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Jurisprudence and Communication: Secular and Religious

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Abstract

In considering Van Schooten’s study of the Eric O. case (s.1), I ask whether the different approaches taken by the two different “legal institutions”—the prosecuting authorities on the one hand, the courts on the other—are reflective of different images of warfare (a semantic difference) or of the different images each group holds of its own role (a pragmatic difference). If we consider these two “legal institutions” as distinct semiotic groups (s.2), is there an inevitable “communication deficit” (Van Schooten) between them (and the public) and how does this relate to the Hartian account of such a “crisis in communication” (s.3)? I agree with Van Schooten about the role of underlying images in the construction of legal sense, and relate this to the issue of intuitional judgment, both in and outside the law (s.4). I then turn to comparable issues which arise in my other research area, Jewish law, which reflects quite different ideological premises (s.5), reviewing the original (biblical) conception of the (intuitive) role and functions of judges (s.5A), decision-making, justification and consequentialist ethics in postbiblical Jewish law (s.5B), and the conclusions drawn, not least for the pragmatics of communication, in a recent research study on the wife’s rights in divorce. Paradoxically, I argue (s.5C), that the system rests at base on trust rather than objective truth. But trust, too, is a form of meaning, and susceptible to semiotic analysis. I suggest, in conclusion (s.6), that this is an issue which should be treated more seriously in the theory of secular law and legal communication.

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Notes

  1. For further details, see http://www.legaltheory.demon.co.uk/books_vanSchooten.html, including a downloadable summary chapter, to which primary reference is made in this article.

  2. Van Schooten [45: 45]. See also the summary at p. 120–21 and s.9.7.4 in general. For my own account of semiotic groups, see [24: 6].

  3. Van Schooten [45: 122]: “The general rule ‘Thou shalt not kill’ (Article 307 Penal Code) has been turned into a rule with a complete different perspective: ‘Killing in ‘war’ situations is not necessarily murder’ (Article 151 ROE).”

  4. Van Schooten [45: 50]: “Within semiotic groups, internal codes and distinctions will generate a legal meaning distinct from other groups. The group’s own codes, distinctions, meanings, and internal framework determine the image and the visualization of the rule’s action idea, or even emerge as an imaginary reality without any legal rule.”

  5. I have argued that narrative typifications of action are always accompanied by tacit social evaluations, often expressed at an affective level [22: 152, 265, 364]. Compare also the “mood congruity effect” discussed by psychologists in relation to memory [22: 365, 368].

  6. Van Schooten [45: 122]: “The degree of autonomy of interpreting groups correlates with the ‘resistance’ they offer against different (dissenting) interpretations of other groups and their power to impose their own interpretation on other groups. In this case, the Courts imposed their dissenting opinion on what rule was applicable on that of the Public Prosecution Service.”

  7. In England, the Crown Prosecution Service has a duty to consider also not only the weight of evidence, and thus the prospects of success of a prosecution, but also the “public interest” in proceeding with it. Van Schooten tells me that there is a comparable duty in the Netherlands. However, it does not appear to be reflected in her analysis.

  8. See [20: 33–36, 112–129] for examples of the narrativisation of pragmatics in the context of criminal trials; see also [24: 12, 24–26].

  9. Hart [16], ch.VII, esp. at 126–127]. See also Jackson [23: 189–190].

  10. On his use of ordinary language philosophy, see Jackson [19: 148–155, 23: 67–71]; on the influence of Wittgenstein’s account of rule following, see [23: 237–238].

  11. General rules have a “core of certainty and a penumbra of doubt”: Hart [16: 123]. See further Jackson [19: 157–160, 23: 184–188].

  12. Marmor [41: 133–134], based on Hart [16: 126]: “familiar [instances], constantly recurring in similar contexts, where there is general agreement in judgments as to the applicability of the classifying terms”. In such cases, Hart observes, “the general terms seem to need no interpretation and… the recognition of instances seems unproblematic or ‘automatic’.” See further Jackson [23: 186, 187–188 n. 44].

