THE LAW AS A SOCIOCULTURAL DISCURSIVE PRACTICE
Federal University of Rondônia Foundation, Brazil
profalazuin@unir.br; alazuin@gmail.com
Federal University of Rondônia Foundation, Brazil
professorbrunodireito@gmail.com
Federal University of Rondônia Foundation, Brazil
Abstract
This article presents the Law while producer and disseminator of sociocultural discourse. The basis starts from the idea that language, here in particular the juridical language is notorious brand of culture and social relations, and after all it’s the language that can express concepts, norms, behaviors, in other words, a condition that provokes relationships, actions and reactions. In that sense, the arising from methodological procedures of the American Semiotics Theory, commonly known as Peirce’s Semiotics, will base the proposal based on the process of signification, or at best Peirce’s terms, the process of semiosis that requires basically the philosophical model of pragmatism. The article takes as its theoretical basis of Tercio Sampaio Ferraz Jr., in this case, to contextualize the Theory of Juridical Norm. Moreover, extends the notes highlighting the way the study of law by the language, in terms of the Norberto Bobbio, in what concerns the function prescriptive.
Introduction
Many theorists have presented the idea that Law is not pure logic, which means that cultural, social, technological issues and politics permeate the reading of the facts and the formulations of laws. In the words of Gregorio Robles: “in social life of men, as communication system, the law is language or, in other words, the law is text” (2005, p. 2), and while text is subject to interpretation, as yet, condition sine qua non to produce other texts.
To Bobbio, the author thinks he can distinguish three fundamental functions of the language of Law, namely: descriptive, expressive and prescriptive. Therefore, confirming that it is in the language that Law exercises its own sociocultural discursive function.
In this sense, the text and language conceptions transcend what are routinely reserved to them in the common studies. Therefore, the proposition bases on semiotic studies, in particular, the American Semiotics, also known as Peirce’s Semiotics (foundation by Charles Sanders Peirce (1839-1914), to broaden the debate.
The work starts with the presentation of what is Semiotics and the object of study of this science. Then, it refers to the sign, the language and the process of semiosis and then conducts the issues and/or themes in relation to Law and its relations with the world, society and culture.
And to justify that the endeavor is bold, we brace on the same words of the learned teacher Tercio Sampaio Ferraz Junior (2009: p. 1): “the undertaking to carry out even an outline, of a pragmatic normative legal communication takes a certain audacity and great risk. This is because the very notion of pragmatics is quite imprecise [...].”
Thus, the pragmatic becomes the focus of the work, therefore, conceived as a dimension of semiosis is part of a theory of Peirce’s Semiotics, whose idea is the study of the sign related to their interpreters.
Once this phase is overcame, the place for the sign and the socio-cultural reality is reserved, whose configuration of the do-do (constant in the prescriptive function) cannot stop being span by the mode of do-say from Law as a communicative act in order to achieve in the recipient of legal language some do-know. Because the language, in this case the one used by Law, places symbolic exchanges that allow communication between the subjects and that generates social relations or even interrupt, modify or change behaviors when needed.
The propositions based on work of Norberto Bobbio (1909-2004), theory of rule of law, are extended precisely because the author elaborates the thought about Law in the parameters of the functions of language. That is, we are interested in fixating on the prescriptive function without greater pretensions (such as previous approaches), because it is Bobbio’s conception that the prescriptive function modifies the behavior of others. Thus, the function of the prescriptive language makes real the do-do of the subjects.
This attempt joins the requirements of interpreting legal norm through the studies of language to foster, in the words of Paul de Barros Carvalho (apud Bittar, 2010): “[...] the possibility for the public, with distinct formations, not only legal entities, can understand and identify interfaces between communication codes and the legal system”.
1. The Semiotics as a science of languages
To understand the role of law, we need to talk a little bit about the functions of these social discourses. According to Landowski apud Zuin (2012: p. 10): “all social discourses have a main or primary function. Most social discourses have a character eminently pragmatic (Landowski, 1992), that is, seeking to satisfy some pratical need of the human being”.
