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Making Sense in Law
by
Bernard S Jackson
INTRODUCTION
0.1 Making Sense
"It doesn't make sense!" How often do we hear
this expression used in relation to
matters legal - whether it be the ruling of a judge
on a matter of law, the verdict of a
jury on a question of fact, the exposition of the law
by a law lecturer or textbook
writer, the advice given by a solicitor to a client? Nor
is such perplexity restricted to
laypersons. A lawyer, too, may feel the same way about
a technical legal argument,
courtroom tactics, or a piece of drafting: "it doesn't
make sense."
This book is not designed to reveal some series of esoteric
codes to legal non-sense,
for the benefit of either lay or professional readers.
Rather, the emphasis is upon
things which do appear to make (legal) sense, rather than
those which do not. My
basic claim is that traditional legal analysis does not
provide an adequate account of
making sense in law.
The very expression, "it doesn't make sense",
begs two vital questions which are
explored in the pages which follow. By saying that it
doesn't makes sense, our
language suggests that sense is a quality inherent in
that which we perceive, whether
it be an object, text or piece of behaviour. Yet there
has been an immense degree of
interdisciplinary convergence, over recent decades, towards
the proposition that sense
is not inherent, but rather is "constructed".
It is we, the human beings who process the
sense data presented to us, who attribute sense to that
which we perceive.
Ordinary language provides a classical illustration. Neither
the sound d-o-g nor
the written characters "dog" inherently bear
the sense of a dog: that sense is attributed
to the sound or written characters within a particular
language (para.1.2, below). The
fact that it feels "natural" for English speakers
to conjure up the image of a dog when
presented by the word dog indicates only the strength
of the convention which
English-speakers have internalised: the sense of the word
is experienced as if its
meaning were indeed inherent.
Visual perception also depends upon a system of meaning.
Although energy
impulses, in the form of light, are transmitted through
our retina, and impinge upon
our brain, those physical impulses do not (any more than
do the sounds which make
up words) carry any "inherent" sense; rather,
they are interpreted by us as making
sense. Not everything that we see, or could see, would
"make sense". Here, as in
other forms of sense construction, our expectations (e.g.
as to normal spatial
relationships) strongly influence the sense we make: part
of the equipment which we
use in order to interpret visual stimuli consists of social
knowledge, or typifications of
action, about the world and the way people behave.
Similar processes occur in professional contexts. We speak
of clauses or phrases
of statutes "having" a clear or literal meaning.
But this meaning is not something the
words "have"; rather, it is attributed to the
words through conventions of professional
language often just as strong as those by which d-o-g
means dog. Non-linguistic
behaviour also has to make sense in the professional context.
We see two people grasp
each other's hand. Given certain characteristics of duration
and movement, we
interpret that movement as a handshake (rather than, for
example, arm-wrestling or
an assault by one on the other). Given further contextual
clues, we may be certain that
the meaning of the handshake is either a greeting or an
agreement. That is the sense
we attribute to the behaviour. Lawyers have their own
sets of both verbal and non-
verbal behaviour patterns, to which legal meaning is attached.
Non-lawyers, of
course, also make sense of legal phenomena - but
through the use of social
knowledge about the law, rather than the same system of
meanings deployed by
professionals.
In denying that anything "makes sense" in itself,
and in asserting that all sense is
"constructed", we enter into some of the classical
debates about the relationship
between "nature" and "culture". "Constructivism"
of this type does not necessarily
deny the role of nature. In particular, linguists, psychologists,
and lawyers have all
been concerned, in their respective spheres, with the
question: "Is there some aspect of
our linguistic capacity/behaviour patterns/legal system
which is innate, part of our
genetic inheritance - perhaps as a result of evolutionary
processes?" Must we not
assert that some very basic aspects of our capacity to
attribute sense to linguistic and
behavioural stimuli derive from the structures of our
brain? If so, it becomes
important to ask how far nature constrains or determines
the sense which we are able
to construct.
Constructivism is sometimes mistaken as entailing a complete
free-for-all, within
which any person's interpretation is as good as any other
person's, all of them being
equivalent constructions of sense. There are, indeed,
areas of expression where
conventions of sense-making are deliberately eschewed,
in order to encourage the free,
unconstrained attribution of sense by the observer. We
find this in some forms of
aesthetics, particularly art and music. But there exist
in social life vast areas in which
the construction of sense is substantially influenced
by convention. Within the
normative sphere, we may distinguish between etiquette,
morality and law. For each,
we may ask the question: how strongly does the group concerned
insist upon the
observance of such rules?
