ICA and the Semiotic Web of Law

Chapter 3
ICA and the Semiotic Web of Law

Semiotics and the Discursive Concept of Culture

As discussed in the previous chapter, the concepts of legal discourse, proposed by legal theory and related disciplines, are diverse, and their application to studies on legal interpretation in international commercial arbitration (ICA) can be performed on different levels. The notion of legal discourse, as well as the consequences of its adoption for the theory of legal interpretation, have also been an object of interest of yet another discipline – legal semiotics. Developed as a separate field since the 1970s, the semiotics of law aims at capturing legal discourse in its semantic, structural and functional dimensions, combining the methods of philosophy of language and linguistics with those of social and legal studies. It has been advanced as one of the subfields of the general semiotics, or the general systematic study of signs and sign processes.¹

The semiotic approach seems to be well suited for an analysis of the highly dynamic phenomenon of commercial arbitration. Such features of arbitration as its extensive reliance on national law, however removed from its original domestic context on several different levels; the still-existing procedural flexibility; the significant role of written submissions; the notable procedural and institutional autonomy (leading some commentators to postulating that ICA has become an emancipated transnational system); its far-reaching confidentiality, including very limited publicization of awards; and the participation of specific groups of actors (highly specialized, expert arbitrators and counsel, but also general practitioners, who get increasingly involved due to the universal popularity of this method of dispute resolution) – all these characteristic facets can be successfully theoretically addressed from this perspective.

The term ‘semiotics’ stems from Greek semeiotikòs (related to signs, aware of signs) and is defined after Charles Peirce as a general theory of sign. In 1938 Charles W. Morris in his work Foundations of the Theory of Signs² suggested the division of semiotics into three subdisciplines: semantics, syntactics and pragmatics. Of those fields, semantics has been characterized as the study of relations between the signs and the objects which they denote, oriented at interpretation of signs as well as of sentences and linguistic expressions. Depending on the adopted definition of meaning, semantics can be described as the theory of meaning or the theory of signifying.3

The second subdiscipline of semiotics, as indicated by Morris, is syntactics (the study of syntax, or signs organized in structures, as well as the rules governing such organization). The third one, pragmatics, focuses on the utility of the sign and text, and analyses possibilities of their specific application, with regard to the context of a particular utterance. Semiotics is often perceived as a part of philosophy, rhetoric or linguistics. In accordance with the Peircean tradition, and after Roberta Kevelson, it is assumed here that this field is generally autonomous, as it constitutes in itself a separate method of scientific inquiry, not appropriated from a methodological repertory characteristic to any other, specific discipline.⁴ It should also be noted that, while semiotics is indeed a study of signs and texts (utterances, expressions), the semiotic concept of a text is, as Umberto Eco remarks, wider than the purely linguistic definition.⁵ It is thus applicable also to non-literary and non-verbal texts (theatre, cinematography, painting).

Eco further distinguishes between semiotic theories of the first and second generation (emphasizing that the distinction is a logical, not a chronological one – hence classification of Peirce as an author representing the second generation). What he defines as the first generation is a set of theories, which express scepticism in regard to attempts at the successful establishment of the linguistics of the code, and focus on the study of language as a structured system preceding its actualizations in discourse instead. The first generation is described in terms of encyclopaedic competence, which assumes a possibility of such an ideal, descriptively and structurally complete analysis of language/code, which enables a theoretical anticipation of all its acts of use in specific situations and contexts.⁶

Theories of the second generation, according to Eco, shift their focus onto seeking channels connecting such structural examination of language/code with the study of discourses and texts as its specific realizations. The analysis is thus supplemented by explorations of the theory of rules of generation and interpretation of such discursive actualizations and enriched with the discussion of the pragmatic aspects of the texts. The authors representing the second generation indicate that the meaning of a sentence, of a complete text, and of all its potential realizations, cannot be reduced to semantic and lexical categories (which would lead to a thesis that the meaning is initially and definitively encoded in the text). The study of signs, their structures and functioning in this approach is thus compared to a creation of a thesaurus rather than an encyclopaedia.7

It seems worth noticing that – not on the level of the method of inquiry, which might be semiotic or not – but on the level of assumptions as to the legal language, adopted and shared explicitly or tacitly, this dispute is present in legal theory as well. It significantly affects the concept of legal interpretation and its perception as a logocentric and Montesquieuan process, or rather a dynamic, discursive and creative one.