In the same way, Bobbio formulates that a legal norm is a proposition:
We mean that it is a set of words that have a meaning. Based on what we said above, the same normative proposition can be formulated by varied enunciations. What matters to the lawyer when he interprets a law, is its meaning.
[...] There are various kinds of propositions. You can tell them apart based on two criteria: the grammatical form and the function.[...]
[...]
I believe that it is possible to distinguish three fundamental functions of language: the descriptive, the expressive and the prescriptive.
[...]
We are interested particularly in the prescriptive function: a body of laws or regulations, a code, a constitution, these constitute the most interesting examples of normative language [...]. (Bobbio, 2014: p. 74‒79)
It is observed, if found according to Landowski (1992) the main or primary function in social discourses in order to satisfy any practical need of the human being, it is possible to say, then, that to Bobbio, in this line of thought, the function of prescriptive language aims also to satisfy practical social issues, such as: informing, communicating, transmitting knowledge etc. After all, as Bobbio asserts, the prescriptive function is propriety of the normative language, because it implies while it influences the behavior of others, tending to transform it, using for that the performance which is its characteristic: the do-do.
Now, before the performatic do-do it is necessary first a do-say – present in the communicative act of law to society. So that the individual can be influenced and receive properly the targeted communication, ensuring the intelligibility of the message by an effective process of formulation and transmission, as provided in the law norms, the recipient “needs to believe”, “to assume” and take it as credible; There it is what makes it worthy of credibility.
That means in the words of Bobbio (2014: p. 48):
[...] the first point which, in my judgment, is necessary to have clear in mind if we want to establish a theory of the rule of law with solid basis, is that every legal norm can be subjected to three separate appraisals, and that these appraisals are independent of each other. In fact, before any legal norm we can put a triple order of questions: 1) if it is just or unjust; 2) If is valid or invalid; 3) if it is effective or ineffective. These are the three distinct problems: the justice, the validity and the effectiveness of a legal norm (emphasis added by the author).
Thus, in the order of law, although the prescriptive function aims at the objective of disciplining social coexistence, the guidelines of positive law (nomoempírico prescriptive system) also demands conducting the conduct of social subjects, in order to modify their behavior. Hence, saying that the law as a socio-cultural discursive practice is imbued, according to Bobbio, with characteristics residing in the prescriptive propositions, and yet in the pragmatic of Tercio Sampaio Jr, in sight of the law being here a place of communicative act. To Zuin (2009: p. 152) that is also presentified in the action proper of language, which is: the persuasion, because in order for the rule of law to be effective it is necessary and ongoing the act of persuading or continuing to persuade, in any communicative context.
When it comes to the rule of law, in this case we are forced to recognize the modal value of doing, which to Greimas & Courtès (2008: p. 202) is “an operative (do-be) or manipulative (do-do) do”, given that it is a doing that modifies the behaviors, transforms and rules other statements. By the framework of Ferraz Junior this mode of doing is in the pragmatic doing and may extend into cognitive doing. It says “may” in the sense that by the nature of pragmatic doing there are investment of socio-cultural, descriptive values, therefore, understanding the law as socio-cultural discursive practice, because it is invested of programs of persuasive doings and interpretive doings.
So, by being the place of communicative act, the mechanisms and procedures of structuring of the legal language, treating it as a totality of meaning, are guided by the ways in which the norms are organized to produce certain values of “certain society”, without, however, disregarding what keep or modify them, in the socio-cultural context.
