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I wanted to take this opportunity to circulate a discussion draft of an essay, entitled "Legal Semiotics, Globalization and Governance." My object was to consider how the lens of semiotics might be useful in bringing clarity to the current incoherence in the debates around human rights. The idea is not to resolve incoherence but to rationalize it by reference to the core premises and language that separate quite different and contentious understanding of key words that appear to unite collectives but that mask large gaps in the way they are understood and used to build governance systems. This is elaborated a little more in the abstract:
ABSTRACT: When the leaders of the United States and of the Peoples Republic of China refer to human rights, they invoke entirely different conceptions. The only thing in common is the use of the term itself. they invoke entirely different conceptions. Trouble follows incoherence and the normative gaps that this incoherence produces. The difference in meaning drives contests over the meaning of legitimate governance. These consequences affect not just governance, through law, but also the law and governance of the relation among collectives—subsumed under another term, globalization. This contribution suggests the power of semiotics to understand, analyze, and perhaps engage with both the constitution of meaning from which these collectives build and understand themselves, but also to understand the power of law and governance to organize human activity at the most granular level. The contribution starts with a consideration of the semiosis of the fundamental analytical terms: law, globalization, and governance, as a set of aligned but not integrated social-semiotic sub-systems. It then draws on this examination to re-cast the project of human rights legalities as a semiotic contestation—a system of interpenetration centered in law but structurally coupled with globalization and governance. This is undertaken by examining the difference between making meaning within systems (semiotic interiorization), and making meaning of systems (semiotic exteriorization). The role of nihilism as a legal construct (the principle for or against which legalities are deployed) emergence of contested semiotic structures ends the examination. Semiotics provides a basis for navigating what appears to be incoherence built into the simultaneous infusion of multiple meanings and key terms of contemporary legal and institutional life.
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The draft is being prepared for submission for inclusion in (Anne Wagner and Sarah Marusek (editors)) Research Handbook on Legal Semiotics (Cheltenham, Eng., Edward Elgar).
The Introduction follows. The discussion draft may be accessed here.
Draft Chapter Submission for Anne Wagner and Sarah Marusek (editors)
Research Handbook on Legal Semiotics (Cheltenham, Eng., Edward Elgar)
Submission Draft
Legal Semiotics, Globalization and Governance
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar; Professor of Law and International Affairs
Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802 1.814.863.3640 (direct) || lcb11@psu.edu
ABSTRACT: When US and Chinese leaders refer to human rights, they invoke entirely different conceptions. Trouble follows incoherence and the normative gaps that this incoherence produces. This contribution suggests the power of semiotics to understand, analyze, and engage with both the constitution of meaning from which these collectives build and understand themselves, but also the power of law and governance to organize human activity at the most granular level. The contribution starts with a consideration of the semiosis of law, globalization, and governance. It then applies these insights to examine human rights legalities as a semiotic contestation—a system of interpenetration centered in law but structurally coupled with globalization and governance. The role of nihilism as a legal construct ends the examination. Semiotics provides a basis for navigating what appears to be incoherence built into the simultaneous infusion of multiple meanings and key terms of contemporary legal and institutional life.
KEY WORDS: legal semiotics, governance, globalization, human rights, natural law, nihilism
* * *
19. I know an ash standing Yggdrasil hight, a lofty tree, laved with limpid water: thence come the dews into the dales that fall; ever stands it green over Urd's fountain.
20. Thence come maidens, much knowing, three from the hall, which under that tree stands; Urd hight the one, the second Verdandi,—on a tablet they graved—Skuld the third. Laws they established, life allotted to the sons of men; destinies pronounced.[1]
The expression of human rights as law, in governance, and in globalization, are each built on the belief in a set premises that are understood as natural and inevitable. When US and Chinese leaders invoke the term “human rights”, the term has different meanings based on entirely different conceptions. For US officials, the term’s meaning is based on principles of a natural primacy of the human individual who bears rights protected by and against the state (and others) through a governance mechanics expressed in law. For Chinese officials, the term invokes the natural responsibility of the leading forces of the human collective to establish orders of stability and prosperity based on collective development within which individual rights may be understood. For US officials, a stable human rights driven system is the ends; for Chinese officials, human rights is a means that contributes to the goal of establishing a communist society. One can speak across these gaps but one is unlikely to be understood.