The second question begged by expressions like "that
does (or doesn't) make sense"
concerns the meaning of "sense" itself [1].
"What is the meaning of life?" is a quite
different question from either "What is the meaning
of the word 'life'?" or "How does
the biochemist (not to mention the lawyer or doctor, for
their various purposes) define
the existence of life?". Similarly, in a Bible class,
the teacher might ask: "What is the
meaning of Isaiah Chapter 53?" On the one hand, this
may call for a translation of the
(rather difficult) Hebrew (Whybray 1985), or a précis,
or a theological interpretation:
is the "meaning" of Isaiah's prophecy that a
prophet will be crucified in the future, in
order to atone for the sins of the people? Different academic
disciplines have come to
be based upon distinctions between meanings of these types.
Students of biblical
Hebrew will seek the meanings which were attributed in
biblical times to the words of
the Hebrew text. Theologians, on the other hand, will
ask also about the theological
significance of the words - historians of theology
seeking the original theological
significance, dogmatic theolo-gians seeking that which
fits into a later structure of
theological thought.
Philosophers who ask about "the meaning of life"
and theologians who ask about
"the meaning of Isaiah 53" have come to receive
a rather bad press. The meaning
they are seeking, many would suggest, is esoteric, in
some way artificial, far removed
from ordinary conceptions of meaning. In a similar way,
aesthetics appears to have
both immediate and more esoteric meanings. A New York
street scene by Gilbert and
George, for example, may combine realism - the picture
we see reminds us of other
pictures we have internalised (from personal experience,
or via the media) of street
scenes in New York - and we may be amused by some
evidently quite intentional
distortions. But then, someone may tell us: the painting
has a further significance - of
alienation, oppression, or anomie. Of course, the painting
"has" no such thing. What is
claimed is either that it is intended to evoke such feelings,
or that it does in fact evoke
them amongst many people. The same issue may be posed
in terms of the classical
novel. Almost everyone who reads it will appreciate "the
story". But how many will
also appreciate "the meaning" (or meanings)
of the novel? Is there a difference in kind
between the immediate and the more esoteric forms of meaning,
such that some
people are, or have become, more attuned to "esoteric"
or "artificial" meanings than
are other people? Or do some people merely internalise
a greater number of
conventions of sense construction than others?
In order to pursue questions like this, and to understand
their relevance to law, we
need to have recourse to some general theory of sense-making.
Semiotics is the name
given to the search for such a general theory. It attempts
to do two things: first, to
discover what is common to processes of sense construction
in such different domains
as literature, social behaviour, and law (through the
deployment of a variety of
significatory systems: language, spatial relations, conversational
patterns, etc.);
second, to identify what distinguishes sense construction
in those various domains.
There are several major competing approaches within semiotics
(Hervey 1982); this
book is informed primarily by the perspectives of the
Parisian school founded by the
late A.J. Greimas. Semiotics can supply an agenda of semiotic
issues, a proposal for a
general theory of signification, and some methodological
tools.
Other disciplines study sense construction within particular
systems of
signification and in particular domains. The primary concern
of linguistics is with the
processes of sense construction through language. Psychology
also addresses relevant
questions of sense construction in its studies of language
acquisition, cognitive and
moral development, perception, memory, and small-group
decision-making. Indeed,
Bruner has argued recently that "the central concept
of a human psychology is
meaning and the processes and transactions involved in
the construction of meanings"
(1990:33).2 Linguistics, semiotics and psychology are
the principal areas of
scholarship on which I shall draw, in order to cast light
upon the non-legal sources of
the sense that is made in law; or, put differently, to
show that legal sense is constructed
by people, and cannot be reduced to purely legal concepts.
0.2 Models of Law
What questions arise when we seek to apply this approach
to law? The very term
"law" begs a further set of issues. By "law"
do we mean the law in the books, or the
law as practiced? And if so, which books and whose practice?
By the books, do we
mean the "primary sources" of law: in England
and Wales, statutes and precedents set
by the appellate courts? Do we include textbooks, and
if so which textbooks? Do some
textbooks possess more "authority" than others?
What do we mean by such
"authority" and how is it recognised? If, on
the other hand, we identify law with
behaviour recognised as legal, we have to ask: (a) whose
behaviour (judges, lawyers,
police, citizens?), (b) what do we mean by "legal"
(according to the books, or according
to the practice of particular groups, whether lay or professional)?,
and (c) what are the
marks of such behaviour, by which it may be "recognised"
as legal?
