The Semiotics of Law in Legal Education PDF

The Semiotics of Law in Legal Education
Jan M. Broekman • Francis J. Mootz III

Editors
The Semiotics of Law

in Legal Education
Editors
Jan M. Broekman Francis J. Mootz III
Dickinson School of Law University of Nevada
Penn State University South Maryland Parkway, 89154-1003
W. South Street 333 Las Vegas 4505, NV 89154–9900
Carlisle, PA 17013 USA
USA Jay.Mootz@unlv.edu
jmb56@dsl.psu.edu
ISBN 978-94-007-1340-6 e-ISBN 978-94-007-1341-3

DOI 10.1007/978-94-007-1341-3
Springer Dordrecht Heidelberg London New York
Library of Congress Control Number: 2011931285
© Springer Science+Business Media B.V. 2011

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose
of being entered and executed on a computer system, for exclusive use by the purchaser of the work.
Cover design: eStudio Calamar S.L.
Printed on acid-free paper
Springer is part of Springer Science+Business Media (www.springer.com)

Preface—Semiotics in the Seminar
This book on semiotics of law in legal education is not a theoretical essay about
semiotics or pedagogy. Rather, this is a study of the educational experiences in a
seminar course, including reflections on the issues involved and fragmentary results
rather than presenting a comprehensive theory. The subject of legal semiotics—the
scientific approach that regards law as a system of signs and meanings—is not a topic
in the programs of US or EU Law Schools, although signs and meanings are at home
in the context of laws of different national, political and cultural character. The book
introduces education in legal semiotics as it evolves within a program of the Dickinson
School of Law, Penn State University. That University harbored extensive legal
semiotic research by Roberta Kevelson, then Distinguished Professor of Philosophy
at its Berks campus in the last decades of the twentieth century. The actual Seminar
is named in her honor. Teachers, collegially interested scholars and students
contributed texts that are written to deepen the insight of lawyers and laymen alike.
All of the participants in the seminar experienced the power of semiotic analyses and
the need to become aware of law’s limitless potency to create meanings.
Introduction
The semiotic awareness cultivated by the seminar could inspire other law school
programs on both sides of the Atlantic in the Civil as well as the Common Law legal
system. Thus, the history and structure of the Seminar and its Round Tables are the
basic themes for this book. Part I considers the relationship between legal semiotics
and a truth concept: truth as a matter of Law’s grounding, as a matter of face-to-face
interrelations and finally as a matter of new insights and discoveries in Peirce’s
semiotic philosophy. Historical theses presented during the Round Tables are
included in Part II—on History, Law and Semiotics. These contributions raise a
fascinating semiotic question in historical context: what does it mean for the concept
of law when it becomes the subject of teaching? In other words, what is the essence
of teaching law, and how was that subject developed during first lessons in law?
v
vi Preface—Semiotics in the Seminar
The early history of legal education in the United States—politically loaded as that
activity was—evolved in 1790, when courses on law were for the first time taught
by James Wilson at the University of Pennsylvania, and by St. George Tucker at the
College of William and Mary in Virginia. The latter offered a course on law between
1790 and 1803, the gist of which he published in 1803 as appendices to Sir William
Blackstone’s Commentaries on the Laws of England. Today’s program of the
Dickinson School of Law, which includes the Kevelson Seminar, looks back at The
Honorable John Reed’s first Law Lectures in Pennsylvania 1834. “Why do we teach
law, and what does it mean to teach law?” remain challenging questions since those
years.
There is a natural link between reflections on the origin of legal education and
the recent globalization tendencies as well as the development of legal theory, the
subject of Part III. Trial practices in the Common Law are analyzed as well as the
idea of legal semiotics in the context of contemporary legal theory. These essays
engage in comparative semiotic analysis as well as theoretical issues. Part IV on
“Gender and Family” is entirely authored by Seminar students. It develops the
insight of Claude Lévi-Strauss that gender and family structures were essential in a
structuralist analysis of social relations. He suggested that not only the material
aspects of the issue (how kin people appreciate each other) but also the ‘mathematical’
(read: structural) aspects are of interest. This insight inspired student reactions
in the Seminar sessions. They tend to appreciate human relations in terms of signs,
symbols and meanings as a foundation for legal regulations that reflect patterns
and structures of social, in particular relational, questions. The fifth and final part
(Part V), also entirely written by students, shows in the example of trademarks how
semiotic approaches can enrich economic and business legal issues, whilst deepen-
ing the experience of how lawyers are making meaning.
Each chapter thus demonstrates the power of semiotics as a valuable approach to
law and legal issues. This book, a first description of the evolving importance of
semiotics of law, is a completion of the many fragmentary studies in journals on
semiotics, in particular the International Journal for the Semiotics of Law. It honors
the many individual contributions to the field by scholars in universities in the US
and the EU who labor without an institutional foundation in a formal legal education
program. This is in contrast to the Roberta Kevelson Seminar, which is an institution-
alized education program initiated under the patronage of Penn State’s Dickinson
School of Law and the visionary decision of its Dean, Philip McConnaughay, in
January 2008 to offer a regular, three credit Seminar on Law and Semiotics at the
initiative and directed by Distinguished Visiting Professor of Law Jan M. Broekman.
Students and Faculty participate in the two locations of the Dickinson School, in
Carlisle and State College, Pennsylvania, USA. Earlier publications resulting from
the Seminar are in the 2009 and 2010 Special Issues of the International Journal for
the Semiotics of Law, with Professors Jan M. Broekman and William A. Pencak,
(Penn State University) as guest editors.
There exist scores of definitions of a “sign”—the core issue of semiotics, which is
commonly understood as the scientific enterprise to study and understand signs and
meanings in general. The philosopher Charles Sanders Peirce wrote extensively during
Preface—Semiotics in the Seminar vii
the final years of the nineteenth and at the beginning of the twentieth century about this
subject, inspiring philosophers, logicians, psychologists and literary scientists, among
others. It is only in our own time, however, that law and legal science have confronted
the concept of a “sign”, or semiotics as a discourse on signs. Does the idea of a “sign”
play another role in the mind of a lawyer than, for instance, as a “symbol”? Or are the
two identical, and what does that mean in relation to the more general question about
the use of expressions of a natural language for purposes of legal nature?
It seems evident that lawyers use language to perform their tasks, and their per-
formance seems to be determined by the freedoms and limitations of a natural lan-
guage. How lawyers give issues names is of importance to all of us, but their
name-giving is seldom completely clear for any of us, neither for lawyers them-
selves nor for us citizens. It requires analyses of considerable depth to understand
the expressiveness of these names and how only they themselves can “say for law”,
or urge such a saying correctly and effectively in the context of a natural language
that belongs to all of us. Or do they, perhaps unknowingly, go beyond the boundar-
ies of a natural language?
This question concerns more than components of daily experience alone. The
suggestion that a lawyer’s activity is exclusively verbal but possibly beyond the
reach of a natural language does not lead to jurisprudential debates or matters of
interpretation, precedence or legislative authority but rather to other dimensions of
the characteristics of a lawyer. Take the example of a lawyer pleading before the
Court to “say for law” what he just came to formulate. He or she, functioning as a
lawyer, initiates that saying—but that is not all. The members of the Court must
follow her proposal very much like speakers who belong to a community must
always follow in order to reach a level of understanding and communication. At this
point, the situation is not different from any natural language and its manifold
speech situations. We must press to greater depth to understand what is special in
the lawyer’s use of language.
Try to answer the question why the lawyer needs the Court to actually “say for
law” while (a) he or she is a lawyer like all others, and (b) the suggestion to say for
law has apparently to be laid in the hands of others, often including non-lawyers.
This leads to a remarkable differentiation in sign-evaluating and consequently in
sign-using behavior, which could be specific for legal discourse and the social orga-
nization of the law. In other words, lawyers speak as if they use a natural language,
but their use of words and expressions suggests at least a parallel realm of meaning
that is often called “institutional”, but is richer in meaning and effect. It is such an
immanent parallel of natural and artificial language elements that was explored
already during the first decades of the twentieth century by philosophers of lan-
guage such as Russell, Wittgenstein, or others focusing on meaning in particular
such as Morris or Ogden and Richards. Here one could conclude that semiotics pos-
sesses an important key for lawyers, legal practice, and especially legal theory.
Semiotics of law focuses on the foundational dimensions of lawyers’ activity, which
make the management of meanings their first and most important task in society. In
this regard, this book puts forward the first intuitions that legal discourse and its
practices would profit from semiotic analyses in a particularly socialized manner.
viii Preface—Semiotics in the Seminar
That social dimension not only determines the important profile of legal activity
in general, but of legal education in particular. To study law is not a solitary activity;
it requires training and extreme skill-formation in complex social behaviors. To be
involved in legal training is a matter of socializing at more than one level. As a con-
sequence, legal semiotics does not excel in classical ex-cathedra teaching but in the
wonderful mixture of information and discussion taking place in seminars. When
this book reports on the experiences of legal education in a seminar, it reports about
the heart of the matter called law. It is a remarkable fact that the average reader of
legal literature is not expecting texts with legal education as their source. She is
rather used to reading (that is, interpreting) other components of law and legal dis-
course in our society, such as court opinions that reveal judgments, explain doc-
trines, and serve as precedents, and also legislative activities, politics, international
treaties, and so on. The thesis of this book is, however, that texts based on educa-
tional aspects deserve equivalent attention as issues of traditional jurisprudence. It
is a virtue of semiotics to show the importance and fascination of experiences and
thought patterns emerging from legal training. The latter focuses on meaning and
sign behaviors that direct the minds of lawyers. How can one become a reliable and
successful lawyer without insight and training in that field?
This book is a first effort to document and analyze a specific field of legal studies
with at least two important goals in mind. On the one hand, there is the hitherto
neglected issue of legal education as such, which directly influences the activities of
lawyers as future actors as well as mediators of past experiences. That source is rich
and important in society, but remains underexplored and little appreciated when
compared with the bulk of jurisprudential literature. On the other hand, this focus on
education sheds a different light on one of law’s most challenging features, which is
hidden in the fact that lawyers are trained to become meaning-makers. Meaning as
its central issue includes social sensitivity, since the understanding and management
of meaning is, like law itself, never a sole individual’s task!
These two perspectives lead arguably to the quest for further documentation and
analysis whereby teachers and students fulfill firsthand roles—even more than judges
and legislators do! There are in legal education several issues that are a sign of
important social skills with direct importance for mastering the profession, such as
for example legal writing, legal speech formation, and advocacy in general or more
simple conversation techniques with clients. Those explorations excel in a different
teacher-student relationship, as they are based on two sets of life-experiences, social
skills and intelligence, each one characteristic for a participant in the process, student
and teacher alike. A deeper understanding of the importance of the issue of legal
education is at least in one important aspect featuring law’s efficacy: the strong
demand that law has to fit. Social dimensions meet legal knowledge and skills in that
requirement, and this is the point at which the educational form of a seminar comes
to the fore. In seminar sessions, not unlike sessions pertaining to legal writing or
speech formation in advocacy, meaning makers can master the various semiotic
theories, they can furthermore explore their own life experiences as intertwined with
a deepened knowledge of signs, symbols, and other components of meaning and
they can easily look back at the specifically legal knowledge they acquired hitherto.
Preface—Semiotics in the Seminar ix
This book shows results and reflections upon both, thus combining a growing
perfection of legal knowledge with a deeper insight into the semiotic processes
within which each lawyer seems involved. From the first attempts to teach legal
semiotics, Roberta Kevelson recognized that the most apt forms would be the semi-
nar and the Round Table. For this reason, the Penn State Law “Seminar on Law and
Semiotics” was named after her. These roots of legal semiotic activities are clearly
evident in these Round Tables.
The Kevelson Round Tables
As she was obtaining her Ph.D. in Semiotics in 1978—an interdisciplinary program

of her own construction—at Brown University, Roberta Kevelson (1931–1998)
seized on a suggestion of Thomas Sebeok (1921–2001), Director of the Center for
Semiotic Research at Indiana University, that the law would be an ideal field for
semiotic inquiry. Laws are symbols of social and political goals and realities, yet
laws and their interpretation in a judicial system take on a life of their own, becom-
ing symbols of nationhood, justice, corruption, etc. Kevelson’s interest in law coin-
cided with her devotion to the philosophy of Charles Sanders Peirce (1839–1914).
She viewed him as a philosopher of radical freedom, the interpreter of a universe of
chance—unpredictable, shaped by and not merely shaping living creatures with free
wills of their own. As a housewife who attended college and then graduate school in
her thirties and forties, who was not only a scholar, but also a pioneer of a new field
of scholarship, this open universe made perfect sense.
The institutional existence of legal semiotics began in 1984 when Kevelson, as
Distinguished Professor of Philosophy, founded the Center for the Semiotics of
Law, Government, and Economics at the Berks Campus of the Pennsylvania State
University. Three years later, she instituted annual Round Tables for Law and
Semiotics, whose proceedings were published in book form first by Plenum
Publishing (2 years) and Peter Lang Publishing (subsequently), which she directed
until her death. The Center also sponsored the publication of monographs with Peter
Lang. Colleagues continued these meetings for 3 more years before the Round Table
joined forces with the International Association for Law and Semiotics. Kevelson
had been one of its five founders—Bernard Jackson of England, Eric Landowski of
France, Domenico Carzo of Italy, and Roberto Carrion-Wam of Venezuela were the
others. The International group was also founded in 1987, held annual meetings and
published a journal, the International Journal for the Semiotics of Law, now in its
24th year and edited by Professor Anne Wagner of the Univérsité du Littoral Côte
d’Opale in Boulogne-sur-Mer, France.
Related to the International Association are two monographic series in legal
semiotics: Deborah Charles Publications, under the direction of Professor B. S.
Jackson, now at the University of Liverpool, and Ashgate Publishers’ series linked
to the papers and topics presented at the annual meetings of what is now called the
International Round Table for Law and Semiotics. Beginning in Spring Semester 2008,
x Preface—Semiotics in the Seminar
Professor Jan M. Broekman reinstituted a second series of Round Tables in Carlisle,

Pennsylvania, as a semester-ending feature of his Seminar course on Legal Semiotics
at the Dickinson Law School of Penn State University. Papers of those years were
published in 2009 and 2010 as Special Issues of the International Journal of the
Semiotics of Law.
This rather complicated institutional history reflects the international enthusiasm
for legal semiotics among its practitioners, yet also the fact that while many lawyers
and legal scholars unknowingly are thinking and acting semiotically, the confer-
ences and publications of the legal semiotic community exist at the margins of law
schools and the publishing industry. For instance, the course in Penn State Law is
currently the only course on legal semiotics offered in the United States in the regu-
lar program of a law school. Outside of Indiana University and the University of
Toronto, it is hard to think of a research center in North America funded by a uni-
versity devoted to semiotics. Semiotics is widely misunderstood, in part because
many of its practitioners use complicated jargon only comprehensible to initiates
(if then), and because it is widely confused with deconstruction, which is (erroneously)
believed to be the philosophical theory that we can know nothing of reality but only
discuss the way we perceive and interpret it. Also, there are those who do semiotic
theory, that is, study the world to deepen the study of semiotics, and those who use
semiotics (such as lawyers and marketing executives) to do their own jobs better.
The informal structure and diverse content of the conferences Kevelson instituted
are symbolized by the title she gave them: ‘The Round Table.’ She was a fervent
egalitarian: a round table meant no hierarchy among senior and junior scholars,
although her own insights and contributions made her very much the first among
equals. Everyone had the same amount of time—usually a generous 45 min—and no
one was ever turned down who wanted to present a paper. Graduate students and
professional lawyers had the same opportunity to speak as the most prestigious legal
scholars. Each speaker could divide the 45 min into lecture/discussion as she chose.
People from disciplines such as history, art, anthropology, philosophy, economics,
political science, theater, and literature were invited to lend their insights as well.
People who knew little of semiotics but were curious were invited; Kevelson
instructed them how a semiotic approach could add much to their work. Participants
from India, Bulgaria, Great Britain, Israel, China, Canada, and France among other
nations attended. Sessions usually began early (8 or 8:30 a.m.) and ended late (some-
times as late as 11 p.m.) and stretched, if necessary, from Friday to Sunday to accom-
modate everyone. This same all-inclusive approach applied to the annual Round
Table publications: everyone was urged to include their paper, revise based on the
conference, with length restrictions reluctantly imposed in the interests of cost.
A sampling of the scholars who attended the Round Tables must necessarily
exclude many people. We only mention here those who are most widely known:
Bernard Jackson, whose work on ancient Jewish law and history used a Greimasian
perspective that clashed at times with Kevelson’s Peircean orientation, although in
general the presence of the two approaches only added to the insights; John
Brigham, who later took over the Round Tables at the University of Massachusetts-
Amherst, who not only brought many of his students but offered his stimulating
Preface—Semiotics in the Seminar xi
research on the significance of the architecture and layout of courthouses; Denis

Brion of Washington and Lee Law School, who usually presented legal cases that
showed how individuals could both be victimized by the law and yet use it to
empower them; Peter Goodrich, now of Cardozo Law School, and his fascinating
insights into the courts of love in medieval France; Robin Paul Malloy of Syracuse
University, who looked at property and the economy and now directs a seminar on
the Semiotics of Property; Joel Levin, a practicing attorney from Cleveland, Ohio,
whose sharp but never unpleasant critiques caused many of us to revise our work;
Virginia Black of Pace University, who as editor of Vera Lex and President of the
Natural Law Society initiated a dialogue between semiotics and natural law; Jack
Rooney of Cooley Law School, who was never afraid to take unpopular positions
(battered husbands as opposed to battered wives) and introduced many of us to
Polish semiotics; Paul Ryan, of the New School in New York, a video artist who
thought deeply about legal issues and preserving the environment; Bruce Rockwood
of Bloomsburg University, important facilitator in the law and literature move-
ment; Robert Benson of Loyola Marymount, William Charron of St. Louis
University, and two independent scholars, the late Gordon Whitney and Jay Knaack,
all added much to these intense yet cordial meetings. Bill Pencak attended annu-
ally and wrote on historical topics.
The Roberta Kevelson Seminar At Penn State Law
So the Round Table now lives on in two guises: an extensive organization that links
scholars from all over the world, and an intensive study of semiotics at Penn State’s
law school. Kevelson taught us that any worthwhile idea evolves, changes, and that
efforts to fix things in stone not only stultify but are impossible. She would be
greatly pleased that, as Senator Edward Kennedy once said about American democ-
racy: ‘The work goes on, the cause endures, the hope still lives and the dream shall
never die.’ Insofar as the Kevelson Seminar that unfolds at Penn State Law is con-
cerned, three important components should be highlighted: (a) the didactic, (b) the
text-directed and (c) the Seminar’s Round Table function. A few lines describe each
of those components, which taken together play a prominent role in the more gen-
eral perspective of teaching law.
(a) The didactics of legal semiotics comprises, as was already suggested, much
more than merely informative ex cathedra teaching. There are of course moments
in the sessions when the professor presents information, but apart from that,
there is an ample discussion of background ideas on signs, signification, mean-
ing or naming as well as the core literature from standard publications and
recent journal articles. Every student has, after all, his or her own experiences
with sign interpretation or name giving in daily life! All those issues embrace
considerations of a philosophical nature without ever identifying legal semiot-
ics with the philosophy of law. One should not forget that there is no semiotics
without philosophy although both show their independence.
xii Preface—Semiotics in the Seminar
It is thus important that those didactic provisions excel in various confronta-

tions with legal knowledge and experiences of the participating students. The
students now see the latter in another light. Legal semiotics is never treated as if
the discipline concerns knowledge and insights ab ovo—on the contrary: there
always is a two-way move between legal and semiotic knowledge/practices.
Growing awareness about differences between Civil Law and Common Law
and their consequences—an awareness, which is often not provoked in usual
Law School focus on laws and legal materials of a discipline or a State—is a
new experience. The world map of legal systems is continuously at the back-
ground of the seminar, whereas the diversity of legal systems around the globe
fortifies the unity of semiotic approaches towards law.
(b) A special emphasis on texts works in the Seminar in two directions. One is
practical insofar as the series of seminar sessions are from the beginning col-
ored by the challenge of competition: the two best final student papers will be
named “prize winning” and published. The other is theoretical and shows the
importance of texts in the different legal systems as well as the proximity of any
study of signs and meanings in texts as an important issue to study and experi-
ence. The Civil Law tradition—which is more text-related than the Common
Law culture—is important to the seminar’s legal-theoretical context. Text and
speech are differently distributed and valued in both systems and as a conse-
quence offer different semiotic views: for instance there is no legal activity in
Civil Law countries without complete sets of written documents.
The idea of a competition unfolds in the middle of the semester with an open
and general discussion of paper themes for all participants, sustained by a list of
proposals and related literature. The discussion serves two purposes: students
can learn from each other’s ideas, and know how their colleagues’ interest in a
specific paper subject directs their participation, their questions, and contribu-
tions. A renewal of those exchanges is in each session open to arrangement,
including the reading of a draft page conceived by the student, information shar-
ing of literature, and the like. As a consequence, there is never a fixed session
program, although a predetermined list of issues is known by every participant
and has to be worked out accordingly. In the third month of the seminar, stu-
dents participate in a Round Table of which their own papers form a consider-
able part. Contributors to the Round Table are aware that students can raise
questions related to their paper-writing activities during the conferences and in
private, so that this full-day Round Table provides general information and new
perspectives on legal semiotics as well as individual feedback from others than
the teaching staff. Approximately 2 weeks before the final session, each student
must provide an electronic draft copy of his or her text. After receiving and
discussing teacher commentaries, students are obliged to decide about the final
form and content of their seminar paper on their own. The prize-winning essay
titles/authors are noticed after all papers are graded.
This concentration on texts led to the publication of two papers in the 2009
and 2010 International Journal for the Semiotics of Law Special Issues, reprinted
in this book. They are published in this book together with two papers from the
Preface—Semiotics in the Seminar xiii
Spring 2010 seminar and a third student paper of that semester. So the book
comprises in total nine student papers, among which three from the 2010
session, two from earlier prize winning students also participating in the 2010
Round Table, and four reprints from the 2009 and 2010 IJSL Special Issues.
(c) The spirit of the Round Tables, which highlights the seminar activities, is in the
context of a Law School what Kevelson wanted to realize during international
gatherings. These activities are a happy mixture of information and reflection,
of speech and writing, of reconsideration of past experiences and adaptation of
important new data—in short: of semiotics, philosophy, and law. The teaching
and studying goes therefore hand in hand with discussion, guidance, mutual
opinion building and preparation for the great task at hand: to become a know
ledgeable lawyer in a context that unfolds beyond the strict teacher-student
relationships. The day of the Seminar’s Round Table functions in that spirit.
The mandatory part is in the hands of students and invited speakers alike,
which helps to augment the scale of opinions, provides more information than
any teacher alone can do, stimulates independent participation, and invites all
the participants to belong to a community. The Round Table contributes in a
novel way to the teaching of law, which is considered the prime task of any
Law School.
The last remark raises the central, and fascinating, issue. A seminar on law and
semiotics is essential for teaching law. But this insight not only fascinates, it also
surprises. The acknowledgment to have semiotics as a regular component in the
curriculum to teach law is not generally accepted. Law professors generally have no
interest in, or knowledge of, semiotics. Consequently, they do not incorporate semi-
otic analysis in their teaching because “they themselves never took the trouble to
understand anything about that issue and are yet good lawyers and successful in
making their living”. How important is that argument? The question is about an
attitude, a question that is respectable but not fundamental. If legal semiotics is a
component of teaching law, the basic question “what is teaching law?” is at stake.
The seminar makes clear that once the law becomes subject of teaching, it starts to
differ considerably from law as a social practice.
An important issue in this discussion is the ‘usefulness’ of legal semiotics.
Students took Barton Beebe’s ‘Semiotic Analysis of Trademark Law’ as a lesson in
legal semiotics. His presentation of semiotics, semiotic structuring of signs, and
semiotic theories were immediately applied to how the Trademark was object of a
parallel structure. And they learned in the light of those connections to appreciate
Roberta Kevelson’s article on ‘Semiotics and Methods of Legal Inquiry’—a text
they would never had read on their own initiative. Their inherent pragmatism seems
advantageous in this regard. Notice, how they focus the interpretation of legal prac-
tice by means of informing about attitudes and styles of reading that are semiotic
and therefore new to them. However, the question remains, whether this is the ulti-
mate purpose of a legal semiotics Seminar. Should one indeed focus on interpreting
legal practice, and should semiotics only be an appropriate means to that end?
In particular US law students would like to acquire a broader view on the deep
structures of a legal case, a view mostly provided by courses in general jurisprudence.
xiv Preface—Semiotics in the Seminar
They should also acquire an insight into the coherence of specific systems of law and
their characteristic speech acts. The omnipresent codes of norms that require legal
translations is relevant, because it looks as if the gaps between law and norm can be
bridged by semiotic operations. Finally, ensembles of dynamic directives within
nationally defined systems, often simply viewed in US lawyer’s eyes as ‘non-law’, can
be re-interpreted by means of semiotic analysis, such as the semiotic square of
Greimas. All this may engender a wider view on pragmatism in general and the prag-
matic attitude of the Law School in particular. In his final and additional Harvard
lecture on May 14, 1903, Peirce already offers a deeper view on Pragmatism than
before. He explains in that additional lecture how ‘any flight of imagination pertaining
to possible practical effects’ will be allowed, if ‘conceptions’ pertain to ‘conceivable
practical effects’. This deepens and completes the maxim of Pragmatism. The reason-
ing involved enriches the semiotic project considerably. But is that all there is to say
about the pragmatic attitude of a Law School’s course on Legal Semiotics?
The question leads back to the consideration whether teaching law can be under-
stood within the confines of pragmatism. There are competing ideas in ‘teaching
law’. First, the law as a concept comes out of the shadows of evident practices or
applications and becomes an issue of foundational consideration when the concept
is considered in the light of semiotics. The change this provokes is an attitude change
with important epistemological consequences in semiotic perspective. In other
words: law students confronted with legal semiotics know more about law than
those who did not experience this new view. Their enhanced knowledge and aware-
ness is beyond determinations of pragmatism. Second, ‘law’ is no longer considered
as a unique social unity, a totality of components and their management, a psychical
entity within which one can speak, debate, write, judge, and settle social relations.
In other words, one loses the capacity to say how “this or that is not good for the
law” because law as a system of signs and meanings incorporates another level of
consideration than this pragmatic attitude. It is not a thing (philosophical Latin: res),
nor any issue to be valued beyond human activity and responsibility. Third, teaching
law is an activity that changes its institutional aspects. To enter the architectonic of
law requires forms of participation, which have to be taught. After years of driving
the vehicle, students are challenged to open the hood and study what was unques-
tioned before. No wonder, that students of semiotics consider the Critical Legal
Studies movement from the 1960s and 1970s of the last century a prelude to their
actual contributions, for which this book offers texts from students and teachers as
an example. The change initiated by CLS, one of the earlier approaches to meanings
and signs in US legal literature, is in a renewed understanding that a lawyer’s
management of meaning transcends all actual political norms and values. This is a
revitalizing insight for all aspects of teaching law, and for making law fit, as this
publication shows.
Jan M. Broekman
Francis J. Mootz III
William A. Pencak
Contents
Part I Philosophical Dimensions

Introduction
Jan M. Broekman
1 “Die Sache”: The Foundationless Ground of Legal Meaning.............. 5

2 Faces Face to Face.................................................................................... 21
Jan M. Broekman
3 Tarski, Peirce and Truth-Correspondences in Law:
Can Semiotic Truth-Analysis Adequately Describe
Legal Discourse?...................................................................................... 57
Paul Van Fleet
Part II History, Law and Semiotics

Introduction
Jan M. Broekman
4 History and Semiotics: Preliminary Thoughts...................................... 77

William A. Pencak
5 Teaching Law and Semiotic Sensitivity In the Life
and Career of John Reed, Founder of the Dickinson
School of Law........................................................................................... 81
William E. Butler
6 Initiating the Two Legal Cultures of the Early
United States: St. George Tucker vs. James Wilson............................. 95
William A. Pencak
xv
xvi Contents
Part III Semiotics and the Legal System

Introduction
Jan M. Broekman
7 Common Law Lawyers Should Mind Their Trial

Practices: Understanding, Identifying, and Correcting
a Semiotic Imbalance............................................................................... 115
Edward J. Cyran
8 Semiotics in Legal Theory Design.......................................................... 129
Jeffrey A. Ellsworth
Part IV Gender and Family

Introduction
9 Semiotics of Parenthood in Legal Perspective:

Using Semiotic Tools to Deconstruct Legal Determinations
of Who Holds Parenthood Obligations and Privileges......................... 157
Michelle L. Wirth
10 Michael H. v. Gerald D.: A Case Study of Political
Ideology Disguised in Legal Thought..................................................... 183
Part V Economy, Business

Introduction
11 Trademarks: A Social Perspective.......................................................... 205

Elizabeth Karnezos
12 Trademarks as a System of Signs: A Semiotician’s
Look at Trademark Law......................................................................... 221
Meghann L. Garrett
13 The Semiotics of ‘Public Use’: “Use the Purpose
by Which All May Benefit”..................................................................... 237
Nathan S. Harvill
About the Authors............................................................................................ 249
Index.................................................................................................................. 253
Part I
Philosophical Dimensions
Introduction
Jan M. Broekman
There is hardly any discussion about the fact that semiotics has its roots in philosophy.
This omission would hide the fact that texts from this seminar refer to philosophical
issues. The theme is, however, so complex, that even international teamwork and
encyclopedic dimensions would not cover an appropriate presentation of the philo-
sophical roots of semiotics in a sufficient manner. Matters become even more
complicated by looking not only to philosophy and semiotics, but also to law and legal
discourse and their close and defining relations with the process of semiotics. The
philosophy of law has a rich and global tradition, which has evolved in Western
cultures over many centuries. However, the philosophical foundations of semiotics in
law are only now in the first phase of investigation by lawyers and legal scholars.
As a result, it is impossible to appropriately represent the philosophical dimensions in
the context of this book.
Moreover, it is crucial that we not forget that philosophy is not the only discipline
implicated by semiotics. The disciplines and scientific approaches emerging in
sociology, psychology, linguistics, communication studies, electronic transmis-
sion—the sending of information from one network-connected computer to
another—and electronic data interchange—the use of uniform electronic network
protocols (formats) to transfer information between organizations—as well as neu-
rosciences and related disciplines, belong to the rich and overwhelming fields of
interest for legal semiotic research and scholarship.
To render this chapter manageable, it will focus on one particular theme that
plays an important role in grounding the relationship between law and semiotics—
a theme that emerged in the seminar sessions in the form of a remarkable mix of
communication and truth-value studies. The general question about meaning as an
issue of law and legal judgment relates to the philosophical issue of ground,
J.M. Broekman ()

Dickinson School of Law, Penn State University, W. South Street 333,
17013 Carlisle, PA, USA
e-mail: jmb56@dsl.psu.edu
Part I Philosophical Dimensions 3
grounding and foundational understanding, as Mootz first explains in this chapter.

It is remarkable that philosophy has an old concept that is important for modern
understanding: all considerations find their center in the German expression “die
Sache”. The latter leads to questions of a hermeneutical nature: an idea that is fea-
tured in theology, literature and law alike and which Mootz locates in the philoso-
phy of Hans-Georg Gadamer, whose major work of interest in this context is on
Truth and also on Method. Interpretation seems the major dynamics of understand-
ing in legal practice as well as in related cultures of literature. That experience
widens the semiotic vision, which clarifies how legal practice is a narrative endeavor
founded on hermeneutic and rhetorical innovation within legal discourse as a com-
plex economy of signs. Hence Mootz:
It is not the case that one person knows more than the other, but that both persons gain
understanding when they attend to die Sache by engaging in a genuine dialogue with each
other, in which they are oriented toward the (dynamic, and ever-evolving) truth of the
subject matter at hand.
How human faces function semiotically in wider legal contexts is explained in

Broekman’s expanded reflections on his earlier texts about Faces. Human commu-
nication has faces as signs, as meanings embedded as it were in life itself. Faces are
most important artifices in a communicative context, and that fact is the basis for
legal and semiotic dimensions of truth in social life. What law does and how law
appreciates human faces relates to the constructive nature of the truth concept in the
innermost center of legal thought formation. It is important to notice in this context
how the artifice-character plays a key role in the semiotic and legal need for name
giving. But beyond that surface-structure in legal discourse, dimensions of a herme-
neutical nature (as unfolded in Mootz’s text) appear to provoke as it were two names
for faces before any name can be given: the ‘other’ and: the ‘Other’. That is exem-
plarily told in Torah narrations. They ask: what do such named faces mean, how do
they function, what understanding of a psychological (a ‘self’) or a legal (a ‘subject’)
reference do they initiate? Meaning making seems a form of self-realization in
which the face plays a multiform role, and thus fulfills and essential function in
human communication, based on its reality named ‘truth’.
Here is an important aspect of Peirce’s philosophical view on life, which is the
crux of his philosophy: there is no life that is not embedded in what we notice as
being potentially significant. So we are a being as a possible sign and understand
ourselves as living in a field of transformational energy. If we understand that signs
of law are everywhere in social life, we must accept how those signs are not there
by nature but are created by lawyers driven by their encompassing energy of
transformation.
All this is grounded in dimensions of logical nature pertaining to truth func-
tions. The third contribution in this chapter on Tarski, Peirce and Truth-
correspondence in Law, conceived by a student participant in the 2010 Law and
Semiotics Seminar, completes the preceding paragraphs. The point of departure
here is that the “truth” of legal discourse is founded primarily on the presupposi-
tions of analytic-legal philosophy, the basic analytical-philosophical premise that
4 Part I Philosophical Dimensions
“propositions are true when they correspond to reality”. Tarski’s “Convention T”

theorem holds that a proposition is true if and only if that proposition can be proven
true within the language expressing it. This limits the scope of analysis to the point
where the sign-relations find themselves devoid of meaning except that which legal
discourse tolerates. “Truth” is constructed time and again with each case and each
legal finding, yet each finding leads no closer to any particular legal truth.
The author of this essay proposes a fascinating development of this idea whilst
referring to Peirce:
Charles Sanders Peirce provides a third factor to the truth-test that invites an analysis that is
best characterized as semiotic, or sign-related. Peirce allows that truth and falsity can both
describe a proposition, but he also allows for the possibility of the “unknown”. If a proposition
is “unknown,” then its truth-value cannot be determined, and as a result, the proposition’s
relation to other propositions is also unclear. This lack of clarity expands semiotic analysis,
where a single sign can evoke a myriad of convergent, divergent, or even unrelated
interpretations, providing a wellspring of meanings through which a signifier may
communicate experience. The introduction of uncertainty into truth-theory does not neces-
sarily create existential problems within general discourse. However, legal discourse seeks
to avoid this malleability at all costs, resulting in a self-referential system that taints general
discourse by imposing legal meanings as “truth”.
From here, the reflections on truth as a theme within the context of meaningful
communication unfold in a most original and relevant manner, which focuses the
strength and power of philosophic-semiotic considerations regarding the founda-
tions of law in a process of continuous renewal of understanding.
Chapter 1
“Die Sache”: The Foundationless Ground
of Legal Meaning
It is a familiar theme of contemporary legal education that lawyers must interpret

and create narratives in order to represent their clients. Clients do not approach their
lawyer with a legal problem; they approach the lawyer with a problem in their every-
day life that is articulated through narratives that are not exclusively, or perhaps not
at all, legal in nature. The lawyer then must find the legal narrative to adapt to the
problem, which really means to construct a narrative of law out of competing and
confused notions that form the resources of legal reasoning. There can be no deduc-
tion of a solution to a legal problem. Instead, legal actors work through a semiotic
discourse in a practical and creative engagement that shapes a reasonable solution
to the problem at hand. Seen in this way, legal practice is a narrative endeavor that
is founded on rhetorical innovation within a complex economy of signs.
Unfortunately, this insight about the work of lawyers as makers and managers of
meaning is all too often reduced to a simplistic picture in which the lawyer tells a
“story” in a crafty manner that is designed to trigger application of the proper
“objective” legal principles. Under this impoverished account, narratives are simply
appeals to the pathos of the client’s circumstances and do not impinge on the fixed
and objective character of the law. Law stands apart from the lawyer’s narrative as
an abiding conceptual reality to which she must connect her client’s story through
artful manipulation. In short, legal practice is the effort of the subject to narrate her
client’s case so as to bring it within the objective principles of law.
It is necessary to move beyond such a simplistic view of narratives in legal practice
by recognizing the semiotic character of law itself. A semiotic perspective makes
clear that narratives constitute legal principles no less than they present the client’s
story. Legal practice is the constant creation of legal discourse by means of signs
that exist in the form of precedents, principles, and policy prescriptions. But we
F.J. Mootz III (*)

University of Nevada, S. Maryland Pkwy, 89154-1003, Las Vegas 4505, NV, USA
e-mail: Jay.Mootz@unlv.edu
J.M. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, 5
DOI 10.1007/978-94-007-1341-3_1, © Springer Science+Business Media B.V. 2011
6 F.J. Mootz III
must remain vigilant at this point, and not fall victim again to a simplistic picture of
the semiotic insight in terms of a dyadic subject-object relation. It is a grave error to
understand legal semiotics in purely formal terms. Legal arguments are not empty
signs that lack intrinsic meaning and they can’t be deployed by a self-possessed
subject as if they are a tool, such as a hammer that can be wielded for good (to build
a house for shelter) or for bad (to strike someone else on the head).
Jack Balkin provides the canonical argument against this simultaneous formalist-
deconstructionist articulation of legal semiotics that attempts to distinguish the
semiotic form of legal discourse from the actual work of legal reasoning, but even
his argument lacks a sufficiently radical understanding of the ground of legal meaning.
In response to Jeremy Paul’s charge, that legal semiotics has no political valence,
because it merely charts the recurring forms of legal argument, Balkin insists that
legal semiotics goes beyond the ordinary lawyer’s tools. It systemizes and organizes the
process of discovery in legal analysis. The algebraist and the school child can both do sums,
but the former can explicate the more general principles which ensure the correctness of the
latter’s work, and may permit much more powerful insights. . . . The work of the legal
semiotician is indeed the work of the lawyer, but raised to a higher power of abstraction.
(Balkin 1991, pp. 1839–40)
Balkin is correct to accord greater significance to legal semiotics than merely the
“moves” in lawyering discourse, but he simply moves the analysis to a more abstract
plane rather than fully recognizing the grounding of legal meaning in semiotics.
We can approach the semiotics of legal meaning by accepting Balkin’s thesis and
then moving beyond it. Balkin writes:
The purpose of semiotic study is to understand the system of signs which creates meaning
within a culture. It is to understand the underlying structures that make meaning possible.
The legal semiotician seeks to identify what might be called the “grammar” of legal
discourse – the acceptable moves available in the language game of legal discourse. These
may occur at the level of permissible argument forms, modes of factual characterization,
categories of social perception, or in many other ways. The semiotician traces the way that
the system reproduces meaning, and if she has fully assimilated the post-structuralist critique,
she tries to see the gaps or uncertainties within the structure, the many different levels at
which rhetorical tropes can occur, and the many possible ways of re-describing them.
Yet, the fact that legal discourse is rhetorizable says nothing about its lack of authenticity.
To the contrary, I would insist that the only type of discourse that is truly authentic is that
which is permissible within our existing language games, and is thus always rhetorizable.
Authenticity is not freedom from the linguistic or cultural sources of meaning. Rather, it is
precisely the opposite phenomenon – it comes from living within and through the structures
of meaning that constitute a culture. At the same time, those structures of meaning can be
understood as structures, and hence we can see to some degree how we live and think through
them. Thus, semiotics does not show that the forms of discourse that we live within and
through are inauthentic. Rather, the study of semiotics makes us somewhat more self-conscious
of the rules of our own language games of moral, legal, and political discourse, even as it
shows the interpermeability of these discourses with each other. (Balkin 1991, p. 1845)
Balkin’s suggestion that semiotic analysis occurs at a greater abstraction than

lawyering, thereby providing perspective on the “structures” of argumentation is
hardly a strong vindication of legal discourse against Paul’s claim that legal semiotics
promotes a relativistic ennui. In this chapter I intend to augment Balkin’s argument
1 “Die Sache”: The Foundationless Ground of Legal Meaning 7
by uncovering in greater detail the means by which substantive legal argumentation

(which can never be fully divorced from moral, ethical, and political argumentation)
is possible, and how we can avoid the instrumentalist account of semiotics as sophis-
ticated tool wielding.
To fully overcome resistance to law’s fundamentally semiotic nature, I turn to
Hans-Georg Gadamer’s philosophical hermeneutics and his recuperation of the
philosophical term die Sache. Die Sache is a complex term with multiple valences.
I will concentrate on die Sache in regard to the “grounding” of discourse within legal
practice, which is only one manifold of the term as it is used in technical disciplin-
ary discourses of law, philosophy and ethics. For example, Gadamer’s hermeneuti-
cal ethics is premised on the assumption that the other’s horizon of pre-understanding
may provide a different angle on the subject matter under discussion. It is by con-
fronting a different approach to the subject matter that leads to one’s own greater
understanding of that subject. Therefore, Gadamer concludes, hermeneutical
responsibility is not owed to the other person as a supposed separate subjectivity.
Instead, we owe responsibility to the subject matter about which the dialogue part-
ners converse: die Sache. It is not the case that one person knows more than the
other, but that both persons gain understanding when they attend to die Sache by
engaging in a genuine dialogue with each other, in which they are oriented toward
the (dynamic, and ever-evolving) truth of the subject matter at hand. Gadamer’s
ethical deployment of die Sache is just one sense in which he invokes the concept,
and it provides one of several ways in which we can employ the concept to gain
insight into legal practice.
The grounding function of die Sache that I propose as a central issue in the study
of law and legal education embraces broad philosophical themes as well. First, die
Sache is Gegenstand, something that stands out and serves the function of the spe-
cific object of discourse. If law, legal discourse and legal procedure cannot identify
the Gegenstand, no legal resolution of the conflict is possible because it simply is not
a legal conflict. Die Sache sustains the referential activity that makes it possible for
us to interpret, understand and speak in a social milieu. Gadamer follows Heidegger’s
analysis of Gegenstand by regarding die Sache as something that stands in opposi-
tion to the subject, exercising a magnetic effect that draws the subject outside of her
presumed insularity and making referential activity possible. This process of refer-
ence initiated by die Sache is the foundational semiotic function that grounds mean-
ing, although we must be careful to define this “grounding” at the outset, to avoid
misunderstanding. The “grounding of legal meaning” is not a metaphysical truth, but
rather is a product of our finite and hermeneutical existence. Finally, Gadamer’s
emphasis on “pre-understanding” (Vorverständnis) underscores that die Sache is not
a product of our interpretive-referential activity as a subject approaching an object,
but rather is a precondition of interpretive activity and the very notions of subjectivity
and objectivity. We never raise a wholly new subject matter in discourse; instead, our
orientation to a pre-existing subject matter with another person in dialogue is the
condition for the possibility of inventing new topics for discussion.
If there can be no legal argumentation without the identification of a Gegenstand,
it is equally true that there can be no object of discourse that confronts us as a legal
8 F.J. Mootz III
problem without the constitutive features of legal discourse. The subject matter
under discussion is not a moral or technical problem that subsequently is addressed
through legal discourse. Rather, the narratives of law constitute the object of discus-
sion, just as the object of discussion shapes the legal narratives. To argue a legal
claim is to recognize a legal problem, which is to say that one constitutes an object
for discussion through the evolving narrative of law. There is a complete interpen-
etration of object and subject in this regard: the object of discussion has shaped the
legal discourse before we take up the discussion, but it is only through the ongoing
legal discussion that the object may be constituted as such.
In this chapter I wish to elaborate these themes in the context of legal analysis
and legal education. First, I briefly review the rich and variegated philosophical
history of the term die Sache that Gadamer takes up as a central part of his herme-
neutical philosophy. Recalling this development is a helpful way to avoid some of
the cul-de-sacs that have detoured thinking in the past. Next, I relate Gadamer’s use
of die Sache to key aspects of his philosophy. In addition to “preunderstanding,”
I discuss how Gadamer’s central concepts of “the fusion of horizons” and “the priority
of the question” can be understood best by relating them to die Sache. In the final
part, I demonstrate that Gadamer’s hermeneutical ethic to attend to die Sache has
practical import for lawyers. Once we acknowledge that legal reasoning presents an
exemplary case of our responsibility to die Sache, we can trace the important impli-
cations this holds for legal education.
1.1 A Brief History of Die Sache
As a philosophical concept, die Sache has a long and complex provenance. Platonism
regards the subject of inquiry to be timeless universals (eidos) that exist prior to
language and which are corrupted by discussing them in the necessarily imprecise
terms of language. Platonism is the source of the Western philosophical belief that
we might clarify things by analyzing them in discussion, but reality exists beyond
the discussion. The matter under discussion, in other words, always is outside the
discussion. Modern philosophy was shaped indelibly when Kant provided the cor-
rective to the received wisdom of Platonism by acknowledging the limitations of
our capacity to understand the thing-in-itself that exists outside our faculty of under-
standing, which is to say outside of language. Kant shows the very limited scope of
pure reason, and laments the necessity to employ practical reasoning and aesthetic
judgment. Where Platonism had cautioned us, Kant merely consoled us. Hegel, who
charted the continually self-presenting of die Sache as it emerges historically, sun-
dered this continuity of ancient and modern philosophy. For Hegel, the matter under
discussion is not an extra-historical absolute to which reference can be made; rather,
it is a dynamic self-unfolding of thought that can be traced philosophically. Husserl’s
injunction to return to the things themselves (die Sache selbst) by means of
phenomenological observation carried forward this tradition, but also took a very
different tack. The phenomenological reduction sought to recover our originary
experience by stepping back from the entanglement that our conceptual frameworks
and habituation impose on the world. The goal was to seat the natural sciences on
a rigorous and exact footing that has not been corrupted by everyday existence.
Both Hegel and Husserl, in their different ways, sought access to reality in ways
that could survive skeptical attacks without embracing a mindless and reductionist
scientism.
Although he succeeded Husserl at Freiburg and dedicated Being and Time to
him, Martin Heidegger transformed phenomenological inquiry by drawing from
Aristotle’s hermeneutics of facticity to emphasize our “care-full” involvement in a
world into which we always already are thrown. To speak of “the things them-
selves” – free of theoretical frameworks or subjective intentions – was no longer
sensible after Heidegger’s intervention. Heidegger asked: what can we say of die
Sache after the hermeneutical turn in philosophy? My argument is that his student,
Hans-Georg Gadamer, provided the answer to this question in a manner that provides
the resources to develop die Sache as the ground of meaning.
1.2 Gadamer’s Use of Die Sache
We can understand the semiotic ground of legal meaning by drawing from Hans-
Georg Gadamer’s recuperation of die Sache within the post-Heideggerian herme-
neutical tradition. Gadamer’s critical insight is that the “subject matter” of dialogue
is a key element of understanding. Conversationalists slip into banal or manipulative
talk if they do not attend to the subject matter. In Heidegger’s terms, without die
Sache dialogue is mere idle chatter. Gadamer also draws from Hegel’s historical
approach to die Sache by insisting that reason is a product of interwoven dialogues
that develop historically; what unfolds in dialogue is real and cumulative, but
Gadamer also is quick to emphasize that dialogue never culminates in a final and
definitive Aufhebung.
My thesis is that Gadamer establishes that the ground of legal meaning just is
being responsive to die Sache. The ethical imperative to be responsive is not con-
ceptually determined; it flows from ontology. The ontological ground is a semiotic
realm, which constitutes die Sache, but this is the condition of human finitude and
is not a metaphysical claim. Human understanding is possible only by attending to
the matter under discussion and renouncing deconstructive playing, strategic manip-
ulation, or the use of force. Gadamer’s key themes – that we always come to an
interpretive event with a pre-understanding, and so we must always be prepared to
accept the potential superiority of our interlocutor’s grasp of the subject matter; that
we understand through the logic of question and answer rather than by insular
cognitive effort; that understanding involves a (Hegelian-like) dialectical fusion of
horizons; etc. – all revolve around attending to die Sache. Once placed in this perspec-
tive, Gadamer’s themes provide an important insight into the ground of meaning.
Gadamer repeatedly emphasizes that he embraces Plato’s philosophy even while
he steadfastly rejects Platonism. Although we saddle Plato with our Cartesian angst
10 F.J. Mootz III
arising out of our skeptical attitude toward metaphysics, Gadamer insists that Plato
did not endorse what we now know as Platonism. Instead, Plato rejected empty
eristic by holding out the dialogic engagement of Socrates and his interlocutors as a
model of coming to understanding (Barthold 2010, pp. 2–5). The significance of
Plato’s model for Gadamer is that dialogic responsibility is not owed to one’s dia-
logue partner, but rather is a shared responsibility with another toward the subject
matter under discussion. For this reason, finding the right question that will put the
subject under discussion is more important than reaching definitive answers about
the subject of dialogue. Gadamer’s extensive discussion in Truth and Method of the
hermeneutic priority of the question develops these insights.
When we try to examine the hermeneutical phenomenon through the model of conversation
between two persons, the chief thing that these apparently so different situations –
understanding a text and reaching an understanding in conversation – have in common is
that both are concerned with a subject matter that is placed before them. Just as each inter-
locutor is trying to reach agreement on some subject with his partner, so also the interpreter
is trying to understand what the text is saying. This understanding of the subject matter
must take the form of language. It is not that the understanding is subsequently put into
words; rather, the way understanding occurs – whether in the case of a text or a dialogue
with another person who raises an issue with us – is the coming-into-language of the thing
itself. Thus we will first consider the structure of dialogue proper, in order to specify the
character of that other form of dialogue that is the understanding of texts. Whereas up to now
we have framed the constitutive significance of the question for the hermeneutical phenom-
enon in terms of conversation, we must now demonstrate the linguisticality of dialogue,
which is the basis of the question, as an element of hermeneutics.
Our first point is that the language in which something comes to speak is not a possession
at the disposal of one or the other of the interlocutors. Every conversation presupposes a
common language, or better, creates a common language. Something is placed in the center,
as the Greeks say, which the partners in dialogue both share, and concerning which they
can exchange ideas with one another. Hence reaching an understanding on the subject
matter of a conversation necessarily means that a common language must first be worked
out in the conversation. This is not an external matter of simply adjusting our tools; nor is
it even right to say that the partners adapt themselves to one another but, rather, in a success-
ful conversation they both come under the influence of the truth of the object and are thus
bound to one another in a new community. To reach understanding in a dialogue is not
merely a matter of putting oneself forward and successfully asserting one’s own point of
view, but being transformed into a communion in which we do not remain what we were.
(Gadamer 1989, p. 378, emphasis added)
This idea of a “communion,” generally characterized by Gadamer as a fusion of

horizons, is often misunderstood as a flattening consensus in which the dialogue
partners shed their individual perspectives. However, Gadamer makes clear that by
“communion” he means a shared orientation to die Sache, and he most certainly
does not mean to suggest an erasure of otherness.
To conduct a conversation means to allow oneself to be conducted by the subject matter to
which the partners in the dialogue are oriented. It requires that one does not try to argue the
other person down but that one really considers the weight of the other’s opinion. Hence it
is an art of testing. But the art of testing is the art of questioning. For we have seen that to
question means to lay open, to place in the open. As against the fixity of opinions, question-
ing makes the object and all its possibilities fluid… . It is not the art of arguing (which can
make a strong case out of a weak one) but the art of thinking (which can strengthen objec-
tions by referring to the subject matter). (Gadamer 1989, p. 367, emphasis added) …
What emerges in its truth is the logos, which is neither mine nor yours and hence so far
transcends the interlocutors’ subjective opinions that even the person leading the conversa-
tion knows that he does not know. (Gadamer 1989, p. 368, emphasis added)
The “fusion of horizons” is not two people becoming one through the elimination
of difference. Instead, it is two distinct horizons finding common ground in their
orientation to, and development of, die Sache.
We must be careful not to misunderstand Gadamer as adopting a dualistic approach
that regards communication as an activity involving two subjects exchanging static
information. The two dialogue partners always exist within a semiotic economy
established by their shared language, and this is a social realm rather than merely a
conduit between two individuals. We never speak about something that is peculiarly
“ours,” for the simple reason that speech is not “ours” but rather is a shared realm of
referential discourse. Therefore, the matter under discussion, die Sache, always
implicates the entire social world in which the speakers are rooted, and this too is an
integral part of the semiotic grounding.
Gadamer’s discussion of the hermeneutical power of the classical text clarifies
the significance of die Sache. He explains: “when we call something classical, there
is a consciousness of something enduring, of significance that cannot be lost and
that is independent of all the circumstances of time – a kind of timeless present that
is contemporaneous with every other present” (Gadamer 1989, p. 288). The classical
text “epitomizes a general characteristic of historical being: preservation amid the
ruins of time” (Gadamer 1989, p. 289). The classical functions in this way because
it poses questions that orient us to die Sache and bring us outside a simplistic and
instrumental use of the text for preconceived purposes. The classical foregrounds
die Sache, and thereby rises above the vagaries of its production and initial recep-
tion. And, because the “classical” text is only acknowledged within social discourse
and against the “history of its effects” within that social realm, it is always a referent
that exists beyond the particular dialogue by two persons at a given point in time.
By recognizing that our responsibility to die Sache is at the core of Gadamer’s
hermeneutical ethic, we may put to rest the allegation that Gadamer advocates
surrendering to one’s dialogic partner and abandoning the quest for critical insight.
In his famous debate with Jürgen Habermas, Gadamer was not arguing that we
abandon the goal of critique. Rather, he was challenging Habermas’s monological
tendency toward critical theory and away from an engaged dialogue with another
about the matter in dispute, an engagement in which both dialogue partners are
able to gain critical insight about the subject matter precisely because they are
confronted with the Gegenstand. Critical insight is the motivation for action, but it
follows from answering the call to be responsible to die Sache rather than from
theoretical prowess.
However, this correction raises the possibility that we might misunderstand
Gadamer’s philosophical hermeneutics in a different manner. If we have a responsi-
bility to the subject matter under discussion, and if one’s dialogue partner is merely a
provocation that facilitates our engagement with the subject matter, one may legitimately
ask whether Gadamer’s development of the concept of die Sache tends too much in
the direction of Hegelian idealism, wholly discounting any manner of responsibility
owed to our dialogue partner.
12 F.J. Mootz III
Nicholas Davey provides a helpful explanation of Gadamer’s notion that die

Sache always transcends the finite horizons of particular individuals and yet can
only be known within these horizons. Sachen are dynamic and historical, and so
they are an accumulation of interpretations that do not reach an end except insofar
as they cease being the subject of dialogue between persons. Davey’s analysis merits
extended quotation.
The rich suggestiveness of the term Sache stems in part from its ambiguous meaning.
On the one hand, die Sache is treated as an objective entity that transcends the horizon of an
individual’s understanding. A Sache will have a scope of cultural and historical reference
larger than any individual can grasp. . . . On the other hand, die Sachen do not appear to be
fully independent of individuals and their understanding. Subject matters would lie forever
dormant if they were not made to function. Their cultural effectiveness depends upon
whether they are engaged with. This raises a question . . . How can that which is ontologi-
cally autonomous be acted on or added to by individuals unable to master it? . . . The Sachen
that underwrite preunderstanding operate as the precondition of individual hermeneutic
practices, but it is only by means of the effective operation of the latter that the Sachen
underwriting such practices can function and be renewed. Once again, two of the major
leitmotifs within philosophical hermeneutics become apparent. A subjective process assumes
an importance because of the objectivities it makes discernible, which, at the same time,
reveals to the hermeneutic subject its ethical obligation toward that which ontologically
sustains and yet transcends it. (Davey 2006, pp. 69–71)
The significance of this clarification is profound: we owe responsibility to die

Sache, but Sachen can be approached only through our engagement with others.
The dialogue partner is not merely a provocation that permits one to approach a
noumenal subject matter; rather, subject matters exist only in the dynamic play of
dialogue. The distinctiveness of these interpretations are embodied in dialogue
partners who approach the subject matter against a broad history of its effects within
the cultural circumstance in which they pose a question about die Sache.
If die Sache is found only in the interpretations of dialogue partners, so too it is
not reducible to subjective outlooks. This is the dynamic that permits both parties to
appeal outside their own prejudices and the prejudices of the other. Davey describes
this form of quasi-transcendence with subtlety:
Once a Sache has been formed and has entered the general vocabulary, it acquires an intel-
lectual efficacy that transcends the circumstances of its provenance. . . . Subject matters, it
can be argued, share the rope-like characteristics of Wittgenstein’s description of general
terms, that is, discontinuous strands of meaning still inform how a semantic “whole” can be
perceived. An identity of meaning would not permit a Sache to become more. Discontinuous
strands of meaning offer a different perspective on the whole. They suggest openings or
loose ends enabling other strands of meaning to be woven in, thereby adding to how a Sache
might be perceived. It is, furthermore, precisely the moments of difference and discontinuity
with a Sache that challenge our understanding (expectancies) of it. The discontinuities and
differences of meaning within a Sache therefore contribute to the possibility of hermeneutic
transcendence.
In time a Sache will come to mean incalculably more than its original creator(s) could
have envisaged. . . . The realization that a Sache has come to mean something different than
it once meant, can quite alter a hermeneutic subject’s contemporary understanding of a
term. The point here is that although the meaning of a Sache can, in part, be determined by
the activities of a hermeneutic subject, that subject is also subject to the autonomous mean-
ings of a Sache. In this sense, Sachen have an effectiveness of their own, for once they
escape the particularity of their origin and enter general usage, they start to shape the preun-
derstanding of a given linguistic horizon.
How a hermeneutic subject deploys a given subject matter is never arbitrary. An articu-
lation of a Sache will always be subject to how that Sache has shaped the historical horizon
in which it is articulated. Sachen shape and orient preunderstandings. As such they are key
formative elements in what Husserl describes as the life world (Lebenswelt), that is, that
anonymous world of presuppositions that grounds our subjectivity, which functions in all
experiencing and thinking. . . . (Davey 2006, pp. 71–72)
Having explicated the complex dimensions of Sachen in Gadamer’s philosophy,

Davey concludes by emphasizing their double nature:
First: they are the intentional objects of subjective consciousness, and second: they denote
objective structures of meaning that influence how the world is assimilated. In the latter
case, they form part of the reality beyond every individual consciousness that language
makes visible (Gadamer 1989, 449). This duality of nature is central to what Gadamer
describes as their factualness (Sachlichkeit). We do not experience a Sache in a vacuum but
against a historical backdrop of received expectations not all of which are fully articulated.
Both past and forgotten determinations of meaning as well as unrealized future potentialities
of meaning are held within a Sache. Following Heidegger, Gadamer describes these aspects
of meaning as “the withheld.” It is, in part, the withheld dimension of a Sache’s meaning
that lend it its weight and depth. Furthermore, it is because we experience the nature of a
Sache against the backdrop of previously experienced or expected aspects of a subject matter
that “permits (us) to recognize its independent otherness” (Gadamer 1989, p. 445).
....
Sachen are the subject matters of a culture. They are intentional objects attracting and
reflecting the concerns of a community. The link between them and communicative activity
is insoluble. As we have argued, Sachen are transcendent rather than metaphysical entities.
Though the product of human communication, they are not reducible to the activity of
individuals alone. Even in the case of subject matters that do emerge as a consequence of
the creative interventions of individuals, the full potential of such interventions does not
become apparent until they are assimilated by a cultural community. Philosophical herme-
neutics is persuaded that Sachen emerge as a consequence of communicative engagement.
(Davey 2006, pp. 71–72)
Drawing from Davey’s nuanced and persuasive clarification, we find that

Gadamer’s focus on die Sache is legitimately viewed as the fulcrum of hermeneutical
ethics because it constitutes the ground of legal meaning. This ethics does not aban-
don the concrete subject as dialogue partner in search of transcendent principles, but
neither is it exhausted in the ethical demand of the other person before whom one
stands. The dialectical play of Sachen in dialogue builds up an ethic that is fully and
irremediably hermeneutical.
This ethical dimension of hermeneutics is captured in Heidegger’s notion of the
call of conscience. As Michael Hyde explains, conscience is rooted in our cumulative
experiences, but it must be “cultivated and instructed” through casuistic reasoning
in order to be effective (Hyde 2001, p. 3). The call of conscience is not a call from
a force outside of human life, but rather is an awareness from within the finitude of
human life that the world is always open to question and that we are responsible for
our interpretation of the circumstances and our resolve to pursue a course of action
14 F.J. Mootz III
(Hyde 2001, p. 47). I contend that Hyde is describing an engagement with Sachen
in precisely the hermeneutical-rhetorical terms that Gadamer might use: we take up
an ethical dilemma – euthanasia, in Hyde’s presentation – not as a logical puzzle to
be overcome, but as a commitment to working through the relevant issues in the
particular circumstance. There is no truth of the matter regarding euthanasia that
exists outside of dialogue, there is no truth that can be apprehended monologically
without an engagement with another about the topics raised in relation to the deci-
sion. Ironically, then, the deeply individual responsibility we bear toward the call of
our conscience can be fulfilled only with others, with whom we may re-active the
Sachen. We sometimes believe that we can think through such dilemmas alone in
the dark of the night, but Chris Smith has undermined this conceit in a forceful man-
ner, emphasizing that “we never think in wordless ideas, but only in the words we
have first heard from others and then hear again in our thinking.” (Smith 2000,
p. 740) He explains:
In other words, language, audible speech, is not invented by private individuals to signify
thoughts they already have but is the gift of the community that allows the individual to
think in the first place. Not cogito ergo sum [“I think, therefore I am”] is the truth of the
matter, rather loquimur ergo cogito [“We speak, therefore I think”]. (Smith 2000, p. 735)
1.3 Die Sache and Legal Semiotics
If this were exclusively a philosophical paper, I would now deepen my discussion of

Gadamer’s analysis of die Sache by tracing detailed implications of this important
aspect of his philosophy. I will not undertake this project, in part because it has been
a topic of recent commentary (Barthold 2010, pp. 2–16, 102–11; Davey 2006,
pp. 68–89, 190–97; Wachterhauser 1999, pp. 56–61). Instead, my goal for the remain-
der of this chapter is to render the philosophical issue concrete by exploring its
manifestation in legal practice and by describing the significance that this holds for
legal education. Gadamer acknowledges the exemplary significance of legal herme-
neutics at a critical juncture of Truth and Method. In the same vein, I argue that legal
practice exemplifies our responsibility to die Sache, and that responsible legal
hermeneutics is a guidepost to understanding the grounding of legal meaning.
1.3.1 Between Positivism and Natural Law
Legal practice purports to be aligned with an objectively ascertainable entity: “The

Law.” Judges and lawyers continually make appeals to “The Law” in the course
of their argumentation. We are guided by a faith that the judge gives voice to
“The Law,” but the judge is not the law unto herself. This faith too often translates
to a metaphysical commitment that there is an abiding force that rises above contin-
gent legal discourse, which amounts to an effort to subvert the semiotic construction
of legal Sachen through dialogue. The implausibility of this metaphysical subversion

yields the contemporary intellectual dilemmas of law and legal education.
One of the nagging doubts of modernity is to question whether “The Law” is
anything other than a conclusory platitude, an empty placeholder that is invoked to
assert the legitimacy of exercises of power by legal actors. I wish to provide a phe-
nomenology of the use of this commonplace and to argue that “The Law” is neither
an objective touchstone of our intentionality in the form of a historically-unfolding
truth, nor is it mere rhetorical cover for the exercise of power. Rather, “The Law”
is a reference to the ongoing hermeneutical-rhetorical practice of argumentation
about a subject matter by drawing upon legal signs. “The Law,” to put the matter in
Gadamerian terms, is die Sache.
We should begin by clearly stating the problem that confronts contemporary
legal theory. Stephen Smith has articulated law’s quandary in an unsettling and
straightforward manner, describing: “how our understanding of law has deteriorated
due to our wanton neglect (or, rather, our systematic suppression) of its ontological
dimensions” (Smith 2004, p. ix). Smith argues that law’s quandary follows from the
fact that legal practice outstrips the ontological presuppositions of both everyday
experience and natural science with its reference to “The Law,” but the only other
available option – the ontological inventory of religious concepts, as epitomized in
Aquinas’s natural law theory – is irredeemably divorced from law in our (post)modern
age (Smith 2004, pp. 36–37). More precisely, our quandary is that the discourse of
law depends on some form of transcendent reality, but we expressly disavow such
an ontological grounding despite the undeniable character of our practices (Smith
2004, p. 21).
Seeking a “practical metaphysics” of law, Smith goes behind the successful
manipulation of legal discourse by lawyers and judges to discover the ontological
commitments that anchor this everyday activity. He argues that legal practice cannot
just be the discourse of lawyers and judges because they continually refer to “The
Law” as something driving their discourse. “That is the predicament of modern law
and legal discourse: it seems that we cannot believe in “the law,” and we also cannot
live without quietly harboring something like this belief” (Smith 2004, pp. 50–51).
He concludes that
… there is at least a strong prima facie case that modern legal discourse is operating in an
“ontological gap” that divides our explicit or owned ontological commitments (which
preclude us from recognizing the reality of “the law”) from the ontological assumptions not
only implicit in but essential to our discourse and practice (which seem to presuppose the
reality of “the law”). (Smith 2004, p. 63)
Smith describes not just a quandary, then, but a full-blown metaphysical crisis.
Smith is a wily Socrates who ensnares his readers by asking for a definition of “The
Law” and then upsets their thinking by demonstrating that all proffered definitions
are flawed (Smith 2004, p. 39). But rather than despairing, we should conclude that
his Socratic questioning has revealed the unproductive character of the question as
posed. Smith paralyzes the reader by offering an either-or proposition: either “The
Law” refers to something outside legal practice that can direct it, or it is just a non-
sensical reference that exposes an ontological gap in which our discourse operates.
16 F.J. Mootz III
These unsatisfactory alternatives obscure the fact that the rhetorical appeal to, and
hermeneutical retrieval of, “The Law” does not gesture outside of legal practice.
The metaphysical response to law’s quandary lies in recovering the hermeneutical
and rhetorical dimensions of the practice, and Gadamer’s recuperation and exten-
sion of die Sache is a key to this project. At the same time, by investigating the
nature of legal reasoning and argumentation we can come to a deeper understanding
of the ground of legal meaning, of which it is a part.
1.3.2 The Rule of Law as Practice, Not Ideology
Modern legal systems are founded on the ideology of the “rule of law,” which rep-
resents a break from social systems (such as hereditary monarchies) in which politi-
cal power was vested in individuals in favor of legal systems in which democratically
enacted laws are applied equally to all persons (Mootz 1993). Thus, the most com-
mon characterization of constitutional democracies is to describe them as being
subject to “the rule of law, and not of men.” But this phrase is a talisman more than
a political theory capable of implementation. As Chaïm Perelman famously sum-
marized, there can be no justice without a judge. The idea that laws can be per-
spicacious and therefore self-executing is absurd, and yet in the United States it is
precisely this ideology that dominates popular consciousness and is in abundant
evidence when the Senate questions nominees to the federal Supreme Court in front
of the television cameras. This leads many observers to the cynical conclusion that
the “rule of law” is a charade – a cloak for the power that is wielded by government
officials, including judges.
The vacillation between ideology and cynicism is destabilizing to the point of
being politically corrosive. Gadamer’s hermeneutics of responsibility explains how
to address this problem, which represents the most general manifestation of law’s
quandary. To put the matter concisely, the rule of law is achieved when government
officials and private parties embrace their responsibility to die Sache and relinquish
subjective strategies. We might refashion the guiding ideology of our polity as
securing “a government of dialogue about the laws, and not a government of the
assertion of subjective power.” The quandary of legal authority is that invocations of
“The Law” appear to be grounded only if they are premised on claims to an abiding
authority outside legal discourse; otherwise, the claims appear to be simply deceptive
masks for the exercise of power. However, when legal actors rhetorically invoke
“The Law” in the course of practice they are seeking a commitment from their
opponent and the judge to attend to die Sache rather than to assert subjective aims
or goals. The matter in dispute is never subject to a deductive answer, and so legal
practice is necessarily a continuing creative adaptation of “The Law” to the circum-
stances of the case through practical reasoning. The law is not an authoritarian
natural law of commands, then, but instead obtains its binding authority through the
social nature of communicative action that always extends beyond the speaker and
hearer and involves a subject matter that is not, and can never be, fully encompassed
by either discourse partner.
Law has the peculiar rhetorical structure of denying its rhetoricity: this is why the
invocations of “The Law” are facially empty. Nevertheless, participants in the dis-
course of legal practice in fact are often enmeshed in the social character of their
activity by recognizing that die Sache trumps the hubris that a lawyer can create
legal meaning ex nihilo. This brings Gadamer’s hermeneutical ethic to bear directly
on the nature of legal practice. To practice law is to practice restraint. It requires the
lawyer to subsume her presumed insular subjectivity to the social milieu from which
subjectivity arises. It is an ethic of attending to a subject matter that is greater than
the wants or needs of particular individuals.
Academic commentators might criticize the characterization of legal practice as
attending to die Sache as nothing more than philosophical hogwash. These commen-
tators would insist that lawyers are simply advocates who zealously present their
client’s case as wholly virtuous, and that judges are relatively free to decide the case
in accordance with their own view of law and social norms because of the complexity
of the legal system. At this point, the seasoned practicing attorney can teach the
philosophers of law a great deal. It is a foolish rhetorical strategy to seek every
advantage for one’s client as if it naturally accords with “The Law.” Sophistic manip-
ulation is easy to spot, and reveals the lack of ethos of the advocate. A lawyer who
seeks to manipulate legal discourse as if it is merely a neutral set of tools that can be
employed in an infinite variety of ways misses the substantive character of signs that
results from them being embedded in ongoing discourses; she fails to acknowledge
die Sache and therefore is sharply limited in her ability to be persuasive.
We can easily find many examples from legal practice, but perhaps a simple
hypothetical will be most illustrative. Assume that a public agency is charged with
managing the city’s mass transportation network, and that the enabling legislation
provides that the agency must ensure the “economic provision of mass transporta-
tion services.” It should be immediately apparent that there are many ways to interpret
this legislation. Plausible interpretations of the dictate include: it is a requirement
that the agency ensure that the system provides mass transportation services for the
least cost possible; it is a requirement that the agency ensure that the ratio of receipts
to expenses is as high as possible; it is a requirement that the provision of services
generates the most economic benefits possible; and so on. Critical legal theorists
easily demonstrate that the law is not perspicacious in such cases, and that the
ground of meaning cannot be found in the words of the statute. But it is equally
important to recognize that every plausible reading of the words is not equally per-
suasive or convincing in light of the history of interpretations and pre-understandings
that inform the social dimensions of the text. Legal signs are not inert tools at the
disposal of lawyers; instead, they are embedded in ongoing discourses that constitute
the subject matter that lawyers must engage.
First year law students perennially fall into the trap of regarding the law as an
infinitely malleable set of signs that can be arrayed to support any conclusion; this
is the nadir of the educational experience. When they take their first exams, however,
the find how difficult it is to marshal legal arguments in support of a particular
claim. After a full year of deconstructing the belief that certain results in the cases
that they read are inevitable, the students suddenly find how difficult it is to make a
persuasive argument (not to mention persuasive arguments on both sides of an issue).
18 F.J. Mootz III
What the students lack is experience. They are new to the conversation and have
only the most rudimentary vocabulary and only a tenuous understanding of the
historical path of the law. They have a conceptual understanding of the terms in
issue, but they lack the grounding provided by being engaged in the ongoing public
dialogue. What they lack is the ground of legal meaning: die Sache.
1.3.3 The Implications for Legal Education
Educating future legal professionals poses a challenge, but this challenge is made all
the more difficult by misconceiving the nature of legal practice. In the United States,
students are trained by reading exemplary appellate court opinions, and then dis-
cussing the analyses in class. Students are expected to mimic the analytical process
of the appellate judges in order to learn how, in the common phrase, “to think like a
lawyer.” The assumption in this model is that there is a unique methodology to be
imparted, one that will clear away the confusions that lay people experience when
thinking about legal issues. However, because legal practice is a hermeneutical-
rhetorical discourse that occurs within a semiotic field, there can be no methodology
of the practice. There are no rules for teaching professionalism to law students
because lawyers rely on judgment rather than calculation.
Developing professional judgment requires a liberal education in “ethics” – in
the broadest sense of the term as used by the ancient Greeks to mean an accultura-
tion to a normative lifeworld. Conceptual analysis is incapable of getting at this
dimension of lawyering, which is why most modern reform proposals advocate
integration of clinical- and simulation experiences for students. The recent Report
of the Carnegie Foundation makes this point in epistemic terms, recognizing that
practical engagement is not simply a chance for the students to employ their analyti-
cal knowledge. In terms of my argument, experts understand more because they
attend to die Sache, and introducing students to this reality should be at the core of
their professional education.
Although it looks so to the outsider or novice, experts do not simply act intuitively. Expertise
is judgment fully realized. This is not a cognitive either-or. Experts reflect and deliberate,
especially when confronting difficult or strikingly novel cases and situations. . . .
The expert’s knowledge is well grounded in subtle, analogical reasoning achieved through
a long apprenticeship to more expert practitioners. In this process of learning, formal models
and rules play an essential role, but the formal models are themselves based on practice. Put
another way, in the teaching and learning of expertise, practice is often ahead of theory. Formal
knowledge is not the source of expert practice. The reverse is true: expert practice is the source
of formal knowledge about practice. Once enacted, skilled performance can be turned into a set
of rules and procedures for pedagogical use . . .. But the opposite is not possible: the progres-
sion from competence to expertise cannot be described as simply a step-by-step build-up of
lower functions. In the world of practice, holism is real and prior to analysis. Theory can – and
must – learn from practice. (Sullivan 2007, p. 118)
Legal educators must look to the practical world of semiotic meaning making for
guidance, and then reflect on how we might foster these capabilities in our students
by moving beyond sterile and artificial conceptual analysis.
Perhaps the most important lesson is that we must connect knowledge with action,
preparing students to act in the world of practical affairs. Students must understand
that invention is the mainstay of the practicing lawyer, who always takes up legal
discourse in a slightly new manner to best get at the matter at issue with her present
client. Legal argumentation is not just a toolbox of signs with which to embellish a
dialectical demonstration; rather, legal expertise is cultivated through an educational
program that is best conceived in experiential terms. Professionalism cannot be for-
malized and taught as an analytical skill in the classroom because it is a semiotic
achievement rather than a deductive exercise. Students can fully understand the
ground of legal meaning only by experiencing that dynamic ground by arguing both
sides of an issue by drawing on legal signs and topoi in response to a practical problem.
Clinical placements are designed to provide just this kind of experience to advanced
students, but clinical placements must embody a reflective grasp of the semiotic
ground of legal meaning. It is one thing for a student to mimic a teacher while playing
a role, even if this role takes place in the real world of lawyering through a clinical
assignment. It is another thing altogether for the student to be taught the rhetorical
character of the activity, the commonplaces of argument, and a means of engaging
in invention and argumentation in a self-reflective manner.
The cornerstone of this educational practice, the ground of the legal meaning that
we seek to train our students to create and employ in practice, is the subject matter
under discussion. Students should not be misled into thinking that legal doctrine is
entirely plastic and wholly subject to their manipulations to produce any desired
result, any more than they should be misled into thinking that rigorous legal analysis
will generate a unique right answer to any practical problem. Excellent lawyers
understand that the most vigorous advocacy begins by relinquishing strategic
manipulation in favor of addressing the evolving subject matter in a new and respon-
sible manner. Excellent lawyers understand that they do not create meaning ex
nihilo, because the ground of legal meaning is the historical and public practices
that have defined the subject matter that is raised by the case. Excellent lawyers
understand that they must relinquish their professed subjective aims and attend to
die Sache.
References
Balkin, J.M. 1991. The promise of legal semiotics. Texas Law Review 69: 1831.
Barthold, Lauren Swayne. 2010. Gadamer’s dialectical hermeneutics. Lanham: Lexington
Books.
Davey, Nicholas. 2006. Unquiet understanding: Gadamer’s philosophical hermeneutics. Albany:
State University of New York Press.
Gadamer, Hans-Georg. 1989. Truth and method, 2nd rev. ed. (rev trans: Joel Weinsheimer and
Donald G. Marshall). New York: Crossroad.
Hyde, Michael J. 2001. The call of conscience: Heidegger and Levinas, rhetoric and the euthanasia
debate. Columbia: University of South Carolina Press.
Mootz III, Francis J. 1993. Rethinking the rule of law: A demonstration that the obvious is
plausible. Tennessee Law Review 61: 69.
20 F.J. Mootz III
Smith, P.C. 2000. The uses of Aristotle in Gadamer’s recovery of consultative reasoning: Sunesis,
Sungnômê, Epieikeia, and Sumbouleuesthai. Chicago-Kent Law Review 76: 749.
Smith, Steven D. 2004. Law’s quandary. Cambridge: Harvard University Press.
Sullivan, William M. et al. 2007. Educating lawyers: Preparation for the profession of law. San
Francisco: Jossey-Bass (published as part of “The Preparation for the Professions Series of the
Carnegie Foundation for the Advancement of Teaching,” and known colloquially among legal
educators as “The Carnegie Report”).
Wachterhauser, Brice R. 1999. Beyond being: Gadamer’s post-Platonic hermeneutical ontology.
Evanston: Northwestern University Press.
Chapter 2
Faces Face to Face
Jan M. Broekman
2.1 Introduction
Karl Llewellyn wrote on the first pages of his 1930 The Bramble Bush: Our law and
its Study: “We have discovered in our teaching of the law that general propositions
are empty. We have discovered that students who come eager to learn the rules and
who do learn them, and who learn nothing more, will take away the shell and not
the substance” (Llewellyn 1930). This book and this chapter are a contribution to a
deeper understanding of Llewellyn’s more. His more includes in our contemporary
view the proper location of legal semiotics. The word embraces many chances to
contribute to a teaching of law that focuses on the special study of meanings and
signs. Faces play an important role within that complexity. Who is surprised by that
observation in an era where Facebook is a major social communication network?
Faces also enhance the relevance of any semiotic approach to law. Seminar sessions
or other academic training situations thus exemplify the chapter’s main title by
means of presence and interchange of faces. Classroom sessions bring faces together,
and those faces must always be exposed to other faces in order to truly become a
face. And, furthermore, those faces seem entangled in the process of engenderment
of a self—an issue of immense cultural and social importance.
We speak in daily life about ‘face-to-face’ relations when we focus on proximity,
intimacy, and other social features that determine—albeit by definition temporarily—
a face, and not on the engenderment of a personality. An important dimension of
education is thus in the appropriate understanding of facial relations. Semiotics in
law unveils surprisingly new dimensions here. First, the developments and strate-
gies of legal meaning are subjected to discussion in legal education. Faces play a role
J.M. Broekman (*)

