Semiotics of law: essence and prospects of scientific research

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Modern legal theory in Russia as a branch of legal science and as an academic discipline has been based on the positivist paradigm for many years. As Kovkel rightfully notes, “From this perspective, law is presented as a set of static concepts, from the provision of law to the legal order, sometimes not even included in ‘legal concepts and quite far from social reality’” [1, p. 210]. Modern legal theory proposes new concepts of legal understanding. Russian legal theory developed concepts that departed from positivist dogmas, including the communicative theory of law (Polyakov) and dialogical theory of law (Chestnov). Scientists, experts in the theory and philosophy of law are trying to inject fresh air into theoretical and legal sciences with the intention of taking them as close as possible to legal reality, understood in the broad sense of the word, and not just to legal practice. Moreover, legal theory must reflective of legal reality. Building a legal theory on one (positivist) concept threatens to distort its interpretation. A new methodology is in demand, as well as concepts and doctrines, new approaches to understanding law, expansion of the subject matter of legal theory, in particular, the introduction of achievements of other social and legal sciences into legal theory, including history, sociology, philosophy, and linguistics. Kovkel writes, “The best way to implement this process is through inclusion of interdisciplinary concepts and theories, expanding the horizons of legal theory by studying legal reality through the analysis of legal thinking, of linguistic and semiotic phenomena of law” [1, p. 210]. In her opinion, it is necessary to approach the study of law from the standpoint of semiotics, “as the linguistic being of law is a conglomerate of various types of legal texts and legal speech” [1, p. 213]. Kovkel suggests introducing a discipline called “Legal Language,” which she believes “will enrich and refresh the theory of law” [1, p. 213].

Let us consider the problem of the semiotics of law. The foundation and starting point of the semiotics of law is the linguistic science of semiotics allowing to study law as a system of signs and their interpretations. Semiotics is a relatively new field of study that is a reflection on language, including the language of law. Both during its development and now, there is no doctrinal consensus, and this ensures the viability of this science, which has spread across the world. But at the same time, “it symbolizes the Tower of Babel, when the community of theorists and practitioners does not have an understanding of common premises, and therefore, a common language” [2, pp. 129–156]. Everyone admits that the object of semiotics is signs and symbols, which, generally speaking, make up the language, both general and specialized, including legal, for example. However, such agreement suggests the existence of both indisputable axioms and conventional provisions. Behind this, there are many irreconcilable positions regarding how to study signs and symbols and the understanding of what a sign and symbol exactly represent. However, semiotics is a theory of signs treated as a term by all scientific communities [2, pp. 129–156]. Interest in signs and symbols emerged in the philosophy of the ancient world along with the search for the true designation of objects and phenomena, i.e. with the search for an answer to the question of “the truth of the words that make up the language,” along with formulation of theological and philosophical tasks, in particular, to what extent signs and symbols help us understand God and the world [3; 4]. In Antiquity and the Middle Ages, thinkers mused on the “truth” of words that make up the language. Zenkin refers to Plato’s dialog Cratylus, where the philosopher asks the question whether there is correctness of names in relation to the designation of a thing by nature [3; 4], i.e. to what extent a word denoting an object or phenomenon reveals their essence. Or, Plato suggests, names are given arbitrarily as people agree. Dionysius the Areopagite, an Athenian aristocrat converted by St. Paul, became author of fundamental works, including On the Divine Names, where the author sets the task of perception of God. Dionysius writes that it is impossible to understand God as the Super-Essence, but one can only approach Him, and even then to a small degree. The path of such knowledge consists of searching for His names. The Areopagite writes, “Theologians honor not only those Divine names that have as their source complete or partial manifestations of God’s providence, but also those that sometimes come from certain Divine visions that came down on the initiates or prophets in the Holy Temples or in other places, and on the basis of many reasons and forces give names to the most luminous and ultimate Good, wrapping Him in human or fiery or radiant shapes and images” [5, p. 114]. In one paragraph, Dionysius lists the names of God presented in the Holy Writ and Holy Tradition. The most famous of God’s names include Ego sum qui sum (I am who I am) [6; 7, p. 14]. And further on Life, Light, Good, Beloved. God was often called Adonai, Elohim in the Old Testament. This shows how many designations there are for the name of God.

At the beginning of the 20^th century, the subject of the names of God provoked interest among Russian philosophers, including Bulgakov, who emigrated after the 1917 revolution; Florensky, who died in Stalin’s prison camps; and Losev, who also left Russia.

