The dynamics from any potentiality to a specific reality of becoming a sign is in essence the basic process, which Peirce called Firstness—a phase to be fully completed in Thirdness. Problems with identity formation show that if anything is not fit for becoming a sign, it also is not fit for human society and the lives lived in it. This requirement of ‘fit’ has its importance for Roberta Kevelson’s attempt to understand—in the context of what she calls ‘historic semiotics’—how changes in the system of transitivity and intransitivity in the English language show that language changes because people do (Kevelson 1976, pp. 31, 40). Here is an important aspect of Peirce’s philosophical view on life, which is the crux of his philosophy: there is no life that is not embedded in what we notice as being potentially significant. That potentiality unfolds first and foremost by understanding how we are a being as a possible sign so that we, humans, understand ourselves as living in a field of transformational energy. One cannot underline strongly enough in what regard the dynamics of this energy forms the basis for Peirce’s philosophy, a philosophy that always includes semiotics as its core approach. If we understand that signs of law are everywhere in social life, we must accept how those signs are not there by nature but are created by lawyers driven by their encompassing energy of transformation. All of this intensifies the semiotic relevance of faces and the differences between legal and everyday-life meanings ascribed to them. If law is a system of signs, then that system is the dynamic context for any creation of legal meaning. There ‘are’ no signs and there ‘is’ no meaning beyond this ever-emerging primal energy of transformation, Peirce would conclude. It would be useful to investigate the concept of ‘system’ in his texts, not because of an interest in any form of systems-theory, but rather to find every possible aspect of this dynamism at the basis of semiotics ­concealed in his idea of a system. That would be a basic attitude in any endeavor to understand faces in any face-to-face context. Do not forget how semiotics as a ­science is in Peirce’s view a method to approach the flow of dynamics in life, which continuously regenerates the most essential signifying processes, as faces show every moment in social life. 2.6.2.1 Animal Symbolicum The Ancient Greek idea of man as ‘animal symbolicum’ thus remains the ground for our life—also in law. Law is a symbolic discourse and legal effects are channeled through processes of appropriate semantic transposition. This is how law is

2  Faces Face to Face

49

l­ anguage: its symbolic dimensions do not disappear, but remain in action whilst even the subtlest layers of meaning are articulated. Lawyers confirm that this ­conversion is essentially a legal technique, and they focus almost exclusively that technique in their legal training. No matter whether lawyers are right about their option, semiotics demonstrates the importance of that social process before a jurist’s eyes. Do lawyers perform their task while deliberately denying its foundation in symbolic dimensions and not taking the ever-changing appearances into consideration as an important element of their relevant sign system? Or are they not aware of law’s semiotic components and thus exercise only specific and strictly defined forms of interaction, which maintain the idea of inter-action without putting the dualist sender-receiver or speaker-hearer model into perspective? That could be the encompassing challenge of semiotic appreciations of faces in face-to-face relations, which are demonstrated first and foremost in education settings. It is interesting to conclude that no research on faces face-to-face in the general context of semiotics has been developed hitherto—all the more so because law with its great social importance does even in Peirce’s work not pay attention to the human body as a semiotic device! Yet, faces should be considered in semiotic context as an “operating subject”.

2.6.3 Bodies, Body Parts in Semiotics The latter idea is fully in compliance with Peirce’s analyses of “the self”, as Colapietro concluded (Colapietro 1988). However, a person as a subject fulfills this major role in Peirce’s thoughts, and there is no further differentiation about the semiotic profile of that concept of a person in the texts of Peirce. That implies the question whether only human persons or also separate human body parts possess semiotic relevance in social relations as separate entities. Our study of faces in face-to-face relations affirms that question. Remarks of Teresa de Lauretis (1984, p. 183), quoted by Colapietro (1988, p. 39), would eventually sustain the idea that for Peirce … the notion of habit as ‘energetic’ attitude, a somatic disposition at once abstract and concrete, the crystallized form of past muscular/mental effort, is powerfully suggestive of a subject touched by the practice of signs, a subject physically implicated and bodily engaged in the production of meaning, representation and self-representation.

Colapietro suggests (1988, 42 f.) furthermore: There is no compelling reason why this concrete subject (the self as both a result and a transformer of this practice of signs) falls outside of the natural boundaries of semiotic investigation.

Neither Orlan, Tilda Swinton, Isabelle Dinoire, nor Kathleen Bogart would deny this conclusion, and rather underline the possibility for human body parts or specific body regions to play a determining role in the transformation and practice of signs in social relations.

50

J.M. Broekman

There is a plurality in Peircean determinations of the human self, which also s­ ustains that conclusion. Peirce states how the self is a locus of error and ignorance, a center of power and control, a very spring of action, a person being not a whole as long as he or she is single, being rather essentially a member of community, the subject being an actual form of community: all those aspects are gathered and combined in Colapietro’s study (Colapietro 1988, pp. 42–44). An additional argument for this insight and perspective on the semiotics of a human subject is in the character of infiniteness of semiosis itself. A human ‘theatre of consciousness’ (Peirce) has many players and roles to fulfill in many more social situations, which are deemed to be face-to-face. De Saussure reminded us that all possible correlations of sign functions fulfill a role in semiotic practice, and that the bond between signifier and signified is nevertheless arbitrary. This arbitrariness is also valid for what is determined as the energizing element in the semiotic relation itself, and human faces function very well as such elements. 2.6.3.1 The Barcelona Case Talk to Judge Botton in the Arizona law case, or to the lawyers assisting surgeons who performed the total facial transplantation in Barcelona. They will acknowledge that, apart from practical legal problems and the status of specific national, US, or EU laws, facts such as facial expressiveness and appearances fulfill a dominant role in law’s creation of meaning. A culture of politics is embedded in this setting: not the politics of left-right oppositions, but a politics focusing on the continuous ­re-structuring of social patterns. Legal scholars in the end of the twentieth century such as Balkin, Paul, Kennedy and others already acknowledged that issue. Is focusing the human face as a particular originator in semiotic patterns feasible? It is! And what about law and legal discourse? All articulations of legal concepts focus on interaction, one could say. However, do not forget that exactly this concept of interaction is linked with a specific and limited understanding of human relations, as we argued before. Interaction theories mention in various forms that human beings are active participants in the construction of self, others, and society, so that our world and its meanings is created through interaction with others. Actors remain constituting entities; individuals create meaning through interacting with others. This idea expresses a common view, even in the phenomenological approach to social issues in the work of Alfred Schutz, Jürgen Habermas’ theory of communication, or George Herbert Mead’s social pragmatism with his explanation of the ties between mind and self emerging from social communication and its sign-systems. Mead and Herbert Blumer coined the term “symbolic interactionism”, Erving Goffman explored its socio-psychological dimensions and Peirce’s semiotics parallels all these ideas forcefully. There are at least three basic premises here with a close proximity to the “law and semiotics” theme. They underline (a) how human beings act toward things on the basis of the meanings they ascribe to them, (b) how their meaning results from social interaction, and (c) emerges from interpretative processes used by the person

2  Faces Face to Face

51

in dealing with the things he/she encounters. Mead and Blumer claimed that people interact with each other by interpreting or defining mutual actions and not by merely reacting to them. No wonder, that the concept of ‘interaction’ is often understood as most appropriate to grasp the focus of semiotics and the law-semiotics relationship. Kevelson (1996, p. 87) wrote in this context: Justice is the name of the relationship, which links members of community by means of transactions of goods and properties. Justice is an invention, which remedies rents and breaches in the social fabric … Justice in an involving, open-ended concept of a global community must be regarded as a method of art and of science capable of describing itself, the principals linked by means of itself as inter-subjective action, the changing context of institutions and itself as inter-subjective action, and the changing context of institutions and values in an appropriately dynamic and not static manner.

The fundamental terms in this fragment are indeed referring to basic ideas about the ongoing dynamics of life and the role of semiotic therein, as well as the artifice we encounter when dealing with Justice or with a human face as its symbol. Even when we focus community, its institutions, and its self-understanding in terms of inter-subjective action, Kevelson suggests (1996), we aim at modes of interaction and of inter-subjectivity. Is there no difference here? The terms suggest that among independent entities—constituents in the semiotic play—a response from one to another is not made directly to the actions of one another but is instead based on the meaning, which they attach to such actions. Human interaction is mediated by the use of symbols and signification, by interpretation, or by ascertaining the meaning of one another’s actions.

2.6.4 Interaction vs. Interactivity: Three Arguments This process once called “symbolic interaction” should contrast symbolic against behaviorist explanations of human interaction, since the latter do not acknowledge any interpretation that complicates the relation between stimulus and response. In behaviorist approaches, individuals act in a stable and fixed position, which suggests a stable position amidst uncertainties of change, growth, and development. From there, they act with/against/among each other, and consequently there is no context of greater importance than the individual life sphere functioning as the ultimate source of interaction. That is most probably the deeper reason for law’s hesitation to acknowledge the essence of an uncovered human face. Law perceives interpretation and definition as acts of an autonomous individual—whether in interaction with other subjects or not. As a consequence, response, mediation as well as use, maintain standard notions of the behaviorist sender-receiver model. These researchers investigate how people create meaning during social interaction, how they present and construct a self or an ‘identity’, and how they define situations of co-presence with others. The self remains a centered position in all regards, even if the self is understood as the result of growth and development rather than a natural datum. But individuals are individuals because

52

J.M. Broekman

of their ‘being in interaction’, so that ‘being an individual’ is already the result of an unnamed pattern of social dynamics! This observation, made fruitful for semiotics by (among others) Lacan, includes the understanding of the fundamental shortcomings of the term ‘interaction’. In other words, if meaningful social life would solely be based on interaction, then human relations do not touch the deeper layers of an actor’s life sphere, his or her emotional life and potential for personal growth. Interaction and learning on the basis of reception and assimilation of data do not support its actor to become a fully developed personality. We therefore propose to replace the concept of ‘interaction’ with ‘interactivity’ and in doing so honor the dynamic energies which Peirce’s philosophy highlighted. Interactivity does not solely highlight a simple circularity in contrast to a predominant linear character of interaction. It rather expresses the constant change in human life and life-quality as well as the continuous expansion of personal experiences and growth in a person’s character and opinion. The concept should not be used as a simple equivalent to ‘inter-subjectivity’ or ‘interaction’. There are three arguments to consider in this context: A first argument is the fact that interactivity is not a simple extrapolation of interaction. This would be the case if the subjects of interaction did not change during their activity in the processes of social action. But they do always and continuously change in interaction, because the latter is never a straight result of a well-determined purposeful action but a power of change, growth, and development in general culture. Any educated self-understanding will confirm that one’s own actions are best understood as a form of re-acting to the presence of others in precisely the context of that presence, which provokes changes that change the changing ‘self’. The re-acting is not an undemanding doubling or a re-production but a specific form of the dynamics of change, which became articulated in and with a changing self. A second argument is that the concept of interactivity shows the relative irrelevance of how others, or any materiality understood as ‘others’, are defined. For example our recent expression ‘in cyberspace’ replaces by means of virtual processes what we used to call ‘in space’ in Euclidian terms. The latter is the major presupposition of fixated and formal models of interaction—a formality, which even symbolic interactionism cannot transcend. All those forms of inter-subjectivity are based on the idea of representation, as is visible in our cult of images, pictures, ­narratives, or models finds semiotics in its most dynamic form, and effective in so far as a first understanding of the power of change and development in social patterns is concerned. A third argument is that, especially, computers and other electronic devices have already changed our concept of interaction before any philosophical reconsideration unfolded. The world of electronically enhanced interaction is the world of our youth on an almost global scale. An important issue is that this global development—so often hypostasized as the major feature of modern society—became feasible in the lives and cultures of big cities (that embrace global social issues and interaction techniques) which embrace cosmopolitan rather than traditional agrarian cultures. The latter, one could say, still display a variety of cultural patterns and their faces, whereas the former develop a non-Euclidian or geographically unbound lifestyle

2  Faces Face to Face

53

and interaction in which electronics dominate. Especially this global cosmopolitan culture is at the point to change interaction into interactivity (often in the name of personal freedom or privacy), whereby social patterns no longer consist of fixed human identities but rather of an indeterminable number of floating identities together with electronic devices. Interactivity can be understood as a new emancipating power of the human mind, which goes with understanding human subjects as citizens of a society that embraces electronics as a power in the formation of social patterns. Do not forget that the world of social communication was until the last decades of the twentieth century shaped independent of its technically sophisticated communication devices. Interactivity is neither the product of automation or mechanization, nor solely the sign of an upcoming technological culture. Interactivity indicates a process position in an ongoing energetic development within social ­relations and their founding patterns.

2.7 Faces Face to Face All this is important when one encounters a human face. Faces do not only possess a non-natural character but they are also not the product of interaction in the form of an individual autonomy that reaches beyond growth and change. The Roman deity Janus showed how one face is not enough—with his two faces he could perceive in an opposite direction. This special gift brought him insight and knowledge of the past and the future: an ancient idea symbolizing a highest degree of interactivity. Janus thus became a symbol of change and transition. Indeed, a face, more than any other part of the body, is a sign of the powerful dynamics that sustain a human being. A human body, one could say, has its face as a primal opportunity to create it as sign. Law and legal discourse are entangled in a transition from interaction to interactivity as soon as they read that sign as a foundation for making meaning and signification. Why? Take for instance “two faces in interaction”: that expression embraces the meaning of ‘a face’ as it is restricted to the ‘sender-receiver’ model and its concept of interaction. More crudely stated: two faces conceived within the boundaries of the sender-receiver model are no faces! They cannot be ‘open’ and in interactivity, because they only mirror each other. To look someone in the face: does one want to see oneself in the face of the other? The question makes clear that any face beyond interactivity has no expressivity and is therefore irrelevant in semiotic perspective. Faces are in essence interactivity; they cannot become a sign outside that realm, and they are just for that reason relevant for semiotics. In other words, a face is never an entity in itself but always an entity in process. That process is semiotic in nature, because it is precisely what Peirce described as in the process of becoming a sign. Faces show meaning in the context of recognition. Look in the mirror and experience how interactivity gives life to that mirror image beyond how others might perceive it. The dynamics of interactivity (in itself a full actualization of interaction) concretize an enriched Janus-experience, which articulates itself while saying, “I am the one I was, and will be!”

54

J.M. Broekman

2.7.1 Semiotics of Interactivity Semiotics of interactivity is about human individuals embedded in the encompassing energy of change and transition, which we often vaguely indicate as ‘culture’. Faces are their signs and can become symbols of the specifically human character of that change. It is important and philosophically difficult to grasp how this semiotics of interactivity is not the result of an individual (inter) action. Individuality is rather the product of change and in essence a culturally inherited articulation of an evolving position in the process of growth and development. Where law and legal discourse want to fix an individual as embedded in interaction, they do so by means of using, for instance, concepts such as right, identity, or property, as Malloy underlined (2009, p. 268). Those concepts function as signs, which transfer and communicate information about a human individual in its social setting without considering how these positions are just tentative because of the context of the flow of dynamics traditionally called ‘human history’. This type of semiotics is founded upon interaction as understood along the pattern of the sender-receiver model. But openness of human faces shows, in contrast, a flow of feelings, emotions, and expressions, so that the principal virtue of a face is potentiality in Peirce’s category Firstness. The semiotics of interactivity are most effectively linked to facial expressiveness. Is this the reason for the difficulties law has with the human face? One should, when answering that question, keep in mind how the explanatory power of the interaction concept appears limited: a face-to-face situation is never exclusively a situation of solely two individual faces! If everything around us can become a sign that opens up to its appropriate signification, then each face-to-face situation is satiated by the dynamics of signifying processes (the dynamics of culture) and never reduced to two acting faces and two actors. Do the limitations of the number two fit the essence of a human face? Lawyers encounter his question when they perceive the human face and have law and legal discourse as their frame of reference. Semiotics, the method of questioning and research, of growth and transition, focuses interactivity because its subject is ultimately indeterminable and an activity beyond fixations. That highlights a new sympathy for Bergson (1911, 414f) (like Peirce highly regarded by James) and his idea of an élan vital that expresses itself in signs, symbols and Thirdness. That new élan is engraved in the images of a human face, because a face is recognized in its process character—not unlike the human body in its entirety. Shown is a surface in growth, a skin in change, a glance in futures based on a past that etched what is mirrored and projects what is shared in life’s experiences.

2.7.2 Law in Our Age of Semiotics Our evolving age of semiotics does not proclaim interaction as the model for social relations. On the other hand, however, interactivity is not (yet) in the countenances around us, although faces evolve in time and space and thus are becoming. They are

2  Faces Face to Face

55

always becoming sign, symbol or infinitely more, perhaps a subject that recognizes itself as an “I”—until also this “I” withdraws from our recognition and becomes a name, a psychic entity, “an/other” as a process that unfolds at the largest distance possible from the way lawyers experience and manage relations. They understand relations as interaction between fixated identities, which they define specifically as identities in their legal language, in their jurisprudence, in their cases, so that they redirect their faces whilst operating in their world of fixated meanings (4). Is this how lawyers make meaning—with faces turned away?

References Akman, Kubilay. 2006. Orlan and the work of art in the age of hyper-mechanical organic reproduction. International Journal of Baudrillard Studies 3(1) (www.ubishops.ca/baudrillardstudies/ Vol 3_1/akman.htm) Bergman, Mats. 2009. Peirce’s philosophy of communication. London/New York: Continuum. Bergson, Henri. 1911. La Perception du Changement, Conferences in Oxford May 26 and 27, 1911, in: La Pensée et le Mouvant, Skira, Geneve, PUFrance, Paris (1911, 1946). Broekman, Jan M. 1996. Intertwinements of law and medicine. Leuven: Leuven University Press. Broekman, Jan M. 2007. Trading signs. Semiotic practices in law and medicine. International Journal for the Semiotics of Law 20(3): 217. Broekman, Jan M. 2009. Face to face. International Journal for the Semiotics of Law 22(1): 45–59. Broekman, Jan M., and Michael H. Foox. 2008. Binding words unfolding selves. New York: iUniverse, Inc. Broekman, Jan M. 1979, 1991; 3rd Ed. Recht en Anthropologie; —id—: (1979) Recht und Anthropologie; (1993); Droit .et Anthropologie, (1993); Derecho y Antropologia, (1993). Clark, Andy. 2003. Natural-born cyborgs. Oxford: Oxford University Press. Colapietro, V.M. 1988. Peirce’s approach to the self. New York: State University New York Press. de Laurentis, Teresa. 1984. Alice doesn’t. Feminism semiotics, cinema. Bloomington: Indiana University Press. Derrida, J. 1973. Speech and phenomena. Evanston: Northwestern University Press. Eco, Umberto. 1976. A theory of semiotics. Bloomington: Indiana University Press. Eco, Umberto. 1979. The role of the reader. Bloomington: Indiana University Press. Esser, J. 1940. Wesen und Wert der Rechtsfiktionen. Frankfurt/M: Klostermann. Friedmann, Richard E. 2001. Commentary on the Torah. San Francisco: Harper. Habermas, Jürgen. 1985. Der Philosophische Diskurs der Moderne. Frankfurt/M: Suhrkamp. Habermas, Jürgen. 1988. Nachmetaphysisches Denken. Frankfurt/M: Suhrkamp. Hegel, G.W.F. 1931/1967. (Bd. I 1805–1806. Bd. II 1806/08) Jenaer Realphilosophie. Vorlesungsmanuskripte zur Philosophie der Natur und des Geistes. Hamburg: Felix Meiner. Heidegger, Martin. 1961. Nietzsche, Bd 1. Pfullingen: Neske. Kevelson, Roberta. 1976. Symbolic language structure and syntactic change. Lisse: Peter de Ridder Press. Kevelson, R. 1996. Peirce Science Signs. New York: Peter Lang. Kuczynski, Alex. 2008. Extreme makeover. New York Times Style Magazine, April, 58, p. 90. Levinas, E. 1961. Totalite et Infini. Essai sur L’extériorité Phaenomenologica; Bd 8. Den Haag: Nijhoff. Llewellyn, K. 1930. The bramble Bush: Our law and its study. New York: Oceana. Malloy, R.P. 2009. Place, space and time in the sign of property. International Journal of Semiotic Law 22(3): 265–277. Paul, Jeremy. 1990–91. The politics of legal semiotics. Texas Law Review 69: 1779–1829.

56

J.M. Broekman

Peirce, Ch. S. 1894. What is a sign? (1998). In: The essential Peirce, selected philosophical writings. Vol. 2 (1893–1913), 4, [see also [28], The Peirce Edition Project, Indiana University Press. Peirce, Ch. S. 1903a. The categories defended (1998). In: The essential Peirce, selected philosophical writings. Vol. 2 (1893–1913), 160. Peirce Edition Project, Indiana University Press. Peirce, Ch. S. 1903b. Sundry logical conceptions (1998). In: The essential Peirce, selected philosophical writings. Vol. 2 (1893–1913), 267, Peirce Edition Project, Indiana University Press. Peirce, Ch. S. 1903c. The seven systems of metaphysics (1998). In: The essential Peirce, selected philosophical writings. Vol. 2 (1893–1913), 479. Peirce Edition Project, Indiana University Press. Peirce, Ch. S. 1907. Pragmatism (1998). In: The essential Peirce, selected philosophical writings. Vol. 2 (1893–1913), 398. Peirce Edition Project, Indiana University Press. Peirce, Charles Sanders. 1931–1935, ed. The collected papers of Charles Sanders Peirce, Vols. I–VI. In: The art of reasoning; grand logic, edited by Charles Hartshorne and Paul Weiss. Cambridge, MA: Harvard University Press. Peirce, Charles Sanders. 1958, ed. The collected papers of Charles Sanders Peirce, Vol. VII–VIII. In: Pragmatism, edited by Arthur W. Burks. Cambridge MA: Harvard University Press. Reid, Sue. 2010. Can the world’s first full face transplant patient live with his new identity? Daily Mail, 26 April 2010, www.dailymail.co.uk. VanFleet, Paul. 2010. Tarskian and peircean conceptions of truth-correspondence in law. In The semiotics of law in legal education, Jan M. Broekman, Francis J. Mootz III [Eds], 57–74. Dordrecht: Springer. White, James B. 1973. The legal imagination. Boston/Toronto: Little Brown & Co. Zornberg, A.G. 2000. The particulars of rapture. New York: Doubleday.

Chapter 3

Tarski, Peirce and Truth-Correspondences in Law: Can Semiotic Truth-Analysis Adequately Describe Legal Discourse? Paul Van Fleet

Power tends to corrupt and absolute power corrupts absolutely. – Lord Acton

3.1 Introduction Legal discourse presumes that the conclusions it provides are true; that is, legal discourse is always displayed as logically proceeding and concluding in accordance with “all that is the case” (Wittgenstein 1958, p. 1). Judicial resolutions present themselves in a manner both declarative and certain, with lawyers advocating for their “correct” interpretation and judges eventually handing down decisions with the finality of “it is ordered.” Such discourse provides some sort of assurance that the legal system can be trusted to safeguard society. However, closer analysis shows that this safety, while having great effect on our daily lives, is at heart a fiction because legal actors like judges and lawyers attempt to force reality into the precepts of legal discourse. The “truth” of legal discourse is founded primarily on the presuppositions of analytic-legal philosophers, especially with respect to truth-correspondence. Truthcorrespondence is the basic analytical-philosophical premise that “propositions are true when they correspond to reality” (Kemerling 2001). The logician Alfred Tarski provides one of the most comprehensive views of truth-correspondence outside of legal discourse. His general theorem, Convention T, holds that a proposition is true if and only if that proposition can be proven true within the language expressing it (Unattributed 2005, Sec. 4). Within Tarski’s theory, and legal reasoning in general,

P.V. Fleet (*) Dickinson School of Law, Penn State University, Carlisle, PA, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_3, © Springer Science+Business Media B.V. 2011

57

58

P.V. Fleet

a proposition is either “true” or “false”. Once the truth or falsity of the proposition is proven, the relations between multiple propositions can also be characterized as “true” or “false”. This mechanical approach is a form of semiotic activity, but limits the scope of analysis to the point where the sign-relations find themselves devoid of meaning except that which legal discourse tolerates. “Truth” is constructed again and again with each case and each legal finding, yet each finding leads no closer to any particular legal truth. Charles Sanders Peirce provides a third factor to the truth-test that invites an analysis that is best characterized as semiotic, or sign-related. Peirce allows that truth and falsity can both describe a proposition, but he also allows for the ­possibility of the “unknown” (Fisch and Turquette 1966, pp. 71–85). If a proposition is “unknown,” then its truth-value cannot be determined, and as a result, the proposition’s relation to other propositions is also unclear (Hammer 2007). This lack of clarity expands semiotic analysis, where a single sign can evoke a myriad of convergent, divergent, or even unrelated interpretations, providing a wellspring of meanings through which a signifier may communicate experience. The introduction of uncertainty into truth-theory does not necessarily create existential problems within general discourse. However, legal discourse seeks to avoid this malleability at all costs, resulting in a self-referential system that taints general discourse by imposing legal meanings as “truth”. Legal discourse, by systematically restricting terms to that which it finds palatable, places itself in conceptual opposition to general discourse and homogenizes meaning for the goal of social order. Part II will provide a brief analysis of semiotics and the concepts of Peirce’s triadic relationship. It will also address Jacques Lacan’s theory of phenotext and genotext, as well as his idea of the Master Discourse. Part III of the paper will analyze how correspondence theory applies to legal discourse through a discussion of Tarski’s Convention-T. It will also discuss how legal discourse uses this mechanic to cloak itself in a veneer of “truth”. Part IV will investigate how Peirce’s theory of truth-correspondence introduces the expansive, phenomenological element of semiotic concepts that the law does not allow itself to recognize. Part V will conclude by assessing the effects of the legal fiction, drawing on Lacan’s theory of the Master Discourse to discuss how the rigidity of legal discourse semiotically affects general discourse. Part V will also explore the possibility of reconditioning terms closely associated with the legal to renew their meaning in other discourses.

3.2 The Basic Semiotics: Triadic Relationships and the Concept of Phenotext and Genotext Semiotics is the study of signs, objects, and interpreters within narratives that render particular meanings to conscious experience. The “sign” is the basic building block of semiotic analysis, and is defined as “something that relates to something else for someone in some respect or capacity” (Broekman 2010, p. 4). Semiotics examines

3  Tarski, Peirce and Truth-Correspondences in Law...

59

how meaning can be infused into terms through a variety of institutional contexts, such as culture, politics, or science. The value of semiotics lies mainly in the acknowledgement that all things exist in relation to each other, which renders ­existence meaningful. Basic semiotic concepts illustrate this idea of relatedness, especially through the Peircean concepts of the triadic relationship and Greimasian concepts of the phenotext and the genotext. Both of these concepts are essential to recognizing that legal discourse limits both itself and the general discourse by ­truncating the possible meaning legal terms may have.

3.2.1 Peirce’s Triadic Relationship Peirce’s theory of the triadic relationship of thought is grounded in three main premises: first, a sign is not a thing; second, that everything can become a sign; and third, that things must act upon each other to create meaning. With regard to the first premise, Peirce carefully indicates that a sign is that which may indicate a thing or object, but that a sign in itself is not a thing (Broekman 2010, p. 14). Peirce examines the sign as a universal indicator rather than that, which exists in the real world. Peirce sees the sign as the exemplification of firstness, or the infinite realm of possibility that a sign may occupy. For instance, the sign “flag” could be a sign of anything.1 The object to which “flag” refers may physically exist as a thing, but the flag as a sign exists simply as a reflection of phenomenological experience, which is limitless in possibility. Signs materialize from pure potentiality; they initially exist as a first impression, not a thing. Drawing from this idea, Peirce properly regards everything in existence as a potential sign. It is important to note for the purposes of the theories advanced in this paper that signs “unfold amidst all there is – not pertaining to the way it is, but rather as a potential for what there is” (Broekman 2010 , p. 15). Peirce regarded this potential as a function of the infinite semiosis, where signs continually arise and fall with regard to the context from which they arise. Meaning is only fleeting in Peirce’s view, existing in the temporary, cultural context that sign-object relations denote. Lastly, the triadic relation between signs cannot exist without the premise that things continually act upon each other; without this relationship, there is no meaning (Broekman 2010, p. 15). A sign can provide no meaning in a vacuum; just as a seed requires interaction with water and sunlight to sprout, the sign requires other signs to substantiate. Language can be regarded as the ultimate descriptor of the relations between signs because language is the syntax by which sign-associated words render meaning. Peirce used these principles to describe meaning as an interplay between three actors: the sign, the object, and the interpretant. An interesting corollary is noting that it seems to be contrary to the theory of firstness to describe the firstness of a sign using a fixed symbol. In this case, the sign flag is affixed to the word “flag.” This firstness has to be described using a symbol affixed to a word to have linguistic meaning to others outside of personal experience.

1 

60

P.V. Fleet

Peirce unifies these three concepts in his definition of a sign: “I define a sign as anything which is so determined by something else, called its Object, and so determines an effect upon a person, which effect I call its interpretant, that the later is thereby mediately determined by the former” (Peirce 1902), p. 478). The triadic relationship thus shows the interplay between the three elements and the infinite potential for conceptualization. A sign is regarded as a signifier for an object and denotes that object in general discourse. The object is whatever the signifier denotes; for example, its flag may denote “the United States of America”. The interpretant may be thought of “as the understanding that we have of the sign/object relation” (Atkin 2006). In this threefold dynamic, the interpretant plays the most important part – the sign only has meaning upon being interpreted, and so the interpretant that arises within the consciousness of the interpreter renders the sign existent. This idea is also present in the ideas of Peirce’s theories of truth-correspondence, addressed later in this chapter. In legal discourse, we see a particular utilization of Peirce’s triadic theory in which the interpretant is constrained by its own signs. This constraint limits the potential interpretants that legal signs may express. The ideas of phenotext and genotext as espoused by the psychoanalyst Jacques Lacan also provide great insight into the self-imposed limitations of legal discourse.

3.2.2 Lacan and the Phenotext/Genotext Relationship Although Lacan was not a philosopher, a linguist, or a semiotician, his ideas have great meaning within the semiotic community. His most important discovery was that of the délire à deux, his psychoanalytical theory that there is no way to identify an established identity within and limited to the profile of a single individual (Broekman 2010, p. 50). Lacan’s theory of the interrelatedness of concepts as a basis for psychoanalysis led him to his theory of language and discourse, in which the ideas of phenotext and genotext play a significant part. Phenotext and genotext are intertwined, yet distinct. The genotext refers to the myriad of interpretants (to use Peircean language) that a sign may signify. When one particular interpretant is elicited, this interpretant is the phenotext for the duration of the semiotic analysis. Julia Kristeva referred to this process as the “signifier emerging” in terms of literary theory, where the signifier emerges as a result of textual fixation (Unattributed 2005). The phenotext and genotext are the same in that the phenotext may operate as its own genotext, but distinct in that the genotext is not necessarily limited to the phenotext. When the phenotext acts as its own genotext, the result is referred to as autopoeisis, or self-creation. According to Lacan, discourse continually implies the presence of another ­individual, with at least one individual conveying meaning (the master signifier) and one receiving meaning. Lacan devised four types of discourse; the most relevant discourse to legal analysis is the Master Discourse, reflecting the dynamic of the slave serving the master (Unattributed 2007). In the Master Discourse, the master

3  Tarski, Peirce and Truth-Correspondences in Law...

61

signifier attempts to dominate the subject by forcing meaning into a sign. In other words, the Master’s phenotext becomes the slave’s genotext for that particular sign. The Master Discourse can be juxtaposed with the Hysteric Discourse, which places the subject as the signifier, whose utterances to the master signifier must be ­controlled for their relevance to be gleaned. Legal discourse, like logical analysis, is a Master Discourse. Peirce and Lacan’s theories of semiotics are quite alien to the analytic tradition, which attempts to find some fixed meaning within semantics by making signs into symbols. Symbols are essential for the logical analysis in which law engages. We turn now to Tarski, whose theories exemplify the type of thinking in which legal discourse grounds itself.

3.3 Tarski’s Convention-T and Legal Discourse When analyzing legal discourse, the reader is struck by the certainty that legal language perpetuates. Lawyers and judges argue and rule based upon a presumption that all facts concerning the case can be ascertained and deemed “true” or “false.” Modern analytic philosophy reflects this sort of thinking in elementary propositional logic, whose propositions are analyzed through truth-values and their relations organized into truth-tables. The “truth” occurs when the facts correspond to the “state of affairs,” or in Wittgenstein’s theory, what is “the case” (Wittgenstein 1958). One of the most influential formulations of analytic truth-correspondence is that of Alfred Tarski, who defines the semantic truth of a proposition expressed as a function of the language in which it is conceived (Tarski 1944). As will be seen, Tarski’s theory accurately reflects the unique self-referential nature of legal discourse, which in turn uses this correspondence theory to disguise itself as an arbiter of legal “truth.”

3.3.1 Tarski and Convention-T Tarski called his seminal contribution to truth analysis “Convention-T”, which uses the concept of a meta-language through which the truth of a proposition can be evaluated within that propositional language’s set language calculus (Tarski 1944). Convention-T provides a framework through which truth may be evaluated within its own scheme by an external language. Examining Convention-T illuminates the process of legal discourse, which follows the pattern of Convention-T within its reasoning, especially with regard to legal fact-finding. The underpinnings of Tarski’s Convention-T originated with Gottlob Frege, who introduced the theories of das Wahre (the truth) and das Falsche (the false) into modern logical discourse. Frege’s conception exists as “a natural component of his language analysis where sentences, being saturated expressions, are interpreted as a special kind of names, which refer to (denote, designate, signify) a special kind of

62

P.V. Fleet

objects: truth values” (Shramko and Wansing 2010). Frege regarded any function (or sign) with a value consisting of either das Wahre or das Falsche as a proposition. Evaluating these truth functions required a comparison to “the state of affairs,” or the way the world actually is. Tarski used this basic framework to extend the ­analysis further, relying on different conceptions of language to prove truth. Beginning with the basics of semantic truth concepts, Tarski recognized that using propositional language to evaluate truth was circular; a system that used the same language to both define and evaluate truth would ultimately collapse on its own self-referential nature (Tarski 1944). To illustrate the problem of this circular system, examine the statement “This statement is false” (Black 1948, p. 3). First, reduce the words “This statement” to a single letter, a, for the sake of convenience, then consider the statement “This statement is false.” From this, we can extract the premise that a is identical to the statement “a is false” since the previous statement informs us that a is false and falsity is the only quality that we are allowed to accept (because it is all we know) about a in this closed system. However, it also seems that the statement “a is false” is true if and only if a is false. It follows then, that a must be true if and only if a is false, which is a logically self-contradictory statement. Tarski concluded that there needed to be both a propositional language in which propositions could be expressed, and another language, external to the prior, called the meta-language, that could properly determine the truth-values of the symbols and their relations described in the propositional language and avoid contradictions like the one above. Tarski also asserted that the meta-language should mirror the propositional language so the functions of the propositional language can be ­understood as a function of the meta-language. The two languages are structurally the same, but conceptually distinct. For example, consider the statement “It is snowing outside.” The proposition “it is snowing outside” must be provable in the metalanguage it is snowing outside to verify whether it is indeed in physical reality snowing outside (Tarski 1944). The syntax of the language does not matter conceptually, but it is convenient to have the syntax of the meta-language mirror that of the propositional language. “It is snowing outside” can be provable in any metalanguage, but if the interpreter does not comprehend the syntax of one of the languages, the relationship between the two becomes meaningless. The real value of the relationship between the propositional language and the meta-language is shown when their syntaxes are identical. To perform this verification, the meta-language must also contain axioms that can express everything that needs to be said about the propositional language. Specifically, the function “is true” must exist within the meta-language to verify the truth of propositional statements. Therefore, the general scheme of Tarski’s Convention-T, in propositional logic, reads: x: T(x) if and only if f(x) (Hodges 2006). where x is the statement in propositional language, T indicates the propositionlanguage truth function of that statement, and f indicates the meta-language truth function. So, x is true in the propositional language if and only if x is true in the

3  Tarski, Peirce and Truth-Correspondences in Law...

63

meta-language that evaluates the propositional language. The meta-language ­confirms the truth or falsity of the propositional language by using one’s existing knowledge on the subject. This knowledge-affirmation of the meta-language is essential to understand when applying the principles of Convention-T to an ­analysis of legal discourse. The use of logical-analytic frameworks such as Convention-T highlights a ­crucial aspect of semiotic analysis, albeit a very limited one. Tarskian meta-language ­corresponds to the genotext in which the Peircean interpretant may be found. Truthfunctions are a particular interpretant within the genotext of the meta-language; meta-linguistic truth is a relation to the propositional signs expressed. This semiotic restriction develops as a result of the limitations of the meta-language calculus, which has the potential to be just as self-referential as the propositional language (Tarski 1944). The consequences of this restriction will become evident as the ­similarities of Convention-T and legal discourse are investigated; they both assume that they are correct to maintain their integrity.

3.3.2 Convention-T and Legal Discourse Analysis of legal truth operates very closely to Convention-T when the truth of general discourse is evaluated through the meta-language of legal discourse. That which may be true in the general discourse may not be true when analyzed in the framework of legal discourse, and that which is not known to be true or false must be evaluated as such. The law demands an answer as to what is true and what is not by necessity, developing legal meaning by comparing terms in general discourse to its own calculus. This process illustrates how the law holds itself to be the arbiter of truth within its own schema, which is the essential fiction fostered by the legal autopoeisis. The philosopher Max Black identifies a crucial problem with any attempt to ­create a semantically based definition of truth, which is evident in legal analysis (Black 1948). To apply Tarski’s theories to a natural language, such as English, in both the propositional language and the meta-language, “[a]ll the terms defined in [the natural language] must be supposed replaced by their definitions, and a complete inventory of the undefined terms of [the natural language] must be available” (Black 1948). Any statement that contains a word that does not have a definition renders the truth of that statement impossible to determine. For instance, if no individual named “Abraham Lincoln” ever existed and did not presently exist, the statement “Abraham Lincoln freed the slaves” is impossible to prove or disprove. Once the term “Abraham Lincoln” is introduced into language, the ordinary language and meta-language both become obsolete. Therefore, the open nature of ordinary language defeats the opportunity to introduce a logical definition of truth to the statement “Abraham Lincoln freed the slaves.” Legal discourse falls into the same trap by defining itself using an institutionally limited inventory of natural-language terms.

64

P.V. Fleet

Legal discourse in the American common law tradition binds itself to particular institutional, as opposed to conceptual, meta-languages. For the federal government, the controlling meta-language is the Constitution. In the states, the state constitution functions the primary meta-language (Constitutional Convention 1787). Judges and lawyers define the law when they extrapolate rules from these meta-languages. This extrapolation is not so much a language analysis as it is an exercise of institutional power. In doing so, the law assumes, within their respective meta-languages, that all facts presented to it are either true or false, like the analytic tradition. To presume this, there must implicitly be a set referent for each fact that enters the legal arena. For instance, consider the following statement: “The plaintiff committed theft” is true if and only if the plaintiff committed theft.

The quoted language may be treated as a natural-language proposition, whereas the italicized language is the institutionalized legal meta-language with the same syntax as the natural language. Like in the general form of Convention-T, for the quoted natural language proposition to be true, its truth functions must be verifiable by existing legal discourse. An example of how this is used can be seen within Pennsylvania law. Pennsylvania describes theft as: “A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof ” (18 Pa.C.S. § 3921). This language is the standard from the meta-language of legal discourse, which must be applied to the general discourse. The above statement in propositional logic reveals the factors that must be subjected to a truth evaluation: ∀x: (U(x) v E(x)) ^ I(x) - > T(x). where x symbolizes some property, U symbolizes unlawful taking, E symbolizes an exercise of unlawful control, I symbolizes the intent to deprive, and T stands for a theft. Each of these variables to the left of the arrow must be evaluated for their individual truth-value to determine the truth of the variable to the right of the arrow. The court must find that either a condition is true, or a condition is false, to render a legal conclusion. The legal community’s assumption that the law can accurately determine all the variables necessary to render an accurate legal conclusion is a conceptual flaw in the legal process. All legal fact-finding takes place through the evidentiary process, which is devoted to taking propositions as presented from signs in the general discourse and evaluating their use in the courtroom, i.e. making them legal signs. As Black has identified, this is a closed institutional discourse that is necessarily limited by that discourse’s rules. This transition assumes that the general sign corresponds with its object exactly; in other words, it presumes that “a” = a, with a one-to-one ratio. The legal process changes a sign, with an infinite potential of meaning, into a symbol, which has a single meaning. This may be innocuous in terms of more ­concrete facts, such as physical evidence, but when it comes to intangible ideas, such as intent or consent, this change is a far more dangerous process.

3  Tarski, Peirce and Truth-Correspondences in Law...

65

Focusing on the Pennsylvania definition of theft, we find that there are tangible and intangible variables. Property may seem easy to define, and generally is with regard to physical property. However, intangible property, such as intellectual ­property, is not an easy concept to define legally, and assigning a truth-value may be difficult. Other variables are even murkier, such as proving the truth of an “unlawful taking,” which could be known by previous definitions of “unlawful taking.” The most uncertain variable, however, is the intent element, which has a definition in the legal sense, but cannot be naturally determined at all. Can anyone really know the intent of another person? Can an evaluator really say for sure that there was the intent to take someone else’s property? Conceptually, the answer must be no; we cannot see into the soul of the accused. However, not only can the law not truly determine whether there actually was natural intent, legal analysis must refuse to do so. The law must make a legal presumption and must assume for the sake of institutional integrity that facts that are inherently unknowable are knowable, just like analytical logic assumes that the symbols used have a definite truth-value despite inherently incomplete sets of definitions. The legal community’s presumption of certainty in knowing the truth or falsity of facts from the general discourse restricts legal meaning to only that which fits into the code in which it operates. However, Tarski’s method, which provides the paradigm for the process of legal discourse in fact-finding, is not the only conceptual truth process available. Peirce creates a system of truth-functions that allows for the semiotic nature of truth with respect to signs and does not require that those signs be changed to symbols for formal analysis.

3.4 Peircean Truth-Correspondence Theory: An Invitation to the Semiotic Where analytic-legal analysis as seen through the lens of Convention-T creates a profound restriction in the overall breadth of interpretation, Peirce uses a logical analysis that allows for the expansiveness of the semiotic. Peirce’s conception of firstness within the sign is identified in his truth theory with the introduction of the L-value, or the unknown (Fisch and Turquette 1966). All signs begin as unknowns in their basest form, as infinite potentiality. Truth-value derives from the unknown; that is, if the unknown truth-value ultimately becomes known, then it can be identified as true or false. This process is like the sign beginning as the infinite potential of the unknown and taking on meaning once it is related to an object. Tying a sign to an object creates truth-analysis. Peirce’s semiotic approach to truth-theory acknowledges that the truth-definable proposition arises from the unknown, whereas analytic-legal analysis assumes that all objects begin with independent meaning apart from relation to other signs, thus precluding it from the richness of analysis afforded by Peirce’s theory.

66

P.V. Fleet

3.4.1 The Role of Firstness in Semiotic Analysis The crux of Perciean truth-theory is the idea of firstness, which can be closely paralleled to Husserl’s phenomenological theory. Firstness, in Peirce’s mind, is described as “the mode of being which consists in its subject’s being positively such as it is regardless of aught else” (Broekman 2009, Sec.  2). Husserl comes close to, but does not necessarily mimic, similar ideas in his conception of the attitude change that necessarily occurs within phenomenological experience (Broekman 2009, p. 34). It is worth examining both concepts because Peirce’s firstness is linked to Husserl’s attitude change; indeed, this concept is the “hinge” of firstness (Broekman 2009, p. 34). Husserl’s concept of Einstellungänderung, or attitude change, is connected to his idea of the “first” in the initial conception of an object in sense experience. Husserl holds that “every philosophical attempt requires an ego that concentrates on a ­particular theme,” that concentration being an “attitude” (Broekman 2009, p. 35). He further spoke of an infinite amount of attitudes that one may have towards a specific stimulus. In other words, he focused on an infinite amount of concentrations of an ego on that theme. Attitude changes create new reality for the subject who focuses on a theme; continuous ruptures create infinite interpretation. Picture a man who is observing a city street, and then hears the siren of a police car. The siren acts as a rupture in the attitude of the man towards the city street. Did the city street exist as a city street before the siren? Is the siren essential for the man to view a city street? Each of these requires a philosophical discussion (Broekman 2009, p. 36). Peirce would refer to the city street as a concept of “firstness” because it is an idea that initially exists in a theoretical conception. Peirce makes it absolutely clear that firstness exists only in a theoretical concept, because “as long as things do not act upon one another, there is no sense or meaning in saying that they have any being” (Peirce 1903, Sec. 2). This creates some sense of irony within Peirce’s theory, however, because to examine firstness is to necessarily divide the concept from secondness and thirdness when firstness does not exist independently of the other two. In doing so, we divide what is intended to be a “unified whole” (Broekman 2009, p. 51). Husserl’s idea of the “attitude” in phenomenological experience corresponds to Peirce’s idea of “feeling” within firstness. The crucial link lies in understanding that “firstness is the awareness of attitude change, which expresses itself as feeling (Broekman 2009, p. 61). This attitude change cannot be expressed as an attitude change to individual events, as nothing individual actually exists because of the unified nature of sign relations. This attitude change necessarily exists only in relation to “all there is” in the world. Peirce thus defines a feeling as “an instance of that sort of element of consciousness, which is all that it is positively, in itself, regardless of anything else” (Broekman 2009, p. 60). It is important to note that in contrast to logical analysis, which is mechanical and rigid with no real conception of firstness, Peirce’s conception of the process of feeling and firstness is necessarily whole, with the expectation of rupture (Broekman 2009, p. 62). When taken into consideration with Black’s objection to semantic methods of truth as inherently incomplete, thinking of Peirce’s firstness as necessarily whole provides some reassurance as to the completeness of his system. However, we cannot expect that firstness will be

3  Tarski, Peirce and Truth-Correspondences in Law...

67

i­ndependently consistent, as the whole is continually being reimagined in light of constant rupture, which means that the entire system must change. This is why Peirce must yoke the mercurial nature of firstness to objects; the objects to which the signs relate help to identify the nature of firstness for meaning and communication.

3.4.2 Peirce’s Firstness in Truth-Correspondence The concept of firstness plays into truth-analysis by allowing logical symbols to be analyzed as semiotic signs. Without the infinite potentiality of firstness, signs become symbols, and logical analysis falls into the trap of logical incompleteness. However, firstness must be fixated in signs, then not only can meaning not be related between individuals, but meaning cannot exist for Peirce because meaning only exists in sign-relations. In his theory of truth-relations, the problem for Peirce becomes how to express firstness and the rupture in feeling in a logical system. To achieve this, Peirce’s major contribution to truth-theory is the introduction of an element of firstness, or infinite potential (Fisch and Turquette 1966) through the L-value, an alternative to the restrictive nature of ordinary truth-tests. In analytic truth theory, there can only be a limited amount of outcomes to a particular situation. For example, in the analytic analysis: X

T

F

Not-X

F

T

As can be seen, only two outcomes are possible in the analytic framework; when X is true, not-X is false, and vice-versa. A symbol is thus only true or only false. This analysis completely cuts out the idea of firstness because analytic traditions are only concerned with the object and the word denoting that object. Concepts of phenomenology or firstness, which encompass the whole of experience, are utterly useless to the legal-analytic logician. On the other hand, Peirce uses the L-value to expand the analysis further into the realm of possibility rejected by analytic-legal analysis (Fisch and Turquette 1966): X

T

F

L

Not-X

F

T

L

Here, Peirce’s introduction of the unknown introduces a third set of consequences. If X is unknown, not-x must necessarily be unknown. The L-analysis of X shows X as a sign with infinite possibility, rather than X as a symbol, with the only possibility as truth or falsity. Additional meaning is derived when signs are compared with symbols. Assume the following scenario when determining the truth of the proposition “X and Y.” The possibility chart becomes: X →, Y↓ T F L

T T F L

F F F F

L L F L

68

P.V. Fleet

It can be seen that the relationship of “X and Y” is dependent on the truth-values of the components. When the truth-value of X is true, the relation of “X and Y” is true only when the truth-value of Y is also true. This is the relationship between two symbols, and the mechanical nature of applying symbols to relations is straightforward. When applying symbols to signs, however, the relation will also be unknown, unless the known value defeats the relation. In this case, if X’s truth-value is true and Y’s truth-value is unknown (thus making it a sign), then the relation “X and Y” is also unknown. When X’s truth-value is false and Y’s truth-value is unknown, then “X and Y” must be false because X is false. The falsity of X defeats the relation. However, if the relation was “X or Y”, the chart would look very different: X→, Y↓ T L F

T T L T

L L L L

F T L F

In this relation, the introduction of the L creates a situation where X may have a false truth-value, but if that Y has an unknown truth-value, the relation “X or Y” remains unknown. Peirce’s expansion of the idea of truth as an unknown introduces a significant amount of semiotic analysis to general discourse. It allows for the critical introduction of personal, intuitive experience to enter the realm of logical analysis. This emotional experience is at the heart of Peirce’s conception of firstness (EveraertDesmedt 2006). Consider the example of an interpreter who has never seen colors before and first experiences the color red. Whether or not an object is red would have to be classified as Peirce’s “L” for that interpreter. It is only when the sign of “red” is tied to that which is red that the classification can be moved to a “T” or an “F.” Whether the object is red is not true or false independently of anything else; it just “is” before tying it to an object. It is the judgment of the interpreter that creates the true/false dichotomy, whose exclusivity is cherished in analytic philosophy. By contrast, the semiotician understands that it is not the exclusivity of true and false that creates meaning, but the unity of true and false in the “true-false”, which Peirce expresses through the L-value (Fisch and Turquette 1966). Peirce’s L-value allows for traits to exist in relation to each other such that the sign is freed from the chains of symbolism. Consider that this individual has seen red, but is now is confronted with his first conception of pure purple; that is, a color that is fifty percent red and fifty percent blue. For the interpreter to initially respond to purple as “red” would not be implausible, even though this would not be “true” in the pure analytical sense. Peirce’s “L” does not limit the analysis of purple to “red” or “not-red” like analytic philosophy does; it allows for the impression of purple to be “red-blue”, to be both “red” and “not-red.” The interplay of “red” and “not-red” allows purple to exist. Here the analytic experience severely limits our fictional interpreter’s potential experience of purple by strictly assigning a “true” or “false” value to whether or not it is red, whereas the semiotic analysis uses the “unknown” element as a path to unify “red” and “not-red” to create the intuitive impression of purple.

3  Tarski, Peirce and Truth-Correspondences in Law...

69

Peirce’s truth-theories play closely with the triadic relationship of signs. As discussed earlier, anything can be a sign, yet a sign is not a thing. In terms of truth theory, a sign originates as “L,” representing the unknown. Until a relation is made, “L” can never be anything more than the unknown. When an idea is tied to an object, like a word, image, or feeling the concepts of “true” or “false” arise. However, the unknown allows for more flexibility than simply classifying a symbol as true or false. It allows for that which is unclassified in some respect to be a myriad of things, thus escaping Black’s objection. In contrast to the analytic assumption of a 1:1 ratio between a symbol and its object, semiotics assumes an ∞:1 ratio, where the infinite potential of a sign is linked to the object. For instance, a cup and a pot may share several characteristics: they are both hollow, they both are circular, they both have an opening, they can both be made of clay, and so forth. Until they are tied to ideas of “pot” or “glass”, the sign could be either. The interpretant is established after the object is identified, which is the crux of the relation “true” or “false” or “unknown.” Logical analysis only deals in symbolism, which assumes that signs have only one interpretation. Semiotic outlooks arise in the transient quality of the sign, which possesses infinite possibility. The ability of semiotic truth-theory in describing the process by which signs in general discourse acquire meaning contrasts strongly with the analytic-legal process.

3.4.3 Peirce’s Truth-Correspondence and Legal Discourse Peircean truth-analysis allows for truth to be analyzed from a semiotic perspective and expands meaning in ways that ordinary analytics cannot. Semiotics allows a signs legal relation to exist, but that legal relation must assume all other relations away in order to function. As described above, analytic analysis assumes a 1:1 ratio among symbols. Semiotic analysis, through the L-value, assumes a ∞:1 ratio of signs, and it is this infinite potential of signs that the law cannot allow itself to accommodate. Semiotic analysis can describe intangible legal facts that analytic analysis cannot. Internal, personal responses cannot truly be classified as “true” or false” by an outside observer. Instead, emotional qualities exist in relationship to a variety of other factors, which the L-value acknowledges. General facts like consent cannot exist as a simple 1:1 ratio because there is never such a thing as “consent” or “notconsent.” Consent exists in relation to everything surrounding the circumstances, such as the time of day, the individuals involved, the method by which consent was supposedly given, and so forth: consent would be determined by the entire network of conceivable relations. Therefore, any potential set of facts can be indicative of consent, just like a sign, can be anything. Consent then arises from the ∞:1 ratio, with the relationships being anything that is linked to “consent.” Consider the Pennsylvania statute explored in the legal-analytic formula. In the semiotic analysis, the definiteness of the symbols is reduced significantly. The relationship of all the factors is viewed in unity, not as exclusive factors. “Theft” would

70

P.V. Fleet

be regarded as “unlawfully takes-movable property-intent to deprive,” viewed as a unity, not “unlawfully takes AND movable property AND with intent to deprive,” as in the logical analysis. Individual elements like the “intent to deprive” would be related to the other legal elements (the “motivation-emotion-background”) until the complete web of relations is created, creating a more accurate exposition of “theft”. The fact analysis would be conducted with each factor in relation to each other, not an independent finding for each. Acknowledging the entire breadth of sign relation within to the Pennsylvania definition of theft necessarily relegates “theft” to the L-value. Concepts like “property”, “intent to deprive”, and “unlawfully takes” always have elements of their opposite which drive their semiotic definition. Semiotics does not demand intent or not-intent, as in analytic-legal analysis; it can link the two to show the relationship that the two concepts can share. Exclusivity, as such, is not required in a legal-semiotic analysis. The ∞:1 ratio, as maintained by the L-value in semiotic truth, allows for legal discourse to acknowledge the potential of sign-relations within its framework. Legal discourse, however, could not conduct such an analysis without collapsing upon itself. In law, facts must be narrowed to a particular interpretation such that they may be applied clinically to the factors. General discourse shows every relation that a sign may have, but legal discourse uses only a legal relation. If other relations a sign could possess are acknowledged in legal discourse, the necessary self-reference of the institution fails. One example of how the law attempts limits signs to symbols is the recent United States Supreme Court decision Citizens United v. Federal Election Commission (Citizens United v. FEC & 558 U.S., 205.2010), which concerned the corporate funding of political broadcasts in elections. In general discourse, a corporation is thought of as an entity that exists apart from its shareholders and also as property that is held in trust for the shareholders. The corporation exists both in relation to the entity and in relation to property; in fact it exists as a semiotic “entity-property” (Backer 2010, p. 16). The sign “corporation” exists through its relation to both concepts, not just one. However, the majority in the Supreme Court eviscerated the property-relation from the sign “corporation,” and declared that it was true that a corporation was an “entity,” only self-referentially examining those legal facts that supported the entity conception of a corporation. Using this conception, the Court held that it was “true” that corporate funding of candidate broadcasts may not be restricted under the First Amendment. The relation between “corporation” and “entity” became the singular legal relation justifying the majority’s opinion, and all other relations were ignored. The sign “corporation” is no longer a ∞:1 ratio sign whose truth is indicated by the potentiality of the L-value. “Corporation” is now merely a 1:1 ratio symbol of the entity, classified as “true” or “false.” Legal truth, particularly in common law, is therefore created within a microcosm of individual case law, where a singular interpretation of events is crystallized in the opinion. The common law artificially denies the ∞:1 ratio and instead chooses to use the 1:1 ratio in the legal fact-finding process. This is because the legal institution desires a veneer of certainty into which Peirce’s L-value could never fit. The legal institution paints itself as an arbiter of truth, rendering decisions that are absolute and measured in order to maintain its power over the public. If legal opinions

3  Tarski, Peirce and Truth-Correspondences in Law...

71

acknowledged that factors leading to their conclusions were unknown, the institution would be effectively stripped of its control over the truth. The order that law imposes upon the social structure breaks down in the face of the unknown. Therefore, legal discourse must necessarily transmute general signs into legal symbols for the sake of maintaining their power over the populace, and this process has extreme consequences for the future semiotic meaning of those signs.