2. Law as discursive sociocultural practice
Several researches have presented the establishment of links betweenPeirce's semiotics and the legal language; in other words, researches are gradually driving the contribution of semiotics to a theoretical linguistic and methodological meeting, looking forward to generating a interdisciplinarity among its fundamental principles. And what are these principles? The basic principles for the establishment of these relations are found in the Semiotic Theory of perception, of the sign and the interpretant. It is precisely in this contribution that we can get the answers for the effective understanding of the ways in which the meanings are transformed into cognition, i.e., it is in the interpretant theory that we can find the understanding of the mental processes, the production of cognition in the minds of interpreters.
Nöth (1995, p. 130) draws our attention to the way in which the phenomenological categories of experience developed by Peirce, the cognition is understood:
On Peirce's philosophy, the traditional triad of mind corresponds to its three categories of Firstness, Secondness and Thirdness. The feeling belongs to the Firstness, the category of the immediate and of the qualities not yet distinguished. Volition belongs to Secondness, category of dyadic interaction between the self and the other (the first and the second). Cognition belongs to Thirdness, the communication category of representation “between a second and a first”. (CP 5.66)
Consequently related to this phenomenon is the proposal of Tercio Sampaio Ferraz Jr. (2009: p. 7) mentioning that it is not enough to the study to be based in linguistic aspect, considering not being the purpose “study the language of Law or its normative manifestation; but investigating Law itself, while required, for its language existence”. Therefore, Law is taken to the linguistic level, without however, dismissing from the investigation what is competence of the legal standard, the regulations of behavior, the possibility of conflicts, the immanent characteristics that lead us to another level, that here is presented – the discursive level. After all, asserts Ferraz Jr. (2009, p. 8): “On behalf of the laws of the regularities of language proceeds usually an investigation of the political discourse, philosophical, scientific, etc”.
And under the normative point of view, in the words of Norberto Bobbio (2014: p. 25) Law as a rule of conduct:
Approaches the legal experienceand apprehend its characteristic features is to consider Law as a set of norms, or rules of conduct. Let us begin by a general statement of the genre: the legal experience is a normative experience.
Still to Bobbio and correlated to the assertion of Ferraz Jr (2009) that more important than studying the language of Law or their normative manifestation is to investigate the law itself, while requires, for its existence, of language, goes for the studies of law as a rule of conduct to capture the senses of modes like “our life develops into a world of standards” (Bobbio, 2014: p. 25). So, in the world of standards is worth even the subject's experience with respect to the standard he established, otherwise nothing will mean, why didn't went through own legal experience of which proposes.
So, although I need the subject's experience with the world of life so that he can put himself in the communicative act and understand the meanings of the standards that you are put, rises in autonomous and heteronymous imperatives considered by Bobbio (2014: p. 91), a paradox to this positioning; yes, the category of requirements of legal order is very large, because they understand both the moral rules as the rules of grammar, both legal norms as a prescriptions.
This implies a change in the paradigm of Habermas, given that in the relationship of the subject with the cognitive object present in the theory of communicative action there is the predominance of free and public use of reason of the subject about the object, given the idea of subject-subject relationship for effective discursive formulation. However, what is formulated by the prescriptive legal language function, in the words of Bobbio (2014: p. 91) in this area is not discursive.
In this extension, Law shall become a phenomenon predisposed to each generation, group, culture or even individual, which depends on the development, establishment and access to content, the standard; once, to understand the legal world every culture has its unique way of expressing it and interpret it, i.e., each of which has the experience related to the world of life, although the proposition too prescriptive with regard to binding force.
[...]
So far, talk of imperatives (or commands). But the imperatives (or commands) are those prescriptions that are more binding force. This greater binding strength is expressed by saying that the behavior predicted by the imperative is required, or in other words, the imperative obligation to generate a person to whom it is addressed. Imperative and obligation are two correlative terms: where there is one, there is the other. One can express the imperative in terms of obligatory action-object (Bobbio, 2014: p. 97)
However, to Bobbio is not thrown that mostly this implies a veiling that's behind the legal language, i.e. the prescriptive function which aims to:
presuppose knowledge of function that has the normative system to characterize a given society, and cannot be answered except through the study of the rules of conduct that have shaped the lives of those men, distinguishing it from the lives of other men, belonging to another company inserted in other normative system (Bobbio, 2014: p. 27).
