“A Short Genealogy of Realism”: Peirce, Kevelson and Legal Semiotics
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Kevelson remains an important figure in legal semiotics, a co-founder, along with Bernard Jackson, of the International Roundtable for the Semiotics of Law, and of course a valuable and seminal commentator on Peirce in the legal domain. This paper will examine her claim, that through his collaboration with and influence on Oliver Holmes, Peirce should be regarded as a foundational figure in a history of legal realism and modern jurisprudence, and that a legal semiotic can be identified in and not only extrapolated from his seminal writings. This paper will contend that the relationship between Peirce and Holmes should be seen as perplexed and disputatious, rather than close and directly influential, as Kevelson argues. However, regardless of its limitations, Kevelson’s historical inquiry helps provide the ground for a contemporary and historical account of the full picture of a Peircean based legal semiotic and jurisprudence.
KeywordsUnforeseen Consequence Legal Thought Legal Realism Historical Argument Historical Claim
In the revolution of modern legal thought it is provocative to see Peirce as a copula, if not as a catalytic force, in creating meaning in that ‘vast ocean of unforeseen consequences’ [1, p. 78].
The provocative nature of Kevelson’s historical argument, about Peirce’s seminal influence not only on semiotics generally but specifically on legal semiotics, can be seen as a prolegomenon or supplement to her main commentary on Peirce. That is, her claim that through his collaboration with and influence on Oliver Holmes, Peirce should be regarded as a foundational figure in a history of legal realism, and should not be taken as a central or even essential substantive premise to Kevelson’s main preoccupations. Most of her interpretive dissertation on Peirce and the law can be assessed independently of Peirce’s place in a history of jurisprudence. At best her claim is hypothetical, based on limited evidence of contacts and discourse between the two figures.
However, close examination and critique of her claims for semiotic historiography can have an unexpected benefit, and this is to leave open and incomplete an influence that she claims to have closed. The relationship of Peirce and Holmes can be seen as disputatious, rather than complementary, and in contending Kevelson’s thesis, the ground for a contemporary and historical account of the revised picture of a Peircean based legal semiotic and legal realism can be addressed.
Revision of Kevelson’s historical claims can complement appraisal of her representation of the conceptual architecture of Peirce. Despite Kevelson’s pioneering and prominent work in legal semiotics, her writing can be seen as unnecessarily idiosyncratic, and careful consideration of the historical grounding of her argument can assist in a general reorganisation and elaboration, conceptual and practical, of the terms and benefits of including Peirce in contemporary legal semiotics. This paper will examine the evidence, albeit informal and dispersed, that there is for Kevelson’s strong argument for his jurisprudential interest and influence. There is an unexpected benefit in the effort required in such evaluation, even if the final outcome is to refute Kevelson. A Peircean inspired, legal semiotics, it turns out, can be assisted through an historical and conceptual delineation to contrasting, as well as corresponding, forms of legal realism. It will be concluded that the relationship of Peircean legal semiotic can be assisted through its historical and conceptual delineation, rather than correspondence, with contrasting forms of legal realism such as represented historically by Justice Holmes.
“Peirce’s Method of Methods” and “The Practice of Law”
The revolution referred to by Roberta Kevelson is that of legal realism, which mainly studied the law in terms of the behaviour of lawmakers and “the character of adjudication” [2, p. xiv], and is arguably the major movement in twentieth century American jurisprudence. She regards the proto-semiotic status of major various realist authors, such as Holmes, Llewellyn, Pound and Frank, in terms of the direct and indirect influence of Peirce, an influence so strong she labels it as being “catalytic” in force.
A conceptual semiotic of law based on Peirce could have been undertaken without making the above historical claim at all, and it does not greatly affect or diminish many of the wider aims by Kevelson to evaluate her historical reasoning. These wider aims can be identified as “(1) to clarify and present […] Peirce’s concept of a Method of Methods […]”; and “(2) to point out correspondence between Peirce’s Method of Methods and practical science, particularly the practice of law” [1, p. 11].