The semiotics of law had evolved as a separate subfield of general semiotics in the 1970s, to a large extent due to the pioneering efforts of Roberta Kevelson. The drive towards defining the limits of this research perspective was continued in the following decade, and had been manifest in the activity of such fora as the Center for Semiotic Research in Law, Government and Economics at Pennsylvania State University. In 1987, on the occasion of the First International Round Table on Law and Semiotics, Kevelson observed that legal semiotics, rather than establishing one, solidified model of scientific inquiry, draws primarily from two important and distinct sources of inspiration: the works of Algirdas Greimas and Charles Peirce.⁸ Jan M. Broekman and Larry Catà Backer reach a similar conclusion, observing that the significance of Peirce’s thought for legal semiotics, while vast, is not the only influence in this field. Broekman and Catà Backer call him – along with Greimas and Jacques Lacan – one of the godfathers of semiotics as a general discipline, and of legal semiotics as its specialized field.⁹ They also note that neither of these founding fathers had a systematic knowledge of the law; nevertheless, their impact on legal theory has been decisive: without them ‘nobody could ever have developed the idea of a semiotics of law or legal semiotics’.¹⁰

The influence of Peirce, as Kevelson remarks, turned out to be particularly rich and multifaceted, and affected legal theory in two main ways. The first was an adoption of the semiotic method and its instruments in the form proposed by Peirce for the purposes of analysis of the language of the law. The second was the impact of Peircean philosophical pragmatism onto legal realism in its American, but also its Scandinavian version, as well as on the critical legal studies (CLS) authors, sometimes characterized as the successors and continuers of the 1930s realism’s legacy in US legal theory.¹¹

It can be noticed that – in regard to the proposed concept of semiotic inquiry – Peirce’s theory bears remarkable differences from that proposed by Ferdinand de Saussure. For the latter, the object of semiotic studies is generally limited to linguistic communication, while Peirce includes non-verbal and natural signs in the scope of analysis. The term ‘sign’ was explicated by Peirce repeatedly – as Robert Marty notes, 76 different definitions of it can be found in his writings.12 His classification of signs is also more detailed than that of de Saussure. Finally, while for de Saussure the sign represents an object (a correlate), Pierce introduces an additional component: an interpretant, which is an effect produced by the sign in the mind of an interpreter, or a ‘mediating representation’.¹³

An interpretant, the semiotic response to a sign, which can take a mental or physical form, might also become a sign itself. Peirce further remarks on the chain of references, produced in the process of interpreting the sign:

[e]very reference to a correlate, then, conjoins to the substance the conception of a reference to an interpretant; and this is, therefore, the next conception in order in passing from being to substance.

Reference to an interpretant cannot be prescinded from reference to a correlate; but the latter can be prescinded from the former.¹⁴

Whereas de Saussure perceives the main task of semiotics (semiology) as the research of signs and their structures (in a primarily linguistic setting), for Peirce semiotics is oriented at the study of semiosis, the process of interpretation of a sign and creation of meaning; it thus widely includes pragmatic, functional and dynamic elements.¹⁵

Semiosis is also for Peirce a potentially never-ending process (which is a concept resembling the hermeneutic theory of spiralling interpretation, which might be stopped by a decision of an interpreter, but can be possibly continued ad infinitum). In de Saussure’s model semiosis is an intellectual journey between two worlds: that of signs and that of designated objects, reflected in a dual nature of a sign, based on the signifier–signified distinction.¹⁶ For Peirce a sign is always contemplated as a part of an immensely complex and dynamic structure, in which it always remains in shifting relationships with other signs, as well as being an object of continuous paraphrases and reformulations in the process of semiosis.¹⁷

Peirce thus breaks with the Aristotelian (and logocentric) tradition of perceiving reproduction of signs through the syllogistic principle of a ‘mark of a mark’ (nota notae est nota rei ipsius), which assumes that the predicate of the predicate is the predicate of the subject18). Peirce, and the semiotic methodology inspired by his works, adopts the view that

a mark of a mark is not a ‘re-mark’ but an Interpretant, or new potential subject. Peirce’s transformation of the principle of the mark will be seen to coincide with the revaluation of the principle of the ‘authority of the precedent’ in pragmatic approaches to the law, as in Legal Realism, according to Holmes, Frank and Llewellyn.¹⁹

