Reclaiming the Commons: Law,Rhetoric,and C.S. Peirce’s Pragmatic Philosophy

I. Introduction

In April 2001, just before the inaugural Word Social Forum, the well-known anti-capitalist activist Naomi Klein delivered her now iconic speech, “Reclaiming the Commons,” at the Centre for Social Theory and Comparative History at the University of California, Los Angeles. She described how “like an elaborate web,” ¹ without “leaders up on top and followers down below,” ² the movement to reclaim the commons was beginning to take shape in activist campaigns all over the world. In the efforts students in the United States are making against corporate advertising, for-profit prisons, and sweatshops, ³ in the direct-action strategies farmers and environmentalists are developing against the planting of genetically modified crops in India and Brazil, ⁴ and in the protests against the oil industry by human rights activists in Nigeria, ⁵ what Klein discerned was “a movement of many movements,” ⁶ “a coalitions of coalitions,” ⁷ one that could grow to “take on corporate power and control, and empower local organizing and self-determination.” ⁸ With other researchers who are working to make connections between movements past and present, in this article, I go back in time to the great American pragmatist C.S. Peirce in order to ask how the law can become a worthy partner for the commons.

Although by many accounts the founder of pragmatism, Peirce is usually remembered as a scientist and a logician. During his lifetime, he wrote thousands of manuscripts in such disparate fields as semiotics, cosmology, and mathematics. ⁹ His academic career was marked by impressive intellectual breakthroughs despite long periods of inactivity due to disability, a painful neurological illness he had inherited from his father, the famous mathematician Benjamin Peirce, as well as substance abuse, reckless gambling, and difficulty working with others. ¹⁰ Peirce left the academy midlife and eventually became a recluse in Milford, Pennsylvania, supporting himself by editing dictionaries and accepting money from his friend, William James. ¹¹ Since much of his thinking was done in isolation, often without the benefit of a community that would help make his work intelligible, Peirce’s oeuvre is scattered, unwieldy, and at times, impenetrable. Yet his irreverence and willingness to think on a cosmological scale make returning to Peirce worthwhile, especially for those of us trying to find new ways of addressing economic injustice.

Peirce’s legacy has many aspects, but there are two that are most relevant to how we might conceive of “the commons” and how we might theoretically and productively engage it. The first is his theory of signs (“semiotics”) and the second is pragmatism. Both of these have considerable relevance to the environmental problems that have been created by capitalism and its collusion with law. At the dawn of the 20th century, Peirce was prescient in predicting that the philosophy of economic individualism underlying this collusion would inevitably lead to collective ruin. Mocking the notion that “greed ensures the justest prices, the fairest contracts, the most enlightened conduct of all the dealings between men,” ¹² Peirce predicted that “the twentieth century, in its latter half, shall surely see the deluge-tempest burst upon the social order.” ¹³ Globally, it turns out, unprecedented concentrations of carbon dioxide in the atmosphere have already resulted in planetary warming measuring 0.8 degrees Celsius, with another two degrees imminent, ¹⁴ and the observable effects now include the loss of coastal wetlands, coastal flooding, storm surges, melting glaciers and ice sheets, and the destruction of coral reefs. ¹⁵ In 2018, the U.N.’s Intergovernmental Panel on Climate Change (IPCC) issued a report warning governments that if they fail to make “rapid, far-reaching and unprecedented changes in all aspects of society,” we will be facing drought, wildfires, floods, and food shortages on an unprecedented scale. ¹⁶ Addressing “all aspects of society” would be a daunting task, but to begin conceptualizing what that might mean, I argue that it is necessary to turn to undertake an updated conception of the commons.

David Bollier and Burns H. Weston give us a taxonomy of salient types of commons in their book, Green Governance: Ecological Survival, Human Rights, and the Law of the Commons: subsistence commons (“forests, fisheries, wild game, arable land, pastures, and irrigation and drinking water” ¹⁷ ); social and civic commons (“public schools and libraries, parks, community festivals, civic associations, and affinity groups” ¹⁸ ); global commons (“the planetary atmosphere, oceans, the polar regions, biodiversity, and the human genome” ¹⁹ ); and digital commons (“the Internet, free and open-source software, wikis like Wikipedia, open-access publishing, collaborative Web archives, and content pools tagged with Creative Commons licenses” ²⁰ ). Every commons is governed by heterogeneous norms rooted in their own cultural, historical, and geographic particularities, ²¹ which as they explain, also gives them a kind of “trans-ideological character.” ²² This delineation of four types of commons leads me to question how we might best think about this, and to ask how “other,” “different” aspects of the commons might be thought to be related.

Rather than propose a specific policy architecture, however, I turn to the work of the semiotician Roberta Kevelson, who with her 1988 book, The Law as a System of Signs, was the first to bring Peirce to legal studies. Kevelson was trained as an expert in Peirce’s semiotic theory at Brown University, and by the late 1990s, she was working in the Philosophy Department at Penn State before becoming the leading scholar in the Penn State Semiotic Circle. Kevelson’s work continues in the tradition of American Legal Realism, a movement of jurists that defied the conservative jurists of their own time by dispelling the notion that the law existed in its own pristine realm, free from social influence. While in Part II I draw heavily from Kevelson’s semiotic expertise, ultimately, I part ways with Kevelson due to her endorsement of Law and Economics. In Part III, I argue that instead of the free market, we can ground legal theory and legal practice in the commons, an evolving “system of signs,” which interact and reconstruct their relationships over time. Even though the commons is at best still an underground concept in legal practice, ²³ I conclude by pointing to two legal organizations that are usefully reviving the forgotten legacy of commons governance first codified in the Magna Carta’s Charter of the Forest, the little-known accompaniment to the Charter of Civil and Political Liberties: Our Children’s Trust and the Community Environmental Legal Defense Fund (CELDF). Neither Our Children’s Trust nor CELDF are perfect organizations, nor are their lawsuits. However, if in her time Kevelson was correct that U.S. law is a fundamentally open system—as I believe she was—I argue that lawsuits like these can still bring about much-needed systemic change.

