Deonstemic Modals in Legal Discourse: The Cognitive Semiotics of Layered Actions

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Todd Oakley

Case Western Reserve University

Deonstemic Modals in Legal Discourse: The Cognitive Semiotics of Layered Actions

Abstract: Linguistic accounts of deontic and epistemic modalities are treated largely as disjunctives, with occasional acknowledgments that it is possible, given the right context, to coerce epistemic readings out of deontics and vice versa. Systematic treatment of what I call deonstemic usages has not been sufficiently appreciated, and, thus, theoretical frameworks developed among linguists do not account for their appearance, let alone recognized as a significant discourse phenomenon. A close examination of 893 instances of must in 33 of the most influential Supreme Court opinions suggests certain situations exist in which modal verbs with local epistemic meanings make full sense only by charting how they are likewise interpreted as deontics. These ostensible epistemic usages are staged communicative acts operating at multiple layers in synchronized harmony, requiring language users to have a shared basis for differentiating the intentional scene of one layer from that of the other. The “deonstemic” mode originates as a jurisprudential act intimately related to the rigid structure of institutional language use. It is an institutionally specific modality emerging from a governing body whose deontic powers issue from the aggregate perception of prudential and reasonable action by the people whom it governs.

1. Cognitive semiotics and institutional discourse

Cognitive semiotics presume that linguistic meaning is constituted by human interaction

and intersubjectivity; therefore, models of language cannot be theorized absent some non-

trivial usage-based account of linguistic structure, meaning that language structure arises

from the social agency of participants as they cope with their elaborate symbolic milieus.

If cognitive semiotics names a paradigmatic shift in the cognitive sciences toward

language as one of many semiotic modes of fluent coping, and if part of our coping is

decidedly related to institutions and their operations, then attention need be paid to

language as an institutional phenomenon. Much of human meaning making in the West

takes place in and among written documents, many of which play a determining role in

the construction of social reality (cf. Searle, 1995).

On this occasion I seek to look at institutional language through the lens of

modality, a pervasive feature of grammars and lexicons for expressing speaker’s

subjectivity in relation to events, actions, and states, especially as they pertain to other

subjectivities. Standard linguistic studies of modality proceed as if it is a simply a type of

linguistic category and then investigates such forms and their syntactic distributions

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within and across clausal boundaries. Traditional linguistic methods have produced

useful insights and generalizations for which the present approach builds upon; however,

this methodological decision hides the important role of institutional context in the

shaping of meaningful communication. Sometimes the categorical intuitions of linguistic

analysis break down in the face of inherent ambiguity. The linguist then deploys a usual

tactic of appealing to context for resolving an ambiguous usage, the implication being

that such ambiguities are mere limiting cases of little relevance to the generalizing claims

being made. Such tactics are entirely understandable, indeed are necessary, given their

aims and purposes. Conversely, what if the aim is to understand how language operates in

specific institutional formations with complex histories of issuance, accumulation,

interpretation, and citation?

The cognitive semiotics of language outlined in these pages focuses attention on

its use in rigid institutional settings (cf. De Jaegher, 2013)1; specifically, the rigid

institution of the Supreme Court of the United States of America (hereafter SCOTUS).

The history of SCOTUS is one of three branches of American Government that, at

the time before the Civil War was considered the weakest of the three branches, but,

largely resulting from the slowly gaining momentum of judicial review established in the

case Marbury vs. Madison (1803), has come to be without argument the strongest branch

of the federal government. To exemplify this change, consider the contrasting

dispositions of presidents Andrew Jackson (1829-1837) and Dwight D. Eisenhower

(1953-1961). Jackson felt perfectly entitled to ignore SCOTUS’s injunction against the

United States “Indian Removal Act” in Worcester vs. Georgia (1832) while Eisenhower

felt compelled to enforce their decision in Brown vs. Board (1953) ending racial

desegregation, even though it was politically the last thing he wanted to do. Clinton

(1989) provides an historical account of the Supreme Court’s arrogation of judicial

review, the powers to review and declare unconstitutional statutes and orders originating

from the executive and legislative branches of federal and state governments, as the

sociological equivalent of incremental increases of the Court’s power to push the

1 For De Jaegher, “rigid” means patriarchal, rule-based, hierarchical, and non-democratic institutions, which she contrasts with fluid, democratic institutions.

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recalcitrant and block the zealot, as his narrative recounts the morphing of the Court from

an institutional featherweight contender to heavyweight champion.

A study of the English modal verb must in the rigid institutional setting of

SCOTUS offers us a test case for cognitive semiotic research on language as an

institutional practice. After a brief discussion of modal verb types, I proceed to discuss an

inherently ambiguous instance of must that led me to posit a new, institutionally specific,

category of the deonstemic. I then proceed to present the findings of a corpus analysis

must, must not, and mustn’t in 33 of landmark majority opinions of the Court. I identify 6

discourse layers in SCOTUS in relation to this newly identified mode. I proceed on the

basis of this model to show that there institutionally specific deonstemic mode arises

when a statement’s meaning divides attention between the impositional world-to-mind fit

of the justices (layers 1 & 2) and the descriptive mind-to-world fit constraints on their

powers (layers 4-6).2

2. Linguistic Modality: A Tripartite Model

The general approach to modality taken in this study follows closely the one outlined by

Langacker (1987; 2008) and developed by Sweetser (1990, pp.49-75), and Talmy (2000,

pp.440-452). I will also draw on the diachronic work of Bybee, Perkins & Pagluica

(1994, pp.175-242) for additional background.

