Understanding, Identifying, and Correcting a Semiotic Imbalance Edward J. Cyran

 A comparative lawyer’s response: “...if [I] were innocent, [I] would prefer to be tried by a Civil Law court, but if [I] were guilty, [I] would prefer to be tried by a Common Law court.” - A Civil Law Tradition, Merryman and Perez-Perdomo (2007).

 What is it?  How is artificial discourse different than natural discourse?  Decision-making process in communication (authority vs. all people)  The character of a sign’s meaning (serving a goal of the discourse vs. pure development)

 An institution achieves its goals by employing functionaries to define meaning.  Institution = Government  Goals = Justice, control, division of resources, etc.  Functionaries = Authorities = Master Signifiers  Examples  Legislators  Judges (Appellate and Trial)  Juries

 Only those who communicate with the functionaries can influence the meaning of signs in discourse.  Examples  Lobbyists  Lawyers  You

 Whenever communication is limited and the bounds of discussion narrowed, the semiotics of a process changes because potential meanings of signs are restrained.  Common Law  Stare Decisis – A Sea of Precedent  Constitutions  Legislative History  Public Policy

 Civil Law  The Core Precept of Civil Law  Interpret the code with clarity, coherence, and consistency to uphold the law.  [Past rationales personally used by a judge  Truncated decisions of the ECJ or any superior court (only because judge seeks to avoid reversal)]  The Civil lawyer is not permitted to brief the judge on the above two aspects of legal discourse.

 Do not consider precedent  Not educated on precedent  Only authority is in the application of the facts of the case to the law

 Elementary structures of signification exist in the deep structure of all discourses  Legal discourse does not have a deep structure, i.e. a genotext  Nonetheless, juries are still influenced by Greimassian narratives. So, is such a structure of signification existing in the phenotext of legal discourse?

 Greimas identified the deep structure as being thematic, with the process of meaning occurring in the narrative form  Greimas believed that we begin each thought with a “goal” (the goal doesn’t have to be discernible at first)  Each goal involves a sign or semiotic object as its “subject”  The subject then proceeds through a narrative with actors influencing it  The narrative completes with a reflection upon the experience

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) -- Bernard Jackson, An Outline of Greimassian Semiotics

 Fact-finders, whether juries or judges, process the factual story presented by the lawyer as a narrative  They also process the factual story presented by opposing counsel as a narrative  Subject = Fictional character of the Defendant or Plaintiff/Victim  Goal(s) = Fictional goal(s) that are expressed or implied by the storyteller; goal(s) that the fact- finder independently conceives

 Performance of Goals = What happens to the subject during the narrative  Recognition/Reflection upon Performance = Takes place in jurors’ minds after hearing the story

 With respect to the “Story in the Trial,” no semiotic differences exist between Common Law and Civil Law  Jury listens to the story like the Civil Law Judge does, and then applies the facts to the law

 In Civil Law countries, lawyers cannot ask the witness questions, whether by direct or cross examination  This difference in procedure severely limits, if not eliminates, the second narrative – “The Story of the Trial”

 “Counsel, are you prepared to open?”  “Yes, Your Honor.” ... and it starts  Welcome to “The Commonwealth v. Van Fleet”  On the charge of Impersonating a Police Officer  Starring Plaintiff’s Counsel and Defendant’s Counsel  Watch closely as they:  Compete with each other  Try to persuade you by their words and actions  Minimize each other’s arguments and tell you what “impersonating a police officer” really means in this case

 Also watch closely as they:  Object to each other  Argue with the judge  Guide the witness through his or her testimony on direct examination  Cross-examine the witness in a way that makes you feel like the attorney is the one telling the story  Don’t miss the Final Act!

 What does this narrative do??  It manipulates meaning  No longer do you, the fact-finder, consider only the story in the trial, you consider the story of the trial  And not only that, but you consider all of the stories of the trial; including the one starring you, the jury

 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 damages 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

 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 individual or a group of individuals  But, why care?  The ultimate goal of both the Common Law and Civil Law is certainty  Inaccurate application of the law to facts means that the law is not certain—and if it is uncertain, law is a meaningless endeavor!

 Two levels of understanding this phrase:  Within the legal tradition  The effect on the development of meaning (obfuscation of meaning)  Between the legal traditions  Civil Law avoids the situation, while Common Law has it

 More scholarship is needed  Where else do such manipulations of meaning occur?  If a Common lawyer mindful of semiotics was to try to avoid obfuscating meaning, what would he do?  Anything different?  Would clients hire that lawyer??

“...if [I] were innocent, [I] would prefer to be tried by a Civil Law court, but if [I] were guilty, [I] would prefer to be tried by a Common Law court.” - A Civil Law Tradition, Merryman and Perez-Perdomo (2007).