JOHN BRIGHAM

UNFORTUNATE LOCUTIONS

ABSTRACT. Participants in the Amherst Seminar have contributed to a substantial

body of scholarship linking theory and practice and often associated with the presence
of law in everyday life. Developing that link in the tradition of the seminar is the
guiding principle of this collection. Here, I would like to go back to before the Amherst
Seminar.

I NTRODUCTION

From 1980 to 1995 I participated in a faculty seminar billed as The

Amherst Seminar on Legal Ideology and Legal Process. We were political
scientists, anthropologists and sociologists interested in the study of law
in its social context. The title set out our initial aspiration and scholarly
project. We had been trained in the 1970s both in the post World War II
empirical social science of the day and in critical responses to it. Some
of us did ethnographic or site specific research and considered the work
empirical. Others were more theoretical. We represented, at least initially,
the poles of positivism and we sought a way out of this dichotomous world.
We hoped, in the conversations work that was presented to the seminar,
and in our conversations about it, to bridge the divide between theory and
practice in socio-legal research.
The initial impetus was the 1980 annual meeting of the Law and
Society Association. Austin Sarat chaired a local arrangements group
that included future seminar participants Ron Pipkin, Barbara Yngvesson
and me. I recall Lynn Mather, who was at Dartmouth College then,
suggesting a seminar that would take advantage of the relatively close
proximity of a number of socio-legal scholars. The group met primarily in
Amherst, Massachusetts occasionally traveling to Boston and Worcester in
Massachusetts. With Sally Merry and Susan Silbey at first and then Patricia
Ewick traveling from the eastern part of the state and Christine Harrington
and Adelaide Villmoare traveling from New York. One of the remarkable
things was how stable membership was over the first decade. We were all
linked to the law and society movement and the Law and Society Associ-
ation which had been started in the late 1960s by a group of social scientists
International Journal for the Semiotics of Law
Revue Internationale de Sémiotique Juridique 16: 349–362, 2003.
© 2003 Kluwer Academic Publishers. Printed in the Netherlands.
350 JOHN BRIGHAM

interested in law. The association was young but successful when we first
began to meet and we were too.
At least in part due to the seminar, the association moved to Amherst
and with Ron Pipkin as executive director it grew in size and influence.
A number of participants in the seminar were elected to preside over
the association or serve in other official capacities. Participants have also
contributed to a substantial body of scholarship characterized by a kind of
socio-legal research that is seen as linking theory and practice and often
associated with the collective endeavor of the seminar. Developing that
link in the tradition of the seminar is the guiding principle of this collec-
tion. Near the beginning, I would like to go back to before the Amherst
Seminar.

B EFORE THE S EMINAR

The Seminar was, to a significant degree, an inquiry into epistemology.

For me, the effort to understand epistemology had begun in high school.
At the time it seemed important but I had no idea how persistent the issue
of how we know things would be. As a subject that has for me continually
examined the common sense division of the world into facts and values, I
have some remarkably vivid high school memories. Epistemology is also
linked to my undergraduate experience at the University of California,
Berkeley in the late 1960s. But, the beginning was high school. Definitely
high school.
The 1950s, a period that lapsed into the early 1960s, has come, for
many, to symbolize the last throws of innocence in America before the
Kennedy’s, Martin Luther King and Malcolm X were killed, California
epitomized this innocence. This was a place and time duly recorded in
images of a car and beach based youth culture fueled by the baby boom,
Rock and Roll, and cheap gasoline. Bands like The Beach Boys and the
Kingston Trio, which were important then, mingled good times with a folk
lineage that would be transformed into the counter culture that emerged a
few years later. This was a time of magical beaches, protected suburbs,
and automobile driven freedom that has been kept alive in black and
white television reruns of Leave it to Beaver and Father Knows Best. It
also appeared, it almost seems prematurely, as nostalgia in the Stephen
Spielberg and George Lucas movie classic from the 1970s, American
Graffiti, which was about the graduating class in a California high school
in 1962. That was the year I was a junior at Menlo-Atherton High school,
thirty miles south of San Francisco.
 UNFORTUNATE LOCUTIONS 351