All of these questions arise if we wish to give a full
account of making sense in law.
Within traditional jurisprudence, we encounter conflicting
theories, each of which
seeks to justify a particular concept of law - broadly,
positivist theories which define
law in terms of the official, authoritative sources; naturalist
theories which include
universals of morality or human nature; realist theories
which identify the law with
particular forms of legal behaviour (whether the decisions
of judges, or the law as
actually perceived "on the street"). But if
"legal" is not an inherent quality of rules or
behaviour (despite the views of some natural lawyers),
and if this entire range of
books and practices makes legal sense to some particular
group, then we must
investigate separately the processes of making sense in
law within each such group.
Each one may have its own way of answering questions (a)-(c)
in the last
paragraph - its own criteria for the judgment "that
makes (or doesn't make) legal
sense." I use the term "semiotic groups"
(para.3.2, below) to describe groups which
have their own conventions of sense construction, conventions
which - though they
may overlap with those of other groups - also include
distinctive characteristics.
Within the law, a host of such groups exist, each one
with its own combination of
answers to questions (a)-(c) above.
The judiciary may be regarded as one such group. It is
sometimes suggested that
English judges lack "common sense". This claim
is often linked with an image of the
English judge as isolated from everyday social intercourse.
The judges, for their part,
vehemently deny both isolation and lack of common sense.
In seeking an explanation
of "what makes sense to judges", it would appear
unreasonable to commence with
either of two extreme hypotheses: either that the judge
is totally isolated from ordinary
society, and (thus) totally lacks "common" sense,
or that the judge interacts
indistinguishably with other members of society, and in
his (predominantly still his)
legal work "merely" applies common sense. Rather,
we should pose the question as
one of degree and inter-relation: to what extent is the
legal sense internalised amongst
judges tempered or influenced by the sense which judges
share with other members of
society?
The notion of "semiotic groups" does not imply
the isolation of such groups one
from another. While race, class and gender may be relevant
factors in the creation of
groups which develop their own systems of sense construction,
the semiotic groups
with which we are concerned within the law are predominantly
defined
occupationally. Judges, barristers, prose-cutors, solicitors,
police, social workers, etc.,
interact with each other informally (and often socially)
in the course of their common
occupational activities: they have lunch together, talk
in the corridors, swap stories,
share jokes. In these ways, they develop and internalise
their own "languages", their
own systems of sense construction.
We speak, nevertheless of "the legal system" -
as if there existed one single,
unitary system of meanings which at least all lawyers
share. We need, however,
systematic empirical investigation in order to determine
whether there exists sufficient
"legal sense" in common between the different
groups within the law in order to justify
such a claim to unity.
This book (with its sequel, Making Sense in Jurisprudence)
brings together a range
of issues - in differing measures, philosophical,
sociolo-gical, linguistic,
psychological - normally treated apart, in order
to argue for an interdisciplinary
jurisprudence of law, one which treats law as an area
of human activity within which
particular forms of sense are constructed. Only a genuinely
interdisciplinary
approach can produce a semiotic jurisprudence. Making
Sense in Law reviews the
various elements of sense construction, and illustrates
their application to pheno-mena
in the law; Making Sense in Jurisprudence offers a critical
account of the ways in
which traditional jurisprudence has approached many of
these same questions.
The legal illustrations in this book are taken primarily
from the modern English
legal system, particularly the operation of criminal trials
before judge and jury in the
Crown Court. Law here exhibits the following features:
(1) The law applied by the court comes from a higher source:
either statute or
precedents set by superior courts. In both cases, the
law assumes a written
form - statute, law reports, both repre-senting particular
"genres" (para.3.1,
below) of "legal language".
(2) The case is tried by a neutral, authoritative third
party (the judge), who is a
professional, a member of the "legal commu-nity";
the decision on guilt is
made by laypersons, who are also neutral and authoritative
(within their
sphere), but are not professionals (in this sphere) nor
do they belong to the
"legal community".
(3) A distinction is drawn between "the facts"
and "the law", the judge's role
being to decide the law (recognising what has been laid
down by the higher
source), the jury's to decide the facts (guided to some
extent by the judge).
(4) The determination of the facts is made on the basis
only of "evidence"
presented in court, primarily in the form of the oral
testimony of witnesses.
The jury receives no special training for this, but is
sometimes encouraged by
the judge to use "common sense" in assessing
the evidence, and in any event
to convict only if they are "sure" (until recently,
that they are convinced
"beyond reasonable doubt").