Her further argument for “correspondence” between “Peirce’s Method of Methods” and “the practice of law” is not a crucial matter of contemporary application or relevance, but a significant one of conceptual and historical precedent. Such historical argument is persuasive and provides a most significant conceptual grounding or authority for Kevelson’s oeuvre as a whole. Her claim that “multifaceted Legal Realism, following Holmes and strongly influenced by Peirce, has been […] a revolution in legal reasoning”, one “invented” by Peirce [3, p. 74], is a provocative and powerful claim in any history of semiotics. It is an argument she returns to frequently, in respective volumes [3, pp. 2, 10, 74; 4, p. 196; 5, pp. 8, 16, 75–79], elaborating it almost as a thread to unravelling an intellectual biography of her virtual mentor. Interest in law helps explain “the major influences on Peirce’s thought” [1, p. x] as well as the “history of modern Semiotics”, and a categorical delineation of Peircean and non-Peircean semiotic traditions (ibid., p. 1).
Such historiography is not merely exegetical but also provides crucial motivation for her own contemporary interpretation, and helps explain distinct features of the style and persona of Kevelson as a scholar. In a Gadamerian sense of historical understanding, she sees her own law projects, and their possible wider impact in legal studies, along with related studies, as being in close dialogue with the projects and texts of Peirce, whose meaning they do not only interpret but help complete. As a catalytic force, Peirce “speaks us”, as much as we interpret him [6, pp. 208–210], a perspective that allows her to assume privileged collaboration to continue incomplete projects commenced by Peirce himself.
Such a hermeneutic perspective is enabled through the incomplete, peripatetic nature of much of Peirce’s inquiry. Kevelson’s own writings seem to imitate or be influenced by the informal style of the author in which she was so immersed. As an extended review of her publications will point out, there is a digressive, informal style to Kevelson’s own writing, which can in part be explained through her close identification with the vicissitudes of Peirce’s productivity and publication. It can be said fairly that Kevelson and Peirce are writers who share, either coincidentally or through some tacit influence, a notational and eclectic style of writing.
There is a further implication for noting Peirce’s own peripatetic style. Because his work is relatively disorganised and freewheeling in its themes and manner, a significant idea can be explored in a casual or cogent, rather than formal or elaborate manner. Readings of Pierce’s writings, and his life generally, on the main themes of semiotics, require selective picking from the plethora of his original published and unpublished sources. Such dispersed and ambiguous sources assist Kevelson in making a hypothetical argument about the theme of the law: interpreting Peirce always requires a degree of reading between, over and beyond his own line.
In making her historical claim, Kevelson [3, pp. 187–188] simultaneously qualifies its evidence as being potentially “contradictory and inconclusive”. Yet the frequent repetition of the hypothesis gives it prima facie credibility. The effect of this self-affirming hypothetical enunciation is to turn the risky novelty of the claim—the fact that it is apparently “not widely known”—into an asset, not a limitation. Kevelson’s colourful advocacy further serves to compel our attention, and force evaluation of its content. Even though versions of the claim have been made by others, for example Gilmore and Fisch [1, p. 71; 7, p. 12]; Kevelson’s mature and strong version of it seems to have received little attention from commentators.
“A Knot of Us Young Men”: Meetings of the Metaphysical Club
Kevelson locates her “biographical” argument in legal semiotic history that “tied Peirce and Holmes” [3, p. 75] around the composition of the strangely named Metaphysical Club, which met in Cambridge, Massachusetts almost 130 years ago. She bases the origin of legal realism or a “short genealogy of ‘realism’” on the discussion of this informal association (ibid., p. 78).
On the one hand, circumstantial evidence is compelling. At least four of its seven members (Oliver Holmes, Nicholas St. John Green, Joseph Warner and John Gray) were lawyers or teachers of law. While the other three members (William James, Charles Peirce and Chauncey Wright) have become more well-known, the majority of lawyers does give a circumstantial case for legal subject matter on its agenda, that could comprise significant non-scientific influences on Peirce’s developing pragmatism [5, p. 16].
Certainly, Peirce was impressed by Nicholas St. John Green, as “a skilful lawyer and a learned one, a disciple of Jeremy Bentham. His extraordinary power of disrobing warm and breathing truth of the draperies of long worn formulas, was what attracted attention to him everywhere.” In particular, he often urged the importance of applying Bain’s definition of belief, as “that upon which a man is prepared to act [8, 5.12].” Were the “long worn formulas” legal? Were Bain’s ideas on moral action to be applied to legal principles? We cannot be sure: Peirce’s comments were made in passing, over 30 years after the event. Nevertheless, Kevelson argues that frequent meetings between Holmes and Peirce, along with the shared pragmatic themes of their published work at that time, provide evidence not only of Peirce’s interest in legal studies, but of his “catalytic” role in a “revolution of legal thought”. “The realism of Justice Holmes […] in my view has been derived from ideas exchanged between Holmes and Peirce during their brief association in the Metaphysical Club […]” [3, p. 10].