Cognitive Grammar (henceforth CG) takes as part of its portfolio the task of

formalizing the “groundedness” of modality as a notional category, aligning it with the

historically dialogical grammars of Bakhtin (1986) and Voloshinov (1986), and later by

Linnell (2005) and DuBois (2007), even though Langacker himself does not characterize

CG as inherently dialogical. In CG (2008), grounding “indicates a speech event, its

participants (speaker and hearer), their interaction, and the immediate circumstances

(notably the time and place of speaking)” (p.259).

Grounding is a critical element of CG, for it establishes the relationship between

nominal referents and the status of events, actions, or states with respect to spatial and

temporal reality.

2 These phrases come from Searle, 1995, 2004.

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Grounding elements bridge the gap between isolated lexemes and their

instantiation, as full expressions require grounding elements, grammatical operators

specifying the status of the lexeme vis-à-vis the ground. In CG, there are nominal

grounding elements (e.g., a, the, this, that, some, every, each, all, none, no, etc.) and

clausal grounding elements (e.g., -s, -ed, -ing, will, have to, should, etc.). Nominal

grounding elements direct the hearer’s attention to the intended discourse referent, while

clausal grounding elements direct attention to the situation (profiled relationship) to “the

speaker’s current conception of reality” (p.259).

Broadly speaking, the immediate forms of English modal verbs—may, can, will,

shall, and must—and their displaced relatives—might, could, would, should—function as

clausal grounding elements that derive their function from a force dynamic (Talmy, 2000,

see below) and future-oriented tendency toward action; their “potency,” as Langacker

calls it, “inheres in the ground” (Langacker, 2008, p.305) and serves as the means of

distinguishing their senses as either root/deontic, enunciatory, or epistemic. Of the

modals, must is both the most semantically forceful and formally distinctive, in so far as

it lacks a corresponding displaced relative (e.g., “you may/might (be able to) go to the

county fair”; “you must/Ø go to the fair”) As a formal outlier, must gives rise, in certain

circumstances, to ambiguous deontic/epistemic meanings, as I shall exemplify

momentarily.

Generally, modal verbs express ability, intention, obligation, and permission as

well as certainty, desire, necessity, probability, and possibility (see Bybee, et. al, 1994,

for an overview). These general meanings are distributed over the various deontic,

enunciatory, and epistemic usages. Let us review by way of examples the distinct modal

usages of must.

2.1. Deonitc (Root) modality

Talmy (2000) offers a unified semantics of modal verbs in the form of force dynamics.

The force associated with must is that of a stronger Antagonist (ANT) to a weaker

Agonist (AGO), either in pushing the recalcitrant or blocking the zealot, as exemplified

in 1 and 2.

(1) You must be home before dinner.

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(2) A junior faculty member must not take on extensive administrative duties until

after the pretenure review.

In both 1 and 2, an unspecified ANT forces a weaker AGO (you/junior faculty member),

whose intrinsic force tendency is either toward inaction (in 1) or action (in 2).

As Talmy notes, such force dynamic tendencies can be applied to basic

(Aristotelian) physics, intra-psychological states, and socio-psychological situations, thus

providing the “ancestral” embodied basis of the three modes outlined in this section.

2.2. Enunciatory Modality

Sweetser (1990, pp.69-73) refers to this type as “speech act” modality where the modality

applies to either root or epistemic (discussed below) domains, but additionally, to the

discourse ground. The frame of conversational interaction is invoked to organize the

notion of compulsion—force dynamics is understood as illoctionary force. The notion

here is that speaker is divided into an weaker AGO who does not want to say X and a

stronger ANT portion that is compelled to do so, often by ethical responsibility or

objective/external circumstances.

I, however, prefer the term enunciatory, to emphasize the special case of “putting

onstage” the act of speaking. The designation “speech act” as a special kind of modal is

too imprecise, since all deontic and epistemic modals carry illocutionary forces of either

imposing or describing a state of affairs, making them speech acts. Enunciatory modals

are, thus, special metalinguistic instances that dramatize the participants as speakers,

which, if I am reading Sweetser correctly, is the primary motivation behind her analysis.

Sentences 3 and 4 epitomize this type:

(3) Regrettably, I must insist that you plagiarized your term paper.

(4) AIG must never refer to Credit Default Swaps as “insurance” in any of its

internal documents.

In 4, the dramatic business focuses on the proper “baptismal” practices of naming

something in official documents.

2.3. Epistemic Modality

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Epistemic modality grounds the speech event in terms of the speaker’s reason and

evidential dispositions, with must eliciting “inferred certainty” (Bybee, et. al. 1994,

p.179), as illustrated in 5 and 6.

(5) He must be home, for his car is parked in the driveway.

