Signs in law -- a source book : the semiotics of law in legal education III

This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning change, are sometimes lost. They reach from an English translation of the 1916 inaugural lecture of the first Chair in Legal Significs at the Amsterdam University, via mid 20th century studies on “property” or “contract,” to equally fascinating essays on contemporary semiotic problems produced by former students of the Roberta Kevelson Semiotics Roundtable Seminar at Penn State University 2012 and 2013. Together, the materials in this book weave the fabric of semiotics and significs, two names for the unfolding of semiotics in law and legal discourse at least until the second half of the 20th century, and both of which covered a lawyer’s focus on sign and meaning in law. The latter is embedded within the cultural imperatives of the civilization that gave these terms meaning and made them an effective tool for the dissection of law, its reconstitution as an instrument to be used by the lawyer to advance the interests of her clients, and for judges as a means to restructure language as a narrative of law whose power could bend behavior to its strictures. Legal semiotics has become an indispensible part of the elite lawyer’s toolkit and a fundamental approach to analysis of legal texts. Two previous volumes published in 2011 and 2012 explored the conceptual, methodological and epistemological progress in the field of legal semiotics, the modern forms of semiotics study, and the mechanics of meaning making processes by lawyers. Yet the great lessons of semiotics requires a focus on the origins of the concepts and frameworks that would become contemporary legal semiotics, its origins as an object of the consciousness of meaning making—one whose roots, as lessons for the oracular conversations of law, are expanded in this volume. Dedication 6 Acknowledged Sources 12 Preface 8 Contents 14 Contributors 18 Part I: Introduction: Reading Semiotics 20 Reading Semiotics 21 Introduction 22 Reading Semiotics 26 Peirce: Godfather of semiotics 30 Legal Texts in Semiotic Perspective 33 Subject, Cause & Purpose in Global Law 34 Surface- and Deep Structure of Discourse 37 Eco and the Text of the Communist Manifesto 39 Part II: From Legal Significs to Legal Semiotics 43 Origins and Effects of Legal Significs 44 “Word-Value” and “The ‘I’” 48 Word-Value 48 The “I” 50 Significs (1953); Significs and Philosophy (1922) 57 Significs 57 Signific Principle of Relativity 57 Significs and Philosophy 57 Significs [Encyclopedia Britannica] (1911) 59 Significs 59 Reference 65 Editorial 1: Jacob Israel De Haan, the First Legal Semiotician 66 Essence and Task of Legal Significs 69 Legal Significs and Its Application in the Concepts ‘Liable’, ‘Responsible’ and ‘Accountable’ 86 Part III: Godfathers of Semiotics—Welby, Peirce, Greimas, Lacan 100 Editorial 2: “Meaning” and the Welby—Peirce Correspondence 101 Meaning 103 The Copernican Reversal 103 Significs 104 Two Letters to Lady Welby 107 On Signs and the Categories 107 On the Classification of Signs 115 Editorial 3: Firstness, Shock, and Signs (Peirce) 124 Firstness, Shock, Law, and the Hand of the Sheriff 128 Lessons from the History of Philosophy 128 The Universal Categories 129 Partial Synopsis of a Proposed Work in Logic 130 The Universal Categories 131 Editorial 4: Layered Discourses, Dynamic Semiotics 135 A View on A. J. Greimas’s Essay “The Semiotic Analysis of a Legal Discourse: Commercial Laws That Govern Companies and Groups of Companies” 138 Introduction 138 Discourses and References 139 Legal Grammar 139 Legal Practice 140 The Religion of Corporations in the United States 141 Editorial 5: I and Self (Welby, Lacan) 150 The Self 150 Engenderment 151 Dividual and Individual 153 Lacan, The Mirror and the “I” 155 Part IV: Semiotics of Law Today 161 Introduction: The Institutes of Justinian 162 Prooemium 162 Of Justice and Law 163 Of the Law of Nature, the Law of Nations, and the Civil Law 164 Editorial 6: On Persons, Things and Obligations in Semiotic Perspective 166 Person 167 Thing 169 Obligation 171 Persons I: Fundamental Concepts of Roman Law 172 Persons II: Family as a Commonsensical Device and its Place in Law 189 Membership Categorisation: Devices, Categories and Predicates 189 Legal Background 192 A Case in Point 194 Legislating Predicationally? 