Drucilla Cornell (1993)
Source: Transformations, by Drucilla Cornell, 1991, publ. Routledge, 1993. First Chapter and half second reproduced here.
1: "Convention" and Critique
There has been no more virulent antiprofessional than Ludwig Wittgenstein, nor a more searing and profound critic of the philosopher's search for stable forms, unities, and essences to secure us against the contingency, the errancy of language. In his later work, Wittgenstein completely rejected the idea that the goal of the philosophical investigation of language was to identify the form of the identity of words with the form of the entity. The later Wittgenstein of Philosophical Investigations was in this sense "antiessentialist" to the core,' and argued against the early Wittgenstein of Tractatus Logico-Philosophicus.
Yet, if Stanley Fish is right that "anti-professionalism is indefensible because it imagines a form of life-free, independent, acontextual - that cannot be lived," Wittgenstein's antiprofessionalism would seem to contradict Wittgenstein's own insight into the sittlich character of language and the situatedness of the individual subject in a pregiven language game or form of life. Was Wittgenstein actually espousing the ideology of professionalism in spite of his self-proclaimed distrust of it? The question, of course, becomes: Is Fish correct in his assertion that antiprofessionalism rests on a philosophically indefensible view of the subject, and of linguistic meaning?
I will argue, on the contrary, that in spite of Fish's careful recasting of the insights of the later Wittgenstein, Fish makes two mistakes that Wittgenstein warned us against. First, by arguing that we are somehow enclosed in our form of life or professional context, Fish reintroduces the very idea of the determination of form that Wittgenstein rejected.' Fish himself critiqued the idea of determination of form in his earlier debates with Ronald Dworkin and Owen Fiss.' In those debates, Fish took his two opponents to task for attempting to predetermine the range of reactivation and redefinition of language.' Fish did not deny constraint altogether, but only the attempt to render the constraints determinate, even if only through the metaphor of a "chain enterprise.") Unfortunately, as his essay "Anti-Professionalism" makes clear, Fish does not follow this insight to its conclusion. His suggestion that we are the prisoners of a rigidly bounded form of professional life reintroduces another version of the myth of the self-presence of form that Fish otherwise and persistently has urged us to reject.
Second, Fish slides from the recognition that linguistic meaning resdes in a form of life to the mistaken conclusion that the preconscious acceptance of convention that makes discourse materially possible necessarily enters into the relevant language games and restricts it. Fish mistakenly concludes that the preconscious acceptance of convention that allows us to participate in our form of life forces an agreement among the participants as to the basic question of how to evaluate one's profession and set the standards it sets for professional life. "Critique," in the limited sense that Fish uses the word, is possible, precisely because we live in an open-ended language game in which disagreement is perfectly comprehensible.
The move, within a I language game, "I think my colleagues are mistaken when they let their need for tenure influence their choice of research topics" is perfectly coherent. Critique, even as it rises to the level of antiprofessionalism, does not necessarily coincide with the belief in essences or a form of true meaning.
Ironically, to deny critique is to deny that there is a social reality, a horizon which encloses us and liberates us, enabling us to disagree as much as it enables us to agree. The very line between critique and convention is itself blurred. As Wittgenstein reminds us, when we appeal to communitarian standards in order to make sense, we cannot also delimit the entire repertoire of community standards. " Fish implicitly recognises the shifting values in English departments that now allow for the acceptance of doctoral theses on detective novels. He does not, however, appreciate the wider implications of his own insight: To conceptualise the constraints of professionalism is to once again render them determinate.
Both of these mistakes have implications for Fish's critique of the subject. Fish argues that the very idea of the critique of professionalism demands a transcendental subject, "a self or knowing consciousness that is under the sway of no partial vision, and is therefore free (in a very strong sense) first to identify and then to embrace the truth to which a disinterested knowledge inescapably points." I will argue, to the contrary, that the linguistic-philosophic critique of the constitutive subject does not erase the subject without a trace, but forces us to think about the subject, including the self-reflective subject, differently. It makes perfect sense within our form of life to say with Wittgenstein: "It's a good thing I don't allow myself to be influenced!"