One can readily agree with Kevelson and Fisch, that meetings of the Metaphysical Club provided a crucial academic and social context for the development of Peirce’s early work. Attention to its activities provides a context, of intellectual and social influences and discourses, and qualify any sense in which Peirce can be read abstractly, only as a philosopher. In view of the relative isolation of Peirce’s later years, we forget how gregarious, even popular, he was when young. While Esposito [9, Lecture 2] has done admirable studies in Peirce’s early readings, the Club represents active intellectual and social networks for Peirce’s post-graduate growth. Yet to what extent can its subject matter strictly be termed “legal”, and how much intellectual consensus can be assumed from the mere facts of physically close and frequent meetings?
The problem with any discussion about the Metaphysical Club is that documentary evidence is so incomplete. Peirce’s several references to “a knot of us young men in Old Cambridge, calling ourselves, half-ironically, half-defiantly, ‘The Metaphysical Club’”, are retrospective and brief. Peirce and Kevelson seem vague about casual attendees: who were the “six lawyers who lectured on various aspects of jurisprudence during the spring of 1872?” [5, p. 16]. How frequently was Holmes himself in attendance? [10, p. 49]. Dates for its duration vary. Fisch mentions “Peirce’s” club existing from 1872 to 1875 [7, p. 139]. Yet Duxbury [10, p. 35] says it was “initiated” by Holmes by “the end of the 1860s”, and that it followed on from one led by Holmes from 1864. William James wrote to Holmes in 1868 from Europe, urging the formation of a “philosophical society”: Peirce did not return from Europe until 1871, and could not have “started a little club called the Metaphysical Club” “in the sixties” as he claimed in 1904 [11, p. 84]. Was it named after one with the same name in London? If so, by whom?
Brent questions Peirce’s motives for discussing the club at all, on several occasions, 30 years after its occurrence: he seemed overly intent to validate his own first use of the term “pragmatist”. Such retrospective reference points to disagreement rather than its opposite. Peirce was under pressure, in 1904, in part from Baldwin’s Century Dictionary, to clarify what he calls the “ancestry of pragmatism”, whose development he retrospectively claimed, in the Club, “in the first instance, from the humblest souche imaginable” [8, 5.13].
Brent goes further and questions the very coherence of the Club as a group. He cites the lack of corroboration, apart from James and Peirce, by any members of its existence. Ralph Perry believed the group was elaborated by James later, as part of his support for Peirce. Wiener asked if the club existed at all, or was “primarily a symbol of Peirce’s metaphysical imagination” [11, p. 87].
However, rather than discounting the influence of the Club on Peirce, as Brent seems to do, owing to the problematic nature of empirical evidence, let us assume in principle its affiliated identity and existence, as Fisch and Duxbury do (from perspectives of Peirce and Holmes respectively). All details, chronological or otherwise, about this club can then be seen as hypothetically significant. Facts and dates become more than fixed actualities, or signs of Seconds. In Peirce’s terms, dates become signs of Firsts, signifiers or representamen of possible subject matter, as well as part of the dynamic and interactive signs as Thirds, in social discourse.
The use of Peirce for historiography might seem strange, but it is one I believe well foreshadowed by Kevelson, whose interest in the circumstances of the Club seems to be as signifiers of “a structure and interplay of exchanged meaning” between Holmes and Peirce, in realism as “reason of transaction”, of “dialogue”, that is of Thirdness [12, p. 84]. We can then agree with this premise of Kevelson: what is at stake is the nature of that “reason of transaction”. If we can lay claim to the seminal influence of discussions at the Club, particularly in the area of a semiotic and philosophy of law, should we conclude that this influence was consensual or unequivocal? What is at stake in such inquiry is more than a clarification of semiotics, and in particular a semiotics of law, but a semiotic historiography—a methodology of reading and assembling historical narrative, temporal sequences and evidence that accords with Peirce’s own theory of sign categories.
