International Journal for the Semiotics of Law I V / l l [1991]

SEMIOTIC SCEPTICISM: A RESPONSE TO NEIL MacCORMICK

by
BERNARD S. JACKSON
University of Liverpool, U.K.

Neil MacCormick divides his characteristically witty and rob-

ust contribution into two sections. In each, he identifies a fallacy
which he attributes to my version of semiotics. The first, the
"Shandy Fallacy", seems to me to rest primarily upon misunder-
.standings; here, the debate may serve to identify what is the under-
lying theoretical issue between semiotics in the Saussurean tradition
and correspondence theory. MacCormick's second section, the
"Reference Fallacy", is of a quite different order. There is little
misunderstanding here; the issues are joined very directly. MacCor-
mick claims, against me, that the justificatory force of the norma-
tive syllogism does not rest upon any relationship of reference. My
response is that, if this is so, there is an unresolved weakness in its
theory of the Rule of Law.

First, the "Shandy Fallacy". In his introduction, MacCormick

summarises this as the issue of "how far narrativity accounts for all
we want to know about law and life." He expands this into two
questions: "Can a 'correspondence' theory of truth still be sustained
after the work of Jackson and others? Is there anything 'out there"
beyond the stories we tell?" In my view, the general question and its
two expansions raise distinguishable issues, which I shall refer to,
for convenience, as the questions of narrativity, correspondence and
reality. Impliedly, MacCormick attributes to semiotics a sceptical
position on each of these. It is the extent and coherence of semiotic
scepticism which is here at stake.
176 BERNARD S. JACKSON

The Question of Reality

On the question of reality ("Is there anything 'out there' beyond

the stories we tell?"), the semiotician is not sceptical at all. Any
implication that the semiotician sees no difference between "factual
d i s c o u r s e " and "fictional discourse", between real persons and
fictional characters in a novel, is quite wrong. But MacCormick's
example actually goes beyond this claim:
David Lodge the author is in my opinion a real person. That is, I think
there is currently alive in England a man who answers to that name,
who has held a chair in Birmingham University, who is listed in Who's
Who, whose birth certificate could be obtained from Somerset House
or suchlike a place; somebody whom I could go and visit and look at
and talk to and hear, someone whose flesh I could touch (probably by
some decorous and appropriate act such as shaking his hand on first
meeting). To think of someone as a real person is to envisage such
experiences as practically possible even if unlikely to occur.
MacCormick here addresses also the epistemological question: how
do we know that David Lodge is a real person. The proof resides in
our capacity to envisage such an experience as visiting and talking to
David Lodge as practically possible. Thus, the proof of the outside
reality is taken to be an inner e x p e r i e n c e - not the external fact of
the possibility of meeting and talking to David Lodge, but our
experience of it. Once we enter the epistemological sphere, we are
asking semiotic questions, questions of how we make sense of the
data of reality. And here, the link with the questions of narrativity
and correspondence do emerge. The semiotician will answer that
such "experiences" as "a visit with David Lodge" involve the pro-
cessing of sense data from the outside world through the framework
of our sense-making mechanisms, and that these mechanisms include
" n a r r a t i v i t y " (in senses to be clarified below); conversely, for the
semiotician, "correspondence" is not the means by which we are able
to assert the reality of the outside world, but rather is a claim
which we make in discourse about the status of our knowledge (ar-
rived at in other ways).
Towards the end of this argument, MacCormick comes close to
conceding this point:
Narrative may be evidence of truth, but the meaning of truth is
correspondence: the degree of coherence of the narratives that we
construct, both about the case itself and about the way the available
 SEMIOTIC SCEPTICISM: RESPONSE TO NEIL MacCORMICK 177