In Modern Times, philosophers have not lost interest in the cognitive function of the sign in the context of social relations. Zenkin writes, “Using signs, we write down briefly, and such brief notes—abbreviations of ideas, ‘strings on the finger’—initially occur and circulate within an individual consciousness, and only then serve for communication with other people. Through them, we record the results of the analysis, create an archive, and a library of knowledge. Word signs make up a language used by people to mentally master the world around them and themselves” [3; 8].

The word semiotics was first used by John Locke in An Essay Concerning Human Understanding. However, Locke used the term semiotics as a name for logic. He equated semiotics with it.

In 1916, the paper of an outstanding Swiss linguist Ferdinand de Saussur (1857–1913), Cours Lingvistique General, was published posthumously; it is considered the beginning of modern linguistics development. De Saussure wrote that language is nearly the key thing in human life and its foundation. It is a system of signs expressing concepts. Therefore, there must be a science that studies the life of signs as part of the life of society. According to de Saussure, it is a part of social and general psychology. The scholar proposes to name it semiology (σηµειωτική) from the word sign (σημειον). Semiology shall answer the question: What are signs and are they subject to any laws? The scholar considered linguistics as a part of semiology (the process of creation and life of signs), since the laws that semiology discovers “will also be applied to linguistics.” De Saussure introduced several fundamental concepts into linguistics to denote the structure of speech:

• Language and speech as general rules of linguistic activity and their application;
• Diachrony and synchrony, i.e. the study of the evolution of language (diachrony) and research at the current stage (synchrony);
• Paradigmatics, i.e. the choice of signs and their combination to construct verbal expressions.

Many people believe that language is a kind of designation that is expressed through formation of names of objects and phenomena. De Saussure concludes that the signs of language and designations are conventional, i.e. they are based on social agreement. They “convey the ideal of the semiotic approach better than others. That is why language is the most complex and the most widespread of all systems of expression, and is also the most characteristic of all” [8, p. 105]. De Saussure distinguishes between the concepts of sign and symbol. In his opinion, using symbols in everyday life is not entirely convenient, since they cannot be considered completely arbitrary. They contain “a rudiment of a natural connection between the designatum and the signifier” [8, p. 107]. The researcher gives an example: the symbol of justice is balances. Balances were used in Egypt (goddess of justice Maat) and in Ancient Rome (goddess Themis). However, the statement about the arbitrariness of signs and names is not entirely correct as they are a result of collective consciousness and it is impossible to identify the reasons why the designatum has a certain kind of signifier, i.e. a specific sign.

At the turn of the 20^th century, Lady Victoria Welby (1837–1912) began to study linguistic problems. The researcher was high on a social scale: her godmother was Queen Victoria. Her book Grains of Sense was published in 1897. The works Meaning and Metaphor (1893) and Sense, Meaning and Interpretation (1896) had been published earlier. In Grains of Sense, Lady Welby writes about the dangers of misinterpretation and mistranslation, “The mutual deafness, dumbness and blindness which is the mental condition of our ‘Modern Babel,’ but which leaves us only too free for mutual collisions, quarrels, and destructions” [9]. She even called for the establishment of an international Linguistic Arbitration Court, because she believed that the language of expression, if perfected, would be a diplomatic tool capable of resolving conflicts through international procedures. Thus, Lady Welby saw language as a prerequisite for establishment of law and peace, and perhaps even the supremacy of law [9]. Lady Welby introduced the so-called meaning triad: sense, meaning, and significance. Later, this triad became the basis of the legal language. In her work (Grains of Sense), Lady Welby introduces a term sensifica (from sense). Later, this term was replaced by significs [10, pp. 875–877]. As Skrypnik writes, “Lady Welby speaks of what has become a truism today: the use of language not in a solely literal sense gives rise, with the help of fairly limited means, to an infinite number of combinations and variants of use and application. However, in this case, the level of meaning that differs from a literal one, i.e. the figurative level, requires establishment of interpretation procedures, since the set of linguistic expressions with a fixed meaning is limited” [10, pp. 875–877].