  13. See Jackson [19: 149–152, 23: 189–190], on Hart’s earlier essay [15].

  14. Combining his claims that (1) the “secondary” rules of the system function to provide a “conclusive affirmative indication” of the existence of a legal rule [16: 94]; and that (2) general expressions have a “central core of undisputed meaning” (cf. n. 11, supra). This came to be known, in the light of Dworkin’s critique, as the “demonstrability thesis”. Hart later made concessions here, accepting in part Dworkin’s view of the role of “legal principles” in the legal system. See further Jackson [23: 205–209].

  15. Hart [16: 126–27]; see further Jackson [23: 188–189].

  16. Hart [16: 124] discussed in Jackson [19: 161–162]. Cf. MacCormick [39: 125]: “For all rules (except very badly drafted ones) there are some clear cases, and for some there are many clear cases. If that were not so, the possibility of any legal system existing anywhere as any sort of guidance of anyone’s conduct for any purpose would be nil.”

  17. Bernstein [5], Vol. 1, chs. 5–7, esp. p. 108–09, 127–137]; see Jackson [22: 93–94, 20: 97–101].

  18. In “elaborated code”, the people with whom we are communicating are not expected to share our cultural, contextual assumptions; any such assumptions therefore need to be spelled out. Indeed, in the legal context, the audience may be assumed to be a potentially hostile, with an interest in subverting authorial intent.

  19. Grice [14: 41–58] proposes four maxims expected in (cooperative) conversation:

      quality: speaker tells the truth or provable by adequate evidence

      quantity: speaker is as informative as required

      relation: response is relevant to topic of discussion

      manner: speaker’s avoids ambiguity or obscurity, is direct and straightforward

    See also Jackson [22: 70–73].

  20. See Jackson [21: 584–591].

  21. Cf. Fuller’s “inner morality of law”, discussed in Jackson [23: ch. 8].

  22. See n. 14, supra.

  23. For comparison with the “noyau sémique” of structural semantics, see Jackson [19: 43–46, 156, 330 n. 17].

  24. For comparison with the narrative construction of meaning, see Jackson [23: 187–188, n. 44], but the debt here is probably more to Wittgenstein: see n. 10, supra.

  25. Hart [16: 95, and more generally at 91–99], contrasting “primitive communities” which have only “primary rules of obligation”.

  26. Stressed by Jackson [23: 233–236]. This is not to say that Hart rejected the value of social scientific approaches to the law. Like other positivists (especially Kelsen), however, he saw such investigations as separate, and as not contributing to the conceptual analysis of law. Similarly, though a legal system might choose to incorporate elements of morality (within its system of deontic logic), there was no conceptual connection between law and morality.

  27. See further Jackson [23: 192–193].

  28. Cf. Marmor [41: 137] on Hart.

  29. Cf. MacCormick [38: 208].

  30. See further Jackson [22: ch. 6].

  31. See further Jackson [30], commenting on an earlier (and different) draft of “Universals and Particulars”, which now appears in MacCormick [40: ch. 5]. For MacCormick’s approach to intuition in that final version, see [40: 22, 84–86, 256].

  32. Greenberg [13: 7] advocated a synchronic approach to the texts of biblical law, applying thereto the approach of the (modern) “legal commentator”, citing the jurist J.C. Miles in [9: vol. I, p. 99]. On the approach of the late Raymond Westbrook, see Jackson [29: 10–16].

  33. “Semantically” here referring to the particular semantic approach of modern statutory interpretation, presupposing a conception of “literal meaning” which both “covers” all cases within the “literal” meaning of its expressions, and is comprehensive, so that factors not thus “covered” are excluded. See Jackson [26].

