Ratio Juris. Vol. 15 No.

1 March 2002 (16–25)

Dissent and the Anarchic

in Legal Counter-Culture:
A Peircean View
ROBERTA KEVELSON*

Abstract. The author analyses the role of dissent and anarchic thinking in modern
legal culture. Such notions traditionally convey opposition to established authority and
are essential for all free and open societies. In fact, the right to dissent and practising
anarchic beliefs exist insofar as a true right of confrontation is guaranteed by the legal
system. In this perpective, the author suggests some correspondences between dia-
logic thinking, that Peirce says allows all ideas to grow semiotically, and the develop-
ment of the role of dissent in the legal culture. Generally speaking, the question concerns
the well-known Peircean dichotomy between chance/spontaneity and lawfulness.
This thesis is exemplified in detail looking at the history of US law, at its outset the
direct consequence of a legal counter-cultural movement against British common
law. Moreover, the possibility of dissent is written into the United States constitution.
At least three modes of dissent are built into American law as legal counter activ-
ities: (1) voices of nondominant religions, (2) dissent within the legal system, e.g.,
dialogue among and within the courts, (3) challenging the legal system sanctioned by
the right to civil disobedience and by other forms of reaction against an oppressive
government.**

I. Introduction: Establishing Links

Both terms, “dissent” and “anarchic,” in my title convey opposition to estab-
lished authority: the former usually with reference to religious institutions
and the latter to the institutions of government. To dissent and to act accord-
ing to traditional anarchistic thought is, simply put, to think otherwise, to be
of an opinion which confronts and opposes official authoritative viewpoints.
From a Peircean framework vital, free inquiry is based upon dissent and
anarchic challenge to institutionalized powers that be.
*Ratio Juris received this paper a few months before Roberta Kevelson’s premature death. The
typescript was unfinished and where possible the references have been completed by Antonino
Rotolo.
**Abstract by Antonino Rotolo.

© Blackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
 Dissent and the Anarchic 17

According to Peirce, it is not only that all thinking is at bottom fallible, but
recognition of fallibility permits one to assume that whatever we hold as
Truth, at any given time and context, may turn out to be an error, and thus
we may move on (Peirce 1967–1979, mss 652, 661, 955).
The right to dissent, to hold and practice anarchistic beliefs, to oppose
wrong-doing where one finds it is in general the mark of counter-cultures.
A free society includes the right of confrontation. By the same token a legal
system which is a part of a free and open society similarly incorporates dissent
into its whole.
A culture, legal or more generally social, which is inclusive of self-
contradiction is, therefore, ambiguous. This intentional ambiguity has been
depicted in ironic representation—globally and through time—as confusion
of forms, i.e., as “grotesques,” e.g., as the Sphinx, or as the Gryphon with the
head of the eagle and the body of the lion. I discuss these creatures—signs of
creative emergent value—in detail elsewhere (Kevelson 1993, 1998). Here I will
confine myself to the phenomenon of legal counter-culture: a fantastic sign.
I offer the above assumptions as footholds, for convenience.
In the following introductory section I will give a short distillation of the
main ideas of this paper which, in subsequent sections, will be selectively
developed in more detail. I will be speaking primarily of legal counter-culture
in the United States.
In the United States the law of the land—The Constitution—is the direct
consequence of a legal counter-cultural movement. The dominant culture was
British common law. Counter-cultures which appeared to speak in unified
colonial voice of dissent presented a consensual force: dissent as revolution.
As von Holst (1889) has noted in his controversial history of the United
States Constitution there had been no consensual ground upon which the
original thirteen colonies stood. On the contrary, the factions of society in the
colonial period were, from the beginning, a mosaic of parts and pieces of old
world culture, with respective built-in aspects of legal culture. Thus from the
start the United States was a pluralistic society which required a pluralistic
legal system that was initially represented by strong states rights forces. The
pull toward central homogeneity was and is still in tension with the push for
decentralization, for heterogeneity.
Given this pluralistic demography and given the successful revolutionary
struggle against the matrix social and legal culture, dissent as such has
been raised from a possibility for independences in everyday life to a moral
mandate. The once pejorative aspects of dissent as disobedience, as unlawful
behavior, have become transformed into a positively-marked sign for free-
dom, for pluralistic freedom, for civil rights, and for a great variety of human
rights which have been a spinoff from the idea of civil liberty. One out of
Many is the Ideal: The actual is diversity, pluralism, rebellion, dissent and
the ever-changing faces which take their places in the changing cast of the
longest run play of this democratic experiment in human history.
© Blackwell Publishers Ltd 2002.
18 Roberta Kevelson

