Page 169 - Courting the Media Contemporary Perspectives on Media and Law

160 Shea Esterling

debate concerning the repatriation of cultural objects [Audi, p. 131].
Kennedy‘s legal semiotics involves a four-step process. However, for the
purposes of this analysis, the most important steps to review are Audi‘s use of
the first and second steps as these set the foundation for unmasking a divided
discourse. According to Kennedy, the first step of a legal semiotic analysis
entails a lexicographical or ‗mapping‘ task of identifying the most common
argument- bites in the selected area of legal argument under scrutiny. Kennedy
understands legal argument to mean an argument either in favor or against a
―particular resolution of a gap, conflict, or ambiguity in the system of legal
rules‖ (Kennedy, p. 325).
What makes something an argument-bite ―is nothing more nor less than
that people use it over and over again….with a sense that they are making a
move, or placing a counter in the game of the argument‖ [Kennedy, p. 329].
Next, as Kennedy suggests, a legal semiotic analysis explores the formation of
argument-bites into pairs and further into clusters. The pairing of argument-
bites stems from the fact that within legal argument the practice is to use
stereo-typed argument-bites to support one position or another and so results
in their existence as opposed pairs of maxims and counter-maxims [Kennedy,
p. 327]. In turn, each argument-bite is ―associated in the minds of the arguers
not with one but a variety of counter-bites‖ [Kennedy, p. 329]. Therefore
argument-bites are necessarily relatively structured, which means then that so
is every legal argument within a legal culture [Kennedy, p. 329]. In turn, Audi
identifies ―argument-bites in pairs as they often appear in court cases and law
review articles‖ [Audi, p. 133]. Careful to stress to the reader to avoid
assessing the strengths of the arguments in context in the same vein as
Kennedy, Audi identifies and provides examples, though not exhaustively, of
five main groups of argument-bites in pairs, including competence, moral,
rights, administrability and historical arguments [Audi, p. 134-6]. According
to Kennedy, the second step of a legal semiotic analysis then involves placing
these pairs into clusters, which refer to a set of arguments used together in
relation to a particular legal issue [Kennedy, p. 339]. The central point is that
when the bite is heard as a result of the opponent‘s use of it within a particular
doctrinal context, that the other members of the cluster are already in mind
[Kennedy, p. 341]. In turn, these clusters give argument-bites their meaning
and the overarching legal argument gets its ―intelligibility, from the system of
connections between bites‖ [Kennedy, p. 337]. Again, following from
Kennedy, Audi arranges argument-bites typically used together into clusters
[Audi, p. 137]. He identifies some clusters in the cultural property argument
such as the applicability of source nations‘ laws in market nation courts,