II. C.S. Peirce, Oliver Wendell Holmes, and Roberta Kevelson’s The Law as a System of Signs

In the late 1860s, in the middle of what he would later come to call the “Economical Century,” ²⁴ C.S. Peirce had just joined the Metaphysical Club, a group of prominent Boston intellectuals that met to discuss what William James called “the very tallest and broadest questions.” ²⁵ It was comprised of three lawyers, Oliver Wendell Holmes, Nicholas St. John Green, and Joseph Warner, and three experimental scientists, Peirce, James, and Chauncey Wright. The group’s discussions often centered around Charles Darwin’s On the Origin of Species, which had just been published, as well as pragmatism, a doctrine that Peirce formulated in a paper he read to the group in November 1872. ²⁶ Peirce was a Boston Brahmin with neither expertise nor interest in law or justice, and most likely, his contributions to the discussion were unrelated to those subjects. At that point in his life, he had just finished a stern course in philosophy under the close instruction of his disciplinarian father, and he was about to embark on his own career as an experimental scientist. ²⁷ Yet as Max Fisch carefully remarks in a footnote to an article about the origins of Oliver Wendell Holmes’s then developing theory of law, Holmes’s collectivist standard of truth “read like echoes of Peirce’s conversation.” ²⁸ Although Holmes never read any of Peirce’s writing until after he had formulated his own legal pragmatism well after the Metaphysical Club had disbanded, there are key affinities between the two thinkers. ²⁹

Holmes, who would go on to become the most influential Supreme Court jurist in U.S. history, was the forerunner of American Legal Realism. At the beginning of the 19th century, the Realists had led the way against formalist jurisprudence by advocating for a decision-making approach grounded in the messy world of facts and probabilities. ³⁰ Holmes had rejected John Austin’s idea that the “law is the will of the sovereign,” ³¹ and he had envisioned the law as an ever-evolving enterprise that “should correspond with the actual feelings and demands of the community.” ³² In a just order, old precedents would be swept away by changing circumstances and would grow to align more and more with the community’s values. ³³ Similarly, for Peirce the scientist and Peirce the philosopher, truth was cognizable, not just “out there.” Peirce was a philosophical realist for whom there was one true definition of a general idea like justice upon which we would eventually converge. The foundation of ethics was therefore the community of sign-using beings reaching provisional conclusions about the relationship between what is and what should be.

Holmes delivered his famous speech, “The Path of the Law” at the dedication of a new building at Boston University School of Law in January 1897. Considered the gospel of Legal Realism, in this speech, he elaborated his “prediction theory of law,” the most complete articulation of legal pragmatism before the Law and Economics Judge Richard J. Posner took up Holmes’s mantle in the 1970s. ³⁴ As Susan Haack points out, for Holmes, the practice of law was the art of predicting “the incidence of the public force through the instrumentality of the courts,” which echoed Peirce’s first articulation of his pragmatic maxim: “consider what effects, might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of the effects is the whole of our conception of the object.” ³⁵ Its aim was to “clarify meanings with references to consequences,” ³⁶ and the judge was supposed to interpret legal concepts according to the “felt necessities of the time” rather than logical axioms. ³⁷ As Haack explains, for Holmes, legal concepts were usefully indeterminate, and much as Peirce maintained that “symbols grow” in use and through experience, Holmes defined the common law as a repository of concepts that develop in use over time, “growing, sporting, spreading, and developing new niches.” ³⁸

At the beginning of her book, Roberta Kevelson takes us back in time to the Metaphysical Club, and with both Peirce and Holmes in mind, she goes on to argue that the community is a valid source of law, that at the most elemental level, the rule of law depends on rhetors with goals and purposes. The scope of her book is impressively broad, and she uses Peirce’s semiotic theory to “establish a theoretical foundation for a new approach to understanding the interrelations of law, economics, and politics” and to explain “our social systems of law, economics, and politics – our means of interpersonal transaction as a whole. . .against the theoretical background of a dynamic, ‘motion-picture’ universe that is continually becoming, that is infinitely developing and changing in response to genuinely novel elements that emerge.” ³⁹ Since its publication, Kevelson’s book has not received much critical attention. In part this is because it was experimental, an early attempt to put Peirce in conversation with legal thinkers. In the opening pages, she proposes to “establish a few intellectual landmarks” ⁴⁰ by walking the field with him, which in her own words, was “a risky venture.” ⁴¹

In my reading of her book and a few of the related pieces she wrote in subsequent years, Kevelson’s effort turned out to be well worth the risk. In The Law as a System of Signs, she broke new ground by envisioning the law as a sign system that in addition to “language, economics, politics, the family, and so on,” ⁴² develops “in a process of transacting and exchanging ideas by persons who contract to accomplish a mutually agreed-upon purpose.” ⁴³ Rather than a unified legal system functioning according to a fixed code, she posits that there are “actually a network of competing and conflicting legal subsystems,” and not “one type of legal discourse, but conflicting modes of legal reasoning which interact in any given period of time and are coeval in any given society.” ⁴⁴ By conceiving of legal events as semiotic events consisting of “the addresser, or the official legal actors; the addressee, or the general public however structured; the context of situation including its history and future; the channel, which in the case of the law is not restricted to the courts, to the streets, or to the official places for doing law but includes also all areas which are involved in the law, that is, the market, the government, and today even those spaces in society once outside the claim of law: the family and interpersonal relations,” ⁴⁵ she was one of the first to recognize law taking shape in the vernacular. Furthermore, she provided a framework through which to account for the interrelationships between the community’s evolving sense of legal legitimacy and legal precedent.

