Sunday, June 10, 2012

Jan Broekman: On the Origins of Legal Semiotics

My distinguished colleague at Penn State, Jan M. Broekman, presides over The Roberta Kevelson Seminar on Law and Semiotics.  He is Professor Emeritus Universities of Leuven, Belgium, and Amsterdam, Netherlands, Honorary Professor National University of Argentina in Mar del Plata, Argentina, Visiting Professor University of Illinois College of Law (some of whose works are listed here).

He has recently prepared an essay "On the Origins of Legal Semiotics" that is posted below. The essay forms part of a larger work, Lawyers Making Meaning: The Semiotics of Law in Education.

On The Origins of Legal Semiotics
Jan Broekman

Questions about the origins of legal semiotics are never posed.  They are not an issue when studying the godfathers of semiotics or the later relations between legal semiotics and jurisprudence.  References to the Ancient Greek understanding of signs in medicine—as formulated in the introducing chapters—are no more than a simple transposition from medicine into legal discourse.  That is clearly insufficient in view of the context and content of any specific legal branch of semiotics; its specialized Journal remains silent on the issue from the first to the last pages[1].  Why?  Some mention a biographical event in the career of Roberta Kevelson during the early eighties of the 20th century.  It tells us how Thomas Sebeok should have suggested that law is an interesting area to study the constitutive powers of signs in law.  However, her 1988 publication “The Law as a System of Signs” cannot solely be seen as an answer to that suggestion.  Where are the first attempts to formulate legal semiotic insights: who took initiatives; what were the themes of legal interest and importance, what its cultural context?  Those considerations underline how insight in the origins of legal semiotics could accomplish the self-understanding of a lawyers’ meaning-making capacity.