first-order narratives about the case are put together by their narrators.
... But none of this affects what it means for a true account to be true. It
bears only on how we can judge of the truth.
But what, exactly, does MacCormick mean by "what it means for a
true account to be true". At this point, a second clarification of semi-
otic scepticism becomes necessary. Semiotics does not claim that
truth-claims are senseless or incoherent. It fully accepts that we
have the experience of believing that facts exist and that propo-
sitions can be true, and it seeks, just as seriously as the philosophy of
language, to specify what we mean by such statements (what sense
they make) and in what circumstances they are, and can intelligibly
be, made. It is the content of the answers to those questions which
divide the semiotician from the correspondence theorist. For the
semiotician, "what it means for a true account to be true" is exactly
the same as for the correspondence theorist; the proposition that
"facts X are true" makes the following sense: "the sense of the words
within the proposition asserted to refer to facts X do correspond to
that reality in the outside world to which they claim to refer." But
for the semiotician, the correspondence can have no greater status
than that of a discursive claim (though one, no doubt, which may be
true, is certainly very strongly believed, and is acted upon with con-
siderable consequences). For the correspondence theorist, on the
other hand, "what it means for a true account to be true" is that there
must, in fact, exist a correspondence between the sense of the words
and the outside reality.

The Question of Correspondence

If the semiotician is, to this extent, sceptical about the notion of

truth, it is a scepticism based upon a fundamental view of the pos-
sible relationships between signifying systems (not simply language)
and outside reality. This problematic is most directly expressed in
discussion of the concept of "reference". For the semiotic account of
truth-claims made in discourse implies two levels of correspond-
e n c e - a correspondence theory of meaning and a correspondence
theory of truth. The latter is dependent upon the former, and if the
former is shown to have only the status of a discursive truth-claim
then the latter can be accorded no greater status.
When we say that "the sense of the words in the proposition
178 BERNARD S. JACKSON

which refer to X do correspond to facts X in the outside world", we

beg the vexed question of reference. Even if we adopt the view that
sense is dependent upon reference, viz., that the sense of words is a
function of that to which they refer in the outside world, we would
still have the problem of knowing the meaning of that to which
they refer in the outside w o r l d - unless we adopt the naive and
outdated view that the outside world is able somehow to impress
itself upon our senses without change or remainder. The alternative
view of reference, to which both semiotics and some branches of
analytical philosophy (e.g. Strawson) are committed, is that sense
is not d e p e n d e n t u p o n reference, but rather that reference is
something which we do with a sense already constructed. Incor-
poration of this understanding within our account of "what it means
for a true account to be true",requires something like the following:
The sense of the words which we use in order to point to phenomena in
the outside world corresponds to those actual phenomena in the
outside world to which we thereby point.
W h a t , in this context, can " c o r r e s p o n d e n c e " mean? Can two
phenomena "correspond" if they exist in quite different ontological
spheres - - here the sphere of meaning (humanly experienced) on the
one hand, of outside reality on the other? To this, the correspond-
ence theorist may perhaps reply: I do not claim correspondence with
some reality totally outside h u m a n experience, but with outside
reality as humanly experienced. MacCormick appears to make some
concession in this direction. On the one hand, he says:
The Life of Brian can never be exactly the life of Brian,
which concedes, at least, that a narrative account (in his sense, to be
discussed below) can never correspond absolutely to that to which it
refers. However, MacCormick wishes to restrict any such scepticism
about correspondence, and he does so by deploying a distinction
between "brute" and "institutional" facts:
To believe that there is now a living person A B is to believe that certain
brute sensory experiences of a human being are available to others in
her/his vicinity now, that the human being so experienceable is biolo-
gically continuous with a baby once borne by some woman about nine
months after the occurrence of intercourse between her and some
man, and to believe that "A B" is acknowledged by her/him and/or
neighbouring and related persons as "her [his] name" - - a matter of in-
stitutional fact.
 SEMIOTIC SCEPTICISM: RESPONSE TO NEIL MacCORMICK 179