Kevelson intended her book to serve as a counterpoint to John Rawls’s much maligned theory of “justice as fairness.” Rawls claimed that we have an innate sense of justice and that in the “original position,” ⁴⁶ a state in which we are ignorant of our social location, we would choose two principles of justice that would benefit everyone: equality in the assignment of basic rights and duties (“the liberty principle” ⁴⁷ ); and social and economic inequalities are just only if they result in compensating benefits for everyone, particularly the least advantaged (“the difference principle.” ⁴⁸ ) For Kevelson, Rawls’s theory was both too static and insufficiently grounded, and for her as for me, his theory is unacceptably “antithetical to a concept of justice that would imply a process of becoming continuously and infinitely closer to some changing, continuously reinterpreted idea of justice.” ⁴⁹ Minus the quid pro quo quality she imputes to “transactions,” for both of us, justice is “rooted in a community’s sense of what is legitimate in interpersonal transactions which may be but are not necessarily regulated by explicit law.” ⁵⁰ Drawing from Peirce’s semiotic terminology, Kevelson defined justice as an “interpretant sign.” ⁵¹ A sign, according to Peirce, is “a thing which serves to convey knowledge of some other thing, which it is said to stand for or represent” ⁵² and it is part of an ongoing, relational process called “semiosis,” a “living sign process through which one thought gives rise to another, which in turn gives rise to another, and so on, into the potential future.” ⁵³ A sign interprets its object and adds to the meaning of its referent, the interpretant. There are three different kinds of signs. In addition to symbols, or conventional signs, there are also indices and icons, non-symbolic semiotic modalities which represent their objects through direct physical relationships or likenesses. ⁵⁴

For scholars, thinking about the legal system in terms of signs makes legible many of the interrelationships between law on the books and law in the vernacular. This is what Kevelson was interested in—emerging law—law which is generated “through conflicting internal forces within given societies as a result of a dynamic exchange of messages between legal and other social systems.” ⁵⁵ The law is not the reflection of an ideal just state but the result of a process of “emergent significance.” ⁵⁶ Justice is therefore unstable, “a sign of equitable social interrelations in a new, complex, reciprocally self-organizing world.” ⁵⁷ The legal scholar Ugo Mattei and the physicist Fritjof Capra have recently described the legal system in this way, as what they call “an ecolegal order,” ⁵⁸ which is characterized by self-generating networks and flows and which is continually creating and recreating itself by transforming or replacing its component parts in web-like patterns of organization. ⁵⁹ Particularly in a pluralistic society with an open legal system, one such as that of the United States, protests, public opinion, dissent, public action, all of which Kevelson describes as “emergent anarchistic sorts of phenomena. . .patterned conduct of such social outsiders as cultists, religious revivalists, political dissenters, public actions groups, and other,” ⁶⁰ when brought into relationship with the law, have the potential to transform it. As the law and literature scholar Julie Stone Peters quips, the law is not “a univocally ugly hegemon, a force of monolithic evil, [or] an immovable power.” ⁶¹ Far from it. As Kevelson demonstrates, it is a system of signs. Even though it can grow to become increasingly separate from the living world and take on a logic all its own, I also argue that it is never totally impervious to the events of the world.

Regrettably, however, Kevelson supplemented her vision with Friedrich Hayek’s constitutional model as well as the work of key figures in the Law and Economics school. With them, she contended that price is a measure of value and that property is “synecdochal of an entirety of a person’s value in the world.” ⁶² As such, she took up an unfortunate aspect of Holmes’s pragmatic legacy: his declared position that the methods of social science, and particularly economics, are the best way of determining the “felt necessities of the time.” While he wanted to limit the judges’ role to interpreting and applying legal standards according to the community’s evolving values (not to “get as much ethics into the law as they can” ⁶³ ), he ignored how rhetoric could inform these standards, as did the Law and Economics school which would follow in his footsteps.

As the legal scholar A.I. Ogus explains, the trouble with the Austrian School of Economics to which Hayek belonged was that they believed that value is determined subjectively, according to preference and choice in the marketplace. ⁶⁴ In any society, individuals and groups of individuals have different aims, and what is deemed “good” or “bad” is merely a question of which values survive the evolutionary process; cultural development involves conflicts of norms, and natural selection resolves them. ⁶⁵ Hayek then developed this premise into a full-fledged theory of order. He distinguished between two models of social organization: rational constructivism, which assumes that institutions can serve our purposes if they are deliberately designed, and spontaneous order, which as Ogus explains, is “an unplanned process whereby individuals make use of decentralized and fragmented knowledge, limited normally to localized information about prices and costs, to advance their own interests in competition with others.” ⁶⁶ In other words, the spontaneous order is a “system for communicating information: individuals respond to signals, the prices which reflect people’s needs for products (demand), with profits rewarding those whose skill, perhaps luck, enables them to best adapt to those signals.” ⁶⁷ Since we have limited information about our local environments, rules governing the social order should and do emerge instinctively, Hayek contended, and inhibiting the spontaneous order from above halts progress by reducing risk and experimentation on which overall wealth depends. ⁶⁸

