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Making Sense of "Making Sense in Law"
by
Mario Jori
Facoltà di Giurisprudenza, Università
di Milano
Review of Bernard S. Jackson, Making Sense in Law.
Linguistic, Psychological and Semiotic Perspectives (Liverpool: Deborah
Charles Publications, 1995 hbk., 1996 pbk.), pp.xii + 516 (appearing in
Vol. IX no.27 (1996) of the International Journal for the Semiotics of
Law; this is an unformatted version: notes at end)
Making Sense in Law originates from a course on Law, Linguistics and
Psychology held by the author at the Faculty of Law of the University of
Liverpool. The book's origin as an introductory textbook no doubt contributes
to its refreshing clarity; nevertheless, Making Sense in Law is not conceived
as a manual and does not propose to be a systematic introduction to all
the main traditional subjects of the related disciplines. The author rather
chooses to focus on one subject: how laymen engaged in the legal process
deal with facts.
While discussing court cases, psychological studies of court cases,
and the linguistics of giving evidence, the author has an underlying theoretical
interest. The book attempts to show that a particular synthesis of linguistics,
psychology and semiotics is the most fruitful approach to legal problems,
and in general to the study of human interaction, as is explicitly stated
in the Preface:
Making Sense in Law [...] has a broader, and more theoretical, purpose,
directed to an interdisciplinary audience: to advance the claim that a
synthesis of substantial areas of linguistics, semiotics and psychology
leads to a richer analysis of substantive problems of sense construction
than would be available from any one discipline alone. In particular, semiotics
(the version here propounded, based on the work of Greimas) appears to
me to provide a theoretical structure within which an account of the more
particular disciplines of sense construction may take their places. Chapter
Six, especially, addresses that theoretical issue, in reviewing various
claims to the existence of different types of universals of "sense
construction".
In the Common Law world, dealing with non-lawyers engaged in fact-appraising
activities means, of course, dealing with the jury. Accordingly, most of
the general literature and studies examined in this book are chosen for
their immediate or indirect relevance to the issue of fact appraising by
juries. For instance, chapter 5 begins with an exposition of Greimassian
semiotics and continues (§5.2) with "Some Legal Illustrations",
the first being an English murder case. The last three chapters ("Witnessing",
"Processing Facts in Court", "Judge and Jury") deal
solely with the problems of witnesses and jurors in giving and evaluating
evidence.
The principal other legal topic discussed at length in "Making
Sense in Law" is the Plain English Movement, which occupies most of
ch.4, entitled "Legal Language". The connection with the main
focus of the book is rather obvious, since the "Movement" is also
concerned with the relations between legal language and common language,
namely with language used in standardized deeds and contracts. It is a well
known fact that the language of such documents is often hardly understandable
by non-lawyers. One could wonder why the author reserves such a considerable
space to this topic. He obviously thinks that the ideas of the "Movement"
are a good illustration of the relations between legal and everyday language.
In my opinion, the Plain English Movement is based on a worthy idea, provided
that it remains within its original aims and limits, viz. of making legal
instructions to laymen as plain as possible, without useless technicalities
and useless legalese or bureaucratic mumbo-jumbo. The problem, of course,
is that all too often translations from technical legal language into everyday
speech come at a cost. Technical legal language and concepts (apart from
their perverted uses) strive for a degree of exactness and distinctions
which are simply unattainable by ordinary language. For instance, everyday
speech simply says that something is mine, but in most legal situations
we need to distinguish between ownership, leasing, detention, civil and
penal possession, etc. This dilemma has been thoroughly canvassed in modern
legal thinking, starting at least from Jeremy Bentham. Of course Professor
Jackson not only knows this very well, but tells us so in the book (see,
e.g. p.117). All the same, his recognition of the merits of technical legal
language are rather laconic and grudging, and a hasty reader of this part
of the book (and a student) could be forgiven for forming the impression
that the technicalities of legal language are always just mumbo-jumbo, used
by a coterie of swindlers (the professional jurists) bent on cheating the
public. I feel bound to linger on the (to me) rather secondary issue of
the Plain English Movement, since I think it important to stress that the
problems of legal language as technical discourse cannot be reduced to the
misuse of legalese. In my opinion, moreover, technical legal language, as
all technical languages, is not happily treated within a narrative framework.
