Abstract
Legal reasonableness and its theoretical analysis are often gauged on judicial activity. However, the judicial exercise of reasonableness is always a post-factum activity. People produce facts, and then courts are called to ascertain and qualify their conduct to determine its legal consequences. The use of reasonableness appears, in this way, almost inherently grafted onto a pre-existing divide between facts and legal rules. Reasonableness would appear to be mainly engaged in the balancing of the semantic spectrums of law’s provisions and their underlying axiological legitimations. To put it diversely, reasonableness seems to be confined within the semantic fluctuations of a major premise of syllogism and only indirectly focused on its minor premise and the translation of facts in legal terms. I think this traditional approach is defective. Its defectiveness is due, in my view, to a lack of semiotic awareness in the assumptions made by judges about what facts are and the resulting tendency to produce ossified understandings. If, instead, legal interpreters were to consider facts as epitomes of signical chains that are thus open to a narrative unwinding, the categorization of facts and the creative remolding of the semantic spectrum of legal enunciations would reveal their interpenetration. Narrations make visible the implicit deictic dimension inherent in the symbolic representation of facts and actions, as well as the signical webs in which such empirical ‘data’ are embedded. These expanded landscapes of multifarious properties and connotations—if traversed far and wide by the interpreters—tend to proffer new and unexpected axes of semantic/legal qualification. This is because the newly emerging properties are often pertinent to various phrastic parts of different legal enunciations (and the lexemes they comprise, as well), thereby urging a renewed assessment of their categorical borders and criteria of trans-categorical relevance. In this sense, reasonableness can function as a chisel to proactively mold the world of experience rather than as a rhetorical device that is only applied to previously defined rules and empirical categories. Indeed, this is exactly what occurs, even more intensively, when legal practitioners provide legal assistance to their clients before and outside the courts. In many cases, when clients are informed about the legal consequences of their actions, they undertake—even if unawares—a semiotic/indexical re-assessment of their potential conduct; they re-plan the factual/behavioral chains designed to pursue their interests and achieve their ends. In this way, they become able to produce facts through law. If taken together, legal education, a semiotic understanding of facts, and a widespread use of pre-litigation legal assistance might cast new light on the potentialities of legal experience, if not its own socio-political and even cognitive significance. From this angle, therefore, improving the semiotic analysis of the life of law is a crucial step on the path toward new ways of rethinking the relationships between legal discourse and the making of the social world.
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Notes
In this regard, it is to be observed from the outset that rationality and reasonableness are sometimes declined, respectively in the legal domain and in moral theory, with different, if not even opposite, meanings. In moral theory—see, for example, [29, 30, 83] rationality is intended as a means/ends (individualistic) standard for efficient action; reasonableness, conversely, as an inclusive strategy to carry out one’s own conduct. In law—see, for example, [1]—rationality pertains to general scheme of action meanwhile reasonableness is related, usually, to the solution of specific cases, even if such solutions are then considered according to a comprehensive horizon of values/ends. This is due to the assumption that legal provisions must embody generality that results from previous axiological and teleological balancing between individual goals and preferences. Reasonableness coincides, instead, with the derogation and/or the exception with respect to the general schemes included in legal provisions and logical inferences that any judge could/should draw from them to make a decision on the case.
The idea that any act of communication entails, at least, an implicit translation goes back to St. Augustine, and pervasively imbues Peirce’s semiotics. It is also the leitmotiv of comparative literary theory as seen in Steiner’s After Babel [84], just to recall a few examples.
It would be very interesting to compare this hypothetical benefit with the moral philosophical positions that assume, in their analysis of rational and/or reasonable conduct, the agent’s self-centered ‘consideration’ as a normative standpoint. See, in this regard, [16, 31, 77, 88]. For a criticism of these positions, sometimes dubbed as ‘reason’s fundamentalism,’ [22, 79] or ‘fundamentalist justificationism’ [24] see [22, 42, 43, 78,79,80].
As for the distinction between ‘phrastic’ and ‘neustic’ in deontic propositions, see [33].
Even the overall debate on the figure of ‘reasonable man’—see, for example, [49]—is developed by assuming the judicial point of view. Things completely change, however, when the agent’s perspective is taken into account as such—namely outside a judicial context—as a standpoint for moral philosophical analysis: see, for example, [12,13,14, 28,29,30].
Space limitations do not allow for an adequate treatment of the complexities of the relations between various languages and the issue of self-referentiality within a semiotic universe here. However, a more extensive examination from a semio-legal point of view can be found in [73] and there for further bibliographical references.