The rule of law was essential to his vision because it ensured enough stability to enable the free play of the market, and the judge’s task was only to uphold what he called the “universal rules of just conduct”: first, equality before the law regardless of particular circumstances or social situation; second, principles do not determine concrete solutions to problems that arise out of many, unknowable contingencies; and third, the application of principles to particular situations is not designed to achieve particular social or economic ends but rather reflect the practices which have evolved in the spontaneous order. ⁶⁹ Ogus points out that Hayek’s universal rules of just conduct are “meta-legal principles of the rule of law” that guide human behavior in a world of unknown particulars. ⁷⁰ They establish a political order that enables the free play of the market and sets up a system of rewards based on the marketplace. ⁷¹ However, as Ogus also points out, the rules that emerge unplanned out of the spontaneous order are not necessarily morally sound: “survival is no test of moral worth and the theory can be used to justify any set of rules which develop over time.” ⁷²

While I also reject the idea that an omniscient sovereign can or should try to determine what is good, I also reject the idea that what is good or bad is simply a question of what is expedient. There are legitimate reasons not to accept Hayek’s contention that order should be maintained by the spontaneous order in relation to the universal rules of just conduct. For one, the market is not value-neutral. Law and Economics has made free market fundamentalism mainstream in legal circles and has all but guaranteed the primacy of private property rights in judicial decision-making, but I would underscore that its foremost thinkers have made outrageous claims; for example, that “monogamy [is] ‘the most efficient marital form,’ children [are] commodities who are ‘presumed to have modest price elasticities because they do not have close substitutes,’ and rape [is] an unfair bypassing of ‘the market in sexual relations (marital or otherwise). . .[which] therefore should be forbidden.” ⁷³ Despite the appeal of what Marouf Hasian, Jr. and Edward Panetta call this “anti-rhetoric” of economic discourse, a rhetoric that professes to be neutral and universally valid, ⁷⁴ these examples demonstrate James Boyd White’s point that although it claims to be value-free, economic discourse is in fact “deeply resonant of value, especially in its way of imagining what a human being is, its sense of what motives drive us, its limited conception of human reason, and its image of what would constitute a fulfilled human existence.” ⁷⁵ In his critique of Richard Posner’s pragmatism, one which attempts to ground legal practice and judicial decision-making in a world of unmediated facts, Stanley Fish has also pointed out that free market economics has an essentialist conception of the human being as a narrowly motivated economic actor, and he has persuasively argued that Posner’s pragmatic program, which aimed to subsume law under economics, actually disavows its rhetoricity by subscribing to economic concepts (“‘wealth maximization,’ efficiency, Pareto superiority, the Kaldor Hicks test”), all of which are “hostage to metaphysical assumptions, to controversial visions of the way the world is or should be.” ⁷⁶ As Ogus remarks, even Hayek admitted that when it came to labor law, landlord tenant law, and creditor debtor law, “the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice.” ⁷⁷

Furthermore, I argue that by endorsing Law and Economics, Kevelson subscribes to an impoverished notion of relationality, one which contradicts some of her own best insights as well as Peirce’s pragmatic philosophy. As Kevelson pointed out, both Hayek and Peirce would encourage us to “break the rules that have been codified” and to “reject any law or system of laws that has previously been referred to as though it were fixed and eternal.” ⁷⁸ For Peirce especially, freedom was the highest good, and a “code of may be’s would supplant the code of ought to’s,” as she nicely describes. ⁷⁹ In a pluralistic society with an open legal system, Kevelson describes the boundaries between law and society as porous, with sign systems in general, including the law, as part of an infinitely complex “moving process in evolving ideas and values.” ⁸⁰ This conceptual shift in legal thinking is very much in line with Peirce’s anti-Cartesianism. Rather than a mechanistic worldview where wholes are thought to be made up of their constituent parts, Peirce recognized that there was something else at play, something besides what he would call “firsts” and “seconds,” the nuts and bolts of constructed reality. In “A Neglected Argument for the Reality of God,” Peirce posited three universes of experience: first, pure conjecture, “what happens in the mind of a poet or a pure mathematician”; second, brute fact and actuality, which encompasses the phenomenological experience of resistance; and somewhat mysteriously, the third category, “everything whose Being consists in active power to establish connections between different objects, especially between objects in different Universes.” ⁸¹ At every level, living systems are connected, interlinked in networks and communities where novelty is bound to emerge. Kevelson recognized this dynamism when she underscored that in a pluralistic society, justice is constituted by “social interrelations in a new, complex, and reciprocally self-organizing human world” ⁸² and since society is changing faster than law, “the probability is always given that any portion of law needs reexamination to determine how far it fits the society it purports to serve.” ⁸³ In order to retain its legitimacy, judicial decision-makers have to participate in a dynamic open system in which “all powers must be in motion, must move in concert,” and judges have to be actively engaged in “finding a good fit between the law and the sovereign parts.” ⁸⁴