It has become a truism, no less true than Mom and Apple Pie, that the idea
of “the American Way” stands for the notion of Contest. The right to conflict
is, like received law itself, the right to be cherished, defended, housed,
taught and above all, listened to. The prevailing good is that it is good to
fight for the right to fight whether or not the right to fight is a right for right’s
sake.
The profound effect of this one-out-of-many mythicized colonial “consent”
is that the United States law, from its inception, is a schismatic construction.
It is a complex sign-construct of dialogue, of dramatic engagement, and
of all the range of show-types including the burlesque, the melodrama, the
circus and near-tragedy. The mainstream law attempts to represent in the
fullness of its ambivalence the actuality of experience; tastes and textures of
real life, or what Peirce saw as the crux of all semiotic processes. But even in
this great variety of legal experiences the law, at every stage at which it can
be held as provisionally mainstream, is vulnerable and open to challenges
from within and from without: from The People.
Although, as I will discuss further in the following section, dissent is
written into the United States Constitution, it does not become a dominant
force until after the Civil War. Von Holst, mentioned above, also reminds us
that the thirteen colonies had been founded in very different times and under
very different circumstances. Their whole courses of development, their political
institutions, their religious beliefs and social relations, were from the start
divergent, one from the other. It was easier to find points of difference between
them than points of likeness (Von Holst 1889, vol. 1, 2–3).
Nevertheless they were bound together in their common target: the law of
England. The British version of the Common Law held that legal authority
toward which the colonists responded with great ambivalence, with a dilem-
matic mode of reasoning which was to come to characterize the open possible-
ness of the United States. It is an openness which tends to frustrate many with
its lack of closure and resolution, its absence of a constant truth-reference.
That implied interpretant sign of British law continued to be problematic: It
was both the type from which American Law was derived as token, and it
was that general idea from which American Law dissociated itself to become
its own Type, or General.
British Common Law assumed the stature of a great timeless creature. It
loomed archetypical as do gryphons, sphinxes, dragons and unicorns.
Indeed it is this re-emergence of a specter of a matronymic—or patronymic
—law which became the occult target of the social counter-cultural movement
in the United States in the 60’s. It spread across the waters, as social counter-
culture, and was coopted in social institutions world-wide, coopted by the
law, by the marketplaces of ideas and of commodities, to all those various
lands and more from which the people of this country had earlier migrated.
Ironically, it was not defiance of British law, which was the target for
counter-establishment movements in the 1960’s of the United States. Rather,
© Blackwell Publishers Ltd 2002.
 Dissent and the Anarchic 19

the attack was launched against that very value-laden group which had
opposed British rule in the 17th century: the Puritans. Fueled by fervor
for the Civil Rights movement of the 1960’s much of counter-culturalism, in
the courts and colleges as on the streets, was against work ethics, sexual
repressiveness, parental authority in general, and represented a general wish
to cast off positivism in all its reductive modes and return to nature, i.e., to
Natural Law where one could contentedly be more easily a receiver of the
human role on earth and not a maker of man-wrought empires.
At the center of these 1960’s social and legal counter-cultural movements,
which began in the United States and encircled the globe was the Protestant
phantom which called forth, by association, the repressive law of Mother
England. So often in human history combatants become fused into a new
creature, a grotesque complex confusion.
The promise, held out as a carrot, was the belief in a recovery of “given”
law, of “natural law,” or godlike law which ideally makes all creatures equal
in the divine eye. The aim, then as now, of legal and social counter-culture,
of The People versus the arms of official government, is to level all playing
fields.
But legal counter-cultural movements continues, as they are built into
mainstream law. Yet the objectives change as we find at present. In the fol-
lowing, with slight shift of perspective, I want to approach the topic of legal
counter culture and dissent from a somewhat different angle.

II.
At least on three critical levels the law of the United States recognizes,
encourages and institutionalizes a legal counter culture.
On one level divine law or adherence to what people often speak of as a
“higher law” permeates, acts and/or refuses to act in the name of the law of
the land. For example, religious beliefs which sanction killing in war, or capi-
tal punishment, are invoked against the taking of another’s life as murder
in the name of the state. Other kinds of religious beliefs forbid surgery,
medical treatment for disease including inoculation even during outbreaks
of disease of epidemic proportion. Close to these beliefs are a whole range of
cultic beliefs and practices which claim the right to religious freedom. It is
always problematic as to where to draw the line between the rites of secret
societies and practices which violate civil law. A legal counter-culture would
speak for the rights of those who feel the need to be prepared, in the name
of freedom, to take arms against the government which has encroached
upon the liberties of citizens. Dissent of this kind is usually a dissent in the
name of God against the secular law. Most but not all the arguments against
abortion and euthanasia are of this kind.
To the extent that the legal system makes room for beliefs and practices
which, in the name of divinity, overrule practical law, and that this faction
© Blackwell Publishers Ltd 2002.
20 Roberta Kevelson