199 And Semiotics? 201 Conclusion 202 Persons III: The Multiple Faces of a Corporation’s Legal Personality 204 Things I: Property: The Legal ‘Thing’ as Artwork 217 Introduction 217 Legal Instruments―Legal Artworks; Things, Operations, Persons 223 Reinterpreting “Property” 226 References 230 Things II: Place, Space, and Time in the Sign of Property 231 Introduction 231 A Brief Overview of Property as a Sign 232 Place, Space, and Time in the Sign of Property 234 Conclusion 242 References 243 Things III: The Ethics of Property: A semiotic Inquiry Into Ownership 245 Introduction 245 Analysis 248 Judicial Doctrine―Legal Culture 248 A Basic Question 253 Social Practice 259 Belief Systems 260 Mental State 264 Property and Law 273 Conclusion 274 Obligations I: Quid pro quo: Contractual Semiosis and Translation 276 Introductory Remarks 276 Contract 277 Contract as Speech-Act 283 From Proposition to Assertion 285 Contractual Semiosis 288 Utterer and Interpreter in Translational Semiosis 291 Translation as Contractual Semiosis 294 Concluding Remarks 297 References 298 Obligations II: The Semiotics of International Law: Interpretation of the ABMTreaty 299 The Semiotic Web of Legal Interpretation 299 The ABM Treaty 304 Texts 307 Sources of Texts 308 Other Readers 309 Conclusion 310 Practical Consequences 311 Obligations III: Cultural Immersion, Difference and Categories in US Comparative Law 313 Of Difference and Sameness 313 Of Immersion and Incommensurability 319 Part V: Developing Semiotic Awareness 322 Law in Signification Processes 323 Lady Welby 323 Word and Law 325 Sign, Word and Legal Discourse 328 Legal Words 330 Semiotics and Law 333 Editorial 7: From Prize-Winning Seminar Papers to a General Conclusion 337 Can Words Really Set a Man Free?—A Semiotic Analysis of the American Criminal Defendant’s Right to Allocution 339 Introduction 339 Peirce’s Semiotics 340 The Right to Allocution and Jurisdictional Differences 343 The Right to Allocution as a Sign in Law 345 Meanings of a Mitigation Allocution 346 Meanings of Humanization Allocution 352 Judicial Responses to Allocution 357 Conclusion 360 Shareholder Derivative Action and Corporate Identity in Delaware Jurisprudence 361 Introduction: Capitalism, Democracy, and Corporate Identity in Delaware Jurisprudence 361 Background 363 Theoretical Framework 363 Law, Society, and Delaware: The Capitalist Discursive Space 364 Mirror Stage: Corporation as Other 366 Derivative Self-Interest: Corporations in Search of Identity 366 Tooley: Corporation in Opposition to Its Equity Holders 368 J.P. Morgan Chase: The Corporation Speaks 371 The Name of the Corporation Is Invoked 372 The Corporation Is Heard 373 The Autonomous Ego of the Corporation-in-Itself 375 Signs Without Authority: The Battle of Experts, the Caricature of a Discourse and the Failure of Scientific Evidence 378 Introduction 378 Science at Bar 380 Daubert, Anarchic Authority and the Destruction of the Scientific Witness 383 The Legal Instrumentalism of Science 388 Scientific Evidence in the Marketplace of Expertise 389 The Blind Invoking the Blind 391 Semiotics in a New Key 393 Structural Linguistics 394 Discourse Analyses 395 Text Analyses 397 Law in Signification Processes 401 Language 405 About the Authors 407 General References 411 Author Index 418 Subject Index 421 Front Matter....Pages i-xviii Front Matter....Pages 1-1 Reading Semiotics....Pages 3-20 Eco and the Text of the Communist Manifesto....Pages 21-24 Front Matter....Pages 25-25 Origins and Effects of Legal Significs....Pages 27-30 “Word-Value” and “The ‘I’”....Pages 31-39 Significs (1953); Significs and Philosophy (1922)....Pages 41-42 Significs [Encyclopedia Britannica] (1911)....Pages 43-49 Editorial 1 : Jacob Israel De Haan, the First Legal Semiotician....Pages 51-53 Essence and Task of Legal Significs....Pages 55-71 Legal Significs and Its Application in the Concepts ‘Liable’, ‘Responsible’ and ‘Accountable’....Pages 73-86 Front Matter....Pages 87-87 Editorial 2 : “Meaning” and the Welby—Peirce Correspondence....Pages 89-90 Meaning....Pages 91-94 Two Letters to Lady Welby....Pages 95-111 Editorial 