I would argue that Kevelson endorsed Hayek and declined to follow through with these insights on her own terms in large part because she deferred to his idea of freedom, thereby discounting Peirce. According to what he called “synechism,” Peirce maintained that there is no strict separation between self and other. ⁸⁵ When Kevelson describes our interpersonal exchanges as “concoercive,” ⁸⁶ she ignores this. In line with the logic of the market, she instead reiterates an opinion that has become all too familiar as a principle of social organization: that “mutuality, reciprocity, and cooperation between contracting parties is ideal and unsupported by evidence,” ⁸⁷ and that in our interactions with others, we exchange “money or its substitute, a note, a check, a promise, a service, or something tradable” ⁸⁸ to “satisfy the wants of another to impose on this other an indebtedness to respond or repay.” ⁸⁹ Peirce, on the other hand, openly stated that reason requires that “our interests shall not be limited,” that it must embrace “all races of being with whom we can come into immediate or mediate intellectual relation.” ⁹⁰ Even more emphatically, he argued that our interests “must reach, however vaguely, beyond this geological epoch, beyond all bounds,” concluding that “he who would not sacrifice his own soul to save the whole world, is, as it seems to me, illogical in all his inferences, collectively.” ⁹¹

Kevelson recognized this when she contradicted her own endorsement of Law and Economics in the context of her discussion of human beings as “vague signs.” ⁹² In Peirce’s terms, which she quotes, a sign is vague when “leaving its interpretations more or less indeterminate, it reserves for some other possible sign or experience the function of completing the determination.” ⁹³ “An individual person,” she goes on, “as sign, requires the other who interprets to make its own meaning determinate, that is, an actor with a purpose or goal. Individuals are relates in Peirce’s semiotics.” ⁹⁴ In other words, she recognizes that the other is essential to the emergence of a self, that as the psychoanalyst Jessica Benjamin describes, desire and agency arise in the shared space between self and other, that we only even begin to “feel real” through a process of mutual recognition. ⁹⁵ Where free-market advocates falter is in their failure to recognize that freedom depends on how successfully we can sustain the tension between self-assertion and mutuality, that it is a state in which we can “be with” as well as “distinct from.” ⁹⁶ They also fail to recognize how rhetoric is essential to self-development, since as Vincent Colapietro explains, as “expressive beings and social actors” we are “ineluctably caught up in processes of articulation in which the complex meanings of [our] feelings, actions, and patterns of thinking are time and again open to renegotiation and re-interpretation.” ⁹⁷ In stark contrast, Hayek represents a philosophy which subscribes to what Peirce would call “the metaphysics of wickedness,” the individualistic idea that “I am altogether myself, and not at all you.” ⁹⁸

In his famous essay “Evolutionary Love,” Peirce distinguished between three different kinds of evolutionary change: tychism, evolution by chance, which he associates with Darwin; anancasm, evolution by necessity, which he associates with Hegel; and agapism, in which he positions us as agents of change through “the adoption of certain mental tendencies, not altogether heedlessly, as in tychism, nor blindly by the mere force of circumstance or of logic.” ⁹⁹ Accordingly, he espoused the Paulinian virtues, “Charity, Faith, and Hope,” ¹⁰⁰ as well as what Colapietro calls the rhetorical virtues, “habits [which] enable us to craft the means of expression to serve the purposes at hand and, more fundamentally, to engage in effective deliberation regarding the purposes most worthy of our espousal and service in particular circumstances.” ¹⁰¹ As he explains, what makes Peirce’s theory of rhetoric especially valuable is that he conceived of rhetoric as fundamentally generative. Rhetoric has what he calls “a re-educative” ¹⁰² function, which can open up “fields of exploration in which possible purposes of a truly novel character. . .have a chance of obtaining a foothold.” ¹⁰³ For Peirce unlike Descartes, faith and private inference were insufficient; we have a moral responsibility to reason well and to collectively discover the unknown. While Kevelson is right to point out that Peirce’s ethics was probabilistic, since “the certainty which is most possible is that certainty which at every moment admits to the indeterminacy of the world and yet seeks for small reassurance some measure of stability or some criterion for the time being” ¹⁰⁴ and that as he stated in “The First Rule of Logic,” “what we know we know only in an uncertain and inexact way,” she didn’t emphasize how he insisted that we must evolve through collective investigation, from “tangible premises which can be subjected to careful scrutiny, and to trust. . .the multitude and variety of its arguments.” ¹⁰⁵

As Peirce duly recognized, the emergence of novelty and the breaking up of habits is one of the hallmarks of life. ¹⁰⁶ Through what Peirce called “Musement,” which must be allowed “to grow up spontaneously,” he encouraged us to enter a state of flow, where pausing to notice “some wonder in one of the Universes or some connection between two of the three, with speculation concerning its cause,” we would then partake in the “lively give-and-take of communion between self and self” and formulate a working hypothesis. ¹⁰⁷ Peirce believed that engaging in this process would lead us to nothing less than the “hypothesis of God’s Reality,” and that we would “come to be stirred to the depths of [our] nature by the beauty of the idea and by its august practicality, even to the point of earnestly loving and adoring this strictly hypothetical God, and to that desiring above all things to shape the whole conduct of life and all the springs of action into conformity with that hypothesis.” ¹⁰⁸ This is why Peirce abhorred what he called the “priest-ridden states,” where over-reliant on authority, people learn to regard “unusual opinions with horror.” ¹⁰⁹ This would result in an untenable fixity wherein people in power would “keep correct doctrines before the attention of the people, to reiterate them perpetually, and to teach them to the young, having at the same time power to prevent contrary doctrines from being taught, advocated, or expressed.” ¹¹⁰ As he and Kevelson both underscore, justice, like truth, is a living concept, one that is grounded in a “process of becoming” in which we must actively participate. ¹¹¹