At root, MacCormick believes that there are "brute facts" in the

world which we can experience without the intervention of such
sense-making mechanisms as might challenge the claim to the
ontological status of correspondence. One does not have to be a
semiotician to argue that, in terms of MacCormick's example, "the
h u m a n being so experienceable" is not the same, ontologically, as
"the h u m a n being (in the outside world)". Semiotics within the
Saussurean tradition, however, has special reason for that form of
scepticism. Its alternative to the view that sense is dependent upon
reference is that sense is a matter of relations between different
elements within a single significatory system, and that such systems
are human products encompassing both human nature and the con-
structions of human society. Though the semiotician is not sceptical
about the existence of a world of reality, the elements within that
world of reality [experienced b y us as signifiers] make sense only
through the mediation of human significatory systems. There can,
therefore, be no verifiable correspondence relationship between our
language and the outside reality, since our only access to the outside
reality, our only w a y of making sense of it, is mediated through sig-
nificatory systems. Regrettably, therefore, it is not possible to
accede to MacCormick's "salutary truism" that
the truth or falsity of assertions of fact either in history or in legal
evidence is a matter of correspondence or non-correspondence with
events that did or did not happen: for this purpose, "p" is true if and
only if p
.unless "a matter of correspondence or non-correspondence" is under-
stood to mean "the making of claims as to the correspondence or non-
correspondence".
MacCormick m a y rightly d e m a n d an alternative, and intelli-
gible, re-analysis of his example:
"Madeleine Smith committed murder but was acquitted" is true if and
only if Madeleine Smith did commit murder and Madeleine Smith was
acquitted.
Here, "Madeleine Smith committed murder but was acquitted" is the
proposition, "p"; its assertion is true if and only if facts in the outside
world actually occurred, namely "Madeleine Smith did commit mur-
der and Madeleine Smith was acquitted" (p). MacCormick accepts,
of course, that the truth-claim that '~Madeleine Smith w a s
acquitted" is the claim to the truth of an institutional (not a "brute")
180 BERNARD S. JACKSON

fact, even though "the evidence for the latter proposition is so strong
as to be barely rebuttable". By this, he appears to mean that the
brute fact that a certain person stood u p in a certain place and pro-
nounced the words "not guilty" did actually occur and that, according
to the institutional conventions accepted by this discursive audience,
the meaning of that utterance was an acquittal. MacCormick might
also argue that "'commit murder" within the truth condition "if and
only if Madeleine Smith did commit murder" is also an institutional
fact, but one based upon the brute fact of a killing. However, the
semiotician is not bound to accept as "brute" (if that means, unmedi-
ated by significatory systems) either the notion of "killing", or the
utterance of "not guilty" (or even the experiencing of the person of
Madeleine Smith). A semiotic version of this example of truth
conditions might be the following:
"Madeleine Smith committed murder but was acquitted" is conven-
tionally qualified as (what we mean by) true if and only if (the person w e
refer to as) Madeleine Smith did commit (what we understand as)
murder and (the person we refer to as) Madeleine Smith was (what w e
mean by) acquitted.
This comes quite close to being a tautology. If it is not such, the
reason must reside in those elements which have not yet been
analysed in semiotic terms, namely the qualifications of "p" and p.
It is noteworthy that MacCormick refers to "p" (in his "salutary tru-
ism") as an "assertion of fact". This, I believe, is important. The
truth-claim resides not in the proposition itself, but in the act of
asserting the proposition to be true. Just as, according to the argu-
ment of Strawson, reference is something which we do with meaning
(using it to point to that which we intend), so too truth is a function
not of propositions, but of their assertion. As to the status of p,
MacCormick is somewhat more equivocal. In his "salutary truism", p
is an "'event that did or did not happen" (with which the assertion
must correspond); when discussing the example of Madeleine Smith,
however, he tells us that "students of the history of Glasgow and of
famous Scottish trials will in this case know that the evidence for
the latter proposition [viz., that Madeleine Smith was acquitted] is
so strong as to be barely rebuttable". Of course, for MacCormick there
may be no significant difference between p as an event and p as a
proposition. For the semiotician, on the other hand, such an
identification presupposes the view that events can be expressed in
 SEMIOTIC SCEPTICISM: RESPONSE TO NEIL MacCORMICK 181