M-A, as this school continues to be known, is a large, suburban high

school. It had about 100 teachers and 2000 students when I attended and
it was less than ten years old. The school is located in a very prosperous
suburb in what is known as “the Peninsula.” It is south of San Francisco
in “the Bay Area”. The school drew from middle and working class
communities that surround it as well as what was even then one of the
wealthier regions in America. The buildings felt quite new in the late
1950s. The school had been constructed after the Second World War
to accommodate the front edge of the baby boom and was built in the
California modern style – one story, a flat roof, open hallways and plenty
of parking.
My class and those immediately ahead of me were born in the last
months of the War to parents who for one reason or another were not sepa-
rated for the entire period of the conflict.1 We were also in the vanguard
of an extraordinary migration to California that included, by high school,
some of my classmates who had recently arrived. Ultimately the sheer
scale of the migration would turn into the exportation of California culture
to the rest of the United States and to the world. Musicians like Stevie
Nicks and Lindsey Buckingham of Fleetwood Mac come out of the period
and the school. The Grateful Dead emerged from the region.
In this setting I developed some of my most important relationships.
High school taught me a great deal about the world and my place in it.
Friends in later years would suggest that perhaps I enjoyed high school
too much, sometimes suggesting that I had peaked too early. Yet, a rela-
tively small percentage of what I learned was about cars, sex, surfing
or the beach. School did what it was supposed to do. We learned about
race relations and, in my case, an interest in politics, history and liter-
ature was stimulated. I competed for my school in various sports and
political simulations. I struggled with the work delegated to me and with
new responsibilities like organizing the Latin Club Toga party and the
sophomore dance. I worried about who I would be and whom I would
go out with. Rather remarkably, in the midst of all this, I was introduced
to the puzzles of epistemology. From an unlikely beginning, these puzzles
and some basic theories introduced to me as a teenager have continued to
direct my life and my work. In particular, it was at M-A that “Semiotics,”
the science of signs, came to my attention. And it was in high school that
my interest in materiality was peaked.

1 My father had been stationed in San Francisco, one of my classmates was born in a
“relocation” camp in Montana that had been set up to hold Japanese-Americans in World
War II.
352 JOHN BRIGHAM

Contemporary views of suburban California, in the late 1950s, ran

more to action like surfing or cruising in cars than to intellectual pursuits.
The Peninsula and the area around Menlo-Atherton, though connected
geographically, seemed far from the Bohemia of San Francisco and the
political environment that would come to be identified with Berkeley in a
few years. And, although we grew up in the shadow of Stanford University,
where important developments from personal computers to the counter
culture have had defining moments, this seems to have been an unlikely
place and an unlikely time to get into the study of language and symbols
and their place in debates about how we know what we know. One source
of a particular intellectual tension in the high school was Malvin Dolmatz
the physics teacher, another was Charles Mendoza, the advisor to the
student paper, and another contribution to this mix was a group of
adolescents playing with their identity, often, mixing their delicate egos
with the ideas of their teachers.
Mr. Dolmatz wore a white lab coat to teach, and a bow tie. He had
very little hair – just enough to produce a mad scientist look that placed
him, in what I remember of the consciousness of the time, as somewhere
between Einstein and one of the Three Stooges. The aura of madness seems
to have been cultivated and it had a measurable effect on us. He was a
character and, like many characters, an inspired teacher.2 In the high school
curriculum, Physics came near the end of the college prep science program.
It was preceded by Chemistry on the non Life Sciences track and was taken
mostly by seniors or precocious juniors. In those days one of the results
was that the class had very few young women in it. In my year I think there
was one. The guys who had made it this far were often not considered the
most interested in women anyway. Most of the seniors were immersed in
the college application process. By fall of senior year everyone was already
a little punchy.
This was a time of considerable racial tension. We were all quite naive
by present standards. The school culture, in which a surprising amount of
learning did go on, was dominated by cars, social hierarchies, considerable
diversity in material wealth which was seldom talked about and the specter
of race which was itself largely subsumed in the promise of colorblindness.
We did things like dedicate plaques with black and white hands clasping
in an effort to establish bonds with the largely black Ravenswood High
School that had been built just a few miles to the East and across the
freeway. We were naive not only in the liberal sense because we believed
good intentions would put an end to racial discrimination and that racism
2 Along with another fine teacher, Harry Wong, Malvin Dolmatz produced an influential
collection on the role of ideas in the study of science.
 UNFORTUNATE LOCUTIONS 353

