نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد، گروه حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
2 دانشیار، گروه حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
3 استادیار، گروه حقوق خصوصی، دانشکده حقوق پردیس فارابی، دانشگاه تهران، قم، ایران
4 دانش‌آموخته دکتری، گروه حقوق خصوصی، دانشکده حقوق پردیس کیش، دانشگاه تهران، کیش، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Throughout history, legal defense processes in trials have undergone significant transformations. In the past, methods such as ordeal and combat were recognized as effective means of discovering the truth, while today, the path to uncovering reality lies through the presentation of credible legal arguments. Just as the methods employed by ancient societies in their trials were critiqued and found to be ineffective, it seems that current evidentiary methods also warrant a critical examination to ascertain their efficacy for contemporary society.
The central question in this paper is whether, similar to how individuals in ancient times regarded legendary methods as sophisticated means to ascertain the truth in their own legal proceedings, modern legal systems have also fallen into the trap of mythical thinking. Are the methods currently endorsed by legal scholars truly scientific and certain, or are they, in essence, manifestations of mythical ideas? Do current methods of presenting evidence
and uncovering truth in courts bear fundamental similarities to the subjective methods of the Middle Ages? Will merely attempting to draw external events into the trial process validate modern trial methods and evidential arguments over medieval methods?
This examination, in the present article, has been conducted through the study of semiotics: a new science established concurrently by Swiss linguist Ferdinand de Saussure and American philosopher Charles Sanders Peirce, encompassing different approaches and methods. Its subject is the understanding of sign systems and referential relations, widely used in present sign-based systematic sciences. This article posits that legal systems, like other semiotic systems, can also be analyzed using semiotic methods.
In this article, we will become familiar with a secondary system of indication in which the signifier and the signified become empty of their contractual relationship. Their connection leads to a new signification where meaning is devoid of a place, and instead, a function within this secondary system of indication will manifest. Through tracing this function, we will be able to delve into the depth of the indicative relationship of both the primary and secondary systems and thus navigate through misleading appearances of words. Consequently, we will achieve profound connections present in the scrutiny of evidential arguments in litigation.
In the text, the reflection of external events in the courtroom is subjected to semiotic analysis, revealing that the use of current evidentiary methods may lead to the introduction of hyper-realities into trials, which, although presented convincingly through persuasive signs, fundamentally lack genuine origins. Signs, in themselves, lack inherent meaning and only signify something else, following established conventions for meaningful communication in natural contexts. However, when these signs serve a dualistic win-lose situation, their intent of conveying a distorted message and seeking victory in litigation becomes evident. In such instances, standard semantics and decipherment methods cannot be applied as criteria for evaluating such situations.
Therefore, considering the criteria established by modern mythology studies, encompassing branches of systematic semiotics and entailing the comparison and analogization of similar elements in the myths of past and present societies, it becomes apparent that the reflection of events in the courtroom through wandering signs can be highly deceptive and may even lead to the creation of hyper-realities within trials. These signs presented in the courtroom essentially lack referential truths, in contrast to other signs that possess connotative connections. The motivations behind the creation and deployment of these signs for presentation to the court are for instrumental purposes only, seeking advantage from the court's judgment. Thus, the expectation of the effectiveness of the current evidentiary system in achieving truth in trials is severely doubted. What is necessary is a fundamental shift in the approach to litigation.
This revised approach should not only encompass an understanding of the connotative relationships governing non-judicial communications based on a sign system but also identify the motivations that have constructed and employed these signs to present them as truth to the courts and derive benefits from the judicial outcome. For example, when examining the act of testifying in court, it becomes evident that what is presented to the court as the interpretation of a witness is merely a certainty of the witness's statement, which is referential in nature. This means that the judge does not possess certainty but rather refers to the certainty of the witness, which may be the product of a narrative containing all elements of signs and is decodable. Perhaps in court, they merely present signs of a reality that fundamentally did not occur, and the court, through interpreting these very signs, constructs a convincing portrayal of a hyper-reality and renders its judgment based on that premise.
In this situation, the judge has no choice but to accept the testimony. However, this does not equate to evidence being reflective of reality as initially asserted. Thus, modern knowledge will have no choice but to endure these elusive signs and issue judgments based on them, but it will understand that there was no truth in litigation and the sole purpose was to resolve disputes.
Given that the semiotic approach to the legal system highlights the inefficiency of this system in reflecting the truth in court proceedings, legal professionals can redefine the evidentiary system as a tool for resolving disputes and, in so doing, provide more equitable dimensions to the objectives of both parties in litigation.
کلیدواژه‌ها [English]
)