I shall argue later that Professor Jackson's professed version of narrative
semiotics pulls him towards a rather extreme sort of fact-scepticism, while
(fortunately) his sensibility as a scholar of several fields of legal thinking
and his common sense mostly induce him to a substantially more moderate
position. Of this, more later.
Albeit addressed primarily to students, the book rightly avoids the
above-the-fray neutral appearance of the standard manual. In fact, it is
by no means above the fray and the author openly adopts some strong and
rather controversial theoretical positions. These are concisely explained
and instanced in a couple of paragraph at the beginning of ch.5, the previous
four chapters ("Some Fundamentals of Language Systems"; "Some
Fundamentals of Language Use", "Sociolinguistics: the Who, When
and How of Language"; "Legal Language") being dedicated to
an analysis of the less controversial basic notions of (legal) semiotics
and sociolinguistics.
The author's main thesis is that when human beings ascertain, describe
and even perceive facts they necessarily operate through language. Facts
are filtered and conditioned by the language produced and used to describe
and prove them. Therefore, using and producing language is a necessary and
essential part of all human activities and understanding. Explaining signs
and human actions is basically the same thing; Making Sense in Law, a book
on legal psychology, is therefore also a book on legal semiotics and linguistics.
These far from uncontested ideas are widely held in the modern social sciences,
where it is claimed that the behaviour of human beings must be explained
in terms of meaningful action. [1]
Nevertheless constructivism constitutes, so to speak, only the first
layer of Jackson's assumptions. The second layer is his narrative approach
both to semiotics and the theory of action, the belief that semiotic competence,
the normal capacity of understanding human actions and what is said in normal
circumstances, can be explained only by assuming that language and reality
are interpreted through the filter of a limited store of shared stories.
A piece of discourse and a described or presupposed situation are seen as
"normal" and understandable in communication when they fit well
into the paradigm of a socially shared story (narration). Normal stories
are easily believed, even on scant or no evidence. The third layer of the
author's assumptions involves a peculiar version of the narrative theory
inaugurated by the semiotician Algirdas J. Greimas. This theory operates
at a very high level of abstraction (called the deep level). While more
moderate forms of narrativism merely assert that all semiotic activities,
indeed all (conscious?) human actions, really follow one of a number of
standard plots or stories made up of a reduced number of basic elements,
according to Greimas's theory, the immense variety of roles and situations
which present themselves to our attention in real life and discourses are
distinguishable at the surface level of communication only, while at a deeper
level, the theory reduces them to a few elementary structures of signification
(p.144), a small number of plots enacted by rather bloodless "actants",
which are conceived as merely keepsakes for their basic functions in discourse.
The semiotic relationships between these elements make up the succession
of semiotics elements, while the choice of the element to put in each spot
(the paradigmatic axis) should also be reduced to a universal and simple
scheme, the so-called "semiotic square". For instance, something
which is white is defined by its relations with what is black (the privileged
instance of not-white). Understanding the use of "white" is understanding
that we have not chosen black.
As a matter of fact, the author warns us that most semiotic choices
are not really simple binary choices, such as saying that something is white
or black. In real life, not only do we have to deal with the further alternative
that something might be neither white nor black, but with the complex and
infinitely variable relations of hyponymy (p.148). For instance, if we say
"man" we could mean that the subject is not (is opposed to) a
boy, but also that it is not a woman, or an animal or even (in less usual
sentences) a star. This brings us to the theory of "semes", the
elementary components of meaning, which of course is not exclusive to narrative
semiotics. Jackson reports the basis of this theory at §1.3, while
he refers in ch.5. to the more controversial use made by it in the context
of Greimassian semiotics.