was simply an affectation of whites in the deep south easily transcended

in our emerging culture of great weather and economic opportunity. But,
we were also naive because we thought of the all black school across the
freeway as just the way things were. We held out our hands, like on the
plaques, when we had athletic exchanges with Ravenswood but we did
not feel any more responsible for that school than our parents from the
American South who expected separate toilets and drinking fountains. We
did not feel implicated in the decisions of a school district that had built
Ravenswood in East Palo Alto even though some would hold; only a few
years later that it had discriminated in putting the school there in the first
place where it would inevitably be nearly entirely black.3
Charles Mendoza, the advisor to the paper and an English teacher was
Portuguese and he referred to himself in a self-deprecating way we would
wonder about in more sensitive times. I think Mr. Mendoza was from the
city, San Francisco. At least he went to school there. He was the advisor
to Bear Tracks, the student paper. Mendoza and Dolmatz were among a
substantial number of teachers who brought us the latest in intellectual
challenge. Mr. Mendoza’s contribution stands out for the impact it had
on the high school culture. He also had a substantial and rather remark-
able impact on the semiotics issue that is the purpose of this foray into
a suburban past already much discussed. Although I was never in his
classroom, the things Mendoza taught still echo through the imagined halls
in my head.
In one advanced class, again at the upper end of the college prep
sequence for juniors and seniors who were quite full of themselves,
Mr. Mendoza attempted to enlighten his charges in the fundamentals of
semantics. I would learn to see semantics as an aspect of semiotics, but, at
the time, I had a limited frame of reference and the term simply sounded
rather exotic. Mendoza named the class for the text, Language in Thought
and Action, by S. I. Hayakawa.4 This book was a practical logic text. That
is, the work was an academic treatment on clear thinking and clear writing
that was written to be accessible to college student and was a bit of a stretch
for high school. The book was also filled with all sorts of slightly weird
stuff that might tempt a teenager who was exposed to it.
Hayakawa, the author, was then a teacher at nearby San Francisco State
College. I don’t think we knew that until later, or what it might mean. It
would make sense that a book came from “the City” which was the source
of wealth, knowledge, and various debaucheries. And, we assumed that

3 A few years later, Ravenswood was closed by court order as being in violation of a
then expanding concern that de facto segregation was not always simply de facto.
4 New York: Harcourt, Brace and Co., 1949.
354 JOHN BRIGHAM