  34. See further Jackson [25: 27–28, 171–173, 206–207].

  35. For Bernstein, see nn. 17–18, above. See further Jackson [22: 93–95]; Douglas [10: 173–180].

  36. See [25: 82–87, 29: §1.4.2 et pass].

  37. E.g. the case of the daughters of Zelophehad in Numbers 27: 1–11, dealing with the unacceptable consequences of application of the normal rule of succession to an atypical family.

  38. Jackson [29: 412–418]. Perhaps the most famous is that of Deuteronomy 16:18, where the judges are commanded to pursue a “righteous judgment” (tsedek tsedek tirdof). On Deut. 16 and the (different) use of written law in Deut. 17, see Jackson [27: 37–38].

  39. 2 Chronicles 17:9. On these and related sources, see further Jackson [25: 116–119].

  40. See Lamm and Kirschenbaum [35], invoking the approach to legal interpretation of Ronald Dworkin.

  41. On the “Mishpat Ivri” movement (though using positivist models other than that of Hart), see Jackson [32: §2.1].

  42. Here, a theological issue of trust in God also arises: do the religious judges really trust God with judging their own performance? In the context of the divorce problem discussed in the next section, should they make a sincere attempt to help the woman (within the boundaries of Jewish law), or should they “play safe” (cf. defensive medicine) just because others take a different view? Do they assume that God also adjudicates on a “play safe” basis? Some influential rabbinic voices have been raised recently against the predominant “play safe” attitude, arguing that the judges have a responsibility to risk their own eternal souls in pursuit of justice. See further Jackson [32: §3.5].

  43. Perhaps better (and polysemically) the “direction”.

  44. I have sought to distinguish two different models (“monistic” and “dualistic”) of the nature of human agency in Jewish law, conceived as a divine legal system: see Jackson [28: 31–32, 31]. According to the monistic model, human activity within Jewish law is regarded as an integral part of a single system of divine justice, reflecting the claim of Deuteronomy 1: 17 that (all) justice belongs to God (ki hamishpat lelokim hu); according to the “dualistic” model, the human element is conceived as a separate system from the direct operation of divine justice, operating under delegated authority from God in a semi-autonomous manner, and sharing significant elements in common with secular models of human justice.

  45. A model which combines elements of the Roman responsa prudentium with the modern French use of doctrine.

  46. Hart [16: 94]. Interestingly, Silberg [44: 51] claims that Jewish law, being a system of religious law, “does not define norms for deciding the law, but norms of behaviour”—thus apparently reducing Jewish law (in Hartian terms) to a system of primary rules only. He also denies (at 57) that there is any recognised competence to effect change in Jewish law.

  47. And thus away from a monistic and towards a dualistic model (n.44, supra).

  48. See Ben-Menahem [4] and, more broadly, [3: 434–435], concluding that “we are justified in doubting the sufficiency of the modern, Western concept of law for the purposes of describing the halakhah”.

  49. Ancselovits [2]. This intuition, however, is encoded in a form of restricted code for a specialist group (like much of the Talmud). And this presupposes a particular theological position on the status of the interpreters (itself susceptible to semiotic analysis), which I would argue is based on trust rather than truth.

  50. See Elon [11: 89–90 n. 52]. In Jackson [33], I associate this with a “procedural” approach to truth.

  51. See http://manchesterjewishstudies.squarespace.com/agunah-research-unit/ and linked pages, for the project and its published outputs.

  52. Though it could, of course, have generated an alternative descriptive account of the problem, including the resistances to its solution. Indeed, some of the literary characteristics of the halakhic tradition clearly reflect, at the “surface level”, narrative stereotypes of both human behaviour in the context of marital and sexual relations, and of attitudes of halakhic authorities to change. For example, Shoshana Knol, in her ARU doctoral thesis now published as a book [34], explored the use in modern rabbinical courts of narrative imagery taken from earlier halakhic sources, such as “he disgusts me”, the fear that “she has cast her eye on another”, and the maxim “better a bad marriage than none”. Moreover, the desire of halakhic authorities not to assume sole responsibility for controversial decisions is typically expressed in terms of a talmudic (Sanhedrin 7b) metaphor: “so that only a ‘chip of the beam’ should reach me”. But this is only the tip of the iceberg of a potential semiotic analysis.

