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BY PROF. ANTHONY J. FEJFAR, ESQ., COIF
(C) Copyright 2004 by Prof. Anthony J. Fejfar, Esq., Coif Imprimautur by Coif, by Anthony J. Fejfar, Coif
TABLE OF CONTENTS CHAPTER I CHAPTER II CHAPTER III CHAPTER IV JURISPRUDENCE: THE STUDY OF WISDOM CRITICAL THOMISM CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? A HOME RUN BALL, POSSESSION OF PROPERTY AND THE ETHICAL MATRIX, A UNIVERSAL NATURAL LAW ETHIC CORPORATE RESPONSIBILITY THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS 3 6 11 23
CHAPTER V CHAPTER VI
55 59 66 71
CHAPTER VII LUKE SKYWALKER AND THE VOID CHAPTER VIII CRITICAL THOMISM, LOGICAL POSITIVISM AND LAW CHAPTER IX CHAPTER XI CHAPTER XII
CRITICAL THOMIST LAWYERS AND JUNGIAN ARCHETYPES 80 THE HANGMAN 88 THE BARTENDER 96 100
CHAPTER XIII PROPERTY AS A FOUNDATION FOR LAW CHAPTER XIV EQUITY 105 CHAPTER XV THOU SHALT NOT MURDER 110
CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? 113 CHAPTER XVII LAW AND OBJECTIVE FACTS 119
CHAPTER XVIII LITIGATION TACTICS AND STRATEGY 130 CHAPTER XIX MEDIATION 137 CHAPTER XX EQUALITY AND EQUITY 139
CHAPTER XXI STATISTICAL PROBABILITY 142 CHAPTER XXII REALITY LEVELS AND METAPHYSICS 145 CHAPTER XXIII EQUALITY 147 CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM 150 CHAPTER XXV REAL PROPERTY AND METAPHYSICS CHAPTER XXVI TRINITARIAN METAPHSICS 152 156
. business decisions.CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. It is my position that where one has received a Juris Doctor degree. one has also received a Doctorate in Jurisprudence. sociology. if there is no basis for that interpretation then problems result.. theology. one has not only received a Doctor of Laws. philosophy. of course. Put another way. values. I suppose that we all could get Ph." .D. is The Study of Wisdom. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture. and has taken a jurisprudence course during law school. even. One might say that it is Legal Philosophy. They use their business and financial abilities to help their clients make good. Quantum Physics. Metaphysics. solid. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. Now. 4 . You see. accounting. Jurisprudence." What is Jurisprudence? Well it is hard to say. then. but I suspect we typically do it a different way.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. religion.. with policy. the problem with Law is that it has to be interpreted. a lot of jurisprudence involves sociology or psychology. Lawyers use policy arguments all the time to supplement their legal arguments. but then again. business management. and. psychology. finance.
How they get into academia or law in the first place is beyond my comprehension. The solution? Well. and a day laborer for another summer. So. They spend all their time digging themselves and others into ditches. I must apologize. usually spouting phrases like. when they find themselves in ditches with virtually no way out. If this were a world of espionage. These Cyborg academics must look to their Central Control Units to tell them what to do. No programming alternatives here. Shit in. I suspect that ditch diggers are more highly evolved than these academics. never having an original thought of their own. input out. placing ourselves in a world of science fiction. and. "The Law is The Law. and. Input in. They don’t believe in jurisprudence. bitch. and complain. not in the tennis sense. to become a Critical Thomist. you know. I think I’ve been a little harsh. in Law School I decided. legal academics in the same category with ditch diggers. here. call these academics Borg. You know.Unfortunately some Legal Academics are legal ditch diggers." But what you really see of course is that they are Fascists." who just channel and parrot other people’s minds. academics. moan. and if hypothetically we had nazis or communists in this country. but in the robotic sense. I think that it is unfair to ditch diggers to place these fundamentalist. ala Star Trek. maybe these persons are just "psychic channelers. and then. So." Or perhaps. whine. maybe we should. shit out. In any event. for me it just keeps getting better 5 . one might suspect that they have faked credentials known as "dummy espionage degrees. perhaps unconsciously. that’s the problem. In college I was a concrete laborer for eight months. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it. these people certainly are ditch digger academics. At least the ditch diggers can think for themselves and know enough never to dig yourself into a hole that you can’t get out of. knee jerk.
