LAW AND THE CONFLICT OF IDEOLOGIES: NINTH ROUND TABLE ON LAW AND SEMIOTICS, edited by Roberta Kevelson. New York: Peter Lang, 1996. 250 pp. ISBN 0-8204-3092-7.
Reviewed by Howard Gillman, Department of Political Science, University
of Southern California.
As Roberta Kevelson explains in her editor’s introduction, the word "ideologies" in the title of this "polyphemous volume" refers to any "complex sign-system" involving "utopic possibilities" and "rejections of experiential life." The study of the conflict of ideologies should thus involve an examination of "opposition or tension within any particular institution, as WITHIN The Law, in any individual society or country -- national-state -- or BETWEEN legal systems of different societies, as between typical common law of Anglo-American societies and positive, civil law which predominates in most of western Europe" [2-3, 8]. However, very few of the contributions attempt to examine tensions among competing utopian possibilities within or between legal forms. Instead, we are offered a series of uneven essays on topics that range from Marx’s theory of exploitation to the "aesthetics" of early English legislation to John Patrick Diggins’ interpretation of American pragmatism. Readers interested in experiencing the advantages of "semiotic research in law" will likely be disappointed, although those who are interested in some innovative discussions of legal positivism or the history of English statutes will find something of value.
The sixteen essays that follow the introduction were first delivered at the Ninth Roundtable on Law and Semiotics, which is sponsored by Penn State’s Center for Semiotic Research in Law, Government and Economics (under the direction of the editor). The first sign (no pun intended) of trouble is when Kevelson indicates that she is unable to record the "cohesive forces that bind these pieces and parts into a unity," since the actual "binding force" holding this work together was "the living discussion which is crossreferential during the actual meetings." We will have to take Kevelson’s word for the Newtonian features of the meetings. The editor’s unwillingness to suggest what it is that makes this collection coherent is also reflected in her "custom to present papers of these volumes in alphabetical order" rather than organize them along thematic lines. She explains that "the ‘order’ I present here is nonlineal and non-hierarchical, in ‘proper’ semiotic fashion.... ‘The Reader’ is to select from the variety within the field that which is most ‘important,’ in Whitehead’s sense: that which can be further interpreted, further transformed, by whatever intellectual cuisine, into ideas in infinite presentation, REPRESENTATION" [5].
Readers will find a few things to chew on in the ensuing essays. Jean-Pierre Airut argues that Marx’s theory of exploitation rests implicitly on a natural-law conception of immutable property rights, in the sense that it is assumed that workers are exploited when they do not receive the full value of the product of their labor; he concludes from this that socialist regimes cannot prohibit individual enterprise without "denying the natural rights on which [socialism] founds its own critique of exploiting societies" [20]. In a provocative but short and underdeveloped essay Rachel Ariss looks at "the fetus as a Peircian sign" and "therefore as a method of exploring the transformation of particular, personal and female experiences of pregnancy into a public, voyeuristic experience of fetushood, and of the movement of the fetus from female inferiority to public space." She speculates that it is mostly "through image-producing technologies such as ultrasound and photography through a woman’s cervix that the fetus has gained an iconic status as an object separate from the pregnant woman" [25-26]. Obviously, though, the fetus had a similar (if not identical) iconic status before this technology, but we do not benefit from an exploration of how these developments have affected recent battles over abortion.
In one of the few essays that offer an analysis of case law, Denis J. Brion suggests (implausibly) that if American judges better understood American pragmatism they would not have decided that a social services agency is not liable for recklessly allowing a child to be injured by his father’s physical abuse and that prosecutors and investigators are immune from liability for the harm caused by the prosecution of false accusations of "Satanic" sexual abuse of children. Without making reference to any pragmatist legal theorists Brion pushes forward by resting his argument on the claim that "pragmatism, unlike foundationalism and nihilism, accepts, rather than seeks to deny, the human condition," and apparently he thinks that it is this insight that would clarify how the opposite result in these cases would have more effectively served the "Liberty Principle," which is characterized as the "core value" of the Constitution [42, 51]. One is left to wonder how the first Supreme Court justice to fall under the spell of pragmatism, Oliver Wendell Holmes, could have failed to use judicial power to protect poor Carrie Buck from the Commonwealth of Virginia’s efforts to sterilize her, or why a non-pragmatist such as Ronald Dworkin might believe (inaccurately, in my view) that pragmatism poses threats to the judicial protection of human dignity.