Dickinson School of Law, Penn State University, Distinguished Visiting Professor of Law,
W. South Street 333, Carlisle 17013, PA, USA
e-mail: jmb56@dsl.psu.edu
22 J.M. Broekman
here because the relations between legal and facial expressivity fit a predominantly
narrative context and its democratic tradition. Second, one discovers how and within
what limits law appreciates facial expressivity. Law treats ‘the face’ only as one
specific face, although that approach in its own right is hardly an issue in education
settings.
2.1.1 Faces in Legal Semiotics
A closer look at the topography of “faces in the context of legal semiotics” shows
that facial aspects are of essence in Llewellyn’s expression ‘more’. Law students
should develop that insight in the course of their legal training. Llewellyn could
hardly imagine how semiotics fit his ideas on becoming a ‘lawman’. Faces are not
independently treated and respected in law, and lawyers demonstrate hitherto little
semiotic sensitivity in that regard. Consider how semiotic arguments are rarely
accepted in court sessions; how briefs are never explicitly written in semiotic perspec-
tive and how training in legal writing is not oriented towards a lawyer’s manage-
ment of meaning beyond doctrinal boundaries.
All this is in accordance with the rigorous individualization of a human face in
law (Broekman 1979, Ch. 8). There is, for instance, no legal system that admits a
passport picture with two or more faces, or with a picture of husband and wife or of
both partners in life. The individual has a central position in law and legal discourse;
signification and experiences of the body are subordinated as incidental aspects of
the person as the owner of that body. The concept of a person fulfills the major role
in law because a person is believed to create social patterns. Properties of the body,
in particular of body-parts, are only treated as traces a person leaves behind in social
conduct. Body-parts have no independent semiotic function or task in law. Look at
extreme cases: facial transplants refer solely to the individual person as the owner
in the process of medical transplantation. That attitude is confirmed in body art
movements. All this is a sign of the legal-semiotic complexity in the educational
situation itself.
2.1.2 Legal Meaning, Legal Training
Does legal meaning exist without faces entangled in face-to-face relations, one asks,
and how do law and legal procedure cope with the wildly varied engendering of
facial expressions and meanings? Such questions are not only a training issue in its
own right, but also a foundational topic for semiotics in legal education. Legal training
focuses on how legal meanings reveal the structures of their engenderment: mean-
ings are historic in essence; they grow and never exist in pre-fixed, independent and
autonomous forms. It is our experience that semiotic sensibility grows during intense
lectures and seminar conversations about signs and signification in legal discourse,
2 Faces Face to Face 23
consequently about being a lawman as privileged signifier. That growth is an essential

element of instruction, training, and education as it is embodied in the purposes of our
law schools. It is important in what framework this sensibility is embedded. Jeremy
Paul argued 1990 in his well-known essay The Politics of Legal Semiotics (Paul
1990, p. 1779) how
… despite the fancy label, legal semiotics holds significant potential for bringing together
people of diverse training and background in ways that will foster a true sense of intellectual
community.
In addition he observed that

… legal semiotics can help challenge traditional notions of meritocracy, notions that in my
judgment form the most sincere and powerful response to the brand of progressive politics,
so that “the importance of legal semiotics becomes apparent” …The classroom challenge is
to convey to the student some sense of connection between legal decision making and
political ideology that escapes the trap of trying to explain one in terms of the other.
These remarks present political implications as the main form of the “more” in
Llewellyn’s sense. They do not yet cover the specific education situation, which
could change experiential profiles of law students thanks to their confrontation with
semiotics. Yet Paul focuses on the reflective dimensions of semiotics, which are
linked with argumentative skills (Paul 1990):
semiotics will be anti-conservative if only in its ability to create reflection. To deny this
aspect of the legal semiotics project is to ignore the extent to which students may find their
improved argumentative skills liberating and, in any event, will find the semiotics class-
room exciting …
Paul thus understands the quality of legal argumentation as a property acquired

during legal training. It remains undecided whether that property is a new attitude
which students encounter when they gain insight in legal semiotics. Hence he
focuses on teacher-student relations and their imminent political qualities in law
school, not on the semiotic sensitivity explored, initiated, and practiced by students
through understanding the semiotic approach or modus operandi in law. New semi-
otic sensitivity for legal discourse and its various components lightens the faces of
students and teachers when they share professional thoughts and experiences. The
subject, legal semiotics, is not only folded in spoken words, but is also present in
perceptions of facial expressiveness. Without faces and their ever-changing mean-
ings perceived, one could say, no law and no semiotics.
Paul is right in suggesting that any emphasis on the significance of faces and
their sign-function in society is never without political relevance. It is hardly neces-
sary to refer to recent migrant problems in the European Union to confirm the
important role of a human face in legal search and judgment, not to mention crimi-
nal laws, rehabilitation, or social work in general. Another example is a new Arizona
immigration law, which became a major feature of US politics in April 2010. Citizen
protests and human rights initiatives (all related to legal action initiated by the sole
perception of faces) spread all over the US and created a new awareness of how law
treats a human face. How can one justify a police identification control by perceiving
facial characteristics only? Does this not lead to racial profiling; can we find any
24 J.M. Broekman
well-grounded legal justification for this activity? In July 29, 2010, The New York
Times reported that judge Bolton put for that reason major passages of the project
on hold:
The law will still take effect Thursday, but without many of the provisions that angered
opponents – including sections that required officers to check a person’s immigration status
while enforcing other laws. The judge also put on hold a part of the law that required immi-
grants to carry their papers at all times, and made it illegal for undocumented workers to
solicit employment in public places. U.S. District Judge Susan Bolton put those sections on
hold until the courts resolve the issues. Opponents say the law will lead to racial profiling
and is trumped by federal immigration law.
That law project understood a human face “on face value” and a human body as
a natural datum. In doing so, law did not display any semiotic sensitivity about legal
meanings and their social impact. One has thus to keep in mind why Kevelson
(1996) underlined almost continuously that law (as a system of signs) demonstrates
how semiotic awareness is exclusively a matter of (ever changing) human culture.
She shared that attitude with Charles Sanders Peirce as she was meticulously read-
ing his texts on signs and semiotics. She thus highlighted a central issue in Peirce’s
philosophy: his ongoing analysis of a sign. This is an important semiotic lesson for
lawyers: laws are signs in the context of a culture. Peirce contemplated how a human
“state of mind” is never a state of “feeling, pure and simple”, because “whenever we
are awake, something is present to the mind” and that presence itself is a matter of
culture (Peirce 1894, p. 4).
Culture and Face: Four facets in the intertwining of culture and face are omni-
present in our considerations:
1. Human faces are not a natural fact but should be understood as a cultural value,
that is, as a matter of human culture in general. This observation relates to the
depth and wealth of the philosophical and semiotic analyses of Charles Sanders
Peirce. His approach reaches beyond any renewal of pragmatism in particular
and reaches out to much wider philosophical themes than one finds in any philo-
sophical “ism”.
2. A human face is in semiotic perspective a body part that shares its artifice-character
with the other parts of the body. No human body exists completely beyond any
form of human culture and its technical-cultural features. This observation leads
away from the individual face to the plurality of faces, which constitutes a form
of social life, a community, a communication, or humane life tout court. That
idea has been an inspiration for many philosophers who focused the theme
mostly without any semiotic notion or insight in the constitutive powers of legal
discourse.
3. The artifice-character plays a key role in the semiotic and legal need for name-
giving; faces appear to provoke as it were two names before any name can fur-
thermore be given: the ‘other’ and: the ‘Other’. That is exemplarily told in Torah
narrations: relations between human individuals are described on the basis of
those two articulations: (a) What do they mean, how do they function, and (b)
and what understanding of a psychological (a ‘self’) or a legal (a ‘subject’)
reference do they initiate? Meaning making seems a form of self-realization in

which the face plays a multiform role.
4. Faces are thus faces in an age of semiotics. That is a surprisingly new theme with
particular relevance for legal semiotics. Faces show presuppositions at work in
law as a social discourse, diminishing the role of interaction (the traditional
social-sciences concept based on the Sender-Receiver model) and challenging
our understanding of human relations in terms of “interactivity” (in particular
being in a state of interactivity), a theme that profiles legal semiotics. All those
issues relate to various aspects of the connections between law and faces in our
occidental culture, and furthermore to the quality of communication in its own
right, and the concept of Verständigung as its counterpart, which highlights faces
as they are lived in our age of semiotic complexity.
2.2 Faces and Law
Emphasis on faces, human and divine, increases when words are spoken rather then
written. This is the more important where Law unfolds in oral communication.
Faces in a speech situation lighten up in a decidedly different manner than faces that
are reading. The difference between spoken and written word is relevant in semiotic
perspective, whereas silent faces have a semiotic fascination in their own right. We
learn about the relation between Face, Word, and Law from the Torah, which unveils
the sacrum of what Peirce described in his days as Firstness. That particular state of
mind, or attitude, provokes as it were by definition a change towards reassessment
of positions and qualities of communication, so that Peirce once spoke about “the
embryo of being” (Peirce 1903b, p. 269). When togetherness becomes apparent (in
particular togetherness as a People), ‘being on speaking terms’ receives a new
importance and requires new rules, even new Laws.
2.2.1 Written and Oral Law
The Torah follows the episodes of the Golden Calf with a new and fascinating story.
It marks the transition from written to oral lawgiving, from a Moses presenting
God-given Laws when returning to his community to a Moses having listened to the
Divine voice while making notes, which he brings with him upon his return. The
immediate presence of a (speaking) face constitutes the difference between oral-
and written law. A “Tent of Meeting”, most probably the tent of Moses himself—a
reference to the future Tabernacle, with a column of clouds above its roof when
Moses is absent and in front of the entrance when he is inside—is mentioned as a
predominant place to function as a sign of communication. That communication has
explicitly faces (of Moses and God) and language (between them) as its two major
26 J.M. Broekman
components. The scene forms a primal image of the two. It is important to notice
that face and words access, but not immediately fulfill communication. The entire
narrative is about genesis, about engendering language and understanding, whereby
talking awakens a desire to see faces and seeing faces a desire to talk: ‘… make your
way known to me …’ Moses expressed. That is a truly religious experience: words
are made flesh, as flesh creates words.
The context at stake is desire. Read the story: Moses’ speaking to his God makes
his tent no longer his own place but a public and symbolic dwelling at a distance to
the camp of the people. The speech situation shows a new geography and a different
psychic dynamic: desire is distance and proximity as well as unveiling and veiling
as one: faces are shown and hidden, or forbidden to be seen; meanings are shown
and concealed in interpretations, they heighten a blistering rapture. The scene in
which a transition from written towards oral communication has to take place is full
of cosmic symbols. Exodus 33 tells us an essential occurrence
… at the entrance of his tent…YHWH would speak to Moses face-to-face, the way a man
speaks to his fellow man…
and reports language on perception:

you won’t be able to see my face, because a human will not see me and live…I’ll cover my
hand over you until I’ve passed, and I’ll turn my hand away, and you’ll see my back, but my
face won’t be seen.
The divine face makes itself a subject of veiling and unveiling and the hand that
protects the observer a sign of divine language. There are three phases: (a) the desire
to encounter YHWH, which expresses itself in (b) the desire to see His face, and (c)
the latter as necessarily embedded in language. Language is the medium, the sign,
the protection needed for communication with The Other. The ways of the hand
remain unveiled; nobody will ever see the hand: we confront language as an object,
and as such, the surface of communication will not tell us about the will and what
more is behind it. That observation is valid for all types of human communication.
An individual’s awareness of his or her position in language is profiled by unifica-
tion and separateness, which are basic elements of interrelations. Linguistic expres-
siveness seems the only bridge between them.
2.2.2 Lightening Faces
In her reflections on Exodus, Zornberg (2000, pp. 258, 444) characterizes the transi-
tion towards oral communication by means of the metaphor of light shining from
faces. In doing so, the heightened meaning of faces becomes evident:
The fire of idolatrous passion, of erotic desire for and repulsion from the object, has been
subsumed into the more modest phenomenon of light. …In these narratives of origin, the
light is explained by a motif of indirection: in the sparks, in the elusive central section of the
tablets, in the vestiges of ink left over from the explicit text of the Torah … this most personal
revelation, intuitive, at the very margins of language, glimmers out of Moses’ face.
Indeed, essential for a human face is that it lights up in contexts of communication

as a sign of expressiveness, or darkens as a sign of the opposite. The dynamics of
veiling and unveiling seem fundamental for communication, even where it reaches
beyond grammars of language, or will be understood as a “non-verbal” or even an
“extra-linguistic” language pattern. Is the lightening face such a phenomenon?
Essential for understanding the importance of the face in Zornberg’s analysis of the
Torah narrative (Zornberg 2000) are at least the following points:
1. In his speaking with an uncovered face, Moses “acquires his central identity as
teacher.” “The fire in his bones is transformed into the light in the face; and
Moses allows his people … to see it, deliberately, as an aid in their learning
process.” Do not forget how this focuses on a process of socializing!
2. When Moses speaks to his people, “only after he has finished speaking with them
does he place a veil over his face. And, thereafter, this becomes a pattern: the
shining face is characterized by language…” and, as we should add, language is
definitively characterized by the shining face!
3. “…as with any teacher, the face is a potent learning aid. Expressive, ironic, inti-
mating a hinterland of meaning, it is part of the teaching” so that the role of
leader and speaker is in the indispensable offer to fully perceive the face. Learning
means distancing oneself from subject-positions and acknowledging a face as an
offer.
4. All this characterizes not only faces but language as well. Language, in particular
in educational situations, unfolds because of the energy of radiating faces, which
show the essence of human relations. That essence is in change, in transforma-
tions, in growth, in emergence, in translation, and transmission—the occurrences
of the people when they have to orientate themselves towards oral lawgiving show
the difficulties that go with such a new scale of experience.
Not only the face of the teacher but also and in an equivalent manner the face of
the student, who also belongs to a people and is nowadays called a citizen, is important.
The student/citizen receives, as the Torah narrative underlines, light from the face of
the teacher. He opens himself up to the wisdom of the teacher or leader, and in doing
so, “receives his face”. One should again be challenged to meditate the difference
between the structures of communication expressed in each turn of Torah phrases
and contrast them with our traditional Speaker-Hearer or Sender-Receiver model.
Central focus is, as we underlined many times, on the rich meaning of the face. One
should consider the question, whether faces in today’s Western democratic hemi-
sphere are much different from those who are or were inspired by theocratic ideas.
Should modern parliamentarians also show shining faces that teach citizens their
basic social orientation and in doing so, guide them? The apparent challenge in the
Torah narratives was in the difference between faces in- and beyond face-to-face
relations, both divine and popular. Are these differences still important and are faces
in face-to-face relations for us different from faces beyond those relations? This
relates to the question how law treats our face. In other words: does legal discourse
solely perceive our face when it is alone (like a passport must show one face) or does
it perceive our face in social context, expressed in the presence and perception of
28 J.M. Broekman
other faces (as is forbidden to show on any identity-document anywhere)? Our legal
identity, we are told, should not be based upon a portrait in social relations! That
shows particular meanings of a face in a social context designed by the rule of law.
It limits legal judgment pertaining to a personal identity in law.
2.2.3 Faces Among Faces
Such considerations are rather aspects of a more general issue: how to understand
the meaning of a human face among other human faces in an age of semiotics. All
research seems embedded in a culture characterized by semiotics and its approach to
meaning. Hegel (1931/1967) gave this quest in 1806/07 an almost cosmic dimension
when he focused on “the innermost center of nature” for which he had two metaphors:
that center was “the night”, and “the pure self”. Again, not unlike the Torah narration,
we notice a tension between veiling and unveiling in which the night is the veil and
the self the unveiling of meaning. The face is essential in that regard, because “one
catches sight of this night when one looks into the eyes of a human being”: a move
that is relevant because “the sight” is more than pure perception, and relates to “the
world” or even the cosmos. Night, nature, self, face and world are sliding panels to
express the human being in a state of signifying:
The human being is this night, … the night, the innermost center of nature, which exists
here – pure self. One catches sight of this night when one looks into the eyes of a human
being – into a night, which becomes frightening; because one encounters the night of the
world. (Hegel 1931/1967)
The bond between individual and world would thus include a reference to the
cradle of a self: the emergence of a face. Interaction has—despite its suggestion of
dynamism—a static character. Its inherent sender-receiver scheme determines the
idea of interaction and qualifies it as “action between (inter) actors”. Umberto Eco
demonstrated 1979 in his analysis of the role of the reader (Eco 1979), how this
idea does not fit our experience that each action in life focusing others (the face is
essential here) is rather the unfolding of a new vision and interpretation of life!
Precisely that awareness, which is face, seems folded in the concept of interactivity.
The process of “being in a state of interactivity” changes the quality and substance
of all what is meant by “interaction”, so that the two expressions (interaction and
interactivity) are not interchangeable. Emphasis on interactivity characterizes all
sorts of semiotic approaches in contrast to interaction. Interactivity pertains to
social reality, not in the least because most of our social activities are folded in
modes of activity: first of all the establishment of relations with sub-/objects, and
further pertaining to the perceiver(s) of it all. Changes and variations in the process
of activity lead away from traditional models of communication. One has to accept
that “creating meaning” is a multifaceted process built upon the acceptance of
indeterminacy and the refutation of invariant narratives or fixed codes. Faces tell
lawyers that story!
2.3 Verständigung
Our fascination intensifies when we consider once more the importance of the face
in the Torah stories focusing on oral lawgiving. Faces indicate how the everyday
social sciences concept of communication will not suffice to fully appreciate and
understand togetherness—an essential riddle in law and society. A deeper insight
remains desirable. Verständigung is the keyword here, as this German expression
describes appropriately what happens in a state we called interactivity. It has most
commonly been translated into English as communication and became in that form
a profiled issue in the last decades of the twentieth century social philosophy of the
Anglo-Saxon world. But there is a clear development from age-old insights in the
relations between oral lawgiving, faces, language, and togetherness to the contem-
porary basics of social philosophy, expressed as Verständigung. The desire described
in the Torah’s account of oral lawgiving is existentially important. Yes, we have
heard it also in our days in expressions such as: “we want to see”; “we want to see our
King”; “we want to see our Great Leader”—we want to see. The desire to see God
includes the desire to see Him and to hear Him.
Faces are the only organs with the physiological capacity to perform socially,
and the Divine Face seems to accept and embody these limitations. Faces have eyes:
no other body parts have. Faces have ears, no other body parts have. The Divine
promise that the people will hear Him must interrelate with the security that He will
be before the eyes of the people. Our modern television appearances meet that same
desire, only in a technically changed form. The conditions of the ritual of such an
appearance are severe but they can be fulfilled, and communication will thus be
transcended in orally transmitted Laws, as Exodus 20 reported. The words of these
Laws have a remarkable formal similarity with comparable documents of other
ancient Near Eastern countries, so their sole uniqueness is that they are facially
ordained—words heard and seen thanks to the transition from written to oral laws
(Friedmann 2001, p. 234). The uniqueness is thus the face, and in particular the fact that
a (human and divine) face is not a face separated from face-to-face relations, no matter
how those are ritually embedded in strong rules, injunctions and prohibitions.
2.3.1 Verständigung vs. Communication
As was said before, the German expression Verständigung embraces that semiotic
sensitivity of faces in face-to-face situations in a different manner than the Anglo-
Saxon communication concept. It is philosophically important to notice how the
distinction between communication and Verständigung involves a change of per-
spective on philosophical grounds. Heidegger inserted a remark in his Nietzsche-
lectures at Freiburg University in 1939 (Heidegger 1961) that leads to Verständigung
instead of communication. Habermas (Habermas 1988) noticed in his theory of
communication (which he mainly conceived in the seventies and later decades of
30 J.M. Broekman
the twentieth century) how, as Heidegger wrote, a human being is always in relation
with other human beings and with things. Any self-understanding of a human being
as an individual is therefore embedded in and the result of relationships, and never
the sole outcome of a power that constitutes a self on its own (Habermas 1985).
However, in this context there is a tension between a written word that will be
interpreted and discussed as text, and a spoken word that creates a people. Habermas
refers at this point to Levinas who formulated how the Torah, the Law, Scripture,
God, is even more important than He. Levinas and Derrida thus “forsake God
but perpetuate a Torah, Scripture or Law in their own displaced and ambivalent
way”, Habermas concludes (Habermas 1985, p. 218). Derrida’s 1967 Speech and
Phenomena (Derrida 1973, Ch. 1) distances itself from formulations of Husserl,
which read like Peirce: “Every sign is a sign for a something”—because the problem
is elsewhere, namely in the differences of meaning to be expressed and grounded in
a seeming certainty about that something. In his 1967 essay on Levinas, Derrida
focuses the Divine Face as a unique something: the Divine Face, which veils itself
and issues Orders, gives Laws and thus is less and infinitely more Face than faces.
He quotes E. Jabès’ Le Livre des Questions, 1988, about the Divine Face
All Faces are His; for that reason HE
has no face.
That sentence challenges us to think faces beyond a self—in other words: to

develop a thought-pattern on inter-subjectivity beyond the uses of identity. That is,
of course, a challenge for each semiotic endeavor. Such a challenge is not feasible
in the context of communication, where two entities (often in the guise of a self) are
needed: a sender and a receiver, a speaker and a hearer, an ego and an alter. One
concludes, how in contrast to communication, semiotics embraces experiences
beyond the conceptualization of a self. Semiotics thus confirms how faces in
Verständigung shine—their shining has a meaning, which is closely related to being
in a state of interactivity. To posses meaning beyond an identity in the form of a self
includes also a different experience, in particular pertaining to the constitution of
inter-subjectivity.
2.3.2 Faces as a Learning Aid
A sign lightens up as an index of reality. Faces are such semiotic devices; human
individuals have no face in terms of possession of one and the same facial identity,
but they show a face that becomes denominated as ‘their’ face by others in all ever-
changing circumstances. The showing is their constitution of meaning and their face
(the individual determination in the possessive mode) is the place of social and cul-
tural embedding. Both are necessary conditions that ground human life. “…as with
any teacher, the face is a potent learning aid”, writes Zornberg (2000, p. 258). That
learning aid is the aid of the face as a sign. It is part of any teaching, so that the role
of the teacher is first and foremost in the indispensable offer to fully perceive his or
her face. Learning means distancing from subject-positions and acknowledging a face
as an offer. The absence of the Face of God, initiated by Him and safeguarded by
His Hand, is the primal image of such an offer—although it seems as if it is the
opposite of a truly pedagogic relation and its semiotics. So, one must formulate differ-
ently: that absence has to be absented to make a facial light shine in any educational
relation. This confirms the fact that nobody is ever educated purely and simply as an
individual on its own and in its own right. The absence mentioned here finds its form
in the fact that all humans are educated along linguistic patterns (which can vary
enormously) and their inherent speech habits, according to norms and values cherished
by a group, a profession, a subculture, ultimately by a culture in general.
A lawyer’s education is no exception here. Patterns of law and legal thinking are
unfolded before the eyes of law students. They do not go through an exclusively
individual experience but are confronted with specific meanings of a group, a people,
a fragment of culture. Reality as offered to them is from the very beginning a shared
reality, a spiritual modality, a self-to-be. Reality in legal education and training is
thus essentially historic from the moment of the students understand what is taught
to them. All this clearly transcends the fixed ‘teacher-student’ model, which would
be based on the ‘speaker-hearer’ or ‘sender-receiver’ model in linguistics and com-
munication theory. Teachers and students alike should first and foremost learn and
internalize how to transcend those models, which became so dominant in social
theories. Semiotics in legal training starts at this point of departure. It is in this
perspective that we quoted Heidegger who underlined how Verständigung as a
foundation for human relations differs from any incidental consensual feature
(Heidegger 1961).
2.3.3 Identity
That is a substantial observation, since Verständigung includes agreement about the

same, about dasselbe. That same evokes the idea of identity. Identity seems the basis
for Verständigung in semiotic perspective on human relations, because Verständigung
is always already agreeing about something being the same. The deeper sense of
communication is in this perspective founded in a reference point beyond diversity
and difference where all subjects agree upon the sameness of a something. An indi-
vidual self will thus not be recognized anymore as the creator of the common but as
an element of the process of commonness itself. Heidegger thus concludes, that
Verständigung represents the historic character of man, and the essence of human
reason as based on the sameness of the same. His statement refers to Nietzsche who
ventured in a truly semiotic mode that
… the development of human reason is an arrangement, the poetic profiling of similarity, of
sameness – the same process that reigns each impression of the senses …
However, the “poetic profiling of sameness” is a philosophical and semiotic prob-

lem in itself! It would, on the one hand, imply that the entire historical development
32 J.M. Broekman
of humanity is ultimately a semiotic issue: the construction of meaning inspired by

the human mind’s poetic profiling of reality. But it would furthermore imply a total
emphasis on sameness or identity. The latter is truly a challenge for any semiotic
endeavor. Habermas (Friedmann 2001, p. 119) shows the consequences of that
viewpoint in his 1988 publication where he writes how human communication
unfolds as a mutual Verständigung of identities resulting from an inner rapprochement
that occurs beyond coercion. “Unscathed inter-subjectivity”, he suggests, “would
reveal symmetric relations between free and mutually recognized individuals”—a
dream of democracy in a technological era, one could say. But is it realistic in a
semiotic sense? By no means: the answer is in the presupposition that carries the
weight of all observations and dreams—the sameness or the character of identity.
Could the Ancient Greek still generate an identity through performances of the
tragedy (including their uses of personae and masks)? Today’s lack of such common-
ness shows the deficiency of any attempt to create sameness in a world of diversity.
That has far-reaching semiotic consequences, as faces tell us.
To understand the complexity of the issue, we have to go back to Peirce’s under-
standing of semiosis and in particular his definition of a sign. That definition belongs
to the most quoted passages of his oeuvre. His 1907 essay on Pragmatism (Peirce
1907, p. 410) states famously:
I am now prepared to risk an attempt at defining a sign … I will say that a sign is anything
of whatsoever mode of being, which mediates between an object and an interpretant, since
it is both determined by the object relatively to the interpretant, and determines the inter-
pretant in reference to the object, in such wise as to cause the interpretant to be determined
by the object through the mediation of this ‘sign’.
A sign is therefore not determined by communication between an utterer and an

interpreter (that would repeat the speaker-hearer model) but by the fact that a sign
creates an interpretant in view of its own determination by the object. The opening
up of the in se closed speaker-hearer model is an important event, which has fasci-
nated many readers of Peirce’s texts. A sign creates its own interpretant—that is the
key issue when Peirce understood semiosis as a process of continuous and infinite
creation, not restricted by any fixating notion of sameness or identity. Each sign
must create its own interpretant and that creates the indefinite, infinite, and open-
ended character of the semiotic process. Semiosis does not stop once the sign has
determined an interpretant. Only under the condition that the determination is infinite
and each phase is created newly again, is the sign a sign in a proper sense. This is
one of Peirce’s crucial insights pertaining to the openness of the semiosis. Umberto
Eco has coined the expression “unlimited semiosis” for this openness in Peirce’s
approach—a description playing an important role in analyzing communication as
well as the idea of the self in the world of Peircean concepts (Broekman 1979,
p. 195; Bergman 2009, p. 166; Colapietro 1988).
We must once more conclude that accepting the foundational function of common
as sameness and identity (as Heidegger and Habermas suggested) is against the true
character of a semiotic understanding of meaning, because it closes its openness and
limits its unlimited features. If communication could perhaps be correctly founded
on the striving for sameness and the creation of identity, Verständigung definitely
cannot. Emphasis is again on faces: plural and ever-changing features of faces in

face-to-face relations deny uniformity that can be understood as the constancy of
sameness. No face is ever the same, and no face ever expresses sameness! Facial
variety and dynamics surprise, even when we search for constant and common traits
as legally conceived passports exemplify.
2.4 Culture
The expression “Semiotics of Culture” entails all elements of a pleonasm, one could
argue. Culture determines all considerations about signs, in particular when it
becomes clear how each sign needs an interpretant. That particular theme of Peirce’s
1903 Harvard Lectures and of his later texts on Pragmatism (Peirce 1958) around
1906/07 suggested how
signs mostly function each between two minds, or theatres of consciousness, of which the
one is the agent that utters the sign (whether acoustically, optically, or otherwise), while
the other is the patient mind that interprets the sign.
These formulations should by no means lead to maintain a speaker-hearer model

and understand this model as the foundation for semiotics—it would immediately
annihilate the meaning and sense of a human face. Peirce shows how a sign is an
actual moment of an ongoing engenderment and an evolving chain of meaning(s) of
social relations. Do not forget: sign-activity is human activity in its many cultural
manifestations. Each sign has its proper pre-history and needs a presence after it has
manifested itself, as one concludes from the his notes pertaining
to (a) the pre-history:
…before a sign could be uttered, it had already to be present in a human consciousness.
So the thought is itself a sign and should itself find an utterer in the ego of a previous
moment.
and to (b) the posterior life of a sign: after a sign has been interpreted for a first time,
… it will remain in the consciousness of its interpreter, where it will also be a sign—and, as
a sign should, have in its turn an interpreter, and so on.
2.4.1 Face, Communication
Peirce focuses on plural dependency: speakers, voices, and interpreters change posi-
tion in their communication in parallel with the emerging chain of signs that creates
meaning. This makes clear how (a) communication between human individuals
depends on sign-activity and (b) how that communication modifies itself along
within the described chain history of sign-appearances. A consequence is, that
signs (even without an actual interpretant) are never beyond the scope of human
34 J.M. Broekman
consciousness tout court. Faces and facial expressions witness the performances
played at what Peirce called the “theatre of consciousness”(Peirce 1907, p. 403). The
unfolding of that play can mainly be observed via facial activities that often but
never completely find their zenith in linguistic expressions. Faces thus complete and
perfect linguistic utterances of the agent; they combine, integrate, and relate to
acoustic, optical, and other components stipulated as its theatrical ‘make-up’. As a
consequence, signs convey human intelligence despite the overwhelming complexity
of the sign-concept as conceived by Peirce (1907, 401 f.),
an intelligence that, considering its spirit and pictorial effect, cannot otherwise be conveyed.
This conveyance again fortifies the cultural foundations of semiotics for which
Peirce gave many examples. It is for instance concentrated in the observation, that a
sign can be understood as a medium for communication:
…it is necessary that there should be two, if not three, quasi-minds, meaning things capable
of varied determination as to the forms communicated. As a medium, a sign is essentially a
triadic relation…that which is communicated from the Object through the Sign to the
Interpretant is a Form…is a power, is the fact that something would happen under certain
conditions…the conditional relation which constitutes the form is true of the Form as it is
in the Object. In the Sign it is embodied only in a representative sense, meaning that … the
Sign becomes endowed with the power of communicating it to an interpretant.
This implies a mediating role of the face and its expressions in as far as Peirce
describes here the complexity of communication in more than one step. The sign as
determined by the object, determines the interpretant. A form is communicated
among them, but that is not the communication we imagine in our daily language, it
is rather a first step in the direction of that effect. The form must furthermore be
embodied, and in this second part of the communication, faces play their semiotic
role. They thus play a role in the constitution of a semiotic relation—the embodiment
of form in expression—as well as in the final play at the theatre of consciousness,
which we as outside spectators call ‘communication’. Communicative activity is
thus inherent in the semiotic concept of a sign. Peirce (1907, p. 411) thus refutes the
idea of classical philosophers that there exists always a realm of objects that affects
the human mind as it were from outside the mind. There are differences in the nature
of an object and that of an interpretant, as caused
by the object through the mediation of this ‘sign’. The object and the interpretant are a sign
is anything, of whatsoever mode of being, which mediates between an object and an inter-
pretant; since it is both determined by the object relatively to the interpretant, and determines
the interpretant in reference to the object, in such wise as to cause the interpretant to be
determined thus the two correlates of the sign, the one being antecedent, the other consequent
of the sign.
Communication among and by speakers and interpreters seems not to be restricted

to spoken language but involves all types of signs and human culture. Although
writers in ancient Greek culture were thoughtful semioticians, the scale of their
semiotic interest and awareness was in an exemplary manner much wider than
spoken language. Peirce’s keyword is the expression “all types of signs”. That category
is for him too large to articulate, as a passage from his Pragmatism manuscript
shows (Peirce 1907, p. 403):
Now how would you define a sign, Reader? I do not ask how the word is ordinarily used.
I want such a definition as a zoologist would give of a fish, or a chemist of a fatty body, or
of an aromatic body, – an analysis of the essential nature of a sign, if the word is to be used
as applicable to everything which the most general science of semeiotic must regard as its
business to study.
Reaching from quality to pattern, from possibility to event, from truth or fiction
to thing, from a tone or any action to concrete examples of them all (in particular the
facial expressiveness), the variety can never become exhausted because a semiotic
awareness depends always on its function between ‘theaters of consciousness’, a
field that sustains every possible form of human culture. No further explanation is
needed how the human body belongs to this expanded area of semiotic interest. Yes,
the human body plays a major role, and a human face, accompanied by gestures,
images and related phenomena is its key. All these signs, gestures, aspects of the
body, etc. unveil the deep meaning of human communication, which is the back-
bone of human culture, reaching oftentimes even deeper than organic life. Humans
know that unique depth of communication via their faces, so that one can venture
the idea that a human face forms the heart of each semiotic enterprise. The two
body metaphors—face and heart—fortify this semiotic vision on human reality.
2.4.2 The Body as Artifice
The semiotic project transcends the idea of the human body as a natural fact and
focuses the body as non-natural, as an artifice. This is in our era no longer a revolu-
tionary insight. We contemplate such facts amid citizens who live with implants or
artificial body parts. They live with a new hip, knee, cardiac valve or a diabetic
pump; they consult their laptops as if those were artificial brains enhancing their
intelligence. Features of the cyborg are everywhere: “The cyborg is a potent cultural
icon of the late twentieth century. … The line between biological self and techno-
logical world was, in fact, never very firm … new technologies merely dramatize
our oldest puzzles …” Clark writes (2003, p. 5). There is no way to suggest that
semiotics can exclusively deal with natural issues or decide between nature and
culture. The relevance of semiotics is in its cultural assessment. Lévi Strauss
reported to have met a tribe where all members had painted their faces to signalize
that they were different from their natural environment, plants and animals included.
And those faces were painted with geometrical figures, which do not appear in
nature and do not belong to any natural habitat.
A face expressed here in two ways its artificiality to show its human essence.
Lawyers who tend to underline that ‘being human is bearing rights’ should remember
this. Legal semiotics shows them the strong tie between the meaning-creation of the
painted face and the picture of a citizen who proudly bears rights and obligations.
36 J.M. Broekman
That is an example for every semiotically relevant relationship among humans.

We could say that law accompanies semiotics in its endeavor to explore the cultural
structures of social life. Painted faces do not only symbolize the human character of
the face, nor do they solely underline the artificial, manmade character of the facial
appearance. Those painted faces play an important role among the humans as social
beings. Geometric figures represent a social order among human individuals, an
order based upon the need to create a firm distinction between themselves and the
world around them!
A basic semiotic component of that distinction is in the differentiation between
the observable and the understandable. Already Plato was fascinated by the question
why we can only partially understand what we observe and hold for reality. This is
not exclusively a matter of understanding the world around us, but also of perceiving
and understanding other human beings. A critical point in keeping a relationship
intact is in the words “I don’t understand you anymore”. The tension between what
I observe and what I understand is essential here and everywhere present in life.
Any face-to-face relationship is based upon a regulative discourse that is encapsu-
lated in life—a fact that differs decidedly from faces opening up to solely ethical
dimensions, as Levinas observed (Levinas 1961). Of course, one may touch border-
lines of that regulative discourse, but the discourse must always be honored to keep
the social web intact.
2.4.3 Faces, Meaning
All in all, one comes to the conclusion that faces are meaningful because they are
constantly given a meaning, not because they have a meaning. That is important in
all regards, in particular where the process of language acquisition is at stake. The
understandable becomes understood and interpreted when the constitutive forces of
signs are set free in an acquired linguistic competence. Faces as an artifact fulfill their
role in this competence, which implies three philosophically important aspects:
First is the mental component, which undoubtedly shapes and influences the effect
of faces in life.
Second is the fact that faces are not understandable and even not perceivable without
an abstract dimension. This relates to the generalizing power of everyone who per-
ceives a face, because the comprehension of a face needs forms of abstraction in
order to try to understand the very essence of the facial features at hand.
Third is the existential dimension, which is embedded in the fact that faces always
need to be interpreted. An encounter with a “blank face” does not form an exception
in this regard. If ever faces are meaningful, than the bearer of that face is not the
only one that creates meaning! The meaning of a face includes the result of an inter-
pretation of the O/other who participates in that encounter.
There exists no natural and solipsistic expressive autonomy. Faces relate to
the bearer as well the observer who is at the same time interpreter—both
activities determine the sign quality of the face in a process of interactivity
(Broekman et al. 2008, 25 ff.). Each particular property of a face forms a series, or
a set of series, that possess a more general character in social life. Pure presence
(Peirce speaks of ‘presentness’) is left behind in that process of articulation, and the
idea relates to more abstract categories that one finds concretely in individual images
and symbols. The power of articulation is one of the most fascinating properties of
a human face. Changing faces are thus varying and differing articulations—and that
is what makes them human!
2.5 Thirdness as Artifice
All this also constitutes what Peirce called Thirdness as one of the foundations for
what we called the artifice. This idea parallels the phenomenology of Levinas,
which forms a foundation for the majority of face-to-face relations (Levinas 1961,
p. 52). Signs and symbols are for interpretation; whatever is interpreted must have
properties of the symbolic—otherwise there could not be interpretation at all.
Symbols are thus a genuine Thirdness because of their innermost relationship with
interpretation. Hence (Peirce 1903b, pp. 269–271)
it is better worthwhile to remark upon the conception of Life, that Thirdness essentially
involves the production of effects in the world of existence (…) for it can be said, without
dispute, that no sign ever acts as such without producing a(n) (… ) interpretant sign.
In his additional lecture at Harvard on May 14, 1903 (Peirce 1907, p. 240), Peirce
offers a deeper variant of Thirdness with an also deeper view on Pragmatism in
explaining how ‘any flight of imagination pertaining to possible practical effects’
will be allowed, if ‘conceptions’ are equivalent to conceptions of ‘conceivable prac-
tical effects’. This completes the maxim of Pragmatism. The reasoning involved
enriches the semiotic project considerably. Thirdness is not reducible to Secondness
and Firstness, he says:
But even if so much be granted, three attitudes may betaken: first, that Thirdness, though an
element of the mental phenomenon, ought not to be admitted into a theory of the real,
because it is not experimentally verifiable; second, that Thirdness is experimentally verifi-
able; third, that it is directly perceived, from which the other cotary1 propositions can hardly
be separated.
This really third of all three outlined positions shows in particular to the logician that
it is in action itself where logical energy returns to the uncontrolled and uncritical parts
of the mind. Peirce concludes his Harvard lectures with the maxim of a philosopher in
that particular situation of return. He shapes a sentence with legal metaphors, which
could be an adage for everyone who tries to understand the semiotic dimensions of a
“human face-in-interactivity” (Peirce 1907, p. 241):
The elements of every concept enter into logical thought at the gate of perception and make
their exit at the gate of purposive action; and whatever cannot show its passports at both
those two gates is to be arrested as unauthorized by reason.
“Cotary” is derived form Horace: “ergo fungar vice cotis”, “I will thus perform the function of a
1
whetstone”, so that the sharpest conclusion can be drawn on Pragmatism.

38 J.M. Broekman
The artifice-character, which is reinforced by interactivity that in its turn leads

away from logic and re-turns to the dynamics of a human mind, plays a key role in
the semiotic and legal need for name-giving; faces face two names before any legally
relevant name can be given; those names are: the other, and: the Other. Levinas has
concluded the same when he explored his phenomenological dynamics and returned
to the Torah narratives. Named relations between human individuals are grounded
in their turn in those two articulations for which we use the abstract form before the
ordinary language takes over: the other and The Other. What do they mean, how do
they function, and what understanding of a psychological (a ‘self’) or a legal
(a ‘subject’) reference do they initiate? Meaning making seems a form of self-realization
in which the face plays a major role. All this leads to focus artistic or artifice- moves
with faces functioning in public. Some concrete examples are given.
2.5.1 Tilda Swinton
The face of Tilda Swinton, actress in the film Michael Clayton who was honored
during an Oscar ceremony as best supporting actress, did not show the usual make-up
at that ceremony. Alex Kuczynski describes the situation (Kuczynski 2008, p. 88):
At the Oscar ceremony, she appeared brazenly pasty, unstained by rouge and bronzer, a
white waif in an ocean of spray-tanned limbs and bobbing plastic torsos. Her asymmetrical
dress exposed an ivory arm. The virginity of her unpainted flesh made everyone around her
look like a crowd of aging, insecure hookers. I admired her for going without a double
check of fake eyelashes, for braving the television lights without a whisper of powder of
blush—for being what passes for naked in Hollywood in front of millions, if not billions, of
people. On television, she looked like a fabulous alien. In person, people must have stopped
and stared. Don’t you think the other actresses must have gossiped to one another in the
bathroom?
The situation is filled with semiotic relevance. Tilda understood and treated her
face as a sign and not a natural datum. She tried to solve that contrast by destruct-
ing the make-up sign through abolishing the makeup entirely at the occasion of a
star event, which implies a different role and image, breaking the code by appear-
ing ‘nude’. Also important is her transformation from sign to symbol in referring
to the entire act of make-up as another appearance—the traditional Pierrot or
Harlequin and their snappy outfits and faces, the mimics of beauty, which were
less standardized than the Hollywood make-ups. In doing so, also the symbols at
the background of it all were in disorder. A most visible issue is, that semiotic
considerations touch an entire life pattern, a social and moral network of an indi-
vidual’s life. Kuczynski understood this and reported that Tilda mocked (Kuczynski
2008, p. 90):
We were messing around with the makeup, and this is basically what I did” she said in an
interview from Seville, Spain, … With her lashes drooping, eyebrows scrawled on as if by
a reckless but deviously accurate child an mouth smeared and unsmiling, she is Pierrot, the
heartbroken clown of Italian commedia dell’arte, the cuckold dressed in a white, loose
tunic, his mouth a gash of red. In each telling of the story, he pines for but loses his great
love … Crayons and unguents dare to mimic real beauty; here she mocks them. They are
clearly painted, an overlay, a spackle that disfigures her real face. Any woman who has used
makeup can look at this photo and imagine the actual shades in the service of beauty, and
realize, with a shudder, that there is nothing more yearning and sinister than a woman’s face
covered in carefully applied paint, mascara and shadow. … Swinton was describing the
clown as one of the unconsciously embedded ur-images in every actor’s quiver.
Tilda was playing with the transitions from sign to symbol to create a provocative
disorder by means of a purposefully designed confrontational situation. In other
words, she practiced Peirce’s 1894 remark (Peirce 1894, p. 10):
Symbols grow. They come into being by development out of other signs, particularly from
likeness or from mixed signs partaking of the nature of likeness and symbols. We think only
in signs…. Omne symbolum de symbolo. A symbol, once in being, spreads among the
peoples. In use and in experience, its meaning grows. … The symbol may, with Emerson’s
sphinx, say to man: ‘Of thine eye I am eyebeam’.
Tilda’s practice shows at least two dimensions, which were articulated in this view
of Peirce about sign and symbol. First, there is a forceful creative energy entailed in
her decision to withdraw from any makeup shows. Second, her motivation is that
each appearance in public is a challenge to change attitude. In both actions is a
face’s artificial character—a general conclusion beyond the elements of her indi-
vidual behavior. So we conclude: the face’s artificial character is a major issue in
semiotics, because there is not one particular individual face or facial expressiveness
at stake, but the function of a human body in its entirety as a semiotic issue of para-
mount importance. This conclusion shows how signs in legal discourse are just a
component of more general social practices. What happens to constituent signs
when they become revolutionized? (Broekman 2007, p. 235)
Tilda’s facial nakedness did not stand alone, but was part of an openly charged
criticism pertaining to the relation between body and clothing as expressed in the
slogan how to wear your cloth as a skin. And, as the world of sports and fashion
could conclude very soon, that difference between cloth and skin is very thin
indeed! What if we agree that our clothing is nothing but another skin, an artifi-
cial covering for what we are born with? On the 2010 Australian Open tennis
court, Venus Williams took the consideration to its public practice by creating
and wearing a dress that suggested she was playing the game in and with a faux
nudity. It was just an extrapolation of Tilda’s facial nakedness. The magic of the
trompe l’oeil creates fundamentally semiotic questions! And the nakedness is not
incidental.
In the 2010 film I Am Love by the Italian producer Luca Guadagnino and starring
the same Tilda Swinton, she plays a role that incorporates a tragic denouement
between stable patriarchal family life, with all the weight of history and family
structures, and the power of frailness inherent to an existentially unbound personal-
ity. Luca recently said about Tilda and her role in his film: “This woman has the
strength to go against everything, I like the idea of watching the destruction of a
monolithic bourgeoisie that seems indestructible”. Indeed, Tilda’s facial nakedness
was really not a stand-alone!
40 J.M. Broekman
2.5.2 Orlan
When a man is surprised he knows that he is surprised. Now comes a dilemma. Does he know
he is surprised by direct perception or by inference? … Now, as I said before, it is idle and
indeed really impossible to criticize perceptual facts as false. You can only criticize interpreta-
tions of them. …Nothing remains but to accept it as experience (Peirce 1907, p. 194).
Neither Tilda nor Orlan would have embraced Peirce’s philosophical conclusion. A
human face, they would have said, is a perceptual fact and in order to change inter-
pretations of our faces, we want to change those faces. This breaches the immediate
semiotic relation between face and interpretation. Sufist or Hebrew views see in the
human face the proof of God’s beauty, since Adam was created to His form. So the
two ladies rebelled against the Power of the Creator. Tilda would smile that objec-
tion away, whereas Orlan, the French performance artist of our post-modern age,
would fully accept and even reinforce that act of rebellion, and tell us how this is the
foundation for her art. “Art”, she said, “is a dirty job, but someone has to do it”
(Akman 2006, p. 2). She could have added with Nietzschean expressiveness, how
man is the animal that strives for a perfect self-interpretation.
The creation of a human self requires, in other words, an utmost technical perfection.
Tilda’s internationally acclaimed performance art deletes the traditional concept of
clean and beautiful operations based on truthful semiotic correlations between reality
and interpretation. On the contrary, she transforms her body during publicly acces-
sible operations on herself, or at least parts of her body, in a gesture to enact a most
radical critique of our Western concept of body/beauty. The idea of an individual
identity and its right to privacy in dealing with the proper body is vehemently
attacked in her performances. The latter take place in public areas and enroll, like
life itself, in a ‘theater of exploration’ which is in the cases of her performances also
a ‘theater of operation’ (in the medical sense of the word). The theater is not a pas-
sive scene—on the contrary, its performance pertains to a new feminist utopia. It did
not happen before that this utopia, built on the female body, appeared as a forceful
public semiotic challenge. From sign to symbol and from symbol to another body
and its interactivity: to the icon that is no longer exclusively the socially standard-
ized female body but the one that Hobbes called the ‘body politic’. Akman (2006)
describes how Orlan focuses from the very beginning of her performances the
human body in general and especially her own female body, as an outstanding social
representation:
Orlan’s decision to turn surgery into art followed an operation for an extra uterine pregnancy
under a local anesthetic where she played both roles of observer and patient. Her present
operation/performances are directed by the artist and involve music, poetry and dance.
Videos of the surgeries are for sale in the art market as are samples of her flesh and blood
drained off during the “body sculpting” process. In the “theatre of operation” members of
an audience may also play a role as interactive participants. The role of the audience is an
uneasy one as the surgeons insert needles into Orlan’s skin, slice open her lips, or may sever
an ear from the rest of her face while Orlan remains silent. Importantly, what Orlan is doing
and what may make the audience so uneasy, is her effort to embody the objectification of
the so-called “subject” in a very real way…
There is no doubt that Orlan’s performances play as radically as possible with the
female identity (and with identity in general) as a basic semiotic option in modern
society. To show how faces are an artifice and are managed by their bearers is one
of the objectives of her activities. Since she performs in public and sells DVDs and
printed manifestos, one could venture the thesis that her work is a text like a political
pamphlet. She creates her appearance in concordance with texts to proclaim what
her appearances and style underline. The semiotic relevance of the artificiality of the
face being an index for the body becoming a discursive appearance is evident. Here
again, one should conclude how the expression “semiotics of culture” threatens to
become pleonastic: the body shows via its discursive features a remarkable equiva-
lence of body and signs, symbols and meanings.
2.5.3 Kathleen Bogart
Kathleen was featured in The New York Times, April 2010, as a social worker dealing
with Hurricane refugees 5 years earlier. In her work, her conversations showed the
sympathy, commitment, and other emotional aspects that were expected from her,
but her face did not participate, so that what she said was often neither respected or
trusted. Our common facial expressiveness underlines thoughts, words and deeds
and makes them have an interpersonal value. Kathleen displayed the Moebius syn-
drome, a congenital condition that causes facial paralysis. Her case confirms what
has been concluded hitherto about the human face, its expressiveness as well as its
crucial role in culture and social life.
I wasn’t able to return it. I tried to do so with words and tone of voice, but it was no use.
Stripped of the facial expression, the emotion just dies there, unshared. It just dies.
This observation is very precious for semiotics. Its power to integrate social rela-
tions within a cultural pattern appears to be limited by bodily and psychological
functions, whereas on the other side—revisit Orlan—those functions are challenged
in order to be appreciated as artifices and technically manageable. The borderline
between the two situations is interesting. When are signs, transmitted by a human
face, effective? Facial mimicry seems to be central in social exchanges, and the
responses in such exchange situations are often not a total duplication of the faces
of others: the variations make not only the difference, but after all the meaning
itself. The Moebius syndrome is not about identifying emotions, but about incapacity
to share emotions and letting know in an extra-verbal manner one’s commitment by
means of facial expressiveness. The latter domain, the non-verbal, seems crucial. It
is also the field where training and learning behaviors like laughing, torso shakes
and the like, can become effective in cases such as Kathleen’s. It fascinates philo-
sophically, that this training leads again to the borderline between the natural and
the artificial. Transgressing that line will never take place as long as the lines
or energies of the natural are followed as the sole position to be taken. In other
42 J.M. Broekman
words, the power of the artifice must be recognized in all dimensions of human life:
a lesson learnt by means of semiotics.
2.5.4 Isabelle Dinoire
The case of Isabelle Dinoire is the perhaps most radical in our sequence of female
facial changes and their semiotic implications. In her case there is no doubt whatsoever
about the idea that a human face is an artifice. She received international attention
through the medical surgery she had to undergo, which was published as the first
case of “facial transplant”. The surgery was a medical necessity and her life history
was complicated and sad. Some report that her black Labrador was trying to wake
Dinoire after she took sleeping pills. The hospital denied she wanted to commit
suicide and in 2006, Dinoire declared:
after a very upsetting week, with many personal problems, I took some pills to forget …
I fainted and fell on the ground, hitting a piece of furniture.
The dog, finding she wouldn’t wake up, got more and more frantic, and began
scratching and clawing her. Isabelle’s family is sure that the dog mutilated her acci-
dentally. This world’s first face transplant on a living human was carried out in
France on November 27, 2005. A triangle of face tissue, which included the nose
and mouth was taken from a brain-dead female donor and grafted onto the patient.
Scientists performed scalp and ear transplants in another hospital. The claim is the
first for a mouth and nose transplant, which are apparently the most difficult parts of
the face to transplant. The New York Times published December 18, 2007 three
pictures of Isabelle and wrote:
Ms. Dinoire’s body nearly rejected the transplant twice, 18 days after the surgery and again
seven months later. Pictures of her face and a video of her talking 18 months after the opera-
tion were posted last week on the Web site of The New England Journal of Medicine (www.
nejm.org). Within six months, according to the progress report with the pictures, she could
feel the touch of a light fishing line and detect heat and cold on her new cheeks. After
10 months, she made her lips meet to say b’s and p’s. “And here is the smile,” the doctor
says at the video’s end. Ms. Dinoire’s is a bit crooked, with one side slightly higher and one
eye more open. But it is not unlike that of a typical Frenchwoman trying to convey a vaguely
insouciant sarcasm, with hints of mordant wit and a certain je ne sais quoi.
In October 2004, a team of transplant surgeons at the University of Louisville,

USA, had published in The American Journal of Bioethics an analytical report “On
the Ethics of Facial Transplantation Research” in which a position was taken against
all who had formulated objections against such an operation. Their report shows a
remarkable link between semiotics and medical discourse, which should be of interest
for all who are interested in legal semiotics. Semiotic analysis harden the question
whether medicine becomes increasingly relevant for legal discourse, as becomes
clear where for instance political positions bring bioethical issues to the Courts.
A major theme in today’s medicine and law-sustained bioethics pertains to identity.
Identity is a groundbreaking semiotic issue in law and medicine; both discourses are
particular important in cases of the otherness of the other (Broekman 1996, pp. 100,
153). Should a woman who lost her nose, lips and chin after being savaged by a dog
undergo an operation with tissues, muscles, arteries and veins taken from a brain-
dead donor and attached to her lower face? Entering a medical-technically contro-
versial situation has important legal and ethical dimensions, and the process of
decision is not simple in that context. Nobody should be subjected to such a proce-
dure without being informed and without consent. Central is the issue of identity:
doctors stressed in this case that the woman will not look like her donor, but nor will
she look like she did before the attack—she will have a “hybrid” face. It is important
to underline that skin from another person’s face is better for transplants as it will be
a better match than skin from another part of the patient’s body, which could have a
different texture or color. But ethical concerns of a face transplant, and the psycho-
logical impact pertaining to the patient looking differently had held teams back.
Concerns relating to immuno-suppression, psychological impact, and the conse-
quence of technical failure have so far prevented ethical approval of the procedure
although doctors are technically fully able to perform transplants.
Apart from further detailed semiotic considerations, we have to conclude that the
theme at hand, the artificial character of faces, has become an issue of enormous
technical and social importance. A devastating injury, sign of a catastrophe in life,
was in this case successfully compensated while transferring it into a symbol of
modern medicine. Ethical controversies did not meet the real character of the face
as a sign of catastrophe, and the fear of ethicists for yet another race for a beauty
contest seemed absurd in the light of a more precise semiotic analysis. Such popular
narratives were filled with misconceptions, such as:
• There is no free choice to undergo a facial transplant in order to look better;
• The risks of total rejection or other life-threatening situations were not the result
of an ethics directed against potential consumers;
• The entire project did not result in one person wearing another’s visage, thus
embracing a risk in identity formation and in positioning oneself in public (legal)
life with a stolen identity;
• The cultural and personal value of a face is never threatened or diminished in the
facial transplant situation, since insight in the human face as an artifact never
threatened human dignity;
• The extreme facial transplant of Isabelle was neutralized (and socialized) by a
carefully applied makeup, so that there was at the end virtually no public evidence
of the trauma and its technical compensation.
2.5.4.1 Semiotics of Medical Techniques
Those (mis)conceptions show a mixture of everyday language expressions, legal

notions, and medical reflections. They persist in cases after Dinoire’s partial face
transplantation when nine more followed in France, the United States, China, and
Spain, where the world’s first full-face transplant took place in Barcelona, which
44 J.M. Broekman
Reid described (Reid 2010). The medical techniques may show improvement and
progress, and change from case to case, but the meaning making discourses and
their semiotic implications do not. They circle around three concepts: (a) owner-
ship, (b) identity, and (c) naturalness.
(a) Ownership, in the legal sense pertains to owning a “new face”, whatever that
may be. Although any transplant exchanges body tissue from one person to
another, the distinction between one owner and another remains dominant in
the entire case and its multi-disciplined procedure. Surgeons are obliged to use
this language and their ethical frame of action embeds a human tissue in the
legal concept of ownership. Patients and their families are in their turn in the
grip of this expressiveness as a means to understand what happened and how to
cope with it. The legal concept coerces all participants to see the transplant in a
contractual sense, as a process between two individuals who bear the right to be
treated, dead or alive, as an owner of tissue. About the Spanish transplant
patient, the April 2010 (UK) Daily Mail writes (Reid 2010):
The skin covering his face, the muscles and bones underneath, his nose, lips, chin, palate,
eyebrows and eyelids belonged to another person who was several years his junior. Today,
this patient can only claim ownership of his eyeballs and tongue. They are all that remain
of the original face.
The possessive pronouns are written in a most natural way, and just these
grammar elements form an interesting access to the semiotic dimensions of the
transplanted face as a case in all its dimensions. What is the meaning and the
bandwidth of the ‘his’ or ‘her’—even beyond the borderlines between living and
dead body and tissue? The question can apparently only be answered in legal
terms, including the concept of ownership. As a culmination point of intertwin-
ing understandings, ownership is coordinated with the concept of identity.
(b) Identity, in the legal and a public interest sense, as outcome of the transplanta-
tion and as if it was about a change of photo in a passport, is an issue here in
many regards. First there is the identity of both ‘owners’, each with their own
story, ties to life in a physical and also psychological sense. Then there is the
clash with the new transplanted tissues and the recognition of the receiving self
and his or her others (Reid 2010):
No one knows how the patient will cope with his new identity … His face bears no resem-
blance to the donor because the underlying bone structure created by the doctors is differ-
ent. But neither does his face look anything like his old one.
Has the patient after a facial transplantation a new identity? There are other
means of expressiveness and patterns of thinking possible. “He has the same
identity” one could defend, “but now looking back at a unique turn in his his-
tory”. He “remains what he was but now has received an enriched life because
of his changed exterior he can offer to the world around him”. But this is not
the average way of thinking, expressing and evaluating issues like these. It
shows, how uniformly we think and how we judge according to legal standards
and rules. Identity is a most general and commonly accepted good that helps
us survive in a complex society with many legal differentiations and ethical
viewpoints. To not have an identity is a disaster, to acquire one a matter of

urgency. Along those lines it was reported about the Barcelona transplantation
(Reid 2010), that
The operation on the ‘Mystery Man’, whose identity is being kept secret by doctors under
the strict orders of the Catalan government, was paid for out of public funds. This raised
concerns among politicians in Spain over the wisdom of spending thousands of pounds on
operating on a patient whose life is not at risk. At the heart of the debate, too, is whether the
human face is so sacrosanct that it should never be superimposed on anyone else’s body.
This cluster of meanings, highly intertwined but also entangled into confu-
sion, is unveiling how we think in a non-semiotic manner. The patient has an
identity in its legal sense, and as such this is an issue of social policies and of
budgetary politics. Medical functionaries in the first line exist to protect not
only the health but also the identity of the patient, particularly if social interests
are connected with the medical case. The traditional definition of medicine in
its Hippocratic formulation plays, however, a role when social acceptance of
medical acts is concerned: medicine is there to save lives, to care for and act
when endangered lives are the issue, and not to just improve a life’s quality. Not
to improve an identity but to save an endangered identity is the task of medi-
cine, although innumerable cases occur every day where this view and its limits
cannot be sustained. And, as in the case of Dinoire, the face might not be such
an organ that threatens the life of a patient-identity. What is the criterion here?
(c) Naturalness of the new face seems an ethical impetus, especially in the context of
social life and its psychosocial dimensions. The criteria are complex and divided,
but one should envisage that naturalness is a criterion for a successful transplan-
tation because it fits what others around the patient expect to see! The perception
by others is a major issue in judging transplantation results. If the face looks
natural, it is functioning the way it should—who would dislike or reject that?
Today, he is starting a life anew. His new face is beautiful, he tells me, Dr Barret in
Barcelona said. You could see he is getting handsome. He looks less than his chronologi-
cal age because the donor was a little younger. We are amazed at the result. His face is so
natural. The muscles are firm. You can see just one scar across his neck, which looks like
a wrinkle (Reid 2010).
What criteria? Listen to this doctor. It is as if he sums up the basic criteria of a

fashion journal or a Lady’s Digest. Social factors are listed for a new face. Whether
it is new, and how it is new, seems a complex matter to judge. The artificial char-
acter of a face is, however, dominant in each of the components of these cases.
2.6 A World as Thirdness
The introduction of those so-called ‘new’ faces, in particular the face resulting from
a total face transplant (the most recent case in Barcelona) is important when under-
stood in relation with Peirce’s Thirdness. It is beyond discussion that his distinctions
represent semiotic relations predominantly of a linguistic nature. Signs are in his
46 J.M. Broekman
philosophy related to expressions, gestures, and appearances, which always correlate

with linguistically determined expressions. The latter are culturally shaped, no matter
what state of culture or what cultural pattern is concerned. Acts of reference result
from indexical devices (Peirce’s iconic signs) and the world referred to offers a
structured and organized content for that process of reference. So there is an evident
self-sufficiency provided by culture.
Lying Signs? In other words: faces are like their culture—both are ultimately
“in our hands”. The latter reads like an extremist conclusion, because it seems against
all odds of facing the qualities of a face! But can a sign be correlative to another, for
instance a fictitious world? Umberto Eco explains how the self-sufficiency of the uni-
verse of content can explain why signs can be used to lie, and thus used to elaborate
ideologies, art works (see the case of Orlan), political doctrines and the like:
Semiotics is concerned with everything that can be taken as a sign. A sign is everything,
which can be taken as significantly substituting for something else. This something else does
not necessarily have to exist or to actually be somewhere at the moment in which a sign
stands in for it. Thus semiotics is in principle the discipline studying everything, which can
be used in order to lie. If something cannot be used to tell a lie, conversely it cannot be used
to tell the truth: it cannot in fact be used ‘to tell’ at all. I think that the definition of a ‘theory
of the lie’ should be taken as a pretty comprehensive program for a general semiotics.
and:
Every time there is a possibility of lying, there is a sign-function: which is to signify (and
then to communicate) something to which no real state of things corresponds. (Eco 1979,
pp. 7, 58, 179)
Levinas would not like to read Eco! The uniqueness of a face-to-face relationship,
which he brings together with language, encounter and talk as the seat of human
essence—a metaphysical issue of importance—does not put any truth function into
perspective (White 1973). However, Eco concludes that the relationship between
sign and meaning possesses autonomy in itself and does not require the presence of
an object as an element of its definition, or of any other truth function as VanFleet
explains in his chapter on the philosophical dimensions of semiotics. Eco suggests
that a purely intentional semantics can be the foundation for an elaborate theory of
sign and signification—a suggestion that would puzzle Peirce. Eco would bring
each possible fictitious state of the world back into the network of referential activi-
ties, which is so important for any linguistic inspiration. But are fiction and truth
truly semiotic issues? Its linguistic inspiration awakens questions of legal-semiotic
importance: is language the basis of a possible reference to a fictitious reality? Is
identity in law’s language a construct within a construct, i.e. specific legal expres-
siveness in legal discourse, as the German legal scholar J. Esser concluded in 1940?
A further question relates to the heart of this essay: does the legal definition of a
human identity challenge the fate of faces? (Esser 1940).2
Notice a slightly different meaning of the word ‘fiction’ in English, and in particular in English
2
legal language, with conclusions like: a fiction is that “the law promises what it cannot give” or:
how layman and lawyer understand ‘offer’ and ‘acceptance’ differently.
2.6.1 Identity Legal
That is by no means an abstract or artificial issue: ask those who enter the US as a
non-US citizen and the requirements of photo-identity and fingerprinting. “Signs can
be sent back to objects or states of the world only vicariously”, Eco suggested. Is the
implicit autonomy of the relation between sign and meaning the essence of policies
and ideologies? Or are they parallels? The question is far beyond the issue of how to
lie with signs, or the truth functions of reference. Human life is continuously in con-
frontation with faces: images of one’s own face and those of others. Lawyers meet
faces and words of individuals in a specific social setting called ‘law’. The possibility
of discussing or distrusting the truth-values in reference and social contact seems to
be gravitating here. Consider, how signs, gestures, verbal and other utterances of
participants in legal discourse have a vital function. If it seems that the autonomy of
the relation between sign and meaning leaves room for references of a fictitious
nature, what then is there to say about situations in which we live face to face?
Levinas often characterized the face-to-face relationship as a “verbal neighboring”
(Levinas 1961), a situation in which a conjunction of oneself and the other appears as
a specific social form, which differs fundamentally from any parallelism or confronta-
tion between two human individuals. What about this unique relation, if semiotic
analyses show that faces are open to fictitious gestures or verbal expressiveness as an
element of the infinite semiosis? The painted faces described by Levi Strauss show us
how faces are artifices; they indicate the common human features and their contrast to
the world around us thanks to that artificiality. The question whether those faces are
indexes of fiction, truth, justice or injustice is inappropriate here. Semiotic consider-
ations begin with underlining the non-natural character of the human face, and then
challenge our understanding the consequences of being an Aristotelian ‘animal sym-
bolicum’. The world of Thirdness is rich on presuppositions and their consequences—
perhaps richer than any semiotic project can grasp.
2.6.2 Law, Face
Has law a problem with our face? Most probably, and that leads to a challenging
paradox: a discourse that focuses on social order and its manifold conflicts has prob-
lems with the human face, the most vital human (re)-presentation! Especially the
open, uncovered face seems to create a disturbing situation in some legal procedures.
Of course, one remembers first of all the blinded face of the Roman Goddess Justitia
and perhaps the covered faces subjected to the Sharia law as well. Covered faces
often stem from unknown cultural contexts. By means of encountering a human face,
problems of identity arise. Identity as a fact in occidental social life has legal origins.
The Civil Law world remembers the Napoleonic Code and its strict identity regula-
tions, which encompass persons, goods, and rights. Today’s difficulties with birth
certificates—for instance in cases of transsexuals, unlawful migrants, facial trans-
plants, or people lacking valid identity papers and legal permits—emphasize how
48 J.M. Broekman
modern life unfolds in the spell of a legally determined identity. There is evidently
more to say. Signs of law are everywhere. Literally everything can become a sign for
us. As a consequence, signs unfold amidst all there is—not pertaining to the way it is
but rather as a potential for whatever there is. So how can law disregard the impor-
tance of faces in times of popular communication networks, such as Facebook,
involving faces together with thousands of their photos? People communicate nowa-
days by means of facial representations, and identify their exchanged images with
the seemingly old-fashioned word “friend”.
That observation manifests the power of change. The dynamics from any poten-
tiality to a specific reality of becoming a sign is in essence the basic process, which
Peirce called Firstness—a phase to be fully completed in Thirdness. Problems with
identity formation show that if anything is not fit for becoming a sign, it also is not
fit for human society and the lives lived in it. This requirement of ‘fit’ has its impor-
tance for Roberta Kevelson’s attempt to understand—in the context of what she
calls ‘historic semiotics’—how changes in the system of transitivity and intransitiv-
ity in the English language show that language changes because people do (Kevelson
1976, pp. 31, 40). Here is an important aspect of Peirce’s philosophical view on life,
which is the crux of his philosophy: there is no life that is not embedded in what we
notice as being potentially significant. That potentiality unfolds first and foremost
by understanding how we are a being as a possible sign so that we, humans, under-
stand ourselves as living in a field of transformational energy. One cannot underline
strongly enough in what regard the dynamics of this energy forms the basis for
Peirce’s philosophy, a philosophy that always includes semiotics as its core approach.
If we understand that signs of law are everywhere in social life, we must accept how
those signs are not there by nature but are created by lawyers driven by their encom-
passing energy of transformation.
All of this intensifies the semiotic relevance of faces and the differences between
legal and everyday-life meanings ascribed to them. If law is a system of signs, then
that system is the dynamic context for any creation of legal meaning. There ‘are’ no
signs and there ‘is’ no meaning beyond this ever-emerging primal energy of trans-
formation, Peirce would conclude. It would be useful to investigate the concept of
‘system’ in his texts, not because of an interest in any form of systems-theory, but
rather to find every possible aspect of this dynamism at the basis of semiotics
concealed in his idea of a system. That would be a basic attitude in any endeavor to
understand faces in any face-to-face context. Do not forget how semiotics as a
science is in Peirce’s view a method to approach the flow of dynamics in life, which
continuously regenerates the most essential signifying processes, as faces show
every moment in social life.
2.6.2.1 Animal Symbolicum
The Ancient Greek idea of man as ‘animal symbolicum’ thus remains the ground
for our life—also in law. Law is a symbolic discourse and legal effects are chan-
neled through processes of appropriate semantic transposition. This is how law is
l anguage: its symbolic dimensions do not disappear, but remain in action whilst
even the subtlest layers of meaning are articulated. Lawyers confirm that this
conversion is essentially a legal technique, and they focus almost exclusively that
technique in their legal training. No matter whether lawyers are right about their
option, semiotics demonstrates the importance of that social process before a
jurist’s eyes. Do lawyers perform their task while deliberately denying its founda-
tion in symbolic dimensions and not taking the ever-changing appearances into
consideration as an important element of their relevant sign system? Or are they
not aware of law’s semiotic components and thus exercise only specific and strictly
defined forms of interaction, which maintain the idea of inter-action without
putting the dualist sender-receiver or speaker-hearer model into perspective? That
could be the encompassing challenge of semiotic appreciations of faces in face-to-face
relations, which are demonstrated first and foremost in education settings. It is
interesting to conclude that no research on faces face-to-face in the general context
of semiotics has been developed hitherto—all the more so because law with its
great social importance does even in Peirce’s work not pay attention to the human
body as a semiotic device! Yet, faces should be considered in semiotic context as
an “operating subject”.
2.6.3 Bodies, Body Parts in Semiotics
The latter idea is fully in compliance with Peirce’s analyses of “the self”, as
Colapietro concluded (Colapietro 1988). However, a person as a subject fulfills
this major role in Peirce’s thoughts, and there is no further differentiation about the
semiotic profile of that concept of a person in the texts of Peirce. That implies the
question whether only human persons or also separate human body parts possess
semiotic relevance in social relations as separate entities. Our study of faces in
face-to-face relations affirms that question. Remarks of Teresa de Lauretis (1984,
p. 183), quoted by Colapietro (1988, p. 39), would eventually sustain the idea that
for Peirce
… the notion of habit as ‘energetic’ attitude, a somatic disposition at once abstract and
concrete, the crystallized form of past muscular/mental effort, is powerfully suggestive of a
subject touched by the practice of signs, a subject physically implicated and bodily engaged
in the production of meaning, representation and self-representation.
Colapietro suggests (1988, 42 f.) furthermore:

