Thursday, December 15, 2011

From Jan Broekman: Tracking Semiotics From Literature to Law in Two Recent Books

My colleague, Jan Broekman, has written reviews of two excellent works,  Jeffrey Eugenides: The Marriage Plot, New York: Farrar, Strauss and Grove, 2011; and Jan M. Broekman & Francis J. Mootz III (eds): The Semiotics of Law in Legal Education, Dordrecht: Springer Publishers 2011. 


 (From Eugenides: Enduring Love                            F. Jay Mootz                           Jan Broekman
Telegragh UK 15 Dec. 2011)
Both works are considered in Professor Broekman's innovative Law and Semiotics Seminar at Penn State.  The course description : "Legal semiotics is the study of law focusing signs and symbols as well as the construction of meaning in law in legal discourse. Law's communicative structures are essential in this context. Moreover, recent large-scale economic, political and social developments in the Western hemisphere have increased the need to expand our knowledge about law, and semiotic studies sustain that need." 
1. Jeffrey Eugenides: The Marriage Plot, Farrar, Strauss and Grove, New York 2011.

“I Was an Under-Age Semiotician”, Steven Johnson writes October 2011 in The New York Times Book Review. How could he? Did he know, and does he know today, what semiotics means? The word comes from the Greek seme for ‘sign’, so that semiotics should be understood as “the science of signs”, which always comes with parallels like symbols, meanings or significations. The concept is mentioned in the 2011 novel The Marriage Plot by Jeffrey Eugenides and functions there as a sign. The novel does not unveil how much that sign concept contributes to the general study of signs. It is in the novel little more than an element of western culture in the final days of structuralism, existentialism, phenomenology, deconstructionism in the 80s of the last century, as many reviewers such as Sam Sacks: “Sense & Semiotics” in The Wall Street Journal, Oct 8/9 2011, W. Deresiewicz: “The Graduates”, Steven Johnson: “I Was an Under-Age Semiotician” in The New York Times Book Review Oct 16, 2011 or Michael Greenberg: “The Mania of Love” in The New York Review of Books, Nov. 2011 skillfully highlight. Students were a semiotics major in humanities programs—they were by no means law students. The novel recaptures the spirit of US Universities in the early 1980s, in particular the struggle to better understand and firmly fixate a youthful self. Eugenides, belongs with authors like Franzen or Wallace to a generation of recent writers that has been educated in subtleties à la Foucault or Derrida, which put basic ideas about writing, reading, text or authorial emotions in perspective.

All that is reflected in the novel’s title. The novel is on love in the light of semiotics as understood during the 80’s and the philosophical question about its true meaning. Is love more than or different from a construct of the human mind, to which we assign psychic values we cannot overcome? The novel’s title bears the expression plot not by accident. A plot is a story element and equals a fable, an argument, a design, a motif, and is sometimes conceived as the ultimate deus ex machina. Is love plotted as an intrigue, a future or a maneuver? If marriage and love have anything to do with each other, is that the result of a plot, or the construction of a couple within the coordinates of a cultural pattern? No wonder that Roland Barthes’ 1977 A Lover’s Discourse plays an eminent role in the book: if being in love, or being married is solely an idea then you can liberate yourself from its tyranny and fascination and regard marriage as an issue for lawyers! No wonder that the Dutch translation of Eugenides’ novel leaves the word plot out and simply titles Huwelijk (Marriage) and the German follows suit with Die Liebeshandlung (The Act of Love). The issue remains untouched in those titles, whereas the Spanish as well as the Italian translation write correctly La Trama del Matrimonio (The Marriage ‘Plot’, or ‘Intrigue’). The plot is the semiotic hinge which gives the novel its widely spread attention; it emphasizes the dynamics and power of the human mind and its constructs and can relate semiotic insights dated some forty years ago with recent insights, not in literature but this time in law.

Flanked by fashionable interpretations of Derrida’s texts and Parisian structuralism, the English major students were taught to understand life as a text: poems, novels, belles letters i.e. ‘literature’ in its entirety functioned as a representation of life within a multitude of cultural phenomena. Signs, a major component of semiotics, were not the objects to focus, and law was not at the horizon. Law and politics is a far more recent development; legal practices and their political implications (both the result of meaning making by specific professionals) are not included if one reflects upon the essence of one’s life with an eye on bookmarks! Remembering the fads of those years, its components dated back to Levi Strauss, Foucault, Derrida, eventually Husserl or Heidegger, the US philosopher Peirce, or the Swiss linguist Ferdinand De Saussure, perhaps in our days Umberto Eco. Traces of deconstructionism or structuralism can still surface in literary texts, but they do not play a forefront role anymore. So the question remains what semiotics has to do with law, and in particular with a legal education program in the second decade of the 21st century? The step from marriage as a bond of love to a civilian bond was made exemplary in the Napoleonic Code, 1804—a Code that confirmed the triumph of legal thinking about social order: marriage is a contract between partners, which close that contract in freedom. Not lovers, but bearers of rights and duties marry! Even in interrelations between Common Law and Sharia Law, the issue is important. In Zawahiri v. Alwattar (No. 07AP-925), a US Court held that the Muslim Marriage Contract, as a prenuptial agreement, was not enforceable; however, the Court also held that a Muslim Marriage Contract could be enforceable as a simple contract. What is fable, or construct of the human mind, or language and meaning made socially effective and what is nature beyond the human construct? The lawyers’ meaning making decides!

A first semiotic insight that forms a possible foundation for tracking changes from literature to law is, that each fable, fiction, argument or motif functions as a source of meaning and an originator of significations. They should mainly be accepted, appropriated and made come true by means of rule following, as Anglo-Saxon legal theory emphasizes. Any founding norm is in essence a semiotic power, which is not recognized as such in legal practice. The argument in legal practice is, that ‘facts are as they are’ and the world of facts ‘is not made by lawyers, who only have to judge what is unfolding before their eyes’. Lawyers are not face-to-face with semiotics, because it seems more appropriate not to cultivate awareness about the multiplicity of meanings inherent to the “law-job” (as Karl Llewellyn wrote 1941). He later described how the law’s mood is too craft-conscious and not fit to smell revolution or to campaign reform. The meaning-making power in a lawyer’s handwork thus remains in the dark. Indeed, lawyers do not relate to what semiotics unfolds.

A second semiotic insight is, that legal theory does not display semiotic sensitivity: concepts such as meaning, sign and signification remain subordinated to rules or principles. Traffic lights are an example here: a red traffic light is a signal to stop in conformity with rules, and there are resemblances between command and social order—a semiotic issue in its own right. Meanings of the red traffic light are narrated by lawyers during the performance of their legal practice and are then offered to the Court as a fact—not as a fable or a fiction. The rhetoric of behavior can depend upon rules and appear as rule-following, but never without a wider linguistic basis of human conduct: language, speech, verbal as well as non-verbal communication are indispensable for rules to be in effect. Legal meanings always emerge in a discourse, which expresses culture as human artifice par excellence.

The two insights show that legal education on both sides of the Atlantic needs to be completed with knowledge and understanding of semiotics in law and legal discourse. However, the step from (English) literature to semiotics of law in legal education is until now not made. Attention must be given to a first book on that theme, based on a years long experience in the Roberta Kevelson Seminar on Law and Semiotics at Penn State Law.

2. Jan M. Broekman & Francis J. Mootz III (Eds): The Semiotics of Law in Legal Education, Springer Publishers 2011.