3.5 Conclusion: The Effects of Legal Discourse Upon General Discourse Law must necessarily restrict the semiotic potential of signs to singular interpretants so the institution may function. The effects of transforming signs of the general discourse into the symbols of the legal process have lasting ramifications for general discourse when the legal signs re-enter. The limited meaning of legal signs permeates signs in general discourse, permanently and psychologically stunting the meaning of those signs for those influenced by legal discourse. Lacan noted this dynamic in his theory of the Master Discourse, where the master signifier dominates discourse by imposing his view of meaning upon a secondary signifier. The significant issue behind this, and especially for legal discourse, is whether general discourse, once dominated by legal discourse, may regain its semiotic flexibility. When legal discourse interprets the signs of the general discourse, those signs become legal symbols in the minds of those subjected to the legal process. General signs, when used to establish legal evidence, become by necessity legal terms because they enter the institution. Once a ruling on a case is decided, those legal terms pervade into general discourse. For example, in general discourse the idea of “theft” can take on a number of connotations; it could simply be someone taking something that is yours, it could be someone who simply wins something by chance, and so forth. However, once the event called “theft” in the general discourse is ­subjected to the legal process, like through the Pennsylvania statute above, the meaning of “theft” is condensed into only one interpretation. Meaning is restricted and once this ruling passes into the general discourse, the “theft” that at one time held several meanings now only has one for the purposes of general discourse. Once those privy to the ruling on theft return to their usual lives, their Peircean interpretant of theft becomes narrowed. Later on, if someone were to take something the legally influenced interpreter possessed, they would initially think of the term “theft”, but this instinct would be silenced by the legal definition of “theft” such that they think of the symbol “legal theft” instead of the sign “theft”. This legal influence relates closely to Lacan’s psychoanalytic theory of the Master Discourse (Unattributed 2007). In the Master Discourse, Lacan explores a dynamic where a master signifier, who is a dominating party, imposes a version of events upon a secondary signifier such that the secondary signifier’s version of events becomes the master signifier’s version of events. Lacan compared this discourse to the master dominating the slave, where the slave has no free will and must accept the orders of the master without question, or else be subjected to the

72

P.V. Fleet

lash. Legal discourse proceeds very closely to this dynamic. If a perpetrator attempts to put forth a conception of his crime that is different than that of the legal community, his version will not be accepted and he will be punished. In the common law, legal-master discourse, judges and lawyers are the most significant master signifiers. Judges create symbols using analytic-legal discourse to decide cases brought before them and punish those whose actions do not conform to the rules of the legal institution. There is no choice of signification for parties dominated by the judge; they must accept the singular interpretation he presents. The lawyer also uses analytic-legal reasoning to compel the judge or jury to accept their interpretation as the singular interpretation, guilty or not-guilty. However, they cannot impose signification on a judge or a jury in the same way that a judge can; their place as a master signifier lies in relation to the public and other lawyers. In settlement negotiations or plea bargains, one lawyer attempts to influence the other to accept his interpretation of symbols. Lawyers also use their institutional authority as upholders of the law to influence non-lawyers to accept their interpretation of reality; often times, the public is so dominated by the law that they will accept even an informal legal account of events without question. Although judges and lawyers wield institutional power over sign interpretation that imposes severe limitations upon the general discourse, de-conditioning is ­possible. As long as the interpreter recognizes the law as wielding institutional, not actual, power over signs and that the law is forced to conform to its own autopoeitic axioms, the interpreter is free to recognize legality as an interpretant of a sign and its related object. This realization frees the interpreter from the master discourse between the law and the citizenry that so often dominates society. Some commentators express this realization as a basis for semiotic protest against political and legal institutions. As Rosen so succinctly expressed: Social justice (or at least a morally rich pluralism) depends not only on the autonomy of law but also on the interdependencies of law and culture. Interdependence is normatively required, at least in part, because not only must the law morally matter to a culturally heterogeneous population, but also the law ought to be able to speak to those whose claims it does not currently recognize. (Rosen 1990, p. 517)

Even though the law cannot allow itself to recognize interpretants outside of its institutional boundaries, the individual can. The law loses its sign-dominating power over the individual if it is seen as an interpretant, not the interpretant. Through the semiotic analysis of truth-theory, the individual finds that the truth is always relative (that is, sign-relative) and not intrinsically linked to the declarations of the powerful, whether that power is invested in a legal body or a natural language. Perhaps the individual’s actions must conform to legal standards to avoid punishment, but the mind does not.

References Atkin, Albert. 2006. Peirce’s theory of signs. http://plato.stanford.edu/entries/peirce-semiotics/. Accessed April 22, 2010.

3  Tarski, Peirce and Truth-Correspondences in Law...

73

Backer, Larry Cata. 2010. What is a corporation? The regulatory effects of difference. Conceptions of Corporate Personality in American Constitutional Law in Citizens United v. FEC. Black, M. 1948. The semantic definition of truth. Analysis 8(4): 49–63. Broekman, Jan M. 2009. Firstness and phenomenology. In: Prospects of Legal Semiotics, Wagner & Broekman [Eds] Springer 37–77. Broekman, Jan M. 2010. The Roberta Kevelson seminar on law and semiotics course book, 45–59. Carlisle: Penn State University, Dickinson School of Law. Citizens United v. FEC, 558 U.S., 205. 2010. Constitutional Convention. 1787. The United States Constitution. http://www.archives.gov/exhibits/ charters/constitution_transcript.html. Accessed April 26, 2010. Everaert-Desmedt, Nicole. 2006. Peirce’s semiotics. http://www.signosemio.com/peirce/a_ semiotique.asp. Accessed April 22, 2010. Fisch, M., and A. Turquette. 1966. Peirce’s triadic logic. Transactions of the Charles S. Peirce Society 2: 71–85. Hammer, Eric. 2007. Peirce’s logic. http://plato.stanford.edu/entries/peirce-logic/#TV. Accessed April 22, 2010. Hodges, Wilfred. 2006. Tarski’s truth definitions. http://plato.stanford. edu/entries/tarski-truth/. Accessed April 24, 2010. Kemerling, Garth. 2001. Correspondence theory of truth definition. Philosophy pages. http:// philosophypages. com/dy/c9.htm#corr. Accessed 22 April 2010. Peirce, Charles Sanders. 1902. The essential Peirce, Vol. 2. Ed. The Peirce Edition Project in 1998. Bloomington, IN: Indiana University Press, Peirce, Charles Sanders. 1903. On phenomenology. In: The essential Pierce, 1998, p. 145. Rosen, R.E. 1990. Law and human behavior. New York: Springer Press. Shramko, Yaroslav and Heinrich Wansing. 2010. Truth values. http://plato.stanford.edu/entries/ truth-values/. Accessed April 24, 2010. Tarski, A. 1944. The semantic conception of truth and the foundations of semantics. Philosophy and Phenomenological Research 4: 341–376. Unattributed. 2005. Julia Kristeva – introduction. http://www.signosemio. com/kristeva/a_kristeva. asp. Accessed April 22, 2010. Unattributed. 2007. Seminar XVII. http://nosubject.com/Seminar_XVII. Accessed April 23, 2010. Wittgenstein, Ludwig. 1958. Tractatus Logico-Philosophicus. Oxford: Blackwell.

Part II

History, Law and Semiotics

Introduction Jan M. Broekman

In his first paragraph offering preliminary thoughts on semiotics and history, William Pencak outlines dimensions of research that are foundational for understanding the role of semiotics in the construction of historical knowledge. This chapter does not focus on the wealth and complexity of that global theme, but offers extensive insight in a particular aspect of history as an element of positioning legal semiotics in a law school’s legal education. That particular aspect is the historical appreciation of first teachings of law. The relevant background thesis is, that the concept of law changes semiotically when it becomes the subject of teaching. The two themes are intertwined, and can be found in the historical considerations of Part II. They pertain to Butler’s presentation of the law teaching of John Reed (Carlisle, Pennsylvania) even before the School of Law had become an institutional framework for these teachings, as well as the different and sometimes politically conflicting teachings of St. George Tucker (Virginia) and Wilson James (Pennsylvania) in 1790. The three: Reed, Tucker and James, refer intensively to Blackstone’s Commentaries on the Laws of England, aware of its continuing importance after the American Revolution. Both Tucker and James exhibited a sense of excitement about the fact that they were explaining, for the first time, something new and wonderful under the sun. Law, having been made the subject of teaching, becomes distinguished from the focus on practical dimensions of law as exhibited in law offices and on the bench. Reading the texts in this Part leads, as it did during the Seminar and its Round Tables, to an experience of how legal education makes and continuously changes meanings in law.

J.M. Broekman () Dickinson School of Law, Penn State University, W. South Street 333, 17013 Carlisle, PA, USA email: [email protected]

Chapter 4

History and Semiotics: Preliminary Thoughts William A. Pencak

All historians are semioticians: from an infinite number of occurrences, they select those, which they consider meaningful, hoping to convey the importance of that interpretation to their readers. Even positivists who say history is just a bunch of facts must decide what facts, or the compilers of a chronicle have to choose what to include, be it Anglo-Saxon kings or the earned run averages of major league ­baseball pitchers. This is not particularly interesting so far. Where it becomes interesting is when historians investigate with some care and sophistication the systems of symbolization humankind has developed to give meaning to its existence. Hegel tells us, if not historically correctly, then at least as the absolute rock-bottom element of human existence, that civilization begins with a master commanding a slave. The leisure to govern, worship, write, paint, and design would not be available to the master if the slave did not exist. Indeed, an interesting school of historical interpretation, the Marxist, makes this rock-bottom the fundamental rule of history that matters: ‘all history is the history of class struggles.’ And indeed, by excluding many, many facts it can work out that way. Karl Marx’s Eighteenth Brumaire of Louis Napoleon is a desperate effort to shoehorn a crazy quilt of political allegiances into an episode in the war between economic classes: those who refuse to behave the way they should are the ‘Lumpenproletariat’ – traitors to their class. Yet there are occasions – for instance, labor strikes – where class conflict is indeed the most important factor. They way to judge a historical interpretation is to look at what it leaves in and what it leaves out. An interpretation of the twentieth-century that omits the personality and behavior of Joseph Stalin and Adolf Hitler, interpreting them simply as products of their time, is simply inadequate because there were no other products like them. Yet to fail to acknowledge that such extreme personalities would be

W.A. Pencak (*) History and Department of Jewish Studies, Penn State University, University Park, PA, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_4, © Springer Science+Business Media B.V. 2011

77

78

W.A. Pencak

forced to stifle themselves or go to a prison or a psychiatric institution in less ­troubled times is also to miss the boat. The historian does not simply identify symbols (leaders, in this case) but weighs the elements that empower or disable them. One important historian who developed a semiotic approach to history was Carl Becker (1871–1945). Becker’s key insight appears in his book The Heavenly City of the Eighteenth-Century Philosophers, in which he argues that these harsh critics of medieval Christianity simply brought Utopia down to earth in some ideal, future society. Each of these eras had its own ‘magic words’ or ‘code’ – ‘certain unobtrusive words with uncertain meanings that are permitted to slip off the tongue without fear and without research; words which, having from constant repetition lost their metaphysical significance, are unconsciously mistaken for objective realities’ (p. 47 in Becker (1932)). God, sin, heaven, grace, and salvation were the magic words of the Christians, whereas during the Enlightenment ‘the words without which no enlightened person could reach a restful conclusion were nature, natural law, first cause, reason, sentiment, humanity, perfectibility’ (Becker 1932, p. 47). Becker defined his own early twentieth-century world as ‘continuous flux’ a ‘process of waste and decay’, an ‘accident’ – humanity was ‘carelessly thrown up between two ice ages by the same forces that rust iron and ripen corn’ (Becker 1932, p. 12–15). In large part, the historian investigates how people use and challenge ­contemporary symbolisms through conformist or rebellious behavior. Charles Sanders Peirce (1839–1914) anticipated Becker’s way of looking at the world. His theory of history, neglected in his own lifetime as Social Darwinists believed, that not only humanity, but certain ‘races’, ‘nations’, and individuals had succeeded because they were the ‘fittest’, the best mentally, physically, and morally. History had ‘evolved’ – for instance, the liberty arose in the Anglo-Saxon forests and communities and grew throughout British history until the nearly-perfect society of the late nineteenth-century had emerged. Peirce would have none of this. History erupted – cataclysmically. A certain nation, moral or religious code, international or economic system would function reasonably well for a period, and then, at some point, had to collapse. In the period of chaos and uncertainty that followed, new, unforeseen possibilities arose until they, too, settled down to a new era with its own codes and customs. At these times, people would have more freedom to mold the future than during periods where a general consensus prevailed. Chance, uncertainty, and free will thus played key roles in history (Pencak 1991). Twentieth-century thinkers followed Peirce’s lead without being aware of his innovations. Thomas Kuhn (1922–1996) would restate the same approach to history in The Structure of Scientific Revolutions (Kuhn 1962). Michel Foucault (1926–1984) would term these codes and conducts the ‘ēpistēme’s’ of a particular age, and argue that while establishing cause and effect is futile, itself a reflection of a particular world-view, it is possible to identify the symbols by which people define themselves. Unlike Peirce, who stresses the opportunity for freedom, any society for Foucault constitutes a system of oppression, although freedom is possible where codes and institutions are inconsistent, incomplete, or incompetent (Pencak 1995). The most systematic attempt to develop a philosophy that considers the symbolisms by which humanity has represented itself throughout history as the proper

4  History and Semiotics: Preliminary Thoughts

79

subject of historical study has been undertaken by Eric Voegelin (1901–1985). Voegelin maintains that human beings find themselves faced with hardship and mortality, yet create symbols of the natural, social, and divine worlds so that it makes sense. To realize their full humanity, Voegelin argues, people must be able to explain both the independence and interdependence of these worlds. None of these realms of experienced can be privileged – a society that, say, neglects religion and morality, or an economic system that works, will find itself paying the price. To claim a particular society is ideal or – believing Heaven can be constructed on earth – will lead its adherents to persecute others who disagree. Voegelin’s impressive life work traced the symbolizations used by different societies throughout ­history and why some proved more successful in leading to a better society that others (Pencak 1993). John Lukacs (b. 1924), one of the finest professional historians of the late twentieth century, known mostly for his work on World War II, has provided the modern, theoretical underpinnings to a semiotic approach to history with Historical Consciousness; or, The Remembered Past (Lukacs 1968). He does not use the semiotic jargon or theory, having written this book before semiotics came to public attention in the 1970s. He argues that historical thinking is a different form of thinking from both the scientific and the literary (is thus neither art nor science, as some have claimed), and that those who pretend scientific history can be exact are at odds with modern science, which is built on uncertainty and probability. The historian’s task is to bring the past to life through her ability to present the symbols and struggles of past ages in a coherent, well-written format so that it will strike readers as a grand moral pageant, filled with paradox, good, evil, tragedy, and triumph which will existentially become important to a present audience. Most historians, of course, do not develop an interpretation of the entire course of human history. They look at particular events, people, and periods. Many of them are undertaking semiotic analyses without even being aware of it. For instance, Lester C. Olson has written Emblems of Community in the American Revolutionary Era: A Study in Rhetorical Iconography (Olson 1991). It examines flags, artwork, songs, uniforms, currency, and other media that persuaded people to support, or opposed, the Revolution. Joan B. Landes, after attending the Semiotic Institute at the University of Toronto, enriched her book on Women and the Public Sphere in the Age of the French Revolution by looking at the way women were depicting in art, music, and public orations to show how their role in the Revolution first expanded and then contracted (Landes 1988). Rather than repeat my past scholarship, I refer the reader to two essays for a larger sample of historical works that employ a semiotic approach (Pencak 1995, 1998).

References Becker, Carl. 1932. The heavenly city of the eighteenth-century philosophers. New Haven: Yale University Press. Kuhn, Thomas. 1962. The structure of scientific revolutions. Chicago: University of Chicago Press.

80

W.A. Pencak

Landes, Joan. 1988. Women and the public sphere in the age of the French revolution. Ithaca: Cornell University Press. Lukacs, J. 1968. Historical consciousness; or, the remembered past. New York: Harper & Row. Olson, Lester C. 1991. Emblems of community in the American revolutionary era: A study in rhetorical iconography. Washington, DC: Smithsonian Institute Press. Pencak, William. 1991. Charles Peirce and the semiotics of history. Semiotica 83(3/4): 311–332. Pencak, William. 1993. Eric Voegelin’s semiotics of history. In History, signing in: Studies in history and semiotics, ed. William Pencak, 109–131. New York: Peter Lang. Pencak, William. 1995. Foucault stoned: insanity reconsidered, and history. Rethinking History 1: 55–75. Pencak, William. 1998. History and semiotics. In Hi-fives: A trip to semiotics, ed. R. Kevelson, 103–123. New York: Peter Lang.

Chapter 5

Teaching Law and Semiotic Sensitivity In the Life and Career of John Reed, Founder of the Dickinson School of Law William E. Butler

Long before the concept of semiotics was introduced into the context of law and legal discourse, the Honorable Professor John Reed, LL.D., focused in his law l­ectures on what legal meaning is, how future lawyers should have regard to legal meaning in their own practice, and, above all, how meaning emerges in law. His socio-political environment was, to be sure, very different from that of today. In his analysis of the relationship between the law of nations and the law of the United States, with particular reference to Pennsylvania, he articulated the process of how legal meanings develop. In so doing he pointed to a format of sensitivity for the emergence of legal meanings, explaining how States and governments have no other existence but through the people of whom they are composed and represent. This pre-semiotic insight guided one of the earliest efforts to establish an institution of legal education, transposing the concept of law as a positive observable fact to law as an attitude that creates meaning. In front of Trickett Hall at the Dickinson School of Law, Pennsylvania State University, in Carlisle stands a marker erected by the Pennsylvania Historical and Museum Commission which reads in relevant part: “Dickinson School of Law – Oldest law school in Pennsylvania; founded in 1834 by the Honorable John Reed, eminent jurist and author of ‘Pennsylvania Blackstone’”. The marker rightly draws a linkage between the founder of Dickinson School of Law and the monumental introduction to the laws of Pennsylvania which most are unaware of, including ­bibliographers (Morris Cohen 1998, Vol. II, p. 235) and the antiquarian book dealers who from time to time are able to offer a copy of what has become quite a scarce book. Cohen notes Reed’s judicial role and laconically says: “He also taught law at Dickinson College” There is every reason to suppose that the two enterprises were linked, that Judge John Reed wrote his massive treatise with the founding of a law school in mind – that he intended not only to create an institution in which the

W.E. Butler (*) International Institute for Conflict Prevention and Resolution, Washington, DC, USA John Edward Fowler Distinguished Professor of Law and International Affairs e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_5, © Springer Science+Business Media B.V. 2011

81

82

W.E. Butler

learned science of law could be taught in the Commonwealth of Pennsylvania, but that he produced a first-class ‘textbook’ for his students. Reed’s treatise is rather more than a ‘textbook’ written by an academic jurist, however. Beginning law professor he may have been, self-anointed and selfappointed to this calling, but his career as a law teacher was preceded by experience as a private legal practitioner, legislator, public official, and judge that could not fail to make him aware of the tension between conceptualizing law for instructional purposes and applying law to individual cases brought by clients. This “tension” he will have been aware of not merely as a law professor and dean teaching individual courses in the law school curriculum, but as the founder of a law school dedicated entirely to graduating young men (and eventually, young women) qualified to ­practice law and to assume duties of public service. John Reed deserves to be remembered as an important regional judge who by vision and application became one of the foremost legal educators and commentators on the law of Pennsylvania during its post-revolutionary formative era. John Reed was born in Millerstown, Pennsylvania, on 5 June 1786, the son of General William Reed, who distinguished himself during the Revolutionary War and in 1790 was a member of the Convention from York County, which in that same year framed the first Constitution of the Commonwealth of Pennsylvania. William Reed later served as a Senator in the State Legislature, representing York and Adams counties in 1806. In a remarkably concise and self-effacing set of Reminiscences of his life, ­written for his children (Landis 1934, pp. XXXVIII, 161–163; Laub 1983, p. 11), (Archive, Dickinson College, at I Vale, Mary 1947–57). Reed relates that after six years near Millerstown his father exchanged the family tract for a larger plot of land on Tom’s Creek, near the Maryland line and the family migrated there in 1792. He remained on the farm until the age of seventeen, when he was sent together with his brother William to Grammar School under the care of the Rev. Mr. Dobbin at Gettysburg. He attended Dickinson College with his brother, graduating with the class of 1806, and then the two of them studied law under the supervision of William Maxwell, Esq., of Gettysburg. There are conflicting accounts in Dickinson College sources as to whether John Reed actually graduated or not from the College. His own memoir says that he did, and that remains the best evidence to date contemporary to his period. In 1809 he was admitted to the Bar and “settled down for practice in Greensburg, Westmoreland County” on 1 April of that year. For several years he practiced in the counties of Somerset, Indiana, Armstrong, and Westmoreland, ­acting as prosecuting Attorney in the latter two counties. He married Elizabeth Guthrie in 1812. She died in 1817 leaving one son, James G. Reed. Two other children died within a few weeks of their mother. In 1815 John Reed was elected to the Senate of Pennsylvania. He served for four years and then declined re-election. For a brief period in 1818 he performed the duties of Deputy Attorney General of the Commonwealth of Pennsylvania. In December 1819 he remarried, on this occasion Mrs. Sarah Ann Read of Greensburg, Pennsylvania. His judicial career commenced on 10 July 1820, when he was appointed the President Judge of the Ninth Judicial District, which in those days comprised the

5  Teaching Law and Semiotic Sensitivity...

83

present counties of Cumberland, Franklin, Adams, and Perry. The appointment, he said, was “unsolicited and unexpected”. He remained in that office until February 1839, when a new Constitution of Pennsylvania limited judicial terms to ten years. In April 1821 he moved with his family to Carlisle and resided in that community for the remainder of his life. When his judgeship was abolished, Reed returned to the practice of law in the Cumberland, Adams, Perry, and Juniata counties and to the Law School, which he had founded. The Dickinson College awarded Judge Reed the degree of M.A. (honoris causa) and Washington College in Washington, Pennsylvania conferred the LL.D. (honoris causa) in 1830. John Reed died at Carlisle on 19 January 1850 in his sixty-fourth year, as the Morning Edition of The New York Herald 29 January 1850, p. 4, col. 3 reported. This rather barebones account of his life, drawn from his Reminiscences, omits his contributions to legal scholarship and to legal education and a not unexciting career as judge and legal practitioner. His appointment to the bench was not without controversy. On 13 July 1820 the American Volunteer reported that “John Reed, esq. of Westmoreland County, to be president judge of the ninth judicial district, composed of the counties of Cumberland, Franklin, and Adams, in the room of Charles Smith, esq. resigned. If we are not much mistaken, the appointment of John Reed, esq. as president judge will do honor to [Governor] Wm. Findlay, and to the bench. He will be found to possess energy and firmness, an acuteness of perception, and sufficient legal acquirements to decide promptly” (The American volunteer 1820a, p. 1). A week later the same newspaper reacted with outrage to criticism of the appointment: “No sooner is the appointment of Judge Reed announced then both he and the Governor are attacked by the fault finding ‘junior’ editor of the misnamed “Carlisle Republican”. This is what we anticipated knowing that the Governor could not appoint any man whatsoever to this station with whom the grumbletonians would appear to be satisfied. It is acknowledged by both Federalists and Democrats that Mr. Reed is a gentleman of correct deportment, strict integrity and indefatigable industry” (The American volunteer 1820a, p. 3). By the next issue the editors of the “The Carlisle Republican” (1820, p. 2) writing — “We now, assure Mr. Reed, and all his friends, and the public generally, whether Federalists, Patent republicans, Democrats, Old School reformers, Corruptionists, anti Corruptionists, or by whatever other name, title, sect, description or designation, they may be known, or called, that our anima diversions neither were intended to injure his character, wound his feelings, or prejudice him in the public estimation, either as a man, a Politician, a Lawyer, or a Judge, or even a dancer” were reported to have “acknowledged their error” (The American volunteer 1820a, p. 3). The Carlisle Republican (1820, p. 2) returned to the fray: “The editors of the Volunteer seem so bent on making this gentleman a ‘conspicuous’ character, that they are determined, if they cannot make him shine on the bench, they will make him conspicuous in the newspapers; or if they cannot make him figure as a Judge, they will at least make him ‘cut a figure’ in some way or other, or in some situation or other, should it even be in a Ball-room”. In 1833 Judge Reed purchased for the sum of $600 the land tract at the corner of what is now High Street and S. West Street. He built there one of the finest homes in Carlisle for the residence of his family and to accommodate the law school that

84

W.E. Butler

he had determined to establish. In the afternoon of 6 November 1833 Charles Coatesworth Rawn, called to the Bar in Dauphin County in 1831, strolled by the Reed home to look at “… a very singularly constructed house about being built by Judge Reed” (Historical Society of Dauphin County 1921, #4, Book 4, 9/25/33-1/2/34, 6–4). The house was sufficiently completed for law school lectures to commence on 1 April 1834. It stands today with extensive additions and refurbishment as the home of the President of Dickinson College. The additions were undertaken by the Rev. Dr. George Reed, who served as President of both Dickinson College (1889–1911) and of the reconstituted Dickinson School of Law (1890–1911). He and Judge Reed were not related. What impelled Reed to write his treatise on the law of Pennsylvania and to establish the first law school in Pennsylvania the mists of history do not disclose. His interest in higher education was undoubted. From 1821 to 1828 he served as a Trustee of Dickinson College, during which time he had acted as a member of an Executive Committee of the trustees charged with preparing a plan for the general development of that College. At the 1830 commencement ceremony of Dickinson College Reed took part in a debate in which he supported the proposition: “Would it be expedient for the United States to establish a national university?”(Sellers 1973, pp. 176, 185). Plainly Reed had flourished as a practitioner and judge, for he published Pennsylvania Blackstone at his own expense in 1831 and financed the construction of a new home with sufficient space to accommodate his educational enterprise. How many years were required to write his treatise we know not, but the two enterprises together, the book and the law school, suggest a master plan had been conceived at some point during his earlier years. Law schools existed at William and Mary College (Virginia), Transylvania University (Kentucky), Harvard University (Massachusetts), Yale University (Connecticut), and the University of Virginia, with episodic but relatively short-lived experiments at the University of Pennsylvania, Columbia (New York), and the University of Maryland and George Washington University (then Columbian College). There was also discussion of a law school at Princeton University which came to naught (Reed 1921). Although not the only member of the judiciary to advance legal education in his day, he was among a select band of farseeing individuals to whom the modern generation owes a considerable debt. Perhaps by serendipity it transpired that Dickinson College, chartered in 1783, was on the eve of its fiftieth anniversary destitute and temporarily closed. A new Board of Trustees formed on 6 June 1833 had completed the transfer of the institution from Presbyterian to Methodist control. Two days later the Trustees found themselves at their first meeting with a formal written proposal from Judge Reed to establish a law school that would have a “nominal connection with the College” (Hitchler 1934 148). The Letter has been widely published in various accounts of Dickinson College and the Dickinson School of Law. The original letter, now in fragile condition, is held in the Law School Archives. Within not more than one hour of consideration, the Trustees resolved that “… a professorship of law be recognized by the Board of Trustees in connection with the college …”, … that the “department be under his entire super-intendency and control …”, [that] “this professor is not to be considered as a member of the Faculty of the college”, That upon the termination

5  Teaching Law and Semiotic Sensitivity...

85

of a regular course of study and a favorable testimonial of the professor, for the time being, an appropriate diploma will be granted by the Faculty of Dickinson College … it being understood there will be no expense to the college arising out of the establishment herein provided for” (Hitchler 1934 148–149). This resolution having been adopted unanimously, Judge Reed was then, also unanimously, elected the “Professor of Law in connection with Dickinson College”. For specialists in such historical data, we further mention, that in reporting, the Trustees meeting on 11 June 1833, the Secretary of the Board, Charles B. Penrose, mentioned how the Hon. John Reed had been elected “Professor of Law of Dickinson College” (Hazard’s Register of Pennsylvania 1833a). The inaugural address of the Rev. J. P. Durbin, delivered in Carlisle upon the reopening of Dickinson College on 10 September 1834, mentioned the “Law Professorship” and said that “this department” is expected ”to open the ensuing spring”. It had in fact already commenced operation on 1 April 1834. International law, the general principles of law, and the constitutions of governments, particularly our own, were the subjects of Judge Reed’s lectures. The address is printed in (Hazard’s Register of Pennsylvania 1834). The Rev. Durbin simply extracted the sentences from a Minute of the Board of Trustees without editing the text. This becomes evident from the report in Hazard’s Register of Pennsylvania (1833b).

Although the pressures of the bench and practice from time to time gave Judge Reed occasion to consider whether he should resign his position, he remained in post until his death in 1850, whereupon it proved impossible to find a suitable replacement and the Dickinson School of Law experienced its own period of abeyance for some years.

5.1 The Pennsylvania Blackstone In December 1830 readers of the Carlisle literary journal were advised that “there is now in the Carlisle press and will shortly appear, ‘A Pennsylvania Blackstone,’ being a modification of the Commentaries of Sir William Blackstone, so altered as to present an elementary exposition of the Lawis of Pennsylvania, common and statute, with a short notice of the judiciary of the United States, in two volumes …” (Reed 1831a, p. 189). By July 1831 the treatise was ready, enlarged to three volumes, “for delivery to subscribers and others” at $10 the set. “From a cursory glance at its contents, we cannot doubt but that this commentary will be of real value not only to the student of law, but to all who are agents in its administration; and individuals whose concerns are extensive and transactions important, will do well to peruse it, as it may save them from suits which consume both their time and their money” (Reed 1831a, p. 189). Although no list of subscribers accompanies the book, the local bookshop in Carlisle operated by James Loudon advertised on 4 July 1831 the availability of the book for subscribers and described itself as such (The Carlisle Herald 1831, p. 1). Other local press reprinted the notice of publication from the Messenger (The American volunteer, 1831, 21 July, p. 1). It is hardly surprising that John Reed should have chosen Sir William Blackstone’s (1723–80) Commentaries on the Laws of England as his point of departure for an exposition on the laws of Pennsylvania. First printed at Oxford in four large volumes between 1765 and 1769, a decade or so prior to the American

86

W.E. Butler

Revolution, the Commentaries professed intention was to introduce the English gentleman to the science of law. Composed in an elegant style rarely if ever seen in earlier legal works, the text was directed at the student, the layman, the legal ­practitioner, and even the jurist. The method of exposition was Pandectian – from the general to the specific – and historical, from the past to the present. The treatise even included the criminal law (“public wrongs”). Demand was remarkable by any standard. A large four-volume work, magnificently printed with wide margins, was not inexpensive, yet more than 1,000 sets of the Oxford edition had been sold in the United States alone by 1771, prompting the Philadelphia printer Robert Bell to offer a local edition (at a savings of seven pounds sterling over the price delivered from England). Bell was astonished to receive more than 1,500 orders from throughout the colonies (Nolan 1976, LI. 731–768 at 737). As time passed, American lawyers made Blackstone their own, subsequent editions containing anti-monarchical annotations or references to American judicial practice in addition to or in place of English. In 1803 St. George Tucker (1752–1827) of Virginia produced what became for many years the preferred version on the American market and certainly that enjoying currency when John Reed was learning the law in Pennsylvania and preparing to write his own edition. It is believed that no less than 5,000 copies of the first Tucker edition were sold in the United States by subscription. (See Receipt and Note from Birch and Small to St. George Tucker, 22 February 1803, Tucker-Coleman Collection, Earl Gregg Swem Library, College of William and Mary, Williamsburg, Virginia, brought to our attention by C. E. Klafter, Boston University, via D. W. Stowell, Director and Editor, The Papers of Abraham Lincoln, Springfield, Illinois). It may be too, that Reed was influenced by a fellow judge based in Carlisle: the jurist and novelist Hugh Henry Brackenridge (1748–1816). In his Law Miscellanies Brackenridge declared his original intention to edit a Pennsylvania Blackstone in the manner of St. George Tucker’s edition of the Commentaries based on Virginia law and practice. In the event, he did not succeed in doing so, although he left several works on the law. Brackenridge was a member of the Pennsylvania Supreme Court from 1799 who chose to publish a number of his works in Carlisle. His “Law Miscellanies: containing an Introduction to the Study of the Law; notes on Blackstone’s Commentaries, chewing the Variations of the Law of Pennsylvania from the Law of England, and what Acts of Assembly might require to be repealed or modified; observations of Smith’s edition of the laws of Pennsylvania; strictures on decisions of the Supreme Court of the United States, and on certain Acts of Congress, with some law cases, and a variety of other matters, chiefly original” appeared at Philadelphia in 1813 or 1814, but was printed by Alexander and Phillips in Carlisle for the Philadelphia publisher. Brackenridge had died before Reed moved to Carlisle. The extent to which, why, and where John Reed produced his own work based on Blackstone rather than simply replicated Blackstone must be the subject of a separate study. We do not know which edition or version of Blackstone he used. Since he complained in his Preface to this work that “… recent editions are incumbered with a distracting amount of notes and references” (p. iv), perhaps he relied upon the first

5  Teaching Law and Semiotic Sensitivity...

87

or an early edition without editorial emendations. His own changes in the text are unapologetically substantial. He was “… obliged to take great liberties with the text, in altering, leaving out, and supplying, as the occasion seemed to require”. Blackstone’s Commentaries had become by his time, sixty-one years after its first appearance, “… public property; dedicated to public use; and subject to such alterations, modifications, and additions, as the whole purpose in view required” (p. v). Reed thus produces not a version of Blackstone’s Commentaries, but an original work of comparative legal scholarship in which the law and legal developments of a republican commonwealth are superimposed upon and injected into the intellectual legal bedrock from which they originated. This is no mean achievement, and the achievement is realized in a lucid style, elegant in its own way and more comprehensible for having departed from the Enlightenment prose in which Blackstone so excelled. Where Reed reproduces Blackstone’s text, he succeeds by context and in his own subsequent interjections in translating Blackstone’s Enlightenment intellect into the more prosaic but more comprehensible American vernacular. Measuring the intellectual influence of Reed’s treatise is problematic. The size of the ­original print run is unknown; there is no evidence of additional printings. There certainly were no further editions. One may presume that students acquired the book, and one may assume that the book comprised the essence of his lectures in his own Dickinson School of Law. Although there is no record of sales, the number of surviving copies in libraries ­suggests that the book is uncommon. Of the twenty-five or so copies recorded, some are microforms, and the title is difficult to find in the antiquarian book trade. In addition to the OCLC recorded copies, the Cumberland County Historical Society possesses a set, volume two of which bears a fragment of John Reed’s autograph signature, possibly part of a presentation inscription. A set was sold in November 2005 for $2000 by an antiquarian book dealer to a private individual, and at least two other sets are known to be in private collections. The Dickinson School of Law has the copy which belonged to the former Dean, Walter Harrison Hitchler (1883–1959) and bears his rubber-stamp exlibris.

Reed’s personal library was apparently dispersed after his death, and with the temporary closure of the Law School whatever books were held for the students, whether Reed’s personal property or not, also disappeared. The books apparently did not become part of the Dickinson College Library. The United States Supreme Court reported opinions contain a citation to Reed’s treatise on one occasion for the proposition that “In Pennsylvania, the English mortmain acts are in full force”, as one reads in George Runyan, Plaintiff in Error, vs. The Lessee of John G. Coster and Thomas K. Mercien, who survived John Hone, Defendant in Error (United States Supreme Court Reports 1840, pp. 122–132). The reference to Reed’s work was actually made by C. J. Ingersoll, attorney for the plaintiff in error. The book also was cited in a report prepared by the Commissioners Appointed to Revise the Code of Pennsylvania, which referred to it as a “recent valuable edition of Blackstone’s commentaries” (Hazard’s Register of Pennsylvania 1832, p. 214). There were evidently no reviews of the book other than announcements and advertisements in the local Carlisle press. Marvin seems to be correct in saying during the twilight years of Reed’s life: “… the work is a medley of English, federal, and local law, that never received much approbation from the profession in Pennsylvania, and is probably not known outside of the state” (Marvin 1847, p. 123).

88

W.E. Butler

That the book enjoyed a short press run may be indicated by another circumstance. On or about 31 December 1847 a young man in New Berlin, Union County, Pennsylvania purchased a blank ‘copybook’ bound in half calf for the purpose of taking notes on his reading as part of his studies for the Bar and, who knows, perhaps fulfilling a New Year’s resolution. On the back endpaper he recorded 18 titles of works to be read, among them: “Chitty’s Blackstone 2 Vol.”; “Penna. Blackstone. 3 Vol.”, etc. The first page records the volume to be the “Common-place Book of Davis B. Kurtz” and is dated 1 January 1848. There follows Kurtz’s précis of “Pennsylvania Blackstone” set out in a clear hand on 242 foolscap pages, Now known as the “Wedgwood Manuscript”, the volume has been given to the Dickinson School of Law Library, where it may be consulted. One may speculate why Davis Brook Kurtz (1826–1906), a leading member of the Lawrence County bar in Pennsylvania and Vice-President of the National Bank of Lawrence County where he represented railroad and business interests and had accumulated property estimated at one million dollars at the time of his death, should have troubled to painstakingly summarize Reed’s massive treatise. Known, it seems, as the “Nestor” of the Lawrence County Bar, it may be simply that Kurtz derived pleasure from composing “chronicles” based on diverse sources. John Reed was alive and teaching in his law school at this time, so that if the book were still in print, Kurtz should have had little trouble in arranging to purchase a copy. Perhaps, indeed, he did purchase a copy and simply used the Commonplace book as a study device. Kurtz was admitted to the bar on 7 January 1850. But it cannot be excluded that Reed’s book was, sixteen years on, out of print and available only in the second-hand market. In either case, the book was still required reading by those seeking admission to the Pennsylvania profession and possibly not readily obtainable. There is, however, another dimension of intellectual impact founded in conjecture and rumor. Precisely when and where the rumor originated has not been traced. The first mention of the rumor identified to date originates in the history of the Dickinson School of Law: “An unsubstantiated and unconfirmed rumor claims this [Reed’s Pennsylvania Blackstone] to be the ‘Blackstone’ which Abraham Lincoln studied in preparation for the Bar” (Laub 1983, p. 11, Fn. 5) (This is the Sesquicentennial Edition of the history; the rumor also was reported in the 1976 edition of the same title, p. 5.) In the past three decades Lincoln Studies have advanced considerably. Most Lincoln specialists are unaware of the rumor; none can confirm it, but neither can it be conclusively disproved. In Lincoln’s day, as in John Reed’s, most lawyers “learned the law” by finding an established lawyer willing to take them in to “read” law and learn by observation. John Reed had done precisely that upon graduating from Dickinson College in 1806. Lincoln is believed to have begun reading law books in the same year during which Reed published his Pennsylvania Blackstone, that is, 1831 and based on his reading even began to draft legal documents for friends and neighbors. By 1834, the same year that Reed’s new law school commenced operations, Lincoln had determined to pursue the law as a profession. It is accepted that “Lincoln read more than Blackstone’s Commentaries, but not much more” (Dirck 2007, pp. 16–17; Steiner 2006, p. 32). Other versions of the story are that Lincoln bought an “old copy of Blackstone” at auction. This version enjoys a

5  Teaching Law and Semiotic Sensitivity...

89

certain currency because William Dean Howells, the author of a campaign ­biography of Lincoln in 1860, showed the proofs of this account to Lincoln and it passed Lincoln’s scrutiny without correction or emendation. No one contests that Lincoln studied Blackstone, probably primarily Blackstone. The question is whose edition and where did he acquire or consult a copy. What seems to be the preferred version is recounted by Lincoln’s legal biographer: Lincoln “… remarked that the best stroke of business he ever did in the grocery line was when he bought an old barrel from an immigrant for fifty cents and discovered under some rubbish at the bottom a complete set of Blackstone’s Commentaries. That was a red-letter day in his life, and we have his own word for it that he literally devoured the volumes … if Lincoln’s choice of a profession must be attributed to a law-book, no more plausible selection than Blackstone’s Commentaries could ­possibly be made”(Hill 1906, p. 50; Ogden 1932, p. 328; Steiner 2010, pp. 1302–1309). Blackstone is a four-volume work, so the waters are muddied even more by the reference in the literature to a “… two-volume copy of Blackstone’s Commentaries. Whether the old immigrant was passing through New Salem, Illinois, in a wagon fresh out of Carlisle, Pennsylvania, containing the just-published edition of Reed’s Pennsylvania Blackstone in three volumes or a four-volume edition edited by another, or even an early eighteenth-century printing of Blackstone pristine has so far not been definitively established.

5.2 The Carlisle Printer and Publisher Reed’s Pennsylvania Blackstone is a milestone in yet another respect: it is by far the largest work printed in Carlisle, Pennsylvania during the first half-century of printing in that town (29 The printer, George Fleming (1800–65), undertook the task a few hundred yards away from where Reed built his home (and Law School in the basement) in 1833, for the printing house was accommodated in the back of the old court house that eventually burned to the ground in 1847. Fleming was born in Westmoreland County (now Armstrong County), Pennsylvania (Griswell 2003). He came to Carlisle to begin his career as a printer in 1816. His mother’s brother, George Phillips (d. 1824), was active in publishing the Carlisle Herald, and upon his death she took over the newspaper while retaining her family name on the masthead. Thereafter George Fleming and his mother collaborated in a number of publications as printer, publisher, or both. Whether John Reed originally planned to publish his book in Carlisle, or did so after shopping the manuscript about Philadelphia printers, is unknown. Reed did assume the role of publisher (Barnes 1994, p. 10) – the Pennsylvania Blackstone was printed by George Fleming “for the author”. In this perhaps by coincidence Reed followed Sir William Blackstone. The Clarendon Press of Oxford University only printed Blackstone’s work in 1765–69; it did not act as the publisher. Blackstone paid the printing costs and later sold the copyright to the booksellers. He earned some 14,000–16,000 pounds sterling – an immense sum – from the project, most of

90

W.E. Butler

which the Clarendon Press at Oxford would have received had it acted as the ­publisher of the work. The commission to publish given to George Fleming will have been the largest and probably the most successful project of his career as a printer (Fleming went bankrupt in 1843). No other work printed by Fleming or anyone else in Carlisle begins to approach in size the 1,625 pages in three volumes, which John Reed had produced. Paper at the time was being produced in nearby Mt. Holly. George Fleming was in Carlisle what in modern terms we would call a major cultural presence. In addition to his newspaper(s), he printed church music, ­religious tracts, hymns and psalms, belles lettres, and sundry minor ephemera. He was elected Prothonotary in Carlisle for one term (1836–39) and involved for some time in the Anti-Masonic Party, among other popular causes and movements. Following his financial reversals, Fleming evidently spent some time in the freight business. In 1849 he went with a small group of Carlisle adventurers to California to seek his fortune in the gold fields. He returned for a brief period in Spring 1850 to collect his family, and then returned to California by ship in Alameda County. His relationship with the law was not entirely over, for he was elected Justice of the Peace for at least four terms and then appointed an associate judge of the County Court for a term in which death intervened. Thus did the printer of Professor John Reed’s treatise ­himself succeed to the bench in his own right. As noted above, the Pennsylvania Blackstone was announced as having been published on 4 July 1831 (copyright is recorded as the “title of a book” having been deposited on 9 May 1831). Whether the price of $10 was for bound copies or unbound sheets is not clear from the advertisements. Bookbinding was available in Carlisle at the time from, among others, Archibald Loudon (1754–1840), whose bookbinding press is on public display at the Cumberland Historical Society (Fretz 1990, VII, No. 2). Although Archibald Loudon ceased his publishing activities in 1816 and saw his stock of 4,000 volumes dispersed by the sheriff at public sale in 1818, he apparently continued to bind books until late in life through the bookshop of his son, James Loudon. A number of copies examined of Pennsylvania Blackstone were bound in sheep without a binder’s label, suggesting an unsophisticated ­provincial binder working with basic equipment.

5.3 Blackstone and Reed Measured in reference to his spiritual mentor, Professor and Judge John Reed stands surprisingly well in the shadow of Sir William Blackstone. Both had been legal practitioners; both became legal educators; both were inspired to produce immense legal treatises – Blackstone setting the standard for future generations but Reed applying the comparative method of legal analysis to excellent and unappreciated effect; both experienced parliamentary service; both spent long periods on the bench. John Reed did more than produce a Pennsylvania Blackstone – he became Pennsylvania’s Blackstone.

5  Teaching Law and Semiotic Sensitivity...

91

But Reed was much more than a provincial west-country lawyer. He too had a knowledge and awareness of law within the global community. His students received a grounding in the law of nations, what in modern parlance is designated “international law”. With respect to international law Reed adopted essentially the approach and views of Blackstone. Reed said: If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of God. But man was formed for society, and as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do so. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many, and form separate states, commonwealths, and nations independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called the “law of nations;” which, as none of these States, will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities. In the construction of which compacts, we have no other rule to resort to, than the law of nature, being the only one to which all the communities are equally subject, and therefore the civil law very justly observes,,,,, that “what natural reason hath established among all men, is called the law of nations. The practice of great and enlightened nations, as evinced in the decisions of their judiciary, is referred to as evidence of this law as applicable to particular cases. (Reed 1831b, pp. 16–17)

Reed further articulated the basic rule of Pennsylvania law dating from the colonial period and subsequently: “The law of nations always formed part of our municipal law”, citing 1 Dallas 114, 210 (Reed 1831b, p. 39). Even when the Pennsylvania legislature adopted in 1810 an act “prohibiting the citing or quoting in court of any British adjudications, made after the 4th day of July, 1776,” an exception was made with respect to “maritime law and the laws of nations” (Reed 1831b, p. 40). A decade or so later, in lectures delivered during the years 1838–1840 at his neighboring institution, Dickinson College, Reed elaborated upon his understanding of the relationship between the law of nations and the legal systems of the United States and of Pennsylvania: There is a concurrence of recent authority founded on indisputable principles in favor of the legitimate existence and form of the common law in the federal, as well as in the state courts. As the several states found themselves in possession of this extensive branch of municipal law, upon their affirming the rights of self-government, and the people of the United States when they formed a union, in their sovereign and distinct capacities, were also entitled to this vast scheme of judicial polity, in regard to their internal or domestic relations; so, it became the basis of an extended jurisprudence applicable to our intercourse with the ­civilized nations of Europe, in that aspect called the law of nations; and the law of nations is part of the common law. By the structure of our government, all national powers … are vested in the national government and excluded from the states. Ever since its first institution by various declarations the United States government has professed obedience to the laws of nations according to the general usages of Europe. So far as they may affect the personal rights of individuals, they may be enumerated as a branch of our ­municipal law. So far as they affect national rights, they will be elsewhere considered. Whatever vague and erroneous notions may have prevailed in regard to the origin and obligatory force of national law, civilized

92

W.E. Butler nations now concur in tracing them to the great fountains of natural justice; and they apply to them in their development and application, and the unerring rules of moral and Christian ethics. There is a natural and positive law of nations. The one is undefined in terms, but it enforces the general obligations on states, in its relation with other states, to ­conduct itself with ­justice, good faith, and benevolence. The positive law consists in mutual treaties and ­stipulations; but these, in regulating the safety and convenience of intercourse, are but deductions from the principles of natural justice and equity. At least they never should be allowed to contravene them. States and governments have no other existence than through the people of whom they are composed. It is but the aggregation of society acting for their several individual benefits. All the acts of a nation are but the acts of individuals. Why should conscience, morals, reason, religion be dispensed with in such transactions, any more than in the management of mere private concern? It was the suggestion of barbarism, that governments were not as strictly bound by the obligations of truth, justice, and humanity as individuals. We impute, therefore, the law of nations to the same common origin to which we traced the municipal law of a single commonwealth, viz. to the law of nature and of revelation … the systems in complex, embracing general principles or the science of either. It embraces also a collection of usages and customs, the growth of civilization to commerce and also a code of conventional or propitious care. When no usage or stipulations exist, general principles are to be applied, and these are alike binding in every age, and upon all mankind. The system as now understood by the European world, as by ourselves, is of modern growth. The most refined states among the ancients had no suitable conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the Science of international law.

During the period in which John Reed was the head of the Dickinson School of Law, until his death in 1850, the law of nations was addressed in the general course on law and, so far as can be determined, not the subject of special lectures. But the law of nations was regarded by Professor Reed as an integral part of American ­federal and state law, and as such justifiably included as a required component of legal ­education in these early days of the Republic. (This Letter has been widely published in various accounts of Dickinson College and the Dickinson School of Law. The original letter, now in fragile condition, is held in the Law School Archives) A good deal of work remains to be undertaken with respect to John Reed. The fate of his personal library is unknown, but knowledge of its contents would help us understand better the materials he used to prepare both his lectures and his treatise on the law of Pennsylvania. Although a few of his lecture notes survive, there must have been more. His judicial decisions remain unanalyzed, as does his law practice in the area. Yet it must be undoubted that any citizen of Carlisle has left a more enduring legacy to future generations than John Reed as educator and jurist.

References Barnes, T. 1994. “Notes from the editors” for William Blackstone Esq., J. Reed, Pennsylvania blackstone (1831; reprint ed. 2006), I Commentaries on the laws of England (Gryphon Editions). Cohen, Morris L. 1998. Bibliography of early American law (1998–2003) Buffalo, Vol. II. Dirck, B. 2007. Lincoln the lawyer. University of Illinois Press 2008.

5  Teaching Law and Semiotic Sensitivity...

93

Fretz, E. 1990. Archibald Loudon of Carlisle: Disseminator of early American culture. Cumberland County History VII(2). Griswell, F. 2003. George Fleming: A California forty niner and families from Pennsylvania. Hazard’s Register of Pennsylvania. 1832. Second report of the commissioners appointed to revise the code of Pennsylvania. Hazard’s Register of Pennsylvania, IX, No. 14 (7 April). Hazard’s Register of Pennsylvania. 1833a. Vol. XII, no. 8 (6 July) Hazard’s Register of Pennsylvania. 1833b. Vol. XII, no. 21 (9 November) Hazard’s Register of Pennsylvania. 1834. Vol. XVI, no. 16 (18 October) Hill, F.T. 1906. Lincoln the lawyer. Historical Society of Dauphin County. 1921. The Charles C. Rawn Journal #4, Book 4, Contemporary problems of legal education in the United States with some account of conditions in England and Canada. Hitchler, W.H. 1934. The Dickinson school of law. Dickinson Law Review XXXVIII. Landis, M. 1934. Hon. John Reed. Dickinson Law Review, XXXVIII. Laub, B.R. 1983. The Dickinson school of law: Proud and independent. Dickinson Law Review (Sesquicentennial Edition). Penn State Law Review. Marvin, J. G. 1847. Legal bibliography, or a thesaurus of American, English, Irish, and Scotch law books, Vol. 1. Together with some continental treatises interspersed with critical observations upon their various editions and authority. To which is prefixed a copious list of abbreviations. Philadelphia. Nolan, D.R. 1976. Sir William Blackstone and the New American republic: A study of intellectual impact. New York University Law Review 51: 731–768. Ogden, J. M. 1932. Lincoln’s early impressions of the law in Indiana, In: Notre Dame Lawyer, VII. Reed, J. 1830. The messenger of useful knowledge, I (December). Reed, J. 1831a. The messenger of useful knowledge, I (July). Reed, J. 1831b. Pennsylvania blackstone (reprint ed. 2006) Reed, J. Unpublished manuscript. Archive of Dickinson School of Law, Pennsylvania State University. Reed, A. Z. 1921. Training for the public profession of the law: Historical development and principal contemporary problems of legal education in the United States with some account of conditions in England and Canada. Sellers, C.C. 1973. Dickinson college. A history. Middletown: Wesleyan University Press. Steiner, M. 2006. An honest calling: The law practice of Abraham Lincoln. DeKalb: Northern Illinois University Press. Steiner, M. 2010. Abraham Lincoln and the rule of law books. Marquette Law Review, XCIII(4, Summer). The American volunteer, 1820a, 13 July. The American volunteer, 1820b, 20 July. The American volunteer, 1831, 21 July. The Carlisle Herald. 1831. 7 July. The Carlisle republican. 1820. 1 August. The New York Herald. 1850 (morning edition, 29 January). Thompson, D. W. 1932. Early publications of Carlisle, Pennsylvania 1785–1835.Carlisle: The Sentinel. United States Supreme Court Reports. 1840.

Chapter 6

Initiating the Two Legal Cultures of the Early United States: St. George Tucker vs. James Wilson William A. Pencak

6.1 Introduction The reconciliation of freedom and order was at first, and still remains, a problem in the United States for at least two reasons. First, the fact that thirteen states merged to create a union opened a series of questions that remains unresolved even today. The very term, ‘state,’ which usually means an independent sovereign entity, became problematic: where did the powers of the national government end and those of the ‘states’ begin? Did both represent the people, or was the national government the creation of and subservient to the states (questions about meaning also at home in today’s European Union)? The framers of the Constitution glossed over the problem by asserting that ‘the people’ were sovereign, but in practice the question of whether states or the national government better represented the public interest is still an important issue: for instance, in the issues of homosexual rights, health care, and the nature of public education. For much of United States history, the states have claimed to be the repository of freedom against an overbearing central government, whereas the rights of black Americans and women, for example, have usually been legislated by the federal government against states for whom the claim of liberty has meant (white) majority rule on the local level without respect for individual rights. The second problem the new American republic faced was the nature of its law. On the one hand, it claimed to protect the ‘inalienable rights’ of human beings, yet on the other hand the manner in which these were protected stemmed largely from English common law and precedent. The place of this common, or customary law, in the new nation provoked two responses: did specific elements have to be reenacted by the states and federal government where needed, or did the common law provide the underlying precedents that guaranteed both freedom and order throughout society? W.A. Pencak (*) Penn State University, Department of History and Department of Jewish Studies, University Park, Carlisle PA, USA e-mail: [email protected]

J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_6, © Springer Science+Business Media B.V. 2011

95

96

W.A. Pencak

Different perspectives on theses issue were raised in the earliest law courses offered in the United States for which detailed documentation survive. In 1790, courses on law were taught for the first time by James Wilson, at the University of Pennsylvania, and by St. George Tucker at the College of William and Mary. Wilson only lectured for two terms and never delivered about half of his lectures: nevertheless, his manuscripts were collected and published posthumously by his son Bird Wilson in 1804. At the College of William and Mary, between 1790 and 1803, St. George Tucker offered a course on law, the gist of which he published in 1803 as appendices to Sir William Blackstone’s Commentaries on the Laws of England. This chapter has six parts. Following an introduction, the second and third respectively outline Tucker’s and Wilson’s published lectures. Tucker stressed the wide powers of states and the limited powers of the federal government. His published work explained the constitution of Virginia first, and foremost, granting the state greater legitimacy and power than that of the federal union. Wilson barely mentioned the rights of states at all in his course, and instead concentrated on explaining the active role of citizens in preserving and shaping the law at all levels of government. Tucker addressed his course more narrowly to lawyers, expecting (as was generally the case in Jeffersonian Virginia) that these gentlemen would indeed represent and speak for the citizenry of their state. The fourth part of the paper examines how the form of Tucker’s and Wilson’s books signify their respective contents. Tucker separates Blackstone from his own commentaries and cites principally British radicals and opposition thinkers who objected to Blackstone’s notion of Parliamentary sovereignty. Wilson integrates not only Blackstone, but also citations from the legal heritage of the world since classical times to show how developments in the United States are part of world history. The fifth section explains how Tucker’s and Wilson’s courses came out of their own states’ experiences during the American Revolution. Tucker, who did not participate in national politics, came from a confident Virginia that was largely united during the Revolution and had little factional unrest before. The critical legal problem for him was preserving the rights of states against the federal government: once that was accomplished, all would be well. Wilson’s Pennsylvania, on the other hand, was deeply divided and its first state constitution, that of 1776, was very unpopular. The sixth part of the paper briefly considers how Tucker and Wilson set precedents for different legal cultures in the South and the North of the United States. As early as the 1790s, two contrasting notions of how to interpret the law of the United States had already been developed. These were the two legal cultures that would clash between 1861 and 1865 in the American Civil War.