One caveat: When I speak of critique I am using the word in the very mundane sense - I am merely arguing that standards used to critique professional life need not replicate the ideology of professionalism. I am not, in this essay, addressing the fundamental question of whether it is possible to critique our philosophical cultural tradition: what Jacques Derrida has called phallogocentrism" or Theodor Adorno calls identity-logical thinking." As we will see in the later essays included in this volume, I agree with both Derrida and Adorno that ultimately the practice of critique leads us to confront phallogocentrism. Wittgensteinian "therapy" cannot solve all of our problems precisely because Wittgenstein refused to recognise the full significance of the Other to established systems of meaning, such as the unconscious. However, such "therapy" can provide us with an answer to Fish. Therefore, I avoid the question of whether or how one can move beyond phallologocentrism or identity-logical thinking in this essay not because I think the question is ultimately irrelevant to the issues raised by Fish, but because Fish is not grappling with critique at that level. Fish would dismiss Adorno's and Derrida's insistence on the Other to established forms of life as more of the same bad metaphysics that both thinkers purportedly deconstruct.
Nihilism, for Fish, is another symptom of bad metaphysics; it is the flip side of the foundationalism he attacks in his essay. As I have already suggested, Fish's contribution to the debates on objectivity in interpretation can best be understood as a recasting of the insight of the later Wittgenstein. Fish repeatedly emphasises the sittlich character of linguistic meaning. When one grasps the sittlich character bf language correctly, the very subjectivism that troubles Dworkin and Fiss vanishes as an illusion. As Fish explained,
The point is one that I have made before: it is neither the case that interpretation is constrained by what is obviously and unproblematically "there," nor the case that interpreters, in the absence of such constraints, are free to read into a text whatever they like.
Interpreters are constrained by their tacit awareness of what is possible and not possible to do, what is and is not a reasonable thing to say, and what will and will not be heard as evidence, in a given enterprise; and it is within those same constraints that they see and bring others to see the shape of the documents to whose interpretation they are committed.
Yet Fish also understands that the constraints that enable meaning cannot be made determinate, foreclosing the reactivation of definition. We cannot pin down the meaning of a word once and for all, precisely because of the sittlich character of language. Derrida has brilliantly shown how the iterability of language implies both sameness and difference. Words as signs are iterable or repeatable by any general user. Derrida accepts Wittgenstein's demonstration of the self-contradictory nature of the idea of a private language. Language communicates because it is public-given meaning within the relevant group of inquirers. The repertoire of community standards is thus independent of any particular empirical subject. The very intersubjective character of language allows for both understanding and communication and for misunderstanding and reactivation of the range of definition.
Described in this way, the intersubjectivity of language - its capacity to function as a vehicle for the repetition of the same by different subjects - is, ironically, at the same time its capacity to be torn away by reader or heater from what it meant to its issuer, so that it continues to mean something, but not identically what it meant to its writer or utterer. Thus, the very sittlich character of meaning keeps it from being fully saturated by any particular context. The boundaries of context are always shifting: There is no ideal self-sameness which guarantees exact repetition of meaning.
To deny this is not to reject the sittlich character of linguistic meaning nor to argue for unlimited freedom in interpretation. As Wittgenstein wrote, "The wall always has some determinate degree of elasticity - whether I know it or not." Our immersion in a horizon of historical understanding does constrain us, but it cannot absolutely enforce agreement on the basic questions of life. The attempt to exhaustively determine the form of the constraints fails. The contextual nature of meaning requires that possible new meanings inhere in the very commonness of language. Wittgenstein's (and Derrida's) critique is aimed at the principle of identity, not at the possibility of contextual meaning. To quote Wittgenstein:
"A thing is identical with itself." - There is no finer example of a useless proposition, which yet is connected with a certain play of the imagination. It is as if in imagination we put a thing into its own shape and saw that it fitted.
We might also say: "Every think fits into itself." ... At the same time, we look at a thing and imagine that there was a blank left for it, and that now it fits into it exactly.
Does this spot [*] "fit" into its white surrounding? - But that is just how it would look if there had at first been a hole in its place and it then fitted into the hole. . . .
"Every coloured patch fits exactly into its surrounding" is a rather specialised form of the law of identity."
Wittgenstein recognised the contextual nature of meaning but opposed the attempt to rigidly circumscribe it, to render any context a self-identical form. In other words, meaning is revealed in context but not absolutely determined by it. Because meaning is not determined by context, disagreement, critique, and the generation of new meanings are always possible.
Fish seemingly understood this difference in his debate with Dworkin. Fish rejected Dworkin's attempt to explicate the determination of the constraints on interpretation through the metaphor or example of a group novel." Fish's central point was that each new writer in the chain can potentially reactivate the range of definition and by so doing shift the understanding of "what direction has already been taken." Dworkin wanted to cement the boundaries and thereby delimit the enterprise as the later writers in the chain come to a project whose form has become ever more clearly delineated. Fish, in response, showed us that the boundaries of the form of the project need not necessarily hold and can always yield to a different interpretations, Context is not just there; it must be confirmed or disconfirmed, over and over again. The appeal to the context of the already-developed novel does not provide us with security against innovation and critique.