language without in any way altering (or constructing) their sense. A

claim that:
Assertion "p" corresponds to event p
would not be tautologous, but for the semiotician it would not be
intelligible, insofar as it claims an unmediated experience of event
p. On the other hand, to the semiotician, the claim:
Assertion "p" corresponds to proposition p
would not be unintelligible but might appear to be tautologous. To
rescue it from such tautology, we must add various pragmatic fea-
tures outside the problematic of correspondence, including the com-
m u n i c a t i o n , as part of the assertion, of sincerity and credibility
conditions, plus the translation of "is true" from a correspondence to a
coherence relationship. A full statement, in terms of MacCormick's
example, might therefore be formulated thus:
The assertion "'Madeleine Smith committed murder but was acquitted'
is true" means: (a) we accept that its assertor sincerely claims that
Madeleine Smith actually did commit murder and Madeleine Smith
was acquitted if the making of that assertion coheres with our narrative
typifications of the making of sincere assertions; and (b) we accept that
the sense of that assertion ought to be believed, if its sense coheres
with our narrative typifications of both human action in the world and
the ways in which such actions are proved to our satisfaction.

The Question of Narrative

M a c C o r m i c k ' s remarks about narrativity do not, in m y view,

provide a satisfactory account of the semiotic view of this matter,
and therefore his rebuttal seems, here at least, off target. However,
a clarification of these matters may usefully supplement what has
been argued above, in respect of the distinctions between historical
(or factual) and fictional discourse on the one hand, and between
brute and institutional facts on the other.
But first, a more basic clarification. No version of semiotics
with which I am familiar claims that "narrativity alone accounts
for all we want to know about law and life." Even the most encom-
passing claims made by semiotics would assert only the universality
of certain semio-narrative structures, not as a complete account of the
construction of sense, but rather as necessary (but insufficient) condi-
182 BERNARD S. JACKSON

tions of such construction. MacCormick himself suggests that "the

common structural properties of narratives belonging to different
types is more significant than the differences deriving from the
pragmatics of their differentiated u t t e r a n c e - - and the different
criteria of truth therefore applicable in assessing them."
Allied to this observation is the need to distinguish between
different levels of narrative analysis. The "semio-narrative" level
in Greimas's grammar is not at all the same level as that which I
have described in terms of "narrative typifications of action", and it
is the latter which is closer to MacCormick's own understanding of
"narrative coherence" as a legitimate form of argument towards the
discovery and justification of disputed facts. The semio-narrative
l e v e l , on the other h a n d (classically expressed w i t h i n the
Greimasian tradition as the sequence: contract, performance, recog-
nition) is the underlying grammar of such narrative typifications,
without which they would not make sense (but without more than
which they would lack content). The semio-narrative level is thus a
very basic grammatical structure, like the rules within a language
for the sequence of words. Such words alone cannot generate mean-
ingful texts, but texts whose words each belong to a system of sem-
antics would not make sense, if uttered in random sequence, or some
sequence not sufficiently coherent with the underlying grammar.
Even "brute facts", such as our experience of persons, depends
upon our sense-making capacities, of which semio-narrative struc-
tures are claimed to form an important part. It m a y be true that
"there must be some living of the life before there can be any telling
of it", but "living of the life" must include making sense of the life;
life does not come packaged with its self-evident sense. MacCormick
himself seems to make a vital concession in this direction:
Our idea of what could be a credible account of actual events, whether
for the purposes of historiography or for those of proof of facts in a
court of law, must be at least partly dependent upon the kinds of
account fiction has taught us to find credible.
From this, it appears that MacCormick accepts a very limited
version of the narrative claim. His version is limited in that it is
directed to the making sense of ~'actual events" (in context, complex
sequences of events, rather than individual phenomena which we
experience); secondly, he sees it as contributing not to some universal
semio-narrative grammar, but rather to social knowledge which has
 SEMIOTIC SCEPTICISM: RESPONSE TO NElL MacCORMICK 183