6.2 New Law for a Republic In Law as a System of Signs, legal semiotician Roberta Kevelson wrote that the United States ‘Constitution, for example, is an experiment or sign subject to change and correction through the semiotic method’ (Kevelson 1988, p. 231). She

6  Initiating the Two Legal Cultures of the Early United States…

97

was repeating what the men who drafted the Constitution themselves knew: that the document was designed to represent the nation, and that failure to do so would lead to a failed experiment in nation-building. ‘It was not to disparage the instrument, to say that it had not definitely, and with precision, absolutely settled everything on which it had spoken,’ wrote Abraham Baldwin. In an understatement, he added that ‘some subjects were left a little ambiguous and uncertain’ (Farrand 1911, vol. 2, pp. 369, 370). For instance, within 2 years of the Constitution’s ratification, the men who had drafted it disagreed on whether a national bank as a means of collecting money and setting economic policy was a power granted to the national government. The framers knew the Constitution was not perfect, and built in an amending process, so that, as Charles Peirce described the nature of scientific experimentation, the Constitution could be tested and refined according to a specific method, increasingly (one would hope) approximating an always elusive but always envisioned ‘true’ representation of the United States. ‘The greatest difficulty lies in the affair of representation, and if this could be adjusted, all others would be surmountable,’ wrote James Madison (Farrand 1911, vol. 2, p. 321). But what was the Constitution and what was the law through which it represented the nation? To be sure, the Supreme Court, Congress, and the President all play their part in deciding these questions, but also important is the body of law through which the Constitution penetrates the fiber of American life. And how that law is constructed is determined in large part, by the actors in the legal system: courts, lawyers, judges, and citizens. The first attempts to describe in detail the legal system of the United States began in 1790, an important year in the history of American legal education. Two instructors began teaching law, James Wilson at the University of Pennsylvania and St. George Tucker at the College of William and Mary. Wilson only lectured for two terms and never delivered about half of his lectures: his manuscripts were collected and published by his son Bird Wilson in 1804 (Wilson 2007). At the College of William and Mary, between 1790 and 1803, St. George Tucker offered a course on law, the gist of which was published in 1803 as his appendix to Sir William Blackstone’s Commentaries on the Laws of England (Tucker 1803). Both men exhibited a sense of excitement about the fact that they were explaining, for the first time, something new and wonderful under the sun. Tucker wrote that ‘the American Revolution has formed a new epoch in the history of civil institutions, by reducing to practice what, before, had been supposed to exist only in the visionary speculation of theoretical writers …. The world, for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds’ (Tucker 1803, p. 4). Wilson similarly claimed to ‘have the pleasure of presenting to my hearers what, as to the nations in the Transatlantic world, must be searched for in vain – an original compact of a society, on its first arrival in this section of the globe’ (Wilson 2007, p. 433). Both Tucker and Wilson took pride in the fact that America’s laws were better than England’s, and that their task in elucidating the laws of the new republic was greater than Sir William Blackstone’s famous Commentaries on the Laws of England

98

W.A. Pencak

which they, in common with most colonial lawyers, had studied in their youth. Blackstone had argued for the sovereignty of Parliament, which considered the most heinous of the ‘practical defects, corruptions, and radical departures from those very principles, which are supposed to constitute that superiority and pre-eminence, which… writers have ordinarily ascribed to it’ (Tucker 1803, p. 56). Tucker acknowledged ‘the theoretical excellencies’ of the British Constitution, but Parliament had reduced it to a ‘tyranny established by law, and the people are bound in fetters of their own making’ (Tucker 1803, p. 59). Wilson, too, maintained that ‘the principles of our constitutions and governments and laws are materially better than the principles of the constitution and government and laws of England,’ because ‘the supreme or sovereign power of the society resides in the citizens at large; and that therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem it expedient’ (Wilson 2007, p. 440). But when it came to explaining what were the laws of this new republic, Tucker and Wilson differed radically. The question of representation was crucial, as the framers of the United States Constitution realized. Charles Pinckney noted that the Constitution and laws were representations of the nation, and ‘a representation is the sign of the reality’ (Farrand 1911, vol. 2, p. 109). Wilson himself agreed. He compared the manner in which the United States’ constituent elements would be represented to a medical ‘concoction’: ‘a vice in the representation, like an error in the first concoction, must be followed by disease, convulsion, and finally death itself’ (Farrand 1911, vol. 2, p. 210). The gap between Tucker and Wilson was so vast that one can see, in embryo, the theories that would separate North and South 70 years later.

6.3 Tucker’s Law Course Tucker began, after explaining why Blackstone’s commentaries have only a limited use in a republic, with a list of the subjects he plans to investigate: ‘THE CONSTITUTION OF THE UNITED STATES of America, and the particular Constitution of the State of VIRGINIA… the nature of the compact which the people of the United States have entered into, one with another; to examine the powers of those who exercise the government, and to satisfy ourselves of their just extent and limits; to consider the connection between the federal government and the state governments … their respective rights, dependencies, and boundaries (Tucker 1803, p. vii). As this list of topics implies, Tucker devoted much attention to the rights of the state, what in most nations would be a province or department, both the state of Virginia in particular and states general, with great concern for limiting the power of the federal (he never says national) government. To speak of a national government would mean a single, centralized power, which Tucker denied exists in the United States. He also denied the applicability of English common law to America except where confirmed by American statute (Tucker 1803, pp. viii–ix).

6  Initiating the Two Legal Cultures of the Early United States…

99

Not only did Tucker’s discussion of the Virginia Constitution precede that of the United States in his text, his treatment clearly indicated that he considered it a better representation of the sovereign power, which theoretically lies in the people. He noted that the Virginia ‘constitution UNANIMOUSLY [passed]’ in the legislative body that framed it, and thus ‘it may be regarded as the unanimous voice of the people’ (Tucker 1803, pp. 90–91). If the people had not approved the measure, would not addresses and instructions have poured into the legislature?’ ‘The unanimous vote in favor of the constitution is the most unequivocal proof that the people not only saw and approved what was doing, but had, however informally, made known their sentiments to the deputies before they left their respective counties (Tucker 1803, pp. 91–92). Tucker highlighted, and repeated, the words ‘unanimous’ and ‘people’ to set up a contrast between the Constitutions of Virginia and the United States to signify that the federal government is an inferior product of the ‘states.’ The federal Constitution, he claimed, ‘was freely, voluntarily, and solemnly entered into by the several states of North America, and ratified by the people thereof, respectively; whereby the several states thereof, and the people, respectively, have bound themselves to each other, and to the federal government of the United States’ (Tucker 1803, p. 140). Note that the states, rather than ‘we the people’ as the Constitution proclaims, formed the union, that ties exist first between the states and the people, and only then are they connected to the government of the United States, which is qualified again as ‘federal’ – meaning comprising the still-sovereign states. Tucker proceeded to elaborate that ‘the state governments not only retain every power, jurisdiction, and right not delegated to the United States, by the constitution, nor prohibited to it by the states, but they are the constituent and necessary parts of the federal government.’ He believed the proof of lies in the fact that both the Senate and the President of the United States were elected by the representing the states, the former by the state legislatures (true until 1913), the latter by an electoral college chosen by state (Tucker 1803, pp. 142–143]). Tucker then quoted Federalist 39 (Madison 1996, pp. 280–285) at length (Tucker 1803, pp. 146–149]) which stated that the new government is ‘neither wholly federal nor wholly national’: where it operates on states, it is federal and where it effects individuals, it is national. But he then interpreted the constitution to mean that ‘the few [my emphasis] particular cases in which he [the citizen] submits himself to the new authority, therefore, ought not to be extended beyond the terms of the compact, as it might endanger his obedience to the laws of the state to whose laws he still continues to draw obedience’ (Tucker 1803, p. 151). Later Tucker referred to the United States Constitution as ‘an alliance between the states’ (Tucker 1803, p. 153), or ‘the united republics’ – plural – (Tucker 1803, p. 187), and the federal government as ‘the creature of that compact’ bound by it to its creators, the several states in the union, and the citizens thereof’ (Tucker 1803, p. 170). He italicized the words ‘each state retaining an entire liberty of exercising all those parts of its sovereignty, as it thinks proper, all those parts of its sovereignty, that are not mentioned in the constitution’ (Tucker 1803, p. 170). But perhaps he should have italicized ‘as it thinks proper’ since he made the state the judge of what is and what is not

100

W.A. Pencak

‘mentioned’ in the constitution. The critical question – not only what is ‘mentioned’, but how ambiguous clauses can be interpreted other than by the states – is not, by Tucker, ‘mentioned.’ When he descended from generalities to specifics, Tucker tilted his interpretation toward states’ rights. For instance, to the enumerated power of Congress ‘to raise and support armies’ noted in Article 1, Section 8 of the Constitution, Tucker added his own parenthetical remark – ‘[in time of peace]’ – to diminish this power. He commented: ‘it is at least doubtful whether any such power as that last mentioned, was intended to be entrusted to the government, except in the case of eminent danger of hostility; at least beyond the necessary guards for forts, magazines, arsenals, etc., and even in these cases the constitution seems to have provided that the service should be provided by the militia of the United States’ (Tucker 1803, pp. 180–181). Tucker resorted to vague generalities: he intuited the intention of the framers of the Constitution –‘it is at least doubtful’; ‘was intended’; ‘seems’ –without any specific reference to the constitutional debate, which he did not attend. And he did not cite the two times the militia is in fact mentioned in Article 1, Section 8 when he listed the enumerated power of Congress, for had he done so it would have seriously undermined his case (Farrand 1911, vol. 2, p. 656): To provide for calling forth the Militia to execute the Laws of the Union, suppress … Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

When Congress organized an army in 1798, Tucker condemned its ‘unconstitutional’ action of allowing President Adams ‘enlist or organize volunteers’ and appoint their officers. Tucker managed to make this action unconstitutional by redefining the volunteers in a federal army as a ‘special corps of militia,’ with the following explanation: that ‘as these select corps were not called into actual service, but were only liable to be called upon at the pleasure of the president, it seems impossible to view them in any other light than as the militia of the states, separated by an unconstitutional act of congress from the rest, for the purpose of giving to the president powers, which the constitution expressly denied him. (Tucker 1803, pp. 274–275)

Tucker challenged that Congress had the power to ‘raise and support armies’ when he transformed ‘army’ that definitely was not ‘the militia’, into the ‘militia’. When it came to whether federal bankruptcy laws were constitutional, Tucker was far more indecisive, whereas if he were true to his own principles he ought to not have been. For the federal government to regulate bankruptcies was, ‘remarkable,’ as he considered bankruptcy ‘a regulation, in the strictest sense, municipal, not federal’ (Tucker 1803, p. 177). While at first he glosses over bankruptcy, merely remarking that it ‘ought for reasons already given be strictly construed’ as subject to state law, eight pages later he admitted that ‘it may with great strength of reasoning

6  Initiating the Two Legal Cultures of the Early United States…

101

be insisted, that here is a case in which the power of the federal government extends to internal as well as foreign commerce; and that a contrary construction would probably defeat the constitution’ (Tucker 1803, p. 185). Otherwise, states could prohibit creditors from other states from collecting debts. Tucker’s ambivalence over bankruptcy legislation is understandable. He represented the Virginia planter class, which had seriously overspent its income before and after the American Revolution and was deeply in debt to British merchants. They would have preferred that these debts were negotiated at a lower value if not canceled, and failed to pay them, using as an excuse the fact that the British had taken many of their slaves during the Revolution. Despite provisions for payment of the debts in the Jay Treaty of 1795, the issue remained unsettled by a joint British-American arbitration commission that met from 1797 to 1799, as the American members resigned. But perhaps the critical difference between raising the army and paying the debts was that the former was undertaken by the Federalist party, which Tucker opposed, and the latter by one of his heroes, President Thomas Jefferson, who in general supported Tucker’s interpretation of the Constitution. In 1802, Jefferson agreed to pay the British £600,000 to cover some, though not all of the debts in question (Bassett 1931, pp. 1–10, 349–356). Jefferson realized that trade with Britain was essential to American commerce (the British bought most of his own tobacco), just as he realized (as did Tucker) that the Louisiana Purchase, which added territory to the nation although there was no specific provision to that effect in the constitution, was essential to the national welfare. The federal government, which Tucker never called the national government, was an object of fear and mistrust for Tucker: ‘it possesses no absolute power, but such as is absolutely necessary for performance of a duty, prescribed and enjoined by the constitution’ (Tucker 1803, p. 170). The authorization of an independent army by Congress in 1798, rather than relying on the militia in a national emergency (Tucker 1803, p. 275), Tucker considered giving to the President ‘an influence the most dangerous that can be conceived, to the peace, liberty, and happiness of the United States,’ and ‘superseding every part of the constitution.’ Tucker’s conclusion was that ‘all governments have a natural tendency toward an increase, and an assumption of power, and the administration of the federal government, has too frequently demonstrated that the American people are not free from this vice in their constitution ’ (Tucker 1803, p. 334). The main purpose of the United States Constitution, for Tucker, was to protect the people, who were represented in the states, against the federal government. He termed it a ‘parchment chain’ which –while not sufficient to correct this unhappy propensity’ to federal tyranny – was ‘nevertheless capable of producing the most salubrious effects.’ The constitution would serve as a standard to ‘warn the people to change those perfidious agents, who dare to violate’ its principles (Tucker 1803, pp. 289–90). For Tucker, veneration of the constitution itself became an actor in the legal system – as indeed it was in 1800 when the Federalist party met a disastrous defeat largely for its attack on individual liberties through the Alien and Sedition Act. The states would institutionalize this veneration. Tucker believed that they had the power to

102

W.A. Pencak

nullify federal laws that infringed on either their rights or the liberties of citizens. He endorsed the Virginia and Kentucky Resolutions, respectively written by James Madison in 1798 and Thomas Jefferson in 1799, that declared the Alien Act of 1798, permitting the President to deport undesirable aliens at will, as ‘most flagrant and unjustifiable’ (Tucker 1803, pp. 301–302). In keeping with his strict limitations on the power of the federal government, Tucker also denied the applicability in the United States of the common law of England, ‘except by legislative or constitutional authority ‘ (Tucker 1803, p. 404) for once independence was established ‘all the law of that country… [were] utterly abolished’ (Tucker 1803, p. 403). He noted that it did not even apply when the states were colonies, for there were among them ‘such opposite, discordant, and conflicting municipal institutions’ that it would be ‘in vain’ to ‘attempt, by any general theory, to establish an uniform authority and obligation in the common law of England, over the American colonies.’ Even where ‘the common law and statutes of England have been expressly adopted, in a certain degree,’ the states were careful to ‘declare that those laws are not to be construed so as to impair any of the rights and privileges contained in their respective constitutions and laws’ (Tucker 1803, p. 426). Yet in practice, when he served on the Virginia Supreme Court, as scholar Bernard Schwartz has pointed out, ‘Tucker’s basic concept of law was one that was molded by common-law doctrines and precedents’ (Schwartz 1993, p. 169). It was simply impossible otherwise to make sense of many cases where Virginia law was silent. As with the payment of planter debts to the British by the federal government, Tucker’s principles could only be maintained selectively and dogmatically. Both in his writings and in his career on the bench, he was forced to contradict them when they confronted the real legal landscape of the new nation. He sought to fix boundaries between the people, the states, and the federal government. James Wilson, on the other hand, sought to unite them in an interested patriotic community.

6.4 Wilson’s Law Course Wilson’s law course differed drastically from Tucker’s. Most strikingly, he considered the fundamental basis of law not a matter of constitutions and written statutes, but an emanation of ‘the American character’ (Wilson 2007, p. 432). Whereas for Tucker law began with constitutions, followed by statutes, as representations of popular consent, for Wilson law began with continuously exercised popular sovereignty through the interpretation of these constitutions and statutes, which otherwise would have no real presence. Hence, Wilson stressed the need for the people to be knowledgeable about and interested in the law. It ‘should be the study of every free citizen, and of every free man. Unless, in some measure, and in some degree, he knows those duties and those rights, he can never act a just and independent part’ (Wilson 2007, p. 435). ‘In a free country, every citizen forms part of the sovereign power; he possesses a vote, or takes a still more active part in the business of the commonwealth.’ His first examples are ‘the rights and duties of jurors,’ which ‘in

6  Initiating the Two Legal Cultures of the Early United States…

103

the United States are great and extensive.’ They require ‘knowledge of, at least, the general principles of the law,’ and that while they receive ‘assistance of the judges… they have the right of judging for themselves’ (Wilson 2007, p. 437). Only then did Wilson mention that ‘a law education is necessary for gentlemen intended for the profession of law’ (Wilson 2007, p. 439). Wilson’s incorporation of the general citizenry even extended to women, who were present at his inaugural lecture, and some of whom, as historian Susan Branson has entitled her book about the women of Philadelphia at this time, were ‘These Fiery Frenchified Dames’ who were voicing their belief in the political equality of their sex as were their sisters in revolutionary France (Branson 2001). Wilson even put such a woman’s voice into his text: ‘Methinks I hear one of the female part of my audience exclaim – What is all this to us?…. Is everything made for your sex? Why should we not have a share? Is our sex less honest, or less virtuous or less wise than yours?’ Wilson agreed with his hypothetical heckler, named three great women lawgivers – Semiramis of Nineveh, Zenobia, Queen of the East, and Elizabeth of England – and ‘challenge[d] any of my brethren to name three men superior to them in vigor and extent of abilities.’ His criticism of these great women, though, was that there ‘was too much of the masculine in them,’ and ‘we feel and we regret the loss of the lovely and accomplished woman.’ Instead, women ‘were destined to embellish, to refine, and to exalt the pleasures and virtues of social life.’ But they had a critical civic function as well: ‘you have a most intimate connection with the effects of a good system of law and government’; not only ‘forming your daughters. … . but in the ‘plan of education for your sons.’ Wilson then devoted over a page to praising several ancient Roman matrons who influenced their sons, who were heroes in the early United States. A ‘natural, … easy, and, often, pure flow of diction, lays the best foundation for that eloquence, which, in a free in country, is so important.’ He concluded, ‘you see now, my fair and amiable hearers, how deeply and nearly interested you are in a proper plan of law education’ (Wilson 2007, pp. 449–455). Wilson went beyond any other framer of the United States Constitution in attempting to involve the entire populace as much as possible in shaping law and government. At the convention, he expressed the belief that all free men ought to vote (there were property qualifications at the time), and select as well the United States Senate (chosen by the state legislatures until 1913) and President (still selected by an electoral college). He especially thought immigrants ought to be welcomed into the nation: ‘almost all the general officers of the Pennsylvania line’ during the Revolution ‘were foreigners.’ So were three of the eight Pennsylvania delegates to the convention, including himself – he was born in Scotland (Farrand 1911, vol. 1, pp. 52, 68, 151; vol. 2, pp. 268, 269). Wilson’s notion of popular interest and involvement in the law was not just wishful thinking. Recent books by Laura Edwards (Edwards 2009) and John Wertheimer (Wertheimer 2009) on county-level justice in South Carolina and North Carolina demonstrate a wide variety of local practices, in which juries and courts put aside formal law in accordance with community needs. For instance, although slaves were not supposed to testify against whites, slaves who had long lived in a community would be trusted to give informal testimony. Juries would decide the law as was well

104

W.A. Pencak

as the facts of the case, and on other occasions state legislatures would act as courts: the fine-tuned separation of powers and body of jurisprudence that has emerged over 200 years admitted flexibility at that time that showed the law was in a process of continuous flux. Real and if possible universal public loyalty, not strict circumvention of national power as for Tucker, was what was crucial for the republic was to survive. People had to believe that the nation, not the state, represented their interests and that their own participation was essential. Wilson wrote: ‘to embrace the whole [Union], requires an expansion of mind, of talents, and of temper … some will be adverse from indolence. . . others will be averse from interest. These last will introduce and recommend the government of their state, as a rival, for social and benevolent affection, to the government of the United States. In this manner… the patriotic emanations of the soul, which would otherwise be diffused over the whole Union, will be refracted and converged to a very narrow part of it.’ Wilson emphatically believed that the Union (which he capitalizes) is a national, not a federal, government. ‘The interest of the whole should never be sacrificed to that of a part … If, then, on any subject, a difference should take place between the sentiments, and designs, and plans of the national government and those of a state; on whose side are justice and general utility likely to be found?’ For this representation to be meaningful, Wilson continued, ‘expanded patriotism is a cardinal virtue in the United States. This cardinal virtue – superior to contracted motives or views, will preserve inviolate the connection of interest between the whole and its parts. Let us, then, cherish; let us encourage; let us admire; let us teach; let us practice this ‘devotion to the publick,’ so meritorious and so necessary to the peace, and greatness, and happiness of the United States’ (Wilson 2007, pp. 670–671). Wilson thus regarded the United States and its law not so much as a body of constitutions and statutes, but believed that these were manifestations of a continuing experiment, which he considered ‘scientific’ (Wilson 2007, p. 432) that would through trial and error refine and improve – not limit or preserve – the nation of 1790 to which he spoke. Furthermore, the United States was not conducting that experiment on its own: it was rather improving on a long, cherished tradition of English common law, whose development Wilson described as follows: ‘The prospect of convenience invites to the first experiment: a first experiment, successful, encourages to make a second. The successful experiments of one man or one body of men introduce another man or another body of men to venture upon similar trials. The instances are multiplied and extend, till, at length, the customs becomes universal and established. Can a law be made in a manner more eligible? …. In this manner, a system of approved and concordant laws is gradually, though slowly, collected and formed, … a system of experimental law, equally just, equally beautiful, and important as Newton’s system is, far more important still (Wilson 2007, pp. 567–568). In short, England’s common law, which resisted the edicts of monarchs and Parliaments, was the basis of both English liberty and the liberties the American colonists brought with them to the New World. ‘In free countries, especially, that boast the blessing of a common law,’ law sprang ‘warm and spontaneous from the manners of the people ’ (Wilson 2007, p. 432).

6  Initiating the Two Legal Cultures of the Early United States…

105

For Wilson, the common law was not, as for Tucker, a mass of incompatible specific practices, but rather the general standard of rights and responsibilities which had protected the people of England, as it did those of the United States, from arbitrary power. Even in England, contrary to Blackstone who argued for the sovereignty of Parliament, Wilson insisted that ‘acts of Parliament are not the lone – let us add, they are not the principal – species of law, known and obligatory in England.’ ‘That kingdom boasts in the common law. In the countenance of that law, every lovely feature beams consent. This law is of vast importance. By it, the proceedings and decisions of courts of justice are regulated and directed… it establishes the rules, by which contacts, wills, deeds, and even acts of Parliament are interpreted. This law is founded on long and general custom. A custom, that has been long and generally observed, necessarily carries with it intrinsic evidence of consent’ (Wilson 2007, pp. 567–568). Wilson’s understanding of the formation of law was remarkably anticipatory of Charles Peirce’s theory of science. Peirce defined the ‘true man of science’ as ‘every man belonging to a social group all members of which will sacrifice all the ordinary motives of their life to their desire to make their beliefs concerning one subject conform to verified judgments of perception concerning sound reasoning’ (Peirce 1968, p. 400). For Wilson, the American republic was the social group, the community of inquirers, to use another of Peirce’s concepts, inquiring after a just society (Peirce 1940, p. 247). While Peirce’s call for sacrifice was stronger than Wilson’s call to patriotism, they both insisted that for law or science – and for Wilson law was a science – to flourish, what was necessary was a real devotion to its principles, tested by a commonly agreed-upon experimental method – in Wilson’s case, the manner in which citizens participate in the government. The experiment would always be open, and subject to correction. As Wilson said: ‘I mean to support – the claim to integrity” but not ‘infallibility.’ ‘My house of knowledge is, at present, too small. I feel it my duty, on many accounts, to enlarge it. But in this, as in every other kind of architecture, I believe it will be found, that he, who adds much, must alter some’ (Wilson 2007, p. 448). Wilson, in short, defined the United States as a semiotic society. There is little in the methodology of Oliver Wendell Holmes and the common-sense legal realists discussed by Kevelson, whom she links intellectually to Peirce, that is not present theoretically in Wilson, or not intrinsic in the way the framers conceived the constitution itself (Pencak 1993).

6.5 Footnotes and Structure of the Texts Tucker’s and Wilson’s footnotes indicate how they conceive the relationship of English and American law. Tucker only cites Blackstone to criticize him. Examining his preface, he reserves his admiration for philosophers of natural rights and limited government: Emerich de Vattel (1714–17670) (Tucker 1803, pp. 7, 16, 59, 64, 74), a Swiss theorist who stressed that peace was the natural state of humanity and selfishness needed to be sublimated, both within and a nation and within the community

106

W.A. Pencak

of nations, for the general good; Jean-Jacques Rousseau (1712–1778) (Tucker 1803, pp. 8,9) whose Social Contract is cited for denouncing the “chains” in which humankind was held; Thomas Paine’s (1737–1809), (Tucker 1803, pp. 9, 57, 67) The Rights of Man, a defense of the French Revolution; James Burgh’s (1714–1775) (Tucker 1803, p. 10), a British writer whose Political Disquisitions argued for free speech and universal suffrage; Frances Hutcheson (1684–1746) (Tucker 1803, pp. 13, 50, 52, 69, 70, 71) a Scottish professor whose Moral Philosophy influenced the Declaration of Independence; Sir James Mackintosh’s (1765–1832) (Tucker 1803, pp. 15, 57) History of the French Revolution, which claimed that ‘all the governments that now exist in the world, except the United States, were fortuitously formed” and that the “balanced or mixed government. . . never existed except in the visions of theorists,’ and was but a pretence to hide monarchical or aristocratic domination; Jean-Jacques Barthelemy’s (1716–1796) (Tucker 1803, p. 29) Travels of Anacharsis the Younger in Greece, which noted how Athenian democracy worked until a senate was added to the assembly; Scottish historian William Robertson’s (1729–1793), (Tucker 1803, p. 31) History of Greece to demonstrate the appalling cruelty of Alexander the Great; Virgil (70–19 BCE) (Tucker 1803, p. 39), Dr. John Moore (1729–1802), author of Travels in Italy (Tucker 1803, p. 41) and Baron de Montesquieu’s (1689–1755) Spirit of the Laws (Tucker 1803, pp. 43–44), to criticize aristocracy. Tucker only mentions Montesquieu negatively at other times when he criticizes balanced government; Jean-Louis de Lolme (1741–1804) (Tucker 1803, p. 42), a Swiss political thinker who moved to England and warned that even the forms of democratic government might be subverted by designing aristocrats; Samuel Pufendorf’s (1632–1704) (Tucker 1803, pp. 69–73, 77) Law of Nations to show that the compact entered into by the United States was an alliance of sovereign states rather than a national union; John Davenant Bishop of Salisbury(1572–1641), (Tucker 1803, p. 65) and supporter of Puritanism and Parliament against monarchy and ecclesiastical hierarchy); Jean-Jacques Burlamaqui (1694–1748) (Tucker 1803, p. 65), who advanced the idea that governments ought to have strictly limited powers and strive to facilitate the pursuit of happiness by their citizens ; and, last but not least, John Locke’s Of Civil Government (1632–1704) (Tucker 1803, pp. 75, 78), ‘a work with which every American ought to be perfectly acquainted.’ Wilson, on the other hand, offers a rich tapestry of lawgivers, philosophers, statesmen, and historical figures going back to antiquity. His preface cites British Sir Edward Coke, Roman lawgiver Cicero, Greek philosopher Plato, Sir William Blackstone, Baron de Montesquieu, and Scottish philosopher Thomas Reid, all approvingly for their devotion to the study of law despite their widely divergent political views. Coke, Cicero, Montesquieu, Blackstone, and Reid defended limited monarchy and balanced government, while Plato – and of course this is debatable – believed in a philosopher king. Wilson’s first chapter begins with the great figures of antiquity (such as Alexander the Great, Achilles) and the writers (Homer, Xenophon, and Thucydides) who celebrated them, moves on American lawmakers such as William Penn and Maryland’s Lords Baltimore who instituted toleration; Justinian, Aristotle, Grotius, and Britain’s Sir John Fortescue are all praised as great jurists although Justinian ruled the absolute Byzantine Empire while the others

6  Initiating the Two Legal Cultures of the Early United States…

107

favored mixed government; three women – Semiramis of Babylon, Zenobia of Palmyra, and Elizabeth of England join them (Wilson 2007, p. 431) once again, Elizabeth embodied the mixed British constitution while the other queens ruled absolutely. Wilson’s notes, and appreciation of the predecessors in whose footsteps he hopes to follow, is as appreciative and broad as most of Tucker’s remarks are negative (except for heroes of popular liberty) and narrow. The structures of Tucker’s and Wilson’s volumes confirm this observation. Tucker prints Blackstone without comment, and then separates his own remarks in what amounts to a separate volume, just as he separates the American and English legal traditions. Only English, Swiss, and Dutch figures are cited (except negatively) and these are opponents of aristocracy and monarchy, forerunners of or participants in the American and French Revolutions. Wilson, on the other hand, integrates United States law with codes, lawgivers, and events going back to antiquity, viewing the new republic as a culmination of, rather than a repudiation, of western civilization.

6.6 Tucker’s Virginia and Wilson’s Pennsylvania The setting in which Tucker and Wilson delivered their lectures had much to do with their approaches. Tucker lectured at the College of William and Mary in Williamsburg, Virginia, which had ceased to be the state’s capital in 1780 and whose only reason for continuing to exist was the presence of the college. He spoke exclusively, or almost so, to law students, in isolation, and was concerned with their participation in government. They would be the legislators whom he hoped would protect the rights of states in the federal congress and federal judiciary and maintain them in the state legislature. Furthermore, Virginia was a relatively united society whose upperclass, the most prominent members being James Madison and Thomas Jefferson – Tucker admired them both – were paradoxically the foremost spokesmen for democratic ideals in the United States. This was because the average Virginian did not question their leadership. Virginia had few loyalists in the Revolution, successfully accommodated the Baptists who were being persecuted by granting them religious freedom, and its economy depended almost solely on the production of tobacco. Neither the relationship of the individual to the state, nor the legitimacy of the state itself was a problem in Virginia. Indeed, even today, state loyalty and nostalgia are especially strong in the Virginia (Isaac 1982). Wilson, on the other hand, lectured at the national capital, Philadelphia, to a diverse audience that included congressmen, judges, state and local officials, and interested citizens, including women. He thus had to persuade them that a form of government only 2 years old was both legitimate and worthy of their emotional attachment. But his nationalism also came from his negative experiences with Pennsylvania as a state. Its boundaries were not even settled when the Revolution began: Virginia claimed most of what is now southwestern Pennsylvania, and

108

W.A. Pencak

Connecticut the entire northern tier, with Pennsylvania’s claims to these region being validated by the United States Congress only in 1781 and 1786, respectively. During the Revolution, Pennsylvania had been exceptionally turbulent, afflicted by numerous loyalists and pacifists, Indian attacks on the frontier, and the most radical and controversial constitution in all the new states, enacted in 1776 whose unicameral legislature had persecuted those who opposed it even though they supported the Revolution. In 1779, Wilson himself had to defend his house against a Philadelphia mob that believed he was harboring traitors or was a loyalist himself. Known as the ‘Fort Wilson incident,’ between fourteen and seventeen people died as Wilson literally fought for his life against the supporters of Pennsylvania’s radical constitution. This had been superseded in 1790, the year Wilson began lecturing, and the new document was deliberately modeled as much as possible on the United States constitution (Wilson 2007, p. 883). Needless to say, Wilson had little use for the state as a meaningful repository of sovereignty or popular loyalty. He repeatedly remarked at the convention where Pennsylvania ratified the United States Constitution how disastrous a strong, unchecked state government had proven, and how little attachment most Pennsylvanians had to such a government (Pencak 2002). Even today, Pennsylvania attracts little loyalty from citizens who are more attached to ethnic groups, particular towns, Pittsburgh, Philadelphia, the anthracite coal-mining region, or Pennsylvania Dutch country.

6.7 Two Traditions in a Deadly Conflict of Laws Most lawyers in the early republic were not educated in law schools, of which there were only eighteen in twelve states by the 1850s. They were self-taught or served as apprentices to practicing lawyers (Matile 1999, p. 321). Yet Tucker and Wilson were either the founders or representatives of two legal traditions that came to characterize the American South and North. As scholar R. Ben Brown has demonstrated, in the early nineteenth century, ‘the southern states used a constitutional discourse which respected the legislature’s priority in law formation,’ whereas ‘the northeastern legal culture decided issues of substantive law using a common law discourse’ (Brown 1991). Both modes of legal interpretation and constitutional understanding underscored an important remark James Madison had made in the House of Representatives on April 6, 1796: Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were greathed into it by the voice of the people (Farrand 1911, vol. 3, p. 374).

Thus whereas the South developed a strong tradition of states rights and the legitimacy of state nullification of federal laws, most notably through the legal thought and subsequent prestige of John C. Calhoun, the North’s legal culture

6  Initiating the Two Legal Cultures of the Early United States…

109

that emphasized the primacy of the union and national power (Schwartz 1993, pp. 237–243). For instance, when New York’s Chancellor James Kent lectured at Columbia College in 1824, his outline stressed the ‘powers’ of Congress, the President, and various federal courts, but only ‘restrictions on state powers’ (Kent 1999, pp. 241–243). As Wilson knew, law was both a product of and a force shaping culture. Nowhere does this appear better than in understanding the American Civil War. The South’s cause is easy to understand: northern armies invaded their land, they fought for slavery and they were loyal to their states. Confederate General Robert E. Lee’s belief that Virginia and not the United States was his country is still a well-known fact. But the North’s loyalty to the Union is harder to understand. As historian James McPherson notes in his examination of the letters home of northern soldiers (McPherson 1997), most felt a mystical reverence for a Union, not a particular state, that they believed was, as Abraham Lincoln put it, ‘the last best hope of earth’ (Lincoln 1953, p. 537). They had internalized, fought, and died for James Wilson’s vision of the American republic, and ensured it would continue as a semiotic experiment in popular sovereignty.

References Bassett, John Moore. 1931. International adjudications: ancient and modern history and documents together with mediatorial reports, advisory opinions, and the decisions of domestic commissions, on international claims. Vol. 3, Modern series. Oxford: Oxford University Press. Branson, S. 2001. ‘These fiery Frenchified dames’: Women and political culture in the early republic. Philadelphia: University of Pennsylvania Press. Brown, R. Ben. 1991. ‘Let us go down and there confound their language’: The multiplicity of legal discourses in the antebellum United States. ABF Working Paper #8901. Chicago: American Bar Foundation. Edwards, L. 2009. The people and their peace: Legal culture and the transformation of inequality in the post-revolutionary South. Chapel Hill: University of North Carolina Press. Elizabeth J. Pardoe. 2010. Constructing community and the diversity dilemma: Ratification in Pennsylvania. In: Pennsylvania’s revolution, 258–281. Ed. William Pencak. University Park: Pennsylvania State University Press. Farrand, Max. 1911. Records of the federal convention of 1787. 4 vols. New Haven: Yale University Press. Isaac, Rhys. 1982. The transformation of Virginia, 1740–1790. Chapel Hill: University of North Carolina Press. Kent, James. 1999. A summary of the course of law lectures in Columbia College, vol. 1. Ed. Steve Sheppard. Pasadena: Salem Press. Originally published in 1824. Kevelson, Roberta. 1988. Law as a system of signs. New York: Plenum. Kolp, John. 1998. Gentlemen and freeholders: Electoral politics in colonial Virginia. Baltimore: Johns Hopkins University Press. Lincoln, Abraham. 1953. Second message to Congress, Dec. 1, 1862. In: Collected works, vol. 5. Ed. Roy P. Basler. New Brunswick: Rutgers University Press. Madison, James. 1996. No. 39. In Federalist papers. Ed. Benjamin F. Wright. New York: Barnes & Noble. Originally published in 1788. Matile, G.A. 1999. Law schools in the United States. In: History of legal education in the United States. Ed. Steve Sheppard. vol. 1, 319–327. Pasadena: Salem Press. Originally published in 1863.

110

W.A. Pencak

McPherson, J.B. 1997. For cause and comrades: Why men fought in the civil war. New York: Oxford University Press. Peirce, Charles S. 1940. Philosophical writings of Peirce. Ed. Justus Buchler. London: Routledge & Kegan Paul. Originally published in 1868 as ‘Some consequences of the four incapacities.’ Peirce, Charles S. 1968. Values in a universe of chance. Selected writings of Charles S. Peirce. Ed. Philip P. Weiner. Garden City: Doubelday. Originally in a letter to Lady Victoria Welby in 1903. Pencak, William. 1993. The United States constitution; a semiotic interpretation. In: History, Signing. In: Studies in History and Semiotics, 171–200. New York: Peter Lang. Pencak, William. 2002. The promise of revolution, 1750–1800. In: Pennsylvania: a history of the commonwealth, 50–101. Ed. Randall Miller and William Pencak. University Park: Pennsylvania State University Press. Schwartz, B. 1993. Main currents in American legal thought. Durham: Carolina Academic Press. Sydnor, Charles S. 1952. Political Practices in Washington’s Virginia. Chapel Hill: University of North Carolina Press. Tucker, St. George. 1803. Blackstone’s commentaries: with notes of reference, to the constitution and laws, of the federal government of the United States; and of the commonwealth of Virginia: appendix to volume the first, Vol. 1. Philadelphia: Birch & Small. Wertheimer, J. 2009. Law and society in the South: A history of Carolina court cases. Lexington: University of Kentucky Press. Wilson, James. 2007. Lectures on law. In: Collected Works. Ed. Kermit L. Hall and Mark D. Hall. Indianapolis: Liberty Fund Press. Originally published in 1804.

Part III

Semiotics and the Legal System

Introduction Jan M. Broekman

Is “legal practice” a concept that became accepted and generally used by legal practitioners? Ask them: do they have conversations among themselves about their “practice” or do they appreciate that concept as a purely legal-theoretical idea that evolves at distance from their own activities within the legal institution? Their answer will astonish: they hardly understand the word ‘practice’ in the way legal theoreticians do, and do not grasp the relevance of any of the multiple theoretical concepts related to those issues. “Legal practice” is definitively a theoretical concept, and how law as a system is discussed in that terminology is irrelevant to those who daily exercise law as a social practice. The concept of “law practice” implies that law students, preparing themselves for those everyday exercises, do so at distance to legal theoretical debates and semiotic analyses. They do not discuss the systemic character of law and legal discourse, even when they operate within it and judge whether an opinion or a text is or is not “law”. This unites lawyers and theoreticians alike, in the Civil Law tradition as well as in the Common Law, in legal pragmatist as well as in legal semiotic perspectives. The position and the role of legal semiotics in law as a system, in itself a theoretical issue of considerable importance, reaches beyond practical perspectives on law. Neither Semiotics nor Law have been appropriately defined despite centuries of social and philosophical theory. As Immanuel Kant remarked, jurists have never provided a definition of law, and yet they pretend to know very well how to practice it. And Roberta Kevelson, who so firmly laid the foundations for legal semiotics, never formulated definitively what it means to understand law as legal semiotics, a system of signs! It is precisely these discussions that kept arising during many sessions of the seminar. The openness of semiotics, its character of being infinite and non-delineated, plays an important role as soon as one needs to refer to the systemic

J.M. Broekman () Dickinson School of Law, Penn State University, W. South Street 333, 17013 Carlisle, PA, USA email: [email protected]

Part III  Semiotics and the Legal System

113

character of semiotics. The same, mutatis mutandis, is true for law. The rich ­tradition of legal philosophy in Western culture does not answer these deep inquiries, and instead appears to freeze upon observing the fact that legal practitioners lack a ­theoretical basis for their social activity. Two perpetual points of interest, which belong to this context, are represented in this chapter. They belong to an important series of insights in the semiotic understanding of legal thought formation. The first essay is about differences in Civil Law and Common Law traditions, in particular the role of judges and juries in these contexts. Is it possible that the general theme “semiotics of law” can focus on law as a practice that is theoretically unified, so that one can study the semiotics of “law tout court”? Or do differences between the two Western legal traditions so significant that they block uniform semiotic conclusions that are relevant to our understanding of the practice of law? Those issues lead unmistakably to the insight that legal systems, as a product of legal theory, should be treated as designs, which can appropriately be analyzed in terms of semiotics—in terms of a sign theory in particular. That approach leads to important conclusions for legal practitioners, for instance: Difference in judicial authority affects the semiotics of the practice of law substantially. Whenever communication is limited and the bounds of discussion narrowed, the semiotics of a process changes because potential meanings of signs involved are restrained.

Consequently, these chapters discuss such differences in Civil and in Criminal Procedure, and provides the far-reaching insight, that no difference has a greater effect on the semiotics of the law than that of the practice of trial law.

Such an exemplary conclusion shows the relevance of semiotic insights in differences between two legal traditions as well as the abyss between theory and practice of law. This is also readable in Merryman’s globally recognized book on the Civil Law Tradition, which is written from a Common Law standpoint. Consider the question of which legal tradition is more just: the Common Law or the Civil Law. Merryman answers that “… if he were innocent, he would prefer to be tried by a Civil Law court, but that if he were guilty, he would prefer to be tried by a Common Law Court”. That comparative lawyer’s answer has an important meaning, which embraces both dimensions of law: the practical and the theoretical, although nobody can bring them together seamlessly. Theories of law are specific designs of particular discourses, Ellsworth concludes in the second essay of this Part III. That conclusion relates to another important aspect of law’s system-character. From Herbert Hart to Niklas Luhmann theoretical positions with enormous semiotic relevance were developed. They relate to the meaning-making capacity of each legal practitioner, and emerge beyond boundaries between theory and practice in legal discourse. Each understanding of this issue includes an acceptance of the fact that law and legal systems are both complex systems of signs. In order to more fully understand them, and to grasp how they evolve and change, one needs to employ a theory of sign systems, which can be used to analyze them as such systems. Kevelson’s remark is made concrete in the various perspectives offered by today’s legal theory. No matter

114

Part III  Semiotics and the Legal System

how they relate to Hart’s ideas about the “open texture” of the law or those of Luhmann about law’s autopoietic features, they lead to the conclusion that a study of the system-character of law can provide a deeper understanding of the meaningmaking dynamics of legal practice. Ellsworth suggests that the grounding of such understanding (which includes legal practice) is in a community’s political morality. The system, he suggests, must remain cognizant of the encompassing political morality because although the system functions autonomously, the system’s existence is dependent upon the legitimacy bestowed by the community. And, what is more: semiotics allows for the study of the evolving signs of which the law is composed as well as the ways in which the legal system utilizes these signs as the system autopoietically perpetuates. The challenge of these chapters have indeed law’s system-character in semiotic perspective as its core value. Without this, law would solely be (in the words of MacCormick) a “legal hypercycle”: a concept totally unknown and irrelevant for the legal practitioner and a gross irritation for the theoretician.

Chapter 7

Common Law Lawyers Should Mind Their Trial Practices: Understanding, Identifying, and Correcting a Semiotic Imbalance Edward J. Cyran

7.1 Introduction It is difficult to say that two great legal traditions dominate our modern world today. Both the Civil Law and the Common Law have existed for starkly different lengths of time, with the weight of resulting cultural influences being quite evident. The prevalence of influence of the Civil Law and Common Law is not close to equal among countries in the Western world. Much of Latin America ascribes to the Civil Law tradition, albeit with separate legal “systems.” Additionally, in some countries in the Eastern world, Customary law prevails as the dominant tradition. Nevertheless, one can say that the Civil Law and Common Law have a shared ­history that is substantially tied to the development of the current legal systems found in our modern world. Law is one of the essential components of civilization. Its sign perpetually influences our social discourse; its seen and unseen hand is present upon virtually all of our relationships and objects. Yet the law, something so pervasive and omnipresent in our culture, is not interpreted or regarded in a similar manner between the two great traditions. The two have contrasting “attitudes” about the law (Merryman and PerezPerdomo 2007, p. 2). Although the Civil Law tradition acknowledges the textual authority of the law, or “codes,” as supreme, and the Common Law expects legislation to be scrutinized by judicial decisions, a distinction of the two traditions on this ground is inaccurate and shortsighted (Merryman and Perez-Perdomo 2007, p. 27). What this notion truly reflects is an asymmetry in ideology (Merryman and Perez-Perdomo 2007, p. 28). Under the Civil Law tradition, the law is established by the legislature as the will of the people, with the role of the judge clearly established as administrative (Merryman and Perez-Perdomo 2007, p. 36). Accordingly, judges and lawyers are servants of the law and the community, and citizens are the beneficiaries of law E.J. Cyran (*) Dickinson School of Law, Pennsylvania State University, University Park, PA, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_7, © Springer Science+Business Media B.V. 2011

115

116

E.J. Cyran

(Merryman and Perez-Perdomo 2007, p. 37). Lawyers assist the judge by arguing that a particular set of facts does or does not apply to a given statute. In Common Law nations, law may also be set by a legislature; however, such legislation is far from the only source of legal authority. Certainly, statutes are considered as being the legislature’s attempt at providing law for areas of legal concern in the community. However, no “code” is supreme under the Common Law tradition. Judges wield the power to interpret statutes with the guidance of well-established common law rules (Merryman and Perez-Perdomo 2007, p. 33). In some areas of the law, such as torts and contracts, few statutes are even present, because the legacy of Common Law judicial decisions is considered as supplying the necessary law for future instances. Consequently, for Common Law lawyers, the law is a sea of precedent. Precedent cases interpret statutes, constitutions, and common “rights.” These common rights and values, discernible as appeals to the nomoi, originated in the wisdom of ancient judges, and have been refined by the judiciary over the course of decades. Similarly, the cases that interpret statutes and constitutions are revered as necessary elements of the law. The goal of this text is not to identify the more appropriate legal tradition for society, but rather: (1) to discuss the separate understandings of the “law” among the Civil Law and Common Law traditions through the views of three major ­semioticians, and (2) assuming that the differences between the Civil Law and Common Law have an effect on legal semiotics, to determine whether differences in the understanding and practice of legal semiotics between both traditions, until now relatively unnoticed, enriches and refines future legal semiotics. To explore semiotics either under the Common Law or Civil Law traditions, a certain background in legal semiotics and a look at how lawyers under both legal traditions practice are necessary. We will first discuss the Peircean and Greimassian perspectives on legal semiotics. Part 2 concludes with Lacan’s view of law as a master discourse. In Part 3, the differences between the semiotics of the practicing lawyer under the Civil Law tradition and the Common Law tradition will be ­discussed. Parts 4 and 5 conclude by exploring if any of the differences in the semiotics of both legal traditions are imbalances in the practice of law, whether such instances are concerns for legal semiotics, and whether they should be corrected.

7.2 Background in Legal Semiotics 7.2.1 Peircean Theory of Legal Semiotics Peirce teaches that there are three components to conscious experience; all three of which create the infinite semiosis of meaning. They are firstness, secondness, and thirdness. In Peirce’s Triadic System of Signs, a sign or representamen is a manifestation of firstness, an object is a manifestation of secondness, and an interpretant is a manifestation of thirdness.

7  Common Law Lawyers Should Mind Their Trial Practices...

117

Firstness is the realm of potentiality and possibility. It is experienced as emotion, such as pain before wondering where it is arising from. A concept in firstness has no limits, yet it exists in all of its potential. A quality such as “fairness” is an example of firstness. The semiotic operator in firstness is the sign. Firstness is noticed least in the practice of law. Secondness is the realm of being in action. It is experienced practically when an event occurs in consequence of another event, such as when a ball drops to the ground. The semiotic operator in secondness is the object. Secondness is more commonly a part of a lawyer’s practice. Thirdness is the realm of explanation. It is experienced intellectually as the ­reason we accept for why the ball fell to the ground. For example, the ball fell because of gravity. The semiotic operator in thirdness is the interpretant. The interpretant is an ever-changing conglomerate of rules and understanding regarding two events that each person keeps in storage to apply when a seemingly similar future event occurs. Thirdness always appears in a lawyer’s practice. Because an interpretant associates an object with a sign, an interpretant must ­utilize other interpretants in order to allow us to make sense of the relationship between the object and the sign. For example, the definition of a word is an interpretant, but understanding the definition itself requires understanding the interpretants associated with each of the words in the definition, thus intertwining the semiosis of one sign/object/interpretant with an infinite number of other signs/objects/interpretants (Everaert-Desmedt 2006). Because instances of thirdness occur constantly in the practice of law, indeed constantly in communication, infinite semiosis is occurring at all times in the practice of law. As Peirce put it, “[secondness and thirdness] are the being of actual fact, and the being of law that will govern facts in the future” (Broekman 2010, p. 34). Thus, it can be seen that when lawyers practice, through oral argument or written argument, they make meaning. The difference between the two legal traditions is in how they make meaning in the law. Finally, Peirce’s ingenuity revealed that in any given situation where communication is occurring, a final interpretant exists, which he called “habit.” As humans, the more often we interact with a sign, the more likely we are to enter into a habit of attributing a certain signification to that sign in a given context. Such a “freezing” of the infinite semiosis allows those participating in that communication to reach a consensus on “reality” in a given context (EveraertDesmedt 2006). Although Peirce recognized this concept in the form of a habit, it is not the only time that humans “freeze” the infinite character of semiosis. It can also occur for brief periods of time in law when judges use their authoritative power in legal discourse to determine the legality or illegality of a given set of facts. While habit may also pervade such judicial decisions, there is a separate assertive action that judges can take under both the Civil Law and Common Law traditions to set the meaning of the law in a given instance. When such “freezing” actions take place, the meaning has risen to the “surface” of language. Greimas examined this depth and surface of language in detail, mainly in literary texts and contexts.

118

E.J. Cyran

7.2.2 Greimassian Theory of Legal Semiotics One of Greimas’s greatest contributions to semiotics is the differentiation, the formal representation, and thus the understanding of surface and deep structures of narratives. That understanding appears to be essential for law and legal ­discourse. Although the names of phenotext and genotext were given by Kristeva, their structures were identified by Greimas. Greimas explained the deep structure, or genotext, through the use of semiotic squares. Because law, like any discourse, is a discourse within the master social discourse, there are legal meanings and social meanings for a given sign within the deep structure of language. However, the legal discourse itself does not have a deep structure (Jackson 2010), because the legal discourse is an artificial discourse. An artificial discourse is a discourse in which one or a number of authoritative figures give definite meanings to signs. Comparatively, in a natural language, meanings of signs cannot be limited. The reason for this lack of limitation is the nature of the decision-making process in communication. In a natural discourse, each actor has the power to discover or attribute a meaning to a sign, and effectuates it through communication. This meaning becomes part of the depth of the sign/discourse, i.e. its genotext. Because in an artificial discourse, such as legal discourse, the meaning of any sign is determined by authoritative figures who are given the power to decide that meaning, a sign’s meaning in an artificial discourse will be that meaning that ultimately serves the goals of the language. In the case of legal discourse, the meaning of a sign will be that meaning that serves “justice” in a given instance, as determined by an authoritative figure. In other words, the decision-making process of meaning is identical to the functionality of the language. The reality of legal discourse is that an institution (government) is achieving its goals by using language and ­employing functionaries, or “authoritative figures,” define meaning. These authorities consist of courts (through judges) and legislatures (through legislators). Thus, unlike in a natural discourse where anyone can participate in the decision-making process of meaning through communication, in an artificial discourse, only those who ­communicate with the functionaries can actually influence the meaning of signs. In legal discourse, it is only those lawyers or individuals who communicate with judges or those lobbyists who communicate with legislators that can potentially impact the meaning of a sign. Note that any law review article or text that is used persuasively by a lawyer or lobbyist when that individual is communicating with a functionary may also influence a future legal meaning. Because of this nature, the depth of the structure of legal discourse is severely limited in its development. It is limited in its existence by precedent in the Common Law tradition and by judicial authority in the Civil Law tradition. Under the Common Law tradition, past legal meanings include the reasoning and holdings of cases in equal or superior courts. Under the Civil Law tradition, past legal meanings may include: past rationales that the lawyer or judge has previously used personally in deciding similar cases, truncated decisions of the European Court of Justice (ECJ), Court of Human Civil Rights, or any superior court to the court responsible for

7  Common Law Lawyers Should Mind Their Trial Practices...

119

­ aking the decision in any given case (because the judge seeks to avoid reversal) m (Merryman and Perez-Perdomo 2007, p. 38), and the interpretation of the code with clarity, coherence, and consistency in order to uphold the law (Merryman and PerezPerdomo 2007, p. 48). If there is any possibility that stare decisis appears to impact a judicial decision in a Civil Law jurisdiction, it is dispelled by the fiction that the judge fully developed the reasoning himself and that the law is consequently clear (Merryman and Perez-Perdomo 2007, pp. 83–84). Thus, in either legal tradition, a wealth of meanings accumulates in the shallow depths of the phenotext of law. According to Greimas, the basis of the deep structure consists of elementary structures of signification that can be found in all discourses over all cultures (Jackson 2010). While these structures form the requisite environment for any ­discourse, Greimas also identified the general knowledge at this level as being ­thematic and organized by the structure of the narrative (Jackson 2010), also referred to as the actantial model. Greimas believed that as humans we begin each action, each thought, with a goal. Inherently, this goal must involve a semiotic object or sign as its “subject.” The subject will proceed through a narrative by being helped or hurt by actors as it results in either achieving or failing to achieve its goal. The narrative process completes with a reflection upon the past actions of the subject. As Jackson describes: Human action (whether real or fictional) thus appears meaningful in terms of a basic (“narrative”) sequence, which consists in the setting of goals (“contract”), “performance” (or non-performance) of those goals, and “recognition” of that performance (or nonperformance). (Jackson 2010)

This innately human process of meaning is of the utmost importance in the practice of law. Whether under the scrutiny of a jury of peers or a jury of judges, the story of the facts, i.e. the factual story presented by the lawyer, is processed through the minds of the jurors by the narrative scheme. However, the trial process under both traditions is not simply one coherent narrative. There is the “story told in the trial,” in which the subject of the narrative is the fictional character of the defendant (or the subjects are both the defendant and plaintiff) who proceeds through the story. There is also the “story of the trial” starring one lawyer as the protagonist and involving all of those people with whom he interacts, or multiple stories of the trial, with different members of the legal discourse as the subjects. Under each legal ­tradition, the narrative process adds to the development of legal meaning, albeit ­different in the Common Law tradition and in the Civil Law tradition. Greimassian semiotics would contribute to legal semiotics the idea that legal discourse is not one large entity, but rather the quality of a particular discourse within an embracing discourse, that functions as one of the main master discourses in society and western culture (Jackson 2010). Instead of referring to the “law,” each legal discourse refers to another legal discourse. For example, a judge, within a legal discourse between himself and a lawyer, may refer to legislation. The advantage of this approach to understanding legal semiotics is that it is pragmatic. One can compare, as one might naturally desire to, a specific legal discourse to other discourses, such as a doctor-patient discourse (Jackson 2010). Furthermore, legal traditions

120

E.J. Cyran

may be considered comparatively for their similarities in individual legal discourses, as well as on a larger scale as a part of the “law,” free from the constraints of being analytically a part of one master legal discourse. Of course, it cannot be ignored that, in the aggregate, law is a master discourse. Lacan contributes to legal semiotics via his semiotic insights an understanding of this master discourse.

7.2.3 Lacanian Theory of Legal Semiotics A master discourse creates the norms in which a society operates (Wirth 2009, p. 86). Master discourses are the result of the interaction of a master signifier and knowledge, which is otherwise termed a “battery of signifiers” (Unattributed 2010). By identifying a subject in a certain manner, the master signifier gives a meaning to that subject, or the “signified,” that is superior to the meanings given to it by all other signifiers. In essence, the master signifier speaks with one voice. Lacan stressed the importance of this function in society. A master signifier provides a sense of security and closure regarding truly ungraspable terms such as democracy, freedom, right, and wrong. Within the practice of law, each judge is a figure of the master signifier, with the U.S. Supreme Court being the ultimate master signifier under the American legal tradition through the doctrine of stare decisis. Under this tradition, the decisions of the highest state courts on Common Law matters, and the decisions of the U.S. Supreme Court on federal and constitutional matters, create the strongest sense of law that can be found. In the European Union, the ECJ has a similar, but narrower role under the Civil Law tradition. While the doctrine of stare decisis does not operate per se; courts of their own Member State may reverse civil law judges. At the Union level, the ECJ has the authority to speak with the ultimate voice on matters of EU law (Broekman 1999, p. 17) belonging to the acquis communautaire by order of the Treaties since 1951 and the accession rules accomplished by the Member State (Broekman 1999, pp. 164–168). The acquis can be described as: …the acceptance of the rights and the obligations, actual and potential, of the community system and its institutional framework. (Broekman 1999, p. 165)

Through the acceptance of this policy by an acceding member state, the ECJ is the master signifier on issues relating to EU Law, and thus, all Member States law. This includes all law originating under the Treaties signed by Member States, and general principles of law, arguably originating from cases themselves and then being applied to later cases (Broekman 1999, p. 17). Along with the ECJ and other EU courts, law is signified by the legislatures of each Member State. Thus, under the Civil Law tradition in Europe (where it has expanded from the standard Civil Law model of legislative supremacy over judicial hierarchy found in other Civil Law countries to the model of the European Union), the legal discourse is a master discourse created by the process of law, both through legislation and judicial decisions.