Semiotics and Significs
The centenary of the death of Lady Victoria Welby (1837-1912) reminded the world of a peculiar constellation, which was hitherto insufficiently researched[2].  “Semiotics” was never the only term in use for the study of signs and of meaning!  Lady Welby promoted—in parallel and whilst corresponding with Peirce—her term “significs” for the same discipline.  And as if wrestling with the importance of the pragmatic dimensions of sign-uses and meanings like Peirce, she highlighted that there is no study of meanings without interpretative power occupying a core position in life.  She appears—not unlike Peirce—entangled in pragmatism, because it shows how her position between skepticism and philosophical naivety urges for decisions, actions and social commitment rather than for scientific endeavors such as linguistics or theories of knowledge.  When reconsidering this, and opening related perspectives of the problem, we already assess a profile of the constellation at hand.  It tells us that in view of the origins of legal semiotics (a) terminological uncertainty (choices between significs and semiotics) reigns as well as (b) language issues (not all contributions are written or translated in English) and (c) personality issues (who came originally forward with legal semiotic viewpoints).  These three components of the profile should be outlined in a sketchy manner in order to inform the reader without disturbing the main lines of research and representation of this book. 
First we suggest that there is no real choice or any agonizing discrepancy between the two terms for the newly developing discipline: significs and semiotics.  Both have their own variations that highlight different aspects, such as Lady Welby’s sense, sensifics, meaning, signification, significance or ideal worth, and Peirce’s semiotics, semeiotic, semeiosis or synechism.  Lady Welby clearly juxtaposed ‘significs’ to ‘semeiotics’ in a Peircean sense[3].  Such variations show a close togetherness and exchangeability between the two major concepts[4].  For Lady Welby as well as for Peirce truly counts what Max Fisch formulated in his study on “Peirce’s General Theory of Signs”, that “most needed (is)…a lexicon that quotes Peirce’s best definitions or explanations of the terms he uses and that gives references to other passages in his writings…”.  In the absence of such a lexicon, one has to refer to the correspondence between Peirce and Lady Welby published 1953 and 1977.  The letters show a mutual understanding and close commonness of purpose, so that we can to a high degree equalize significs and semiotics the way we understand these concepts today.  Lady Welby writes 1908 to Peirce: “You have always been kindly interested in the work to which my life is devoted” and Peirce writes her: “…when I have myself been entirely absorbed in the very same subject since 1863, without meeting, before I made your acquaintance, a single mind to whom it did not seem very like bosh”[5].  Legal semiotics and legal significs can consequently be regarded as identical so that a first suggestion about legal semiotics can as well originate within a significs context[6].
            Second, there is the language issue.  Roughly spoken, semiotics has thanks to Peirce’s philosophical project developed in English during the second half of the 19th and the first of the 20th century, whereas French linguistic and psychological contributions (Greimas, Lacan) are until now only fragmentarily translated.   Semiotics under the name ‘significs’ was written in English in so far as the work of Lady Welby and some of her followers/correspondents were concerned, however, important works were conceived in Dutch during the first half of the 20th century in Amsterdam and its signific movements: 1917 the “Internationaal Instituut voor Wijsbegeerte”, established in four (!) languages, Dutch, English, French and German, and 1922 (at distance from Lady Welby’s work) the Dutch “Signifische Kring” to support signific language-studies and philosophy, in particular studies on mutual understanding, speech acts and related linguistic utterances)[7].  The latter contacted incidentally German philosophers and psychologists, but there were no major signific works in German conceived. 
            Close encounters between the Dutch poet, novelist, psychologist and cultural icon Frederik van Eeden and Lady Welby during the London “International Congress of Experimental Psychology” in August 1892 lead to a uniquely deepened interest among Dutch scientists and literary figures.  Lady Welby’s 1893 and 1903 publications in Mind supported that interest.   The Dutch mathematicians L.E.I.Brouwer and G.Mannoury, the sinologist Henri Borel, the author/psychologist Frederik van Eeden, the linguist J. van Ginneken and the writer, poet and jurist Jakob I. de Haan formed the first generation to support, explore, criticize and publish from diverse significs circles in The Netherlands.  They felt a common urge to examine the effect of language on thought, feeling and behavior, investigate means and structures of human communication (‘verstandhouding’) and concentrated on the constitution of meaning of words in linguistic connectivity.  Would it surprise that legal semiotics could become profiled in this intellectual and political climate—and yet remain globally unknown because of the isolation caused by its native language? 
Third there is to consider a personality involved, the originator of a semiotics of law who has never been acknowledged as such, not even in circles of significs or semiotics[8]:  Jacob Israel de Haan (1881-1924), the first legal semiotician, was one of the members of the first generation in the Amsterdam Significs Circle.  De Haan was an untimely personality: a writer and precursor of Amnesty International with his work on the prisoner rights and life conditions in Russian prisons 1912/1913, one of the first openly gay authors of literary works in The Netherlands (Pijpelijntjes 1904, Pathologieën, 1908), a widely appreciated poet (Collected Poetry, 1952), and a politically active Zionist murdered in Jeruzalem in 1924 by a member of the secular Zionist organization Hagana.  He had gradually become an anti-zionist, spying for the British secret service, a contact person to the father of King Hussein, Emir Abdallah, and ultimately a victim of the first political murder in Palestine.

Jacob Israel de Haan
De Haan’s scientific work as jurist and law professor at the Universities of Amsterdam (1916 -1918) and Jerusalem (1920 – 1924) focused exclusively on “Legal Significs”, the theme of his PhD dissertation in Amsterdam 1916, in relation to basic jurisprudential concepts (liability, responsibility, accountability) and areas of law (criminal law, civil law, contract law, rights positions).  That focus was prepared from 1912 on, as Petrilli mentions: “From 1912 onwards De Haan developed legal significs, that is, the analysis of legal problems from a significal perspective, writing forty articles and two books on the subject.”[9]  Three issues should be exposed in this short oversight: (1) De Haan’s concept of legal significs/semiotics; (2) his appreciation of ‘language’ and (3) of the ‘jurisprudence-language’ relationship.

