Comparing Natural and Normative Inquiry: The 'Real' and the 'Right' as Ordering Concepts

Abstract

Charles S. Peirce held that the social impulse, the desire to reconcile our personal beliefs with those of our neighbors, leads us to believe in the “independently real.” “The real, then, is that which, sooner or later, information and reasoning would finally result in, and which is therefore independent of the vagaries of me and you. Thus the very origin of the conception involves the notion of a COMMUNITY, without definite limits, and capable of complete information, so that reality depends on the ultimate decision of the community. . . .Reality consists in the agreement that the whole community would eventually come to.”The real is for Peirce an ordering concept in natural inquiry and natural knowledge. In normative inquiry, even more apparent is the role of the “right” as an ordering concept. The notion of the right binds community and directly influences action, as does that of the real. The literature on the right is distinctively structured, and governed by the concept of justice, itself a highly structural idea. There are two distinct bodies of literature on the “right,” the legal and the moral. I focus here on the early literature of legal pragmatism. This paper, prepared for a conference on pragmatist inquiry, draws the following observations: 1. Normative inquiry, and normative knowledge, is driven in law by disturbances in the social fabric channeled into systematized dispute resolution. 2. Legal normativity is a web or network of standards emerging from disparate practices and woven together by professionals whose mission it is to impose coherence, consistency, and predictability. 3. The pragmatist theory of law as social inquiry implies a research program distinct from analytical positivist jurisprudence, which focuses on the concept and definition of law. 4. While the latter confronts the problem of indeterminacy in the doubtful legal case, the doubtful case is viewed by pragmatism as a stage in a continuing process of classification, in that sense comparable to experimental inquiry in natural science.