Vol. 11 No. 3 (March 2001) pp. 114-119.

"THE LAW" VS. "THE PEOPLE": TWELFTH ROUNDTABLE ON LAW AND SEMIOTICS
by William Pencak, J. Ralph Lingren, Roberta Kevelson, Charles N. Yood (Editors). New York: Peter Lang Publishing, 2000. 371pp. Cloth $67.95. ISBN:0-8204-4053-1.

Reviewed by Lisa S. Nelson. Graduate School of Public and International Affairs and School of Law, University of Pittsburgh.

THE "THE LAW" VS. "THE PEOPLE" is a collection of essays resulting from the Twelfth Round Table on Law and Semiotics. This collection of essays represents a plethora of interpretations about the relationship between the law and the people. This question is examined from the perspective of philosophers, historians, and legal scholars through the lenses of philosophy, history, law, and literature. The essays represent semiotic analysis devoted to exploring the sign "law" and its many significations. The term semiotic simply refers to the process of discerning the relationship between language and its referent. Semiotic analysis or semiology refers to the systematic study of signs. For instance, C. S. Pierce (1955) distinguished various types of signs. An iconic sign resembles what it represents in the sense that a photograph is an icon for what it reflects; the indexical, or in other words, a sign of something in the sense that smoke is a sign of fire. Also, there is the symbolic sign that is linked to a referent. The essays in "THE LAW" VS. "THE PEOPLE" concern themselves with the latter type of semiotic analysis. Semiotics concerns itself with classifications in various forms and with questions such as what does the sign stand for, how does it relate to other signs, what are the rule governed structures that produce meaning, and how do we represent meaning in relationship to perception and interpretation. This said, semiotics represents a multi-faceted attempt to understand how meaning is constructed. Semiotics is a word unfamiliar to some. The word "semiotics" signifies something intangible, something "post-modern" something thus irrelevant to the study of law. Yet, the irony is that the semiotic analysis of the law is one in which any social scientist, lawyer, or legal scholar is engaged. Put simply, a semiotic analysis engages in the exploration of our assumed understanding between a sign that we use to describe or define the real, and the signified or our perception of reality. Any attempt to explain qualitatively or quantitatively the working of the "law" or its effect on the "people" necessarily engages one in a process of relating language to our perception of reality. The interaction between the self and reality represents the subject-object idealism of modernism. Language is thought of as a mediating element between self and world. The medium of language is a tool of description and a true representation of the world in itself. A semiotic analysis explores the subject-object idealism of modernism and the assumed symmetrical unity between language (the sign) and its representation of reality (the signified). The underlying purpose of the essays encapsulated in the "LAW" V. "PEOPLE" is thus informative to those engaged in the study of law.

Page 115 begins here

William Pencak opens the discussion by exploring the many meanings of law. The word "law" attaches to a diverse set of interpretations. When does the word law imply natural law, positive law, constitutional law, moral law, or divine law? Also, even with such point of clarification, the word "law" is not a mirror that yields a clear image. In much the same manner, Pencak then juxtaposes the discussion of the "law" with a consideration of that which is signified by the sign of the "people." Who in other words stands before law? Standing before the law in this sense refers to the important process of defining those who are worthy of the law or in other words, those that the "law" recognizes as legitimate "people" who possess a legal claim. The importance of exploring the potential disjuncture between the "law" and the "people" is an important one and not only for those concerned with semiotic analysis (p. xiv). As Pencak explains in his tribute to Roberta Kevelson, quoting Semiotician Charles Pierce, "It is not by dealing out cold justice to the circle of my ideas that I can make them grow, but by cherishing and tending them as I would the flowers in my garden" (p. xi). In this sense, assuming that our definition of the "law" and the "people" adequately represents, describes, explains or captures the essential qualities of either law or people, whether in legal argument, social scientific inquiry, or historical analysis, is to deal out cold justice to the very idea of them. The implication is that language and thus, our understanding of the "law" and of the "people" is a much less stable affair than social science, law or history would like it to be.

The first group of essays delves into the theoretical underpinnings of the law and the people. In her essay, Roberta Kevelson points out the potential snare of Natural Law. Kevelson discusses the potential turn from a dominant positive law to a New Natural Law. The divine determinism of Natural Law portends the promise of truth in the application of law. The ironic danger of Natural Law reasoning, Kevelson explains, is that it eliminates the semiotic indeterminacy of legal reasoning (p. 18). The freedom promised by Natural Law is a coercive one, demanding a deterministic and a priori definition of the truth that it represents. This concern is not only theoretical. Those ideas grounded in Natural Law, such as the discourse of human rights, may be the tools of oppression in the quest for ongoing liberation and the perpetuation of legitimate authority. There is a paradoxical freedom promised by Natural Law. Natural Law is thought to represent the commonality of the people and the leveling of power among them. However, "the Real, the Natural, and the True," Kevelson explains, are devices of authority that define and defend the interpretation of the law and the people to the potential point of destruction of each (p. 28). Also, to arrive at deterministic and certain understanding of the law and of the people is to eliminate the continuum of the ideas and most importantly, quell the ongoing discussion of its meaning (p. 23). Geoffrey Klinger reiterates this point in his essay that investigates use of "the people" in modern jurisprudence to examine the ideology that underpins its construction. Hobbes, for instance, feared the equivocation of language for he believed that ambiguity portended anarchy (p. 43). Thus, to secure the power of the sovereign Hobbes argued for a turn away from rhetoric and denounced challenges of the sovereign's legitimacy made in the name of Divine Law. Here the points of Klinger and Kevelson dovetail. Just as Hobbes recognized and Kevelson warns, the lack of equivocation in the language of "the law" and "the people" only serves to quiet challenge of sovereign