has an integral role to play in the legal system, the legal counter-culture is
built into the legal system. There are counter challenges as well, particularly
against those laws incorporated into mainstream law which breach the
explicit separation of church and state; these people argue against the role of
a dominant religion in national, nonreligious affairs, such as school prayer,
national observances of religious holidays and so forth.
On a second level the rights guaranteed by the First Amendment and
further re-enforced by the Fourteenth Amendment allow for the law to castigate
itself, i.e., for The People at grassroots level, for example, to introduce and
bring about the passage of law by this popular choice. By petition, the people
as an actual voice of dissent, may effectually make and bring about new law
against the actions of the official lawmakers.
But a century ago John Thornton argued that dissent is violation of American
law in “Jonathan Mayhew Discusses Unlimited Submission, January 30,
1760” (Thornton 1958, 25–8). The point made by Mayhew at the outset was
that the imposition of restraints upon “civil rulers” applies to those officials
in all types of government “indifferently,” i.e., to “monarchical, republican and
aristocratical” government types and all other forms which are generally
understood by the term “government,” the main purpose of which is to tend
the “happiness of society” (ibid., 25).
Mayhew held the position that civil rules are extensions and representa-
tions of divine law, since civil law is the vehicle of the execution of the divine
will. He cites the New Testament to support his thesis of unlimited submission.
This position, however, undergoes enormous modification in its significance:
Ultimately at the highest level, the Supreme Court, the belief that divine will
is asserted through the Supreme Court Justices, endowed the voice of the
Supreme Court with the power for divine self questioning, or dialogic
reasoning. Thus dissent became incorporated into this “highest” law of the
land it would seem. Yet the Supreme Court retains the image of divine law-
giver, or representation of such, e.g., divinity reasons with itself.
By this device some of the most notable cases in the history of American law
are marked by dissenting opinions. For example, we find in the Virginian
Declaration of Rights, drafted by George Mason, serves as a model in the
United States and elsewhere in Europe (The Virginia Declaration of Rights,
June 12, 1776). This Declaration of Rights asserts that “all power is vested in,
and consequently derived from the people; that magistrates are their trustees
and servants, and at all times amenable to them” (ibid., s. 2). This comes only
25 years after Mayhew’s “unlimited submission” argument. It is in defiance
of that principle and is an assletion of dissent even toward those who are the
vehicles of divine law. Thus it is the sovereign people who are the mouthpiece of a
new concept of divine law, and are the voices of dissent against governmental
encroachment of freedom.
To recap the above. Three modes of dissent are built into American law
as legal counter cultural activities: 1) voices of nondominant religious, or
© Blackwell Publishers Ltd 2002.
 Dissent and the Anarchic 21

canonical-type law which view with the dominant divine-inspired law for a
place and for rights created, positivistically, by man-made interpretations of
absolute principles; 2) dissent within the legal system itself, in the supreme
court, or in the dialogue between the state court and within the state-court
systems and the federal high court; and not least, 3) the counter-cultural voice
of the people challenging the legal system, e.g., in grass roots law and in the
null-jury law as in the OJ case. This last, or third type includes the right to
revolt, to civil disobedience, to censure the government and to take arms,
literally force, against an oppressive government. It is the right-as-duty of
citizens to defend their freedoms against a government which has overstepped
its bounds.
Before continuing, I wish to emphasize that dissent, as expressed by a legal
counter-culture, is evident from the earliest days of the United States, not
only between the colonial interpretation of British law but equally between
opposing principles ideological-legal conflict of natural law and of positive
law in the 17th to 18th centuries. A good example of this took place in a con-
frontation in Massachusetts, between the then Governor Thomas Hutchinson
and the Massachusetts House (see Pole 1993, 125).
J. R. Pole observes that this type of exchange was “striking evidence that
the struggle for power in the American Revolution was in essence a struggle
to win a legal argument.” The style of opposition emerged as a “legalistic”
style of argument, which is far more characteristic of dissent in the United
States than in Britain, according to Pole (ibid., 126).
But nearly a century and a half prior to the American Revolution we find
the church wardens assuming the role of guardians as of a “higher law,”
as early as 1635 in Massachusetts and around 1645 in Virginia (Hening
1795, 748).
About a hundred years later the Zenger case of 1735 became a landmark
case on the issue of seditious libel: Here the power of the Grand Jury—
including its power to remain silent—added a force to the jury in American
dissent that was not apparent in the English jury. As early as the 1630’s, then,
the dissenting power of the jury assumed a previously unprecedented place
in United States law. Several decades later the focus on the controversial,
dissenting power of the jury received the attention of the young Patrick
Henry of “Give me Liberty or Give me Death.” The case concerned whether
wages could be paid in tobacco or must be paid in currency. Henry fought
for currency, and for the people: This case became another prototype of legal
counter culture. Currency, of course, affords more free choices than does
tobacco or any other commodity the value of which depends on its equiva-
lent and shifting market, i.e., on a buyer value.
In the next section of this paper I want to suggest some correspondences
between dialogic thinking, that Peirce says allows all ideas to grow semiotic-
ally, and the development of the role of dissent in legal counter culture in the
United States.
© Blackwell Publishers Ltd 2002.
22 Roberta Kevelson