There is a vast consensus among students of semiotics and the social
sciences that this part of the theory is sound, at least when it asserts
that natural languages contain recurrent components of meaning, whose number
is vastly smaller than the number of words. Nevertheless, such a theory
would fulfil the programme implied in its name only if it made it possible
to analyse the semantics of natural languages into a small number of atomic
semantic components. This has not been done yet and I fear that it is impossible.
Apart from the meaning elements incorporated in syntactical regularities
(such as gender, number, verbal tense, etc.) and studied by morphology,
most dictionary items are made of semantic elements which show no simple
regular or general structure. It seems that the semantics of natural languages
are not built according to a relatively short "table of elements".
Nor does talk of "semantic fields" (see p.49) solve all the difficulties;
it merely allows us, as the author says, "to filter out most of the
theoretical possibilities" of semantic choice by introducing a sort
of molecular level in the analysis. The sad truth is that no general theory
of what constitutes a semantic field has ever been formulated - apart,
again, from syntactical categories. Therefore, so far as I know, the theory
of "semes" is confined to the descriptive study of restricted
and specific semantic areas.
Such problems of the theory of "semes" are perhaps the main
reason why general semantic theories such as Greimassian semiotics are compelled
to look for generality and structure on the syntagmatic axis and at a level
of greater abstraction. Thus, according to the third layer of Professor
Jackson's semiotics, it is the inner-core uniformity of possible underlying
basic stories that plays the main role in reducing the complexity in normal
human communication and actions, rather than the use of a limited number
of semantic semes on the paradigmatic axis (which turns out not to be at
all limited in any general way). The instinctive albeit often unconscious
grasp we have of such stories and of the elementary roles they contain explains
why all normal people are able to cope quite easily with the vast amount
of "new" things in daily interaction. At this "deep"
level, abstract stories will have a very loose connection with the surface
structures of language and with the "surface" features of actions.
This is accepted by Jackson. But, is this a positive or negative feature
of a linguistic theory? Of this, more later.
Jackson espouses the Greimassian theory to the extent of considering
it the method of semiotics, that is of considering it the sole correct access
to semiotics. Thus, when the author says "semiotics", he usually
means "Greimassian semiotics". This can be marginally confusing
especially when discussing alternative versions of semiotics; fortunately
the author does not carry his own definition to its logical conclusion,
which would imply that non-Greimassian studies of semiotic phenomena do
not belong to semiotics at all. It must be added that his accounts in the
book of such studies that do not share all his "layers of assumptions"
are both clear and fair. Diverse authors such as Freud, Chomsky, Grice,
Austin, Bruner, Jackendoff, Piaget, Kohlberg, Bruner, Gilligan and many
others, are discussed at length with regard both to their general approach
to meaning and action and to their contribution to the problem of sense
construction.
As a matter of fact, the book is thoroughly readable, informative and
written in a language which is as clear as such a complex subject allows.
In my opinion, moreover, Jackson's main thesis is largely vindicated, up
to the second layer of his assumptions: his thesis that common law juries
assess legal facts through pre-formed, prejudiced and rather standardized
models about human motives and behaviour is wholly convincing.
The author carefully examines various empirical studies on the psychology
of jurors. He is well aware that most of these empirical studies suffer
(especially in the eyes of a contextualist theory of meaning like his own)
from being carried out on "fake" juries. According to narrative
theories, and to all contextualist psychological theories, this should make
a decisive difference. Nevertheless, he reasonably maintains that such tentative
findings can still be extended to the real world. In the matter of assessing
facts through the jury system, the legal world still relies too heavily
on the capacities of the common sense of the jurors to solve any problems
and unfairness in the assessment of proofs. In the Common law world, this
belief produces what the author, with obvious restraint, calls an excessive
optimism. Consequently, no realistic provisions are made to take into account
the strong forces operating at the pragmatic level of legal communication
during the trial. According to the author, existing formal devices, such
as the (oral) instructions by the judge to the jury, are inadequate to temper
or correct the influences that role playing within the jury and narrative
influences in the courtroom (the story of the trial) have on the way the
evidence is assessed and interpreted (the story in the trial).
