Bernard Jackson

The modern conception of the ``Rule of Law'' entails government bylaw not men, and takes law to consist in rules known in advance. Thislatter characteristic assumes that, for the most part, the meaningof such rules is unproblematic (Hart's ``core of settled meaning''), this usually being understood as a function of ``literal meaning''.A quite different model exists in the Bible: the early rules display``oral residue'', and their meaning, I argue, is constructed in``narrative'' rather than ``semantic'' terms: instead of asking:``what situations do the words of this rule cover?'', we shouldinquire: ``what typical situations do the words of this rule evoke?''.Moreover, courtroom adjudication was not the norm, and its originalform was not based upon the application of written rules but ratherupon judicial discretion taken to have been divinely inspired. Isuggest that modern jurisprudence still retains traces of such earlierconceptions, in its account of modern law: despite their differences, both Hart and Fuller make use of narrative constructions of meaning,and Kelsen ultimately prefers the authority of the judge to the correctness of the rule he purports to apply.

This response to the articles of Luzzati and Broekman (in this issue)addresses principally the character of early rabbinic legalinterpretation, as viewed by the Rabbis themselves. It considers, withexamples, their concept of ``simple meaning'' (peshat), and itsplace within their overall hermeneutic system and its theologicalpresuppositions. The second section responds more briefly to thetheoretical critiques of Luzzati and Broekman, stressing that (myversion of) semiotics is descriptive rather than normative; resists thereduction of textual meaning to interpretation; and refuses to equatedecision-making with justification. I suggest that traces of traditionaltheological positions may be discerned in the normativist positions ofmy interlocutors.

This article is partly an exercise in academic autobiography, seeking to make sense of the different ways in which I have applied semiotics to secular law on the one hand, Jewish law on the other. The very fact that it can be applied to both shows that its claims are methodological. But it also indicates a possible reformulation of the semiotic issues in philosophical terms: we may view the relationship between the semantic and pragmatic levels in terms of the relationship/balance between certainty/truth (the semantic level) on the one hand and trust (the pragmatic level) on the other. What may distinguish the secular and religious systems is the manner in the issue of trust is be ideologically concealed.

Originally written in 1990, this reviews largely late 20th century debates on the study of law as Logic, Discourse, or Experience; the Unity of the Legal System and the Problem of Reference; Semiotic Presuppositions of Traditional Jurisprudence (Austin, Hart, Kelsen, Dworkin, Legal Realisms); then turns to legal philosophies explicitly Employing Forms of Semiotics (Kalinowski, the Italian Analytical School, Rhetorical and Pragmatic Approaches, Sociological and Socio-Linguistic Approaches, Peircian Legal Semiotics, Greimasian Legal Semiotics and Aesthetic/Symbolic Approaches). A major section then offers (from a largely Greimasian point of view) some hypotheses for legal semiotics on the Problem of Reference, Semantic and Pragmatic Levels, Semiotic Groups and “The Legal Culture”, Normativity and Justification, and finally considers the implications for particular legal phenomena: the “Legal System”, Legal Institutions, Legal Codes, Legal Rules, Rights, Courtroom Behaviour: Witness and Counsel, The Judge: Justification of Decisions on Law, and the Criminal Justice Process. A conclusion addresses the status of legal semiotics.

In Home Building & Loan Assn. v. Blaisdell, the Supreme Court upheld the constitutionality of the Minnesota Mortgage Moratorium Act. Under the terms of the Act---one of the many pieces of moratory legislation enacted due to the Great Depression---mortgagors who found themselves unable to make their payments could turn to the state courts for an alteration of their payment schedule. It is clear that if there ever was a state of affairs in which one could justify the imposition of debtor relief, the circumstances in Minnesota during the early 1930s would have filled the bill. By most accounts, the Act was justifiable from a policy perspective. ;Nevertheless, the outcome did not please everyone. The question before the Court was whether the proceedings authorized by the Act violated the contracts clause of the Constitution. Article 1, §10 provides that "No State...pass any...law impairing the Obligation of Contracts." The Act did impair the obligation of mortgage contracts. Furthermore, the Act was exactly the kind of debtor relief legislation that the contracts clause meant to forbid. The basic premise underlying the majority opinion was that a constitutional provision should be interpreted both in the context of the entire Constitution and in the context of the social situation confronting the Court. According to the dissent, the framing of the Constitution fixed the meaning of a provision for all cases arising across time. The two approaches represent two extremes in constitutional interpretation. However, the basic agreement is over how the Constitution should evolve. The basic disagreement concerns the problem of constitutional change. ;In a recent work, Robert Lipkin radically rethinks modern constitutional jurisprudence, challenging the received view of constitutional change. His theory of "constitutional revolutions" implies that conventionalism, coherentism, pragmatism, and naturalism all fall short as the best theory of constitutional change. In addition to offering a critique of Lipkin's theory, the present work conducts an independent investigation the theories Lipkin rejects. Such an investigation will not only help ascertain the legitimacy of Lipkin's theory of constitutional revolutions in particular, but of radical constitutional change in general