(6) She must have been devastated when the doctor gave her that diagnosis!

With 5, the car’s being in the driveway is a sufficiently compelling ANT for the speaker’s

inferred certainty, and with 6, the speaker is forced by the compelling nature of the

situation to conclude something about the mental/emotional state of the referent. In each

case, a situation or piece of evidence is sufficiently powerful to compel a conclusion.

2.4. Ambiguous cases and the ‘necessity’ test

As most linguists working with modals attest, there are many instance of inherently

ambiguous interpretations where modals are either interpreted deontically or

epistemically. We see this in 7.

(7) He must be in his office.

This utterance can either mean that he is obliged to be there (deontic) or that the speaker

is certain he is there (epistemic), depending on local context. Sentence 7 either imposes

or describes, but not both (cf. Sweetser, 1999, p. 73).

Consider now a real-world example, taken from the final sentence of the

landmark SCOTUS opinion, McCulloch vs. Maryland (1816):

(8) Such a tax must be unconstitutional.

In contrast to 7, this sentence can be read both as obliging future agents and agencies to

rescind these tax laws, thus imposing a future state of affairs, and expressing certainty

about an existing set of laws, thus describing a present state of affairs. As I shall argue in

greater detail, such sentences gain their meaning and modal force from being both

deontic and epistemic.

One way to highlight the nature of this ambiguity is to apply a necessity

substitution test to examples 1-7.

(1’) You need to be home before dinner.

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(2’) ?A junior faculty member need not take on extensive administrative duties

until after the pretenure review.

(3’) Regrettably, I need to insist that you have plagiarized your term paper.

(5’) *He needs to be home, for his car is parked in the driveway.

(6’) *She needs to have been devastated when the doctor gave her that diagnosis!

(7’) He needs to be in his office.

The semantics of auxiliary need

1’ 2’, 3’, and 7’ pass the necessity substitution test, but sentences 5’ & 6’ do not.3 The

epistemically pure cases of 5 & 6 include some kind of explicit reason for their epistemic

nature, which ambiguous cases lack. But it is because of this lack of a reference to the

agent judging the situation that is required. Thus, 5’ & 6’) can be rephrased in this way:

(5’’) (It is logically necessary for me to consider) him to be at home (for his car is

parked in the driveway).

(6’’ (It is logically necessary for me to consider) her to have been devastated (as a

result of the doctor’s diagnosis).

Hence, epistemic modality is explained as attributing reasons that are more often as not

made explicit, without, however, suggesting that the speaker has any ability to effect the

situation. The semantics of ‘need’ highlights a potential deontic power of the speaker to

impose an obligation on the addressee.

Ambiguous cases like 7, on the other hand, are ambiguous precisely because the

reasons are left unarticulated, with the present imperfect be inviting the audience to infer

the reason, which is either based on evidence or on deontic powers of the speaker. The

use of past imperfect be, however, harkens back to prior evidence explicitly articulated in

the discourse, which is why such examples are ‘pure’ instances of epistemic modality—

their reasons ‘need’ to be made transparent, regardless of the speaker’s status.

Now, what about the deonstemic modality? If the necessity test is plausible, then

an admixture of the cases illustrated in 1’) and 5’’) would be evidenced.

The example is:

3 2’ releases the subject from an obligation rather than imposing an injunction on him/her, thereby presuming a contrary state of affairs from 2. Nevertheless, the focus of attention is on the deontic rather than epistemic power(s) of the speaker.

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(8) Such a tax must be unconstitutional.

We can apply the necessity test this way:

(8’) (Its is logically necessary for the Court to conclude) such a tax to be

unconstitutional.

In the framework of Searle’s Speech Act Theory (1969), Court statements have

declarative force (because of its deontic powers), and therefore they have a double

direction of fit and causation: mind-to-world and world-to-mind. This being the case, the

Court considers that something needed to be considered as X causes it to be of X-type.

So, we have:

(8”) (By this statement, you Americans need to recognize) such a tax to be

unconstitutional.

And hence,

(8”’) (In America) Such a tax is unconstitutional.

Notice that in this analysis the epistemic force of the statement is blended with the

deontic powers derived from the Court. And the ontology described by (8”’) depends on

the social ontology that the Court’s (rigid) deontology can create. In a non-trivial sense,

they are deonstemic.

3. Cognitive Semiotics and the Dynamics of Rigid Institutions

I wish to offer a beginning study at this occasion of limning out the prospects and

programs of cognitive semiotics of institutional discourse. That cognitive semiotics has as

one of its aims to try to account for the ambiguities, to see what it is about the relation of

language to its environment of use provides leverage for better understanding of language

as an institutional phenomenon—particularly written texts originating from institutions

with rigid protocols for their composition and dissemination. Such texts fits the prototype

of discourse that described by the rhetorician Lloyd Bitzer in his famous essay, “The

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Rhetorical Situation” (1968),4 and extends the range of linguist Herb Clark’s notion of

layering (1996, pp. 353-384). It is to these two notions that I now turn.

3.1. Rhetorical Situations

Lloyd Bitzer provides us with a basic heuristic for thinking about language as situated

discourse. According to Bitzer, all public discourse occurs in situations comprising of

three basic elements: exigence, audience, & constraints.