I think therefore that Making Sense in Law will not fail to persuade
all but the most obdurate of "formalist" readers of its main position,
that using linguistic tools and a narrative approach to examine the workings
of juries is both fruitful and necessary. Thus, we may safely conclude that
a generic narrative approach must be considered in any attempt to understand
the assessment of facts in law.
This judgment, however, requires several additions. In fact, I think
that Professor Jackson's approach is fully vindicated up to the first and
second layers of his theory. I am persuaded that the problems of fact assessment
in law must be studied by focusing on language and through a narrative approach.
On the other hand, the third layer of his semiotics, the specific Greimassian
theory, does not seem to me to be either indispensable or even very relevant
to the analysis and conclusions of Making Sense in Law. From time to time,
it is true, we are confronted with the reminder that a figure in the trial
acts as the Opponent or the Subject (for instance, see p.414). The capital
letter tells us that these words refers to the underlying actant, to the
universal abstract figure, but this does not seem to give us any extra clue
as to the actions and language used by the courtroom actors, since no special
linguistic (surface) structure or psychological attitudes are said to be
connected with specific actantial roles. Is this a sign of potent abstraction
or of irrelevancy?
If I am right in my impression that Greimassian semiotics is more of
an ornament than a real tool of analysis in this book, this could be ascribed
to a very reasonable attempt to walk lightly on controversial ground in
a book addressed primarily to students. This undoubtedly is part of the
truth, but in my opinion it is also a consequence of some inherent problems
in the third layer of this kind of semiotics.
It could be surmised that narrative theories at this level of abstraction
merely state that the underlying structure of human communication requires
that everything which has a place on the syntagmatic axis of action and
discourse must have some (deep) role or another. But on Jackson's account,
we are unable to infer such deep roles from the presence of particular surface
features, nor are we able to infer the presence of a surface structure from
the presence of an actant. The deep narrative structure apparently is a
disease with no symptoms at all. From any (however broad) empirical point
of view, this would entirely or at least gravely reduce its explanatory
force. From such a point of view, this kind of narrativism, albeit perhaps
not as tautological as it might seem, would be simply the rephrasing of
one basic idea of Saussurian linguistics, the notion of the syntagmatic
axis, by saying that a piece of language always occupies a place near other
contiguous pieces of language. But such a "pure" story would no
longer be a story in any meaningful way.
At its deepest level of analysis, Greimassian semiotics is so abstract
that its critics can be forgiven for thinking that it is empty. It should
perhaps be remembered that Greimas was originally inspired both by Lévi-Strauss's
analysis of primitive thinking and by Propp's analysis of Russian folktales.
From the first came the idea that (primitive) thinking is structured according
to a network of oppositions along different but related axes (dry/wet, pure/impure,
male/female, etc). This gave to Greimassian semiotics the idea of the semiotic
square, which - far from being invented by Lévi-Strauss or Greimas -
is derived from classical logic as the opposition of contraries. On the
other hand, Propp's "formal" analysis of Russian oral folktales
was the immediate source of the Greimassian idea that the events and personages
of such stories are in fact the endless repetition of a few fixed characters
(originally called functions within the story). Under the appearance of
infinite variations lies monotony; the listeners of the tales understand
the familiar shared stories and can easily make sense of the whole. The
theories of Propp and Lévi-Strauss are indeed powerful explanatory
tools, in that they make sense of what apparently has no sense in the eyes
of the external observer. Such theories are better than alternative explanations,
for instance that primitive thinking is the irrational and casual product
of emotions and needs, since they uncover the internal workings of such
ways of thinking and forms of discourses and of the rules applied by their
users to produce and understand them.