Among requisites in achievement of cultural unity out of diversity—an

ideal in the United States—dialogic thinking is the first.
“For the attainment of our common purpose, it is requisite that the minds
of writer and reader should meet; and that this may never be forgotten on
the one side or the other.” But Peirce says that perhaps the dialogic form of
reason is not taken more seriously because the speaker—whoever is taking
the turn of speaker—needs to “put his own thought into the mouth of one of
his alter selves, his real or ideal listener.” This is felt by some as involving a
“false pretense,” a kind of ventriloquism, and game-playing Pierce suggests.
Yet part of the procedure of dissent is to play back to a speaker her own
thought, with interpretive comment. This is the method of conversation as
continuum dialogue: open-ended, and yet anaphoric as well (Peirce 1967–
1979, ms 610 [1902]). Peirce writes on the importance of dialogic thinking at
precisely the time when Justice Holmes is making his reputation as a
juridical dissenter (but this is another paper; see Kevelson 1997).
Further, Peirce says that a dialogic mode of thinking—or that which I find
analogous with a counter legal cultural dialogue—is unity conceived as
relation. His own thinking takes this form. Sometimes he uses one mode of
thought, namely words and juxtaposes it with another, namely diagrams,
and still others, such as memories, which are mythic, symbolic, and invented
(Peirce 1931–1958, ms 610, 7–10).

III.
Peirce regards the interplay between chance, or spontaneous irregularity—
lawlessness—and that which is established as “lawful” as the very life of the
universe. He says,

Consider the life of an individual animal or plant, or of a mind. Glance at the history
of states, of institutions, of language, of ideas […] Everywhere the main fact is growth
and increasing complexity. Death and corruption are mere accident or secondary
phenomena […] From these broadest ubiquitous facts we may fairly infer, by the most
inescapable logic, that there is probably in nature some agency by which the complexity
and diversity of things can be increased; and that consequently the rule of mechanical
necessity meets in some way with interference. (Peirce 1931–1958, CP 6. 58, 59)

It seems to be more than coincidence that Peirce’s pragmatism with its

pivotal indexical oppositional mediational function should begin to develop
around the same historical period that dissenting activity was becoming a
prominent feature of the United States legal system.
Lawrence Friedman writes about dissent in American law (Friedman 1973).
From the earliest days of the Supreme Court until the 1860’s Friedman finds
very few incidents of internal conflict in the Court. The period between John
Marshall’s Court in the first decade of the 18th century into the mid-1860’s,
Roger Taney’s time, the occurrences of dissent were rare and not notable.
© Blackwell Publishers Ltd 2002.
 Dissent and the Anarchic 23