been conveyed in fictional form. My version of narrative theory

equally stresses the role of narrativised social knowledge (in which,
h o w e v e r , fictional forms have no particular privilege), but sees
these narrative typifications as but one possible manifestation of
semio-narrative grammar.
MacCormick has been known to argue (though only implicitly in
his present contribution) that narrative coherence is indeed good
evidence of actual events in the outside world because narrative
coherence claims coherence to that which we do actually experience
as the narrative events of everyday life. The correspondence gap is
thus bridged by a claim to the factual authenticity of the narrative
structures which we deploy. A particular narrative framework is
credible insofar as it corresponds to our experience of what actually
goes on in the outside world. Unfortunately, this form of corres-
pondence claim falls foul of exactly the same objections as have been
rehearsed above in relation to traditional correspondence theory.
We have no unmediated access to actual experience of everyday life
or the outside world, with which our narrativised accounts can be
said to correspond.
More interesting, perhaps, are the implications of narrative
theory for two of the distinctions crucial to MacCormick's argument,
those between factual and fictional discourse on the one hand, and
between brute and institutional facts on the other.
MacCormick appears to imply that, for the semiotician, the
difference between factual and fictional discourse resides only in the
nature of the evidence:
So the difference between opining that a certain name is the name of a
now living or once living person and opining that a name is that of
someone who lives or lived only in fiction is not necessarily a difference
in the evidence you have. It is a difference in how you read that
evidence.
But in fact, the difference between these two forms of discourse goes
beyond even " h o w you read that evidence". I agree entirely with
MacCormick that:
History and historical biography are one kind of narrative; novels and
fictional biography (Flashman, by G. M. Fraser is an example of this) a
different kind.
The different ways of appropriately reading the discourse are the
result of acceptance that the discourse falls within one category of
184 BERNARD S. JACKSON

sense-making rather than another. MacCormick approaches this

idea when he argues that the difference between the two kinds of
discourse
corresponds to ... a pragmatic difference in the acts of issuing works of
the former or the latter sort, and of responding to critical comments
thereon, and the like; it also corresponds to a difference of response
appropriate in the reader.
It is interesting that the differences between historical and fictional
discourse which MacCormick identifies are all located on the
pragmatic level: the actions of authors, critics, audience. We might
say that, in the case of literature, the author communicates not a
t r u t h - v i a - c o r r e s p o n d e n c e - c l a i m , but rather what (for want of a
better term) may be called a literature-claim. For the semiotician,
these are claims of the s a m e type and status: they are meta-
messages, messages about the status of the primary message, part of
what I would regard as the communication of modalities. They do,
indeed, have significant consequences for the w a y in which we read
the material. But they tell us nothing "essential" about the nature of
the discourse, only what it claims to do, how it demands to be read.
Finally, we should seek to relate our concept of narrativity to
M a c C o r m i c k ' s distinction between brute and institutional facts. I
have suggested above that there is no such thing as truly " b r u t e "
facts but rather that experience makes sense to us, even immedi-
ately, through the medium of our sense-constructing mechanisms.
We acquire social knowledge by internalising narrative typifi-
cations of action, these narrative typifications themselves meeting
the necessary conditions of intelligibility insofar as they manifest
d e e p , semio-narrative structures. This internalised social know-
ledge provides frames for our interpretation of sense-data, and
converts the raw impact of sensory phenomena upon our neural
system into something intelligible as "experience". In the case of
"institutional" fact, the frameworks provided by social knowledge
require the use of more explicit institutive and terminative acts, and
involve more definite, and heavily "sanctioned" (in the semiotic
sense) social consequences. But this structure, of institutive, con-
sequential and terminative r u l e s - - to which MacCormick has
drawn attention in his proposal that we view law as institutional
f a c t - - itself represents one particular manifestation of the semio-
narrative grammar. In Semiotics and Legal Theory (1985:168-175), I
 SEMIOTIC SCEPTICISM: RESPONSE TO NEIL MacCORMICK 185