III. The Commons, Our Children’s Trust, and the Community Environmental Legal Defense Fund (CELDF)

According to Peirce, the art of rhetoric is “the general secret of rendering signs effective,” ¹¹² and while laws may be proclaimed by those who have the power to proclaim them, justice still depends on what the audience comes to believe is legitimate in the long run. Working from Chaim Perelman and Lucie Olbrecht-Tyteca’s conception of the universal audience, an audience of all people that extends into the infinite future, John Michael Krois posits three interdependent modes of audience in keeping with Peirce’s three categories: the real audience, the ideal audience, and the audience as it mediates between the real and the ideal. The universal audience is the audience in its “first” mode. In its “second mode,” the audience brings every possible critique to bear on a law that is proclaimed. This is the aspect of the audience that resists, the “brute actuality” that would confront lawmakers. The “third” mode, which is a postulate of Peirce’s theory of rhetoric, is the audience as it mediates between the first and second, the real and ideal audience. ¹¹³ Ultimately, justice is a movement, a constant mediation between what is and what should be. This is a fundamentally vague standard, but nevertheless, one that is purposeful.

Especially in his later work, Peirce faults logicians for “giving Vagueness the go-by” and in “Issues of Pragmaticism,” he proceeds to delineate at least some of what is involved in this mediation through his conception of “critical common-sense.” ¹¹⁴ As Joe Sery explains, common sense has been variously defined over the years, notably by Aristotle, who gave particular attention to the physical senses, Thomas Reid, who regarded it is an indispensable, grounded element of inquiry, and Perelman and Olbrechts-Tyteca, who observed that it often admits what is “beyond discussion,” the certainty against which Peirce so often warns. ¹¹⁵ Pragmatism, which articulates a connection between common sense and good judgment, distinguishes between what Peirce calls “acritically indubitable inferences,” which are the result of beliefs which have been determined by other beliefs, and “reasonings,” operations of thought that solicit our approval based on their being the result of conscious, deliberate inferences that conform to principles. ¹¹⁶ As Peirce explains, the “acritically indubitable is invariably vague,” which is to say it is in a state between indeterminacy and determinacy. ¹¹⁷ As critical common-sensists, our task is not to axe it away, but to work the in-between by updating our beliefs according to the results of experimental reason. ¹¹⁸ This is an active process informed by both “the formation of habits under imaginary action” ¹¹⁹ as well as the surprises of experience. ¹²⁰

Contra Richard Posner, who as Sery points out equates common sense with economic judgment, ¹²¹ I contend that common sense is more accurately characterized by criticality, timeliness, and historical awareness; it is what abides by reason and circumstance. Following Peirce, I would also argue that it is distinguished by its forward trajectory: “the question is, not what did happen,” but what would be the case based on “conceived conditional resolutions” and “conceived conditional propositions,” which “capable of being true,” are eventually proven after “investigation carried sufficiently far.” ¹²² In other words, not only is there one true definition of a general idea like justice upon which we would all eventually converge, but in addition to these “real generals,” there are also “real vagues, and especially, real possibilities.” ¹²³ Fast-forward to today, and in keeping with Peirce’s second articulation of his pragmatic maxim, which zeroes in on “the intellectual purport of our symbols,” ¹²⁴ I argue that the worsening climate necessitates that we investigate possible alternatives to our environmental law framework.

Thirty years ago, Congress passed a series of environmental laws including the Clean Air Act, Clean Water Act, and Endangered Species Act, along with several other state and local statutes, in order to establish a framework through which litigants could bring claims. As time went on, however, the limitations of this regulatory structure started to become clear. For one, the law has been interpreted, applied, and enforced by administrative bodies, which as the environmental law scholar Mary Wood explains, are actually “subject to intense political pressure by developers, industrialists, private property owners, and politicians,” ¹²⁵ despite their professed neutrality. As she points out, since nearly all environmental and land use statutes give federal agencies authority to issue permits, “ironically. . .the law itself has become a major engine of environmental destruction.” ¹²⁶ Wood observes that often, agencies use their discretion to issue permits to allow irreversible damage, and the Environmental Protection Agency (EPA) routinely makes decisions that favor the fossil fuel industry and their government allies.

Wood’s alternative is based on the Public Trust Doctrine, a rarely invoked legal principle which compels the state to act as a steward of natural resources upon which society, the economy, and government depend. ¹²⁷ She dates the Public Trust Doctrine back to res communes, a Roman Law principle which classified air, water, wildlife, and the sea as things held in common by the public. According to this doctrine, the government is a trustee, and since it has an affirmative duty to manage shared resources for its trust beneficiaries – which include both the current and future generations – ¹²⁸ it can serve as a legal basis for bringing two causes of action: first, claims by citizens against their government to enforce trust obligations owed to them; and second, claims by children against their government for breach of trust obligations that compromise the atmosphere and other natural resources necessary for survival and prosperity now and in the future. ¹²⁹