Some of these essays, such as H. Hamner Hill’s thoughtful and systematic discussion of the various camps within legal positivism, seem to have very little in common with a semiotic sensibility, and they are none the worse for the omission. Others attempt to push the boundaries of the approach, and the result are essays that strive to be as innovative and exciting as some of the critical legal studies work of the early 1980s but that, unfortunately, fall flat. For example, Robin Paul Malloy’s essay, entitled "Law, Economics and the Encounter with Strangers: Tentative, Contextual and Contingent Thought Patterns in a Discursive Community," represents an "experimental project" in which the author placed some scattered ideas and favorite quotes on index cards. During the conference the author shuffled and distributed these cards to those who were gathered around the table; the essay reproduces the cards in the order in which they were read at the conference. The goal was to see if "I could take my message and convey it in a coherent and meaningful manner while pursuing a nonlinear process of assembly" [153]. The first thought on the card that was read first? "A common ground, a shared meaning, is the artificial flower in the rose garden of 1,000 bushes." Other random thoughts: "At an abstract level all religion is meaningless"; "Rick: We'll always have Paris"; "The stranger in Law and Economics is ideologically positioned"; "The subject is the signifier of the signified"; "Umberto Eco ... Echo ... echo ... echo..."; "This is life at the fringe, the unreal" -- this goes on for ten pages. The author reports that, during the conference, "many participants played mental gymnastics during the process as they tried to construct the significance of meaning in the relationship between cards being read" [153], and this is not entirely different than the predicament that readers of this volume experience.
This is because the rest of the essays represent a very eclectic collection of topics and methodological approaches. Jose de Sousa e Brito, a judge at the Tribunal Constitucion in Lisbon, surrounds a very short discussion of how abortion has been addressed in the United States and Germany with some comments about the importance of "public reason." Vivian Grosswald Curran informs us (with reference to Virginia Woolf but no legal texts) that while "metaphor is a conduit for powerful illumination" it "cannot accomplish more than those properties to which it is inseparably bound, such as human understanding and imagination" [74]. Deon Erasmus suggests (in a remarkably short essay) that the South African Criminal Procedure Code (a "semiotic event") would benefit (i.e., would produce "signs of justice") if it was easier for defendants to understand [81]. Kevelson suggests that "the primary ideological conflict in modern American Law is the intertwining of Critic and Topic" [107]. Geoffrey D. Klinger reiterates (without the benefit of recent work by John Henry Schlegel) that legal realism developed as a Kuhnian conceptual revolution during a time of social crisis. Joel L. Levin searches for ways to hold corporate entities and groups (including religious and political movements) accountable for their wrongdoing. Desmond Manderson (in what is perhaps the best essay in the collection) provides an interesting overview of 300 years of English statutes beginning with the Magna Carta and shows how "the idea of legal normativity,
with its implications as to the power and efficacy of legislation in moulding our lives and minds, was gradually gaining acceptance" [181]. Robert C.L. Moffat concludes that gender stereotypes are inaccurate and unfair, particularly when they portray women as victims (a position he associates with Catherine MacKinnon) or dismiss the concerns of heterosexual men. William Pencak traces the process by which the Penn-Mead trial in 1670 acquired "a symbolic, retrospective importance" as the role of juries was transformed by more modern conceptions of democratic politics [199]. Bruce L. Rockwood argues that efforts to reform welfare and the law of takings represent "a functional return to the era of people as property, slavery as permissible, and a crabbed and restricted notion" of how best to promote the general welfare of "We, the People" [227]. And W. T. Scott makes a case for how the "plain language approach" as well as the "use of algorithmic presentations" might contribute to law’s intelligibility.
It would be a strain to say that the best essays in this volume -- by Hill, Manderson, and Pencak -- adopt distinctively semiotic readings of their topics, although Manderson may come closest in his study of the developing aesthetics of early English legislation. This is unfortunate, because there is no question that there is much to be learned by viewing law as a complex sign-system, as we see in the more familiar work of John Brigham and Peter Goodrich. Despite the promise of the title of this volume, readers will have to wait before they find a collection that explores how legal language mediates or exacerbates tensions among competing world views or conceptions of social life.