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This review appeared in Volume 8 (1) of the Semiotic Review of Books.

Legal Violence

by William E Conklin

Making Sense in Law: Linguistic, Psychological and Semiotic Perspectives. By Bernard S. Jackson. Liverpool: Deborah Charles 1995. Hardcover ISBN#0-9513793-6-4. Paperback #0-9513793-7-2. 516 pp.

Jackson sets out two objectives in his Preface. First, he correctly acknowledges that a general theme of Making Sense in Law is "the status of lawyers as a distinct 'semiotic group'". Here, Jackson largely succeeds. He means by such a distinct group that its members possess their own indigenous process of sense construction. By understanding the manner in which lawyers construct meaning, one can better understand why laypersons face such extreme difficulties in making sense of laws and why, conversely, lawyers fail to appreciate the meanings conveyed by witnesses. Jackson makes his claim in Chapter three ("Sociolinguistics: the Who, When and How of Language") and Chapter four ("Legal Language"). Acknowledging that there remain several languages which juridical agents profess depending upon whether they are social workers, police, prosecutors, barristers, solicitors, judges or legal authors, several important characteristics make the professional discourse of lawyers and judges a language all to its own. Here, the latter personnel may well share a legal grapholet, he says, where a standard vocabulary and other forms are considered a requirement for membership in the profession. In addition, a particular grammar and style distinguish the language of lawyers and judges. The grammar goes to the use of tense, mood and types of subordinate clauses. Legal language is even characterized with a special sentence structure: long complex, convoluted sentences, not infrequently ending with dangling participle phrases. The drafting of statutes is a science to itself.The sorts of things which Jackson privileges go to the genre-like character of legal language. What the lawyer takes for granted has to be elaborated when a student first enters into a professional law school, Jackson notes. In sum, law possesses "a culture of its own" (97). That shared culture allows the participants to speak and write to each other rather than to the layperson who fails to understand the language. Only the legal expert knows when a term is used in an exclusively legal manner or when one may attribute an ordinary sense to a word.

Jackson does not emphasize enough how his approach to law in a common law jurisdiction, including that of the United States, differs from the manner in which law has traditionally been understood amongst lawyers, judges and law teachers. For Jackson's focus upon the language of lawyers and judges privileges the signifier rather than the legal category which the signifier represents. The signifier signifies the doctrine. But by concentrating upon legal categories, known as rules, principles and policies, to the exclusion of the signs which signify the categories, the legal profession has perpetrated the image that law is and can be accessible to the layperson. Such an image merely creates an optical illusion. By privileging the concepts as if they were signified through transparent signs, the legal profession has lifted law into a make-believe wonderland where only Alice would be content with her make-believe friends. The rule of law becomes a myth. And the legal profession's adherence to the rule of law perpetuates an idealized world which only lawyers and judges can really decipher because only they have been trained in the unacknowledged language which represents their idealized world.

This first objective of Jackson's is not a new one for Jackson or for legal semiotics. Jackson has written about legal narratives and the semiotic group of lawyers in his earlier books about legal language (Semiotics and Legal Theory, London, Boston, Melbourne & Henley: Routledge & Kegan Paul, 1985; and Law, Fact and Narrative Coherence, Merseyside U.K.: Deborah Charles, 1988) and he has encouraged the elaboration of arguments about lawyers as a semiotic group in the International Journal for the Semiotics of Law. But Jackson puts his claim in a manner which is more accessible and more rigorous in analysis in his Chapters two and three of his Making Sense in Law. For that, legal scholars are indebted to him.

Jackson identifies a second objective of Making Sense in Law. Again, this is the "broader, more theoretical objective directed to an interdisciplinary audience." Here, he claims that "a synthesis of the substantial areas of linguistics, semiotics and psychology leads to a richer analysis of substantive problems of sense construction than would be available from any one discipline alone." The key discipline, forJackson, is semiotics, in particular Greimasian semiotics. Greimasian semiotics provides a theoretical structure within which the construction of sense can be located, according to Jackson. The several academic discourses of law, semiotics and psychology, Jackson claims, share common problems. Having set out this objective, Jackson quite rightly asks that the reader evaluate his effort with an appreciation of the difficulty of addressing several academic discourses at once. The choice of material, he admits, is personal. He makes no claim to comprehensiveness nor to the claim that his representation of a particular discipline is uncontroversial. He justifies his choices of psychology, linguistics and Greimasian semiotics on the basis that his students have responded well to them.