(5) All the above takes place within the public domain.
The law is available to
the public, in its authoritative written form; the trial
is normally open to the
public; the evidence is given in public; the verdict is
pronounced in public.
One crucial aspect takes place in private, namely the
deliberations of the jury.
But even the assessment of the evidence does have a public
dimension: the
judge "sums up" the evidence to the jury in
open court, before the jury retires
to the jury room in order to deliberate.
These features amount to one, culturally-specific "form
of law". None of them are
inevitable. There is no "natural" or universal
form of law. All forms of law reflect
aspects of the culture and values of the society to which
they belong. This particular
form of law reflects a common value of modern Western
legal systems, often called
the "rule of law". It may be formulated thus:
(i) the State will punish the citizen only on the latter's
breach of laws knowable
by the citizen in advance (so that the opportunity is
genuinely available to
comply with them) and
(ii) after a public process in which such a breach of
a publicly knowable law is
proved.
The particular form of law described above is not the
only possible way of
implementing this value; there are well-known differences
between Common Law and
Civil Law countries, for example, regarding the lay element
in the legal system, and
the manner of presenting evidence in court. But legal
history and comparative law
show the existence also of very different forms of law,
whose underlying values are
not the same. For example, the equivalent features of
the administration of justice in
ancient Israel, according to the accounts preserved in
the Bible, may be summarised
thus (Jackson 1989):
(1) Though "law codes" were promulgated and
displayed in public places, there
was no obligation on the courts to apply them for the
resolution of disputes.
Rather, the courts were required to avoid corruption and
"do justice" - an
intuitive form of justice, claimed in some sources to
be inspired by God. If
the judges had access to (and could read) the "law
codes", the latter at best
provided "guidance".
(2) The case was tried by city elders, non-professionals,
members of the "local
community" of the disputants.
(3) In the light of (1) and (2), the distinction between
"the facts" and "the law"
was of lesser importance: both were decided by the elders.
But even this
might prove unnecessary: the law could be negotiated between
the parties
(with or without assistance from the court) in the light
of the facts.
(4) In determining the facts, there was recourse both
to witnesses and to the
general knowledge of the community. Certain forms of evidence
were taken
to be conclusive (for guilt or innocence); where such
evidence was likely to be
absent, forms of divine aid in the decision might be invoked
(oaths, oracles,
ordeals).
(5) All the above took place in private (though punishment
would bring the
matter into the public domain). The law applied in the
court was not
available to the public in any authoritative written form;
the trial was not
normally open to the public (it was bad enough that one
party "shamed" the
other in the presence of the judges); no reasons for the
decision were stated.
This form of law is often viewed as "primitive",
perhaps as representing a stage
towards the development of the modern (impliedly evolved)
model associated with the
Rule of Law. There are, indeed, some aspects of the contrast
which are explicable in
part in developmental terms.3 But more fundamental is
a difference in values:
(A) The post-Enlightenment West opts for the Rule of Law
as the fundamental
protection of the good citizen; the Biblical model opts
for the Rule of God,
within which the law is primarily a didactic instrument
for the inculcation of
good behaviour.
(B) The post-Enlightenment West endorses a model of rational
decision-making,
in which the human capacity to infer conclu-sions (here,
guilt) from relevant
facts is regarded as sufficient; the Bible opts for a
model of divinely-assisted
decision-making, in which the human capacity to infer
conclusions (here,
guilt) from facts is often insufficient.
(C) The post-Enlightenment West insists upon independent
adjudi-cation, the
adjudicators being unconnected with the parties and thus
personally
unaffected by the outcome of the decision; the Bible prefers
communitarian
adjudication, the adjudicators often being connected with
the parties and thus
having continuing relationships which will be affected
by the outcome of the
decision.
These three values of the post-Enlightenment West are
closely inter-related. It is only
an independent adjudicator who can make a truly rational
inference of facts from
evidence, and it is only such an objective determination
of facts to which the law can
be applied, if the values of the Rule of Law are to be
maintained. But there is also
another connection. If there are to be public rules which
any citizen can take into
account in deciding how to behave, those rules must be
applicable to all: they must, in
this sense, be "general". But the more general
rules are, the more they must ignore the
complexities and particularities of individual situations.
They "abstract" from the total
social context only some, selected elements which occur
generally. Such abstraction in
the content of legal rules is then applied equally to
the process of adjudication: the
adjudicators must themselves be abstracted from the particular
situation: they must be
independent, rational adjudicators, dispensing a form
of justice that itself complies
with general, abstracted rules.