Besides the main channels indicated by Kevelson, through which Peirce’s thought has penetrated modern legal theory, other, less direct or less explored links can also be identified. The influence of Peirce’s concept of semiosis on the later development of structuralist theories (including also their post-structuralist phase, which has led to the formulation of the postulates of deconstruction as an interpretive approach – as described in the preceding chapter) had been very far-reaching. It has thus affected legal theory not only directly, but also through inspirations derived from those trends. It seem also worth noting that, as Max Fisch observes, it was precisely the legal system and its specific structure that led the author of the ‘Lectures on Pragmatism’ to the formulation of a prototypical general theory of signs. As Fisch indicates, a remarkable part of Peirce’s abundant works, relating to the law (also in the form of indirect references), and so far remaining in the shadow, is still awaiting its proper ‘discovery’, publication and systematic study.²⁰

The reasons for the lasting popularity of Peirce’s concept of semiotics and its further adoption by different, specific disciplines can be arguably sought not only in the broad formulation of its scope (exceeding the limits of linguistic inquiry and inspired, but not restrained by Peirce’s own logical orientation). They can also be traced in the corresponding, inclusive formulation of the methodological postulates regarding semiotic inquiry. Peirce himself perceived semiotics as an overarching theory of processes of cognition and meaning-making. As Kevelson observes:

[s]emiotics is that ‘science of sciences’ which inquires into all processes of inquiry, and which seeks to discover processes of discovery. Peirce held that Semiotics was to be the method of methods … Rather [than rely on fixed definitions – JJ] semiotic method wants to show how the sign grows, as a living reality.21

The semiotic method of methods should be then – according to Peirce’s later works – able to draw from the methodological repertories of different scientific disciplines, but also to formulate its own, general principles, universal in character. This concept of semiotics remains open in the sense that its principles can be themselves an object of critique (in accordance with the basic assumption of the potentially never-ending character of the process of semiosis). Semiotics is thus, in Peirce’s view, both a method and an object of revision, reinterpretation and autotransformation.

This key assumption in the Peircean semiotic research perspective is then the open character of the systems of signs and of the potentially continuous and self-reproducing sequences of interpretations of signs²² – which are nevertheless not arbitrary and unconstrained, but guided by the character and teleological orientation of their objects.²³ This principle has also been applied to legal texts, produced and operating in specific legal systems. A triadic nature of semiosis, described by Peirce as a relationship between the sign, its object and an interpretant, has been adopted in the studies on law; as Anne Wagner, Wouter Werner and Deborah Cao remark: ‘in the same fashion, legal semiotics has emphasized the dynamic character of legal concepts and stressed the importance of interpretation and the construction of meaning.’²⁴

As a consequence, the semiotic perspective contradicts the classical positivist claim of a closed character of the system of law and opposes Jeremy Bentham’s argument that it should be freed from internal inconsistencies and contrarieties.²⁵ Not only does legal semiotics perceive this postulate as unachievable, but also as remaining in conflict with the intrinsic character of the legal system as an evolving, self-directing and open structure. Its inconsistencies and flaws are also treated as signs, which require particular attention and enhanced interpretive efforts of legal practitioners, but are still not necessarily fully surmountable.²⁶

As Umberto Eco,²⁷ inspired by Peirce, observes, the unfolding, continuous processes of semiosis are performed due to existing and multiplying interconnections between signs, which correspond to the totality of human culture, accumulate it and transform it through subsequent interpretations and reinterpretations. The essence of these processes is creation of meaning; as Clifford Geertz famously observes:

[t]he concept of culture I espouse … is essentially a semiotic one. Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law, but an interpretive one in search of meaning. It is explication I am after, construing social expressions on their surface enigmatical.28

Such a perspective thus assumes that the culture (including legal culture) has a performative, and not ostensive character; it is not discovered, but socially constructed by the actors.²⁹ The complete, cultural universe of semiosis is compared by Eco to a labyrinth³⁰ without a centre or a network in which it is potentially possible to reach any point starting from any other. A user – a reader of texts which are objects to semiosis – is yet in practice incapable of comprehending all those relations and available paths and determined in his or her choices by the cultural proximity of available options, but also by personal curiosity, educational background and mental faculties, as well as chance and eventuality – arguably analogically to the limitations described by Richard Rorty through a category of a final vocabulary, larger or smaller subsets of which might be shared with other users, but which remains unique to every person.³¹

A selection of a path through a particular sequence of signs can (although it does not necessarily have to) be consistent with one indicated by the text itself. Many interpretive avenues are customarily preferred and frequented by readers (which can be applied, among other things, to specialized canons and directives of legal interpretation; while it is possible to read a normative instrument as a literary work, it is not commonly practised, etc.). As a consequence of such conceptualization of semiosis as an individual (even if conventional and repeatable) journey through a sequence of signs, resulting in production and attribution of meanings, Eco proposes a model of this process with a reader placed in the centre.