3 : Firstness, Shock, and Signs (Peirce)....Pages 113-116 Firstness, Shock, Law, and the Hand of the Sheriff....Pages 117-123 Editorial 4 : Layered Discourses, Dynamic Semiotics....Pages 125-127 A View on A. J. Greimas’s Essay “The Semiotic Analysis of a Legal Discourse: Commercial Laws That Govern Companies and Groups of Companies”....Pages 129-140 Editorial 5 : I and Self (Welby, Lacan)....Pages 141-145 Lacan, The Mirror and the “I”....Pages 147-152 Front Matter....Pages 153-153 Introduction: The Institutes of Justinian....Pages 155-158 Editorial 6 : On Persons, Things and Obligations in Semiotic Perspective....Pages 159-164 Front Matter....Pages 153-153 Persons I: Fundamental Concepts of Roman Law....Pages 165-181 Persons II: Family as a Commonsensical Device and its Place in Law....Pages 183-197 Persons III: The Multiple Faces of a Corporation’s Legal Personality....Pages 199-211 Things I: Property: The Legal ‘Thing’ as Artwork....Pages 213-226 Things II: Place, Space, and Time in the Sign of Property....Pages 227-240 Things III: The Ethics of Property: A semiotic Inquiry Into Ownership....Pages 241-271 Obligations I: Quid pro quo: Contractual Semiosis and Translation....Pages 273-295 Obligations II: The Semiotics of International Law: Interpretation of the ABMTreaty....Pages 297-310 Obligations III: Cultural Immersion, Difference and Categories in US Comparative Law....Pages 311-319 Front Matter....Pages 321-321 Law in Signification Processes....Pages 323-336 Editorial 7: From Prize-Winning Seminar Papers to a General Conclusion....Pages 337-338 Can Words Really Set a Man Free?—A Semiotic Analysis of the American Criminal Defendant’s Right to Allocution....Pages 339-360 Shareholder Derivative Action and Corporate Identity in Delaware Jurisprudence....Pages 361-377 Signs Without Authority: The Battle of Experts, the Caricature of a Discourse and the Failure of Scientific Evidence....Pages 379-393 Semiotics in a New Key....Pages 395-408 Back Matter....Pages 409-431 The latter is embedded within the cultural imperatives of the civilization that gave these terms meaning and made them an effective tool for the dissection of law, its reconstitution as an instrument to be used by the lawyer to advance the interests of her clients, and for judges as a means to restructure language as a narrative of law whose power could bend behavior to its strictures. Legal semiotics has become an indispensible part of the elite lawyer{́OCLCbr#80}{OCLCbr#99}s toolkit and a fundamental approach to analysis of legal texts. Two previous volumes published in 2011 and 2012 explored the conceptual, methodological and epistemological progress in the field of legal semiotics, the modern forms of semiotics study, and the mechanics of meaning making processes by lawyers. Yet the great lessons of semiotics requires a focus on the origins of the concepts and frameworks that would become contemporary legal semiotics, its origins as an object of the consciousness of meaning making{́OCLCbr#80}{OCLCbr#94}one whose roots, as lessons for the oracular conversations of law, are expanded in this volume."--Page [4] of cover "This volume provides a critical roadmap through the major historical sources of legal semiotics as we know them today. The history of legal semiotics, now at least a century old, has never been written (a non-event itself pregnant with semiotic possibility). As a consequence, its sources are seldom clearly exposed and, as word, object and meaning change, are sometimes lost. They reach from an English translation of the 1916 inaugural lecture of the first Chair in Legal Significs at the Amsterdam University, via mid 20th century studies on {́OCLCbr#80}{OCLCbr#9C}property{́OCLCbr#80}? or {́OCLCbr#80}{OCLCbr#9C}contract,{́OCLCbr#80}? to equally fascinating essays on contemporary semiotic problems produced by former students of the Roberta Kevelson Semiotics Roundtable Seminar at Penn State University 2012 and 2013. Together, the materials in this book weave the fabric of semiotics and significs, two names for the unfolding of semiotics in law and legal discourse at least until the second half of the 20th century, and both of which covered a lawyer{́OCLCbr#80}{OCLCbr#99}s focus on sign and meaning in law