But is this possible? Are the ways in which human beings
make sense compatible
with this set of values? This question underlies much
of the discussion of the legal
illustrations in the chapters that follow. Even to pose
such a question will appear to
some to be heretical. But that only shows how powerful
these values have become.
They have assumed the form of an ideology - a way
of viewing (making sense of)
the world. From a statement of values, a vision of how
the legal world ought to be,
they become transformed into a way of perceiving that
world itself.
0.3 Making Sense in Law
How are forms of sense construction implicated in different
models of legal
adjudication? Much depends upon the model of law we adopt.
According to Jori
(1993a:2120):
Law is intrinsically impersonal in character, and most of its features
are to a large
extent determined by the need to communicate messages out of context.
This explains
the main characteristics of general legal rules, and especially of
statutory law; it also
explains the main features of many legal institutions, first of all
the institution of the
judiciary process (trial), as the main but peculiar situation in which
such language is
spoken.
Legal communication, he maintains (1993a:2113), focuses
on impersonal, prescriptive
and linguistic-only signs. The study of such processes,
he suggests, shows a bias
exactly opposite to that of general semiotics, which is
oriented "toward the analysis of
descriptive and personal/oral discourses".
Such a distinction might well be valid when applied to
the study of legal doctrine
as against legal practice, or even (hypothetically) to
the study of Civil Law systems as
against those of the Common Law. No such bias is accepted
for the purposes of this
book. Sometimes, the processes may indeed turn out to
be impersonal, prescriptive,
written, while at other times they will be personal, descriptive,
oral - using non-
linguistic as well as linguistic methods of communication.
If we are to investigate the
character of law as a particular form - or constellation
of forms - of meaning, then
nothing should be excluded a priori.
This introduction concludes with a brief review of those
semiotic disciplines to be
surveyed for their possible relevance to the construction
of sense in law. Linguistics
may be conceived as involving the following dimensions.
First, there are elements
which must exist in any language, notably a system of
sounds (para.1:1-2), a system of
meanings of words (semantics, para.1.3), and a set of
relations between words used in
sequence (syntax or grammar, para.1.4). But language,
conceived as a "system"
(ch.1) is an abstraction. In practice, language is used
for particular purposes: not only
to communicate messages of various kinds (about facts,
about rules, about feelings)
but also to do various things (asserting, promising, naming,
pointing, etc.: para.2.1),
especially to persuade (para.2.2) and to interact with
other people (para.2.3). Making
sense of language thus involves understanding what the
speaker is doing, not merely
what is being said. But language is no longer exclusively
a matter of what is said:
much language use assumes a written form. The difference
between speech and
writing is not merely the choice of alternative but equivalent
media to communicate
(like the choice of different airlines to get to the same
destination). There is a strong
argument that the choice of medium both reflects and influences
the ways in which we
think (para.2.4).
Every use of language involves these various elements.
Making sense of what
people say and write involves deployment of internalised
knowledge about each of
them: linguistics seeks to make this (often unconscious)
knowledge explicit. But while
deployment of these various semiotic systems is a necessary
condition of making
sense, it is not a sufficient condition. Within any community
which speaks a particular
natural language, there are likely to be narrower groups
which differ from each other
in the particular ways in which they use language. These
differences are studied by
sociolinguistics (ch.3). Professional languages are one
example (para.3.2); they may
differ from "ordinary language" not only in
their vocabulary, but also in a host of
different ways, including sentence structure, style, underlying
thought patterns, and
the values attached to different genres and modes. Even
within a particular speech
community, the use of language for different purposes
may display such variations.
We sometimes use the term "genre" for them (para.3.1):
in legal writing we can
identify a number of different genres. Stylistic variations
also affect the sense which is
made of the users of the language. One aspect of that
sense is the "power" of the
speaker (para.3.3): by their style of speech people create
an impression of (and indeed
assert) their degree of power within a relationship. Some
such differences have been
observed in the speech patterns of men and women (para.3.4).
All this has implications for the model of the rule of
law. That rule assumes a
single speech community, or at least complete transparency
in the abilities of members
of each speech community to communicate with each other.
One example of the
problem relates to the concept of "literal meaning"
(para.1.8). This is not exclusively a
matter of language system (though introduced here in ch.1);
it involves also
understanding of the purpose or use of the language concerned.
The meaning of
language is not inherent; it is the product of strong
internalised conventions of under-
standing. But conventions belong to particular groups.