There is no compelling reason why this concrete subject (the self as both a result and a
transformer of this practice of signs) falls outside of the natural boundaries of semiotic
investigation.
Neither Orlan, Tilda Swinton, Isabelle Dinoire, nor Kathleen Bogart would deny
this conclusion, and rather underline the possibility for human body parts or specific
body regions to play a determining role in the transformation and practice of signs
in social relations.
50 J.M. Broekman
There is a plurality in Peircean determinations of the human self, which also

s ustains that conclusion. Peirce states how the self is a locus of error and ignorance,
a center of power and control, a very spring of action, a person being not a whole as
long as he or she is single, being rather essentially a member of community, the sub-
ject being an actual form of community: all those aspects are gathered and combined
in Colapietro’s study (Colapietro 1988, pp. 42–44). An additional argument for this
insight and perspective on the semiotics of a human subject is in the character of
infiniteness of semiosis itself.
A human ‘theatre of consciousness’ (Peirce) has many players and roles to fulfill
in many more social situations, which are deemed to be face-to-face. De Saussure
reminded us that all possible correlations of sign functions fulfill a role in semiotic
practice, and that the bond between signifier and signified is nevertheless arbitrary.
This arbitrariness is also valid for what is determined as the energizing element in
the semiotic relation itself, and human faces function very well as such elements.
2.6.3.1 The Barcelona Case
Talk to Judge Botton in the Arizona law case, or to the lawyers assisting surgeons
who performed the total facial transplantation in Barcelona. They will acknowledge
that, apart from practical legal problems and the status of specific national, US, or
EU laws, facts such as facial expressiveness and appearances fulfill a dominant role
in law’s creation of meaning. A culture of politics is embedded in this setting: not
the politics of left-right oppositions, but a politics focusing on the continuous
re-structuring of social patterns. Legal scholars in the end of the twentieth century
such as Balkin, Paul, Kennedy and others already acknowledged that issue. Is focus-
ing the human face as a particular originator in semiotic patterns feasible? It is!
And what about law and legal discourse? All articulations of legal concepts focus
on interaction, one could say. However, do not forget that exactly this concept of
interaction is linked with a specific and limited understanding of human relations,
as we argued before. Interaction theories mention in various forms that human
beings are active participants in the construction of self, others, and society, so that
our world and its meanings is created through interaction with others. Actors remain
constituting entities; individuals create meaning through interacting with others.
This idea expresses a common view, even in the phenomenological approach to
social issues in the work of Alfred Schutz, Jürgen Habermas’ theory of communica-
tion, or George Herbert Mead’s social pragmatism with his explanation of the ties
between mind and self emerging from social communication and its sign-systems.
Mead and Herbert Blumer coined the term “symbolic interactionism”, Erving
Goffman explored its socio-psychological dimensions and Peirce’s semiotics
parallels all these ideas forcefully.
There are at least three basic premises here with a close proximity to the “law
and semiotics” theme. They underline (a) how human beings act toward things on
the basis of the meanings they ascribe to them, (b) how their meaning results from
social interaction, and (c) emerges from interpretative processes used by the person
in dealing with the things he/she encounters. Mead and Blumer claimed that people
interact with each other by interpreting or defining mutual actions and not by merely
reacting to them. No wonder, that the concept of ‘interaction’ is often understood as
most appropriate to grasp the focus of semiotics and the law-semiotics relationship.
Kevelson (1996, p. 87) wrote in this context:
Justice is the name of the relationship, which links members of community by means of
transactions of goods and properties. Justice is an invention, which remedies rents and
breaches in the social fabric … Justice in an involving, open-ended concept of a global
community must be regarded as a method of art and of science capable of describing itself,
the principals linked by means of itself as inter-subjective action, the changing context of
institutions and itself as inter-subjective action, and the changing context of institutions and
values in an appropriately dynamic and not static manner.
The fundamental terms in this fragment are indeed referring to basic ideas about
the ongoing dynamics of life and the role of semiotic therein, as well as the artifice
we encounter when dealing with Justice or with a human face as its symbol. Even
when we focus community, its institutions, and its self-understanding in terms of
inter-subjective action, Kevelson suggests (1996), we aim at modes of interaction
and of inter-subjectivity. Is there no difference here? The terms suggest that among
independent entities—constituents in the semiotic play—a response from one to
another is not made directly to the actions of one another but is instead based on the
meaning, which they attach to such actions. Human interaction is mediated by the
use of symbols and signification, by interpretation, or by ascertaining the meaning
of one another’s actions.
2.6.4 Interaction vs. Interactivity: Three Arguments
This process once called “symbolic interaction” should contrast symbolic against
behaviorist explanations of human interaction, since the latter do not acknowledge
any interpretation that complicates the relation between stimulus and response. In
behaviorist approaches, individuals act in a stable and fixed position, which suggests
a stable position amidst uncertainties of change, growth, and development. From
there, they act with/against/among each other, and consequently there is no context
of greater importance than the individual life sphere functioning as the ultimate
source of interaction.
That is most probably the deeper reason for law’s hesitation to acknowledge the
essence of an uncovered human face. Law perceives interpretation and definition as
acts of an autonomous individual—whether in interaction with other subjects or not.
As a consequence, response, mediation as well as use, maintain standard notions of
the behaviorist sender-receiver model. These researchers investigate how people cre-
ate meaning during social interaction, how they present and construct a self or an
‘identity’, and how they define situations of co-presence with others. The self remains
a centered position in all regards, even if the self is understood as the result of growth
and development rather than a natural datum. But individuals are individuals because
52 J.M. Broekman
of their ‘being in interaction’, so that ‘being an individual’ is already the result of an

unnamed pattern of social dynamics! This observation, made fruitful for semiotics
by (among others) Lacan, includes the understanding of the fundamental shortcom-
ings of the term ‘interaction’. In other words, if meaningful social life would solely
be based on interaction, then human relations do not touch the deeper layers of an
actor’s life sphere, his or her emotional life and potential for personal growth.
Interaction and learning on the basis of reception and assimilation of data do not
support its actor to become a fully developed personality.
We therefore propose to replace the concept of ‘interaction’ with ‘interactivity’
and in doing so honor the dynamic energies which Peirce’s philosophy highlighted.
Interactivity does not solely highlight a simple circularity in contrast to a predomi-
nant linear character of interaction. It rather expresses the constant change in human
life and life-quality as well as the continuous expansion of personal experiences and
growth in a person’s character and opinion. The concept should not be used as a
simple equivalent to ‘inter-subjectivity’ or ‘interaction’. There are three arguments
to consider in this context:
A first argument is the fact that interactivity is not a simple extrapolation of
interaction. This would be the case if the subjects of interaction did not change dur-
ing their activity in the processes of social action. But they do always and continu-
ously change in interaction, because the latter is never a straight result of a
well-determined purposeful action but a power of change, growth, and development
in general culture. Any educated self-understanding will confirm that one’s own
actions are best understood as a form of re-acting to the presence of others in pre-
cisely the context of that presence, which provokes changes that change the chang-
ing ‘self’. The re-acting is not an undemanding doubling or a re-production but a
specific form of the dynamics of change, which became articulated in and with a
changing self.
A second argument is that the concept of interactivity shows the relative irrele-
vance of how others, or any materiality understood as ‘others’, are defined. For
example our recent expression ‘in cyberspace’ replaces by means of virtual pro-
cesses what we used to call ‘in space’ in Euclidian terms. The latter is the major
presupposition of fixated and formal models of interaction—a formality, which even
symbolic interactionism cannot transcend. All those forms of inter-subjectivity are
based on the idea of representation, as is visible in our cult of images, pictures,
narratives, or models finds semiotics in its most dynamic form, and effective in so far
as a first understanding of the power of change and development in social patterns is
concerned.
A third argument is that, especially, computers and other electronic devices have
already changed our concept of interaction before any philosophical reconsideration
unfolded. The world of electronically enhanced interaction is the world of our youth
on an almost global scale. An important issue is that this global development—so
often hypostasized as the major feature of modern society—became feasible in the
lives and cultures of big cities (that embrace global social issues and interaction
techniques) which embrace cosmopolitan rather than traditional agrarian cultures.
The latter, one could say, still display a variety of cultural patterns and their faces,
whereas the former develop a non-Euclidian or geographically unbound lifestyle
and interaction in which electronics dominate. Especially this global cosmopolitan

culture is at the point to change interaction into interactivity (often in the name of
personal freedom or privacy), whereby social patterns no longer consist of fixed
human identities but rather of an indeterminable number of floating identities
together with electronic devices. Interactivity can be understood as a new emanci-
pating power of the human mind, which goes with understanding human subjects as
citizens of a society that embraces electronics as a power in the formation of social
patterns. Do not forget that the world of social communication was until the last
decades of the twentieth century shaped independent of its technically sophisticated
communication devices. Interactivity is neither the product of automation or mecha-
nization, nor solely the sign of an upcoming technological culture. Interactivity
indicates a process position in an ongoing energetic development within social
relations and their founding patterns.
2.7 Faces Face to Face
All this is important when one encounters a human face. Faces do not only possess
a non-natural character but they are also not the product of interaction in the form
of an individual autonomy that reaches beyond growth and change. The Roman
deity Janus showed how one face is not enough—with his two faces he could
perceive in an opposite direction. This special gift brought him insight and knowl-
edge of the past and the future: an ancient idea symbolizing a highest degree of
interactivity. Janus thus became a symbol of change and transition. Indeed, a face,
more than any other part of the body, is a sign of the powerful dynamics that sustain
a human being. A human body, one could say, has its face as a primal opportunity
to create it as sign. Law and legal discourse are entangled in a transition from inter-
action to interactivity as soon as they read that sign as a foundation for making
meaning and signification. Why?
Take for instance “two faces in interaction”: that expression embraces the mean-
ing of ‘a face’ as it is restricted to the ‘sender-receiver’ model and its concept of
interaction. More crudely stated: two faces conceived within the boundaries of the
sender-receiver model are no faces! They cannot be ‘open’ and in interactivity,
because they only mirror each other. To look someone in the face: does one want to
see oneself in the face of the other? The question makes clear that any face beyond
interactivity has no expressivity and is therefore irrelevant in semiotic perspective.
Faces are in essence interactivity; they cannot become a sign outside that realm, and
they are just for that reason relevant for semiotics. In other words, a face is never an
entity in itself but always an entity in process. That process is semiotic in nature,
because it is precisely what Peirce described as in the process of becoming a sign.
Faces show meaning in the context of recognition. Look in the mirror and experi-
ence how interactivity gives life to that mirror image beyond how others might
perceive it. The dynamics of interactivity (in itself a full actualization of interaction)
concretize an enriched Janus-experience, which articulates itself while saying,
“I am the one I was, and will be!”
54 J.M. Broekman
2.7.1 Semiotics of Interactivity
Semiotics of interactivity is about human individuals embedded in the encompassing

energy of change and transition, which we often vaguely indicate as ‘culture’. Faces
are their signs and can become symbols of the specifically human character of that
change. It is important and philosophically difficult to grasp how this semiotics of
interactivity is not the result of an individual (inter) action. Individuality is rather the
product of change and in essence a culturally inherited articulation of an evolving
position in the process of growth and development. Where law and legal discourse
want to fix an individual as embedded in interaction, they do so by means of using,
for instance, concepts such as right, identity, or property, as Malloy underlined (2009,
p. 268). Those concepts function as signs, which transfer and communicate infor-
mation about a human individual in its social setting without considering how these
positions are just tentative because of the context of the flow of dynamics tradition-
ally called ‘human history’. This type of semiotics is founded upon interaction as
understood along the pattern of the sender-receiver model. But openness of human
faces shows, in contrast, a flow of feelings, emotions, and expressions, so that the
principal virtue of a face is potentiality in Peirce’s category Firstness.
The semiotics of interactivity are most effectively linked to facial expressiveness.
Is this the reason for the difficulties law has with the human face? One should, when
answering that question, keep in mind how the explanatory power of the interaction
concept appears limited: a face-to-face situation is never exclusively a situation of
solely two individual faces! If everything around us can become a sign that opens up
to its appropriate signification, then each face-to-face situation is satiated by the
dynamics of signifying processes (the dynamics of culture) and never reduced to two
acting faces and two actors. Do the limitations of the number two fit the essence of a
human face? Lawyers encounter his question when they perceive the human face and
have law and legal discourse as their frame of reference.
Semiotics, the method of questioning and research, of growth and transition,
focuses interactivity because its subject is ultimately indeterminable and an activity
beyond fixations. That highlights a new sympathy for Bergson (1911, 414f) (like
Peirce highly regarded by James) and his idea of an élan vital that expresses itself
in signs, symbols and Thirdness. That new élan is engraved in the images of a
human face, because a face is recognized in its process character—not unlike the
human body in its entirety. Shown is a surface in growth, a skin in change, a glance
in futures based on a past that etched what is mirrored and projects what is shared
in life’s experiences.
2.7.2 Law in Our Age of Semiotics
Our evolving age of semiotics does not proclaim interaction as the model for social
relations. On the other hand, however, interactivity is not (yet) in the countenances
around us, although faces evolve in time and space and thus are becoming. They are
always becoming sign, symbol or infinitely more, perhaps a subject that recognizes
itself as an “I”—until also this “I” withdraws from our recognition and becomes a
name, a psychic entity, “an/other” as a process that unfolds at the largest distance
possible from the way lawyers experience and manage relations. They understand
relations as interaction between fixated identities, which they define specifically as
identities in their legal language, in their jurisprudence, in their cases, so that they
redirect their faces whilst operating in their world of fixated meanings (4). Is this
how lawyers make meaning—with faces turned away?
References
Akman, Kubilay. 2006. Orlan and the work of art in the age of hyper-mechanical organic reproduc-
tion. International Journal of Baudrillard Studies 3(1) (www.ubishops.ca/baudrillardstudies/
Vol 3_1/akman.htm)
Bergman, Mats. 2009. Peirce’s philosophy of communication. London/New York: Continuum.
Bergson, Henri. 1911. La Perception du Changement, Conferences in Oxford May 26 and 27,
1911, in: La Pensée et le Mouvant, Skira, Geneve, PUFrance, Paris (1911, 1946).
Broekman, Jan M. 1996. Intertwinements of law and medicine. Leuven: Leuven University Press.
Broekman, Jan M. 2007. Trading signs. Semiotic practices in law and medicine. International
Journal for the Semiotics of Law 20(3): 217.
Broekman, Jan M. 2009. Face to face. International Journal for the Semiotics of Law 22(1):
45–59.
Broekman, Jan M., and Michael H. Foox. 2008. Binding words unfolding selves. New York:
iUniverse, Inc.
Broekman, Jan M. 1979, 1991; 3rd Ed. Recht en Anthropologie; —id—: (1979) Recht und
Anthropologie; (1993); Droit .et Anthropologie, (1993); Derecho y Antropologia, (1993).
Clark, Andy. 2003. Natural-born cyborgs. Oxford: Oxford University Press.
Colapietro, V.M. 1988. Peirce’s approach to the self. New York: State University New York Press.
de Laurentis, Teresa. 1984. Alice doesn’t. Feminism semiotics, cinema. Bloomington: Indiana
University Press.
Derrida, J. 1973. Speech and phenomena. Evanston: Northwestern University Press.
Eco, Umberto. 1976. A theory of semiotics. Bloomington: Indiana University Press.
Eco, Umberto. 1979. The role of the reader. Bloomington: Indiana University Press.
Esser, J. 1940. Wesen und Wert der Rechtsfiktionen. Frankfurt/M: Klostermann.
Friedmann, Richard E. 2001. Commentary on the Torah. San Francisco: Harper.
Habermas, Jürgen. 1985. Der Philosophische Diskurs der Moderne. Frankfurt/M: Suhrkamp.
Habermas, Jürgen. 1988. Nachmetaphysisches Denken. Frankfurt/M: Suhrkamp.
Hegel, G.W.F. 1931/1967. (Bd. I 1805–1806. Bd. II 1806/08) Jenaer Realphilosophie.
Vorlesungsmanuskripte zur Philosophie der Natur und des Geistes. Hamburg: Felix Meiner.
Heidegger, Martin. 1961. Nietzsche, Bd 1. Pfullingen: Neske.
Kevelson, Roberta. 1976. Symbolic language structure and syntactic change. Lisse: Peter de
Ridder Press.
Kevelson, R. 1996. Peirce Science Signs. New York: Peter Lang.
Kuczynski, Alex. 2008. Extreme makeover. New York Times Style Magazine, April, 58, p. 90.
Levinas, E. 1961. Totalite et Infini. Essai sur L’extériorité Phaenomenologica; Bd 8. Den Haag: Nijhoff.
Llewellyn, K. 1930. The bramble Bush: Our law and its study. New York: Oceana.
Malloy, R.P. 2009. Place, space and time in the sign of property. International Journal of Semiotic
Law 22(3): 265–277.
Paul, Jeremy. 1990–91. The politics of legal semiotics. Texas Law Review 69: 1779–1829.
56 J.M. Broekman
Peirce, Ch. S. 1894. What is a sign? (1998). In: The essential Peirce, selected philosophical writings.
Vol. 2 (1893–1913), 4, [see also [28], The Peirce Edition Project, Indiana University Press.
Peirce, Ch. S. 1903a. The categories defended (1998). In: The essential Peirce, selected philo-
sophical writings. Vol. 2 (1893–1913), 160. Peirce Edition Project, Indiana University Press.
Peirce, Ch. S. 1903b. Sundry logical conceptions (1998). In: The essential Peirce, selected philo-
sophical writings. Vol. 2 (1893–1913), 267, Peirce Edition Project, Indiana University Press.
Peirce, Ch. S. 1903c. The seven systems of metaphysics (1998). In: The essential Peirce, selected
philosophical writings. Vol. 2 (1893–1913), 479. Peirce Edition Project, Indiana University Press.
Peirce, Ch. S. 1907. Pragmatism (1998). In: The essential Peirce, selected philosophical writings.
Vol. 2 (1893–1913), 398. Peirce Edition Project, Indiana University Press.
Peirce, Charles Sanders. 1931–1935, ed. The collected papers of Charles Sanders Peirce, Vols.
I–VI. In: The art of reasoning; grand logic, edited by Charles Hartshorne and Paul Weiss.
Cambridge, MA: Harvard University Press.
Peirce, Charles Sanders. 1958, ed. The collected papers of Charles Sanders Peirce, Vol. VII–VIII.
In: Pragmatism, edited by Arthur W. Burks. Cambridge MA: Harvard University Press.
Reid, Sue. 2010. Can the world’s first full face transplant patient live with his new identity? Daily
Mail, 26 April 2010, www.dailymail.co.uk.
VanFleet, Paul. 2010. Tarskian and peircean conceptions of truth-correspondence in law. In The
semiotics of law in legal education, Jan M. Broekman, Francis J. Mootz III [Eds], 57–74.
Dordrecht: Springer.
White, James B. 1973. The legal imagination. Boston/Toronto: Little Brown & Co.
Zornberg, A.G. 2000. The particulars of rapture. New York: Doubleday.
Chapter 3
Tarski, Peirce and Truth-Correspondences in
Law: Can Semiotic Truth-Analysis Adequately
Describe Legal Discourse?
Paul Van Fleet
Power tends to corrupt

and absolute power corrupts absolutely.
– Lord Acton
3.1 Introduction
Legal discourse presumes that the conclusions it provides are true; that is, legal
discourse is always displayed as logically proceeding and concluding in accordance
with “all that is the case” (Wittgenstein 1958, p. 1). Judicial resolutions present
themselves in a manner both declarative and certain, with lawyers advocating for
their “correct” interpretation and judges eventually handing down decisions with the
finality of “it is ordered.” Such discourse provides some sort of assurance that the
legal system can be trusted to safeguard society. However, closer analysis shows that
this safety, while having great effect on our daily lives, is at heart a fiction because
legal actors like judges and lawyers attempt to force reality into the precepts of legal
discourse.
The “truth” of legal discourse is founded primarily on the presuppositions of
analytic-legal philosophers, especially with respect to truth-correspondence. Truth-
correspondence is the basic analytical-philosophical premise that “propositions are
true when they correspond to reality” (Kemerling 2001). The logician Alfred Tarski
provides one of the most comprehensive views of truth-correspondence outside of
legal discourse. His general theorem, Convention T, holds that a proposition is true
if and only if that proposition can be proven true within the language expressing it
(Unattributed 2005, Sec. 4). Within Tarski’s theory, and legal reasoning in general,
P.V. Fleet (*)

Dickinson School of Law, Penn State University, Carlisle, PA, USA
e-mail: PRV109@psu.edu
58 P.V. Fleet
a proposition is either “true” or “false”. Once the truth or falsity of the proposition
is proven, the relations between multiple propositions can also be characterized as
“true” or “false”. This mechanical approach is a form of semiotic activity, but limits
the scope of analysis to the point where the sign-relations find themselves devoid of
meaning except that which legal discourse tolerates. “Truth” is constructed again
and again with each case and each legal finding, yet each finding leads no closer to
any particular legal truth.
Charles Sanders Peirce provides a third factor to the truth-test that invites an
analysis that is best characterized as semiotic, or sign-related. Peirce allows that
truth and falsity can both describe a proposition, but he also allows for the possibility
of the “unknown” (Fisch and Turquette 1966, pp. 71–85). If a proposition is
“unknown,” then its truth-value cannot be determined, and as a result, the proposi-
tion’s relation to other propositions is also unclear (Hammer 2007). This lack of
clarity expands semiotic analysis, where a single sign can evoke a myriad of convergent,
divergent, or even unrelated interpretations, providing a wellspring of meanings
through which a signifier may communicate experience. The introduction of uncer-
tainty into truth-theory does not necessarily create existential problems within
general discourse. However, legal discourse seeks to avoid this malleability at all
costs, resulting in a self-referential system that taints general discourse by imposing
legal meanings as “truth”.
Legal discourse, by systematically restricting terms to that which it finds palat-
able, places itself in conceptual opposition to general discourse and homogenizes
meaning for the goal of social order. Part II will provide a brief analysis of semiot-
ics and the concepts of Peirce’s triadic relationship. It will also address Jacques
Lacan’s theory of phenotext and genotext, as well as his idea of the Master
Discourse. Part III of the paper will analyze how correspondence theory applies to
legal discourse through a discussion of Tarski’s Convention-T. It will also discuss
how legal discourse uses this mechanic to cloak itself in a veneer of “truth”. Part
IV will investigate how Peirce’s theory of truth-correspondence introduces the
expansive, phenomenological element of semiotic concepts that the law does not
allow itself to recognize. Part V will conclude by assessing the effects of the legal
fiction, drawing on Lacan’s theory of the Master Discourse to discuss how the
rigidity of legal discourse semiotically affects general discourse. Part V will also
explore the possibility of reconditioning terms closely associated with the legal to
renew their meaning in other discourses.
3.2 The Basic Semiotics: Triadic Relationships

and the Concept of Phenotext and Genotext
Semiotics is the study of signs, objects, and interpreters within narratives that render
particular meanings to conscious experience. The “sign” is the basic building block
of semiotic analysis, and is defined as “something that relates to something else for
someone in some respect or capacity” (Broekman 2010, p. 4). Semiotics examines
3 Tarski, Peirce and Truth-Correspondences in Law... 59
how meaning can be infused into terms through a variety of institutional contexts,
such as culture, politics, or science. The value of semiotics lies mainly in the
acknowledgement that all things exist in relation to each other, which renders
existence meaningful. Basic semiotic concepts illustrate this idea of relatedness,
especially through the Peircean concepts of the triadic relationship and Greimasian
concepts of the phenotext and the genotext. Both of these concepts are essential to
recognizing that legal discourse limits both itself and the general discourse by
truncating the possible meaning legal terms may have.
3.2.1 Peirce’s Triadic Relationship
Peirce’s theory of the triadic relationship of thought is grounded in three main

premises: first, a sign is not a thing; second, that everything can become a sign; and
third, that things must act upon each other to create meaning.
With regard to the first premise, Peirce carefully indicates that a sign is that
which may indicate a thing or object, but that a sign in itself is not a thing (Broekman
2010, p. 14). Peirce examines the sign as a universal indicator rather than that,
which exists in the real world. Peirce sees the sign as the exemplification of first-
ness, or the infinite realm of possibility that a sign may occupy. For instance, the
sign “flag” could be a sign of anything.1 The object to which “flag” refers may
physically exist as a thing, but the flag as a sign exists simply as a reflection of
phenomenological experience, which is limitless in possibility. Signs materialize
from pure potentiality; they initially exist as a first impression, not a thing.
Drawing from this idea, Peirce properly regards everything in existence as a
potential sign. It is important to note for the purposes of the theories advanced in
this paper that signs “unfold amidst all there is – not pertaining to the way it is, but
rather as a potential for what there is” (Broekman 2010 , p. 15). Peirce regarded this
potential as a function of the infinite semiosis, where signs continually arise and fall
with regard to the context from which they arise. Meaning is only fleeting in Peirce’s
view, existing in the temporary, cultural context that sign-object relations denote.
Lastly, the triadic relation between signs cannot exist without the premise that
things continually act upon each other; without this relationship, there is no meaning
(Broekman 2010, p. 15). A sign can provide no meaning in a vacuum; just as a seed
requires interaction with water and sunlight to sprout, the sign requires other signs to
substantiate. Language can be regarded as the ultimate descriptor of the relations
between signs because language is the syntax by which sign-associated words render
meaning. Peirce used these principles to describe meaning as an interplay between
three actors: the sign, the object, and the interpretant.
An interesting corollary is noting that it seems to be contrary to the theory of firstness to describe
1
the firstness of a sign using a fixed symbol. In this case, the sign flag is affixed to the word “flag.”
This firstness has to be described using a symbol affixed to a word to have linguistic meaning to
others outside of personal experience.
60 P.V. Fleet
Peirce unifies these three concepts in his definition of a sign: “I define a sign as
anything which is so determined by something else, called its Object, and so deter-
mines an effect upon a person, which effect I call its interpretant, that the later is
thereby mediately determined by the former” (Peirce 1902), p. 478). The triadic
relationship thus shows the interplay between the three elements and the infinite
potential for conceptualization. A sign is regarded as a signifier for an object and
denotes that object in general discourse. The object is whatever the signifier denotes;
for example, its flag may denote “the United States of America”. The interpretant
may be thought of “as the understanding that we have of the sign/object relation”
(Atkin 2006). In this threefold dynamic, the interpretant plays the most important
part – the sign only has meaning upon being interpreted, and so the interpretant that
arises within the consciousness of the interpreter renders the sign existent. This idea
is also present in the ideas of Peirce’s theories of truth-correspondence, addressed
later in this chapter.
In legal discourse, we see a particular utilization of Peirce’s triadic theory in
which the interpretant is constrained by its own signs. This constraint limits the
potential interpretants that legal signs may express. The ideas of phenotext and
genotext as espoused by the psychoanalyst Jacques Lacan also provide great insight
into the self-imposed limitations of legal discourse.
3.2.2 Lacan and the Phenotext/Genotext Relationship
Although Lacan was not a philosopher, a linguist, or a semiotician, his ideas have
great meaning within the semiotic community. His most important discovery was
that of the délire à deux, his psychoanalytical theory that there is no way to identify
an established identity within and limited to the profile of a single individual
(Broekman 2010, p. 50). Lacan’s theory of the interrelatedness of concepts as a
basis for psychoanalysis led him to his theory of language and discourse, in which
the ideas of phenotext and genotext play a significant part.
Phenotext and genotext are intertwined, yet distinct. The genotext refers to the
myriad of interpretants (to use Peircean language) that a sign may signify. When
one particular interpretant is elicited, this interpretant is the phenotext for the
duration of the semiotic analysis. Julia Kristeva referred to this process as the
“signifier emerging” in terms of literary theory, where the signifier emerges as a
result of textual fixation (Unattributed 2005). The phenotext and genotext are
the same in that the phenotext may operate as its own genotext, but distinct in that
the genotext is not necessarily limited to the phenotext. When the phenotext acts as
its own genotext, the result is referred to as autopoeisis, or self-creation.
According to Lacan, discourse continually implies the presence of another
individual, with at least one individual conveying meaning (the master signifier) and
one receiving meaning. Lacan devised four types of discourse; the most relevant
discourse to legal analysis is the Master Discourse, reflecting the dynamic of the
slave serving the master (Unattributed 2007). In the Master Discourse, the master
signifier attempts to dominate the subject by forcing meaning into a sign. In other
words, the Master’s phenotext becomes the slave’s genotext for that particular sign.
The Master Discourse can be juxtaposed with the Hysteric Discourse, which places
the subject as the signifier, whose utterances to the master signifier must be controlled
for their relevance to be gleaned. Legal discourse, like logical analysis, is a Master
Discourse.
Peirce and Lacan’s theories of semiotics are quite alien to the analytic tradition,
which attempts to find some fixed meaning within semantics by making signs into
symbols. Symbols are essential for the logical analysis in which law engages. We
turn now to Tarski, whose theories exemplify the type of thinking in which legal
discourse grounds itself.
3.3 Tarski’s Convention-T and Legal Discourse
When analyzing legal discourse, the reader is struck by the certainty that legal
language perpetuates. Lawyers and judges argue and rule based upon a presumption
that all facts concerning the case can be ascertained and deemed “true” or “false.”
Modern analytic philosophy reflects this sort of thinking in elementary propositional
logic, whose propositions are analyzed through truth-values and their relations
organized into truth-tables. The “truth” occurs when the facts correspond to the “state
of affairs,” or in Wittgenstein’s theory, what is “the case” (Wittgenstein 1958). One
of the most influential formulations of analytic truth-correspondence is that of Alfred
Tarski, who defines the semantic truth of a proposition expressed as a function of the
language in which it is conceived (Tarski 1944). As will be seen, Tarski’s theory
accurately reflects the unique self-referential nature of legal discourse, which in turn
uses this correspondence theory to disguise itself as an arbiter of legal “truth.”
3.3.1 Tarski and Convention-T
Tarski called his seminal contribution to truth analysis “Convention-T”, which uses
the concept of a meta-language through which the truth of a proposition can be
evaluated within that propositional language’s set language calculus (Tarski 1944).
Convention-T provides a framework through which truth may be evaluated within
its own scheme by an external language. Examining Convention-T illuminates the
process of legal discourse, which follows the pattern of Convention-T within its
reasoning, especially with regard to legal fact-finding.
The underpinnings of Tarski’s Convention-T originated with Gottlob Frege, who
introduced the theories of das Wahre (the truth) and das Falsche (the false) into
modern logical discourse. Frege’s conception exists as “a natural component of his
language analysis where sentences, being saturated expressions, are interpreted as a
special kind of names, which refer to (denote, designate, signify) a special kind of
62 P.V. Fleet
objects: truth values” (Shramko and Wansing 2010). Frege regarded any function
(or sign) with a value consisting of either das Wahre or das Falsche as a proposition.
Evaluating these truth functions required a comparison to “the state of affairs,” or
the way the world actually is. Tarski used this basic framework to extend the
analysis further, relying on different conceptions of language to prove truth.
Beginning with the basics of semantic truth concepts, Tarski recognized that
using propositional language to evaluate truth was circular; a system that used the
same language to both define and evaluate truth would ultimately collapse on its
own self-referential nature (Tarski 1944). To illustrate the problem of this circular
system, examine the statement “This statement is false” (Black 1948, p. 3). First,
reduce the words “This statement” to a single letter, a, for the sake of convenience,
then consider the statement “This statement is false.” From this, we can extract the
premise that a is identical to the statement “a is false” since the previous statement
informs us that a is false and falsity is the only quality that we are allowed to accept
(because it is all we know) about a in this closed system. However, it also seems that
the statement “a is false” is true if and only if a is false. It follows then, that a must
be true if and only if a is false, which is a logically self-contradictory statement.
Tarski concluded that there needed to be both a propositional language in which
propositions could be expressed, and another language, external to the prior, called
the meta-language, that could properly determine the truth-values of the symbols
and their relations described in the propositional language and avoid contradictions
like the one above. Tarski also asserted that the meta-language should mirror the
propositional language so the functions of the propositional language can be
understood as a function of the meta-language. The two languages are structurally
the same, but conceptually distinct. For example, consider the statement “It is snow-
ing outside.” The proposition “it is snowing outside” must be provable in the meta-
language it is snowing outside to verify whether it is indeed in physical reality
snowing outside (Tarski 1944). The syntax of the language does not matter concep-
tually, but it is convenient to have the syntax of the meta-language mirror that of the
propositional language. “It is snowing outside” can be provable in any meta-
language, but if the interpreter does not comprehend the syntax of one of the
languages, the relationship between the two becomes meaningless. The real value
of the relationship between the propositional language and the meta-language is
shown when their syntaxes are identical.
To perform this verification, the meta-language must also contain axioms that
can express everything that needs to be said about the propositional language.
Specifically, the function “is true” must exist within the meta-language to verify the
truth of propositional statements. Therefore, the general scheme of Tarski’s
Convention-T, in propositional logic, reads:
x: T(x) if and only if f(x) (Hodges 2006).
where x is the statement in propositional language, T indicates the proposition-
language truth function of that statement, and f indicates the meta-language truth
function. So, x is true in the propositional language if and only if x is true in the
meta-language that evaluates the propositional language. The meta-language

confirms the truth or falsity of the propositional language by using one’s existing
knowledge on the subject. This knowledge-affirmation of the meta-language is
essential to understand when applying the principles of Convention-T to an analysis
of legal discourse.
The use of logical-analytic frameworks such as Convention-T highlights a crucial
aspect of semiotic analysis, albeit a very limited one. Tarskian meta-language
corresponds to the genotext in which the Peircean interpretant may be found. Truth-
functions are a particular interpretant within the genotext of the meta-language;
meta-linguistic truth is a relation to the propositional signs expressed. This semiotic
restriction develops as a result of the limitations of the meta-language calculus,
which has the potential to be just as self-referential as the propositional language
(Tarski 1944). The consequences of this restriction will become evident as the
similarities of Convention-T and legal discourse are investigated; they both assume that
they are correct to maintain their integrity.
3.3.2 Convention-T and Legal Discourse
Analysis of legal truth operates very closely to Convention-T when the truth of
general discourse is evaluated through the meta-language of legal discourse. That
which may be true in the general discourse may not be true when analyzed in the
framework of legal discourse, and that which is not known to be true or false must
be evaluated as such. The law demands an answer as to what is true and what is not
by necessity, developing legal meaning by comparing terms in general discourse to
its own calculus. This process illustrates how the law holds itself to be the arbiter of
truth within its own schema, which is the essential fiction fostered by the legal
autopoeisis.
The philosopher Max Black identifies a crucial problem with any attempt to
create a semantically based definition of truth, which is evident in legal analysis
(Black 1948). To apply Tarski’s theories to a natural language, such as English, in
both the propositional language and the meta-language, “[a]ll the terms defined in
[the natural language] must be supposed replaced by their definitions, and a complete
inventory of the undefined terms of [the natural language] must be available” (Black 1948).
Any statement that contains a word that does not have a definition renders the truth
of that statement impossible to determine. For instance, if no individual named
“Abraham Lincoln” ever existed and did not presently exist, the statement “Abraham
Lincoln freed the slaves” is impossible to prove or disprove. Once the term “Abraham
Lincoln” is introduced into language, the ordinary language and meta-language
both become obsolete. Therefore, the open nature of ordinary language defeats the
opportunity to introduce a logical definition of truth to the statement “Abraham
Lincoln freed the slaves.” Legal discourse falls into the same trap by defining itself
using an institutionally limited inventory of natural-language terms.
64 P.V. Fleet
Legal discourse in the American common law tradition binds itself to particular
institutional, as opposed to conceptual, meta-languages. For the federal government,
the controlling meta-language is the Constitution. In the states, the state constitution
functions the primary meta-language (Constitutional Convention 1787). Judges and
lawyers define the law when they extrapolate rules from these meta-languages. This
extrapolation is not so much a language analysis as it is an exercise of institutional
power. In doing so, the law assumes, within their respective meta-languages, that all
facts presented to it are either true or false, like the analytic tradition. To presume
this, there must implicitly be a set referent for each fact that enters the legal arena.
For instance, consider the following statement:
“The plaintiff committed theft” is true if and only if the plaintiff committed theft.
The quoted language may be treated as a natural-language proposition, whereas

the italicized language is the institutionalized legal meta-language with the same
syntax as the natural language. Like in the general form of Convention-T, for the
quoted natural language proposition to be true, its truth functions must be verifiable
by existing legal discourse.
An example of how this is used can be seen within Pennsylvania law. Pennsylvania
describes theft as: “A person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him thereof ”
(18 Pa.C.S. § 3921). This language is the standard from the meta-language of legal
discourse, which must be applied to the general discourse. The above statement in
propositional logic reveals the factors that must be subjected to a truth evaluation:
∀x: (U(x) v E(x)) ^ I(x) - > T(x).
where x symbolizes some property, U symbolizes unlawful taking, E symbolizes
an exercise of unlawful control, I symbolizes the intent to deprive, and T stands for
a theft. Each of these variables to the left of the arrow must be evaluated for their
individual truth-value to determine the truth of the variable to the right of the arrow.
The court must find that either a condition is true, or a condition is false, to render a
legal conclusion.
The legal community’s assumption that the law can accurately determine all
the variables necessary to render an accurate legal conclusion is a conceptual flaw
in the legal process. All legal fact-finding takes place through the evidentiary
process, which is devoted to taking propositions as presented from signs in the
general discourse and evaluating their use in the courtroom, i.e. making them
legal signs. As Black has identified, this is a closed institutional discourse that is
necessarily limited by that discourse’s rules. This transition assumes that the gen-
eral sign corresponds with its object exactly; in other words, it presumes that
“a” = a, with a one-to-one ratio. The legal process changes a sign, with an infinite
potential of meaning, into a symbol, which has a single meaning. This may be
innocuous in terms of more concrete facts, such as physical evidence, but when it
comes to intangible ideas, such as intent or consent, this change is a far more
dangerous process.
Focusing on the Pennsylvania definition of theft, we find that there are tangible
and intangible variables. Property may seem easy to define, and generally is with
regard to physical property. However, intangible property, such as intellectual
property, is not an easy concept to define legally, and assigning a truth-value may be
difficult. Other variables are even murkier, such as proving the truth of an “unlawful
taking,” which could be known by previous definitions of “unlawful taking.” The
most uncertain variable, however, is the intent element, which has a definition in the
legal sense, but cannot be naturally determined at all. Can anyone really know
the intent of another person? Can an evaluator really say for sure that there was the
intent to take someone else’s property? Conceptually, the answer must be no; we
cannot see into the soul of the accused. However, not only can the law not truly
determine whether there actually was natural intent, legal analysis must refuse to do so.
The law must make a legal presumption and must assume for the sake of institu-
tional integrity that facts that are inherently unknowable are knowable, just like
analytical logic assumes that the symbols used have a definite truth-value despite
inherently incomplete sets of definitions.
The legal community’s presumption of certainty in knowing the truth or falsity
of facts from the general discourse restricts legal meaning to only that which fits
into the code in which it operates. However, Tarski’s method, which provides the
paradigm for the process of legal discourse in fact-finding, is not the only concep-
tual truth process available. Peirce creates a system of truth-functions that allows for
the semiotic nature of truth with respect to signs and does not require that those
signs be changed to symbols for formal analysis.
3.4 Peircean Truth-Correspondence Theory: An Invitation

to the Semiotic
Where analytic-legal analysis as seen through the lens of Convention-T creates a

profound restriction in the overall breadth of interpretation, Peirce uses a logical
analysis that allows for the expansiveness of the semiotic. Peirce’s conception of
firstness within the sign is identified in his truth theory with the introduction of the
L-value, or the unknown (Fisch and Turquette 1966). All signs begin as unknowns
in their basest form, as infinite potentiality. Truth-value derives from the unknown;
that is, if the unknown truth-value ultimately becomes known, then it can be identi-
fied as true or false. This process is like the sign beginning as the infinite potential
of the unknown and taking on meaning once it is related to an object. Tying a sign
to an object creates truth-analysis. Peirce’s semiotic approach to truth-theory
acknowledges that the truth-definable proposition arises from the unknown, whereas
analytic-legal analysis assumes that all objects begin with independent meaning
apart from relation to other signs, thus precluding it from the richness of analysis
afforded by Peirce’s theory.
66 P.V. Fleet
3.4.1 The Role of Firstness in Semiotic Analysis
The crux of Perciean truth-theory is the idea of firstness, which can be closely
paralleled to Husserl’s phenomenological theory. Firstness, in Peirce’s mind, is
described as “the mode of being which consists in its subject’s being positively
such as it is regardless of aught else” (Broekman 2009, Sec. 2). Husserl comes
close to, but does not necessarily mimic, similar ideas in his conception of the
attitude change that necessarily occurs within phenomenological experience
(Broekman 2009, p. 34). It is worth examining both concepts because Peirce’s
firstness is linked to Husserl’s attitude change; indeed, this concept is the “hinge”
of firstness (Broekman 2009, p. 34).
Husserl’s concept of Einstellungänderung, or attitude change, is connected to his
idea of the “first” in the initial conception of an object in sense experience. Husserl
holds that “every philosophical attempt requires an ego that concentrates on a
particular theme,” that concentration being an “attitude” (Broekman 2009, p. 35).
He further spoke of an infinite amount of attitudes that one may have towards a
specific stimulus. In other words, he focused on an infinite amount of concentrations
of an ego on that theme. Attitude changes create new reality for the subject who
focuses on a theme; continuous ruptures create infinite interpretation. Picture a man
who is observing a city street, and then hears the siren of a police car. The siren acts
as a rupture in the attitude of the man towards the city street. Did the city street exist
as a city street before the siren? Is the siren essential for the man to view a city
street? Each of these requires a philosophical discussion (Broekman 2009, p. 36).
Peirce would refer to the city street as a concept of “firstness” because it is an idea
that initially exists in a theoretical conception. Peirce makes it absolutely clear that
firstness exists only in a theoretical concept, because “as long as things do not act
upon one another, there is no sense or meaning in saying that they have any being”
(Peirce 1903, Sec. 2). This creates some sense of irony within Peirce’s theory, how-
ever, because to examine firstness is to necessarily divide the concept from second-
ness and thirdness when firstness does not exist independently of the other two. In
doing so, we divide what is intended to be a “unified whole” (Broekman 2009, p. 51).
Husserl’s idea of the “attitude” in phenomenological experience corresponds to
Peirce’s idea of “feeling” within firstness. The crucial link lies in understanding that
“firstness is the awareness of attitude change, which expresses itself as feeling
(Broekman 2009, p. 61). This attitude change cannot be expressed as an attitude
change to individual events, as nothing individual actually exists because of the uni-
fied nature of sign relations. This attitude change necessarily exists only in relation
to “all there is” in the world. Peirce thus defines a feeling as “an instance of that sort
of element of consciousness, which is all that it is positively, in itself, regardless of
anything else” (Broekman 2009, p. 60). It is important to note that in contrast to logi-
cal analysis, which is mechanical and rigid with no real conception of firstness,
Peirce’s conception of the process of feeling and firstness is necessarily whole, with
the expectation of rupture (Broekman 2009, p. 62). When taken into consideration
with Black’s objection to semantic methods of truth as inherently incomplete, think-
ing of Peirce’s firstness as necessarily whole provides some reassurance as to the
completeness of his system. However, we cannot expect that firstness will be
independently consistent, as the whole is continually being reimagined in light of

constant rupture, which means that the entire system must change. This is why Peirce
must yoke the mercurial nature of firstness to objects; the objects to which the signs
relate help to identify the nature of firstness for meaning and communication.
3.4.2 Peirce’s Firstness in Truth-Correspondence
The concept of firstness plays into truth-analysis by allowing logical symbols to be

analyzed as semiotic signs. Without the infinite potentiality of firstness, signs
become symbols, and logical analysis falls into the trap of logical incompleteness.
However, firstness must be fixated in signs, then not only can meaning not be related
between individuals, but meaning cannot exist for Peirce because meaning only
exists in sign-relations. In his theory of truth-relations, the problem for Peirce
becomes how to express firstness and the rupture in feeling in a logical system. To
achieve this, Peirce’s major contribution to truth-theory is the introduction of an
element of firstness, or infinite potential (Fisch and Turquette 1966) through the
L-value, an alternative to the restrictive nature of ordinary truth-tests.
In analytic truth theory, there can only be a limited amount of outcomes to a
particular situation. For example, in the analytic analysis:
X T F
Not-X F T
As can be seen, only two outcomes are possible in the analytic framework;
when X is true, not-X is false, and vice-versa. A symbol is thus only true or only
false. This analysis completely cuts out the idea of firstness because analytic tradi-
tions are only concerned with the object and the word denoting that object. Concepts
of phenomenology or firstness, which encompass the whole of experience, are
utterly useless to the legal-analytic logician.
On the other hand, Peirce uses the L-value to expand the analysis further into the
realm of possibility rejected by analytic-legal analysis (Fisch and Turquette 1966):
X T F L
Not-X F T L
Here, Peirce’s introduction of the unknown introduces a third set of conse-

quences. If X is unknown, not-x must necessarily be unknown. The L-analysis of X
shows X as a sign with infinite possibility, rather than X as a symbol, with the only
possibility as truth or falsity. Additional meaning is derived when signs are com-
pared with symbols. Assume the following scenario when determining the truth of
the proposition “X and Y.” The possibility chart becomes:
X →, Y↓ T F L
T T F L
F F F F
L L F L
68 P.V. Fleet
It can be seen that the relationship of “X and Y” is dependent on the truth-values

of the components. When the truth-value of X is true, the relation of “X and Y” is
true only when the truth-value of Y is also true. This is the relationship between two
symbols, and the mechanical nature of applying symbols to relations is straightfor-
ward. When applying symbols to signs, however, the relation will also be unknown,
unless the known value defeats the relation. In this case, if X’s truth-value is true
and Y’s truth-value is unknown (thus making it a sign), then the relation “X and Y”
is also unknown. When X’s truth-value is false and Y’s truth-value is unknown, then
“X and Y” must be false because X is false. The falsity of X defeats the relation.
However, if the relation was “X or Y”, the chart would look very different:
X→, Y↓ T L F
T T L T
L L L L
F T L F
In this relation, the introduction of the L creates a situation where X may have a
false truth-value, but if that Y has an unknown truth-value, the relation “X or Y”
remains unknown.
Peirce’s expansion of the idea of truth as an unknown introduces a significant
amount of semiotic analysis to general discourse. It allows for the critical introduc-
tion of personal, intuitive experience to enter the realm of logical analysis. This
emotional experience is at the heart of Peirce’s conception of firstness (Everaert-
Desmedt 2006). Consider the example of an interpreter who has never seen colors
before and first experiences the color red. Whether or not an object is red would
have to be classified as Peirce’s “L” for that interpreter. It is only when the sign of
“red” is tied to that which is red that the classification can be moved to a “T” or an
“F.” Whether the object is red is not true or false independently of anything else; it
just “is” before tying it to an object. It is the judgment of the interpreter that creates
the true/false dichotomy, whose exclusivity is cherished in analytic philosophy. By
contrast, the semiotician understands that it is not the exclusivity of true and false
that creates meaning, but the unity of true and false in the “true-false”, which Peirce
expresses through the L-value (Fisch and Turquette 1966).
Peirce’s L-value allows for traits to exist in relation to each other such that the
sign is freed from the chains of symbolism. Consider that this individual has seen
red, but is now is confronted with his first conception of pure purple; that is, a color
that is fifty percent red and fifty percent blue. For the interpreter to initially respond
to purple as “red” would not be implausible, even though this would not be “true”
in the pure analytical sense. Peirce’s “L” does not limit the analysis of purple to
“red” or “not-red” like analytic philosophy does; it allows for the impression of
purple to be “red-blue”, to be both “red” and “not-red.” The interplay of “red” and
“not-red” allows purple to exist. Here the analytic experience severely limits our
fictional interpreter’s potential experience of purple by strictly assigning a “true” or
“false” value to whether or not it is red, whereas the semiotic analysis uses the
“unknown” element as a path to unify “red” and “not-red” to create the intuitive
impression of purple.
Peirce’s truth-theories play closely with the triadic relationship of signs. As

discussed earlier, anything can be a sign, yet a sign is not a thing. In terms of truth
theory, a sign originates as “L,” representing the unknown. Until a relation is made,
“L” can never be anything more than the unknown. When an idea is tied to an
object, like a word, image, or feeling the concepts of “true” or “false” arise.
However, the unknown allows for more flexibility than simply classifying a sym-
bol as true or false. It allows for that which is unclassified in some respect to be a
myriad of things, thus escaping Black’s objection. In contrast to the analytic
assumption of a 1:1 ratio between a symbol and its object, semiotics assumes an
∞:1 ratio, where the infinite potential of a sign is linked to the object. For instance,
a cup and a pot may share several characteristics: they are both hollow, they both
are circular, they both have an opening, they can both be made of clay, and so forth.
Until they are tied to ideas of “pot” or “glass”, the sign could be either. The inter-
pretant is established after the object is identified, which is the crux of the relation
“true” or “false” or “unknown.” Logical analysis only deals in symbolism, which
assumes that signs have only one interpretation. Semiotic outlooks arise in the
transient quality of the sign, which possesses infinite possibility. The ability of
semiotic truth-theory in describing the process by which signs in general discourse
acquire meaning contrasts strongly with the analytic-legal process.
3.4.3 Peirce’s Truth-Correspondence and Legal Discourse
Peircean truth-analysis allows for truth to be analyzed from a semiotic perspective

and expands meaning in ways that ordinary analytics cannot. Semiotics allows a
signs legal relation to exist, but that legal relation must assume all other relations
away in order to function. As described above, analytic analysis assumes a 1:1 ratio
among symbols. Semiotic analysis, through the L-value, assumes a ∞:1 ratio of
signs, and it is this infinite potential of signs that the law cannot allow itself to
accommodate.
Semiotic analysis can describe intangible legal facts that analytic analysis can-
not. Internal, personal responses cannot truly be classified as “true” or false” by an
outside observer. Instead, emotional qualities exist in relationship to a variety of
other factors, which the L-value acknowledges. General facts like consent cannot
exist as a simple 1:1 ratio because there is never such a thing as “consent” or “not-
consent.” Consent exists in relation to everything surrounding the circumstances,
such as the time of day, the individuals involved, the method by which consent was
supposedly given, and so forth: consent would be determined by the entire network
of conceivable relations. Therefore, any potential set of facts can be indicative of
consent, just like a sign, can be anything. Consent then arises from the ∞:1 ratio,
with the relationships being anything that is linked to “consent.”
Consider the Pennsylvania statute explored in the legal-analytic formula. In the
semiotic analysis, the definiteness of the symbols is reduced significantly. The rela-
tionship of all the factors is viewed in unity, not as exclusive factors. “Theft” would
70 P.V. Fleet
be regarded as “unlawfully takes-movable property-intent to deprive,” viewed as a

unity, not “unlawfully takes AND movable property AND with intent to deprive,” as
in the logical analysis. Individual elements like the “intent to deprive” would be
related to the other legal elements (the “motivation-emotion-background”) until the
complete web of relations is created, creating a more accurate exposition of “theft”.
The fact analysis would be conducted with each factor in relation to each other, not
an independent finding for each. Acknowledging the entire breadth of sign relation
within to the Pennsylvania definition of theft necessarily relegates “theft” to the
L-value. Concepts like “property”, “intent to deprive”, and “unlawfully takes”
always have elements of their opposite which drive their semiotic definition.
Semiotics does not demand intent or not-intent, as in analytic-legal analysis; it can
link the two to show the relationship that the two concepts can share. Exclusivity, as
such, is not required in a legal-semiotic analysis. The ∞:1 ratio, as maintained by the
L-value in semiotic truth, allows for legal discourse to acknowledge the potential of
sign-relations within its framework.
Legal discourse, however, could not conduct such an analysis without collapsing
upon itself. In law, facts must be narrowed to a particular interpretation such that they
may be applied clinically to the factors. General discourse shows every relation that
a sign may have, but legal discourse uses only a legal relation. If other relations a sign
could possess are acknowledged in legal discourse, the necessary self-reference of
the institution fails.
One example of how the law attempts limits signs to symbols is the recent United
States Supreme Court decision Citizens United v. Federal Election Commission
(Citizens United v. FEC & 558 U.S., 205.2010), which concerned the corporate
funding of political broadcasts in elections. In general discourse, a corporation is
thought of as an entity that exists apart from its shareholders and also as property
that is held in trust for the shareholders. The corporation exists both in relation to
the entity and in relation to property; in fact it exists as a semiotic “entity-property”
(Backer 2010, p. 16). The sign “corporation” exists through its relation to both con-
cepts, not just one. However, the majority in the Supreme Court eviscerated the
property-relation from the sign “corporation,” and declared that it was true that a
corporation was an “entity,” only self-referentially examining those legal facts that
supported the entity conception of a corporation. Using this conception, the Court
held that it was “true” that corporate funding of candidate broadcasts may not be
restricted under the First Amendment. The relation between “corporation” and
“entity” became the singular legal relation justifying the majority’s opinion, and all
other relations were ignored. The sign “corporation” is no longer a ∞:1 ratio sign
whose truth is indicated by the potentiality of the L-value. “Corporation” is now
merely a 1:1 ratio symbol of the entity, classified as “true” or “false.”
Legal truth, particularly in common law, is therefore created within a microcosm
of individual case law, where a singular interpretation of events is crystallized in the
opinion. The common law artificially denies the ∞:1 ratio and instead chooses to use
the 1:1 ratio in the legal fact-finding process. This is because the legal institution
desires a veneer of certainty into which Peirce’s L-value could never fit. The legal
institution paints itself as an arbiter of truth, rendering decisions that are absolute
and measured in order to maintain its power over the public. If legal opinions
acknowledged that factors leading to their conclusions were unknown, the institu-
tion would be effectively stripped of its control over the truth. The order that law
imposes upon the social structure breaks down in the face of the unknown. Therefore,
legal discourse must necessarily transmute general signs into legal symbols for the
sake of maintaining their power over the populace, and this process has extreme
consequences for the future semiotic meaning of those signs.
3.5 Conclusion: The Effects of Legal Discourse Upon

General Discourse
Law must necessarily restrict the semiotic potential of signs to singular interpretants
so the institution may function. The effects of transforming signs of the general dis-
course into the symbols of the legal process have lasting ramifications for general
discourse when the legal signs re-enter. The limited meaning of legal signs permeates
signs in general discourse, permanently and psychologically stunting the meaning of
those signs for those influenced by legal discourse. Lacan noted this dynamic in his
theory of the Master Discourse, where the master signifier dominates discourse by
imposing his view of meaning upon a secondary signifier. The significant issue
behind this, and especially for legal discourse, is whether general discourse, once
dominated by legal discourse, may regain its semiotic flexibility.
When legal discourse interprets the signs of the general discourse, those signs
become legal symbols in the minds of those subjected to the legal process. General
signs, when used to establish legal evidence, become by necessity legal terms
because they enter the institution. Once a ruling on a case is decided, those legal
terms pervade into general discourse. For example, in general discourse the idea of
“theft” can take on a number of connotations; it could simply be someone taking
something that is yours, it could be someone who simply wins something by chance,
and so forth. However, once the event called “theft” in the general discourse is
subjected to the legal process, like through the Pennsylvania statute above, the
meaning of “theft” is condensed into only one interpretation. Meaning is restricted
and once this ruling passes into the general discourse, the “theft” that at one time
held several meanings now only has one for the purposes of general discourse. Once
those privy to the ruling on theft return to their usual lives, their Peircean interpre-
tant of theft becomes narrowed. Later on, if someone were to take something the
legally influenced interpreter possessed, they would initially think of the term
“theft”, but this instinct would be silenced by the legal definition of “theft” such that
they think of the symbol “legal theft” instead of the sign “theft”.
This legal influence relates closely to Lacan’s psychoanalytic theory of the
Master Discourse (Unattributed 2007). In the Master Discourse, Lacan explores a
dynamic where a master signifier, who is a dominating party, imposes a version
of events upon a secondary signifier such that the secondary signifier’s version of
events becomes the master signifier’s version of events. Lacan compared this
discourse to the master dominating the slave, where the slave has no free will and
must accept the orders of the master without question, or else be subjected to the
72 P.V. Fleet
lash. Legal discourse proceeds very closely to this dynamic. If a perpetrator attempts
to put forth a conception of his crime that is different than that of the legal community,
his version will not be accepted and he will be punished.
In the common law, legal-master discourse, judges and lawyers are the most
significant master signifiers. Judges create symbols using analytic-legal discourse to
decide cases brought before them and punish those whose actions do not conform
to the rules of the legal institution. There is no choice of signification for parties
dominated by the judge; they must accept the singular interpretation he presents.
The lawyer also uses analytic-legal reasoning to compel the judge or jury to accept
their interpretation as the singular interpretation, guilty or not-guilty. However, they
cannot impose signification on a judge or a jury in the same way that a judge can;
their place as a master signifier lies in relation to the public and other lawyers. In
settlement negotiations or plea bargains, one lawyer attempts to influence the other
to accept his interpretation of symbols. Lawyers also use their institutional authority
as upholders of the law to influence non-lawyers to accept their interpretation of
reality; often times, the public is so dominated by the law that they will accept even
an informal legal account of events without question.
Although judges and lawyers wield institutional power over sign interpretation
that imposes severe limitations upon the general discourse, de-conditioning is
possible. As long as the interpreter recognizes the law as wielding institutional, not
actual, power over signs and that the law is forced to conform to its own autopoeitic
axioms, the interpreter is free to recognize legality as an interpretant of a sign and its
related object. This realization frees the interpreter from the master discourse between
the law and the citizenry that so often dominates society. Some commentators express
this realization as a basis for semiotic protest against political and legal institutions.
As Rosen so succinctly expressed:
Social justice (or at least a morally rich pluralism) depends not only on the autonomy of law
but also on the interdependencies of law and culture. Interdependence is normatively
required, at least in part, because not only must the law morally matter to a culturally het-
erogeneous population, but also the law ought to be able to speak to those whose claims it
does not currently recognize. (Rosen 1990, p. 517)
Even though the law cannot allow itself to recognize interpretants outside of its
institutional boundaries, the individual can. The law loses its sign-dominating
power over the individual if it is seen as an interpretant, not the interpretant.
Through the semiotic analysis of truth-theory, the individual finds that the truth is
always relative (that is, sign-relative) and not intrinsically linked to the declara-
tions of the powerful, whether that power is invested in a legal body or a natural
language. Perhaps the individual’s actions must conform to legal standards to avoid
punishment, but the mind does not.
References
Atkin, Albert. 2006. Peirce’s theory of signs. http://plato.stanford.edu/entries/peirce-semiotics/.

Accessed April 22, 2010.
Backer, Larry Cata. 2010. What is a corporation? The regulatory effects of difference. Conceptions
of Corporate Personality in American Constitutional Law in Citizens United v. FEC.
Black, M. 1948. The semantic definition of truth. Analysis 8(4): 49–63.
Broekman, Jan M. 2009. Firstness and phenomenology. In: Prospects of Legal Semiotics, Wagner
& Broekman [Eds] Springer 37–77.
Broekman, Jan M. 2010. The Roberta Kevelson seminar on law and semiotics course book, 45–59.
Carlisle: Penn State University, Dickinson School of Law.
Citizens United v. FEC, 558 U.S., 205. 2010.
Constitutional Convention. 1787. The United States Constitution. http://www.archives.gov/exhibits/
charters/constitution_transcript.html. Accessed April 26, 2010.
Everaert-Desmedt, Nicole. 2006. Peirce’s semiotics. http://www.signosemio.com/peirce/a_
semiotique.asp. Accessed April 22, 2010.
Fisch, M., and A. Turquette. 1966. Peirce’s triadic logic. Transactions of the Charles S. Peirce
Society 2: 71–85.
Hammer, Eric. 2007. Peirce’s logic. http://plato.stanford.edu/entries/peirce-logic/#TV. Accessed
April 22, 2010.
Hodges, Wilfred. 2006. Tarski’s truth definitions. http://plato.stanford. edu/entries/tarski-truth/.
Accessed April 24, 2010.
Kemerling, Garth. 2001. Correspondence theory of truth definition. Philosophy pages. http://
philosophypages. com/dy/c9.htm#corr. Accessed 22 April 2010.
Peirce, Charles Sanders. 1902. The essential Peirce, Vol. 2. Ed. The Peirce Edition Project in 1998.
Bloomington, IN: Indiana University Press,
Peirce, Charles Sanders. 1903. On phenomenology. In: The essential Pierce, 1998, p. 145.
Rosen, R.E. 1990. Law and human behavior. New York: Springer Press.
Shramko, Yaroslav and Heinrich Wansing. 2010. Truth values. http://plato.stanford.edu/entries/
truth-values/. Accessed April 24, 2010.
Tarski, A. 1944. The semantic conception of truth and the foundations of semantics. Philosophy
and Phenomenological Research 4: 341–376.
Unattributed. 2005. Julia Kristeva – introduction. http://www.signosemio. com/kristeva/a_kristeva.
asp. Accessed April 22, 2010.
Unattributed. 2007. Seminar XVII. http://nosubject.com/Seminar_XVII. Accessed April 23, 2010.
Wittgenstein, Ludwig. 1958. Tractatus Logico-Philosophicus. Oxford: Blackwell.
Part II
History, Law and Semiotics
Introduction
Jan M. Broekman
In his first paragraph offering preliminary thoughts on semiotics and history, William
Pencak outlines dimensions of research that are foundational for understanding the
role of semiotics in the construction of historical knowledge. This chapter does not
focus on the wealth and complexity of that global theme, but offers extensive insight
in a particular aspect of history as an element of positioning legal semiotics in a law
school’s legal education. That particular aspect is the historical appreciation of first
teachings of law. The relevant background thesis is, that the concept of law changes
semiotically when it becomes the subject of teaching.
The two themes are intertwined, and can be found in the historical considerations
of Part II. They pertain to Butler’s presentation of the law teaching of John Reed
(Carlisle, Pennsylvania) even before the School of Law had become an institutional
framework for these teachings, as well as the different and sometimes politically
conflicting teachings of St. George Tucker (Virginia) and Wilson James
(Pennsylvania) in 1790. The three: Reed, Tucker and James, refer intensively to
Blackstone’s Commentaries on the Laws of England, aware of its continuing impor-
tance after the American Revolution. Both Tucker and James exhibited a sense of
excitement about the fact that they were explaining, for the first time, something new
and wonderful under the sun. Law, having been made the subject of teaching,
becomes distinguished from the focus on practical dimensions of law as exhibited
in law offices and on the bench. Reading the texts in this Part leads, as it did during
the Seminar and its Round Tables, to an experience of how legal education makes
and continuously changes meanings in law.
J.M. Broekman ()

email: jmb56@dsl.psu.edu
Chapter 4
History and Semiotics: Preliminary Thoughts
William A. Pencak
All historians are semioticians: from an infinite number of occurrences, they select
those, which they consider meaningful, hoping to convey the importance of that
interpretation to their readers. Even positivists who say history is just a bunch of
facts must decide what facts, or the compilers of a chronicle have to choose what to
include, be it Anglo-Saxon kings or the earned run averages of major league baseball
pitchers.
This is not particularly interesting so far. Where it becomes interesting is when
historians investigate with some care and sophistication the systems of symboliza-
tion humankind has developed to give meaning to its existence. Hegel tells us, if not
historically correctly, then at least as the absolute rock-bottom element of human
existence, that civilization begins with a master commanding a slave. The leisure to
govern, worship, write, paint, and design would not be available to the master if the
slave did not exist.
Indeed, an interesting school of historical interpretation, the Marxist, makes this
rock-bottom the fundamental rule of history that matters: ‘all history is the history of
class struggles.’ And indeed, by excluding many, many facts it can work out that way.
Karl Marx’s Eighteenth Brumaire of Louis Napoleon is a desperate effort to shoehorn a
crazy quilt of political allegiances into an episode in the war between economic classes:
those who refuse to behave the way they should are the ‘Lumpenproletariat’ – traitors to
their class. Yet there are occasions – for instance, labor strikes – where class conflict
is indeed the most important factor.
They way to judge a historical interpretation is to look at what it leaves in and
what it leaves out. An interpretation of the twentieth-century that omits the person-
ality and behavior of Joseph Stalin and Adolf Hitler, interpreting them simply as
products of their time, is simply inadequate because there were no other products
like them. Yet to fail to acknowledge that such extreme personalities would be
W.A. Pencak (*)

History and Department of Jewish Studies, Penn State University, University Park, PA, USA
e-mail: wap1@psu.edu
78 W.A. Pencak
forced to stifle themselves or go to a prison or a psychiatric institution in less

troubled times is also to miss the boat. The historian does not simply identify symbols
(leaders, in this case) but weighs the elements that empower or disable them.
One important historian who developed a semiotic approach to history was Carl
Becker (1871–1945). Becker’s key insight appears in his book The Heavenly City of
the Eighteenth-Century Philosophers, in which he argues that these harsh critics of
medieval Christianity simply brought Utopia down to earth in some ideal, future
society. Each of these eras had its own ‘magic words’ or ‘code’ – ‘certain unobtrusive
words with uncertain meanings that are permitted to slip off the tongue without fear
and without research; words which, having from constant repetition lost their
metaphysical significance, are unconsciously mistaken for objective realities’ (p. 47 in
Becker (1932)). God, sin, heaven, grace, and salvation were the magic words of the
Christians, whereas during the Enlightenment ‘the words without which no enlight-
ened person could reach a restful conclusion were nature, natural law, first cause,
reason, sentiment, humanity, perfectibility’ (Becker 1932, p. 47). Becker defined his
own early twentieth-century world as ‘continuous flux’ a ‘process of waste and decay’,
an ‘accident’ – humanity was ‘carelessly thrown up between two ice ages by the same
forces that rust iron and ripen corn’ (Becker 1932, p. 12–15). In large part, the historian
investigates how people use and challenge contemporary symbolisms through
conformist or rebellious behavior.
Charles Sanders Peirce (1839–1914) anticipated Becker’s way of looking at the
world. His theory of history, neglected in his own lifetime as Social Darwinists
believed, that not only humanity, but certain ‘races’, ‘nations’, and individuals had
succeeded because they were the ‘fittest’, the best mentally, physically, and morally.
History had ‘evolved’ – for instance, the liberty arose in the Anglo-Saxon forests and
communities and grew throughout British history until the nearly-perfect society of
the late nineteenth-century had emerged. Peirce would have none of this. History
erupted – cataclysmically. A certain nation, moral or religious code, international or
economic system would function reasonably well for a period, and then, at some
point, had to collapse. In the period of chaos and uncertainty that followed, new,
unforeseen possibilities arose until they, too, settled down to a new era with its own
codes and customs. At these times, people would have more freedom to mold the
future than during periods where a general consensus prevailed. Chance, uncertainty,
and free will thus played key roles in history (Pencak 1991).
Twentieth-century thinkers followed Peirce’s lead without being aware of his
innovations. Thomas Kuhn (1922–1996) would restate the same approach to history
in The Structure of Scientific Revolutions (Kuhn 1962). Michel Foucault (1926–1984)
would term these codes and conducts the ‘ēpistēme’s’ of a particular age, and argue
that while establishing cause and effect is futile, itself a reflection of a particular
world-view, it is possible to identify the symbols by which people define themselves.
Unlike Peirce, who stresses the opportunity for freedom, any society for Foucault
constitutes a system of oppression, although freedom is possible where codes and
institutions are inconsistent, incomplete, or incompetent (Pencak 1995).
The most systematic attempt to develop a philosophy that considers the symbol-
isms by which humanity has represented itself throughout history as the proper
4 History and Semiotics: Preliminary Thoughts 79
subject of historical study has been undertaken by Eric Voegelin (1901–1985).

Voegelin maintains that human beings find themselves faced with hardship and
mortality, yet create symbols of the natural, social, and divine worlds so that it
makes sense. To realize their full humanity, Voegelin argues, people must be able
to explain both the independence and interdependence of these worlds. None of
these realms of experienced can be privileged – a society that, say, neglects religion
and morality, or an economic system that works, will find itself paying the price.
To claim a particular society is ideal or – believing Heaven can be constructed on
earth – will lead its adherents to persecute others who disagree. Voegelin’s impres-
sive life work traced the symbolizations used by different societies throughout
history and why some proved more successful in leading to a better society that
others (Pencak 1993).
John Lukacs (b. 1924), one of the finest professional historians of the late twen-
tieth century, known mostly for his work on World War II, has provided the mod-
ern, theoretical underpinnings to a semiotic approach to history with Historical
Consciousness; or, The Remembered Past (Lukacs 1968). He does not use the
semiotic jargon or theory, having written this book before semiotics came to public
attention in the 1970s. He argues that historical thinking is a different form of
thinking from both the scientific and the literary (is thus neither art nor science, as
some have claimed), and that those who pretend scientific history can be exact are
at odds with modern science, which is built on uncertainty and probability. The
historian’s task is to bring the past to life through her ability to present the symbols
and struggles of past ages in a coherent, well-written format so that it will strike
readers as a grand moral pageant, filled with paradox, good, evil, tragedy, and
triumph which will existentially become important to a present audience.
Most historians, of course, do not develop an interpretation of the entire course of
human history. They look at particular events, people, and periods. Many of them are
undertaking semiotic analyses without even being aware of it. For instance, Lester
C. Olson has written Emblems of Community in the American Revolutionary Era:
A Study in Rhetorical Iconography (Olson 1991). It examines flags, artwork, songs,
uniforms, currency, and other media that persuaded people to support, or opposed,
the Revolution. Joan B. Landes, after attending the Semiotic Institute at the University
of Toronto, enriched her book on Women and the Public Sphere in the Age of the
French Revolution by looking at the way women were depicting in art, music, and
public orations to show how their role in the Revolution first expanded and then
contracted (Landes 1988). Rather than repeat my past scholarship, I refer the reader
to two essays for a larger sample of historical works that employ a semiotic approach
(Pencak 1995, 1998).
References
Becker, Carl. 1932. The heavenly city of the eighteenth-century philosophers. New Haven: Yale
University Press.
Kuhn, Thomas. 1962. The structure of scientific revolutions. Chicago: University of Chicago Press.
80 W.A. Pencak
Landes, Joan. 1988. Women and the public sphere in the age of the French revolution. Ithaca:
Cornell University Press.
Lukacs, J. 1968. Historical consciousness; or, the remembered past. New York: Harper & Row.
Olson, Lester C. 1991. Emblems of community in the American revolutionary era: A study in
rhetorical iconography. Washington, DC: Smithsonian Institute Press.
Pencak, William. 1991. Charles Peirce and the semiotics of history. Semiotica 83(3/4): 311–332.
Pencak, William. 1993. Eric Voegelin’s semiotics of history. In History, signing in: Studies in
history and semiotics, ed. William Pencak, 109–131. New York: Peter Lang.
Pencak, William. 1995. Foucault stoned: insanity reconsidered, and history. Rethinking History
1: 55–75.
Pencak, William. 1998. History and semiotics. In Hi-fives: A trip to semiotics, ed. R. Kevelson,
103–123. New York: Peter Lang.
Chapter 5
Teaching Law and Semiotic Sensitivity
In the Life and Career of John Reed,
Founder of the Dickinson School of Law
William E. Butler
Long before the concept of semiotics was introduced into the context of law and legal
discourse, the Honorable Professor John Reed, LL.D., focused in his law lectures on
what legal meaning is, how future lawyers should have regard to legal meaning in their
own practice, and, above all, how meaning emerges in law. His socio-political envi-
ronment was, to be sure, very different from that of today. In his analysis of the rela-
tionship between the law of nations and the law of the United States, with particular
reference to Pennsylvania, he articulated the process of how legal meanings develop.
In so doing he pointed to a format of sensitivity for the emergence of legal meanings,
explaining how States and governments have no other existence but through the people
of whom they are composed and represent. This pre-semiotic insight guided one of
the earliest efforts to establish an institution of legal education, transposing the con-
cept of law as a positive observable fact to law as an attitude that creates meaning.
In front of Trickett Hall at the Dickinson School of Law, Pennsylvania State
University, in Carlisle stands a marker erected by the Pennsylvania Historical and
Museum Commission which reads in relevant part: “Dickinson School of Law –
Oldest law school in Pennsylvania; founded in 1834 by the Honorable John Reed,
eminent jurist and author of ‘Pennsylvania Blackstone’”. The marker rightly draws
a linkage between the founder of Dickinson School of Law and the monumental
introduction to the laws of Pennsylvania which most are unaware of, including
bibliographers (Morris Cohen 1998, Vol. II, p. 235) and the antiquarian book deal-
ers who from time to time are able to offer a copy of what has become quite a scarce
book. Cohen notes Reed’s judicial role and laconically says: “He also taught law at
Dickinson College” There is every reason to suppose that the two enterprises were
linked, that Judge John Reed wrote his massive treatise with the founding of a law
school in mind – that he intended not only to create an institution in which the
W.E. Butler (*)

International Institute for Conflict Prevention and Resolution, Washington, DC, USA
John Edward Fowler Distinguished Professor of Law and International Affairs
e-mail: web15@psu.edu
82 W.E. Butler
learned science of law could be taught in the Commonwealth of Pennsylvania, but

that he produced a first-class ‘textbook’ for his students.
Reed’s treatise is rather more than a ‘textbook’ written by an academic jurist,
however. Beginning law professor he may have been, self-anointed and self-
appointed to this calling, but his career as a law teacher was preceded by experience
as a private legal practitioner, legislator, public official, and judge that could not fail
to make him aware of the tension between conceptualizing law for instructional
purposes and applying law to individual cases brought by clients. This “tension” he
will have been aware of not merely as a law professor and dean teaching individual
courses in the law school curriculum, but as the founder of a law school dedicated
entirely to graduating young men (and eventually, young women) qualified to
practice law and to assume duties of public service.
John Reed deserves to be remembered as an important regional judge who by
vision and application became one of the foremost legal educators and commentators
on the law of Pennsylvania during its post-revolutionary formative era.
John Reed was born in Millerstown, Pennsylvania, on 5 June 1786, the son of
General William Reed, who distinguished himself during the Revolutionary War
and in 1790 was a member of the Convention from York County, which in that same
year framed the first Constitution of the Commonwealth of Pennsylvania. William
Reed later served as a Senator in the State Legislature, representing York and Adams
counties in 1806.
In a remarkably concise and self-effacing set of Reminiscences of his life, written
for his children (Landis 1934, pp. XXXVIII, 161–163; Laub 1983, p. 11), (Archive,
Dickinson College, at I Vale, Mary 1947–57). Reed relates that after six years near
Millerstown his father exchanged the family tract for a larger plot of land on Tom’s
Creek, near the Maryland line and the family migrated there in 1792. He remained
on the farm until the age of seventeen, when he was sent together with his brother
William to Grammar School under the care of the Rev. Mr. Dobbin at Gettysburg.
He attended Dickinson College with his brother, graduating with the class of 1806,
and then the two of them studied law under the supervision of William Maxwell,
Esq., of Gettysburg. There are conflicting accounts in Dickinson College sources as
to whether John Reed actually graduated or not from the College. His own memoir
says that he did, and that remains the best evidence to date contemporary to his
period. In 1809 he was admitted to the Bar and “settled down for practice in
Greensburg, Westmoreland County” on 1 April of that year. For several years he
practiced in the counties of Somerset, Indiana, Armstrong, and Westmoreland,
acting as prosecuting Attorney in the latter two counties.
He married Elizabeth Guthrie in 1812. She died in 1817 leaving one son, James
G. Reed. Two other children died within a few weeks of their mother. In 1815 John
Reed was elected to the Senate of Pennsylvania. He served for four years and then
declined re-election. For a brief period in 1818 he performed the duties of Deputy
Attorney General of the Commonwealth of Pennsylvania. In December 1819 he
remarried, on this occasion Mrs. Sarah Ann Read of Greensburg, Pennsylvania.
His judicial career commenced on 10 July 1820, when he was appointed the
President Judge of the Ninth Judicial District, which in those days comprised the
5 Teaching Law and Semiotic Sensitivity... 83
present counties of Cumberland, Franklin, Adams, and Perry. The appointment, he

said, was “unsolicited and unexpected”. He remained in that office until February
1839, when a new Constitution of Pennsylvania limited judicial terms to ten years.
In April 1821 he moved with his family to Carlisle and resided in that community
for the remainder of his life. When his judgeship was abolished, Reed returned to
the practice of law in the Cumberland, Adams, Perry, and Juniata counties and to the
Law School, which he had founded. The Dickinson College awarded Judge Reed
the degree of M.A. (honoris causa) and Washington College in Washington,
Pennsylvania conferred the LL.D. (honoris causa) in 1830. John Reed died at
Carlisle on 19 January 1850 in his sixty-fourth year, as the Morning Edition of The
New York Herald 29 January 1850, p. 4, col. 3 reported.
This rather barebones account of his life, drawn from his Reminiscences, omits
his contributions to legal scholarship and to legal education and a not unexciting
career as judge and legal practitioner. His appointment to the bench was not without
controversy. On 13 July 1820 the American Volunteer reported that “John Reed, esq.
of Westmoreland County, to be president judge of the ninth judicial district, composed
of the counties of Cumberland, Franklin, and Adams, in the room of Charles Smith,
esq. resigned. If we are not much mistaken, the appointment of John Reed, esq. as
president judge will do honor to [Governor] Wm. Findlay, and to the bench. He will
be found to possess energy and firmness, an acuteness of perception, and sufficient
legal acquirements to decide promptly” (The American volunteer 1820a, p. 1). A week
later the same newspaper reacted with outrage to criticism of the appointment: “No
sooner is the appointment of Judge Reed announced then both he and the Governor
are attacked by the fault finding ‘junior’ editor of the misnamed “Carlisle Republican”.
This is what we anticipated knowing that the Governor could not appoint any man
whatsoever to this station with whom the grumbletonians would appear to be satisfied.
It is acknowledged by both Federalists and Democrats that Mr. Reed is a gentleman of
correct deportment, strict integrity and indefatigable industry” (The American
volunteer 1820a, p. 3). By the next issue the editors of the “The Carlisle Republican”
(1820, p. 2) writing — “We now, assure Mr. Reed, and all his friends, and the public
generally, whether Federalists, Patent republicans, Democrats, Old School reformers,
Corruptionists, anti Corruptionists, or by whatever other name, title, sect, description
or designation, they may be known, or called, that our anima diversions neither were
intended to injure his character, wound his feelings, or prejudice him in the public
estimation, either as a man, a Politician, a Lawyer, or a Judge, or even a dancer” were
reported to have “acknowledged their error” (The American volunteer 1820a, p. 3).
The Carlisle Republican (1820, p. 2) returned to the fray: “The editors of the Volunteer
seem so bent on making this gentleman a ‘conspicuous’ character, that they are deter-
mined, if they cannot make him shine on the bench, they will make him conspicuous
in the newspapers; or if they cannot make him figure as a Judge, they will at least make
him ‘cut a figure’ in some way or other, or in some situation or other, should it even
be in a Ball-room”.
In 1833 Judge Reed purchased for the sum of $600 the land tract at the corner of
what is now High Street and S. West Street. He built there one of the finest homes
in Carlisle for the residence of his family and to accommodate the law school that
84 W.E. Butler
he had determined to establish. In the afternoon of 6 November 1833 Charles