In another contribution:
We believe to be free, but in reality, we are involved in a very thick network of rules of conduct, from birth to death, heading in this or that direction our actions. Most of these rules has become so habitual that we realized more of his presence. However, if we observe a little, outside, the development of a man's life by nurturing activity exerted by their parents, their teachers and so on, will realize that he develops guided by rules of conduct (Bobbio, 2014: p. 26).
In this same sense are content-related issues of mental representations of which are of the utmost importance for the Legal Science, therefore, to understand the Law interpretive possibilities is required; because the idea of pragmatic communication acts priority is only validated from the decision to put in a speech and in communicative situation, using the terms of Fernandez Jr. (2009: p. 12). And amplify, even the standards of conduct that are part of the prescriptive function intend to highlight positive or negative imperatives of both species, without, however, fail to target the legal rigor formulated experience, because they are of linguistic signs that talks. In this line, in the pragmatic dimension is the Constitution that may be significant for the legal language, why is it that people drive in the purposes of prescriptive function, whether spontaneous or compulsory membership of the selfsame thought may be the norm.
So, say that the law aims to “regulate social conduct admissible” not exempt, greatly to conceive such dynamics in the molds in social events circumscribed. On the contrary, while producer of discursive socio-cultural, as is provided for puffed admitting the complexity of human phenomena, which are: economic, social, cultural, philosophical, communicative, etc. After all if it were not the fundamental question of law would be lost, because there would be a fundamental in Exchange point. Is given to this rationale that Ferraz Junior points towards communicative situation. And in this mat is based the principle of Peirce's pragmatic, given the privilege of this dimension to the semiosis, considering how the author emphasizes, the norm as linguistic fact, incorporating the ludic dimension (Fernandez Jr., 2009: p. 12). Deserves quoting in terms of Ferdowsi: “other dimensions: syntactic and semantic aspects relevant to studies of the legal standard, but stresses be pragmatics the deprecated due to the principle of interaction” (2009: p. 30).
And we add, if Law whose capacity for mediation is formalize the symbolic universe of legal order, for recognizing the man how to be “symbolic” and as such, unlike other animal species by the condition of seizure of the senses to the highest level of abstraction, the experience from this symbolic formalization, actually seized and perceived, is capable of transforming the mental world psychological, socio-cultural, and receptor interaction. Under Ricardo Souza Pereira (2012), here are the reasons why the option by the pragmatic point of view to the approach of the legal language, because if on the one hand is the very function that you intended – to prescribe, sanction, force, from the point of view of semiosis as the filing of Ferraz Jr.
As for the design of the pragmatic point of view, objective this study to be a facilitator of communication between he who emits the norm and the recipient of this, it might just be a standard receiver. However as pragmatically the end is reached, it ceases to be a mere receiver, however, to become knowledgeable of the same, which makes the Act of language, much more effective.
And likewise Law as discursive practice, socio-cultural that shall assume the function of bookie-human relations, because communicational conceives not only language and the signs as investigation of semiosis, but the interaction that conceives as media with the selfsame thought may be. For this understanding takes Carlos Eduardo Bianca Bittar which teaches:
Then one realizes that the corporeal presence of law is not as unitary, nor as homogeneously; Notice that Law something is missing when it is extracting their socio-cultural substances, expressive, discursive, politician-squeeze (...). If so, then you're faced with a phenomenon that coexists with other phenomena, some depending on other intrinsically, extracting its articulation, on others if structuring, with others living dialectically, etc. To this end, and Lawat this very moment, opens a new vision for what is the reality of Law, a sense that no appeals to that artificial reality [...] (the author's original spelling). (Bittar, 2003: p. 15).