Literal meaning, therefore, is
not universal to all speakers of the same natural language;
it may differ as between
different speech communities. Can we be sure that these
meanings are sufficiently
shared between those who formulate and apply legal rules,
and those who are subject
to them - more generally, between lawyers and laypersons,
whether in the legal
office or the court?
When we consider the written documents of the law, we
enter a sphere in which
the lay client does not even expect to make sense of the
products of professional
language. Chapter 4 offers a linguistic account of this
phenomenon (para.para.4.1,3),
and assesses the claim that unintelligibility outside
the legal community is not an
inevitable feature of legal docu-ments (para.4.2,5). To
this, legislation - the crucial
form of legal document for the purposes of the modern
Western model of law, and for
the values of the Rule of Law - may provide an exception
(para.4.4). Legislation is a
genre in which the forms of thought characteristic of
literacy (para.2.4) have become
utterly dominant. If we seek to translate this, for a
different audience, into forms of
thought structured predominantly by oral patterns, we
encounter major problems.
Ultimately, we may conclude, no complete and accurate
translation, which will at the
same time be accurate, is possible. Some argue for a "two
document solution": the
writing of Plain English versions for the citizen, but
retention of legislation in its
technical form for the profession (at least, for the courts).
But such a solution
concedes the unreality of the values of the Rule of Law.
It validates the distinction
between two different speech commu-nities: a legal ruling
class and those subject to it.
Semiotics seeks to establish in greater detail the connections
between underlying
thought patterns and the sense we actually make of what
is presented to us. It draws
a distinction between basic structures of signifi-cation
(common to all - even lawyers)
and the knowledge of particular semiotic groups which
informs the sense they each
will generate. A feature of the semiotic approach is its
emphasis on "narrative". A
basic (perhaps innate) form of narrative structure, Greimassian
semiotics claims,
underlies those fundamental cognitive structures which
make data intelligible to us at
all, while it is the internalisation (from culture) of
narrative stereotypes of behaviour
(each accompanied by feelings or evaluations) which informs
the particular sense we
make (para.5.1). This is illustrated through case studies
(para.5.2) of a murder trial
(the sense made of the stories told by the participants)
and a set of "instructions to
counsel" (the sense made of the legal process itself).
A recent analysis of dubious
criminal convictions in the Netherlands argues, in somewhat
similar fashion, that
narrative stereotypes underlie the acceptability of evidence,
even in a system where
adjudication is entirely in professional hands (para.5.3).
Indeed, the con-ception of
narrative as a basic form of human sense construction
appears relevant also to other
areas of linguistics and psychology (para.5.4): for example,
the ways of thought
characteristic of orality are narrative rather than logical.
Making sense involves a combination of innate and culturally-acquired
competences, as is suggested by the different levels of
semiotic analysis (para.5.1).
Within both linguistics and psychology, attempts have
been made to define the
distinction between these spheres. In linguistics, Chomsky
has proposed the existence
of a deep level of language structure ("universal
grammar") which he claims forms
part of our genetic endowment, and which predisposes us
to acquire and use
languages which manifest, in their very different ways,
those universal structures
(para.6.1). Chomsky's emphasis is on syntactic (grammatical)
structures, but these
may themselves be viewed, in semiotic terms, as reflecting
the basic structures of
meaningful behaviour - types of relations between
persons and objects. A similar
argument is advanced in relation to models of grammar
based on semantics, such as
those of Halliday and Fillmore (para.6.2). Claims to innate
mental structures raise
questions about the relationship of language to other
aspects of intelligence. Research
seems to indicate the existence of distinct areas within
the brain for different sensory
functions (para.6.3). Clearly, such different competences
("modules", as Jackendoff
calls them) must interact in some way. Some have sug-gested
that they have parallel
structures, for example that visual under-standing has
its own "mental grammar".
Bruner infers the existence in the child of a "narrative
competence" which is used in
making sense of culture, beginning with elementary forms
of social interaction
(para.6.4). Social psychologists (without endorsing claims
to the innateness of
narrative competence) have also come to see narrative
as a major con-tributor to the
construction of sense. For example, "offender profiling",
a recent development in
investigative psychology, is explained by Canter as being
based upon the internal
narrative meanings constructed by the criminal, narratives
whose coherence requires
us to take account of the criminal's non-criminal as well
as criminal behaviour
(para.6.5).
Whatever the competence for sense construction with which
we are born, our
capacities clearly increase as we grow and are educated.
