Abstract
Too often C. S. Peirce’s theory of signs is used simply as a classificatory scheme rather than primarily as a heuristic framework (that is, a framework designed and modified primarily for the purpose of goading and guiding inquiry in any field in which signifying processes or practices are present). Such deployment of his semeiotic betrays the letter no less than the spirit of Peirce’s writings on signs. In this essay, the author accordingly presents Peirce’s sign theory as a heuristic framework, attending to some of the most important ways that it might serve to facilitate a semeiotic investigation of our legal practices. He pays close attention to the ways the topics of history, formalism, reductionism, and generality become, from a Peircean perspective, salient features of legal studies.
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Notes
The “inquirer more or less vaguely identifies himself in sentiment with the community of which he is a member” (CP 8.101; emphasis added; cf. Colapietro [14]).
The most famous formulation of this maxim was its original enunciation in “How to Make Our Ideas Clear”: “Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object” (CP 5.402; EP 1: 132).
Morality is never merely personal or individual; it is always deeply cultural, even (perhaps especially) when moral skeptics and rebels refuse to acknowledge their vast debt to their cultural inheritance.
In The Will to Believe (1897), James captured the spirit of pragmatic fallibilism when he wrote: “Our errors are surely not such awfully solemn things. In a world where we are so certain to incur them in spite of all our caution, a certain lightness of heart seems healthier than this excessive nervousness on their behalf. At any rate, it seems the fittest thing for the empiricist philosopher” (19)—or the pragmatic fallibilist.
But it does not enable us to obtain “a conception of something independent of all opinion and thought” (CP 7.345; emphasis added). This is but one of Peirce’s many rejections of the Kantian notion an unknowable ding-an-sich.
In “How to Make Our Ideas Clear,” Peirce uses reality as his fourth and final example to distinguish the three levels of conceptual clarity (tacit familiarity, abstract definition, and pragmatic clarification).
Peirce appears to be the most paradoxical of pragmatists, exalting theory apart from its benefits to practice (see, e.g., CP 1.75–79; 1.616–48) This is however largely misleading. His point concerns the integrity of theoretical inquiry (a concern rooted in an awareness of how readily such inquiry can be subordinated to, and directed by, external forces).
William James explicitly draws this contrast: “Whenever the option between losing truth and gaining it is not momentous, we can throw the chance of gaining truth away … by not making up our minds at all till objective evidence is in. In scientific questions, this is almost always the case; and even in human affairs in general, the need of acting is seldom so urgent that a false belief to act on is better than no belief at all. Law courts, indeed, have to decide on the best evidence available for the moment, because a judge’s duty is to have them decided on any acceptable principle, and got out of the way” [29, pp. 25–26]. The justice of legal decisions is bound up with their timeliness; and, in turn, their timeliness is bound up with the pressing urgency of rendering an impartial, informed, and principled judgment as speedily as possible.
Near the end of Origin of Species, Charles Darwin underscores one of the decisive benefits of his evolutionary theory: it will relieve biologists of the responsibility of classifying the various shrubbery found in the English countryside: “How much more interesting” does our study of life become “when we regard every production of nature as one which has had a history.” When the views puts forth in this work are taken seriously, “we can dimly foresee that there will be a considerable revolution in natural history. Systematists will be able to pursue their labors as at present; but they will not be incessantly haunted by the shadowy doubt whether this or that form be in essence a species. This I feel sure, and speak after experience, will be no slight relief. The endless disputes whether or not some fifty species of British brambles are true species will cease. Systematists will have only to decide (not that this will be easy) whether any form be sufficiently constant and distinct from other forms to be capable of definition; and if definable, whether the differences be sufficiently important to deserve a specific name” (211–212). What Darwin writes here of the science of life is, at least, equally, true of the doctrine of signs. The “systematists” or formalists are not classing immutable species of signs, but historically emergent and significant functions.
In one place, Peirce stresses: “man [i.e., Homo Sapiens] divines something of the secret principles of the universe because his mind has developed as a part of the universe and under the influence of these same secret principles …” (CP 7.46).
A very fine collection of essays on human practices is The Practice Turn in Contemporary Thought, edited by Theodore Schatzki et al. [54]. The authors of these essays are not (at least not obviously) working in the pragmatic tradition, but their approach is congenial to those committed to advancing the ideas of Peirce, James, Dewey, and other pragmatists.
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Colapietro, V. Peircean Semeiotic and Legal Practices: Rudimentary and “Rhetorical” Considerations. Int J Semiot Law 21, 223–246 (2008). https://doi.org/10.1007/s11196-008-9065-5
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DOI: https://doi.org/10.1007/s11196-008-9065-5