For all of his insight into Dworkin's failed attempt to define boundaries, Fish himself now falls into the very trap he warns against. In his essay, professional practice becomes a bounded form of life from which escape can only be envisioned by a transcendental consciousness. Fish, of course, denies that such a consciousness exists. As Fish explains, anti-professionalism underwrites a self that is able to see through the mystification of "rhetoric" and acieve an independent clarity of vision; a truth that is perspicuous independently of argument, and which tends only to obscure; and a society where pure merit is recognised and the invidious rankings imposed by institutional hierarchies are no more.
And why, according to Fish, must antiprofessionalism appeal to a "transcendental subject" or an "essentialist" view of linguistic meaning? For Fish the inevitable immersion of the individual in her profession is "merely a recognition of the fact that needs and values do not exist independently of socially organised activities but emerge simultaneously with the institutional and conventional structures within which they are intelligible. But Fish's conclusion does not follow from his premises: If our form of life, professional or otherwise, is inevitably unbounded, if there is no context of all contexts to complete experience, then our immersion in socially structured activities does not lead us to conclude that we are helplessly imprisoned in them. The certainties of professional life are only too like the other supposed certainties of life. They can be challenged. As Wittgenstein reminded us in On Certainty, logically even the most obvious, mundane perceptions may be thrown into doubt. As he wrote sitting in his room in England,
Would it not be possible that people came into my room and all declared [that I am not in England]? - even gave me "proofs" of it, SO that I suddenly stood there like a madman alone among people who were all normal.... Might I not then suffer doubts about what at present seems at the furthest remove from doubt? ... Might I not be shaken if things such as I don't dream of at present were to happen?
Our certainties are not so firmly anchored that we cannot touch them, nor are our language games ossified into a substratum that completely blocks the formation of new ways I of being in the world. Fish directs his fire at Duncan Kennedy and Robert Gordon, two antiprofessionals," yet, what more are they really asking of us than that we question the certainties of legal education and envision a legal world composed of things which we don't dream of at the present? It is perfectly consistent for Gordon both to recognise that "the legal forms we use set limits on what we can imagine as practical options: Our desires and plans tend to be shaped out of the limited stock of forms available to us," and yet still to insist that "the institutional space that defines ... the present shape of things" can be challenged, precisely because the present shape of things is not a rigidly bounded form. Fish's basic mistake (one that Wittgenstein warned us against) is to confuse the assemblage of accepted uses and practices that constitute a form of life - the preconscious quasi-fact which precedes all intentionality and subjectivity - with an enforced agreement between subjects to which language predestines us and from which we cannot escape. The unbounded world of instituted meaning allows us to disagree as well as to agree, to rebel as well as to conform.
Albrecht Wellmer explains the agreement that makes discourse materially possible:
This given mutuality of a linguistically disclosed world can be interpreted as an agreement in language; only we ought not to think here of "conventions" or of consensus which would be either rational or irrational. The agreement in question is rather constitutive for the possibility of distinguishing between true and false, rational or irrational. . . .
Or as Wittgenstein himself has put it: "So you are saying that human agreement decides what is true and what is false?' - It is what human beings say that is true and false; and they agree in the language they use. That is not agreement in opinions but in form of life. Wittgenstein is not a conventionalist but a challenger to the realist/conventionalist divide. If my niece mistakes a green ball for a red ball I do not say to her, "No dear, the majority of the speakers in our form of life think of that colour as green." I simply say - with tact, I like to think - "No, you are wrong. That is a green ball."
The agreement of a form of life need not exclude the possibility of dissent and critique. The individual does not passively find herself in a form of life; she is a participant in it.
At the moment when the individual gets the idea of the language game of language as a system of practices in which he participates the expressive relation between himself and his community becomes problematic. The knowledge that words are also deeds introduces the logical possibility of asking: do the available words represent deeds of a kind that I can perform without shame? ... The philosophical exercise which brings our commitment to consciousness, compels us, as Stanley Cavell points out, to pass a rational judgement on those commitments, and so to either reaffirm or renounce them.
We are not fated to agree or to act out our social and professional roles like automatons simply because we are immersed in a linguistically constituted horizon. Of course, Fish is right to suggest that there is a pull to the acceptance of constraint in a shared socialising process, professional or otherwise. But what Fish locates is just that, a pull.
