Bernard Jackson

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