For a situation to be rhetorical it must address some seemingly imperfect state of

affairs (exigence) that “invites utterance” (Bitzer, 1968, p.2)—a SCOTUS opinion

addresses first a disagreement between two parties, the settlement of which has broad

implications for the general polity.

For a situation to be rhetorical it must be addressed to an audience, or the

audience must be invoked. That is, all rhetorical actions are directed at someone—from a

single person to a key demographic, to an entire nation and beyond. SCOTUS opinions

seem to have multiple and specific constituencies, not all of which are equally influential

or relevant.

Finally, for a situation to be rhetorical it must be issued from some place, at some

time, and under specific conditions, the most obvious of which being the language used.

These are the constraints. One of the constraints of a SCOTUS opinion is that it is the

“final word” on a case; that is, the only body that can revisit the case is the Court itself.

The fact that these opinions are permanently held, publically available, and citable are

key constraints.

Exigence, audience, constraints serve a useful purpose of guiding analysis of the

multiple layers of discourse that comprise SCOTUS opinions.

3.2. Layering

4 Among rhetorical theorists, Bitzer’s “objectivist” account of the rhetorical situation has received explicit criticism, particularly by Richard Vatz in “The Myth of the Rhetorical Situation” (1973). Vatz’s argues that “exigence” is largely creation of the speaker. Scott Consigny offers something of a Hegelian synthesis in his response “Rhetoric and its Situations” (1974) by suggesting that rhetorical situations are objective facts that ensue from prior rhetorical situations. None of these critiques, however, challenge the heuristic value of Bitzer’s original formulation, which is precisely the purpose of employment here. My own view on the nature of the rhetorical situation aligns with Consigny’s.

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“People sometimes appear to say one thing when they are actually doing something quite

different,” observes Clark in the opening sentence of the final chapter of Using Language

(1996, p.353). This observation leads Clark to propose that the discourses of fiction and

other forms of pretense, consist of multiple layers of joint action and events, such that

two children can be simultaneously digging in a back yard in the present time—layer 1—

and ‘prospecting for gold in the Dakota Territories circa 1876’ –layer 2 (cf. Clark, 1996,

p. 354-360). This joint pretense scenario has two layers with distinct roles (prospectors,

such as Wild Bill Hickok and Calamity Jane) and values (a particular boy and girl),

audiences or ratified participants (e.g., the boy can be the audience of the girl in layer 1;

Wild Bill can be the audience of Calamity Jane in layer 2), bystanders (e.g., the boy’s

mother calling him to dinner in layer 1, or the mother could “play along” and call Wild

Bill to dinner, in which case the command issued to Wild Bill in layer 2 imposes an

obligation on the boy in layer 1), constraints (e.g., language use in both layers is English

but with contrasting semantic, referential, and prosodic features endemic to layer 1 or

layer 2), and joint actions (e.g., digging up the flower bed in layer 1, while prospecting

for gold in layer 2). Clark’s (1996, pp. 353-386) account of layering focuses almost

exclusively on situations of pretense in play, fiction, drama, irony and sarcasm, teasing,

and other rhetorical phenomena, but it does not cover rigid institutional discourses; his

account leaves out explicit mention of audience/addressee types. A proper account of the

deonstemic modality comes sharply into focus when we examine these texts is a

multilayered artifacts, with each layer potentiating actions of different addressees.

The upshot of my argument is that layering is essential to all textual ecosystems,

and built into the legal discourse of legal systems such as SCOTUS is the intuition that an

statement that is ambiguously deontic (imposing) or epistemic (descriptive) is actually

imposition at one layer of discourse and descriptive at another; other contextual factors

conspire to determine the attentional salience of any illocutionary force of the utterance

in question.

Layering is particularly critical for the interpretation of legal documents,

SCOTUS opinions being perhaps the most elaborate, as they are the most influential.

Primary participants are to imagine events, actions, etc. at higher layers all the while

appreciating why the authors and actors at the primary level created them. In the case of

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SCOTUS, one has to always appreciate the deontic power that to perform declarative

speech acts, even in cases where those speech acts are themselves ambiguous.

The ensuing analysis can be regarded as a meshing of Bitzer’s elements of the

rhetorical situation with Clark’s account of layering and is illustrated in the next section.

4. Case study: 33 influential SCOTUS opinions

The present corpus of the most influential Supreme Court opinions gathered from the

Constitution Society’s site Landmark Supreme Court Decisions (Roland, n.d.). According

to the sites compiler, Jon Roland, their influence is measured by 1) number of citations as

precedent in other court opinions (from SCOTUS and the lower courts) and; 2) by the

number of citations in articles in law journals, law reviews, and law school textbooks. My

analysis found 893 total instances of must (including negations) using Voyant Document

Tools. I then proceeded to classify each instance as either deontic, enunciatory, epistemic,

or deonstemic.