I wish to spend a minute fleshing out two problems which I find with Jackson's effort in reaching his second objective. I do so with deep appreciation of my own difficulties of trying to draw from several disciplines in order to address particular problems. The most important difficulty, I find, is that when disciplines have been so rigidly delimited for so many decades, how does one write so as to appeal to several audiences at once? In a sense, my comments below reinforce this very difficulty. For I read the same subtantive problematic as Jackson's through the experiences of reading phenomenology rather than psychology. The problems which I have with his effort to elaborate a theory of legal meaning are drawn from Husserl's theory of meaning in Investigations One, Five and Six in the Logical Investigations vol. 2 (New York: Humanities Press, 1970) as well as from Merleau Ponty's privileging of the phenomenal body in the Phenomenology of Perception(Colin Smith transl.; London: Routledge and kegan Paul, 1962) and in his later Signs (Richard C. McCleary transl.; Evanston: Northwestern University press, 1964).

As I read his earlier work, Jackson had concentrated upon the structuralist character of legal language. The author and interpreter played a relatively minor role beyond introducing the nomenclature, the organization of signs, and the choice of one message over another. Jackson aimed to expose the importance of the more underlying linguistic structures in the common law. The focus upon the narrative stuctures of legal language, he argued, displaced the traditional concern of legal philosophy which had hittherto focused upon such issues as the nature of legal authority and the definitions of legal concepts, such as ‘possession', ‘a right'. ‘property' or the like. For the latter issues presuppose that legal signs are transparent. In Making Sense in Law, Jackson shifts to the intentionality of the author/interpreter who works within narrative structures. Here, by his own admission, Jackson departs from the traditional Greimasian semiotics which, according to Jackson, had expressed little concern about the psychological mechanisms through which the juristic agents reads and interprets (185). The key here, Jackson says, is not the use of psychology to explain why an agent acts the way s/he does but to explain why agents perceive that the intention of the author is important. To this end, Jackson takes the reader through John Searle's speech-act theory and the orality/literacy theory of Ong. Jackson takes issue with Ong's focus upon oral culture as the source of literacy because writing is so important in legal language. Oral interpersonal communication provides the context through which writing is communicated in pragmatic circumstances. Jackson goes to social psychology and theories of cognitive competence in order to gain a better understanding of such a context. Jackson examines the latter in Chapter 6, taking the reader through the works of Chomsky, Vendler, Fillmore's case grammar, Halliday's functional grammar, Bruner on narrative competence, and more generally, the narrative turn in social psychology.

When Jackson turns to psychological theories of intentionality in the middle part of the book (Chapters 6 and 7), it is difficult to see the forests for the trees, at least for the lawyer who is unfamiliar with these complex, detailed theories of the cognition of objects. I wish that Jackson had done a better job in continually reminding the reader as to how each theory was related to the semiotics of the intentionality of lawyers and judges. On a re-reading, though, one finds that Jackson is especially concerned with psychological theories which bear on that general behaviour which is believed to be grounded in rules. This explains why he eventually reads Freud, Kohlberg and Carol Gilligan so closely in a Chapter (8) on moral development. Leading up to such theories about the behavioral origins about legal meaning as constituted from rules, Jackson slowly works through Piaget's theory of the stages of the cognitive formation of a child and Jerome Bruner's theory of the developmentof representation in Chapter 7, again in the intellectual development of a child. Jackson argues that their theories are very important in appreciating the semantic as opposed to the narrative typifications of a juristic agent (264 ff). The basic structures of signification are subsumed inside categorical legal thought. That is, it seems, the law student learns how to communicate almost "biologically" through legal representations before s/he learns the basic concepts of law. Here, the key issues are 'how does the child, and by inference the law student, acquire the capacity to construct an infinite sequence of sentences?', 'how does one distinguish a "well-formed" from a poorly formed sentence?', 'are these capacities "universal"?' These particular issues of psychology, the subject of Chapter 6, are read by Jackson against the background of more general questions: 'are there common aspects to one's making sense of an object, whether one is a child, a male or female, or even a lawyer?', 'how does one make sense of the world which dwells "out there"?', and, 'most importantly, how does one develop one's meaning of the outside world?'. Jackson reminds us in the Introduction that it is just such questions on which he wishes the second, more theoretical, objective of his book to be evaluated. His questions, though, beg whether his effort is misdirected as he journeys through the theories of cognitive and social psychology.