In that consent Bittar complements:
On the other hand the discursus is the use of rationality depurative of ideas, opposed to the notion of intuition (noésis); o discursus involves the cursus a proposition to another, so that all reasoning is conditioned by this route. On the other hand, the speech is understood as being logos, i.e. the transport of thought (noûs) eidetic structures to the sphere of communication, the use of the noûs in articulation of language. The logos, in fact, is the noûs done in Word, which is to say that there is a passage of the symbolic abstract and symbolic thought of noetic and the formation of ideas, for the symbolic and expressive concrete (the author's original spelling). (Bittar, 2003: p. 71)
Consequently, the process of signification (semiosis) is present on narrativity of mediations not at random, to the extent that mediation is a semiotic process-discursive, so is the process of narrativity, as a cognitive mental map not merely narrative. Because, in this map the narrativity is a property that characterizes a certain kind of speech (Greimas, 2008, p. 328), in this case, the discourse of law who writes and/or subscribe to the way in which social subjects must know-how, could do, and should do the discursive communication situation in legal culture, in history, in society. This model although abstract is justified to the extent that the normative Communicator (Fernandez Jr. 2009, p. 43), in this context, also happens to assume different positions within other social discourses. There are rooted the bases that make up the phenomenon of law while practice cultural discursive.
Final considerations
The Semiotics developed by Charles Sanders Peirce, conceived as logic, cannot be confused with an applied science, in the words of Santaella, whereas Peirce was effort to configure general confiscation signal concepts of the senses from the abstract-formal procedures. Meets retain in this line that the theoretical procedures of Peirce contributed to the advancement of American pragmatism, once through the triadic scheme of the sign, very different from the dyadic model of Ferdinand de Saussure, allows the relationship of semiosis (meaning) that designates an action; or an influence that supposes the cooperation of three subjects in the process: the sign, the object and its selfsame thought may be.
This idea occurs the action of man in the world, even if only by the full experience, whereby he will call Firstness, which is nothing but things out of place or of any material (Aguilar, 2004: p. 47). However, good and takes into account the character of the sign and triple action first, because it is then a second – the Secondness that occurs by contact with something that requires a modification to the reactions, the aspect of mutual relationship. Thus, in transaction, as proposed by Araújo (2004: p. 47), Peirce mediation occurs or for modification of Firstness and Secondness, and at this level occurs the communicative processes.
Law fit in this third dimension, because it represents something that provokes, urges, modifies, persuades, creates mediations typically and genuinely features of your communicational situation, i.e. normative representation while is represented, because habit, growth, diffusion, memory, intelligence, cognition follows its Constitution deontic to argumentative validity consequently discursive. By Charles being implies the mind of another interpreter generating sign equivalent or more developed than Peirce (1972, p. 94) entitled as selfsame thought may be. And, with all this determines, the pragmatism of Peirce was presented by notorious: “the characters of all signs used by a scientific intelligence, that is, by an intelligence capable of learning from experience” (1977, p. 45), constitute a kind of abstraction along with the note. (Aguilar, 2004: p. 54). The Law in this area, while the third category concerns “or mediation process, continued growth and future always possible by acquiring new habits” (Santaella, 2003:p.39), standards, customs, nod, Convention, situation of communication/interaction; because through Law if represents and interprets the world of laws; is the layer of intelligibility that demand in the profusion of cognitive.
The Peirce’s Semiotics in the area of law, is a field of knowledge in development that seeks to understand the processes of signification that permeates the legal discourse. As a specific semiotics can be applied to the processes of cognition that proposes to replicate, given the cognitive potential of the human species.
In short, these approaches came to the pragmatic dimension by the fact that the complexity of discourse if appeals to the understanding of others, in the words of professor Fernandez Jr. in this context, what gives meaning of your unit is the possibility of pragmatic speech, that is, the rules make up a unit due to the possibility of fundamenting discursive behavior (Ferraz Jr., 2009: p. 20). Finally, under the angle of Pragmatics of discourse, as the author asserts, interests manifest themselves through values (2009: p. 151).