Alienation from one's chosen profession or educational background is very much a part of our social reality. Whether or not the critic will be reduced to a role as ironic observer or will instead be hailed as a pioneer for a new way of being in the world depends in part on whether the critical vision takes hold in the form of life. As Wittgenstein reminds os, "If someone is merely ahead of his time, it will catch him up one day.
Yet doesn't my very use of the word automaton imply the idea of a "free, acontextual subject," the view of the subject that Fish critiques? Is Fish correct that the linguistic-philosophic critique of the subject ends by completely undermining critical self-reflection? And indeed, of what exactly does the linguistic-philosophic critique consist? Fish never tells us.
Albrecht Wellmer has succinctly described the Wittgensteinian critique of the intentional, constitutive subject:
Here it is a question of the philosophical destruction of rationalistic conceptions of the subject and of language; in particular the destruction of the idea that the subject with its experiences and intentions is the source of linguistic meanings. In its place we could speak in Wittgenstein's sense of a critique of the "name theory" of meaning: this theory says that linguistic signs obtain meaning when somebody, a user of signs, allocates a sign to something given-things, classes of things, experiences, classes of experiences, etc., that is, allocates a name to a somehow "given" meaning.... Language philosophy's critique of rationalist language theory naturally does not begin with Wittgenstein and it does not end with him; but in a certain sense Wittgenstein was in my opinion its most important exponent in our century. Wittgenstein's philosophising incorporates a new form of scepticism which calls into question even the certainties of Hume or Descartes; Wittgenstein's sceptical question is "How can I know what I am talking about? How can I know what I mean?" Language philosophy's critique destroys the subject as author and as final judge of his meaning intentions.
Wellmer precisely locates the view of the subject undermined by the Wittgensteinian critique of the name theory of meaning. The very commonness of language renders language essentially independent of an individual's intention to give it meaning. The subject immersed in an already-embodied social reality cannot achieve the self-transparency necessary to keep intent pure. Language is the Other to the individual; not her own expression.
But does this mean that critique is an impossibility? Is the subject simply erased or instead reduced to a structural resistance, to an irreducible heterogeneity? Ironically, the very linguistic-philosophic critique of the subject to which Fish appeals turns against his own argument. To be an "I" does have meaning in our form of life. Given the formal recognition of the "I" as distinct from a social role within the legal system (and within other social institutions), the individual becomes an aspect of social reality which cannot so easily be erased. The abstract negation of the "I" denies what it purportedly affirms: the embodiment of social reality in and through language. No one understood the sittlich character of social and political life better than Hegel. Yet, for Hegel, the unique aspect of modernity as a form of life is precisely the institutional recognition of the subject separate from social role. The individual who insists that she is something more than the professional role in which she is engaged is not simply asserting with one of the proud traditions of Western democratic revolutions. The move within a language game ("I am right and everyone else is wrong") is perfectly coherent in our form of life. Nor is the assertion that I am right merely the assertion of my opinion.
The belief that "I am right and everyone else is wrong" prefigures, through its explicit realism, a condition in which others will have come to share my own current practice with regard to the application of normative concepts - to share, in other words, my own values and beliefs. A world in which that condition obtained would be one where "reality" in the positive sense (i.e. that which is fixed by the content of the propositions in the consensual world-view) had come to coalesce with "reality" in the critical sense (i.e. that which is fixed by the content of the totality of propositions that I hold true).
We must confirm our agreement or our disagreement with established communitarian values, including the values perpetuated in our profession. A form of life is not a straitjacket that binds our thoughts, unless one reasserts the idea of form as a self-contained identity, the very idea of identity that Wittgenstein deconstructs. We are part of the story we tell, including the story of what it means to be a "professional." Furthermore, the very assertion that critique is foreclosed by an all-encompassing context, demands an appeal to a stand beyond context that Fish himself denies as an impossibility. Derrida has repeatedly shown us that the structuralist attempt to reduce the subject to contextuality fails." Derrida himself usually speaks of this failure as the effects of subjectivity due to his awareness that the very idea of the subject is bound up with an exclusionary conception of Man. As we will see throughout the rest of these essays, I agree with his philosophical deconstruction of the identification of subject with "Man."