Coatesworth Rawn, called to the Bar in Dauphin County in 1831, strolled by the
Reed home to look at “… a very singularly constructed house about being built by
Judge Reed” (Historical Society of Dauphin County 1921, #4, Book 4, 9/25/33-1/2/34,
6–4). The house was sufficiently completed for law school lectures to commence
on 1 April 1834. It stands today with extensive additions and refurbishment as
the home of the President of Dickinson College. The additions were undertaken by
the Rev. Dr. George Reed, who served as President of both Dickinson College
(1889–1911) and of the reconstituted Dickinson School of Law (1890–1911).
He and Judge Reed were not related.
What impelled Reed to write his treatise on the law of Pennsylvania and to
establish the first law school in Pennsylvania the mists of history do not disclose.
His interest in higher education was undoubted. From 1821 to 1828 he served as a
Trustee of Dickinson College, during which time he had acted as a member of an
Executive Committee of the trustees charged with preparing a plan for the general
development of that College. At the 1830 commencement ceremony of Dickinson
College Reed took part in a debate in which he supported the proposition: “Would
it be expedient for the United States to establish a national university?”(Sellers
1973, pp. 176, 185).
Plainly Reed had flourished as a practitioner and judge, for he published
Pennsylvania Blackstone at his own expense in 1831 and financed the construction
of a new home with sufficient space to accommodate his educational enterprise.
How many years were required to write his treatise we know not, but the two enter-
prises together, the book and the law school, suggest a master plan had been con-
ceived at some point during his earlier years. Law schools existed at William and
Mary College (Virginia), Transylvania University (Kentucky), Harvard University
(Massachusetts), Yale University (Connecticut), and the University of Virginia,
with episodic but relatively short-lived experiments at the University of
Pennsylvania, Columbia (New York), and the University of Maryland and George
Washington University (then Columbian College). There was also discussion of a
law school at Princeton University which came to naught (Reed 1921). Although
not the only member of the judiciary to advance legal education in his day, he was
among a select band of farseeing individuals to whom the modern generation owes
a considerable debt.
Perhaps by serendipity it transpired that Dickinson College, chartered in 1783, was on the
eve of its fiftieth anniversary destitute and temporarily closed. A new Board of Trustees
formed on 6 June 1833 had completed the transfer of the institution from Presbyterian to
Methodist control. Two days later the Trustees found themselves at their first meeting with
a formal written proposal from Judge Reed to establish a law school that would have a
“nominal connection with the College” (Hitchler 1934 148). The Letter has been widely
published in various accounts of Dickinson College and the Dickinson School of Law. The
original letter, now in fragile condition, is held in the Law School Archives. Within not
more than one hour of consideration, the Trustees resolved that “… a professorship of law
be recognized by the Board of Trustees in connection with the college …”, … that the
“department be under his entire super-intendency and control …”, [that] “this professor is
not to be considered as a member of the Faculty of the college”, That upon the termination
of a regular course of study and a favorable testimonial of the professor, for the time being,
an appropriate diploma will be granted by the Faculty of Dickinson College … it being
understood there will be no expense to the college arising out of the establishment herein
provided for” (Hitchler 1934 148–149). This resolution having been adopted unanimously,
Judge Reed was then, also unanimously, elected the “Professor of Law in connection with
Dickinson College”. For specialists in such historical data, we further mention, that in
reporting, the Trustees meeting on 11 June 1833, the Secretary of the Board, Charles B.
Penrose, mentioned how the Hon. John Reed had been elected “Professor of Law of
Dickinson College” (Hazard’s Register of Pennsylvania 1833a). The inaugural address of
the Rev. J. P. Durbin, delivered in Carlisle upon the reopening of Dickinson College on 10
September 1834, mentioned the “Law Professorship” and said that “this department” is
expected ”to open the ensuing spring”. It had in fact already commenced operation on 1
April 1834. International law, the general principles of law, and the constitutions of govern-
ments, particularly our own, were the subjects of Judge Reed’s lectures. The address is
printed in (Hazard’s Register of Pennsylvania 1834). The Rev. Durbin simply extracted the
sentences from a Minute of the Board of Trustees without editing the text. This becomes
evident from the report in Hazard’s Register of Pennsylvania (1833b).
Although the pressures of the bench and practice from time to time gave Judge
Reed occasion to consider whether he should resign his position, he remained in
post until his death in 1850, whereupon it proved impossible to find a suitable
replacement and the Dickinson School of Law experienced its own period of
abeyance for some years.
5.1 The Pennsylvania Blackstone
In December 1830 readers of the Carlisle literary journal were advised that “there is
now in the Carlisle press and will shortly appear, ‘A Pennsylvania Blackstone,’
being a modification of the Commentaries of Sir William Blackstone, so altered as
to present an elementary exposition of the Lawis of Pennsylvania, common and
statute, with a short notice of the judiciary of the United States, in two volumes …”
(Reed 1831a, p. 189). By July 1831 the treatise was ready, enlarged to three vol-
umes, “for delivery to subscribers and others” at $10 the set. “From a cursory glance
at its contents, we cannot doubt but that this commentary will be of real value not
only to the student of law, but to all who are agents in its administration; and indi-
viduals whose concerns are extensive and transactions important, will do well to
peruse it, as it may save them from suits which consume both their time and their
money” (Reed 1831a, p. 189). Although no list of subscribers accompanies the
book, the local bookshop in Carlisle operated by James Loudon advertised on 4 July
1831 the availability of the book for subscribers and described itself as such (The
Carlisle Herald 1831, p. 1). Other local press reprinted the notice of publication
from the Messenger (The American volunteer, 1831, 21 July, p. 1).
It is hardly surprising that John Reed should have chosen Sir William
Blackstone’s (1723–80) Commentaries on the Laws of England as his point of
departure for an exposition on the laws of Pennsylvania. First printed at Oxford in
four large volumes between 1765 and 1769, a decade or so prior to the American
86 W.E. Butler
Revolution, the Commentaries professed intention was to introduce the English

gentleman to the science of law. Composed in an elegant style rarely if ever seen in
earlier legal works, the text was directed at the student, the layman, the legal
practitioner, and even the jurist. The method of exposition was Pandectian – from
the general to the specific – and historical, from the past to the present. The treatise
even included the criminal law (“public wrongs”).
Demand was remarkable by any standard. A large four-volume work, magnifi-
cently printed with wide margins, was not inexpensive, yet more than 1,000 sets of
the Oxford edition had been sold in the United States alone by 1771, prompting the
Philadelphia printer Robert Bell to offer a local edition (at a savings of seven pounds
sterling over the price delivered from England). Bell was astonished to receive more
than 1,500 orders from throughout the colonies (Nolan 1976, LI. 731–768 at 737).
As time passed, American lawyers made Blackstone their own, subsequent edi-
tions containing anti-monarchical annotations or references to American judicial
practice in addition to or in place of English. In 1803 St. George Tucker (1752–1827)
of Virginia produced what became for many years the preferred version on the
American market and certainly that enjoying currency when John Reed was learn-
ing the law in Pennsylvania and preparing to write his own edition. It is believed that
no less than 5,000 copies of the first Tucker edition were sold in the United States
by subscription. (See Receipt and Note from Birch and Small to St. George Tucker,
22 February 1803, Tucker-Coleman Collection, Earl Gregg Swem Library, College
of William and Mary, Williamsburg, Virginia, brought to our attention by C. E.
Klafter, Boston University, via D. W. Stowell, Director and Editor, The Papers of
Abraham Lincoln, Springfield, Illinois).
It may be too, that Reed was influenced by a fellow judge based in Carlisle: the
jurist and novelist Hugh Henry Brackenridge (1748–1816). In his Law Miscellanies
Brackenridge declared his original intention to edit a Pennsylvania Blackstone in
the manner of St. George Tucker’s edition of the Commentaries based on Virginia
law and practice. In the event, he did not succeed in doing so, although he left
several works on the law. Brackenridge was a member of the Pennsylvania
Supreme Court from 1799 who chose to publish a number of his works in Carlisle.
His “Law Miscellanies: containing an Introduction to the Study of the Law; notes
on Blackstone’s Commentaries, chewing the Variations of the Law of Pennsylvania
from the Law of England, and what Acts of Assembly might require to be repealed
or modified; observations of Smith’s edition of the laws of Pennsylvania; strictures
on decisions of the Supreme Court of the United States, and on certain Acts of
Congress, with some law cases, and a variety of other matters, chiefly original”
appeared at Philadelphia in 1813 or 1814, but was printed by Alexander and Phillips
in Carlisle for the Philadelphia publisher. Brackenridge had died before Reed
moved to Carlisle.
The extent to which, why, and where John Reed produced his own work based on
Blackstone rather than simply replicated Blackstone must be the subject of a separate
study. We do not know which edition or version of Blackstone he used. Since he
complained in his Preface to this work that “… recent editions are incumbered with
a distracting amount of notes and references” (p. iv), perhaps he relied upon the first
or an early edition without editorial emendations. His own changes in the text are
unapologetically substantial. He was “… obliged to take great liberties with the text,
in altering, leaving out, and supplying, as the occasion seemed to require”.
Blackstone’s Commentaries had become by his time, sixty-one years after its first
appearance, “… public property; dedicated to public use; and subject to such alterations,
modifications, and additions, as the whole purpose in view required” (p. v).
Reed thus produces not a version of Blackstone’s Commentaries, but an original
work of comparative legal scholarship in which the law and legal developments of a
republican commonwealth are superimposed upon and injected into the intellectual
legal bedrock from which they originated. This is no mean achievement, and the
achievement is realized in a lucid style, elegant in its own way and more comprehen-
sible for having departed from the Enlightenment prose in which Blackstone so
excelled. Where Reed reproduces Blackstone’s text, he succeeds by context and in
his own subsequent interjections in translating Blackstone’s Enlightenment intellect
into the more prosaic but more comprehensible American vernacular.
Measuring the intellectual influence of Reed’s treatise is problematic. The size of the
original print run is unknown; there is no evidence of additional printings. There certainly
were no further editions. One may presume that students acquired the book, and one may
assume that the book comprised the essence of his lectures in his own Dickinson School of
Law. Although there is no record of sales, the number of surviving copies in libraries
suggests that the book is uncommon. Of the twenty-five or so copies recorded, some are
microforms, and the title is difficult to find in the antiquarian book trade. In addition to the
OCLC recorded copies, the Cumberland County Historical Society possesses a set, volume
two of which bears a fragment of John Reed’s autograph signature, possibly part of a pre-
sentation inscription. A set was sold in November 2005 for $2000 by an antiquarian book
dealer to a private individual, and at least two other sets are known to be in private collec-
tions. The Dickinson School of Law has the copy which belonged to the former Dean,
Walter Harrison Hitchler (1883–1959) and bears his rubber-stamp exlibris.
Reed’s personal library was apparently dispersed after his death, and with the
temporary closure of the Law School whatever books were held for the students,
whether Reed’s personal property or not, also disappeared. The books apparently
did not become part of the Dickinson College Library.
The United States Supreme Court reported opinions contain a citation to Reed’s
treatise on one occasion for the proposition that “In Pennsylvania, the English
mortmain acts are in full force”, as one reads in George Runyan, Plaintiff in Error, vs.
The Lessee of John G. Coster and Thomas K. Mercien, who survived John Hone,
Defendant in Error (United States Supreme Court Reports 1840, pp. 122–132). The
reference to Reed’s work was actually made by C. J. Ingersoll, attorney for the plain-
tiff in error. The book also was cited in a report prepared by the Commissioners
Appointed to Revise the Code of Pennsylvania, which referred to it as a “recent valu-
able edition of Blackstone’s commentaries” (Hazard’s Register of Pennsylvania 1832,
p. 214). There were evidently no reviews of the book other than announcements and
advertisements in the local Carlisle press. Marvin seems to be correct in saying during
the twilight years of Reed’s life: “… the work is a medley of English, federal, and
local law, that never received much approbation from the profession in Pennsylvania,
and is probably not known outside of the state” (Marvin 1847, p. 123).
88 W.E. Butler
That the book enjoyed a short press run may be indicated by another circumstance.
On or about 31 December 1847 a young man in New Berlin, Union County,
Pennsylvania purchased a blank ‘copybook’ bound in half calf for the purpose of
taking notes on his reading as part of his studies for the Bar and, who knows, perhaps
fulfilling a New Year’s resolution. On the back endpaper he recorded 18 titles of
works to be read, among them: “Chitty’s Blackstone 2 Vol.”; “Penna. Blackstone.
3 Vol.”, etc. The first page records the volume to be the “Common-place Book of Davis
B. Kurtz” and is dated 1 January 1848. There follows Kurtz’s précis of “Pennsylvania
Blackstone” set out in a clear hand on 242 foolscap pages, Now known as the
“Wedgwood Manuscript”, the volume has been given to the Dickinson School of Law
Library, where it may be consulted. One may speculate why Davis Brook Kurtz
(1826–1906), a leading member of the Lawrence County bar in Pennsylvania and
Vice-President of the National Bank of Lawrence County where he represented
railroad and business interests and had accumulated property estimated at one million
dollars at the time of his death, should have troubled to painstakingly summarize
Reed’s massive treatise. Known, it seems, as the “Nestor” of the Lawrence County
Bar, it may be simply that Kurtz derived pleasure from composing “chronicles” based
on diverse sources. John Reed was alive and teaching in his law school at this time, so
that if the book were still in print, Kurtz should have had little trouble in arranging to
purchase a copy. Perhaps, indeed, he did purchase a copy and simply used the
Commonplace book as a study device. Kurtz was admitted to the bar on 7 January
1850. But it cannot be excluded that Reed’s book was, sixteen years on, out of print
and available only in the second-hand market. In either case, the book was still required
reading by those seeking admission to the Pennsylvania profession and possibly not
readily obtainable.
There is, however, another dimension of intellectual impact founded in conjecture
and rumor. Precisely when and where the rumor originated has not been traced. The
first mention of the rumor identified to date originates in the history of the Dickinson
School of Law: “An unsubstantiated and unconfirmed rumor claims this [Reed’s
Pennsylvania Blackstone] to be the ‘Blackstone’ which Abraham Lincoln studied in
preparation for the Bar” (Laub 1983, p. 11, Fn. 5) (This is the Sesquicentennial Edition
of the history; the rumor also was reported in the 1976 edition of the same title, p. 5.)
In the past three decades Lincoln Studies have advanced considerably. Most
Lincoln specialists are unaware of the rumor; none can confirm it, but neither can it
be conclusively disproved. In Lincoln’s day, as in John Reed’s, most lawyers
“learned the law” by finding an established lawyer willing to take them in to “read”
law and learn by observation. John Reed had done precisely that upon graduating
from Dickinson College in 1806. Lincoln is believed to have begun reading law
books in the same year during which Reed published his Pennsylvania Blackstone,
that is, 1831 and based on his reading even began to draft legal documents for
friends and neighbors. By 1834, the same year that Reed’s new law school com-
menced operations, Lincoln had determined to pursue the law as a profession. It is
accepted that “Lincoln read more than Blackstone’s Commentaries, but not much
more” (Dirck 2007, pp. 16–17; Steiner 2006, p. 32). Other versions of the story are
that Lincoln bought an “old copy of Blackstone” at auction. This version enjoys a
certain currency because William Dean Howells, the author of a campaign biography
of Lincoln in 1860, showed the proofs of this account to Lincoln and it passed
Lincoln’s scrutiny without correction or emendation.
No one contests that Lincoln studied Blackstone, probably primarily Blackstone.
The question is whose edition and where did he acquire or consult a copy. What
seems to be the preferred version is recounted by Lincoln’s legal biographer: Lincoln
“… remarked that the best stroke of business he ever did in the grocery line was
when he bought an old barrel from an immigrant for fifty cents and discovered
under some rubbish at the bottom a complete set of Blackstone’s Commentaries.
That was a red-letter day in his life, and we have his own word for it that he literally
devoured the volumes … if Lincoln’s choice of a profession must be attributed to a
law-book, no more plausible selection than Blackstone’s Commentaries could
possibly be made”(Hill 1906, p. 50; Ogden 1932, p. 328; Steiner 2010, pp. 1302–1309).
Blackstone is a four-volume work, so the waters are muddied even more by the
reference in the literature to a “… two-volume copy of Blackstone’s Commentaries.
Whether the old immigrant was passing through New Salem, Illinois, in a wagon
fresh out of Carlisle, Pennsylvania, containing the just-published edition of Reed’s
Pennsylvania Blackstone in three volumes or a four-volume edition edited by
another, or even an early eighteenth-century printing of Blackstone pristine has so
far not been definitively established.
5.2 The Carlisle Printer and Publisher
Reed’s Pennsylvania Blackstone is a milestone in yet another respect: it is by far

the largest work printed in Carlisle, Pennsylvania during the first half-century of
printing in that town (29 The printer, George Fleming (1800–65), undertook the
task a few hundred yards away from where Reed built his home (and Law School
in the basement) in 1833, for the printing house was accommodated in the back of
the old court house that eventually burned to the ground in 1847.
Fleming was born in Westmoreland County (now Armstrong County), Pennsylvania
(Griswell 2003). He came to Carlisle to begin his career as a printer in 1816. His
mother’s brother, George Phillips (d. 1824), was active in publishing the Carlisle
Herald, and upon his death she took over the newspaper while retaining her family
name on the masthead. Thereafter George Fleming and his mother collaborated in a
number of publications as printer, publisher, or both.
Whether John Reed originally planned to publish his book in Carlisle, or did so
after shopping the manuscript about Philadelphia printers, is unknown. Reed did
assume the role of publisher (Barnes 1994, p. 10) – the Pennsylvania Blackstone
was printed by George Fleming “for the author”. In this perhaps by coincidence
Reed followed Sir William Blackstone. The Clarendon Press of Oxford University
only printed Blackstone’s work in 1765–69; it did not act as the publisher. Blackstone
paid the printing costs and later sold the copyright to the booksellers. He earned
some 14,000–16,000 pounds sterling – an immense sum – from the project, most of
90 W.E. Butler
which the Clarendon Press at Oxford would have received had it acted as the
publisher of the work.
The commission to publish given to George Fleming will have been the largest
and probably the most successful project of his career as a printer (Fleming went
bankrupt in 1843). No other work printed by Fleming or anyone else in Carlisle
begins to approach in size the 1,625 pages in three volumes, which John Reed had
produced. Paper at the time was being produced in nearby Mt. Holly.
George Fleming was in Carlisle what in modern terms we would call a major
cultural presence. In addition to his newspaper(s), he printed church music, religious
tracts, hymns and psalms, belles lettres, and sundry minor ephemera. He was elected
Prothonotary in Carlisle for one term (1836–39) and involved for some time in the
Anti-Masonic Party, among other popular causes and movements. Following his
financial reversals, Fleming evidently spent some time in the freight business. In
1849 he went with a small group of Carlisle adventurers to California to seek his
fortune in the gold fields. He returned for a brief period in Spring 1850 to collect his
family, and then returned to California by ship in Alameda County. His relationship
with the law was not entirely over, for he was elected Justice of the Peace for at least
four terms and then appointed an associate judge of the County Court for a term in
which death intervened. Thus did the printer of Professor John Reed’s treatise
himself succeed to the bench in his own right.
As noted above, the Pennsylvania Blackstone was announced as having been
published on 4 July 1831 (copyright is recorded as the “title of a book” having been
deposited on 9 May 1831). Whether the price of $10 was for bound copies or
unbound sheets is not clear from the advertisements. Bookbinding was available in
Carlisle at the time from, among others, Archibald Loudon (1754–1840), whose
bookbinding press is on public display at the Cumberland Historical Society (Fretz
1990, VII, No. 2). Although Archibald Loudon ceased his publishing activities in
1816 and saw his stock of 4,000 volumes dispersed by the sheriff at public sale in
1818, he apparently continued to bind books until late in life through the bookshop
of his son, James Loudon. A number of copies examined of Pennsylvania Blackstone
were bound in sheep without a binder’s label, suggesting an unsophisticated
provincial binder working with basic equipment.
5.3 Blackstone and Reed
Measured in reference to his spiritual mentor, Professor and Judge John Reed stands
surprisingly well in the shadow of Sir William Blackstone. Both had been legal
practitioners; both became legal educators; both were inspired to produce immense
legal treatises – Blackstone setting the standard for future generations but Reed
applying the comparative method of legal analysis to excellent and unappreciated
effect; both experienced parliamentary service; both spent long periods on the
bench. John Reed did more than produce a Pennsylvania Blackstone – he became
Pennsylvania’s Blackstone.
But Reed was much more than a provincial west-country lawyer. He too had a
knowledge and awareness of law within the global community. His students
received a grounding in the law of nations, what in modern parlance is designated
“international law”.
With respect to international law Reed adopted essentially the approach and
views of Blackstone. Reed said:
If man were to live in a state of nature, unconnected with other individuals, there would be
no occasion for any other laws, than the law of nature, and the law of God. But man was
formed for society, and as is demonstrated by the writers on this subject, is neither capable
of living alone, nor indeed has the courage to do so. However, as it is impossible for the
whole race of mankind to be united in one great society, they must necessarily divide into
many, and form separate states, commonwealths, and nations independent of each other,
and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this
mutual intercourse, called the “law of nations;” which, as none of these States, will acknowl-
edge a superiority in the other, cannot be dictated by any; but depends entirely upon the
rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between
these several communities. In the construction of which compacts, we have no other rule to
resort to, than the law of nature, being the only one to which all the communities are equally
subject, and therefore the civil law very justly observes,,,,, that “what natural reason hath
established among all men, is called the law of nations. The practice of great and enlight-
ened nations, as evinced in the decisions of their judiciary, is referred to as evidence of this
law as applicable to particular cases. (Reed 1831b, pp. 16–17)
Reed further articulated the basic rule of Pennsylvania law dating from the colonial
period and subsequently: “The law of nations always formed part of our municipal
law”, citing 1 Dallas 114, 210 (Reed 1831b, p. 39). Even when the Pennsylvania leg-
islature adopted in 1810 an act “prohibiting the citing or quoting in court of any British
adjudications, made after the 4th day of July, 1776,” an exception was made with
respect to “maritime law and the laws of nations” (Reed 1831b, p. 40).
A decade or so later, in lectures delivered during the years 1838–1840 at his
neighboring institution, Dickinson College, Reed elaborated upon his understanding
of the relationship between the law of nations and the legal systems of the United
States and of Pennsylvania:
There is a concurrence of recent authority founded on indisputable principles in favor of the
legitimate existence and form of the common law in the federal, as well as in the state
courts.
As the several states found themselves in possession of this extensive branch of munici-
pal law, upon their affirming the rights of self-government, and the people of the United
States when they formed a union, in their sovereign and distinct capacities, were also enti-
tled to this vast scheme of judicial polity, in regard to their internal or domestic relations;
so, it became the basis of an extended jurisprudence applicable to our intercourse with the
civilized nations of Europe, in that aspect called the law of nations; and the law of nations
is part of the common law.
By the structure of our government, all national powers … are vested in the national
government and excluded from the states. Ever since its first institution by various declara-
tions the United States government has professed obedience to the laws of nations accord-
ing to the general usages of Europe. So far as they may affect the personal rights of
individuals, they may be enumerated as a branch of our municipal law. So far as they affect
national rights, they will be elsewhere considered. Whatever vague and erroneous notions
may have prevailed in regard to the origin and obligatory force of national law, civilized
92 W.E. Butler
nations now concur in tracing them to the great fountains of natural justice; and they
apply to them in their development and application, and the unerring rules of moral and
Christian ethics.
There is a natural and positive law of nations. The one is undefined in terms, but it
enforces the general obligations on states, in its relation with other states, to conduct itself
with justice, good faith, and benevolence. The positive law consists in mutual treaties and
stipulations; but these, in regulating the safety and convenience of intercourse, are but
deductions from the principles of natural justice and equity. At least they never should be
allowed to contravene them. States and governments have no other existence than through
the people of whom they are composed. It is but the aggregation of society acting for their
several individual benefits. All the acts of a nation are but the acts of individuals. Why
should conscience, morals, reason, religion be dispensed with in such transactions, any
more than in the management of mere private concern? It was the suggestion of barbarism,
that governments were not as strictly bound by the obligations of truth, justice, and human-
ity as individuals. We impute, therefore, the law of nations to the same common origin to
which we traced the municipal law of a single commonwealth, viz. to the law of nature and
of revelation … the systems in complex, embracing general principles or the science of
either. It embraces also a collection of usages and customs, the growth of civilization to
commerce and also a code of conventional or propitious care. When no usage or stipula-
tions exist, general principles are to be applied, and these are alike binding in every age, and
upon all mankind. The system as now understood by the European world, as by ourselves,
is of modern growth. The most refined states among the ancients had no suitable conception
of the moral obligations of justice and humanity between nations, and there was no such
thing in existence as the Science of international law.
During the period in which John Reed was the head of the Dickinson School of
Law, until his death in 1850, the law of nations was addressed in the general course
on law and, so far as can be determined, not the subject of special lectures. But the
law of nations was regarded by Professor Reed as an integral part of American federal
and state law, and as such justifiably included as a required component of legal
education in these early days of the Republic. (This Letter has been widely published
in various accounts of Dickinson College and the Dickinson School of Law. The
original letter, now in fragile condition, is held in the Law School Archives)
A good deal of work remains to be undertaken with respect to John Reed. The
fate of his personal library is unknown, but knowledge of its contents would help us
understand better the materials he used to prepare both his lectures and his treatise
on the law of Pennsylvania. Although a few of his lecture notes survive, there must
have been more. His judicial decisions remain unanalyzed, as does his law practice
in the area. Yet it must be undoubted that any citizen of Carlisle has left a more
enduring legacy to future generations than John Reed as educator and jurist.
References
Barnes, T. 1994. “Notes from the editors” for William Blackstone Esq., J. Reed, Pennsylvania
blackstone (1831; reprint ed. 2006), I Commentaries on the laws of England (Gryphon
Editions).
Cohen, Morris L. 1998. Bibliography of early American law (1998–2003) Buffalo, Vol. II.
Dirck, B. 2007. Lincoln the lawyer. University of Illinois Press 2008.
Fretz, E. 1990. Archibald Loudon of Carlisle: Disseminator of early American culture. Cumberland
County History VII(2).
Griswell, F. 2003. George Fleming: A California forty niner and families from Pennsylvania.
Hazard’s Register of Pennsylvania. 1832. Second report of the commissioners appointed to revise
the code of Pennsylvania. Hazard’s Register of Pennsylvania, IX, No. 14 (7 April).
Hazard’s Register of Pennsylvania. 1833a. Vol. XII, no. 8 (6 July)
Hazard’s Register of Pennsylvania. 1833b. Vol. XII, no. 21 (9 November)
Hazard’s Register of Pennsylvania. 1834. Vol. XVI, no. 16 (18 October)
Hill, F.T. 1906. Lincoln the lawyer.
Historical Society of Dauphin County. 1921. The Charles C. Rawn Journal #4, Book 4, Contemporary
problems of legal education in the United States with some account of conditions in England and
Canada.
Hitchler, W.H. 1934. The Dickinson school of law. Dickinson Law Review XXXVIII.
Landis, M. 1934. Hon. John Reed. Dickinson Law Review, XXXVIII.
Laub, B.R. 1983. The Dickinson school of law: Proud and independent. Dickinson Law Review
(Sesquicentennial Edition). Penn State Law Review.
Marvin, J. G. 1847. Legal bibliography, or a thesaurus of American, English, Irish, and Scotch law
books, Vol. 1. Together with some continental treatises interspersed with critical observations
upon their various editions and authority. To which is prefixed a copious list of abbreviations.
Philadelphia.
Nolan, D.R. 1976. Sir William Blackstone and the New American republic: A study of intellectual
impact. New York University Law Review 51: 731–768.
Ogden, J. M. 1932. Lincoln’s early impressions of the law in Indiana, In: Notre Dame Lawyer, VII.
Reed, J. 1830. The messenger of useful knowledge, I (December).
Reed, J. 1831a. The messenger of useful knowledge, I (July).
Reed, J. 1831b. Pennsylvania blackstone (reprint ed. 2006)
Reed, J. Unpublished manuscript. Archive of Dickinson School of Law, Pennsylvania State
University.
Reed, A. Z. 1921. Training for the public profession of the law: Historical development and
principal contemporary problems of legal education in the United States with some account
of conditions in England and Canada.
Sellers, C.C. 1973. Dickinson college. A history. Middletown: Wesleyan University Press.
Steiner, M. 2006. An honest calling: The law practice of Abraham Lincoln. DeKalb: Northern
Illinois University Press.
Steiner, M. 2010. Abraham Lincoln and the rule of law books. Marquette Law Review,
XCIII(4, Summer).
The American volunteer, 1820a, 13 July.
The American volunteer, 1820b, 20 July.
The American volunteer, 1831, 21 July.
The Carlisle Herald. 1831. 7 July.
The Carlisle republican. 1820. 1 August.
The New York Herald. 1850 (morning edition, 29 January).
Thompson, D. W. 1932. Early publications of Carlisle, Pennsylvania 1785–1835.Carlisle:
The Sentinel.
United States Supreme Court Reports. 1840.
Chapter 6
Initiating the Two Legal Cultures
of the Early United States: St. George
Tucker vs. James Wilson
William A. Pencak
6.1 Introduction
The reconciliation of freedom and order was at first, and still remains, a problem in
the United States for at least two reasons. First, the fact that thirteen states merged
to create a union opened a series of questions that remains unresolved even today.
The very term, ‘state,’ which usually means an independent sovereign entity, became
problematic: where did the powers of the national government end and those of the
‘states’ begin? Did both represent the people, or was the national government the
creation of and subservient to the states (questions about meaning also at home in
today’s European Union)? The framers of the Constitution glossed over the problem
by asserting that ‘the people’ were sovereign, but in practice the question of whether
states or the national government better represented the public interest is still an
important issue: for instance, in the issues of homosexual rights, health care, and the
nature of public education. For much of United States history, the states have
claimed to be the repository of freedom against an overbearing central government,
whereas the rights of black Americans and women, for example, have usually been
legislated by the federal government against states for whom the claim of liberty has
meant (white) majority rule on the local level without respect for individual rights.
The second problem the new American republic faced was the nature of its law.
On the one hand, it claimed to protect the ‘inalienable rights’ of human beings, yet
on the other hand the manner in which these were protected stemmed largely from
English common law and precedent. The place of this common, or customary law,
in the new nation provoked two responses: did specific elements have to be re-
enacted by the states and federal government where needed, or did the common law
provide the underlying precedents that guaranteed both freedom and order through-
out society?
W.A. Pencak (*)

Penn State University, Department of History and Department of Jewish Studies,
University Park, Carlisle PA, USA
e-mail: wap1@psu.edu
96 W.A. Pencak
Different perspectives on theses issue were raised in the earliest law courses
offered in the United States for which detailed documentation survive. In 1790,
courses on law were taught for the first time by James Wilson, at the University of
Pennsylvania, and by St. George Tucker at the College of William and Mary. Wilson
only lectured for two terms and never delivered about half of his lectures: neverthe-
less, his manuscripts were collected and published posthumously by his son Bird
Wilson in 1804. At the College of William and Mary, between 1790 and 1803, St.
George Tucker offered a course on law, the gist of which he published in 1803 as
appendices to Sir William Blackstone’s Commentaries on the Laws of England.
This chapter has six parts. Following an introduction, the second and third
respectively outline Tucker’s and Wilson’s published lectures. Tucker stressed the
wide powers of states and the limited powers of the federal government. His pub-
lished work explained the constitution of Virginia first, and foremost, granting the
state greater legitimacy and power than that of the federal union. Wilson barely
mentioned the rights of states at all in his course, and instead concentrated on
explaining the active role of citizens in preserving and shaping the law at all levels
of government. Tucker addressed his course more narrowly to lawyers, expecting
(as was generally the case in Jeffersonian Virginia) that these gentlemen would
indeed represent and speak for the citizenry of their state.
The fourth part of the paper examines how the form of Tucker’s and Wilson’s
books signify their respective contents. Tucker separates Blackstone from his own
commentaries and cites principally British radicals and opposition thinkers who
objected to Blackstone’s notion of Parliamentary sovereignty. Wilson integrates
not only Blackstone, but also citations from the legal heritage of the world since
classical times to show how developments in the United States are part of world
history. The fifth section explains how Tucker’s and Wilson’s courses came out of
their own states’ experiences during the American Revolution. Tucker, who did not
participate in national politics, came from a confident Virginia that was largely
united during the Revolution and had little factional unrest before. The critical
legal problem for him was preserving the rights of states against the federal gov-
ernment: once that was accomplished, all would be well. Wilson’s Pennsylvania,
on the other hand, was deeply divided and its first state constitution, that of 1776,
was very unpopular.
The sixth part of the paper briefly considers how Tucker and Wilson set prece-
dents for different legal cultures in the South and the North of the United States. As
early as the 1790s, two contrasting notions of how to interpret the law of the United
States had already been developed. These were the two legal cultures that would
clash between 1861 and 1865 in the American Civil War.
6.2 New Law for a Republic
In Law as a System of Signs, legal semiotician Roberta Kevelson wrote that the
United States ‘Constitution, for example, is an experiment or sign subject to
change and correction through the semiotic method’ (Kevelson 1988, p. 231). She
6 Initiating the Two Legal Cultures of the Early United States… 97
was repeating what the men who drafted the Constitution themselves knew: that
the document was designed to represent the nation, and that failure to do so would
lead to a failed experiment in nation-building. ‘It was not to disparage the instru-
ment, to say that it had not definitely, and with precision, absolutely settled every-
thing on which it had spoken,’ wrote Abraham Baldwin. In an understatement, he
added that ‘some subjects were left a little ambiguous and uncertain’ (Farrand
1911, vol. 2, pp. 369, 370). For instance, within 2 years of the Constitution’s rati-
fication, the men who had drafted it disagreed on whether a national bank as a
means of collecting money and setting economic policy was a power granted to
the national government.
The framers knew the Constitution was not perfect, and built in an amending
process, so that, as Charles Peirce described the nature of scientific experimenta-
tion, the Constitution could be tested and refined according to a specific method,
increasingly (one would hope) approximating an always elusive but always envi-
sioned ‘true’ representation of the United States. ‘The greatest difficulty lies in the
affair of representation, and if this could be adjusted, all others would be surmount-
able,’ wrote James Madison (Farrand 1911, vol. 2, p. 321).
But what was the Constitution and what was the law through which it repre-
sented the nation? To be sure, the Supreme Court, Congress, and the President all
play their part in deciding these questions, but also important is the body of law
through which the Constitution penetrates the fiber of American life. And how that
law is constructed is determined in large part, by the actors in the legal system:
courts, lawyers, judges, and citizens. The first attempts to describe in detail the legal
system of the United States began in 1790, an important year in the history of
American legal education. Two instructors began teaching law, James Wilson at the
University of Pennsylvania and St. George Tucker at the College of William and
Mary. Wilson only lectured for two terms and never delivered about half of his lec-
tures: his manuscripts were collected and published by his son Bird Wilson in 1804
(Wilson 2007). At the College of William and Mary, between 1790 and 1803, St.
George Tucker offered a course on law, the gist of which was published in 1803 as
his appendix to Sir William Blackstone’s Commentaries on the Laws of England
(Tucker 1803).
Both men exhibited a sense of excitement about the fact that they were explain-
ing, for the first time, something new and wonderful under the sun. Tucker wrote
that ‘the American Revolution has formed a new epoch in the history of civil institu-
tions, by reducing to practice what, before, had been supposed to exist only in the
visionary speculation of theoretical writers …. The world, for the first time since the
annals of its inhabitants began, saw an original written compact formed by the free
and deliberate voices of individuals disposed to unite in the same social bonds’
(Tucker 1803, p. 4). Wilson similarly claimed to ‘have the pleasure of presenting to
my hearers what, as to the nations in the Transatlantic world, must be searched for
in vain – an original compact of a society, on its first arrival in this section of the
globe’ (Wilson 2007, p. 433).
Both Tucker and Wilson took pride in the fact that America’s laws were better
than England’s, and that their task in elucidating the laws of the new republic was
greater than Sir William Blackstone’s famous Commentaries on the Laws of England
98 W.A. Pencak
which they, in common with most colonial lawyers, had studied in their youth.
Blackstone had argued for the sovereignty of Parliament, which considered the most
heinous of the ‘practical defects, corruptions, and radical departures from those
very principles, which are supposed to constitute that superiority and pre-eminence,
which… writers have ordinarily ascribed to it’ (Tucker 1803, p. 56). Tucker acknowl-
edged ‘the theoretical excellencies’ of the British Constitution, but Parliament had
reduced it to a ‘tyranny established by law, and the people are bound in fetters of
their own making’ (Tucker 1803, p. 59). Wilson, too, maintained that ‘the principles
of our constitutions and governments and laws are materially better than the prin-
ciples of the constitution and government and laws of England,’ because ‘the
supreme or sovereign power of the society resides in the citizens at large; and that
therefore, they always retain the right of abolishing, altering, or amending their
constitution, at whatever time, and in whatever manner, they shall deem it expedient’
(Wilson 2007, p. 440).
But when it came to explaining what were the laws of this new republic, Tucker
and Wilson differed radically. The question of representation was crucial, as the
framers of the United States Constitution realized. Charles Pinckney noted that the
Constitution and laws were representations of the nation, and ‘a representation is
the sign of the reality’ (Farrand 1911, vol. 2, p. 109). Wilson himself agreed. He
compared the manner in which the United States’ constituent elements would be
represented to a medical ‘concoction’: ‘a vice in the representation, like an error in
the first concoction, must be followed by disease, convulsion, and finally death
itself’ (Farrand 1911, vol. 2, p. 210). The gap between Tucker and Wilson was so
vast that one can see, in embryo, the theories that would separate North and South
70 years later.
6.3 Tucker’s Law Course
Tucker began, after explaining why Blackstone’s commentaries have only a limited
use in a republic, with a list of the subjects he plans to investigate: ‘THE
CONSTITUTION OF THE UNITED STATES of America, and the particular
Constitution of the State of VIRGINIA… the nature of the compact which the people
of the United States have entered into, one with another; to examine the powers of
those who exercise the government, and to satisfy ourselves of their just extent and
limits; to consider the connection between the federal government and the state
governments … their respective rights, dependencies, and boundaries (Tucker 1803,
p. vii). As this list of topics implies, Tucker devoted much attention to the rights of
the state, what in most nations would be a province or department, both the state of
Virginia in particular and states general, with great concern for limiting the power
of the federal (he never says national) government. To speak of a national govern-
ment would mean a single, centralized power, which Tucker denied exists in the
United States. He also denied the applicability of English common law to America
except where confirmed by American statute (Tucker 1803, pp. viii–ix).
Not only did Tucker’s discussion of the Virginia Constitution precede that of the
United States in his text, his treatment clearly indicated that he considered it a better
representation of the sovereign power, which theoretically lies in the people. He
noted that the Virginia ‘constitution UNANIMOUSLY [passed]’ in the legislative
body that framed it, and thus ‘it may be regarded as the unanimous voice of the
people’ (Tucker 1803, pp. 90–91). If the people had not approved the measure,
would not addresses and instructions have poured into the legislature?’ ‘The unani-
mous vote in favor of the constitution is the most unequivocal proof that the people
not only saw and approved what was doing, but had, however informally, made
known their sentiments to the deputies before they left their respective counties
(Tucker 1803, pp. 91–92).
Tucker highlighted, and repeated, the words ‘unanimous’ and ‘people’ to set up
a contrast between the Constitutions of Virginia and the United States to signify that
the federal government is an inferior product of the ‘states.’ The federal Constitution,
he claimed, ‘was freely, voluntarily, and solemnly entered into by the several states
of North America, and ratified by the people thereof, respectively; whereby the
several states thereof, and the people, respectively, have bound themselves to each
other, and to the federal government of the United States’ (Tucker 1803, p. 140).
Note that the states, rather than ‘we the people’ as the Constitution proclaims,
formed the union, that ties exist first between the states and the people, and only
then are they connected to the government of the United States, which is qualified
again as ‘federal’ – meaning comprising the still-sovereign states. Tucker proceeded
to elaborate that ‘the state governments not only retain every power, jurisdiction,
and right not delegated to the United States, by the constitution, nor prohibited to it
by the states, but they are the constituent and necessary parts of the federal govern-
ment.’ He believed the proof of lies in the fact that both the Senate and the President
of the United States were elected by the representing the states, the former by the
state legislatures (true until 1913), the latter by an electoral college chosen by state
(Tucker 1803, pp. 142–143]).
Tucker then quoted Federalist 39 (Madison 1996, pp. 280–285) at length (Tucker
1803, pp. 146–149]) which stated that the new government is ‘neither wholly fed-
eral nor wholly national’: where it operates on states, it is federal and where it
effects individuals, it is national. But he then interpreted the constitution to mean
that ‘the few [my emphasis] particular cases in which he [the citizen] submits him-
self to the new authority, therefore, ought not to be extended beyond the terms of the
compact, as it might endanger his obedience to the laws of the state to whose laws
he still continues to draw obedience’ (Tucker 1803, p. 151). Later Tucker referred
to the United States Constitution as ‘an alliance between the states’ (Tucker 1803,
p. 153), or ‘the united republics’ – plural – (Tucker 1803, p. 187), and the federal
government as ‘the creature of that compact’ bound by it to its creators, the several
states in the union, and the citizens thereof’ (Tucker 1803, p. 170). He italicized the
words ‘each state retaining an entire liberty of exercising all those parts of its sov-
ereignty, as it thinks proper, all those parts of its sovereignty, that are not mentioned
in the constitution’ (Tucker 1803, p. 170). But perhaps he should have italicized ‘as
it thinks proper’ since he made the state the judge of what is and what is not
100 W.A. Pencak
‘mentioned’ in the constitution. The critical question – not only what is ‘mentioned’,
but how ambiguous clauses can be interpreted other than by the states – is not, by
Tucker, ‘mentioned.’
When he descended from generalities to specifics, Tucker tilted his interpreta-
tion toward states’ rights. For instance, to the enumerated power of Congress ‘to
raise and support armies’ noted in Article 1, Section 8 of the Constitution, Tucker
added his own parenthetical remark – ‘[in time of peace]’ – to diminish this power.
He commented: ‘it is at least doubtful whether any such power as that last men-
tioned, was intended to be entrusted to the government, except in the case of emi-
nent danger of hostility; at least beyond the necessary guards for forts, magazines,
arsenals, etc., and even in these cases the constitution seems to have provided that
the service should be provided by the militia of the United States’ (Tucker 1803,
pp. 180–181).
Tucker resorted to vague generalities: he intuited the intention of the framers of
the Constitution –‘it is at least doubtful’; ‘was intended’; ‘seems’ –without any
specific reference to the constitutional debate, which he did not attend. And he did
not cite the two times the militia is in fact mentioned in Article 1, Section 8 when he
listed the enumerated power of Congress, for had he done so it would have seriously
undermined his case (Farrand 1911, vol. 2, p. 656):
To provide for calling forth the Militia to execute the Laws of the Union,
suppress …
Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part
of them as may be employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress.
When Congress organized an army in 1798, Tucker condemned its ‘unconstitu-

tional’ action of allowing President Adams ‘enlist or organize volunteers’ and
appoint their officers. Tucker managed to make this action unconstitutional by rede-
fining the volunteers in a federal army as a ‘special corps of militia,’ with the fol-
lowing explanation:
that ‘as these select corps were not called into actual service, but were only liable to be
called upon at the pleasure of the president, it seems impossible to view them in any other
light than as the militia of the states, separated by an unconstitutional act of congress from
the rest, for the purpose of giving to the president powers, which the constitution expressly
denied him. (Tucker 1803, pp. 274–275)
Tucker challenged that Congress had the power to ‘raise and support armies’
when he transformed ‘army’ that definitely was not ‘the militia’, into the ‘militia’.
When it came to whether federal bankruptcy laws were constitutional, Tucker
was far more indecisive, whereas if he were true to his own principles he ought to
not have been. For the federal government to regulate bankruptcies was, ‘remark-
able,’ as he considered bankruptcy ‘a regulation, in the strictest sense, municipal,
not federal’ (Tucker 1803, p. 177). While at first he glosses over bankruptcy, merely
remarking that it ‘ought for reasons already given be strictly construed’ as subject
to state law, eight pages later he admitted that ‘it may with great strength of reasoning
be insisted, that here is a case in which the power of the federal government extends
to internal as well as foreign commerce; and that a contrary construction would
probably defeat the constitution’ (Tucker 1803, p. 185). Otherwise, states could
prohibit creditors from other states from collecting debts. Tucker’s ambivalence
over bankruptcy legislation is understandable. He represented the Virginia planter
class, which had seriously overspent its income before and after the American
Revolution and was deeply in debt to British merchants. They would have preferred
that these debts were negotiated at a lower value if not canceled, and failed to pay
them, using as an excuse the fact that the British had taken many of their slaves dur-
ing the Revolution. Despite provisions for payment of the debts in the Jay Treaty of
1795, the issue remained unsettled by a joint British-American arbitration commis-
sion that met from 1797 to 1799, as the American members resigned. But perhaps
the critical difference between raising the army and paying the debts was that the
former was undertaken by the Federalist party, which Tucker opposed, and the latter
by one of his heroes, President Thomas Jefferson, who in general supported Tucker’s
interpretation of the Constitution. In 1802, Jefferson agreed to pay the British
£600,000 to cover some, though not all of the debts in question (Bassett 1931,
pp. 1–10, 349–356). Jefferson realized that trade with Britain was essential to
American commerce (the British bought most of his own tobacco), just as he real-
ized (as did Tucker) that the Louisiana Purchase, which added territory to the nation
although there was no specific provision to that effect in the constitution, was essen-
tial to the national welfare.
The federal government, which Tucker never called the national government,
was an object of fear and mistrust for Tucker: ‘it possesses no absolute power,
but such as is absolutely necessary for performance of a duty, prescribed and
enjoined by the constitution’ (Tucker 1803, p. 170). The authorization of an
independent army by Congress in 1798, rather than relying on the militia in a
national emergency (Tucker 1803, p. 275), Tucker considered giving to the
President ‘an influence the most dangerous that can be conceived, to the peace,
liberty, and happiness of the United States,’ and ‘superseding every part of the
constitution.’ Tucker’s conclusion was that ‘all governments have a natural ten-
dency toward an increase, and an assumption of power, and the administration of
the federal government, has too frequently demonstrated that the American people
are not free from this vice in their constitution ’ (Tucker 1803, p. 334). The main
purpose of the United States Constitution, for Tucker, was to protect the people,
who were represented in the states, against the federal government. He termed it
a ‘parchment chain’ which –while not sufficient to correct this unhappy propen-
sity’ to federal tyranny – was ‘nevertheless capable of producing the most salu-
brious effects.’ The constitution would serve as a standard to ‘warn the people to
change those perfidious agents, who dare to violate’ its principles (Tucker 1803,
pp. 289–90).
For Tucker, veneration of the constitution itself became an actor in the legal system –
as indeed it was in 1800 when the Federalist party met a disastrous defeat largely for
its attack on individual liberties through the Alien and Sedition Act. The states
would institutionalize this veneration. Tucker believed that they had the power to
102 W.A. Pencak
nullify federal laws that infringed on either their rights or the liberties of citizens.
He endorsed the Virginia and Kentucky Resolutions, respectively written by James
Madison in 1798 and Thomas Jefferson in 1799, that declared the Alien Act of
1798, permitting the President to deport undesirable aliens at will, as ‘most flagrant
and unjustifiable’ (Tucker 1803, pp. 301–302).
In keeping with his strict limitations on the power of the federal government,
Tucker also denied the applicability in the United States of the common law of
England, ‘except by legislative or constitutional authority ‘ (Tucker 1803, p. 404) for
once independence was established ‘all the law of that country… [were] utterly abol-
ished’ (Tucker 1803, p. 403). He noted that it did not even apply when the states were
colonies, for there were among them ‘such opposite, discordant, and conflicting
municipal institutions’ that it would be ‘in vain’ to ‘attempt, by any general theory,
to establish an uniform authority and obligation in the common law of England, over
the American colonies.’ Even where ‘the common law and statutes of England have
been expressly adopted, in a certain degree,’ the states were careful to ‘declare that
those laws are not to be construed so as to impair any of the rights and privileges
contained in their respective constitutions and laws’ (Tucker 1803, p. 426).
Yet in practice, when he served on the Virginia Supreme Court, as scholar Bernard
Schwartz has pointed out, ‘Tucker’s basic concept of law was one that was molded
by common-law doctrines and precedents’ (Schwartz 1993, p. 169). It was simply
impossible otherwise to make sense of many cases where Virginia law was silent. As
with the payment of planter debts to the British by the federal government, Tucker’s
principles could only be maintained selectively and dogmatically. Both in his writ-
ings and in his career on the bench, he was forced to contradict them when they
confronted the real legal landscape of the new nation. He sought to fix boundaries
between the people, the states, and the federal government. James Wilson, on the
other hand, sought to unite them in an interested patriotic community.
6.4 Wilson’s Law Course
Wilson’s law course differed drastically from Tucker’s. Most strikingly, he consid-
ered the fundamental basis of law not a matter of constitutions and written statutes,
but an emanation of ‘the American character’ (Wilson 2007, p. 432). Whereas for
Tucker law began with constitutions, followed by statutes, as representations of
popular consent, for Wilson law began with continuously exercised popular sover-
eignty through the interpretation of these constitutions and statutes, which other-
wise would have no real presence. Hence, Wilson stressed the need for the people
to be knowledgeable about and interested in the law. It ‘should be the study of every
free citizen, and of every free man. Unless, in some measure, and in some degree,
he knows those duties and those rights, he can never act a just and independent part’
(Wilson 2007, p. 435). ‘In a free country, every citizen forms part of the sovereign
power; he possesses a vote, or takes a still more active part in the business of the
commonwealth.’ His first examples are ‘the rights and duties of jurors,’ which ‘in
the United States are great and extensive.’ They require ‘knowledge of, at least, the
general principles of the law,’ and that while they receive ‘assistance of the judges…
they have the right of judging for themselves’ (Wilson 2007, p. 437). Only then did
Wilson mention that ‘a law education is necessary for gentlemen intended for the
profession of law’ (Wilson 2007, p. 439).
Wilson’s incorporation of the general citizenry even extended to women, who
were present at his inaugural lecture, and some of whom, as historian Susan Branson
has entitled her book about the women of Philadelphia at this time, were ‘These
Fiery Frenchified Dames’ who were voicing their belief in the political equality of
their sex as were their sisters in revolutionary France (Branson 2001). Wilson even
put such a woman’s voice into his text: ‘Methinks I hear one of the female part of
my audience exclaim – What is all this to us?…. Is everything made for your sex?
Why should we not have a share? Is our sex less honest, or less virtuous or less wise
than yours?’ Wilson agreed with his hypothetical heckler, named three great women
lawgivers – Semiramis of Nineveh, Zenobia, Queen of the East, and Elizabeth of
England – and ‘challenge[d] any of my brethren to name three men superior to them
in vigor and extent of abilities.’ His criticism of these great women, though, was that
there ‘was too much of the masculine in them,’ and ‘we feel and we regret the loss
of the lovely and accomplished woman.’ Instead, women ‘were destined to embel-
lish, to refine, and to exalt the pleasures and virtues of social life.’ But they had a
critical civic function as well: ‘you have a most intimate connection with the effects
of a good system of law and government’; not only ‘forming your daughters. … .
but in the ‘plan of education for your sons.’ Wilson then devoted over a page to
praising several ancient Roman matrons who influenced their sons, who were heroes
in the early United States. A ‘natural, … easy, and, often, pure flow of diction, lays
the best foundation for that eloquence, which, in a free in country, is so important.’
He concluded, ‘you see now, my fair and amiable hearers, how deeply and nearly
interested you are in a proper plan of law education’ (Wilson 2007, pp. 449–455).
Wilson went beyond any other framer of the United States Constitution in
attempting to involve the entire populace as much as possible in shaping law and
government. At the convention, he expressed the belief that all free men ought to
vote (there were property qualifications at the time), and select as well the United
States Senate (chosen by the state legislatures until 1913) and President (still
selected by an electoral college). He especially thought immigrants ought to be
welcomed into the nation: ‘almost all the general officers of the Pennsylvania line’
during the Revolution ‘were foreigners.’ So were three of the eight Pennsylvania
delegates to the convention, including himself – he was born in Scotland (Farrand
1911, vol. 1, pp. 52, 68, 151; vol. 2, pp. 268, 269).
Wilson’s notion of popular interest and involvement in the law was not just wishful
thinking. Recent books by Laura Edwards (Edwards 2009) and John Wertheimer
(Wertheimer 2009) on county-level justice in South Carolina and North Carolina
demonstrate a wide variety of local practices, in which juries and courts put aside
formal law in accordance with community needs. For instance, although slaves were
not supposed to testify against whites, slaves who had long lived in a community
would be trusted to give informal testimony. Juries would decide the law as was well
104 W.A. Pencak
as the facts of the case, and on other occasions state legislatures would act as courts:
the fine-tuned separation of powers and body of jurisprudence that has emerged
over 200 years admitted flexibility at that time that showed the law was in a process
of continuous flux.
Real and if possible universal public loyalty, not strict circumvention of national
power as for Tucker, was what was crucial for the republic was to survive. People
had to believe that the nation, not the state, represented their interests and that their
own participation was essential. Wilson wrote: ‘to embrace the whole [Union],
requires an expansion of mind, of talents, and of temper … some will be adverse
from indolence. . . others will be averse from interest. These last will introduce and
recommend the government of their state, as a rival, for social and benevolent affec-
tion, to the government of the United States. In this manner… the patriotic emana-
tions of the soul, which would otherwise be diffused over the whole Union, will be
refracted and converged to a very narrow part of it.’ Wilson emphatically believed
that the Union (which he capitalizes) is a national, not a federal, government. ‘The
interest of the whole should never be sacrificed to that of a part … If, then, on any
subject, a difference should take place between the sentiments, and designs, and
plans of the national government and those of a state; on whose side are justice and
general utility likely to be found?’ For this representation to be meaningful, Wilson
continued, ‘expanded patriotism is a cardinal virtue in the United States. This cardi-
nal virtue – superior to contracted motives or views, will preserve inviolate the con-
nection of interest between the whole and its parts. Let us, then, cherish; let us
encourage; let us admire; let us teach; let us practice this ‘devotion to the publick,’
so meritorious and so necessary to the peace, and greatness, and happiness of the
United States’ (Wilson 2007, pp. 670–671).
Wilson thus regarded the United States and its law not so much as a body of
constitutions and statutes, but believed that these were manifestations of a continu-
ing experiment, which he considered ‘scientific’ (Wilson 2007, p. 432) that would
through trial and error refine and improve – not limit or preserve – the nation of
1790 to which he spoke. Furthermore, the United States was not conducting that
experiment on its own: it was rather improving on a long, cherished tradition of
English common law, whose development Wilson described as follows: ‘The pros-
pect of convenience invites to the first experiment: a first experiment, successful,
encourages to make a second. The successful experiments of one man or one body
of men introduce another man or another body of men to venture upon similar trials.
The instances are multiplied and extend, till, at length, the customs becomes universal
and established. Can a law be made in a manner more eligible? …. In this manner,
a system of approved and concordant laws is gradually, though slowly, collected and
formed, … a system of experimental law, equally just, equally beautiful, and impor-
tant as Newton’s system is, far more important still (Wilson 2007, pp. 567–568).
In short, England’s common law, which resisted the edicts of monarchs and
Parliaments, was the basis of both English liberty and the liberties the American
colonists brought with them to the New World. ‘In free countries, especially, that
boast the blessing of a common law,’ law sprang ‘warm and spontaneous from the
manners of the people ’ (Wilson 2007, p. 432).
For Wilson, the common law was not, as for Tucker, a mass of incompatible
specific practices, but rather the general standard of rights and responsibilities which
had protected the people of England, as it did those of the United States, from arbi-
trary power. Even in England, contrary to Blackstone who argued for the sover-
eignty of Parliament, Wilson insisted that ‘acts of Parliament are not the lone – let
us add, they are not the principal – species of law, known and obligatory in England.’
‘That kingdom boasts in the common law. In the countenance of that law, every
lovely feature beams consent. This law is of vast importance. By it, the proceedings
and decisions of courts of justice are regulated and directed… it establishes the
rules, by which contacts, wills, deeds, and even acts of Parliament are interpreted.
This law is founded on long and general custom. A custom, that has been long and
generally observed, necessarily carries with it intrinsic evidence of consent’ (Wilson
2007, pp. 567–568).
Wilson’s understanding of the formation of law was remarkably anticipatory of
Charles Peirce’s theory of science. Peirce defined the ‘true man of science’ as ‘every
man belonging to a social group all members of which will sacrifice all the ordinary
motives of their life to their desire to make their beliefs concerning one subject con-
form to verified judgments of perception concerning sound reasoning’ (Peirce 1968,
p. 400). For Wilson, the American republic was the social group, the community of
inquirers, to use another of Peirce’s concepts, inquiring after a just society (Peirce
1940, p. 247). While Peirce’s call for sacrifice was stronger than Wilson’s call to patri-
otism, they both insisted that for law or science – and for Wilson law was a science
– to flourish, what was necessary was a real devotion to its principles, tested by a
commonly agreed-upon experimental method – in Wilson’s case, the manner in
which citizens participate in the government. The experiment would always be open,
and subject to correction. As Wilson said: ‘I mean to support – the claim to integrity”
but not ‘infallibility.’ ‘My house of knowledge is, at present, too small. I feel it my
duty, on many accounts, to enlarge it. But in this, as in every other kind of architec-
ture, I believe it will be found, that he, who adds much, must alter some’ (Wilson
2007, p. 448). Wilson, in short, defined the United States as a semiotic society. There
is little in the methodology of Oliver Wendell Holmes and the common-sense legal
realists discussed by Kevelson, whom she links intellectually to Peirce, that is not
present theoretically in Wilson, or not intrinsic in the way the framers conceived the
constitution itself (Pencak 1993).
6.5 Footnotes and Structure of the Texts
Tucker’s and Wilson’s footnotes indicate how they conceive the relationship of
English and American law. Tucker only cites Blackstone to criticize him. Examining
his preface, he reserves his admiration for philosophers of natural rights and limited
government: Emerich de Vattel (1714–17670) (Tucker 1803, pp. 7, 16, 59, 64, 74),
a Swiss theorist who stressed that peace was the natural state of humanity and selfish-
ness needed to be sublimated, both within and a nation and within the community
106 W.A. Pencak
of nations, for the general good; Jean-Jacques Rousseau (1712–1778) (Tucker 1803,
pp. 8,9) whose Social Contract is cited for denouncing the “chains” in which
humankind was held; Thomas Paine’s (1737–1809), (Tucker 1803, pp. 9, 57, 67)
The Rights of Man, a defense of the French Revolution; James Burgh’s (1714–1775)
(Tucker 1803, p. 10), a British writer whose Political Disquisitions argued for free
speech and universal suffrage; Frances Hutcheson (1684–1746) (Tucker 1803, pp.
13, 50, 52, 69, 70, 71) a Scottish professor whose Moral Philosophy influenced the
Declaration of Independence; Sir James Mackintosh’s (1765–1832) (Tucker 1803,
pp. 15, 57) History of the French Revolution, which claimed that ‘all the govern-
ments that now exist in the world, except the United States, were fortuitously
formed” and that the “balanced or mixed government. . . never existed except in the
visions of theorists,’ and was but a pretence to hide monarchical or aristocratic
domination; Jean-Jacques Barthelemy’s (1716–1796) (Tucker 1803, p. 29) Travels
of Anacharsis the Younger in Greece, which noted how Athenian democracy worked
until a senate was added to the assembly; Scottish historian William Robertson’s
(1729–1793), (Tucker 1803, p. 31) History of Greece to demonstrate the appalling
cruelty of Alexander the Great; Virgil (70–19 BCE) (Tucker 1803, p. 39), Dr. John
Moore (1729–1802), author of Travels in Italy (Tucker 1803, p. 41) and Baron de
Montesquieu’s (1689–1755) Spirit of the Laws (Tucker 1803, pp. 43–44), to criti-
cize aristocracy. Tucker only mentions Montesquieu negatively at other times when
he criticizes balanced government; Jean-Louis de Lolme (1741–1804) (Tucker
1803, p. 42), a Swiss political thinker who moved to England and warned that even
the forms of democratic government might be subverted by designing aristocrats;
Samuel Pufendorf’s (1632–1704) (Tucker 1803, pp. 69–73, 77) Law of Nations to
show that the compact entered into by the United States was an alliance of sovereign
states rather than a national union; John Davenant Bishop of Salisbury(1572–1641),
(Tucker 1803, p. 65) and supporter of Puritanism and Parliament against monarchy
and ecclesiastical hierarchy); Jean-Jacques Burlamaqui (1694–1748) (Tucker 1803,
p. 65), who advanced the idea that governments ought to have strictly limited pow-
ers and strive to facilitate the pursuit of happiness by their citizens ; and, last but not
least, John Locke’s Of Civil Government (1632–1704) (Tucker 1803, pp. 75, 78), ‘a
work with which every American ought to be perfectly acquainted.’
Wilson, on the other hand, offers a rich tapestry of lawgivers, philosophers,
statesmen, and historical figures going back to antiquity. His preface cites British
Sir Edward Coke, Roman lawgiver Cicero, Greek philosopher Plato, Sir William
Blackstone, Baron de Montesquieu, and Scottish philosopher Thomas Reid, all
approvingly for their devotion to the study of law despite their widely divergent
political views. Coke, Cicero, Montesquieu, Blackstone, and Reid defended limited
monarchy and balanced government, while Plato – and of course this is debatable –
believed in a philosopher king. Wilson’s first chapter begins with the great figures
of antiquity (such as Alexander the Great, Achilles) and the writers (Homer,
Xenophon, and Thucydides) who celebrated them, moves on American lawmakers
such as William Penn and Maryland’s Lords Baltimore who instituted toleration;
Justinian, Aristotle, Grotius, and Britain’s Sir John Fortescue are all praised as great
jurists although Justinian ruled the absolute Byzantine Empire while the others
favored mixed government; three women – Semiramis of Babylon, Zenobia of

Palmyra, and Elizabeth of England join them (Wilson 2007, p. 431) once again,
Elizabeth embodied the mixed British constitution while the other queens ruled
absolutely. Wilson’s notes, and appreciation of the predecessors in whose footsteps
he hopes to follow, is as appreciative and broad as most of Tucker’s remarks are
negative (except for heroes of popular liberty) and narrow.
The structures of Tucker’s and Wilson’s volumes confirm this observation.
Tucker prints Blackstone without comment, and then separates his own remarks in
what amounts to a separate volume, just as he separates the American and English
legal traditions. Only English, Swiss, and Dutch figures are cited (except negatively)
and these are opponents of aristocracy and monarchy, forerunners of or participants
in the American and French Revolutions. Wilson, on the other hand, integrates
United States law with codes, lawgivers, and events going back to antiquity, view-
ing the new republic as a culmination of, rather than a repudiation, of western
civilization.
6.6 Tucker’s Virginia and Wilson’s Pennsylvania
The setting in which Tucker and Wilson delivered their lectures had much to do with
their approaches. Tucker lectured at the College of William and Mary in Williamsburg,
Virginia, which had ceased to be the state’s capital in 1780 and whose only reason
for continuing to exist was the presence of the college. He spoke exclusively, or
almost so, to law students, in isolation, and was concerned with their participation
in government. They would be the legislators whom he hoped would protect the
rights of states in the federal congress and federal judiciary and maintain them in the
state legislature.
Furthermore, Virginia was a relatively united society whose upperclass, the most
prominent members being James Madison and Thomas Jefferson – Tucker admired
them both – were paradoxically the foremost spokesmen for democratic ideals in
the United States. This was because the average Virginian did not question their
leadership. Virginia had few loyalists in the Revolution, successfully accommo-
dated the Baptists who were being persecuted by granting them religious freedom,
and its economy depended almost solely on the production of tobacco. Neither the
relationship of the individual to the state, nor the legitimacy of the state itself was a
problem in Virginia. Indeed, even today, state loyalty and nostalgia are especially
strong in the Virginia (Isaac 1982).
Wilson, on the other hand, lectured at the national capital, Philadelphia, to a
diverse audience that included congressmen, judges, state and local officials, and
interested citizens, including women. He thus had to persuade them that a form of
government only 2 years old was both legitimate and worthy of their emotional
attachment. But his nationalism also came from his negative experiences with
Pennsylvania as a state. Its boundaries were not even settled when the Revolution
began: Virginia claimed most of what is now southwestern Pennsylvania, and
108 W.A. Pencak
Connecticut the entire northern tier, with Pennsylvania’s claims to these region
being validated by the United States Congress only in 1781 and 1786, respectively.
During the Revolution, Pennsylvania had been exceptionally turbulent, afflicted by
numerous loyalists and pacifists, Indian attacks on the frontier, and the most radical
and controversial constitution in all the new states, enacted in 1776 whose unicam-
eral legislature had persecuted those who opposed it even though they supported the
Revolution. In 1779, Wilson himself had to defend his house against a Philadelphia
mob that believed he was harboring traitors or was a loyalist himself. Known as the
‘Fort Wilson incident,’ between fourteen and seventeen people died as Wilson liter-
ally fought for his life against the supporters of Pennsylvania’s radical constitution.
This had been superseded in 1790, the year Wilson began lecturing, and the new
document was deliberately modeled as much as possible on the United States con-
stitution (Wilson 2007, p. 883). Needless to say, Wilson had little use for the state
as a meaningful repository of sovereignty or popular loyalty. He repeatedly remarked
at the convention where Pennsylvania ratified the United States Constitution how
disastrous a strong, unchecked state government had proven, and how little attach-
ment most Pennsylvanians had to such a government (Pencak 2002). Even today,
Pennsylvania attracts little loyalty from citizens who are more attached to ethnic
groups, particular towns, Pittsburgh, Philadelphia, the anthracite coal-mining region,
or Pennsylvania Dutch country.
6.7 Two Traditions in a Deadly Conflict of Laws
Most lawyers in the early republic were not educated in law schools, of which there
were only eighteen in twelve states by the 1850s. They were self-taught or served as
apprentices to practicing lawyers (Matile 1999, p. 321). Yet Tucker and Wilson
were either the founders or representatives of two legal traditions that came to char-
acterize the American South and North. As scholar R. Ben Brown has demonstrated,
in the early nineteenth century, ‘the southern states used a constitutional discourse
which respected the legislature’s priority in law formation,’ whereas ‘the northeast-
ern legal culture decided issues of substantive law using a common law discourse’
(Brown 1991).
Both modes of legal interpretation and constitutional understanding underscored
an important remark James Madison had made in the House of Representatives on
April 6, 1796:
Whatever veneration might be entertained for the body of men who formed our Constitution,
the sense of that body could never be regarded as the oracular guide in expounding the
Constitution. As the instrument came from them it was nothing more than the draft of a
plan, nothing but a dead letter, until life and validity were greathed into it by the voice of
the people (Farrand 1911, vol. 3, p. 374).
Thus whereas the South developed a strong tradition of states rights and the
legitimacy of state nullification of federal laws, most notably through the legal
thought and subsequent prestige of John C. Calhoun, the North’s legal culture
that emphasized the primacy of the union and national power (Schwartz 1993,
pp. 237–243). For instance, when New York’s Chancellor James Kent lectured at
Columbia College in 1824, his outline stressed the ‘powers’ of Congress, the
President, and various federal courts, but only ‘restrictions on state powers’
(Kent 1999, pp. 241–243).
As Wilson knew, law was both a product of and a force shaping culture. Nowhere
does this appear better than in understanding the American Civil War. The South’s
cause is easy to understand: northern armies invaded their land, they fought for
slavery and they were loyal to their states. Confederate General Robert E. Lee’s
belief that Virginia and not the United States was his country is still a well-known
fact. But the North’s loyalty to the Union is harder to understand. As historian James
McPherson notes in his examination of the letters home of northern soldiers
(McPherson 1997), most felt a mystical reverence for a Union, not a particular state,
that they believed was, as Abraham Lincoln put it, ‘the last best hope of earth’
(Lincoln 1953, p. 537). They had internalized, fought, and died for James Wilson’s
vision of the American republic, and ensured it would continue as a semiotic experi-
ment in popular sovereignty.
References
Bassett, John Moore. 1931. International adjudications: ancient and modern history and docu-
ments together with mediatorial reports, advisory opinions, and the decisions of domestic com-
missions, on international claims. Vol. 3, Modern series. Oxford: Oxford University Press.
Branson, S. 2001. ‘These fiery Frenchified dames’: Women and political culture in the early republic.
Philadelphia: University of Pennsylvania Press.
Brown, R. Ben. 1991. ‘Let us go down and there confound their language’: The multiplicity of
legal discourses in the antebellum United States. ABF Working Paper #8901. Chicago:
American Bar Foundation.
Edwards, L. 2009. The people and their peace: Legal culture and the transformation of inequality
in the post-revolutionary South. Chapel Hill: University of North Carolina Press.
Elizabeth J. Pardoe. 2010. Constructing community and the diversity dilemma: Ratification in
Pennsylvania. In: Pennsylvania’s revolution, 258–281. Ed. William Pencak. University Park:
Pennsylvania State University Press.
Farrand, Max. 1911. Records of the federal convention of 1787. 4 vols. New Haven: Yale
University Press.
Isaac, Rhys. 1982. The transformation of Virginia, 1740–1790. Chapel Hill: University of North
Carolina Press.
Kent, James. 1999. A summary of the course of law lectures in Columbia College, vol. 1. Ed. Steve
Sheppard. Pasadena: Salem Press. Originally published in 1824.
Kevelson, Roberta. 1988. Law as a system of signs. New York: Plenum.
Kolp, John. 1998. Gentlemen and freeholders: Electoral politics in colonial Virginia. Baltimore:
Johns Hopkins University Press.
Lincoln, Abraham. 1953. Second message to Congress, Dec. 1, 1862. In: Collected works, vol. 5.
Ed. Roy P. Basler. New Brunswick: Rutgers University Press.
Madison, James. 1996. No. 39. In Federalist papers. Ed. Benjamin F. Wright. New York: Barnes
& Noble. Originally published in 1788.
Matile, G.A. 1999. Law schools in the United States. In: History of legal education in the United States.
Ed. Steve Sheppard. vol. 1, 319–327. Pasadena: Salem Press. Originally published in 1863.
110 W.A. Pencak
McPherson, J.B. 1997. For cause and comrades: Why men fought in the civil war. New York:
Oxford University Press.
Peirce, Charles S. 1940. Philosophical writings of Peirce. Ed. Justus Buchler. London: Routledge
& Kegan Paul. Originally published in 1868 as ‘Some consequences of the four incapacities.’
Peirce, Charles S. 1968. Values in a universe of chance. Selected writings of Charles S. Peirce. Ed.
Philip P. Weiner. Garden City: Doubelday. Originally in a letter to Lady Victoria Welby in 1903.
Pencak, William. 1993. The United States constitution; a semiotic interpretation. In: History,
Signing. In: Studies in History and Semiotics, 171–200. New York: Peter Lang.
Pencak, William. 2002. The promise of revolution, 1750–1800. In: Pennsylvania: a history of the
commonwealth, 50–101. Ed. Randall Miller and William Pencak. University Park: Pennsylvania
State University Press.
Schwartz, B. 1993. Main currents in American legal thought. Durham: Carolina Academic Press.
Sydnor, Charles S. 1952. Political Practices in Washington’s Virginia. Chapel Hill: University of
North Carolina Press.
Tucker, St. George. 1803. Blackstone’s commentaries: with notes of reference, to the constitution
and laws, of the federal government of the United States; and of the commonwealth of Virginia:
appendix to volume the first, Vol. 1. Philadelphia: Birch & Small.
Wertheimer, J. 2009. Law and society in the South: A history of Carolina court cases. Lexington:
University of Kentucky Press.
Wilson, James. 2007. Lectures on law. In: Collected Works. Ed. Kermit L. Hall and Mark D. Hall.
Indianapolis: Liberty Fund Press. Originally published in 1804.
Part III
Semiotics and the Legal System
Introduction
Jan M. Broekman
Is “legal practice” a concept that became accepted and generally used by legal
practitioners? Ask them: do they have conversations among themselves about their
“practice” or do they appreciate that concept as a purely legal-theoretical idea that
evolves at distance from their own activities within the legal institution? Their
answer will astonish: they hardly understand the word ‘practice’ in the way legal
theoreticians do, and do not grasp the relevance of any of the multiple theoretical
concepts related to those issues. “Legal practice” is definitively a theoretical con-
cept, and how law as a system is discussed in that terminology is irrelevant to those
who daily exercise law as a social practice.
The concept of “law practice” implies that law students, preparing themselves
for those everyday exercises, do so at distance to legal theoretical debates and semi-
otic analyses. They do not discuss the systemic character of law and legal discourse,
even when they operate within it and judge whether an opinion or a text is or is not
“law”. This unites lawyers and theoreticians alike, in the Civil Law tradition as well
as in the Common Law, in legal pragmatist as well as in legal semiotic perspectives.
The position and the role of legal semiotics in law as a system, in itself a theoretical
issue of considerable importance, reaches beyond practical perspectives on law.
Neither Semiotics nor Law have been appropriately defined despite centuries of
social and philosophical theory. As Immanuel Kant remarked, jurists have never
provided a definition of law, and yet they pretend to know very well how to practice
it. And Roberta Kevelson, who so firmly laid the foundations for legal semiotics,
never formulated definitively what it means to understand law as legal semiotics, a
system of signs! It is precisely these discussions that kept arising during many ses-
sions of the seminar. The openness of semiotics, its character of being infinite and
non-delineated, plays an important role as soon as one needs to refer to the systemic
J.M. Broekman ()

email: jmb56@dsl.psu.edu
Part III Semiotics and the Legal System 113
character of semiotics. The same, mutatis mutandis, is true for law. The rich tradition
of legal philosophy in Western culture does not answer these deep inquiries, and
instead appears to freeze upon observing the fact that legal practitioners lack a
theoretical basis for their social activity.
Two perpetual points of interest, which belong to this context, are represented
in this chapter. They belong to an important series of insights in the semiotic
understanding of legal thought formation. The first essay is about differences in
Civil Law and Common Law traditions, in particular the role of judges and juries
in these contexts. Is it possible that the general theme “semiotics of law” can
focus on law as a practice that is theoretically unified, so that one can study the
semiotics of “law tout court”? Or do differences between the two Western legal
traditions so significant that they block uniform semiotic conclusions that are rel-
evant to our understanding of the practice of law? Those issues lead unmistakably
to the insight that legal systems, as a product of legal theory, should be treated as
designs, which can appropriately be analyzed in terms of semiotics—in terms of
a sign theory in particular. That approach leads to important conclusions for legal
practitioners, for instance:
Difference in judicial authority affects the semiotics of the practice of law substantially.
Whenever communication is limited and the bounds of discussion narrowed, the semiotics
of a process changes because potential meanings of signs involved are restrained.
Consequently, these chapters discuss such differences in Civil and in Criminal

Procedure, and provides the far-reaching insight, that
no difference has a greater effect on the semiotics of the law than that of the practice of trial law.
Such an exemplary conclusion shows the relevance of semiotic insights in differ-

ences between two legal traditions as well as the abyss between theory and practice
of law. This is also readable in Merryman’s globally recognized book on the Civil
Law Tradition, which is written from a Common Law standpoint. Consider the
question of which legal tradition is more just: the Common Law or the Civil Law.
Merryman answers that “… if he were innocent, he would prefer to be tried by a
Civil Law court, but that if he were guilty, he would prefer to be tried by a Common
Law Court”. That comparative lawyer’s answer has an important meaning, which
embraces both dimensions of law: the practical and the theoretical, although nobody
can bring them together seamlessly. Theories of law are specific designs of particular
discourses, Ellsworth concludes in the second essay of this Part III. That conclusion
relates to another important aspect of law’s system-character. From Herbert Hart to
Niklas Luhmann theoretical positions with enormous semiotic relevance were
developed. They relate to the meaning-making capacity of each legal practitioner,
and emerge beyond boundaries between theory and practice in legal discourse. Each
understanding of this issue includes an acceptance of the fact that law and legal
systems are both complex systems of signs. In order to more fully understand them,
and to grasp how they evolve and change, one needs to employ a theory of sign
systems, which can be used to analyze them as such systems. Kevelson’s remark is
made concrete in the various perspectives offered by today’s legal theory. No matter
114 Part III Semiotics and the Legal System
how they relate to Hart’s ideas about the “open texture” of the law or those of
Luhmann about law’s autopoietic features, they lead to the conclusion that a study
of the system-character of law can provide a deeper understanding of the meaning-
making dynamics of legal practice.
Ellsworth suggests that the grounding of such understanding (which includes
legal practice) is in a community’s political morality. The system, he suggests, must
remain cognizant of the encompassing political morality because although the sys-
tem functions autonomously, the system’s existence is dependent upon the legiti-
macy bestowed by the community. And, what is more: semiotics allows for the
study of the evolving signs of which the law is composed as well as the ways in
which the legal system utilizes these signs as the system autopoietically perpetuates.
The challenge of these chapters have indeed law’s system-character in semiotic per-
spective as its core value. Without this, law would solely be (in the words of
MacCormick) a “legal hypercycle”: a concept totally unknown and irrelevant for the
legal practitioner and a gross irritation for the theoretician.
Chapter 7
Common Law Lawyers Should Mind Their
Trial Practices: Understanding, Identifying,
and Correcting a Semiotic Imbalance
Edward J. Cyran
7.1 Introduction
It is difficult to say that two great legal traditions dominate our modern world
today. Both the Civil Law and the Common Law have existed for starkly different
lengths of time, with the weight of resulting cultural influences being quite evident.
The prevalence of influence of the Civil Law and Common Law is not close to
equal among countries in the Western world. Much of Latin America ascribes to
the Civil Law tradition, albeit with separate legal “systems.” Additionally, in some
countries in the Eastern world, Customary law prevails as the dominant tradition.
Nevertheless, one can say that the Civil Law and Common Law have a shared
history that is substantially tied to the development of the current legal systems
found in our modern world.
Law is one of the essential components of civilization. Its sign perpetually influ-
ences our social discourse; its seen and unseen hand is present upon virtually all of our
relationships and objects. Yet the law, something so pervasive and omnipresent in our
culture, is not interpreted or regarded in a similar manner between the two great tradi-
tions. The two have contrasting “attitudes” about the law (Merryman and Perez-
Perdomo 2007, p. 2). Although the Civil Law tradition acknowledges the textual
authority of the law, or “codes,” as supreme, and the Common Law expects legislation
to be scrutinized by judicial decisions, a distinction of the two traditions on this ground
is inaccurate and shortsighted (Merryman and Perez-Perdomo 2007, p. 27). What this
notion truly reflects is an asymmetry in ideology (Merryman and Perez-Perdomo
2007, p. 28). Under the Civil Law tradition, the law is established by the legislature as
the will of the people, with the role of the judge clearly established as administrative
(Merryman and Perez-Perdomo 2007, p. 36). Accordingly, judges and lawyers are
servants of the law and the community, and citizens are the beneficiaries of law
E.J. Cyran (*)