Mendoza probably knew the author, which made the whole experience all
the more potent. We would hear of Hayakawa later as the controversial
President of San Francisco State College during riots in the 1960s over the
War in Vietnam and racial diversity on campus. He later became United
States Senator from California. His book had first been published twenty
years before, in 1941. Back then it was made a Book of the Month Club
selection. Hayakawa had been a student of Alfred Korzybski, whose book
Science and Sanity (1930) led the way in a movement to guard against the
propaganda of the pre-War period. Hayakawa also incorporated the work
of Ogden and Richards, Thurman Arnold, Jean Piaget, Susanne Langer,
Kenneth Burke, the psychologists Karl Menninger, Karen Horney, and
Carl R. Rogers, and the cultural anthropologists Benjamin Lee Whorf,
Ruth Benedict, and Margaret Mead. The names meant nothing at the time
but have come to mean a very great deal to me in laying out the roots of
semiotic inquiry.
One of the reasons the work was such a good text was Hayakawa’s
effort to “add examples drawn from daily life” and his “applications” of
the theories of language he offered. Hayakawa’s experience, the life on
which he drew, even to that time, was extraordinary. He studied at the
Menninger Clinic, was a columnist for the Chicago Defender, which he
described as “a Negro weekly.” He also ran a small co-op grocery store
and did research on jazz and fold music. He started a journal of practical
semantics, ETC., and kept up an active scholarly schedule while teaching
four classes a semester to his San Francisco State students.
It is not totally surprising that this remarkable scholar laid the founda-
tion for our activity but I believe the stimuli were as much local as textual.
When a cult formed at M-A around “language and thought” and Mr.
Dolmatz, a group of seniors and some students in my class, the Junior
class, made it happen. I think Bob Kahn and Greil Marcus must have
been in there somewhere and also Peter Benjaminson, though Pete denies
it.5 The group were young intellectuals, out of sync with the dominant
Beach Boys ethos of sun and surf, fast cars and fast times. Their rebellion
anticipated the more widely chronicled rebellions of the late 1960s. The
group called themselves “The ‘Matz Patrol.”
At about the same time, a few miles away, Ken Kesey and the Merry
Pranksters were embarking on less institutionally based journey that
became immortalized in Tom Wolfe’s Electric Kool Aid Acid Test. This

5 Benjaminson reports finding Mendoza on a map of Argentina while in class, but that
Mr. Mendoza denied any connection. Benjaminson today has a map for a shower curtain
in his New York apartment and is intrigued by its misrepresentations (Juarez is not on the
Mexican border, and Newfoundland appears twice).
 UNFORTUNATE LOCUTIONS 355

was the beginning of the Counter Culture and an initial inspiration for the
Grateful Dead who began as the Prankster band. Even more dramatic a
link is the fact that the post Jerry Garcia manifestation of Dead culture is
the “Furthur Tour” in the summer of 1996. “Furthur” was inscribed on the
license plate for the bus driven by the Merry Pranksters.
I was not a member of the Merry Pranksters nor would I have been
considered among those identified with the Dolmatz cult but I counted
many as my friends. I took physics in my senior year, after things had
settled down a bit in the semantics wars. However, the ‘Matz Patrol had
impressed me and they made me nervous in 1962. Since the Beach Boys
made me nervous too with all that sun and time spent on the beach, this was
not the sort of distinction it might seem to be on first inspection. While the
Beach Boy’s and the California car culture dominated the scene, the ‘Matz
Patrol found oblique ways to make an impression, less widely interpreted
ways to draw attention to themselves. One of the things they did was to
wear white lab coats to basketball games and sit high in the bleachers under
a banner declaring their identity as “The ‘Matz Patrol.”
And they would cheer. The coats were strange enough in the context of
my high school in the early 1960s. But, the cheers were really weird. Part
of the weirdness was that the cheers would erupt at any time. The ‘Matz
Patrol would cheer when the referee called a foul on the other team. But,
they might be just as likely to cheer when a foul was called on our team.
They cheered when someone made a basket; it didn’t matter much which
team had scored. And, they cheered when someone swept the floor. They
cheered a lot when the Pompon girls came out and jumped around in short
skirts swinging crepe paper balls or pompons in both hands.
The more lasting impression was what they said. It came straight out of
Hayakawa. Somebody might have just scored or maybe nobody scored
and the students in the ‘Matz Patrol would yell, “The Map is not the
Territory; The Map is not the Territory.” The reference was to a principle
of “language in thought and action” that cautioned avoiding confusion
in speech and writing by not mistaking something in the world for its
signifier. The map was just a map. It was supposed to be considered as
a representation. The territory, the land and the stuff on it, was something
else. No doubt we were meant to see it as something real, or more real, like
a car, or a basketball.
Maps and territories are a big part of Language in Thought and Action
with 37 references in the index. For instance, Hayakawa proposes “we
all live in two worlds...the world of happenings about us (the extensional
world) . . . [and the world] that comes to us through words (the verbal
356 JOHN BRIGHAM