However, the official founder of semiotics is Charles Peirce (1839–1914), a contemporary of Lady Welby. He pointed out that the goal of his theory “consists in defining meanings and concepts” [7, p. 128]. The scientist was the first to use semiotics as a term denoting an individual science, “For him, semiotics is a normative theory of logic. The methodological analysis was based on the search for confirmation of the hypothesis that one sign leads to the occurrence of another, just as one thought leads to the occurrence of another” [7, p. 128]. A sign can exist in the form of a thought, action, word, which are subject to interpretation and generate other signs. However, as mentioned above, Peirce considered semiotics as a part of logic; therefore, his dialog has a more formal logic nature rather than a socio-psychological one and a sign, “or representamen, is something which stands to somebody for something” [7, p. 132]. It is addressed to a certain Somebody who interprets this sign. In this case, interpretation by this Somebody is connected with the first sign, and thus a dialog occurs [7, p. 132]. According to Peirce, the situation where linguistic relations are determined is a triad: 1) an object of linguistic reality; 2) a sign that is a representation of the object; 3) interpretation. He added a fourth element to the above, the meaning of the sign; “a sign is a carrier that communicates something to the mind from the outside” [7, p. 133]. The diagram looks like this: 1) object as something that is designated by the sign; 2) meaning as sense; 3) interpretant as the idea that it expresses. A sign always has a connection with an interpreter who interprets and understands the language. If a sign cannot be interpreted, it ceases to be a sign. Let us recall a totem, in particular, the turtle for the Delaware Indian tribe. However, a person who does not know and has not heard about this does not understand the meaning of this sign, and, therefore, the turtle is not a sign for this latter, he or she does not associate the image of a turtle with a certain social group. The interpretant is the idea that the sign generates. With the help of a sign, we can obtain information about a Somebody, e.g. about his or her belonging to a certain group, his or her way of life and education. Let us give another example, this time with a bride’s white dress. There are two interpretations here. The first is that white color represents the chastity of a woman. The second interpretation is that white is the color of mourning (sometimes it is a shroud) and it is believed that the girl is making a transition from one life to another. Peirce did not expressly write about legal semiotics, but his papers sometimes touch upon law and most importantly, his teaching can be illustrated and implemented. Clara Feliciati, in her work on the semiotics of law, uses Peirce’s principles to analyze the decision-making method of the US Supreme Court. The justices of the US Supreme Court use principles of law to guide their judgments and, in turn, create case laws to ensure consistency in the process of justice. But, on the other hand, logic uses the concept of reason in the process of seeking truth, regardless of whether a result meets the criteria of good and evil. Peirce turned to the deliberations of his contemporary, US Supreme Court Justice Oliver Wendell Holmes (1841–1935). Upon analyzing Holmes’s thoughts, Peirce believed that they were based on a logic of search and finding, i.e. a logic of research “which goes beyond syllogistic investigations in an attempt to explain the real process by which all thinking men can interpret their ideas in order to act on their basis and thus test their relation to the real world” [9]. Holmes stated, “The Constitution of the United States is an experiment, just as the entire life is an experiment” [9]. He emphasized the importance of terminology in court decisions and in scientific publications, “If a person goes into law, he must be a master of it, and being a master of it means looking straight through dramatic incidents and discerning the true legal basis for further law-making. Therefore, it would be good to have a clear idea of what you mean by law, by rights, by obligation, by evil intent, by intention, by lashes, by ownership, by possession, etc. I have seen cases where the highest courts, it appears to me, have floundered because they did not have a clear understanding of some of these schemes” [9].

Peirce did not see any of his books published. The first was published after his death in 1916. He suffered the same fate as de Saussure.