Dickinson School of Law, Pennsylvania State University, University Park, PA, USA
e-mail: ecyran@gmail.com
116 E.J. Cyran
(Merryman and Perez-Perdomo 2007, p. 37). Lawyers assist the judge by arguing
that a particular set of facts does or does not apply to a given statute.
In Common Law nations, law may also be set by a legislature; however, such
legislation is far from the only source of legal authority. Certainly, statutes are
considered as being the legislature’s attempt at providing law for areas of legal
concern in the community. However, no “code” is supreme under the Common
Law tradition. Judges wield the power to interpret statutes with the guidance of
well-established common law rules (Merryman and Perez-Perdomo 2007, p. 33).
In some areas of the law, such as torts and contracts, few statutes are even present,
because the legacy of Common Law judicial decisions is considered as supplying
the necessary law for future instances. Consequently, for Common Law lawyers,
the law is a sea of precedent. Precedent cases interpret statutes, constitutions, and
common “rights.” These common rights and values, discernible as appeals to the
nomoi, originated in the wisdom of ancient judges, and have been refined by the
judiciary over the course of decades. Similarly, the cases that interpret statutes and
constitutions are revered as necessary elements of the law.
The goal of this text is not to identify the more appropriate legal tradition for
society, but rather: (1) to discuss the separate understandings of the “law” among
the Civil Law and Common Law traditions through the views of three major
semioticians, and (2) assuming that the differences between the Civil Law and
Common Law have an effect on legal semiotics, to determine whether differences in
the understanding and practice of legal semiotics between both traditions, until now
relatively unnoticed, enriches and refines future legal semiotics.
To explore semiotics either under the Common Law or Civil Law traditions, a
certain background in legal semiotics and a look at how lawyers under both legal
traditions practice are necessary. We will first discuss the Peircean and Greimassian
perspectives on legal semiotics. Part 2 concludes with Lacan’s view of law as a
master discourse. In Part 3, the differences between the semiotics of the practicing
lawyer under the Civil Law tradition and the Common Law tradition will be
discussed. Parts 4 and 5 conclude by exploring if any of the differences in the semi-
otics of both legal traditions are imbalances in the practice of law, whether such
instances are concerns for legal semiotics, and whether they should be corrected.
7.2 Background in Legal Semiotics
7.2.1 Peircean Theory of Legal Semiotics
Peirce teaches that there are three components to conscious experience; all three of
which create the infinite semiosis of meaning. They are firstness, secondness, and
thirdness. In Peirce’s Triadic System of Signs, a sign or representamen is a manifes-
tation of firstness, an object is a manifestation of secondness, and an interpretant is
a manifestation of thirdness.
7 Common Law Lawyers Should Mind Their Trial Practices... 117
Firstness is the realm of potentiality and possibility. It is experienced as emotion,

such as pain before wondering where it is arising from. A concept in firstness has no
limits, yet it exists in all of its potential. A quality such as “fairness” is an example
of firstness. The semiotic operator in firstness is the sign. Firstness is noticed least
in the practice of law.
Secondness is the realm of being in action. It is experienced practically when an
event occurs in consequence of another event, such as when a ball drops to the
ground. The semiotic operator in secondness is the object. Secondness is more
commonly a part of a lawyer’s practice.
Thirdness is the realm of explanation. It is experienced intellectually as the
reason we accept for why the ball fell to the ground. For example, the ball fell
because of gravity. The semiotic operator in thirdness is the interpretant. The inter-
pretant is an ever-changing conglomerate of rules and understanding regarding two
events that each person keeps in storage to apply when a seemingly similar future
event occurs. Thirdness always appears in a lawyer’s practice.
Because an interpretant associates an object with a sign, an interpretant must
utilize other interpretants in order to allow us to make sense of the relationship
between the object and the sign. For example, the definition of a word is an interpre-
tant, but understanding the definition itself requires understanding the interpretants
associated with each of the words in the definition, thus intertwining the semiosis of
one sign/object/interpretant with an infinite number of other signs/objects/interpre-
tants (Everaert-Desmedt 2006). Because instances of thirdness occur constantly in
the practice of law, indeed constantly in communication, infinite semiosis is occur-
ring at all times in the practice of law. As Peirce put it, “[secondness and thirdness]
are the being of actual fact, and the being of law that will govern facts in the future”
(Broekman 2010, p. 34). Thus, it can be seen that when lawyers practice, through
oral argument or written argument, they make meaning. The difference between the
two legal traditions is in how they make meaning in the law.
Finally, Peirce’s ingenuity revealed that in any given situation where commu-
nication is occurring, a final interpretant exists, which he called “habit.” As
humans, the more often we interact with a sign, the more likely we are to enter
into a habit of attributing a certain signification to that sign in a given context.
Such a “freezing” of the infinite semiosis allows those participating in that
communication to reach a consensus on “reality” in a given context (Everaert-
Desmedt 2006). Although Peirce recognized this concept in the form of a habit,
it is not the only time that humans “freeze” the infinite character of semiosis. It
can also occur for brief periods of time in law when judges use their authoritative
power in legal discourse to determine the legality or illegality of a given set of
facts. While habit may also pervade such judicial decisions, there is a separate
assertive action that judges can take under both the Civil Law and Common Law
traditions to set the meaning of the law in a given instance. When such “freezing”
actions take place, the meaning has risen to the “surface” of language. Greimas
examined this depth and surface of language in detail, mainly in literary texts and
contexts.
118 E.J. Cyran
7.2.2 Greimassian Theory of Legal Semiotics
One of Greimas’s greatest contributions to semiotics is the differentiation, the

formal representation, and thus the understanding of surface and deep structures
of narratives. That understanding appears to be essential for law and legal
discourse. Although the names of phenotext and genotext were given by Kristeva,
their structures were identified by Greimas. Greimas explained the deep structure,
or genotext, through the use of semiotic squares. Because law, like any discourse,
is a discourse within the master social discourse, there are legal meanings and
social meanings for a given sign within the deep structure of language. However,
the legal discourse itself does not have a deep structure (Jackson 2010), because
the legal discourse is an artificial discourse. An artificial discourse is a discourse
in which one or a number of authoritative figures give definite meanings to signs.
Comparatively, in a natural language, meanings of signs cannot be limited. The
reason for this lack of limitation is the nature of the decision-making process in
communication. In a natural discourse, each actor has the power to discover or
attribute a meaning to a sign, and effectuates it through communication. This
meaning becomes part of the depth of the sign/discourse, i.e. its genotext. Because
in an artificial discourse, such as legal discourse, the meaning of any sign is deter-
mined by authoritative figures who are given the power to decide that meaning, a
sign’s meaning in an artificial discourse will be that meaning that ultimately serves
the goals of the language. In the case of legal discourse, the meaning of a sign will
be that meaning that serves “justice” in a given instance, as determined by an
authoritative figure. In other words, the decision-making process of meaning is
identical to the functionality of the language. The reality of legal discourse is that
an institution (government) is achieving its goals by using language and employing
functionaries, or “authoritative figures,” define meaning. These authorities consist
of courts (through judges) and legislatures (through legislators). Thus, unlike in a
natural discourse where anyone can participate in the decision-making process of
meaning through communication, in an artificial discourse, only those who
communicate with the functionaries can actually influence the meaning of signs.
In legal discourse, it is only those lawyers or individuals who communicate with
judges or those lobbyists who communicate with legislators that can potentially
impact the meaning of a sign. Note that any law review article or text that is used
persuasively by a lawyer or lobbyist when that individual is communicating with
a functionary may also influence a future legal meaning.
Because of this nature, the depth of the structure of legal discourse is severely
limited in its development. It is limited in its existence by precedent in the Common
Law tradition and by judicial authority in the Civil Law tradition. Under the Common
Law tradition, past legal meanings include the reasoning and holdings of cases in
equal or superior courts. Under the Civil Law tradition, past legal meanings may
include: past rationales that the lawyer or judge has previously used personally in
deciding similar cases, truncated decisions of the European Court of Justice (ECJ),
Court of Human Civil Rights, or any superior court to the court responsible for
aking the decision in any given case (because the judge seeks to avoid reversal)
m
(Merryman and Perez-Perdomo 2007, p. 38), and the interpretation of the code with
clarity, coherence, and consistency in order to uphold the law (Merryman and Perez-
Perdomo 2007, p. 48). If there is any possibility that stare decisis appears to impact
a judicial decision in a Civil Law jurisdiction, it is dispelled by the fiction that the
judge fully developed the reasoning himself and that the law is consequently clear
(Merryman and Perez-Perdomo 2007, pp. 83–84). Thus, in either legal tradition, a
wealth of meanings accumulates in the shallow depths of the phenotext of law.
According to Greimas, the basis of the deep structure consists of elementary
structures of signification that can be found in all discourses over all cultures
(Jackson 2010). While these structures form the requisite environment for any
discourse, Greimas also identified the general knowledge at this level as being
thematic and organized by the structure of the narrative (Jackson 2010), also referred
to as the actantial model. Greimas believed that as humans we begin each action,
each thought, with a goal. Inherently, this goal must involve a semiotic object or
sign as its “subject.” The subject will proceed through a narrative by being helped
or hurt by actors as it results in either achieving or failing to achieve its goal. The
narrative process completes with a reflection upon the past actions of the subject. As
Jackson describes:
Human action (whether real or fictional) thus appears meaningful in terms of a basic
(“narrative”) sequence, which consists in the setting of goals (“contract”), “performance”
(or non-performance) of those goals, and “recognition” of that performance (or non-
performance). (Jackson 2010)
This innately human process of meaning is of the utmost importance in the prac-
tice of law. Whether under the scrutiny of a jury of peers or a jury of judges, the
story of the facts, i.e. the factual story presented by the lawyer, is processed through
the minds of the jurors by the narrative scheme. However, the trial process under
both traditions is not simply one coherent narrative. There is the “story told in the
trial,” in which the subject of the narrative is the fictional character of the defendant
(or the subjects are both the defendant and plaintiff) who proceeds through the story.
There is also the “story of the trial” starring one lawyer as the protagonist and
involving all of those people with whom he interacts, or multiple stories of the trial,
with different members of the legal discourse as the subjects. Under each legal
tradition, the narrative process adds to the development of legal meaning, albeit
different in the Common Law tradition and in the Civil Law tradition.
Greimassian semiotics would contribute to legal semiotics the idea that legal
discourse is not one large entity, but rather the quality of a particular discourse
within an embracing discourse, that functions as one of the main master discourses
in society and western culture (Jackson 2010). Instead of referring to the “law,” each
legal discourse refers to another legal discourse. For example, a judge, within a legal
discourse between himself and a lawyer, may refer to legislation. The advantage of
this approach to understanding legal semiotics is that it is pragmatic. One can com-
pare, as one might naturally desire to, a specific legal discourse to other discourses,
such as a doctor-patient discourse (Jackson 2010). Furthermore, legal traditions
120 E.J. Cyran
may be considered comparatively for their similarities in individual legal discourses,

as well as on a larger scale as a part of the “law,” free from the constraints of being
analytically a part of one master legal discourse. Of course, it cannot be ignored
that, in the aggregate, law is a master discourse. Lacan contributes to legal semiotics
via his semiotic insights an understanding of this master discourse.
7.2.3 Lacanian Theory of Legal Semiotics
A master discourse creates the norms in which a society operates (Wirth 2009, p. 86).
Master discourses are the result of the interaction of a master signifier and
knowledge, which is otherwise termed a “battery of signifiers” (Unattributed 2010).
By identifying a subject in a certain manner, the master signifier gives a meaning to
that subject, or the “signified,” that is superior to the meanings given to it by all
other signifiers. In essence, the master signifier speaks with one voice. Lacan
stressed the importance of this function in society. A master signifier provides a
sense of security and closure regarding truly ungraspable terms such as democracy,
freedom, right, and wrong. Within the practice of law, each judge is a figure of the
master signifier, with the U.S. Supreme Court being the ultimate master signifier
under the American legal tradition through the doctrine of stare decisis. Under this
tradition, the decisions of the highest state courts on Common Law matters, and the
decisions of the U.S. Supreme Court on federal and constitutional matters, create
the strongest sense of law that can be found. In the European Union, the ECJ has a
similar, but narrower role under the Civil Law tradition. While the doctrine of
stare decisis does not operate per se; courts of their own Member State may reverse
civil law judges. At the Union level, the ECJ has the authority to speak with the
ultimate voice on matters of EU law (Broekman 1999, p. 17) belonging to the acquis
communautaire by order of the Treaties since 1951 and the accession rules accom-
plished by the Member State (Broekman 1999, pp. 164–168). The acquis can be
described as:
…the acceptance of the rights and the obligations, actual and potential, of the community
system and its institutional framework. (Broekman 1999, p. 165)
Through the acceptance of this policy by an acceding member state, the ECJ is
the master signifier on issues relating to EU Law, and thus, all Member States law.
This includes all law originating under the Treaties signed by Member States, and
general principles of law, arguably originating from cases themselves and then
being applied to later cases (Broekman 1999, p. 17). Along with the ECJ and other
EU courts, law is signified by the legislatures of each Member State. Thus, under
the Civil Law tradition in Europe (where it has expanded from the standard Civil
Law model of legislative supremacy over judicial hierarchy found in other Civil
Law countries to the model of the European Union), the legal discourse is a master
discourse created by the process of law, both through legislation and judicial
decisions.
Although Greimas would disagree with Lacan and emphasize that the law cannot
be seen as one master discourse, but a conglomerate of multiple master discourses
without reference to any extra-linguistic body of “law” (Jackson 2010), it can be
seen that, from the perspective of the practicing lawyer under either tradition, it is
useful at times to consider the law as one master legal discourse, or in the very least,
as having one of its multiple discourses reign supreme. When the ECJ or U.S.
Supreme Court reverses a lower court, it does so in reference to Treaties, principles
of law, or a constitution. Can it not be said then that such a process of law by master
signifiers is the supreme legal discourse, using the fundamental batteries of signifi-
ers to declare meaning? From the lawyer’s point of view, it would seem ignorant to
disregard such authority, both of law and judicial hierarchy, when preparing a case
under either legal tradition. While it is true that Civil lawyers may consider all of
EU and their Member State’s law to be the “law,” and Common lawyers may
consider the “law” to be in a constant state of flux, malleable to their liking, the
practicing lawyer under either tradition shares a similar recognition of the supreme
master signifier. It is after that recognition that the understanding and practice of law
diverges between the traditions. The next section will proceed to examine the
differences in the understanding and practice of law under both legal traditions.
7.3 Semiotic Differences in Both the Understanding

and Practice of Law Between the Traditions
While many individual acts of the Civil or Common lawyer may be analyzed
semiotically, it is the intention of this paper to highlight some of the most substantial
differences in legal semiotics between the traditions. Both the model and practical
uses of the law with regard to each difference will be examined. The potential for
misuse of the legal process will be explored in Part 4. Only civil and criminal
procedure – the traditional operation of the courts – will be discussed, and not the
operation of constitutional or administrative law because of the complexity of
understanding the jurisprudence and its institutional character.
7.3.1 The Difference in Judicial Authority Renders

the Phenotext of the Practicing Lawyer’s Legal Discourse
with More Meanings Under the Common Law Tradition
In the Civil Law tradition, the model of the legal process positions the judge as
operator of the law and the judicial process as one of administration of the law. As
a privileged participant in legal discourse, the Civil lawyer seeks to communicate
to the judge his application of the law to the facts at hand. In the Common Law
tradition, the model of the legal process positions the judge as a protector of rights
122 E.J. Cyran
and fairness. He may overturn the law if he finds that it violates common law rules
or if it is inconsistent with other law. In contrast, under the Civil Law, judicial
reversal of laws on grounds of inconsistency can only happen under narrow
circumstances, specifically those cases brought “in the interest of the law,” and
brought before the ECJ or another EU court. The difference here is ideological,
stemming from the concern under the Civil Law tradition that granting the judge
broad authority is a danger to the certainty of the law (Merryman and Perez-Perdomo
2007, pp. 48–50).
This difference in judicial authority affects the semiotics of the practice of law
substantially. Whenever communication is limited and the bounds of discussion
narrowed, the semiotics of a process changes because potential meanings of signs
involved are restrained. When a Common Law court issues an opinion, the legal
meaning given by that court to a rule or set of facts becomes a part of the phenotext
of the Common Law. Because under the Civil Law model court opinions are not
issued and dissenting votes are neither reported nor discussed (Merryman and
Perez-Perdomo 2007, p. 122), the phenotext of the Civil Law does not include
these potential meanings. Inherently, under both traditions, the fact that legal
discourse does not include a genuine genotext, but only a phenotext, already limits
the potential meanings of a sign in legal discourse. By adding in the extra layer
from the Civil Law process that a judge may only decide the law’s application to
the facts, the discourse between lawyer and judge inherently decreases in size, as
less potential arguments are available.
For example: under the Common Law, a lawyer may brief the judge or judges on
several arguments ranging from the factual application of the law to the constitution-
ality or legality of the law itself. In front of a Civil Law court, the lawyer must only
address the factual disposition of the case. Similarly, in regard to the involvement of
precedent case law in legal discourse, a Common lawyer may often argue more
possible meanings to a set of facts or a rule than a Civil lawyer, simply because the
bank of data available to be discussed is larger. Furthermore, because the ideology of
the Common Law tradition is to interpret and mold the law with new cases, the legal
process itself is fully open to additional meanings for a given rule or a set of facts.
The phenotext of the Common Law available to a practicing lawyer must necessarily
be larger because the lawyer can argue more meanings.
In no way is this observation an indictment of the Civil Law tradition. There is
arguably substantial merit in resting such aspects of legal discourse with particular
appeals to the ECJ and EU courts, and not with the legal process of trial courts or
member state appellate courts. After all, it is a separate ideology of law. Nonetheless,
there is a notable difference in phenotext within the legal discourses of both
traditions.
One might expect that a narrower phenotext would substantially affect the pro-
cess of meaning generation outlined by Peirce. As discussed above, thirdness, or the
operation of the interpretant, explains the relationship between a sign and an object.
Because cases are not reported and opinions not issued, there are fewer determined
relationships between rules and facts (there are fewer instances of secondness and
thirdness) residing in the phenotext of Civil Law discourse for the development of
the interpretants of future lawyers. Furthermore, because lawyers are unable to

participate in the making of law in Civil courts, the entire legal discourse involved
in creating legislation is absent from the phenotext of Civil Law discourse between
lawyers and judges. Hence, each Civil lawyer and judge must have fewer interpre-
tants between facts and rules and fewer interpretants between constitutional rights,
policy, facts, and rules. (Note: This is not to say that such interpretants do not exist
in the legal discourse of Civil Law. Quite the contrary, they may settle in other
places such as the discourse of the legislature or the legal discourse between judges
and appellate lawyers in the ECJ and other EU courts. Nonetheless, without the
direct link between cases and their decisions being reported, such relationships
between rules and facts simply are not available to practicing lawyers in trial courts,
outside of personal experiences of past cases.)
To be sure, the phenotext of Civil Law discourse has other meanings, which
the phenotext of Common Law discourse does not have. Because of the Civil
Law ideology, lawyers and judges look to fit the facts into the law, not to mold
the law into the facts (Merryman and Perez-Perdomo 2007, p. 49). Thus, Civil
lawyers and judges seek to apply the law with clarity, coherence, and consis-
tency, toward an ultimate goal of certainty. The techniques and rationales that
have been developed to fit the facts into the law are certainly part of the pheno-
text of the Civil Law discourse. Civil lawyers and judges learn about these tech-
niques and rationales in law school and in practice. However, the addition of
these potential meanings for rules and facts still does not increase the size of the
phenotext of the practicing lawyer’s legal discourse to that of the Common Law.
While the phenotext of the Civil Law discourse (at least, as Greimas would say,
the legal discourse between judges and lawyers) is admittedly different in quality,
it is also different in extent.
The second difference in judicial authority between the two traditions is that of
the power to provide equitable remedies. Equity is “the justice of the individual
case” (Merryman and Perez-Perdomo 2007, p. 49). In the Common Law, judges are
charged with the discretionary authority to ensure the administration of equity, but
in the Civil Law, for fear of the impact on certainty of the law, the equitable power
of judges is restricted by statute (Merryman and Perez-Perdomo 2007, pp. 49–50).
The application of equitable remedies to a given case is truly a role of the legislative
discourse in Civil Law. For this reason, the phenotext of the Common lawyer’s legal
discourse includes equitable meanings and the Common lawyer may develop those
interpretants. Although the source of judicial authority is different for equity under
the Civil Law, a Civil lawyer’s legal discourse often still includes some meanings of
equity. This is because in practice, the Civil legal process provides the judge with
equitable power in certain delineated situations within the code, such as when
parties fail to act in good faith during contract negotiations (Merryman and Perez-
Perdomo 2007, pp. 52–53). In the cases where such authority is conferred upon the
judge, Civil lawyers will be able to participate in this equitable legal discourse.
Furthermore, even though judicial opinions are not published in Civil Law, lack of
case precedent does not identify a significant difference between the traditions with
regard to equitable discourse because case precedent is not often used to fashion
124 E.J. Cyran
equitable remedies under the Common Law. Rather, the judicial resolution of a case
in equity will involve applying notions of fairness and notions from the nomoi
to facts of the case. Thus, the legal discourse of the practicing lawyer is in both
traditions similar only when equitable Civil Law judges wield power.
7.3.2 Differences in Civil Procedure
Outside of the impact of differences in judicial authority upon the legal process, the
difference in ideologies regarding the development of law continues to have its
semiotic effects within the civil procedure of both traditions. There are two substan-
tial differences in civil procedure (other than the remedy of equity) that this chapter
will explore: the absence of a right to trial by jury in a civil case under the Civil Law
and the potential awarding of extra-compensatory damages in a civil case under the
Common Law.
First, under the Common Law tradition, specifically the American tradition, a
defendant has a right to trial by jury in any civil or criminal suit, whereas under the
Civil Law tradition, no such right exists. Instead, a defendant in a civil suit within a
Civil Law jurisdiction will proceed through a three-stage process beginning with
pleadings, followed by the presentation of evidence to a hearing judge, and concluding
with the submission of briefs, oral arguments, and a disposition by the deciding
judges (anywhere from one to three) (Merryman and Perez-Perdomo 2007, p. 113).
There are several important implications from this process. First, besides not involv-
ing a jury, this process is spread out over many separate events, which are taking
place as discussions about written texts, providing ample time for lawyers to prepare
between meetings with the judge. Such a lack of concentration of the legal process is
foreign to Common lawyers, who must prepare for trial from the first instance of
pleadings (Merryman and Perez-Perdomo 2007, p. 114). Second, only the hearing
judge may ask the witnesses questions, but the questions are those submitted by the
counsel for the parties after reviewing the opposition’s questions. Therefore, not only
is the process much less immediate, but no cross-examination exists to influence the
fact-finder (Merryman and Perez-Perdomo 2007, pp. 116–117). Finally, because the
hearing judge in the Civil tradition prepares a summary of the facts for the deciding
judges, any meaning that the hearing judge developed through the demeanor or tone
of voice of the witnesses only impacts the disposition of the case if the hearing judge
includes those impressions in his fact summary (although counsel for the parties may
brief the judge on how to word the fact summary) (Merryman and Perez-Perdomo
2007, pp. 116–117).
The result of the legal process in civil cases under the Civil Law tradition is that
the development of meaning from Greimassian narratives is limited to that of the
“story told in the trial,” which consists of mostly the written facts communicated by
the lawyers to the judges. Because of the extensive length of trial, the “story of the
trial” has little, if any, impact upon the hearing or deciding judges. Do not forget
how stories told by lawyers through written communication are substantially

different than those acted out in the theater of the trial because legal writing is
highly institutionalized. In contrast, under the Common Law tradition, the “story of
the trial” can take on a life of its own. It is the reason why the best trial lawyers
strive to captivate juries. If the jury focuses on the lawyer’s objections, facial expres-
sions, comments, and interactions with opposing counsel and the judge (issues that
cannot arise in writing), this second story “of” the trial can impact the jury’s final
decision to such a degree that it eclipses the story told “in” the trial. In essence, the
trial lawyer has become the subject of the Greimassian narrative, whose goal is to
“get the facts right,” and whose performance is impacted by the help or antagonism
of opposing counsel and the judge. What makes the tactic even more effective is that
the jury can feel that they, too, are a part of this narrative or another narrative, and
can see themselves as a helper or, even more enthralling, as the subject. After all,
upon the delivery of a verdict, the jury will reflect upon its own collective action.
While the development of meaning that occurs from the story of the trial may be
considered important to the determination of the facts, it is only when the defendant
is actually guilty, and the plaintiff/prosecutor’s story of the trial triumphs, that such
a development of meaning adds to the goal of the legal process – to administer the
law. Otherwise, the multi-narrative of the Common Law trial adds meaning where
arguably it does not belong.
The second substantial difference in the civil procedure between the two traditions
is the type of damages available to be awarded to prevailing plaintiffs. Under the
Common Law, plaintiffs may recover punitive damages, or similar extra-compensatory
damages, in a civil suit after a finding that the defendant committed the actionable
conduct with the requisite reprehensibility. The availability of such damages is, in
itself, an excellent example of the constructive power that shapes legal discourse and its
meanings. Under the Civil Law tradition, damages beyond those that are compensatory
would be seen as exceeding the power of the judge, and only occur within the
boundaries of criminal law. Defendants can still be liable for similar reprehensible
conduct as in a Common Law case; however, the legal process involved is criminal and
the “damages” are actually a fine defined by the legislature and paid to the state
(Merryman and Perez-Perdomo 2007, p. 124).
Unlike the effect of a civil trial on the semiotics of a practicing lawyer, the award
of extra-compensatory damages (or the absence of such an award) creates only a
small difference in the development of meaning in legal discourse under either
tradition. Under both traditions, a lawyer would argue the reprehensibility of the
defendant’s conduct to the fact-finder to determine liability, and precedent is not
used under the Common Law to determine the amount of damages (like the admin-
istration of an equitable remedy). Thus, neither the phenotext of the legal discourse
is notably different between the traditions nor are interpretants substantially affected.
The difference might be more evident on appeal when one party argues for the vaca-
tion of such damages due to their excessive nature. There, precedent would be
utilized by a Common lawyer. Under the Civil tradition, criminal law would handle
the entire remedy, assuming the process is even initiated by the public prosecutor.
126 E.J. Cyran
However, the only differences in legal discourse between the criminal case under
the Civil Law and the Common Law inclusion of the extra-compensatory damages
in the civil case are those addressed above with regard to the size of phenotext.
Because of the ideology of judicial authority, the Civil lawyer could only argue the
application of the law to the facts, and could not raise the illegality of the law as an
argument (except to appropriate courts).
7.3.3 Differences in Criminal Procedure
The differences in criminal procedure between the two traditions are much fewer in
number and severity than in civil procedure (Merryman and Perez-Perdomo 2007,
p. 125). Most significant differences have been reformed over the centuries, such as
a lack of presumption of innocence (Merryman and Perez-Perdomo 2007, p. 132).
Additionally, defendants have a right to trial by jury under the Civil tradition, even
though the members of that jury may be judges instead of laymen and the number
of jurors may be smaller than the twelve commonly found in Common Law juries
(Merryman and Perez-Perdomo 2007, p. 132). Finally, although some American
states still have a few common law crimes, the vast majority of states define all
crimes by statute, like in Civil Law countries.
One notable difference between the traditions is that the Civil tradition does not
require a defendant to be sworn in to testify (if he testifies at all), whereas the
Common Law requires the defendant to either be sworn in or not to testify. While
on its face this does not make much of a difference, the way that the traditions uti-
lize the decision of the defendant to testify does affect meaning. Under the American
Common Law, a defendant’s decision not to testify cannot be used against him in
determining liability or sentencing. However, under the Civil tradition, a defen-
dant’s decision on whether to testify may be used against him both for liability and
sentencing. It is obvious then that such an action becomes a part of the phenotext of
the legal discourse of that particular trial. It is a reason aside from the application of
the law (albeit application itself) to find the defendant guilty. Nevertheless, this
effect is not the most important distinction of criminal procedure between the two
traditions. Furthermore, the absence of an ability of Civil lawyers to challenge the
legality of a criminal statute in trial court, also different than under the Common
tradition, is not the most important difference.
By far the most substantial difference in criminal procedure between the two
traditions is that Common lawyers are able to examine and cross-examine witnesses
in front of the jury, while judges in the Civil tradition ask the questions as submitted
by counsel. Like in civil suits under the Common tradition (because Common law-
yers run the trial), the development of meaning is driven by multiple narratives. The
existence of this freedom for the practicing lawyer in Common Law legal discourse
is one of great concern semiotically because meaning may be manipulated in what
might be considered gross fashion.
7.4 When and Why a Semiotic Imbalance Exists,

and When It Should Be Corrected
When discussing the impact of differing ideologies on judicial authority between

the traditions, it was noted that the phenotext of the practicing lawyer’s legal dis-
course differs in size between the two traditions. Common lawyers can argue mean-
ings found in past cases and legislative history, and bring claims in trial court of the
unconstitutionality or illegality of laws, while Civil lawyers argue for the clear,
coherent, and consistent administration of the law to the facts, in order to uphold the
certainty of the law. Like the difference in the award of extra-compensatory dam-
ages or the use against a defendant of his choice to testify, this difference in legal
tradition should not be one of concern to legal semiotics. All three of these differ-
ences are not semiotic imbalances. I use the term “semiotic imbalance” to refer to
the existence of an unwanted effect upon the development of meaning caused by
any practice or procedure. An unwanted effect in legal semiotics is one that dam-
ages the development of meaning, thereby carrying a substantial risk of preventing
the law from being administered – that is, preventing it from realizing its goal of
determining whether the defendant did or did not do something illegal.
For both the Common Law and Civil Law, inaccurate application of the law is of
grave concern because it leads to uncertainty (the antithesis of the goal of both tradi-
tions). The potential for a semiotic imbalance in discourse exists when the discourse
is susceptible to misuse, i.e. susceptible to the manipulation of meaning by an indi-
vidual or a group of individuals. In exploring the differences in the understanding
and practice of law between the Common Law and Civil Law traditions, this paper
has identified the potential for misuse of the Common Law jury trial by a practicing
lawyer. In this instance, the Civil Law does not need to be concerned with a semiotic
imbalance, as it avoids it by resting the procedural power of the trial in the hands of
the judge by charging him with examining witnesses solely with counsel’s submit-
ted questions. As explained above, the Civil Law trial removes the effect of the
“story of the trial” upon meaning in legal discourse. The Common Law, on the other
hand, cannot escape, either in civil or criminal trials, the potential for a lawyer to
manipulate the meanings of the facts through the use of multiple Greimassian nar-
ratives. In the hands of a talented trial lawyer, the “story of the trial” may become
an epic, involving a multitude of subplots and characters whose interplay allow for
the obscurity of the evidence presented, and the false acquittal or conviction of the
defendant. One might argue that when the practice leads to the accurate result, i.e.
that the defendant is acquitted when he is innocent or is convicted when he has vio-
lated the law, the practice benefits legal discourse. However, even an accurate judg-
ment obtained by the obfuscation of meaning is concerning to the Common Law
because a semiotic imbalance should not be necessary to reach the truth under the
law. If such an imbalance was necessary, then the law would be uncertain, and legal
discourse would be a virtually meaningless endeavor.
An advocate of Common Law trial practice may also argue that there are suffi-
cient rules in place to prevent such a farce from occurring. However, the rules of
128 E.J. Cyran
evidence and the judge’s role as referee cannot come close to substituting for the
effectiveness of the Civil Law approach, which eliminates the risk almost entirely.
Moreover, the “story of the trial” itself is not banned. In fact, it is taught in advocacy
classes in American law schools. Without a doubt, this practice stands as the greatest
and most substantial difference between the Common Law and Civil Law traditions,
and the one most in need of attention by scholars and practitioners alike.
7.5 Conclusion
While there are many notable differences in the understanding and practice of law
between the Common Law and Civil Law traditions, including the extent of judicial
authority, no difference has a greater effect on the semiotics of the law than that of the
practice of trial law. Whether the semiotic imbalance present in the Common Law
discourse of the trial may be corrected is a difficult question to answer, and is beyond
the bounds of this text. However, the identification of the practice and the definition of
a “semiotic imbalance” are of great importance to legal semiotics. Additionally, the
semiotic effects of such a practice are likely to have substantial importance to Common
lawyers who want to avoid unwanted effects upon their clients.
In their book, A Civil Law Tradition, Merryman and Perez-Perdomo note the
observation of a comparative lawyer when posed the question which legal tradition
is more just, the Common Law or the Civil Law. They stated that “… if he were
innocent, he would prefer to be tried by a Civil Law court, but that if he were guilty,
he would prefer to be tried by a Common Law court” (Merryman and Perez-Perdomo
2007, p. 133). It is clearer now to this reader, and hopefully one day to those wielding
the power to correct this imbalance, why the answer of this comparative lawyer has
so much meaning – a meaning unveiled through a semiotic approach of the two
major legal traditions.
References
Broekman, Jan M. 1999. A philosophy of European Union law. Paris/Leuven: Peeters.

Broekman, Jan M. 2010. Peirce and legal semiotics. In: Semiotics of law. http://semioticsoflaw.
com/site/secondschool.php. Accessed January 5, 2010.
Everaert-Desmedt, Nicole. 2006. Peirce’s semiotics. http://www.signosemio.com/peirce/a_
semiotique.asp. Accessed January 5, 2010.
Jackson, Bernard. 2010. An outline of Greimasian semiotics. http://semioticsoflaw.com/site/
firstschool.php?PHPSESSID=35027bcd3c12a5b9026d3195e16603cb. Accessed January 5, 2010.
Merryman, J.H., and R. Perez-Perdomo. 2007. The civil law tradition. Stanford: Stanford
University Press.
Unattributed. 2010. Four discourses. Wikipedia. http://en.wikipedia.org/wiki/Four_discourses.
Accessed January 5, 2010.
Wirth, Michelle Louise. 2009. Who’s your daddy? Or: Using semiotic tools to deconstruct legal
determinations of who holds parenthood obligations and privileges. International Journal for
the Semiotics of Law 22: 83.
Chapter 8
Semiotics in Legal Theory Design
8.1 Introduction
The search for understanding the essence of law developed considerably over time.
Earlier theorists endeavored to define law as commands, or statutes, or judicial deci-
sions. Their attempts failed to satisfactorily answer the question. Hart, recognizing
this shortcoming, considered that the traditional type of definition was impractical
in the case of law.
It is possible now to see why this speculation has usually been conceived as a search for the
definition of law, and also why at least the familiar forms of definition have done so little to
resolve the persistent difficulties and doubts. Definition, as the word suggests, is primarily
a matter of drawing lines or distinguishing between one kind of thing and another, which
language marks off by a separate word. The need for such a drawing of lines is often felt by
those who are perfectly at home with the day-to-day use of the word in question, but cannot
state or explain the distinctions which, they sense, divide one kind of thing from another.
(Hart 1997, pp. 13–4)
Hart concludes that defining law is impossible and unhelpful; therefore he attempts
to describe law conceptually. Whereas, a definition of law functions as an exoskeleton
cordoning off the outer limits of what can be considered law, a conceptual description
creates an endoskeleton laying out only the requisite core structure.
[Hart’s] purpose is not to provide a definition of law, in the sense of a rule by reference to
which the correctness of the use of the word can be tested; it is to advance legal theory by
providing an improved analysis of the distinctive structure of a municipal legal system and
a better understanding of the resemblances and differences between law, coercion, and
morality, as types of social phenomena. (Hart 1997, p. 17)
Hart thus builds his theory of law by contemplating the bare essentials necessary
for constituting a legal system. Dworkin takes Hart’s advancement from a single
J.A. Ellsworth (*)

JD, LLM, Ass. Public Defender, St. Lawrence Cty NY, USA
e-mail: jamans28@gmail.com
130 J.A. Ellsworth
definition to a single conceptual description and expands upon it. He maintains that
there is a very basic and abstract concept of law, which communities agree on and
this allows for intellectual debate to take place concerning law. Without this shared
abstract concept of law people would merely be talking past one another when
arguing about the idea of law. However, beyond this shared concept of law,
individuals develop plethoric conceptions of law, which are more concrete and
extensive understandings concerning the unitary concept of law.
The contrast between concept and conception is here a contrast between levels of abstraction
at which the interpretation of the practice can be studied. At the first level agreement collects
around discrete ideas that are un-controversially employed in all interpretations; at the second
the controversy latent in this abstraction is identified and taken up. (Dworkin 1986, p. 71)
Dworkin’s progression from the idea of a singular conceptual description of law

to the idea of the concept/conceptions split places in perspective: how can there
possibly be so many competing understandings of such a basic human institution as
law? I intend to start off with an exploration of semiotics, which provides a further
advance in this theoretical context. Semiotics is the study of how meaning evolves
and its relation to signs such as the words representing concepts and conceptions.
Next, there will be a section consisting of a semiotic analysis of law. This will begin
with a general discussion of law and semiotics, which will be followed by a more
detailed potential conception of law that is cohesive with a semiotic understanding.
8.2 Of Semiotics
There is no objective reality. Human beings can only directly experience reality
through their senses, which are naturally flawed and limited. Therefore, we each
independently experience only a subjective reality shaped by our senses. This sub-
jective reality perceives the objects of reality in terms strictly of sense experience:
images, noises, smells, textures, and tastes. However, human beings do not live in
isolation; they interact with other people and are social creatures. Through the use
of communication we achieve a ‘collective subjective’ reality or a reality we call
‘objective’. MacCormick terms this dichotomy as perceptual consciousness and
narrative awareness (MacCormick 1996–1997, pp. 1051–2).
To think about the world, certainly to think of it beyond one’s perceptual field, is to have
some kind of picture or narrative account of it. This frames how I think it is, has been, has
come to pass, and will probably go on. The meaning of such thoughts is clear enough, for
they either match the world or they do not, and if they do, that is how it really is. (MacCormick
1996–1997, p. 1052)
Kevelson, interpreting Peirce, provides further explanation:

As long as one speaks of subjective perception of the external world, this perception is held
to be complete. But when one extends perception, that is, the idea of perception, to be of an
objective character, then objective perception is incomplete and requires confirmation of its
presumed factiveness by an Other. This is the duality that . . . is the nature of all sensible
8 Semiotics in Legal Theory Design 131
perception . . . the problem is that the very mode of sensible perception is both a unity and
a duality; it is the duality that dominates. The unity of subjective perception may be “whole”
and the duality of objective perception may be “partial,” but it is the partiality, like a point
of view, that permits the “observable” conceivable unity to be inquired into, to become
defined as an “idea,” and hence to be represented and be recalled at will, that is, freely.
(Kevelson 1999a, p. 88)
Regarding this point, I think it interesting to comment on, at least in my opinion,

a related idea in McCormick. When we consider the ‘ought’ we can have a relatively
complete understanding; for instance, a legal code. However, in reflection upon
the ‘is’ we usually have much more limited knowledge; often relying on other’s
input and still having an incomplete representation (MacCormick 1996–1997,
pp. 1052–3).
Each of us has reality vindicated by the people around us who share that reality.
If we all see a dog sitting next to that tree, then we can feel comfortable saying there
is a dog sitting next to that tree. However, if I am the only one in the group that sees a
dog sitting there and everybody else observes empty space, then I may start to ques-
tion the validity of my subjective reality based on the collective subjective reality that
approaches but is not true objective reality. Peirce refers to this phenomena as Common
Sense, not the common sense as in knowing enough to get out of the rain, but instead
that you and I are both standing outside in the rain and can both have sensorial
experience of the rain thereby confirming for one another that the rain we each feel is
real and not just our own mistaken subjective reality (Kevelson 1999a, p. 90).
8.3 Community
The collective subjective is why community is invaluable to human experience,

allowing our reality to be more assured. Reality is what humans in a group can,
through the acts of communal fact gathering, mutual confirmation and collaborative
reasoning, establish it as being. Peirce concludes:
The real then, is that which, sooner or later, information and reasoning would finally result
in, and which is therefore independent of the vagaries of ‘me’ and ‘you’. Thus, the very
origin of the conception of reality shows that this conception essentially involves the notion
of a COMMUNITY, without definite limits, and capable of a definite increase of knowledge.
(Peirce 1931, p. 311)
Therefore, human reality is intimately tied in with community. Furthermore,

communication establishes this reality. People are capable of sharing their sense
experience and thereby validate each other’s subjective reality through the use of
language, and other signs.
Community is essential because it demonstrates semiotic relevance through its unity of
interpretation and experience. Who speaks about Words, speaks about ‘Together’: the word
‘community’ points on the one hand to semiotics because of its social practice to engender
consistency in interpretation of signs and meanings, and on the other to logic because of the
structure of its experiences. (Broekman 2009a, b)
132 J.A. Ellsworth
‘Community’ implies webs of mutual understanding because shared experience

allows members of that community to assign the same meaning to signs/symbols/
referents. This shared understanding holds the community together and makes real-
ity comprehensible.
8.4 Firstness, Secondness, Thirdness
The shared signs/symbols/referents on which the community-members count evolve

through the Peircean cycle of Firstness/Secondness/Thirdness, as interpreted by
Kevelson. Firstness is what we originally experience perhaps through our senses,
what our world would consist of if we only had a subjective reality, pure sense
experience; or in our minds when we first perceive an idea or concept. When we
hear a spoken word in that situation of firstness, we would not realize it was a word
but would just hear the sounds as noises without meaning or purpose. When we see
a stop sign it is the colors and the imagery as its basic visual impression that we
receive through our eyes but that is all. Or an idea is first comprehended such as
honor, justice, or law. Secondness is when we take that unadulterated sensory
experience/idea and then attempt to define it, structure it, limit it so as to better or
more completely understand it beyond our actual experience of it. When we take an
image of a square and measure all the sides and realize that they are all the same
length, and create a list of elements that together are equivalent to the phenomena/
idea that we first perceived. Thirdness comes after the list of elements has been
completed and the object has been defined, the object is then reduced to a sign. So
a geometric shape with such and such elements becomes reduced to the word
‘square’. Or the idea that you are required to bring your motor vehicle to a complete
halt at a specific spot is reduced to the image of a ‘stop sign’. Or certain actions such
as defending others or providing charity become the idea ‘honor’.
But however tagged and named, Firstness corresponds to the “diagrammist sign of icon,”
which represents its object in singular fashion. Secondness is the index which as a this/not
that deixis, focuses attention on the object inquired of, to the exclusion of all others.
Thirdness, or the symbol, presents a name and permits its object to signify in a general way,
as a complex or customary association of related ideas as a habit of thought (Kevelson
1999a, p. 20).
One may know Firstness as a sign, a totality perceived in spatial relations, imagistically,
iconically. But when one makes sense of that totality one has passed into the phase of
Secondness. And when one wants to be able to repeat this experience and recall it at will
from memory, from that which is not there but which may be represented, we are in
Thirdness (Kevelson 1999a, p. 38).
Here I begin by suggesting that the initial relations between inquiry, inquirer, and inquired-
into begins with the presentation or perception of a kind of resemblance. But the sensible is
not the dynamic force that impels the creating of a complex idea. Rather, the productive
process begins with a transposition of resemblance into an iconic representation and then to
symbolic representation. According to Peirce, the second step in the clarification of an idea
is to define it, to set a frame around it that indicates it is “this” and not “that”. When these
two steps are taken, a third stage requires that a relational form crystallize familiar recogni-
tion and definitive boundaries such that this now-specified area of thought becomes part of
one’s habitual store of intellectual objects or phenomena. Thus a habit of thought repeatedly
infers a general meaning from the topographical and circumscribed ideational “space” of
the idea in question. This idea, so clarified, is now a “garden” for further cultivation of its
possible meanings. (Kevelson 1999a, pp. 69–70)
Thirdness is vital; it is what allows humans to reduce the physical world around
them and the conceptual world we create in our minds into manageable, workable
signs which are efficiently communicable to other people.
Semiotics is concerned with everything that can be taken as a sign. It involves the study not
only of what we refer to as ‘signs’ in everyday speech, but of anything which ‘stands for
something else’. Signs take the form of words, images, sounds, gestures and objects. Signs
can be something active and positive, or something negative, so that an absence of an action
may also be seen as a sign. Semiotics is also the study of how meanings are made and how
reality is represented . . . Signs are by no means fixated forever; they are temporary mean-
ings in contextual situations, fluid and multi-interpretable – especially in law! Legal practi-
tioners should acknowledge how their job establishes webs of (legal) meaning through the
creation and maintenance of references (Kevelson 1999a, p. 71).
With the use of these signs we can then perform the analysis of Secondness on
other Firstnesses, as well as returning a previous Thirdness into a new Firstness as
a cycle to be repeated as our ideas evolve and develop over time and experience.
8.5 Idea-as-Continuum
The process from Firstness to Secondness to Thirdness is not a singular event for
every object. Instead it is a reoccurring event that results in a developing continuum
as the object evolves over time. Kevelson states that “[w]henever “some surprising
fact” … alerts us and calls our attention to it as a “sign” that we have not predicted
accurately, that something not expected has indeed occurred, we then reopen some
general idea-system – one that has attained to the “status” of symbol – and begin a
new inquiry” (Kevelson 1999a, p. 25). While an individual may think he knows
what ‘honor’ is, that understanding only lasts until some experience causes him to
re-evaluate that understanding, which results in a new cycle of Firstness, Secondness,
Thirdness. Therefore, “[e]very degenerate Third, that is, every interpretation and
adaptation … is a part of the idea-as-continuum” (Kevelson 1999a, p. 21).
It should be emphasized that stages of continuum are not mere linkages into an aggregate
of discrete systemic states. Rather, the development of an idea is a continuous transforma-
tion so that the preceding as well as succeeding stages of a process undergo permutation.
An immediate Interpretant, or referent sign, does not remain a constant but becomes part of
the cumulative meaning that evolves continuously. (Kevelson 1999a, pp. 72–3)
The idea-as-continuum represents not only a single evolving meaning but also
includes the permutations of meaning held at any particular temporal point; this is
134 J.A. Ellsworth
how signs end up with a multiplicity of meanings, all within the continuum. Part of
what causes the meaning of ideas to shift along the continuum is the interaction of
certain ideas with other ideas.
Semiotics, to recall, is concerned with ideas interpreting ideas. It is not only about peo-
ple interpreting ideas to the extent that every human being is a composite, complex
relation of signs and sign-functions. The ideas of people are brought forward to interpret
other ideas. The pragmatic method, which is the method of semiotics, is primarily about
the interpretation of intellectual concepts by other intellectual concepts. (Kevelson
1999a, p. 25)
When there are a variety of signs interacting with one another, interpreting one
another, developing one another, the result is a discourse.
8.5.1 Discourse/Master Discourse/Speech Acts
Discourse is a term we are all familiar with but here, specifically, it means all
communication, both verbal and nonverbal, concerning an issue and the related
interaction of signs. Discourses can encompass all that is potentially possible, no
matter how improbable, farfetched or impractical. Discourse is how one debates and
decides, at least momentarily, on the meaning of signs and aligns an understanding
of our shared experience. The evolving authoritative thread within the discourse is
known as the master discourse.
Lacan’s thoughts became famous for these expressions: master signifiers most inti-
mately bind a subject’s identity and master discourses function as important ensembles
of speech acts that guide, restrain and lead linguistic communication. The power of
these masters is in the importance those signifiers give to a subject’s identification with
them, so that orderings of all other signifiers appear in their perspective and meaning
context . . . There is an urgent need to elevate new ‘master signifiers’ to enable the
subject to reorder a sense of self and relations to others. That is an ongoing process of
great importance for law and legal practice. To know the influences of the master signi-
fiers in a lawyer’s practice and speech and to be aware of the all-embracing influence of
the master discourse within which judges consider cases means a heightened semantic
awareness when managing legal discourse . . . The masters of signification prescribe,
coerce, narrow down and limit freedom of articulation of the subjects’ discourse in
society, but they also debar access to what is deeply engraved in them. The power of
reordering meanings in a master discourse is legally, socially and politically one of the
most important sources for an individual subject in society. It is, however, a feature of
human finiteness that there is on the one hand no subject without language but that
there is on the other hand – to rephrase the terminology of structuralism – no constitu-
tively fixated secure and central place for the subject in language. When I perform a
speech act, I put myself at risk because of uncertainty about the position of the o/Other,
which I apparently need but cannot bridle. It is Lacan’s insight that a master discourse
diminishes that existential risk through reordering the subject’s catalogue of meaning.
(Broekman 2009a, b)
The institutional nature of law causes the master discourse within the legal
discourse to be an institutional fact and not merely agreement or simple coordination.
MacCormick explains that in an institutional normative order the defining feature is

having the “ultimate authority to determine” (MacCormick 1996–1997, p. 1059).
[T]he characteristic of an institutional normative order is that competent judgment in it is
conclusive within its own order, except to the extent that there is coordinated
cross-recognition of different orders, as obtained between Pope and Emperor in the Middle
Ages, or between European Communities and member-state legal orders today.
(MacCormick 1996–1997, p. 1059)
Therefore, the master discourse is the controlling discourse within the legal
d iscourse. The decisions of the courts, the prosecutor’s prosecutorial discretion, and
the statutes the legislature enacts; these are all components of the master discourse.
However, that list is not exhaustive, nor could any list actually be complete. The
master discourse consists of more than just words, but also all authoritative com-
municative behaviors; in short, every sign of the legal institution which functions to
alter or direct behavior. The master discourse, to be clear, informs individuals how
to behave. The master discourse is partially composed of speech acts, which are
communications consisting of a dual nature. First, they function to convey informa-
tion just as all the other communications in discourse. However, speech acts also
have a second and more significant result. As stated above, a speech act changes
meanings and alters behavior and understandings. In the next section, I shall apply
this philosophical outlook specifically to law.
8.5.2 A Semiotics of Law
We should now turn our attention to the task of applying a semiotic ontology to the
idea of law. “[W]henever men live together, they stand in an intellectual communion
which reveals as well as establishes and develops itself by the use of speech. In this
natural whole is the seat of the generation of law” (Von Savigny 2008, p. 1097).
8.5.3 On the Nature of Law
There is no innate ‘nature’ of law, only the socially constructed essence of law, which
evolves and changes as do all human constructs. Individuals are born into a community
and inherit that community’s characteristics, including laws and legal institutions.
Is it possible to speak of “the” nature of law, or of law’s “essential” features? Law is a
heterogeneous phenomenon with vastly different manifestations in different societies at
different times. Can these varying practices be said to share certain essential features in
virtue of which they are “legal systems”? Is it not more plausible to suppose that these
different instances are connected through partly overlapping features, and that they display
nothing more than a family resemblance to our own practice, so that the search for “essential”
features is a will-o’-the-wisp? (Lamond 2001, p. 37)
136 J.A. Ellsworth
So, a community’s ideas of law are not isolated from the rest of human knowledge,
ideas and social constructs.
The project of general jurisprudence is certainly worthwhile. However, in searching for
commonalities among all legal systems, we may overlook features of law in certain
political communities that contribute more to the shape of what law is for those com-
munities than the features they share in common with law across the board. (Hershovitz
2003, p. 209)
Even if a universal idea of law could be created, and then be communicated to

and accepted by all peoples it would be short lived. As discussed above, it would
soon be ‘corrupted’ by the influence of other, and oftentimes differing, ideas such as
democracy, monarchy, oligarchy. However, these sentiments are, perhaps, incorrect.
For while “[t]here is no single, uniquely correct reconstruction of the raw material
of law into a single canonical form of “legal system”” (MacCormick 1996–1997,
p. 1062), there is a raw material of law which can be studied. However, this raw
material is not the innate ‘nature’ of law; instead it represents a shifting and evolv-
ing human construct, which exists independent of culture, politics, and time period.
The raw material of law consists of a collection of signs and that is where a semiotic
of law should be utilized. If we are to obtain a clearer, and hopefully more produc-
tive, understanding of law we must employ a semiotic framework within which to
constantly reanalyze both the perpetually evolving raw material of law, and the legal
system within which it temporally manifests. Furthermore, as stated above, the legal
discourse is composed of speech acts and behaviors, which are all signs and can best
be interpreted by semiotics.
Requisite to the investigation of any complex system is investigation of the language
signs by which it is understandable between human beings. That is to say, if we want to
make part of conscious knowledge the process of sign-evolution, from more simple to
more complex, we need not only the idea of such an evolving system but also the idea of
the idea of this system. Or, in brief, we need to bring to the investigation of complex signs
of any system a meta-ideational perspective. Such a perspective is broadly called semiot-
ics. Pragmatism is the method of investigation. Pragmatism produces new meanings.
(Kevelson 1999a, p. 73)
Law and legal systems are both complex systems of signs and to more fully
understand them and how they evolve and change, one needs to employ a theory of
sign systems, which can be used to analyze them as such systems. Kevelson pro-
vides a brief summation of what a semiotic ontology of law would entail:
[T]here is general agreement from the perspective of semiotics of law that (1) the law
represents a prototype of social institutions that relates normative values to actual, lived
human affairs, since the law is a mediating system of signs; (2) legal systems are open
systems which grow and evolve dynamically by means of interpretations, rhetorical strate-
gies, and dialogic construction of legal discourse; and (3) law in theory and practice is not
a mirror of aprioristic, eternal values, but is an ongoing experiment of human beings creat-
ing provisional balance between expanding freedoms and assent to self-controls. (Kevelson
1999b, p. 793)
This provides a starting point for considering the characteristics of legal semiot-
ics, now for a more in-depth contemplation.
8.5.4 Legal Language
Semiotics reveals the multiplicity of meanings inherent in the legal system and thus
in society at large. This is in contradiction to Llewellyn’s theory of legal realism,
which requires that words have definite and specific meanings:
But these patterns of action are conceivable only on the basis of a philosophical
assumption that is concealed in Llewellyn’s text: the assumption that language is a
matter of one-to-one semantic relationships. A word must maintain a correspondence
to a reality beyond language so that our words will mirror reality, the action of life.
Law’s speech, the word of judges in the first place, only makes sense if reality is
empirically present and not the sole result of human expressivity and articulation.
(Broekman 2009a, p. 17)
However, this type of semantic realism would prevent Hart’s theory of the open
texture of law and is completely unworkable in a referential system. Because law is
a human construct, the meanings within it can change and develop just like any
other aspect of society. Lawyers and judges need to be aware of this as the manag-
ers/makers of meaning within a legal system. For example, the very foundations
upon which legal systems rest shift over time.
[C]oncepts have a history, and the conditions of their persistence or identity through time
are, at best, very vague. Hence, it may be that the impossibility of legitimate authority is the
impossibility of there being instances of our current concept of authority. Possibly, under
some ancestors of our concept, legitimate authority was possible. The reverse is also
possible, and even more likely. One source of pressure towards concept change may have
been a growing realization that the concept then prevailing has no instances (e.g., if ever the
concept of authority was such that it had to derive from divine authority, then recognition
of the impossibility of divine authority may have encouraged change in the concept, a
change that made it possible for it to have instances, at least in the eyes of the people at that
time). (Raz 2005, p. 1008)
Additionally, even when we attempt to preserve the artificial language of law

with terms of art, they still suffer from a drift in meaning over time as they are
constantly being redefined as the decision of cases constricts and expands our
understanding of them. Within the legal system, terms of art, prior case names,
etc., are all signs referencing a deeper body of meaning and although the signs can
remain relatively static the signification of these signs is almost continuously in a
state of flux.
8.5.5 Signs/References
Whenever a reference is made a sign is used, for instance when a judicial opinion
makes reference to a prior judicial opinion as authority it does so by way of a case
name which signifies the propositional content of that prior judicial opinion. Legal
argument overwhelmingly consists of references. Arguments cite statutes, regula-
tions and cases; and these can have even further citations. A prior judicial opinion
138 J.A. Ellsworth
can cite another prior judicial opinion, which in turn cites a regulation that cites a
statute. Often times when a judicial opinion is cited for support of a position the
actual language of the opinion is absent, replaced by a Cf. instructing the reader to
peruse the other opinion and compare the reasoning contained within. All of these
arguments based on signs and their referents take place within the overarching legal
discourse.
8.5.6 Legal Discourse
Everything concerning law is part of an encompassing, yet difficult to define, legal

discourse. This discourse represents a complex web of mutual meaning, though
usually not mutual agreement, through which debate can occur. Of key importance is
the master discourse of law. The master discourse actually determines the question –
“What is the law?” The master discourse of law creates a shared legal reality within
the community, which supersedes the community’s collective subjective reality; in
this way law is a master discourse within the general communal discourse.
Law as the master discourse evolves through the application of law to legal subjects,
for instance, by judges performing speech acts in their institutional capacities. The
propositional content of that master discourse is the law, which guides legal subjects’
behavior. The propositional content for the master discourse can never be fully known
as a static datum because it is a process, and as such endlessly fluxes. The most that
can be realistically achieved is a probability as to what the propositional content is or
will be at any specific moment in time, much like determining the location of an
electron in an atom. The master discourse evolves through either refinement (the
master discourse becomes more specific) or alteration (the master discourse reverses
or changes a portion of itself). The application of law to legal subjects results in the
indefiniteness of law becoming momentarily concrete in that and for that limited
specific instant. Judges perform the application of law to legal subjects. They incorpo-
rate a human element into the legal system, limiting if not preventing mechanical
justice. However, when judges perform such duties they are necessarily acting in their
institutional capacity (an authority, which society has imbued them with to speak for
the law) that converts their mere communication into speech acts.
8.5.7 Attorneys and Judges
The attorney’s function in the legal discourse is to communicate to the court the
propositional content of their client’s position and attempt to persuade the judge that
the master discourse should be modified, maintained or revised.
[L]awyers are uniquely privileged in the ‘competence’ (power to say) accorded them to nego-
tiate the propositional content of the law applicable to their clients. They can negotiate that
law amongst themselves, or with the judge, in that they can argue for one interpretation of the
law or another. (That is not to say that they have competence to argue for any interpretation,
even one completely ‘outside the frame’. But such constraints as may operate on them derive
not from the language of the law but from conventions relating to proper ‘professional’ behav-
ior.) Indeed, the lawyer is privileged even to negotiate the effect of a clear criminal law on his
client . . . the process of ‘plea bargaining.’ (Jackson 1985, p. 295)
Jackson recognizes that attorneys are limited in their behavior not by rules but by
what society, and more specifically self-policing professional associations protecting
their status as a profession within society, will accept as legitimate. He concludes that
it is only conventions relating to proper professional behavior that bind an attorney.
This is acceptable because, although learned in the law, attorneys do not control the
master discourse but merely are skilled in attempting to influence it.
However, judges when acting in their institutional capacity, as stated above,
control and are controlled by the master discourse called ‘law’. The function of a
judge is to weigh the varying strengths of the positions being taken within the legal
discourse and reconcile them and the master discourse as need be. The judge’s
speech acts thus fulfill two tasks: (1) the articulation of his/her judgment in the case
and on the other hand, (2) the articulation of what the law is in accordance to the
(sometimes vague) ideas of what the master discourse requires. The two must
always go together, and there cannot be a conflict between them when the speech
act is performed. Therefore, a judge sitting in court has the immense task not to
destroy the web of mutual understanding of the community and what in that
mutuality is understood as ‘law’. As the New York Court of Appeals stated:
[C]onstruing the statute as limited to certain constitutionally proscribable speech would
likely result in transforming an otherwise overbroad statute into an impermissibly vague
one; the statutory language would signify one thing but, as a matter of judicial decision,
would stand for something entirely different. Under those circumstances, persons of
ordinary intelligence reading [the statute] could not know what it actually meant. (People v.
Dietze and 75 N.Y.2d 47 (Court of Appeals 1989), p. 53)
The web of mutual understanding must be preserved by the court in order to

safeguard the existence of the group; in order to accomplish this goal the court must
clearly articulate through their communications to the group the meanings of their
institutional speech acts, among which legal speech acts are important institutional
components. This attitude, semiotically complex, is a reason for constantly
underlining that law is a segment of society.
8.5.8 Restrictions on Resolutions
Although it has just been shown that attorneys have immense freedom in arguing
positions within the legal discourse and that judges actually closely relate to the
master discourse, there are still restrictions. How is the court limited in resolving
conflicts within the legal discourse? According to Fuller:
Primitive society, like vehicular traffic, is run by a system of interlocking roles. When one
man steps out of his role, or a situation arises in which a familiar role forfeits some or all of
140 J.A. Ellsworth
its meaning, then adjustments will have to be made. There can be no formula to guide these
adjustments beyond that of “reasonableness” – exercised in the light of the demands of the
system as a whole. (Fuller 2008, p. 1115)
Although Fuller was speaking about primitive societies, his statement is appli-
cable to modern societies as well. The court is bound by reasonableness, meaning
the continuance of Fuller’s stable interactional expectancies. Therefore, the real
question of legal validity must be resolved by legitimacy: i.e. whether society views
the mechanism that determines legality/illegality to be legitimate. Realizing that the
validity of a legal system rests upon society’s acceptance of it as legitimate, clarifies
for Teubner (quoting Eligio Resta, 1984. L’ambiguo diritto, p. 10) how “…each act
of illegitimacy carries within it the possibility of its own legitimacy” (Teubner 1993,
p. 11). Teubner and Resta mean, that even if an act is illegitimate at the time of the
action if the society can be convinced then the act can become legitimate.
Consider the variety of legal theories as an example; from a semiotic perspective
all legal theories contain potential validity based on societal legitimacy. This allows
for the explanation of a phenomenon recognized by Karl Lewellyn:
I have never felt satisfied with . . . mere listing and description of our apparently inconsis-
tent jurisprudential trends in the latter 19th century. It is not enough to know what they
were, and whence they came. We must see why men adopted them, and above all, how they
all fitted into the single picture. (Llewellyn 1933, 205 note.)
Which really asks the question how can judges sometimes espouse one legal theory
and at other times apply another, and yet remain credible? To answer that question we
must consider the specific legal discourse, which was taking place. Legal semiotics
considers all legal theories as valid during the temporal periods that they are part of
the master discourse, for none of the legal discourse of a specific society is universal
or eternal. However, there are still some restrictions on the legal theory used by the
court, for instance if the court’s legal theory involved the reading of tea leaves or astro-
logical movements, our society would most likely not accept that. But if the court
chooses to stress a more Hartian or Dworkinian perspective, society will most likely
accept them as being part of the legal discourse. Or, take for example, the Nuremberg
Trials that in legal circles have caused such consternation because they retroactively
applied criminal laws into a foreign sovereign nation. However, society was not only
willing to accept this because of the horror of the Holocaust, but was demanding that
justice be done. Whether it would normally be legally permissible was irrelevant.
Therefore, the restrictions on a court exist only because society expects the court to be
so bound and the court binds itself to protect its societal legitimacy.
The United States Supreme Court, in 1882, acknowledged the importance of
having their opinions viewed as persuasive and credible, stating that their very
authority rests upon such public confidence:
While by the Constitution, the judicial department is recognized as one of the three great
branches among which all the powers and functions of the government are distributed, it is
inherently the weakest of them all. Dependent as its courts are for the enforcement of their
judgments upon officers appointed by the executive and removable at his pleasure, with no
patronage and no control of purse or sword, their power and influence rests solely upon the
public sense of the necessity for the existence of a tribunal to which all may appeal for the
assertion and protection of rights guaranteed by the Constitution and by the laws of the
land, and on the confidence reposed in the soundness of their decisions and the purity of
their motives. (United States v. Lee & 106 U.S. 196, 233 1882)
The court has here recognized that in order for them to retain their status as the
arbiters of the law then they must retain the august aura surrounding their institu-
tion. Mondak, 108 years later, reached much the same conclusion concerning the
significance of the public viewing the court as legitimate:
Public reaction to a Supreme Court decision hinges, in part, on the level of diffuse support
enjoyed by the Court prior to announcement of the ruling . . . Examined from the context of
a cognitive view of persuasion, the credibility of the Supreme Court as a message source
should not be expected to have a simple positive effect on opinion. Instead, unique effects
may result from the interaction of source credibility and other components of the process of
persuasion . . . American political institutions function most capably when the public per-
ceives their actions as legitimate. The importance of such support is not identical for all
branches of government, however. Due to its lack of tangible means of enforcement, public
approval of the Supreme Court is particularly vital . . . Further, the origins of the Court’s
approval are unclear, though the strength of the Constitution as a symbol . . . may foster a
mythical view of the Court . . . Since approval of the Supreme Court shifts in response to
changes in policy . . . symbol and myth may provide a weak foundation for the Court’s
institutional legitimacy. (Mondak 1990, pp. 363–4)
Finally, and perhaps most explicitly, this principle was stated once again by the
United States Supreme Court in 1990:
The root of American governmental power is revealed most clearly in the instance of the
power conferred by the Constitution upon the Judiciary of the United States and specifically
upon [the Supreme Court.] As Americans of each succeeding generation are rightly told,
the Court cannot buy support for its decisions by spending money and, except to a minor
degree, it cannot independently coerce obedience to its decrees. The Court’s power lies,
rather, in its legitimacy, a product of substance and perception that shows itself in the peo-
ple’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to
declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court’s deci-
sions in the Constitution and the lesser sources of legal principle on which the Court draws.
The substance is expressed in the Court’s opinions, and our contemporary understanding is
such that a decision without principled justification would be no judicial act at all. But even
when justification is furnished by apposite legal principle, something more is required.
Because not every conscientious claim of principled justification will be accepted as such,
the justification claimed must be beyond dispute. The Court must take care to speak and act
in ways that allow people to accept its decisions on the terms the Court claims for them, as
grounded truly in principle, not as compromises with social and political pressures having,
as such, no bearing on the principle choices that the Court is obliged to make. Thus, the
Court’s legitimacy depends on making legally principled decisions under circumstances in
which their principled character is sufficiently plausible to be accepted by the Nation.
(Planned Parenthood v. Casey 1992, pp. 865–6)
The Court appears to not only recognize that their authority flows from their
apparent legitimacy but acknowledges that to maintain that legitimacy they can-
not even allow the implication that social or political pressure has influenced its
decision-making.
142 J.A. Ellsworth
The court makes an interesting statement concerning the legal significance to their
decisions: “our contemporary understanding is such that a decision without princi-
pled justification would be no judicial act at all.” What does this mean? Does the
court really mean to say that a judicial act must be accompanied by a communication
of the principled justification underlying it? Here is apparently the double meaning
of a judgmental speech act at stake. The court attempts to validate the first function of
its speech act (the articulation of the judgment in the case) upon the second speech
act function (the articulation of what the law is). However, although the two func-
tions of the speech act always go together, as discussed above, the judgment need not
be validated by legal reasoning, at least not directly. The most one can do for the
other is to provide persuasion to society as to the legitimacy of the other. Similarly,
Jackson, in discussing how a communication acquires legal significance (becomes a
speech act), writes: “If one then asks: ‘what makes this particular discourse “legal”?’
the answer must lie quite simply in the semantic investment of the message (the force
of the modalities which it claims to transmit) and the effectiveness which it possesses
in communicating those claims” (Jackson 1985, p. 300). Jackson and the court are in
complete disagreement because Jackson expresses the view that the judge’s decision
would be able to perform either function independently of the other as long as it was
seen as legitimate and legally binding by the society.
Another question follows from this theory of judicial functioning: what happens
when the court fails to adapt to a powerful conflicting position within the legal
discourse? Llewellyn, recounting a portion of American history, stated: “It is true
that widespread public revolt put on the bench a great body of State court judges to
replace many whose feeling for justice had merged in peace with obsolete or
otherwise unhappy doctrine” (Llewellyn 2008, p. 1023). Hart recognized this
phenomenon in a rudimentary fashion as the pathology of the legal system:
Evidence for the existence of a legal system must therefore be drawn from two different
sectors of social life. The normal, unproblematic case where we can say confidently that a
legal system exists, is just one where it is clear that the two sectors are congruent in their
respective typical concerns with the law. Crudely put, the facts are, that the rules recognized
as valid at the official level are generally obeyed. Sometimes, however, the official sector
may be detached from the private sector, in the sense that there is no longer general obedi-
ence to the rules which are valid according to the criteria of validity in use in the courts.
(Hart 1997, pp. 117–8)
When the courts fail to recognize a paradigm shift in the legal discourse then
several options of consequences are possible: the court could succeed in resisting
the change temporarily while losing respect and authority, the judges could be
replaced by other officials who recognize what the judges failed to, civil unrest
among the general populace, or potentially even revolution could result depending
on the strength of the new positions taken within the legal discourse.
This is not to say, however, that courts should simply give into political flip flops,
angry mobs, or national temper tantrums. Rash mood swings are not the type of
shift or divergence that courts need to be cognizant of. Rather, responding in such
circumstances can potentially be very damaging to the court, especially in the
common law nations where the courts are considered “bound” by judicial precedent.
The United States Supreme Court, in discussing exactly the dangers of overruling
precedent in response to “political pressure,” has stated that:
So to overrule under fire in the absence of the most compelling reason to reexamine a water-
shed decision would subvert the Court’s legitimacy beyond any serious question . . . The
promise of constancy, once given, binds its maker for as long as the power to stand by the
decision survives and the understanding of the issue has not changed so fundamentally as
to render the commitment obsolete . . . Like the character of an individual, the legitimacy of
the Court must be earned over time. So, indeed, must be the character of a Nation of people
who aspire to live according to the rule of law. Their belief in themselves as such a people
is not readily separable from their understanding of the Court invested with the authority to
decide their constitutional cases and speak before all others for their constitutional ideals.
If the Court’s legitimacy should be undermined, then, so would the country be in its very
ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is
not for the sake of the Court, but for the sake of the Nation to which it is responsible.
(Planned Parenthood v. Casey, 505 U.S. 833, 865–6 1992, pp. 867–8)
Here, the court made a further revelation in realizing that for the court to lose
legitimacy could result in a fundamental altering of society. Sometimes it’s best for
the Wizard of Oz to remain behind the curtain.
8.5.9 The Purpose of Law
Since law is a human creation and not an occurring phenomenon of nature it seems
wise that the purpose behind law should be addressed. The maintenance and suste-
nance of the community is one of the main functions of law.
The law-jobs are in their bare bones fundamental, they are eternal. Perhaps they can all
be summed up in a single formulation: such arrangement and adjustment of people’s
behavior that society (or the group) remains a society (or a group) and gets enough
energy unleashed and coordinated to keep on with its job as a society (or a group). But
if the matter is put in that inclusive way, it sounds like mere tautology – almost as if one
were saying that to be a group you just must be a group. Whereas what is being said is
that to stay a group, you must manage to deal with centrifugal tendencies, when they
break out, and you must manage, preventively, to keep them from breaking out. And that
you must effect organization, and that you must keep it effective. And that you must do
all this by means which do not choke off, but elicit, your necessary flow of human
energy. (Llewellyn 1994, p. 709)
The greater the number of positions, the greater the divergence between their
views, and the greater the number of people involved in those various positions,
then the stronger the centrifugal forces that attempt to rip society apart. The court’s
purpose is to keep society together – reconciling the master discourse and the diver-
gent positions within the legal discourse through various means. Llewellyn’s posi-
tion here could, perhaps, use some further explanation in regards to his larger view
within American Legal Realism. Llewellyn, was early in his career influenced by
several schools of thought in Germany; these included:
[T]he free law movement, the Freirechtbewegung, which proclaimed that law is not a matter
for legal scholars offering doctrinal discourses on social reality but is instead for the
144 J.A. Ellsworth
people . . . Similarly, the German historical school, the Historische Schule, of that same
period influenced legal realism in a U.S. philosophical manner . . . The historical school
wanted to restrict or even abolish legal doctrine and form judicial decision making in juris-
prudence in favor of the insight that all law is embedded in a national context, a Volksgeist
(“the spirit of the people”), that provided a historical context that lawyers should use as a
guide for their decision making. Because the written doctrinal law can never fully grasp the
moral, historical, attitudinal, or philosophical reality of the people, the limits of law and
jurisprudence become obvious: promulgation of legal rules must always be checked against
the reality of the people’s life. (Broekman 2009a, p. 12)
These, plus the growing appeal of pragmatism in the United States resulted in
Llewellyn putting great emphasis on the importance of maintaining the social and
cultural cohesion of a society.
The legal order of a society cannot be wholly depicted in texts. Although written documents
fulfill a function in society, they cannot mirror all human relations in all of their aspects, and
certainly not the full function of law in social life. A reliable representation of social life
does not come from legal scholars and judges who focus on conflict situations and the need
for authoritarian decision making in what Llewellyn . . . terms “trouble cases.” Through this
lens we would obtain distorted images of law as a form of social action, distortions that are
not easy to detect. The weakness of sociological jurisprudence is that sociological investi-
gations can never provide a solid foundation for legal judgments . . . [Llewellyn’s] analysis
builds to an emphasis on the role of judges, who must balance commands of authority with
the demands of justice, must care for the clarity of legal language, and must prudently
ensure that the rules and their applications are well understood and received, “even by
mediocre men.” Perhaps it is best characterized as an emotional appeal to compassion, to
interpretative skill rather than strict formality, and to a broad teleological conception of a
legal rule, all of which characterize contemporary judges in the United States. But the deep
gap between a system dedicated to resolving conflicts and a system dedicated to building
solidarity remains. (Broekman 2009a, pp. 14–5)
Therefore, a judge has not only the function of applying the law to the case
before him and deciding who wins and loses that case but also must do so in the
public interest – meaning that the judge must take no action that would rip the fabric
of society. However, this is rarely possible when the judge’s action does not result
in some degree of damage to society even as the same actions work to perhaps heal
a society in other ways.
The bare-bones aspect of this law-job is plain enough: get enough of it done to leave the
group a group [, meaning a society]. One or another member or faction can be cut down or
cut off, and the group be still “the” group; bitterness can seethe; the line of adjustment may
prove to be merely that what Big Fist wants, he gets. But if the group stays a group and
neither explodes nor dribbles into disintegration, then this bare-bones survival-need is met.
(Llewellyn 1994, p. 711)
Llewellyn addresses the fact that the court will often not be able to perfectly
reconcile everything to everyone’s satisfaction. However, that result is not neces-
sary, but it is important not to aggravate anyone to the point that the necessary flow
of human energy, discussed by Llewellyn above, is choked off. Additionally, within
the surviving group will be a sense of community fostered from shared experience
and understanding. As has been acknowledged, a dispute will rarely if ever be
settled such that all involved are completely satisfied.
An absolutist might quarrel with the result . . . [b]ut there are few areas of the law in black
and white. The greys are dominant and even among them the shades are innumerable. For
the eternal problem of the law is one of making accommodations between conflicting inter-
ests. This is why most legal problems end as questions of degree. (Estin v. Estin 334 U.S.
541 1948, p. 545)
Therefore, judicial decisions are not merely a question of law but also an issue of
accommodation attempting to reconcile the members of the community involved.
The legal system must keep the community whole while at the same time maintain-
ing the legitimacy of the court.
8.6 Legal Subjects and Lived Law
This section explores the understanding of the legal subjects which constitute the
community which both create law and is the purpose of law, and who determine the
vital legitimacy of the law and legal system. Dworkin underlines how there are four
conditions necessary for the existence of a community. First, the members of the
community must hold special obligations to the other community members that
they do not have toward non-members. Second, these obligations must be seen as
individual and not collective, that each member holds them towards all other indi-
vidual members and that they are not merely obligations owed to the community as
a whole. Third, these obligations must be considered to arise from a general respon-
sibility of welfare that members have towards all other members. Finally, these
obligations must be held equally amongst all members and for all members of the
community (Dworkin 1986, pp. 199–200).
Beyond community, people can join together into a genuine political community.
In order to form such a community, the members must acknowledge that there are
common principles guiding their conduct and not solely arbitrary political compro-
mise. For such a community, politics “is a theater of debate about which principles the
community should adopt as a system, which view it should take of justice, fairness,
and due process” (Dworkin 1986, p. 211). Such a community has the authority to
claim moral legitimacy and its actions are not merely the exercise of brute force by the
strong against the weak (Dworkin 1986, p. 214). Political community is the ‘group’
whose perpetuation Llewellyn ascribes as the purpose of law. Their theater of debate
functions as the community’s legal discourse. Law as a normative institutional order
operates within such a political community.
A political community is composed of individuals who participate in the theater
of debate. These individuals have their own internal discourses occurring which
influence and shape their participation within the political community’s discourse.
An empirical study of the legal consciousness of Americans found that individuals
often have either two or three contradictory perspectives on the legal system in the
same instance. Further, it held that the legal system contained “a series of structural
dualisms or institutional contradictions that [permit] symbolic claims to universal-
ism, public authority, and equality to coexist with particularism, private power, and
146 J.A. Ellsworth
inequality” (Ewick and Silbey 1999, p. 1025) which individuals recognize and must
reconcile. The first perspective demonstrated by individuals perceived the legal
system as the unbiased and fair deliverer of justice. The second viewpoint appreci-
ated law and the legal system as a game to be played, as strategies to be tried, wins
and losses to be had. The final perception of the legal system was as the insurmount-
able titan controlled by the strong and powerful that crushes the weak and poor
(Ewick and Silbey 1999, pp. 1028, 1031, 1034). “In short, the law appears to people
as both sacred and profane, God and gimmick, interested and disinterested, here and
not here” (Ewick and Silbey 1999, p. 1035). These three cultural narratives concern-
ing the law agitate within the individual community members, perpetuating an
internal discourse. Internally maintaining contradictory cultural narratives allows
individuals to reconcile regrettable instances that occur while still perpetuating a
positive general outlook. Simply put, when the legal system is actually unfair
because of unequal power, or is being gamed by strategically savvy players, having
these multiple perspectives allows a person to chalk these occasions up to that while
still holding on to the general belief that the legal system is fair, just and unbiased.
This actually results in a sturdier, more socially legitimate legal system as a more
robust and strenuous discourse can occur without souring individuals’ perspectives
(Ewick and Silbey 1999, pp. 1037–9).
Having lain out the elements of community, and the attributes of its members,
which strengthen it, attention will now be provided to the lived law that guides the
individuals combined in community. As mentioned above, but shortly to be further
examined, a genuine political community’s members accept that their community is
counseled by principles. The aggregate of the principles constitutes the communi-
ty’s political morality and is revealed by the distorted reflection, as seen perhaps in
a fun-house mirror, of the community’s formal law (statutes, regulations, judicial
opinions). The image is anamorphic because a principle manifested extends beyond
the boundaries of the rigid rule, stretched to its logical limits. It is this integrated
system of principles, which guide most legal subject’s action as most individuals are
unaware of specific formal laws and never consult a lawyer before doing the vast
majority of life’s activities. This lived law is the environment in which the institu-
tion of the legal system attempts to apply the formal law.
8.7 Legal Systems and the Formal Law
This leads us to a further understanding of the institutional incarnation of law, or

formal law, starting with Hart’s theory of rules and then moving on to Luhmann and
Teubner’s autopoietic system-theory as applied to the institution of law. Hart con-
ceives law as a system of rules. Law as rules functions as binding commands that
control a given situation or do not, are either part of the master discourse or are
irrelevant to it; unlike principles which can weigh for or against an action or out-
come without necessarily controlling it, being part of the relevant legal discourse
without being part of the master discourse. Hart divides these legal rules into two
groups: primary rules (of obligation, rules which tell people what they can and
cannot do) and secondary rules (of recognition, rules of change, and rules of
adjudication which govern the creation, modification and application, respectively,
of the primary rules). The secondary rules are necessary to provide validation and
stability to the primary rules.
Whenever such a rule of recognition is accepted, both private persons and officials are pro-
vided with authoritative criteria for identifying primary rules of obligation. The criteria so
provided may, as we have seen, take any one or more of a variety of forms: these include
reference to an authoritative text; to legislative enactment; to customary practice; to general
declarations of specified persons, or to past judicial decisions in particular cases. (Hart
1997, p. 100)
Hart explicitly acknowledges here that the rule of recognition, which determines
when something actually becomes a primary rule, functions through an act of refer-
ence – the latter being an issue of predominantly semiotic nature. Implicitly, from
the list Hart provides of the sources reference can be made to, law is self-referential.
Via statutes, regulations, judicial opinions, or executive orders, law references itself.
And those referents refer to rules of recognition, which are likewise part of the law.
Therefore, circularity (or loops) begins to appear in law: X is a primary rule because
of a rule of recognition whose criteria references to another part of the law which
itself is law because of a rule of recognition whose criteria references to another part
of the law … ad infinitum. This realization will be particularly relevant momentarily
when we consider autopoietic systems theory in the framework of legal semiotics.
An autopoietic system is one which, instead of functioning as a cog within a larger
system, exists independently within a surrounding environment. Although the
autopoietic system operates autonomously, the surrounding environment does exert
pressure upon the autopoetic system. An autopoietic system perpetuates itself
through its own means, in the instance of an autopoietic legal system that means is
the law. Therefore, an autopoietic legal system is self-referential, perpetuating itself
through referencing its own prior law in creating new law.
First, however, before leaping to an autopoietic theory of a legal system, discus-
sion must be had considering the idea of a legal system as developed in Hart’s the-
ory. Hart’s multi-layered theory of legal rules, whereby its secondary rules confirm
the primary rules, ignites the idea of a legal system.
By providing an authoritative mark [the rule of recognition] introduces, although in embry-
onic form, the idea of a legal system: for the rules are now not just a discrete unconnected
set but are, in a simple way, unified. Further, in the simple operation of identifying a given
rule as possessing the required feature of being an item on an authoritative list of rules we
have the germ of the idea of legal validity. (Hart 1997, p. 95)
Although Hart’s theory provides rules of recognition as a litmus test for primary
rules, rules of change in order to add, delete or modify primary rules, and rules of
adjudication which govern the enforcing of primary rules, it fails to adequately
explore the nature of the legal system in action and to explain why and when the
secondary rules should be accepted. Since their very purpose is to provide validation
148 J.A. Ellsworth
for the primary rules, it seems logical to think that the secondary rules would also
require such validation. As MacCormick states:
In a law-state, the question of which exercises of executive power are valid is a question of
law; the political power of the executive is restrained under the authority of law. Likewise,
it is for the courts to say what resolutions of the legislature constitute validly enacted norms
of law, and how they are to be interpreted. The authority of the legislature is not a matter of
democratic or ideological or hereditary legitimacy extraneous to law, but is itself, conferred
by law, or at least confirmed by it on terms that effectively limit the power of lawmaking.
Self-referentiality here shades over into “autopoiesis.” (MacCormick 1996–1997, p. 1060)
What does this mean? For instance, in the United States the validity of any law can
be traced back eventually to the Federal Constitution. However, what is the basis of
validity for the Federal Constitution? The Preamble states: “We the People … do
ordain and establish this Constitution for the United States of America.” Furthermore,
Article VII of the Constitution elaborates: “The Ratification of the Conventions of
nine States, shall be sufficient for the Establishment of this Constitution between the
States so ratifying the Same.” Upon what authority does the Constitution rely in
declaring when it would take force and effect? The Constitution takes that authority
upon itself! The Constitution has that authority because it claims that authority and
from that self-appointed authority all other laws rest their validity. As discussed
above, the Constitution functions as a mythic symbol of legitimacy for the entire
American legal system. Furthermore, the Constitution gains and maintains its own
legitimacy because of the reverence with which it is regarded within the communal
discourse. This Federal Constitution is the supreme Law of the Land for the United
States and provides the answers to the questions raised by MacCormick above
regarding the limits on the authority and power of the executive, judicial and legisla-
tive branches of government. All laws refer back to other laws and eventually will
refer to the Constitution as the basis for their validity and the Constitution itself
refers to itself, asserting its own authority. Therefore, the legal system is autopoi-
etic; autonomous because the legal system self-perpetuates through self-reference,
independent of the surrounding environment.
The autopoietic nature of the institutional legal system accounts for the validation
of the secondary rules. The internal loops created within law by self-reference allow
law to validate itself. An autopoietic legal system exists autonomously, self-generating,
self-referencing. It is a system that validates itself from within, which guides its actions
on its own precedents, which analyzes and reflects upon itself and is self-critical.
An autopoietic legal system bases its determinations on itself (such as statutes, regula-
tions, and judicial decisions), when its authority and the validity of its actions are
based upon itself (such as state and federal constitutions), when it is self-reflecting and
correcting (such as appellate review and the overturning of precedent).
The key to understanding law’s autonomy lies in this three-tiered relation of self-observation,
self-constitution, and self-reproduction. As soon as legal communications on the fundamental
distinction between legal and illegal begin to be differentiated from general social communi-
cation, they inevitably become self-referential, and are forced to consider themselves in terms
of legal categories. This leads to ‘vicious’ and ‘virtuous’ circles, tautologies, contradictions,
paradoxes, and infinite regress. The law is forced to describe its components using its own
categories. It begins to establish norms for its own operations, structures, processes,
boundaries, and environments – indeed, for its own identity. When it actually uses these
self-descriptions, it has begun to constitute its own components. This leads to the emergence
of self-referential circles in relation to legal acts, legal norms, legal process, and legal dogmat-
ics, with the result that the law becomes increasingly ‘autonomous’. The law itself determines
which presuppositions must be present before one can speak of a legally relevant event, a valid
norm, and so forth. Law begins to reproduce itself in the strict sense of the word if its self-
referentially organized components are linked in such a way that norms and legal acts produce
each other reciprocally and process and dogmatics establish some relationship between these.
It is only when the components of the cyclically organized system interact in this way that the
legal hypercycle becomes possible. (Teubner 1993, p. 33)
Therefore, law can be understood as a self-generating system composed of a

series of self-generating systems that (self-)generate through self-reference, autono-
mous and self-reliant. Law starts to sounds like a juggernaut that once the conditions
are right for its inception becomes unstoppable. However, that is not the case, because
although the system tends to itself, the environment in which the system functions
cannot be completely ignored and still has some influence.
In other words: law is a normatively closed but cognitively open system. The autopoiesis of
the legal system is normatively closed in that only the legal system can bestow legally
normative quality on its elements and thereby constitute them as elements . . . The system
therefore reproduces its elements by its elements transferring this quality of meaning from
moment to moment and thereby providing new elements with normative validity. In this
respect it is closed to the environment. (Luhmann 1988, p. 20)
Therefore, only the legal system has the authority to declare what is a legal rule
that must be followed, which are valid statutes, regulations, and judicial precedents.
The normative nature, the binding obligation, of these rules only exists because the
institution of the legal system says it does, and furthermore, in making determina-
tions concerning the normative nature of a prospective rule the legal system turns to
prior rules which already have approved normativity and thereby passes that status
forward from earlier decisions to validate later decisions. However, the story contin-
ues because the expression “cognitively open” means that an autopoietic system is
never completely autonomous but is always influenced, indirectly and to a greater
or lesser degree, by the environment in which it exists. For legal systems that envi-
ronment includes the community’s culture, politics, economics, etc. In sum, how-
ever, that environment most importantly constitutes the political morality discussed
above. The political morality constituted and evolved by the community members
does affect the decisions of the legal system.
Every operation in law, every juristic processing of information therefore uses normative
and cognitive orientations simultaneously – simultaneously and necessarily linked but not
having the same function. The norm quality serves the autopoiesis of the system, its self-
continuation in difference to the environment. The cognitive quality serves the coordination
of this process with the system’s environment. (Luhmann 1988, p. 20)
Coordination? The legal system needs to be cognitively open so that it can coordinate
with its environment. Why would an autopoietic system, which seems almost uncon-
trollable, need to coordinate itself? The legal system is dependent for its legitimacy on
the community, and more specifically on satisfying the community’s political morality.
Only the legal system can bestow normativity and functioning in an autopoietic manner
150 J.A. Ellsworth
in doing so. However, the community grants the legal system that authority and can
strip that power as well, reconstituting it in a new legal system if the old ones legitimacy
fails. Therefore, although the legal system is self-referential concerning normativity,
meaning that it cites to signs standing for rules, the legal system is cognitively open so
that it can coordinate with its environment, meaning that in considering the significa-
tion of those signs the legal system weighs in the political morality of the community.
8.8 Conclusion
Semiotics addresses the duality of reality; including that only through sense
experience can a person access a subjective experience of reality. It is only by our
connections through community that humanity can reach the collective subject
experience that approaches objective reality. That connectedness is achieved
through communication, of any type – linguistic, behavioral, visual, etcetera –
which utilizes signs (symbols which possess a meaning shared by the sender and
receiver of the communication). Humanity employs these signs to debate the valid-
ity of all the various aspects of the collective subjective reality – discourse. If a
discourse is thought of as a rope, then within the rope there is a thread called the
master discourse, which is that part which has the authority to control the behavior
of the members of community regarding the topic of the discourse.
Law is such a discourse. The master discourse within the legal discourse consists
of a complex network of signs. The institutional autopoietic legal system maintains
the evolutions of the complex network of signs, which composes master discourse of
law. An autopoietic legal system self-perpetuates through self-reference of the legal
system’s signs. An autopoietic legal system operates autonomously of the environ-
ment within which it functions. However, the system does observe and respond to
this environment. This environment consists of the community’s political morality.
The system must remain cognizant of the encompassing political morality because
although the system functions autonomously, the system’s existence is dependent
upon the legitimacy bestowed by the community. This legitimacy is granted while
the system mirrors the political morality, the degree to which the mirror can distort,
such as one found in a Fun House, varies and will most likely only be determined
when the breaking point is surpassed. Semiotics allows for the study of these evolv-
ing signs of which the law is composed, as well as the ways in which the legal system
utilizes these signs as the system autopoietically perpetuates.
References
Broekman, Jan M. 2009a. Law in life, life in law: Llewellyn’s legal realism revisted. In: On philosophy
in American law, ed. Francis J. Mootz III. New York: Cambridge University Press.
Broekman, Jan M. 2009b. On law and semiotics. Course Book unpublished manuscript for Law
and Semiotics Seminar at The Dickinson School of Law, Penn State University.
Dworkin, Ronald. 1986. Law’s empire. Harvard UP.