suggested that the institutive rules manifest the semiotic function of

"contract", that the consequential rules manifest that of "perfor-
m a n c e " and the terminative rules manifest (at least one form of)
"recognition". On that basis, I suggested that legal discourse differs
from other forms of discourse (and certainly literary) discourse in the
following respect: in law, the recognition processes are directed at
those elements which make up "competence", since the satisfaction
of those conditions (the ones which make up MacCormick's instit-
tional rules) necessarily entails the "performance" (the consequences
of instituting an instance of the institution, as defined by the "conse-
quential rules"); whereas in non-legal discourse the recognition of
competence does not entail the recognition of performance; the latter
must therefore be separately recognised. This particular analysis
m a y well be disputable, and the issue wilt be debated further in a
later issue of this journal. For the moment, however, it suffices to
claim that semio-narrative structures underlie the intelligibility of
the legal institution, as a sense-constructing mechanism within soci-
ety.
I may therefore summarise m y reaction to the "Shandy fallacy"
as follows: narrativity does not, and has never been claimed to,
"account for all we want to know about law and life". However, the
semiotic concept of narrativity, as opposed to MacCormick's re-
stricted use of the concept of narrative coherence as an instrument
within practical reasoning, is implicated in the construction of sense
far more widely than MacCormick would allow. It underlies our
construction of facts, whether they be brute or institutional, and it
underlies the pragmatic activity of making truth-claims. There is,
i n d e e d , plenty '~out there" beyond the stories we tell, but corres-
pondence theory, which stands ideologically to the western concept
of rationality much as the Rule of Law stands to normative justifi-
cation, cannot prove it.

II

In the second part of his contribution, MacCormick attacks the

argument of chapter 2 of m y Law, Fact and Narrative Coherence
(1988). Here, I have little quarrel with his understanding of the
argument which he attacks.
Agreeing with m y argument that the justificatory force of the
186 BERNARD S. JACKSON

normative syllogism, as manifesting the ideology of the Rule of

Law, cannot be based upon any claim that the universal predicates
within the major premiss "refer" to the facts of the minor premiss,
MacCormick nevertheless seeks to rescue the Rule of Law, by pro-
posing a different relationship between the major and minor:
The problem of matching major and minor premises in a normative
syllogism is the problem of securing sameness of sense of the
predicates deployed in both.
The problem, he claims, is not one of reference, but rather one of
s~nse.
It should be noted, however, that the version of the Rule of Law
which MacCormick's analysis generates is substantially different
from that which, I argued, required a form of reference. According to
the referential view, as MacCormick formulates it,
If we are concerned about the rule of law, and hope that no case is
decided save as provided for in a rule made and announced in
advance, how can we understand rules as "providing for" outcomes if
enunciated without reference to any particular cases?
The emphasis here is on the fact that the rule is " m a d e and an-
nounced in advance". But this temporal quality, this prospectivity
of the rule of law, is lost in MacCormick's alternative version:
The point, of course, is that interpretative and qualificative decisions
have to be made in so constructing a syllogism (or a more informal
deductive argument) that all predicates in it are used unequivocally,
that is, in the same sense throughout. Unless interpretative and
qualificative decisions can themselves be based on sound arguments,
not all of them deductive arguments, the deductivity of legal reasoning
(its reconstructabiUty in terms of the normative syllogism) would be
perfectly compatible with a substantial degree of arbitrariness in
decision making, and no very good guarantor of the rule of law.
Of course, that prospectivity which I stressed as a crucial feature of
the justificatory force of the normative syllogism would not be lost if
M a c C o r m i c k ' s claim, here, was that the senses of the predicates
which are required to be unequivocal were, on the one hand, the
original sense of the predicate used in the major premiss w the sense
it bore within its original, legislative discourse - - and, on the other
h a n d , the sense of the predicate qualifying the facts within the
minor premiss, as established by the court. But this is not MacCor-
mick's claim. His claim is that the sense of the predicate used in the
 SEMIOTIC SCEPTICISM: RESPONSE TO NEIL MacCORMICK 187