Cognitive developmental
psychology studies what are seen as the regular stages
through which our competence
grows from infancy to adolescence. For Piaget (rejecting
what has come to be known
as the "modularisation hypothesis", of separate
competences within the brain,
para.6.3), we have a general intelligence characterised
by the development of our
cognitive abilities first into "concrete", and
later "formal", mental operations. Our
"point of view" also becomes more "abstract":
we begin by viewing everything from
our own point of view ("egocentricity") but
gradually develop a capacity to abstract
ourselves from a situation, and view it from the viewpoint
of others (para.7.1).
Parallel to some degree is Bruner's account of the development
of our capacity to use
forms of representation (including, but not restricted
to, language): initially we use
them in a purely "enactive" way, as objects
to fulfil immediate functions or needs; next
we develop "iconic" forms of representation:
one thing looks like another, and
summons that other to mind, even though it is not accessible
to our senses; finally we
arrive at true symbols (such as most of the words in our
language), where the
relationship between what is accessible to our senses
(the word) and that which it
represents (the meaning) is "arbitrary", i.e.
not suggested by perceptible likeness
(para.7.2). In various ways, these developmental theories
may contribute to our
understanding of the cognitive processes which render
professional language difficult,
particularly in its written form (para.4.3). Indeed, we
may compare the drafting of
legal rules in societies which lack the professionalisation
of law (such as the Biblical),
and observe, amongst other things, the greater emphasis
upon narrative ("concrete")
rather than conceptual ("abstract") language
(para.7.3).
Part of the sense which we construct in legal contexts
may be termed "moral":
behaviour is regarded as "wrong" because it
is thought to violate a rule (whether the
origins of that rule be conceived as social, legal or
moral). Freud sought to explain this
human capacity in terms of the psycho-sexual development
of the individual: the
infant has to learn the necessity to restrain bodily desires
(para.8.1). A quite different
view is proposed by Kohlberg, who developed a model of
"moral development" closely
related to Piaget's stages of cognitive development. Both
the justi-fication of rules of
behaviour, and reasoning regarding their application,
he claimed, follow a parallel
developmental pattern, from egocentricity through conventionalism
to independent
moral evaluation (para.8.2). Morality as such, on this
account, develops relatively late
in children. Turiel, on the other hand, argues that there
are behavioural contexts, such
as the infliction of physical harm on others, where children
distinguish morality from
convention much earlier than Kohlberg had claimed (para.8.3).
Kohlberg's error, it
may be argued, lay in following too closely the rationalism
of the Piagetian tradition,
and paying insufficient attention to the feelings which
we learn to attribute to
situations, in the process of making sense of them (para.8.4).
This rationalism leads
Kohlberg, like Piaget, to conceive of the summit of moral
development in terms of
abstract conceptions of justice, rather than contextual
(or narrative) ones.4 Kohlberg's
approach has been challenged by Gilligan as representing
just one conception of
justice - and one which may be gender biased (para.8.5).
Research on the moral
development of girls indicates the presence of an alternative
model, that of "care", in
which rights take second place to concern for the ongoing
inter-relationships between
the parties - a concern which is necessarily suppressed
when legal adjudication
focuses upon the construction of the sense of a single
event taken in isolation.
The distinction between the "justice" and "care"
models may be associated with
others derived from linguistics: the "justice"
model with the analytical approach
associated with written forms of consciousness, and with
the privileging of a standard
form of the language (the "grapholect"), the
"care" model with a more holistic,
narrative approach associated with oral forms of consciousness
and with greater
context-dependence. Whatever the strength of the gender
associations of these two
models, they indicate quite different conceptions of how
the legal system ought to
work (para.8.6) - conceptions which may readily be
used to explain the different
forms of sense perception used in the Biblical and modern
models of adjudication
contrasted above. Certainly, it is the "justice"
model which is predominantly reflected
in the modern English criminal trial. This is one sense
in which feminists claim that
"Law is Male".
The "personality" of judges is a factor which
legal realists have long seen as
important in the description of legal decision-making.
But what is "personality"?
Attempts to explain it have been offered from both the
psychoanalytical and cognitive
developmental viewpoints. Research sug-gests some correlation
between distinct
personality types and forms of reasoning, such as a disposition
to be guided by rules
(para.9.1). Equally important, but less researched, is
the role of perceived personality
(of both witnesses and lawyers) in the trial process.
Working theories of emotions are constantly deployed within
the criminal justice
system. Typically, they are "materialistic" -
the image of a defendant who has "lost
control", as if his emotions have "burst out"
of their physical constraints. Psychologists
have come to reject such accounts of emotions. Increasingly,
they too are seen as part
of the process by which human beings make sense of events.