Estin v. Estin 334 U.S. 541. (1948).
Ewick, Patricia, and Susan S. Silbey. 1999. Common knowledge and ideological critique: The
significance of knowing that the “haves” come out ahead. Law and Society Review 33: 1025.
Fuller, L. L. 2008. Human interaction and the law. Reprinted in [8] Lloyd’s introduction to
jurisprudence, ed. M.D.A. Freeman, 1115. Thomson Reuters (Legal) Limited.
Hart, H.L.A. 1997. The concept of law. New York: Oxford University Press.
Hershovitz, Scott. 2003. Legitimacy, democracy, and Razian authority. Legal Theory 9: 201.
Jackson, Bernard S. 1985. Semiotics and legal theory. Merseyside: Deborah Charles Publications.
Kevelson, R. 1999a. Peirce and the mark of the Gryphon. Basingstoke: Macmillian.
Kevelson, Roberta. 1999b. Semiotic philosophy of law. In The philosophy of law: An encyclopedia,
ed. Christopher Berry Gray. New York/London: Garland Publishing.
Lamond, Grant. 2001. Coercion and the nature of law. Legal Theory 7: 35.
Llewellyn, K. 1933–4. On philosophy in American law. 82 U. Pa. L. Rev. 205.
Llewellyn, K. 1994. The normative, the legal and the law-jobs: The problem of juristic method.
Reprinted in [8]: Lloyd’s introduction to jurisprudence, ed. M.D.A. Freeman, p. 709. Thomson
Reuters (Legal) Limited.
Llewellyn, K. 2008. The common law tradition. Reprinted in [8]: Lloyd’s introduction to jurispru-
dence, ed. M.D.A. Freeman, p. 1023. Thomson Reuters (Legal) Limited.
Luhmann, Niklas. 1988. The unity of the legal system. In: Autopoietic law: A new approach to law
and society, ed. Gunther Teubner, 20. Berlin: Walter De Gruyter.
MacCormick, Neil. 1996–1997. Institutional normative order: A conception of law. Cornell Law
Review 82: 1051.
Mondak, J.J. 1990. Perceived legitimacy of supreme court decisions: Three functions of source
credibility. Political Behavior 12: 363.
Peirce, Charles Sanders. 1931. Collected papers of Charles Sanders Peirce, ed. Charles Hartshorne
and Paul Weiss. Cambridge: Harvard University Press.
People v. Dietze, 75 N.Y.2d 47 (Court of Appeals 1989).
Planned Parenthood v. Casey, 505 U.S. 833, 865–6 (1992).
Raz, Joseph. 2005. The problem of authority: Revisiting the service conception. Minnesota Law
Review 90: 1003.
Teubner, Gunther. 1993. Law as an autopoietic system. Oxford: Blackwell Publishers.
United States v. Lee, 106 U.S. 196, 233. (1882).
Von Savigny, F. K. 2008. System of modern Roman law. Reprinted in [8]: Lloyd’s introduction to
jurisprudence, ed. M.D.A. Freeman, 1097. Thomson Reuters (Legal) Limited.
Part IV
Gender and Family
Introduction
A prominent theme in semiotic literature is the malleability and indeterminacy of

meaning, which is always understood through signs that cannot be cabined into the
secure communication of definite data. And yet, legal practitioners and scholars
continue to return to retrograde notions of a fixed baseline of “natural law” as the
basis for legal meaning. This failure is perhaps most evident in the domain of family
law, which often is portrayed as a means of facilitating the natural and fixed forms
of human association. This portrayal of the basis of family law is closely connected
to gendered assumptions that pervade legal discourse and doctrine.
For example, it is easy to demonstrate that legal rules under traditional family
law both assumed and promoted a vision of the family structure that was constructed
in part on gendered understandings of the role of men and women in the family
structure. Semiotic analysis can unveil these assumptions and show how the gen-
dered vision of the family is implemented through supposedly neutral and natural
rules. The “naturalness” of a traditional nuclear family – a man and a woman, who
marry and have children, with the man taking the lead in earning money and the
woman taking the lead in raising the children – pervades various aspects of law and
ignores its semiotic basis.
The contributions in this Part represent the efforts of law students to unravel the
semiotic means by which claims to naturalness can be made, and also how they can
be criticized and undermined in the face of changing social reality. Semiotic analy-
sis permits better descriptions of legal practice and generates critical insight into the
workings of legal discourse, but it also can provide creative insight to generate new
understandings. Michelle Wirth and Jeffrey Ellsworth offer examples of the power
of legal semiotics as part of the educational program.
In the first essay, Wirth identifies the semiotics of parenthood in legal doctrine by
focusing on a particular case dealing with in vitro fertilization. Wirth begins by
F.J. Mootz III ()

e-mail: Jay.Mootz@unlv.edu
Part IV Gender and Family 155
emphasizing that signs have meaning only within a social context, and because
contexts are dynamic so too is meaning. Nevertheless, we can think about meaning
in a structural manner. She draws from Wesley Hofheld’s insight that legal concepts
always imply their opposite: a “right” is merely a “duty” imposed on others, for
example. However, semiotic analysis does not stop at the macro level and simply
chart the “moves” in a legal discourse. Instead, it reveals how specific substantive
innovations are possible in the context of a particular argument. Wirth explains how
law operates as one of several master discourses in society, and the divergences
between master discourses give rise to a hermeneutic crisis that permits lawyers to
exercise creativity. Thus, she emphasizes the importance of recognizing semiotics
in legal education: this is the means by which students can learn how to diagnose
and affect disruptions between master discourses.
Wirth chooses a Pennsylvania case, Ferguson v. McKiernan, to reveal how semiotic
analysis can describe, critique, and innovate in the face of disruptions of meaning
when traditional rules confront rapidly changing social contexts. In Ferguson, the
court was asked to determine if a private donation of sperm to enable a woman to
conceive a child should be treated as if it was a donation to a sperm bank (and sub-
ject only to contract law) or as a private relationship (and subject to family law).
Wirth skillfully develops the jural correlatives at work in the case, revealing the
opposition between the categories of “sexual reproduction–father–family law” and
the categories of “clinical conception–donor–contract law.” The point is not to
determine the “right” answer, or to reveal the perfect methodology for persuading
others of one’s chosen solution to the problem. Wirth insists that semiotic attune-
ment empowers lawyers and judges to effectively engage in the problem at hand
with nuance and sensitivity. This is not to say that the problems of legal meaning
disappear, but only that we may debate them and understand them better.
Jeffrey Ellsworth takes a different tack in his contribution. He offers an in-depth
analysis of the Supreme Court opinions in Michael H. v. Gerald D. regarding the
rights of a man who fathers a child with a married woman. His goal is to generate
critical insight into the factors motivating the parties beneath the surface structure of
their arguments. He carefully deconstructs and analyzes the ideologies that sustain
the symbolic power of the opinions in the case, providing an example of how a
skilled lawyer can ascertain the “give in the joints” of an argument so as to make a
better and more penetrating argument against her opponent.
The seven opinions in Michael H. address the constitutionality of a California
statute that conclusively declares that the father of a child is the husband of the
woman giving birth, if no challenge has been made within 2 years of the birth.
California justified its statute on its state interest in promoting marriage, and in
ensuring that the best interests of the child are addressed by putting to rest questions
of parentage after a certain among of time has passed. The biological father in
Michael H. fathered the child during an adulterous affair, but subsequently lived
with her mother and held her out as his daughter. However, because more than
2 years had passed, his biological fatherhood was deemed irrelevant under the statute.
Ellsworth shows that the plurality opinion affirming the constitutionality of the
statue was driven by the desire to minimize the number of “illegitimate” children
156 Part IV Gender and Family
born, and that the Court refused to countenance the prospect of a child having two
fathers. Ellsworth concludes that the arguments are aligned with the goals of seeking
to promote men who father children to marry the mother, and to punish men who
engage in adulterous affairs by eliminating any possibility of a parental role. Using
Greimasian squares to illustrate his analysis, Ellsworth effectively uncovers the
ideology that backs the moves by the parties and judges, and thereby makes the
opinion susceptible to a more nuanced understanding and raises the potential for
challenge.
Chapter 9
Semiotics of Parenthood in Legal Perspective:
Using Semiotic Tools to Deconstruct Legal
Determinations of Who Holds Parenthood
Obligations and Privileges
Michelle L. Wirth
“Be careful how you interpret the world

it is like that” (p. 26 in Heller 1971).
Erich Heller
9.1 Overview
This chapter provides a brief explanation and illustration of the phenomenon of

semiotics. It then describes the conceptual tools of semiotics and how lawyers can
use semiotics in law to create compelling arguments. Last, the chapter applies the
tools of semiotics to the Pennsylvania Supreme Court case Ferguson v. McKiernan
(2008) to reveal the shift in social context that made the lines of legal reasoning
behind the outcome appear “self-evident.”
9.2 Semiotics
“Semiotics” is the study of the phenomenon in which a listener gives meanings to,
or interprets, signs and uses these signs to determine narratives (Chandler 2001).
The term “listener” is used to represent the person who is interpreting, regardless of
whether the person is interpreting a sound, image, or touch (as with Braille). A sign
is any object, image, or sound (including words), which conveys meaning. In this
paper, the words “object,” “image,” “sound,” and “word” are used interchangeably
when referring to one another, or to a sign. Human beings create narratives by giving
objects meaning, which turns them into signs. We give each sign a meaning that
M.L. Wirth (*)

Carnegie Mellon University, Pittsburgh, PA, USA
Dickinson School of Law, Penn State Law, USA
e-mail: MichelleWirth@gmail.com
158 M.L. Wirth
makes sense in light of the narrative, or context, in which it occurs. In that way,
narratives and signs have a “chicken and egg” relationship in that it is impossible to
have one without the other or to say which came first. The conundrum is used here
in the colloquial, not scientific, sense as the field of science has determined that the
egg came first (Unattributed 2005a).
By being used in a different way, the same object can be given a different
meaning, and thereby become a different sign, and the fact that the object is being
used in a different way indicates that a different narrative is being told. For example,
a flashing red light hanging from a pole over a street intersection conveys one
meaning, thereby telling one narrative, while a flashing red light fixed atop a van
roof conveys a different meaning and thereby tells a different narrative. The mean-
ing that the “listener” attributes to the sign depends on how the sign fits into the
narrative as the listener perceives it, and perhaps how well the sign fits the narrative
that the listener would like to believe (Bostrom 2005). This suggests that our
perception of reality is a creative function that results from the meanings we create
about the experiences we have. Yet the experiences we have are a result of the
meanings we give to what we perceive.
William James, psychologist, philosopher and medical doctor, once said, “What
is called our ‘experience’ is almost entirely determined by our habits of attention”
(Bostrom 2005, VII). What we perceive is limited to what catches our attention, in
that we can only perceive what we notice. Perception is further limited by the
concepts through which we interpret what we notice. Words are signs – images or
sounds that convey meaning. Language is a system in which concepts are conveyed
through words. Therefore, language influences our perception of reality:
[L]anguage ‘carves up’ the world into a conceptual scheme – it not only describes reality, but
also produces it. The way in which the world is carved up is a matter of conventions. . . . For
this reason, words do not simply describe pre-existing concepts – rather concepts are
produced by the division and organization of reality by language. Here, linguistic meaning is
produced by the differences between the various concepts in language (White 1990, 1121).
In other words, language works by defining what something is, according to what
it is not (White 1990, 1121). American jurist Wesley Newcomb Hohfeld transferred
these concepts to the study of legal jurisprudence.
Hohfeld defined a right as “a legal guarantee that one has the privilege to engage
in certain actions and invoke the power of the state to prevent other persons from
engaging in certain other actions”. He then created four distinctions regarding rights.
Hohfeld asserted that “each type of legal interest is accompanied by a matching
interest held by at least one other person,” (emphasis added) and termed this match-
ing interest a jural-correlative. Examples of jural-correlatives include: right/duty;
privilege/no-right; power/liability; immunity/disability. Hohfeld asserted that each
right also had a jural-opposite, “what one cannot have if one has a legally protected
interest with respect to a certain type of act”. For example, one cannot simultane-
ously have a privilege and a no-right in the same object (White 1990, 1121). Hohfeld
also created the distinctions “claim rights” and “liberty rights” (White 1990, 1123).
He defined a “claim right” as one that “creates a correlative duty on the part of
9 Semiotics of Parenthood in Legal Perspective… 159
p rivate parties not to interfere with the exercise of that right”. For example, a parent’s
right to make decisions on behalf of their child precludes interference from others
in the exercise of that right. In contrast, “[a] liberty right only guarantees that a
person exercising the privilege will not be held liable for the exercise, and that
others cannot invoke the power of the state to prevent the exercise”. In the United
States, the right to reproduce is one example of a liberty right. The concepts
embodied in each of these four terms (jural-correlative, jural-opposite, claim right,
and liberty right) illustrate how legal concepts are mutually self-defined relation-
ships, such that using a term always evokes its opposite – you know what the thing
is by what it is not.
9.3 Semiotics in Legal Inquiries
Awareness of how each concept intrinsically evokes what it is not, equips lawyers
to deconstruct a line of legal reasoning. This equips the lawyer to identify the
conflict created as the framework for the legal issue, and the values imbedded in the
terms used in making the argument. Balkin summarizes how the phenomenon of
relationship shapes legal discourse:
The concepts of property, contract and fault are thus mutually defined. In the more modern
language of deconstruction, we would say that property, contract, and fault exist in a rela-
tion of [difference], of mutual dependence and differentiation, in which each concept bears
the traces of the others. . . . The concept of legal fault depends upon whether one is acting
within one’s rights, but of course one’s rights depend upon the corresponding rights of oth-
ers to protection from harm. . . . Thus, to argue for the expansion of the privilege to do harm
is to argue that an actor was not legally at fault, did not cause harm compensable by the
legal system, or did not violate the legal rights of another. . . . Our analysis of legal concepts
has shown that because debates over many, if not most, legal rules share the same structure –
that such debates all concern whether to expand or contract the privilege to inflict nonreme-
diable harm – the arguments used in these legal debates will all have a common structure
(Balkin 1986, 1131).
Due to the function of semiotics in law and the resulting predictability of a

c ommon argument structure, semiotics can be used in law to go beyond the macro-
level structure of arguments, to challenge the underlying assumptions embedded in
the micro-level structure of arguments. This awareness of argument forms can be
instrumental in “locating areas of doctrine that are in tension or contradiction”
(White 1990, 1139). In the American legal system, the state and federal supreme
courts are the arenas in which these tensions and contradictions are brought to a
point. A semiotic legal analysis can facilitate the process of identifying the points of
tension. Tensions and contradictions in the law exist where the “master discourse”
of law is out of synch with itself, with a master discourse of society, or both. Under
these circumstances, the winning argument will be the argument that reconciles the
contradictions and relieves the tensions in the perception of the party in power, be it
the judge or a jury.
160 M.L. Wirth
9.4 The Relationship Between Signs and Narratives
One way to understand a narrative semiotically is to analyze the signs used to build
the narrative. The power of interpretation to create reality is exemplified by the
“master discourse” function of the legal system. As described by Broekman in
March, 2008 at The Penn State Dickinson School of Law Seminar, “Semiotics and
the Law”, a “master discourse” is a narrative that creates the “norms” within which
a society operates. In the United States, the language of the law is a “master
discourse”; an evolving narrative that establishes the norms within which its society
operates. American government is a democratic republic, considered to be a repre-
sentative democracy and designed to represent the will of the people while protect-
ing the minority from mob, or majority, rule. In its ideal, citizens and the government
have symbiotic relationships, in that they each alternatively engage in behaviors that
can be characterized as “speaking” and “listening,” or interpreting, and through this
engagement establish the legal norms within which society operates. Of this creative
phenomenon, James Boyd White writes:
There is no ground in nature, in the facts, or in uninterpreted texts, upon which the law and
its authority can rest. Both law and authority are made, and largely made in the process of
writing the opinions by which the decisions reached by courts are given their meaning.. . .
The critical study of the judicial opinion in this way leads to the acknowledgement of the
contingency of language and the self, and of the community too – for we are made by the
very language that we use. . . . (Bostrom 2005, 217–218).
The legal master discourse declares rights and obligations. The United States
Constitution established three branches of government to manage the process of
negotiating rights and obligations among and between its citizens and inhabitants.
The Constitution charges Congress, the legislative branch, with writing laws
(Article I, Section 8.18 in Balkin 1986). The President, as head of the executive
branch, has the power to veto laws (Article I, Section 7.2 in Balkin 1986). When
there is a disagreement about what a law means, the judiciary, components of the
judicial branch, interpret the laws (Constitutional Convention 1787) in trial and
appellate courts. The government-sanctioned master creator of interpretations, or
meaning-maker, in each state court is called the state supreme court. Sometimes
the supreme courts of two or more respective states, or federal appellate courts in
different districts, each create different interpretations of the same law, such that
applying the different interpretations to the same set of facts could produce a dif-
ferent outcome in each state or within different districts. In these cases, the United
States Supreme Court serves as the government-sanctioned master interpretation
creator; it examines the conflicting interpretations and declares which interpreta-
tion will prevail in all 50 states.
Regarding the influence of people in this phenomenon, Mary Frances Berry,
Professor of American Legal History at the University of Pennsylvania, former
chairwoman of the United States Commission on Civil Rights and past president of
the Organization of American Historians, asserted that the dominant narratives of
social discourse shape law, how law is enforced, and what we believe to be true
about the law (O’Conner 2003, 4, 19). The field of semiotics offers conceptual tools
that enable lawyers to identify the narratives that listeners, be they judges, law
clerks, or jury members, find credible.
Lawyers have a variety of privileged opportunities to directly influence the
master discourse of law. Notably, lawyers use appellate- and amicus-briefs to
communicate to the judge or judges who decide each case. In each brief, a lawyer
suggests that the judge(s) interpret the applicable law in the way that favors their
respective client. Communications directed toward jury members and tribunals are
also opportunities.
Lawyers can use the tools of legal semiotics to identify the predominant narrative
of the master discourses of law and society, and craft a compatible narrative which
suggests that the best interpretations of the pertinent signs are those that dictate a
favorable outcome for the lawyer’s client. Alternatively, the lawyer can highlight
the assumptions underlying the predominant narrative, comprised of the micro-level
arguments represented by the terms used, to show that these assumptions are
inaccurate, or that they no longer apply to the circumstances in the present case, and
advocate for the court to adopt a narrative in keeping with a the social master
discourse’s interpretation of the pertinent signs.
The predominant social master discourse is reflected in the context of the dominant
culture and may or may not, be expressed as a theory of legal reasoning or public
policy. For example, in Plessy v. Ferguson (Barry 1999), the United States Supreme
Court stated that the constitutionality of segregating “negroes” from other train riders
was so obvious that elaboration was unnecessary (Barry 1999, 542). Fifty-eight years
later, in Brown v. Board of Education (Plessy v. Fergusen 1896), the Court declared
the “mindset of the time” of Plessy (Barry 1999, 551) had passed and the current
awareness (Plessy v. Fergusen 1896, 489) (i.e., social master discourse; cultural
context) of equality as self-evident would henceforth supersede. Whereas Plessy was
decided 30 years after the Civil War, Brown was decided at the dawn of what is
considered to be the era of civil rights in United States’ history (Brown v. Board of
Education 1954). As a result of the shift in the social master discourse, the Court
declared segregation by race to be unlawful and gave new meaning in the legal master
discourse to the “sign” of skin-color, and to the “sign” of the word “negro.” The court
of public opinion held a new truth to be self-evident, and thereby influenced judicial
interpretation of the Constitution. In response, the Court used the legal master
discourse to speak into existence a new legal reality.
The change in the legal master discourse creates rights that allow for social
realities that reinforce the self-evident appearance of the beliefs that prompted the
change of law in the first place. For example, a judicial opinion that declares that
“separate is not equal” prompts the creation of laws that desegregate public facilities,
from elementary schools to swimming pools, and thus creates a reality in which
children are more likely to live, play, and study with children of various skin colors
and take for granted that they are not separate, and that they are equal. Shortly after
the court’s decision in Brown, the word “negro” was largely dropped from the social
master discourse due to its association with the idea of white supremacy, which had
fallen out of favor with the master social discourse, and was replaced in usage with
162 M.L. Wirth
the term “black” (Unattributed 1954–1971). This process of translation, application,

interpretation, and (re)negotiation of meaning is the phenomenon by which those
with power continually narrow the gap between the social master discourse and the
legal master discourse. This phenomenon cannot ever completely close the gap,
however, because language functions by creating a system of distinctions, thereby
perpetuating the creation of a gap.
The Pennsylvania Supreme Court’s opinion in the above-mentioned case,
Ferguson (Ferguson v. McKiernan 2008, 1236) highlights gaps between the legal
master discourse and the social master discourse regarding reproduction via use
of technology and private contracts establishing obligations and privileges toward
the resulting offspring. The tools of semiotics and a method for applying them are
introduced below, and demonstrated as applied to this Pennsylvania Supreme
Court decision.
9.5 The Case: Ferguson v. McKiernan
In Ferguson, the Pennsylvania Supreme Court points to the use of technology in the
sperm donation process as the sign, or what the American judicial system calls a
“factor,” that determines what theory of analysis it will use to decide whether a
sperm donor is obligated to provide financial support for a child conceived using
sperm from the donor (Ferguson v. McKiernan 2008, 1245–1246). If the court
determines that the child’s conception most resembles conception achieved through
use of an “institutional sperm bank,” then the court applies ”contract” theory analysis
(Ferguson v. McKiernan 2008, 1242/1243). Under this analysis and in this case, the
sperm donor would have no obligation to support the child and the child would have
no right to receive support from the sperm donor. If, however, the Court determines
that the method of the child’s conception most resembles ”traditional sexual repro-
duction,” then the Court applies a ”best interests of the child” theory of analysis
(Ferguson v. McKiernan 2008, 1246). Under this analysis, in this case the court
would find that the sperm donor has an obligation to provide support to the child,
and the child has a right to receive support from the sperm donor (Ferguson v.
McKiernan 2008, 1249). The court stated it believes these “two distinct views … to
be self-evident” (Ferguson v. McKiernan 2008, 1246).
As paleontologist Stephen Jay Gould commented, “the most erroneous [narratives]
are those we think we know best – and therefore never scrutinize or question” (Harper
2001, 57). We will methodically, although not thoroughly, scrutinize each of the two
narratives set out in Ferguson (Ferguson v. McKiernan 2008, 1246), “conception via
traditional sexual reproduction,” and “conception via institutional sperm bank” by
using tools of legal semiotics to identify the pertinent terms and the meanings they are
assigned by the Pennsylvania courts and legislature. By exploring some of the concepts
embodied in these terms, we may discern what jockeying social contexts compel the
legal master discourse to apply different legal theories – “contract” or “best interests
of the child” to the respective narratives. Furthermore, we can highlight the variety of
values that are reflected and furthered via these definitions, by showing how other
jurisdictions have given different meanings to the same terms and, having applied
them accordingly, created different results sometimes in the same family dispute.
A thorough study would demonstrate that Pennsylvania legislative and judicial applica-
tions of these pertinent terms also has resulted in incongruous government standards
and levels of intervention in the distribution of child-support obligations and parenting
privileges under the following circumstances: gestational surrogacy; donation of
genetic material (sperm, ovum, or embryo) for use in reproduction; adoption; follow-
ing divorce; when born out of wedlock; or absent biological paternity yet with a
history of assumed paternal obligations. This incongruity internal to the master
discourse of law at the state and national level, and the multitudes of people (Ferguson
v. McKiernan 2008, 1246) who may be affected by the incongruity, suggest that there
has been a shift in the master discourse of social context and that the master discourse
of law has not shifted in response to bridge the gap. Lawyers can use semiotic concepts
and tools to highlight the gap between the two master discourses. A process for
applying the concepts and tools is described below, and then demonstrated by being
applied to Ferguson.
9.6 Using a Semiotic Modus Operandi to Analyze Signs
The modus operandi, which follows, is similar in content if not in form to “9. The
Semiotic Modus Operandi,” as found on page 37 of “Law and Semiotics Course
Book” as distributed at The Penn State University Dickinson School of Law for the
Spring 2008 Seminar “Law and Semiotics”.
9.6.1 Identify the Surface-Level Message
In a U.S. court case, the surface-level message is often summarized as the “issue” or
“question at hand,” and preceded by the term “whether.” The message is also found in
the court’s answer to the question, often preceded by terms such as “hold,” “find,”
“affirm,” or “reverse.” The message frames the jural-correlative relationship between
the plaintiff or prosecutor, and the defendant, and implicitly evokes the jural-opposite.
In Ferguson, the Court communicates the message in a question and answer format:
We are called upon to determine whether a sperm donor involved in a private sperm dona-
tion – i.e., one that occurs outside the context of an institutional sperm bank – effected
through clinical rather than sexual means may be held liable for child support, notwith-
standing the formation of an agreement between the donor and the donee that she will not
hold the donor responsible for supporting the child that results from the arrangement. The
lower courts effectively determined that such an agreement, even where bindingly formed,
was unenforceable as a matter of law. . . . We disagree [and] we reverse (Ferguson v.
McKiernan 2008, 1238, emphasis added).
164 M.L. Wirth
The court states the tension between the social master discourse and the legal
master discourse, and defines some of the terms that shape its analysis:
The inescapable reality is that all manner of arrangements involving the donation of sperm
or eggs abound in contemporary society, many of them couched in contracts or agreements
of varying degrees of formality. See UPA Art. 7. Prefatory Cmt. (outlining the various
reproductive alternatives available to parties seeking to raise children). An increasing num-
ber of would-be mothers who find themselves either unable or unwilling to conceive and
raise children in the context of marriage are turning to donor arrangements to enable them
to enjoy the privilege of raising a child or children, a development neither our citizens nor
their General Assembly have chosen to proscribe despite its growing pervasiveness. . . . Of
direct relevance to the instant case, women, single and otherwise, increasingly turn to anon-
ymous sperm donors to enable them to conceive either in vitro or through artificial insemi-
nation. In these arrangements, the anonymous donor and the donee respectively enter into
separate contracts with a sperm bank prior to conception and implantation of an embryo or
embryos. The contract releases the mother from any obligation to afford the sperm donor a
father’s access to the child for visitation or custody while releasing the donor from any
obligation to support the child (Ferguson v. McKiernan 2008, 1245/46).
Prior to the availability of reproductive technology, children were conceived either

in marriage, or outside of marriage. The latter has historically been referred to as “out
of wedlock.” In the above synopsis of women’s modern reproductive choices how-
ever the court characterizes the opposite of “[able] or [willing] to conceive and raise
children in the context of marriage” as “turning to donor arrangements.”
9.6.2 Identify the Signifiers
Signifiers are those terms used in the message, which give the message its significant
meaning in the sense that if you used the opposite of the term, you would change the
meaning of the message. Given that signs are created by contrasting something to all
that it is not, the opposites of the signs are also useful signifiers to examine. A court
or tribunal’s opinion may contain synonyms of, or adjectives that modify, these signi-
fiers that can illuminate their meaning. Combined, we will call these surface-level
signifiers. The “jural-opposites,” shown below, are context-specific; they are not
naturally occurring or even necessarily commonly recognized opposites. Thus the
second half/dichotomy in the pair can change depending on the context.
Dichotomies: Signs and their jural-opposites

Sign Jural-opposite
Legal master discourse – Ferguson v. McKiernan
Private sperm donation Public sperm donation
“Conception outside the context of “Conception inside the context of institutional sperm
institutional sperm bank” = Known bank” = Anonymous Donor + fertility clinic
Donor + fertility clinic
Direct contract between Donor and No Direct contract between Donor and Donee.
Donee.
(continued)
Dichotomies: Signs and their jural-opposites (continued)

Sign Jural-opposite
One contract, between Donor and Donee: Two Separate Contracts: between Donor and Sperm
Donor not obligated to support child; Bank; and Sperm Bank and Donee; Donor not
in exchange, Donor gives up claim obligated to support child; in exchange, Donor
right of privileges toward child; gives up claim right of privileges toward child;
Donee does not have to share claim Donee does not have to share claim right of
right of privileges toward child; in privileges toward child; in exchange, Donee
exchange, Donee gives up right to gives up right to seek financial support for child.
seek financial support for child.
Social master discourse – Ferguson v. McKiernan
Sign Social-context opposite
Contemporary society Old-fashioned society
Inescapable reality Escapable reality
“Would-be” mothers (market for No “would-be” mothers (no market for sperm-without-
sperm-without-claim-rights) claim-rights)
Able or willing to conceive and raise Unable or unwilling to conceive and raise children
children in the context of marriage in the context of marriage
Able or willing to conceive and raise Unable or unwilling to conceive and raise children
children out of wedlock out of wedlock
Privileged (right) to Raise a Child Not Privileged (no right) to Raise a Child
“All-manner of arrangements” Proscribed limits on available arrangements
(re: contracts delineating obligations (re: contracts delineating obligations to support
to support and claim rights to and claim rights to parental privileges)
parental privileges)
Not Proscribed by General Assembly Proscribed by General Assembly (re: contracts
(re: contracts delineating obligations delineating obligations to support and claim
to support and claim rights to rights to parental privileges)
parental privileges)
Not Proscribed by Citizens (via Proscribed by Citizens (via referendum)
referendum) (re: contracts delineat- (re: contracts delineating obligations to support
ing obligations to support and claim and claim rights to parental privileges)
rights to parental privileges)
9.6.3 Identify the Meaning of, or the Concept Conveyed

by, the Signifiers
This meaning is referred to in semiotics as “a signified.” In the process of identify-

ing the concepts signified, you may also think of the concepts in terms of additional
signifiers that help define the main signifiers. These additional concepts, or signi-
fieds, are called “sub-level signifiers.”
For example, the term “donor” in Ferguson is used in contrast to the term
“parent,” as the court illustrates in its dissenting opinion by stating “[r]eferring
to Joel McKiernan as “Sperm Donor” does not change his status – he is their
father” (Ferguson v. McKiernan 2008, 1249). That the court asserts this in the
dissenting argument indicates that the prevailing view of the judges on the bench
166 M.L. Wirth
of this court is that the donor is not the father. This argument establishes a
connection between two pairs of jural-opposites: donor/not-donor; and father/
not-father. The terms father/not-father can be considered sub-level signifiers to
the terms parent/not-parent, which may have the additional sub-level signifiers
mother/not-mother. As a diagram, the relationship between these three pairs of
signifiers would look like:
Parent/ Not Parent
Father/ Not-Father Mother/ Not-Mother
Man/ Not-Man Woman/ Not-Woman
9.6.4 Pair the Surface-Level and Sub-level Signifiers

into Dichotomous Relationships
You can create dichotomous relationships from pairs, oppositions, inverses, jural-
correlatives and jural-opposites. Evoke the signifier that completes the pair even if
it is not explicitly mentioned in the message:
Donor/Not-Donor
Man/Not-Man
Father/Not-Father
Woman/Not-Woman
Mother/Not-Mother
Conceived in marriage/conceived out of wedlock
Parent-Child Relationship/No Parent-Child Relationship
Sexual reproduction “traditional sexual reproduction”/Clinical reproduction “insti-
tutional sperm bank”
Anonymous Donation/Not-Anonymous Donation
Dependent Child/Not-Dependent Child
Child has a right to support/Child has no right to support
Child has right to connection with birth family/Child has no right to connection with
birth family
Conception with agreement/Conception without agreement
Contract regarding support/No contract regarding support
Enforceable as a matter of law/Unenforceable as a matter of law
Fertility Technology Legally Sanctioned/Fertility Technology Not Legally

Sanctioned
Creation of Paternal Anonymity Legally Sanctioned/Creation of Paternal Anonymity
Not Legally Sanctioned
Paternal Identity Discernable/Paternal Identity Not Discernable
9.6.5 Group These Pairs of Surface-Level

and Sub-level Signifiers
Group these pairs of surface-level and sub-level signifiers according to their social-
context relationships, or their jural-correlative and jural-opposite relationships to
one another. For example, when the issue is whether the means of conception is
analogous to clinical or sexual reproduction, and there is the issue of whether a
donor has parental obligations and privileges toward the child; one contextual-
grouping of pairs is: agreement to withhold support/no agreement to withhold sup-
port; sexual reproduction/clinical reproduction; donor/not-donor; known-donor/
anonymous-donor; parent-child relationship/no parent-child relationship; obligation-
right to support/no obligation-right to support; claim rights toward child/no claim
rights toward child.
9.6.6 Connect Each Pair with One Other Pair to Form

a Semiotic Square
Placing a signifier (or word) at each axis (or point/90° angle) of the square. For each
pair, the respective terms should be aligned either horizontally (as below) or verti-
cally. To determine what sets of pairs to create, begin by connecting them according
to the relationships presented by legal documents such as motions, depositions, and
transcripts, as required by the legal standards, or as reflected in the analyses con-
ducted by the lower courts preceding the current appeal.
168 M.L. Wirth
This process can be repeated, making different combinations of pairs to form

multiple squares. Some, but not all of the pairs listed above, are connected in the
example below:
9.6.7 Identify the Various Meanings of Each Term
Identify the various meanings of each term by using legislative and judicial defini-
tions, and historical and current social interpretations as offered by groups with
competing interests. The latter can often be found in dissenting opinions, opinions
of lower courts, and amicus curiae briefs presented by special interests groups.
Some of the terms found in Ferguson are examined below.
9.6.7.1 Interpret Surface-Level Terms
The court in Ferguson initially used the term “clinical reproduction” to refer to
anonymous sperm donation, which makes the lack of a “father” a foregone conclu-
sion. In a dissenting opinion, Justice Eakin states, “There was no effort at all to
insulate the identity of the father – he was a named party to the contract! This is not
a case of a sperm clinic where donors have their identity concealed” (Ferguson v.
McKiernan 2008, 1250). Thus this dissenting opinion relates to the anonymity of
sperm donors in clinical reproduction as a foregone conclusion and appears to rely
on this assumption in choosing to find Ferguson distinct from those cases in which
the sperm donor is anonymous. As pointed out in the majority opinion however this
anonymity is manufactured and perpetuated by multi-faceted state sanction.
The court, through the majority opinion, originally emphasizes the donee’s
efforts to keep the donor’s identity anonymous from people in the community, and
characterizes this as the parties’ efforts “to preserve all of the trappings of a conven-
tional sperm donation, including formation of a binding agreement” (Ferguson v.
McKiernan 2008, 1246/47). The court notes that this anonymity is contrived and
that the court has the power to lift this veil, when it says, “surely a sperm bank’s
records, if subject to compulsory process, would render all donors identifiable”
(Ferguson v. McKiernan 2008, 1247).
As Justice Saylor notes, the court has the power to determine whether a man is a
father, by determining paternity through blood relation (Ferguson v. McKiernan 2008,
1249). This empowers the court to follow through on what Justice Saylor character-
ized as a child’s legislatively provided right to receive benefits from the biological
father. Analyzing the concepts “Anonymous/Not-Anonymous,” as imbedded in the
term “clinical reproduction,” reveals that the continuum of options regarding anonym-
ity is a created result of legal policy, or legal master discourse, and public practice, or
social master discourse. Unmitigated use of anonymous sperm donations is not an
inevitable, unavoidable reality. While some jurisdictions protect anonymity by allow-
ing for the destruction of identifying records, to prevent courts from determining
paternity (Gould 1997), in other jurisdictions anonymous sperm donation has been
curbed or outright abolished, with the effect of curtailing sperm donations and
contributing to a fertility industry in which demand for sperm outstrips the available
supply (Johnson v. Superior Court of Los Angeles County & 80 Cal. App. 4th 1050).
The Pennsylvania legislature is aware that anonymous sperm banks exist in the state
of Pennsylvania (Unattributed 2005b), given that they are regulated by the Pennsylvania
legislature with implementation performed by the Pennsylvania Department of Health.
The Pennsylvania judiciary has a history of not using its legislatively granted authority
to establish paternity by determining blood relations between children and sperm donors,
which it could do by demanding that sperm donation clinics surrender the identifying
DNA records on file. This has resulted in de facto government sanctioned anonymity
and the resulting ability to contract away the child’s right to support, at the pleasure of
the initiating parent(s), regardless of the “rights” otherwise reserved to a child conceived
under different circumstances. The choice of the Pennsylvania legislature to allow, and
the judiciary to honor, this intentionally created, bureaucratically regulated anonymity
effectively sanctions parent’s ability to bargain away a child’s right to support.
170 M.L. Wirth
9.6.7.2 Interpreting Silence
The court acknowledged that the Pennsylvania legislature has considered and
declined to pass a version of the Uniform Parentage Act (UPA). The model UPA
addresses issues regarding anonymous sperm banks. The majority and the minority
each give this sign a different interpretation. The majority opinion interprets this
silence as the legislature’s consent:
An increasing number of would-be mothers who find themselves either unable or unwilling
to conceive and raise children in the context of marriage are turning to donor arrangements
to enjoy the privilege of raising a child . . . a development neither our citizens nor their
General Assembly have chosen to proscribe despite its growing pervasiveness (Ferguson v.
McKiernan 2008, 1245).
In contrast, Justice Eakin interprets silence as dissent:

Our legislature has not adopted the UPA. This Court has held, “it is not the role of the judi-
ciary to legislate changes in the law which our legislature has declined to adopt.” Benson ex
rel. Patterson v. Patterson, 574 Pa. 346, 830 A.2d 966, 967 (2003) (quoting Garney v. Estate
of Hain, 439 Pa.Super. 42, 653 A.2d 21 (1995)). The “legislature … has taken an active role
in developing the domestic relations law of Pennsylvania,”id., at 968, and because it has not
adopted the UPA, this Court should not consider it; the subject matter [anonymous sperm
clinics and reproductive technology] is within that body’s purview. If anything, the failure
to enact it speaks of rejection of its principles, not acceptance of them (Ferguson v.
McKiernan 2008, 1250).
Justice Saylor states in his dissenting opinion:

I believe that the Legislature has established the relevant public policy through the provisions
quoted above “in every case” involving children born out of wedlock 23 Pa.C.S. § 5102(a).
I realize that a straightforward reading of the statute has potential ramifications for sperm
donors in Pennsylvania beyond the unique circumstances presented here, as I believe the
Legislature does as well, since it has previously considered various measures to mitigate the
impact but has not yet acted to adopt any of these (Ferguson v. McKiernan 2008, 1249).
Justice Saylor does not specify what measures the Pennsylvania legislature has
considered, or its reasons for declining to pass the legislation. This author was unable
to find legislative records that reflected what the legislature considered or its reasons
for declining to pass additional legislation. Although the records might illuminate,
one can only guess whether those reasons would prove persuasive in the current legal
or social environment.
9.6.7.3 Identify Narratives
Identify narratives about those signs that have those meanings make sense. Given
the definition, what are the underlying assumptions, both explicit and implicit? This
will illuminate additional sub-level signifiers.
The fact that people make anonymous sperm donations in Pennsylvania; that
children are conceived in Pennsylvania using fertility clinics that are regulated by
the government of Pennsylvania; and that Pennsylvania courts have chosen not to
use their legislatively provided powers to reveal the paternity of these potential
support providers, has been interpreted by the social master discourse as approval
to bargain away the rights of children to support, under certain conditions. Absent
this consent, sperm donations in Pennsylvania would likely decrease as otherwise
would-be donors avoid the risk of claims for support. This would be consistent
with the drastic decrease in donations that occurred in Britain after donors were
stripped of their anonymity, even though donors were not obligated to support the
resultant offspring (Unattributed 2003). Enactment of similar regulation has left
the nation of Scotland with one registered sperm donor (Unattributed 2003). The
Pennsylvania court’s choice not to use its self-acknowledged, legislatively provided
power to provide children with a source of financial support where conception is
achieved using an anonymous sperm donor is itself a constructed barrier to provid-
ing children with support. There appears to be tension not only between the legal
and social master discourses, but also internal to the legal master discourse.
9.6.7.4 A Shift in the Social Master Discourse
Public practice is limited by the public’s access to reproductive technology. Access

to reproductive technology requires the existence of the technology, the public’s
awareness of the technology, and the public’s ability to afford traveling to and
paying for the technology. Pennsylvania’s history has demonstrated that prohibiting
a reproductive practice does not prevent it (Woolf 2006; Miller 1993). Pennsylvania
courts will continue to be faced with the fallout created by people who can access
reproduction technology elsewhere regardless of whether the Pennsylvania
Legislature sanctions, prohibits or remains silent on the matter of anonymity of
sperm donations and shielding sperm donors from the legal obligations often
attributed to biological fathers.
9.7 “Mind the Gap” to Identify the Competing Values
Where application of jural-opposite signs prompts different response (“sexual

reproduction = best interests of child analysis” vs. “clinical reproduction = contracts
analysis”) the difference in response highlights competing values. It may also
indicate a tension between the master discourse of law, and a social discourse caused
by an emerging paradigm shift. For instance, the paradigm shift that allowed the
Supreme Court to go from its ruling in Plessy to its ruling in Brown can be characterized
as a shift from the paradigm “white supremacy” to the paradigm “racial equality.”
A paradigm shift has occurred in the social discourse regarding the right to
choose from among reproductive options. Madeleine Hershey is a former abortion-
clinic employee who currently volunteers to drive young women to judicial bypass
hearings, in which young women in Pennsylvania request permission from the
courts to obtain an abortion without their parents’ knowledge. Hershey noted that
172 M.L. Wirth
American law characterizing reproduction decisions as a Constitutional, Fourth

Amendment privacy right, coupled with global advances in reproductive technology,
have shifted the social master discourse from “Biology is Destiny” to the paradigm
“Access to Technology is Destiny.” The latter occurs inside of the larger context of
Consumer Choice – the reality that people with money can buy what they want,
either by legally crossing state and national lines, or by paying higher prices to buy
prohibited goods and services.
The previous lack of technological means for reproduction meant that each
conception was proof of coitus, and therefore evidence that there were two parties to
whom the court could assign responsibility for support obligations. That physical
reality prompted a body of law that sought to assign support for offspring between
the two people physically involved in the conception, or between the person or people
who would assume this obligation, via adoption, in their stead. It has also prompted
a demand for affordable, easy and fast paternity tests (Unattributed 1997). The
contract doctrine of promissory estoppel was used in the past to assign financial
support obligations to men who, sometimes mistakenly, assumed the role of “father.”
The more recent availability of cheap and fast paternity testing technology has been
in demand by men to curb the rate at which they mistakenly support children they did
not intend to create or support competing values and underlying assumptions that
made the two lines of legal analysis, with their disparate results which appear “self
evident” to the court in Ferguson, can be characterized as a shift from the paradigm
“Biology is Destiny” to the paradigm “Access to Technology Is Destiny,” and more
to the point, “Consumer Choice is Destiny.” The court in Ferguson credits consumer
demand for fertility technology with bringing these issues to a head:
[Mother’s analogy, “between the instant circumstances and those of divorce or other parent-
ing arrangements arising in the context of sexual relationships”] is unsustainable in the face
of the evolving role played by alternative reproductive technologies in contemporary
American society. It derives no authority from apposite Pennsylvania law, and it violates the
commonsense distinction between reproduction via sexual intercourse and the non-sexual
clinical options for conception that are increasingly common in the modern reproductive
environment. The inescapable reality is that all manner of arrangements involving the dona-
tion of sperm or eggs abound in contemporary society, many of them couched in contracts or
agreements of varying degrees of formality. See UPA Art. 7. Prefatory Cmt. (outlining the
various reproductive alternatives available to parties seeking to raise children) (Ferguson v.
McKiernan 2008, 1245, emphasis added).
When the court asserts that there is a “commonsense distinction between repro-
duction via sexual intercourse and the non-sexual clinical options for conception”
(Ferguson v. McKiernan 2008, 1245), it highlights the practical reality that the claim
right of an individual to reproduce is officially in conflict with a child’s claim right
to support. Across the United States, children are not guaranteed a minimum level
of financial support, in cash, health care, expenditures on public education, or by
any other quantifiable means. For example, according to the National Center for
Children and Poverty:
[Thirteen] million American children live in families with incomes below the federal poverty
level, which is $20,650 a year for a family of four. . . . Research consistently shows that, on
average, families need an income of about twice the federal poverty level to make ends meet.
Children living in families with incomes below this level . . . are referred to as low income.
Thirty-nine percent of the nation’s children—more than 28 million in 2006—live in low-
income families (Fass and Cauthen 1997).
American citizens have a right to create children, but even children who are
American citizens do not have a right to a guaranteed comprehensive minimum
level of support either from the people privileged to create them or from the sover-
eignty that asserts the right to govern them.
In the words of Ralph Waldo Emerson, “Children are all foreigners. We treat
them as such” (Emerson 1911, 261). Between 1848 and 1929, harsh conditions
created by mass immigration from Europe to America, coupled with rapid urban-
ization, left hundreds of thousands of poor children without parents or extended
family members and wandering the streets of American coastal cities (Scheurman
2007). Children were expected to work, yet there was not enough “honest” work
available in the cities and so many children supported themselves through criminal
activity (Scheurman 2007). Across the country several efforts were made to put
children to more productive use.
The Children’s Aid Society formed in 1853 in New York City (Scheurman 2007).
Modeled after European social programs, it operated as a trade school and lodging
house for poor children (Scheurman 2007). At this time the U.S. government expanded
the railroad system westward and encouraged people to move west and cultivate the
land. Families who did so found that they needed to expand their labor force to meet
the demands of farming (Scheurman 2007). In what has been referred to as a “foster-
care-cum-employment agency,” (Scheurman 2007). The Children’s Aid Society and
other charitable organizations put between 100,000 and 250,000 (National Orphan
Train Complex. Undated) children on trains to towns in the mid-west, with their arrival
preceded by flyers that described the children as “little laborers” (Scheurman 2007).
Many children who were put on the trains were collected from lodging houses,
prisons, and asylums, while other children “presented themselves […] in an attempt to
escape homelessness, poverty, or abuse” (Scheurman 2007). Adults who were inter-
ested in acquiring a child inspected the children at events that ranged in character from
auditions to slave auctions (Scheurman 2007). While some families agreed to care for
the children as their own, other children were turned into indentured laborers through
contracts negotiated by the charities (Scheurman 2007). Meanwhile, some of the chil-
dren who resorted to criminal activity received their food, shelter, and adult supervi-
sion, such as it was, from the adult criminal justice system (Scheurman 2007).
Throughout the United States children age 7 and older were treated in criminal
court as if they were small adults, and children convicted of crimes were incarcerated
with adults (Scheurman 2007). Social activists and law enforcement officials noticed
that the children who were incarcerated with adults learned how to become career
criminals (Scheurman 2007). In an attempt to remedy this, the Illinois state legisla-
ture passed the Juvenile Court Act of 1899, and thereby created the first juvenile
court system as an alternative to subjecting children to the criminal justice system
(Findlaw 2010). The doctrine of parens patriae, “the nation as parent,” was the
conceptual framework for creating a judicial system that treated children differently
than adults (Findlaw 2010).
174 M.L. Wirth
Parens patriae embodies the idea that a child has certain “natural rights,” and
that it is within the authority of the nation to act to protect children from parents or
guardians who endanger the children by jeopardizing those natural rights
(Blackstone 1793, 427). For every right, there is a legally recognized entity – a
person, agent, or organization – with a corresponding duty to act or to refrain from
acting. Treating children as entities with “natural” rights that merit legal protection
was a development of law that spanned thousands of years, several countries, and
two continents.
American law developed from its British origins, and British law developed from
ancient Roman law. Under Roman law, children were the property of men, who had
the right to kill them. This right was granted based on the idea that men could take
out of the world that which they had caused to be brought into it (Blackstone 1793,
452). In contrast to ancient Roman law, British law treated children as entities wor-
thy of protection from injury (Blackstone 1793, 452/53). British legal icon Sir
William Blackstone traced this idea to the German seventeenth century jurist and
political philosopher Samuel von Pufendorf (Blackstone 1793, 447). He refined a
theory of a universal, “natural law,” distinct from civil law:
[M]an is indeed an animal most bent upon self-preservation, helpless in himself, unable to
save himself without the aid of his fellows, highly adapted to promote mutual interests; but
on the other hand no less malicious, insolent, and easily provoked, also as able as he is
prone to inflict injury upon another. Whence it follows that, in order to be safe, he must be
sociable, that is, must be united with men like himself, and so conduct himself toward them
that they may have no good cause to injure him, but rather may be ready to maintain and
promote his interests. […] The laws then of this sociability, or those, which teach how a
man should conduct himself, to become a good member of human society, are called natural
laws (Von Pufendorf 1682, Ch. 3, §7 & 8).
Pufendorf elaborated that natural law requires fathers who are part of society
and thereby reap its benefits, to contribute back to society by raising and educat-
ing their children to be “fit and useful members of human and civil society,” and
connecting them with education and training that will enable them to support
themselves (Von Pufendorf 1682, Ch. 3, §11). In contrast to Roman law,
Pufendorf described a father’s duty to cultivate children not only as a duty to
society, but as the right of children as people unto themselves, distinct from
their parents, regardless of the fact that they were brought into being at their
parents’ will. He based children’s rights to food, shelter, protection, and educa-
tion in the fact that children are human, and capable of suffering (Von Pufendorf
1682, Ch. 3 §4).
Where one has a right, another has an obligation. Pufendorf esteemed the father’s
obligation to society and to his children to be so great that “if a parent has inhu-
manly exposed or cast off a child, whoever shall take up and educate the child, will
succeed also to the father’s rights” (Von Pufendorf 1682, Ch. 3, §9). Where the
father does not meet this obligation to which the child has a right, the nation inter-
venes as it sees fit to prevent further injury and to provide for the child to become a
contributing member of society. The doctrine of parens patriae embodies these
interpretations and relationships.
Parens patriae is a “prerogative power,” not a judicial power (Fontain v. Ravenel

1854, 384). A prerogative power is a power inherent to being sovereign (prerogative
2010). The U.S. Supreme Court traced the legal precedent of this doctrine to its
roots in British law, and by way of explaining its legitimacy within U.S. law said,
“It would be a waste of time to multiply authorities to this point, because the prin-
ciple is familiar to the profession. It is impossible to look into the subject without
perceiving and admitting it” (Trustees of Philadelphia Baptist Ass’n v. Hart’s
Executors 1819, 4–8). In this regard the U.S. Supreme Court echoed the words of its
British source.
Regarding the legal precedent of the doctrine in British law, renowned British
scholar Sir William Blackstone said,
The jurisdiction of the court […] whatever may have been its origin, is now firmly estab-
lished and beyond the reach of controversy, –it being a settled maxim that the sovereign is
the universal guardian of all the infants in the kingdom. […] [This jurisdiction] extends to
the care of the person of the infant so as is necessary for his protection and education and
to the care of his property. […] And this interference may be obtained on the petition of
the infant himself, or of any of his friends or relatives: nay, a mere stranger may at any time
set the machinery of the court in motion (Blackstone and Lewis 1832, 439).
Under British law, “the Crown,” the national government, held the power of
parens patriae (Fontain v. Ravenel 1854). Although the U.S. Constitution created
the federal government as sovereign, it also stated that all powers not granted to the
federal government by the Constitution were reserved to the states and the people.
In Fontain v. Ravenel, 58 U.S. 369 (1854) the U.S. Supreme Court held that the U.S.
Constitution had not granted prerogative power to the federal judiciary, and so it
was reserved to the state governments (Fontain v. Ravenel 1854). Therefore it was
left to the legislatures of each state to create their own child welfare and juvenile
justice systems, or not, as they chose.
Across the U.S., it is generally held that biological and adoptive parents cannot
bargain away a child’s right to support (Lawyers.com 2010). The legal publishing
giant Martindale-Hubbell provides an overview:
[P]arental financial support is a right that benefits the child. A parent’s obligation to support
their child is a matter of public policy. As such, any attempt to waive child support violates
public policy. […] For example, parents can’t agree to limit the duration of child support in
exchange for the father giving up his parental rights. A parent can’t buy another parent’s
rights or sell his own rights. A child’s right to support can’t be eliminated by a contract
between the parents (Lawyers.com 2010).
As noted by Justice Eaken in the dissenting opinion of Ferguson, Pennsylvania

law is traditionally consistent with this approach:
The paramount concern in child support proceedings is the best interest of the child. […]
[T]he ability of parents to bargain child support is restricted: [Parents] have no power … to
bargain away the rights of their children. … They cannot in that process set a standard that
will leave their children short. Their bargain may be eminently fair, give all that the children
might require and be enforceable because it is fair. When it gives less than required or less
than can be given to provide for the best interest of the children, it falls under the jurisdic-
tion of the court’s wide and necessary powers to provide for that best interest (Ferguson v.
McKiernan 2008, 1249/50) (internal citations omitted).
176 M.L. Wirth
U.S. federal and state adoption laws do allow the state to sever a biological
parent’s obligation to support and right to a relationship with the child as part of the
adoption process. There are several factors that distinguish this process from the
phenomenon of contracting away a child’s right to support as a condition for egg or
sperm donation.
First and foremost, adoption happens after the fact of the birth of the child. To
terminate the parental rights and obligations of the birth parents, the court does a
case-by-case consideration of whether this is in the best interests of each individual
child in question, and only after the court has cause to fear for the welfare of the
child (Child Welfare Information Gateway 2007, 2). In contrast, sperm and egg
donation contracts are created before the conception and birth of the child whose
rights are later affected by the contract. No state agency is involved to determine
whether separating future children from their biological families is in the best inter-
ests of the child or children affected. Through the adoption process, the state uses a
“home study” to determine whether the people in question are suitable to become
parents (National Adoption Center 2010). The home study requires potential adop-
tive parents to obtain child abuse clearances, receive personal references, and have
their home visited by a social worker while all individuals who live in the home are
present (National Adoption Center 2010). In contrast, the process of creating and
obtaining children through sperm or egg donation does not involve an investigation
into whether the potential parents are appropriate people with whom to place
children, much less whether it would be in a child’s best interest to forsake ties to
his or her biological family in favor of a connection to the person who contracts for
the rights of parenthood.
In the case of coital conception the state also does not determine whether a per-
son would be an appropriate parent, however people who conceive “the old fash-
ioned way” are not relying on an instrument of the state to effectuate their becoming
parents. In contrast, those who count on a legally enforceable contract to become
parents (or “not-parents”) through the process of egg or sperm donation rely on the
state. Traditionally, the state of Pennsylvania has determined that “[Parents] have no
power … to bargain away the rights of their children” (Ferguson v. McKiernan
2008, 1250). Accordingly, Pennsylvania could declare these contracts to be void,
unenforceable by law, when legal disputes bring such contracts before the court.
In Ferguson, The court’s characterization of the use of technology, and the
accompanying contracts, as an “inescapable reality” accepts as a foregone conclu-
sion that the trend will continue. Likely, it will, but only with the continued consent
of government, even in the form of silence such as that of the Pennsylvania
Legislature. As is the case in jurisdictions where abortion is illegal or access to
abortion is prohibitively restricted, people with money likely will continue to elude
government restrictions by traveling to permissive jurisdictions to avail themselves
of reproductive technology. As noted in the majority opinion (Ferguson v. McKiernan
2008, 1248), absent government enforcement of the contracts limiting support obli-
gations, however, sperm donations are likely to dry up.
The court in Ferguson frames the facts in the case at hand in the context of con-
sumer behavior, and finds the facts analogous to reproduction in a clinical setting
using sperm donation from an anonymous donor, where the fertility clinic may or may
not have retained data that could be used to ascertain the identity of the donor. This
shifts the focus from an examination of the “Best Interests of the Child” to an exami-
nation of the intent of the parties involved in the conception process. Thus a child’s
claim-right to support now hinges, in part, on the method used to conceive it.
It further highlights the use of technology in reproduction as the fact that distin-
guishes it from a hypothetical conclusion mentioned in obiter dictim in a preceding
Pennsylvania Superior Court case (Ferguson v. McKiernan 2008, 1246), Kesler v.
Weniger (2000). At the trail court level, in Kesler, a man who did not contest pater-
nity sought to avoid paying for financial support for his biological child, who he
conceived in 1994 during his 15-year affair with the biological mother. Weniger, the
biological father, asserted that Kesler, the biological and legal mother, agreed not to
hold him responsible for financially supporting any child that she might conceive as
a result of having sex with him. Kesler asserted that no such agreement existed
(Kesler v. Weniger 2000, 795). The trial court, as the trier of fact, agreed:
Notwithstanding the conclusion we have already reached [finding Father’s version incred-
ible], we move on to the question of whether or not plaintiff-mother could lawfully release
defendant-father from his support obligation. The answer is “no.” A child’s right to support
from a natural father cannot be bargained away by the child’s mother and any release or
compromise by the mother and father is invalid to the extent that it is a prejudice to the
welfare of the child involved (Kesler v. Weniger 2000, 795).
Under the United States Supreme Courts’ Ripeness Doctrine, courts may only
issue rulings on live matters of controversy (Wells and Eaton 2002, 191). They may
not issue advisory opinions. In keeping with the Ripeness Doctrine, obiter dictum is
not case precedent, does not create common law and therefore does not need to be
distinguished as inapplicable in subsequent cases (West Publishing Co. 1914,
31–33). As Judge Beck notes in his concurring opinion in Kesler:
In its opinion the majority correctly concludes that appellant has failed to prove the exis-
tence of an agreement. The majority then hypothesizes that were such an agreement to exist,
it would not be enforceable. In light of the growing legal and ethical complexity in the area
of reproduction it seems that the wiser course is to refrain from expressing views relating to
the enforceability of such contracts until such time that the issue is squarely before us.
Because there is no valid agreement before us, I do not join in the majority’s analysis of
the effect of a pre-conception agreement purportedly relieving one party of the duty of sup-
port (Kesler v. Weniger 2000, 797, emphasis added).
The Pennsylvania Supreme Court is not required to refer to the obiter dictum of
a lower court case, but does so here perhaps to signal to potential future parties what
the outcome would most likely be in a case where conception is achieved through
coitus, regardless of the existence of a contract. The court thereby signals that the
method of conception is a pivotal fact in the court’s determination of whether a
person is obligated to support a child, and conversely whether a child has a claim
right to receive support from that parent.
The shift in social master discourse to “Access to Technology is Destiny,” and
the struggle of the legal master discourse to keep up, is evident in recent cases and
publicity of new and upcoming reproductive technology. One such case is the
178 M.L. Wirth
recent Pennsylvania Superior Court case, J.F. v. D.B., 897 A.2d 1261 (Pa. Super.
Ct. 2006). This case involved eight people and four legal jurisdictions: an egg
donor who resided in Texas; a gestational carrier and her husband who both resided
in Pennsylvania; the man who used his sperm to fertilize the egg, and his fiancée,
both of whom resided in Ohio; and the triplets conceived through the reproductive
technology and the surrogacy contractual transaction. In addition, the surrogacy
agency located in Indiana was also drawn into litigation. The latter two adults initi-
ated the fertilization process in an effort to become legal parents to the ensuing
triplets, with all the claim rights and support obligations attached to this position.
When the gestational carrier took the children home with her to Pennsylvania,
court battles over parenthood or custody ensued in Indiana, Ohio and Pennsylvania
(Beatie 2008, 3–4).
The laws of each state determined parenthood using different criteria, with dif-
ferent results. In cases regarding embryo donation, Ohio law regards the birth mother,
not the woman who provided the egg, to be the natural mother (Beatie 2008, 8). This
definition of “mother” may presume that the person giving birth is a woman, an idea
recently belied by actions taken in the social master discourse. In an unrelated mat-
ter, Thomas Beatie, described himself and his situation thus:
I am transgender, legally male, and legally married to Nancy. . . . Sterilization is not a
requirement for sex reassignment, so I decided to have chest reconstruction and testoster-
one therapy but kept my reproductive rights. Wanting to have a biological child is neither a
male nor female desire, but a human desire.. . . I stopped taking my bimonthly testosterone
injections.. . . My body regulated itself after about four months, and I didn’t have to take any
exogenous estrogen, progesterone, or fertility drugs to aid my pregnancy.. . . [W]e are proud
to announce that this pregnancy is free of complications and our baby girl has a clean bill
of health. We are happily awaiting her birth, with an estimated due date of July 3, 2008.
How does it feel to be a pregnant man? Incredible. Despite the fact that my belly is growing
with a new life inside me, I am stable and confident being the man that I am. In a technical
sense I see myself as my own surrogate, though my gender identity as male is constant. To
Nancy, I am her husband carrying our child—I am so lucky to have such a loving, support-
ive wife. I will be my daughter’s father, and Nancy will be her mother. We will be a family
(Bone 2008).
Mr. Beatie, who is considered a man in both the legal master discourse and
social master discourse, gave birth to his daughter (Reuters 1998). Would the Ohio
court consider Mr. Beatie to be the birth mother of his daughter? If not, would the
Ohio court consider this child to lack a birth mother? The Pennsylvania court might
say so.
In J.F. (Beatie 2008, 15), the Pennsylvania court was charged with determining
who was the legal mother of the triplets, because it did not provide for a legal
mother. After eliminating the egg donor, who did not sue for legal or physical cus-
tody, and the fiancée of the sperm provider who was neither married to him nor
genetically related to the offspring, the court determined that the gestational surro-
gate was “more a mother and a parent by her actions than by genetics” (Beatie 2008,
14–15). In arriving at this determination, the court considered that the gestational
surrogate “carried [the triplets] in her womb and then gave birth to them. Her every
decision prior to their birth has affected them – health, nutrition, prenatal care, etc.
In addition, she has not terminated any parental rights she may have …” (Beatie
2008, 15). Although the court uses gender-specific, feminine pronouns to refer to
the gestational surrogate, the court does not explicitly state that the surrogate’s
gender was a factor in declaring her to be their legal parent.
Even setting aside the phenomenon of transgender-ism, reliance upon the con-
cepts, or sub-level terms, of sex and gender as factors upon which to determine
maternity or paternity, reflects the common social master discourse assertion that
there are only two sexes, and each person is either one sex or the other. This asser-
tion is belied by the scientific social discourse, which, using technology, has identi-
fied the existence of XX/XY chromosome babies, who were fraternal twins who
fused into one, dual-sex human being (Weil 2006). “Intersexed” people, formerly
referred to as hermaphrodites, also dispel the myth that biological sex is dichoto-
mous (Eunice Kennedy Shriver National Institute of Child Health and Human
Development 2007). Klinfelter’s Syndrome (Unattributed 2008) also called XXY
Syndrome, XYY Syndrome, and XXX Syndrome each belie the myth that “man-
hood” and “woman-hood” are medically determined by XY/XX chromosomes
(Connor 2008). In addition, recent technological advances have created the potential
for “cloned” children to have three genetic parents (Jacob v. Schultz-Jacob 2007).
Pennsylvania law is actually ahead of this development with its ruling in Jacob v.
Schultz-Jacob (Department of Health & Human Tissues and Embryos Bill Team
2008) in which it determined that a child can simultaneously have three legal par-
ents, but this holding alone will not be enough to establish the rights of Pennsylvania’s
children in the future.
The legal master discourse in the United Kingdom is grappling with what legal iden-
tity to bestow upon human-animal hybrid chimeras. The United Kingdom Department
of Health recently rescinded its ban on the fusing of humans with other species, in its
Human Fertilisation and Embryology Act of 2008 (Duncan 2007a). Although the inten-
tion is to use these embryos to conduct research, a social master discourse of Christianity
relates to embryos as babies. In an extension of this shared interpretation, Catholic
Bishops of England and Wales have advocated to the British Parliament that human-
animal hybrid embryos be implanted in women, gestated to term, and given all of the
rights accorded to 100% human beings (Duncan 2007b). Despite the reticence of the
United States’ legal master discourse to preemptively address this specific issue (www.
technologyreview.com/blog/duncan/17608) no law prevents U.S. citizens from conceiv-
ing hybrid offspring in a foreign jurisdiction, and raising the offspring within the United
States. The recent Pennsylvania child support cases discussed above suggest that the
hybrid human-chicken children will come home to roost.
9.8 Bridge the Gap
Having firmly identified a tension, or gap, between the legal master discourse and
the social master discourse, the next step is to propose a bridge to that gap that
favors one’s client. This bridge could be a new framework for viewing the issue, or
180 M.L. Wirth
a proposed change in policy or practice. The issues that are inextricably woven into
the facts and lines of analysis in Ferguson prompt many questions. Does the indi-
vidual’s liberty rights to choose with whom to procreate and with whom to raise a
child grant a right to contract-away the child’s claim right to support? Does a child
have a right to support? Upon what is a child’s claim right to support based? Who is
obligated to support a child, and upon what is that obligation based? Does a child’s
right to support depend on the financial status of those parties who are the “but-for
cause” or the “proximate cause” of its conception? If so, do these evaluations extend
to the genetic contributors? Does the obligation extend to the people who contract
for the creation of the child? Will the obligation extend to the clinic that facilitated
the conception?
References
Balkin, J.M. 1986. The Hohfeldian approach to law and semiotics. University of Miami Law
Review 44: 1119–1136.
Barry, M.F. 1999. The pig farmer’s daughter. New York: Random House/Knopf.
Beatie, Thomas. 2008. Labor of love: Is society ready for this pregnant husband? The Advocate.
http://www.advocate.com/issue_story_ektid52664.asp. Accessed 15 August 2008.
Blackstone, Sir William. 1793. Commentaries on the laws of England, in four books, vol. 3.
London: A. Strahan & W. Woodfall.
Blackstone, Sir William, and William Draper Lewis. 1832. Commentaries on the laws of England:
in four books, Books 1–2. Book 1. New York/London: W. E. Dean.
Bone, James. 2008. Pregnant man Thomas Beatie gives birth to baby girl. Times Online. http://
www.timesonline.co.uk/tol/news/world/us_and_americas/article4265368.ece. Accessed 15
August 2008.
Bostrom, M. 2005. When facts don’t fit the frame. Washington, DC: FrameWorks Institute.
Brown v. Board of Education, 347 U.S. 483 (1954).
Chandler, Daniel. 2001. Semiotics for beginners. www.aber.ac.uk/media/Documents/S4B/sem01.
html. Accessed 15 August 2008.
Child Welfare Information Gateway. 2007. Grounds for involuntary termination of parental rights.
www.childwelfare.gov/systemwide/laws_policies/statutes/groundtermin.cfm. Accessed 3
January 2011.
Connor, Steve. 2008. Now we have the technology that can make a cloned child. The Independent.
http://www.independent.co.uk/news/science/now-we-have-the-technology-that-can-make-a-
cloned-child-808625.html. Accessed 15 August 2008.
Constitutional Convention. 1787. The United States Constitution. http://www.archives.gov/exhibits/
charters/constitution_transcript.html. Accessed 17 November 2008.
Department of Health, Human Tissues and Embryos Bill Team. 2008. Human Fertilisation and
Embryology Act 2008. [United Kingdom] Department of Health. http://www.dh.gov.uk/en/
Publicationsandstatistics/Legislation/Actsandbills/DH_080211. Accessed 31 December 2010.
Duncan, David Ewing. 2007a. Are chimeras people too? Massachusetts Institute of Technology,
Technology Review. http://www.technologyreview.com/blog/duncan/17632/. Accessed 15
August 2008.
Duncan, David Ewing. 2007b. Can centaurs and talking pigs be far behind? Massachusetts
Institute of Technology, Technology Review. http://www.technologyreview.com/blog/
duncan/17608/. Accessed 15 August 2008.
Emerson, R.W. 1911. Journals of Ralph Waldo Emerson, 1820–1872, vol. 5. Boston/New York:
Houston Mifflin Company.
Eunice Kennedy Shriver National Institute of Child Health and Human Development. 2007.
[United States of America] National Institutes of Health. http://www.nichd.nih.gov/health/
topics/klinefelter_syndrome.cfm. Accessed 15 August 2008.
Fass, Sarah and Cauthen, Nancy K. 1997. Who are America’s poor children? National Center for
Children in Poverty at Columbia University Mailman School of Public Health. http://www.
nccp.org/publications/pub_787.html. Accessed 15 August 2008.
Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2008).
Findlaw. 2010. Development of the Juvenile justice system. http://criminal.findlaw.com/crimes/
juvenile-justice/development-of-the-juvenile-justice-system.html. Accessed 3 January 2011.
Fontain v. Ravenel, 58 U.S. 369, 393 (1854).
Gould, S.J. 1997. Full house. New York: Three Rivers Press.
Harper, Douglas. 2001. Negro. Dictionary.com/Online Etymology Dictionary. http://dictionary.
reference.com/browse/negro. Accessed 15 August 2008.
Heller, Erich. 1971. The disinherited mind: Essays in modern German literature and thought.
Cambridge: Bowes & Bowes.
Jacob v. Schultz-Jacob, 923 A.2d 473 (Pa. Super. 2007).
Johnson v. Superior Court of Los Angeles County, 80 Cal. App. 4th 1050.
Kesler v. Weniger, 744 A.2d 794 (Pa. Super. 2000).
Lawyers.com. Waiving child support. 2010. Martindale-Hubbell/Lexis-Nexis. http://family-law.
lawyers.com/child-support/Waiving-Child-Support.html. Accessed 3 January 2010.
Miller, Patricia G. 1993a. The worst of times. New York: Aaron Asher Books/HarperCollins.
Miller, Patricia G. 1993b. The worst of times – underground abortions: A patient, doctor, abortion-
ist, and detective tell their stories. Psychology Today. http://psychologytoday.com/articles/pto-
19930501-000030.html. Accessed 15 August 2008.
National Adoption Center. 2010. How to adopt a child. http://www.adopt.org/assembled/
overview_howto.html. Accessed 3 January 2011.
National Orphan Train Complex. Frequently asked questions. http://www.orphantraindepot.com/
FrequentlyAskedQuestions.html. Accessed 3 January 2011.
O’Conner, Sandra Day. 2003. Liberty Medal Acceptance Speech. National Constitution Center. http://
constitutioncenter.org/libertymedal/recipient_2003_speech.html. Accessed 15 August 2008.
Plessy v. Fergusen, 163 U.S. 537 (1896).
“prerogative.” Merriam-Webster online dictionary. 2010. Merriam-Webster Online. http://www.
merriam-webster.com/dictionary/prerogative. Accessed 18 June 2010.
Rains, Robert E. 2008. What the Erie “surrogate triplets” can teach state legislatures about the need to
enact Article 8 of the Uniform Parentage Act (2000). Cleveland State Law Review 56(1): 2–33.
Reuters. 1998. In vitro fertilization results in Chimera. Personal MD. http://www.personalmd.com/
news/a1998011413.shtml. Accessed 15 August 2008.
Scheurman, Dan. Lost children: Riders on the orphan train. Humanities, November/December
2007, Volume 28/Number 6. http://www.neh.gov/news/humanities/2007-11/Orphan_Train.html.
Accessed 3 Jan 2011.
Trustees of Philadelphia Baptist Ass’n v. Hart’s Executors, 17 U.S. 1, 47–8 (1819) citing
Cooper’s Eq.Pl. 27.
Unattributed. Timeline: Civil Rights Era (1954–1971). PBS/African American World. http://www.
pbs.org/wnet/aaworld/timeline/civil_01.html. Accessed 15 August 2008.
Unattributed. 1997–2008. Identigene® DNA Testing Center. http://www.dnatesting.com/paternity/
stores.php. Accessed 15 August 2008.
Unattributed. 2003. Home page. Pittsburgh Cryobank, Inc. http://www.pittsburghcryobank.com/
index.html/. Accessed 15 August 2008.
Unattributed. 2005a. Chicken or the egg. Wikipedia. http://en.wikipedia.org/wiki/Chicken-and-
egg_problem. Accessed 15 August 2008.
Unattributed. 2005b. Sperm anonymity ends. BBC News. http://news.bbc.co.uk/2/hi/health/4397249.
stm. Accessed 15 August 2008.
Unattributed. 2008. Welcome to KS&A. Kleinfelter Syndrome & Associates, Inc. http://www.
genetic.org/. Accessed 15 August 2008.
182 M.L. Wirth
Von Pufendorf, Samuel. 1682. The two books on the duty of man and citizen according to the natural
law. Book 1. (trans: Frank Gardner Moor). Reprinted 1964. New York, London: Oceana
Publications, Inc. http://www.constitution.org/puf/puf-dut.htm. Accessed 3 January 2011.
Weil, Elizabeth. 2006. What if it’s (sort of) a boy and (sort of) a girl? The New York Times Magazine.
http://www.nytimes.com/2006/09/24/magazine/24intersexkids.html. Accessed 15 August 2008.
Wells, M.L., and T.A. Eaton. 2002. Constitutional remedies. Westport: Greenwood Publishing Group.
West Publishing Co. 1914. Judicial and statutory definitions of words and phrases. St. Paul: West
Publishing.
White, J.B. 1990. Justice as translation. Chicago: University of Chicago Press.
Woolf, Marie. 2006. Sperm. The Independent. www.independent.co.uk/news/uk/politics/ban-on-
the-sale-of-fresh-sperm-over-the-internet-413563.html. Accessed 17 November 2008.
Chapter 10
Michael H. v. Gerald D.: A Case Study
of Political Ideology Disguised in Legal Thought
10.1 Introduction: The Problem
“Semiotics can be … readily adapted to understanding politics and ideology as

they are expressed in and disguised in legal thought” (Balkin 1989, 1120). This
statement, by Jack Balkin, shall be applied to the case of Michael H. v. Gerald D.
(1989), which upheld the constitutionality of section 621 of the California
Evidence Code:
§ 621. Child of the marriage; notice of motion for blood tests
(a) Except as provided in subdivision (b), the issue of a wife cohabiting with her hus-
band, who is not impotent or sterile, is conclusively presumed to be a child of the
marriage.
(b) Notwithstanding the provisions of subdivision (a), if the court finds that the conclu-
sions of all the experts, as disclosed by the evidence based upon blood tests per-
formed pursuant to Chapter 2 (commencing with Section 890) of Division 7 are
that the husband is not the father of the child, the question of paternity of the hus-
band shall be resolved accordingly.
(c) The notice of motion for blood tests under subdivision (b) may be raised by the
husband not later than two years from the child’s date of birth.
(d) The notice of motion for blood tests under subdivision (b) may be raised by the
mother of the child not later than two years from the child’s date of birth if the
child’s biological father has filed an affidavit with the court acknowledging pater-
nity of the child.
(e) The provisions of subdivision (b) shall not apply to any case coming within the
provisions of Section 7005 of the Civil Code [dealing with artificial insemination]
or to any case in which the wife, with the consent of the husband, conceived by
means of a surgical procedure (Beckerman et al. 1998, 117/118).
The plurality found that the state’s interests in protecting the child and protecting
the institution of marriage outweighed any interest either the biological father or
child had in maintaining a familial relationship with each other. However, the ideology
J.A. Ellsworth (*)