7  Common Law Lawyers Should Mind Their Trial Practices...

121

Although Greimas would disagree with Lacan and emphasize that the law cannot be seen as one master discourse, but a conglomerate of multiple master discourses without reference to any extra-linguistic body of “law” (Jackson 2010), it can be seen that, from the perspective of the practicing lawyer under either tradition, it is useful at times to consider the law as one master legal discourse, or in the very least, as having one of its multiple discourses reign supreme. When the ECJ or U.S. Supreme Court reverses a lower court, it does so in reference to Treaties, principles of law, or a constitution. Can it not be said then that such a process of law by master signifiers is the supreme legal discourse, using the fundamental batteries of signifiers to declare meaning? From the lawyer’s point of view, it would seem ignorant to disregard such authority, both of law and judicial hierarchy, when preparing a case under either legal tradition. While it is true that Civil lawyers may consider all of EU and their Member State’s law to be the “law,” and Common lawyers may ­consider the “law” to be in a constant state of flux, malleable to their liking, the practicing lawyer under either tradition shares a similar recognition of the supreme master signifier. It is after that recognition that the understanding and practice of law diverges between the traditions. The next section will proceed to examine the ­differences in the understanding and practice of law under both legal traditions.

7.3 Semiotic Differences in Both the Understanding and Practice of Law Between the Traditions While many individual acts of the Civil or Common lawyer may be analyzed ­semiotically, it is the intention of this paper to highlight some of the most substantial differences in legal semiotics between the traditions. Both the model and practical uses of the law with regard to each difference will be examined. The potential for misuse of the legal process will be explored in Part 4. Only civil and criminal ­procedure – the traditional operation of the courts – will be discussed, and not the operation of constitutional or administrative law because of the complexity of understanding the jurisprudence and its institutional character.

7.3.1 The Difference in Judicial Authority Renders the Phenotext of the Practicing Lawyer’s Legal Discourse with More Meanings Under the Common Law Tradition In the Civil Law tradition, the model of the legal process positions the judge as operator of the law and the judicial process as one of administration of the law. As a privileged participant in legal discourse, the Civil lawyer seeks to communicate to the judge his application of the law to the facts at hand. In the Common Law tradition, the model of the legal process positions the judge as a protector of rights

122

E.J. Cyran

and fairness. He may overturn the law if he finds that it violates common law rules or if it is inconsistent with other law. In contrast, under the Civil Law, judicial reversal of laws on grounds of inconsistency can only happen under narrow ­circumstances, specifically those cases brought “in the interest of the law,” and brought before the ECJ or another EU court. The difference here is ideological, stemming from the concern under the Civil Law tradition that granting the judge broad authority is a danger to the certainty of the law (Merryman and Perez-Perdomo 2007, pp. 48–50). This difference in judicial authority affects the semiotics of the practice of law substantially. Whenever communication is limited and the bounds of discussion narrowed, the semiotics of a process changes because potential meanings of signs involved are restrained. When a Common Law court issues an opinion, the legal meaning given by that court to a rule or set of facts becomes a part of the phenotext of the Common Law. Because under the Civil Law model court opinions are not issued and dissenting votes are neither reported nor discussed (Merryman and Perez-Perdomo 2007, p. 122), the phenotext of the Civil Law does not include these potential meanings. Inherently, under both traditions, the fact that legal ­discourse does not include a genuine genotext, but only a phenotext, already limits the potential meanings of a sign in legal discourse. By adding in the extra layer from the Civil Law process that a judge may only decide the law’s application to the facts, the discourse between lawyer and judge inherently decreases in size, as less potential arguments are available. For example: under the Common Law, a lawyer may brief the judge or judges on several arguments ranging from the factual application of the law to the constitutionality or legality of the law itself. In front of a Civil Law court, the lawyer must only address the factual disposition of the case. Similarly, in regard to the involvement of precedent case law in legal discourse, a Common lawyer may often argue more ­possible meanings to a set of facts or a rule than a Civil lawyer, simply because the bank of data available to be discussed is larger. Furthermore, because the ideology of the Common Law tradition is to interpret and mold the law with new cases, the legal process itself is fully open to additional meanings for a given rule or a set of facts. The phenotext of the Common Law available to a practicing lawyer must necessarily be larger because the lawyer can argue more meanings. In no way is this observation an indictment of the Civil Law tradition. There is arguably substantial merit in resting such aspects of legal discourse with particular appeals to the ECJ and EU courts, and not with the legal process of trial courts or member state appellate courts. After all, it is a separate ideology of law. Nonetheless, there is a notable difference in phenotext within the legal discourses of both traditions. One might expect that a narrower phenotext would substantially affect the process of meaning generation outlined by Peirce. As discussed above, thirdness, or the operation of the interpretant, explains the relationship between a sign and an object. Because cases are not reported and opinions not issued, there are fewer determined relationships between rules and facts (there are fewer instances of secondness and thirdness) residing in the phenotext of Civil Law discourse for the development of

7  Common Law Lawyers Should Mind Their Trial Practices...

123

the interpretants of future lawyers. Furthermore, because lawyers are unable to ­participate in the making of law in Civil courts, the entire legal discourse involved in creating legislation is absent from the phenotext of Civil Law discourse between lawyers and judges. Hence, each Civil lawyer and judge must have fewer interpretants between facts and rules and fewer interpretants between constitutional rights, policy, facts, and rules. (Note: This is not to say that such interpretants do not exist in the legal discourse of Civil Law. Quite the contrary, they may settle in other places such as the discourse of the legislature or the legal discourse between judges and appellate lawyers in the ECJ and other EU courts. Nonetheless, without the direct link between cases and their decisions being reported, such relationships between rules and facts simply are not available to practicing lawyers in trial courts, outside of personal experiences of past cases.) To be sure, the phenotext of Civil Law discourse has other meanings, which the phenotext of Common Law discourse does not have. Because of the Civil Law ­ideology, lawyers and judges look to fit the facts into the law, not to mold the law into the facts (Merryman and Perez-Perdomo 2007, p. 49). Thus, Civil lawyers and judges seek to apply the law with clarity, coherence, and consistency, toward an ultimate goal of certainty. The techniques and rationales that have been developed to fit the facts into the law are certainly part of the phenotext of the Civil Law ­discourse. Civil lawyers and judges learn about these techniques and rationales in law school and in practice. However, the addition of these potential meanings for rules and facts still does not increase the size of the phenotext of the practicing ­lawyer’s legal discourse to that of the Common Law. While the phenotext of the Civil Law discourse (at least, as Greimas would say, the legal discourse between judges and lawyers) is admittedly different in ­quality, it is also different in extent. The second difference in judicial authority between the two traditions is that of the power to provide equitable remedies. Equity is “the justice of the individual case” (Merryman and Perez-Perdomo 2007, p. 49). In the Common Law, judges are charged with the discretionary authority to ensure the administration of equity, but in the Civil Law, for fear of the impact on certainty of the law, the equitable power of judges is restricted by statute (Merryman and Perez-Perdomo 2007, pp. 49–50). The application of equitable remedies to a given case is truly a role of the legislative discourse in Civil Law. For this reason, the phenotext of the Common lawyer’s legal discourse includes equitable meanings and the Common lawyer may develop those interpretants. Although the source of judicial authority is different for equity under the Civil Law, a Civil lawyer’s legal discourse often still includes some meanings of equity. This is because in practice, the Civil legal process provides the judge with equitable power in certain delineated situations within the code, such as when ­parties fail to act in good faith during contract negotiations (Merryman and PerezPerdomo 2007, pp. 52–53). In the cases where such authority is conferred upon the judge, Civil lawyers will be able to participate in this equitable legal discourse. Furthermore, even though judicial opinions are not published in Civil Law, lack of case precedent does not identify a significant difference between the traditions with regard to equitable discourse because case precedent is not often used to fashion

124

E.J. Cyran

equitable remedies under the Common Law. Rather, the judicial resolution of a case in equity will involve applying notions of fairness and notions from the nomoi to facts of the case. Thus, the legal discourse of the practicing lawyer is in both ­traditions similar only when equitable Civil Law judges wield power.

7.3.2 Differences in Civil Procedure Outside of the impact of differences in judicial authority upon the legal process, the difference in ideologies regarding the development of law continues to have its semiotic effects within the civil procedure of both traditions. There are two substantial differences in civil procedure (other than the remedy of equity) that this chapter will explore: the absence of a right to trial by jury in a civil case under the Civil Law and the potential awarding of extra-compensatory damages in a civil case under the Common Law. First, under the Common Law tradition, specifically the American tradition, a defendant has a right to trial by jury in any civil or criminal suit, whereas under the Civil Law tradition, no such right exists. Instead, a defendant in a civil suit within a Civil Law jurisdiction will proceed through a three-stage process beginning with pleadings, followed by the presentation of evidence to a hearing judge, and ­concluding with the submission of briefs, oral arguments, and a disposition by the deciding judges (anywhere from one to three) (Merryman and Perez-Perdomo 2007, p. 113). There are several important implications from this process. First, besides not involving a jury, this process is spread out over many separate events, which are taking place as discussions about written texts, providing ample time for lawyers to prepare between meetings with the judge. Such a lack of concentration of the legal process is foreign to Common lawyers, who must prepare for trial from the first instance of pleadings (Merryman and Perez-Perdomo 2007, p. 114). Second, only the hearing judge may ask the witnesses questions, but the questions are those submitted by the counsel for the parties after reviewing the opposition’s questions. Therefore, not only is the process much less immediate, but no cross-examination exists to influence the fact-finder (Merryman and Perez-Perdomo 2007, pp. 116–117). Finally, because the hearing judge in the Civil tradition prepares a summary of the facts for the deciding judges, any meaning that the hearing judge developed through the demeanor or tone of voice of the witnesses only impacts the disposition of the case if the hearing judge includes those impressions in his fact summary (although counsel for the parties may brief the judge on how to word the fact summary) (Merryman and Perez-Perdomo 2007, pp. 116–117). The result of the legal process in civil cases under the Civil Law tradition is that the development of meaning from Greimassian narratives is limited to that of the “story told in the trial,” which consists of mostly the written facts communicated by the lawyers to the judges. Because of the extensive length of trial, the “story of the trial” has little, if any, impact upon the hearing or deciding judges. Do not forget

7  Common Law Lawyers Should Mind Their Trial Practices...

125

how stories told by lawyers through written communication are substantially ­different than those acted out in the theater of the trial because legal writing is highly institutionalized. In contrast, under the Common Law tradition, the “story of the trial” can take on a life of its own. It is the reason why the best trial lawyers strive to captivate juries. If the jury focuses on the lawyer’s objections, facial expressions, comments, and interactions with opposing counsel and the judge (issues that cannot arise in writing), this second story “of” the trial can impact the jury’s final decision to such a degree that it eclipses the story told “in” the trial. In essence, the trial ­lawyer has become the subject of the Greimassian narrative, whose goal is to “get the facts right,” and whose performance is impacted by the help or antagonism of opposing counsel and the judge. What makes the tactic even more effective is that the jury can feel that they, too, are a part of this narrative or another narrative, and can see themselves as a helper or, even more enthralling, as the subject. After all, upon the delivery of a verdict, the jury will reflect upon its own collective action. While the development of meaning that occurs from the story of the trial may be considered important to the determination of the facts, it is only when the defendant is actually guilty, and the plaintiff/prosecutor’s story of the trial triumphs, that such a development of meaning adds to the goal of the legal process – to administer the law. Otherwise, the multi-narrative of the Common Law trial adds meaning where arguably it does not belong. The second substantial difference in the civil procedure between the two traditions is the type of damages available to be awarded to prevailing plaintiffs. Under the Common Law, plaintiffs may recover punitive damages, or similar extra-compensatory damages, in a civil suit after a finding that the defendant committed the actionable conduct with the requisite reprehensibility. The availability of such damages is, in itself, an excellent example of the constructive power that shapes legal discourse and its meanings. Under the Civil Law tradition, damages beyond those that are compensatory would be seen as exceeding the power of the judge, and only occur within the boundaries of criminal law. Defendants can still be liable for similar reprehensible conduct as in a Common Law case; however, the legal process involved is criminal and the “damages” are actually a fine defined by the legislature and paid to the state (Merryman and Perez-Perdomo 2007, p. 124). Unlike the effect of a civil trial on the semiotics of a practicing lawyer, the award of extra-compensatory damages (or the absence of such an award) creates only a small difference in the development of meaning in legal discourse under either ­tradition. Under both traditions, a lawyer would argue the reprehensibility of the defendant’s conduct to the fact-finder to determine liability, and precedent is not used under the Common Law to determine the amount of damages (like the administration of an equitable remedy). Thus, neither the phenotext of the legal discourse is notably different between the traditions nor are interpretants substantially affected. The difference might be more evident on appeal when one party argues for the vacation of such damages due to their excessive nature. There, precedent would be ­utilized by a Common lawyer. Under the Civil tradition, criminal law would handle the entire remedy, assuming the process is even initiated by the public prosecutor.

126

E.J. Cyran

However, the only differences in legal discourse between the criminal case under the Civil Law and the Common Law inclusion of the extra-compensatory damages in the civil case are those addressed above with regard to the size of phenotext. Because of the ideology of judicial authority, the Civil lawyer could only argue the application of the law to the facts, and could not raise the illegality of the law as an argument (except to appropriate courts).

7.3.3 Differences in Criminal Procedure The differences in criminal procedure between the two traditions are much fewer in number and severity than in civil procedure (Merryman and Perez-Perdomo 2007, p. 125). Most significant differences have been reformed over the centuries, such as a lack of presumption of innocence (Merryman and Perez-Perdomo 2007, p. 132). Additionally, defendants have a right to trial by jury under the Civil tradition, even though the members of that jury may be judges instead of laymen and the number of jurors may be smaller than the twelve commonly found in Common Law juries (Merryman and Perez-Perdomo 2007, p. 132). Finally, although some American states still have a few common law crimes, the vast majority of states define all crimes by statute, like in Civil Law countries. One notable difference between the traditions is that the Civil tradition does not require a defendant to be sworn in to testify (if he testifies at all), whereas the Common Law requires the defendant to either be sworn in or not to testify. While on its face this does not make much of a difference, the way that the traditions utilize the decision of the defendant to testify does affect meaning. Under the American Common Law, a defendant’s decision not to testify cannot be used against him in determining liability or sentencing. However, under the Civil tradition, a defendant’s decision on whether to testify may be used against him both for liability and sentencing. It is obvious then that such an action becomes a part of the phenotext of the legal discourse of that particular trial. It is a reason aside from the application of the law (albeit application itself) to find the defendant guilty. Nevertheless, this effect is not the most important distinction of criminal procedure between the two traditions. Furthermore, the absence of an ability of Civil lawyers to challenge the legality of a criminal statute in trial court, also different than under the Common tradition, is not the most important difference. By far the most substantial difference in criminal procedure between the two traditions is that Common lawyers are able to examine and cross-examine witnesses in front of the jury, while judges in the Civil tradition ask the questions as submitted by counsel. Like in civil suits under the Common tradition (because Common lawyers run the trial), the development of meaning is driven by multiple narratives. The existence of this freedom for the practicing lawyer in Common Law legal discourse is one of great concern semiotically because meaning may be manipulated in what might be considered gross fashion.

7  Common Law Lawyers Should Mind Their Trial Practices...

127

7.4 When and Why a Semiotic Imbalance Exists, and When It Should Be Corrected When discussing the impact of differing ideologies on judicial authority between the traditions, it was noted that the phenotext of the practicing lawyer’s legal discourse differs in size between the two traditions. Common lawyers can argue meanings found in past cases and legislative history, and bring claims in trial court of the unconstitutionality or illegality of laws, while Civil lawyers argue for the clear, coherent, and consistent administration of the law to the facts, in order to uphold the certainty of the law. Like the difference in the award of extra-compensatory damages or the use against a defendant of his choice to testify, this difference in legal tradition should not be one of concern to legal semiotics. All three of these differences are not semiotic imbalances. I use the term “semiotic imbalance” to refer to the existence of an unwanted effect upon the development of meaning caused by any practice or procedure. An unwanted effect in legal semiotics is one that damages the development of meaning, thereby carrying a substantial risk of preventing the law from being administered – that is, preventing it from realizing its goal of determining whether the defendant did or did not do something illegal. For both the Common Law and Civil Law, inaccurate application of the law is of grave concern because it leads to uncertainty (the antithesis of the goal of both traditions). The potential for a semiotic imbalance in discourse exists when the discourse is susceptible to misuse, i.e. susceptible to the manipulation of meaning by an individual or a group of individuals. In exploring the differences in the understanding and practice of law between the Common Law and Civil Law traditions, this paper has identified the potential for misuse of the Common Law jury trial by a practicing lawyer. In this instance, the Civil Law does not need to be concerned with a semiotic imbalance, as it avoids it by resting the procedural power of the trial in the hands of the judge by charging him with examining witnesses solely with counsel’s submitted questions. As explained above, the Civil Law trial removes the effect of the “story of the trial” upon meaning in legal discourse. The Common Law, on the other hand, cannot escape, either in civil or criminal trials, the potential for a lawyer to manipulate the meanings of the facts through the use of multiple Greimassian narratives. In the hands of a talented trial lawyer, the “story of the trial” may become an epic, involving a multitude of subplots and characters whose interplay allow for the obscurity of the evidence presented, and the false acquittal or conviction of the defendant. One might argue that when the practice leads to the accurate result, i.e. that the defendant is acquitted when he is innocent or is convicted when he has violated the law, the practice benefits legal discourse. However, even an accurate judgment obtained by the obfuscation of meaning is concerning to the Common Law because a semiotic imbalance should not be necessary to reach the truth under the law. If such an imbalance was necessary, then the law would be uncertain, and legal discourse would be a virtually meaningless endeavor. An advocate of Common Law trial practice may also argue that there are sufficient rules in place to prevent such a farce from occurring. However, the rules of

128

E.J. Cyran

evidence and the judge’s role as referee cannot come close to substituting for the effectiveness of the Civil Law approach, which eliminates the risk almost entirely. Moreover, the “story of the trial” itself is not banned. In fact, it is taught in advocacy classes in American law schools. Without a doubt, this practice stands as the ­greatest and most substantial difference between the Common Law and Civil Law traditions, and the one most in need of attention by scholars and practitioners alike.

7.5 Conclusion While there are many notable differences in the understanding and practice of law between the Common Law and Civil Law traditions, including the extent of judicial authority, no difference has a greater effect on the semiotics of the law than that of the practice of trial law. Whether the semiotic imbalance present in the Common Law discourse of the trial may be corrected is a difficult question to answer, and is beyond the bounds of this text. However, the identification of the practice and the definition of a “semiotic imbalance” are of great importance to legal semiotics. Additionally, the semiotic effects of such a practice are likely to have substantial importance to Common lawyers who want to avoid unwanted effects upon their clients. In their book, A Civil Law Tradition, Merryman and Perez-Perdomo note the observation of a comparative lawyer when posed the question which legal tradition is more just, the Common Law or the Civil Law. They stated that “… if he were innocent, he would prefer to be tried by a Civil Law court, but that if he were guilty, he would prefer to be tried by a Common Law court” (Merryman and Perez-Perdomo 2007, p. 133). It is clearer now to this reader, and hopefully one day to those ­wielding the power to correct this imbalance, why the answer of this comparative lawyer has so much meaning – a meaning unveiled through a semiotic approach of the two major legal traditions.

References Broekman, Jan M. 1999. A philosophy of European Union law. Paris/Leuven: Peeters. Broekman, Jan M. 2010. Peirce and legal semiotics. In: Semiotics of law. http://semioticsoflaw. com/site/secondschool.php. Accessed January 5, 2010. Everaert-Desmedt, Nicole. 2006. Peirce’s semiotics. http://www.signosemio.com/peirce/a_ semiotique.asp. Accessed January 5, 2010. Jackson, Bernard. 2010. An outline of Greimasian semiotics. http://semioticsoflaw.com/site/ firstschool.php?PHPSESSID=35027bcd3c12a5b9026d3195e16603cb. Accessed January 5, 2010. Merryman, J.H., and R. Perez-Perdomo. 2007. The civil law tradition. Stanford: Stanford University Press. Unattributed. 2010. Four discourses. Wikipedia. http://en.wikipedia.org/wiki/Four_discourses. Accessed January 5, 2010. Wirth, Michelle Louise. 2009. Who’s your daddy? Or: Using semiotic tools to deconstruct legal determinations of who holds parenthood obligations and privileges. International Journal for the Semiotics of Law 22: 83.

Chapter 8

Semiotics in Legal Theory Design Jeffrey A. Ellsworth

8.1 Introduction The search for understanding the essence of law developed considerably over time. Earlier theorists endeavored to define law as commands, or statutes, or judicial decisions. Their attempts failed to satisfactorily answer the question. Hart, recognizing this shortcoming, considered that the traditional type of definition was impractical in the case of law. It is possible now to see why this speculation has usually been conceived as a search for the definition of law, and also why at least the familiar forms of definition have done so little to resolve the persistent difficulties and doubts. Definition, as the word suggests, is primarily a matter of drawing lines or distinguishing between one kind of thing and another, which language marks off by a separate word. The need for such a drawing of lines is often felt by those who are perfectly at home with the day-to-day use of the word in question, but cannot state or explain the distinctions which, they sense, divide one kind of thing from another. (Hart 1997, pp. 13–4)

Hart concludes that defining law is impossible and unhelpful; therefore he attempts to describe law conceptually. Whereas, a definition of law functions as an exoskeleton cordoning off the outer limits of what can be considered law, a conceptual description creates an endoskeleton laying out only the requisite core structure. [Hart’s] purpose is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be tested; it is to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena. (Hart 1997, p. 17)

Hart thus builds his theory of law by contemplating the bare essentials necessary for constituting a legal system. Dworkin takes Hart’s advancement from a single

J.A. Ellsworth (*) JD, LLM, Ass. Public Defender, St. Lawrence Cty NY, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_8, © Springer Science+Business Media B.V. 2011

129

130

J.A. Ellsworth

definition to a single conceptual description and expands upon it. He maintains that there is a very basic and abstract concept of law, which communities agree on and this allows for intellectual debate to take place concerning law. Without this shared abstract concept of law people would merely be talking past one another when ­arguing about the idea of law. However, beyond this shared concept of law, ­individuals develop plethoric conceptions of law, which are more concrete and extensive understandings concerning the unitary concept of law. The contrast between concept and conception is here a contrast between levels of abstraction at which the interpretation of the practice can be studied. At the first level agreement collects around discrete ideas that are un-controversially employed in all interpretations; at the second the controversy latent in this abstraction is identified and taken up. (Dworkin 1986, p. 71)

Dworkin’s progression from the idea of a singular conceptual description of law to the idea of the concept/conceptions split places in perspective: how can there ­possibly be so many competing understandings of such a basic human institution as law? I intend to start off with an exploration of semiotics, which provides a further advance in this theoretical context. Semiotics is the study of how meaning evolves and its relation to signs such as the words representing concepts and conceptions. Next, there will be a section consisting of a semiotic analysis of law. This will begin with a general discussion of law and semiotics, which will be followed by a more detailed potential conception of law that is cohesive with a semiotic understanding.

8.2 Of Semiotics There is no objective reality. Human beings can only directly experience reality through their senses, which are naturally flawed and limited. Therefore, we each independently experience only a subjective reality shaped by our senses. This subjective reality perceives the objects of reality in terms strictly of sense experience: images, noises, smells, textures, and tastes. However, human beings do not live in isolation; they interact with other people and are social creatures. Through the use of communication we achieve a ‘collective subjective’ reality or a reality we call ‘objective’. MacCormick terms this dichotomy as perceptual consciousness and narrative awareness (MacCormick 1996–1997, pp. 1051–2). To think about the world, certainly to think of it beyond one’s perceptual field, is to have some kind of picture or narrative account of it. This frames how I think it is, has been, has come to pass, and will probably go on. The meaning of such thoughts is clear enough, for they either match the world or they do not, and if they do, that is how it really is. (MacCormick 1996–1997, p. 1052)

Kevelson, interpreting Peirce, provides further explanation: As long as one speaks of subjective perception of the external world, this perception is held to be complete. But when one extends perception, that is, the idea of perception, to be of an objective character, then objective perception is incomplete and requires confirmation of its presumed factiveness by an Other. This is the duality that . . . is the nature of all sensible

8  Semiotics in Legal Theory Design

131

perception . . . the problem is that the very mode of sensible perception is both a unity and a duality; it is the duality that dominates. The unity of subjective perception may be “whole” and the duality of objective perception may be “partial,” but it is the partiality, like a point of view, that permits the “observable” conceivable unity to be inquired into, to become defined as an “idea,” and hence to be represented and be recalled at will, that is, freely. (Kevelson 1999a, p. 88)

Regarding this point, I think it interesting to comment on, at least in my ­opinion, a related idea in McCormick. When we consider the ‘ought’ we can have a ­relatively complete understanding; for instance, a legal code. However, in reflection upon the ‘is’ we usually have much more limited knowledge; often relying on other’s input and still having an incomplete representation (MacCormick 1996–1997, pp. 1052–3). Each of us has reality vindicated by the people around us who share that reality. If we all see a dog sitting next to that tree, then we can feel comfortable saying there is a dog sitting next to that tree. However, if I am the only one in the group that sees a dog sitting there and everybody else observes empty space, then I may start to question the validity of my subjective reality based on the collective subjective reality that approaches but is not true objective reality. Peirce refers to this phenomena as Common Sense, not the common sense as in knowing enough to get out of the rain, but instead that you and I are both standing outside in the rain and can both have sensorial experience of the rain thereby confirming for one another that the rain we each feel is real and not just our own mistaken subjective reality (Kevelson 1999a, p. 90).

8.3 Community The collective subjective is why community is invaluable to human experience, allowing our reality to be more assured. Reality is what humans in a group can, through the acts of communal fact gathering, mutual confirmation and collaborative reasoning, establish it as being. Peirce concludes: The real then, is that which, sooner or later, information and reasoning would finally result in, and which is therefore independent of the vagaries of ‘me’ and ‘you’. Thus, the very origin of the conception of reality shows that this conception essentially involves the notion of a COMMUNITY, without definite limits, and capable of a definite increase of knowledge. (Peirce 1931, p. 311)

Therefore, human reality is intimately tied in with community. Furthermore, communication establishes this reality. People are capable of sharing their sense experience and thereby validate each other’s subjective reality through the use of language, and other signs. Community is essential because it demonstrates semiotic relevance through its unity of interpretation and experience. Who speaks about Words, speaks about ‘Together’: the word ‘community’ points on the one hand to semiotics because of its social practice to engender consistency in interpretation of signs and meanings, and on the other to logic because of the structure of its experiences. (Broekman 2009a, b)

132

J.A. Ellsworth

‘Community’ implies webs of mutual understanding because shared experience allows members of that community to assign the same meaning to signs/symbols/ referents. This shared understanding holds the community together and makes reality comprehensible.

8.4 Firstness, Secondness, Thirdness The shared signs/symbols/referents on which the community-members count evolve through the Peircean cycle of Firstness/Secondness/Thirdness, as interpreted by Kevelson. Firstness is what we originally experience perhaps through our senses, what our world would consist of if we only had a subjective reality, pure sense ­experience; or in our minds when we first perceive an idea or concept. When we hear a spoken word in that situation of firstness, we would not realize it was a word but would just hear the sounds as noises without meaning or purpose. When we see a stop sign it is the colors and the imagery as its basic visual impression that we receive through our eyes but that is all. Or an idea is first comprehended such as honor, justice, or law. Secondness is when we take that unadulterated sensory ­experience/idea and then attempt to define it, structure it, limit it so as to better or more completely understand it beyond our actual experience of it. When we take an image of a square and measure all the sides and realize that they are all the same length, and create a list of elements that together are equivalent to the phenomena/ idea that we first perceived. Thirdness comes after the list of elements has been completed and the object has been defined, the object is then reduced to a sign. So a geometric shape with such and such elements becomes reduced to the word ‘square’. Or the idea that you are required to bring your motor vehicle to a complete halt at a specific spot is reduced to the image of a ‘stop sign’. Or certain actions such as defending others or providing charity become the idea ‘honor’. But however tagged and named, Firstness corresponds to the “diagrammist sign of icon,” which represents its object in singular fashion. Secondness is the index which as a this/not that deixis, focuses attention on the object inquired of, to the exclusion of all others. Thirdness, or the symbol, presents a name and permits its object to signify in a general way, as a complex or customary association of related ideas as a habit of thought (Kevelson 1999a, p. 20). One may know Firstness as a sign, a totality perceived in spatial relations, ­imagistically, iconically. But when one makes sense of that totality one has passed into the phase of Secondness. And when one wants to be able to repeat this experience and recall it at will from memory, from that which is not there but which may be represented, we are in Thirdness (Kevelson 1999a, p. 38). Here I begin by suggesting that the initial relations between inquiry, inquirer, and inquiredinto begins with the presentation or perception of a kind of resemblance. But the sensible is not the dynamic force that impels the creating of a complex idea. Rather, the productive process begins with a transposition of resemblance into an iconic representation and then to symbolic representation. According to Peirce, the second step in the clarification of an idea

8  Semiotics in Legal Theory Design

133

is to define it, to set a frame around it that indicates it is “this” and not “that”. When these two steps are taken, a third stage requires that a relational form crystallize familiar recognition and definitive boundaries such that this now-specified area of thought becomes part of one’s habitual store of intellectual objects or phenomena. Thus a habit of thought repeatedly infers a general meaning from the topographical and circumscribed ideational “space” of the idea in question. This idea, so clarified, is now a “garden” for further cultivation of its possible meanings. (Kevelson 1999a, pp. 69–70)

Thirdness is vital; it is what allows humans to reduce the physical world around them and the conceptual world we create in our minds into manageable, workable signs which are efficiently communicable to other people. Semiotics is concerned with everything that can be taken as a sign. It involves the study not only of what we refer to as ‘signs’ in everyday speech, but of anything which ‘stands for something else’. Signs take the form of words, images, sounds, gestures and objects. Signs can be something active and positive, or something negative, so that an absence of an action may also be seen as a sign. Semiotics is also the study of how meanings are made and how reality is represented . . . Signs are by no means fixated forever; they are temporary meanings in contextual situations, fluid and multi-interpretable – especially in law! Legal practitioners should acknowledge how their job establishes webs of (legal) meaning through the creation and maintenance of references (Kevelson 1999a, p. 71).

With the use of these signs we can then perform the analysis of Secondness on other Firstnesses, as well as returning a previous Thirdness into a new Firstness as a cycle to be repeated as our ideas evolve and develop over time and experience.

8.5 Idea-as-Continuum The process from Firstness to Secondness to Thirdness is not a singular event for every object. Instead it is a reoccurring event that results in a developing continuum as the object evolves over time. Kevelson states that “[w]henever “some surprising fact” … alerts us and calls our attention to it as a “sign” that we have not predicted accurately, that something not expected has indeed occurred, we then reopen some general idea-system – one that has attained to the “status” of symbol – and begin a new inquiry” (Kevelson 1999a, p. 25). While an individual may think he knows what ‘honor’ is, that understanding only lasts until some experience causes him to re-evaluate that understanding, which results in a new cycle of Firstness, Secondness, Thirdness. Therefore, “[e]very degenerate Third, that is, every interpretation and adaptation … is a part of the idea-as-continuum” (Kevelson 1999a, p. 21). It should be emphasized that stages of continuum are not mere linkages into an aggregate of discrete systemic states. Rather, the development of an idea is a continuous transformation so that the preceding as well as succeeding stages of a process undergo permutation. An immediate Interpretant, or referent sign, does not remain a constant but becomes part of the cumulative meaning that evolves continuously. (Kevelson 1999a, pp. 72–3)

The idea-as-continuum represents not only a single evolving meaning but also includes the permutations of meaning held at any particular temporal point; this is

134

J.A. Ellsworth

how signs end up with a multiplicity of meanings, all within the continuum. Part of what causes the meaning of ideas to shift along the continuum is the interaction of certain ideas with other ideas. Semiotics, to recall, is concerned with ideas interpreting ideas. It is not only about people interpreting ideas to the extent that every human being is a composite, complex relation of signs and sign-functions. The ideas of people are brought forward to interpret other ideas. The pragmatic method, which is the method of semiotics, is primarily about the interpretation of intellectual concepts by other intellectual concepts. (Kevelson 1999a, p. 25)

When there are a variety of signs interacting with one another, interpreting one another, developing one another, the result is a discourse.

8.5.1 Discourse/Master Discourse/Speech Acts Discourse is a term we are all familiar with but here, specifically, it means all ­communication, both verbal and nonverbal, concerning an issue and the related interaction of signs. Discourses can encompass all that is potentially possible, no matter how improbable, farfetched or impractical. Discourse is how one debates and decides, at least momentarily, on the meaning of signs and aligns an understanding of our shared experience. The evolving authoritative thread within the discourse is known as the master discourse. Lacan’s thoughts became famous for these expressions: master signifiers most intimately bind a subject’s identity and master discourses function as important ensembles of speech acts that guide, restrain and lead linguistic communication. The power of these masters is in the importance those signifiers give to a subject’s identification with them, so that ­orderings of all other signifiers appear in their perspective and meaning context . . . There is an urgent need to elevate new ‘master signifiers’ to enable the subject to reorder a sense of self and relations to others. That is an ongoing process of great importance for law and legal practice. To know the influences of the master signifiers in a lawyer’s practice and speech and to be aware of the all-embracing influence of the master discourse within which judges consider cases means a heightened semantic awareness when managing legal ­discourse . . . The masters of signification prescribe, coerce, narrow down and limit freedom of articulation of the subjects’ discourse in society, but they also debar access to what is deeply engraved in them. The power of reordering meanings in a master discourse is legally, socially and politically one of the most important sources for an individual subject in ­society. It is, however, a feature of human finiteness that there is on the one hand no subject without language but that there is on the other hand – to rephrase the terminology of ­structuralism – no constitutively fixated secure and central place for the subject in language. When I perform a speech act, I put myself at risk because of uncertainty about the position of the o/Other, which I apparently need but cannot bridle. It is Lacan’s insight that a master discourse diminishes that existential risk through reordering the subject’s catalogue of meaning. (Broekman 2009a, b)

The institutional nature of law causes the master discourse within the legal ­discourse to be an institutional fact and not merely agreement or simple coordination.

8  Semiotics in Legal Theory Design

135

MacCormick explains that in an institutional normative order the defining feature is having the “ultimate authority to determine” (MacCormick 1996–1997, p. 1059). [T]he characteristic of an institutional normative order is that competent judgment in it is conclusive within its own order, except to the extent that there is coordinated ­cross-recognition of different orders, as obtained between Pope and Emperor in the Middle Ages, or between European Communities and member-state legal orders today. (MacCormick 1996–1997, p. 1059)

Therefore, the master discourse is the controlling discourse within the legal d­ iscourse. The decisions of the courts, the prosecutor’s prosecutorial discretion, and the statutes the legislature enacts; these are all components of the master discourse. However, that list is not exhaustive, nor could any list actually be complete. The master discourse consists of more than just words, but also all authoritative communicative behaviors; in short, every sign of the legal institution which functions to alter or direct behavior. The master discourse, to be clear, informs individuals how to behave. The master discourse is partially composed of speech acts, which are communications consisting of a dual nature. First, they function to convey information just as all the other communications in discourse. However, speech acts also have a second and more significant result. As stated above, a speech act changes meanings and alters behavior and understandings. In the next section, I shall apply this philosophical outlook specifically to law.

8.5.2 A Semiotics of Law We should now turn our attention to the task of applying a semiotic ontology to the idea of law. “[W]henever men live together, they stand in an intellectual communion which reveals as well as establishes and develops itself by the use of speech. In this natural whole is the seat of the generation of law” (Von Savigny 2008, p. 1097).

8.5.3 On the Nature of Law There is no innate ‘nature’ of law, only the socially constructed essence of law, which evolves and changes as do all human constructs. Individuals are born into a community and inherit that community’s characteristics, including laws and legal institutions. Is it possible to speak of “the” nature of law, or of law’s “essential” features? Law is a ­heterogeneous phenomenon with vastly different manifestations in different societies at different times. Can these varying practices be said to share certain essential features in virtue of which they are “legal systems”? Is it not more plausible to suppose that these ­different instances are connected through partly overlapping features, and that they display nothing more than a family resemblance to our own practice, so that the search for “essential” features is a will-o’-the-wisp? (Lamond 2001, p. 37)

136

J.A. Ellsworth

So, a community’s ideas of law are not isolated from the rest of human knowledge, ideas and social constructs. The project of general jurisprudence is certainly worthwhile. However, in searching for commonalities among all legal systems, we may overlook features of law in certain political communities that contribute more to the shape of what law is for those communities than the features they share in common with law across the board. (Hershovitz 2003, p. 209)

Even if a universal idea of law could be created, and then be communicated to and accepted by all peoples it would be short lived. As discussed above, it would soon be ‘corrupted’ by the influence of other, and oftentimes differing, ideas such as democracy, monarchy, oligarchy. However, these sentiments are, perhaps, incorrect. For while “[t]here is no single, uniquely correct reconstruction of the raw material of law into a single canonical form of “legal system”” (MacCormick 1996–1997, p. 1062), there is a raw material of law which can be studied. However, this raw material is not the innate ‘nature’ of law; instead it represents a shifting and evolving human construct, which exists independent of culture, politics, and time period. The raw material of law consists of a collection of signs and that is where a semiotic of law should be utilized. If we are to obtain a clearer, and hopefully more productive, understanding of law we must employ a semiotic framework within which to constantly reanalyze both the perpetually evolving raw material of law, and the legal system within which it temporally manifests. Furthermore, as stated above, the legal discourse is composed of speech acts and behaviors, which are all signs and can best be interpreted by semiotics. Requisite to the investigation of any complex system is investigation of the language signs by which it is understandable between human beings. That is to say, if we want to make part of conscious knowledge the process of sign-evolution, from more simple to more complex, we need not only the idea of such an evolving system but also the idea of the idea of this system. Or, in brief, we need to bring to the investigation of complex signs of any system a meta-ideational perspective. Such a perspective is broadly called semiotics. Pragmatism is the method of investigation. Pragmatism produces new meanings. (Kevelson 1999a, p. 73)

Law and legal systems are both complex systems of signs and to more fully understand them and how they evolve and change, one needs to employ a theory of sign systems, which can be used to analyze them as such systems. Kevelson provides a brief summation of what a semiotic ontology of law would entail: [T]here is general agreement from the perspective of semiotics of law that (1) the law represents a prototype of social institutions that relates normative values to actual, lived human affairs, since the law is a mediating system of signs; (2) legal systems are open systems which grow and evolve dynamically by means of interpretations, rhetorical strategies, and dialogic construction of legal discourse; and (3) law in theory and practice is not a mirror of aprioristic, eternal values, but is an ongoing experiment of human beings creating provisional balance between expanding freedoms and assent to self-controls. (Kevelson 1999b, p. 793)

This provides a starting point for considering the characteristics of legal semiotics, now for a more in-depth contemplation.

8  Semiotics in Legal Theory Design

137

8.5.4 Legal Language Semiotics reveals the multiplicity of meanings inherent in the legal system and thus in society at large. This is in contradiction to Llewellyn’s theory of legal realism, which requires that words have definite and specific meanings: But these patterns of action are conceivable only on the basis of a philosophical assumption that is concealed in Llewellyn’s text: the assumption that language is a matter of one-to-one semantic relationships. A word must maintain a correspondence to a reality beyond ­language so that our words will mirror reality, the action of life. Law’s speech, the word of judges in the first place, only makes sense if reality is empirically present and not the sole result of human expressivity and articulation. (Broekman 2009a, p. 17)

However, this type of semantic realism would prevent Hart’s theory of the open texture of law and is completely unworkable in a referential system. Because law is a human construct, the meanings within it can change and develop just like any other aspect of society. Lawyers and judges need to be aware of this as the managers/makers of meaning within a legal system. For example, the very foundations upon which legal systems rest shift over time. [C]oncepts have a history, and the conditions of their persistence or identity through time are, at best, very vague. Hence, it may be that the impossibility of legitimate authority is the impossibility of there being instances of our current concept of authority. Possibly, under some ancestors of our concept, legitimate authority was possible. The reverse is also ­possible, and even more likely. One source of pressure towards concept change may have been a growing realization that the concept then prevailing has no instances (e.g., if ever the concept of authority was such that it had to derive from divine authority, then recognition of the impossibility of divine authority may have encouraged change in the concept, a change that made it possible for it to have instances, at least in the eyes of the people at that time). (Raz 2005, p. 1008)

Additionally, even when we attempt to preserve the artificial language of law with terms of art, they still suffer from a drift in meaning over time as they are constantly being redefined as the decision of cases constricts and expands our understanding of them. Within the legal system, terms of art, prior case names, etc., are all signs referencing a deeper body of meaning and although the signs can remain relatively static the signification of these signs is almost continuously in a state of flux.

8.5.5 Signs/References Whenever a reference is made a sign is used, for instance when a judicial opinion makes reference to a prior judicial opinion as authority it does so by way of a case name which signifies the propositional content of that prior judicial opinion. Legal argument overwhelmingly consists of references. Arguments cite statutes, regulations and cases; and these can have even further citations. A prior judicial opinion

138

J.A. Ellsworth

can cite another prior judicial opinion, which in turn cites a regulation that cites a statute. Often times when a judicial opinion is cited for support of a position the actual language of the opinion is absent, replaced by a Cf. instructing the reader to peruse the other opinion and compare the reasoning contained within. All of these arguments based on signs and their referents take place within the overarching legal discourse.

8.5.6 Legal Discourse Everything concerning law is part of an encompassing, yet difficult to define, legal discourse. This discourse represents a complex web of mutual meaning, though usually not mutual agreement, through which debate can occur. Of key importance is the master discourse of law. The master discourse actually determines the question – “What is the law?” The master discourse of law creates a shared legal reality within the community, which supersedes the community’s collective subjective reality; in this way law is a master discourse within the general communal discourse. Law as the master discourse evolves through the application of law to legal ­subjects, for instance, by judges performing speech acts in their institutional capacities. The propositional content of that master discourse is the law, which guides legal subjects’ behavior. The propositional content for the master discourse can never be fully known as a static datum because it is a process, and as such endlessly fluxes. The most that can be realistically achieved is a probability as to what the propositional content is or will be at any specific moment in time, much like determining the location of an ­electron in an atom. The master discourse evolves through either refinement (the ­master discourse becomes more specific) or alteration (the master discourse reverses or changes a portion of itself). The application of law to legal subjects results in the indefiniteness of law becoming momentarily concrete in that and for that limited ­specific instant. Judges perform the application of law to legal subjects. They incorporate a human element into the legal system, limiting if not preventing mechanical justice. However, when judges perform such duties they are necessarily acting in their institutional capacity (an authority, which society has imbued them with to speak for the law) that converts their mere communication into speech acts.

8.5.7 Attorneys and Judges The attorney’s function in the legal discourse is to communicate to the court the propositional content of their client’s position and attempt to persuade the judge that the master discourse should be modified, maintained or revised. [L]awyers are uniquely privileged in the ‘competence’ (power to say) accorded them to negotiate the propositional content of the law applicable to their clients. They can negotiate that law amongst themselves, or with the judge, in that they can argue for one interpretation of the

8  Semiotics in Legal Theory Design

139

law or another. (That is not to say that they have competence to argue for any interpretation, even one completely ‘outside the frame’. But such constraints as may operate on them derive not from the language of the law but from conventions relating to proper ‘professional’ behavior.) Indeed, the lawyer is privileged even to negotiate the effect of a clear criminal law on his client . . . the process of ‘plea bargaining.’ (Jackson 1985, p. 295)

Jackson recognizes that attorneys are limited in their behavior not by rules but by what society, and more specifically self-policing professional associations protecting their status as a profession within society, will accept as legitimate. He concludes that it is only conventions relating to proper professional behavior that bind an attorney. This is acceptable because, although learned in the law, attorneys do not control the master discourse but merely are skilled in attempting to influence it. However, judges when acting in their institutional capacity, as stated above, control and are controlled by the master discourse called ‘law’. The function of a judge is to weigh the varying strengths of the positions being taken within the legal discourse and reconcile them and the master discourse as need be. The judge’s speech acts thus fulfill two tasks: (1) the articulation of his/her judgment in the case and on the other hand, (2) the articulation of what the law is in accordance to the (sometimes vague) ideas of what the master discourse requires. The two must always go together, and there cannot be a conflict between them when the speech act is performed. Therefore, a judge sitting in court has the immense task not to destroy the web of mutual understanding of the community and what in that ­mutuality is understood as ‘law’. As the New York Court of Appeals stated: [C]onstruing the statute as limited to certain constitutionally proscribable speech would likely result in transforming an otherwise overbroad statute into an impermissibly vague one; the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different. Under those circumstances, persons of ­ordinary intelligence reading [the statute] could not know what it actually meant. (People v. Dietze and 75 N.Y.2d 47 (Court of Appeals 1989), p. 53)

The web of mutual understanding must be preserved by the court in order to safeguard the existence of the group; in order to accomplish this goal the court must clearly articulate through their communications to the group the meanings of their institutional speech acts, among which legal speech acts are important institutional components. This attitude, semiotically complex, is a reason for constantly ­underlining that law is a segment of society.

8.5.8 Restrictions on Resolutions Although it has just been shown that attorneys have immense freedom in arguing positions within the legal discourse and that judges actually closely relate to the master discourse, there are still restrictions. How is the court limited in resolving conflicts within the legal discourse? According to Fuller: Primitive society, like vehicular traffic, is run by a system of interlocking roles. When one man steps out of his role, or a situation arises in which a familiar role forfeits some or all of

140

J.A. Ellsworth

its meaning, then adjustments will have to be made. There can be no formula to guide these adjustments beyond that of “reasonableness” – exercised in the light of the demands of the system as a whole. (Fuller 2008, p. 1115)

Although Fuller was speaking about primitive societies, his statement is applicable to modern societies as well. The court is bound by reasonableness, meaning the continuance of Fuller’s stable interactional expectancies. Therefore, the real question of legal validity must be resolved by legitimacy: i.e. whether society views the mechanism that determines legality/illegality to be legitimate. Realizing that the validity of a legal system rests upon society’s acceptance of it as legitimate, clarifies for Teubner (quoting Eligio Resta, 1984. L’ambiguo diritto, p. 10) how “…each act of illegitimacy carries within it the possibility of its own legitimacy” (Teubner 1993, p. 11). Teubner and Resta mean, that even if an act is illegitimate at the time of the action if the society can be convinced then the act can become legitimate. Consider the variety of legal theories as an example; from a semiotic perspective all legal theories contain potential validity based on societal legitimacy. This allows for the explanation of a phenomenon recognized by Karl Lewellyn: I have never felt satisfied with . . . mere listing and description of our apparently inconsistent jurisprudential trends in the latter 19th century. It is not enough to know what they were, and whence they came. We must see why men adopted them, and above all, how they all fitted into the single picture. (Llewellyn 1933, 205 note.)

Which really asks the question how can judges sometimes espouse one legal theory and at other times apply another, and yet remain credible? To answer that question we must consider the specific legal discourse, which was taking place. Legal semiotics considers all legal theories as valid during the temporal periods that they are part of the master discourse, for none of the legal discourse of a specific society is universal or eternal. However, there are still some restrictions on the legal theory used by the court, for instance if the court’s legal theory involved the reading of tea leaves or astrological movements, our society would most likely not accept that. But if the court chooses to stress a more Hartian or Dworkinian perspective, society will most likely accept them as being part of the legal discourse. Or, take for example, the Nuremberg Trials that in legal circles have caused such consternation because they retroactively applied criminal laws into a foreign sovereign nation. However, society was not only willing to accept this because of the horror of the Holocaust, but was demanding that justice be done. Whether it would normally be legally permissible was irrelevant. Therefore, the restrictions on a court exist only because society expects the court to be so bound and the court binds itself to protect its societal legitimacy. The United States Supreme Court, in 1882, acknowledged the importance of having their opinions viewed as persuasive and credible, stating that their very authority rests upon such public confidence: While by the Constitution, the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive and removable at his pleasure, with no patronage and no control of purse or sword, their power and influence rests solely upon the

8  Semiotics in Legal Theory Design

141

public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives. (United States v. Lee & 106 U.S. 196, 233 1882)

The court has here recognized that in order for them to retain their status as the arbiters of the law then they must retain the august aura surrounding their institution. Mondak, 108 years later, reached much the same conclusion concerning the significance of the public viewing the court as legitimate: Public reaction to a Supreme Court decision hinges, in part, on the level of diffuse support enjoyed by the Court prior to announcement of the ruling . . . Examined from the context of a cognitive view of persuasion, the credibility of the Supreme Court as a message source should not be expected to have a simple positive effect on opinion. Instead, unique effects may result from the interaction of source credibility and other components of the process of persuasion . . . American political institutions function most capably when the public perceives their actions as legitimate. The importance of such support is not identical for all branches of government, however. Due to its lack of tangible means of enforcement, public approval of the Supreme Court is particularly vital . . . Further, the origins of the Court’s approval are unclear, though the strength of the Constitution as a symbol . . . may foster a mythical view of the Court . . . Since approval of the Supreme Court shifts in response to changes in policy . . . symbol and myth may provide a weak foundation for the Court’s institutional legitimacy. (Mondak 1990, pp. 363–4)

Finally, and perhaps most explicitly, this principle was stated once again by the United States Supreme Court in 1990: The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon [the Supreme Court.] As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands. The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. The substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principle choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. (Planned Parenthood v. Casey 1992, pp. 865–6)

The Court appears to not only recognize that their authority flows from their apparent legitimacy but acknowledges that to maintain that legitimacy they cannot even allow the implication that social or political pressure has influenced its decision-making.

142

J.A. Ellsworth

The court makes an interesting statement concerning the legal significance to their decisions: “our contemporary understanding is such that a decision without principled justification would be no judicial act at all.” What does this mean? Does the court really mean to say that a judicial act must be accompanied by a communication of the principled justification underlying it? Here is apparently the double meaning of a judgmental speech act at stake. The court attempts to validate the first function of its speech act (the articulation of the judgment in the case) upon the second speech act function (the articulation of what the law is). However, although the two functions of the speech act always go together, as discussed above, the judgment need not be validated by legal reasoning, at least not directly. The most one can do for the other is to provide persuasion to society as to the legitimacy of the other. Similarly, Jackson, in discussing how a communication acquires legal significance (becomes a speech act), writes: “If one then asks: ‘what makes this particular discourse “legal”?’ the answer must lie quite simply in the semantic investment of the message (the force of the modalities which it claims to transmit) and the effectiveness which it possesses in communicating those claims” (Jackson 1985, p. 300). Jackson and the court are in complete disagreement because Jackson expresses the view that the judge’s decision would be able to perform either function independently of the other as long as it was seen as legitimate and legally binding by the society. Another question follows from this theory of judicial functioning: what happens when the court fails to adapt to a powerful conflicting position within the legal discourse? Llewellyn, recounting a portion of American history, stated: “It is true that widespread public revolt put on the bench a great body of State court judges to replace many whose feeling for justice had merged in peace with obsolete or ­otherwise unhappy doctrine” (Llewellyn 2008, p. 1023). Hart recognized this ­phenomenon in a rudimentary fashion as the pathology of the legal system: Evidence for the existence of a legal system must therefore be drawn from two different sectors of social life. The normal, unproblematic case where we can say confidently that a legal system exists, is just one where it is clear that the two sectors are congruent in their respective typical concerns with the law. Crudely put, the facts are, that the rules recognized as valid at the official level are generally obeyed. Sometimes, however, the official sector may be detached from the private sector, in the sense that there is no longer general obedience to the rules which are valid according to the criteria of validity in use in the courts. (Hart 1997, pp. 117–8)

When the courts fail to recognize a paradigm shift in the legal discourse then several options of consequences are possible: the court could succeed in resisting the change temporarily while losing respect and authority, the judges could be replaced by other officials who recognize what the judges failed to, civil unrest among the general populace, or potentially even revolution could result depending on the strength of the new positions taken within the legal discourse. This is not to say, however, that courts should simply give into political flip flops, angry mobs, or national temper tantrums. Rash mood swings are not the type of shift or divergence that courts need to be cognizant of. Rather, responding in such circumstances can potentially be very damaging to the court, especially in the common law nations where the courts are considered “bound” by judicial precedent.

8  Semiotics in Legal Theory Design

143

The United States Supreme Court, in discussing exactly the dangers of overruling precedent in response to “political pressure,” has stated that: So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question . . . The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete . . . Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible. (Planned Parenthood v. Casey, 505 U.S. 833, 865–6 1992, pp. 867–8)

Here, the court made a further revelation in realizing that for the court to lose legitimacy could result in a fundamental altering of society. Sometimes it’s best for the Wizard of Oz to remain behind the curtain.

8.5.9 The Purpose of Law Since law is a human creation and not an occurring phenomenon of nature it seems wise that the purpose behind law should be addressed. The maintenance and sustenance of the community is one of the main functions of law. The law-jobs are in their bare bones fundamental, they are eternal. Perhaps they can all be summed up in a single formulation: such arrangement and adjustment of people’s behavior that society (or the group) remains a society (or a group) and gets enough energy unleashed and coordinated to keep on with its job as a society (or a group). But if the matter is put in that inclusive way, it sounds like mere tautology – almost as if one were saying that to be a group you just must be a group. Whereas what is being said is that to stay a group, you must manage to deal with centrifugal tendencies, when they break out, and you must manage, preventively, to keep them from breaking out. And that you must effect organization, and that you must keep it effective. And that you must do all this by means which do not choke off, but elicit, your necessary flow of human energy. (Llewellyn 1994, p. 709)

The greater the number of positions, the greater the divergence between their views, and the greater the number of people involved in those various positions, then the stronger the centrifugal forces that attempt to rip society apart. The court’s purpose is to keep society together – reconciling the master discourse and the divergent positions within the legal discourse through various means. Llewellyn’s position here could, perhaps, use some further explanation in regards to his larger view within American Legal Realism. Llewellyn, was early in his career influenced by several schools of thought in Germany; these included: [T]he free law movement, the Freirechtbewegung, which proclaimed that law is not a matter for legal scholars offering doctrinal discourses on social reality but is instead for the

144

J.A. Ellsworth

people . . . Similarly, the German historical school, the Historische Schule, of that same period influenced legal realism in a U.S. philosophical manner . . . The historical school wanted to restrict or even abolish legal doctrine and form judicial decision making in jurisprudence in favor of the insight that all law is embedded in a national context, a Volksgeist (“the spirit of the people”), that provided a historical context that lawyers should use as a guide for their decision making. Because the written doctrinal law can never fully grasp the moral, historical, attitudinal, or philosophical reality of the people, the limits of law and jurisprudence become obvious: promulgation of legal rules must always be checked against the reality of the people’s life. (Broekman 2009a, p. 12)

These, plus the growing appeal of pragmatism in the United States resulted in Llewellyn putting great emphasis on the importance of maintaining the social and cultural cohesion of a society. The legal order of a society cannot be wholly depicted in texts. Although written documents fulfill a function in society, they cannot mirror all human relations in all of their aspects, and certainly not the full function of law in social life. A reliable representation of social life does not come from legal scholars and judges who focus on conflict situations and the need for authoritarian decision making in what Llewellyn . . . terms “trouble cases.” Through this lens we would obtain distorted images of law as a form of social action, distortions that are not easy to detect. The weakness of sociological jurisprudence is that sociological investigations can never provide a solid foundation for legal judgments . . . [Llewellyn’s] analysis builds to an emphasis on the role of judges, who must balance commands of authority with the demands of justice, must care for the clarity of legal language, and must prudently ensure that the rules and their applications are well understood and received, “even by mediocre men.” Perhaps it is best characterized as an emotional appeal to compassion, to interpretative skill rather than strict formality, and to a broad teleological conception of a legal rule, all of which characterize contemporary judges in the United States. But the deep gap between a system dedicated to resolving conflicts and a system dedicated to building solidarity remains. (Broekman 2009a, pp. 14–5)

Therefore, a judge has not only the function of applying the law to the case before him and deciding who wins and loses that case but also must do so in the public interest – meaning that the judge must take no action that would rip the fabric of society. However, this is rarely possible when the judge’s action does not result in some degree of damage to society even as the same actions work to perhaps heal a society in other ways. The bare-bones aspect of this law-job is plain enough: get enough of it done to leave the group a group [, meaning a society]. One or another member or faction can be cut down or cut off, and the group be still “the” group; bitterness can seethe; the line of adjustment may prove to be merely that what Big Fist wants, he gets. But if the group stays a group and neither explodes nor dribbles into disintegration, then this bare-bones survival-need is met. (Llewellyn 1994, p. 711)

Llewellyn addresses the fact that the court will often not be able to perfectly reconcile everything to everyone’s satisfaction. However, that result is not necessary, but it is important not to aggravate anyone to the point that the necessary flow of human energy, discussed by Llewellyn above, is choked off. Additionally, within the surviving group will be a sense of community fostered from shared experience and understanding. As has been acknowledged, a dispute will rarely if ever be settled such that all involved are completely satisfied.