Trouble follows incomprehensibility in the form of competition, sometimes expressed through conflicts for discursive dominance. Competition is sharpened by the stakes—governance legitimacy and communal welfare in the shared spaces of globalization. It is manifested in the meaning and practice of legitimate governance. For liberal democratic governance is based on individual autonomy expressed through markets (in ideas, politics, consumption, and the like); Marxist-Leninist governance is based on collective responsibility guided by a vanguard of leading social forces. These consequences affect not just governance, through law, but also the law and governance of the relation among collectives. Globalization represents an externalization of domestic meaning orders—a “rules based international order.”[2] For liberal democracy, and “Building a Community with a Shared Future for Mankind and Global Human Rights Governance” for Marxist-Leninist and some post-colonial states.[3] All of these terms are semiotically charged—but with distinct polarities.
The invocation of the same terms to describe very different conceptions of human ordering, and to justify sometimes quite incompatible systems of law, and governance, produces conflict. Collectives each seek to control the meaning and consequences of these key terms; signification is power and power is enhanced by authority. This contribution suggests the power of semiotics to understand, analyze, and perhaps engage with both the constitution of meaning from which these collectives build and understand themselves, but also to understand the power of law and governance to organize human activity at the most granular level—and thus perhaps to better intervene in that management or to protect its integrity from internal or external challenge.
This contribution approaches the examination of the semiotics of law (so-called legal semiotics), globalization, and governance through the lens of human rights, and more specifically the efforts and contestations around the project of coding human rights (at the international public and societal level), that is of signifying (Peircean secondness) these objects (Peircian firstness) with meaning (Peircian thirdness).[4] The contribution starts with a consideration of the semiosis of the fundamental analytical terms: law, globalization, and governance, as a set of aligned but not integrated social-semiotic sub-systems. It then draws on this examination to re-imagine the project of human rights legalities as a semiotic contestation—a system of interpenetration[5] centered in law but structurally coupled with globalization and governance.[6] Legal semiotics, its governance and globalization, is considered against the urtext of semiotic interiorization and exteriorization.[7] The former focuses analysis of text, meaning, and communication as a consequence and against a belief in the ordering power of a set of ordering premises that give form to the world. The later focuses in the semiotics of the constitution of the world ordering premises themselves. The semiotics of natural law provides a framework for analysis. The contribution then applies these insights to the semiotics of globalized human rights governance regimes in and through law. Regimes of legal semiotics structure the signification of globalization articulated as human rights, and indirectly the governance objects-objectives through which signified. But the exteriorized signification of human rights is contested in its interiorization: what, for instance does it mean for such rights to be self-evident, and on whom on they vested?[8] That has emerged in the signification confrontation between liberal democratic semiosis and those of Chinese Marxist-Leninism. The role of nihilism as a legal construct (the principle for or against which legalities are deployed) emergence of contested semiotic structures briefly ends the examination.
[1] Benjamin Thorpe (ed and trans) The Elder Eddas of Saemund Sigfusson (London: Norroena Society, 1906; reproduced by Project Gutemberg January 18, 2005 [EBook #14726]), Völuspâ. the Vala's Prophecy, ¶¶ 19-20.
[2] Malcolm Jorgensen, “The Jurisprudence of the Rules-Based Order: The Power of Rules Consistent With but not Binding Under International Law,” Melbourne Journal of International Law 22(2) 2021) 221-258.
[3] Qiangba Puncog, “Building a Community with a Shared Future for Mankind and Global Human Rights Governance: A Chinese Scheme of Global Human Rights Governance,” The Journal of Human Rights 16(4) (2017) 305.
[4] To this might be added the ying-yang intensifiers of forcefulness and yieldiness considered as amplitudinal vectors on Peircian analysis. See, Richard Keith Atkins, “A Guess at the Other Riddle: The Peircian Material Categories,” Transactions of the Charles S. Peirce Society 48(4) (2012) 530-557, 548-549.
[5] Claudio Baraldi, Giancarlo Corsi, and Elena Esposito, “Interpenetration and Structural Coupling,” in Unlocking Luhmann : A Keyword Introduction to Systems Theory (C Baldi, G Corsi, and E Esposito (eds), Katherine Walker (trans); Bielefield, Germany: Bielefeld University Press, 2021).
[6] In a related area and focused on structural coupling insights, see, John J. Rodger, “Regulating the Poor’: Observations on the ‘Structural Coupling’ of Welfare, Criminal Justice and the Voluntary Sector in a ‘Big Society’,” Social Policy and Administration 46(4) (2012) 413-431.
[7] Michel Foucault, The Order of Things: An Archeology of the Human Sciences (Alan Sheridan (trans); New York: Vintage Books, 1970), 58-63.
[8] Allan Hillani, “The ideology of Human Rights: on the semiotics of having rights and the politics of being human,” Direito, Estado e Sociedade 57 “020) 10-31.
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