JD, LLM, Ass. Public Defender St Lawrence Cty, NY, USA
e-mail: jamans@gmail.com
184 J.A. Ellsworth
motivating the court’s decision is often obscured in legal language and, therefore,
this paper will attempt to reach the deeper meaning of the decision using a variety
of semiotic approaches, and will proceed by laying out the facts of the case, explaining
the legal reasoning of the different opinions and then exploring the deeper meaning
behind what is communicated in those opinions.
10.2 The Facts
“After several months of living and traveling together” (Brief for Appellee, Michael
H. v. Gerald D. 1989, 4), Gerald and Carole were married on May 9, 1976, in Las
Vegas, Nevada. Carole D., an international model, and Gerald D., a top executive at
a French oil company, established a marital home in Playa del Rey, California
(Michael H. v. Gerald D. 1989, 113). Michael H., a neighbor, had an affair with
Carole from the summer of 1978 through mid-September 1980 (Brief for Appellant
Victoria D and Michael H. v. Gerald D. 1989). Victoria D. was born to Carole on
May 11, 1981; Gerald was listed as the father on the birth certificate. Gerald proudly
held Victoria out to the world as his daughter. Shortly after Victoria was born, Carole
informed Michael that she believed Victoria was his daughter (Michael H. v. Gerald
D. 1989, 113–114). Carole often pursued other interests, thereby leaving Gerald
solely responsible for taking care of Victoria (Brief for Appellee, Michael H. v.
Gerald D. 1989, 5). In October 1981, Gerald’s work required him to relocate to New
York City. Carole, with Victoria, chose to remain in California (Michael H. v. Gerald
D. 1989, 114–115).
Carole and Michael had blood tests done, within the month, to establish Michael’s
paternity; the tests established a 98.07% probability that Michael is Victoria’s father.
Carole and Victoria resided with Michael in St. Thomas for 3 months in 1982; and
there Michael held Victoria out to the world as his daughter. Thereafter, Carole left
Michael, taking Victoria with her, and moved in with another man, Scott, back in
California. Over the next several months, Carole and Victoria did occasionally
spend time with Gerald, including a vacation in Europe, before returning to Scott.
In November 1982, Michael filed suit for visitation rights because Carole had
refused to let him see Victoria. The court appointed a guardian ad litem to represent
Victoria. During most of this period, Carole was living with Gerald, but then, while
the litigation was still pending, Carole returned to Michael and they lived together
intermittently for the next 8 months. Then, in April 1984, Carole signed a stipula-
tion that Michael was Victoria’s father, but, Carole left Michael again and refused to
have it filed with the court. Carole thereafter reconciled with Gerald in June 1984
and moved to New York (Michael H. v. Gerald D. 1989, 114–115). Throughout
Victoria’s life, when Carole would leave Michael, he frequently sent money to
Carole helping to support her and Victoria (Michael H. v. Gerald D. 1987, 1001
n.2). Additionally, Victoria grew up calling Michael “Daddy” and Gerald “Poppa”
(Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 28).
10 Michael H. v. Gerald D.: A Case Study of Political Ideology Disguised... 185
Again seeking visitation rights, Michael and Victoria, through her guardian ad
litem, resumed litigation in May 1984. The court ordered a psychologist, Dr. Stone,
to evaluate Victoria, Gerald, Michael and Carole (Michael H. v. Gerald D. 1989,
114–115). Dr. Stone concluded that Michael should be allowed structured visitation
because Victoria would be harmed if he were removed from her life (Michael H. v.
Gerald D. 1987, 1001). Dr. Stone felt that Michael was the “single adult in Victoria’s
life most committed to caring for her needs on a long-term basis”. Dr. Stone also
found that Michael exhibited signs that are characteristic of parents that engage in
incestuous relationships with their children, although he found no evidence of any
such sexual contact (Michael H. v. Gerald D. 1987, 1002). Of Carole, Dr. Stone
concluded that she “was child-like and had a limited capacity to be intimate or self-
sacrificing to the degree which normally characterizes relationships between par-
ents and children and between spouses” (p. 1002 in Michael H. v. Gerald D. 1987).
Dr. Stone found Gerald to be kind, intelligent, and capable of being a fine parent
(Michael H. v. Gerald D. 1987, 1002). Gerald then moved for summary judgment in
October 1984, because, under California Evidence Code Section 621, Gerald was
presumed to be Victoria’s father and Michael had no standing to challenge the pre-
sumption. In fact, only the presumptive father or biological mother (if the biological
father has acknowledged paternity) can challenge the presumption and then only
during the first 2 years of the child’s life. Gerald’s motion for summary judgment
was granted by the Superior Court (Michael H. v. Gerald D. 1989, 115). Michael
and Victoria, challenging the validity of Section 621 on constitutional grounds,
appealed to the California Court of Appeal, which affirmed, and then to the United
States Supreme Court, which likewise affirmed.
10.3 Legal Thought
Michael H., at the Supreme Court level, resulted in a plurality opinion and gener-
ated two concurring and two dissenting opinions putting forth divergent views of
the case. Michael raised multiple Due Process claims and Victoria raised both Due
Process and Equal Protection claims. The various opinions mainly focus on
Michael’s substantive due process claim.
California has Justice Stevens & Michael has

Sufficient Interest California Court of Appeal Protected Liberty Interest
Plurality Dissents
Michael has No Nobody California has

Protected Liberty Interest Insufficient Interest
186 J.A. Ellsworth
The above Greimasian square demonstrates the various positions taken concerning
Michael’s interest in retaining a familial connection with Victoria and the state of
California’s interest in curtailing any such relationship by use of Section 621. If
Michael has a protected liberty interest and California has a sufficient interest to cur-
tail Michael’s interest then California must provide Michael with appropriate process
in terminating that relationship; however, if Michael does not have a protected liberty
interest and California has a sufficient liberty interest then California can curtail
Michael and Victoria’s relationship with less process. Finally, if Michael has a pro-
tected liberty interest and California does not have a sufficient state interest then no
amount of process will allow the state to curtail Michael’s relationship with Victoria.
10.3.1 Plurality—Scalia, Joined by Rehnquist, O’Connor

and Kennedy
The plurality (Justices O’Connor and Kennedy join in all of the plurality opinion
except footnote 6 which concerns the plurality’s historical traditions methodology)
found that Michael challenged the constitutionality of section 621 on two grounds.
First, a procedural due process claim that the plurality concluded failed because
section 621 is a substantive rule of law (Michael H. v. Gerald D 1989, 119–120).
The conclusive presumption is actually a substantive rule of law based upon a determination
by the Legislature as a matter of overriding social policy, that given a certain relationship
between the husband and wife, the husband is to be held responsible for the child, and that the
integrity of the family unit should not be impugned (Michael H. v. Gerald D. 1989, idem).
Second, Michael averred a substantive due process violation, which required the
court to determine if Michael had a protected liberty interest (Michael H. v. Gerald
D. 1989, 121).
In an attempt to limit and guide the interpretation of the [Due Process] Clause, [the Supreme
Court has] insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’
… but also that it be an interest traditionally protected by [American] society. As [the
Supreme Court] has put it, the Due Process Clause affords only those protections so rooted
in the traditions and conscience of [the American] people as to be ranked as fundamental.
[Supreme Court] cases reflect continual insistence upon respect for the teachings of history
and solid recognition of the basic values that underlie [American] society (Michael H. v.
Gerald D. 1989, 122–123, internal citations omitted).
Michael reads [Supreme Court precedent] as establishing that a liberty interest is created
by biological fatherhood plus an established parental relationship … [however the plurality
views them as] rest[ing] not upon such isolated factors but upon the historic respect—in-
deed, sanctity would not be too strong a term—traditionally accorded to the relationships
that develop within the unitary family (Michael H. v. Gerald D. 1989, 123).
“The family unity accorded traditional respect in [American] society, which [the
Supreme Court has] referred to as the ‘unitary family,’ is typified, of course, by the
marital family, but also includes the household of unmarried parents and their
children” (Michael H. v. Gerald D. 1989, 123). However, although the plurality
found that an unmarried couple living together with their children could constitute
a unitary family, they also concluded that there is a longstanding common law tradi-
tion protecting children born into a marital family from being declared illegitimate
(Michael H. v. Gerald D. 1989, 125). Furthermore, the plurality concluded that it
was not simply being declared Victoria’s father that Michael sought, but also the
awarding of parental rights. The plurality, therefore, held that not only would
Michael need to establish a societal tradition of declaring adulterous putative bio-
logical fathers to be the legal father over the presumptive marital father but, in addi-
tion, that they were, likewise, given substantive parental rights. Neither of which
Michael established (Michael H. v. Gerald D. 1989, 126–127). Therefore, both of
Michael’s claims failed.
Victoria, in the first instance, maintained that both Michael and Gerald should be
proclaimed as her fathers as they are both willing to take up that mantle, and in the
alternative Victoria avers that Michael should be declared her father, and Gerald
named to a different status (i.e. step-father) (Michael H. v. Gerald D. 1989, 130–121).
However, the plurality held that “the claim that a State must recognize multiple
fatherhood has no support in the history or traditions of this country” (Michael H. v.
Gerald D. 1989, 131). Therefore, Victoria’s first claim failed. The plurality found
Victoria’s alternative theory to be the inverse of Michael’s second claim and it, there-
fore, failed for the same reasons. Finally, Victoria raised an equal protection claim,
averring that she was being discriminated against based on her illegitimacy. However,
the plurality concluded that illegitimacy is a legal characteristic, not a natural trait,
and that under California law Victoria is legitimate, and, therefore, Victoria could not
be discriminated against based on legitimacy (Michael H. v. Gerald D. 1989, 131).
10.3.2 Concurrence—O’Connor, Joined by Kennedy
Justice O’Connor’s concurrence provides a caution to the plurality and dissents

from footnote six of the plurality opinion, stating:
[The plurality] sketches a mode of historical analysis to be used when identifying liberty
interests protected by the Due Process Clause of the Fourteenth Amendment that may be
somewhat inconsistent with [the Supreme Court’s] past decisions in this area … On occa-
sion the [Supreme] Court has characterized relevant traditions protecting asserted rights at
levels of generality that might not be ‘the most specific level’ available … I would not
foreclose the unanticipated by the prior imposition of a single mode of historical analysis
(Michael H. v. Gerald D. 1989, 132, internal citations omitted).
Here, Justice O’Connor is weighing in on a disagreement between the plurality

and Justice Brennan’s dissent. Justice Brennan insists that the court, when looking
for traditional protections, should consider whether paternity in general has histori-
cally received protection instead of specifically considering issues such as adultery
(Michael H. v. Gerald D. 1989, 139). Whereas, the plurality vehemently maintains
that the tradition should be investigated with the greatest level of specificity and,
therefore, the court should consider whether adulterous unwed biological fathers
188 J.A. Ellsworth
have traditionally been afforded protection (Michael H. v. Gerald D. 1989, 127).

Justice O’Connor held that the plurality’s conclusion that the greatest level of speci-
ficity must be used is inconsistent with the Supreme Court’s prior precedents.
10.3.3 Concurrence—Stevens
Justice Stevens found that “enduring ‘family’ relationships may develop in uncon-
ventional settings,” and, therefore, it is possible for a father in Michael’s situation to
have a protected liberty interest in his child; and, for the purposes of the present
case, Justice Stevens assumed such a liberty interest existed (Michael H. v. Gerald
D. 1989, 133). However, Justice Stevens concluded that the Due Process Clause was
satisfied in this situation, because, although Michael was denied being declared
Victoria’s father, he could still seek visitation rights as another “person having an
interest in the welfare of the child” under California law (Michael H. v. Gerald D.
1989, 133–135). However, this is an interpretation of California law that both the
plurality and the dissent find completely inconsistent with California precedent
(Michael H. v. Gerald D. 1989, 119, 148 n.6, 149).
10.3.4 Dissent—Brennan, Joined by Marshall and Blackmun
Justice Brennan concluded that Supreme Court precedents reveal that an unwed
father can have a constitutionally protected interest in his children.
[A]lthough an unwed father’s biological link to his child does not, in and of itself, guarantee
him a constitutional stake in his relationship with that child, such a link combined with a
substantial parent-child relationship will do so. When an unwed father demonstrates a full
commitment to the responsibilities of parenthood by coming forward to participate in the
rearing of his child, his interest in personal contact with his child acquires substantial pro-
tection under the Due Process Clause. At that point it may be said that he acts as a father
toward his children (Michael H. v. Gerald D. 1989, 142).
From this Justice Brennan concluded that “Michael H. is almost certainly Victoria
D.’s natural father, has lived with her as her father, has contributed to her support,
and has from the beginning sought to strengthen and maintain his relationship with
her” and therefore “Michael should prevail” (Michael H. v. Gerald D. 1989, 143).
From this reasoning, the plurality concludes that Justice Brennan would likewise
find a constitutional liberty interest for a rapist in his child begotten by rape. (Michael
H., 491 U.S. at 124 n. 4, plurality opinion). However, the plurality does not seem to
consider that rape can occur within a marriage and by the plurality’s reasoning this
would allow a rapist to have rights to his child even if he has never had contact with
the child. Whereas, from Justice Brennan’s reasoning the child would have needed
to form a psychological bond with the rapist, lived with him, and been financially
supported by him.
10.4 Dissent—White, Joined by Brennan
Justice White concluded that: “The basic principle enunciated in the [Supreme
Court’s] unwed father cases is that an unwed father who has demonstrated a suffi-
cient commitment to his paternity by way of personal, financial, or custodial respon-
sibilities has a protected liberty interest in a relationship with his child” (Michael H.
v. Gerald D. 1989, 157–158):
Michael H. is not a father unwilling to assume his responsibilities as a parent. To the con-
trary he is a father who asserted his interests in raising and providing for his child since the
very time of the child’s birth … Michael had begun to develop a relationship with his
daughter. There is no dispute on this point. Michael contributed to the child’s support.
Michael and Victoria lived together (albeit intermittently, given Carole’s itinerant lifestyle).
There is a personal and emotional relationship between Michael and Victoria, who grew up
calling him ‘Daddy.’ Michael held Victoria out as his daughter and contributed to the child’s
financial support … The mother has never denied, and indeed has admitted, that Michael is
Victoria’s father … When an unwed father demonstrates a full commitment to the respon-
sibilities of parenthood coming forward to participate in the rearing of his child … his
interest in personal contact with his child acquires substantial protection under the Due
Process Clause (Michael H. v. Gerald D. 1989, 159–160) .
California law not only deprives Michael of a legal parent-child relationship with his
daughter Victoria but even denies him the opportunity to introduce blood-evidence to rebut
the demonstrable fiction that Gerald is Victoria’s father … [the plurality] gives its blessing
to § 621 by relying on the State’s asserted interests in the integrity of the family (defined as
Carole and Gerald) and in protecting Victoria from the stigma of illegitimacy and by bal-
ancing away Michael’s interest in establishing that he is the father of the child (Michael H.
v. Gerald D. 1989, 160–161).
Therefore, section 621 is unconstitutional and Michael should prevail (Michael

H. v. Gerald D. 1989, 162–163).
10.5 Dissent Critiques Plurality
Justice Brennan criticizes the plurality’s use of a historical tradition analysis to

determine if Michael had a protected liberty interest, stating:
‘[L]iberty’ and ‘property’ are broad and majestic terms. They are among the great constitu-
tional concepts purposely left to gather meaning from experience. They relate to the whole
domain of social and economic fact, and the statesmen who founded this Nation knew too
well that only a stagnant society remains unchanged (Michael H. v. Gerald D. 1989, 138).
Justice Brennan also attacks the plurality for being too specific in looking only to
see if the rights of adulterous putative fathers have traditionally been protected
instead of looking to paternity in general. Justice Brennan stated:
If [the Supreme Court] had looked to tradition with such specificity in past cases, many a
decision would have reached a different result. Surely the use of contraceptives by unmar-
ried couples, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), or
190 J.A. Ellsworth
even by married couples, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d
510 (1965); the freedom from corporal punishment in schools, Ingraham v. Wright, 430
U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); the freedom from an arbitrary transfer
from a prison to a psychiatric institution, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.
Ed.2d 552 (1980); and even the right to raise one’s natural but illegitimate children, Stanley
v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), were not interests tradition-
ally protected by our society at the time of their consideration by [the Supreme Court]
(Michael H. v. Gerald D. 1989, 139).
Justice Brennan accuses the plurality of limiting the role of the Supreme Court to
discerning societal views and turning the Due Process Clause into a redundancy that
only protects interests “already protected by a majority of the States” (Michael H. v.
Gerald D. 1989, 140–141). Additionally, Justice White argues that the proper focus
for the court’s analysis should be “on the relationship between father and child, not on
the relationship between father and mother” (Michael H. v. Gerald D. 1989, 160).
Justice Brennan also critiques the plurality’s method, accusing them of conflat-
ing the analysis. The proper analysis is to first determine if there is a protected lib-
erty interest and then second consider the State’s interest in limiting the procedures
used to deprive the individual of his protected liberty interest. The plurality’s opinion,
by focusing on the State’s interests, has resulted in the individual’s interests depend-
ing on the state interest and also varies with the condition of Carole and Gerald’s
relationship. The plurality emphasizes that Carole and Gerald are married and wish
to raise Victoria as their offspring; therefore, Michael has no protected liberty interest.
What happens when Carole leaves or divorces Gerald, or Gerald dies? Whether a
person has a protected liberty interest should not be governed by the choices of
others or changing state’s interests. Therefore, the plurality, in order to reach their
conclusion, should have found Michael to have a protected liberty interest and that
the State’s interests were compelling and the procedure sufficient in curtailing
Michael’s liberty interest (Michael H. v. Gerald D. 1989, 145–147).
Justice Brennan also critiques the plurality for confusing the purpose of Michael’s
constitutional challenge. Michael was not seeking for the court to grant him parental
rights, as the plurality claims, but simply wished to have section 621 declared
unconstitutional because it prevented him from even having a hearing to attempt to
get parental rights. The plurality seems to maintain that, in order to win his case,
Michael must show that he would be successful at a hearing that determines whether
it would be in the best interests of the child for him to have visitation rights in order
to be able to win his current case in which he is trying to win standing to have such
a hearing (Michael H. v. Gerald D. 1989, 147).
10.6 Politics and Ideology
Often, jurists will attempt to further their political and ideological views while, at the
same time, obscuring these views behind of curtain of legal reasoning. Simply under-
standing the legal reasoning of the various opinions, discussed above, is insufficient to
have a meaningful grasp of the true motivating factors behind the opinions. Obviously,
if such competent jurists can reach such vastly differing views through their legal
reasoning then something else is likely driving their conclusions with the legal reason-
ing set up to match. Here, these motivating factors, behind the plurality’s opinion,
Justice Steven’s concurrence, and the lower court opinions, will be analyzed.
10.6.1 Protecting the Child
All the opinions in favor of section 621 maintain that the court is acting to protect
the welfare of the child, a most noble sentiment, however, it will be argued below
that in reality they are trying to ensure that the child grows up with a worldview and
sense of society that they find acceptable and, further, that the protection is for the
adults not the child, protection that is, in fact, detrimental to the child in this case.
10.6.2 Illegitimacy
The California Court of Appeal found that: “On this record, the significant interest
of the state in protecting the welfare of Victoria D. is best served by upholding the
conclusive presumption that Gerald D. is her legal father,” (Michael H. v. Gerald D.
1987, 1009) because “the rule protects the innocent child from the social stigma of
illegitimacy” (Michael H. v. Gerald D. 1987, 1005).
The California Court of Appeal’s concern for naming a child illegitimate has a
potent historical basis. Traditionally, a child born of an adulterous relationship was
treated the same as a child born out of wedlock and was considered fillius nullius,
“the son of no one” (Silber 1992, 159). The parents were not required to support
such a child. Additionally, the child had no rights of inheritance from either parent
(Loconto 1992, 81–83). And the child would be unable to create heirs when they
reached adulthood (Rogers 2001–2002, 1152–1153). “The common law severely
burdened the illegitimate child, imposing harsh results on the child as punishment
of the parents’ actions” (C.C. v. A.B. 1990). Let us not forget, that “punishment”
does not refer in this context, as it normally would in law, to criminal behavior, but
instead to non-criminal behavior that is still seen as unwanted, and, this “punish-
ment” places a person in a worse position in an attempt to alter societal behaviors.
The presumption of paternity, known as Lord Mansfield’s Rule (Loconto 1992,
81–83) was a judicial doctrine created in the sixteenth century English common law
in an attempt to protect children from being declared illegitimate. Therefore, a child
born to a mother who was married was presumed to be the child of the husband
(Rogers 2001–2002, 1152–1153).
Traditionally, that presumption could be rebutted only by proof that a husband was inca-
pable of procreation or had had no access to his wife during the relevant period. As explained
by Blackstone, non-access could only be proved ‘if the husband be out of the kingdom of
England (or, as the law somewhat loosely phrases it, extra quatuor maria [beyond the four
192 J.A. Ellsworth
seas]) for above nine months.’ And, under the common law both in England and [the United
States], ‘neither husband nor wife [could] be a witness to prove access or non-access.’ The
primary policy rationale underlying the common law’s severe restrictions on rebuttal of the
presumption appears to have been an aversion to declaring children illegitimate, thereby
depriving them of rights of inheritance and succession, and likely making them wards of the
state (Michael H. v. Gerald D. 1989, 124–125, internal citations omitted).
However, California’s adoption of the Uniform Parentage Act “rendered illegiti-

macy to be without any legal effect” (Michael H. v. Gerald D. 1987, 1010). This is
why the California Court of Appeal based their concern on “social stigma” and not
legal consequences; however, the United States Supreme Court has previously
stated that social prejudices and the possible injuries they might inflict on a child are
not permissible considerations in child custody cases. Specifically, the Supreme
Court stated: “The Constitution cannot control such prejudices but neither can it
tolerate them. Private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect” (Palmore v. Sidoti 1984). Furthermore, even
if social stigma was a valid consideration, Justice White calls into question the
strength of that stigma currently, stating:
The interest in protecting a child from the social stigma of illegitimacy lacks any real con-
nection to the facts of a case where a father is seeking to establish, rather than repudiate,
paternity … It may be true that a child conceived in an extramarital relationship would be
considered a ‘bastard’ in the literal sense of the word, but whatever stigma remains in
today’s society is far less compelling in the context of a child of a married mother, espe-
cially when there is a father asserting paternity and seeking a relationship with his child. It
is hardly rare in this world of divorce and remarriage for a child to live with the ‘father’ to
whom her mother is married, and still have a relationship with her biological father (Michael
H. v. Gerald D. 1989, 161–162).
Biological Father Plurality - Michael Not Legal Father
Dissent - Michael Dissent - Gerald
Legal Father Plurality - Gerald Not Biological Father
The above Greimasian square visually demonstrates the relationship between the
concepts of “biological” fatherhood and “legal” fatherhood as applied in this case
placing the opinion and the person they hold represents that combination of father-
hoods in the appropriate places.
Utilizing a Peircean analysis, the sign is the plurality’s discussion of the history
of the treatment of illegitimacy combined with their statement that Victoria, under
California law, is legitimate, while at the same time the plurality staunchly refrains
from mentioning the current treatment of illegitimacy, either legal or social (in fact,
the plurality states that determining current social attitudes is irrelevant to the case
(Michael H. v. Gerald D. 1989, 127), or stating that section 621 functions to protect
a child from being declared illegitimate. The object, through which the sign must be
interpreted, is the combined views expressed in the lower court opinions, the briefs
filed with the court and the dissenting opinions, all of which the plurality was con-
sidering when the opinion was written. All of these claim that protecting a child
from being declared illegitimate is a major function of section 621, a fact that the
briefs for appellants and the dissenting opinions harshly criticize. Therefore, the
interpretant of the sign reveals that the plurality really intended to protect Victoria
from being declared illegitimate but was clearly aware that to do so in a translucent
manner would leave them vulnerable and so accomplished it with more subtle and
obscure devices.
10.6.3 Multiple Fathers
When Victoria, through her guardian ad litem, averred that Michael and Gerald
should be named as her fathers, the plurality responded: “California law, like nature
itself, makes no provision for dual fatherhood” (Michael H. v. Gerald D. 1989, 188).
However, the plurality is mistaken in its characterization of nature, because “a sub-
stantial number of societies appear to go to some lengths to confuse the issue of
paternity … hold[ing] that it is possible to have several biological fathers, … [t]he
woman’s husband, if he cohabited with her during pregnancy, is usually considered
the primary biological father. The lovers are secondary fathers” (Beckerman et al.
1998, 164). Therefore, it is not necessarily natural for a person to only have one
father, but, instead a cultural phenomenon that happens to match biological reality,
but, as the plurality has previously stressed the difference between a biological
father and a legal father, it seems that biological reality need not match societal
structures. Furthermore, Justice Brennan concluded that:
[America is] not an assimilative, homogenous society, but a facilitative, pluralistic one, in
which we must be willing to abide someone else’s unfamiliar or even repellent practice
because the same tolerant impulse protects our own idiosyncrasies. Even if we can agree,
therefore, that ‘family’ and ‘parenthood’ are part of the good life; it is absurd to assume that
we can agree on the content of those terms and destructive to pretend that we do (Beckerman
et al. 1998, 164).
Finally, the plurality’s invocation of natural law is suspect because natural law
theory has been thoroughly intertwined with religious precepts throughout history
and frequently natural law is relied on either to promote religious views or personal
biases (Lin 1999, 753–755).
Additionally, Justice Stevens, in his concurring opinion, quoted approvingly
from the trial judge, who stated: “The Court believes that the existence of two (2)
‘fathers’ as male authority figures will confuse the child and be counter-productive
to her best interests” (Lin 1999, 135).
[However, v]igorous debate rages over how a child develops, what is in a child’s best interests,
and how to achieve certain objectives on behalf of a child. Near consensus does exist, how-
ever, for the principle that a child’s health growth depends in large part upon the continuity
194 J.A. Ellsworth
of his personal relationships. When divorce, death of a parent, foster care, or adoption
intrude on a child’s family life, such continuity is inevitably interrupted. Although some
children may not experience lasting emotional or social harm from them eventually, it
seems reasonable to adopt as an operating principle the notion that a break in family conti-
nuity is detrimental to a child (Brief for Appellant Victoria D., Michael H. v. Gerald D.
1989, 21).
[Therefore, t]he child’s need for continuity in intimate relationships demands that the
state provide the opportunity to maintain important familial relationships with more than
one parent or (sets of parents) … Current research demonstrates that even if nuclear fami-
lies are best for children, when children form parental relationships outside of the nuclear
family they often lose more from the law’s enforcement of exclusive parental relationships
than they gain (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 25).
Here, Dr. Stone found that no matter which custodial arrangement was
adopted Victoria “‘would be predisposed to future emotional and social prob-
lems.’ Dr. Stone found that Victoria was attached ‘principally and equally’ to
Michael and Carole. He concluded that ‘it is important for Victoria that [Michael]
be permitted to remain a member of her family’” (Brief for Appellant Victoria
D., Michael H. v. Gerald D. 1989, 12–13). The situation would potentially be
very different if Carole had not allowed Michael and Victoria to form a psycho-
logical bond, but, once established such a psychological bond must be taken
into consideration. Furthermore, the confusion the court is concerned about is
unclear in a society where stepfathers are common and since section 621 only
establishes legal paternity and not biological paternity, what would confuse
Victoria? The confusion is actually the adult’s discomfort, just as the protection
is not for the child but for the husband and wife.
10.7 What Is Family?
Throughout the opinion the plurality maintained that it is the function of section 621
to protect the family and that such protection is allowed under the Constitution.
However, when the plurality refers to “family” what exactly do they mean? Black’s
Law Dictionary defines family as: “(1) A group of persons connected by blood, by
affinity, or by law, esp. within two or three generations. (2) A group consisting of
parents and their children. (3) A group of persons who live together, and have a
shared commitment to a domestic relationship” (Black’s Law Dictionary 637 2004).
Nowhere does this definition mention marriage, the reference to ‘by law” may
allude to marriage but could as easily speak to other relationships as well, similarly,
the phrase ‘shared commitment to domestic relationship’ might refer to marriage
but not necessarily. However, Justice Brennan reasons that although the plurality
maintains that marriage is not dispositive for finding a family, they cannot mean it,
because “Michael, Victoria, and Carole did live together as a family; that is, they
shared the same household, Victoria called Michael ‘Daddy,’ Michael contributed
to Victoria’s support, and he is eager to continue his relationship with her” (Michael
H. v. Gerald D. 1989, 143–144). To Justice Brennan this is the “unitary family” and,
therefore, the plurality, in denying such a relationship, must base their decision
solely on the presence of marriage (Michael H. v. Gerald D. 1989, 145).
(Does Biological Father have an interest?)
Tie to Mother Everyone -Yes Tie to Child
Plurality Dissent
Yes Yes
No Tie to Child Everyone - No No Tie to Mother
(Tie to Mother = Marriage; Tie to Child = Psychological Bond)
The above Greimasian square represents what enduring ties the various opinions
hold are needed in order to find that the biological father has an interest in his child.
10.7.1 Protecting Marriage
The plurality’s opinion and lower court opinions make clear that their concern is for
the marital family. When it comes to California’s interest in protecting marriage, the
California Court of Appeal stated: “[T]he state’s interest in preserving the integrity of
the matrimonial family is so significant that it outweighs most other interests” (Michael
H. v. Gerald D. 1987, 1008). The plurality provides more guidance, stating:
The primary rationale underlying § 621’s limitation on those who may rebut the presump-
tion of legitimacy is a concern that allowing persons other than the husband or wife to do so
may undermine the integrity of the marital union. When the husband or wife contests the
legitimacy of their child, the stability of the marriage has already been shaken. In contrast,
allowing a claim of illegitimacy to be pressed by [another] may well disrupt an otherwise
peaceful union (Michael H. v. Gerald D. 1989, 131, emphasis added)).
[Furthermore, i]n those circumstances in which California allows a natural father to
rebut the presumption of legitimacy of a child born to a married woman, e.g., where the
husband is impotent or sterile, or where the husband and wife have not been cohabiting, it
is more likely that the husband already knows the child is not his, and thus less likely that
the paternity hearing will disrupt an otherwise harmonious and apparently exclusive marital
relationship (Michael H. v. Gerald D. 1989, 120, emphasis added).
Therefore, the plurality is of the opinion that a marriage in which the wife has
had an affair is a peaceful union, that has not been shaken and that it is in the best
interests of the marriage for the husband not to learn of the affair because appearance
and not substance is of paramount importance in a marriage. It seems that the wife
has violated the integrity of the marital union long before her lover steps forward to
claim his child, especially where, as here, the mother not only allowed, but encour-
aged her lover to form a parent-child relationship.
196 J.A. Ellsworth
Furthermore, Appellee Gerald, in his brief, attempts to bolster the state’s method
of protecting marriage by stating:
The fact that the marriage of Carole and Gerald has managed to withstand Michael’s claim
and the enormous financial and emotional pressures imposed by this proceeding, and the
fact that their marital family has flourished and grown, attests to the fact that application of
the statute has served its purposes of encouraging marriage and protecting Gerald’s rela-
tionship with Victoria ( Brief for Appellee, Michael H. v. Gerald D. 1989, 24).
This is ridiculous; if anything this shows that the presumption is not necessary in
order to protect the marital family. The presumption is designed to prevent the adul-
terous biological father from ever challenging the presumptive father’s paternity,
thereby protecting the integrity and privacy of the extant marital family and thereby
preserving the appearance of an exclusive marital relationship (Michael H. v. Gerald
D. 1989, 120); the plurality repeatedly refers to the extant marital family, apparently
viewing marriage as extant as long as no divorce has taken place considering the
facts of this case. Michael H., 491 U.S. (at 1989, 127, 128). However, in this situa-
tion, Carole left Gerald for extended periods of time, living with Michael or Scott as
much as she was living with her husband. Gerald has clearly been made aware that
Victoria is not his biological daughter, and this litigation has kept the issue raw and
in the forefront of their lives for 8 years, and has caused a great deal more financial
and emotional stress than merely allowing a court to decide if it was in the best
interests of Victoria for Michael to have visitation rights. Therefore, since Gerald
and Carole’s marriage has not only survived but thrived since this situation began it
would suggest that marriages are resilient enough to survive having honesty in the
marriage and do not require protective legal fictions. This leaves the conclusion that
the courts were actually attempting to achieve a different goal, and merely disguised
their goal in talk of protecting marriage.
10.7.2 Encouraging Marriage
The actual purpose of the plurality in upholding section 621 was not to simply pro-
tect marriage, but instead to encourage marriage. Once again utilizing a Peircean
analysis, the sign this time is the plurality’s statement that:
[A]lthough in some circumstances the actual relationship between father and child may
suffice to create in the unwed father parental interests comparable to those of the married
father, the absence of a legal tie with the mother may in such circumstances appropriately
place a limit on whatever substantive constitutional claims might otherwise exist (Michael
H. v. Gerald D. 1989, 129, internal citations omitted, emphasis added).
At first blush this statement, buried in the middle of the opinion amid discussion
of the rights of an adulterous lover to his child born into an extant marital family
does not seem to convey the idea that the court wants to coax men into getting
married. However, when viewed through the object of subsequent legal scholarship,
the interpretant appears that Michael H. was simply a small piece in a larger judicial
scheme to encourage men to get married (Hadek 1996–1997).
One law review article in particular helps clarify the plurality’s statement;
David Hadek’s Why the Policy Behind the Irrebuttable Presumption of Paternity
Will Never Die, 26 Sw. U. L. R. 359 (1996–1997), considers Michael H., as well
as Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcoll, 434 U.S. 246
(1978); Lehr v. Robertson, 463 U.S. 248 (1983); and Caban v. Mohammed, 441
U.S. 380 (1979), and concludes that these cases hold that a father’s rights to his
children are not determined by his relationship with the child but by establishing
through marriage that he has an enduring relationship with the child’s mother
(Hadek 1996–1997, 369–370, 373). Hadek maintains that providing an “incen-
tive” for fathers to marry the mother of their child (withholding all parental rights
if the fathers do not comply) is a vital necessity because the “overarching con-
cern our society has come to have with individual rights, to the detriment of the
marital family, may potentially threaten the survival of our free and open soci-
ety” and thereby “invite totalitarianism” (Hadek 1996–1997, 366, 395–396).
Hadek maintains that:
The increasing marginalization of the formal family and marriage is due in part to judicial
and legislative willingness to recognize certain individual and social interests above formal
marriage. These competing interests include welfare entitlements, employment rights, rights
of cohabiting couples, freedom of contract, erosion of the marital privilege through adverse
spousal testimony, and unilateral marriage termination (Hadek 1996–1997, 391 n.170).
Furthermore, Hadek concludes that this shift away from the formal family
results in children who lack motivation, personality structure, and creativeness,
who face physical health challenges, as well as, mental health challenges (Hadek
1996–1997, 392–393), including being predisposed to criminal conduct, lower
intellects, mental illness, psychological disorders, suicidal tendencies, and they are
more likely to abuse drugs. However, most of Hadek’s statistics are based on
impoverished single-mother situations, nothing like the case presently being con-
sidered. And, furthermore, Hadek assumes that single-mothers would leap at the
opportunity to marry their child’s father and lays the blame for the mother being
single completely at the feet of the child’s father. Obviously, it could not be the
case that the mother simply does not wish to marry the father, because what woman
would not want to be married? Additionally, Hadek makes the assumption that the
best way to keep children from being impoverished is for all single mothers and
fathers in American society to get married and combine their earnings potential,
completely disregarding the fact that there are plenty of two parent households that
are impoverished or considering that perhaps American society should not encour-
age women to sell themselves into marriage for financial security. Finally, in
regards specifically to section 621, Hadek states:
This is necessary if our children are to become productive members of society and, more
significantly, if our democratic society, as we know it, is to survive. Yet, these profound and
compelling interests are seemingly swept aside as trivial with respect to the rights of the
198 J.A. Ellsworth
individual, be it the putative father, the child, or the unwed mother. Admittedly, these rights
are important within the framework of our constitutional jurisprudence, but an interest of a
higher order, or as some might say, a concept of the natural law, must be accorded protec-
tion first and foremost (Hadek 1996–1997, 366, 387).
As outlined above, people often fall back on a natural law argument to disguise
their personal ideology or religious beliefs and make their position appear more
universal and fundamental.
The brief for Appellant Victoria reveals some consciousness and concern that the
court might use its authority to promote marriage. The brief stated:
Social scientists have speculated about and researched parental and family influences on
child development for many decades. As sociopolitical philosophies have changed with
time, so too have the assumptions and recommendations of social scientists. One assump-
tion has remained constant, however: the notion that the ‘ideal family’ contains a primary
caretaking and housekeeping mother, and a breadwinning father. Consequently, analyses of
the family have consistently portrayed this traditional constellation as the most appropriate
context in which to raise children. As a result, any and every deviation from ‘the norm’ is
usually considered briefly and disparagingly.
Even today, the traditional family is frequently recalled romantically and nostalgically
by those who bemoan its demise. Demographers … doubt that traditional families were
ever as common as these Cassandras imply and social scientists question whether the
decline of the nuclear family can legitimately be viewed as the cause of contemporary
social malaise. Certainly the traditional family is far from being today’s norm, but unfortu-
nately, little reliable evidence regarding the effects of ‘deviant’ family styles was available
until recently (Brief for Appellant Victoria D., Michael H. v. Gerald D. 1989, 18, n.11).
Pluralism in family structures reflects variations in the racial, ethnic, religious,

and age groups that compose the American salad-bowl culture. Each of these forms,
because they are so different from one another, has varied problems to solve and
issues to consider when dealing with organizations and institutions and its own
internal family relationships. Most important, variant family forms have different
needs from the traditional nuclear family for outside services and supports, which
for the most part remain unmet in the United States today.
Until recently, we have used an idealized family form—the single-breadwinner,
intact family—on which to base our public policies and programs, ignoring or dep-
recating other family forms which differ from this ‘ideal’ type (Brief for Appellant
Victoria D., Michael H. v. Gerald D. 1989, 20 n.15).
The brief also maintains that any governmental preference for one family form is
a reflection of ethnocentricity and class bias (Brief for Appellant Victoria D.,
Michael H. v. Gerald D. 1989, 17), and that:
By definition, those children and parents who come before courts for adjudication of parental
rights and responsibilities represent the substantial portion of Americans whose family
structure does not conform to the nuclear family model. Rather than trying to force such
families into stereotypical roles, the State should support the functioning parent and child
relationships, which have developed (Brief for Appellant Victoria D., Michael H. v. Gerald
D. 1989, 18).
The brief concludes that “one of the most significant ways in which citizens in
pluralistic society may exercise their freedom and contribute to the society’s devel-
opment” is by raising their children as they individually see fit (Brief for Appellant
Victoria D., Michael H. v. Gerald D. 1989, 16).
In this particular case, the plurality is choosing to place Michael in a worse

position in an attempt to alter societal behavior because they find his conduct
immoral and reprehensible, they refer to him six times as the “adulterous natural
father” (Michael H. v. Gerald D. 1989, 144) and the tone of the entire opinion is
one of distaste when it comes to Michael. Additionally, as stated above, tradition-
ally an illegitimate child was seen as a non-person in order to “punish” the parents
for their immoral behavior. Today, society has evolved a bit and so now instead of
“punishing” the child for the sins of the parents, the plurality wishes to simply
“punish” the father by removing the child from his life. On the other hand,
although the plurality does not discuss Gerald precisely the opinion does continu-
ously praise the institution of marriage and even the “sanctity” of marriage. For
this reason the plurality chose to “reward” Gerald with a child that he had longed
for, he and Carole had attempted to have children twice before Victoria; tragically
they lost the first child to miscarriage and the second to therapeutic abortion, a
therapeutic abortion as induced when the pregnancy constitutes a threat to the
physical or mental health of the mother (Brief for Appellee, Michael H. v. Gerald
D. 1989, 4); (medical.merriam-webster.com/medical/%20abortion).
10.8 Conclusion
Every individual possesses a combination of secular and/or religious beliefs that are
vitally important to their self-understanding. However, the legal system, in order to
be fair and impartial, must be ever cognizant of this fact and strive to uncover and
remove instances where personal ideology cloaked in legal thought is influencing
judicial doctrine. In this instance, a deep seated loathing of adultery and fornication,
combined with a sacred view of marriage and a desire to protect the unfortunate
cuckolded husband, resulted in a father being denied even the opportunity to have a
hearing to attempt to convince a court that it would be in his daughter’s best interest
for him to have visitation rights. The plurality tries to explain their rationale as pro-
tecting the child and protecting marriage, but as has been shown, the child was actu-
ally hurt by these actions and section 621 is no protection for a marriage. All that
this opinion accomplishes is strengthening a regime of encouraging marriage, an
endeavor wholly inappropriate for the legal system and should be left to either reli-
gious or moral debates.
References
Balkin, J.M. 1989–1990. The Hohfeldian approach to law and semiotics. University of Miami Law
Review 44(1119): 1120.
Beckerman, Stephen, Roberto Lizarralde, Carol Ballew, Sissel Schroeder, Christina Fingelton,
Angela Garrison, and Helen Smith. 1998. The Bari partible paternity project: Preliminary
results. Current Anthropology 39: 164.
Black’s Law Dictionary 637, 8th ed. 2004.
200 J.A. Ellsworth
Brief for Appellant Victoria D., Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87-746), 1987
WL 880074.
Brief for Appellee, Michael H. v. Gerald D., 491 U.S. 110 (1989) (No. 87-746). 1988 WL
1025582.
C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365, 369 (Mass. 1990).
Hadek, David V. 1996–1997. Why the policy behind the irrebuttable presumption of paternity will
never die. Southwestern University Law Review 26: 359.
Lin, Timothy E. 1999. Social norms and judicial decision making: Examining the role of narratives
in same-sex adoption cases. Columbia Law Review 99: 739.
Loconto, T.Carmen. 1992. Family law—The substantial relationship test: The putative father gains
standing to rebut the presumption of legitimacy-C.C. v A.B. Western New England Law Review
14: 79.
Michael H. v. Gerald D., 191 Cal. App. 3d 995 (Cal. Ct. App. 1987).
Michael H. v. Gerald D., 491 U.S. 110. 1989.
Palmore v. Sidoti, 466 U.S. 429, 433. 1984.
Rogers, Brie S. 2001–2002. The presumption of paternity in child support cases: A triumph of law
over biology. University of Cincinnati Law Review 70: 1151.
Silber, Bonnie Baxt. 1992. How irrebuttable is the irrebuttable presumption of paternity in sec-
tion 621 of the California Evidence Code? An examination of Michael H. v. Gerald D. and its
Aftermath in California. Journal of Juvenile Law 13: 159.
Part V
Economy, Business
Introduction
The hard-headed and hard-hearted world of business would seem to be immune

from the creative and indeterminate world of meaning-making. Classical Chicago-
school economic analysis is thought to be a scientific means for rising above
rhetorical flux and perceiving human interaction in a structural manner that
permits prediction and control, given the commitment to the variable of efficiency
in production and exchange. We have seen too quickly how this dream fades, with
the introduction of behavioral economics and semiotic critiques of the claims by
economists to be dealing rigorously with facts. The world of business is a swirling
world of signs and meaning-making, as is best exemplified by the anthropomor-
phism of Wall Street commentators who regularly makes statements such as, “The
stock market lost ground today, amid fear that there are signs of a looming double
dip recession.”
Perhaps the most pertinent area of business law for semiotic analysis is intel-
lectual property law. Unlike real estate or natural commodities, intellectual prop-
erty is created by, and for, humans living in a social system. From the beginning,
then, it is infused with purposive human activity and is recognized only within the
social structure that supports it. This is particularly true of trademark and copy-
right law, which attempts to deal with the legal regulation of signs. Of course, this
legal regulation can take place only through signs, compounding the complexity
of the analysis. It is precisely this complexity that the student contributors explore
in their essays.
Elizabeth Karnezos provides a social perspective on trademark law, emphasizing
the dual nature of trademarks as signs of trade, but also as signs receiving legal
protection. Trademarks are signs, in that they are marks that have a certain visual
appeal but which always refer to a particular business or product, but they also have
a social reception among the public that may exceed or diminish the intended effect.
F.J. Mootz III ()

email: Jay.Mootz@unlv.edu
Part V Economy, Business 203
Trademarks cannot be functional; they must be symbolic. The key to the law of
trademarks is to protect the distinctive meaning conveyed to the public about the
business or product. Of course, competitors will seek to capitalize on the meaning
of the mark by creating a sign that can “piggyback” on the effects that the primary
sign has in public consciousness. This leads to the current dilemma about the pro-
tection of trademarks from “dilution,” which occurs when the public meaning of the
mark is used for a completely different product, thereby not causing confusion
among consumers as much as diminishing the effect of the mark for the party holding
the right to use it.
Karnezos uses a Peircean analysis of “thirdness” to explore the social dimen-
sion of trademark law with regard to dilution claims. Her example is apt: how
should courts deal with a suit by the Ringling Brothers circus for dilution of it’s
mark (“The Greatest Show on Earth!”) by Idaho, which promoted tourism with the
mark: “The Greatest Snow on Earth.” Only a sophisticated understanding of the
triple layer of semiotics involved – the ordinary meaning of the words, their use as
a sign for a business, and the creation of a new sign that plays off the association
of the public with Ringling Brothers – can unravel the complex factors relating to
mark dilution. By pointing to the Enron mark and it changing associations as the
company went from high-flying corporate star to disgraced criminal enterprise,
Karnezos again emphasizes that an understanding of the public perceptions engen-
dered by a mark are unstable and subject to the context in which it is viewed.
The next essay by Meghann Garrett provides additional insights into trademark
law. Garrett focuses on the benefits that lawyers may gain in representing their
clients if they understand the semiotic nature of trademarks, and the equally semi-
otic nature of trademark law. She provides an important analysis of the categoriza-
tion of trademarks in terms of Peirce’s categories of signs, and emphasis the
“thirdness” inherent in all signs. For example, a mark such as “cellophane” lost its
legal protections because it lost its distinctive relation to a particular product in the
minds of the public. Garrett also offers a number of Greimasian squares to illustrate
the cases she describes. She concludes her discussion with a fascinating account of
the Qualitex case, in which a company obtained protection for the color of its product.
The key elements in the case were recognizing the centrality of public perception,
and distinguishing between the color operating as a sign and the color serving
merely a functional purpose.
Garrett’s detailed explanation of several cases by means of Peircean and
Greimasian analysis provides an example of how a lawyer can gain insight into her
cases by being attuned to semiotic analysis. But her essay reaches deeper than
merely offering new tricks for the lawyer’s toolbox. She reinforces the inevitability
of semiotic issues in legal questions, because the law is accomplished only through
signs and is dealing with human constructs such as property ownership which gain
salience only within complex, dynamic and evolving social situations.
Finally, Nathan Harvill turns to the vexing area of law under the Fifth Amendment
to the United States Constitution – the Takings Clause – to reveal the power of semi-
otic analysis. Harvill begins by providing a broad conceptual overview of semiotics
by contrasting two traditions of thought. The European tradition, epitomized by
204 Part V Economy, Business
Greimas, seeks to reveal the deep structural elements that govern the meaning of
signs. The American tradition, epitomized by Peirce, rejects the potential for formal
logic to determine meaning and seeks to show the pragmatic character of reasoning
about the meaning of signs. The latter is particularly important because it under-
scores the social character of meaning. As Plato noted long ago, thinking is the
soul’s dialogue with itself, and this is premised on our immersion in dialogic rela-
tionships with others.
Harvill draws from Kevelson to explain how legal discourse is an exemplary
instance of semiotics in action. He analyzes key Supreme Court opinions regarding
the “public use” element of a Fifth Amendment claim, and notes how the fluidity of
meaning creates change over time in the Court’s jurisprudence. This drift of meaning
culminated in the famous Kelo case, in which taking for a public “purpose” was the
recognized standard although the Constitutional text had not changed from public
“use.” Harvill notes the potential backlash from those who will wish adherence to
the “plain meaning” of the terms in the Constitution, but he recognizes that any such
retrenchment will begin again the dynamic process of the determination of meaning
in actual cases.
Chapter 11
Trademarks: A Social Perspective
Elizabeth Karnezos
11.1 Introduction
This chapter will discuss trademark law and then relate that discussion to semiotics.
Trademark law has been treated in many contexts, even by those who are directly
involved in semiotics. However, this chapter will talk more specifically about trade-
mark dilution, a relatively recent area of trademark protection and an area that has
not been discussed at length as applied to semiotics. It is precisely the dimension of
dilution that leads us to formulate social perspectives of the many legal solutions
inherent to the trademark law. Semiotic ideas sustain this analysis.
11.2 Trademarks
A trademark is a sign or symbol used by companies to distinguish a unique brand of

goods. The expression ”trademark” itself has a double meaning. It is a “mark”, a
“sign” pertaining to trade in society, and thus it is a sign of trade. But, as a student
of semiotics, Jason Fisher recently wrote: like most words, trademarks are more
than just the symbols that they represent. (Fisher 2010, 19). A trademark is a legally
protected mark, and as such it is a sign of law and its protection in trade.
The Lanham Act provides for the registration of trademarks, which it defines
in § 45 to include “any word, name, symbol, or device, or any combination thereof
[used or intended to be used] to identify and distinguish [a producer’s] goods …
from those manufactured or sold by others and to indicate the source of the
goods …” (Wal-Mart & Inc. v. Samara Bros 2000), 209). One who registers a mark
under the Lanham Act then becomes for practical purposes the “owner” of that mark,
and the owner is then able to sue anyone who infringes upon the use of that mark.
E. Karnezos ()
Dickinson School of Law, The Pennsylvania State University, Carlisle, PA, USA
e-mail: lizkarnezos@gmail.com
206 E. Karnezos
The U.S. Supreme Court recognized the significance of registration and the complex
meaning of trademarks when it ruled: “in an action for infringement of unregistered
trade dress under §43(a) of the Lanham Act, a product’s design is distinctive, and
therefore protectable, only upon a showing of secondary meaning.” (Wal-Mart &
Inc. v. Samara Bros. 2000, 216, emphasis added). Legal protection is afforded first
to registered (and therefore legally recognized) marks. It is significant that unregis-
tered marks can be protected only if it is proven they have a secondary meaning
other than for the identification of the product. This illustrates that there is more
than one meaning created by a mark, and that this secondary meaning is significant
in society.
Distinctiveness is a key to trademark protection. Distinctiveness is based upon
differentiation, which is impossible without the recognition of difference. The whole
purpose in registering a mark is to assert that the mark represents a unique good or
service. Uniqueness is essential when distinctiveness becomes real and material-
ized. The mark signals to consumers that the product represented by it, is different
than another product with a different mark. The Lanham Act’s definition of a trade-
mark is broadly framed and includes “anything at all that is capable of carrying
meaning” as an indicator of source. (Lee et al. 2009) citing (Qualitex Co. v. Jacobson
Prods. Co., 1995), 162). The purpose of registering a mark goes far beyond simply
identifying the mark as associated with a particular product or service. By register-
ing the mark, the producer of the product obtains ownership rights of the mark. The
concept of ownership (and the resulting rights) is maintained in this trademark con-
text as specifically a legal concept and gives rise to a legal action.
11.2.1 Trademark Law
Trademark law protects in particular the use of trademarks. The latter is the branch
of law and legal practice that places these trademarks in the law and thus develops
the marks both in accordance with its specific semiotic components as well as
according to their place in the legal system. Trademark law provides two-fold
protection: to the owner of the trademark (the producer of the good) and to consumers.
In general, the owner of a mark has legal protection and assurance that the mark can
be used to distinguish the owner’s specific product from other products. Federal and
state trademark laws are designed to protect the public from consumer confusion
and deceptive trade practices (Gucci & Inc. v. Curveal Fashion 2010, 5). Because
consumers associate a product and its quality with a trademark, protection for that
mark is provided so that consumers can trust the product that they are purchasing.
The Lanham Act provides national protection of trademarks in order to secure to
the owner of the mark the goodwill of his business and to protect the ability of con-
sumers to distinguish among competing producers. Legislative history of the
Lanham Act reveals that Congress believed that this national protection was neces-
sary because trademarks foster competition and the maintenance of quality by
securing to the producer the benefits of good reputation (Park ‘N Fly, Inc. v. Dollar
11 Trademarks: A Social Perspective 207
Park and Fly, Inc. 1985, 198). This protection of the trademark and protection to
consumers is obviously a dependent relationship because of the economic benefit
that owners receive when consumers purchase their product. It is important to note
that the Lanham Act is strictly a United States provision and any analysis of its role
in trademark law cannot be transferred to an analysis of trademark protection in an
international context. The relationship in the United States between a state and fed-
eral government is not the same as the relationship between, for example, a member
state and the European Union. Relationships between U.S. state and federal law do
not equate to the relationships between member states and European Union law.
The Lanham Act provides for a legal cause of action against:
(1) Any person who shall, without the consent of the registrant--
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a
registered mark in connection with the sale, offering for sale, distribution, or adver-
tising of any goods or services on or in connection with which such use is likely to
cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such
reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, pack-
ages, wrappers, receptacles or advertisements intended to be used in commerce upon
or in connection with the sale, offering for sale, distribution, or advertising of goods
or services on or in connection with which such use is likely to cause confusion, or
to cause mistake, or to deceive (United States Code, Title 15, Chapter 22, Subchapter
III, section 1114).
It is clear that trademark law is designed to protect marks based on the distinc-
tion of a product or the reputation created by this distinction and does not protect
against a particular use or feature of the product. As such, trademark law provides
no protection for a thing or issue deemed to be functional. As the Qualitex court
explained: “[t]he functionality doctrine prevents trademark law, which seeks to
promote competition by protecting a firm’s reputation, from instead inhibiting
legitimate competition by allowing a producer to control a useful product feature.”
(Maker’s Mark & Inc. v. Diageo North America, Inc. 2010, 4, citing: Qualitex Co.
v. Jacobson Prods. Co., 1995, 164). In a case involving a whiskey manufacturers’ use
of a wax seal on their bottles, the United States District Court for the Western
District of Kentucky found that even if the trademark owner’s use of his specific
wax seal is decorative and not functional, the seal could be deemed functional if
competitors need wax seals for a functional purpose on their own bottles (Maker’s
Mark & Inc. v. Diageo North America, Inc. 2010).
In that case, Maker’s Mark, a well-known manufacturer of whiskey, owned a
trademark for the particular color and look (a red “drip”) of the wax seal on their
whiskey products. Maker’s Mark brought a claim against Cuervo, a manufacturer
of tequila, when it began using wax seals similar to the ones used by Maker’s Mark
to seal its bottles. The court found that Cuervo did not sufficiently prove that their
seal was functional, and found that Maker’s Mark’s seal was indeed distinctive to
its whiskey product and therefore granted an injunction against Cuervo’s use of the
wax seal. Had the wax seal been found functional, and not decorative, it is unlikely
that Maker’s Mark’s use of the seal would have been protected. It is clear that
208 E. Karnezos
trademark protection is dependent on the consumer’s perception of the mark and of

the product. The seal would have no meaning as a trademark if it were simply
functional.
The key to infringement protection is distinction and differentiation of products.
Traditional infringement protection protects the owner of a mark from a competitor
using a similar mark on a similar product. This would create a “likelihood of confu-
sion” on the part of the consumer, and the owner of the mark would be harmed by
someone else trying to profit by getting consumers to buy a competing product by
relying on the goodwill of the owner’s company and the recognition of the owner’s
trademark.
11.2.2 Protection from Dilution
A relatively recent development in the area of trademark protection is the concept of

the protection of a trademark from dilution. Dilution can occur through blurring or
tarnishment. Globalization of trades and related product diffusion creates an even
greater possibility and risk or blurring or tarnishment. Dilution as a separate basis for
trademark protection, which originated in German courts. These courts protected a
well-known trademark for mouthwash (Odol®) from dilution through use of the
trademark on steel products. (McCarthy 2010, 67). A clear example was its conclu-
sion that the public thinks of the well-known mouthwash when sees or hears the
word “Odol,” but if others were to use the mark for a completely different product
such as steel, then the mark’s value would be diluted (Schechter 1927, 831–832).
Trademark recognition and protection is dependent on the consumer’s interpreta-
tion of a mark which gives it legal meaning. Global differences in consumers create
a complication in trademark law that makes it impossible to globalize trademarks.
There cannot be a global trademark theory because there will always be global dif-
ferences in consumer preferences and taste. Dilution, in particular, is a matter of
consumer taste, and this will always vary in a global context. A mark, which has
been given a legal meaning by consumers and therefore has trademark protection in
one society may not even be recognized in another society.
Early trademark protection in the United States focused on prohibiting the use of
a mark by a competitor on goods similar to the ones manufactured or sold by the
user of the mark (American Steel Foundries v. Robertson 1926). Schechter first
introduced the idea of trademark dilution theory to the U.S. in the early 1920s when
he explained that a mark’s significance could be harmed even if it was not used on
similar products of competitors and there was no likelihood of confusion. For example,
the names “Kodak,” “Mazda,” and “Hilton” are very well known and probably
everyone knows what type of product the names signify.
Dilution theory is based on the idea that the use of a trademark on a different
product would diminish the value of the trademark and the product to which it is
referring. Using the above examples, if a hat company began using the name “Kodak,”
a cookie manufacturer began using the name “Mazda,” and a car manufacturer began
using the name “Hilton,” the original goodwill and reputation built on the names
would diminish. This is an example of dilution by blurring. Schechter described
dilution as the “gradual whittling away or dispersion of the identity and hold upon
the public mind of the mark or name” (Schechter 1927, 825). Harm by blurring is
harm to the distinctiveness of the mark. That is all based on the public’s perception
of what product is attached to the name or mark.
Dilution theory was developed to explain how the use of a mark by others could
harm the owner not only through traditional infringement, but also when a similar
mark was used on a dissimilar product. Trademark anti-dilution laws are intended
to enable trademark owners to prevent the gradual weakening of the strength of their
marks, even if the public is not likely to be confused between the products or ser-
vices. Harm would nevertheless occur because a new association would be created
in the mind of the consumer, which thus diminishes the power of the original mark
to identify a unique product (Bunker et al. 2004, 2).
The legal theory of dilution by blurring says that if consumers see the plaintiff’s
famous mark used by other persons in a non-confusing way to identify other sources
for many different goods and services, then the ability of the famous mark to clearly
identify and distinguish only one source might be “diluted” or weakened (McCarthy
2010, 67).
Dilution by tarnishment is easier to understand and also to determine than dilu-
tion by blurring. Dilution by tarnishment can occur when a negative association is
created with a famous mark. A negative association can be made when the famous
mark can be linked to unpleasant or unsavory connotations such as drugs or pornog-
raphy, or simply to an inferior product or service. The association must occur in a
way that is not protected under the principles of free speech or parody. The Eastern
District of New York court granted an injunction against the creation of a poster
with the words “Enjoy Cocaine” using a font and color scheme similar to that used
by Coca-Cola. (Coca-Cola Co. v. Gemini Rising, Inc. 1972).
Federal protection in the United States against dilution is now reflected in the
Federal Trademark Dilution Act (FTDA), which added anti-dilution language to
the Lanham Act. Over half of the states also have anti-dilution laws. The passage
of the FTDA, effective in 1996, and revised in 2006, extended protection of trade-
marks beyond the traditional standard that prohibits use of a mark that would cause
a “likelihood of confusion” among consumers (Bunker et al. 2004, 2).
Dilution theory is grounded on the understanding that people recognize and
attach a particular meaning to a certain trademark. In this regard, the theory depends
on society attaching a consistent meaning to a trademark. For something to have
meaning within legal practice, it must remain a stable and predictable entity so that
it can be understood within the legal discourse. Dilution theory would not give rise
to any protection in trademark law unless society has given a particular meaning,
recognition or significance to strong ties of a mark and a product. Likewise, trade-
mark protection – and the idea of dilution – only has a meaning within a legal dis-
course. Dilution leads indeed to a different type of protection than infringement.
It requires that the mark not only be recognized and distinguished from other marks,
210 E. Karnezos
but also that the specific mark in question constitutes a particular significance related
to the “fame” of a product.
The current act provides protection from dilution as follows:
(c) Dilution by blurring; dilution by tarnishment
(1) Injunctive relief
Subject to the principles of equity, the owner of a famous mark that is distinctive, inher-
ently or through acquired distinctiveness, shall be entitled to an injunction against
another person who, at any time after the owner’s mark has become famous, commences
use of a mark or trade name in commerce that is likely to cause dilution by blurring or
dilution by tarnishment of the famous mark, regardless of the presence or absence of
actual or likely confusion, of competition, or of actual economic injury(United States
Code, Title 15, Chapter 22, Subchapter III, section 1125).
Proving dilution has been a challenge, and federal courts of appeal have required
different standards for plaintiffs attempting to recover under the FTDA (Bunker
et al. 2004, 3). After the enactment of the FTDA, circuit courts were split as to
whether “actual dilution” or a “likelihood of dilution” was required under the FTDA.
The language of the FTDA before its 2006 revision simply prohibited use of a mark
that “causes dilution” without mention of protection from use of a mark that causes
a “likelihood of dilution.” The Supreme Court therefore relied on the plain text of
the statute when it resolved the circuit court splits in Moseley v. V Secret Catalogue,
Inc. by ruling that actual dilution, not just the likelihood of dilution, must occur in
order for a plaintiff to recover under the FTDA. (Moseley v. V Secret Catalogue,
Inc. 2003, 432–433). However, the court still did not give a clear standard of what
type of proof would be sufficient. It ruled that while economic harm (such as lost
profits) was not necessarily required to be proved, proof must go beyond mere
mental association.
The United States Court of Appeals for the Fourth Circuit in Ringling Bros.-
Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development
addressed the significance of mental association and stated that
The real interpretive problem has been with how harm to the senior mark’s selling power
resulting from the junior mark’s use could be proved. Logic has compelled agreement that
as a threshold matter some mental association of the two marks by a relevant universe of
consumers must be proved (or presumed) in order to allow inference of the necessary causal
connection between use and proven harm (Rand 1991, 457).
Proving this “mental association” has been difficult for courts; it is a concept
that is clearly dependent on consumer interpretation. In Ringling Bros., Ringling
Bros. claimed that the Defendant Utah Division of Travel’s slogan, “The Greatest
Snow on Earth” diluted Ringling’s slogan, “The Greatest Show on Earth.” Ringing
introduced results from a consumer survey they conducted in which randomly
selected individuals at shopping malls across the country, including one in Utah,
were asked to complete the phrase “The Greatest ______ On Earth.” Some par-
ticipants chose “snow” and some chose “show” to complete the phrase, but the
results did not support that Utah’s slogan had diluted Ringling’s slogan. Even
though some consumers made the mental association of the phrase with Utah’s
slogan, almost all consumers still associated the mark with Ringling, and any
mental association of the phrase with Utah had not replaced their mental association
of the phrase with Ringling to the extent that caused any harm to Ringling. The
court found that
If you seek to rely for proof of dilution only upon evidence of the mental impressions
evoked in consumers upon viewing the marks, then those impressions must go beyond mere
recognition of a visual similarity of the two marks to allow a reasonable inference that the
junior mark’s use has caused actual harm to the senior mark’s selling or advertising power
(Ringling Bros.-Barnum & Bailey Combined Shows Inc. 1999, 463, emphasis added).
Therefore, harm is caused by dilution when the existing mark can no longer
identify and distinguish its product because of an infringing mark’s ability to create
mental association with the existing mark’s product. However, in Ringling Bros., the
court still did not create a clear threshold for what is required for “mental associa-
tion,” but it did specify that more is required than simply a consumer’s recognition
that two marks are similar.
After Moseley, the protection of trademark dilution further developed through
revisions made to the FTDA. The Trademark Dilution Revision Act of 2006 revised
the original FTDA and overturned Moseley by requiring that plaintiffs only need to
show that the defendant’s mark is likely to cause dilution. Furthermore, the revision
act narrowed the scope of protection for dilution by requiring that marks be nation-
ally well-known to qualify for protection from dilution. Whether a mark is “famous”
is the threshold issue in a trademark dilution claim (Maker’s Mark & Inc. v. Diageo
North America, Inc. 2010, 15). However, what is considered famous was not defined
in the original act.
This lack of specificity in statutes is a common problem for legal interpretation,
and such particulars may be impossible to define in a statute. For example, whether
something is “obscene” is the key issue in a pornography claim. In many criminal
cases, guilt turns on whether someone “knowingly” committed an act. Because
terms such as “famous” are subjective and defined by society’s interpretations, it is
difficult if not impossible to define the terms in a statute.
A lack of ability to define these terms leads to imperfect interpretations. The
omission of the definition of “famous” led to courts to accept “niche” fame in a local
geographic area or specialized market as a basis for a federal dilution claim (Grabell
2007, 221). What is considered “famous” was not defined until the later Trademark
Dilution Revision Act of 2006.
The current act defines “famous” as
if it is widely recognized by the general consuming public of the United States as a designa-
tion of source of the goods or services of the mark’s owner. In determining whether a mark
possesses the requisite degree of recognition, the court may consider all relevant factors,
including the following:
(i) The duration, extent, and geographic reach of advertising and publicity of the mark,
whether advertised or publicized by the owner or third parties.
(ii) The amount, volume, and geographic extent of sales of goods or services offered under
the mark.
(iii) The extent of actual recognition of the mark.
(iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February
20, 1905, or on the principal register (United States Code, Title 15, Chapter 22,
Subchapter III, section 1125).
212 E. Karnezos
Ambiguity still remains in this “definition” of famous. It is still entirely subjective

because it leaves open for interpretation what is “widely recognized by the general
public.” The court in Ringling Bros. noted that “this bare-bones codification, cen-
tered on an unelaborated term of art having no previously acquired meaning through
the common law decisional process, has puzzled courts from the outset as to just
exactly what legal interest it sought to protect, and legal harm to prevent (Ringling
Bros.-Barnum & Bailey Combined Shows et al. 1999, 456).
11.2.3 Protection from Trademark Dilution

in the European Union
Protection from trademark dilution is not uniquely American. As we have seen,

the idea of dilution originated in the German courts. The European Union (EU) by
means of its Commission, issued dilution protections in its 1989 Trademarks
Directive. While implementation is not mandatory in its direct form so that it
supersedes Member State laws, all Member States are urged to incorporate the
dilution provisions into their own laws in the ways they deem appropriate, as is
the case with an EU Directive (Schechter 1927). A Directive differs in this regard
from a Regulation, which overturns existing Member States’ law and are effective
immediately in the form the Commission presents. A Regulation has a general
application and is binding in its entirety to all member states. A Directive is binding
as to the result to be achieved by member states, but leaves the method of how the
results are to be achieved in the hands of the member states. Regulations, there-
fore, are immediately effective without the member states having to pass any leg-
islation. A Directive basically creates a legal framework, which member states
use to then create compliant legislation. A directive has the unique function of
appealing to citizens to participate in the legislative process. They are given a goal
and they have to work together. Directives are an appeal to consumers to engage
in group-activities that influence the means developed to achieve the ends required
by the Directive. The Water Framework Directive adopted in December 2000 in
the EU is an example of a legislative project that is dependent on citizen involve-
ment for its success.
From a semiotic viewpoint, one could say that Directives allow consumers to
take part in the creation of legal meanings. This considerably deepens and widens
the emotional component of trademark infringement. Posner suggested that there
may be a residual form of dilution in addition to blurring and tarnishment: “free-
riding,” which is when the defendant gets unfair benefit from the use of a famous
mark, but the mark itself is not necessarily damaged (McCarthy 2010, 67). EU law
against trademark dilution is stricter than in the U.S. and specifically prohibits both
free riding and dilution, while U.S. law does not recognize protection from free-
riding. This component of “unjust enrichment” leaves even more to citizen interpre-
tation and involvement in the development of the legal meaning.
11.3 Re-introducing Semiotics in Trademark Law
Semiotics has been discussed since the mid-1980s with regard to law, and here we
re-introduce semiotics to law in a way that relates to trademark law, and specifically,
trademark dilution. This section also re-introduces and deepens the statements made
about semiotics in the introductory section.
A trademark is a “mark” for trade, and only as a mark for trade does it play a role
in law. Fisher observed when studying semiotics: “as I became immersed in the
study of semiotics, the meaning of the word ‘trademark’ evolved before me. Now,
when I see the word ‘trademark’ I no longer only connect the word to the branch of
law. The word ‘trademark’ itself has become a representation of the Peircean triad”
(Fisher 2010, 19). Like most words, trademarks encompass more than just the sym-
bols that they represent (Fisher 2010, 19). We know that a trademark is a sign.
Fisher explains Peirce’s view of a sign in the following way:
Peirce perceived a sign as containing three distinct parts, known as the triadic sign model.
The first element is the representamen, the perceptible object that has meaning other than
to itself. In trademark law, the representamen would be the physical mark itself, which
acts as a sign or symbol. The second element is the referent, a physical or mental entity
that is linked to the sign through the representamen. The referent would be the company
or product that is being represented by the trademark. The third and final element is
called the interpretant, which Peirce defined as “creating something in the mind of the
interpreter.” The interpretant is what connects the representamen and the referent together;
it is the cognitive process by which a person understands and interprets a trademark
(Fisher 2010, 19).
Because this third element is a cognitive process, it will almost always vary
between different people. Two people looking at a trademark may end up associat-
ing it with the same product or company, but each may get to that interpretation in
different ways. Each may also have a different view of the product or company even
if they associate the same company with the sign or logo.
By applying semiotics to trademarks and trademark law we recognize that the
meaning of a trademark as a sign comes from its use in a discourse. Through the
study of signs, symbols, and their meanings, we recognize that everything can
become a sign.
Semiotics teaches us that all things have or are given more than one meaning.
There is a surface meaning and there is also a deeper meaning in all words and
signs that we use. Without semiotics, law students and lawyers cannot fully look
beyond the surface meaning of words to use the signs and meanings occurring in
the legal discourse. Semiotics gives us an approach that helps us understand the
deeper meanings of words and text that we use so that we can communicate more
effectively.
Peirce tells us that a sign in itself is not really a sign, but instead that a sign can
only be a sign if and when it is interpreted as such. Interpretation requires another
human being to interpret the sign. Every sign is interpreted in the context of rela-
tionships, and therefore meaning is developed within a system of signs, and these
214 E. Karnezos
meanings and interpretations are dependent on the interpreter and on culture.

