Planning Facts Through Law: Legal Reasonableness as Creative Indexicality and Trans-categorical Re-configuration

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.