I outline the classification criteria for each modal type in the sections below. To

illustrate each type, I present 8 examples, 1 from Marbury vs. Madison (1803), a decision

establishing the doctrine of judicial review, and 7 from Furman vs. Georgia (1972), a

decision placing a moratorium on the death penalty as cruel and unusual punishment and

eliminating the death penalty in cases of rape. (The first part of this decision was

overturned in Gregg vs. Georgia, 1976.) This choice is merely one of convenience, a

result of culling examples from a specific part of the master spreadsheet.

4.1. Deontic must

Instances of the deontic mode collate with the imperative mood and with active verbs of

compliance, as in 9.

(9) “It must observe a fastidious regard for limitations on its own power, and this

precludes the Court's giving effect to its own notions of what is wise or

politic.”

Furman vs. Georgia, 408 U.S. 238 (1972)

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Equally often, deontic must collate with be + past participle grounding elements a

statement of prudence, as exemplified in 10.

(10) “But the proper exercise of that constitutional obligation in the cases before

us today must be founded on a full recognition of the several

considerations set forth above.”


4.2. Enunciatory must

Enunciatory instances collate with speech-act verbs and phrases, such as to note and

admit.

(11) “It must be noted that any equal protection claim is totally distinct from the

Eighth Amendment question to which our grant of certiorari was limited in

these cases.”


(12) “I must also admit that I am confused as to the point that my Brother

POWELL seeks to make regarding the underprivileged members of our

society.”


4.3. Epistemic must

Instances of epistemic uses keep the focus of attention on reasonableness or its opposite;

linguistically, the modal collate with the past perfect verb phrase, as exemplified in 13.

13) “The validity of his appointment must have been determined by judicial

authority.”

Marbury vs. Madison, 5 U.S. 137 (1803)

Equally often, however, the modal collocates with simple present & a verb of

deliberation.

14) “One must conclude, contrary to petitioners' submission, that the indicators

most likely to reflect the public's view—legislative bodies, state referenda

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and the juries which have the actual responsibility—do not support the

contention that evolving standards of decency require total abolition of

capital punishment.”


4.4. Deonstemic must.

With the deonstemic, the attention oscillates between reason and obligation, with reason

being the foundation of obligation. Instances like 15 collocates with be in the simple

present

(15) “He is condemned to painful as well as hard labor. What painful labor may

mean we have no exact measure. It must be something more than hard

labor. It may be hard labor pressed to the point of pain.”


Equally often, however, deonstemic usages operate are embedded in conditionals.

(16) “But if an innocent man has been found guilty, he must then depend on the

good faith of the prosecutor's office to help him establish his innocence.”


In 15 & 16 reason and obligation are two sides of the same coin. With 15, the emphasis

tends toward epistemic, but only as a means of setting up a pragmatic scale for deciding

whether some punishment is cruel and unusual. With 16, the emphasis tends toward the

deontic, with the apodosis expressing an obligatory condition for the protasis. We can

spot this differential emphasis with the application of the necessity test in 15’ and 16’.

Sentence 16’ has a much stronger deontic tincture than does 15’.

(15’) He is condemned to painful as well as hard labor. What painful labor may

mean we have no exact measure. It needs to be something more than hard

labor. It may be hard labor pressed to the point of pain.”

(16’) But if an innocent man has been found guilty, he needs then depend on the

good faith of the prosecutor's office to help him establish his innocence.

4.5. Quantitative Analysis of Must

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Table 1 presents the aggregate numerical breakdown of Must and their corresponding

percentages. The largest percentage of instances falls within the deontic category, with

epistemic coming in a distant second. Instances of deonstemic modality finish a close

third, with enunciatory usages finishing way behind the pack.

Table 1: Quantitative Analysis of Must in SCOTUS Opinions

Type Number Percentage

Deontic 547 61.2%

Enunciatory 29 3.25%

Epistemic 181 20.3%

Deonstemic 136 15.25%

It appears then that the deonstemic is a significant linguistic phenomenon of SCOTUS

decisions. Understanding the operative layers of discourse in SCOTUS opinions will be

aided by examining the constituent layers in detail.

5. Discourse layers in SCOTUS opinions

Before proceeding to the case study, it is perhaps apropos explain how the six layers of

discourse outlined below might plausibly be regarded as a cognitive model.

5.1. Units of analysis in a cognitive ecology

Clark’s examples of layered discourse comports reasonably well with traditional theories

of cognitive science that take the individual brain and body as its unit of analysis. Both

participants in the backyard Dakota drama had the requisite mental skills that allowed

them to imagine and appreciate the differences between layers of pretense and reality,

and we can safely presume that this joint action did not tax working memory and

attention to a degree requiring elaborate symbolic scaffolding.5

The six layer model used to capture institutional language practices of SCOTUS

runs into trouble if the unit of analysis remained inside the skull, or even if it extended

5 Although traditional theories tend to underestimate the role the built environment plays in scaffolding the ‘internal’ mental operations that make such pretend play possible.

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only from the brain to the (non-neural) body, for it is difficult to imagine how typically

developed individual minds could develop such elaborate modes of thinking without

extensive external scaffolding.