Derrida does not mean by the phrase "the effects of subjectivity" that there is no subjectivity or that subjectivity can be reduced to an effect, in the sense of something objectified "out there." To positively define the "I", as an effect, or even as a site or locale, is to objectify the "I" in accordance with the traditional discourse of the subject which reinstates a subject/object dichotomy with the twist that "I" now becomes an object. This is a reversal that does not truly shift the boundaries of the discourse of the subject. We can call the "I" a "who" rather than a "what" to avoid the objectifying language that reduces the "I" to "a place," an exteriority through which competing constructions of "it" are received or resisted. To reduce the "I" to a "what" denies the full burden of responsibility imposed upon an "I" who generates effects and by so doing affects others precisely as a singular "who." The problem with the objectifying language is that it confuses the recognition that the "I" is necessarily extroverted and, therefore, can only be "known" in its exposure to otherness with the reduction of the "I" to a kind of substance, if this time a substance moulded by "its" context. Someone is only as she is exposed and yet there remains someone. Fish's conception of the self is perhaps the most extreme expression of the objectifying tendency that inheres in the abstract negation of the subject. The "I" for Fish is only as it is objectified in its external roles. I will deepen my own analysis of how the "I" becomes identifiable as a unique someone over time in the next essay when I discuss the relationship between agency, innovative capability, and recollective imagination.
For now I want to stress that if we take seriously the linguistic-philosophic critique of mentalism that Fish endorses, we are not forced to forget the subject, but to think about the subject differential Fish is right to argue that the Wittgensteinian critique of the name theory of meaning deconstructs subjectivism through the uncovering of the linguistically constituted social reality which precedes all intentionality and subjectivity. But we are not left with a world without selves. Our world, our linguistically disclosed social reality, is rather a world in which "the individual who was constituted by historical and cultural forces [is able] to 'see through' those forces and thus stand to the side of his own convictions and beliefs."
One of those ways of being within a professional environment is to rebel against an unnecessarily limiting way of seeing and experiencing law and lawyering, which can separate lawyers (as well as the other actors in the legal system) from their sense of responsibility to their own values, to argue that there are values that are more important than a successful climb in the law school hierarchy. It is not that acting or playing a part is an inferior form of behaviour; it is instead a question of what part one plays. To argue that we are immersed in an already-constituted form of life does not negate our responsibility to it or our rebellion against it. Our form of life may have an alienating, theatrical quality, but we are still the actors and actresses. The antiprofessionals, whom Fish attacks, call on us to question our certainties and to dream again about a different way to pursue our endeavours, whether as law professor, lawyer, or literary critic. And why not dream, and dream again, even if, as Wittgenstein reminds us, "a man's dreams are virtually never realised," (let alone a woman's). The dream of a different way of being may only be timorous at first. Yet, as Adorno has beautifully written,
no sunrise, even in mountains, is pompous, triumphal, imperial; each one is faint and timorous, like a hope that all may yet be well, and it is this very unobtrusiveness of the mightiest light that is moving and overpowering.
2: Pragmatism, Recollective Imagination, and Transformative Legal Interpretation
This essay explores my understanding of legal interpretation as "recollective imagination." Such a project demands the rethinking of the relationship between the past, embodied in the normative conventions which are passed down through legal precedent, and the projection of future ideals through which the community seeks to regulate itself. A subsidiary goal of this essay is to redefine pragmatism with a focus on the work of Charles Peirce. Throughout this essay, I will show the relevance of Peirce's conception of pragmatism to my own understanding of legal interpretation as recollective imagination.
Peirce's unique conceptualisation of the relationship between the retrospective and prospective aspects of legal interpretation allows him to highlight the importance of the imagination in the enunciation of legal and normative ideals. Therefore, his work helps us to rethink how we should conceive of legal interpretation. It also helps us determine exactly how Critical Legal Studies has contributed to the debate over how we should think about legal interpretation. Peirce can also help us in developing a conception of agency that is consistent with the active role of the judge engaged in the process of what I am calling legal interpretation as recollective imagination. Peirce offers us a convincing account of how we as lawyers, law professors, and judges come to be open to the invitation to create new worlds.
Pragmatism has been adopted by legal scholars, but Peirce's voice has, unfortunately, not been heard. The result is that many neopragmatists reduce the process of interpretation to the evolution of convention or to the strategic overhaul of the legal system in the form of an external future ideal. In Law's Empire, Ronald Dworkin has critiqued this version of pragmatism.
According to Dworkin, the pragmatist supposes that members of a community treat their association as only a de facto accident of history and geography. Pragmatism thus ignores the past in favour of visions of the future. The pragmatist does not simply deny principles and rights; rather, she refers to them only as they are strategically useful for the actualisation of her own ideal community. Allegiance to her present community is not required if it falls to meet her ideal. She just happens to be a member of this community and no other and nothing follows from that coincidence. For Dworkin, pragmatism requires that judges only look to what they think would be the best future for their community when they ponder a legal decision. Therefore, the pragmatist who operates within our common-law system, with its emphasis on precedent, is a liar, for she appeals to precedent not in the name of the principles it enunciates, but in the name of her own vision. Legal pragmatism, for Dworkin, leaves us with the worst kind of subjectivism in interpretation as each judge attempts to wilfully impose her best vision of the future.