Legal Significs
Legal Significs is the concept that covers the understanding of mutually grasped meanings and inherent appreciations among human individuals in a cultural pattern.  Without ever having studied Peirce, the discipline includes most of the elements the latter has mentioned for his semiotic project, which clearly focuses on sign, interpretation and meaning.   Legal semiotics is as a consequence the ensemble of descriptive, explanatory, critical and active significs/semiotics of law—three levels and contexts of approaching law’s meaning making power.  That insight leads to the concepts ‘sign’ and ‘signification/meaning’ and their relevance in legal discourse by means of a new understanding and appraisal of legal language.  Significs/semiotics (no fundamental difference found) of law was presented by De Haan to his legal colleagues between 1910 and 1920 in more than ten essay-titles, all of them focusing on various legal areas and in the first place on the language lawyers use in those contexts.  The ultimate goal of this approach is a more precise, a better understanding of language.  Poets know this from their innermost experiences, de Haan argues, which means that the distance between immediate experience and reflection, between science and wisdom, leads to the insight that experience is what not is experienced but to what is grasped as experience through reflection.  In that same sense, legal semiotics/significs does not focus legal science in the first place but the concept of law itself, as it does not relate to linguistics but to the concept of language itself.
The essence of legal semiotics/significs culminates in a philosophical reflection upon the power of legal language upon the law. A legal semiotician does not analyze the multiple meanings of words and expressions in legal language in each case and in each application individually.  A word does not ‘possess’ a meaning but ‘is’ the (temporarily and culturally determined) unification of a number of meanings.  Words are mutual and thus in equal relations, and therefore differences (Mannoury 1915).  Were De Haan’s considerations to explain legal significs/semiotics at first more or less identical with semantics as an integral part of linguistics, they grew in the course of the later years.  They became a systematic study of expression, of understanding, of self-preservation, of symbols and other means of communication.  All can play a role in legal discourse, as do sound, images, signs, movements—but legal significs/semiotics should focus on words in the first place.  In an extremely relevant and modern manner, De Haan formulates 1916: “The word penetrates my mind and my mind penetrates the word”.  This penetration forms the foundation of significs/semiotics for the lawyer, who works with words and gives words a meaning.  It has irritated and offended many legal colleagues and it has given legal semiotics a bad name among jurists from its very (and mostly unknown) beginning.  Schmitz’ remark interests, that the “recently expressed view of significs as a uniquely Dutch form of scientific endeavor dealing primarily with fundamental problems of mathematics and social sciences, is not exactly false, but it is one-sided…. The Dutch significians cared about more than the treatment of special problems involved in knowing mediated by symbols.  They also addressed themselves to the analysis of interaction by means of signs, namely communication …”[10]

Language is at issue in all regards.  Legal semiotics concerns all meanings in legal language[11].  A semantic analysis of all major legal concepts is the ultimate task of legal significs/semiotics.  This implies a critique of the current legal language and its general expressiveness: that language is often incomprehensible for the citizen and full of misconceptions created by the lawyers.  And it implies an idea about legal discourse in general, which is close to the Vienna Circle and its positivism, and close to Wittgenstein’s Tractatus: legal language should allow law to become a reliable element of scientific argumentation—that would lead to a better law!  De Haan’s purpose is in a slogan of his PhD dissertation: “Betere taal is beter denken. En beter denken is beter recht” [Better language is better thinking. And better thinking is better law].[12] Significs/semiotics is, expressed with a variation on Wittgenstein, about language-games and not about word-games.  The words that are subject of his dissertation: liability, responsibility and accountability, are elements of legal language: they are only in that quality ‘words’, and as words are they constitutive elements of law.
These concepts are analyzed as building blocks of criminal law, which represent the entire structure (a dogmatic structure in the wording of Civil Law) of legal science.  That is one side of the coin.  These words, belonging to criminal and penal law, belong to a firm legal practice, which is interwoven with a specific form of (legal) politics.  This interests, because we meet a question, which is also posed in the context of the Critical Legal Studies movement of the seventies and eighties of the 20th century in the US.  The reference shows an unexpected coherence between semiotics and CLS in law.  The common experience is, that jurists always meet language: as law, as statute, as practice and as a means of action.    De Haan formulates therefore in his PhD dissertation: “The insight that that legal language has to improve, is in particular dear to those who take legal science not as a dogmatic issue but apply law as a factual social science.[13]  The idea that an improved language, better, clearer defined and more effectively applied, can result in more just social relations is foundational for legal semioticians who described themselves as ‘significians’.  Do not forget that the critique on language in the Vienna Circle, in parallel to the Amsterdam Significs Circle, shared the ethics of these principles: a liberation of conventional language patterns and the release of the creative expressivity of the individual were important for a new and just society[14]. All criticism inherent to significs of law focuses in the first place on the words that are used in jurisprudence and laws. In several publications De Haan rewrote existing texts of laws, and attacked the formulations of parliamentarians designing new laws.  They can be written clearer and better: two requirements that diminish the distance between legal- and everyday language uses.  Lawyers, he says, do not invest in focusing upon their expressiveness—they do in the first place not understand how to obtain a ‘living harmony’ between their expressions and the expressive dynamics of the citizenship.  Not only dots and dashes, but also important words or concepts in our jurisprudence should be chosen with much more care and precision.   Examples of such neglect are discussed in the case of terms as: liability, responsibility; accuser, petitioner; void, remission; fact; interest; damage; guilt; creditor, to have a right, and the like.  Does insight in the problems pertaining to correct words in legal language indeed lead lawyers to deeper understanding of the essential connections between law and language?  Many contemporaries of De Haan expressed their skepticism and doubt. 