  53. Or, in our context, that the children of a woman’s second union, when the first was dissolved on the basis of a double doubt, are illegitimate.

  54. Schwarzschild [43]. See further Jackson [33: s.2].

  55. Peace (Zechariah 8: 16), righteousness (Malachi 2: 6ff.), grace (Genesis 24:27, 49), justice (Zecheriah 7: 9), and even salvation (Psalms 25: 4ff.).

  56. Mishnah Avot 1:18, “The world rests on three things—truth, justice, and peace”.

  57. Schwarzschild [43], Buber [7: 7–12]. On Buber’s non-referential conception of truth, and its relation to the I-Thou relationship, see Levinas [37: 141–144]. The attribute of emunah is frequently attributed to God in Jewish liturgy. In context, it clearly refers to human perception of God’s trustworthiness, rather than to human adherence to any abstract truth-claim. Does this sell out any “hard” conception of truth? In the theological context, the believer may very reasonably say: “My belief that X is true is based on my faith in the truthfulness/trustworthiness of my source of information (God), which is far more reliable than any attempt I might make at independent confirmation”.

  58. Cf. Landowski [36: 203], distinguishing croire in relation to ce que dit and celui qui dit.

  59. See, e.g., Jackson [22: 408] on the relationship between speech style and perceived trustworthiness; [22: 412–423] on the construction of the trustworthiness of expert witnesses in court.

  60. Landowski [36: 215–217] on (conventional) stereotypes of sincerity: the code of the vraisemblable of particular social groups.

  61. See n. 8, above.

  62. Non-orthodox movements within Judaism—notably, American “Conservative” (elsewhere termed “Masorti”), Reform and Liberal—have adopted their own solutions, based on different views of the normativity of halakhah.

  63. Blanché’s version: see further Jackson [19: 86–99, esp. at 90].

  64. Orthodox Rabbis are universally trained in advanced rabbinical academies (yeshivot) concentrating on halakhah; they receive a formal certificate of competence (semikhah) and will not normally be appointed congregational rabbis without it.

  65. See Landowski [36: 212–213] on confiance, défiance and méfiance, noting that there is a social presumption in favour of confiance between those with an ongoing interpersonal relationship: the very regularity of communication may also serve to promote its efficacity [36: 216].

  66. But not the same “semiotic group”, in terms of their respective knowledge of the sources, and sometimes religious attitudes (even within Orthodoxy).

  67. Though one member of the team has semikhah.

  68. Though one member of the team came from Israel.

  69. Though a shortened version of the Final Report is being published in Hebrew.

  70. Here, our “associations” become relevant. In 2006 a rabbinical conference convened by Sephardi Chief Rabbi Amar in Israel was cancelled at the last moment, apparently because of a suspicion that it might appear a response to activist feminist pressure.

  71. In short, a case of hutzpah—untranslatable, something like “cheek” (almost insolence), presuming to act above one’s station.

  72. Conventionally in the form of letters, often published in the book concerned (here, our Hebrew version), termed hasqamot (partly comparable to the Catholic nihil obstat, albeit resting only on personal, not institutional, authority).

  73. Termed the gedolei hador (“the great ones of the generation”), so recognised primarily for their personal learning, rather than by virtue of holding any institutional office.

  74. It is well-established in Jewish law that arrangements which would be prohibited in advance may in some circumstances be tolerated expostfacto (bediavad).

  75. See above, at nn. 8, 61, and Jackson [24: 25] on Witteveen’s “symbolic dimension” of legislation.

  76. Extending even, in a semiotics of revelation, to the divine sender. See Jackson [32].

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Jackson, B.S. Jurisprudence and Communication: Secular and Religious. Int J Semiot Law 27, 463–484 (2014). https://doi.org/10.1007/s11196-013-9348-3

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