Page 116 begins here

meaning. Yet, moving away from intellectual framework of sovereign meaning does not portend the end of either the "Law" or the "People." As Denis Brion explains, a distinction must be made between a loss of faith in Enlightenment Rationalism and a turn toward a "new pluralism, in which the human project no longer is the discovery of eternal a priori truths but instead the architectonic endeavor of using the plurality of values at our disposal as instruments to create a World that serves humans as ends" (p. 328). This point is brought to bear in several essays.

For instance, Phillip Rutherford considers the dichotomous separation between the "us" and the "them" in the context of chemical-biological warfare. Here the author explores the attempt to formulate laws of warfare and combat as part of an ethical code. This code reveals an ethnocentric set of rules that define the limits of legitimate warfare. Chemical or biological warfare was a "symbol of the barbarism and treachery of the non- European enemy "other" (p. 95). Yet, the use of poison could be justified if used against "them" in the pursuit of victory. The theoretical concerns of Kevelson are obvious in Rutherford's discussion of the rules of warfare. As Rutherford illustration, the rules of ethical conduct were quickly dismissed for the victory, the triumphant of the "good" over the barbarian enemy. The condemnation of poisoned weapons is not unlike the condemnation inherent in the Real, the True or the Natural. Those that defend the rules applicable to the "people" and the pursuit of Good demarcated in the rules of the "law" must be wary of the casualties left in their wake.

This point is reiterated in Garry Wamser's article, "'The Law vs. The People': Apartheid in Alan Paton's AH, BUT YOUR LAND IS BEAUTIFUL". In his discussion of Paton's novel, he considers the use of the law as a weapon against its own people. The seine is that we assume that the people legitimate the sovereign force of the state and thus of the law and its approximation of Justice. Paton's novel complicates this relationship. As Wamser explains "it is the law as power and the law as justice that are locked in adversarial conflict" (p. 124). Paton's novel considers the formation of the Afrikaner identity as a people. The oppression of the Afrikaner under British rule gave substance to their identity as God's chosen people. God's will underpinned the justification of Apartheid. As Wamser explains, "Apartheid for the Afrikaner required enforcement of complete separation of the races in all matters." (p. 133). The Afrikaners possessed a vision of justice informed by the power of God's will written into the annals of secular law. The claim of the chosen People made by the Afrikaners justified their continued oppression under God's guidance. The moral of Paton's story is that a justification of authority in the law or in the name of justice cannot be judged by its own claim to authority. Rather, the rules, categories and narratives should be the objects of pragmatic inquiry in the continued quest for meaning and understanding. In the absence of pragmatic inquiry, as W. T Scott (p. 143) and Christopher Gray (p. 169) demonstrate, the potential for exclusion and demarcation in the language of modernity. These authors argue that instead of opposing the rational to the irrational, truth to falsity, or literal to metaphorical, language is a means of redescribing the familiar. The process of redescribing the self is to literalize new metaphors or to make the unfamiliar familiar. Language is thus a historical contingency rather than a medium that aspires to represent the true desires of the self or of the facts the true reality. Instead,

Page 117 begins here

language is a debate of conscience, of morality constituted as literalizations of metaphors. To free language from its Divine origin is to recognize the potential perils of adherence to the Truth of the definition of the Law and the People and perpetuate a continued search for Justice.

A search for justice necessitates access to the law. Semiotic analysis affords insight into the linguistic mechanisms of the law that may prohibit access to the law. Author H. J. van As questions the efficacy of the right to legal representation in South Africa. The Constitution of the Republic of South Africa affords citizens to right to legal representation and access to the courts. However, as the author points out "the legal system is available to all, but not accessible to all" (p. 113). Here, access to the legal system is gained only through the authoritative interpretation given it by the learned counsel, the presiding officer, or the prosecutor. Without this authoritative interpretation the rights, though created for the people of South Africa, remain unattainable. As argued by William Conklin, constitutional theory is grounded in the People (p. 62). The judiciary protects the People, represents the People, yet Conklin argues the genre of legal discourse serves to distance itself from the People. The distance imposed by a particular legal genre results in an ironic separation of the Law from its subjects. The authority of the legal genre is vested in the discourse of speaking, writing, and acting in accordance with the Law and its profession about the objects of his or her representation in an indirect form. As in Franz Kafka's THE TRIAL, the People like Joseph K. are spoken ABOUT. The character of Joseph K., who stands before the law, recognizes that it serves his purpose, yet he ironically remain outside of it, the object of the law. As the doorkeeper warns the countryman in THE TRIAL, the door of the Law was intended only for him, but now it must be shut. The legitimacy of the law resides in this irony. The Law and the People may never coalesce into a unified acquisition of Justice, Divine Justice. Yet, as Kevelson warns us, this is both the beauty and burden of the law. We must forever question its efficacy, its perfection, and its adequacy in our continued search for Justice. For Justice, cloaked in the metanarrative of the People denies the individuality of door of justice which stands open to us. The Law is of course intended for the People, but the concept of the People is woven of individual Justice that the Law must approximate.