8  Semiotics in Legal Theory Design

145

An absolutist might quarrel with the result . . . [b]ut there are few areas of the law in black and white. The greys are dominant and even among them the shades are innumerable. For the eternal problem of the law is one of making accommodations between conflicting interests. This is why most legal problems end as questions of degree. (Estin v. Estin 334 U.S. 541 1948, p. 545)

Therefore, judicial decisions are not merely a question of law but also an issue of accommodation attempting to reconcile the members of the community involved. The legal system must keep the community whole while at the same time maintaining the legitimacy of the court.

8.6 Legal Subjects and Lived Law This section explores the understanding of the legal subjects which constitute the community which both create law and is the purpose of law, and who determine the vital legitimacy of the law and legal system. Dworkin underlines how there are four conditions necessary for the existence of a community. First, the members of the community must hold special obligations to the other community members that they do not have toward non-members. Second, these obligations must be seen as individual and not collective, that each member holds them towards all other individual members and that they are not merely obligations owed to the community as a whole. Third, these obligations must be considered to arise from a general responsibility of welfare that members have towards all other members. Finally, these obligations must be held equally amongst all members and for all members of the community (Dworkin 1986, pp. 199–200). Beyond community, people can join together into a genuine political community. In order to form such a community, the members must acknowledge that there are common principles guiding their conduct and not solely arbitrary political compromise. For such a community, politics “is a theater of debate about which principles the community should adopt as a system, which view it should take of justice, fairness, and due process” (Dworkin 1986, p. 211). Such a community has the authority to claim moral legitimacy and its actions are not merely the exercise of brute force by the strong against the weak (Dworkin 1986, p. 214). Political community is the ‘group’ whose perpetuation Llewellyn ascribes as the purpose of law. Their theater of debate functions as the community’s legal discourse. Law as a normative institutional order operates within such a political community. A political community is composed of individuals who participate in the theater of debate. These individuals have their own internal discourses occurring which influence and shape their participation within the political community’s discourse. An empirical study of the legal consciousness of Americans found that individuals often have either two or three contradictory perspectives on the legal system in the same instance. Further, it held that the legal system contained “a series of structural dualisms or institutional contradictions that [permit] symbolic claims to universalism, public authority, and equality to coexist with particularism, private power, and

146

J.A. Ellsworth

inequality” (Ewick and Silbey 1999, p. 1025) which individuals recognize and must reconcile. The first perspective demonstrated by individuals perceived the legal ­system as the unbiased and fair deliverer of justice. The second viewpoint appreciated law and the legal system as a game to be played, as strategies to be tried, wins and losses to be had. The final perception of the legal system was as the insurmountable titan controlled by the strong and powerful that crushes the weak and poor (Ewick and Silbey 1999, pp. 1028, 1031, 1034). “In short, the law appears to people as both sacred and profane, God and gimmick, interested and disinterested, here and not here” (Ewick and Silbey 1999, p. 1035). These three cultural narratives concerning the law agitate within the individual community members, perpetuating an internal discourse. Internally maintaining contradictory cultural narratives allows individuals to reconcile regrettable instances that occur while still perpetuating a positive general outlook. Simply put, when the legal system is actually unfair because of unequal power, or is being gamed by strategically savvy players, having these multiple perspectives allows a person to chalk these occasions up to that while still holding on to the general belief that the legal system is fair, just and unbiased. This actually results in a sturdier, more socially legitimate legal system as a more robust and strenuous discourse can occur without souring individuals’ perspectives (Ewick and Silbey 1999, pp. 1037–9). Having lain out the elements of community, and the attributes of its members, which strengthen it, attention will now be provided to the lived law that guides the individuals combined in community. As mentioned above, but shortly to be further examined, a genuine political community’s members accept that their community is counseled by principles. The aggregate of the principles constitutes the community’s political morality and is revealed by the distorted reflection, as seen perhaps in a fun-house mirror, of the community’s formal law (statutes, regulations, judicial opinions). The image is anamorphic because a principle manifested extends beyond the boundaries of the rigid rule, stretched to its logical limits. It is this integrated system of principles, which guide most legal subject’s action as most individuals are unaware of specific formal laws and never consult a lawyer before doing the vast majority of life’s activities. This lived law is the environment in which the institution of the legal system attempts to apply the formal law.

8.7 Legal Systems and the Formal Law This leads us to a further understanding of the institutional incarnation of law, or formal law, starting with Hart’s theory of rules and then moving on to Luhmann and Teubner’s autopoietic system-theory as applied to the institution of law. Hart conceives law as a system of rules. Law as rules functions as binding commands that control a given situation or do not, are either part of the master discourse or are irrelevant to it; unlike principles which can weigh for or against an action or outcome without necessarily controlling it, being part of the relevant legal discourse

8  Semiotics in Legal Theory Design

147

without being part of the master discourse. Hart divides these legal rules into two groups: primary rules (of obligation, rules which tell people what they can and ­cannot do) and secondary rules (of recognition, rules of change, and rules of ­adjudication which govern the creation, modification and application, respectively, of the primary rules). The secondary rules are necessary to provide validation and stability to the primary rules. Whenever such a rule of recognition is accepted, both private persons and officials are provided with authoritative criteria for identifying primary rules of obligation. The criteria so provided may, as we have seen, take any one or more of a variety of forms: these include reference to an authoritative text; to legislative enactment; to customary practice; to general declarations of specified persons, or to past judicial decisions in particular cases. (Hart 1997, p. 100)

Hart explicitly acknowledges here that the rule of recognition, which determines when something actually becomes a primary rule, functions through an act of reference – the latter being an issue of predominantly semiotic nature. Implicitly, from the list Hart provides of the sources reference can be made to, law is self-referential. Via statutes, regulations, judicial opinions, or executive orders, law references itself. And those referents refer to rules of recognition, which are likewise part of the law. Therefore, circularity (or loops) begins to appear in law: X is a primary rule because of a rule of recognition whose criteria references to another part of the law which itself is law because of a rule of recognition whose criteria references to another part of the law … ad infinitum. This realization will be particularly relevant momentarily when we consider autopoietic systems theory in the framework of legal semiotics. An autopoietic system is one which, instead of functioning as a cog within a larger system, exists independently within a surrounding environment. Although the autopoietic system operates autonomously, the surrounding environment does exert pressure upon the autopoetic system. An autopoietic system perpetuates itself through its own means, in the instance of an autopoietic legal system that means is the law. Therefore, an autopoietic legal system is self-referential, perpetuating itself through referencing its own prior law in creating new law. First, however, before leaping to an autopoietic theory of a legal system, discussion must be had considering the idea of a legal system as developed in Hart’s theory. Hart’s multi-layered theory of legal rules, whereby its secondary rules confirm the primary rules, ignites the idea of a legal system. By providing an authoritative mark [the rule of recognition] introduces, although in embryonic form, the idea of a legal system: for the rules are now not just a discrete unconnected set but are, in a simple way, unified. Further, in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity. (Hart 1997, p. 95)

Although Hart’s theory provides rules of recognition as a litmus test for primary rules, rules of change in order to add, delete or modify primary rules, and rules of adjudication which govern the enforcing of primary rules, it fails to adequately explore the nature of the legal system in action and to explain why and when the secondary rules should be accepted. Since their very purpose is to provide validation

148

J.A. Ellsworth

for the primary rules, it seems logical to think that the secondary rules would also require such validation. As MacCormick states: In a law-state, the question of which exercises of executive power are valid is a question of law; the political power of the executive is restrained under the authority of law. Likewise, it is for the courts to say what resolutions of the legislature constitute validly enacted norms of law, and how they are to be interpreted. The authority of the legislature is not a matter of democratic or ideological or hereditary legitimacy extraneous to law, but is itself, conferred by law, or at least confirmed by it on terms that effectively limit the power of lawmaking. Self-referentiality here shades over into “autopoiesis.” (MacCormick 1996–1997, p. 1060)

What does this mean? For instance, in the United States the validity of any law can be traced back eventually to the Federal Constitution. However, what is the basis of validity for the Federal Constitution? The Preamble states: “We the People … do ordain and establish this Constitution for the United States of America.” Furthermore, Article VII of the Constitution elaborates: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Upon what authority does the Constitution rely in declaring when it would take force and effect? The Constitution takes that authority upon itself! The Constitution has that authority because it claims that authority and from that self-appointed authority all other laws rest their validity. As discussed above, the Constitution functions as a mythic symbol of legitimacy for the entire American legal system. Furthermore, the Constitution gains and maintains its own legitimacy because of the reverence with which it is regarded within the communal discourse. This Federal Constitution is the supreme Law of the Land for the United States and provides the answers to the questions raised by MacCormick above regarding the limits on the authority and power of the executive, judicial and legislative branches of government. All laws refer back to other laws and eventually will refer to the Constitution as the basis for their validity and the Constitution itself refers to itself, asserting its own authority. Therefore, the legal system is autopoietic; autonomous because the legal system self-perpetuates through self-reference, independent of the surrounding environment. The autopoietic nature of the institutional legal system accounts for the validation of the secondary rules. The internal loops created within law by self-reference allow law to validate itself. An autopoietic legal system exists autonomously, self-generating, self-referencing. It is a system that validates itself from within, which guides its actions on its own precedents, which analyzes and reflects upon itself and is self-critical. An autopoietic legal system bases its determinations on itself (such as statutes, regulations, and judicial decisions), when its authority and the validity of its actions are based upon itself (such as state and federal constitutions), when it is self-reflecting and correcting (such as appellate review and the overturning of precedent). The key to understanding law’s autonomy lies in this three-tiered relation of self-observation, self-constitution, and self-reproduction. As soon as legal communications on the fundamental distinction between legal and illegal begin to be differentiated from general social communication, they inevitably become self-referential, and are forced to consider themselves in terms of legal categories. This leads to ‘vicious’ and ‘virtuous’ circles, tautologies, contradictions, paradoxes, and infinite regress. The law is forced to describe its components using its own categories. It begins to establish norms for its own operations, structures, processes,

8  Semiotics in Legal Theory Design

149

boundaries, and environments – indeed, for its own identity. When it actually uses these self-descriptions, it has begun to constitute its own components. This leads to the emergence of self-referential circles in relation to legal acts, legal norms, legal process, and legal dogmatics, with the result that the law becomes increasingly ‘autonomous’. The law itself determines which presuppositions must be present before one can speak of a legally relevant event, a valid norm, and so forth. Law begins to reproduce itself in the strict sense of the word if its selfreferentially organized components are linked in such a way that norms and legal acts produce each other reciprocally and process and dogmatics establish some relationship between these. It is only when the components of the cyclically organized system interact in this way that the legal hypercycle becomes possible. (Teubner 1993, p. 33)

Therefore, law can be understood as a self-generating system composed of a series of self-generating systems that (self-)generate through self-reference, autonomous and self-reliant. Law starts to sounds like a juggernaut that once the conditions are right for its inception becomes unstoppable. However, that is not the case, because although the system tends to itself, the environment in which the system functions cannot be completely ignored and still has some influence. In other words: law is a normatively closed but cognitively open system. The autopoiesis of the legal system is normatively closed in that only the legal system can bestow legally ­normative quality on its elements and thereby constitute them as elements . . . The system therefore reproduces its elements by its elements transferring this quality of meaning from moment to moment and thereby providing new elements with normative validity. In this respect it is closed to the environment. (Luhmann 1988, p. 20)

Therefore, only the legal system has the authority to declare what is a legal rule that must be followed, which are valid statutes, regulations, and judicial precedents. The normative nature, the binding obligation, of these rules only exists because the institution of the legal system says it does, and furthermore, in making determinations concerning the normative nature of a prospective rule the legal system turns to prior rules which already have approved normativity and thereby passes that status forward from earlier decisions to validate later decisions. However, the story continues because the expression “cognitively open” means that an autopoietic system is never completely autonomous but is always influenced, indirectly and to a greater or lesser degree, by the environment in which it exists. For legal systems that environment includes the community’s culture, politics, economics, etc. In sum, however, that environment most importantly constitutes the political morality discussed above. The political morality constituted and evolved by the community members does affect the decisions of the legal system. Every operation in law, every juristic processing of information therefore uses normative and cognitive orientations simultaneously – simultaneously and necessarily linked but not having the same function. The norm quality serves the autopoiesis of the system, its selfcontinuation in difference to the environment. The cognitive quality serves the coordination of this process with the system’s environment. (Luhmann 1988, p. 20)

Coordination? The legal system needs to be cognitively open so that it can ­coordinate with its environment. Why would an autopoietic system, which seems almost uncontrollable, need to coordinate itself? The legal system is dependent for its legitimacy on the community, and more specifically on satisfying the community’s political morality. Only the legal system can bestow normativity and functioning in an autopoietic manner

150

J.A. Ellsworth

in doing so. However, the community grants the legal system that authority and can strip that power as well, reconstituting it in a new legal system if the old ones legitimacy fails. Therefore, although the legal system is self-referential concerning normativity, meaning that it cites to signs standing for rules, the legal system is cognitively open so that it can coordinate with its environment, meaning that in considering the signification of those signs the legal system weighs in the political morality of the community.

8.8 Conclusion Semiotics addresses the duality of reality; including that only through sense ­experience can a person access a subjective experience of reality. It is only by our connections through community that humanity can reach the collective subject experience that approaches objective reality. That connectedness is achieved through communication, of any type – linguistic, behavioral, visual, etcetera – which utilizes signs (symbols which possess a meaning shared by the sender and receiver of the communication). Humanity employs these signs to debate the validity of all the various aspects of the collective subjective reality – discourse. If a discourse is thought of as a rope, then within the rope there is a thread called the master discourse, which is that part which has the authority to control the behavior of the members of community regarding the topic of the discourse. Law is such a discourse. The master discourse within the legal discourse consists of a complex network of signs. The institutional autopoietic legal system maintains the evolutions of the complex network of signs, which composes master discourse of law. An autopoietic legal system self-perpetuates through self-reference of the legal system’s signs. An autopoietic legal system operates autonomously of the environment within which it functions. However, the system does observe and respond to this environment. This environment consists of the community’s political morality. The system must remain cognizant of the encompassing political morality because although the system functions autonomously, the system’s existence is dependent upon the legitimacy bestowed by the community. This legitimacy is granted while the system mirrors the political morality, the degree to which the mirror can distort, such as one found in a Fun House, varies and will most likely only be determined when the breaking point is surpassed. Semiotics allows for the study of these evolving signs of which the law is composed, as well as the ways in which the legal system utilizes these signs as the system autopoietically perpetuates.

References Broekman, Jan M. 2009a. Law in life, life in law: Llewellyn’s legal realism revisted. In: On philosophy in American law, ed. Francis J. Mootz III. New York: Cambridge University Press. Broekman, Jan M. 2009b. On law and semiotics. Course Book unpublished manuscript for Law and Semiotics Seminar at The Dickinson School of Law, Penn State University.

8  Semiotics in Legal Theory Design

151

Dworkin, Ronald. 1986. Law’s empire. Harvard UP. Estin v. Estin 334 U.S. 541. (1948). Ewick, Patricia, and Susan S. Silbey. 1999. Common knowledge and ideological critique: The significance of knowing that the “haves” come out ahead. Law and Society Review 33: 1025. Fuller, L. L. 2008. Human interaction and the law. Reprinted in [8] Lloyd’s introduction to jurisprudence, ed. M.D.A. Freeman, 1115. Thomson Reuters (Legal) Limited. Hart, H.L.A. 1997. The concept of law. New York: Oxford University Press. Hershovitz, Scott. 2003. Legitimacy, democracy, and Razian authority. Legal Theory 9: 201. Jackson, Bernard S. 1985. Semiotics and legal theory. Merseyside: Deborah Charles Publications. Kevelson, R. 1999a. Peirce and the mark of the Gryphon. Basingstoke: Macmillian. Kevelson, Roberta. 1999b. Semiotic philosophy of law. In The philosophy of law: An encyclopedia, ed. Christopher Berry Gray. New York/London: Garland Publishing. Lamond, Grant. 2001. Coercion and the nature of law. Legal Theory 7: 35. Llewellyn, K. 1933–4. On philosophy in American law. 82 U. Pa. L. Rev. 205. Llewellyn, K. 1994. The normative, the legal and the law-jobs: The problem of juristic method. Reprinted in [8]: Lloyd’s introduction to jurisprudence, ed. M.D.A. Freeman, p. 709. Thomson Reuters (Legal) Limited. Llewellyn, K. 2008. The common law tradition. Reprinted in [8]: Lloyd’s introduction to jurisprudence, ed. M.D.A. Freeman, p. 1023. Thomson Reuters (Legal) Limited. Luhmann, Niklas. 1988. The unity of the legal system. In: Autopoietic law: A new approach to law and society, ed. Gunther Teubner, 20. Berlin: Walter De Gruyter. MacCormick, Neil. 1996–1997. Institutional normative order: A conception of law. Cornell Law Review 82: 1051. Mondak, J.J. 1990. Perceived legitimacy of supreme court decisions: Three functions of source credibility. Political Behavior 12: 363. Peirce, Charles Sanders. 1931. Collected papers of Charles Sanders Peirce, ed. Charles Hartshorne and Paul Weiss. Cambridge: Harvard University Press. People v. Dietze, 75 N.Y.2d 47 (Court of Appeals 1989). Planned Parenthood v. Casey, 505 U.S. 833, 865–6 (1992). Raz, Joseph. 2005. The problem of authority: Revisiting the service conception. Minnesota Law Review 90: 1003. Teubner, Gunther. 1993. Law as an autopoietic system. Oxford: Blackwell Publishers. United States v. Lee, 106 U.S. 196, 233. (1882). Von Savigny, F. K. 2008. System of modern Roman law. Reprinted in [8]: Lloyd’s introduction to jurisprudence, ed. M.D.A. Freeman, 1097. Thomson Reuters (Legal) Limited.

Part IV

Gender and Family

Introduction Francis J. Mootz III

A prominent theme in semiotic literature is the malleability and indeterminacy of meaning, which is always understood through signs that cannot be cabined into the secure communication of definite data. And yet, legal practitioners and scholars continue to return to retrograde notions of a fixed baseline of “natural law” as the basis for legal meaning. This failure is perhaps most evident in the domain of family law, which often is portrayed as a means of facilitating the natural and fixed forms of human association. This portrayal of the basis of family law is closely connected to gendered assumptions that pervade legal discourse and doctrine. For example, it is easy to demonstrate that legal rules under traditional family law both assumed and promoted a vision of the family structure that was constructed in part on gendered understandings of the role of men and women in the family structure. Semiotic analysis can unveil these assumptions and show how the gendered vision of the family is implemented through supposedly neutral and natural rules. The “naturalness” of a traditional nuclear family – a man and a woman, who marry and have children, with the man taking the lead in earning money and the woman taking the lead in raising the children – pervades various aspects of law and ignores its semiotic basis. The contributions in this Part represent the efforts of law students to unravel the semiotic means by which claims to naturalness can be made, and also how they can be criticized and undermined in the face of changing social reality. Semiotic analysis permits better descriptions of legal practice and generates critical insight into the workings of legal discourse, but it also can provide creative insight to generate new understandings. Michelle Wirth and Jeffrey Ellsworth offer examples of the power of legal semiotics as part of the educational program. In the first essay, Wirth identifies the semiotics of parenthood in legal doctrine by focusing on a particular case dealing with in  vitro fertilization. Wirth begins by

F.J. Mootz III () University of Nevada, S. Maryland Pkwy, 89154-1003, Las Vegas 4505, NV, USA e-mail: [email protected]

Part IV  Gender and Family

155

emphasizing that signs have meaning only within a social context, and because contexts are dynamic so too is meaning. Nevertheless, we can think about meaning in a structural manner. She draws from Wesley Hofheld’s insight that legal concepts always imply their opposite: a “right” is merely a “duty” imposed on others, for example. However, semiotic analysis does not stop at the macro level and simply chart the “moves” in a legal discourse. Instead, it reveals how specific substantive innovations are possible in the context of a particular argument. Wirth explains how law operates as one of several master discourses in society, and the divergences between master discourses give rise to a hermeneutic crisis that permits lawyers to exercise creativity. Thus, she emphasizes the importance of recognizing semiotics in legal education: this is the means by which students can learn how to diagnose and affect disruptions between master discourses. Wirth chooses a Pennsylvania case, Ferguson v. McKiernan, to reveal how semiotic analysis can describe, critique, and innovate in the face of disruptions of meaning when traditional rules confront rapidly changing social contexts. In Ferguson, the court was asked to determine if a private donation of sperm to enable a woman to conceive a child should be treated as if it was a donation to a sperm bank (and subject only to contract law) or as a private relationship (and subject to family law). Wirth skillfully develops the jural correlatives at work in the case, revealing the opposition between the categories of “sexual reproduction–father–family law” and the categories of “clinical conception–donor–contract law.” The point is not to determine the “right” answer, or to reveal the perfect methodology for persuading others of one’s chosen solution to the problem. Wirth insists that semiotic attunement empowers lawyers and judges to effectively engage in the problem at hand with nuance and sensitivity. This is not to say that the problems of legal meaning disappear, but only that we may debate them and understand them better. Jeffrey Ellsworth takes a different tack in his contribution. He offers an in-depth analysis of the Supreme Court opinions in Michael H. v. Gerald D. regarding the rights of a man who fathers a child with a married woman. His goal is to generate critical insight into the factors motivating the parties beneath the surface structure of their arguments. He carefully deconstructs and analyzes the ideologies that sustain the symbolic power of the opinions in the case, providing an example of how a skilled lawyer can ascertain the “give in the joints” of an argument so as to make a better and more penetrating argument against her opponent. The seven opinions in Michael H. address the constitutionality of a California statute that conclusively declares that the father of a child is the husband of the woman giving birth, if no challenge has been made within 2 years of the birth. California justified its statute on its state interest in promoting marriage, and in ensuring that the best interests of the child are addressed by putting to rest questions of parentage after a certain among of time has passed. The biological father in Michael H. fathered the child during an adulterous affair, but subsequently lived with her mother and held her out as his daughter. However, because more than 2 years had passed, his biological fatherhood was deemed irrelevant under the statute. Ellsworth shows that the plurality opinion affirming the constitutionality of the statue was driven by the desire to minimize the number of “illegitimate” children

156

Part IV  Gender and Family

born, and that the Court refused to countenance the prospect of a child having two fathers. Ellsworth concludes that the arguments are aligned with the goals of seeking to promote men who father children to marry the mother, and to punish men who engage in adulterous affairs by eliminating any possibility of a parental role. Using Greimasian squares to illustrate his analysis, Ellsworth effectively uncovers the ideology that backs the moves by the parties and judges, and thereby makes the opinion susceptible to a more nuanced understanding and raises the potential for challenge.

Chapter 9

Semiotics of Parenthood in Legal Perspective: Using Semiotic Tools to Deconstruct Legal Determinations of Who Holds Parenthood Obligations and Privileges Michelle L. Wirth

“Be careful how you interpret the world it is like that” (p. 26 in Heller 1971). Erich Heller

9.1 Overview This chapter provides a brief explanation and illustration of the phenomenon of semiotics. It then describes the conceptual tools of semiotics and how lawyers can use semiotics in law to create compelling arguments. Last, the chapter applies the tools of semiotics to the Pennsylvania Supreme Court case Ferguson v. McKiernan (2008) to reveal the shift in social context that made the lines of legal reasoning behind the outcome appear “self-evident.”

9.2 Semiotics “Semiotics” is the study of the phenomenon in which a listener gives meanings to, or interprets, signs and uses these signs to determine narratives (Chandler 2001). The term “listener” is used to represent the person who is interpreting, regardless of whether the person is interpreting a sound, image, or touch (as with Braille). A sign is any object, image, or sound (including words), which conveys meaning. In this paper, the words “object,” “image,” “sound,” and “word” are used interchangeably when referring to one another, or to a sign. Human beings create narratives by ­giving objects meaning, which turns them into signs. We give each sign a meaning that M.L. Wirth (*) Carnegie Mellon University, Pittsburgh, PA, USA Dickinson School of Law, Penn State Law, USA e-mail: [email protected] J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_9, © Springer Science+Business Media B.V. 2011

157

158

M.L. Wirth

makes sense in light of the narrative, or context, in which it occurs. In that way, ­narratives and signs have a “chicken and egg” relationship in that it is impossible to have one without the other or to say which came first. The conundrum is used here in the colloquial, not scientific, sense as the field of science has determined that the egg came first (Unattributed 2005a). By being used in a different way, the same object can be given a different ­meaning, and thereby become a different sign, and the fact that the object is being used in a different way indicates that a different narrative is being told. For example, a flashing red light hanging from a pole over a street intersection conveys one ­meaning, thereby telling one narrative, while a flashing red light fixed atop a van roof conveys a different meaning and thereby tells a different narrative. The meaning that the “listener” attributes to the sign depends on how the sign fits into the narrative as the listener perceives it, and perhaps how well the sign fits the narrative that the listener would like to believe (Bostrom 2005). This suggests that our ­perception of reality is a creative function that results from the meanings we create about the experiences we have. Yet the experiences we have are a result of the ­meanings we give to what we perceive. William James, psychologist, philosopher and medical doctor, once said, “What is called our ‘experience’ is almost entirely determined by our habits of attention” (Bostrom 2005, VII). What we perceive is limited to what catches our attention, in that we can only perceive what we notice. Perception is further limited by the ­concepts through which we interpret what we notice. Words are signs – images or sounds that convey meaning. Language is a system in which concepts are conveyed through words. Therefore, language influences our perception of reality: [L]anguage ‘carves up’ the world into a conceptual scheme – it not only describes reality, but also produces it. The way in which the world is carved up is a matter of conventions. . . . For this reason, words do not simply describe pre-existing concepts – rather concepts are ­produced by the division and organization of reality by language. Here, linguistic meaning is produced by the differences between the various concepts in language (White 1990, 1121).

In other words, language works by defining what something is, according to what it is not (White 1990, 1121). American jurist Wesley Newcomb Hohfeld transferred these concepts to the study of legal jurisprudence. Hohfeld defined a right as “a legal guarantee that one has the privilege to engage in certain actions and invoke the power of the state to prevent other persons from engaging in certain other actions”. He then created four distinctions regarding rights. Hohfeld asserted that “each type of legal interest is accompanied by a matching interest held by at least one other person,” (emphasis added) and termed this matching interest a jural-correlative. Examples of jural-correlatives include: right/duty; privilege/no-right; power/liability; immunity/disability. Hohfeld asserted that each right also had a jural-opposite, “what one cannot have if one has a legally protected interest with respect to a certain type of act”. For example, one cannot simultaneously have a privilege and a no-right in the same object (White 1990, 1121). Hohfeld also created the distinctions “claim rights” and “liberty rights” (White 1990, 1123). He defined a “claim right” as one that “creates a correlative duty on the part of

9  Semiotics of Parenthood in Legal Perspective…

159

p­ rivate parties not to interfere with the exercise of that right”. For example, a ­parent’s right to make decisions on behalf of their child precludes interference from others in the exercise of that right. In contrast, “[a] liberty right only guarantees that a person exercising the privilege will not be held liable for the exercise, and that ­others cannot invoke the power of the state to prevent the exercise”. In the United States, the right to reproduce is one example of a liberty right. The concepts embodied in each of these four terms (jural-correlative, jural-opposite, claim right, and liberty right) illustrate how legal concepts are mutually self-defined relationships, such that using a term always evokes its opposite – you know what the thing is by what it is not.

9.3 Semiotics in Legal Inquiries Awareness of how each concept intrinsically evokes what it is not, equips lawyers to deconstruct a line of legal reasoning. This equips the lawyer to identify the ­conflict created as the framework for the legal issue, and the values imbedded in the terms used in making the argument. Balkin summarizes how the phenomenon of relationship shapes legal discourse: The concepts of property, contract and fault are thus mutually defined. In the more modern language of deconstruction, we would say that property, contract, and fault exist in a relation of [difference], of mutual dependence and differentiation, in which each concept bears the traces of the others. . . . The concept of legal fault depends upon whether one is acting within one’s rights, but of course one’s rights depend upon the corresponding rights of others to protection from harm. . . . Thus, to argue for the expansion of the privilege to do harm is to argue that an actor was not legally at fault, did not cause harm compensable by the legal system, or did not violate the legal rights of another. . . . Our analysis of legal concepts has shown that because debates over many, if not most, legal rules share the same structure – that such debates all concern whether to expand or contract the privilege to inflict nonremediable harm – the arguments used in these legal debates will all have a common structure (Balkin 1986, 1131).

Due to the function of semiotics in law and the resulting predictability of a c­ ommon argument structure, semiotics can be used in law to go beyond the macrolevel structure of arguments, to challenge the underlying assumptions embedded in the micro-level structure of arguments. This awareness of argument forms can be instrumental in “locating areas of doctrine that are in tension or contradiction” (White 1990, 1139). In the American legal system, the state and federal supreme courts are the arenas in which these tensions and contradictions are brought to a point. A semiotic legal analysis can facilitate the process of identifying the points of tension. Tensions and contradictions in the law exist where the “master discourse” of law is out of synch with itself, with a master discourse of society, or both. Under these circumstances, the winning argument will be the argument that reconciles the contradictions and relieves the tensions in the perception of the party in power, be it the judge or a jury.

160

M.L. Wirth

9.4 The Relationship Between Signs and Narratives One way to understand a narrative semiotically is to analyze the signs used to build the narrative. The power of interpretation to create reality is exemplified by the “master discourse” function of the legal system. As described by Broekman in March, 2008 at The Penn State Dickinson School of Law Seminar, “Semiotics and the Law”, a “master discourse” is a narrative that creates the “norms” within which a society operates. In the United States, the language of the law is a “master ­discourse”; an evolving narrative that establishes the norms within which its society operates. American government is a democratic republic, considered to be a representative democracy and designed to represent the will of the people while protecting the minority from mob, or majority, rule. In its ideal, citizens and the government have symbiotic relationships, in that they each alternatively engage in behaviors that can be characterized as “speaking” and “listening,” or interpreting, and through this engagement establish the legal norms within which society operates. Of this ­creative phenomenon, James Boyd White writes: There is no ground in nature, in the facts, or in uninterpreted texts, upon which the law and its authority can rest. Both law and authority are made, and largely made in the process of writing the opinions by which the decisions reached by courts are given their meaning.. . . The critical study of the judicial opinion in this way leads to the acknowledgement of the contingency of language and the self, and of the community too – for we are made by the very language that we use. . . . (Bostrom 2005, 217–218).

The legal master discourse declares rights and obligations. The United States Constitution established three branches of government to manage the process of negotiating rights and obligations among and between its citizens and inhabitants. The Constitution charges Congress, the legislative branch, with writing laws (Article I, Section 8.18 in Balkin 1986). The President, as head of the executive branch, has the power to veto laws (Article I, Section 7.2 in Balkin 1986). When there is a disagreement about what a law means, the judiciary, components of the judicial branch, interpret the laws (Constitutional Convention 1787) in trial and appellate courts. The government-sanctioned master creator of interpretations, or meaning-maker, in each state court is called the state supreme court. Sometimes the supreme courts of two or more respective states, or federal appellate courts in different districts, each create different interpretations of the same law, such that applying the different interpretations to the same set of facts could produce a different outcome in each state or within different districts. In these cases, the United States Supreme Court serves as the government-sanctioned master interpretation creator; it examines the conflicting interpretations and declares which interpretation will prevail in all 50 states. Regarding the influence of people in this phenomenon, Mary Frances Berry, Professor of American Legal History at the University of Pennsylvania, former chairwoman of the United States Commission on Civil Rights and past president of the Organization of American Historians, asserted that the dominant narratives of social discourse shape law, how law is enforced, and what we believe to be true

9  Semiotics of Parenthood in Legal Perspective…

161

about the law (O’Conner 2003, 4, 19). The field of semiotics offers conceptual tools that enable lawyers to identify the narratives that listeners, be they judges, law clerks, or jury members, find credible. Lawyers have a variety of privileged opportunities to directly influence the ­master discourse of law. Notably, lawyers use appellate- and amicus-briefs to ­communicate to the judge or judges who decide each case. In each brief, a lawyer suggests that the judge(s) interpret the applicable law in the way that favors their respective client. Communications directed toward jury members and tribunals are also opportunities. Lawyers can use the tools of legal semiotics to identify the predominant narrative of the master discourses of law and society, and craft a compatible narrative which suggests that the best interpretations of the pertinent signs are those that dictate a favorable outcome for the lawyer’s client. Alternatively, the lawyer can highlight the assumptions underlying the predominant narrative, comprised of the micro-level arguments represented by the terms used, to show that these assumptions are ­inaccurate, or that they no longer apply to the circumstances in the present case, and advocate for the court to adopt a narrative in keeping with a the social master ­discourse’s interpretation of the pertinent signs. The predominant social master discourse is reflected in the context of the dominant culture and may or may not, be expressed as a theory of legal reasoning or public policy. For example, in Plessy v. Ferguson (Barry 1999), the United States Supreme Court stated that the constitutionality of segregating “negroes” from other train riders was so obvious that elaboration was unnecessary (Barry 1999, 542). Fifty-eight years later, in Brown v. Board of Education (Plessy v. Fergusen 1896), the Court declared the “mindset of the time” of Plessy (Barry 1999, 551) had passed and the current awareness (Plessy v. Fergusen 1896, 489) (i.e., social master discourse; cultural ­context) of equality as self-evident would henceforth supersede. Whereas Plessy was decided 30 years after the Civil War, Brown was decided at the dawn of what is ­considered to be the era of civil rights in United States’ history (Brown v. Board of Education 1954). As a result of the shift in the social master discourse, the Court declared segregation by race to be unlawful and gave new meaning in the legal master discourse to the “sign” of skin-color, and to the “sign” of the word “negro.” The court of public opinion held a new truth to be self-evident, and thereby influenced judicial interpretation of the Constitution. In response, the Court used the legal master ­discourse to speak into existence a new legal reality. The change in the legal master discourse creates rights that allow for social ­realities that reinforce the self-evident appearance of the beliefs that prompted the change of law in the first place. For example, a judicial opinion that declares that “separate is not equal” prompts the creation of laws that desegregate public ­facilities, from elementary schools to swimming pools, and thus creates a reality in which children are more likely to live, play, and study with children of various skin colors and take for granted that they are not separate, and that they are equal. Shortly after the court’s decision in Brown, the word “negro” was largely dropped from the social master discourse due to its association with the idea of white supremacy, which had fallen out of favor with the master social discourse, and was replaced in usage with

162

M.L. Wirth

the term “black” (Unattributed 1954–1971). This process of translation, application, interpretation, and (re)negotiation of meaning is the phenomenon by which those with power continually narrow the gap between the social master discourse and the legal master discourse. This phenomenon cannot ever completely close the gap, however, because language functions by creating a system of distinctions, thereby perpetuating the creation of a gap. The Pennsylvania Supreme Court’s opinion in the above-mentioned case, Ferguson (Ferguson v. McKiernan 2008, 1236) highlights gaps between the legal master discourse and the social master discourse regarding reproduction via use of technology and private contracts establishing obligations and privileges toward the resulting offspring. The tools of semiotics and a method for applying them are introduced below, and demonstrated as applied to this Pennsylvania Supreme Court decision.

9.5 The Case: Ferguson v. McKiernan In Ferguson, the Pennsylvania Supreme Court points to the use of technology in the sperm donation process as the sign, or what the American judicial system calls a “factor,” that determines what theory of analysis it will use to decide whether a sperm donor is obligated to provide financial support for a child conceived using sperm from the donor (Ferguson v. McKiernan 2008, 1245–1246). If the court determines that the child’s conception most resembles conception achieved through use of an “institutional sperm bank,” then the court applies ”contract” theory ­analysis (Ferguson v. McKiernan 2008, 1242/1243). Under this analysis and in this case, the sperm donor would have no obligation to support the child and the child would have no right to receive support from the sperm donor. If, however, the Court determines that the method of the child’s conception most resembles ”traditional sexual reproduction,” then the Court applies a ”best interests of the child” theory of analysis (Ferguson v. McKiernan 2008, 1246). Under this analysis, in this case the court would find that the sperm donor has an obligation to provide support to the child, and the child has a right to receive support from the sperm donor (Ferguson v. McKiernan 2008, 1249). The court stated it believes these “two distinct views … to be self-evident” (Ferguson v. McKiernan 2008, 1246). As paleontologist Stephen Jay Gould commented, “the most erroneous [narratives] are those we think we know best – and therefore never scrutinize or question” (Harper 2001, 57). We will methodically, although not thoroughly, scrutinize each of the two narratives set out in Ferguson (Ferguson v. McKiernan 2008, 1246), “conception via traditional sexual reproduction,” and “conception via institutional sperm bank” by using tools of legal semiotics to identify the pertinent terms and the meanings they are assigned by the Pennsylvania courts and legislature. By exploring some of the ­concepts embodied in these terms, we may discern what jockeying social contexts compel the legal master discourse to apply different legal theories – “contract” or “best interests of the child” to the respective narratives. Furthermore, we can ­highlight the variety of

9  Semiotics of Parenthood in Legal Perspective…

163

values that are reflected and furthered via these definitions, by showing how other jurisdictions have given different meanings to the same terms and, having applied them accordingly, created different results sometimes in the same family dispute. A thorough study would demonstrate that Pennsylvania legislative and judicial applications of these pertinent terms also has resulted in incongruous government standards and levels of intervention in the distribution of child-support obligations and parenting privileges under the following circumstances: gestational surrogacy; donation of genetic material (sperm, ovum, or embryo) for use in reproduction; adoption; following divorce; when born out of wedlock; or absent biological paternity yet with a ­history of assumed paternal obligations. This incongruity internal to the master ­discourse of law at the state and national level, and the multitudes of people (Ferguson v. McKiernan 2008, 1246) who may be affected by the incongruity, suggest that there has been a shift in the master discourse of social context and that the master discourse of law has not shifted in response to bridge the gap. Lawyers can use semiotic ­concepts and tools to highlight the gap between the two master discourses. A process for ­applying the concepts and tools is described below, and then demonstrated by being applied to Ferguson.

9.6 Using a Semiotic Modus Operandi to Analyze Signs The modus operandi, which follows, is similar in content if not in form to “9. The Semiotic Modus Operandi,” as found on page 37 of “Law and Semiotics Course Book” as distributed at The Penn State University Dickinson School of Law for the Spring 2008 Seminar “Law and Semiotics”.

9.6.1 Identify the Surface-Level Message In a U.S. court case, the surface-level message is often summarized as the “issue” or “question at hand,” and preceded by the term “whether.” The message is also found in the court’s answer to the question, often preceded by terms such as “hold,” “find,” “affirm,” or “reverse.” The message frames the jural-correlative relationship between the plaintiff or prosecutor, and the defendant, and implicitly evokes the jural-opposite. In Ferguson, the Court communicates the message in a question and answer format: We are called upon to determine whether a sperm donor involved in a private sperm donation – i.e., one that occurs outside the context of an institutional sperm bank – effected through clinical rather than sexual means may be held liable for child support, notwithstanding the formation of an agreement between the donor and the donee that she will not hold the donor responsible for supporting the child that results from the arrangement. The lower courts effectively determined that such an agreement, even where bindingly formed, was unenforceable as a matter of law. . . . We disagree [and] we reverse (Ferguson v. McKiernan 2008, 1238, emphasis added).

164

M.L. Wirth

The court states the tension between the social master discourse and the legal master discourse, and defines some of the terms that shape its analysis: The inescapable reality is that all manner of arrangements involving the donation of sperm or eggs abound in contemporary society, many of them couched in contracts or agreements of varying degrees of formality. See UPA Art. 7. Prefatory Cmt. (outlining the various reproductive alternatives available to parties seeking to raise children). An increasing number of would-be mothers who find themselves either unable or unwilling to conceive and raise children in the context of marriage are turning to donor arrangements to enable them to enjoy the privilege of raising a child or children, a development neither our citizens nor their General Assembly have chosen to proscribe despite its growing pervasiveness. . . . Of direct relevance to the instant case, women, single and otherwise, increasingly turn to anonymous sperm donors to enable them to conceive either in vitro or through artificial insemination. In these arrangements, the anonymous donor and the donee respectively enter into separate contracts with a sperm bank prior to conception and implantation of an embryo or embryos. The contract releases the mother from any obligation to afford the sperm donor a father’s access to the child for visitation or custody while releasing the donor from any obligation to support the child (Ferguson v. McKiernan 2008, 1245/46).

Prior to the availability of reproductive technology, children were conceived either in marriage, or outside of marriage. The latter has historically been referred to as “out of wedlock.” In the above synopsis of women’s modern reproductive choices however the court characterizes the opposite of “[able] or [willing] to conceive and raise children in the context of marriage” as “turning to donor arrangements.”

9.6.2 Identify the Signifiers Signifiers are those terms used in the message, which give the message its significant meaning in the sense that if you used the opposite of the term, you would change the meaning of the message. Given that signs are created by contrasting something to all that it is not, the opposites of the signs are also useful signifiers to examine. A court or tribunal’s opinion may contain synonyms of, or adjectives that modify, these signifiers that can illuminate their meaning. Combined, we will call these surface-level signifiers. The “jural-opposites,” shown below, are context-specific; they are not naturally occurring or even necessarily commonly recognized opposites. Thus the second half/dichotomy in the pair can change depending on the context. Dichotomies: Signs and their jural-opposites Sign Jural-opposite Legal master discourse – Ferguson v. McKiernan Private sperm donation “Conception outside the context of institutional sperm bank” = Known Donor + fertility clinic Direct contract between Donor and Donee.

Public sperm donation “Conception inside the context of institutional sperm bank” = Anonymous Donor + fertility clinic No Direct contract between Donor and Donee. (continued)

9  Semiotics of Parenthood in Legal Perspective…

165

Dichotomies: Signs and their jural-opposites (continued) Sign Jural-opposite One contract, between Donor and Donee: Two Separate Contracts: between Donor and Sperm Bank; and Sperm Bank and Donee; Donor not Donor not obligated to support child; obligated to support child; in exchange, Donor in exchange, Donor gives up claim gives up claim right of privileges toward child; right of privileges toward child; Donee does not have to share claim right of Donee does not have to share claim privileges toward child; in exchange, Donee right of privileges toward child; in gives up right to seek financial support for child. exchange, Donee gives up right to seek financial support for child. Social master discourse – Ferguson v. McKiernan Sign Contemporary society Inescapable reality “Would-be” mothers (market for sperm-without-claim-rights) Able or willing to conceive and raise children in the context of marriage Able or willing to conceive and raise children out of wedlock Privileged (right) to Raise a Child “All-manner of arrangements” (re: contracts delineating obligations to support and claim rights to parental privileges) Not Proscribed by General Assembly (re: contracts delineating obligations to support and claim rights to parental privileges) Not Proscribed by Citizens (via referendum) (re: contracts delineating obligations to support and claim rights to parental privileges)

Social-context opposite Old-fashioned society Escapable reality No “would-be” mothers (no market for sperm-withoutclaim-rights) Unable or unwilling to conceive and raise children in the context of marriage Unable or unwilling to conceive and raise children out of wedlock Not Privileged (no right) to Raise a Child Proscribed limits on available arrangements (re: contracts delineating obligations to support and claim rights to parental privileges) Proscribed by General Assembly (re: contracts delineating obligations to support and claim rights to parental privileges) Proscribed by Citizens (via referendum) (re: contracts delineating obligations to support and claim rights to parental privileges)

9.6.3 Identify the Meaning of, or the Concept Conveyed by, the Signifiers This meaning is referred to in semiotics as “a signified.” In the process of identifying the concepts signified, you may also think of the concepts in terms of additional signifiers that help define the main signifiers. These additional concepts, or signifieds, are called “sub-level signifiers.” For example, the term “donor” in Ferguson is used in contrast to the term ­“parent,” as the court illustrates in its dissenting opinion by stating “[r]eferring to Joel McKiernan as “Sperm Donor” does not change his status – he is their father” (Ferguson v. McKiernan 2008, 1249). That the court asserts this in the dissenting argument indicates that the prevailing view of the judges on the bench

166

M.L. Wirth

of this court is that the donor is not the father. This argument establishes a connection between two pairs of jural-opposites: donor/not-donor; and father/ not-father. The terms father/not-father can be considered sub-level signifiers to the terms parent/not-parent, which may have the additional sub-level signifiers mother/not-mother. As a diagram, the relationship between these three pairs of signifiers would look like:

Parent/ Not Parent

Father/ Not-Father

Man/ Not-Man

Mother/ Not-Mother

Woman/ Not-Woman

9.6.4 Pair the Surface-Level and Sub-level Signifiers into Dichotomous Relationships You can create dichotomous relationships from pairs, oppositions, inverses, juralcorrelatives and jural-opposites. Evoke the signifier that completes the pair even if it is not explicitly mentioned in the message: Donor/Not-Donor Man/Not-Man Father/Not-Father Woman/Not-Woman Mother/Not-Mother Conceived in marriage/conceived out of wedlock Parent-Child Relationship/No Parent-Child Relationship Sexual reproduction “traditional sexual reproduction”/Clinical reproduction “institutional sperm bank” Anonymous Donation/Not-Anonymous Donation Dependent Child/Not-Dependent Child Child has a right to support/Child has no right to support Child has right to connection with birth family/Child has no right to connection with birth family Conception with agreement/Conception without agreement Contract regarding support/No contract regarding support Enforceable as a matter of law/Unenforceable as a matter of law

9  Semiotics of Parenthood in Legal Perspective…

167

Fertility Technology Legally Sanctioned/Fertility Technology Not Legally Sanctioned Creation of Paternal Anonymity Legally Sanctioned/Creation of Paternal Anonymity Not Legally Sanctioned Paternal Identity Discernable/Paternal Identity Not Discernable

9.6.5 Group These Pairs of Surface-Level and Sub-level Signifiers Group these pairs of surface-level and sub-level signifiers according to their socialcontext relationships, or their jural-correlative and jural-opposite relationships to one another. For example, when the issue is whether the means of conception is analogous to clinical or sexual reproduction, and there is the issue of whether a donor has parental obligations and privileges toward the child; one contextualgrouping of pairs is: agreement to withhold support/no agreement to withhold support; sexual reproduction/clinical reproduction; donor/not-donor; known-donor/ anonymous-donor; parent-child relationship/no parent-child relationship; obligationright to support/no obligation-right to support; claim rights toward child/no claim rights toward child.

9.6.6 Connect Each Pair with One Other Pair to Form a Semiotic Square Placing a signifier (or word) at each axis (or point/90° angle) of the square. For each pair, the respective terms should be aligned either horizontally (as below) or vertically. To determine what sets of pairs to create, begin by connecting them according to the relationships presented by legal documents such as motions, depositions, and transcripts, as required by the legal standards, or as reflected in the analyses conducted by the lower courts preceding the current appeal.

168

M.L. Wirth

This process can be repeated, making different combinations of pairs to form multiple squares. Some, but not all of the pairs listed above, are connected in the example below:

9.6.7 Identify the Various Meanings of Each Term Identify the various meanings of each term by using legislative and judicial definitions, and historical and current social interpretations as offered by groups with competing interests. The latter can often be found in dissenting opinions, opinions of lower courts, and amicus curiae briefs presented by special interests groups. Some of the terms found in Ferguson are examined below.

9  Semiotics of Parenthood in Legal Perspective…

169

9.6.7.1 Interpret Surface-Level Terms The court in Ferguson initially used the term “clinical reproduction” to refer to anonymous sperm donation, which makes the lack of a “father” a foregone conclusion. In a dissenting opinion, Justice Eakin states, “There was no effort at all to insulate the identity of the father – he was a named party to the contract! This is not a case of a sperm clinic where donors have their identity concealed” (Ferguson v. McKiernan 2008, 1250). Thus this dissenting opinion relates to the anonymity of sperm donors in clinical reproduction as a foregone conclusion and appears to rely on this assumption in choosing to find Ferguson distinct from those cases in which the sperm donor is anonymous. As pointed out in the majority opinion however this anonymity is manufactured and perpetuated by multi-faceted state sanction. The court, through the majority opinion, originally emphasizes the donee’s efforts to keep the donor’s identity anonymous from people in the community, and characterizes this as the parties’ efforts “to preserve all of the trappings of a conventional sperm donation, including formation of a binding agreement” (Ferguson v. McKiernan 2008, 1246/47). The court notes that this anonymity is contrived and that the court has the power to lift this veil, when it says, “surely a sperm bank’s records, if subject to compulsory process, would render all donors identifiable” (Ferguson v. McKiernan 2008, 1247). As Justice Saylor notes, the court has the power to determine whether a man is a father, by determining paternity through blood relation (Ferguson v. McKiernan 2008, 1249). This empowers the court to follow through on what Justice Saylor characterized as a child’s legislatively provided right to receive benefits from the biological father. Analyzing the concepts “Anonymous/Not-Anonymous,” as imbedded in the term “clinical reproduction,” reveals that the continuum of options regarding anonymity is a created result of legal policy, or legal master discourse, and public practice, or social master discourse. Unmitigated use of anonymous sperm donations is not an inevitable, unavoidable reality. While some jurisdictions protect anonymity by allowing for the destruction of identifying records, to prevent courts from determining paternity (Gould 1997), in other jurisdictions anonymous sperm donation has been curbed or outright abolished, with the effect of curtailing sperm donations and ­contributing to a fertility industry in which demand for sperm outstrips the available supply (Johnson v. Superior Court of Los Angeles County & 80 Cal. App. 4th 1050). The Pennsylvania legislature is aware that anonymous sperm banks exist in the state of Pennsylvania (Unattributed 2005b), given that they are regulated by the Pennsylvania legislature with implementation performed by the Pennsylvania Department of Health. The Pennsylvania judiciary has a history of not using its legislatively granted authority to establish paternity by determining blood relations between children and sperm donors, which it could do by demanding that sperm donation clinics surrender the identifying DNA records on file. This has resulted in de facto government sanctioned anonymity and the resulting ability to contract away the child’s right to support, at the pleasure of the initiating parent(s), regardless of the “rights” otherwise reserved to a child conceived under different circumstances. The choice of the Pennsylvania legislature to allow, and the judiciary to honor, this intentionally created, bureaucratically regulated anonymity effectively sanctions parent’s ability to bargain away a child’s right to support.

170

M.L. Wirth

9.6.7.2 Interpreting Silence The court acknowledged that the Pennsylvania legislature has considered and declined to pass a version of the Uniform Parentage Act (UPA). The model UPA addresses issues regarding anonymous sperm banks. The majority and the minority each give this sign a different interpretation. The majority opinion interprets this silence as the legislature’s consent: An increasing number of would-be mothers who find themselves either unable or unwilling to conceive and raise children in the context of marriage are turning to donor arrangements to enjoy the privilege of raising a child . . . a development neither our citizens nor their General Assembly have chosen to proscribe despite its growing pervasiveness (Ferguson v. McKiernan 2008, 1245).

In contrast, Justice Eakin interprets silence as dissent: Our legislature has not adopted the UPA. This Court has held, “it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt.” Benson ex rel. Patterson v. Patterson, 574 Pa. 346, 830 A.2d 966, 967 (2003) (quoting Garney v. Estate of Hain, 439 Pa.Super. 42, 653 A.2d 21 (1995)). The “legislature … has taken an active role in developing the domestic relations law of Pennsylvania,”id., at 968, and because it has not adopted the UPA, this Court should not consider it; the subject matter [anonymous sperm clinics and reproductive technology] is within that body’s purview. If anything, the failure to enact it speaks of rejection of its principles, not acceptance of them (Ferguson v. McKiernan 2008, 1250).

Justice Saylor states in his dissenting opinion: I believe that the Legislature has established the relevant public policy through the provisions quoted above “in every case” involving children born out of wedlock 23 Pa.C.S. § 5102(a). I realize that a straightforward reading of the statute has potential ramifications for sperm donors in Pennsylvania beyond the unique circumstances presented here, as I believe the Legislature does as well, since it has previously considered various measures to mitigate the impact but has not yet acted to adopt any of these (Ferguson v. McKiernan 2008, 1249).

Justice Saylor does not specify what measures the Pennsylvania legislature has considered, or its reasons for declining to pass the legislation. This author was unable to find legislative records that reflected what the legislature considered or its reasons for declining to pass additional legislation. Although the records might illuminate, one can only guess whether those reasons would prove persuasive in the current legal or social environment.

9.6.7.3 Identify Narratives Identify narratives about those signs that have those meanings make sense. Given the definition, what are the underlying assumptions, both explicit and implicit? This will illuminate additional sub-level signifiers. The fact that people make anonymous sperm donations in Pennsylvania; that children are conceived in Pennsylvania using fertility clinics that are regulated by the government of Pennsylvania; and that Pennsylvania courts have chosen not to

9  Semiotics of Parenthood in Legal Perspective…

171

use their legislatively provided powers to reveal the paternity of these potential support providers, has been interpreted by the social master discourse as approval to bargain away the rights of children to support, under certain conditions. Absent this consent, sperm donations in Pennsylvania would likely decrease as otherwise would-be donors avoid the risk of claims for support. This would be consistent with the drastic decrease in donations that occurred in Britain after donors were stripped of their anonymity, even though donors were not obligated to support the resultant offspring (Unattributed 2003). Enactment of similar regulation has left the nation of Scotland with one registered sperm donor (Unattributed 2003). The Pennsylvania court’s choice not to use its self-acknowledged, legislatively ­provided power to provide children with a source of financial support where conception is achieved using an anonymous sperm donor is itself a constructed barrier to providing children with support. There appears to be tension not only between the legal and social master discourses, but also internal to the legal master discourse. 9.6.7.4 A Shift in the Social Master Discourse Public practice is limited by the public’s access to reproductive technology. Access to reproductive technology requires the existence of the technology, the public’s awareness of the technology, and the public’s ability to afford traveling to and ­paying for the technology. Pennsylvania’s history has demonstrated that prohibiting a reproductive practice does not prevent it (Woolf 2006; Miller 1993). Pennsylvania courts will continue to be faced with the fallout created by people who can access reproduction technology elsewhere regardless of whether the Pennsylvania Legislature sanctions, prohibits or remains silent on the matter of anonymity of sperm donations and shielding sperm donors from the legal obligations often ­attributed to biological fathers.