My point is that primitive thinking and language are really organized
around specific oppositional axes; that Russian tales are really composed
of fixed modules. These constant features, albeit not obvious, are reflected
in corresponding symptoms at the surface level; they appear in specific
modular features both of discourse and thought. Now, try and apply the idea
of a modular tale to La Divina Commedia. We find here a story which very
easily fits into the frame of Hero, Helper(s) and Opponent(s). But it explains
nothing of the poem's linguistic peculiarities and of its differences from
the tale of "A House on Chicken Legs". When we try to understand
particular features of La Divina Commedia, such linguistic peculiarities
are obviously more important than the similarities to a folk tale. In order
to start explaining these literary features, we must look at Dante's ideas
about the proper metric form of such a poem, about the many cultural and
religious ideas which influences him, etc. The same problems arise when
we attempt to explain, for example, the quantitative problems of modern
cosmology as to the total mass of the Universe by means of concepts arranged
according to Levi-Strauss' axes.
No doubt, philosophical ingenuity can still shoehorn everything into
the theoretical frames of abstract stories and logical squares. But then
the theory merely tells us that someone does something for some reason,
and that a concept is different from other concepts (only) if it can be
distinguished at least under some of its aspects. This is in some sense
recognized by the author (see p.163), when he admits that the theory works
(only) a posteriori, and is unable to predict any surface feature of language.
He does not consider this to be a problem.
Things go differently with common sense thinking, which has many aspects
of primitive thinking, indeed in some sense still is primitive thinking.
In my opinion, this is the main reason why narrative semiotics and straightforward
"semiotic square" schemes of thought are so apt at explaining
normal actions and common sense thought and everyday discourse. People in
everyday life (and jurors in the jury room) do read actions and reality
through stories, do follow plots and roles when they act. We do not need
to go all the way down to the deep level to find such stories.
Thus, narrative schemes may appropriately be used to explain fact finding
and fact assessment according to common sense. But some artificial discourses,
such as science and law, are essentially attempts to get free of such plots
and limitations. So also, in its very different way, is "good"
literature. These discourses therefore can be described as attempts to avoid
the stereotype of common stories. For instance, quantification in the language
of hard sciences has clearly this function; and the same objective lies
behind the use of explicit definitions in modern statutes. To think that
they are to be explained only and wholly as "normal" thought and
stories implies the belief that they have failed in this attempt, so that
the technical aspects of a discourse may be discounted as merely the icing
on the cake. In the case of natural sciences, for instance, their reduction
to Greimassian narrative could imply that there is no difference between
good and bad science. This is scepticism much more radical than any mere
assertion that scientific languages can sometimes be misused. Misuse happens,
for instance, when a scientist falsifies the results of a test, just as
a lawyer may attempt to cheat the layman by being cryptic. In such cases
we may go back to the stories; in fact, in such cases we have a detective
story set in a lab or in a solicitor's office. But using narrative schemes
to explain technical language presupposes that the language has failed,
failure being judged according to the language's own rules; and this in
itself presupposes a notion of failure, and therefore of success. Of course,
even success must be "explained" (the context of discovery); but
this will always be a secondary approach to a successful piece of technical
discourse, whose first explanation is that it follows its own rules. Wittgenstein's
well known dictum against private language is apposite here: a language
means following rules, and the notion of following a rule implies that there
is a difference between following the rules and believing that one is following
the rules (see Making Sense in Law pp.96ff., where technical discourses
are apparently viewed merely as the languages which happen to be spoken
by particular professional groups).
In my opinion, legal semiotics must decide whether the technical discourse
of the law is to be considered a technical discourse with its own internal
rules, or a travesty of method with only the illusion of following the rules
(more similar to modern popular astrology than to chemistry). Not even an
external description of the law, such as that of the social sciences, can
avoid facing this problem. The description of the psychology of a set of
swindlers will be different from the description of the psychology of practitioners
of a technical discipline.