and as a Critical Thomist.and better. For Bernard Lonergan. Level 1: Body. Level 2: Mind. I believe in. reality and consciousness is structured primarily on three levels. 6 . Body. It’s not Thomism. and Substance is the basis and underlying foundation for true reality. what is it? Well. what Thomas Aquinas called Intellectus. and a bit more. using the formulation. the Highest Level of Consciousness is structured by Logos. Now. I. Mind. Logos (Creative Form). Being is A Pure Act of Understanding. intend. Logos is Divine Reason. on the other hand. For a Critical Thomist. For a Critical Thomist. and Thomas Aquinas. its my thing. then. use a trinitarian metaphysic which parallels the Trinity of God itself. and is the Intellect. and Level 3: Intellect. it is perhaps a little bit of both. but Critical Thomists don’t buy this. their respective philosphies were based on the Aristotelian concept of Being. and Spirit. and Substance (Formless Form). Being (Form of Form). Ken Wilber does something similar. its not Critical Realism. For me. CHAPTER II CRITICAL THOMISM Critical Thomism.
and Intellectual pleasure or the integrative reflective way of being is found at Level 3. For a Critical Thomist. and Substance. One supposes that is at this level that Particle Physics reigns. Mind pleasure. and even use the Immutable Platonic Forms at Level 2. discrete. but 7 . then. Interestingly. then. in fact. one believes in. which is a secondary metaphysical principle. those forms typically only manifest probabalistically. Additionally. supplements Being. but not subracted from. and one’s unconscious or preconscious Mind accesses. It is at this "material level. The Immutable Platonic Forms. What else could they be? At Level 1. individual objects are themselves.. Bodily pleasure and sense experience is found at Level 1." that reality is composed of and structured by Substantial Form. the Immutable Platonic Forms are of course composed of Platonic Substance. it has always been the case that the Immutable Platonic Forms could be "added to. while we can talk about.In the preceding natural law framework. in reacality. For a Critical Thomist. First of all. however. and. consistent with Catholic Doctrinal theology. it is a different story. and. its not. The same is true of individual substantial forms at Level 1. discussed below. not Quantum Physics. it must be noted that of course statistical probability is itself. Logos. interestingly enough. rearranged. however. an Immutable Platonic Form. then. which leads one to Substantial Form. Form. or analytical or moral activity is found a Level 2. at level 2 in actuality. substantial forms. the thing about Critical Thomism is this. While the foregoing might seem a departure from Classical Philosophy. This is of course consistent with both Plato and Aristotle. there are also corresponding levels of virtue or activity.
One suspects that Saint Thomas the Apostle himself very 8 ." This is completely consist with the point that the Immutable Platonic Forms exist. Finally. Outside of space-time. rather it is grounded in Saint Thomas the Apostle." Nevertheless. Doubting Thomas is the Patron Saint of Critical Thomism.not changed. and culminating in judgment and reflection. relational meaning streams structure and partially constitute reality. beginning with experience. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules. as Bernard Lonergan would tell us. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas. Finally. Our world is not just a po-mo (post modern) fantasy. the Critical Thomist schema that I have set forth above is more consistent with Quantum Physics and Heisenberg’s Indeterminacy Principle than an naively atomistic view of reality. it should be pointed out that statistical probability. who we are and the world we live in is determined. paradoxically enough. or Substantial Form. subsist. moving to understanding. Finally. or the Immutable Platonic Forms." As I have pointed out previously. might find the foregoing discussion a little bit "out there. as Bernard Lonergan would put it." Now. in fact it is ordered by higher metaphysical principles which can be confirmed through one’s own personal reflection upon and experimentation with the cognitional structure of one’s own mind. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. "The World Mediated by Meaning. it is at Level 3 that reality is structured by "relational meaning streams. outside of space-time. a "non-systematic statistical divergence from a classical norm or rule" of course takes place. To some degree. Change can occur without "change" occuring.
and then.well may have been a Critical Thomist. I think for me the tradeoff is worth it. when I do. The Critical Thomist may doubt. obviously starting with experience. but nevertheless. had judged it to be true as a matter of a critical judgment of fact. and then finishing with judgment. and finally through a process of critical reflection and judgment. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets. presumably had understood it. Thomas did not believe in the resurrection of Jesus until after he (Thomas) had experienced the physical presence of the Post ressurection Jesus personally. moving to understanding. For me. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. 9 . Although it may take take me a little longer to see Reality. So there it is. political or religious. I go with Doubting Thomas. I think that I will be sure that it is Reality and not something else.
Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. especially in law school at the University of Nebraska College of Law. Then one day in class it started coming together for me. Snowden said: "‘Nowwww. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career. Snowden) was concerned that I could not get a fair 10 .’ Mr. Daoist? Zen? On the Left? On the Right? I wasn’t sure. a reminder to many of Nazi’s marching Neurenberg. I could never quite figure out where he was coming from.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. We got it in class somewhere. Fejfar. if I lived in Crete. Exactly where I don’t remember. Professor Snowden tried to help us get it. rather than "back benching" it. In Mass Communications Law I had chosen to sit in the anonymous middle of the class. certainly not sitting in the front row and being a "gunner. Prof. individual rights. how did it all fit together? Well. out of the blue I heard my name being called. Nebraska. The whole issue of people getting along. Constitutional Rights. and the people there were not cool and if I (Prof." Suddenly.
B. Then it hit me. Fejfar) could say is that that would make you. I guess all I (Mr. 11 . Snowden) move to Lincoln. This was like getting lost in the grocery store at age four and not being able to find mom or dad. of course. an ex-cretian1. the people in Crete.(and where presumably Prof. Professor Snowden. Lonergan strikes again. Nebraska. Fejfar) said: "Welllll’. Nebraska)– why couldn’t I (Prof. Snowden continued: "‘Wellllll’. Once again. I guess if you lived in Crete.. Click. And then. King at the Zoo Bar downtown). inspired. So. Fejfar. (Of course we all knew that Prof. Shit. I did have a little premonition I think. Nebraska.shake in court (in Crete.. if you have 1 Of course I definitely did not say "excretion" or "shit. why couldn’t we have a system that handles it that way. Mr." the term ex-cretion was of course only a merely coincidental use of language relative to those terms. I (Mr. out of the blue. So. It wasn’t even close. with me moving to Lincoln? What do you (Mr. Was it some sort of Jungian unconscious linkage? My response? Panic of course. Snowden would get along great). Sweating palms. where the people were cool. where the people were cool-. That cold empty feeling in the pit of your stomach. Snowden was cool– what other Law Professor could you catch watching and listening to B. Nebraska. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing). Eureka." Now. of course the usual blank out caused by panic. Professor Snowden. were not cool. Inspiration. Insight. Nebraska. Fejfar) think of that?” Now. What could I possibly say? This question didn’t involve ’t in the case in the case book. and. and then you Professor Snowden moved to Lincoln. Prof. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief.
with only a few scattered laughs." in this essay. but Snowden was the guy who always pushed the envelope–who always made you think–who always raised controversial questions and typically left you hanging only to try to ‘figure it out" with your classmates down in the "pit2" after class. risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary. in the spirit of Professor Snowden. "out of school.3 He was the professor in Legal Process who told us that we would just have to "ride our trover horse" into court to get a judgment in some cases. And. I of course thought that I would receive a startling round of applause from my classmates.gotten the joke here. Snowden was just great." 12 3 . but really in a backhanded way. and having it in print would help to pass it on in the lore of my alma mater (Nebraska. and in thinking of Constitutional law relating to the First Amendment. All my professors were good– don’t get me wrong. Prof. The "Harvard" of the Plains). It’s not that Snowden was hiding the ball. is to be contrasted with Professor Bob Works. Perhaps it was to poke fun a little bit at Professor Snowden. first of all I think Snowden would love hearing the story again. I don’t think there was a ball to hide with Snowden. Why? Well. Second. Professor Snowden placed his head on the table from which he was lecturing. who always "hid the ball. why did I tell this story." of course. being the proverbial student lounge area in the basement of the law school. that at this point. Now. of course. and beat his forehead on the table several times. I think they have better things to do with their time). This. it was meant as a compliment. of course. you might well anticipate. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class. I am going to press the envelope in this 2 The "pit.