9.7 “Mind the Gap” to Identify the Competing Values Where application of jural-opposite signs prompts different response (“sexual reproduction = best interests of child analysis” vs. “clinical reproduction = contracts analysis”) the difference in response highlights competing values. It may also ­indicate a tension between the master discourse of law, and a social discourse caused by an emerging paradigm shift. For instance, the paradigm shift that allowed the Supreme Court to go from its ruling in Plessy to its ruling in Brown can be characterized as a shift from the paradigm “white supremacy” to the paradigm “racial equality.” A paradigm shift has occurred in the social discourse regarding the right to choose from among reproductive options. Madeleine Hershey is a former abortionclinic employee who currently volunteers to drive young women to judicial bypass hearings, in which young women in Pennsylvania request permission from the courts to obtain an abortion without their parents’ knowledge. Hershey noted that

172

M.L. Wirth

American law characterizing reproduction decisions as a Constitutional, Fourth Amendment privacy right, coupled with global advances in reproductive ­technology, have shifted the social master discourse from “Biology is Destiny” to the paradigm “Access to Technology is Destiny.” The latter occurs inside of the larger context of Consumer Choice – the reality that people with money can buy what they want, either by legally crossing state and national lines, or by paying higher prices to buy prohibited goods and services. The previous lack of technological means for reproduction meant that each ­conception was proof of coitus, and therefore evidence that there were two parties to whom the court could assign responsibility for support obligations. That physical reality prompted a body of law that sought to assign support for offspring between the two people physically involved in the conception, or between the person or ­people who would assume this obligation, via adoption, in their stead. It has also prompted a demand for affordable, easy and fast paternity tests (Unattributed 1997). The ­contract doctrine of promissory estoppel was used in the past to assign financial ­support obligations to men who, sometimes mistakenly, assumed the role of “father.” The more recent availability of cheap and fast paternity testing technology has been in demand by men to curb the rate at which they mistakenly support children they did not intend to create or support competing values and underlying assumptions that made the two lines of legal analysis, with their disparate results which appear “self evident” to the court in Ferguson, can be characterized as a shift from the paradigm “Biology is Destiny” to the paradigm “Access to Technology Is Destiny,” and more to the point, “Consumer Choice is Destiny.” The court in Ferguson credits consumer demand for fertility technology with bringing these issues to a head: [Mother’s analogy, “between the instant circumstances and those of divorce or other parenting arrangements arising in the context of sexual relationships”] is unsustainable in the face of the evolving role played by alternative reproductive technologies in contemporary American society. It derives no authority from apposite Pennsylvania law, and it violates the commonsense distinction between reproduction via sexual intercourse and the non-sexual clinical options for conception that are increasingly common in the modern reproductive environment. The inescapable reality is that all manner of arrangements involving the donation of sperm or eggs abound in contemporary society, many of them couched in contracts or agreements of varying degrees of formality. See UPA Art. 7. Prefatory Cmt. (outlining the various reproductive alternatives available to parties seeking to raise children) (Ferguson v. McKiernan 2008, 1245, emphasis added).

When the court asserts that there is a “commonsense distinction between reproduction via sexual intercourse and the non-sexual clinical options for conception” (Ferguson v. McKiernan 2008, 1245), it highlights the practical reality that the claim right of an individual to reproduce is officially in conflict with a child’s claim right to support. Across the United States, children are not guaranteed a minimum level of financial support, in cash, health care, expenditures on public education, or by any other quantifiable means. For example, according to the National Center for Children and Poverty: [Thirteen] million American children live in families with incomes below the federal poverty level, which is $20,650 a year for a family of four. . . . Research consistently shows that, on average, families need an income of about twice the federal poverty level to make ends meet.

9  Semiotics of Parenthood in Legal Perspective…

173

Children living in families with incomes below this level . . . are referred to as low income. Thirty-nine percent of the nation’s children—more than 28 million in 2006—live in lowincome families (Fass and Cauthen 1997).

American citizens have a right to create children, but even children who are American citizens do not have a right to a guaranteed comprehensive minimum level of support either from the people privileged to create them or from the sovereignty that asserts the right to govern them. In the words of Ralph Waldo Emerson, “Children are all foreigners. We treat them as such” (Emerson 1911, 261). Between 1848 and 1929, harsh conditions created by mass immigration from Europe to America, coupled with rapid urbanization, left hundreds of thousands of poor children without parents or extended family members and wandering the streets of American coastal cities (Scheurman 2007). Children were expected to work, yet there was not enough “honest” work available in the cities and so many children supported themselves through criminal activity (Scheurman 2007). Across the country several efforts were made to put children to more productive use. The Children’s Aid Society formed in 1853 in New York City (Scheurman 2007). Modeled after European social programs, it operated as a trade school and lodging house for poor children (Scheurman 2007). At this time the U.S. government expanded the railroad system westward and encouraged people to move west and cultivate the land. Families who did so found that they needed to expand their labor force to meet the demands of farming (Scheurman 2007). In what has been referred to as a “fostercare-cum-employment agency,” (Scheurman 2007). The Children’s Aid Society and other charitable organizations put between 100,000 and 250,000 (National Orphan Train Complex. Undated) children on trains to towns in the mid-west, with their arrival preceded by flyers that described the children as “little laborers” (Scheurman 2007). Many children who were put on the trains were collected from lodging houses, prisons, and asylums, while other children “presented themselves […] in an attempt to escape homelessness, poverty, or abuse” (Scheurman 2007). Adults who were interested in acquiring a child inspected the children at events that ranged in character from auditions to slave auctions (Scheurman 2007). While some families agreed to care for the children as their own, other children were turned into indentured laborers through contracts negotiated by the charities (Scheurman 2007). Meanwhile, some of the children who resorted to criminal activity received their food, shelter, and adult supervision, such as it was, from the adult criminal justice system (Scheurman 2007). Throughout the United States children age 7 and older were treated in criminal court as if they were small adults, and children convicted of crimes were incarcerated with adults (Scheurman 2007). Social activists and law enforcement officials noticed that the children who were incarcerated with adults learned how to become career criminals (Scheurman 2007). In an attempt to remedy this, the Illinois state legislature passed the Juvenile Court Act of 1899, and thereby created the first juvenile court system as an alternative to subjecting children to the criminal justice system (Findlaw 2010). The doctrine of parens patriae, “the nation as parent,” was the ­conceptual framework for creating a judicial system that treated children differently than adults (Findlaw 2010).

174

M.L. Wirth

Parens patriae embodies the idea that a child has certain “natural rights,” and that it is within the authority of the nation to act to protect children from parents or guardians who endanger the children by jeopardizing those natural rights (Blackstone 1793, 427). For every right, there is a legally recognized entity – a person, agent, or organization – with a corresponding duty to act or to refrain from acting. Treating children as entities with “natural” rights that merit legal protection was a development of law that spanned thousands of years, several countries, and two continents. American law developed from its British origins, and British law developed from ancient Roman law. Under Roman law, children were the property of men, who had the right to kill them. This right was granted based on the idea that men could take out of the world that which they had caused to be brought into it (Blackstone 1793, 452). In contrast to ancient Roman law, British law treated children as entities worthy of protection from injury (Blackstone 1793, 452/53). British legal icon Sir William Blackstone traced this idea to the German seventeenth century jurist and political philosopher Samuel von Pufendorf (Blackstone 1793, 447). He refined a theory of a universal, “natural law,” distinct from civil law: [M]an is indeed an animal most bent upon self-preservation, helpless in himself, unable to save himself without the aid of his fellows, highly adapted to promote mutual interests; but on the other hand no less malicious, insolent, and easily provoked, also as able as he is prone to inflict injury upon another. Whence it follows that, in order to be safe, he must be sociable, that is, must be united with men like himself, and so conduct himself toward them that they may have no good cause to injure him, but rather may be ready to maintain and promote his interests. […] The laws then of this sociability, or those, which teach how a man should conduct himself, to become a good member of human society, are called natural laws (Von Pufendorf 1682, Ch. 3, §7 & 8).

Pufendorf elaborated that natural law requires fathers who are part of society and thereby reap its benefits, to contribute back to society by raising and educating their children to be “fit and useful members of human and civil society,” and connecting them with education and training that will enable them to support themselves (Von Pufendorf 1682, Ch. 3, §11). In contrast to Roman law, Pufendorf described a father’s duty to cultivate children not only as a duty to society, but as the right of children as people unto themselves, distinct from their parents, regardless of the fact that they were brought into being at their parents’ will. He based children’s rights to food, shelter, protection, and education in the fact that children are human, and capable of suffering (Von Pufendorf 1682, Ch. 3 §4). Where one has a right, another has an obligation. Pufendorf esteemed the father’s obligation to society and to his children to be so great that “if a parent has inhumanly exposed or cast off a child, whoever shall take up and educate the child, will succeed also to the father’s rights” (Von Pufendorf 1682, Ch. 3, §9). Where the father does not meet this obligation to which the child has a right, the nation intervenes as it sees fit to prevent further injury and to provide for the child to become a contributing member of society. The doctrine of parens patriae embodies these interpretations and relationships.

9  Semiotics of Parenthood in Legal Perspective…

175

Parens patriae is a “prerogative power,” not a judicial power (Fontain v. Ravenel 1854, 384). A prerogative power is a power inherent to being sovereign (prerogative 2010). The U.S. Supreme Court traced the legal precedent of this doctrine to its roots in British law, and by way of explaining its legitimacy within U.S. law said, “It would be a waste of time to multiply authorities to this point, because the principle is familiar to the profession. It is impossible to look into the subject without perceiving and admitting it” (Trustees of Philadelphia Baptist Ass’n v. Hart’s Executors 1819, 4–8). In this regard the U.S. Supreme Court echoed the words of its British source. Regarding the legal precedent of the doctrine in British law, renowned British scholar Sir William Blackstone said, The jurisdiction of the court […] whatever may have been its origin, is now firmly established and beyond the reach of controversy, –it being a settled maxim that the sovereign is the universal guardian of all the infants in the kingdom. […] [This jurisdiction] extends to the care of the person of the infant so as is necessary for his protection and education and to the care of his property. […] And this interference may be obtained on the petition of the infant himself, or of any of his friends or relatives: nay, a mere stranger may at any time set the machinery of the court in motion (Blackstone and Lewis 1832, 439).

Under British law, “the Crown,” the national government, held the power of parens patriae (Fontain v. Ravenel 1854). Although the U.S. Constitution created the federal government as sovereign, it also stated that all powers not granted to the federal government by the Constitution were reserved to the states and the people. In Fontain v. Ravenel, 58 U.S. 369 (1854) the U.S. Supreme Court held that the U.S. Constitution had not granted prerogative power to the federal judiciary, and so it was reserved to the state governments (Fontain v. Ravenel 1854). Therefore it was left to the legislatures of each state to create their own child welfare and juvenile justice systems, or not, as they chose. Across the U.S., it is generally held that biological and adoptive parents cannot bargain away a child’s right to support (Lawyers.com 2010). The legal publishing giant Martindale-Hubbell provides an overview: [P]arental financial support is a right that benefits the child. A parent’s obligation to support their child is a matter of public policy. As such, any attempt to waive child support violates public policy. […] For example, parents can’t agree to limit the duration of child support in exchange for the father giving up his parental rights. A parent can’t buy another parent’s rights or sell his own rights. A child’s right to support can’t be eliminated by a contract between the parents (Lawyers.com 2010).

As noted by Justice Eaken in the dissenting opinion of Ferguson, Pennsylvania law is traditionally consistent with this approach: The paramount concern in child support proceedings is the best interest of the child. […] [T]he ability of parents to bargain child support is restricted: [Parents] have no power … to bargain away the rights of their children. … They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessary powers to provide for that best interest (Ferguson v. McKiernan 2008, 1249/50) (internal citations omitted).

176

M.L. Wirth

U.S. federal and state adoption laws do allow the state to sever a biological parent’s obligation to support and right to a relationship with the child as part of the adoption process. There are several factors that distinguish this process from the phenomenon of contracting away a child’s right to support as a condition for egg or sperm donation. First and foremost, adoption happens after the fact of the birth of the child. To terminate the parental rights and obligations of the birth parents, the court does a case-by-case consideration of whether this is in the best interests of each individual child in question, and only after the court has cause to fear for the welfare of the child (Child Welfare Information Gateway 2007, 2). In contrast, sperm and egg donation contracts are created before the conception and birth of the child whose rights are later affected by the contract. No state agency is involved to determine whether separating future children from their biological families is in the best interests of the child or children affected. Through the adoption process, the state uses a “home study” to determine whether the people in question are suitable to become parents (National Adoption Center 2010). The home study requires potential adoptive parents to obtain child abuse clearances, receive personal references, and have their home visited by a social worker while all individuals who live in the home are present (National Adoption Center 2010). In contrast, the process of creating and obtaining children through sperm or egg donation does not involve an investigation into whether the potential parents are appropriate people with whom to place ­children, much less whether it would be in a child’s best interest to forsake ties to his or her biological family in favor of a connection to the person who contracts for the rights of parenthood. In the case of coital conception the state also does not determine whether a person would be an appropriate parent, however people who conceive “the old fashioned way” are not relying on an instrument of the state to effectuate their becoming parents. In contrast, those who count on a legally enforceable contract to become parents (or “not-parents”) through the process of egg or sperm donation rely on the state. Traditionally, the state of Pennsylvania has determined that “[Parents] have no power … to bargain away the rights of their children” (Ferguson v. McKiernan 2008, 1250). Accordingly, Pennsylvania could declare these contracts to be void, unenforceable by law, when legal disputes bring such contracts before the court. In Ferguson, The court’s characterization of the use of technology, and the accompanying contracts, as an “inescapable reality” accepts as a foregone conclusion that the trend will continue. Likely, it will, but only with the continued consent of government, even in the form of silence such as that of the Pennsylvania Legislature. As is the case in jurisdictions where abortion is illegal or access to abortion is prohibitively restricted, people with money likely will continue to elude government restrictions by traveling to permissive jurisdictions to avail themselves of reproductive technology. As noted in the majority opinion (Ferguson v. McKiernan 2008, 1248), absent government enforcement of the contracts limiting support obligations, however, sperm donations are likely to dry up. The court in Ferguson frames the facts in the case at hand in the context of consumer behavior, and finds the facts analogous to reproduction in a clinical setting

9  Semiotics of Parenthood in Legal Perspective…

177

using sperm donation from an anonymous donor, where the fertility clinic may or may not have retained data that could be used to ascertain the identity of the donor. This shifts the focus from an examination of the “Best Interests of the Child” to an examination of the intent of the parties involved in the conception process. Thus a child’s claim-right to support now hinges, in part, on the method used to conceive it. It further highlights the use of technology in reproduction as the fact that distinguishes it from a hypothetical conclusion mentioned in obiter dictim in a preceding Pennsylvania Superior Court case (Ferguson v. McKiernan 2008, 1246), Kesler v. Weniger (2000). At the trail court level, in Kesler, a man who did not contest paternity sought to avoid paying for financial support for his biological child, who he conceived in 1994 during his 15-year affair with the biological mother. Weniger, the biological father, asserted that Kesler, the biological and legal mother, agreed not to hold him responsible for financially supporting any child that she might conceive as a result of having sex with him. Kesler asserted that no such agreement existed (Kesler v. Weniger 2000, 795). The trial court, as the trier of fact, agreed: Notwithstanding the conclusion we have already reached [finding Father’s version incredible], we move on to the question of whether or not plaintiff-mother could lawfully release defendant-father from his support obligation. The answer is “no.” A child’s right to support from a natural father cannot be bargained away by the child’s mother and any release or compromise by the mother and father is invalid to the extent that it is a prejudice to the welfare of the child involved (Kesler v. Weniger 2000, 795).

Under the United States Supreme Courts’ Ripeness Doctrine, courts may only issue rulings on live matters of controversy (Wells and Eaton 2002, 191). They may not issue advisory opinions. In keeping with the Ripeness Doctrine, obiter dictum is not case precedent, does not create common law and therefore does not need to be distinguished as inapplicable in subsequent cases (West Publishing Co. 1914, 31–33). As Judge Beck notes in his concurring opinion in Kesler: In its opinion the majority correctly concludes that appellant has failed to prove the existence of an agreement. The majority then hypothesizes that were such an agreement to exist, it would not be enforceable. In light of the growing legal and ethical complexity in the area of reproduction it seems that the wiser course is to refrain from expressing views relating to the enforceability of such contracts until such time that the issue is squarely before us. Because there is no valid agreement before us, I do not join in the majority’s analysis of the effect of a pre-conception agreement purportedly relieving one party of the duty of support (Kesler v. Weniger 2000, 797, emphasis added).

The Pennsylvania Supreme Court is not required to refer to the obiter dictum of a lower court case, but does so here perhaps to signal to potential future parties what the outcome would most likely be in a case where conception is achieved through coitus, regardless of the existence of a contract. The court thereby signals that the method of conception is a pivotal fact in the court’s determination of whether a person is obligated to support a child, and conversely whether a child has a claim right to receive support from that parent. The shift in social master discourse to “Access to Technology is Destiny,” and the struggle of the legal master discourse to keep up, is evident in recent cases and publicity of new and upcoming reproductive technology. One such case is the

178

M.L. Wirth

recent Pennsylvania Superior Court case, J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006). This case involved eight people and four legal jurisdictions: an egg donor who resided in Texas; a gestational carrier and her husband who both resided in Pennsylvania; the man who used his sperm to fertilize the egg, and his fiancée, both of whom resided in Ohio; and the triplets conceived through the reproductive technology and the surrogacy contractual transaction. In addition, the surrogacy agency located in Indiana was also drawn into litigation. The latter two adults initiated the fertilization process in an effort to become legal parents to the ensuing triplets, with all the claim rights and support obligations attached to this position. When the gestational carrier took the children home with her to Pennsylvania, court battles over parenthood or custody ensued in Indiana, Ohio and Pennsylvania (Beatie 2008, 3–4). The laws of each state determined parenthood using different criteria, with different results. In cases regarding embryo donation, Ohio law regards the birth mother, not the woman who provided the egg, to be the natural mother (Beatie 2008, 8). This definition of “mother” may presume that the person giving birth is a woman, an idea recently belied by actions taken in the social master discourse. In an unrelated matter, Thomas Beatie, described himself and his situation thus: I am transgender, legally male, and legally married to Nancy. . . . Sterilization is not a requirement for sex reassignment, so I decided to have chest reconstruction and testosterone therapy but kept my reproductive rights. Wanting to have a biological child is neither a male nor female desire, but a human desire.. . . I stopped taking my bimonthly testosterone injections.. . . My body regulated itself after about four months, and I didn’t have to take any exogenous estrogen, progesterone, or fertility drugs to aid my pregnancy.. . . [W]e are proud to announce that this pregnancy is free of complications and our baby girl has a clean bill of health. We are happily awaiting her birth, with an estimated due date of July 3, 2008. How does it feel to be a pregnant man? Incredible. Despite the fact that my belly is growing with a new life inside me, I am stable and confident being the man that I am. In a technical sense I see myself as my own surrogate, though my gender identity as male is constant. To Nancy, I am her husband carrying our child—I am so lucky to have such a loving, supportive wife. I will be my daughter’s father, and Nancy will be her mother. We will be a family (Bone 2008).

Mr. Beatie, who is considered a man in both the legal master discourse and social master discourse, gave birth to his daughter (Reuters 1998). Would the Ohio court consider Mr. Beatie to be the birth mother of his daughter? If not, would the Ohio court consider this child to lack a birth mother? The Pennsylvania court might say so. In J.F. (Beatie 2008, 15), the Pennsylvania court was charged with determining who was the legal mother of the triplets, because it did not provide for a legal mother. After eliminating the egg donor, who did not sue for legal or physical custody, and the fiancée of the sperm provider who was neither married to him nor genetically related to the offspring, the court determined that the gestational surrogate was “more a mother and a parent by her actions than by genetics” (Beatie 2008, 14–15). In arriving at this determination, the court considered that the gestational surrogate “carried [the triplets] in her womb and then gave birth to them. Her every decision prior to their birth has affected them – health, nutrition, prenatal care, etc.

9  Semiotics of Parenthood in Legal Perspective…

179

In addition, she has not terminated any parental rights she may have …” (Beatie 2008, 15). Although the court uses gender-specific, feminine pronouns to refer to the gestational surrogate, the court does not explicitly state that the surrogate’s gender was a factor in declaring her to be their legal parent. Even setting aside the phenomenon of transgender-ism, reliance upon the concepts, or sub-level terms, of sex and gender as factors upon which to determine maternity or paternity, reflects the common social master discourse assertion that there are only two sexes, and each person is either one sex or the other. This assertion is belied by the scientific social discourse, which, using technology, has identified the existence of XX/XY chromosome babies, who were fraternal twins who fused into one, dual-sex human being (Weil 2006). “Intersexed” people, formerly referred to as hermaphrodites, also dispel the myth that biological sex is dichotomous (Eunice Kennedy Shriver National Institute of Child Health and Human Development 2007). Klinfelter’s Syndrome (Unattributed 2008) also called XXY Syndrome, XYY Syndrome, and XXX Syndrome each belie the myth that “manhood” and “woman-hood” are medically determined by XY/XX chromosomes (Connor 2008). In addition, recent technological advances have created the potential for “cloned” children to have three genetic parents (Jacob v. Schultz-Jacob 2007). Pennsylvania law is actually ahead of this development with its ruling in Jacob v. Schultz-Jacob (Department of Health & Human Tissues and Embryos Bill Team 2008) in which it determined that a child can simultaneously have three legal parents, but this holding alone will not be enough to establish the rights of Pennsylvania’s children in the future. The legal master discourse in the United Kingdom is grappling with what legal identity to bestow upon human-animal hybrid chimeras. The United Kingdom Department of Health recently rescinded its ban on the fusing of humans with other species, in its Human Fertilisation and Embryology Act of 2008 (Duncan 2007a). Although the intention is to use these embryos to conduct research, a social master discourse of Christianity relates to embryos as babies. In an extension of this shared interpretation, Catholic Bishops of England and Wales have advocated to the British Parliament that humananimal hybrid embryos be implanted in women, gestated to term, and given all of the rights accorded to 100% human beings (Duncan 2007b). Despite the reticence of the United States’ legal master discourse to preemptively address this specific issue (www. technologyreview.com/blog/duncan/17608) no law prevents U.S. citizens from conceiving hybrid offspring in a foreign jurisdiction, and raising the offspring within the United States. The recent Pennsylvania child support cases discussed above suggest that the hybrid human-chicken children will come home to roost.

9.8 Bridge the Gap Having firmly identified a tension, or gap, between the legal master discourse and the social master discourse, the next step is to propose a bridge to that gap that favors one’s client. This bridge could be a new framework for viewing the issue, or

180

M.L. Wirth

a proposed change in policy or practice. The issues that are inextricably woven into the facts and lines of analysis in Ferguson prompt many questions. Does the individual’s liberty rights to choose with whom to procreate and with whom to raise a child grant a right to contract-away the child’s claim right to support? Does a child have a right to support? Upon what is a child’s claim right to support based? Who is obligated to support a child, and upon what is that obligation based? Does a child’s right to support depend on the financial status of those parties who are the “but-for cause” or the “proximate cause” of its conception? If so, do these evaluations extend to the genetic contributors? Does the obligation extend to the people who contract for the creation of the child? Will the obligation extend to the clinic that facilitated the conception?

References Balkin, J.M. 1986. The Hohfeldian approach to law and semiotics. University of Miami Law Review 44: 1119–1136. Barry, M.F. 1999. The pig farmer’s daughter. New York: Random House/Knopf. Beatie, Thomas. 2008. Labor of love: Is society ready for this pregnant husband? The Advocate. http://www.advocate.com/issue_story_ektid52664.asp. Accessed 15 August 2008. Blackstone, Sir William. 1793. Commentaries on the laws of England, in four books, vol. 3. London: A. Strahan & W. Woodfall. Blackstone, Sir William, and William Draper Lewis. 1832. Commentaries on the laws of England: in four books, Books 1–2. Book 1. New York/London: W. E. Dean. Bone, James. 2008. Pregnant man Thomas Beatie gives birth to baby girl. Times Online. http:// www.timesonline.co.uk/tol/news/world/us_and_americas/article4265368.ece. Accessed 15 August 2008. Bostrom, M. 2005. When facts don’t fit the frame. Washington, DC: FrameWorks Institute. Brown v. Board of Education, 347 U.S. 483 (1954). Chandler, Daniel. 2001. Semiotics for beginners. www.aber.ac.uk/media/Documents/S4B/sem01. html. Accessed 15 August 2008. Child Welfare Information Gateway. 2007. Grounds for involuntary termination of parental rights. www.childwelfare.gov/systemwide/laws_policies/statutes/groundtermin.cfm. Accessed 3 January 2011. Connor, Steve. 2008. Now we have the technology that can make a cloned child. The Independent. http://www.independent.co.uk/news/science/now-we-have-the-technology-that-can-make-acloned-child-808625.html. Accessed 15 August 2008. Constitutional Convention. 1787. The United States Constitution. http://www.archives.gov/exhibits/ charters/constitution_transcript.html. Accessed 17 November 2008. Department of Health, Human Tissues and Embryos Bill Team. 2008. Human Fertilisation and Embryology Act 2008. [United Kingdom] Department of Health. http://www.dh.gov.uk/en/ Publicationsandstatistics/Legislation/Actsandbills/DH_080211. Accessed 31 December 2010. Duncan, David Ewing. 2007a. Are chimeras people too? Massachusetts Institute of Technology, Technology Review. http://www.technologyreview.com/blog/duncan/17632/. Accessed 15 August 2008. Duncan, David Ewing. 2007b. Can centaurs and talking pigs be far behind? Massachusetts Institute of Technology, Technology Review. http://www.technologyreview.com/blog/ duncan/17608/. Accessed 15 August 2008. Emerson, R.W. 1911. Journals of Ralph Waldo Emerson, 1820–1872, vol. 5. Boston/New York: Houston Mifflin Company.

9  Semiotics of Parenthood in Legal Perspective…

181

Eunice Kennedy Shriver National Institute of Child Health and Human Development. 2007. [United States of America] National Institutes of Health. http://www.nichd.nih.gov/health/ topics/klinefelter_syndrome.cfm. Accessed 15 August 2008. Fass, Sarah and Cauthen, Nancy K. 1997. Who are America’s poor children? National Center for Children in Poverty at Columbia University Mailman School of Public Health. http://www. nccp.org/publications/pub_787.html. Accessed 15 August 2008. Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2008). Findlaw. 2010. Development of the Juvenile justice system. http://criminal.findlaw.com/crimes/ juvenile-justice/development-of-the-juvenile-justice-system.html. Accessed 3 January 2011. Fontain v. Ravenel, 58 U.S. 369, 393 (1854). Gould, S.J. 1997. Full house. New York: Three Rivers Press. Harper, Douglas. 2001. Negro. Dictionary.com/Online Etymology Dictionary. http://dictionary. reference.com/browse/negro. Accessed 15 August 2008. Heller, Erich. 1971. The disinherited mind: Essays in modern German literature and thought. Cambridge: Bowes & Bowes. Jacob v. Schultz-Jacob, 923 A.2d 473 (Pa. Super. 2007). Johnson v. Superior Court of Los Angeles County, 80 Cal. App. 4th 1050. Kesler v. Weniger, 744 A.2d 794 (Pa. Super. 2000). Lawyers.com. Waiving child support. 2010. Martindale-Hubbell/Lexis-Nexis. http://family-law. lawyers.com/child-support/Waiving-Child-Support.html. Accessed 3 January 2010. Miller, Patricia G. 1993a. The worst of times. New York: Aaron Asher Books/HarperCollins. Miller, Patricia G. 1993b. The worst of times – underground abortions: A patient, doctor, abortionist, and detective tell their stories. Psychology Today. http://psychologytoday.com/articles/pto19930501-000030.html. Accessed 15 August 2008. National Adoption Center. 2010. How to adopt a child. http://www.adopt.org/assembled/ overview_howto.html. Accessed 3 January 2011. National Orphan Train Complex. Frequently asked questions. http://www.orphantraindepot.com/ FrequentlyAskedQuestions.html. Accessed 3 January 2011. O’Conner, Sandra Day. 2003. Liberty Medal Acceptance Speech. National Constitution Center. http:// constitutioncenter.org/libertymedal/recipient_2003_speech.html. Accessed 15 August 2008. Plessy v. Fergusen, 163 U.S. 537 (1896). “prerogative.” Merriam-Webster online dictionary. 2010. Merriam-Webster Online. http://www. merriam-webster.com/dictionary/prerogative. Accessed 18 June 2010. Rains, Robert E. 2008. What the Erie “surrogate triplets” can teach state legislatures about the need to enact Article 8 of the Uniform Parentage Act (2000). Cleveland State Law Review 56(1): 2–33. Reuters. 1998. In vitro fertilization results in Chimera. Personal MD. http://www.personalmd.com/ news/a1998011413.shtml. Accessed 15 August 2008. Scheurman, Dan. Lost children: Riders on the orphan train. Humanities, November/December 2007, Volume 28/Number 6. http://www.neh.gov/news/humanities/2007-11/Orphan_Train.html. Accessed 3 Jan 2011. Trustees of Philadelphia Baptist Ass’n v. Hart’s Executors, 17 U.S. 1, 47–8 (1819) citing Cooper’s Eq.Pl. 27. Unattributed. Timeline: Civil Rights Era (1954–1971). PBS/African American World. http://www. pbs.org/wnet/aaworld/timeline/civil_01.html. Accessed 15 August 2008. Unattributed. 1997–2008. Identigene® DNA Testing Center. http://www.dnatesting.com/paternity/ stores.php. Accessed 15 August 2008. Unattributed. 2003. Home page. Pittsburgh Cryobank, Inc. http://www.pittsburghcryobank.com/ index.html/. Accessed 15 August 2008. Unattributed. 2005a. Chicken or the egg. Wikipedia. http://en.wikipedia.org/wiki/Chicken-andegg_problem. Accessed 15 August 2008. Unattributed. 2005b. Sperm anonymity ends. BBC News. http://news.bbc.co.uk/2/hi/health/4397249. stm. Accessed 15 August 2008. Unattributed. 2008. Welcome to KS&A. Kleinfelter Syndrome & Associates, Inc. http://www. genetic.org/. Accessed 15 August 2008.

182

M.L. Wirth

Von Pufendorf, Samuel. 1682. The two books on the duty of man and citizen according to the natural law. Book 1. (trans: Frank Gardner Moor). Reprinted 1964. New York, London: Oceana Publications, Inc. http://www.constitution.org/puf/puf-dut.htm. Accessed 3 January 2011. Weil, Elizabeth. 2006. What if it’s (sort of) a boy and (sort of) a girl? The New York Times Magazine. http://www.nytimes.com/2006/09/24/magazine/24intersexkids.html. Accessed 15 August 2008. Wells, M.L., and T.A. Eaton. 2002. Constitutional remedies. Westport: Greenwood Publishing Group. West Publishing Co. 1914. Judicial and statutory definitions of words and phrases. St. Paul: West Publishing. White, J.B. 1990. Justice as translation. Chicago: University of Chicago Press. Woolf, Marie. 2006. Sperm. The Independent. www.independent.co.uk/news/uk/politics/ban-onthe-sale-of-fresh-sperm-over-the-internet-413563.html. Accessed 17 November 2008.

Chapter 10

Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised in Legal Thought Jeffrey A. Ellsworth

10.1 Introduction: The Problem “Semiotics can be … readily adapted to understanding politics and ideology as they are expressed in and disguised in legal thought” (Balkin 1989, 1120). This statement, by Jack Balkin, shall be applied to the case of Michael H. v. Gerald D. (1989), which upheld the constitutionality of section  621 of the California Evidence Code: § 621. Child of the marriage; notice of motion for blood tests (a) Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclusions of all the experts, as disclosed by the evidence based upon blood tests performed pursuant to Chapter 2 (commencing with Section 890) of Division 7 are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. (c) The notice of motion for blood tests under subdivision (b) may be raised by the husband not later than two years from the child’s date of birth. (d) The notice of motion for blood tests under subdivision (b) may be raised by the mother of the child not later than two years from the child’s date of birth if the child’s biological father has filed an affidavit with the court acknowledging paternity of the child. (e) The provisions of subdivision (b) shall not apply to any case coming within the provisions of Section 7005 of the Civil Code [dealing with artificial insemination] or to any case in which the wife, with the consent of the husband, conceived by means of a surgical procedure (Beckerman et al. 1998, 117/118).

The plurality found that the state’s interests in protecting the child and protecting the institution of marriage outweighed any interest either the biological father or child had in maintaining a familial relationship with each other. However, the ideology J.A. Ellsworth (*) JD, LLM, Ass. Public Defender St Lawrence Cty, NY, USA e-mail: [email protected]

J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_10, © Springer Science+Business Media B.V. 2011

183

184

J.A. Ellsworth

motivating the court’s decision is often obscured in legal language and, therefore, this paper will attempt to reach the deeper meaning of the decision using a variety of semiotic approaches, and will proceed by laying out the facts of the case, explaining the legal reasoning of the different opinions and then exploring the deeper meaning behind what is communicated in those opinions.

10.2 The Facts “After several months of living and traveling together” (Brief for Appellee, Michael H. v. Gerald D. 1989, 4), Gerald and Carole were married on May 9, 1976, in Las Vegas, Nevada. Carole D., an international model, and Gerald D., a top executive at a French oil company, established a marital home in Playa del Rey, California (Michael H. v. Gerald D. 1989, 113). Michael H., a neighbor, had an affair with Carole from the summer of 1978 through mid-September 1980 (Brief for Appellant Victoria D and Michael H. v. Gerald D. 1989). Victoria D. was born to Carole on May 11, 1981; Gerald was listed as the father on the birth certificate. Gerald proudly held Victoria out to the world as his daughter. Shortly after Victoria was born, Carole informed Michael that she believed Victoria was his daughter (Michael H. v. Gerald D. 1989, 113–114). Carole often pursued other interests, thereby leaving Gerald solely responsible for taking care of Victoria (Brief for Appellee, Michael H. v. Gerald D. 1989, 5). In October 1981, Gerald’s work required him to relocate to New York City. Carole, with Victoria, chose to remain in California (Michael H. v. Gerald D. 1989, 114–115). Carole and Michael had blood tests done, within the month, to establish Michael’s paternity; the tests established a 98.07% probability that Michael is Victoria’s father. Carole and Victoria resided with Michael in St. Thomas for 3 months in 1982; and there Michael held Victoria out to the world as his daughter. Thereafter, Carole left Michael, taking Victoria with her, and moved in with another man, Scott, back in California. Over the next several months, Carole and Victoria did occasionally spend time with Gerald, including a vacation in Europe, before returning to Scott. In November 1982, Michael filed suit for visitation rights because Carole had refused to let him see Victoria. The court appointed a guardian ad litem to represent Victoria. During most of this period, Carole was living with Gerald, but then, while the litigation was still pending, Carole returned to Michael and they lived together intermittently for the next 8 months. Then, in April 1984, Carole signed a stipulation that Michael was Victoria’s father, but, Carole left Michael again and refused to have it filed with the court. Carole thereafter reconciled with Gerald in June 1984 and moved to New York (Michael H. v. Gerald D. 1989, 114–115). Throughout Victoria’s life, when Carole would leave Michael, he frequently sent money to Carole helping to support her and Victoria (Michael H. v. Gerald D. 1987, 1001 n.2). Additionally, Victoria grew up calling Michael “Daddy” and Gerald “Poppa” (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 28).

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

185

Again seeking visitation rights, Michael and Victoria, through her guardian ad litem, resumed litigation in May 1984. The court ordered a psychologist, Dr. Stone, to evaluate Victoria, Gerald, Michael and Carole (Michael H. v. Gerald D. 1989, 114–115). Dr. Stone concluded that Michael should be allowed structured visitation because Victoria would be harmed if he were removed from her life (Michael H. v. Gerald D. 1987, 1001). Dr. Stone felt that Michael was the “single adult in Victoria’s life most committed to caring for her needs on a long-term basis”. Dr. Stone also found that Michael exhibited signs that are characteristic of parents that engage in incestuous relationships with their children, although he found no evidence of any such sexual contact (Michael H. v. Gerald D. 1987, 1002). Of Carole, Dr. Stone concluded that she “was child-like and had a limited capacity to be intimate or selfsacrificing to the degree which normally characterizes relationships between parents and children and between spouses” (p. 1002 in Michael H. v. Gerald D. 1987). Dr. Stone found Gerald to be kind, intelligent, and capable of being a fine parent (Michael H. v. Gerald D. 1987, 1002). Gerald then moved for summary judgment in October 1984, because, under California Evidence Code Section 621, Gerald was presumed to be Victoria’s father and Michael had no standing to challenge the presumption. In fact, only the presumptive father or biological mother (if the biological father has acknowledged paternity) can challenge the presumption and then only during the first 2 years of the child’s life. Gerald’s motion for summary judgment was granted by the Superior Court (Michael H. v. Gerald D. 1989, 115). Michael and Victoria, challenging the validity of Section  621 on constitutional grounds, appealed to the California Court of Appeal, which affirmed, and then to the United States Supreme Court, which likewise affirmed.

10.3 Legal Thought Michael H., at the Supreme Court level, resulted in a plurality opinion and generated two concurring and two dissenting opinions putting forth divergent views of the case. Michael raised multiple Due Process claims and Victoria raised both Due Process and Equal Protection claims. The various opinions mainly focus on Michael’s substantive due process claim. California has Sufficient Interest

Justice Stevens & California Court of Appeal

Dissents

Plurality

Michael has No Protected Liberty Interest

Michael has Protected Liberty Interest

Nobody

California has Insufficient Interest

186

J.A. Ellsworth

The above Greimasian square demonstrates the various positions taken concerning Michael’s interest in retaining a familial connection with Victoria and the state of California’s interest in curtailing any such relationship by use of Section  621. If Michael has a protected liberty interest and California has a sufficient interest to curtail Michael’s interest then California must provide Michael with appropriate process in terminating that relationship; however, if Michael does not have a protected liberty interest and California has a sufficient liberty interest then California can curtail Michael and Victoria’s relationship with less process. Finally, if Michael has a protected liberty interest and California does not have a sufficient state interest then no amount of process will allow the state to curtail Michael’s relationship with Victoria.

10.3.1 Plurality—Scalia, Joined by Rehnquist, O’Connor and Kennedy The plurality (Justices O’Connor and Kennedy join in all of the plurality opinion except footnote 6 which concerns the plurality’s historical traditions methodology) found that Michael challenged the constitutionality of section 621 on two grounds. First, a procedural due process claim that the plurality concluded failed because section 621 is a substantive rule of law (Michael H. v. Gerald D 1989, 119–120). The conclusive presumption is actually a substantive rule of law based upon a determination by the Legislature as a matter of overriding social policy, that given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and that the integrity of the family unit should not be impugned (Michael H. v. Gerald D. 1989, idem).

Second, Michael averred a substantive due process violation, which required the court to determine if Michael had a protected liberty interest (Michael H. v. Gerald D. 1989, 121). In an attempt to limit and guide the interpretation of the [Due Process] Clause, [the Supreme Court has] insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ … but also that it be an interest traditionally protected by [American] society. As [the Supreme Court] has put it, the Due Process Clause affords only those protections so rooted in the traditions and conscience of [the American] people as to be ranked as fundamental. [Supreme Court] cases reflect continual insistence upon respect for the teachings of history and solid recognition of the basic values that underlie [American] society (Michael H. v. Gerald D. 1989, 122–123, internal citations omitted). Michael reads [Supreme Court precedent] as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship … [however the plurality views them as] rest[ing] not upon such isolated factors but upon the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family (Michael H. v. Gerald D. 1989, 123).

“The family unity accorded traditional respect in [American] society, which [the Supreme Court has] referred to as the ‘unitary family,’ is typified, of course, by the marital family, but also includes the household of unmarried parents and their children” (Michael H. v. Gerald D. 1989, 123). However, although the plurality

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

187

found that an unmarried couple living together with their children could constitute a unitary family, they also concluded that there is a longstanding common law tradition protecting children born into a marital family from being declared illegitimate (Michael H. v. Gerald D. 1989, 125). Furthermore, the plurality concluded that it was not simply being declared Victoria’s father that Michael sought, but also the awarding of parental rights. The plurality, therefore, held that not only would Michael need to establish a societal tradition of declaring adulterous putative biological fathers to be the legal father over the presumptive marital father but, in addition, that they were, likewise, given substantive parental rights. Neither of which Michael established (Michael H. v. Gerald D. 1989, 126–127). Therefore, both of Michael’s claims failed. Victoria, in the first instance, maintained that both Michael and Gerald should be proclaimed as her fathers as they are both willing to take up that mantle, and in the alternative Victoria avers that Michael should be declared her father, and Gerald named to a different status (i.e. step-father) (Michael H. v. Gerald D. 1989, 130–121). However, the plurality held that “the claim that a State must recognize multiple fatherhood has no support in the history or traditions of this country” (Michael H. v. Gerald D. 1989, 131). Therefore, Victoria’s first claim failed. The plurality found Victoria’s alternative theory to be the inverse of Michael’s second claim and it, therefore, failed for the same reasons. Finally, Victoria raised an equal protection claim, averring that she was being discriminated against based on her illegitimacy. However, the plurality concluded that illegitimacy is a legal characteristic, not a natural trait, and that under California law Victoria is legitimate, and, therefore, Victoria could not be discriminated against based on legitimacy (Michael H. v. Gerald D. 1989, 131).

10.3.2 Concurrence—O’Connor, Joined by Kennedy Justice O’Connor’s concurrence provides a caution to the plurality and dissents from footnote six of the plurality opinion, stating: [The plurality] sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with [the Supreme Court’s] past decisions in this area … On occasion the [Supreme] Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be ‘the most specific level’ available … I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis (Michael H. v. Gerald D. 1989, 132, internal citations omitted).

Here, Justice O’Connor is weighing in on a disagreement between the plurality and Justice Brennan’s dissent. Justice Brennan insists that the court, when looking for traditional protections, should consider whether paternity in general has historically received protection instead of specifically considering issues such as adultery (Michael H. v. Gerald D. 1989, 139). Whereas, the plurality vehemently maintains that the tradition should be investigated with the greatest level of specificity and, therefore, the court should consider whether adulterous unwed biological fathers

188

J.A. Ellsworth

have traditionally been afforded protection (Michael H. v. Gerald D. 1989, 127). Justice O’Connor held that the plurality’s conclusion that the greatest level of specificity must be used is inconsistent with the Supreme Court’s prior precedents.

10.3.3 Concurrence—Stevens Justice Stevens found that “enduring ‘family’ relationships may develop in unconventional settings,” and, therefore, it is possible for a father in Michael’s situation to have a protected liberty interest in his child; and, for the purposes of the present case, Justice Stevens assumed such a liberty interest existed (Michael H. v. Gerald D. 1989, 133). However, Justice Stevens concluded that the Due Process Clause was satisfied in this situation, because, although Michael was denied being declared Victoria’s father, he could still seek visitation rights as another “person having an interest in the welfare of the child” under California law (Michael H. v. Gerald D. 1989, 133–135). However, this is an interpretation of California law that both the plurality and the dissent find completely inconsistent with California precedent (Michael H. v. Gerald D. 1989, 119, 148 n.6, 149).

10.3.4 Dissent—Brennan, Joined by Marshall and Blackmun Justice Brennan concluded that Supreme Court precedents reveal that an unwed father can have a constitutionally protected interest in his children. [A]lthough an unwed father’s biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he acts as a father toward his children (Michael H. v. Gerald D. 1989, 142).

From this Justice Brennan concluded that “Michael H. is almost certainly Victoria D.’s natural father, has lived with her as her father, has contributed to her support, and has from the beginning sought to strengthen and maintain his relationship with her” and therefore “Michael should prevail” (Michael H. v. Gerald D. 1989, 143). From this reasoning, the plurality concludes that Justice Brennan would likewise find a constitutional liberty interest for a rapist in his child begotten by rape. (Michael H., 491 U.S. at 124 n. 4, plurality opinion). However, the plurality does not seem to consider that rape can occur within a marriage and by the plurality’s reasoning this would allow a rapist to have rights to his child even if he has never had contact with the child. Whereas, from Justice Brennan’s reasoning the child would have needed to form a psychological bond with the rapist, lived with him, and been financially supported by him.

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

189

10.4 Dissent—White, Joined by Brennan Justice White concluded that: “The basic principle enunciated in the [Supreme Court’s] unwed father cases is that an unwed father who has demonstrated a sufficient commitment to his paternity by way of personal, financial, or custodial responsibilities has a protected liberty interest in a relationship with his child” (Michael H. v. Gerald D. 1989, 157–158): Michael H. is not a father unwilling to assume his responsibilities as a parent. To the contrary he is a father who asserted his interests in raising and providing for his child since the very time of the child’s birth … Michael had begun to develop a relationship with his daughter. There is no dispute on this point. Michael contributed to the child’s support. Michael and Victoria lived together (albeit intermittently, given Carole’s itinerant lifestyle). There is a personal and emotional relationship between Michael and Victoria, who grew up calling him ‘Daddy.’ Michael held Victoria out as his daughter and contributed to the child’s financial support … The mother has never denied, and indeed has admitted, that Michael is Victoria’s father … When an unwed father demonstrates a full commitment to the responsibilities of parenthood coming forward to participate in the rearing of his child … his interest in personal contact with his child acquires substantial protection under the Due Process Clause (Michael H. v. Gerald D. 1989, 159–160) . California law not only deprives Michael of a legal parent-child relationship with his daughter Victoria but even denies him the opportunity to introduce blood-evidence to rebut the demonstrable fiction that Gerald is Victoria’s father … [the plurality] gives its blessing to § 621 by relying on the State’s asserted interests in the integrity of the family (defined as Carole and Gerald) and in protecting Victoria from the stigma of illegitimacy and by balancing away Michael’s interest in establishing that he is the father of the child (Michael H. v. Gerald D. 1989, 160–161).

Therefore, section 621 is unconstitutional and Michael should prevail (Michael H. v. Gerald D. 1989, 162–163).

10.5 Dissent Critiques Plurality Justice Brennan criticizes the plurality’s use of a historical tradition analysis to determine if Michael had a protected liberty interest, stating: ‘[L]iberty’ and ‘property’ are broad and majestic terms. They are among the great constitutional concepts purposely left to gather meaning from experience. They relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged (Michael H. v. Gerald D. 1989, 138).

Justice Brennan also attacks the plurality for being too specific in looking only to see if the rights of adulterous putative fathers have traditionally been protected instead of looking to paternity in general. Justice Brennan stated: If [the Supreme Court] had looked to tradition with such specificity in past cases, many a decision would have reached a different result. Surely the use of contraceptives by unmarried couples, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), or

190

J.A. Ellsworth

even by married couples, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); the freedom from corporal punishment in schools, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); the freedom from an arbitrary transfer from a prison to a psychiatric institution, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L. Ed.2d 552 (1980); and even the right to raise one’s natural but illegitimate children, Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), were not interests traditionally protected by our society at the time of their consideration by [the Supreme Court] (Michael H. v. Gerald D. 1989, 139).

Justice Brennan accuses the plurality of limiting the role of the Supreme Court to discerning societal views and turning the Due Process Clause into a redundancy that only protects interests “already protected by a majority of the States” (Michael H. v. Gerald D. 1989, 140–141). Additionally, Justice White argues that the proper focus for the court’s analysis should be “on the relationship between father and child, not on the relationship between father and mother” (Michael H. v. Gerald D. 1989, 160). Justice Brennan also critiques the plurality’s method, accusing them of conflating the analysis. The proper analysis is to first determine if there is a protected liberty interest and then second consider the State’s interest in limiting the procedures used to deprive the individual of his protected liberty interest. The plurality’s opinion, by focusing on the State’s interests, has resulted in the individual’s interests depending on the state interest and also varies with the condition of Carole and Gerald’s relationship. The plurality emphasizes that Carole and Gerald are married and wish to raise Victoria as their offspring; therefore, Michael has no protected liberty interest. What happens when Carole leaves or divorces Gerald, or Gerald dies? Whether a person has a protected liberty interest should not be governed by the choices of others or changing state’s interests. Therefore, the plurality, in order to reach their conclusion, should have found Michael to have a protected liberty interest and that the State’s interests were compelling and the procedure sufficient in curtailing Michael’s liberty interest (Michael H. v. Gerald D. 1989, 145–147). Justice Brennan also critiques the plurality for confusing the purpose of Michael’s constitutional challenge. Michael was not seeking for the court to grant him parental rights, as the plurality claims, but simply wished to have section  621 declared unconstitutional because it prevented him from even having a hearing to attempt to get parental rights. The plurality seems to maintain that, in order to win his case, Michael must show that he would be successful at a hearing that determines whether it would be in the best interests of the child for him to have visitation rights in order to be able to win his current case in which he is trying to win standing to have such a hearing (Michael H. v. Gerald D. 1989, 147).

10.6 Politics and Ideology Often, jurists will attempt to further their political and ideological views while, at the same time, obscuring these views behind of curtain of legal reasoning. Simply understanding the legal reasoning of the various opinions, discussed above, is insufficient to have a meaningful grasp of the true motivating factors behind the opinions. Obviously,

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

191

if such competent jurists can reach such vastly differing views through their legal reasoning then something else is likely driving their conclusions with the legal reasoning set up to match. Here, these motivating factors, behind the plurality’s opinion, Justice Steven’s concurrence, and the lower court opinions, will be analyzed.

10.6.1 Protecting the Child All the opinions in favor of section 621 maintain that the court is acting to protect the welfare of the child, a most noble sentiment, however, it will be argued below that in reality they are trying to ensure that the child grows up with a worldview and sense of society that they find acceptable and, further, that the protection is for the adults not the child, protection that is, in fact, detrimental to the child in this case.

10.6.2 Illegitimacy The California Court of Appeal found that: “On this record, the significant interest of the state in protecting the welfare of Victoria D. is best served by upholding the conclusive presumption that Gerald D. is her legal father,” (Michael H. v. Gerald D. 1987, 1009) because “the rule protects the innocent child from the social stigma of illegitimacy” (Michael H. v. Gerald D. 1987, 1005). The California Court of Appeal’s concern for naming a child illegitimate has a potent historical basis. Traditionally, a child born of an adulterous relationship was treated the same as a child born out of wedlock and was considered fillius nullius, “the son of no one” (Silber 1992, 159). The parents were not required to support such a child. Additionally, the child had no rights of inheritance from either parent (Loconto 1992, 81–83). And the child would be unable to create heirs when they reached adulthood (Rogers 2001–2002, 1152–1153). “The common law severely burdened the illegitimate child, imposing harsh results on the child as punishment of the parents’ actions” (C.C. v. A.B. 1990). Let us not forget, that “punishment” does not refer in this context, as it normally would in law, to criminal behavior, but instead to non-criminal behavior that is still seen as unwanted, and, this “punishment” places a person in a worse position in an attempt to alter societal behaviors. The presumption of paternity, known as Lord Mansfield’s Rule (Loconto 1992, 81–83) was a judicial doctrine created in the sixteenth century English common law in an attempt to protect children from being declared illegitimate. Therefore, a child born to a mother who was married was presumed to be the child of the husband (Rogers 2001–2002, 1152–1153). Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had had no access to his wife during the relevant period. As explained by Blackstone, non-access could only be proved ‘if the husband be out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria [beyond the four

192

J.A. Ellsworth

seas]) for above nine months.’ And, under the common law both in England and [the United States], ‘neither husband nor wife [could] be a witness to prove access or non-access.’ The primary policy rationale underlying the common law’s severe restrictions on rebuttal of the presumption appears to have been an aversion to declaring children illegitimate, thereby depriving them of rights of inheritance and succession, and likely making them wards of the state (Michael H. v. Gerald D. 1989, 124–125, internal citations omitted).

However, California’s adoption of the Uniform Parentage Act “rendered illegitimacy to be without any legal effect” (Michael H. v. Gerald D. 1987, 1010). This is why the California Court of Appeal based their concern on “social stigma” and not legal consequences; however, the United States Supreme Court has previously stated that social prejudices and the possible injuries they might inflict on a child are not permissible considerations in child custody cases. Specifically, the Supreme Court stated: “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect” (Palmore v. Sidoti 1984). Furthermore, even if social stigma was a valid consideration, Justice White calls into question the strength of that stigma currently, stating: The interest in protecting a child from the social stigma of illegitimacy lacks any real connection to the facts of a case where a father is seeking to establish, rather than repudiate, paternity … It may be true that a child conceived in an extramarital relationship would be considered a ‘bastard’ in the literal sense of the word, but whatever stigma remains in today’s society is far less compelling in the context of a child of a married mother, especially when there is a father asserting paternity and seeking a relationship with his child. It is hardly rare in this world of divorce and remarriage for a child to live with the ‘father’ to whom her mother is married, and still have a relationship with her biological father (Michael H. v. Gerald D. 1989, 161–162). Biological Father

Plurality - Michael

Dissent - Michael

Legal Father

Not Legal Father

Dissent - Gerald

Plurality - Gerald

Not Biological Father

The above Greimasian square visually demonstrates the relationship between the concepts of “biological” fatherhood and “legal” fatherhood as applied in this case placing the opinion and the person they hold represents that combination of fatherhoods in the appropriate places. Utilizing a Peircean analysis, the sign is the plurality’s discussion of the history of the treatment of illegitimacy combined with their statement that Victoria, under California law, is legitimate, while at the same time the plurality staunchly refrains from mentioning the current treatment of illegitimacy, either legal or social (in fact, the plurality states that determining current social attitudes is irrelevant to the case (Michael H. v. Gerald D. 1989, 127), or stating that section 621 functions to protect

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

193

a child from being declared illegitimate. The object, through which the sign must be interpreted, is the combined views expressed in the lower court opinions, the briefs filed with the court and the dissenting opinions, all of which the plurality was considering when the opinion was written. All of these claim that protecting a child from being declared illegitimate is a major function of section 621, a fact that the briefs for appellants and the dissenting opinions harshly criticize. Therefore, the interpretant of the sign reveals that the plurality really intended to protect Victoria from being declared illegitimate but was clearly aware that to do so in a translucent manner would leave them vulnerable and so accomplished it with more subtle and obscure devices.

10.6.3 Multiple Fathers When Victoria, through her guardian ad litem, averred that Michael and Gerald should be named as her fathers, the plurality responded: “California law, like nature itself, makes no provision for dual fatherhood” (Michael H. v. Gerald D. 1989, 188). However, the plurality is mistaken in its characterization of nature, because “a substantial number of societies appear to go to some lengths to confuse the issue of paternity … hold[ing] that it is possible to have several biological fathers, … [t]he woman’s husband, if he cohabited with her during pregnancy, is usually considered the primary biological father. The lovers are secondary fathers” (Beckerman et al. 1998, 164). Therefore, it is not necessarily natural for a person to only have one father, but, instead a cultural phenomenon that happens to match biological reality, but, as the plurality has previously stressed the difference between a biological father and a legal father, it seems that biological reality need not match societal structures. Furthermore, Justice Brennan concluded that: [America is] not an assimilative, homogenous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellent practice because the same tolerant impulse protects our own idiosyncrasies. Even if we can agree, therefore, that ‘family’ and ‘parenthood’ are part of the good life; it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do (Beckerman et al. 1998, 164).

Finally, the plurality’s invocation of natural law is suspect because natural law theory has been thoroughly intertwined with religious precepts throughout history and frequently natural law is relied on either to promote religious views or personal biases (Lin 1999, 753–755). Additionally, Justice Stevens, in his concurring opinion, quoted approvingly from the trial judge, who stated: “The Court believes that the existence of two (2) ‘fathers’ as male authority figures will confuse the child and be counter-productive to her best interests” (Lin 1999, 135). [However, v]igorous debate rages over how a child develops, what is in a child’s best interests, and how to achieve certain objectives on behalf of a child. Near consensus does exist, however, for the principle that a child’s health growth depends in large part upon the continuity

194

J.A. Ellsworth

of his personal relationships. When divorce, death of a parent, foster care, or adoption intrude on a child’s family life, such continuity is inevitably interrupted. Although some children may not experience lasting emotional or social harm from them eventually, it seems reasonable to adopt as an operating principle the notion that a break in family continuity is detrimental to a child (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 21). [Therefore, t]he child’s need for continuity in intimate relationships demands that the state provide the opportunity to maintain important familial relationships with more than one parent or (sets of parents) … Current research demonstrates that even if nuclear families are best for children, when children form parental relationships outside of the nuclear family they often lose more from the law’s enforcement of exclusive parental relationships than they gain (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 25).

Here, Dr. Stone found that no matter which custodial arrangement was adopted Victoria “‘would be predisposed to future emotional and social problems.’ Dr. Stone found that Victoria was attached ‘principally and equally’ to Michael and Carole. He concluded that ‘it is important for Victoria that [Michael] be permitted to remain a member of her family’” (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 12–13). The situation would potentially be very different if Carole had not allowed Michael and Victoria to form a psychological bond, but, once established such a psychological bond must be taken into consideration. Furthermore, the confusion the court is concerned about is unclear in a society where stepfathers are common and since section 621 only establishes legal paternity and not biological paternity, what would confuse Victoria? The confusion is actually the adult’s discomfort, just as the protection is not for the child but for the husband and wife.