The Semiotic Web of the Law

This proposal, influenced by Peircean tradition of semiotics, has served in turn as a point of reference for Robert W. Benson, who offers a model of semiosis/interpretation adapted specifically to communications performed within the legal system (and thus oriented at revealing its particularities). At the same time, in accordance with the basic concept of an open character of any cultural stream of adoptions and transformations of signs, Benson’s representation of legal semiosis aims at displaying links of such communications with an environment. His model is thus intended to be a reconstruction of a general conceptualization put forward by Eco, reformulated for the purposes of the specialized legal analysis.32

In the process of attributing meanings to the law, as proposed by Benson, again the reader takes a central position. His or her interpretive decisions are yet directed by different sets of factors of diversified origin and force of conventional influence. The reader is never abstract and transparent, but always contextual and specific – and in this sense he or she forms a Gadamerian type of a subject (see Chapter 2), capable of comprehending the present by means of the ways of perception and cognition inherited from the past.³³ This is not tantamount to an unreflective reproduction of past renditions; Benson explicitly acknowledges, after David Hoy, that Gadamer himself does not advocate following the tradition as a normative postulate. An interpretation may well be subversive, innovative and its path non-obvious; rather, Gadamerian hermeneutics is invoked for its exposure of the role of a specific cultural setting in realizing the background and initial determinants of a particular process of semiosis.

Benson’s model, originally presented in 1987, and later developed in an article on the semiotics of international law published in 1989,³⁴ is presented by the author as a post-structuralist one. It thus opposes the heritage of positivism in the theory of legal interpretation, as well as rejects the linguistic structuralist tradition stemming from the works of de Saussure:

Structuralist semiotics, in my view, tend to be static, mechanical systems based, at bottom, on claims to universal structures of the human mind which either do not exist at all, or if they exist are so deep and so minimal that they have only feeble influence on the cultural superstructure. Structuralist legal semiotics becomes merely a neo-positivist exercise of analyzing law as an autonomous system of coded norms. It suffers the fatal irrelevance of ignoring historical and social context.³⁵

In its pragmatic and contextual orientation, Benson’s proposal thus joins what is characterized by Eco as the semiotic theories of second generation, largely influenced by Peirce. The landscape of semiosis, characterized by Eco as labyrinthine, rhizome-like and encyclopaedic, is renamed by Benson, after Thomas A. Sebeok, a semiotic web36 – a multilayered network of signs.

The reader (understood broadly, in accordance with the Peircean tradition, as any individual creating the meaning through semiosis³⁷), who is the focal point of the model, is influenced by four groups of factors, labelled by Benson as follows: the text; the source of the text; other readers; and normative lenses.³⁸ The last category in the later version of the model has been further reformulated as a heterogeneous set of historical, cultural and sociological circumstances, psychological lenses and value lenses.³⁹ All these parts of the web, further analysed by Benson in detail, reflect the, according to him typical, recurrent considerations, acknowledged or ignored by a specific Anglo-American professional legal reader (a judge or a legal practitioner) in a particular process of legal interpretation. They also delineate the conventional scope of the available signs through which this process might pass; their eventual selection and the final production of meaning being a matter of choice of a concrete interpreter.

Each of these sets is treated very broadly and comprises heterogeneous components; for instance the category of ‘text’ includes the body of relevant instruments, as well as linguistic rules and canons of construction, legislative history, previous judicial, administrative and practical interpretations, related case law, but also such typical considerations (known as conventional interpretive directives) as the purpose, reason, nature and equity (also silence and disregarded text). The ‘source of text’ category contains institutionally and procedurally oriented elements (such as the intent of different stakeholders: legislature, key legislators, groups of interest, framers, ratifiers, citizens, individual authors, etc.), as well as general and axiological ones (the nature of law, human nature, God, history, social and economic conditions, etc.).⁴⁰