No explicit stance on this essential point is found in Making Sense
in Law. Are all stories equivalent? Is the only difference between the story
of the ballistic expert and that of the unreliable witness just a matter
of contingent social roles? Is the interpretation of legal rules given by
the professional jurist just another (arbitrary) approach to an indifferent
and infinitely pliable text? If such extreme conclusions were adopted, then
it would be self-evident that we cannot judge that a witness is unreliable;
he would merely look unreliable to somebody.
I cannot avoid noticing at this point that the main thrust of Professor
Jackson's work is a normative conclusion. On p.465, the very last page of
the book, he says: " ... it no longer appears satisfactory to
leave the jury door closed and resort to an ideology of 'common sense'."
This is normative in a moral and political sense. The book ends with some
(very reasonable) proposals for law reform, which should make it easier
for juries to assess relevant facts, or at least to discriminate between
the various stories about such facts as told in court. A problem is identified
in the way juries do their job in the present legal situation. This job
is conceived as that of assessing stories about events. The faults of the
system are shown and proposals are made for making it better.
All this makes sense only if such actions as assessing factual stories
can be judged according to criteria which are not wholly story-dependent,
only if stories can be "anchored" to facts. There must be better
and worse ways of describing legal facts, or the whole of Professor Jackson's
analysis and proposals would become totally idiosyncratic and meaningless -
just as meaningless as it would be for the reader of a detective novel to
take a serious moral stance about how well facts are assessed by the fictional
detective.
Neither the semiotician nor the psychologist can avoid saying whether
they are totally sceptical or not about facts; and if they are not, they
will have to embrace some notion of reality and grapple with the claims
made within scientific technical and legal discourses.
But Making Sense in Law is not a book by a sceptic. Any reader is soon
aware that the author is well able to distinguish between interpretation,
illusion and hallucination. The problem is that we are not told how this
is possible within the author's assumed narrative framework. Jackson shares
with Greimassian semiotics a strong abhorrence against making use of the
concept of reference in the analysis of language. It is peculiar that a
book which focuses on legal facts manages to avoid nearly all mention of
the problem of referring to facts. Is referring to facts a superstition?
The author seems to embrace the notion that conceiving reference as a fundamental
part of meaning implies some sort of simplistic epistemological and semiotic
realism, in the form of a pre-Kantian (in fact pre-Aristotelian) opinion
that meaning is a relation between a word and a thing.
This, of course, is not the case, both in theory and in the recent history
of thought. To say that some fundamental types of meaning are referential
does not even imply that an external world exists; merely that an essential
part of language assumes that it does, when it talks about the world or
tells us to perform actions in order to produce changes in the world. Nor
does it imply the denial that meaning is determined by the structure of
intra-linguistic oppositions, so that the meaning of every element of a
language is determined by its being different from the nearest contiguous
elements. Finally, it does not imply denying that language is a filter that
can put different interpretations on the same experience and perception.
Avoiding all reference to reference would produce some bizarre results
in semiotic analysis. As a point of fact, reference is central both to common
sense language and to several artificial languages (science and law). Description
and prescription (as pure types) are defined in terms of their referential
core. Even rules/norms have a referential meaning component, the action
which is prescribed, and this part of their meaning is identical to the
same part of a description; when the description that the action has been
performed is true, then we say that the rule has been followed.
Of course a pure narrativist could limit himself to reporting that benighted
people use referential language as a curious form of superstition. This
is a rather paradoxical development for a theory inspired by Lévi-Strauss's
charitable approach to primitive thinking. Therefore, my first criticism
of Jackson's account is that he somehow neglects describing an important
internal aspect of legal language, its referential meaning.
But I must advance a stronger criticism. Even a circumstantial enthomologistic
approach [2] to reference is not sufficient when dealing with languages
based on reference and characterized by claims concerning facts and actions.