10.7 What Is Family? Throughout the opinion the plurality maintained that it is the function of section 621 to protect the family and that such protection is allowed under the Constitution. However, when the plurality refers to “family” what exactly do they mean? Black’s Law Dictionary defines family as: “(1) A group of persons connected by blood, by affinity, or by law, esp. within two or three generations. (2) A group consisting of parents and their children. (3) A group of persons who live together, and have a shared commitment to a domestic relationship” (Black’s Law Dictionary 637 2004). Nowhere does this definition mention marriage, the reference to ‘by law” may allude to marriage but could as easily speak to other relationships as well, similarly, the phrase ‘shared commitment to domestic relationship’ might refer to marriage but not necessarily. However, Justice Brennan reasons that although the plurality maintains that marriage is not dispositive for finding a family, they cannot mean it, because “Michael, Victoria, and Carole did live together as a family; that is, they shared the same household, Victoria called Michael ‘Daddy,’ Michael contributed to Victoria’s support, and he is eager to continue his relationship with her” (Michael H. v. Gerald D. 1989, 143–144). To Justice Brennan this is the “unitary family” and,

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

195

therefore, the plurality, in denying such a relationship, must base their decision solely on the presence of marriage (Michael H. v. Gerald D. 1989, 145). (Does Biological Father have an interest?) Tie to Mother

Everyone -Yes

Dissent Yes

Plurality Yes

No Tie to Child

Tie to Child

Everyone - No

No Tie to Mother

(Tie to Mother = Marriage; Tie to Child = Psychological Bond)

The above Greimasian square represents what enduring ties the various opinions hold are needed in order to find that the biological father has an interest in his child.

10.7.1 Protecting Marriage The plurality’s opinion and lower court opinions make clear that their concern is for the marital family. When it comes to California’s interest in protecting marriage, the California Court of Appeal stated: “[T]he state’s interest in preserving the integrity of the matrimonial family is so significant that it outweighs most other interests” (Michael H. v. Gerald D. 1987, 1008). The plurality provides more guidance, stating: The primary rationale underlying § 621’s limitation on those who may rebut the presumption of legitimacy is a concern that allowing persons other than the husband or wife to do so may undermine the integrity of the marital union. When the husband or wife contests the legitimacy of their child, the stability of the marriage has already been shaken. In contrast, allowing a claim of illegitimacy to be pressed by [another] may well disrupt an otherwise peaceful union (Michael H. v. Gerald D. 1989, 131, emphasis added)). [Furthermore, i]n those circumstances in which California allows a natural father to rebut the presumption of legitimacy of a child born to a married woman, e.g., where the husband is impotent or sterile, or where the husband and wife have not been cohabiting, it is more likely that the husband already knows the child is not his, and thus less likely that the paternity hearing will disrupt an otherwise harmonious and apparently exclusive marital relationship (Michael H. v. Gerald D. 1989, 120, emphasis added).

Therefore, the plurality is of the opinion that a marriage in which the wife has had an affair is a peaceful union, that has not been shaken and that it is in the best interests of the marriage for the husband not to learn of the affair because appearance and not substance is of paramount importance in a marriage. It seems that the wife has violated the integrity of the marital union long before her lover steps forward to claim his child, especially where, as here, the mother not only allowed, but encouraged her lover to form a parent-child relationship.

196

J.A. Ellsworth

Furthermore, Appellee Gerald, in his brief, attempts to bolster the state’s method of protecting marriage by stating: The fact that the marriage of Carole and Gerald has managed to withstand Michael’s claim and the enormous financial and emotional pressures imposed by this proceeding, and the fact that their marital family has flourished and grown, attests to the fact that application of the statute has served its purposes of encouraging marriage and protecting Gerald’s relationship with Victoria ( Brief for Appellee, Michael H. v. Gerald D. 1989, 24).

This is ridiculous; if anything this shows that the presumption is not necessary in order to protect the marital family. The presumption is designed to prevent the adulterous biological father from ever challenging the presumptive father’s paternity, thereby protecting the integrity and privacy of the extant marital family and thereby preserving the appearance of an exclusive marital relationship (Michael H. v. Gerald D. 1989, 120); the plurality repeatedly refers to the extant marital family, apparently viewing marriage as extant as long as no divorce has taken place considering the facts of this case. Michael H., 491 U.S. (at 1989, 127, 128). However, in this situation, Carole left Gerald for extended periods of time, living with Michael or Scott as much as she was living with her husband. Gerald has clearly been made aware that Victoria is not his biological daughter, and this litigation has kept the issue raw and in the forefront of their lives for 8 years, and has caused a great deal more financial and emotional stress than merely allowing a court to decide if it was in the best interests of Victoria for Michael to have visitation rights. Therefore, since Gerald and Carole’s marriage has not only survived but thrived since this situation began it would suggest that marriages are resilient enough to survive having honesty in the marriage and do not require protective legal fictions. This leaves the conclusion that the courts were actually attempting to achieve a different goal, and merely disguised their goal in talk of protecting marriage.

10.7.2 Encouraging Marriage The actual purpose of the plurality in upholding section 621 was not to simply protect marriage, but instead to encourage marriage. Once again utilizing a Peircean analysis, the sign this time is the plurality’s statement that: [A]lthough in some circumstances the actual relationship between father and child may suffice to create in the unwed father parental interests comparable to those of the married father, the absence of a legal tie with the mother may in such circumstances appropriately place a limit on whatever substantive constitutional claims might otherwise exist (Michael H. v. Gerald D. 1989, 129, internal citations omitted, emphasis added).

At first blush this statement, buried in the middle of the opinion amid discussion of the rights of an adulterous lover to his child born into an extant marital family does not seem to convey the idea that the court wants to coax men into getting married. However, when viewed through the object of subsequent legal scholarship,

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

197

the interpretant appears that Michael H. was simply a small piece in a larger judicial scheme to encourage men to get married (Hadek 1996–1997). One law review article in particular helps clarify the plurality’s statement; David Hadek’s Why the Policy Behind the Irrebuttable Presumption of Paternity Will Never Die, 26 Sw. U. L. R. 359 (1996–1997), considers Michael H., as well as Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcoll, 434 U.S. 246 (1978); Lehr v. Robertson, 463 U.S. 248 (1983); and Caban v. Mohammed, 441 U.S. 380 (1979), and concludes that these cases hold that a father’s rights to his children are not determined by his relationship with the child but by establishing through marriage that he has an enduring relationship with the child’s mother (Hadek 1996–1997, 369–370, 373). Hadek maintains that providing an “incentive” for fathers to marry the mother of their child (withholding all parental rights if the fathers do not comply) is a vital necessity because the “overarching concern our society has come to have with individual rights, to the detriment of the marital family, may potentially threaten the survival of our free and open society” and thereby “invite totalitarianism” (Hadek 1996–1997, 366, 395–396). Hadek maintains that: The increasing marginalization of the formal family and marriage is due in part to judicial and legislative willingness to recognize certain individual and social interests above formal marriage. These competing interests include welfare entitlements, employment rights, rights of cohabiting couples, freedom of contract, erosion of the marital privilege through adverse spousal testimony, and unilateral marriage termination (Hadek 1996–1997, 391 n.170).

Furthermore, Hadek concludes that this shift away from the formal family results in children who lack motivation, personality structure, and creativeness, who face physical health challenges, as well as, mental health challenges (Hadek 1996–1997, 392–393), including being predisposed to criminal conduct, lower intellects, mental illness, psychological disorders, suicidal tendencies, and they are more likely to abuse drugs. However, most of Hadek’s statistics are based on impoverished single-mother situations, nothing like the case presently being considered. And, furthermore, Hadek assumes that single-mothers would leap at the opportunity to marry their child’s father and lays the blame for the mother being single completely at the feet of the child’s father. Obviously, it could not be the case that the mother simply does not wish to marry the father, because what woman would not want to be married? Additionally, Hadek makes the assumption that the best way to keep children from being impoverished is for all single mothers and fathers in American society to get married and combine their earnings potential, completely disregarding the fact that there are plenty of two parent households that are impoverished or considering that perhaps American society should not encourage women to sell themselves into marriage for financial security. Finally, in regards specifically to section 621, Hadek states: This is necessary if our children are to become productive members of society and, more significantly, if our democratic society, as we know it, is to survive. Yet, these profound and compelling interests are seemingly swept aside as trivial with respect to the rights of the

198

J.A. Ellsworth

individual, be it the putative father, the child, or the unwed mother. Admittedly, these rights are important within the framework of our constitutional jurisprudence, but an interest of a higher order, or as some might say, a concept of the natural law, must be accorded protection first and foremost (Hadek 1996–1997, 366, 387).

As outlined above, people often fall back on a natural law argument to disguise their personal ideology or religious beliefs and make their position appear more universal and fundamental. The brief for Appellant Victoria reveals some consciousness and concern that the court might use its authority to promote marriage. The brief stated: Social scientists have speculated about and researched parental and family influences on child development for many decades. As sociopolitical philosophies have changed with time, so too have the assumptions and recommendations of social scientists. One assumption has remained constant, however: the notion that the ‘ideal family’ contains a primary caretaking and housekeeping mother, and a breadwinning father. Consequently, analyses of the family have consistently portrayed this traditional constellation as the most appropriate context in which to raise children. As a result, any and every deviation from ‘the norm’ is usually considered briefly and disparagingly. Even today, the traditional family is frequently recalled romantically and nostalgically by those who bemoan its demise. Demographers … doubt that traditional families were ever as common as these Cassandras imply and social scientists question whether the decline of the nuclear family can legitimately be viewed as the cause of contemporary social malaise. Certainly the traditional family is far from being today’s norm, but unfortunately, little reliable evidence regarding the effects of ‘deviant’ family styles was available until recently (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 18, n.11).

Pluralism in family structures reflects variations in the racial, ethnic, religious, and age groups that compose the American salad-bowl culture. Each of these forms, because they are so different from one another, has varied problems to solve and issues to consider when dealing with organizations and institutions and its own internal family relationships. Most important, variant family forms have different needs from the traditional nuclear family for outside services and supports, which for the most part remain unmet in the United States today. Until recently, we have used an idealized family form—the single-breadwinner, intact family—on which to base our public policies and programs, ignoring or deprecating other family forms which differ from this ‘ideal’ type (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 20 n.15). The brief also maintains that any governmental preference for one family form is a reflection of ethnocentricity and class bias (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 17), and that: By definition, those children and parents who come before courts for adjudication of parental rights and responsibilities represent the substantial portion of Americans whose family structure does not conform to the nuclear family model. Rather than trying to force such families into stereotypical roles, the State should support the functioning parent and child relationships, which have developed (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 18).

The brief concludes that “one of the most significant ways in which citizens in pluralistic society may exercise their freedom and contribute to the society’s development” is by raising their children as they individually see fit (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 16).

10  Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised...

199

In this particular case, the plurality is choosing to place Michael in a worse position in an attempt to alter societal behavior because they find his conduct immoral and reprehensible, they refer to him six times as the “adulterous natural father” (Michael H. v. Gerald D. 1989, 144) and the tone of the entire opinion is one of distaste when it comes to Michael. Additionally, as stated above, traditionally an illegitimate child was seen as a non-person in order to “punish” the parents for their immoral behavior. Today, society has evolved a bit and so now instead of “punishing” the child for the sins of the parents, the plurality wishes to simply “punish” the father by removing the child from his life. On the other hand, although the plurality does not discuss Gerald precisely the opinion does continuously praise the institution of marriage and even the “sanctity” of marriage. For this reason the plurality chose to “reward” Gerald with a child that he had longed for, he and Carole had attempted to have children twice before Victoria; tragically they lost the first child to miscarriage and the second to therapeutic abortion, a therapeutic abortion as induced when the pregnancy constitutes a threat to the physical or mental health of the mother (Brief for Appellee, Michael H. v. Gerald D. 1989, 4); (medical.merriam-webster.com/medical/%20abortion).

10.8 Conclusion Every individual possesses a combination of secular and/or religious beliefs that are vitally important to their self-understanding. However, the legal system, in order to be fair and impartial, must be ever cognizant of this fact and strive to uncover and remove instances where personal ideology cloaked in legal thought is influencing judicial doctrine. In this instance, a deep seated loathing of adultery and fornication, combined with a sacred view of marriage and a desire to protect the unfortunate cuckolded husband, resulted in a father being denied even the opportunity to have a hearing to attempt to convince a court that it would be in his daughter’s best interest for him to have visitation rights. The plurality tries to explain their rationale as protecting the child and protecting marriage, but as has been shown, the child was actually hurt by these actions and section 621 is no protection for a marriage. All that this opinion accomplishes is strengthening a regime of encouraging marriage, an endeavor wholly inappropriate for the legal system and should be left to either religious or moral debates.

References Balkin, J.M. 1989–1990. The Hohfeldian approach to law and semiotics. University of Miami Law Review 44(1119): 1120. Beckerman, Stephen, Roberto Lizarralde, Carol Ballew, Sissel Schroeder, Christina Fingelton, Angela Garrison, and Helen Smith. 1998. The Bari partible paternity project: Preliminary results. Current Anthropology 39: 164. Black’s Law Dictionary 637, 8th ed. 2004.

200

J.A. Ellsworth

Brief for Appellant Victoria D., Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87-746), 1987 WL 880074. Brief for Appellee, Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87-746). 1988 WL 1025582. C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365, 369 (Mass. 1990). Hadek, David V. 1996–1997. Why the policy behind the irrebuttable presumption of paternity will never die. Southwestern University Law Review 26: 359. Lin, Timothy E. 1999. Social norms and judicial decision making: Examining the role of narratives in same-sex adoption cases. Columbia Law Review 99: 739. Loconto, T.Carmen. 1992. Family law—The substantial relationship test: The putative father gains standing to rebut the presumption of legitimacy-C.C. v A.B. Western New England Law Review 14: 79. Michael H. v. Gerald D., 191 Cal. App. 3d 995 (Cal. Ct. App. 1987). Michael H. v. Gerald D., 491 U.S. 110. 1989. Palmore v. Sidoti, 466 U.S. 429, 433. 1984. Rogers, Brie S. 2001–2002. The presumption of paternity in child support cases: A triumph of law over biology. University of Cincinnati Law Review 70: 1151. Silber, Bonnie Baxt. 1992. How irrebuttable is the irrebuttable presumption of paternity in section 621 of the California Evidence Code? An examination of Michael H. v. Gerald D. and its Aftermath in California. Journal of Juvenile Law 13: 159.

Part V

Economy, Business

Introduction Francis J. Mootz III

The hard-headed and hard-hearted world of business would seem to be immune from the creative and indeterminate world of meaning-making. Classical Chicagoschool economic analysis is thought to be a scientific means for rising above ­rhetorical flux and perceiving human interaction in a structural manner that ­permits prediction and control, given the commitment to the variable of efficiency in production and exchange. We have seen too quickly how this dream fades, with the introduction of behavioral economics and semiotic critiques of the claims by economists to be dealing rigorously with facts. The world of business is a swirling world of signs and meaning-making, as is best exemplified by the anthropomorphism of Wall Street commentators who regularly makes statements such as, “The stock market lost ground today, amid fear that there are signs of a looming double dip recession.” Perhaps the most pertinent area of business law for semiotic analysis is intellectual property law. Unlike real estate or natural commodities, intellectual property is created by, and for, humans living in a social system. From the beginning, then, it is infused with purposive human activity and is recognized only within the social structure that supports it. This is particularly true of trademark and copyright law, which attempts to deal with the legal regulation of signs. Of course, this legal regulation can take place only through signs, compounding the complexity of the analysis. It is precisely this complexity that the student contributors explore in their essays. Elizabeth Karnezos provides a social perspective on trademark law, emphasizing the dual nature of trademarks as signs of trade, but also as signs receiving legal protection. Trademarks are signs, in that they are marks that have a certain visual appeal but which always refer to a particular business or product, but they also have a social reception among the public that may exceed or diminish the intended effect.

F.J. Mootz III () University of Nevada, S. Maryland Pkwy, 89154-1003, Las Vegas 4505, NV, USA email: [email protected]

Part V  Economy, Business

203

Trademarks cannot be functional; they must be symbolic. The key to the law of trademarks is to protect the distinctive meaning conveyed to the public about the business or product. Of course, competitors will seek to capitalize on the meaning of the mark by creating a sign that can “piggyback” on the effects that the primary sign has in public consciousness. This leads to the current dilemma about the protection of trademarks from “dilution,” which occurs when the public meaning of the mark is used for a completely different product, thereby not causing confusion among consumers as much as diminishing the effect of the mark for the party holding the right to use it. Karnezos uses a Peircean analysis of “thirdness” to explore the social dimension of trademark law with regard to dilution claims. Her example is apt: how should courts deal with a suit by the Ringling Brothers circus for dilution of it’s mark (“The Greatest Show on Earth!”) by Idaho, which promoted tourism with the mark: “The Greatest Snow on Earth.” Only a sophisticated understanding of the triple layer of semiotics involved – the ordinary meaning of the words, their use as a sign for a business, and the creation of a new sign that plays off the association of the public with Ringling Brothers – can unravel the complex factors relating to mark dilution. By pointing to the Enron mark and it changing associations as the company went from high-flying corporate star to disgraced criminal enterprise, Karnezos again emphasizes that an understanding of the public perceptions engendered by a mark are unstable and subject to the context in which it is viewed. The next essay by Meghann Garrett provides additional insights into trademark law. Garrett focuses on the benefits that lawyers may gain in representing their clients if they understand the semiotic nature of trademarks, and the equally semiotic nature of trademark law. She provides an important analysis of the categorization of trademarks in terms of Peirce’s categories of signs, and emphasis the “thirdness” inherent in all signs. For example, a mark such as “cellophane” lost its legal protections because it lost its distinctive relation to a particular product in the minds of the public. Garrett also offers a number of Greimasian squares to illustrate the cases she describes. She concludes her discussion with a fascinating account of the Qualitex case, in which a company obtained protection for the color of its product. The key elements in the case were recognizing the centrality of public perception, and distinguishing between the color operating as a sign and the color serving merely a functional purpose. Garrett’s detailed explanation of several cases by means of Peircean and Greimasian analysis provides an example of how a lawyer can gain insight into her cases by being attuned to semiotic analysis. But her essay reaches deeper than merely offering new tricks for the lawyer’s toolbox. She reinforces the inevitability of semiotic issues in legal questions, because the law is accomplished only through signs and is dealing with human constructs such as property ownership which gain salience only within complex, dynamic and evolving social situations. Finally, Nathan Harvill turns to the vexing area of law under the Fifth Amendment to the United States Constitution – the Takings Clause – to reveal the power of semiotic analysis. Harvill begins by providing a broad conceptual overview of semiotics by contrasting two traditions of thought. The European tradition, epitomized by

204

Part V  Economy, Business

Greimas, seeks to reveal the deep structural elements that govern the meaning of signs. The American tradition, epitomized by Peirce, rejects the potential for formal logic to determine meaning and seeks to show the pragmatic character of reasoning about the meaning of signs. The latter is particularly important because it underscores the social character of meaning. As Plato noted long ago, thinking is the soul’s dialogue with itself, and this is premised on our immersion in dialogic relationships with others. Harvill draws from Kevelson to explain how legal discourse is an exemplary instance of semiotics in action. He analyzes key Supreme Court opinions regarding the “public use” element of a Fifth Amendment claim, and notes how the fluidity of meaning creates change over time in the Court’s jurisprudence. This drift of meaning culminated in the famous Kelo case, in which taking for a public “purpose” was the recognized standard although the Constitutional text had not changed from public “use.” Harvill notes the potential backlash from those who will wish adherence to the “plain meaning” of the terms in the Constitution, but he recognizes that any such retrenchment will begin again the dynamic process of the determination of meaning in actual cases.

Chapter 11

Trademarks: A Social Perspective Elizabeth Karnezos

11.1 Introduction This chapter will discuss trademark law and then relate that discussion to semiotics. Trademark law has been treated in many contexts, even by those who are directly involved in semiotics. However, this chapter will talk more specifically about trademark dilution, a relatively recent area of trademark protection and an area that has not been discussed at length as applied to semiotics. It is precisely the dimension of dilution that leads us to formulate social perspectives of the many legal solutions inherent to the trademark law. Semiotic ideas sustain this analysis.

11.2 Trademarks A trademark is a sign or symbol used by companies to distinguish a unique brand of goods. The expression ”trademark” itself has a double meaning. It is a “mark”, a “sign” pertaining to trade in society, and thus it is a sign of trade. But, as a student of semiotics, Jason Fisher recently wrote: like most words, trademarks are more than just the symbols that they represent. (Fisher 2010, 19). A trademark is a legally protected mark, and as such it is a sign of law and its protection in trade. The Lanham Act provides for the registration of trademarks, which it defines in § 45 to include “any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer’s] goods … from those manufactured or sold by others and to indicate the source of the goods …” (Wal-Mart & Inc. v. Samara Bros 2000), 209). One who registers a mark under the Lanham Act then becomes for practical purposes the “owner” of that mark, and the owner is then able to sue anyone who infringes upon the use of that mark. E. Karnezos () Dickinson School of Law, The Pennsylvania State University, Carlisle, PA, USA e-mail: [email protected]

J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_11, © Springer Science+Business Media B.V. 2011

205

206

E. Karnezos

The U.S. Supreme Court recognized the significance of registration and the complex meaning of trademarks when it ruled: “in an action for infringement of unregistered trade dress under §43(a) of the Lanham Act, a product’s design is distinctive, and therefore protectable, only upon a showing of secondary meaning.” (Wal-Mart & Inc. v. Samara Bros. 2000, 216, emphasis added). Legal protection is afforded first to registered (and therefore legally recognized) marks. It is significant that unregistered marks can be protected only if it is proven they have a secondary meaning other than for the identification of the product. This illustrates that there is more than one meaning created by a mark, and that this secondary meaning is significant in society. Distinctiveness is a key to trademark protection. Distinctiveness is based upon differentiation, which is impossible without the recognition of difference. The whole purpose in registering a mark is to assert that the mark represents a unique good or service. Uniqueness is essential when distinctiveness becomes real and materialized. The mark signals to consumers that the product represented by it, is different than another product with a different mark. The Lanham Act’s definition of a trademark is broadly framed and includes “anything at all that is capable of carrying meaning” as an indicator of source. (Lee et al. 2009) citing (Qualitex Co. v. Jacobson Prods. Co., 1995), 162). The purpose of registering a mark goes far beyond simply identifying the mark as associated with a particular product or service. By registering the mark, the producer of the product obtains ownership rights of the mark. The concept of ownership (and the resulting rights) is maintained in this trademark context as specifically a legal concept and gives rise to a legal action.

11.2.1 Trademark Law Trademark law protects in particular the use of trademarks. The latter is the branch of law and legal practice that places these trademarks in the law and thus develops the marks both in accordance with its specific semiotic components as well as according to their place in the legal system. Trademark law provides two-fold protection: to the owner of the trademark (the producer of the good) and to consumers. In general, the owner of a mark has legal protection and assurance that the mark can be used to distinguish the owner’s specific product from other products. Federal and state trademark laws are designed to protect the public from consumer confusion and deceptive trade practices (Gucci & Inc. v. Curveal Fashion 2010, 5). Because consumers associate a product and its quality with a trademark, protection for that mark is provided so that consumers can trust the product that they are purchasing. The Lanham Act provides national protection of trademarks in order to secure to the owner of the mark the goodwill of his business and to protect the ability of consumers to distinguish among competing producers. Legislative history of the Lanham Act reveals that Congress believed that this national protection was necessary because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation (Park ‘N Fly, Inc. v. Dollar

11  Trademarks: A Social Perspective

207

Park and Fly, Inc. 1985, 198). This protection of the trademark and protection to consumers is obviously a dependent relationship because of the economic benefit that owners receive when consumers purchase their product. It is important to note that the Lanham Act is strictly a United States provision and any analysis of its role in trademark law cannot be transferred to an analysis of trademark protection in an international context. The relationship in the United States between a state and federal government is not the same as the relationship between, for example, a member state and the European Union. Relationships between U.S. state and federal law do not equate to the relationships between member states and European Union law. The Lanham Act provides for a legal cause of action against: (1) Any person who shall, without the consent of the registrant-(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive (United States Code, Title 15, Chapter 22, Subchapter III, section 1114).

It is clear that trademark law is designed to protect marks based on the distinction of a product or the reputation created by this distinction and does not protect against a particular use or feature of the product. As such, trademark law provides no protection for a thing or issue deemed to be functional. As the Qualitex court explained: “[t]he functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm’s reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature.” (Maker’s Mark & Inc. v. Diageo North America, Inc. 2010, 4, citing: Qualitex Co. v. Jacobson Prods. Co., 1995, 164). In a case involving a whiskey manufacturers’ use of a wax seal on their bottles, the United States District Court for the Western District of Kentucky found that even if the trademark owner’s use of his specific wax seal is decorative and not functional, the seal could be deemed functional if competitors need wax seals for a functional purpose on their own bottles (Maker’s Mark & Inc. v. Diageo North America, Inc. 2010). In that case, Maker’s Mark, a well-known manufacturer of whiskey, owned a trademark for the particular color and look (a red “drip”) of the wax seal on their whiskey products. Maker’s Mark brought a claim against Cuervo, a manufacturer of tequila, when it began using wax seals similar to the ones used by Maker’s Mark to seal its bottles. The court found that Cuervo did not sufficiently prove that their seal was functional, and found that Maker’s Mark’s seal was indeed distinctive to its whiskey product and therefore granted an injunction against Cuervo’s use of the wax seal. Had the wax seal been found functional, and not decorative, it is unlikely that Maker’s Mark’s use of the seal would have been protected. It is clear that

208

E. Karnezos

trademark protection is dependent on the consumer’s perception of the mark and of the product. The seal would have no meaning as a trademark if it were simply functional. The key to infringement protection is distinction and differentiation of products. Traditional infringement protection protects the owner of a mark from a competitor using a similar mark on a similar product. This would create a “likelihood of confusion” on the part of the consumer, and the owner of the mark would be harmed by someone else trying to profit by getting consumers to buy a competing product by relying on the goodwill of the owner’s company and the recognition of the owner’s trademark.

11.2.2 Protection from Dilution A relatively recent development in the area of trademark protection is the concept of the protection of a trademark from dilution. Dilution can occur through blurring or tarnishment. Globalization of trades and related product diffusion creates an even greater possibility and risk or blurring or tarnishment. Dilution as a separate basis for trademark protection, which originated in German courts. These courts protected a well-known trademark for mouthwash (Odol®) from dilution through use of the trademark on steel products. (McCarthy 2010, 67). A clear example was its conclusion that the public thinks of the well-known mouthwash when sees or hears the word “Odol,” but if others were to use the mark for a completely different product such as steel, then the mark’s value would be diluted (Schechter 1927, 831–832). Trademark recognition and protection is dependent on the consumer’s interpretation of a mark which gives it legal meaning. Global differences in consumers create a complication in trademark law that makes it impossible to globalize trademarks. There cannot be a global trademark theory because there will always be global differences in consumer preferences and taste. Dilution, in particular, is a matter of consumer taste, and this will always vary in a global context. A mark, which has been given a legal meaning by consumers and therefore has trademark protection in one society may not even be recognized in another society. Early trademark protection in the United States focused on prohibiting the use of a mark by a competitor on goods similar to the ones manufactured or sold by the user of the mark (American Steel Foundries v. Robertson 1926). Schechter first introduced the idea of trademark dilution theory to the U.S. in the early 1920s when he explained that a mark’s significance could be harmed even if it was not used on similar products of competitors and there was no likelihood of confusion. For example, the names “Kodak,” “Mazda,” and “Hilton” are very well known and probably everyone knows what type of product the names signify. Dilution theory is based on the idea that the use of a trademark on a different product would diminish the value of the trademark and the product to which it is referring. Using the above examples, if a hat company began using the name “Kodak,” a cookie manufacturer began using the name “Mazda,” and a car manufacturer began

11  Trademarks: A Social Perspective

209

using the name “Hilton,” the original goodwill and reputation built on the names would diminish. This is an example of dilution by blurring. Schechter described dilution as the “gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name” (Schechter 1927, 825). Harm by blurring is harm to the distinctiveness of the mark. That is all based on the public’s perception of what product is attached to the name or mark. Dilution theory was developed to explain how the use of a mark by others could harm the owner not only through traditional infringement, but also when a similar mark was used on a dissimilar product. Trademark anti-dilution laws are intended to enable trademark owners to prevent the gradual weakening of the strength of their marks, even if the public is not likely to be confused between the products or services. Harm would nevertheless occur because a new association would be created in the mind of the consumer, which thus diminishes the power of the original mark to identify a unique product (Bunker et al. 2004, 2). The legal theory of dilution by blurring says that if consumers see the plaintiff’s famous mark used by other persons in a non-confusing way to identify other sources for many different goods and services, then the ability of the famous mark to clearly identify and distinguish only one source might be “diluted” or weakened (McCarthy 2010, 67). Dilution by tarnishment is easier to understand and also to determine than dilution by blurring. Dilution by tarnishment can occur when a negative association is created with a famous mark. A negative association can be made when the famous mark can be linked to unpleasant or unsavory connotations such as drugs or pornography, or simply to an inferior product or service. The association must occur in a way that is not protected under the principles of free speech or parody. The Eastern District of New York court granted an injunction against the creation of a poster with the words “Enjoy Cocaine” using a font and color scheme similar to that used by Coca-Cola. (Coca-Cola Co. v. Gemini Rising, Inc. 1972). Federal protection in the United States against dilution is now reflected in the Federal Trademark Dilution Act (FTDA), which added anti-dilution language to the Lanham Act. Over half of the states also have anti-dilution laws. The passage of the FTDA, effective in 1996, and revised in 2006, extended protection of trademarks beyond the traditional standard that prohibits use of a mark that would cause a “likelihood of confusion” among consumers (Bunker et al. 2004, 2). Dilution theory is grounded on the understanding that people recognize and attach a particular meaning to a certain trademark. In this regard, the theory depends on society attaching a consistent meaning to a trademark. For something to have meaning within legal practice, it must remain a stable and predictable entity so that it can be understood within the legal discourse. Dilution theory would not give rise to any protection in trademark law unless society has given a particular meaning, recognition or significance to strong ties of a mark and a product. Likewise, trademark protection – and the idea of dilution – only has a meaning within a legal discourse. Dilution leads indeed to a different type of protection than infringement. It requires that the mark not only be recognized and distinguished from other marks,

210

E. Karnezos

but also that the specific mark in question constitutes a particular significance related to the “fame” of a product. The current act provides protection from dilution as follows: (c) Dilution by blurring; dilution by tarnishment (1) Injunctive relief Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner’s mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury(United States Code, Title 15, Chapter 22, Subchapter III, section 1125).

Proving dilution has been a challenge, and federal courts of appeal have required different standards for plaintiffs attempting to recover under the FTDA (Bunker et  al. 2004, 3). After the enactment of the FTDA, circuit courts were split as to whether “actual dilution” or a “likelihood of dilution” was required under the FTDA. The language of the FTDA before its 2006 revision simply prohibited use of a mark that “causes dilution” without mention of protection from use of a mark that causes a “likelihood of dilution.” The Supreme Court therefore relied on the plain text of the statute when it resolved the circuit court splits in Moseley v. V Secret Catalogue, Inc. by ruling that actual dilution, not just the likelihood of dilution, must occur in order for a plaintiff to recover under the FTDA. (Moseley v. V Secret Catalogue, Inc. 2003, 432–433). However, the court still did not give a clear standard of what type of proof would be sufficient. It ruled that while economic harm (such as lost profits) was not necessarily required to be proved, proof must go beyond mere mental association. The United States Court of Appeals for the Fourth Circuit in Ringling Bros.Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development addressed the significance of mental association and stated that The real interpretive problem has been with how harm to the senior mark’s selling power resulting from the junior mark’s use could be proved. Logic has compelled agreement that as a threshold matter some mental association of the two marks by a relevant universe of consumers must be proved (or presumed) in order to allow inference of the necessary causal connection between use and proven harm (Rand 1991, 457).

Proving this “mental association” has been difficult for courts; it is a concept that is clearly dependent on consumer interpretation. In Ringling Bros., Ringling Bros. claimed that the Defendant Utah Division of Travel’s slogan, “The Greatest Snow on Earth” diluted Ringling’s slogan, “The Greatest Show on Earth.” Ringing introduced results from a consumer survey they conducted in which randomly selected individuals at shopping malls across the country, including one in Utah, were asked to complete the phrase “The Greatest ______ On Earth.” Some participants chose “snow” and some chose “show” to complete the phrase, but the results did not support that Utah’s slogan had diluted Ringling’s slogan. Even though some consumers made the mental association of the phrase with Utah’s slogan, almost all consumers still associated the mark with Ringling, and any

11  Trademarks: A Social Perspective

211

mental association of the phrase with Utah had not replaced their mental association of the phrase with Ringling to the extent that caused any harm to Ringling. The court found that If you seek to rely for proof of dilution only upon evidence of the mental impressions evoked in consumers upon viewing the marks, then those impressions must go beyond mere recognition of a visual similarity of the two marks to allow a reasonable inference that the junior mark’s use has caused actual harm to the senior mark’s selling or advertising power (Ringling Bros.-Barnum & Bailey Combined Shows Inc. 1999, 463, emphasis added).

Therefore, harm is caused by dilution when the existing mark can no longer identify and distinguish its product because of an infringing mark’s ability to create mental association with the existing mark’s product. However, in Ringling Bros., the court still did not create a clear threshold for what is required for “mental association,” but it did specify that more is required than simply a consumer’s recognition that two marks are similar. After Moseley, the protection of trademark dilution further developed through revisions made to the FTDA. The Trademark Dilution Revision Act of 2006 revised the original FTDA and overturned Moseley by requiring that plaintiffs only need to show that the defendant’s mark is likely to cause dilution. Furthermore, the revision act narrowed the scope of protection for dilution by requiring that marks be nationally well-known to qualify for protection from dilution. Whether a mark is “famous” is the threshold issue in a trademark dilution claim (Maker’s Mark & Inc. v. Diageo North America, Inc. 2010, 15). However, what is considered famous was not defined in the original act. This lack of specificity in statutes is a common problem for legal interpretation, and such particulars may be impossible to define in a statute. For example, whether something is “obscene” is the key issue in a pornography claim. In many criminal cases, guilt turns on whether someone “knowingly” committed an act. Because terms such as “famous” are subjective and defined by society’s interpretations, it is difficult if not impossible to define the terms in a statute. A lack of ability to define these terms leads to imperfect interpretations. The omission of the definition of “famous” led to courts to accept “niche” fame in a local geographic area or specialized market as a basis for a federal dilution claim (Grabell 2007, 221). What is considered “famous” was not defined until the later Trademark Dilution Revision Act of 2006. The current act defines “famous” as if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following: (i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties. (ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark. (iii) The extent of actual recognition of the mark. (iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register (United States Code, Title 15, Chapter 22, Subchapter III, section 1125).

212

E. Karnezos

Ambiguity still remains in this “definition” of famous. It is still entirely subjective because it leaves open for interpretation what is “widely recognized by the general public.” The court in Ringling Bros. noted that “this bare-bones codification, centered on an unelaborated term of art having no previously acquired meaning through the common law decisional process, has puzzled courts from the outset as to just exactly what legal interest it sought to protect, and legal harm to prevent (Ringling Bros.-Barnum & Bailey Combined Shows et al. 1999, 456).

11.2.3 Protection from Trademark Dilution in the European Union Protection from trademark dilution is not uniquely American. As we have seen, the idea of dilution originated in the German courts. The European Union (EU) by means of its Commission, issued dilution protections in its 1989 Trademarks Directive. While implementation is not mandatory in its direct form so that it supersedes Member State laws, all Member States are urged to incorporate the dilution provisions into their own laws in the ways they deem appropriate, as is the case with an EU Directive (Schechter 1927). A Directive differs in this regard from a Regulation, which overturns existing Member States’ law and are effective immediately in the form the Commission presents. A Regulation has a general application and is binding in its entirety to all member states. A Directive is binding as to the result to be achieved by member states, but leaves the method of how the results are to be achieved in the hands of the member states. Regulations, therefore, are immediately effective without the member states having to pass any legislation. A Directive basically creates a legal framework, which member states use to then create compliant legislation. A directive has the unique function of appealing to citizens to participate in the legislative process. They are given a goal and they have to work together. Directives are an appeal to consumers to engage in group-activities that influence the means developed to achieve the ends required by the Directive. The Water Framework Directive adopted in December 2000 in the EU is an example of a legislative project that is dependent on citizen involvement for its success. From a semiotic viewpoint, one could say that Directives allow consumers to take part in the creation of legal meanings. This considerably deepens and widens the emotional component of trademark infringement. Posner suggested that there may be a residual form of dilution in addition to blurring and tarnishment: “freeriding,” which is when the defendant gets unfair benefit from the use of a famous mark, but the mark itself is not necessarily damaged (McCarthy 2010, 67). EU law against trademark dilution is stricter than in the U.S. and specifically prohibits both free riding and dilution, while U.S. law does not recognize protection from freeriding. This component of “unjust enrichment” leaves even more to citizen interpretation and involvement in the development of the legal meaning.

11  Trademarks: A Social Perspective

213

11.3 Re-introducing Semiotics in Trademark Law Semiotics has been discussed since the mid-1980s with regard to law, and here we re-introduce semiotics to law in a way that relates to trademark law, and specifically, trademark dilution. This section also re-introduces and deepens the statements made about semiotics in the introductory section. A trademark is a “mark” for trade, and only as a mark for trade does it play a role in law. Fisher observed when studying semiotics: “as I became immersed in the study of semiotics, the meaning of the word ‘trademark’ evolved before me. Now, when I see the word ‘trademark’ I no longer only connect the word to the branch of law. The word ‘trademark’ itself has become a representation of the Peircean triad” (Fisher 2010, 19). Like most words, trademarks encompass more than just the symbols that they represent (Fisher 2010, 19). We know that a trademark is a sign. Fisher explains Peirce’s view of a sign in the following way: Peirce perceived a sign as containing three distinct parts, known as the triadic sign model. The first element is the representamen, the perceptible object that has meaning other than to itself. In trademark law, the representamen would be the physical mark itself, which acts as a sign or symbol. The second element is the referent, a physical or mental entity that is linked to the sign through the representamen. The referent would be the company or product that is being represented by the trademark. The third and final element is called the interpretant, which Peirce defined as “creating something in the mind of the interpreter.” The interpretant is what connects the representamen and the referent together; it is the cognitive process by which a person understands and interprets a trademark (Fisher 2010, 19).

Because this third element is a cognitive process, it will almost always vary between different people. Two people looking at a trademark may end up associating it with the same product or company, but each may get to that interpretation in different ways. Each may also have a different view of the product or company even if they associate the same company with the sign or logo. By applying semiotics to trademarks and trademark law we recognize that the meaning of a trademark as a sign comes from its use in a discourse. Through the study of signs, symbols, and their meanings, we recognize that everything can become a sign. Semiotics teaches us that all things have or are given more than one meaning. There is a surface meaning and there is also a deeper meaning in all words and signs that we use. Without semiotics, law students and lawyers cannot fully look beyond the surface meaning of words to use the signs and meanings occurring in the legal discourse. Semiotics gives us an approach that helps us understand the deeper meanings of words and text that we use so that we can communicate more effectively. Peirce tells us that a sign in itself is not really a sign, but instead that a sign can only be a sign if and when it is interpreted as such. Interpretation requires another human being to interpret the sign. Every sign is interpreted in the context of relationships, and therefore meaning is developed within a system of signs, and these

214

E. Karnezos

meanings and interpretations are dependent on the interpreter and on culture. Because they are dependent on interpretation to make their meaning, signs and their meanings are not a set absolute but instead can change over time and reflect the society or culture in which they originate and are interpreted. Signs can only be interpreted in relation to other signs and thus to a culture, a pattern of social relations. When we relate this to trademarks, a trademark as a sign can only be interpreted by consumers in relation to other trademarks and in doing so, finally to the law in its entirety. For example, a logo indicating that a product is “Pepsi” is only meaningful to the extent that it distinguishes it from other products that are “not Pepsi.” Signs derive their meaning from interpretations of those signs within a society. We know from the above description of Peirce’s model that there are effectively three levels of a sign and the meaning is dependent on each level. A sign can be in the form of an object, word, image, sound, or gesture. Daniel Chandler writes that a sign can also be an action and can be positive or negative, so that even the absence of an action can be a sign (Broekman 2010, 28). This understanding of meanings in terms of a triadic formula is not only the result of logic, but also of our emotional life: each triad is comfortable and satisfactory to our human consciousness. Four is too many, and one or two is not enough. But three levels of interpretation – one could speculate – make sense because simply looking at the opposite or contrast of an object would not be able to give sufficient meaning, so we must also have the third level to look at the meaning which is given to something through the observations and interpretations of another. In fact, true meaning would not exist without the third prong of semiotic analysis articulated by Peirce. The interpretant is the most interesting and significant aspect of the analytical tool because it is constantly changing and creates the possibility for an infinite number of meanings.

11.4 Semiotic Perspectives on Trademark Law The idea of protection of trademarks and the rights associated with owning a trademark invites discussion on a wide range of topics that can be analyzed using semiotics. For example, for a mark to be diluted, it must first be determined that that mark is famous. What makes a mark famous? Only with the recognition of a mark and the association of a mark with a meaning within the social discourse can a mark be famous. A mark has almost no legal meaning if it is not registered (although it can still have legal protection if, as discussed earlier, society gives the mark a secondary meaning). If we apply a semiotic analysis to trademark law and use Peirce’s triadic approach to describe trademark law in general, we might come up with elements in three categories to help define the rights and duties that trademark law establishes and protects. An explanatory triangle for trademark law might look like this:

11  Trademarks: A Social Perspective

215

In trademarks, we first recognize an object as the mark itself; in many cases this is a logo, but can also be anything, even something like a scent or color. This might be what Peirce would refer to as “firstness.” Then, there is recognition of the mark in society and the recognition that the owners of the mark have certain rights, including protection from infringement and dilution. This might be what Peirce would call “secondness.” Finally, there is the association of the mark with a particular product based on source and distinction from other products. This requires a deeper analysis and one might consider this the most significant aspect of the semiotic triangle. It is what Peirce might refer to as “thirdness.” This pattern of understanding goes even further when we understand that consumers form qualitative opinions and make economic decisions based on the meaning associated with the mark and the products that it represents. Most importantly for the triadic model is that it concerns a continuous process. Thirdness is based on interactions and relationships within society, and, as such, has the possibility to constantly change. Kevelson described human societies … not, as Peirce suggests, hierarchically ordered, … but rather from the inception, interaction presupposes relational ties, e.g. the relational ties of exchange and community especially in non-totalitarian societies, i.e. in free market places of exchange (Kevelson 2000, 97).

The constant changing relationships in communities determine the significance of a trademark, whether it is famous, and whether a competing mark is infringing or diluting the original mark.

216

E. Karnezos

Semiotics can help us explain and understand major aspects of trademark protection. In the protection of a traditional trademark right (and the reciprocal duty not to infringe upon another’s trademark as well as the duty to comply with requirements for protection), a “likelihood of confusion” cannot exist in society if society has not yet formed some idea of the meaning of a particular trademark. We can better understand the dilution theory by using semiotics to help us determine when a mark is famous and when use of another mark is either blurring or tarnishing the use of the original mark. To fully understand and practice trademark law, we must be able to determine whether a mark is distinctive, whether it is famous, and whether another’s use of the mark constitutes a cause of action.

11.5 The Semiotic Significance of Trademarks in Society In his article The Semiotic Analysis of Trademark Law (Beebe 2004), Beebe explains how the typical economic efficiency analysis of trademark law is incomplete, and that to fully understand trademark law, we must understand the importance of the status that trademarks establish and how they encourage consumers to consume (Beebe 2004, 624) A major component of trademarks is distinctiveness. Beebe explains that distinctiveness is itself a function of the status that society attaches to a particular trademark. Trademark law cannot fully be understood without the understanding of the role of trademarks in creating social distinctions (Beebe 2004). Semiotics, one can conclude in general, is an approach to explain and understand social distinctions. Without semiotic analysis we cannot fully understand the role of trademarks and how social distinctions affect law. However, that emergence of social distinctions and differences is a complex sociological issue. So Beebe concludes that “trademark law lacks a well-developed theory of the consumer, and, specifically, of consumer sophistication” (Beebe 2005, 2025). There is a semiotic significance of trademark infringement itself as well as the very fact that the legal world is willing to protect the rights of someone to use a particular mark that indicates the source or distinctiveness of a product. Beebe proposes that trademark distinctiveness should be recognized as a broader concept that includes source distinctiveness and differential distinctiveness. (Beebe 2004, 625). Beebe describes source distinctiveness as the extent to which a trademark’s signifier is distinctive of what is being signified, while differential distinctiveness is the extent to which the trademark is distinctive from other signifiers in the trademark system (Beebe 2004, 625). This more complex analysis of the somewhat vague requirement in trademark law for a trademark to be “distinctive” provides more insight into the complete role of trademarks in society. Beebe underlines the necessity of a new approach to trademark infringement analysis. Courts should first look at source distinction to determine whether a trademark is within the subject matter of anti-infringement protection. Courts should then consider the differential distinctiveness of a trademark to determine the scope of anti-infringement protection a trademark should receive (Beebe 2004, 625). If we are to give protection based on

11  Trademarks: A Social Perspective

217

a more complex differential distinctiveness, we have to understand what meaning society places on the trademarks. Beebe’s emphasis on differential distinctiveness is valid. Mere source distinctiveness does not give the complete picture of trademark protection. Society attaches meaning not simply to the source of a product, but also to the extent a product is distinct from another. The newer laws such as the FTDA reflect that importance of distinctiveness. By now protecting the use of a mark on even a dissimilar product, the law now recognizes that a mark has a meaning other than just that of a product source. Beebe reminds us that semiotics defines the sign not by what it is, but by what it does – because of the process character of functioning signs and the semiotic approach (Beebe 2004, 630). Thus, in a semiotic analysis of trademark law, we must look not only at what a trademark signifies in terms of the product it represents, but also how it affects the perception of the product in society and how it affects consumer behavior (which are two important social issues, from which the more general, social bandwidth of semiotics can be understood). In the case of trademark dilution, protection is provided not for the sign itself, but for what it does. This protection of the function of the sign in society is the essence of trademark law and somewhat reflect Beebe’s analysis. Trademark dilution laws provide protection against use that blurs or tarnishes the image. We must use a semiotic analysis to understand how it is that consumers can distinguish a trademark, either by source or differential means. Greimas, by using a semiotic square, illustrates the significance of opposite meanings in the context of semiotic analysis. He clarifies how words have meaning in the context of their opposite meaning. For example, we can only know if something is “living” if we also know the meaning of its opposite: “non-living.” As applied to trademark significance, consumers can only recognize a particular trademark to signify good quality, for example, if there is also an understanding of the opposite: not good quality. One can imagine an almost infinite number of possibilities if one were to continue to define each term in terms of its opposite. For practical purposes, it is important to understand this approach to understanding the meaning of a concept in terms of its opposite and not to get too carried away with the infinite possibilities.

11.6 Semiotics, Trademarks and Social Distinctions Beebe suggests that the Chicago School gets it wrong when it characterizes the function of trademarks as one that facilitates search and encourages quality. Instead, trademarks are status goods, consumers consume trademarks to signal status, and courts consistently afford trademark legal protection so that they preserve the statussignaling function of trademarks (Beebe 2004, 624). The protection for trademarks implies that the marks have a social value. We know that certain trademarks and brands and stores have a social significance. Consumers try to obtain or maintain social status by owning those brands and shopping at those stores.

218

E. Karnezos

Semiotics teaches us that no human can exist without words that have been spoken to him or her. We are shaped by our culture generally, but also more specifically by the words that are spoken to us individually by those around us. This begins as early as birth, and we are fortunate when one’s mother or father speaks or reads to us in our early years. This means in general, that our actions are shaped by what others have said to us so that we appropriate the meaning of spoken words in the context of the culture in which we live. In relation to trademarks, the choices that we make when purchasing certain products, choosing certain stores, or eating certain things is shaped by words others have spoken to us. Those words could be from people we know or they could be words in the form of advertisements or news reports about certain products or companies. Our perceptions of products and companies can change over time based on what we hear about them. One example of this is the perception of Enron Corporation. While different people may have different perceptions of Enron, the familiar Enron logo at one time generally stood for a powerful, innovative company. Now it has multiple negative meanings including personal greed, uncontrollable power of corporations, and lack of ethics in the corporate world. It has become the symbol of how not to run a corporation. The designer of the Enron logo, Paul Rand, said in his 1991 essay “Logos, Flags, and Escutcheons,” that a logo doesn’t sell, it identifies… A logo derives its meaning from the quality of the thing it symbolizes, not the other way around. A logo is less important than the product it signifies; what it means is more important than what it looks like (Rand 1991, 88).

This statement demonstrates how a logo develops meaning in society and the distinction between the sign itself and the deeper meaning beyond just the sign or symbol as an identifier. Social perceptions and social distinctions are created through our communications within society. Perception of both ourselves and of each other is shaped and changed based on interaction within the social discourse. Meaning is given to words that are spoken to one another, and words have no meaning other than the context in which they are spoken and understood. We can relate this concept of the meaning and communication of words in the social discourse to the legal field. Lawyers work within a world of their own and to a large degree have their own language, which is called legal discourse. Of course, lawyers, like anyone else, will use many of the same words and connect those words to form expressions and texts like anyone else who is not a lawyer. However, when a lawyer uses particular words, those words also have a specific meaning within the legal discourse and those words and texts have a precise legal meaning. Lacan, a psychiatrist and psychoanalyst who largely influenced modern semiotics helps explain the formation of identities. He supports the conclusion that because social relations play a key role in the emergence of an individual entity, law – a social discourse itself – does not encounter human identities that exist before and outside law. In other words, engenderment of an identity is in itself a component of law because there exist no identities before any type of legal discourse unfolds (Broekman 2010, 51).

11  Trademarks: A Social Perspective

219

As related to trademarks and trademark law, the concepts of the mark itself, what it stands for, and what constitutes infringement or dilution of it, only exist within the law and legal discourse. The only reason a mark as a sign is important in the law is because it represents the protections that the law has given to it. A trademark cannot exist without law. There would be no infringement cases or dilution cases if there was not a perception that one trademark represented a product that was different than (and presumably superior to) another product.

11.7 Conclusion Trademarks are signs that can and should be interpreted through semiotics. A trademark is relevant in the law only to the extent that it is a mark, which represents trade. Understanding that a trademark (even the term “trademark” itself) has multiple meanings, is possible by using a semiotic analysis. Semiotics as a way of understanding the importance of multiple meanings helps us understand trademarks in a legal context. Because many lawyers are not formal students of semiotics, they may not realize that they are using semiotics in their practice of law. But, by understanding the elements of the law such as trademark protection, and by understanding new developments in the law, lawyers are using semiotics to understand the deeper meanings of the words and texts that they use in their everyday practice.

References American Steel Foundries v. Robertson, 269 U.S. 372 (U.S. Supreme Court 1926). Beebe, B. 2004. Semiotic analysis of trademark law. UCLA Law Review 51: 621. Beebe, B. 2005. Search and persuasion in trademark law. Michigan Law Review 103: 2020. Broekman, Jan M. (2010). The Roberta Kevelson seminar on law and semiotics coursebook. Penn State Law Seminar Ed. Bunker, M.D., J.G. Stovall, and P.R. Cotter. 2004. Proving dilution: Survey evidence in trademark dilution actions. University of Baltimore Intellectual Property Law Journal 13(Fall): 37. 13 U. Balt. Intell. Prop. L.J. 37. Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). Fisher, J. 2010. Student positions and opinions. International Journal for the Semiotics of Law 23(1):18 Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189 (U.S. Supreme Court 1985). Grabell, J. A. 2007, Feb 22. Practising Law Institute. Comments on the Trademark Dilution Revision Act of 2006 , 890, p. 213. Gucci America, Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. March 8, 2010). Kevelson, R. 2000. Peirce and the mark of the gryphon. New York: St. Martin’s Press. Lee, T.R., E.D. DeRosia, and G.L. Christensen. 2009 Winter. An empirical and consumer psychology analysis of trademark distinctiveness. Arizona State Law Journal 41: 1033. Maker’s Mark Distillery, Inc. v. Diageo North America, Inc., 2010 WL 1407325 (W. D. Ky April 2, 2010).

220

E. Karnezos

McCarthy, J.T. 2010. Introduction to the dilution doctrine. In McCarthy on trademarks and unfair competition, ed. J.T. McCarthy. Thomson Reuters, Westlaw. Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (U.S. Supreme Court 2003). Pencak, W., and C. Palecek. 2002. From absurdity to zen. New York: Peter Lang Publishing. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (U.S. Supreme Court 1995). Rand, P. 1991. Logos, flags, and escutcheons. In Looking closer: Critical writings on graphic design, ed. Bierut, M. et al. 1994, 88. New York: Allworth Press. Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development, 170 F.3d 449 (4th Cir. 1999). Schechter, F.I. 1927. The rational basis of trademark protection. Harvard Law Review 40: 813. Simons, I. 2007, May 16. Trademark dilution: Does Europe lag behind the US? IP Review Online: http://www.cpaglobal.com/ip-review-online/2488/trademark_dilution_does_europe_lag_ behind_the_us. Retrieved April 28, 2010. United States Code, Title 15, Chapter 22, Subchapter III, section 1114. United States Code, Title 15, Chapter 22, Subchapter III, section 1125. V Secret Catalogue, Inc. v. Moseley, 259 F. 3d 464 (6th Cir. 2001). Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (U.S. Supreme Court 2000).

Chapter 12

Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law Meghann L. Garrett

12.1 Introduction Semiotics is the study of signs, symbols and meanings, and their interrelation with one another in the realm of human interaction and human life. While using semiotics in the legal field is a relatively new concept, semiotics can be used as an instrument in understanding the law and the lawyer’s function within the law. Understanding and using semiotics can provide lawyers with an upper hand in the courtroom, can provide lawyers with a deeper understanding of legal arguments or decisions, and can provide lawyers with a tool in managing legal discourse. The semiotician-attorney will focus on the signs and symbols in law (the legal texts, case names, and other symbols) to reach a deeper understanding of the law and contribute more fully to legal discourse. Conceptually, it is not difficult to view trademark law as being a system of signs. While law (and trademark law) is indeed a system of signs, law does not function easily within semiotics because lawyers attempt to create a single meaning in legal signs, rather than understand (as a semiotician would) that multiple meanings exist. A single, and sometimes very simple, mark can signal to the public the goods to be consumed, the source of those goods, and the quality associated with those goods along with a number of other pieces of information. But the sign relation of trademark law can in fact be very complex. Thus, this chapter attempts to explore trademark law, and the marks themselves, from a semiotic viewpoint to provide a deeper understanding to trademark law as a system of signs. While the language of trademark law may provide for slightly different meanings [15 UCS] for the purpose of this text, “trademark” will refer to the area of law (unless otherwise indicated) and “mark” will refer to the individual sign. The first part will provide a brief overview of semiotics. Second, this chapter will provide a general look at trademark law as set forth in the Lanham Act. In its third section we attempt to use a semiotic approach M.L. Garrett () Dickinson School of Law, Penn State University, Carlisle, PA, USA e-mail: [email protected]

J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_12, © Springer Science+Business Media B.V. 2011

221

222

M.L. Garrett

to provide a deeper understanding of trademark law. Finally, we analyze a seminal trademark case, using semiotics to address legal meaning within the case. Semiotics teaches that no absolute meaning can be found, so we attempt to secure at least one meaning of for instance the Qualitex case and what it means in trademark law today.

12.2 Semiotics Signs take the form of words, images, sounds, gestures, objects, and, among many other things, colors. “Signs can be something active and positive, or something negative, so that an absence of an action may also be interpreted as a sign.” Signs convey a meaning to those able to interpret them. Semiotics, therefore, studies sign meanings and how reality is represented within culture. Signs are imbedded in language and culture – thus, a word, image or sound may be a sign in one culture, but have no meaning in another culture. Further, no culture exists without symbols. Symbols introduce order to a culture, which leads to language; language allows people to be aware of their selves and their reality. Stated another way, within a defined culture, individuals attach meaning to symbols or signs – as a result, those signs transform from the Umwelt (everything around those individuals) to the Lebenswelt (everything meaningful to those individuals) (Bains 2006). Semiotics, then, would be everything and nothing; semiotics is of space and time, changing as society changes (Beebe 2004, 621, 627); and semiotics is defined by what it does, rather than what it is (Broekman 2009).