An important contribution to semiotic theory was made by Charles Morris (1901–1978), who began as a successor of Peirce. In 1938, his paper Foundation of Theory of Signs was published. Morris used Peirce’s teachings as a foundation and borrowed his ideas, often without proper references. When describing semiotics, Morris writes that “on the one hand, semiotics is an independent science along with other sciences, but on the other hand, it serves as a method for other sciences, therefore, it is a value in itself, just as it is a tool for other sciences” [11, p. 23]. Morris distinguishes between semiotics and semiosis. As he believed, there is something that functions as a sign and this should be called semiosis [12, p. 36]. This process includes three components: 1) what acts as a sign; 2) what the sign points to, and 3) the interpretant. He calls these components of semiosis a sign means, a designatum,¹ and an interpretant. Morris also adds a fourth component to this triad, the interpreter [12, p. 11]. The interpretant and the interpreter imply each other as they are means of indicating aspects of semiosis. Morris viewed semiosis as a triad of syntactics, semantics, and pragmatics. Morris calls them the syntactic, semantic, and pragmatic dimensions of semiosis. Syntactics studies relations of signs, such as words and sentences. Semantics is aimed at clarifying the meaning of a sign; it characterizes the relationship between the designatum (the designated) and the object of the real world (the denotate). Pragmatics characterizes the effectiveness and efficiency of signs. Continuing this thought, Morris writes that syntax is: 1) the study of signs and their combinations constructed by means of the rules of syntax, and 2) the syntactic structure of language, i.e. “the interrelation of signs, determined by the interrelation of reactions, the result or part of which are sign means” [12, p. 59]. Morris begins with an arbitrary set of rules, and as a pre-requisite he recognizes relations “based on which possible interpretations will be made by those who will interpret the signs” [12, p. 59]^. Semantics “deals with the relations of signs to designata” [12, p. 59], i.e. to the objects that they designate, i.e. they denotate, or can designate, i.e. can denotate [12, p. 59]. And in addition, “pure semantics provides the terminology and theory that are necessary in the process of semiosis. Descriptive semantics describes real manifestations of this dimension” [12, p. 63]. It means that semantics answers the question of how much the meaning of a sign describes a real object. The development of semantics suggests developed syntactics. Morris argues that semantics depends on syntactics. As for pragmatics, it “states the conditions under which a sign means is a sign for the interpreter” [12, p. 75]. Morris assumed that semiotics was the direct scientific knowledge as it is necessary to free oneself from the web of words and that the language, including scientific language and specific professional languages, needs to be “purified,” simplified, and systematized.

Legal science uses the triad of semiosis as well. Semantics includes basic legal concepts of normativity, prohibition, permission, and obligation. Syntactics is the composition of concepts or norms. Pragmatics is the relationship between a sign and the interpreter who uses it, including judges, lawyers, etc. [13, p. 59].

For some time, interest in semiotics shrank and resumed only in the 1970s, when they began to study the role and place of legal syntactics. The first symposium on law and semiotics was held at the annual meeting of the American Semiotic Society. In 1983, the Center for Semiotic Research in Law was founded. Roberta Kevelson (1931–1998), an American semiotics researcher and a forbearer of legal semiotics, is the founder of the International Association of Legal Semioticians and the journal Semiotics of Law. In her opinion, “law and semiotics are <at that moment> at that stage of the process which, briefly, consists in agreeing to come to an agreement” [9]. The importance of semiotics in scientific and practical knowledge is enormous, and, as Feliciati writes, “anyone who has seriously observed and reflected on the relationship between ideas and language must understand how words tend to react to ideas, to facilitate their development, to hinder or control them” [9]. Semiotics has been treated as a way out of confusion with terminology as it happens that the same term or phrase is used to express two or more ideas.

French linguists Algirdas Julien Greimas and Joseph Courtés assert that the theory of semiotics corresponds to the theory of signification (théorie de signification). Eric Lewandowski developed semiotics in its social meaning and proposed to create a kind of metalanguage.