My argument in this essay is that Peirce's brand of pragmatism does turn us to the future in a very specific sense of the word, but that such a turn does not reduce rights and legal decisions to strategic instruments being manipulated in an attempt to build the best possible community. Indeed, I will suggest that Peirce's understanding of semiotics may well provide the best framework for understanding the seemingly paradoxical role of temporality in legal interpretation. I believe the phrase "recollective imagination" captures that seeming paradox.
The Truth of Indeterminancy and the Process of Recollective Imagination
What Exactly Is the Indeterminacy Thesis
Perhaps no phrase has been more misunderstood by legal scholars than the "Indeterminacy thesis" developed by the Conference of Critical Legal Studies. The "indeterminacy thesis," as it has been interpreted by its critics - and sometimes, if rarely, by its proponents - is taken to mean that the critique of the logic of identity, which reflects the idea that there is a self-enclosed form of life to which we can appeal in order to cement meaning, leads us to conclude that there are no shared standards of communicability.' But this is a mistaken interpretation of indeterminacy. The concept of indeterminacy is meant to indicate that we do not question by gazing down on institutionalised standards of communicability from a transcendental viewpoint; rather, we question from within our shared context. Yet, as we question, we also inevitably affirm meaning as the "basis" for our understanding of the process of questioning itself. Charles Peirce explained that we can only begin questioning from within a given linguistic context with established interpretations of signs.
Peirce studied more carefully than anyone the institutionalisation and Wittgensteinian of meaning as the habitual structures of thought we take for granted as our representational schema. Yet, Peirce was one of the first thinkers to insist on the "Indeterminacy" of any linguistic or semiotic field. If indeterminacy is not the outright denial of shared standards of intelligibility, then what exactly is the "truth" of indeterminacy?
To answer this question, we must explore the truth of indeterminacy on several different levels. For Peirce, the notion that the truth of all reality lies in the realised whole is the central mistake of Hegel's absolute idealism. In the language of semiotics, reality cannot be reduced to the objective norms of our collective ethics, what Hegel called Sittlichkeit, or, for that matter, ever be fully captured by a system of signs. The "real," in other words, cannot be reduced to the ideal. There is always an excess that disrupts the full identity of the sign with its object. Peirce explains this as follows: A sign is always in referential relation to some other sign or interpretant. Signs are never simply self-referential or mere representations of an object. In this sense, there can be no full determinacy of any institutionalised system of meaning, including the legal system, because the sign itself always points us to another sign beyond the repetition implicit in self-reference or direct reference to the designated object. As long as the sign is determined in a relation to another sign, there can be no closure of the process of interpretation in the discovery of the truth of the actual. The otherness of thought to being inheres in the insight that we think - only within a semiotic field in which reference always involves an appeal to another sign and not directly to the object that it represents there is a diachronic moment inevitable in any semiotic system which disrupts the full reconciliation of meaning and ethical truth of being. This is what allows Hegel to recollect the past as the reality of the present. The beyond to the system is "there" in the diachrony, which prevents self-enclosure. On one level, then, the "Indeterminacy thesis" is the recognition of the otherness to the Hegelian Concept that disrupts totality and opens the chasm between meaning and being. This is also what Peirce has called "Secondness."
The Peircean Critique of Absolute Idealism
The category of Secondness is the key to understanding Peirce's break with Hegel's absolute idealism. Secondness is the real that resists, or what Peirce himself has called the "Outward Clash."' Secondness is that against which we struggle and which demands our attention to what is outside ourselves and our representational schema; Peirce's category, Secondness, indicates the "mutual action between two things regardless of any sort of third or medium, and in particular regardless of any law of action. Secondness is dualistic precisely because it involves struggle. The irreducible exteriority of what Adorno called the "suffering physical" is an example of what Peirce would have called Secondness.