I addressed this issue in elsewhere [73] from a semiotic legal point of view [32]. In the specific domain of legal theory, as regards the terms of the issues concerning the constitutiveness of legal language with respect to the ‘fact’ and the relationships between legal language and natural/common language, as well as legal truth and natural truth, see [41, 50: p. 49 ff., 89, 90: p. 131 ff., 56, 57]. These authors, despite the different nuances of their arguments, see ‘facts’ under the lens of law as legal or institutional facts constitutively semanticized by legal discourse. At the other extreme, there are those who consider legal judgment to be a declaratory activity/function and consider it much like an empirical ascertainment [3], or a social fact [75] to be considered from a ‘realistic’ sociological point of view. As will emerge below, I take neither one position nor the other precisely because of my approach, inspired by both Peircean semiotics and Deweyian cognitive instrumentalism (among other philosophies and linguistic theories as enactivism, language embodiment, cognitive grammar) concerning ‘what facts are’ and how they are ‘made meaningful’ by human beings (and their action).
Hereinafter I will refer to the factual element taken as a pre-condition (e.g.: someone did action X) of legal qualification (e.g. a contract, a murderer) included in the legal rules whenever I discuss the applicability of the so-called truth-values or truth-value semantics to legal reasoning, judgments, argumentation and justification.
‘Sinsemics’ and ‘sinsemia’ refer to conceptual cartographies or maps and their use in supporting reasoning, conceptualization, learning, planning, and so on. See [60] and https://synsemia.org. On average, conceptual maps are drawn according to a hierarchical logic, often projected on a two-dimensional plane and depicted as a kind of web featuring a center-periphery representation and operational order. By contrast, I imagine sinsemic relationships as characterized by mobile geographies such that the center can move continually according to an index of salience suggested by the emersion of trans-categorical relationships. This approach translates in legal terms the logical and figurative dynamics adopted, for example, by Al-Jāḥiẓ [2, 72] and Klee [69].
I am fully aware that preventive legal advice can also be aimed to supply interpretations or solutions capable of eluding legal control. Nonetheless, any resort to a literal interpretation of legal rules so as to avert this misuse of the preventive legal advice runs the risk of proving worse than the original problem. This is precisely because a literal interpretation/combination of rules is the main device used to construe and underpin solutions arranged in order to formalistically bypass, and/or immunize themselves from, legal control and bans [51]; in many cases, paradoxically, this is in sharp contrast with the values/ends underlying and legitimating the same rules involved in supplying the elusive advice. To a certain extent, however, purposiveness in legal interpretation cannot be avoided or neutralized [90: p. 265 ff., 9]. Sometimes, as for intercultural issues, that purposiveness can even be (paradoxically) ‘unaware,’ but not for this reason is it less partisan, discriminating and substantially illegal and/or illegitimate. All depends on the role played by, and the use of, the principles and values/ends at the legal system’s apex in translating people’s needs and interests in legal terms. As for the analysis of this topic, space requirements, however, compel me to refer to other works [67, 71].
I prefer to use here the expression ‘what to do’ rather than the more typical, at least in legal discourse, ‘what is to be done’ or ‘what should be done’ precisely to emphasize the planning prospection inherent in the preventive use of law. It would be very interesting to compare this approach with a philosophic moral analysis of rationality and reasonableness focused on the ‘planning moment’ of rational choices. See, for example, [12,13,14]: pointing out, however, that the overall inspiration of my approach is not exactly in tune with his theoretical view. This distance increases further with regard to the so-called ‘Planning Theory of Law’ elaborated by [82] (somehow an adherent of Bratman’s proposal), which is as far from my approach because of the semantic/normative (or even vaguely authoritarian) rigidity of his approach to ends and the realted denial of any means/ends dialectics applicable to the meaning of legal statements
The Qur’an verses about the ‘veil’ are consequentially translated (with specific regard to the ‘hijab’) as if they impel Muslim women, as a matter of fact, to wear pieces of cloth on their heads. In this way, however, all the semantic, psychological, social, etc. implications related to the ‘hijab’ are completely ‘made invisible’ (and not only ‘lost’) in translation. Contrastively, I would like to raise the following question: ‘What if on a day the hijabs were placed in the showcases of (western) dress shops among other garments and other kinds of headgear?’ What should be, in that case, their significance? What about this ‘categorical migration’ and its socio-legal consequences?