We therefore need to
understand the relationship between thought and feeling.
While cogni-tive models of
emotion are influential, they do not seek to reduce emotion
to thought, but rather to
recognise its role within an integrated account of sense
construction (para.9.2). In this
spirit, both psychologists and semioti-cians have sought
to explore the underlying
structure of emotions (para.9.3). In dealing with "provocation",
the criminal law
adopts an uneasy compro-mise between materialist and cognitive
accounts of emotion
(para.9.4).
Many of the elements of sense construction reviewed in
earlier chapters come
together when we observe a witness testifying in court.
Witnesses report the sense
they have made of what they have observed, and the court
makes sense also of the
witness's act of testifying (para.10.1). Psychologists
have devoted considerable
empirical research to the processes of perception involved
in eyewitness testimony
(para.10.2), to memory and recall (para.10.3), identification
evidence (para.10.4),
confessions (para.10.5), the evidence of children (para.10.6),
and the role of the expert
witness (para.10.7). Many of their findings assume a different
theoretical significance
when viewed within the broader semiotic synthesis here
proposed.
To observe a witness testifying in court is not merely
to make sense of what is
said. Linguistic and semiotic perspectives enhance our
under-standing of the
courtroom behaviour of all the participants. In a jury
trial, the sense produced is a
function in part of these various courtroom interactions.
The role of the lawyers is not
limited to questioning the witnesses: they also initiate
and frame the narrative in their
opening and closing statements, and provide a running
commentary on the acceptabi-
lity of the performance of the witnesses, and sometimes
even of the judge (para.11.1).
Again, both the verbal and the non-verbal behaviour of
the witness contributes to the
sense conveyed to the jury (para.11.2). The interaction
between counsel and witness is
very distant from normal patterns of question and answer:
counsel may indeed
surreptitiously offer evidence, through presuppositions
in the questions, and reactions
to the answers (para.11.3).
Sitting above all this is the judge, who in his dress,
physical location and behaviour
conveys the sense of authority of the law. The judge regulates
the proceedings, both
by ruling on the legal sense of the procedural moves made
by counsel, and ultimately
in "summing up" to the jury - a genre of
speech which is inherently ambivalent,
being directed immediately to the lay jury but indirectly
to the professional judges of
the Court of Appeal (para.12.1). Finally, the jury retires,
deliberates and decides
(para.12.2). How do its members make sense of all the
sensory inputs to which they
have been subjected? The view is gaining popularity that
they do so in terms of
coherent narratives. But the sensory data which the jury
members must process
include their own (new) experience of interaction with
others (strangers) in a jury
room. How do they decide what is the appropriate form
of behaviour in the jury
room, and how does this behaviour - their interaction
with fellow jurors - influence
the sense they make of what they had observed in the courtroom
itself? For semiotics,
at least, this is a vital issue - that of the relationship
between the narrativisation of
semantics and the narrativisation of pragmatics. In this,
cognition and emotion form
part of an integrated whole. An illustration is offered
from a jury experiment
conducted in the Liverpool Crown Court (para.12.3).
The emphasis in this book is on processes of sense construction
as they contribute
to the determination of fact. But determination of the
facts is only part of adjudication
according to the model of the Rule of Law. The court must
go on to "apply" the law,
and, where the latter is in doubt, to provide an authoritative
statement of it. But law
application and discovery, like fact determination, is
a human process, informed by
human processes of sense construction. In this area, legal
philosophers have had more
to say than linguists or psychologists. Their accounts
are reviewed in the sequel to this
Notes:
1 The classical exposition of this range of issues is
to be found in Ogden and Richards (1923/1949). See especially ch. IX, and
1949:186ff., where 16 meanings (presented as "a representative list
of the main definitions which reputable students of Meaning have favoured")
are offered and discussed.
2 Cf. 63f. He closes the book with the observation: "... even
the strongest causal explanations of the human condition cannot make plausible
sense without being interpreted in the light of the symbolic world that
constitutes human culture."
3 Particularly the relationship between cognitive styles
and the incidence of literacy. See para.para.2.4, 7.1-2, below, and Making
Sense in Jurisprudence, para.3.3 (on Hallpike).
4 Indeed, Kohlberg invokes the work of the philosopher
John Rawls, whose conception of justice as fairness explicitly requires
judgments to be made "behind a veil of ignorance" of the present
positions of those concerned, and thus generates a form of justice based
on abstract rights.
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