Discourse Levels
“Let us finally know what we do when we speak!” was an outcry of Frederik van Eeden, the famous Dutch poet, psychologist and most influential participant in all significs circles of his time in 1921.  Can we know what we do when we speak the language of law and legal discourse by means of analyzing its standardized words and fixated terms?  The question is essential for any attempt to initiate and exercise legal semiotics, De Haan’s legal significs has shown.  Speaking legal discourse, performing speech acts in law, is in the eyes of De Haan and his comrade significiants not a matter of using words in a uniform discourse.  They never concluded as we can do today, that legal discourse is an artificial discourse constructed with linguistic material of everyday (native) language.  But Mannoury, Brouwer, De Haan and others were very near to this thesis when they agreed upon one important step before that rather radical conclusion.  They distinguished five levels of discourse with each having their specific properties[15].  That idea shows how a differentiation of discourse is needed to understand law’s language activity—although none of these levels could specifically become assigned to law despite the fact that they have each their particular communicative property. 
Mannoury, Brouwer, Borel and Van Eeden first distinguish a foundational language level—a sort of mother-tongue in which each word on itself relates directly to one’s particular imagination and understanding.  Examples are children’s language, the language of deep and passionate emotions, or the hypothetical primitive language.
Second, there is the tempered language level in which words are seldom coupled and mostly become effective through a direct relation with other words in a human mind, as is the case with recollections and memories.  Personal experiences or moods are already constructed in subject-predicate constructions, as is perceivable in popular, poetic, and some Eastern languages embracing written image-signs.
Third is the everyday language level in which word coupling became most important and each deviation of fixated coupling norms becomes problematic.  It regards the language of commerce, traffic, Western written languages.  It should be underlined that word-couplings are understood as associative connections, psychic events related with auditory or visual word-images.
Fourth is the level of scientific languages whereby word couplings are a matter of conventions, agreements or prescripts.  The languages of laws, regulations, financial relations and technical issues are structured likewise.
Fifth is the level of “symbolic language”, which includes logical systems, levels of axiomatic, postulate and in general mathematic meanings.
It fascinates modern legal semiotics how these language levels are understood as an analytical as well as a descriptive tool to approach the meanings of key expressions in different discourses.  The author of the unique PhD dissertation on what he called in 1916: “rechtskundige significa”—honoring his colleagues in the Amsterdam Circle and University milieu—would have placed legal discourse in a mixture of the third and the fourth language level, with a heavy accent on the third.  That viewpoint is still an interesting point of departure for any recent semiotics of law.