To justify his category of Secondness, Peirce does not need to deny the mediation of all human knowledge of reality. Secondness is what remains, that which cannot be fully captured by any system of signs. It is, as I noted in the first essay in this book, the Other or the limit to symbolisation that is missed by Wittgenstein. Secondness reminds us that there is an irreducible otherness that remains "beyond" to all systems of conscious meaning. For Peirce, all knowledge of reality, on the other hand, is triadic. Human knowledge is enfolded in the habits, rules, signs, and modes of conduct that Peirce designates as thirds. Thirdness is the category usually associated with Hegel's Sittlichkeit, except that the time frame of Peirce's Thirdness turns us toward the future (in a very specific sense) rather than toward the past of what has been actualised. As Peirce explains, "No matter how far specification has gone, it can be carried further; and the general condition covers all that incompletable possibility."
Peirce often used the example of law to demonstrate the significance for interpretation of his category of Thirdness. His example of "giving" demonstrates the triadic structure of Thirdness:
A gives B to C. This does not consist in A's throwing B away and its accidentally hitting C. . . . If that were all, it would not be a genuine triadic relation, but merely one dyadic relation followed by another. There need be no motion of the thing given. Giving is a transfer of the right of property. Now right is a matter of law, and law is a matter of thought and meaning.
The condition of generality, or "lawlikeness," pervades all thirds. The openness to the future inherent in Thirdness yields an essential indeterminacy that cannot ultimately be theoretically, or even practically, overcome.
For Peirce, human conduct, precisely because it is general and habitual and embodied in thirds, includes "would he's " " and, thus, a future potential that cannot be reduced to repetition of the past." The very habitual structure of sittlich commitments leaves the habitual "structures " open-ended. To argue, then, that we are immersed in an already-given historical reality of understanding is not to turn that reality into a prison which bars us from innovation, for the exact opposite is the case.
We can now use Peirce's understanding of the essential indeterminacy of Thirdness to uncover the fundamental mistake inherent in Stanley Fish's "internal realism." Peirce argues that Hegel's central mistake was to reject the indeterminate possibilities inherent in a concept of the future as undetermined by the past of what has already been actualised. Fish makes the same mistake by reducing the conditional generality of Thirdness to a finite set of past and present regularities that replicate themselves in and through institutional structures.
It is still correct to argue that our habits are encased in the storehouse of knowledge, which includes the accepted generalities and regularities that make conduct sensible. Even if the conditional generalities of conduct cannot be reduced to any given set of past regularities, they are still dependent on them to the degree that they arise out of them. As Peirce explains,
How, then, does the Past bear upon conduct? The answer is self-evident: whenever we set out to do anything, we "go upon," we base our conduct on facts already known, and for these we can only draw upon our memory. It is true that we may institute a new investigation for the purpose; but its discoveries will only become applicable to conduct after they have been made and reduced to a memorial maxim. in short, the Past is the storehouse of all our knowledge.
Interpretation, then, is retrospective in the sense that we always begin the process of interpretation from within a pregiven context. The process is also prospective, because it involves elaboration of the "would be's" inherent in the context itself. Peirce explains that ascertaining the meaning of a norm or proposition involves us in an imaginative enterprise. We conjecture what it would mean if we were to conduct ourselves in accordance with a particular proposition or habit of mind.
We imagine ourselves in various situations and animated by various motives; and we proceed to trace out the alternative lines of conduct which the conjectures would leave open to us. We are, moreover, led, by the same inward activity, to remark different ways in which our conjectures could be slightly modified. The logical interpretant must, therefore, be in a relatively future tense.
The logical interpretant is the conjecture inherent in a general proposition. We ask ourselves what it would mean if we were to guide ourselves and live in the world in accordance with a particular conjecture. The "as if" as a process of understanding is part of our day-today law school culture. We practice the "as if" in the hypotheticals we use teach students the meaning of a particular legal rule or proposition. We ask our students to grasp the meaning of the rule through conjecture. The "as if" is oriented toward the future in that we project the proposition onto a future situation in order to draw out its meaning. This future is implicit in the act of interpretation. As Peirce argues, "The species of future tense of the logical interpretant is that of the conditional mood, the 'would be.'"