Because they are dependent on interpretation to make their meaning, signs and
their meanings are not a set absolute but instead can change over time and reflect
the society or culture in which they originate and are interpreted. Signs can only
be interpreted in relation to other signs and thus to a culture, a pattern of social
relations. When we relate this to trademarks, a trademark as a sign can only be
interpreted by consumers in relation to other trademarks and in doing so, finally
to the law in its entirety. For example, a logo indicating that a product is “Pepsi”
is only meaningful to the extent that it distinguishes it from other products that are
“not Pepsi.”
Signs derive their meaning from interpretations of those signs within a society.
We know from the above description of Peirce’s model that there are effectively
three levels of a sign and the meaning is dependent on each level. A sign can be in
the form of an object, word, image, sound, or gesture. Daniel Chandler writes that a
sign can also be an action and can be positive or negative, so that even the absence
of an action can be a sign (Broekman 2010, 28).
This understanding of meanings in terms of a triadic formula is not only the
result of logic, but also of our emotional life: each triad is comfortable and satis-
factory to our human consciousness. Four is too many, and one or two is not
enough. But three levels of interpretation – one could speculate – make sense
because simply looking at the opposite or contrast of an object would not be able
to give sufficient meaning, so we must also have the third level to look at the
meaning which is given to something through the observations and interpretations
of another.
In fact, true meaning would not exist without the third prong of semiotic analysis
articulated by Peirce. The interpretant is the most interesting and significant aspect
of the analytical tool because it is constantly changing and creates the possibility for
an infinite number of meanings.
11.4 Semiotic Perspectives on Trademark Law
The idea of protection of trademarks and the rights associated with owning a trade-
mark invites discussion on a wide range of topics that can be analyzed using semi-
otics. For example, for a mark to be diluted, it must first be determined that that
mark is famous. What makes a mark famous? Only with the recognition of a mark
and the association of a mark with a meaning within the social discourse can a
mark be famous. A mark has almost no legal meaning if it is not registered (although
it can still have legal protection if, as discussed earlier, society gives the mark a
secondary meaning).
If we apply a semiotic analysis to trademark law and use Peirce’s triadic approach
to describe trademark law in general, we might come up with elements in three
categories to help define the rights and duties that trademark law establishes and
protects. An explanatory triangle for trademark law might look like this:
In trademarks, we first recognize an object as the mark itself; in many cases this
is a logo, but can also be anything, even something like a scent or color. This might
be what Peirce would refer to as “firstness.” Then, there is recognition of the mark
in society and the recognition that the owners of the mark have certain rights, includ-
ing protection from infringement and dilution. This might be what Peirce would call
“secondness.” Finally, there is the association of the mark with a particular product
based on source and distinction from other products. This requires a deeper analysis
and one might consider this the most significant aspect of the semiotic triangle. It is
what Peirce might refer to as “thirdness.” This pattern of understanding goes even
further when we understand that consumers form qualitative opinions and make
economic decisions based on the meaning associated with the mark and the prod-
ucts that it represents.
Most importantly for the triadic model is that it concerns a continuous process.
Thirdness is based on interactions and relationships within society, and, as such, has
the possibility to constantly change. Kevelson described human societies
… not, as Peirce suggests, hierarchically ordered, … but rather from the inception, inter-
action presupposes relational ties, e.g. the relational ties of exchange and community
especially in non-totalitarian societies, i.e. in free market places of exchange (Kevelson
2000, 97).
The constant changing relationships in communities determine the significance

of a trademark, whether it is famous, and whether a competing mark is infringing or
diluting the original mark.
216 E. Karnezos
Semiotics can help us explain and understand major aspects of trademark

protection. In the protection of a traditional trademark right (and the reciprocal duty
not to infringe upon another’s trademark as well as the duty to comply with require-
ments for protection), a “likelihood of confusion” cannot exist in society if society
has not yet formed some idea of the meaning of a particular trademark. We can bet-
ter understand the dilution theory by using semiotics to help us determine when a
mark is famous and when use of another mark is either blurring or tarnishing the use
of the original mark.
To fully understand and practice trademark law, we must be able to determine
whether a mark is distinctive, whether it is famous, and whether another’s use of the
mark constitutes a cause of action.
11.5 The Semiotic Significance of Trademarks in Society
In his article The Semiotic Analysis of Trademark Law (Beebe 2004), Beebe explains
how the typical economic efficiency analysis of trademark law is incomplete, and
that to fully understand trademark law, we must understand the importance of the
status that trademarks establish and how they encourage consumers to consume
(Beebe 2004, 624) A major component of trademarks is distinctiveness. Beebe
explains that distinctiveness is itself a function of the status that society attaches to
a particular trademark. Trademark law cannot fully be understood without the
understanding of the role of trademarks in creating social distinctions (Beebe 2004).
Semiotics, one can conclude in general, is an approach to explain and understand
social distinctions. Without semiotic analysis we cannot fully understand the role of
trademarks and how social distinctions affect law. However, that emergence of
social distinctions and differences is a complex sociological issue. So Beebe con-
cludes that “trademark law lacks a well-developed theory of the consumer, and,
specifically, of consumer sophistication” (Beebe 2005, 2025). There is a semiotic
significance of trademark infringement itself as well as the very fact that the legal
world is willing to protect the rights of someone to use a particular mark that indi-
cates the source or distinctiveness of a product.
Beebe proposes that trademark distinctiveness should be recognized as a broader
concept that includes source distinctiveness and differential distinctiveness. (Beebe
2004, 625). Beebe describes source distinctiveness as the extent to which a trade-
mark’s signifier is distinctive of what is being signified, while differential distinc-
tiveness is the extent to which the trademark is distinctive from other signifiers in the
trademark system (Beebe 2004, 625). This more complex analysis of the somewhat
vague requirement in trademark law for a trademark to be “distinctive” provides
more insight into the complete role of trademarks in society. Beebe underlines the
necessity of a new approach to trademark infringement analysis. Courts should first
look at source distinction to determine whether a trademark is within the subject
matter of anti-infringement protection. Courts should then consider the differential
distinctiveness of a trademark to determine the scope of anti-infringement protection
a trademark should receive (Beebe 2004, 625). If we are to give protection based on
a more complex differential distinctiveness, we have to understand what meaning

society places on the trademarks.
Beebe’s emphasis on differential distinctiveness is valid. Mere source distinc-
tiveness does not give the complete picture of trademark protection. Society
attaches meaning not simply to the source of a product, but also to the extent a
product is distinct from another. The newer laws such as the FTDA reflect that
importance of distinctiveness. By now protecting the use of a mark on even a dis-
similar product, the law now recognizes that a mark has a meaning other than just
that of a product source.
Beebe reminds us that semiotics defines the sign not by what it is, but by what it
does – because of the process character of functioning signs and the semiotic
approach (Beebe 2004, 630). Thus, in a semiotic analysis of trademark law, we must
look not only at what a trademark signifies in terms of the product it represents, but
also how it affects the perception of the product in society and how it affects con-
sumer behavior (which are two important social issues, from which the more gen-
eral, social bandwidth of semiotics can be understood). In the case of trademark
dilution, protection is provided not for the sign itself, but for what it does. This pro-
tection of the function of the sign in society is the essence of trademark law and
somewhat reflect Beebe’s analysis. Trademark dilution laws provide protection
against use that blurs or tarnishes the image.
We must use a semiotic analysis to understand how it is that consumers can dis-
tinguish a trademark, either by source or differential means. Greimas, by using a
semiotic square, illustrates the significance of opposite meanings in the context of
semiotic analysis. He clarifies how words have meaning in the context of their oppo-
site meaning. For example, we can only know if something is “living” if we also
know the meaning of its opposite: “non-living.” As applied to trademark signifi-
cance, consumers can only recognize a particular trademark to signify good quality,
for example, if there is also an understanding of the opposite: not good quality. One
can imagine an almost infinite number of possibilities if one were to continue to
define each term in terms of its opposite. For practical purposes, it is important to
understand this approach to understanding the meaning of a concept in terms of its
opposite and not to get too carried away with the infinite possibilities.
11.6 Semiotics, Trademarks and Social Distinctions
Beebe suggests that the Chicago School gets it wrong when it characterizes the
function of trademarks as one that facilitates search and encourages quality. Instead,
trademarks are status goods, consumers consume trademarks to signal status, and
courts consistently afford trademark legal protection so that they preserve the status-
signaling function of trademarks (Beebe 2004, 624).
The protection for trademarks implies that the marks have a social value. We
know that certain trademarks and brands and stores have a social significance.
Consumers try to obtain or maintain social status by owning those brands and shopping
at those stores.
218 E. Karnezos
Semiotics teaches us that no human can exist without words that have been spoken
to him or her. We are shaped by our culture generally, but also more specifically by
the words that are spoken to us individually by those around us. This begins as early
as birth, and we are fortunate when one’s mother or father speaks or reads to us in
our early years. This means in general, that our actions are shaped by what others
have said to us so that we appropriate the meaning of spoken words in the context
of the culture in which we live. In relation to trademarks, the choices that we make
when purchasing certain products, choosing certain stores, or eating certain things
is shaped by words others have spoken to us. Those words could be from people we
know or they could be words in the form of advertisements or news reports about
certain products or companies. Our perceptions of products and companies can
change over time based on what we hear about them.
One example of this is the perception of Enron Corporation. While different
people may have different perceptions of Enron, the familiar Enron logo at one time
generally stood for a powerful, innovative company. Now it has multiple negative
meanings including personal greed, uncontrollable power of corporations, and lack
of ethics in the corporate world. It has become the symbol of how not to run a cor-
poration. The designer of the Enron logo, Paul Rand, said in his 1991 essay “Logos,
Flags, and Escutcheons,” that
a logo doesn’t sell, it identifies… A logo derives its meaning from the quality of the thing it
symbolizes, not the other way around. A logo is less important than the product it signifies;
what it means is more important than what it looks like (Rand 1991, 88).
This statement demonstrates how a logo develops meaning in society and the
distinction between the sign itself and the deeper meaning beyond just the sign or
symbol as an identifier. Social perceptions and social distinctions are created through
our communications within society. Perception of both ourselves and of each other
is shaped and changed based on interaction within the social discourse. Meaning is
given to words that are spoken to one another, and words have no meaning other
than the context in which they are spoken and understood.
We can relate this concept of the meaning and communication of words in the
social discourse to the legal field. Lawyers work within a world of their own and to
a large degree have their own language, which is called legal discourse. Of course,
lawyers, like anyone else, will use many of the same words and connect those words
to form expressions and texts like anyone else who is not a lawyer. However, when
a lawyer uses particular words, those words also have a specific meaning within the
legal discourse and those words and texts have a precise legal meaning.
Lacan, a psychiatrist and psychoanalyst who largely influenced modern semiot-
ics helps explain the formation of identities. He supports the conclusion that because
social relations play a key role in the emergence of an individual entity, law – a
social discourse itself – does not encounter human identities that exist before and
outside law. In other words,
engenderment of an identity is in itself a component of law because there exist no identities
before any type of legal discourse unfolds (Broekman 2010, 51).
As related to trademarks and trademark law, the concepts of the mark itself, what
it stands for, and what constitutes infringement or dilution of it, only exist within the
law and legal discourse. The only reason a mark as a sign is important in the law is
because it represents the protections that the law has given to it. A trademark cannot
exist without law. There would be no infringement cases or dilution cases if there
was not a perception that one trademark represented a product that was different
than (and presumably superior to) another product.
11.7 Conclusion
Trademarks are signs that can and should be interpreted through semiotics. A trade-
mark is relevant in the law only to the extent that it is a mark, which represents trade.
Understanding that a trademark (even the term “trademark” itself) has multiple
meanings, is possible by using a semiotic analysis. Semiotics as a way of under-
standing the importance of multiple meanings helps us understand trademarks in a
legal context. Because many lawyers are not formal students of semiotics, they may
not realize that they are using semiotics in their practice of law. But, by understand-
ing the elements of the law such as trademark protection, and by understanding new
developments in the law, lawyers are using semiotics to understand the deeper
meanings of the words and texts that they use in their everyday practice.
References
American Steel Foundries v. Robertson, 269 U.S. 372 (U.S. Supreme Court 1926).
Beebe, B. 2004. Semiotic analysis of trademark law. UCLA Law Review 51: 621.
Beebe, B. 2005. Search and persuasion in trademark law. Michigan Law Review 103: 2020.
Broekman, Jan M. (2010). The Roberta Kevelson seminar on law and semiotics coursebook. Penn
State Law Seminar Ed.
Bunker, M.D., J.G. Stovall, and P.R. Cotter. 2004. Proving dilution: Survey evidence in trademark
dilution actions. University of Baltimore Intellectual Property Law Journal 13(Fall): 37. 13 U.
Balt. Intell. Prop. L.J. 37.
Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972).
Fisher, J. 2010. Student positions and opinions. International Journal for the Semiotics of Law
23(1):18
Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189 (U.S. Supreme Court 1985).
Grabell, J. A. 2007, Feb 22. Practising Law Institute. Comments on the Trademark Dilution
Revision Act of 2006 , 890, p. 213.
Gucci America, Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. March 8, 2010).
Kevelson, R. 2000. Peirce and the mark of the gryphon. New York: St. Martin’s Press.
Lee, T.R., E.D. DeRosia, and G.L. Christensen. 2009 Winter. An empirical and consumer psychol-
ogy analysis of trademark distinctiveness. Arizona State Law Journal 41: 1033.
Maker’s Mark Distillery, Inc. v. Diageo North America, Inc., 2010 WL 1407325 (W. D. Ky April
2, 2010).
220 E. Karnezos
McCarthy, J.T. 2010. Introduction to the dilution doctrine. In McCarthy on trademarks and unfair
competition, ed. J.T. McCarthy. Thomson Reuters, Westlaw.
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (U.S. Supreme Court 2003).
Pencak, W., and C. Palecek. 2002. From absurdity to zen. New York: Peter Lang Publishing.
Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (U.S. Supreme Court 1995).
Rand, P. 1991. Logos, flags, and escutcheons. In Looking closer: Critical writings on graphic
design, ed. Bierut, M. et al. 1994, 88. New York: Allworth Press.
Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development, 170
F.3d 449 (4th Cir. 1999).
Schechter, F.I. 1927. The rational basis of trademark protection. Harvard Law Review 40: 813.
Simons, I. 2007, May 16. Trademark dilution: Does Europe lag behind the US? IP Review Online:
http://www.cpaglobal.com/ip-review-online/2488/trademark_dilution_does_europe_lag_
behind_the_us. Retrieved April 28, 2010.
United States Code, Title 15, Chapter 22, Subchapter III, section 1114.
United States Code, Title 15, Chapter 22, Subchapter III, section 1125.
V Secret Catalogue, Inc. v. Moseley, 259 F. 3d 464 (6th Cir. 2001).
Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (U.S. Supreme Court 2000).
Chapter 12
Trademarks as a System of Signs:
A Semiotician’s Look at Trademark Law
Meghann L. Garrett
12.1 Introduction
Semiotics is the study of signs, symbols and meanings, and their interrelation with
one another in the realm of human interaction and human life. While using semiotics
in the legal field is a relatively new concept, semiotics can be used as an instrument
in understanding the law and the lawyer’s function within the law. Understanding
and using semiotics can provide lawyers with an upper hand in the courtroom, can
provide lawyers with a deeper understanding of legal arguments or decisions, and
can provide lawyers with a tool in managing legal discourse. The semiotician-attorney
will focus on the signs and symbols in law (the legal texts, case names, and other
symbols) to reach a deeper understanding of the law and contribute more fully to
legal discourse.
Conceptually, it is not difficult to view trademark law as being a system of signs.
While law (and trademark law) is indeed a system of signs, law does not function
easily within semiotics because lawyers attempt to create a single meaning in legal
signs, rather than understand (as a semiotician would) that multiple meanings exist.
A single, and sometimes very simple, mark can signal to the public the goods to be
consumed, the source of those goods, and the quality associated with those goods
along with a number of other pieces of information. But the sign relation of trade-
mark law can in fact be very complex. Thus, this chapter attempts to explore trade-
mark law, and the marks themselves, from a semiotic viewpoint to provide a deeper
understanding to trademark law as a system of signs. While the language of trade-
mark law may provide for slightly different meanings [15 UCS] for the purpose of
this text, “trademark” will refer to the area of law (unless otherwise indicated) and
“mark” will refer to the individual sign. The first part will provide a brief overview
of semiotics. Second, this chapter will provide a general look at trademark law as
set forth in the Lanham Act. In its third section we attempt to use a semiotic approach
M.L. Garrett ()

Dickinson School of Law, Penn State University, Carlisle, PA, USA
e-mail: meglgarrett@yahoo.com
222 M.L. Garrett
to provide a deeper understanding of trademark law. Finally, we analyze a seminal

trademark case, using semiotics to address legal meaning within the case. Semiotics
teaches that no absolute meaning can be found, so we attempt to secure at least one
meaning of for instance the Qualitex case and what it means in trademark law
today.
12.2 Semiotics
Signs take the form of words, images, sounds, gestures, objects, and, among many
other things, colors. “Signs can be something active and positive, or something
negative, so that an absence of an action may also be interpreted as a sign.” Signs
convey a meaning to those able to interpret them. Semiotics, therefore, studies sign
meanings and how reality is represented within culture. Signs are imbedded in lan-
guage and culture – thus, a word, image or sound may be a sign in one culture, but
have no meaning in another culture. Further, no culture exists without symbols.
Symbols introduce order to a culture, which leads to language; language allows
people to be aware of their selves and their reality. Stated another way, within a
defined culture, individuals attach meaning to symbols or signs – as a result, those
signs transform from the Umwelt (everything around those individuals) to the
Lebenswelt (everything meaningful to those individuals) (Bains 2006). Semiotics,
then, would be everything and nothing; semiotics is of space and time, changing as
society changes (Beebe 2004, 621, 627); and semiotics is defined by what it does,
rather than what it is (Broekman 2009).
12.2.1 Greimas and Signification
Algirdas Julien Greimas proposed the semiotic notion of signification (individuals

perceive what is significant to them) (Broekman 2009). Through this processes of
signification, life can be understood as a narrative. The narrative consists of a surface
(the phenotext) and the deep structure (the genotext) that provides meaning to the
surface. To understand the signification of a particular theory, one must uncover and
interpret the meaning of the genotext in addition to the phenotext. To do so, it must
be noted that each word or symbol on a surface only functions as a sign because its
opposite exists within the deep structure. The existence of the opposite is the reason
the symbol has meaning. From this, many semioticians make use of the Greimasian
square as a means of recognizing the surface sign in addition to the underlying
opposite that gives the sign meaning (Greimas and Rastier 1968). Visualizing the
sign and its opposite allows semioticians to better understand underlying meaning.
Greimas’ signification theory is especially relevant in the legal field in order for
attorneys to get a full understanding of legal realities. Lawyers learn to speak the
language of law and to interpret legal signs in order to participate in and manage
12 Trademarks as a System of Signs: A Semiotician’s Look at Trademark Law 223
legal discourse. Legal language has signification to the attorney because the attorney
can recognize the sign meaning and their underlying opposite. Individuals who are
not part of the culture of law cannot communicate within law and understand legal
realities because legal signs (such as what constitutes a “breach of contract”) have
no meaning to them.
12.2.2 Lacan and Identity
Jacques Lacan presented a semiotic theory of identity. Lacan’s theory is embedded

in language. Language empowers human beings to interpret and give meaning to
symbols and signs, and to create symbols and signs that can be understood as a
result of language. However, an individual cannot take part in discourse unless it has
a sense of self and one only gets a sense of self (or an identity) through language.
An illustration of this point is that a child has no sense of self until others within his
society tell him that he is separate and distinguished from others – then the child
refers to himself as “I” rather than as “Jimmy” (how others refer to him).
Just as a child has no sense of his self until others tell him his identity exists,
individuals have no legal identity until a lawyer tells them so. For example, if Bob
and John makes promises to one another and Bob does not uphold his promise, John
has no legal identity until a lawyer says to him that Bob has breached their contract.
Now that the lawyer has said to John that he has a legal identity (of plaintiff in a
breach of contract claim), John is thrust into participating in law’s master discourse.
Knowing one’s identity (in life and law) allows the individual to understand how
others relate to and interact with his self.
12.2.3 Peirce’s Triadic Model
Another semiotic theory that is used extensively here is that of Charles Sanders
Perice’s approach to the triadic sign model. Peirce, at least in the United States, is
credited with the triadic sign model – a triple connection of sign, thing signified, and
cognition produced in the mind. More fully:
A sign, or representamen, is something which stands to somebody for something in some
respect or capacity. It addresses somebody, this is, creates in the mind of that person an
equivalent sign, or perhaps a more developed sign. That sign which it creates I call the
interpretant of the first sign. The sign stands for something, its object. It stands for that
object, not in all respects, but in reference to a sort of idea….Peirce’s sign consists, then, of
three elements, each of which corresponds to one of Peirce’s three categories of Firstness,
Secondness, and Thirdness. The first element, … is the representamen, the perceptible
object, the “vehicle conveying into the mind something from without.” The second element
is the object, or “referent” …, which can be a physical “object of the world” or a mental
entity “of the nature of thought or of a sign.” The third element, … is the interpretant, which
Peirce defined as “[creating] something in the Mind of the Interpreter,” the “proper signifi-
cant effect,” the “proper effect of the sign.” (Peirce 1934, 636)
224 M.L. Garrett
While Peirce himself did not do so, this triadic sign model can be visualized in
the form of a “semiotic triangle” as shown below:
Interpretant (emerging thought) Thirdness
Representamen (perceptible object) Referent (attachment to object)

Firstness Secondness
{Cultural Context}
Peirce’s semiotic approach differs from other semioticians discussed here in

that Perice’s “master-pattern” for semiotics is not human language, but human
cognition, the structure and processes of thought (Peirce 1934, 637). A distin-
guishable but related approach was developed by Ferdinand de Saussure whose
didactic sign model, which can be illustrated with the sign book, where the sound
or appearance of the word “book” acts as a signifier and stands for the concept of
a book as a signified. Saussure focuses on the linguistic aspect of the signified
where Peirce’s focus is on how the representamen and referent work together to
create the interpretant within the mind. While Peirce proposed that there are thou-
sands of types of signs (the whole world being compose mostly of, if not entirely
of signs), he reduced signs to three categories: (i) iconic (a sign in which the rep-
resentamen resembles or imitates to some degree the object to which it refers;
i.e. scale models); (ii) indexical (a sign in which the representamen is related in
some causal, physical way to the object; i.e. medical symptoms); and (iii) symbolic
(a sign in which the representamen and its object is purely a matter of convention;
arbitrary). As will be discussed later, trademarks are also reduced to, and appear
within these categories.
Law, in particular trademark law, can be viewed in light of Peirce’s triadic model.
For that reason, this note will refer to a semiotic triangle multiple times as an illus-
tration of Peirce’s theory in semiotics.
12.3 An Introduction to Trademark Law
The Lanham Act section 45 defines “trademark” including “any word, name,
symbol, or device, or any combination thereof … used by a person … to identify
and distinguish his or her goods, including a unique product, from those manufac-
tured or sold by others to indicate the source of the good, even if that source is
unknown” (15 U.S.C. § 1127 2000). The owner of a registered mark only has
rights in the mark so long as it remains a distinctive sign, identifying the products
or services to the source of those products or services. If consumers no longer

connect the mark with the source of the products or services, then no trademark
exists. The Restatement on Unfair Competition defines the criteria for distinctive-
ness as follows:
A word, name, symbol, device, or other designation, or combination of such designations,
is “distinctive” if:
(a) the designation is “inherently distinctive”, in that, because of the nature of the designa-
tion and the context in which it is use, prospective purchasers are likely to perceive it as
a designation that, in the case of a trademark, identifies goods or services produced or
sponsored by a particular person, whether known or anonymous, or in the case of a trade
name identifies the business or other enterprise of a particular person, whether known or
anonymous, or in the case of a collective mark, identifies members of the collective
group or goods or services produced or sponsored by members, or in the case of a cer-
tification mark, identifies the certified goods or services; or
(b) the designation, although not “inherently distinctive,” has become distinctive, in that, as
a result of this use, prospective purchasers have come to perceive it as a designation that
identifies goods, services businesses, or members in the manner describe in Subsection
(a). Such acquired distinctiveness is commonly referred to as “secondary meaning”
(Restatement (Third) of Unfair Competition § 13).
Similarly, if the mark is or becomes generic (i.e. “cellophane” [which lost its
trademark] for thin, transparent sheet made from regenerated cellulose) or mislead-
ing, the owner can lose protection for the mark, as the purpose of trademark law is
to allow words, names, symbols or devices to function as a sign to consumers.
As previously stated, marks can be words, but words are classified in trademark
law (akin to sign indexing in Peirce’s theories): (i) “coined” words that have no
meaning except as a mark (i.e. EXXON); (ii) “fanciful” words that are invented for
the sole purpose of functioning as a mark that may bear a relationship to another
word or may be an obsolete word (i.e. FAB); (iii) “arbitrary” words in common
language but neither suggests or describes any ingredient, quality or nature of the
product with which it is used (i.e. OLD CROW); (iv) “suggestive” words suggest
the product without actually being descriptive of it (i.e. STRONGHOLD); or
(v) “descriptive” words draw attention to an ingredient, quality or nature of the
product (i.e. TENDER VITTLES). However, trademarks have also been granted in
sounds (NBC’s three chimes), scents (plumeria blossoms on sewing thread), shapes
(of a Coca-Cola bottle), and colors (as discussed below in the examination of
Qualitex v. Jacobson Products).
Coined, fanciful, and arbitrary marks are afforded the strongest trademark pro-
tection as any meaning attached to such marks is inherently distinctive and has
inherent meaning. Subjective and descriptive marks require a showing of distinc-
tiveness, or that consumers have attached secondary meaning separate from any
underlying meaning – a showing that the marks serve as a trademark sign of the
product source rather than merely serving as a linguistic sign. Marks are protectable
only within the geographic areas in which they have attained a meaning or secondary
meaning to the consumers. Holders of marks, whether registered with the U.S.
Patent and Trademark Office or not, can commence legal actions for infringement
should an interloper use a mark so substantially similar as the holder’s mark so as to
cause confusion to consumers.
226 M.L. Garrett
12.4 A Semiotician’s Look at Trademark Law
The entire area of trademark law can be understood as a “system of signs designated
to facilitate the commodification of social distinction(s).” (Beebe 2004, 632–633).
Jean Baudrillard, among others, suggested consumption (i.e. the purchase of com-
modities) may be understood and analyzed “as a system of communication and
exchange, as a code of signs continually being sent, received and reinvented – as
language.” (Baudrillard 1998, 632). If there is a “language of commodities”, the
Lanham Act is used by trademark lawyers to interpret the narrative of trademark
law and understand the signification of those commodities. The surface and deep
structure of the Lanham Act provides trademark holders with a legal identity, pre-
senting the rights and duties of the holder. Lawyers participate in this trademark
legal discourse by registering marks as status goods (sending the sign); consumers
then consume the marks, signaling status (receiving the sign); businesses then per-
form the duties and protect the rights provided by the Lanham Act to preserve the
mark’s status-signaling function (reinventing the sign). This premise can be visual-
ized with the below Greimasian squares:
Registered Trademark Rights
Duties No Registered Trademark
Identity Sign
No Signification No Identity
Lawyers participating in trademark law, then, have the daunting task of under-
standing and interpreting the language of law and the language of trademark law, or
the language of commodification (which are distinct, but interrelated). Further, the
language of commodities has been extended and has become more complex in the
ever-growing marketplace. Consider for instance the problem posed by the Internet:
domain names pose a new and complex issue to be considered by trademark law.
One example of domain names serving as symbols and becoming part of trademark
discourse is discussed in eBay, Inc. v. Perfumebay.com (2007, 506 F.3d 1165) where
the court determined that the domain name Perfumebay.com created confusion to
the public. Said another way, when consumers saw the domain name Perfumebay.
com, it was likely that the signifier would not signify Perfume Bay (the owner of the
domain name), but that in the minds of consumers the domain name would signify
eBay because it uses the eBay’s mark within the domain name (eBay, Inc. v.
Perfumebay.com, 506 F.3d 1165, 160). This example illustrates the complexity and
rapidly changing nature of trademark discourse, and supports the assertion the
trademark law is a system of signs that changes as culture changes.
The eBay case (eBay, Inc. v. Perfumebay.com, 506 F.3d 1165) also demonstrates
how marks can be viewed in light of the Peirce’s semiotic triangle:
First, the trademark must take the from of a tangible symbol [which] constitutes the trade-
mark’s signifier … Second, the trademark must be used in commerce to refer to goods or
services. These goods or services constitute the trademark’s referent. Third and finally, the
trademark must ‘identify and distinguish’ its referent … by identifying the referent with a
specific source and that source’s goodwill. This source and its goodwill constitute the trade-
mark’s signified (Beebe 2004, 646).
In the eBay case, the mark (“ebay”) is the signifier, the referent is the domain
name (“perfumebay.com”). The signifier-referent relation here signifies eBay, Inc.
rather than Perfume Bay – this is “confusion” within trademark law, as the signifier
does not signify the correct signified. This mark confusion can be represented
through the semiotic triangle below:
Signified - Interpretant (eBay, Inc.) Thirdness
Signifier - Representamen (ebay) Referent (perfumebay.com)

Firstness Secondness
Much of trademark law has developed in light of the triadic framework. While,
the structure of trademarks have changed some in light of some more recent trade-
mark cases (for instance, marks need not necessarily be attached to a particular
commodity in order to give rise to trademark infringement), this structure remains
relevant as many courts will construe the facts to fit within the semiotic triangle
framework (Boston Professional Hockey Ass’n v. Dallas Cap & Emblem, 510 F
2d 1004).
A mark must be distinctive in order to serve as a signification of source. Source
distinctiveness describes the extent to which a trademark’s signifier is distinctive of
its signified (Beebe 2004, 625). This is a semiotic approach to the Lanham Act’s
attitude toward generic marks – if there is little or no source distinctiveness (or the
228 M.L. Garrett
signifier does not distinguish the signified), it is generic. Differential distinctiveness

describes the extent to which the mark’s signifier is distinctive from other signifiers
in the trademark system. This is a semiotic approach to the trademark concept of
confusion – if the interloper creates a mark that has little or no differential distinc-
tiveness, it will cause confusion to the interpreter and give rise to a trademark
infringement suit (the issue in eBay). This idea can also be visualized through the
use of a Greimassian square as depicted below:
Trademark Protection
Source Distinctiveness Differential Distinctiveness
Infringement No Infringement
Confusing Generic
No Differential Distinctiveness No Source Distinctiveness

No Trademark Protection
It is important to mention here that value in the mark arises from the differ-
ential distinctiveness. Differential distinctiveness gives rise to the source dis-
tinctiveness (or source identity) and value arises from the relation between one
mark as compared against all other marks. For instance, a swoosh on
tennis shoe has differential distinctiveness sufficient to give rise to source dis-
tinctiveness: Nike. The Nike mark has value because it is distinctive as against
other marks such as Reebok, Adidas or some other tennis shoe brands. Sign
value does not only signal high status, however. A commodity has various use
values, only one of which may be high status. Pay-Less Shoes Store has sign value,
but does not signal high status – rather it may signal affordability (Beebe
2004, 643). Value, then, is a conspicuous display of distinctiveness; value is
inexhaustible and renewable. Put another way, companies seek to maximize the
sign value of their brands, products or services, but do not necessarily seek to
enhance the prestige of those brands, products or services. Rather, the compa-
nies simply seek to enhance the mark’s distinctiveness, to raise the brand’s pro-
file (Beebe 2004, 644).
The semiotic triangle is useful again when reviewing the requirements for obtain-
ing trademark protection in a mark. Qualification can be broken down into three
elements: (i) tangible sign (word, name, symbol, scent, color, etc.); (ii) use (actual
use in commerce by manufacturer or seller of goods or services); and (iii) function
(to identify and distinguish the seller’s commodities from commodities made or
sold by others). The tangible sign is the signifier, referring specifically to the per-
ceptible form of the mark. Use in commerce constitutes the mark’s referent. Further,
marks must “identify and distinguish” its referent by identifying the referent with a
specific source and that source’s goodwill –the source and its goodwill constitute
the trademark’s signified. This concept is depicted as follows:
Signified - Source and Goodwill
Signifier (good/service) Referent

Mark Use in Commerce
Trademark law has enforced the triadic model by requiring affixation (of the mark
to the product or service) and use in commerce in order to qualify for protection,
creating a link between the signifier and its referent. This triadic model is further
supported by trademark law’s prohibition of assignments or leases of marks “in
gross” – a company cannot sell or license the mark without the accompanying goodwill.
Goodwill, then, is an emerging thought, which is created by the signifier and its refer-
ent and the attachment of meaning to the mark. A mark is merely a symbol of its
goodwill and has no independent significance apart from the goodwill it symbolizes.
This doctrine also enforces the link between the mark’s signified and its referent
because if the trademark holder engages in “naked licensing,” or fails to exert control
over the quality of the goods licensed and associated with the goodwill, then the
mark is deemed abandoned under the Lanham Act. In Gorenstein the court stated:
“The owner of a trademark has a duty to ensure the consistency of the trademarked
good or service. If he does not fulfill this duty, he forfeits the trademark … The pur-
pose of a trademark, after all, is to identify a good or service to the consumer, and
identity implies consistency and a correlative duty to make sure that the good or
service really is of consistent quality, i.e., really is the same good or service”.
The Lanham Act does not allow for trademark protection for marks that are
deemed “functional” (Lanham Act §2(e), 15 U.S.C. § 1052(e) 2000, § 2e). The
functionality doctrine serves to prevent the merger of the signifier and its referent
(Beebe 2004, 661). Trademark law has defined functionality in two ways: (1) as
being “de facto functional” (functional under the standard dictionary meaning),
which may still be able to receive trademark protection if secondary meaning
attaches; and as being “de jure functional” (functional as a matter of trademark law),
which is per se non-protectable under trademark law (15 U.S.C. § 1052(e) 2000).
De jure functionality has been defined as a mark or element of a mark necessary to
allow others to compete effectively within the field of commerce. For instance, the
fluted design of a beverage can’s sidewalls is “one, if not the best, way” of strength-
ening a can’s sidewalls and was therefore deemed functional as a matter of trade-
mark law (Beebe 2004, 661). Aesthetic features have also been deemed to be de jure
230 M.L. Garrett
functional in some situations when granting exclusive rights in such features would
put competitors at a non-reputation-related competitive disadvantage. The problem
with functionality can be viewed semiotically as the problem of “semiotic threshold”
(Beebe 2004, 662). A sign represents a meaning that is beyond pure functionality.
Roland Barthes observed that, by an “inevitable” process of “semantization,” even
the most ordinary of functional objects may cross this semiotic threshold and
become “pervaded with meaning …. [A]s soon as there is a society, every usage
is converted into a sign of itself” (Broekman 2009). Barthes’ observation (and
Perice’s observation that most everything in the world becomes a sign) puts the
semiotic threshold as being relatively low. Viewed in light of trademark law, if the
de facto functional aspects of a commodity do not pass the semiotic threshold
unless they signify a secondary meaning (having source and differential distinc-
tiveness); or if the signifier is merged with its referent, then the de facto elements
of the mark cannot receive trademark protection, as those elements does not func-
tion as a sign. Similarly, if an element of a mark is deemed de jure functional (the
elements are generic, public domain, or necessary to allow for competition in the
marketplace) the mark cannot function as a sign within trademark law. The trade-
mark semiotic threshold, therefore, seems to be higher than where Barthes puts
the semiotic threshold.
12.5 A Semiotic Analysis of Qualitex
In Qualitex Co. v. Jacobson Products Co., Inc., the Supreme Court of the United
States (Qualitex 514 U.S. 159) was confronted with an issue of whether a color
alone was sufficient for trademark protection. Since the 1950s, Qualitex used a spe-
cial shade of green-gold color in the pads that it manufactures and sells to dry cleaning
businesses for use on dry cleaning presses. A picture of a Qualitex dry cleaning pad
is reproduced below.
In 1989, Jacobson Products, a competitor of Qualitex, began selling its own dry
cleaning pads colored in a similar green-gold color. In response to Jacobson’s use of
the green-gold color, Qualitex registered the color with the U.S. Patent and
Trademark Office and added a trademark infringement claim to its ongoing unfair
competition claim. Note that the Lanham Act does not require registration of a mark
for the institution of a suit under Unfair Competition (and dilution). However, to sue
for trademark infringement under the Lanham Act (as opposed to common law),
Qualitex was required to register the mark.
Until the decision in Qualitex, courts have differed as to whether or not the law
recognizes the use of color alone as a trademark (NutraSweet Co v. Stadt Corp. 1990);
(Owens-Corning Fiberglas Corp. 1985). For that reason, the U.S. Supreme Court
granted certiorari, holding that there is no rule absolutely barring the use of color
alone in trademark law. The Court’s rationale in deciding color can serve as a
trademark has much semiotic relevance, considering both the surface and deep struc-
ture of the Qualitex opinion, and considering how Peirce’s triadic model is upheld by
this opinion.
In determining that color alone could satisfy the Lanham Act’s requirements for
trademark protection, the Court stated that since “human beings might use as a ‘symbol’
or ‘device’ almost anything that all that is capable of carrying meaning”, the lan-
guage of the Lanham Act, read literally, is not restrictive. Here, the Court echoes
Barthes’ and Peirce’s theories that anything (or nothing) can serve as a sign. Thus,
the Court determined that if a shape, sound, or fragrance can act as a symbol for
trademark protection, a color could as well. Justice Breyer explained “it is the source-
distinguishing ability of a mark – not its ontological status as color, shape, fragrance,
word, or sign” that qualifies it for protection under the Lanham Act (§2(e), 15 U.S.C.
§ 1052(e) 2000, 1304). Thus, trademark law requires that the signifier and referent
relate to its signified – it does not matter in which form the signifier appears. Thus,
color as a mark can be viewed in the semiotic triangle that follows:
Signified (Qualitex)
Signifier (green– gold color) Referent (dry cleaning pads)

Mark Use in Commerce
A central question in Qualitex was that of aesthetic functionality. As discussed in

Section III of this chapter, functionality will serve as a bar to trademark protection,
which seeks to promote competition by protecting source reputation, because it
inhibits legitimate competition by allowing a producer to control a useful product
feature. From a semiotic point of view, if the green-gold color is aesthetically or
otherwise functional, it should not be able to serve as a signifier within trademark
law because competitors need to make use of the color as well. The Court deter-
mined that the green-gold color of Qualitex dry cleaning pads served no cost or
quality function, nor was the color necessary for the pad to operate(Lanham Act
§2(e), 15 U.S.C. § 1052(e), 1304–1305) . The Courts determination on color as a
232 M.L. Garrett
form of functionality (in this case) can also be viewed in the Greimassian square
depicted below:
No Trademark Protection
Color Functional
Trademark No Trademark
Protection Protection
Not Functional No Color

Trademark Protection
Jacobson argued that allowing color alone to qualify as a mark would produce
uncertainty and non-resolvable disputes about what shades of color a competitor
can use without infringing upon a registered mark. Color can be functional and
serve as a bar to trademark protection on its own. This is not to say that businesses
cannot use color in conjunction with other symbolic elements that would, together,
serve as the signifier. Jacobson essentially made an argument that issues of suffi-
cient differential distinctiveness among colors would arise if color alone served as a
mark. For instance, if Jacobson’s dry cleaning pad were more gold than green,
would it provide sufficient differential distinctiveness, and subsequently provide for
source distinctiveness, to allow for trademark protection? The Court rejected
Jacobson’s first argument indicating that colors can provide adequate source and
differential distinctiveness (the color providing sufficient secondary meaning) just
as any other symbol serving as a mark. Further, Courts can, and often do, make the
determination whether two colors (or other words, sounds, symbols, or devices) are
so similar as to cause confusion to the public. Semiotically, the Court is making the
assertion that colors convey meaning, functioning as a sign, just as words do. If no
meaning attaches to color (or the signifier does not reference the signified), then
there is no trademark protection. Trademark infringement cases often make use of
consumer surveys to show that there is indeed a signifier-signified relation that
exists in consumers’ minds when those consumers come in contact with a mark.
Thus, if consumer surveys indicate that a defined set of consumers (dry cleaning
businesses) relate Qualitex with the green-gold pads, the green-gold serves as a
symbol. Courts are concerned with defined sets of consumers. This is akin to the
discussion in Section I of culture. Here, trademark consumer sects are the same as
cultures – where a mark may have meaning to one sect of consumers, it may not to
another. Thus, in dry cleaning businesses, the green-gold color has meaning, where,
for instance, in the shoe-industry, it may have no meaning or a different meaning.
The Court also rejected Jacobson’s second argument, which was that allowing
trademarks in colors would create “color depletion”, or that eventually there would
not be enough colors for each competitor to participate in the commodity market.
The Court rejected this argument though the use of the functionality doctrine.
Put another way, competitors of Qualitex will not be put at a non-reputation-related

disadvantage as there are enough other colors available to Jacobson (and other dry
cleaning pad manufacturers) in order to keep from infringing upon Qualitex’s estab-
lished goodwill, or to keep from infringing upon the signal the green-gold color
conveys to consumers in the dry cleaning industry. If the color becomes functional
(e.g. customers of green farm equipment want their equipment to match, so the
color becomes de jure functional), it will no longer be protectable under trademark
law. The Court’s rationale implies that there are so many colors available that one
industry will never deplete the possibilities. This can be viewed in light of the below
Greimassian square:
Trademark
Green-Gold Qualitex Dry Cleaning Business
Trademark Trademark
Available Available
Other than Dry Trademark Other then

Cleaning Business Available Green-Gold
Jacobson makes a third argument against allowing for trademark protection in

color alone by referring to past court cases that supported its proposition (Leschen
& Sons Rope Co. v. Broderick & Bascom Rope Co. 1906, 425). The Court makes
reference to the past case as dicta, indicating it as not being an appropriate geno-
text for understanding the signification of the mark at bar. This illustrates a point
made in Section I of this chapter – the law, as a system of signs, is fluid, changing
as society changes. The dicta relied upon by Jacobson appearing in A. Leschen no
longer applies to trademark law, as the Court articulates, because of the ratifica-
tion of the Lanham Act. On the surface of A. Leschen, the court provided dicta
that readers interpreted later as excluding color as a proper basis for trademark
protection. In creating the surface of A. Leschen, the court relied upon the then-
current common law definition of trademark, as in Abercrombie & Fitch Co. v.
Hunting World, Inc., 537 F.2d 4, 9 (CA2 1976), whereas the decision in A. Leschen,
the Lanham Act was instituted, the meaning of “trademark” changed. While the
textual definition of “trademark” remains almost identical, (defined in 1878 com-
mon law as “consisting[ing] of a name, symbol, figure, letter, form, or device, if
adopted and used by a manufacturer or merchant in order to designate the goods
he manufactures or sells to distinguish the same from those manufactured or sold
by another”), the Court now interprets “trademark” as a more expansive term by
reading other parts of the Lanham Act, as “any word, name, symbol, or device, or
any combination thereof … used by a person … to identify and distinguish his or
her goods, including a unique product, from those manufactured or sold by others
234 M.L. Garrett
to indicate the source of the good, even if that source is unknown.” This provides
a good example of the need to understand the genotext in order to gain a proper
understanding of the phenotext. The textual definition of trademark appears the
same, but the meaning (the text as a sign) has changed because of the institution
of the Lanham Act. The Lanham Act extended protection to descriptive marks by
making clear that “nothing … shall prevent the registration of a mark used by the
applicant which has become distinctive of the applicant’s good in commerce” (15
U.S.C, § 1052).
Thus, as the underlying texts that the Court used in generating the surface of
Qualitex changed, so did the meaning of “trademark”. The new interpretation of
“trademark” allows color alone to be protected within trademark law so long as it
meets the requirements of having secondary meaning and use. The Court further
delves into the genotext of the Lanham Act, and supports its assertion that color is
a proper basis for trademark protection, by indicating that a Congressional change
in the Lanham Act left unchanged the language in Section 2 of the Lanham Act
(consistent with the determination in In re Owens-Corning Fiberglas Corp 774 F.2d,
1116, 1128 (CA Fed. 1985), the adoption of a Patent and Trademark Office policy
permitting registration of color as a trademark, and a report written by the Trademark
Commission which recommended a broad reading of things which function as a
mark to include color).
Finally, Jacobson argued that there is no need to permit color alone to function
as a mark because businesses can already use color as part of a word, name, symbol
or device and that the company can rely on trade dress (prohibited under § 43(a) of
the Lanham Act) if a competitor’s use of the same or substantially similar color
causes confusion to consumers (Lanham Act §2(e), 15 U.S.C. § 1052, 1308). The
Court quickly dismisses this argument as well for more practical reasons. The
Court indicates many businesses may manufacture and sell commodities that cannot
support the placement of a word or symbol onto the product. Thus, the business
may want to use the color alone to signal to the consumer the source and value of the
commodity. Further, the Court maintains that trademark law provides protection to
the business that trade dress cannot, see further 15 U.S.C. § 1124 (2000) (ability to
prevent importation of confusingly similar goods), § 1072 (constructive notice of
ownership), § 1065 (incontestable status), and § 1057(b) (prima facie evidence of
validity and ownership). The Court’s rationale can be viewed in light of the below
Greimassian Square:
Commodity Size Sufficient Trademark

to Support Logo Qualitex Color
Trademark Trademark
Available Available
Trademark Commodity Size Insufficient

No Color
Available to Support Logo
The Qualitex case provides a complex but excellent example of the pervasiveness
of semiotics both in the law and in trademark law. Trademarks are signs of source
and value to consumers (and thus inherently a source of semiotics); the Court uses
semiotics in determining that color alone can serve as a mark or a sign of source and
value, deserving of trademark protection (indicating the signaling power of color
marks); and semiotics can be used to attain a deeper understanding of the Qualitex
opinion and the law that emerges from the opinion 15 U.S.C. § 1124 (2000) (ability
to prevent importation of confusingly similar goods), § 1072 (constructive notice of
ownership), § 1065 (incontestable status), and § 1057(b) (prima facie evidence of
validity and ownership). The Qualitex case name has become a sign itself, having a
certain meaning to trademark law attorneys and those who participate in trademark
law master discourse.
12.6 Conclusion
Using semiotics allows a lawyer to get a deeper look at and understanding of legal
realities. Such an understanding may provide the attorney with the upper hand in
litigation or enable the lawyer to maximize his or her effectiveness for the client.
Moreover, using semiotics to analyze the phenotext and genotext of legal texts,
using Greimas’ semiotic square and viewing law as a narration, allows for a greater
understanding of legal meaning. “Law is such a complex character on our human
stage. As character, it is also a composite, complicated, continually evolving idea.
Law is a system of signs. It is a standard-bearer of social value” (Kevelson 1988).
Lawyers use of semiotics aid in managing legal discourse. Semiotics has helped
to maintain a balance in law with a rapidly changing, and ever-growing society.
Awareness of how each legal concept evokes meaning, allows an attorney to decon-
struct legal reasoning, to identify the conflict created as the framework for the legal
issue and the values embedded in the terms used in making legal arguments.
Trademark law is a vast area of the law that requires an understanding of both the
language of trademarks and the language of the law. Trademark law uses words,
sounds, scents, colors, symbols and devices to signify meaning to consumers –
trademarks are signs. Thus, marks are not an irreducible, indivisible piece of prop-
erty (the trademark holder has no rights in the signifier alone, but the goodwill
signified as a result of the signifier and referent interacting); rather marks are rela-
tions of reference that are valued based upon how marks relate to one another within
culture. As such, semiotics is an especially important skill that trademark attorneys
should utilize when participating in legal discourse.
References
Bains, Paul. 2006. The primacy of semiosis: An ontology of relations. Toronto: University of
Toronto Press. 2009.
Baudrillard, Jean. 1998. The consumer society: Myths and structures (trans: Chris Turner). London:
Sage (1970)
236 M.L. Garrett
Beebe, Barton. 2004. Semiotic analysis of trademark law. UCLA Law Review 51: 621–704.
Boston Professional Hockey Ass’n v. Dallas Cap & Emblem, 510 F.2d.
Broekman, Jan M. 2009. Peirce and legal semiotics. In The Roberta Kevelson seminar course book
on law and semiotics. Carlisle: Penn State Law.
eBay, Inc. v. Perfumebay.com, 506 F.3d 1165 (9th Cir. 2007).
Gorenstein Enters., Inc. v. Quality Care-USA, Inc., 874 F.2d 43`, 435 (7th Cir. 1989).
Greimas, A.J., and F. Rastier. 1968. The interaction of semiotic constraints. French Yale Studies 41:
86–105. Yale University Press.
Kevelson, R. 1988. The law as a system of signs. New York: Plenum.
Kevelson, R. 1989. Law and semiotics. New York: Plenum.
Lanham Act §2(e), 15 U.S.C. § 1052(e) (2000).
Leschen, A. & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U.S. 166,71, 26 S.Ct. 425,
426 (1906).
Morris, Charles. 1955. Signs, language and behavior. New York: George Braziller.
NutraSweet Co v. Stadt Corp., 917 F.2d 1024, 1028 (CA7 1990).
Owens-Corning Fiberglas Corp., 774 F.2d 1116, 1128 (CA Fed. 1985).
Peirce, Charles Sanders. 1934. Pragmatism and pragmaticism, Collected papers of Charles Sanders
Peirce, ed: Charles Hartshorne and Paul Weiss. Cambridge: Harvard University Press.
Qualitex. 514 US 159.
Restatement (Third) of Unfair Competition § 13.
15 U.S.C. § 1052(e) (2000).
15 U.S.C. § 1127 (2000).
Chapter 13
The Semiotics of ‘Public Use’: “Use the Purpose
by Which All May Benefit”
Nathan S. Harvill
13.1 Semiotics
Semiotics encompasses everything, which may be taken as a sign—not only in

speech, but of anything that may stand for something else (Broekman 2009, § b). It
is also concerned with the manner in which meanings are made and how that mean-
ing is represented. Roberta Kevelson identified two major assumptions in the field
of semiotics: “All communication is a process of exchange of meaningful signs, and
sign systems such as natural language mediate between communicating personal
and those objects in the phenomenal, physical world of experience to which they
refer …” and, “All human societies have developed complex systems of both verbal
and nonverbal sign systems which are not static but which evolve continuously to
correspond with and to represent changing social norms and the evolving, growing
social consciousness of any given community …” (Kevelson 1988).
Kevelson suggests that the legal system itself is a model of dialogic thought
development because of the relationship and interactions between legal thought and
legal practice. The premises of a legal argument are presupposed to find a basis in a
hypothetical argument, because those premises are neither true nor false, therefore,
by necessity legal arguments must be looser and not conclusive. Previously, many
believed that in the field of logic and semiotics, the legal argument was an exception
because laws were the “black letter” written down, and all the court would need do
is look at the appropriate “sign” in the law and to apply it. However, Kevelson rec-
ognized that Charles Sanders Peirce (one of the US founders of semiotics) had dis-
covered that every argument—legal or otherwise—engendered from hypothetical
statements and presuppositions, meaning that the “black letter” law was merely a
presupposition established by an ongoing “conversation”.
Peirce viewed semiotics as a branch of logic. Because he was a mathematician
by trade, he based his study of semiotics on triadic sign relation, that A begets B and
N.S. Harvill (*)

e-mail: nsharvill@gmail.com
238 N.S. Harvill
corresponds to C (Peirce 2009). A is a sign of something, B is the interpretant sign,

and C is the object of the interpretant sign. Anything may be a sign, but each sign is
dependent upon its relation to another. For Peirce, there were exactly three semiotic
elements: the sign, the interpretant and the object.
He describes the sign as a something, which represents in the broadest sense of
the term or “says something about something”. A sign can materially be anything.
Peirce describes the next element, the interpretant, as “the sign’s clarified meaning”—
it is the product of the sign and the object. Finally, an object is a subject matter of
both a sign and an interpretant, so that anything that is thinkable or discussable may
be an object. Peirce’s theories were an indirect inspiration for Anglo-American
jurists who recognized a changing legal system as it related to changing social sys-
tems and the evolution of human values, Kevelson noticed.
The field of legal semiotics has yielded two major schools of thought, a European
and an American. The European tradition holds that a there exists a “deep” structural
level, which is coordinated on axes of paradigm and syntagm. The paradigm repre-
sents the dictionary meaning of signs and the syntagm represents the signs as under-
stood in their proper (cultural) context. European tradition also holds that a sign is
binary, being composed of the signifier and the signified. The signifier is the acoustic
image and the signified is that to which the signifier refers, the “mental image.” Finally,
the concept of “non-referentiality” is important for understanding the European tradi-
tion of legal semiotics. Non-referentiality is where the meaning of the sign refers to
nothing but the meaning of another sign, which in its turn refers its meaning to still
another sign and so on. There is no “mental image, nor any material substance in this
European tradition to be conjured up by the use of a particular sign: only the “image”
of another sign. Signs are in legal discourse representations of other signs, as will be
illustrated in the cases which follow. Under such a semiotic system, legal discourse
defines legal concepts, which are the signs used in the language of law. A leader of the
application of the European tradition to legal semiotics is Algirdas Julian Greimas.
Greimas developed an instrument that semioticians may employ to discover the
underlying meanings of signs: his “Semiotic Square” takes opposing terms, concepts
or signs and attempts to classify them. Opposing signs are placed on axes opposite
each other, with the complimentary and contradictory signs placed opposite of them.
In the square model which the Wikipedia reproduces, signs A and B are oppo-
sites: signs A and A1 and B and B1 contradict each other; and signs A and B1 and B
and A1 compliment each other. Utilizing actual signs furthers the point, if A means
“masculine” and B means “feminine” and A1 means “not masculine” and B1 means
“not feminine”, the use of the semiotic square becomes apparent. See the square as
it appears with the new signs. Note, that while “masculine” is the opposite of “femi-
nine”, “not masculine” does not necessarily mean feminine; it is possible that “not
masculine” could mean neither masculine nor feminine. Further, it is possible to tie
multiple semiotic squares using binary oppositions to form a narrative.
In applying the “American tradition” to the field of legal semiotics, it is important to
note that the roots of the tradition are (a) pragmatism, (b) reference and
(c) the triadic nature of meaning. Pragmatism is concerned with the “contextual and
situated nature of meaning.” The American tradition adheres to the concept of refer-
ence, holding that signs refer to something outside of themselves to find meaning
13 The Semiotics of ’Public Use’: “Use the Purpose by Which All May Benefit” 239
(unlike the European tradition). The concept of the triadic nature of meaning is the sign
(word), interpretant (referent) and the object, which is in line with Peirce’s theory.
Kevelson, applying semiotics to the legal profession, stated how “legal semiotics
holds that in each case there is a legal event, in which legal discourse is one kind of
legal act, and that legal procedures, as communicative events in which both legal
actors and non-authorized persons participate, are exchanges of official messages by
means of verbal and nonverbal signs and are also legal acts of a nonverbal kind.” She
concluded that formal logic based upon syllogistic reasoning (consisting of a major
premise, a minor premise and a conclusion derived by the first two), when applied to
legal semiotics, cannot show how an idea evolves and grows because there is no addi-
tional information that is outside of the major and minor premises (Kevelson 1988).
In law, the journey to the conclusion (or “object”) is as important as the conclusion
itself. The American tradition is led by Kevelson’s championing of Peirce’s theories.
Peirce challenged accepted convention by declaring that a person was not abso-
lutely an individual because the thoughts of a person are an inner dialogue—conver-
sations within coming to life in the continuum of time. Thoughts are signs, which
are “spoken” to the critical self and the critical self becomes the interpretant of the
signs. Further, individuals move within social circles that may act as one collective
body with shared thoughts and ideas—identity groups. Each one influences the other
and the conversation continues in perpetuity (Broekman 2009). In the same way,
individuals with thought make up the profession of law; lawyers are a part of a
certain identity group—the legal profession. Lawyers, by their signs (written or
verbal) influence their group. At the same time, the legal profession influences the
individuals within it—the lawyers. It proceeds in an almost circular fashion. The
following chart presents an appropriate, if simple, representation:
Social Norms and Lawyers Argue

Legal Precedent Before Courts of
Influence Lawyers Law
New Law Governs Court Makes

Society, Establishing Decisions Based
New Social Norms Upon the Lawyer’s
Arguments (New
Law Is Created)
240 N.S. Harvill
This stands in contrast to the traditional notion of rigid rules and norms to which
the law must in absolute terms adhere.
The above cycle of discourse inspired Kevelson to reveal the importance of semi-
otics to lawyers, using four themes advanced by Peirce—the philosophy of a sign
has to be transformed into a full theory of semiosis; the distinction between formal
logic and the logic of discourse must be put into proper perspective; the focus on the
philosophy and instead of the psychology of the lawyer; and the mind being a sign
which develops according to the laws of inference. The “law” is a language repre-
senting a collection of signs an ongoing conversation between lawyers, courts and
the society within which they exist (Broekman 2009).
There have been variations in the application of both European and American
traditions in legal semiotics relating to the intent or unconscious motivation of inter-
pretants and signs. Legal semioticians move between the two traditions based not on
“American” or “European” geography but on based upon their own understanding
and interpretations of the law. Roughly spoken, the European approach tends to be
more holistic, the American more analytical.
Broekman (2009) offers the following steps in the application of legal semiotics
to cases:
1. Identify the message. Describe the message of the text in concise terms, focusing
on the main issue at hand.
2. Identify the signifiers. Formulate what they do in this text context and determine
their meaning(s).
3. Identify the signifieds: how do they function as a receptor of meaning?
4. Identify the paradigms at hand, such as pairs, oppositions, categories, and their
psychological or sociological signification.
5. Identify the syntagms. Find the direct and the implied messages, which you can
identify. Differentiate between
Linguistic components, such as words, de- and con-notations,
Literal messages,
Symbolic messages
6. Identify the principle functioning in the text or message such as: “justice” or
“peace keeping”, “equilibrium” etc. It is of rhetoric importance to find how
the elements in the text are tied together. This importance could be character-
ized as the management in the text, which leads to more encompassing man-
agement strategies within the context formed by all related other texts
together.
7. Identify the specific legal features at work, reaching from message description to
management analysis of the text.
After completing the steps listed above, this information is then combined
with Greimas’ semiotic square determining the place where each term should fit.
In so doing, it is possible to see the decisive differences in the function and
meaning of terms.
13.2 Legal Applications
The “language” of law changes over time. The cases to which the tools of semiotics
will be applied are interpretants of—among many others—the signs such as “public
use” and “private property”. Those are found in the last section of the Fifth
Amendment to the U.S. Constitution. The pertinent text reads, “nor shall private
property be taken for public use without just compensation” (Constitution of the
United States of America. Amendment 5). In a Peircean scheme, the Fifth
Amendment is the object (“private property”), whereas “private property” and “public
use” are the signs and the case law is the interpretant.
Courts act as a legal/political body using signs, not just words but the legal concepts
of “public use” and “private property.” This chapter looks at a century of case law,
book-ended by two cases, which are all dealing with the same sign: “public use.”
The set of signs used by the court in its analysis of each case are shown in this
square:
The court must first determine how the signs “public use” and “private property”
relate to each other. Once that has been determined, the court will be on its way to
find the meaning of each sign. Courts relegate the interpretation of “private prop-
erty” in an American fashion: as something that is understood to exist in every case.
The sign “private property” conjures up images of a person possessing his or her
land, doing with it as he or she sees fit and being permitted to restrict the activities
conducted thereupon.
As the square above illustrates, private property and public use are in opposition
to each other. The basis for the premise that “private property” and “public use” are
opposites (upon which the above square is based) is the Fifth Amendment to the
U.S. Constitution’s requirement that something be done in order to change one sign
to the other. That “something” is legally determined as “just compensation”. This is
important to note because if the signs “private property” and “public use” were
interchangeable and not in opposition, there would be no need for “just compensation”
to occur in order to move one sign to the next. The presence of the sign,“ just
242 N.S. Harvill
compensation” allows the interpretant to understand how “private property” and

“public use” are opposites in this semiotic context.
The square further illustrates that “not all private property” equals “not public
use”, and ”not all public use” equals “not private property”. This “complementary”
illustration forms the basis of the judicial inquiry in the cases, which follow—guided
as they are by our leading question: “what is public use?”
13.3 The Cases
The first case, Bauman v. Ross (1897), concerned the condemnation of certain pri-
vate property in the District of Columbia for use as public highways. In the middle
of the nineteenth century, the city of Washington did not cover the entirety of the
District of Columbia. Beyond the Washington city boundaries, landowners were
permitted to subdivide their lots and many of them laid roads over their own prop-
erty in order to gain access and to allow the subdivision of land to be more economi-
cally feasible (Bauman v. Ross 1897, 550). Many of the roads were constructed only
with the convenience of the landowner in mind and there was no uniformity. In an
effort to correct this, congress authorized the Commissioners of the District of
Columbia to regulate and restrict the manner by which all of the land in the District
was to be subdivided, including any plans for new roads. This was done in an effort
to promote conformity with the city of Washington. The act gave the commissioners
power to extend a permanent system of highways over the entire District outside of
the cities of Washington and Georgetown. The law authorized the commissioners to
condemn land for the purpose of incorporating the relevant parts into the new sys-
tem of roads and highways for the District (Bauman v. Ross 1897, 554).
The term “public use,” as understood by the court in Bauman v. Ross included
highways and roads, which the public would use and from which the public would
benefit by means of “access”. Additionally, private properties would benefit from
the access via the “public” roads. This added the sign of an “access” to the sign of
public use, resulting in a new semiotic square:
The signs developed by the court in Bauman v. Ross, implied that unless there is
“public use”, there is no “access”. This raises a new question as to whether it is possible
for the public to have “access” outside of “public use”. The courts in subsequent
years would attempt to further clarify “use” by adding new signs.
An expansive interpretation of the sign of “public use” was taken in Berman v.
Parker, (Bauman v. Ross 1897), which involved a re-development scheme where
the local government was authorized to condemn private property in order to
transfer the property to a private entity for the purposes of redevelopment. Justice
Douglas expanded the definition of “public use” to include “public purpose”
based on physical, aesthetic, and monetary benefits and stated that the purpose of
the redevelopment plan in this case was to address the broader blight issues in the
area in order to prevent the neighborhood from reverting to blighted conditions in
the future. This begat another sign of “public use,” illustrated below:
Public purpose had now itself become a sign for public use, meaning that the
original text of the Constitution had become supplanted by the court’s opinion. It
was the court’s intention to make the signs “public use” and “public purpose” inter-
changeable. It is important to note the first part of the sign, “public”, remained the
same: it was the latter portion of the sign which was changed! This replacement of
“use” with “purpose” opens an entirely new conversation. The square illustrates the
court’s interpretation:
The meta-concept in the above chart asks the questions, “Is it possible to have a
“purpose” without “use”?” and, “Is it possible that something which is “purpose-
less” is always “useless”?” Berman did not answer this question, but by looking at
the square above, the inference taken by lawyers and the whole of society is that in
order to determine “use”, one must first determine “purpose”.
244 N.S. Harvill
The court looked at “purpose” in Hawaii Housing Authority v. Midkiff (467 U.S.
229 1984, 229), where the government of the state of Hawaii had proceeded in con-
demnation of property on the island in an effort to break up what was called a real
estate oligopoly. The concern being that nearly half of the Hawaii’s real estate was
in the hands of 72 individuals. The stated “purpose” of the Hawaiian government
was to correct the market conditions that had created the oligopoly and allow more
people to become landowners on the island. Therefore, the Hawaii Legislature con-
cluded that the oligopoly in land ownership was “skewing the State’s residential free
simple market, inflating land prices, and injuring the public tranquility and welfare,”
and therefore enacted a condemnation scheme for title. The “purpose” would be to
benefit the public with a more competitive real estate market to the wider populace.
The court unanimously concluded that “benefit” would be the sign, which would
relate to “purpose” and in its turn still related to “use”. The court was continued in
semiotics as understood in the European tradition. The square below reflects the
development advanced by the Berman case.
The opposite of “benefit” is “detriment”, the new set of questions asked are “Is
something which is “purposeless” always a “detriment”?” and “Does something
which has “purpose” also have “benefit”?
Over the span of about 90 years, courts supplanted “public use” as identified in
the Fifth Amendment, and equated the concept first with “access”, then “purpose”
and then “benefit”. Changes of meaning imply changes of words and these cause
changes of social relations. “Use” can be identified as a neutral sign. Just because
something may have a “use” does not necessarily imply that it has a “benefit”. The
“benefit” must be understood in its context. The court, in Hawaii Housing Authority,
sought to limit the bounds of its interpretation stating that “a (A) purely private tak-
ing could not withstand the scrutiny of the public use requirement; it would serve no
legitimate purpose of government and would thus be void …. The Court’s cases
have repeatedly stated that ”one person’s property may not be taken for the benefit
of another private person without a justifying public purpose, even though compen-
sation be paid” (Wikipedia 2009).
The next square shows the evolution of sign meanings from the initial case, Bauman
v. Ross, to Berman v. Parker and, finally, to Hawaii Housing Authority v. Midkiff.
In Kelo v. City of New London (545 U.S. 469 2005, 469) the Supreme Court of
the United States heard argument over the planned condemnation of private prop-
erty by a city so that the city could then transfer that property to another private
property owner. The Court’s majority opinion based its analysis upon the sign of
“benefit” comparing “benefit” to “purpose”. The dissent rejected this comparison,
opting instead to look back at the beginning — to the Fifth Amendment itself and
the more neutral sign of “use”.
Consulting a thesaurus, the term “purpose” returns the following synonyms:
advantage, avail, benefit, duty, effect, function, gain, goal, good, mark, mission,
object, objective, outcome, profit, result, return, target, utility (Thesaurus.com
2009). These synonyms listed have a common image of looking forward in attempt
to manage an end result, making it more similar to the sign “benefit”. The term
“use” has these synonyms: account, adoption, advantage, appliance, applicability,
appropriateness, avail, benefit, call, capitalization, cause, convenience, custom, end,
246 N.S. Harvill
exercise, exercising, exertion, fitness, good, habit, handling, help, helpfulness, mileage,
mobilization, necessity, need, object, occasion, operation, point, practice, profit,
purpose, reason, relevance, service, serviceability, treatment, usability, usage, use-
fulness, utility, value, way, wear and tear, wont, worth. Most of the synonyms of
“use” are present actions or ideas, which could or could not be beneficial. Linear
time is the distinguishing factor of each. It is worth noting that “purpose” is a syn-
onym for “use” but “use” is not a synonym of “purpose”. Because one sign is a
present impression and the other is a future event, it could be said that “use” may
lead to “purpose” but “purpose” does not necessarily lead to “use” because “pur-
pose” is future looking and “use” is present looking.
O’Connor, writing the dissent in the Kelo case, spoke of how the court’s use of
the sign “purpose” as an equal to “use” rendered the term “use” meaningless.
Additionally, Justice Thomas raised doubts about the practicality of using a sign
that by its necessity looks to the future in order to divine any perceived “benefit”;
Thomas’ view is that a return to the sign “use” would provide the court with more
practical guidance, thus returning the court to the court to “square one” as it were.
13.4 Conclusion
It is very likely that the courts will be called upon again to determine how the Fifth
Amendment will be interpreted. The Kelo decision shows, however, that there is a
growing public backlash to the endless evolution of a sign.
Judge Thomas’ position that “use” should be the proper sign followed by the
courts has been somewhat vindicated by the fact that the “benefit” expected by
the condemnation of the City of New London has never materialized because the
developer to whom the city had planned to transfer the land ran out of money and
has been unable to develop it as of this writing (Wikipedia 2009). His and the
dissent’s position is further strengthened by what happened in the years follow-
ing the decision in the Hawaii Housing Authority case. Because the Hawaiian
government’s scheme only transferred title from the land lessor to the lessee
(homeowners who already occupied existing homes on the subject property); as
soon as the former lessees acquired fee simple titles to their homes, those became
attractive to Japanese investors and speculators who paid outlandish prices for
those homes (largely located in the upscale Kahala and Hawaii Kai neighbor-
hoods), causing a ripple effect throughout the island. Home prices on Oahu, far
from falling as intended by the legislature, surged upward, and even more than
doubled within 6 years (Wikipedia 2009).
It is possible, that society will adopt the “earlier” approach of the “plain text” of
the Fifth Amendment, placing that interpretation of the sign “public use” back into
the mainstream where it will be re-inserted into the cycle of legal discourse. If so,
perhaps the cycle begins anew and repeats or perhaps new signifiers as yet unknown
will be utilized by future courts to formulate entirely new languages.
References
Bauman v. Ross, 167 U.S. 548, (1897) Id. at 550 Id. at 554.
Broekman, Jan. M. 2009. The Roberta Kevelson law and semiotics seminar Course Book,
Pennsylvania State University, Dickinson School of Law. (a) Introduction. (b) Peirce and Legal
Semiotics. (c) Postmodernists.
Constitution of the United States of America. Amendment 5.
Kelo v. City of New London, 545 U.S. 469. 2005 (Full Text: Cornell Law School Website).
Kevelson, Roberta. 1988. The law as a system of signs. New York: Plenum Press.
Peirce Charles Sanders. 2009. See. org/wiki/Charles_Peirce.Jun-11.
Thesaurus.com. 2009. “Use”. http://thesaurus.reference.com/browse/use. “Purpose”. http://
thesaurus.reference.com/browse/Purpose.
467 U.S. 229. 1984.
545 U.S. 469. 2005.
Wikipedia. 2009. “Hawaii Housing Authority v. Midkiff”. http://en.wikipedia.org/wiki/Hawaii_
Housing_Authority_v._Midkiff. Kelo v. City of New London. http://en.wikipedia.org/wiki/
Kelo_v._City_of_New_London
About the Authors
Broekman
Jan M. Broekman is a Distinguished Visiting Professor of Law at the Dickinson

School of Law, Penn State University. He teaches “Civil Law: From Roman Empire
to European Union” and directs “The Roberta Kevelson Seminar on Law and
Semiotics”. This Seminar is represented in two Special Issues of the International
Journal for the Semiotics of Law: “Lawyers Making Meaning.” (2009) and “Signs
of Law” (2010), edited with Professor William A. Pencak. Professor Broekman is a
Professor of Legal Philosophy and Theory and former Dean of the Law Faculty at
Katholieke Universiteit Leuven, Belgium. He has served on the faculty of the Free
University, Amsterdam, The Netherlands (1980–1995) as a Professor of Philosophy
of Medicine, and as a Visiting Professor of Law at the University of Illinois in
Champaign-Urbana. He is honorary professor at Universidad Nacional de Argentina,
Mar del Plata and Senator of the Accademia Internazionale Medicea, Firenze, Italy.
Professor Broekman has authored more than 25 books and 300 articles in scientific
journals. He is a participant in the electronic education activities of the New York
Multimedia Institute for Interactive Learning in the US and abroad. His latest works
include: “A Philosophy of European Union Law” (1999); “Recht uit Woorden”
(2004); “The Virtual in E-Education” (2004); with M. H. Foox, “Binding Words,
Unfolding Selves” (2008) and edited recently, with Anne Wagner, “Prospects of
Legal Semiotics” (2010). Broekman studied law and social sciences at the
Rijksuniversiteit Leiden (Netherlands) and philosophy at the Georg-August
Universität Göttingen, Germany, where he obtained his Ph.D.
Butler
William E. Butler, formerly of University College London, is the preeminent

authority on the law of Russia and other former Soviet republics and the author,
co-author, editor, or translator of more than 120 books on Soviet, Russian,
Ukrainian and other Commonwealth of Independent States legal systems. He also
J. Broekman and F.J. Mootz III (eds.), The Semiotics of Law in Legal Education, 249
DOI 10.1007/978-94-007-1341-3, © Springer Science+Business Media B.V. 2011
250 About the Authors
edits the journal Russian Law, published by the Russian Academy of Legal
Sciences; the East European and Russian Yearbook of International and
Comparative Law, published by The Vinogradoff Institute; and is on the editorial
board of a number of other journals. The former Chair of Comparative Law at the
University of London, Professor Butler is the founder and director of The
Vinogradoff Institute, which operates as a unit of Penn State Law. Under Professor
Butler’s direction, the Institute coordinates research and teaching activities related
to Russian and CIS legal systems.
The recipient of numerous honors for his service to Russian and international
law, Professor Butler is an Academician of the National Academy of Sciences of
Ukraine and the Russian Academy of Natural Sciences and is serving his third term
as a member of the Russian International Court of Commercial Arbitration. He
recently was appointed to the Panel of Distinguished Neutrals as an arbitrator of the
International Institute for Conflict Prevention and Resolution. He teaches Russian
Law; Foreign Investment in Russia and the Commonwealth of Independent States;
Law of Treaties, Law of the Sea; History of International Law; and Comparative
Approaches to International Law.
Cyran
Edward J. Cyran is a 2011 graduate of the Pennsylvania State University Dickinson

School of Law where he has served as the Managing Editor of the Penn State Law
Review. Along with fellow author, Paul Van Fleet, he will compete with Penn State’s
American Association of Justice Trial Team at the AAJ’s annual competition in March
2011, whilst recognizing that a well-intentioned “story of the trial” can not only be a
work of art, but also give credence to the adversarial system of justice.
Ellsworth
Jeffrey A. Ellsworth, JD, LLM, Esq., is a licensed attorney in the State of New York
and is employed as an Assistant Public Defender for St. Lawrence County. He focuses
mainly in family law, with a modicum of criminal practice. After receiving his
Bachelor of Arts from the University of Rochester, majoring in History and Religion
with a minor in Philosophy, Ellsworth attended the Dickinson School of Law of the
Pennsylvania State University (including the Law and Semiotics Seminar) earning his
Juris Doctor. Most recently, Ellsworth completed a Master of Laws with Merit at
University College London specializing in Jurisprudence and Legal Theory.
Garrett
Meghann L. Garrett, Esq., is a graduate of Penn State Dickinson School of Law

where she received a JD in 2009. She is currently a practicing attorney at Stone,
About the Authors 251
Duncan & Associates, P.C. in Dillsburg, Pennsylvania. At her firm, she handles
intellectual property matters, including copyright and trademark registration and
infringement actions. She also focuses on small businesses and non-profit busi-
nesses, assisting in start-up, contract, employment, and other business or intellec-
tual property matters that arise.
Harvill
Nathan S. Harvill, Class of 2009, received his J.D. from Penn State University,
Dickinson School of Law, lives in Tulsa, Oklahoma, where he works for the City of
Tulsa Human Rights Department as a Program Resource Analyst conducting policy
research and opinion on a variety of Human Rights Issues affecting the city. His
primary focus is on grant funding programs provided to the City by the Department
of Housing and Urban Development, Community Development Division. Sorting
through regulations requires a heightened sensitivity to the semiotics of law, not
only for analysis but also for communication of policy to the public, particularly
those who reside in lower and moderate income-areas.
Karnezos
Elizabeth Karnezos, Esq., is a 2010 graduate of The Pennsylvania State University

Dickinson School of Law. She holds, apart from her J.D., a M.Ed. in Higher
Education from the University of Virginia, and currently serves as a judicial law
clerk to the Honorable Judge M.L. Ebert in the Court of Common Pleas of
Cumberland County, Pennsylvania.
Mootz
Francis J. Mootz III is Associate Dean for Academic Affairs and Faculty
Development, and is the William S. Boyd Professor of Law at the University of
Nevada, Las Vegas. During his twenty-one years as a law professor he has written
in traditional doctrinal areas such as insurance, contract and sales law, and he also
has undertaken an ambitious agenda of interdisciplinary scholarship exploring
relationships between law and contemporary European philosophy. His jurispru-
dential interests center on the philosophy of hermeneutics and rhetoric. Recent
books include: “Gadamer and Ricoeur: Critical Horizons in Contemporary
Hermeneutics” (Continuum 2010) (Ed. with George Taylor), “Law, Hermeneutics
and Rhetoric” (Ashgate 2010), “On Philosophy in American Law” (Cambridge
University Press 2009) (Ed.), “Nietzsche and Law” (Ashgate Press 2008) (Ed.
with Peter Goodrich), “Gadamer and Law” (Ashgate Press 2007) (Ed.), and
“Rhetorical Knowledge in Legal Practice and Critical Legal Theory” (University of
Alabama Press 2006). He is a member of the Advisory Board of the interdisciplinary
252 About the Authors
journal, Law, Culture and the Humanities, and delivers papers around the world
on topics in legal theory.
Pencak
William A. Pencak is Professor of History and of Jewish Studies at Penn State

University. He received his Ph.D. degree from Columbia University, New York, in
1978. As historian he became famous for his research and extensive publications in
the field of early Unites States history. He edited the journal Pennsylvania History
and a series of volumes on that topic, wrote books on history and semiotics, the
Icelandic sagas, the films of Derek Jarman, and the history of early American Jews
to 1815. His book Jews and Gentiles in Early America (University of Michigan
Press, 2005) was the runner-up for the National Book Award in American Jewish
History 2005. He wrote extensively on semiotics and served as President of the
Semiotic Society of America in 2000–2001. Among many others, his contributions
on history and semiotics are widely read, as well as his History, Signing in (1993)
and The Wit and Wisdom of Roberta Kevelson (2001).
Van Fleet
Paul Van Fleet is a 2011 graduate of the Penn State-Dickinson School of Law.
During his time as a law student, he served as an Articles Editor of the Penn State
Law Review and as a member of the American Association for Justice Trial Team
with his colleague and fellow author Edward J. Cyran. He received the CALI award
for highest marks in the Spring 2010 session of the Law and Semiotics Seminar.
Wirth
Michelle L. Wirth, Esq., earned an M.P.M. from the Carnegie Mellon University
Heinz College of Public Policy and in 2009 a J.D. from The Penn State Dickinson
School of Law. Her interest in the use of legal tools peaked by competing in the
Willem C. Vis International Commercial Arbitration moot. She resides in Pittsburgh,
Pennsylvania.

The Semiotics of Law in Legal Education PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Semiotics of Law in Legal Education PDF

Uploaded by

Copyright:

Available Formats

The Semiotics of Law in Legal Education

Jan M. Broekman • Francis J. Mootz III

The Semiotics of Law

ISBN 978-94-007-1340-6 e-ISBN 978-94-007-1341-3

© Springer Science+Business Media B.V. 2011

Cover design: eStudio Calamar S.L.

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

The Kevelson Round Tables

As she was obtaining her Ph.D. in Semiotics in 1978—an interdisciplinary program

Professor Jan M. Broekman reinstituted a second series of Round Tables in Carlisle,

research on the significance of the architecture and layout of courthouses; Denis

The Roberta Kevelson Seminar At Penn State Law

It is thus important that those didactic provisions excel in various confronta-

Part I Philosophical Dimensions

1 “Die Sache”: The Foundationless Ground of Legal Meaning.............. 5

Part II History, Law and Semiotics

4 History and Semiotics: Preliminary Thoughts...................................... 77

Part III Semiotics and the Legal System

7 Common Law Lawyers Should Mind Their Trial

Part IV Gender and Family

9 Semiotics of Parenthood in Legal Perspective:

Part V Economy, Business

11 Trademarks: A Social Perspective.......................................................... 205

About the Authors............................................................................................ 249

J.M. Broekman ()

grounding and foundational understanding, as Mootz first explains in this chapter.

How human faces function semiotically in wider legal contexts is explained in

“propositions are true when they correspond to reality”. Tarski’s “Convention T”

Francis J. Mootz III

It is a familiar theme of contemporary legal education that lawyers must interpret

F.J. Mootz III (*)

Balkin’s suggestion that semiotic analysis occurs at a greater abstraction than

by uncovering in greater detail the means by which substantive legal argumentation

1.1 A Brief History of Die Sache

1.2 Gadamer’s Use of Die Sache

This idea of a “communion,” generally characterized by Gadamer as a fusion of

Nicholas Davey provides a helpful explanation of Gadamer’s notion that die

The significance of this clarification is profound: we owe responsibility to die

Having explicated the complex dimensions of Sachen in Gadamer’s philosophy,

Drawing from Davey’s nuanced and persuasive clarification, we find that

1.3 Die Sache and Legal Semiotics

If this were exclusively a philosophical paper, I would now deepen my discussion of

1.3.1 Between Positivism and Natural Law

Legal practice purports to be aligned with an objectively ascertainable entity: “The

of legal Sachen through dialogue. The implausibility of this metaphysical subversion

1.3.2 The Rule of Law as Practice, Not Ideology

1.3.3 The Implications for Legal Education

J.M. Broekman (*)

2.1.1 Faces in Legal Semiotics

2.1.2 Legal Meaning, Legal Training

consequently about being a lawman as privileged signifier. That growth is an essential

In addition he observed that

Paul thus understands the quality of legal argumentation as a property acquired

reference do they initiate? Meaning making seems a form of self-realization in

2.2 Faces and Law

2.2.1 Written and Oral Law

and reports language on perception:

Indeed, essential for a human face is that it lights up in contexts of communication

2.2.3 Faces Among Faces

2.3.1 Verständigung vs. Communication

That sentence challenges us to think faces beyond a self—in other words: to

2.3.2 Faces as a Learning Aid

Part II History, Law and Semiotics

1.1 A Brief History of Die Sache

1.2 Gadamer’s Use of Die Sache

1.3 Die Sache and Legal Semiotics

1.3.1 Between Positivism and Natural Law

1.3.2 The Rule of Law as Practice, Not Ideology

1.3.3 The Implications for Legal Education

2.1.1 Faces in Legal Semiotics

2.1.2 Legal Meaning, Legal Training

2.2 Faces and Law

2.2.1 Written and Oral Law

2.2.3 Faces Among Faces

2.3.1 Verständigung vs. Communication

2.3.2 Faces as a Learning Aid

2.4.2 The Body as Artifice

2.5.4.1 Semiotics of Medical Techniques

2.6 A World as Thirdness

2.6.3 Bodies, Body Parts in Semiotics

2.6.3.1 The Barcelona Case

2.6.4 Interaction vs. Interactivity: Three Arguments

2.7 Faces Face to Face

2.7.2 Law in Our Age of Semiotics

3.2 The Basic Semiotics: Triadic Relationships

3.2.1 Peirce’s Triadic Relationship

3.2.2 Lacan and the Phenotext/Genotext Relationship

3.3 Tarski’s Convention-T and Legal Discourse

3.3.1 Tarski and Convention-T

3.3.2 Convention-T and Legal Discourse

3.4 Peircean Truth-Correspondence Theory: An Invitation

3.4.1 The Role of Firstness in Semiotic Analysis

independently consistent, as the whole is continually being reimagined in light of

3.4.2 Peirce’s Firstness in Truth-Correspondence

3.4.3 Peirce’s Truth-Correspondence and Legal Discourse

3.5 Conclusion: The Effects of Legal Discourse Upon

5.1 The Pennsylvania Blackstone

5.2 The Carlisle Printer and Publisher

5.3 Blackstone and Reed

6.2 New Law for a Republic

6.3 Tucker’s Law Course