world).”6 In this framework, the map stands to the territory as the verbal
stands to the extensional world. The message was that we should beware
of false maps. These were ones where there was a gap between the exten-
sional and the verbal. False maps were ones where what we have in our
head is not reflected in the world. Hayakawa offers superstitions such as
the rabbit’s foot as one example and the idea that a word like democracy,
because it comes from the Greek, means Greece is necessarily democratic,
which it wasn’t when I was in high school. Many of the examples in the
1949 edition, from the preoccupation with the “mistake” of superstition to
fears ranging from communism to sex, seem too archaic to worry about
today. But, his message was formulated during a fearful time and even in
later editions those fears were still reflected in the text.7
The ‘Matz Patrol cheer was disconcerting to some of the other members
of the High school community. One wondered what was going on up there
in the stands while others were chanting “Defense” or spelling out the
name of the school in highly orchestrated chants. I suspected that the
principal worried that there was something dirty going on. He seemed
to always worry about that. It was always something, one minute patent
leather shoes on high school girls, another, billows of smoke rising from
car windows in T-lot out by the gym. The map might not be the territory
but it might be a penis. And then where would we be. I think the parents
assumed that this was some sort of attack on property. The 50s were not
entirely dead yet and the cheer had a communist ring to it. Meanwhile, the
‘Matz Patrol simply went on chanting “The Map is not the Territory. The
Map is not the Territory.”
From a version of semantics that aspired to teach careful thinking and
logics for everyday life, the mantra had been transformed into its own
signifier. To the rest of us, the idea that the map was not the territory was
sort of cool. Not cool in the way white buck shoes were cool but in a
different, offbeat way. The beat generation had thrived not too far away and
there was something similar in this stance outside the mainstream chanting
about epistemology. The ‘Matz Patrol also paralleled Ken Kesey’s Merry
Pranksters who moved from Menlo Park to the hills behind Palo Alto at
about this time. The message of the mantra for the ‘Matz Patrol, like that
for the bus that held the Merry Pranksters, was that an identity could be
affirmed by repeating a phrase written against the culture.
Although maps were things that in those days parents pulled out when
they were lost on some family trip in the land yachts of the period. Maps

6 Hayakawa, 32.
7 Jane M. Gaines cites Stuart Hall on misreading the image for the thing it signifies.
And, of course, the power of this sort of semantics is still palpable in the vernacular.
 UNFORTUNATE LOCUTIONS 357

were familiar to Boy Scouts and later, to those who served in Vietnam.
Maps, for Hayakawa, came to symbolize the ideal world. In his formu-
lation, the ideal stood in opposition to the positive reality we call, in
the social sciences, empirical. Indeed, the entire formulation reflects the
positivism that took hold as the social science of the 1950s and early 1960s
and is losing its grip so reluctantly.
Nevertheless, maps in this sense remain central to our discussions of
our foibles in life and continue to stand for instances where we mistakenly
put too much emphasis in symbols or take them to be more important than
material life. A fine example is “The Englishman Who Went Up a Hill and
Came Down a Mountain,” the 1995 British movie starring Hugh Grant.
This is a story of two English cartographers out mapping the Welsh terrain
who determine that a local promontory is not tall enough to be designated
a mountain on their map because mountains must be over 1,000 meters
in elevation. In the story, Betty, a barmaid, objecting to various schemes
being proposed to her in the effort by townspeople to raise the height of the
land so that it will be recorded on a map as a mountain rather than a hill,
exclaims “All this for just a map?” In response, the town publican and a key
figure in the effort to raise the hill, replies – while attempting to undress
his barmaid, “Maps, Dear Betty, are the undergarments of a country, they
give shape to continents.” More scholarly and a good deal less prurient
is the work of scholars like Boaventura de Sousa Santos and Margaret
Thornton who have worked on the importance of maps in law and public
policy.8
Back when I was at M-A, of course, most of the time undergarments
were more important than maps. We didn’t think of maps or their relation-
ship to the world, as big issues. The issues, most of the time, were our
relationships. The playful effort of the ‘Matz Patrol, presenting itself as
about the relationship between maps or words and reality, was probably
about the status of really smart adolescents in a very comfortable culture.
This framework for the demands of my generation would become problem-
atic. In fact, it would become the center of one of the defining contro-
versies for our generation. Significantly, it was another one that sounded
epistemological but was also mostly about relationships.
The decision about where to go to college was embedded in both prac-
tical and transformative aspirations although I didn’t know it at the time.
I began college at the University of California, Santa Barbara in 1963.