In 2011, Our Children’s Trust filed fifty lawsuits against the state and federal governments on behalf of current and future generations under this doctrine. The legal pleadings in one of the two federal cases, Alec. L. v. McCarthy, unambiguously characterize every federal agency as a dismal failure: the EPA has failed to regulate carbon dioxide emissions; ¹³⁰ the Department of the Interior (DOI) has recklessly permitted logging, livestock grazing, off-road vehicles, as well as extraction of coal, coal-bed methane, oil, shale, and natural gas, and it has permitted electric infrastructure and transmission facilities on public land; ¹³¹ the Department of Agriculture (USDA) has permitted large-scale logging in national forests and has failed to protect the atmosphere from unsustainable agricultural practices; ¹³² the Department of Commerce (DOC) has failed to protect the environment in its efforts to make American industry competitive; ¹³³ the Department of Energy (DOE) has failed to advance the replacement of fossil fuels as a source of energy; ¹³⁴ and how by failing to address climate change, the Department of Defense (DOD) has made the United States, the biggest contributor of greenhouse gas emissions in the world, even more open to animosity by other countries. ¹³⁵

Alec L. asserted “the right to a stable climate and healthy atmosphere” and called on the judiciary to take action by issuing an injunction ordering the federal government to reduce carbon dioxide emissions by 6% per year, make a yearly inventory of greenhouse gas emissions and a carbon reduction budget, and prepare a climate reduction plan within one hundred twenty days of the order. ¹³⁶ Twenty-six prominent law professors filed a brief in support of Alec L., arguing for the courts to recognize this right “in light of the Constitution’s Preamble, which explicitly manifests intergenerational concern by stating the intention to ‘secure the Blessings of Liberty to ourselves and our Posterity,’” ¹³⁷ as well as the Public Trust Doctrine, the Vesting Clauses, the Equal Protection Clause, and the Due Process Clause of the Constitution. As they point out, the pleadings filed in this case indict the government for failing to meet the basic expectation that it ensure “natural resources essential to survival remain abundant, justly distributed, and bequeathed to future generations.” ¹³⁸ The initial complaint in Alec L. describes how the eponymous plaintiff, an asthmatic 16-year-old, used to enjoy hiking and walking in forests over 90% of which no longer exist. ¹³⁹ It also describes how Garrett and Grant S., two of the five other named youth plaintiffs, had moved from a community near the Los Padros National Forest, where extreme weather patterns had resulted in wild fires and draught, to Timberville, Virginia, near a house on the Shenandoah River where they hoped to be “able to play, swim, and fish in the river.” ¹⁴⁰ They soon discovered, however, that the river had become unsafe for swimming as a result of runoff pollution from a nearby factory, and the trout, sunfish, and bass were dying off in large numbers. ¹⁴¹ The law professors persuasively argued that not only is the government responsible for preventing this state of affairs, but that they do so is an expectation so basic that “courts and commentators have rarely specified the specific constitutional texts that support application of the principles.” ¹⁴²

While Alec L. was recently denied, its sister case, Juliana v. United States, is still working its way through the courts. Win or lose, however, the right to a stable climate and healthy atmosphere can create matrices for thought and action beyond the courtroom. Peirce would call a right a “third,” which as John Lyne explains, is “not simply the aggregate of many tiny efficient causes, but a mediating agency that asserts connections in different times and places.” ¹⁴³ Thirds are forces in shaping events which can induce movement in the form of tendencies, laws, and habits. ¹⁴⁴ Rights can therefore “implicate a system of relationships”; they can not only assert relationships but they can act as “thought patterns which collect about them a force of habit.” ¹⁴⁵ Furthermore, as signs, they will inevitably grow. As Kevelson explains: “every interpretation of a sign results in a new, more complex sign, which carries its reference along cumulatively, thereby adding something at each stage of interpretation to the reference which did not previously or initially exist.” ¹⁴⁶ When in Juliana the government and industry claimed that the youth have no “right to be free of CO₂ emissions” ¹⁴⁷ and that “more generally, no court has ever recognized the right to a natural environment free of pollutants,” ¹⁴⁸ I would argue that they defy common sense, making untenable claims that an audience is unlikely to accept in the long run. They also ignore the tradition of rights to the commons codified in the Magna Carta’s Charter of the Forest provisions which are cited in the law professor’s brief, specifically Chapters 33, 47, and 48, as well as res communes. ¹⁴⁹

Although in the former World Bank economist turned commons activist Raj Patel’s words, the woodland commons in 12th century England probably wasn’t “some proto-democratic Eden where everyone got a fair and equal say,” ¹⁵⁰ it did successfully codify a more sustainable way of life based on mutual aid, which as Peter Linebaugh explains, is characterized by “neighborliness, fellowship, and family with their obligations of trust and expectations of security.” ¹⁵¹ As he describes in The Magna Carta Manifesto, before King John levied a heavy tax on the royal barons, stole the forest, took children for ransom, sold women (including his own wife), and set out on a crusade to take the holy lands away from the Muslims, in the woodland commons, people enjoyed relatively equal status in open commons where they gleaned, ¹⁵² acquired fuel, grazed cows, and kept livestock. When commoners forced King John to sign the Magna Carta at Runnymede in 1215, they protected their own and other interests (such as that of the church and the feudal aristocracy) based on the Charter of the Forest’s five core principles: subsistence, neighborhood, reparations, anti-enclosure, and travel. ¹⁵³