We understand the meaning of a right through this same process of conjecture. The meaning of a right as a general proposition is uncovered in the process of conjecture just described. Ronald Dworkin is wrong, then, to suggest that law as integrity, is more relentlessly interpretive than ... pragmatism," although it is important to add here that Dworkin is not speaking of Peirce's work when he defines pragmatism, but of the neopragmatists he associates with the Conference of Critical Legal Studies." The principal aim of Peirce's semiotics is to show that all knowledge is interpretive. The disagreement lies in Peirce's belief that the very process of interpretation demands conjecture and, therefore, the imagined "would be." The insistence on the future as the horizon for the effectuation of meaning is not instrumentalist as Dworkin argues. it does not deny the text in favour of an instrumental vision of the future; nor does it deny that we are always oriented toward the past, precisely because we are in a pregiven context. The future orientation of which I speak has two aspects. First, insofar as all signs only refer to other signs and not directly to reality, there is no past that is simply "there" for us to recollect. As a result - and this is the second aspect - we seek the meaning of an account of our legal history in how it guides us in our future conduct, because we cannot validate its truth as a purely descriptive manner. Because the "past" is always offered to us within competing interpretive frameworks, we cannot prefer one framework over the other because one is not a framework at all but a pure account of what "actually was." We must, instead, look to how these accounts can guide us in grappling with the legal problems we are now confronting. The very idea of the meaning of the text itself arises in and through the process of conjecture. Peirce explains as follows: "Pragmatism makes the ultimate intellectual purport of what you please to consist in conceived conditional resolutions . ." There are, in other words, conceived conditional resolutions that do stabilise meaning. Indeed, a judge's decision can itself be understood as a conditional resolution, which, if it is enforced, will effectively stabilise legal meaning.
This argument should not be confused with the position that would simplistically deny the material weight of the past in favour of the view that a conditional resolution is purely a matter of instrumental construction. We cannot just reach back to the "actually was" as if there were a preinterpretive past that was "just there." We receive the past only through the process of critical interpretation. Peirce shows why the insistence that meaning always demands conjecture leads us to conclude not that there is no past, but that the meaning of the past cannot be reduced to a pure description:
It cannot be denied that acritical inferences may refer to the Past in its capacity as past; but according to Pragmaticism, the conclusion of a Reasoning power must refer to the Future. For its meaning refers to conduct, and since it is a reasoned conclusion must refer to deliberate conduct, which is controllable conduct. But the only controllable conduct is Future conduct. As for that part of the Past that lies beyond memory, the Pragmaticist doctrine is that the meaning of its being believed to be in connection with the Past consists in the acceptance as truth of the conception that we ought to conduct ourselves according to it (like the meaning of any other belief). Thus, a belief that Christopher Columbus discovered America really refers to the future.
Peirce's insistence on the category of Secondness indicates the material weight of the past that never can be fully recollected. Given that the past cannot be fully recollected, it also cannot be known other than through interpretation.
The past, in other words, grasps us. We cannot grasp it. Yet it is precisely the "thereness" that we cannot interpret away that makes the past Secondness. The past is there, but not finished. We cannot wrap it up and present it in a determinate conceptual schema as Hegel wanted us to do. Yet even so, no one is denying that there wasn't a body of land that Christopher Columbus ran into in the past. (Yes, even the attribution of this act to a man named Christopher Columbus is an interpretive attribution.) When we think about the full meaning of that "reality" we can only do so within an interpretive structure that is oriented to the future, in the sense that what it means that Christopher Columbus discovered America can only be resolved if we think about what it means for us to guide our conduct by that position. This future orientation does not also mean that there are not conditional resolutions within any given interpretative framework. But these resolutions can only be conditional, since reinterpretation is always a possibility. Yet to argue that reinterpretation is always possible is not necessarily to say that it is always a reality - since no one may call the conditional resolution into question. Past legal precedent, as institutionalised meaning, can be best understood as a body of conditional resolutions.
Conditional resolutions are conditional in that there is no necessary relationship to their logical interpretant and, therefore, they can always be interpreted differently. In the case of law, we can know what the law means only if we open legal precedent, which contains its "would he's" to the questions we are asking because they are put before us in a current case. The very effort to guarantee continuity of the "spirit" of the law demands that we restate the normative message of the legal text. What we pass on, however, cannot be the letter of the law, as if there were a plain meaning that is simply there to be excavated, but instead must be its spirit. In this sense, as already suggested above, the enunciation of the legal principle inherent in the judge's decision implicates the "should be." Continuity in legal interpretation is always continuity in principle in Dworkin's sense. A legal verdict is a creative supplement to the texts upon which it relies, which once again brings the meaning of the text to life by telling us how we should guide our conduct in the future. The reconstruction of principle to address the questions with which we are confronted arises not out of a vacuum, but through the potential of the "might have been," which always remains in our reality of historical understanding. The very statement of what the law is, in turn, implicates the "should be," because it depends on justification of a particular interpretation since there can be no pure statement of what the law "is." There can be no acritical reference to the past in the law that does not imply justification. I call this process of legal interpretation "recollective imagination." I will explore the implications of understanding legal interpretation as recollective imagination through the example of Roberto Unger's deviationist doctrine.
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