Let me raise a line of questioning which suggests that such may be the case. This is my second problem with Jackson's effort to join semiotics with the intentionality of the juridical agent. As I read Jackson's reading of the theories, I gain the impression that for Jackson, human experience has some instinctual or biological genesis. I gain this impression even though there are moments when he would wish to insist that the instinctual genesis of meaning is socially constructed such as when he writes, for example, that "We depend always upon social knowledge, but dare not speak its name" (389). The body in this view is a mechanism of physical organs. The body is a physical object and experience draws from the physiological body. Even language is understood as the communication of "mental organs". The capacity to learn rules, Jackson says, "must be innate" (195). Jackson's reliance upon such a physicalist view of experience, embedded as it is in the psychological science of the mind, lies in part in his choice of Chomsky to begin his inquiry into experience. For Chomsky, Jacksonpoints out, places the mind over the body. Language involves meaningful sequences of ideas (196, 203, 221). Even in his interpretation of Freud, Jackson reads Freud as preoccupied with human "instincts" as opposed to a socially constructed language of the unconscious as one finds in Lacan's reading of Freud (273-89). Thus, Jackson can conclude at the end of his section on Freud that judges, lawyers, police and clients "are influenced by instinct as well as by reason" (284). The embodiment of experience, he suggests, involves the physical display of emotions (335). Since it is the physical body with which Jackson is concerned, he can write about universally shared characteristics of experience.

The effect of such a physicalist view of the body, again, is the privileging of the mind over the body. Indeed, the experiential body is lopped off as constitutive of meaning. Jackson is interested, after all, in theories of cognitive competence and the role of the mind in the development of language. Events are posited as external to the author/interpreter. And the mind is the subject of a cognitive evaluation of the external posited object. Such a focus, I believe, ignores the role of the experiential body in the meaning which one brings into an object. There are two objects: the posited external object which is the subject of the science of psychology; and the meant object which is constituted as one means an object through one's experiences. Such a body experiences prejudices, to use Gadamer's sense of the term. Prejudice are based upon forestructures of meaning as well as expectations which one experiences through the body. But the experiences cannot be quantified as if the body were a physical object. Experiences cannot be quantified in time or in space. The ‘method' of a social science is inappropriate to describe what transpires when the subject means an object. Edmund Husserl's The Crisis of the European Sciences has yet to be rebutted.

The embodiment of meaning brings to the fore the gestures of the juristic agent as much as the cognitive world which s/he means. More, the focus upon the experiential body raises a set of issues which remains to be raised in Jackson's last chapter, an unwritten chapter, which might have brought together at a theoretical level the questions which his interdisciplinary project raises. Indeed, although his final chapter (the written one) is so perceptive of the semiotic character ofwitnessing, the process of gathering ‘the facts' in the courtroom, judging at the trial, and the dynamics of the juror's construction of a coherent story, I find myself re-reading the chapter several times in order to gain a better appreciation of why and how Jackson found such a detailed summary and analysis of the psychological theories of cognition, the development of cognition and moral development so important to his enterprise about legal meaning. After all, Jackson writes, again, that his second objective is to raise theoretical questions about the substantive problems of sense construction for an interdisciplinary audience. To that end, allow me to complete Jackson's project by privileging the series of questions which Jackson might have had in his mind when he came to the end of Making Sense in Law.