Over the last few decades, cognitive science itself has been changing, such that

the role of human cognition cannot be confined simply to brains with bodies. Under this

view—variously referred to as distributed, embedded, embodied, or enactive cognitive

science—human cognition is irreducibly ecological. Much of what we call thinking is

distributed over the brain, the (non-neural) body, and an environment consisting of

objects, tools, texts, other individuals, and institutional structures (cf.; Varela, Thompson,

& Rosch, 1991; Clark & Chalmers, 1998; Hurley, 1998; Noë, 2004; Wheeler, 2005;

Thompson, 2007; Chemero, 2009; Hutchins, 2010), all of whom find inspiration from

some titrated mix of phenomenology (Husserl, [1900] 1970; Heidegger, [1927] 1962; and

Merleau-Ponty, [1945] 1962), ecological psychology (Bateson, 1972; Gibson, 1979) and

cultural-historical activity theory (Vygotsky, 1978; Wertsch, 1985; Lave, 1988).

The present model of discourse fits within this “cognitive ecology” tradition,

wherein symbolic environment is seen as scaffolding much of our thinking,

communication, and action. Take away the elaborate documentary modes of permanent

script, and the entire enterprise fails function as a unit of cognition.

The multiplex layers of discourse manifest in any given SCOTUS opinion need

not be the property of any single justice (although something like it might very well have

been internalized by experienced practitioners), for it specifies social ontological

properties of a textual ecosystem that constitutes jurisprudential reasoning. Once in place,

the model at the very least offers heuristic value of revealing the way language works to

distribute attention and mental resources to different facets of jurisprudence.

5.2. A jurisprudential deontology

Consistent with the cultural-historical dimensions of cognitive ecology, a close

examination of the precise notion of American Jurisprudence is propaedeutic for proper

understanding of the 6-layer discourse model presented in section 5.3.

At base, the Court possesses its powers only to the extent that it embodies the

twin principles of prudence and constitutionality. In the present context, the principle of

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prudence means that justices should be as cautious and conservative with their decision

making as practically possible. Relatedly, the principle of constitutionality entrains

justices to follow precedents of prior decisions (known in legal lingo as stare decisis)—

the degree to which justices follow this principle is a matter of great contention.

Historical circumstance and evidence can override these principles, such as when the

Court overturned Plessy vs. Ferguson (1896) in the Brown vs. Board (1953) decision,

effectively delegitimizing the principle of “separate but equal” and ending de jure racial

segregation in the public schools.

Cases have holdings that are regarded as legally binding and provide constraints

or signals to other courts, legislators, and executives about the creation of law, of

legislation, and the implementation of policy.

5.3. SCOTUS: Six Layers of Discourse

A summary view of the six layers of SCOTUS discourse in figure 1 shows the bottom

constituting the primary layer, and each successive layer supervening on the previous

layer. Thus, events represented in the sixth layer are only relevant in relation to the

structure and function of the lower layers.

Figure 1: Six Layers of SCOTUS opinions

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Higher layers of discourse pertain to temporal and spatial displacement from the genius

locus of the Court and its proceedings, as represented by the “deictic arrow” on the right

of figure 1.

5.3.1 Layer 1: decision (rights). When an opinion is published, the press focuses on its

implications for future legislation and policy by executives. Thus, these are the primary

ratified audience, for they are the ones who can or are to be compelled to effect change.

Private interests may also be immediately affected, but this is only to the extent that they

are acting in anticipation of compelling force from legislators by an elected executive

(i.e., President of the United States, governors, cabinet level secretaries and agencies, law

enforcement officials, and so on). Interested bystanders include attorneys and other legal

authorities, many of whom will serve as ratified parties in future legal, legislative, policy,

and academic contests. This layer represents the naked power of the Court to mold social

reality in a so-called world-to-mind direction of fit (cf. Searle, 2004, p.118), such that the

world comes to resemble the minds of the justices. Temporally, layer 1 operates

according to the present and future; interpersonally, joint actions at this layer involve

sitting Associate Justices and the Chief Justice; linguistically, constructions operating

unambiguously at this layer include such commonplaces as The court rules that; this

court; and X must not impose y.

5.3.2 Layer 2: rationale (responsibility). Layer 2 focuses attention on the prudential

principle. The responsibility of the justices is to be reasonable and rational, for the

reputation of the Court is of abiding concern to all justices but especially for the Chief

Justice, whose name brands the Court during his tenure (e.g., the Warren Court after

Justice Earl Warren; the Roberts Court after the sitting chief justice, John Roberts). The

sense that other decisions, being that they are final, need to be given due consideration

and influence. The decision cannot come out of the blue, and the ratified audience can

potentially resist if the Court is being seen as unreasonable and overly cavalier. The latest

ruling in the Affordable Care Act (a.k.a. Obamacare) in The National Federation of

Independent Businesses, Et. Al. vs. Sebelius, Secretary of Health and Human Services, Et.

Al. (2011) is interpreted as Chief Justice Roberts (the vote that tipped the decision in

18

Obama’s favor) recognizing that such a decision coming in the wake of several

conservative decisions that have broken with precedent is likely to cast the Court as a

rogue institution, ultimately undermining its authority in the long-run. In short, layer 1

brings with it the discourse expectation that what we say goes, while layer 2 highlights

the fact that the power of the justices in layer one is not absolute. Actors in layer one

appreciate the obligation to reasonability specified in layer 1 and are often entrained to

imagine consequences of abusing power.