Significs and Jurisprudence
Read Hugo von Hofmannsthal’s “Brief des Lord Chandos an Francis Bacon” and experience the deep mistrust towards the word that characterized the poet’s period of European culture.  Silence is to prefer to expression.  Tales, he writes, are “like shepherd games tumbling under the abundance of their words”, and he reports how “I wanted to unveil the fairytales and mythical stories we inherited from our ancestors, and read them as hieroglyphs of a secret, immense wisdom, whose touch I often was aware of, but as if behind a veil”.   He wishes, in this famous letter, “to know the language whose words are not known to me, a language in which the silent things speak to me…”[16].  When this characterizes the attitude towards the word as the major component of language of West-European intellectuals during the years shortly before and during World War I, we should not be surprised that legal semiotics/significs approaches legal discourse and jurisprudence through criticizing the reliability of the word.  Is jurisprudence, taken uncritically, not like the shepherd games; do judges and lawmakers not tumble under the abundance of their words?  Be aware, that these questions did not and do not today pertain to the style of legal reasoning and representation, but in a deeper sense, to the truth in words—as Wittgenstein’s Tractatus suggested so precisely and eloquently.  What truth is in words of law?  What truth in the diverse tumbling levels of legal language, what truth in the meaning of a word that law confined to solitary to one specific powerful and authoritarian discourse? 
            De Haan and colleagues posed all these questions about the character and major features of jurisprudence.  Jurisprudence condemns words and concepts to solitary confinement and forgets how meanings of a word are always determined by the complex system of meanings to which it belongs.  Jurisprudence manipulates its own unity and neglects how law as a discourse, is a particular semantic field.  In his 1919 Rechtskundige Significa, de Haan analyses the results of this solitary confinement of terms and words when pointing to the words “appropriate” in the criminal code, and “lost” and “stolen” in the civil code of the Civil Law system.  The need for a semiotic analysis of legal language cries out when jurists speak or write.  It was the first legal semiotician in Amsterdam in the twenties like other philosophers in the thirties of the 20th century (Tarski, Carnap) who came to that conclusion: legal language cannot be measured with criteria of truth, although there seems no other therapy for jurisprudence than the pursuit of a logical analysis of speech, uses of words or professional expressivity.  Is there only a logical analysis possible, or has legal rhetoric its own analytical power to answer questions and critiques of semiotic nature?

(Pix (c) Larry Catá Backer 2012)

