Jeana Sharankova: "Semiotic Aspects of the Transformation of Legal Systems"

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Re-signifying is a measure (substantive measurement); re-signifying is also an expedient organization (formal measurement) of legal reasoning insofar as it interprets legal significance:

The phenomenological method is the method of legal reasoning __ it is effective so long as it re-signifies. Therefore, re-signifying is the frontier up to which legal reasoning understands law and its activity of transformation.

Re-signifying is a formula of a semantic sequence in the manifestation (dynamics) of the interpreting legal reasoning. The formula can serve as an expression of:

  • sequential structuring of possible variants of norming and regulating as a result of a transformation, insofar as it is interpreted; or of

  • a semantic sequence of different texts or other set of signs resulting from interpretation (which juxtaposes as similar, and establishes reference between, the significances achieved by it), to the extend that the intermediaries of making meaningful are controlled by institutionalized forms of communication; or of

  • a sequence of interpretations, claims and arguments in a hermeneutic situation; or of

  • understanding and decision-making sequence between rational legal reasoning and practical problems of law; or of

  • conceptual sequence between rationally and interpretatively incommensurate theories and other semantic sets; or of

  • sequence between the activity and the results of reasoning in law: "juridical (rationally constructive) _ legal (norming or practically decisive) _ theoretical (cognitive)"; and so on.

10. In order to clarify re-signifying as a semantic transformation I will use two phenomena important in law, namely the hermeneutic situation of the judge and the "thesis-antithesis" reasoning in legal discussions.

The hermeneutic situation is understood as an institutionalized situation of a dispute about semantic synarmonization between legal prescripts (legal rules) or between legal prescripts and legally qualifiable facts where legal understanding sets this dispute as a legal question*, directed towards its solution and its results, so long as they are justified, are objectivized as the Motifs of the judgment. This situation of jurisdiction and in general the situations of achieving mutual conformity, of substantiating the correlative function of harmonization, I define as synarmonization (from the Greek). The transformations in law have to be institutionalized so that legal reasoning can make them productive __ this is illustrated by the councilors (consilia legitima dantes) in the Middle Ages, during the process of codification in Europe, in the role of the European Court of Justice. Institutionalization is necessary both to the stability of the rules of the respective discourse within the framework of the legitimate order of law and to the semiosis of legal reasoning. I oppose the concept of semantic synarmonisation, reached in the specific for law situations of justice, to the political theories of power and powers, including the similar theories concerning the legislative power, where instead of legal we have a purely politological sylogism.

We see an essential difference between the reasoning of the judge and the others involved in processes of dispute and the reasoning of the legislator. However, from the position of a political theory the formal distinction between the interpreter-legislator and interpreter-judge does not play an essential role because the subject of such a theory is not interpretation but (political) power. In une théorie juridique de l'état such as is that of Michel Troper, a syllogism can be constructed in which the great premise is the author's conception of power which is given prominence, the little premise is his conception of the competencies and the conclusion about the essence of the interpretation cannot be other than subservient the premised theory of the state. According to him, interpretation is the result of the system of interrelations between the public authorities. As such, even if it is called a legal theory it is of necessity a political one. Ultimately, such a theory makes relative the normative nature of the Constitution, investigating the Constitution, too, within the context of the links between the theory of the state as a system of principles and rules, and the overall structure of the legal system. The syllogism in question only formally logically resembles the legal one whose aim it is to solve a legal case. A theory of practical legal reasoning which seeks to understand law and not power, even when it prescribes competencies, is bound to carry out a phenomenological reduction of interpretative activity as a social phenomenon and to focus upon its essential features. Only from so reduced a starting point can it further reflect on the increase of legal meaning (e.g. of the text of a given constitutional ruling) as a result of "the interpretations made of it" and the transformations of legal meaning thus achieved.








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AS/SA Nº 6/7, Article 7 : Page 7 / 11

© 1999, AS/SA

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1999.07.14