12.2.1 Greimas and Signification Algirdas Julien Greimas proposed the semiotic notion of signification (individuals perceive what is significant to them) (Broekman 2009). Through this processes of signification, life can be understood as a narrative. The narrative consists of a surface (the phenotext) and the deep structure (the genotext) that provides meaning to the surface. To understand the signification of a particular theory, one must uncover and interpret the meaning of the genotext in addition to the phenotext. To do so, it must be noted that each word or symbol on a surface only functions as a sign because its opposite exists within the deep structure. The existence of the opposite is the reason the symbol has meaning. From this, many semioticians make use of the Greimasian square as a means of recognizing the surface sign in addition to the underlying opposite that gives the sign meaning (Greimas and Rastier 1968). Visualizing the sign and its opposite allows semioticians to better understand underlying meaning. Greimas’ signification theory is especially relevant in the legal field in order for attorneys to get a full understanding of legal realities. Lawyers learn to speak the language of law and to interpret legal signs in order to participate in and manage

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

223

legal discourse. Legal language has signification to the attorney because the attorney can recognize the sign meaning and their underlying opposite. Individuals who are not part of the culture of law cannot communicate within law and understand legal realities because legal signs (such as what constitutes a “breach of contract”) have no meaning to them.

12.2.2 Lacan and Identity Jacques Lacan presented a semiotic theory of identity. Lacan’s theory is embedded in language. Language empowers human beings to interpret and give meaning to symbols and signs, and to create symbols and signs that can be understood as a result of language. However, an individual cannot take part in discourse unless it has a sense of self and one only gets a sense of self (or an identity) through language. An illustration of this point is that a child has no sense of self until others within his society tell him that he is separate and distinguished from others – then the child refers to himself as “I” rather than as “Jimmy” (how others refer to him). Just as a child has no sense of his self until others tell him his identity exists, individuals have no legal identity until a lawyer tells them so. For example, if Bob and John makes promises to one another and Bob does not uphold his promise, John has no legal identity until a lawyer says to him that Bob has breached their contract. Now that the lawyer has said to John that he has a legal identity (of plaintiff in a breach of contract claim), John is thrust into participating in law’s master discourse. Knowing one’s identity (in life and law) allows the individual to understand how others relate to and interact with his self.

12.2.3 Peirce’s Triadic Model Another semiotic theory that is used extensively here is that of Charles Sanders Perice’s approach to the triadic sign model. Peirce, at least in the United States, is credited with the triadic sign model – a triple connection of sign, thing signified, and cognition produced in the mind. More fully: A sign, or representamen, is something which stands to somebody for something in some respect or capacity. It addresses somebody, this is, creates in the mind of that person an equivalent sign, or perhaps a more developed sign. That sign which it creates I call the interpretant of the first sign. The sign stands for something, its object. It stands for that object, not in all respects, but in reference to a sort of idea….Peirce’s sign consists, then, of three elements, each of which corresponds to one of Peirce’s three categories of Firstness, Secondness, and Thirdness. The first element, … is the representamen, the perceptible object, the “vehicle conveying into the mind something from without.” The second element is the object, or “referent” …, which can be a physical “object of the world” or a mental entity “of the nature of thought or of a sign.” The third element, … is the interpretant, which Peirce defined as “[creating] something in the Mind of the Interpreter,” the “proper significant effect,” the “proper effect of the sign.” (Peirce 1934, 636)

224

M.L. Garrett

While Peirce himself did not do so, this triadic sign model can be visualized in the form of a “semiotic triangle” as shown below: Interpretant (emerging thought) Thirdness

Representamen (perceptible object) Referent (attachment to object) Firstness Secondness {Cultural Context}

Peirce’s semiotic approach differs from other semioticians discussed here in that Perice’s “master-pattern” for semiotics is not human language, but human cognition, the structure and processes of thought (Peirce 1934, 637). A distinguishable but related approach was developed by Ferdinand de Saussure whose didactic sign model, which can be illustrated with the sign book, where the sound or appearance of the word “book” acts as a signifier and stands for the concept of a book as a signified. Saussure focuses on the linguistic aspect of the signified where Peirce’s focus is on how the representamen and referent work together to create the interpretant within the mind. While Peirce proposed that there are thousands of types of signs (the whole world being compose mostly of, if not entirely of signs), he reduced signs to three categories: (i) iconic (a sign in which the representamen resembles or imitates to some degree the object to which it refers; i.e. scale models); (ii) indexical (a sign in which the representamen is related in some causal, physical way to the object; i.e. medical symptoms); and (iii) symbolic (a sign in which the representamen and its object is purely a matter of convention; arbitrary). As will be discussed later, trademarks are also reduced to, and appear within these categories. Law, in particular trademark law, can be viewed in light of Peirce’s triadic model. For that reason, this note will refer to a semiotic triangle multiple times as an illustration of Peirce’s theory in semiotics.

12.3 An Introduction to Trademark Law The Lanham Act section  45 defines “trademark” including “any word, name, symbol, or device, or any combination thereof … used by a person … to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others to indicate the source of the good, even if that source is unknown” (15 U.S.C. § 1127 2000). The owner of a registered mark only has rights in the mark so long as it remains a distinctive sign, identifying the products

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

225

or services to the source of those products or services. If consumers no longer connect the mark with the source of the products or services, then no trademark exists. The Restatement on Unfair Competition defines the criteria for distinctiveness as follows: A word, name, symbol, device, or other designation, or combination of such designations, is “distinctive” if: (a) the designation is “inherently distinctive”, in that, because of the nature of the designation and the context in which it is use, prospective purchasers are likely to perceive it as a designation that, in the case of a trademark, identifies goods or services produced or sponsored by a particular person, whether known or anonymous, or in the case of a trade name identifies the business or other enterprise of a particular person, whether known or anonymous, or in the case of a collective mark, identifies members of the collective group or goods or services produced or sponsored by members, or in the case of a certification mark, identifies the certified goods or services; or (b) the designation, although not “inherently distinctive,” has become distinctive, in that, as a result of this use, prospective purchasers have come to perceive it as a designation that identifies goods, services businesses, or members in the manner describe in Subsection (a). Such acquired distinctiveness is commonly referred to as “secondary meaning” (Restatement (Third) of Unfair Competition § 13).

Similarly, if the mark is or becomes generic (i.e. “cellophane” [which lost its trademark] for thin, transparent sheet made from regenerated cellulose) or misleading, the owner can lose protection for the mark, as the purpose of trademark law is to allow words, names, symbols or devices to function as a sign to consumers. As previously stated, marks can be words, but words are classified in trademark law (akin to sign indexing in Peirce’s theories): (i) “coined” words that have no meaning except as a mark (i.e. EXXON); (ii) “fanciful” words that are invented for the sole purpose of functioning as a mark that may bear a relationship to another word or may be an obsolete word (i.e. FAB); (iii) “arbitrary” words in common language but neither suggests or describes any ingredient, quality or nature of the product with which it is used (i.e. OLD CROW); (iv) “suggestive” words suggest the product without actually being descriptive of it (i.e. STRONGHOLD); or (v) “descriptive” words draw attention to an ingredient, quality or nature of the product (i.e. TENDER VITTLES). However, trademarks have also been granted in sounds (NBC’s three chimes), scents (plumeria blossoms on sewing thread), shapes (of a Coca-Cola bottle), and colors (as discussed below in the examination of Qualitex v. Jacobson Products). Coined, fanciful, and arbitrary marks are afforded the strongest trademark protection as any meaning attached to such marks is inherently distinctive and has inherent meaning. Subjective and descriptive marks require a showing of distinctiveness, or that consumers have attached secondary meaning separate from any underlying meaning – a showing that the marks serve as a trademark sign of the product source rather than merely serving as a linguistic sign. Marks are protectable only within the geographic areas in which they have attained a meaning or secondary meaning to the consumers. Holders of marks, whether registered with the U.S. Patent and Trademark Office or not, can commence legal actions for infringement should an interloper use a mark so substantially similar as the holder’s mark so as to cause confusion to consumers.

226

M.L. Garrett

12.4 A Semiotician’s Look at Trademark Law The entire area of trademark law can be understood as a “system of signs designated to facilitate the commodification of social distinction(s).” (Beebe 2004, 632–633). Jean Baudrillard, among others, suggested consumption (i.e. the purchase of commodities) may be understood and analyzed “as a system of communication and exchange, as a code of signs continually being sent, received and reinvented – as language.” (Baudrillard 1998, 632). If there is a “language of commodities”, the Lanham Act is used by trademark lawyers to interpret the narrative of trademark law and understand the signification of those commodities. The surface and deep structure of the Lanham Act provides trademark holders with a legal identity, presenting the rights and duties of the holder. Lawyers participate in this trademark legal discourse by registering marks as status goods (sending the sign); consumers then consume the marks, signaling status (receiving the sign); businesses then perform the duties and protect the rights provided by the Lanham Act to preserve the mark’s status-signaling function (reinventing the sign). This premise can be visualized with the below Greimasian squares: Registered Trademark

Duties Identity

No Signification

Rights

No Registered Trademark Sign

No Identity

Lawyers participating in trademark law, then, have the daunting task of understanding and interpreting the language of law and the language of trademark law, or the language of commodification (which are distinct, but interrelated). Further, the language of commodities has been extended and has become more complex in the ever-growing marketplace. Consider for instance the problem posed by the Internet: domain names pose a new and complex issue to be considered by trademark law. One example of domain names serving as symbols and becoming part of trademark discourse is discussed in eBay, Inc. v. Perfumebay.com (2007, 506 F.3d 1165) where

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

227

the court determined that the domain name Perfumebay.com created confusion to the public. Said another way, when consumers saw the domain name Perfumebay. com, it was likely that the signifier would not signify Perfume Bay (the owner of the domain name), but that in the minds of consumers the domain name would signify eBay because it uses the eBay’s mark within the domain name (eBay, Inc. v. Perfumebay.com, 506 F.3d 1165, 160). This example illustrates the complexity and rapidly changing nature of trademark discourse, and supports the assertion the trademark law is a system of signs that changes as culture changes. The eBay case (eBay, Inc. v. Perfumebay.com, 506 F.3d 1165) also demonstrates how marks can be viewed in light of the Peirce’s semiotic triangle: First, the trademark must take the from of a tangible symbol [which] constitutes the trademark’s signifier … Second, the trademark must be used in commerce to refer to goods or services. These goods or services constitute the trademark’s referent. Third and finally, the trademark must ‘identify and distinguish’ its referent … by identifying the referent with a specific source and that source’s goodwill. This source and its goodwill constitute the trademark’s signified (Beebe 2004, 646).

In the eBay case, the mark (“ebay”) is the signifier, the referent is the domain name (“perfumebay.com”). The signifier-referent relation here signifies eBay, Inc. rather than Perfume Bay – this is “confusion” within trademark law, as the signifier does not signify the correct signified. This mark confusion can be represented through the semiotic triangle below: Signified - Interpretant (eBay, Inc.) Thirdness

Signifier - Representamen (ebay)

Referent (perfumebay.com)

Firstness

Secondness

Much of trademark law has developed in light of the triadic framework. While, the structure of trademarks have changed some in light of some more recent trademark cases (for instance, marks need not necessarily be attached to a particular commodity in order to give rise to trademark infringement), this structure remains relevant as many courts will construe the facts to fit within the semiotic triangle framework (Boston Professional Hockey Ass’n v. Dallas Cap & Emblem, 510 F 2d 1004). A mark must be distinctive in order to serve as a signification of source. Source distinctiveness describes the extent to which a trademark’s signifier is distinctive of its signified (Beebe 2004, 625). This is a semiotic approach to the Lanham Act’s attitude toward generic marks – if there is little or no source distinctiveness (or the

228

M.L. Garrett

signifier does not distinguish the signified), it is generic. Differential distinctiveness describes the extent to which the mark’s signifier is distinctive from other signifiers in the trademark system. This is a semiotic approach to the trademark concept of confusion – if the interloper creates a mark that has little or no differential distinctiveness, it will cause confusion to the interpreter and give rise to a trademark infringement suit (the issue in eBay). This idea can also be visualized through the use of a Greimassian square as depicted below: Trademark Protection Source Distinctiveness

Differential Distinctiveness

Infringement Confusing

No Infringement Generic

No Differential Distinctiveness

No Source Distinctiveness

No Trademark Protection

It is important to mention here that value in the mark arises from the differential distinctiveness. Differential distinctiveness gives rise to the source distinctiveness (or source identity) and value arises from the relation between one mark as compared against all other marks. For instance, a swoosh on tennis shoe has differential distinctiveness sufficient to give rise to source distinctiveness: Nike. The Nike mark has value because it is distinctive as against other marks such as Reebok, Adidas or some other tennis shoe brands. Sign value does not only signal high status, however. A commodity has various use values, only one of which may be high status. Pay-Less Shoes Store has sign value, but does not signal high status – rather it may signal affordability (Beebe 2004, 643). Value, then, is a conspicuous display of distinctiveness; value is inexhaustible and renewable. Put another way, companies seek to maximize the sign value of their brands, products or services, but do not necessarily seek to enhance the prestige of those brands, products or services. Rather, the companies simply seek to enhance the mark’s distinctiveness, to raise the brand’s profile (Beebe 2004, 644). The semiotic triangle is useful again when reviewing the requirements for obtaining trademark protection in a mark. Qualification can be broken down into three elements: (i) tangible sign (word, name, symbol, scent, color, etc.); (ii) use (actual use in commerce by manufacturer or seller of goods or services); and (iii) function (to identify and distinguish the seller’s commodities from commodities made or sold by others). The tangible sign is the signifier, referring specifically to the perceptible form of the mark. Use in commerce constitutes the mark’s referent. Further, marks must “identify and distinguish” its referent by identifying the referent with a

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

229

specific source and that source’s goodwill –the source and its goodwill constitute the trademark’s signified. This concept is depicted as follows: Signified - Source and Goodwill

Signifier (good/service) Mark

Referent Use in Commerce

Trademark law has enforced the triadic model by requiring affixation (of the mark to the product or service) and use in commerce in order to qualify for protection, creating a link between the signifier and its referent. This triadic model is further supported by trademark law’s prohibition of assignments or leases of marks “in gross” – a company cannot sell or license the mark without the accompanying goodwill. Goodwill, then, is an emerging thought, which is created by the signifier and its referent and the attachment of meaning to the mark. A mark is merely a symbol of its goodwill and has no independent significance apart from the goodwill it symbolizes. This doctrine also enforces the link between the mark’s signified and its referent because if the trademark holder engages in “naked licensing,” or fails to exert control over the quality of the goods licensed and associated with the goodwill, then the mark is deemed abandoned under the Lanham Act. In Gorenstein the court stated: “The owner of a trademark has a duty to ensure the consistency of the trademarked good or service. If he does not fulfill this duty, he forfeits the trademark … The purpose of a trademark, after all, is to identify a good or service to the consumer, and identity implies consistency and a correlative duty to make sure that the good or service really is of consistent quality, i.e., really is the same good or service”. The Lanham Act does not allow for trademark protection for marks that are deemed “functional” (Lanham Act §2(e), 15 U.S.C. § 1052(e) 2000, § 2e). The functionality doctrine serves to prevent the merger of the signifier and its referent (Beebe 2004, 661). Trademark law has defined functionality in two ways: (1) as being “de facto functional” (functional under the standard dictionary meaning), which may still be able to receive trademark protection if secondary meaning attaches; and as being “de jure functional” (functional as a matter of trademark law), which is per se non-protectable under trademark law (15 U.S.C. § 1052(e) 2000). De jure functionality has been defined as a mark or element of a mark necessary to allow others to compete effectively within the field of commerce. For instance, the fluted design of a beverage can’s sidewalls is “one, if not the best, way” of strengthening a can’s sidewalls and was therefore deemed functional as a matter of trademark law (Beebe 2004, 661). Aesthetic features have also been deemed to be de jure

230

M.L. Garrett

functional in some situations when granting exclusive rights in such features would put competitors at a non-reputation-related competitive disadvantage. The problem with functionality can be viewed semiotically as the problem of “semiotic threshold” (Beebe 2004, 662). A sign represents a meaning that is beyond pure functionality. Roland Barthes observed that, by an “inevitable” process of “semantization,” even the most ordinary of functional objects may cross this semiotic threshold and become “pervaded with meaning …. [A]s soon as there is a society, every usage is converted into a sign of itself” (Broekman 2009). Barthes’ observation (and Perice’s observation that most everything in the world becomes a sign) puts the semiotic threshold as being relatively low. Viewed in light of trademark law, if the de facto functional aspects of a commodity do not pass the semiotic threshold unless they signify a secondary meaning (having source and differential distinctiveness); or if the signifier is merged with its referent, then the de facto elements of the mark cannot receive trademark protection, as those elements does not function as a sign. Similarly, if an element of a mark is deemed de jure functional (the elements are generic, public domain, or necessary to allow for competition in the marketplace) the mark cannot function as a sign within trademark law. The trademark semiotic threshold, therefore, seems to be higher than where Barthes puts the semiotic threshold.

12.5 A Semiotic Analysis of Qualitex In Qualitex Co. v. Jacobson Products Co., Inc., the Supreme Court of the United States (Qualitex 514 U.S. 159) was confronted with an issue of whether a color alone was sufficient for trademark protection. Since the 1950s, Qualitex used a special shade of green-gold color in the pads that it manufactures and sells to dry cleaning businesses for use on dry cleaning presses. A picture of a Qualitex dry cleaning pad is reproduced below.

In 1989, Jacobson Products, a competitor of Qualitex, began selling its own dry cleaning pads colored in a similar green-gold color. In response to Jacobson’s use of the green-gold color, Qualitex registered the color with the U.S. Patent and Trademark Office and added a trademark infringement claim to its ongoing unfair competition claim. Note that the Lanham Act does not require registration of a mark for the institution of a suit under Unfair Competition (and dilution). However, to sue

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

231

for trademark infringement under the Lanham Act (as opposed to common law), Qualitex was required to register the mark. Until the decision in Qualitex, courts have differed as to whether or not the law recognizes the use of color alone as a trademark (NutraSweet Co v. Stadt Corp. 1990); (Owens-Corning Fiberglas Corp. 1985). For that reason, the U.S. Supreme Court granted certiorari, holding that there is no rule absolutely barring the use of color alone in trademark law. The Court’s rationale in deciding color can serve as a trademark has much semiotic relevance, considering both the surface and deep structure of the Qualitex opinion, and considering how Peirce’s triadic model is upheld by this opinion. In determining that color alone could satisfy the Lanham Act’s requirements for trademark protection, the Court stated that since “human beings might use as a ‘symbol’ or ‘device’ almost anything that all that is capable of carrying meaning”, the language of the Lanham Act, read literally, is not restrictive. Here, the Court echoes Barthes’ and Peirce’s theories that anything (or nothing) can serve as a sign. Thus, the Court determined that if a shape, sound, or fragrance can act as a symbol for trademark protection, a color could as well. Justice Breyer explained “it is the sourcedistinguishing ability of a mark – not its ontological status as color, shape, fragrance, word, or sign” that qualifies it for protection under the Lanham Act (§2(e), 15 U.S.C. § 1052(e) 2000, 1304). Thus, trademark law requires that the signifier and referent relate to its signified – it does not matter in which form the signifier appears. Thus, color as a mark can be viewed in the semiotic triangle that follows: Signified (Qualitex)

Signifier (green– gold color) Mark

Referent (dry cleaning pads) Use in Commerce

A central question in Qualitex was that of aesthetic functionality. As discussed in Section III of this chapter, functionality will serve as a bar to trademark protection, which seeks to promote competition by protecting source reputation, because it inhibits legitimate competition by allowing a producer to control a useful product feature. From a semiotic point of view, if the green-gold color is aesthetically or otherwise functional, it should not be able to serve as a signifier within trademark law because competitors need to make use of the color as well. The Court determined that the green-gold color of Qualitex dry cleaning pads served no cost or quality function, nor was the color necessary for the pad to operate(Lanham Act §2(e), 15 U.S.C. § 1052(e), 1304–1305) . The Courts determination on color as a

232

M.L. Garrett

form of functionality (in this case) can also be viewed in the Greimassian square depicted below: Color

No Trademark Protection

Trademark Protection

Not Functional

Functional

No Trademark Protection

Trademark Protection

No Color

Jacobson argued that allowing color alone to qualify as a mark would produce uncertainty and non-resolvable disputes about what shades of color a competitor can use without infringing upon a registered mark. Color can be functional and serve as a bar to trademark protection on its own. This is not to say that businesses cannot use color in conjunction with other symbolic elements that would, together, serve as the signifier. Jacobson essentially made an argument that issues of sufficient differential distinctiveness among colors would arise if color alone served as a mark. For instance, if Jacobson’s dry cleaning pad were more gold than green, would it provide sufficient differential distinctiveness, and subsequently provide for source distinctiveness, to allow for trademark protection? The Court rejected Jacobson’s first argument indicating that colors can provide adequate source and differential distinctiveness (the color providing sufficient secondary meaning) just as any other symbol serving as a mark. Further, Courts can, and often do, make the determination whether two colors (or other words, sounds, symbols, or devices) are so similar as to cause confusion to the public. Semiotically, the Court is making the assertion that colors convey meaning, functioning as a sign, just as words do. If no meaning attaches to color (or the signifier does not reference the signified), then there is no trademark protection. Trademark infringement cases often make use of consumer surveys to show that there is indeed a signifier-signified relation that exists in consumers’ minds when those consumers come in contact with a mark. Thus, if consumer surveys indicate that a defined set of consumers (dry cleaning businesses) relate Qualitex with the green-gold pads, the green-gold serves as a symbol. Courts are concerned with defined sets of consumers. This is akin to the discussion in Section I of culture. Here, trademark consumer sects are the same as cultures – where a mark may have meaning to one sect of consumers, it may not to another. Thus, in dry cleaning businesses, the green-gold color has meaning, where, for instance, in the shoe-industry, it may have no meaning or a different meaning. The Court also rejected Jacobson’s second argument, which was that allowing trademarks in colors would create “color depletion”, or that eventually there would not be enough colors for each competitor to participate in the commodity market. The Court rejected this argument though the use of the functionality doctrine.

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

233

Put another way, competitors of Qualitex will not be put at a non-reputation-related disadvantage as there are enough other colors available to Jacobson (and other dry cleaning pad manufacturers) in order to keep from infringing upon Qualitex’s established goodwill, or to keep from infringing upon the signal the green-gold color conveys to consumers in the dry cleaning industry. If the color becomes functional (e.g. customers of green farm equipment want their equipment to match, so the color becomes de jure functional), it will no longer be protectable under trademark law. The Court’s rationale implies that there are so many colors available that one industry will never deplete the possibilities. This can be viewed in light of the below Greimassian square: Green-Gold

Trademark Qualitex

Trademark Available

Other than Dry Cleaning Business

Dry Cleaning Business

Trademark Available

Trademark Available

Other then Green-Gold

Jacobson makes a third argument against allowing for trademark protection in color alone by referring to past court cases that supported its proposition (Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co. 1906, 425). The Court makes reference to the past case as dicta, indicating it as not being an appropriate genotext for understanding the signification of the mark at bar. This illustrates a point made in Section I of this chapter – the law, as a system of signs, is fluid, changing as society changes. The dicta relied upon by Jacobson appearing in A. Leschen no longer applies to trademark law, as the Court articulates, because of the ratification of the Lanham Act. On the surface of A. Leschen, the court provided dicta that readers interpreted later as excluding color as a proper basis for trademark protection. In creating the surface of A. Leschen, the court relied upon the thencurrent common law definition of trademark, as in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976), whereas the decision in A. Leschen, the Lanham Act was instituted, the meaning of “trademark” changed. While the textual definition of “trademark” remains almost identical, (defined in 1878 common law as “consisting[ing] of a name, symbol, figure, letter, form, or device, if adopted and used by a manufacturer or merchant in order to designate the goods he manufactures or sells to distinguish the same from those manufactured or sold by another”), the Court now interprets “trademark” as a more expansive term by reading other parts of the Lanham Act, as “any word, name, symbol, or device, or any combination thereof … used by a person … to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others

234

M.L. Garrett

to indicate the source of the good, even if that source is unknown.” This provides a good example of the need to understand the genotext in order to gain a proper understanding of the phenotext. The textual definition of trademark appears the same, but the meaning (the text as a sign) has changed because of the institution of the Lanham Act. The Lanham Act extended protection to descriptive marks by making clear that “nothing … shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s good in commerce” (15 U.S.C, § 1052). Thus, as the underlying texts that the Court used in generating the surface of Qualitex changed, so did the meaning of “trademark”. The new interpretation of “trademark” allows color alone to be protected within trademark law so long as it meets the requirements of having secondary meaning and use. The Court further delves into the genotext of the Lanham Act, and supports its assertion that color is a proper basis for trademark protection, by indicating that a Congressional change in the Lanham Act left unchanged the language in Section  2 of the Lanham Act (consistent with the determination in In re Owens-Corning Fiberglas Corp 774 F.2d, 1116, 1128 (CA Fed. 1985), the adoption of a Patent and Trademark Office policy permitting registration of color as a trademark, and a report written by the Trademark Commission which recommended a broad reading of things which function as a mark to include color). Finally, Jacobson argued that there is no need to permit color alone to function as a mark because businesses can already use color as part of a word, name, symbol or device and that the company can rely on trade dress (prohibited under § 43(a) of the Lanham Act) if a competitor’s use of the same or substantially similar color causes confusion to consumers (Lanham Act §2(e), 15 U.S.C. § 1052, 1308). The Court quickly dismisses this argument as well for more practical reasons. The Court indicates many businesses may manufacture and sell commodities that cannot support the placement of a word or symbol onto the product. Thus, the business may want to use the color alone to signal to the consumer the source and value of the commodity. Further, the Court maintains that trademark law provides protection to the business that trade dress cannot, see further 15 U.S.C. § 1124 (2000) (ability to prevent importation of confusingly similar goods), § 1072 (constructive notice of ownership), § 1065 (incontestable status), and § 1057(b) (prima facie evidence of validity and ownership). The Court’s rationale can be viewed in light of the below Greimassian Square: Commodity Size Sufficient to Support Logo

Trademark Qualitex

Trademark Available

Trademark Available

No Color

Color

Trademark Available

Commodity Size Insufficient to Support Logo

12  Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law

235

The Qualitex case provides a complex but excellent example of the pervasiveness of semiotics both in the law and in trademark law. Trademarks are signs of source and value to consumers (and thus inherently a source of semiotics); the Court uses semiotics in determining that color alone can serve as a mark or a sign of source and value, deserving of trademark protection (indicating the signaling power of color marks); and semiotics can be used to attain a deeper understanding of the Qualitex opinion and the law that emerges from the opinion 15 U.S.C. § 1124 (2000) (ability to prevent importation of confusingly similar goods), § 1072 (constructive notice of ownership), § 1065 (incontestable status), and § 1057(b) (prima facie evidence of validity and ownership). The Qualitex case name has become a sign itself, having a certain meaning to trademark law attorneys and those who participate in trademark law master discourse.

12.6 Conclusion Using semiotics allows a lawyer to get a deeper look at and understanding of legal realities. Such an understanding may provide the attorney with the upper hand in litigation or enable the lawyer to maximize his or her effectiveness for the client. Moreover, using semiotics to analyze the phenotext and genotext of legal texts, using Greimas’ semiotic square and viewing law as a narration, allows for a greater understanding of legal meaning. “Law is such a complex character on our human stage. As character, it is also a composite, complicated, continually evolving idea. Law is a system of signs. It is a standard-bearer of social value” (Kevelson 1988). Lawyers use of semiotics aid in managing legal discourse. Semiotics has helped to maintain a balance in law with a rapidly changing, and ever-growing society. Awareness of how each legal concept evokes meaning, allows an attorney to deconstruct legal reasoning, to identify the conflict created as the framework for the legal issue and the values embedded in the terms used in making legal arguments. Trademark law is a vast area of the law that requires an understanding of both the language of trademarks and the language of the law. Trademark law uses words, sounds, scents, colors, symbols and devices to signify meaning to consumers – trademarks are signs. Thus, marks are not an irreducible, indivisible piece of property (the trademark holder has no rights in the signifier alone, but the goodwill signified as a result of the signifier and referent interacting); rather marks are relations of reference that are valued based upon how marks relate to one another within culture. As such, semiotics is an especially important skill that trademark attorneys should utilize when participating in legal discourse.

References Bains, Paul. 2006. The primacy of semiosis: An ontology of relations. Toronto: University of Toronto Press. 2009. Baudrillard, Jean. 1998. The consumer society: Myths and structures (trans: Chris Turner). London: Sage (1970)

236

M.L. Garrett

Beebe, Barton. 2004. Semiotic analysis of trademark law. UCLA Law Review 51: 621–704. Boston Professional Hockey Ass’n v. Dallas Cap & Emblem, 510 F.2d. Broekman, Jan M. 2009. Peirce and legal semiotics. In The Roberta Kevelson seminar course book on law and semiotics. Carlisle: Penn State Law. eBay, Inc. v. Perfumebay.com, 506 F.3d 1165 (9th Cir. 2007). Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 43`, 435 (7th Cir. 1989). Greimas, A.J., and F. Rastier. 1968. The interaction of semiotic constraints. French Yale Studies 41: 86–105. Yale University Press. Kevelson, R. 1988. The law as a system of signs. New York: Plenum. Kevelson, R. 1989. Law and semiotics. New York: Plenum. Lanham Act §2(e), 15 U.S.C. § 1052(e) (2000). Leschen, A. & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U.S. 166,71, 26 S.Ct. 425, 426 (1906). Morris, Charles. 1955. Signs, language and behavior. New York: George Braziller. NutraSweet Co v. Stadt Corp., 917 F.2d 1024, 1028 (CA7 1990). Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1128 (CA Fed. 1985). Peirce, Charles Sanders. 1934. Pragmatism and pragmaticism, Collected papers of Charles Sanders Peirce, ed: Charles Hartshorne and Paul Weiss. Cambridge: Harvard University Press. Qualitex. 514 US 159. Restatement (Third) of Unfair Competition § 13. 15 U.S.C. § 1052(e) (2000). 15 U.S.C. § 1127 (2000).

Chapter 13

The Semiotics of ‘Public Use’: “Use the Purpose by Which All May Benefit” Nathan S. Harvill

13.1 Semiotics Semiotics encompasses everything, which may be taken as a sign—not only in speech, but of anything that may stand for something else (Broekman 2009, § b). It is also concerned with the manner in which meanings are made and how that meaning is represented. Roberta Kevelson identified two major assumptions in the field of semiotics: “All communication is a process of exchange of meaningful signs, and sign systems such as natural language mediate between communicating personal and those objects in the phenomenal, physical world of experience to which they refer …” and, “All human societies have developed complex systems of both verbal and nonverbal sign systems which are not static but which evolve continuously to correspond with and to represent changing social norms and the evolving, growing social consciousness of any given community …” (Kevelson 1988). Kevelson suggests that the legal system itself is a model of dialogic thought development because of the relationship and interactions between legal thought and legal practice. The premises of a legal argument are presupposed to find a basis in a hypothetical argument, because those premises are neither true nor false, therefore, by necessity legal arguments must be looser and not conclusive. Previously, many believed that in the field of logic and semiotics, the legal argument was an exception because laws were the “black letter” written down, and all the court would need do is look at the appropriate “sign” in the law and to apply it. However, Kevelson recognized that Charles Sanders Peirce (one of the US founders of semiotics) had discovered that every argument—legal or otherwise—engendered from hypothetical statements and presuppositions, meaning that the “black letter” law was merely a presupposition established by an ongoing “conversation”. Peirce viewed semiotics as a branch of logic. Because he was a mathematician by trade, he based his study of semiotics on triadic sign relation, that A begets B and N.S. Harvill (*) e-mail: [email protected]

J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3_13, © Springer Science+Business Media B.V. 2011

237

238

N.S. Harvill

corresponds to C (Peirce 2009). A is a sign of something, B is the interpretant sign, and C is the object of the interpretant sign. Anything may be a sign, but each sign is dependent upon its relation to another. For Peirce, there were exactly three semiotic elements: the sign, the interpretant and the object. He describes the sign as a something, which represents in the broadest sense of the term or “says something about something”. A sign can materially be anything. Peirce describes the next element, the interpretant, as “the sign’s clarified meaning”— it is the product of the sign and the object. Finally, an object is a subject matter of both a sign and an interpretant, so that anything that is thinkable or discussable may be an object. Peirce’s theories were an indirect inspiration for Anglo-American jurists who recognized a changing legal system as it related to changing social systems and the evolution of human values, Kevelson noticed. The field of legal semiotics has yielded two major schools of thought, a European and an American. The European tradition holds that a there exists a “deep” structural level, which is coordinated on axes of paradigm and syntagm. The paradigm represents the dictionary meaning of signs and the syntagm represents the signs as understood in their proper (cultural) context. European tradition also holds that a sign is binary, being composed of the signifier and the signified. The signifier is the acoustic image and the signified is that to which the signifier refers, the “mental image.” Finally, the concept of “non-referentiality” is important for understanding the European tradition of legal semiotics. Non-referentiality is where the meaning of the sign refers to nothing but the meaning of another sign, which in its turn refers its meaning to still another sign and so on. There is no “mental image, nor any material substance in this European tradition to be conjured up by the use of a particular sign: only the “image” of another sign. Signs are in legal discourse representations of other signs, as will be illustrated in the cases which follow. Under such a semiotic system, legal discourse defines legal concepts, which are the signs used in the language of law. A leader of the application of the European tradition to legal semiotics is Algirdas Julian Greimas. Greimas developed an instrument that semioticians may employ to discover the underlying meanings of signs: his “Semiotic Square” takes opposing terms, concepts or signs and attempts to classify them. Opposing signs are placed on axes opposite each other, with the complimentary and contradictory signs placed opposite of them. In the square model which the Wikipedia reproduces, signs A and B are opposites: signs A and A1 and B and B1 contradict each other; and signs A and B1 and B and A1 compliment each other. Utilizing actual signs furthers the point, if A means “masculine” and B means “feminine” and A1 means “not masculine” and B1 means “not feminine”, the use of the semiotic square becomes apparent. See the square as it appears with the new signs. Note, that while “masculine” is the opposite of “feminine”, “not masculine” does not necessarily mean feminine; it is possible that “not masculine” could mean neither masculine nor feminine. Further, it is possible to tie multiple semiotic squares using binary oppositions to form a narrative. In applying the “American tradition” to the field of legal semiotics, it is important to note that the roots of the tradition are (a) pragmatism, (b) reference and (c) the triadic nature of meaning. Pragmatism is concerned with the “contextual and situated nature of meaning.” The American tradition adheres to the concept of reference, holding that signs refer to something outside of themselves to find meaning

13  The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit”

239

(unlike the European tradition). The concept of the triadic nature of meaning is the sign (word), interpretant (referent) and the object, which is in line with Peirce’s theory. Kevelson, applying semiotics to the legal profession, stated how “legal semiotics holds that in each case there is a legal event, in which legal discourse is one kind of legal act, and that legal procedures, as communicative events in which both legal actors and non-authorized persons participate, are exchanges of official messages by means of verbal and nonverbal signs and are also legal acts of a nonverbal kind.” She concluded that formal logic based upon syllogistic reasoning (consisting of a major premise, a minor premise and a conclusion derived by the first two), when applied to legal semiotics, cannot show how an idea evolves and grows because there is no additional information that is outside of the major and minor premises (Kevelson 1988). In law, the journey to the conclusion (or “object”) is as important as the conclusion itself. The American tradition is led by Kevelson’s championing of Peirce’s theories. Peirce challenged accepted convention by declaring that a person was not absolutely an individual because the thoughts of a person are an inner dialogue—conversations within coming to life in the continuum of time. Thoughts are signs, which are “spoken” to the critical self and the critical self becomes the interpretant of the signs. Further, individuals move within social circles that may act as one collective body with shared thoughts and ideas—identity groups. Each one influences the other and the conversation continues in perpetuity (Broekman 2009). In the same way, individuals with thought make up the profession of law; lawyers are a part of a certain identity group—the legal profession. Lawyers, by their signs (written or verbal) influence their group. At the same time, the legal profession influences the individuals within it—the lawyers. It proceeds in an almost circular fashion. The following chart presents an appropriate, if simple, representation:

Social Norms and Legal Precedent Influence Lawyers

New Law Governs Society, Establishing New Social Norms

Lawyers Argue Before Courts of Law

Court Makes Decisions Based Upon the Lawyer’s Arguments (New Law Is Created)

240

N.S. Harvill

This stands in contrast to the traditional notion of rigid rules and norms to which the law must in absolute terms adhere. The above cycle of discourse inspired Kevelson to reveal the importance of semiotics to lawyers, using four themes advanced by Peirce—the philosophy of a sign has to be transformed into a full theory of semiosis; the distinction between formal logic and the logic of discourse must be put into proper perspective; the focus on the philosophy and instead of the psychology of the lawyer; and the mind being a sign which develops according to the laws of inference. The “law” is a language representing a collection of signs an ongoing conversation between lawyers, courts and the society within which they exist (Broekman 2009). There have been variations in the application of both European and American traditions in legal semiotics relating to the intent or unconscious motivation of interpretants and signs. Legal semioticians move between the two traditions based not on “American” or “European” geography but on based upon their own understanding and interpretations of the law. Roughly spoken, the European approach tends to be more holistic, the American more analytical. Broekman (2009) offers the following steps in the application of legal semiotics to cases: 1. Identify the message. Describe the message of the text in concise terms, focusing on the main issue at hand. 2. Identify the signifiers. Formulate what they do in this text context and determine their meaning(s). 3. Identify the signifieds: how do they function as a receptor of meaning? 4. Identify the paradigms at hand, such as pairs, oppositions, categories, and their psychological or sociological signification. 5. Identify the syntagms. Find the direct and the implied messages, which you can identify. Differentiate between Linguistic components, such as words, de- and con-notations, Literal messages, Symbolic messages 6. Identify the principle functioning in the text or message such as: “justice” or “peace keeping”, “equilibrium” etc. It is of rhetoric importance to find how the elements in the text are tied together. This importance could be characterized as the management in the text, which leads to more encompassing management strategies within the context formed by all related other texts together. 7. Identify the specific legal features at work, reaching from message description to management analysis of the text. After completing the steps listed above, this information is then combined with Greimas’ semiotic square determining the place where each term should fit. In so doing, it is possible to see the decisive differences in the function and meaning of terms.

13  The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit”

241

13.2 Legal Applications The “language” of law changes over time. The cases to which the tools of semiotics will be applied are interpretants of—among many others—the signs such as “public use” and “private property”. Those are found in the last section of the Fifth Amendment to the U.S. Constitution. The pertinent text reads, “nor shall private property be taken for public use without just compensation” (Constitution of the United States of America. Amendment 5). In a Peircean scheme, the Fifth Amendment is the object (“private property”), whereas “private property” and “public use” are the signs and the case law is the interpretant. Courts act as a legal/political body using signs, not just words but the legal concepts of “public use” and “private property.” This chapter looks at a century of case law, book-ended by two cases, which are all dealing with the same sign: “public use.” The set of signs used by the court in its analysis of each case are shown in this square:

The court must first determine how the signs “public use” and “private property” relate to each other. Once that has been determined, the court will be on its way to find the meaning of each sign. Courts relegate the interpretation of “private property” in an American fashion: as something that is understood to exist in every case. The sign “private property” conjures up images of a person possessing his or her land, doing with it as he or she sees fit and being permitted to restrict the activities conducted thereupon. As the square above illustrates, private property and public use are in opposition to each other. The basis for the premise that “private property” and “public use” are opposites (upon which the above square is based) is the Fifth Amendment to the U.S. Constitution’s requirement that something be done in order to change one sign to the other. That “something” is legally determined as “just compensation”. This is important to note because if the signs “private property” and “public use” were interchangeable and not in opposition, there would be no need for “just compensation” to occur in order to move one sign to the next. The presence of the sign,“ just

242

N.S. Harvill

compensation” allows the interpretant to understand how “private property” and “public use” are opposites in this semiotic context. The square further illustrates that “not all private property” equals “not public use”, and ”not all public use” equals “not private property”. This “complementary” illustration forms the basis of the judicial inquiry in the cases, which follow—guided as they are by our leading question: “what is public use?”

13.3 The Cases The first case, Bauman v. Ross (1897), concerned the condemnation of certain private property in the District of Columbia for use as public highways. In the middle of the nineteenth century, the city of Washington did not cover the entirety of the District of Columbia. Beyond the Washington city boundaries, landowners were permitted to subdivide their lots and many of them laid roads over their own property in order to gain access and to allow the subdivision of land to be more economically feasible (Bauman v. Ross 1897, 550). Many of the roads were constructed only with the convenience of the landowner in mind and there was no uniformity. In an effort to correct this, congress authorized the Commissioners of the District of Columbia to regulate and restrict the manner by which all of the land in the District was to be subdivided, including any plans for new roads. This was done in an effort to promote conformity with the city of Washington. The act gave the commissioners power to extend a permanent system of highways over the entire District outside of the cities of Washington and Georgetown. The law authorized the commissioners to condemn land for the purpose of incorporating the relevant parts into the new system of roads and highways for the District (Bauman v. Ross 1897, 554). The term “public use,” as understood by the court in Bauman v. Ross included highways and roads, which the public would use and from which the public would benefit by means of “access”. Additionally, private properties would benefit from the access via the “public” roads. This added the sign of an “access” to the sign of public use, resulting in a new semiotic square:

The signs developed by the court in Bauman v. Ross, implied that unless there is “public use”, there is no “access”. This raises a new question as to whether it is possible

13  The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit”

243

for the public to have “access” outside of “public use”. The courts in subsequent years would attempt to further clarify “use” by adding new signs. An expansive interpretation of the sign of “public use” was taken in Berman v. Parker, (Bauman v. Ross 1897), which involved a re-development scheme where the local government was authorized to condemn private property in order to transfer the property to a private entity for the purposes of redevelopment. Justice Douglas expanded the definition of “public use” to include “public purpose” based on physical, aesthetic, and monetary benefits and stated that the purpose of the redevelopment plan in this case was to address the broader blight issues in the area in order to prevent the neighborhood from reverting to blighted conditions in the future. This begat another sign of “public use,” illustrated below:

Public purpose had now itself become a sign for public use, meaning that the original text of the Constitution had become supplanted by the court’s opinion. It was the court’s intention to make the signs “public use” and “public purpose” interchangeable. It is important to note the first part of the sign, “public”, remained the same: it was the latter portion of the sign which was changed! This replacement of “use” with “purpose” opens an entirely new conversation. The square illustrates the court’s interpretation:

The meta-concept in the above chart asks the questions, “Is it possible to have a “purpose” without “use”?” and, “Is it possible that something which is “purposeless” is always “useless”?” Berman did not answer this question, but by looking at the square above, the inference taken by lawyers and the whole of society is that in order to determine “use”, one must first determine “purpose”.

244

N.S. Harvill

The court looked at “purpose” in Hawaii Housing Authority v. Midkiff (467 U.S. 229 1984, 229), where the government of the state of Hawaii had proceeded in condemnation of property on the island in an effort to break up what was called a real estate oligopoly. The concern being that nearly half of the Hawaii’s real estate was in the hands of 72 individuals. The stated “purpose” of the Hawaiian government was to correct the market conditions that had created the oligopoly and allow more people to become landowners on the island. Therefore, the Hawaii Legislature concluded that the oligopoly in land ownership was “skewing the State’s residential free simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for title. The “purpose” would be to benefit the public with a more competitive real estate market to the wider populace. The court unanimously concluded that “benefit” would be the sign, which would relate to “purpose” and in its turn still related to “use”. The court was continued in semiotics as understood in the European tradition. The square below reflects the development advanced by the Berman case.

The opposite of “benefit” is “detriment”, the new set of questions asked are “Is something which is “purposeless” always a “detriment”?” and “Does something which has “purpose” also have “benefit”? Over the span of about 90 years, courts supplanted “public use” as identified in the Fifth Amendment, and equated the concept first with “access”, then “purpose” and then “benefit”. Changes of meaning imply changes of words and these cause changes of social relations. “Use” can be identified as a neutral sign. Just because something may have a “use” does not necessarily imply that it has a “benefit”. The “benefit” must be understood in its context. The court, in Hawaii Housing Authority, sought to limit the bounds of its interpretation stating that “a (A) purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void …. The Court’s cases have repeatedly stated that ”one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid” (Wikipedia 2009). The next square shows the evolution of sign meanings from the initial case, Bauman v. Ross, to Berman v. Parker and, finally, to Hawaii Housing Authority v. Midkiff.

13  The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit”

245

In Kelo v. City of New London (545 U.S. 469 2005, 469) the Supreme Court of the United States heard argument over the planned condemnation of private property by a city so that the city could then transfer that property to another private property owner. The Court’s majority opinion based its analysis upon the sign of “benefit” comparing “benefit” to “purpose”. The dissent rejected this comparison, opting instead to look back at the beginning — to the Fifth Amendment itself and the more neutral sign of “use”. Consulting a thesaurus, the term “purpose” returns the following synonyms: advantage, avail, benefit, duty, effect, function, gain, goal, good, mark, mission, object, objective, outcome, profit, result, return, target, utility (Thesaurus.com 2009). These synonyms listed have a common image of looking forward in attempt to manage an end result, making it more similar to the sign “benefit”. The term “use” has these synonyms: account, adoption, advantage, appliance, applicability, appropriateness, avail, benefit, call, capitalization, cause, convenience, custom, end,

246

N.S. Harvill

exercise, exercising, exertion, fitness, good, habit, handling, help, helpfulness, mileage, mobilization, necessity, need, object, occasion, operation, point, practice, profit, purpose, reason, relevance, service, serviceability, treatment, usability, usage, usefulness, utility, value, way, wear and tear, wont, worth. Most of the synonyms of “use” are present actions or ideas, which could or could not be beneficial. Linear time is the distinguishing factor of each. It is worth noting that “purpose” is a synonym for “use” but “use” is not a synonym of “purpose”. Because one sign is a present impression and the other is a future event, it could be said that “use” may lead to “purpose” but “purpose” does not necessarily lead to “use” because “purpose” is future looking and “use” is present looking. O’Connor, writing the dissent in the Kelo case, spoke of how the court’s use of the sign “purpose” as an equal to “use” rendered the term “use” meaningless. Additionally, Justice Thomas raised doubts about the practicality of using a sign that by its necessity looks to the future in order to divine any perceived “benefit”; Thomas’ view is that a return to the sign “use” would provide the court with more practical guidance, thus returning the court to the court to “square one” as it were.

13.4 Conclusion It is very likely that the courts will be called upon again to determine how the Fifth Amendment will be interpreted. The Kelo decision shows, however, that there is a growing public backlash to the endless evolution of a sign. Judge Thomas’ position that “use” should be the proper sign followed by the courts has been somewhat vindicated by the fact that the “benefit” expected by the condemnation of the City of New London has never materialized because the developer to whom the city had planned to transfer the land ran out of money and has been unable to develop it as of this writing (Wikipedia 2009). His and the dissent’s position is further strengthened by what happened in the years following the decision in the Hawaii Housing Authority case. Because the Hawaiian government’s scheme only transferred title from the land lessor to the lessee (homeowners who already occupied existing homes on the subject property); as soon as the former lessees acquired fee simple titles to their homes, those became attractive to Japanese investors and speculators who paid outlandish prices for those homes (largely located in the upscale Kahala and Hawaii Kai neighborhoods), causing a ripple effect throughout the island. Home prices on Oahu, far from falling as intended by the legislature, surged upward, and even more than doubled within 6 years (Wikipedia 2009). It is possible, that society will adopt the “earlier” approach of the “plain text” of the Fifth Amendment, placing that interpretation of the sign “public use” back into the mainstream where it will be re-inserted into the cycle of legal discourse. If so, perhaps the cycle begins anew and repeats or perhaps new signifiers as yet unknown will be utilized by future courts to formulate entirely new languages.

13  The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit”

247

References Bauman v. Ross, 167 U.S. 548, (1897) Id. at 550 Id. at 554. Broekman, Jan. M. 2009. The Roberta Kevelson law and semiotics seminar Course Book, Pennsylvania State University, Dickinson School of Law. (a) Introduction. (b) Peirce and Legal Semiotics. (c) Postmodernists. Constitution of the United States of America. Amendment 5. Kelo v. City of New London, 545 U.S. 469. 2005 (Full Text: Cornell Law School Website). Kevelson, Roberta. 1988. The law as a system of signs. New York: Plenum Press. Peirce Charles Sanders. 2009. See. org/wiki/Charles_Peirce.Jun-11. Thesaurus.com. 2009. “Use”. http://thesaurus.reference.com/browse/use. “Purpose”. http:// thesaurus.reference.com/browse/Purpose. 467 U.S. 229. 1984. 545 U.S. 469. 2005. Wikipedia. 2009. “Hawaii Housing Authority v. Midkiff”. http://en.wikipedia.org/wiki/Hawaii_ Housing_Authority_v._Midkiff. Kelo v. City of New London. http://en.wikipedia.org/wiki/ Kelo_v._City_of_New_London

About the Authors

Broekman Jan M. Broekman is a Distinguished Visiting Professor of Law at the Dickinson School of Law, Penn State University. He teaches “Civil Law: From Roman Empire to European Union” and directs “The Roberta Kevelson Seminar on Law and Semiotics”. This Seminar is represented in two Special Issues of the International Journal for the Semiotics of Law: “Lawyers Making Meaning.” (2009) and “Signs of Law” (2010), edited with Professor William A. Pencak. Professor Broekman is a Professor of Legal Philosophy and Theory and former Dean of the Law Faculty at Katholieke Universiteit Leuven, Belgium. He has served on the faculty of the Free University, Amsterdam, The Netherlands (1980–1995) as a Professor of Philosophy of Medicine, and as a Visiting Professor of Law at the University of Illinois in Champaign-Urbana. He is honorary professor at Universidad Nacional de Argentina, Mar del Plata and Senator of the Accademia Internazionale Medicea, Firenze, Italy. Professor Broekman has authored more than 25 books and 300 articles in scientific journals. He is a participant in the electronic education activities of the New York Multimedia Institute for Interactive Learning in the US and abroad. His latest works include: “A Philosophy of European Union Law” (1999); “Recht uit Woorden” (2004); “The Virtual in E-Education” (2004); with M. H. Foox, “Binding Words, Unfolding Selves” (2008) and edited recently, with Anne Wagner, “Prospects of Legal Semiotics” (2010). Broekman studied law and social sciences at the Rijksuniversiteit Leiden (Netherlands) and philosophy at the Georg-August Universität Göttingen, Germany, where he obtained his Ph.D. Butler William E. Butler, formerly of University College London, is the preeminent authority on the law of Russia and other former Soviet republics and the author, co-author, editor, or translator of more than 120 books on Soviet, Russian, Ukrainian and other Commonwealth of Independent States legal systems. He also J. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, DOI 10.1007/978-94-007-1341-3, © Springer Science+Business Media B.V. 2011

249

250

About the Authors

edits the journal Russian Law, published by the Russian Academy of Legal Sciences; the East European and Russian Yearbook of International and Comparative Law, published by The Vinogradoff Institute; and is on the editorial board of a number of other journals. The former Chair of Comparative Law at the University of London, Professor Butler is the founder and director of The Vinogradoff Institute, which operates as a unit of Penn State Law. Under Professor Butler’s direction, the Institute coordinates research and teaching activities related to Russian and CIS legal systems. The recipient of numerous honors for his service to Russian and international law, Professor Butler is an Academician of the National Academy of Sciences of Ukraine and the Russian Academy of Natural Sciences and is serving his third term as a member of the Russian International Court of Commercial Arbitration. He recently was appointed to the Panel of Distinguished Neutrals as an arbitrator of the International Institute for Conflict Prevention and Resolution. He teaches Russian Law; Foreign Investment in Russia and the Commonwealth of Independent States; Law of Treaties, Law of the Sea; History of International Law; and Comparative Approaches to International Law. Cyran Edward J. Cyran is a 2011 graduate of the Pennsylvania State University Dickinson School of Law where he has served as the Managing Editor of the Penn State Law Review. Along with fellow author, Paul Van Fleet, he will compete with Penn State’s American Association of Justice Trial Team at the AAJ’s annual competition in March 2011, whilst recognizing that a well-intentioned “story of the trial” can not only be a work of art, but also give credence to the adversarial system of justice. Ellsworth Jeffrey A. Ellsworth, JD, LLM, Esq., is a licensed attorney in the State of New York and is employed as an Assistant Public Defender for St. Lawrence County. He focuses mainly in family law, with a modicum of criminal practice. After receiving his Bachelor of Arts from the University of Rochester, majoring in History and Religion with a minor in Philosophy, Ellsworth attended the Dickinson School of Law of the Pennsylvania State University (including the Law and Semiotics Seminar) earning his Juris Doctor. Most recently, Ellsworth completed a Master of Laws with Merit at University College London specializing in Jurisprudence and Legal Theory. Garrett Meghann L. Garrett, Esq., is a graduate of Penn State Dickinson School of Law where she received a JD in 2009. She is currently a practicing attorney at Stone,

About the Authors

251

Duncan & Associates, P.C. in Dillsburg, Pennsylvania. At her firm, she handles intellectual property matters, including copyright and trademark registration and infringement actions. She also focuses on small businesses and non-profit businesses, assisting in start-up, contract, employment, and other business or intellectual property matters that arise. Harvill Nathan S. Harvill, Class of 2009, received his J.D. from Penn State University, Dickinson School of Law, lives in Tulsa, Oklahoma, where he works for the City of Tulsa Human Rights Department as a Program Resource Analyst conducting policy research and opinion on a variety of Human Rights Issues affecting the city. His primary focus is on grant funding programs provided to the City by the Department of Housing and Urban Development, Community Development Division. Sorting through regulations requires a heightened sensitivity to the semiotics of law, not only for analysis but also for communication of policy to the public, particularly those who reside in lower and moderate income-areas. Karnezos Elizabeth Karnezos, Esq., is a 2010 graduate of The Pennsylvania State University Dickinson School of Law. She holds, apart from her J.D., a M.Ed. in Higher Education from the University of Virginia, and currently serves as a judicial law clerk to the Honorable Judge M.L. Ebert in the Court of Common Pleas of Cumberland County, Pennsylvania. Mootz Francis J. Mootz III is Associate Dean for Academic Affairs and Faculty Development, and is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas. During his twenty-one years as a law professor he has written in traditional doctrinal areas such as insurance, contract and sales law, and he also has undertaken an ambitious agenda of interdisciplinary scholarship exploring relationships between law and contemporary European philosophy. His jurisprudential interests center on the philosophy of hermeneutics and rhetoric. Recent books include: “Gadamer and Ricoeur: Critical Horizons in Contemporary Hermeneutics” (Continuum 2010) (Ed. with George Taylor), “Law, Hermeneutics and Rhetoric” (Ashgate 2010), “On Philosophy in American Law” (Cambridge University Press 2009) (Ed.), “Nietzsche and Law” (Ashgate Press 2008) (Ed. with Peter Goodrich), “Gadamer and Law” (Ashgate Press 2007) (Ed.), and “Rhetorical Knowledge in Legal Practice and Critical Legal Theory” (University of Alabama Press 2006). He is a member of the Advisory Board of the interdisciplinary

252

About the Authors

journal, Law, Culture and the Humanities, and delivers papers around the world on topics in legal theory. Pencak William A. Pencak is Professor of History and of Jewish Studies at Penn State University. He received his Ph.D. degree from Columbia University, New York, in 1978. As historian he became famous for his research and extensive publications in the field of early Unites States history. He edited the journal Pennsylvania History and a series of volumes on that topic, wrote books on history and semiotics, the Icelandic sagas, the films of Derek Jarman, and the history of early American Jews to 1815. His book Jews and Gentiles in Early America (University of Michigan Press, 2005) was the runner-up for the National Book Award in American Jewish History 2005. He wrote extensively on semiotics and served as President of the Semiotic Society of America in 2000–2001. Among many others, his contributions on history and semiotics are widely read, as well as his History, Signing in (1993) and The Wit and Wisdom of Roberta Kevelson (2001). Van Fleet Paul Van Fleet is a 2011 graduate of the Penn State-Dickinson School of Law. During his time as a law student, he served as an Articles Editor of the Penn State Law Review and as a member of the American Association for Justice Trial Team with his colleague and fellow author Edward J. Cyran. He received the CALI award for highest marks in the Spring 2010 session of the Law and Semiotics Seminar. Wirth Michelle L. Wirth, Esq., earned an M.P.M. from the Carnegie Mellon University Heinz College of Public Policy and in 2009 a J.D. from The Penn State Dickinson School of Law. Her interest in the use of legal tools peaked by competing in the Willem C. Vis International Commercial Arbitration moot. She resides in Pittsburgh, Pennsylvania.