If to Norberto Bobbio prescriptive legal language function meets what you propose, that is, modify the behavior of the individual, also influence the ways as he welcomes, in this case the plays through the cognitive mechanisms, even if indirect mode, while prescription influence is direct, which means that is the language that the selfsame thought may consent in do-do. Or, as prescriptive function permeates the dynamics of heteronomous imperative, given that comes out of the sphere of Kantian morality: the autonomy of the will that is the quality that has the desire to be the law itself; toward the legislator's speech, because This is internal, moral legislator and legal is external, as accentuates Bobbio.
Law as discursive practice would not change socio-cultural, since in the discursive function pragmatically immanent here contains, tell us of the Ferraz Jr.: “observations that lead us to conclusions unsatisfactory about the legitimacy taken as a justification problem last normative discourse”. (2009: p. 172).
Because, as the author (2009: p. 172) even says: “his character of endless game shows, by analogy, that any attempt to require recent standards, able to decide without any redress, on the” smoothness “of the game, about whether the game is still being played or if it is being done only in appearance, requires criteria that are not within the system, but somehow, out of it”. Well, so therein lies the placement of every speech is endowed with ideology, and given the impossibility of leaving the ideological limit, it does not give the right to become irrational and accessible the legitimacy of legal discourse, considering that for formal pragmatic need to allow participants the communication understand each other about something that the world puts; soon, culminates in the proposal for a new rationality, understood as provision of subject capable of producing and grasp the meanings of language-cognitive process, while enabling the social order.
Finally, as a producer of cultural discourses is also able to manage the competency of the individual in order to lead you to a know-how choices, analyze, share, but, above all, experience it with ethics and critical thinking. Therefore, an experiment of knowledge, which would boost the perception of culture and would relativize the standards and values of the norm of each society, taking into account the know-how which, moreover, understands the aesthetic experiences and stesic of this same society.
References
ABBAGNANO, Nicola. Dicionário de filosofia. Tradução de Alfredo Bosi. São Paulo: Martins Fontes, 2003.
ARAÚJO, Inês Lacerda. Do signo ao discurso. Introdução à filosofia da linguagem. São Paulo: Editora Parábola Editorial, 2004.
BITTAR, Eduardo C.B. Linguagem jurídica. 5. ed. São Paulo: Saraiva, 2010.
BOBBIO, Norberto. Teoria da Norma Jurídica. Tradução de Ariani BuenoSudatti e Fernando Pavan Baptista; apresentação de Alaôr Caffé Alves. São Paulo: EDIPRO, 5. Ed., revista. 1. reimp. 2014.
FERRAZ, Jr. Tercio Sampaio. Teoria da norma jurídica: ensaio de pragmática da comunicação normativa. Rio de Janeiro, Forense, 2009.
GREIMAS, A. J.; Courtés, J. Dicionário de Semiótica. São Paulo: Contexto, 2008.
HABERMAS, Jürgen. Consciência moral e agir comunicativo. 2ª. ed. Rio de Janeiro: Tempo. Brasileiro, 2003.
LANDOWSKI, Eric. Presenças do Outro. Ensaios de Sociossemiótica. São Paulo: Editora Perspectiva. S.A., 2002.
LANDOWSKI, Eric. Sociedade Refletida. Ensaios de sociossemiótica. São Paulo: Editora da PUC-SP, 1992.
PEREIRA, Ricardo Souza. A Linguagem Jurídica. Conteudo Juridico, Brasilia-DF: 10 mar. 2012. . Acesso em: 01 maio 2014.
ROBLES, Gregorio. O Direito como texto. Quatro estudos de Teoria Comunicacional do Direito. Tradução de Roberto Barbosa Alves. Barueri, São Paulo: Manole, 2005.
SANTAELLA, Lucia. O que é Semiótica. São Paulo: Brasiliense, 2003.