It was in 1864 that Oliver Holmes returned to Massachusetts from the Civil War, and, as Bowen says, “brought home young men studying law or medicine at Harvard […] upstairs to his room under the flaring gas lamp” [10, p. 35]. This group included William James, Charles Peirce and Chauncey Wright, the kernel of what would later become the Metaphysical group. Their agenda was what Bowen described as “the largest angriest topics: the universe, the cosmos, all the -isms from Kantian idealism to Comptian positivism” (ibid.). Philosophical discussion represented a break from the horrors of war, as well as a search for alternative models of social values immune from blind authority and force. We know Holmes and Peirce knew and probably discussed the work of Bain, whom Nicholas St. John Green later espoused at the Metaphysical Club [7, p. 88; 8, 5.12]. One main difference between this early group, and the Club, was its location, which moved from Holmes’ upstairs room, to the residence of James, or of Peirce at 6 Arrow Street [11, p. 82].
Kevelson does not appear to mention, or know about, this earlier group—yet its existence lends further evidence for her argument for collaboration between Holmes and Peirce, who certainly knew each other’s residences, at least, very well. As well, it highlights the respective roles of Holmes and Peirce in the development of the group. On the other hand, a Metaphysical Club met weekly between 1876 and 1879 [11, p. 84], with Peirce and Wright absent. Purportedly Peirce was in Europe for much of this time, and Wright was deceased. Yet can we also detect evidence of separation between Peirce and Holmes that might have existed since 1872? Was it more than inconvenience that caused Peirce not to attend? What was the cause of the apparent separation and silence between these two in later years? Was there a significant disagreement, between Peirce and other members, such as Holmes, about law and social theory?
Duxbury would qualify Kevelson’s claims of collaboration, saying they were little more than “casual acquaintances”—a strange conclusion to make after he evidences their regular meetings over a period of 8 years. Yet if Holmes was “strongly influenced” by Peirce, as Kevelson argues, why did he apparently read none of Peirce’s work or papers until 1923? Kevelson is what Duxbury [10, p. 39] would term a key “commentator” on the influence Peirce might have had on his contemporaries. Yet how firm are her historical claims, especially for Peirce’s catalytic role in specific themes of legal realism? How crucial or central is the validation of an historical argument about the Metaphysical Club for her general semiotic project?
Peirce’s one published comment about Holmes was made in 1907: “Mr. Justice Holmes, however, will not, I believe, take it ill that we are proud to remember his membership” [8, 5.12]. This is as complimentary as it is brief, and reveals nothing about their past mutual discussions. As attractive as the club might be for historical research, especially about a “history of semiotics”, there is significant lack of documentation about its subject matter, as well as its schedule of meetings. Fisch feels that interdisciplinary discussion cannot be assumed, and that what needs to be explained are “the only things that all seven” of its members “had in common, besides a Harvard degree”.
“Really Incongruous Ideas of Darwin”: the Agenda of the Metaphysical Club
Kevelson’s second evidence for Peirce’s influential role in legal thought is interpretive and exegetical—in terms of parallel themes, concepts and examples in these two men, or what she calls their “family resemblance” or “intellectual” ties [1, pp. 188–197; 3, pp. 74–75; 4, pp. 201–214]. “Examples of legal theory and practice” can be found throughout Peirce’s writing, being used to illustrate their “normative” or “important points” [1, p. 71; 4, pp. 11, 16]. It is true there are numerous references to concepts of law, and uses of the term “law”, scattered throughout Peirce’s writing, as there are incidental examples of legal practice. Yet these do not seem to amount to a detailed jurist discourse.
A stronger case can be made for what Duxbury [10, p. 39] notes as “the striking similarity between the philosophy of Peirce and the jurisprudence of Holmes”. Undoubtedly Peirce and Holmes were inspired by, and mutually discussed, the utilitarian social theory of Bain and Bentham, that qualified the individualism of Locke and Mill, and became the basis of Holmes’ prediction theory of public law. Kevelson and Duxbury argue strongly for similarity between these two based on anti-formalist definitions of truth and reasoning. Holmes’ criticism of a formal legal hermeneutics, promoted by Langdell, then Dean of Law at Harvard, was most certainly based on perspectives shared by his “philosophical confreres” at the club (ibid., pp. 35–37).
The second main group at the club comprised experimental scientists, and the laws of nature, evidence, truth and logic were topics that could be shared, from a scientific perspective, with lawyers. Kevelson is quite right to extrapolate about reasoning, as a probable, common interest of the group [12, pp. 9–13].
