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42 Syracuse L. Rev. 75 (1991)
A Semiotics of Legal Argument

handle is hein.journals/syrlr42 and id is 87 raw text is: A SEMIOTICS OF LEGAL ARGUMENTt Duncan Kennedyt I. INTRODUCTION My impression is that when people interested in legality appro- priate the theory or philosophy of language, they tend to focus on the rule form and the facts in the world to which the rules are applied. For example, what does language theory tell us about the meaning of a statement such as you must be 35 years old to be eligible for elec- tion to the Presidency? In this paper, I pursue a different kind of borrowing, focussing on what language theory might offer the as yet rudimentary theory of legal argument. By legal argument, I mean argument in favor of or against a par- ticular resolution of a gap, conflict, or ambiguity in the system of legal rules. In this form of argument, it is the practice to deploy stereo- typed argument-bites, such as, my rule is good because it is highly administrable. Argument-bites come in opposed pairs, so that the above phrase is likely to be met with, but your rule's administrability comes from such rigidity that it will do serious injustice in many par- ticular cases. Starting with the argument-bite as a basic unit, I propose a set of inquiries into legal argument, using language theory as a source of analogies. First, there is the lexicographical or mapping enterprise of trying to identify the most common bites. Second, there is an in- quiry into the generation of pairs and their clustering into dialectical sequences, rituals of parry and thrust. The response above might be answered, there will be few serious injustices in particular cases be- cause my rule is knowable in advance (unlike your vague standard) and parties will adjust their conduct accordingly. Third, there is the second-order mapping task of identifying the major clusters (some candidates: formalities as a precondition for legally effective expres- t Copyright © 1989 by Duncan Kennedy. An earlier version of the main article appeared in R. KEVELSON, 3 LAW AND SEMIoTIcS (1989). The Appendix is original to this issue. t Professor of Law, Harvard Law School.

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