Law as a system of signs is an object of study by the semiotic science, since it has the attributes of a semiotic object. Here, semiotics becomes legal semiotics and “represents the practice of discourse on law” [14]. Semioticians and legal scholars use the phrases legal semiotics and semiotics of law as interchangeable and synonymous. However, opinions regarding the equality of these terms differ. In English, they use terms legal semiotics and semiotics of law. If we understand law in its original meaning, semiotics of law turns out to be narrower than legal semiotics as “legal” means “pertaining to law.” But in terms of content, semiotics of law and legal semiotics are synonyms. The American scientist Tiefenbrun gave a semantic description of the semiotics of law, “This is a specialized study of sign systems that are the basis of legal information exchanges, exchange of any messages, and the system of signs and meanings that are a mainstay of law” [12]. Thus, the subject of legal semiotics is a system of signs and meanings with three attributes: 1) it studies the legal area as an infinite system of signs; 2) it provides methods for understanding and interpreting legal signs; 3) it sets the task of creating a common language for lawyers, both scientists and practitioners. Regarding the content of legal semiotics, law and jurisprudence are the subject of discussions here. The term law is defined as a set of rules provided by official sources and regulations developed beyond the activities of state authorities, but accepted and supported by it, i.e. mandatory customs and traditions. In this definition, we can identify two aspects: 1) the term law means a system of rules of conduct; 2) they (signs) are accepted and recognized by social institutions (community) and state governing bodies (authority), whether legislative, executive or judicial. In the latter case, we mean case law as a source of law in the Anglo-Saxon legal family. Here, the understanding of the law corresponds to positivist legal thinking. Positivism denies the requirements of morality and justice in law and the legal meaning is closely connected with the fact of their adoption by authorities. The term jurisprudence turns out to be closely connected with the term law. Jurisprudence is defined as knowledge and skill required for work in the legal sphere; as a science which examines human laws, written and unwritten, as a whole; as a system―a set of laws, legal systems, and families.² Moreover, the term jurisprudence is used as an alternative to the term law. Understanding the law is necessary both for understanding the meaning and purpose of the law and in practical jurisprudence for its better application. Kevelson understands law as a kind of index, an image (icon), and symbol and a legal system as a network of relations of symbols conflicting with each other depending on the type of legal family. She argues that there is not a single type of legal discourse that does not contain conflicting reasoning methods. Hence, from the point of view of legal semiotics, the legal area is not deemed as something unified and limited and, accordingly, it is impossible to construct a single legal concept. The discourse on the corpus delicti, the meaning and structure of legal relations, legal liability, and other legal institutions is developing in the same way [9]. It means that the legal area embraces an infinite number of combinations between significants (designata) and infinite interpretations. “From the moment when semiotic theory starts analyzing the semiotic object (designatum), it finds the actual discourse in law formed on the basis of natural language. It is connected with the topics and interests of semiotics as a functioning social subsystem” [2]. All this allows to study signs and symbols in law. A legal symbol is understood as a conventional sign that exists within legal matter. A symbol can be perceived as a sign, for example, marching under a flag means belonging to a state. But at the same time, a flag is a symbol, i.e. a sign that includes certain ideas. The flag of France is red, white, and blue, signifying freedom, equality, and fraternity. The Russian national emblem is also a symbol of Rome, and of Russia as the third Rome. A sign is a conventional image, condensed legal information. For example, no entry sign (“a brick” in Russian slang).³

In addition, semiotics acts as a method of interpretation: using a standardized language, it identifies, classifies, and describes the means of designation that exist in the legal discourse, which open up possibilities for endless interpretation. Kevelson believes that one can speak about the semiotics of law, when there is a deliberate recognition of semiotics as a theory and method and when researchers analyze the law in accordance with the provisions of semiotics [9]. Semiotics is a common language for deciphering signs and symbols that can be used by semioticians, both lawyers and linguists. It acts as a sort of bridge between law and regulation, academia and practitioners, the science of law and various social sciences, including philosophy, sociology, and linguistics. Some researchers (Jackson) propose that legal semiotics be considered as a meta-discipline that can provide a language for legal science and legal practice, as well as for the above-mentioned disciplines. Law deals with problems of the natural, social, and subjective world and acts as an external referent of the legislative discourse. The tasks of semiotics are to provide a comprehensive and analytical view of how semiotic discourse becomes manifest. “Semiotics gives law an interdisciplinary, discursive, and narrative perspective and this helps law to be aware of its limits and to propose ways of revising them” [14]. However, legal semiotics is rooted in philosophy and sociology.

In the field of legal language, semiotics studies the problem of the relationship between language and law. Semiotics of law can act as a bridge between knowledge and the function of cognitive integration [15], which contributes to the development of legal theory going beyond the legal positivism that has established itself in legal science. By the way, legal discourse is connected to legal meaning through legal practice, which, naturally, is part of socio-cultural dynamics. This allowed to identify the problem of legal language, in particular, to consider legal language as metasemiotics and its constant evolution. What appears to be a simple change of terms implies a profound change in the tradition of understanding law and legal science, in the tradition of legal dogma. Signs and their systems generate the text, including a legal text, studies by another science, legal hermeneutics.

To summarize, it should be noted that legal semiotics has ambitious prospects for development and introduction in legal science, law-making and law enforcement processes because this will allow to avoid incomprehensibility, ambiguity, and unacceptable interpretation and to find words, sentences, symbols, and signs that will contribute to improvement of legal regulation and legal thinking.

¹ This is a designatum that is closely connected with the designatum—the denotate.

² Dictionary Oxford English. Davis. 2008.

³ Today, there are a lot of debate about whether emoticons have a legal status.

作者简介

Yulia Sorokina

编辑信件的主要联系方式.
Email: yulia_sor@mail.ru
ORCID iD: 0009-0009-4669-737X

Dr. Sci. (Jurisprudence), professor

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