Jeff Brendle elaborates on this assertion regarding the often- contentious nature of the search for justice in his article entitled "Millennium, Man's Law and God's Law in the Rhetoric of the Christian Right- Wing Movements." In his discussion of the Christian Right-Wing movements, Bendle argues that although the beliefs of extremists groups may strike a chord of fear, the continued protection of these ideas under the aegis of free speech is a necessity. The greater threat is to silence these movements. Instead Bendle advocates an exploration of the "foundations, the beliefs, and the meanings behind the rhetoric, full of myth and symbols and out reaction in what seems frequently to be cast as the final battle for the future" (p. 213). It is the act of exclusion and alienation through silence that accentuates the experience of estrangement from the people as defined. To define the "people" by an unassailable truth is to silence those not in accordance with it. And to silence opposition to "truth" marks the end of the search. John P. Rooney makes a similar point in his discussion of the use of statistics to justify the application of domestic violence law through a gendered lens (p. 235). Rooney argues that the

Page 118 begins here

rhetoric of statistics affects our application of domestic violence law in ways that disadvantages the male victims of domestic violence. Rooney makes the startling assertion that our statistics do not accurately reflect our perception of domestic violence; instead, our statistical perspective of domestic violence is shadowed by our beliefs regarding the capability and thus, culpability of female offenders. The point is an important one not only for our understanding of domestic violence law. Do our statistical measurements of reality reflect the causal relationship that we perceive as reality or do they reflect our perception of causation that may be erroneous? Rooney's argument raises the fundamental question of perception and reality not only in the inability of the sign and signifier to mirror perfectly the dimensions of reality but also in our inability to accurately measure our perceptions of reality as something independent of our political objectives. Moreover, Rooney makes us question the notion of the good that underpins the liberation of the "woman" from domestic violence. Does the blind achievement of the good come at the cost of those men who do not have access to the law? These questions are not unique to the situation that Rooney discusses and only provide entr,e into the more fundamental question of perception, meaning, interpretation and signification. As Sarah Goodfellow points out in her discussion of the meaning of difference, the habits of thought and association sometime occlude the quest for greater discovery (p. 279). Like the assumptions underpinning the Domestic Violence Act, the biological assumptions of masculinity and femininity are embedded in our understanding of the social and make it difficult to disentangle the two. In the Baconian quest for a clearer truth behind the constitution of physical phenomena, the axioms or principles of knowledge would be statements of natural causes and natural laws derived from scientific observation and experiment, directed and interpreted according to the rules of exacting induction. The proper method would aid the senses while controlling the intellect. Goodfellow reminds us that the "nature of Nature, in other words, is open to interpretation. It must be remembered that those whose interpretations and descriptions are given most authority, scientists and perhaps lawyers for instance, are historical individuals, influenced by their cultural milieu" (p. 293).

Yet, to quell the fears that semiotic analysis lead only to nihilism, alienation and a spiral of meaninglessness, there is reassurance. As Mattie Scott points out, the depiction of the sexual scandal of the Clinton presidency represents the prototypes of masculinity and femininity. The story reflects our accepted notions of the male-female relationship. As Scott demonstrates using THE MARRIAGE OF FIGARO and DON GIOVANNI, we tell a story in the law that reflects what we recognize as true about reality. We are none the worse off for living in a world in which there is no real but only simulations of the real. Law still matters and holds out the promise of emancipation, but it cannot be used in the toolbox fashion. The question is not how to change reality toward a more equitable end but how to politicize the evocation of the real in order to present a fairer legal terminus: an ending possible but not inevitable. Robert Ginsburg makes this point in his mythical exploration of the game of baseball from the perspective of a Martian (p. 339). In the ritual of baseball, must like the ritual of law, "are the unmistakable values of human dignity in the face of fate, of individual qualitative excellence, of social results produced by individual struggle with the world, of the

Page 119 begins here

world as accessible in its infinite and timeless reality.) (p. 360).

REFERENCE:

Peirce., Charles Sanders. 1955. PHILOSOPHICAL WRITINGS OF PIERCE, ed. J. Buchler. New York: Dover.


Copyright 2001 by the author, Lisa S. Nelson.