From this definition, pragmatism is scarce more than a corollary; so that I am disposed to think of him as the grandfather of pragmatism. Chauncey Wright, something of a philosophical celebrity in those days, was never absent from our meetings. I was about to call him our corypheus; but he will better be described as our boxing-master whom we – I particularly – used to face to be severely pummelled. He had abandoned a former attachment to Hamiltonianism to take up with the doctrines of Mill, to which and to its cognate agnosticism he was trying to weld the really incongruous ideas of Darwin [8, 5.12].
The phrase “incongruous ideas of Darwin” is telling, and resonates with numerous criticisms Peirce made about Darwinism (and his philosophical confrere, Hegel) throughout his life. The combination of Bain and Darwin produced a macro picture of social pattern and events, in terms of observable regularities or habits which operated, as natural laws or roles, at a very high level of generality. Darwin seemed to provide an empirical account of natural and social history, one that Peirce certainly responded to in “Fixation of Habit”.
This paper, finally published in 1878 in the Scientific Monthly, was first read to the Club in November 1872. James remembered the occasion vividly [7, p. 98; 11, p. 86], Peirce arriving late, in carriage and dark cloak, before setting forth to “explain how different moments of time got into the habit of coming one after another […] how all regularity is the result of taking habit”. In his recollection, James appeared unsure what Peirce’s paper “was about”. What it was about seems quite crucial to the development of Peirce’s ethical or jurisprudential perspective, and his work as a whole. What it was about was Peirce’s efforts to develop a social semiotic, that would overcome problems of relativism associated with a utilitarian account of social action and habits.
The concept of habit resolved one problem in empirical philosophy—how is generalised knowledge derived from perception—while creating, for Peirce, an entirely new one, that today we would term social relativism. The notion of habit, or convention, seemed to legitimate authoritarian and free societies equally. Peirce argued, in his paper, for a “community of inquiry”, based on communities of scientists, and conceived phenomenologically rather than sociologically, that could supplement and monitor social truths and habits.
Later, legal realism would oppose laissez faire values of capitalism and progress, derived from Spencer’s ideological use of Darwin [10, p. 26]: yet Holmes’ early seminal work seems to derive its social theory of law from Darwin. “Legal realism has close affinity to another ‘ism’, that is its congener, Darwinism” [1, p. 77]. Holmes saw the law as predictable social events, whose merit can be assessed in terms of future outcomes. The law was not fixed through its logic or authority or tradition, but could be regarded behaviourally as a series of judgments that were subject to change, and whose social effects could be predicted: “the object of study is the prediction of incidence of public force through the instrumentality of courts” (ibid.).
His notion of community was thus normative, built around social patterns, and in terms of semiotic concepts of temporality, synchronous. It sought out, through scientific generalisation, broad and predictable, future social outcomes that would provide controls for policy and decision making in the present. However, for Peirce, community was an emergent inchoate phenomenon, distinguished from social norms and habits, and relatively diachronous in its temporality expression: community was constantly affected and determined by particular occurrences and events. Peirce opposed a dynamic and emergent sense of community to the social theory inspired by Darwin: in later years he opposed normative social sciences, to ethics, and became increasingly vocal in attacks of mainstream social thought inspired by Spencer, Hegel or Darwin [1, p. 24; 8, 6.293; 10, pp. 26–30].
Fisch [7, pp. 11–13] argues that the main published account, “the only application of doctrine” of pragmatism, published “during the club’s lifetime”, was the theory of prediction, made by Holmes in July 1872, contained in a summary of his lectures in jurisprudence at Harvard. This was closely followed by Peirce’s paper to the Club, on pragmatism, in November 1872. Chronology is used to confirm a sequence in ideas. For Fisch proceeds to say that Peirce’s pragmatism was a “generalization of the prediction theory of law”. This strong claim is very much along the lines of one put by Kevelson. Fisch and Duxbury concur about the longevity of any ideas Holmes developed at the time of the Club. His early, most radical thought was qualified in his teaching and career at the Bar, but survived to become a major source of his intellectual reputation. The longevity of Holmes’ seminal work at the time of the club, while under the influence of Peirce, is argued by Kevelson as major evidence for the direct and indirect influence of Peirce on later legal scholars, during his isolated later life and long after his death. Yet however strong his claim for chronological and thematic similarity and consensus of themes of the Club, Fisch does not argue from these to an influence or cause from Peirce on Holmes. He concludes that if Holmes saw any members as an influence on his social theory, or pragmatism, it would be James [7, p. 13]. As for Peirce, Fisch concludes, decisively, he “had no interest in law”, certainly not in terms of Holmes’ jurisprudence.