8 De Sousa Santos, “Law, A Map of Misreading”, in Toward a New Common Sense

(New York: Routledge, 1995); Margaret Thornton, “The Cartography of Public and
Private”, in Public and Private: Feminist Legal Debates, ed. M. Thornton (Melbourne:
Oxford University Press, 1995).
358 JOHN BRIGHAM

Berkeley had seemed too big when I was first looking at schools and it was
an hour from where I had grown up. That felt too close. UCSB seemed a
nice distance, six hours by car. It has a beautiful campus that is bounded on
three sides by the Pacific Ocean. But I didn’t visit before starting school
so that didn’t have much to do with my decision. In fact I didn’t visit
any schools except those that seemed to be in close proximity to a family
vacation destination. At the time I knew little about academic hierarchies
or tradition beyond the perception that going to Stanford or Harvard would
be a good thing to do. Since those institutions did not turn out to be options
for me, I chose Santa Barbara.
After two years, I had begun to grow a bit and have aspirations. The
campus seemed a little pastoral. It was very new then and as I learned
about academic hierarchies and tradition I noticed that this campus did
not have many. I was also drawn to the “the free speech movement,” or
FSM, at Berkeley which was one of the early manifestations of the student
radicalism on college campuses in the 1960s. This radicalism emerged in
part from the Civil Rights Movement and fed into the movement to stop the
Vietnam War and ultimately to what was called, at least in a documentary
from Madison, Wisconsin, The War at Home. The Free Speech Movement
erupted in the spring of 1965 as a conflict over political organizing. Mario
Savio, a leader of the FSM, had come to Santa Barbara to rally support for
the activists at Berkeley. Savio spoke outside by a bluff overlooking the
sea about the uprising at our sister campus. He described the free speech
tradition, particularly shouting fire in a crowed theater and causing a panic.
I didn’t get it all but it did sound exciting, so I transferred.
The focus of the FSM was “tables” used to collect money for various
causes. These were card tables with political pins, petitions and bumper
stickers that were set up on the edge of the campus. The administration
wanted them off the campus. I had not known that tables could be political.
The dinner table had been important in my house, but not for politics.
Tables were a place to acquire family values or play cards, if you were
older. I associated sitting at the table with eating and being nice. The table
had been a place to be socialized, as I later learned to call it. At the table I
learned to eat my vegetables and not lean back in my chair. I learned NOT
to talk politics at the family table.
Berkeley not only brought a new attention to politics but a rethinking
of the ideas that I had about epistemology. At Berkeley, John Searle’s
speech act theories epitomized the new thinking. During the FSM, Searle
had challenged the administration but he had been brought in by a new
Chancellor to help restore order and soon became an important spokesman
for the university. As a philosopher, his work with the times when speech
 UNFORTUNATE LOCUTIONS 359

