Semiotic Aspects of the Transformation of Legal Systems

Jeana Sharankova

University of Sofia

In its attempts to account for new realia today, European legal theory inevitably confronts paradoxes and even aporiae insofar as it is founded upon the traditional conceptual structures of the post-medieval era and modernism. It can choose either of two directions, viz., to create fresh global structures similar to the general will, normative causality or the principles of law, or to limit itself to partial explanations, using the achievements of new realia themselves. If the latter, the choice can also be more or less an ambitious one: either to proceed from the development of law, or to avail itself of what has already been achieved by humanitarian thought. The first way is more difficult, containing the risk of a return back to ontologizing which since Nietzsche is viewed negatively. The second one is more modest but at the same time is more proof against error. At least because it contains the verifications already established by present day humanitarianism. In that case, there are three possible risks, viz., a) to outgrow implicit philosophizing on law which leads to practical application directly and to enter the realms of detached speculation; b) to fail in avoiding eclecticism; and c) to show one-sidedness as an explanatory theory. I personally do not consider the last-mentioned a demerit: methodologically, it makes for consistency in theorization and in terms of compatibility it fits the legal phenomena into the general social context of interaction.

Thus, my choice is in favour of the second indicated possibility and it stems from the current linguistic turn in humanitarian studies and from the new cognitive state of affairs of semioticization of social phenomena. I see support for this choice both in what I regard as fundamental characteristic features of law, e.g. in the creation of the legal semantics of the Roman lawyers or in H. L. A. Hart"s insightful observation that the normative system gives rise to normative statements in the same way as does the system of natural language, and in the new challenges before legal theory especially in Europe: pluralism of cultures, of ways of dispensing justice, of phenomena which on the one hand claim links to law and on the other, seek to attain a certain degree of correlation and commensurateness between them and between the semantic load of each.

This paper attempts to find a semiotic explication of the transformation of legal systems. In law, transformation, viewed as semiosis, can be traced in synchronic as well as in diachronic terms. A prerequisite for this is the preliminary explication of the semiosis of legal reasoning (as practical thinking within law and in terms of a legal system) and the semantic consequences of its operation. This means that the transformation of legal systems is regarded as a special case in a wider context of transformations in law generally.

This is illustrated by four patterns of transformation in law:

On one hand diachronically:

  • the first pattern is the operation of Lex commisoria according to the interpretation made by the pandectists of Roman law wherefrom we draw conclusions about the development of law in past ages: Law can be individualized as a particular kind of reality through its semantics. But the legal significance of a given circumstance consists in the legal regime under which it is subsumed. Therefore it requires an operation of a transformation which is similar to contemporary categorical reference. The described operation of Lex commisoria is given as an example for the creation of a legal dogmatic model through transformation.

  • the second pattern is about the role of discussion, and its rules and procedures for transfer of legal significations, including the birth of new concepts, so that through re-signifying as a kind of transformation legal knowledge increases.

On the other hand this is illustrated synchronically:

  • thus the third pattern regards the prescribed norm as an invariable unit in the diverse structuring and transformation of reality. The formal correlation between legal norm and factual circumstances stipulated in its hypothesis is a structure of a transformation: it puts into operation the action of law.

  • the fourth pattern is about the interaction and semantic interpenetration of different legal systems which seem self- referential and closed and the consequences of that interaction which sometimes strongly reduce the transformation itself.

I suggest what follows to the readership as an initial theoretical position for further discussion on the transformation of legal systems. I also think that semiotic analyses of the interdependence among legal discourses today contribute to the rethinking of the traditional legal theory.


Page - 1     Page + 1

AS/SA Nº 6/7, Article 7 : Page 1 / 11

© 1999, AS/SA

E-mail to the editors
Pour écrire à la rédaction