The case against agreement or influence between Peirce and Holmes can be more strongly put, by disputing apparent similarities in their version of pragmatism. However exaggerated James’ claims about an “ancestry of pragmatism” commencing in November 1872, or what Peirce called a “lanterna pedibus in the discussion of dark questions”, Holmes could not have ignored Peirce’s contribution. Yet why should we assume that Holmes’ version of social behaviour can or should be equated with Peirce’s? We cannot assume that because social behaviourism was in its infancy, it was homogeneous. Holmes’ account was based on social theory, Peirce’s on individual action and perception.
We must remember that Peirce’s first or “New List of Categories” [8, 6.545–6.567] sought to unite, through a theory of demonstrative or indexical action, two separate philosophical traditions, Lockean empiricism and Kantian rationalism, represented semiotically, respectively, as icons and symbols. The resulting pragmatic account of knowledge stressed the fallibility of individual synthetic experience. One cannot imagine Peirce concurring with Holmes’ model of law as social change and prediction. Peirce would have regarded as problematic notions of public and community or social evolution.
His mature category of Thirdness, of dialogic exchange and social reciprocity, was based as much on eventual disagreement as concurrence, with the Club’s agenda. In terms of Peirce’s wider inquiry into ethics and community, any argument for the influential role of the Club is reasonable, yet it was an influence, I would argue, that led Peirce away from Holmes, and Holmes towards legal realism.
Historical analysis of the Metaphysical Club seems to be of two kinds. It seems either to question its existence and thus understate its importance, in the development of Peirce’s thought; or it overstates (often retrospectively) a case for consensual truth, about pragmatism, philosophical or legal thought. What seems neglected is the possibility of creative disagreement or “difference” between the club’s members, between Peirce and the lawyers, especially over social behaviourism.
“The Business of the Jurists”: Career Outcomes and the Growth of Legal Realism
Holmes’ apparent distance from Peirce, after 1875, can be explained further in terms of a sequence of events, concerning the careers of both men, which explains the rapid and divergent development of ideas after 1872. In terms of any thesis about the commencement of legal realism, such development is quite crucial.
The undisguised ambition of Holmes [4, pp. 195–214] provided the motivation for this shift in ideas. His social theory of law involved explicit attacks on the formalist theory of Christopher Langdell, Dean of the Harvard Law School, where Holmes, from 1872, sought employment. Holmes chose not to teach the theories that he published in the 1870s, which comprised the bulk of his seminal book, Common Law, on which his reputation would be based [10, pp. 36–49]. Instead of prediction and public values, he stressed, to students, collegiality and professional “respect”. This strategy was so successful that his appointment to the faculty, in 1882, went unopposed, even by its Dean. Criticism of Langdell went hand in hand with copious praise. In Common Law Holmes announced, “the business of the jurist is to make known the content of the law; that is, to work upon it from within, or logically, arranging and distributing it”. His early common adage, “experience not logic is the life of the law” was qualified when the logic and experience were presumed to be that of the professional lawyer. By the time of his late book, Path of the Law, the path of his inquiry was focused. “When we study the law we are not studying a mystery but a well-known profession”. Law is what lawyers do: the reflexive axiom of legal realism was confirmed, and distinguished in its development from the theories of social pragmatism with which Holmes had commenced his career.
Peirce’s pragmatism, on the contrary, in the decades following the club, became more iconoclastic, and moved towards a radical version of the social realism that Holmes had long departed. Peirce argued against Darwinism and Descartes in terms of chance, theism, community and dialogue, all of which variously lost him favour and contributed to his work insecurity. By 1885 his own application for tenure was rejected by Hopkins. Peirce seemed to lack the driving ambition and diplomatic skills that served Holmes so well at a time when his own faltered so badly.
Can Holmes’ lack of acknowledgment of Peirce be interpreted as a competitive lack of generosity [12, p. 87], as Kevelson suggests? Does ambition explain lack of documentation? Was it too convenient for Holmes, like so many others, to ignore the “embittered and neglected Peirce?” [4, p. 196]. History cannot tell: its silences and gaps became just too protracted.
“Shadows” and “Traces”: the Legal Realist Tradition
Kevelson’s historical argument extends to the reception of Peirce’s legal and semiotic thought long after the demise of the Metaphysical Club. She assembles references to him by realist authors such as Frank, Geny and Pound, sees legal references in Morris and Dewey, and sees the longevity of Holmes’s career as evidence for the longevity of Peirce’s indirect influence.
