Human communication is multi-layered, as our language relies on complicated systems of signification; for example uttering a given statement using specific terminology might indicate the ideological tendencies of the speaker. And like any other communicative system, law is also multi-layered. This multi-layered nature is born at the moment of drafting or passing a judgement, and reconfigured through interpretation, application and even communication throughout the lifetime of the rule or the judgement. For example: the rule that forbids stealing infers an understanding of a given sanctity of property. Such sanctity was presumed at the moment of drafting and resumed further meaning and depth as the rule was implemented, transplanted, and developed.
Roland Barthes is a French theorist (1915–1980) whose work discussed the sociology of signs, symbols and collective representations among other topics. In his book Mythologies, Barthes undertakes a semiotic commentary of popular cultural objects well known in the French community such as steak and chips, wrestling, and even soap power and detergents; unearthing the symbolic value of these objects in relation to their claim of universality, at times finding that some objects retain significations interrelated with the bourgeoisie and capitalist cultures. He resolves to call the cultural power of these objects ‘myths’.
The study of myth, as understood by Barthes, is often undertaken under the field of semiotics, which can be defined as a method of inquiry into the implicit signs present in the mental element of interaction with nature, or within a community. To this end, semiological analysis can be said to be the study of meanings that are present in our day-to-day systems of communication and signification. The object of study in semiotics is not the signs but rather a general theory of signification, where the semiotician builds models of the conditions of production and reception of meaning. Semiotics are in everything that can be taken as a sign: the purring of a cat to indicate its happiness, the signature as a sign of acceptance, or the image of Marx as a sign of socialism. Such relations are often internalised outside our logocentric rationality, otherwise known as our casual use of language. The power of such signs, very much like language, is that they shape some aspects of our perception of a given topic, implicitly guiding individual or collective approaches and opinions in relation to a given subject matter.
Law can be seen as system of signification interacting with other systems of signification. Such a perception is implied by Lawrence Friedman in his seminal work on the legal system where he frames legal acts as ‘messages exchanged between legal and other co-existing social systems’ and ‘each kind of legal system persuades through its structure and style and with its own special rhetorical force’. This form of signification is linked with the premises of legal legitimacy. Conversely, the idea of law as system of signification is featured in Teubner’s conception of law as an autopoietic system where he discusses the self-referential nature of law.
Barthes follows up on the school of semiotics established by Ferdinand de Saussure for whom the building blocks of semiotics are found in a dyadic model of: (1) the signified; ‘the “something” which is meant by the person who uses the sign’ (Barthes1967: 43); (2) the signifier; the mediator which is used to infer the signified; and together they constitute the sign. Therein, one can infer the signified upon interacting with the signifier. For example: in the act of gifting a lover a flower; flower is the signifier of passion, passion is the signified and together they form the sign intended in the communicative act of gifting a lover a flower. To Barthes, these relations constitute only the first-order semiotic system’ Looking beyond into the interactions of signification hidden in our complex notions of culture and political identity, among other things, he loosely develops on the work of Hjelmslev, Danish linguist, who finds that these relations constitute a part of a second-level semiotic system where the sign as whole is only a mere signifier; this second-level system forms a plane of expression where we interact with connotation, metalanguage and indeed, myth. Accordingly, myths are signs that are imbedded within our systems of signification and expressed in communication, and their study allows us to demonstrate how given social symbols mould into the fabric of the collective consciousness.
As second-level systems of signification, myths are constructed by means of attaching a ‘meaning’ to a ‘form’. The form is usually empty, like a given legal structure, or symbolic reference to an institution, or a natural occurrence. Unlike first-level semiotic interactions, this construction often involves direct or implicit motivations. However, given the abstracted nature of myths such motivations are often very much fragmented. When the myth is read — at first hindsight — the motive does not show itself as the myth freezes this linkage of meaning and form. In effect, myths appear as natural, as they implicitly undertake the task of giving a historical intention a natural justification or ‘making contingency appear eternal’ (Barthes 1973: 155). In doing so, myth empties reality and presents itself as depoliticised speech abolishing ‘the complexity of human acts’ (Barthes 1973:156). Nevertheless, myths do not hide from our perception the relations of significations existing on the first level, rather they distort them by adding another layer of meaning to the form (Barthes 1973: 131). On a relevant note, Metalanguage, which defined as the operation of description, results from the internalisation of myths and other connotative second-order semiotic structures in our way of thought, constituting a part of the collective consciousness of a given group at some level. The globalisation of media has exacerbated the elements of our shared metalanguage.
For example, Barthes refers to a magazine cover of Paris-Match in the 1960s portraying a black man wearing a French uniform while saluting. Such a representation is meant to establish a motivated myth that connotes: ‘France is a great empire, without any discrimination amongst its citizens (especially those who are victims of its colonialization)’ or in other words to normalise the relations denoted by the picture, as constructed by the conjuncture of meaning which is the black man himself with all of his struggles and the form which is the symbol of the army. Thereby the motivated myth present in the image distorted reality at a second-level semiotics, which as Umberto Eco noted can be artfully used for the purposes of lying.
In law, myths can constitute the presumptions upon which a given normative judgement was construed; for example, arbitration tribunals often seem to build on the presumption that the interest of the investor is to maximise wealth, as conveyed by the shareholder value rule. The shareholder value rule, which denotes that the purpose of the corporation is to maximise profits in adherence to the best interest of the shareholders, is mostly kept up by market forces and is lacking in normative basis; this view is outlined by the established American scholar Lyn Stout in her work on ‘The Shareholder Value Myth’. In this case, the form is the legitimacy claim of the normative structure, the meaning is profit maximisation and the motivation stems from liberal economics or more explicit notions of the invisible hand of the marked. On the other hand, the legitimacy of some given rules can be construed as myths, as shown in Jean d’Aspremont’s work ‘International Law as a Belief System’ and Peter Fitzpatrick’s ‘The Mythology of Modern Law’. Moreover, cultural and political myth take part in shaping the legal episteme, indirectly shaping legal discourses, especially given the contemporary proliferation of myths facilitated by the excess generation of ‘fast-food’ knowledge shared in the media, as ‘myth is speech justified in excess’ (Barthes 1973:141).
Barthes demonstrates that myth essentially aims at causing an immediate impression and, as such, reading is myth ‘exhausted at one stroke’ (Barthes 1973: 141). To decipher a myth, one simply needs to reflect over the form and meaning as read in relation to the context in which they were generated and communicated, keeping in mind the question as to its motivation. Barthes finds that deciphering myth lends itself to history, as it allows one to reflect on the existing notions that claim to be ‘natural’ and ‘universal’ despite their origin. Specifically he finds that many of the cultural symbols that he assessed have embedded connotations that normalise the reasoning of the bourgeoisie, the rule of capitalism and empire as seen on the cover of Paris-match discussed above, as meaning flows out of these myths ‘until their very name becomes unnecessary’ (Barthes 1973: 150). Myths are in one way the result of power struggles in that they normalise history as the truth. The prevalence of such myths in international law is overwhelming, as it provided solidifying grounds for myths of liberalism and myths of empire among others.
To the dismay of Barthes, the study of semiotics — especially the construction of embedded connotations close to the concept of myth — has been directly instrumentalised in contemporary markets for the purposes of marketing and policy making. Such active and motivated production of myths calls for a critical deciphering of possible biases that result from such internalised inferences on an individual and collective basis and most importantly in the holder of some of biggest myths, law.
Shahd Hammouri is a doctoral candidate at the University of Manchester.
Roland Barthes, Elements of Semiology (Cape Editions, 1967)
Roland Barthes, Mythologies (Paladin, 1973)