[1]  See the International Journal for the Semiotics of Law, since 1988 comprising until March 2012 a total of 25 Volumes.
[2] John E. Joseph: “Meaning in the Margins. Victoria Lady Welby and significs” in: Times Literary Supplement, March 23, 2012, p. 14/15.
[3] See the foundational study of Susan Petrilli: Signifying and Understanding. Reading the Works of Victoria Welby and the Signific Movement. De Gruyter Mouton, Berlin 2009, p. 288 “Significs and Semiotics: Giovanni Vailati and Charles S. Peirce” and p. 748:”The Signific Movement in The Netherlands”.
[4] Irwin C. Lieb (Ed.): Charles S. Peirce’s letters to Lady Welby, New Haven, Conn. 1953.  Charles S. Hardwick/James Cook (Ed.): Semiotic and Significs. The Correspondence between Charles S. Peirce and Victoria Lady Welby. Indiana UP 1977.  See also: Max Fisch, Peirce, Op.cit., p.142.; and: G. Deledalle: Vistoria Lady Welby and Charles Sanders Peirce: Meaning and Signification” in: H. Walter Schmitz (Ed.): Essays on Significs, J. Benjamins, Amsterdam 1990, p. 134.
[5] M. Fisch: Peirce, Semeiotic, and Pragmatism, Indiana UP 1986, Ch. 17, p.321, 342.
[6] Subtle differences can be found in representations of signific viewpoints, in particular in the Dutch movements, for instance about the communicative component in speech act research, the system character and the reference to logic (as in Peirce’s philosophy) admitted in analyzing understanding or in the communicative orientation of Peirce’s semiotics. See H. Walter Schmitz: De Hollandse Significa. Een reconstructie van de geschiedenis van 1892 tot 1926. Assen 1990, p. 356 f., which is a Dutch translantion of his originally German “Habilitationsschrift”, 1985: Verständigungshandlungen-eine wissenschaftshistorische Rekonstruktion der Anfänge der signifischen Bewegung in den Niederlanden (1892-1926). Petrilli writes in two contexts that “In contrast to… ‘semiotics’, ‘significs’ was free from technical associations, thus making it suitable to signal the connection between meanings and value in all its  aspects”: in: P. Cobley (Ed.): The Routledge Companion to Semiotics and Lingistics”, London/New York 2001, p.264 and Petrilli: Signifying and Unerstanding, Op. Cit., p. 255 without precisely determining those “technical associations”.
[7] Studies in Dutch and English on Significs in The Netherlands written in Dutch language are scarce, see the outstanding publications of H. Walter Schmitz: De Hollandse Significa. Op. Cit., and H. Walter Schmitz: “Frederik van Eeden and the Introduction of Significs into the Netherlands: From Lady Welby to Mannoury” in: H. Walter Schmitz (Ed.): Essays on Significs, Op.Cit., p. 219f. as well as Susan Petrilli: Signifying and Understanding, Op. Cit. p. 829-885 with short texts of van Eeden, Mannoury, Brouwer and Vuysje, giving an English language impression of the issues discussed in Dutch language in The Netherlands from 1892-1951. The section concludes with a special “Significs in the Netherlands. A General Survey” by David Vuysje, pp 883 f. See also H. Walter Schmitz & E. Heijerman (Ed.): Significs, Mathematics and Semiotics. The Signific Movement in the Netherlands. Münster 1986.
[8] The Dutch legal historian Govaert C.J.J.van den Bergh wrote the only English article on De Haan in a semiotic context, the International Journal for the Semiotics of Law, Vol. IX, 25 (1996) entitled: “Jacob Israel de Haan’s Legal Significs”, and motivated his text exclusively with the remark: “I believe that this work, with all its flaws, is still of interest today” (p. 81); the same is the case for his: G.C.J.J. van den Bergh (Ed.): De taal zegt meer dan zij verantwoorden kan, Ars Aequi Libri, Nijmegen 1994. Both publications do not position De Haan as the first legal semiotician. See also: G.C.J.J. van den Bergh & Jan M. Broekman: Recht en Taal, Kluwer/Deventer 1979. p. 55 f.
[9] Susan Petrilli, Signifying and Unerstanding,  Op. Cit., p. 757.
[10] H. Walter Schmitz: “Frederik van Eeden and the introduction of significs….” Op. Cit., p. 225
[11] J.I. de Haan: Wezen en taak der rechtskundige significa”, Amsterdam, Van Kampen 1916, p. 5.
[12] J.I. de Haan: Rechtskundige Significa en hare toepassing op de begrippen: “aansprakelijk, verantwoordelijk, toerekeningsvatbaar” [Legal Siginifics and her application on the concepts “liable, responsible, accountable] Amsterdam, Versluys 1916. See also: Jan M. Broekman: “Betere taal is beter recht” in Wijsgerig Perspectief op maatschappij en wetenschap, Vol. 20, No.2. 1979/80, p.49.
[13]  De Haan: Rechtskundige Significa,  Op. Cit. p. 69.
[14] A. Janik &  St.E. Toulmin: Wittgenstein’s Vienna, Chicago 1996.
[15] “Signifisch Taalonderzoek”, published in Mededeelingen van het Internationaal Instituut voor Wijsbegeerte te Amsterdam, No. 2, Amsterdam Maart 1919, p.5 f. p. 30 f., signed by Mannoury, Brouwer, Borel and Frederik van Eeden. See H. Walter Schmitz: De Hollandse Significa, Op. Cit., p.415.
[16]  Hugo von Hofmannsthal: Erfundene Gespräche und Briefe, in: Gesammelte Werke, Bd VII, B. Schoeller & R. Hirsch (Ed.) Fischer Verlag 1979, p. 461.

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