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.
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.
What does Eugenides’ novel teach a law student? No more than that his or her performance always focuses on a plot! The story elements of legal discourse are a center; the fable that he reproduces the way it was taught to him in law school fascinates his client; the motif of the defendants should unveil relevance for life; the intrigues challenge a lawyer’s skills of understanding and interpretation.
So, what has a law student to learn from semiotics and how could he or she profit from learning about that stuff? The question is important—why should a highly expensive legal education program be loaded with fancy time-devouring issues? The answer bears the mark of classical simplicity: the profit is about everything and nothing. The student will profit nothing in addition to what is offered in the ensemble of courses, clinical experiences and legal texts included. He will profit everything because it all appears in a different and hitherto unknown light: the clarity and the management of meanings through which lawyers operate in society. Those meanings are preformed in an ever expanding and changing discourse, which a layman simply calls “law”.
The road to the legal profession lightens up because of (1) insight in the often complex ideas of the godfathers of semiotics, (2) semiotics clarifying how legal thought patterns (the basis of all individual legal topics and fields in the law school program) are structured, (3) perceiving law as a specific discourse, and thus as a linguistic issue in many roles society needs to be performed, (4) acquiring knowledge and skills in managing semiotic techniques (from signs to squares), (5) performing analyses specific for law and legal texts (which differ considerably from literary analysis) and mastering a semiotic modus operandi, (6) law students thus acquiring a particular socio-legal efficiency, a mature attitude as decider and advisor, embracing insight in the multiple layers of legal-technical issues (such as contract, liability, judicial review and the like) so that they are better prepared for leading a life in plural.
The Broekman/Mootz book offers educational experiences and essays from the Roberta Kevelson Seminar on Law and Semiotics programmed in the period 2008 – 2011 at Penn State University’s Dickinson School of Law. Its texts introduce education in legal semiotics as it evolves in a legal curriculum. Semiotic concepts, such as ‘sign’, ‘symbol’ or ‘legal language’ among others, demonstrate how a lawyers’ name- and meaning-giving endeavor is professionally important but seldom completely clear for lawyers themselves or for citizens. It requires analyses of considerable depth to understand the expressiveness of these legal names and meanings, and how only lawyers can “say for law” (or urge such a saying correctly and effectively) in the context of a language that is understandable to all of us.
There is a natural link between legal education and globalization tendencies as well as the development of legal theory. Trial practices in the Common Law are analyzed in the light of legal semiotics in contemporary legal theory. More than one essay engages in comparative semiotic analysis as well as theoretical issues. The chapter on “Gender and Family” is entirely authored by seminar students. Claude Lévi-Strauss is quoted in showing how gender and family structures are basic in a structural analysis of social relations. 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 final chapter, also conceived by seminar students, shows in the example of trademarks how semiotic approaches can enrich economic and business legal issues, whilst deepening lawyers’ meaning making capacities.
The book is a first effort to document and analyze a specific field of legal education 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 single individual’s task!
Law on the one hand and semiotics on the other may originally have very different appreciations of today’s position of a subject in law and a citizen in society. How do they come together in their approach to social reality and what has legal semiotics to say about it? Semiotics is the word that indicates how meaning is never an objective fact but that all meanings show our lives as having the format of to the continuously changing mental and cultural situation we live in. The book is ultimately not about semiotics we have in our learned law school minds when we speak about legal semiotics or law-and-semiotics. It is about the psychological costly and energy devouring attempts we all make to cope with existing, fixated, inherited meanings. These are engendered in our education so that we are expected to live with them. That expectation is in our age perhaps the foundational norm of occidental citizenship as well as a renewable challenge to each member of the legal profession.
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