Human Rights, Language and Law : A Survey of Semiotics and Phenomenology

In this survey, the author suggests that individual experience — ostensibly that which informs and provides continuous momentum for legal action — is actually subsumed within the language of law. A sanitization of the pain suffered by human rights victims occurs when lawyer's 're-present' the circumstances of the violations to which they were subject in the 'magic terms' of human rights enactments. This is at odds with the notion that human rights are universally shared and independent of posited laws. This notion is seen in Kant, whose analysis of human rights is predicated on a setting aside of empirical considerations and an apportioning of human dignity to a noumenal realm. Though a Kantian spirit informs provincial human rights codes and constitutional bills of rights, the process through which the legal system abstracts intermediate concepts from the basic concept of human dignity creates a knowledge distinct from the situation giving rise to the complaint. Such knowledge becomes the province of experts and focusses on the concept of the legislator's intention, rather than the circumstances of the living subject, whose suffering initiated the litigation.The 'juridification' of experience is also problematic because language in general is not a transparent conduit of experience. Lawyers, judges, and other legal 'experts' have different associations for legal 'magic terms' than do non-expert lay people. A legal metalanguage is thus created which masks the underlying experience of the subject, simultaneously (seemingly) authoritative for resolving dispute and divorcing 'juridical' activity from the very subject whose pain is the prime motivator for that activity.This survey examines the effect of the creation of these 'magic terms' in the constitutional sphere in general — drawing on both actual and hypothetical examples — and in more specific human rights contexts and law reform proposals. It draws on an extensive body of academic discourse on language in general, and legal language in particular