This argument seems to involve two inter-related parts: one, of a proto-semiotic status of legal theories; and second, a notion of “influence” that extends from direct meeting, collaboration and reception, to a most attenuated and indirect sense based on similarity of ideas. Both of these notions are conceptually vague and highly interpretive when applied, and conclusions based on them can become hard to dispute—especially when ideas are credited with implicit, proto or potential status that exceeds their precise expression. Yet both premises can be regarded as essential to her legal semiotic: in order to construct or “invent” a history of legal semiotics, based on legal realism, she needs to evaluate the semiotic status of authors like Holmes and Frank. The reading of semiotic subtexts can be against the grain of intended meaning, and becomes a means of attributing historical, indirect influence, within the shadow of a subtext, based on minimal or absent evidence of direct, conscious reception of Peirce’s work by an author. The subtextual and circumstantial “identification of Holmes with Peirce’s Pragmatism holds, despite Holme’s overt denial” [12, p. 75]. Much like a Postmodern or Derridean scholar who has given up on intentionality, she speaks of “shadows” and “traces” (ibid., p. 81) of Peirce in the work of others, and of his influence occurring in the “hole” of the “Holmesian fabric”. The narrative of Holmes becomes synchronised, chronologically, biographically and intellectually, as the interpretant of Peirce’s (ibid., pp. 75, 95). “In the revolution of modern legal thought it is provocative to see Peirce as a copula, if not as a catalytic force, in creating meaning in that ‘vast ocean of unforeseen consequences’” [1, p. 78].
On closer reading, this sentence appears more like a note, not fully revised for publication. The phrase “revolution in thought”, she acknowledges, is a quotation from another legal author, Wortley, and the remainder of the sentence derived from Peirce, whose full version goes—“There is a vast ocean of unforeseen consequences which the acceptance of the word is destined to bring about, not merely consequences of knowing by perhaps revolutions of society” [1, p. 90; 8, 8.176]. What do these two quotations have in common? Despite the conjunction “that”, that grammatically locates “Peirce as a copula” in this sentence, he was not specifically referring to “unforeseen consequences” of ideas of law, whereas the authoritative allusion to a revolution clearly does, yet it seems to lack semiotic relevance. Both forms of argument are at play: a proto semiotic status of law, that interprets within Peirce, and between Peirce and legal authors, based on highly selective use of both and a presumption of shared interest and influence.
Of course, what these sub quotes do have in common is the conceptual argument of their authors. In terms of a non-empirical history of ideas, or discourse, or culture, strategic comparisons between different authors can be quite standard method. It is also quite possible to read Kevelson in terms of her own inventive, semiotic thought, and abandon its historical “traces”, or at least replace these, unexpectedly, in terms of a claim for her own status in revising and extending legal realism, along semiotic lines. One wonders why a scholar of such merit and achievement seems so keen to work in the shadowed genealogy and authority of a host of others, or in Gadamerian terms to let Peirce “speak her”. Is a strict legal training in precedent in evidence?
Occasionally the history of semio/realist jurisprudence, based on Peirce, is qualified. “One can only suggest, rather than argue, that the connecting link between Geny and Holmes was Peirce”. Influences can be “implied, alluded to, associated with, and/or assimilated”. A claim for Peirce’s influence over Scandinavian realists such as Olivecrona is true only “to some extent”, or is even open “to dispute” [3, p. 82].
A most important, yet not fatal, criticism of her argument involves its interpretation of Peirce, especially, I would argue, his category of Thirdness. It matters less who received what or influenced whom, if legal realism is finally unable to completely represent Peirce’s lifelong inquiry. It might well be the case, that any discriminating discussion of the relationship between Peirce and Holmes explicitly excludes the latter from any history or philosophy of semiotics. Thus, the issue of a semiotic of law, that is fundamental to Kevelson’s inquiry, becomes an inquiry over and against what was said by Holmes. Assuming Peirce did discuss matters of law with Holmes, we can speculate what additional and altercating perspectives he did bring, as distinct from the contribution of Holmes, that could be identified as being “semiotic” in nature.