One critical issue which Jackson's Making Sense in Law raises is this: does a social/cultural referent exist external to the juristic agent's interpretation of a text? I have suggested that Jackson sometimes seems to suggest in his review of the literature of psychology that such is the case. Indeed, he sometimes writes as if the referent is ‘innate' or biological. It makes sense that there must be some such natural referent in order that a juridical agent can assess whether a particular narrative about legal signs corresponds to the event which allegedly caused harm to a plaintiff. Such a belief in an external referent, a final ultimate referent, brings cohesion and consistency to the narrative of an event. More, such a founding external referent aids the juridical agent in claiming that a particular narrative is authoritative. Finally, the belief in some ultimate final referent brings order, finality and a determinateness to the otherwise infinite combinations of signifier/signified relations of a legal discourse. Must such a referent be absent from the signifying relations of a narrative in order for the narrative to be recognized by lawyers and judges as final? Without a finality to the resolution of competing stories at a trial, how can any one story be considered authoritative? And how can a story be final unless there is some referent, external to the story, to ensure a confidence in its finality. Otherwise, lawyers would re-tell story after story ad infinitum without being able to claim that one story was authoritaitve over all others. More, does the absence of a final referent from the narratives of a legal discourse: does such an absence possess a divine character in the sense that it is inaccessible, indeed,invisible vis-a-vis the language of lawyers and judges? Put differently, is not the modern legal order reconciled, in order to be authoritative, to Dante's belief that the ultimate foundation of a legal discourse cannot be put into words?

On the other hand, if juridical agents must retain such a belief in such an absent referent -- whether externally posited or presupposed to be invisible in the case of the final referent --, is not that referent also the product of the signifying relations of, say, the discourse of business, economics, politics, history, gendered and racial relations? Indeed, is that not just Jackson's point in his journey through the academic discipline of psychology in such detail and impressive grasp? The problem for interdisciplinary studies concerning the ‘sense of law', then, is how does one choose which configuration of signs, which story, which witness, or which lawyer's summary of the evidence should count as the definitive authoritative statement of what ‘really' happened in ‘the eyes of the Law'? If the external referent is the product of the gestural and verbal and written signifying relations of lawyers and judges themselves, how can the lawyers and judges evaluate the truth or justice of any particular resolution of competing configurations of signs? Does the resolution of that question, in turn, hang upon a hidden or naked violence perpetrated by lawyers and judges through their legal language?

Whether or not legal discourse possesses a social/culturalor, alternatively, a biologically ‘innate' or other transcendental referent, how can the signifying relations be accessible to the non-lawyer? That is, how can the authoritative version of competing narratives be accessible to the person who does not know what signifieds to associate with which legal signifiers? How can the authoritative version be accessible when the lawyer and non-lawyer mean different referents by the same vocabulary? How can the non-knower know which configuration of signs is authoritative? Even if the sense of a sign is indeterminate because the sign cannot be fulfilled in some external absent referent, as does Peirce and his American followers in legal academia presuppose, legal discourse remains a configuration of signs of which only the lawyers and judges can claim to have knowledge. Jackson's examples and analytic points in Chapters 4, 5, and 12 are powerful in making such a claim. Legal discourse functions by and for an elite of knowers. Indeed, legaldiscourse preserves the self referentiality of the lawyers' and judges' signifying relations by excluding other claimants to legal knowledge from the profession of the authoritative legal narratives. Even when critics such as Drucilla Cornell have advocated a Heideggerian ‘opening' for access to the legal discourse, that ‘opening' is only for the expert knowers who are already immersed in the play of legal signs. The intentionality of the non-knower is concealed inside the language games of the professional knowers. Thus, the psychology of legal semiotics itself may well become one more layer of signs which effect the concealment of the intentionality of the non-knower. And all this may well take place in modern states which claim to be democratic.

The above raises one more theoretical issue. If there is no absent, independently situated referent in the production of legal meaning, then can one describe legal discourse as reified as do the dominant streams of critical legal studies and feminist legal theory? Without a referent -- whether the referent be socially constructed or transcendentally innate in the nature of one's psyche --, there is no outside with which to compare the narratives which compete for authoritative recognition. Legal discourse remains a given, both a starting point and a finishing point. However, unlike other discourses such as medicine or social work or engineering or literature, a particular configuration of signs may be en-forced with the ‘full weight of the Law'. Violence, disguised as a communication amongst professionals, decides which semiotic groups within legal discourse will win out. The legal discourse remains without an engine of social critique: neither outside from a social construct or an innate psyche nor inside from within the legal discourse itself.