The Charter’s relevant provisions include “housebote, hedgebote, and ploughbote,” ¹⁵⁴ which we learn by way of the jurist Sir Edward Coke, are archaic terms that designate quotas for fuel and fencing, rights for building and equipment, and the right to nourishment, as well as the rights to “herbage,” “agistment,” and “pannage,” which guaranteed common pasture, permitted livestock to roam in the forest, and allowed commoners to gather acorns and beech mast. ¹⁵⁵ “Chiminage” and “piscary” protected the right to travel and fish in common waters. ¹⁵⁶ Every person was guaranteed honey, and those who carried wood, bark, and charcoal on their backs could use what they needed to subsist. ¹⁵⁷ Chapter 41 ensured the right to travel by both land and water, and Charter 47 prevented the forest from being “disafforested,” being placed under the king’s jurisdiction, which in turn curtailed the state’s ability to make war. ¹⁵⁸ Even though major legal thinkers are usually champions of private property, for example, the influential William Blackstone, author of the 18th century text Commentaries on the Laws of England, one of the founding documents of U.S. common law, even Blackstone reluctantly admitted that there are elements such as “light, air, and water, which ‘must still unavoidably remain in common.’” ¹⁵⁹ The rights derived from the Charter of the Forest protected labor processes embedded in a forest ecology, and in Peircean terms, they can serve as potential well-springs for the formation of habits.

As is well known, in 1968, Garrett Hardin published a widely circulated article in Science called “The Tragedy of the Commons,” in which he advocated for a different worldview by likening members of the human race to greedy cattle herdsmen grazing their cattle on a common pasture. ¹⁶⁰ As rational beings, Hardin claimed they would try to maximize their own interests by adding more cattle to their herds. The trouble would come in the aggregate sum of their actions: while individually the herdsmen’s actions made sense, collectively, they were destined to ruin the pasture and their livelihood. Hardin’s argument (which he described as “straightforward and Darwinian” ¹⁶¹ ) was that given this reality, “the commons is just too horrifying to contemplate.” ¹⁶² He recommended a regime of “mutual coercion” to preserve our resources over the long term. ¹⁶³ As the political scientist Elinor Ostrom and others have since pointed out, however, the trouble with Hardin is that what he called a commons was not really a commons: there were no customs, no shared practices, in short, no collective management; essentially, he described a free-for-all, with resources open to the taking. ¹⁶⁴

Donning her empiricist’s hat, Ostrom conducted field studies of commons around the world in order to disprove the tragedy of the commons as well as other concepts (the “prisoner’s dilemma,” ¹⁶⁵ Mancur Olson’s “logic of collective action” ¹⁶⁶ ) which have informed policymaking models based on what they call the free-rider problem, that “whenever one person cannot be excluded from the benefits that others provide, each person is motivated not to contribute to the joint effort, but to free-ride on the efforts of others.” ¹⁶⁷ She first located “common-pool resources” (CPRs) (“a natural or man-made resource system that is sufficiently large as to make it costly (but not impossible) to exclude potential beneficiaries from obtaining benefits from its use” ¹⁶⁸ ), including fisheries in Turkey, Sri Lanka, and Nova Scotia, mountain and forests in Switzerland and Japan, irrigation systems in Spain and the Philippines, and groundwater basins in California. She then identified the institutional design features communities use to avoid and resolve CPR problems and to govern themselves more or less independently of the state.

Ostrom’s work was invaluable for foregrounding the importance of “voluntary engagement, dense social ties, and durable norms of reciprocity.” ¹⁶⁹ Her studies also usefully trouble the distinction between the public and the private: in Ostrom’s work, we realize that economic production and civic engagement are not strictly separable. ¹⁷⁰ She challenged the idea that economic questions are better left to the experts, and as the legal scholars Christian Laval and Pierre Dardot underscore, her research demonstrates how production can be based on “democratic frameworks for establishing and implementing rules.” ¹⁷¹ At the same time, however, Ostrom does not go so far as to oppose privatization, let alone recommend re-organizing society based on cooperative principles. ¹⁷² She also declined to acknowledge that historically, commons have been subject to takeover and extinction by state and market forces which must be actively opposed. ¹⁷³

Although the quest to reclaim the commons from privatization may seem quixotic, most Americans are overwhelmingly in support of regulatory enforcement against corporations, ¹⁷⁴ and younger Americans, whose politics have been shaped by an era of economic meltdown and looming environmental catastrophe, are especially attuned to the need for systemic change. ¹⁷⁵ In addition to Our Children’s Trust, CELDF, an organization of lawyers, organizers, and community activists, is now working to mobilize people at the local, state, national, and international level through what it calls “community rights networks” (CRNs), activist hubs that are using rights discourses to build a critical mass of support. ¹⁷⁶ They have identified two complementary activist pathways through which we can “occupy the law” ¹⁷⁷ : first, working from within the system in order to convince existing government institutions to recognize the right to self-government; and second, creating a new system of governance and demanding recognition of the right to self-government through constitutional amendment. ¹⁷⁸

Significantly, CELDF has already assisted Ecuador in drafting provisions to recognize the rights of nature in its constitution. In relevant part, it now states:

Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. ¹⁷⁹

A court in Ecuador has recently upheld these rights against a developer, and CELDF is now working in India, Nepal, Australia, Cameroon, and Colombia to advance the protection of nature’s rights. ¹⁸⁰ Within the United States, it recently helped mobilize over 60% of voters in Toledo to support the Lake Erie Bill of Rights (LEBOR), a document whose provisions would give Lake Erie legal rights and allow the residents of Ohio to sue on its behalf. ¹⁸¹ Ultimately, these lawsuits are unlikely to achieve their aims through litigation alone. As symbols, however, the rights they assert can still contribute to the community’s evolving sense of legal legitimacy. ¹⁸² In Peirce’s words, a symbol, “once in being, spreads among the peoples.” ¹⁸³ The hope is that they will enhance our flexibility and adaptability in the face of changing circumstances. ¹⁸⁴