major premiss is the result of an interpretative decision made by the

court. We m a y applaud this realism on MacCormick's part, and
indeed support his argument on semiotic grounds. But if so, a lot more
needs to be d o n e to establish that temporal relation which
(MacCormick does not appear to deny) is crucial to justification.
MacCormick argues in terms of an example I offered of a
normative syllogism, being an adaptation of the classical example
of the aletheic syllogism, relating to the law of blasphemy and the
case of Socrates. MacCormick develops this example in order to
suggest some relationships between narrativity, interpretation and
deduction. His argument has always been that deduction forms a
crucial part of the justificatory process of legal argument, even
though it does not account for those elements of legal reasoning
which contribute towards the specification of the predicates (by
what he here calls "interpretative and qualificative decisions"). In
his account of such "interpretative decisions" (taken by the judge in
specifying the sense of the predicate of the major premiss) MacCor-
mick seeks to distance himself from any reliance upon legislative
intention, or at least upon any notion of legislative reference:
Only an odd and pretty well universally discredited theory of inter-
pretation would hold that the only or the correct or the best approach to
interpretation of the sense of predicates like "blaspheming the gods" in
such controversial contexts requires us to ask what the historic legis-
lator referred to when he/she/they/it used the term "B" in framing this
provision of criminal law.
Impliedly, MacCormick attemps to rescue the lost temporality of
the rule of law by identifying the sense of the predicate of the major
premiss with the sense intended by the legislator, even while
denying that the mind of the legislator was directed towards such
specific events in the future as might justify our use of the concept of
reference. However, any claim made by a judge as to the intention of
the legislator in using the legislative words with a particular sense
m a y be met by the response that it is still the judge who (in the
"interpretative decision") is now re-creating or re-presenting the
sense of the other (legislative) discourse, together with a truth-
claim that this was truly the sense intended by the legislator. But
since any such truth-claim is based on a correspondence claim (that
the words used by the judge to represent the sense of the original
discourse correspond to that sense: that the meaning of "the legis-
188 BERNARD S. JACKSON

lator" as constructed in the discourse of the judge corresponds to "the

legislator"): thus, the temporal gap cannot be bridged in this way.
As indicated in the argument above about the nature of correspon-
dence-claims, we have no unmediated access to the "original sense"
of the legislative words.
By concentrating upon a "hard case", one which poses, in addi-
tion to the logical problems of the normative syllogism, the problem
of specification of the sense of the major premiss, MacCormick argues
from what must, for him, be the most difficult position. One does not
have to be a semiotician, sceptical about reference, to deny here the
temporal version of the rule of law. Such a denial is implicit even in
the analysis of Kelsen (in the final chapter of Pure Theory, and in
his later works), where the legal validity of interpretation (what
Kelsen calls "authentic interpretation") does not depend upon
conformity with any "semantic frame" which represents the sense of
the legislative norm, but rather from the authority of the judge to
make such "interpretative decisions". Indeed, "authentic inter-
pretation" is valid just as much when the judge decides to interpret
outside the semantic frame as within it.
Might we, however, put °'hard cases" aside for the moment, and
argue that MacCormick's analysis does apply to easy cases, in a way
which will rescue the lost temporality of the normative syllogism?
Might we not say, when no question of interpretation is posed, that it
is indeed the original sense of the predicate of the major premiss
which is the same as the sense of the equivalent predicate within
the minor premiss? That, certainly, would be a conventional view,
and one which, I have argued, is implicit in the legal philosophy in
H.L.A. Hart, who speaks of a "crisis of communication~ in difficult
cases, thereby implying that genuine communication from the legis-
lator to the judge is indeed desirable, and that in the everyday,
"easy" case, it actually occurs.
This is certainly a stronger case for MacCormick than the ground
from which he argues. But even here, there is a crucial weakness.
Even in "easy" cases, the sense of the predicate of the major pre-
m i s s - however literal we may take its meaning to b e - is not
inherent, but rather is a matter of conventional acceptance. Literal
meaning is not conventional meaning which is incontrovertible~
rather, it is conventional meaning which has not been controverted.
The judge always has the capacity to controvert the literal meaning,
 SEMIOTIC SCEPTICISM: RESPONSE TO NElL MacCORMICK 189