Legal psychologists, just as social anthropologists or historians of medicine,
cannot avoid taking a stance towards the practices and the theories that
they describe - with regard to both their internal coherence (coherence
with their own procedural rules) and their efficacy in reaching their declared
aim. If the rain dance never produces rain we must find another explanation
for its success as a social practice, an explanation which will distinguish
it from practices which do work (we shall also have to define what "working"
means in these various cases). If witches have no magical powers we must
find another explanation for the belief in witches; and if witches do not
exist we cannot neglect this fundamental circumstance when evaluating a
trial against a witch and the way witnesses assess the evidence. That there
is a coherent social test for witchcraft is part of the practices we study;
that there are or there are not such things as magical powers is necessarily
part of our psychological and semiotic analysis. Professor Jackson himself
explains that a defendant was convicted in a British criminal case because
his "story" was not credible to the jury. Everything in this account
presumes that it makes sense to ask ourselves whether the defendant really
committed or did not commit the crime, independently from the story. But
how is this possible if we take the extreme narrative framework seriously?
[3]
I wish to make it clear that by "internal coherence" I mean
"according to a language's own internal methodological rules, whatever
they are". The internal rules may be the rules of some kind of "pensée
sauvage" which the explainer does not share. My point is that in order
to describe what is happening we must not only understand and apply those
rules, but also decide whether we share them or not. First of all, there
must be a difference for us between applying the rules and believing to
be applying the rules. If we don't accept this, then the external explainer
of those actions becomes unable to explain the actions which follow the
internal rules in a way different from the actions which do violate them.
He also becomes unable to say that some of those rules are internally inconsistent
or too vague to prescribe anything. These are three different explanation
of actions which are independent of our accepting the rules to which we
refer, but not independent of our capacity to understand and apply them.
Secondly, the external explainer must decide whether the whole practice
is acceptable to him. Someone may say that according to the rules accepted
in a society someone is actually a witch (she has a birthmark on her skin);
that someone has been condemned as a witch despite the rules (she did not
have that birthmark); or that the rules are so vague that anybody can be
brought under them (the rules say that malevolent people are witches). In
the first case we must explain why there are such rules when there are no
people with magic powers, in the second case we must explain (also) why
the rules are violated; in the third case we must explain why a society
needs empty rules, and give an account of the real motives underlying a
persecution.
When the internal rules include reference (they always do with legal
language), we must give an internal account of reference and decide if it
makes sense for us or not. This is required just to describe and explain.
Finally, if we wish to reach normative conclusions (witches should not
be condemned, witches do not exist), as Professor Jackson does in his book,
then there is an additional reason for needing to take a position about
the rules which we have up to now merely described "from the internal
point of view".
Fortunately, this is what this book keeps doing, even if parts of its
theoretical assumptions imply that this is impossible. The same difficulty
affects, in my opinion, the work of the most famous exponent of legal realism
and fact-scepticism in law, Jerome Frank, whose approach to facts Professor
Jackson rightly recognizes as similar to his own (p.377 n.37). In Jackson's
previous book, Law, Fact and Narrative Coherence (Deborah Charles Publications:
1988), such general questions are more amply treated. There, Jackson (rightly)
rejects the charge of being on the side of legal positivism in the great
divide between legal positivism and legal realism. I think that he is right;
his theories belong to legal realism. But he does not actually deploy in
his studies of law all the fact-scepticism which should follow from his
professed assumptions. This allows him to examine minutely the inner workings
of the language of law, to evaluate its internal coherence, to suggest improvements,
as he does in Making sense in Law. Fortunately, as all good legal realists,
Professor Jackson is a bad legal realist.
Notes:
- This definition comes from R. Harré and P.F. Secord, The Explanation
of Social Behaviour (Oxford: Blackwell, 1972), which in my opinion is the
clearest formulation of the assumptions of this modern trend.
- That of someone who approaches human actions from an entirely detached
and external point of view, just as if they were the actions of insects.
- For an example of a narrative theory "anchored" to fa