But after Taney, which is to say after the Civil War, the United States Supreme
Court becomes marked by dissension, by an increasing number of judicial
dissenting opinions.
Friedman does not speculate on why dissent becomes more prominent
and remains so since the mid-1860’s. But I suggest that perhaps the schismatic
impact of the Civil War drove home the point that a people divided is
nevertheless one People, and in the last analysis evolves through internal
conflict to a new phase in the growth of itself as ideally a democratic and open
society.
Thus the Civil War might have been a catalytic factor in the changing style
of the Courts, from an appearance of unified agreement on constitutional
interpretation to open and welcomed dissent.
And significantly this post-war period is precisely that time when the first
native, indigenous American philosophy emerged: Pragmatism as actually
invented as a complex idea by Charles Sanders Peirce. Peirce begins with
the hands-on of a pragmatic method, and out of this method infers a theory:
Semiotics or the theory of signs. Analogously, I suggest, the actuality of the
dynamics of Civil War and its emergent social values produced an implicit
theory of law which pivots and grows from dissent or internal conflict. One
can never know in such cases. One only supposes.
But it is not only in the Federal Supreme Court that dissent becomes a
marked feature after the Civil War. In the high state courts as well “one case
out of ten,” for example in the New York Court of Appeals, “carried dissent-
ing opinion” (Friedman 1973, 331).
It is hard to observe a pattern of dissent at the state court levels but it
looks like those states which are, from a demographic perspective, plural-
istic in terms of a wide range of ethnic and religious affiliations among
the people, were states that expressed this diversity in the courts by
legal counter-culturist activity, i.e., by dissenting opinion. New York, for
example, has been such a state. But Vermont, by contrast, has had a far less
heterogeneous population and has had far fewer dissenting opinions in its
high courts. These are speculations only to be followed through at some
later time.
Worth mentioning and not least among the factors which contribute to the
development of dissent in American Law is that which champions the asserted
rights of farmers and merchants in their ongoing courtroom oppositions to
impositions of excessive government taxes and repressive regulations. Dissent,
in favor of the farmer and the merchant, tends to describe these members of
the population not in terms of underclass status, but rather in terms of their
roles as protectors of a free society. This is a dissent which emphasizes the
importance of spontaneity in an open, undetermined society. It is a point on
which Hayek and Peirce are not only in close agreement, but actually it is the
Peircean notion of spontaneity and chance which gives force to the Hayekian
legal-economic views of the free market economy.
© Blackwell Publishers Ltd 2002.
24 Roberta Kevelson

Respectively thus, depending on the dominant political powers and the

values that are carried, dissent in the law is sometimes for an indeterminate
and open society, and sometimes is against it.
When dissent is in favor of the farmer and merchant it is directly an
Interpretant of the colonists’ revolution against English tax impositions; it is
a representation of non-representation. This revolution is the “representamen,”
or referent, for legal counter-culture in the United States.
In Freedman’s view, “In the legal world of decentralized power,” so
characteristic of America, struggle for and against important laws does not
end with enactment (Friedman 1973, 392). Rather, I suggest, the theme of
dissent on the part of free market enterprise is ongoing: a dialogue in American
law, from about the end of the 1860’s to the present time.
But, in Lacanian terms, in all open systems the “center” shifts. Thus recent
courts take as mainstream value the belief that the freemarket needs to be
controlled in defense of the People. By extension the free marketplace of
ideas is in need of legal regulations as well. A design-oriented, deterministic
Court assumes to speak mainstream values. This is at present “common-
place in American law” (ibid.), and shows that where once the Courts were
the vehicle for the divine law it is now the People as Sovereign which speak
the “highest law.” Thus The People represent the legal counter-culture in the
United States, as a kind of legal Divine intervention.
I bring the paper to a close with a few observations.
First, the origin of legal counter-culture at present in the United States is,
in both state and federal courts, a representation of that conflict between value
systems which characterizes the several kinds of counter-cultures which co-
exist in American society.
Second, among the legal counter-culturists of the 1990’s are the old anti-
establishmentarianists of the 1960’s, reminiscent sometimes, as Interpretants,
of the 18th century revolutionaries. But in large measure today’s rebels are
more like rule-following nerds than Tom Sawyers or Huck Finns.
Lastly, genuine dissent is almost as rare in present day Courts as it was in
Courts prior to the Civil War. There are dissenting opinions, but by and large
little risk-taking. Holmes’ observation of Constitution as a great experiment
seems to have devolved into an experimental form which has lost, or is in
danger of losing, its edge.
Of all the current and viable legal counter-cultural voices it is, oxymoronic-
ally, the voice of the faceless and amorphous middle class which seems to
mouth a genuine dissent, even an extreme opposition to the status quo of
mainstream law.
What began as revolt against a parent law by its offspring has grown to
be several kinds of legal as well as social counter-cultures.
There is always the outraged cry of injustice against the “haves” by the
“have-nots.” And in response there is the counter of the “haves” against the
“tyranny of the weak.”
© Blackwell Publishers Ltd 2002.
 Dissent and the Anarchic 25

Hayek’s two types of ideals at play in American Law contest for upper
hand: the dialogue between Nomos and Theoros—between proponents of the
Spontaneous vs Advocates for the Designed keep the game of legal counter-
culture going.

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© Blackwell Publishers Ltd 2002.