As for the veil, see SAS v. France, 2014-III Eur. Ct. H.R. 341; Dakir v. Belgium, App. No. 4619/12 (Eur. Ct. H.R. July 11, 2017); Belcacemi and Oussar v. Belgium, App. No. 37798/13 (Eur. Ct. H.R. July 11, 2017): even if the decisions were based on the ban of the niqab (which also covers the face), they engendered many social consequences on the possibility to wear the hijab, at least in some countries. As for the kirpan, I refer to [71]. On hijab in workplaces judged as a religious symbols in contrast with a ‘legitimate’ ban on the wearing of political, philosophical or religious sign/symbols, see Court of Justice of the European Union—No 30/17 Luxembourg, 14 March 2017. In this regard, for more information, see https://webcache.googleusercontent.com/search?q=cache:eUaC6j7m9BkJ, https://ec.europa.eu/newsroom/just/document.cfm%3Faction%3Ddisplay%26doc_id%3D48810+&cd=5&hl=it&ct=clnk&gl=it.
It would be very interesting, but also tremendously instructive, to compare the above considerations about the legal categorization of the kirpan with the observations about the categorization of ‘a knife’ and the legal interpretive problems related to the use of discretion and/or reasonableness proposed by Hart many years ago [35: p. 654 ff.].
It could be very constructive here to recall what two scholars observed some years ago about the application of analytical legal logic to case-law experience [24: p. 275]: ‘Precisely because of their ‘formal inclination’, logicians concern themselves in principle only with the truth of the premises of an argument insofar as this truth depends on the form of the statements in which the premises are expressed. Logicians regard an argument form as valid only if no substitution instance of this argument form with true premises ever produces an untrue conclusion. This, however, does not mean that they are interested in truth values as such, let alone that they support the ideal model of knowledge referred to by Toulmin as ‘the Eternal City of well-founded truths.’’ See, also [79: p. 519 ff.].
This almost paradoxical consequence—namely a plurality of (aspiring) self-centered universalisms—can be instructively paralleled to the implications of a pluralistic ‘reasons fundamentalism’ [22] gushing out as a reaction to the ‘pure formalization of logic’ [79: pp. 519 ff; esp. 523–524] that the history of ‘Western Reason’ produced in the last century.
For an intercultural translational-transactional solution to the ‘kirpan’ case, as such also available for the ‘hijab’ case, see [67, 71]. I would like, also, to mark the distance between this cognitive transformative/transactional approach [20, 21] and the neo-Kantian one underlying the arguments developed in [83].
Even if before the courts or dealing with other state institutions all the relationships between people from different cultures, as well as those between individuals and state institutions and even the infra-cultural/infra-communitarian ones, become, at least potentially, intercultural. [67].
As for the intercultural and universalizing use of human and/or fundamental rights that can exploit for inclusive purposes their semantic vagueness and the plasticity inherent in the ends they encapsulate see [65, 66, 68, 70, 71]. More specifically as regards the danger of an excluding use of human and/or fundamental rights by passing off identity with universality see [65, 68].
I draw this from an ethnographical-legal survey carried out in the field on a sample of Italian notaries [74] spread over the whole national territory.
I developed—as scientific coordinator—a project pioneering a legal-pedagogical action in collaboration with the Italian National Bar Association (CNF) and MIUR (Italian Department of Education and Science) with the legislative framework of the so-called ‘Work-Related Learning.’ The project draft can be found at https://www.consiglionazionaleforense.it/web/cnf/scuola-lavoro?p_p_id=101_INSTANCE_CdMynPmsVwKI.
As if to say that only the formation of the experiential datum constitutes categories as a priori with respect to the unfolding of knowledge, so establishing their inherent co-implication.
Divina Commedia: Paradiso, Canto XXII, vv. 133–138; 151–154. English translation ‘I turned my gaze back through each and every one of the seven spheres, and saw this globe, so that I smiled at its pitiful semblance, and I approve that wisdom greatest which considers it least: since he whose thoughts are directed elsewhere may be called truly noble.
[…] The threshing-floor that makes us so fierce, appeared to me from mountains to river-mouth, as I revolved with the eternal Twins: then I turned my eyes to the lovely eyes again. The complete translation of the Chant can be found at https://www.poetryintranslation.com/PITBR/Italian/DantPar22to28.php#anchor_Toc64099969.
My italics: so as to emphasize the comprehensive self-reflexiveness of the sentence and, in spite of appearances, its projection into the future. In this regard, for some cues [81].
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Ricca, M. Planning Facts Through Law: Legal Reasonableness as Creative Indexicality and Trans-categorical Re-configuration. Int J Semiot Law 33, 1089–1123 (2020). https://doi.org/10.1007/s11196-020-09702-z
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DOI: https://doi.org/10.1007/s11196-020-09702-z