or language performs or acts would emerge as an important contribution

in the epistemology wars.9 His philosophical position, for us as the time,
was undercut or perhaps simply overwhelmed as a semiotic model by his
position in the administration at Berkeley that had by 1970 produced the
first death in the war at home. This was in the “People’s Park,” a piece
of land owned by the University which some members of the community
wanted to leave vacant for public use. Now my view of epistemology had
become linked to various claimants that were challenging the practical
world.
The Harvard philosopher Stanley Cavell, on a visit to Berkeley, brought
a love of Wittgenstein to the campus community. Eventually it trickled
down to me. A key vehicle was Hannah Pitkin’s, Wittgenstein and
Justice.10 I began to associate the idea that “The Map is not the Territory”
with Wittgenstein’s logical treatise, the Tractatus and I also associated
it with Positivism and hierarchies of state and professional power. The
adolescent image of semiotic games came to be supplanted by a moral
imperative to put ones body in the gears of the University and normal life
or “the machine” as we called it then.
There were banners and mantras but they were no longer just words that
seemed to be cool or, although they seemed to be cool that was not all we
hoped they would be. The fact that Hayakawa was tossing my compatriots
off his campus across the bay did not help his version of semiotics. But as I
began the scholarly study of law and politics I worked on Wittgenstein and
hoped to show that the legal map, the words and practices of law mattered
in ways that my teachers seemed not to understand.11 I thought that the
most interesting political science was a science of legal signs as structures,
languages and rhetoric.

T HE C ONSTITUTIVE A NGLE

In the 70s my undergraduate consciousness was being refocused and the

politics of the FSM were transformed into the academic politics of Critical
Legal Studies, or CLS. At a conference in 1978, Karl Klare drew on the
work of E.P. Thompson and Douglas Hay whose legal history sought
to establish a place between the ideal and the real in law. Along with
neo-Marxist theories of praxis, Klare addressed “the crisis in liberal legal
theory” in an article titled “Law-making as Praxis.”12 The article advo-
9 John Searle, Speech Acts (Cambridge: Cambridge University Press, 1969).
10 Berkeley: University of California Press, 1972.
11 John Brigham, Constitutional Language (Westport: Greenwood Press, 1978).
12 Telos 40 (Summer 1979), 123–135.
360 JOHN BRIGHAM

cated “transcending the traditional view of law (and the state generally)
as mere instruments, buttresses, or ‘retaining walls’ of class power, and
being able to conceive of law and politics more broadly as forms of
practice. . . .”13 Klare also drew attention to the ways law entered into
“labor-management disputes, the character of education, the distribution
of income, the allocation of social entitlements to the poor, the nature of
family life. . . .”14
In calling for a “constitutive theory of law”, Klare sought “to free
Marxism” from determinism and “the notion that law is a mere instru-
ment of class power.” As examples he gave the Black Acts, described by
Douglas Hay, and his own work on the labor movement.15 In looking at
law as constitutive rather than instrumental, according to Karl Klare, “The
initial theoretical operation is to free the Marxist theory of law from its
determinist integument – i.e., the notion that law is a mere instrument
of class power. . . .” Klare continues with the project as one that tries
“. . . to conceive the legal process as, at least in part, a manner in which
class relationships are created and articulated, that is, to view law-making
as a form of praxis.”16
This was merely a glimpse because within a few months Klare had
jettisoned the constitutive in favor of the CLS movement’s strategic return
to Realism and a period of homelessness for this theoretical orientation
followed. But, the seeds of post-Realist critical legal studies were laid in
peripheral questions that emerged along with the turn to Realism and the
turn inward toward law school practice. Not long after Klare’s statement
and in an effort to establish a critical position for legal history, Robert
Gordon mentioned (somewhat offhandedly I think) what has recently
become a foundational statement for constitutive work.
Gordon was responding, at least in part, to the critique of court-
centeredness. Made by advocates of a “law and society” approach to legal
phenomenon, some who would like to identify with the political project
of Critical Legal Studies were impatient with what seemed to be a tradi-
tional orientation to appellate court doctrine which ran against the law
and society grain. Gordon may not have been responding explicitly, but
his sense appears to be that there was a need to show some trickle down
affects from the work of high court judges and their law school clerks.
According to Lucy Salyer, Gordon has “elaborated the constitutive aspect