At layer 2, the principal participants are the justices, but the ratified participants

include the general public and future general publics, thus explicit reference to the

Constitution, to the principle of stare decisis, and to other standards of reason are of

strategic importance at this layer. Temporally, the concern is in preserving as much

continuity with the past as is morally and practically prudent, while at the same time

focusing attention on the long-term impact of the decision, thus the temporal scope is

similar to layer 1, but perhaps with an extended scope of the distant future of the Court.

Linguistically, stock phrases like We must always remember that…are used as

admonishments to abide by certain rational and jurisprudential principles. At layer 2, the

discourse tends to focus on the possibility that the “final word” of the Court may not be

its “last words,” or that its “final words” can always become “unjust actions,” as

happened in the infamous Dredd Scott vs. Sandford (1857) regarded as the worst opinion

in the history of the Court and held liable for precipitating the Civil War.

5.3.3 Layer 3: enunciatory (address & assertion). Justices argue with one another. This

layer focuses on justices as personalities who differ, sometime very stridently with the

opinions of their contemporaries and predecessors. This layer dramatizes the compelling

nature of certain speech acts—often reluctantly. Deliberation and disagreements are as

uncomfortable and face-threatening as they are obligatory. They ameliorate the face

threatening dimensions of agonistic discourse. These instances can be regarded as

illocutionary force indicating devices (cf. Brown and Levinson, 1987). At this layer, the

primary participants are the justices themselves, each of whom is either speaking for

himself, herself, or for the Court. Linguistically, phrases such as I must

admit/disagree/demur, etc., or It must be admitted that function as pre-disagreements.

19

The second example, which appears more about a half-dozen times in the corpus fits with

Sweetser’s (1990, p. 73) contention that enunciatory modality keeps close company with

epistemic modality.

5.3.4 Layer 4: epistemic. Justices are human beings, subject to the same powers of reason

as others, and they often must appeal to doxa (common opinion). Epistemic modals that

are unambiguous trade on this notion of inferred certainty common to us all, especially in

topics associated with common sense opinion. We take what is certain as a basis for

deliberating about topics of inherent uncertainty.

This layer legitimizes layers 1and 2 by way of a fortiori reasoning; if the justice is

acting reasonably by doxastic standards, then we must be confident that he or she is being

reasonable according to jurisprudential standards. To be sure, this is a social ontological

expectation, and virtual sparring over the justices’ own motives and competencies has

become something just shy of contact sport among American citizens and pundits.

Skepticism aside, layer 4 trades on the general appeal of reason and rationality as a basis

for drawing conclusions. If a justice is certain of something, we presume he or she is

certain for a good reason and thus is compelled by reason to draw a conclusion.

Linguistically, stock epistemic constructions, such as I must conclude and It must have

been the case, with a temporal focus either on the present or on the past perfect, operate

most naturally at this layer.

5.3.5 Layer 5: deontic (order). Justices are also obliged to take courses of action that

meet standards of reasonability and rationality in the order of adjudication, such

standards are often dictated by the order of adjudication followed by the lower courts.

Cases are complex with many dimensions and parts. The order of decision cannot be seen

as arbitrary but must flow from the logic of the case. Linguistically, this layer is

epitomized by such commonplace phraseology as We must now proceed to decide the

next question, and The court must subsequently decide that question only after dispensing

with this one. Temporally, this layer focuses attention on the here-and-now of the opinion

and the immediate future, exemplifying a genre-specific type of discourse deixis.

20

5.3.6 Layer 6: narrative. The very reason for the Court’s existence is the fact that some

event or set of events happened in the past. There is a plaintiff and defendant, two parties

in conflict. In most instances (except in the very small range of case types in which the

Court has original jurisdiction, such as treaties), cases before SCOTUS were adjudicated

by lower courts with original jurisdiction and then subsequently by the lower appellate

courts. With rare exception, plaintiffs and defendants have sought remedy in other

jurisdictions, with this as the final contest. Thus, William Henry Furman can contest seek

remedy from the State of Georgia and the United States Government can establish a

National Bank free from excise taxation by the State of Maryland. Linguistically,

SCOTUS opinions are replete with narrative of past events pertaining to the case and of

its past proceedings of the lower courts. In fact, for many opinions a majority of textual

“real estate” is given over to description of past events, actions, and states of affairs, all

of which provide the basis for the Courts verdict. Layer 6 is perhaps the most

voluminous, but narrative particulars are rarely a substantial part of the quoted material in

other SCOTUS opinions. (Quoted material from Marbury vs. Madison (1803), the most

cited opinion, consists of a mere six sentences, none of which pertain to the case itself

(cf. Oakley & Tobin, 2014).

5.4 Back to McCulloch vs. Maryland (1816)

What are we to make of the final statement from Chief Justice John Marshall’s opinion

ruling against Maryland’s tax on a national bank?

8) This tax must be unconstitutional.