Perhaps, the above interdisciplinary issues plague legal semiotics because of its apparent preoccupation with the relation of the signifier and the signified. Such a tradition, one in which Jackson finds himself I have suggested, lops off the phenomenal body. The key is the experiential body, not the physical/chemical body which, since Galileo, has been paraded as constitutive of ‘experience'. Such a body may well be the key to the meaning or sense of a signifier. To the extent that lived or embodied experiences bring meaning into a sign, the experience belongs to an interpreter who is constrained by the genre in which s/he finds her/himself. Thephenomenal body of the non-knower, then, is signified through a vocabulary and grammar which secondarily and parasitically lives from the primary experiences of the non-knower. This is so even though the non-knower has initiated a legal complaint. This is so even when the witness or client represents an indigenously experienced event at a lawyer's office or at trial. For the witness's story, as Jackson so persuasively argues with such rich examples, is re-presented through configurations of signs which the lawyers and judges readily assimilate into their recognizable nomenclature and grammar. The witness's story is assimilated as signified for lawyers and judges. The subject who had earlier experienced pain is disembodied in the lawyers' play of authoritative signs. The non-knower doubly suffers. As a sign takes on new meaning for the interpreter of the legal discourse, the grievance is assimilated, sanitized, forgotten and lost inside the cognate signs of the legal discourse. The cognitive -- including the cognitive of the science of psychology -- becomes the dominant. The lawyer's discourse becomes the master discourse of the modern state. Even politicians and juridical agents of the state must succumb to its assimilative power. The loss of embodied meanings occurs through the lawyers' and judges' signs which create, grow, effect and enforce in the name of some external mystical final absent referent of all legal authority. The legal discourse of the modern state, the master discourse, may well constitute itself as an idealizing world of disembodied meaning.

Bernard Jackson's Making Sense in Law is an important book. Jackson brings together an extraordinary breadth of reading in three separate discourses: legal discouse, semiotics, and psychology. He does so in a manner which succeeds in making his work of an encyclopaedic character. His summary references to semiotics, heavily influenced by Greimas, as well as to psychological theories of human cognition and moral development are backed with an impressive bibliography of thirty-one pages. The bibliography is a definitive, up to date list of works in legal semiotics from the United Kingdom, the Netherlands, and France. Making Sense in Law will be a necessary reference book for both higher undergraduate and graduate courses which use legal discourse to exemplify themes from semiotics and which use semiotics to exemplify themes from law. The jury is out as to the impact of his analysis of psychology and its nexus with legal intentionality. Some of Jackson's themes from psychology revolve about the psychology of cognition, perception, and moral development. Some of his themes from semiotics focus upon the role of language in the culture of the legal profession, the role of narrative in the legal construction of social facts, and the process by which lawyers gather facts so that they possess some sense to the lawyer. The best chapter is his last one. There, Jackson methodically returns to each moment in litigation in an effort to demonstrate, with a plethora of common law examples, how an understanding of semiotics is so important in the understanding of what transpires in the public and private stages of the trial. Jackson writes with clarity. And his clarity is sharpened by a rare ability to draw from an extraordinary arsenal of examples from the English common law.

William E Conklin is a Professor of Law at the University of Windsor, Windsor Canada N9B 3P4. He is the author of two books, In Defence of Fundamental Rights (1979) and Images of a Constitution (1989), the latter winning the first Harold Innis Book Award. He has written many articles on legal language, primarily in Canadian Law Reviews and has co-edited several volumes. Mr. Conklin was the founding editor in chief of the Windsor Yearbook of Access to Justice which has now seen over 20 volumes. He is presently working on two books, both of which are near completion. The first concerns human suffering and the legal discourse; the second identifies a sense of the divine presupposed in a modern legal discourse. Both draw heavily from semiotics and phenomenology. His theory of legal meaning is best found in "The Transformation of Meaning in a Modern Legal Discourse: the Canadian Internment Cases", International Journal for the Semiotics of Law (1996): 17-42.


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