13 Ibid., at 124–125.
14 Ibid., at 126.
15 “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal
Consciousness”, Minnesota Law Review 62/265 (1978).
16 Karl Klare, “Law Making as Praxis”.
 UNFORTUNATE LOCUTIONS 361

of law most fully and explicitly.”17 Writing about legal history, in an article
for Legal Studies Forum, Salyer discusses “the constitutive nature of law”18
and quotes Gordon extensively.
[I]t is just about impossible to describe any set of “basic” social practices without
describing the legal relations among the people involved – legal relations that don’t
simply condition how the people relate to each other but to an important extent define
the constitutive terms of the relationship, relationships such as lord and peasant, master
and slave, employer and employee, ratepayer and utility, and taxpayer and municipality.19

Some of this comes from the work of J. Willard Hurst, who pioneered
attention to the constitutive dimension of law and who also provides a link
between law and society and critical legal studies in Gordon’s work.20
The key contribution focuses on a relationship between the conceptual
life of the community and the conceptual parameters of case law, statutes,
and the treatise literature – the “stuff” of the law school curriculum.
In his justification for attending to “mandarin materials,” Gordon saw
appellate litigation and legal scholarship as “an exceptionally refined
and concentrated version of legal consciousness.”21 Gordon describes the
mandarin materials of elite legal thinking as illuminating “the vernacular,
the common forms of legal discourse.” In this work he points to research
which found the basic elements of formal legal rules of property and
contract internalized by lay people and routinely applied in contexts
remote from officials and courts. According to Gordon, “field-level studies
would reveal a lot of trickle-down effects – a lot of mandarin ideology
reproduced in somewhat vulgarized forms.”22 Legal scholars have long
been confident that the structures familiar to lawyers stand behind many
of the ways ordinary people think about the world. The idea is sobering.
My world of academic inquiry morphed again from CLS to a seminar
that met in Amherst, Massachusetts. Originally imagined after a Law and
Society meeting there in 1980, the seminar called itself The Amherst
Seminar on Legal Process and Legal Ideology. The name was not so
much a pretension as an aspiration. We wanted to bridge the gap between
understanding how law worked and the grand, often Marxist, theories that
engaged our critical friends. Due to developments chronicled in the article
17 Lucy Salyer, “The Constitutive Nature of Law in American History”, Legal Studies
Forum 15 (1991), 61–65.
18 Ibid., at 61.
19 Robert W. Gordon, “Critical Legal Histories”, Stanford Law Review 36 (January
1984), 103.
20 J. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century
United States (Madison: University of Wisconsin Press, 1956).
21 Gordon, “Critical Legal Histories”.
22 Ibid., 121.
362 JOHN BRIGHAM

by Mauricio Garcia Villegas, this seminar came to contribute to the “socio

legal” enterprise in a way that is relevant to a journal on semiotics. That
mix of theoretical pretension and practical knowledge suggested a way to
do legal scholarship in a social scientific context.
The seminar taught me to engage and it elevated the art of social
and intellectual thought. Distinguished, then relatively young, scholars
gathered to talk and in talking we changed. The theorists got more prac-
tical and those with a practical bent got more theoretical. We got some
attention and we lay a foundation for some of the work in the “Law and
Society” field. I think about law as constitutive because of the seminar.
It’s an evolution of how I began to think about law and politics when I
transferred to Berkeley nearly four decades ago. The politics of that time
are still a source and the desire to contribute to scholarship that shows
things that are not easily seen remains stimulating.

Department of Political Science

Thompson Hall
University of Massachusetts
Amherst, MA 01003
USA
E-mail: brigham@polsci.umass.edu