to render the "easy" case "hard". When he omits to do so, but accepts
the conventional meaning which he ascribes to the legislative dis-
course, that is as much a decision (and a responsibility) on his part
as is a decision in the opposite direction. At best, in such an "easy "
case, there m a y rest u p o n him a lesser b u r d e n of justificatory
argument. He may rely upon the presumption (as constructed and
maintained within judicial discourse) that literal meaning has some
form of presumptive force.
This suggests that the difference between " h a r d " and "easy"
cases is less than my attempt to rescue MacCormick might have sug-
gested, and this v i e w - that the difference is one of degree rather
than k i n d - is one gaining considerable support in contemporary
jurisprudence. It may be supported, in conclusion, by the following
semiotic considerations, directed towards MacCormick~s notion of
the unequivocality of the sense of the two predicates. MacCormick
argues:
Always there has to be an at least implicit decision to treat the facts
actually averred or proven as properly qualified or characterised by the
predicate ~B' in the sense in which this term is used in the relevant legal
proposition stated or presupposed as legal ground of the decision (the
major premiss of a normative syllogism). The specific case referred to
by the decision maker then counts as an instantiation of the relevant
legal universal, and this justifies the decision of the case, assuming it to
be the duty of the decision-maker to act according to the relevant rule.
But h o w can the judge gain access to the sense in which predicate '~B'~
is used in the relevant legal proposition stated or presupposed? The
judge is not a participant in either legislative or doctrinal discourse.
He is engaged in adjudicatory discourse, within which often severe-
ly practical outcomes depend upon the decision. I have argued else-
w h e r e that, for this and other reasons~ adjudicatory discourse is
semiotically distinct from legislative and doctrinal discourse. It is
subject to different semiotic constraints (for example, the judge cannot
say that there is no answer) and the narrative construction of the
activity of the judge (the narrative typification of good adjudica-
tory behaviour) is different from that of the legislator or legal
writer, even though it is part of the narrative construction of the
judge that he should make justificatory claims, explicitly or impli-
citly, in terms of (a temporal version of) the rule of law. The rea-
lity, however, is different. If we adhere to the Saussurean tradi-
tion, according to which sense is a function of relations within a sig-
190 BERNARD S. JACKSON

nificatory system, and if the significatory systems of legislation,

doctrine and adjudication are different, then even a sense of predi-
cate "B" attributed in judicial discourse to the "relevant legal propo-
sition stated or presupposed" takes its meaning from the judicial
construction of that other discourse, not from the other discourse it-
self.
It is, of course, quite possible within one discourse to make claims
about sense within a different discourse. But this problem, of inter-
d i s c u r s i v i t y , is logically no different from that of reference.
According to the former, correspondence claims are made between the
sense of one discourse and the sense attributed to another discourse,
even though that latter sense has to be constructed within the former
discourse; in the latter, correspondence claims are made between
discourse and the outside world, when the sense of the outside world
is itself constructed within the discourse.
There is, however, some consolation for MacCormick and other
traditionalists. It is part of the narrative typification of good adju-
dicatory behaviour that the judge should not give any credence to
the insights of semiotics, but rather should act as if he sincerely
believes in truth-semantics, the correspondence theory of meaning,
and the temporal version of the Rule of Law.