With 8, the emphasis tends toward the deontic, given that it is the final pronouncement of

the decision, but the pronouncement is packaged in a clause that gives considerable

weight to the epistemic layer (hence the bold markings of layers 1 and highlighted

marking of 2 and 4 in figure 2).

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Figure 2: SCOTUS Layers vis-à-vis McCulloch vs. Maryland (1816).

Imagine the alternative construal in 8a.

(8a) This tax must have been unconstitutional.

With 8a, we get a very different implication, with attention focusing heavily on layer 4

and (perhaps) layer 2. The illocutioary force of this utterance would be epistemic and

descriptive, as if the Court were merely categorizing past laws with little regard for

subsequent law. Applying the necessity test to 8a yields the awkward (but still

grammatical) construal of 8b (which requires change to the final adjective to make it

coherent).

(8b) ?This tax needs to have been constitutional.

While 8, and 8a focuses attention on layer 4, 8b refocuses attention back to layer 1,

constituting an authoritative rebuke of a past legistlative deed. This version might even

lead addressees to expect the court to issue a specific remedy, such as “But the tax is

clearly repugnant to the Constitution;6 thus, the State of Maryland must never have

enacted such an law in the first place.”

6 The phrase “repugnant to the Constitution” is a favorite of John Marshall, Chief Justice and author of this opinion, and appears in many of his most famous opinions.

22

Figure 3: SCOTUS Layers applied to sentence 8a

The notion of a deonstemic then emerges from the focal attention to layers 1 and

2, two layers not fully present (or not in the same way) in other governmental institutions

in the United States. What is more, this is an institution with a rich textual archive

constantly in play, but they are texts with rigid procedures for their composition and

dissemination. Thus, an appreciation for the meaning of modal verbs, particularly the

most forceful of modal verbs, must, helps us understand the dynamics of force and

counterforce at the interface of semiotics and the social world.

The pragmatic function of deonstemic modality is to package a pronouncement

that conforms to the epistemological expectations at layer 2, so as to ameliorate the patina

of the bald exercise of power. One must both appreciate the forcefulness of the

pronouncement and appreciate the reasonableness and prudence thereof, even though, at

base, (layer 1) the social ontology of SCOTUS boils down to because we say so!

6. Conclusion

From a linguistic perspective, Eve Sweetser (1990) correctly concludes that, “modals can

be used either to impose or to describe (report) in both the content and speech-act

23

domains but can only describe in the epistemic domain” (p.73). From a cognitive

semiotic perspective, Sweetser’s conclusion is inadequate. True, epistemics describe

while deontics impose, but deonstemics both impose and describe, but such instances

only become apparent in specific types of rigid institutions.

An analysis of 33 of the most influential Supreme Court opinions suggests that

there is a language specific category of deonstemic modality for must whose signal

purpose is to blend our obligation with reason, and that such “modal blends” are critical

for understanding how certain institutions build and maintain trust and predictability

among the population(s) it governs. In American jurisprudence, the power to impose

derives in part from a view of the Court as a deliberative and reasonable body, meaning

that its decisions have to be seen as constrained by something other than naked power.7

The implications of this study for cognitive semiotics are theoretical and

methodological.

Theoretically, this study highlights the need for cognitive semiotics to attend

carefully and systemically to the arts of rhetoric and persuasion as a tradition of inquiry

that can provide substantial theoretical framing for the study of cognition in context, a

basal stipulation of cognitive ecology. These pages emphasize the need for a disciplined

application of the very idea of “rhetorical situation” as a confluence of exigence,

audience, and constraint to the study of documents as parts of a symbolic ecosystem

capable of defining and constraining thought and action over time and among different

agents. SCOTUS opinions are just one manifestation of such documentary systems.

Methodologically, this study highlights the need for additional patient

investigations of the ‘symbolic output’ and uses of similarly rigid institutions. For

instance, a prima facie investigation of an official report from the United States Senate

Permanent Subcommittee on Investigation’s 646-page report, Wall Street and the

Financial Crisis: Anatomy of a Financial Collapse, reveals no instances of deonstemic

must in the entire document, suggesting that this construction may be specific to

jurisprudential institutions (and perhaps it is sui generis to common law (i.e., Anglo-

American) institutions in contrast to both civil and religious legal institutions). On the 7 The Court’s reputation as a reasonable body is never uniform, and its reputation has suffered in recent years, but not so much so that the other branches of government, national or local, can feel confident in explicitly refusing to obey its edicts, as Andrew Jackson did in 1832.

24

other hand, a cursory examination of should hints at the possibility of a different form of

deonstemic usage with less compulsory but no less normative effects. But I must leave

this question for another occasion.

Acknowledgements

In addition to the two anonymous reviewers, the author thanks the following colleagues

for their thoughtful comments and advice: Mihailo Antović, Line Brandt, Per Aage

Brandt, Peer Bundgaard, Seana Coulson, Anders Hougaard, Vladimir Figir, Esther

Pascual, Frederik Stjernfeldt, Eve Sweetser, Vera Tobin, Mark Turner, Đorđe Vidanović,

Jordan Zlatev, & Svend Østergaard. Any errors are entirely my own, however.

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Deonstemic Modals in Legal Discourse: The Cognitive Semiotics of Layered Actions