“Representation as Imaging”: Revising Realism
To qualify her historical argument does not seem greatly to lessen the significance or merit of Kevelson’s work as a whole, in particular its use, in a legal semiotic, of major parts of Peirce’s project. Kevelson seems most impressive in articulating and applying Peirce’s category of Firstness, and its concepts and tools of reasoning, as legal theory. One can only be brief here in representing what are the major parts of her work [3, pp. 79–101]. She argues for the phenomenological and inferential character of legal technology, that facilitate “representation as imaging” [1, p. 74]. Not only the medium but the instrument with which the medium is implemented becomes part of the total process of enacting values, of creating values. Law, and its tools, should be regarded as “instruments” which belong to the experience and “creation of more meaning and sense of value.” In a Deweyian sense she sought a radical empiricism and sense of communicative utility, in numerous case studies of in property and international law she undertook, where Peircean concepts could be “adapted for the service of lawyers and their clients”. From the perspective of legal studies, fresh understanding of key themes, of dialogism, reasoning, pragmatism and community, becomes possible.
Such contributions can be made as part of a revised historical argument, that uses distinct themes of Peircean pragmaticism for historical precedent—and that does not reduce Peirce’s own pragmatic and legal historiography to the utilitarian philosophy of Holmes. Peirce’s historiography is based on a diachronous understanding of time and change in narratives of history, and by extrapolation, in the narrative or evolution, as he termed it, of particular events and sequences of a legal case history.
Utilitarianism methods, one might suggest, have seen their historical heyday and become widely practiced in policy, decision-making and macro-statistical analysis. What have yet to be fully appreciated or implemented in legal domains are features of Peirce’s semiotic that certainly cannot be entirely traced back as far as the Metaphysical Club. Peirce conceived of “diagrammatic” reasoning in 1885, without any contact with Holmes. His mature conception of mediation in Thirdness, is grounded in spatial-temporal facticity of Secondness, and in communicative consensus. Peircean historiography would require a much closer, empirical analysis of events of the Club, details that would admit subtleties of altercation, disagreement and social incoherence in the development of its ideas, and would resist generalised claims about influences and context of semiotic knowledge.
A revised, Peircean, proto-semiotic approach provides an important correction to other, more behavioural histories of legal realism . For instance, Karl Llewellyn depicted legal reasoning in kaleidoscopic and visual terms, and Jerome Frank in geometric [3, pp. 76, 83; 4, p. 213]; while William Twining stressed the conception of art/craft in a realist understanding of Law. Semantic indeterminacy; the creative role of judicial decision making; distinct attributes of case development and historiography; the physical environment and instruments of law; symbolic and mathematical languages: these themes represent a more divergent and complexified account of realism than many forms of legal behaviourism countenance [2, p. xiii]. They can help fill crucial gaps, of theory and rationale, in Mathematics-in-Law, and jurimetric research into judicial behaviour . Such an interdisciplinary conception of science and law, mediated in semiotics, remains a profoundly important, quite essential and largely undiscovered, resource for ongoing legal theory and practice. Any axiomatic, realist understanding, that law is what lawyers, or politicians, do, needs to be expanded in Peircean reckoning, to the more communicative, and ethically grounded, premise that law is what actual clients-in-the-community do.
Assessing Kevelson’s Strong Historical Claim
Kevelson rightly “assumes that the initial basis for inquiry is not a thing, but is a relationship between related functions”. Yet her account of Thirdness, of the dialogic nature of inquiry, unlike that of Firstness, can seem to retain an abstract, if elegant, “thingness” in its theoretical presentation—or rather, like speculative topics in cosmology and dramaturgy, becomes supplementary to a specialised legal discourse and inquiry [3, pp. 152–164, 182–192]. To what extent do they illustrate the full vision of what she terms the “perceived and perceivable consequences on the actual lives of actual people in those societies where creative law exists and flourishes”? One purpose of this paper has been to draw attention to closer, discursive practices of the “actual lives” of Peirce and his peers, as it counts as evidence for any claim of an ‘ancestry’ of semiotic thought.
A revised historical account can only enhance Kevelson’s undoubted strength, which is to offer specialised Peircean insights within contemporary, professional practice, and regard her own work, in the same way as she regarded Peirce’s, as being incomplete. In seeking closer attention to the nature and impact of proceedings of the Metaphysical Club, for any contemporary semiotic of law, we “speak Kevelson” as much as Peirce, yet again. To this task we testify to Kevelson’s own theoretical insight and practical application, as well as her personal dedication and historical inspiration, that first inspired the formation of the Law and Semiotic Roundtable that still continues.
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