the authors really intended "and" not "or. It was especially sad because we were Irish Catholic (my mom half. which 13 . and Stephen. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. with my mom in our rent house in Terre Haute.article. (One Warin Fitz Gerald. and of course Magna Carta interiorly refrencing Magna Carta “as the Law of the Land” requires a “jury trial” by one’s peers and by “Law of the Land. First. The Archbishop of Canterbury was a signatory. or in any way harmed.. Norman Irish. or outlawed.save by lawful judgment of his peers or by the law of the land. I am a liberal kennedy democrat "hiding out" as a moderate democrat. Indiana.” . that is. scriveners error. alleging that it was coerced. Magna Carta is interesting. when my dad had his first teaching job at Indiana State (I guess this was around 1963).. or disseized. it only takes a little bit of analysis to see that the requirement of Magna Carta." I have three arguments. Finally.. Kingsblood4 I remember my mom saying. a Fitzgerald was a signatory of the English Constitution.. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. of course. I usually flash "progressive" when I hit faculty functions and faculty meetings. but then again. though.. of course. Boston 4 Now of course this might be pure hypoerbole. is that the judgment be one of "lawful judgment of his peers [and] by the law of the land. me one quarter). Magna Carta is one part of the "Law of the Land." Second. in the alternative. (We’re Fitzgeralds. It guarantees that all freemen shall not be "taken. or exiled." so that the clause can and should be read. I remember Jack Kennedy’s funeral when I was four years old. This seems rather awkward though in light of his earlier support for and approval of the Document. it seems an outrageous assumption that a "jury of one’s peers" would be allowed to do anything without being given jury instructions and applying the law to the facts. there is an infinite regress. or imprisoned. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta]. approved it.) One supposes that it would take a Royal to be a signatory otherwise the document would not have been binding on Evil King John.” or." Now. here. after the Battle of Runnymeade. I suppose in Europe I would be considered a Social Democrat. watching it on a black and white t. I remember that my mom and I both cried.v.. Now. Magna Carta in the year 1215.
that’s the story. I didn’t know what it was. of course Bobby Kennedy was shot. I do. natural law (common law). as Tom Shaffer might put it. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. we all knew. We believed in Reason. Not again.Fitzgeralds. Thomas Aquinas said there were three levels of law human law (political law). If the Hangman (See chapter ) ever comes after me I assert that I am protected by Magna Carta and have a right to a jury of my peers applying the law of the land. Suddenly instead of Camelot. They were the antithesis of everything we believed in. Now. and of course is irrational and therefore an unacceptable interpretation. Catholic Thomists believe in Liberal Truth. that means that I have a right to a jury of Lawyers who have passed the Bar. I think. It couldn’t be. there was a lone gunman in each case. tough luck. at this point you might say. We knew truth was possible even though it might be a little ambiguous and hard to get at. and thus are Esquires.) Then. as well as the United States Supreme Court Bar. or Creighton. They were fanatics. and a jury of those who are Members of the Order of the Coif. I’ve got judicial immunity. These killers were fundamentalists. We. It was impossible. it was somehow in the blood. it was the Kennedy curse. Now. Ted knew. If they can’t find such a jury. 14 . but in our household we knew it wasn’t the whole story. Sure. "Who cares?" Well. in my case. the Catholic Liberals were Thomists. I figured it out at Rockhurst College. A Liberal Irish Catholic simply could not be President of the United States. Ours family went West after the Civil War.
finally Divine Law (somehow, someway, American Constitutional Law). When Jesus died on the Cross it was to establish Divine Reason (Logos) on earth and Divine Law. Now, all of this brings me back to Skokie, and the Hypo Nazi’s. I was brought up in a Catholic tradition where we were taught as good Liberal Catholics to hate evil. Believe me, we knew what evil was, we saw it in World War II movies all the time. We saw the Nazi Gestapo, and S.S. torturing Jews in concentration camps. We saw the Gestapo torturing allied prisoners and resistance fighters. And, we saw the Neurenberg trials and the very pointed criticism of the German people who allowed the Nazi’s to come to power. Along with the Jews, we Thomistic Catholics said, never again. Especially, not in the United States. Never here. But then, I had to wonder, weren’t the Hypo Nazi’s fundamentalist extremists just like the killers of Bobby and Jack Kennedy. After the Kennedy curse, could you really be a Catholic and follow the Vatican II vision and go out and transform the world? Make the world a better place–maybe just a little bit? Or, is it the case that if you really start to have an impact, and you are Catholic, a Lawyer, a Liberal, and especially Irish Catholic then you end up getting shot? I think that my generation of cradle catholic kids going to public schools and attending C.C.D. thought about this stuff a lot. It was there. It permeated your consciousness.5
I guess some Catholics just don’t get it though. Andrew Greeley sort of suggests this. One guy who didn’t quite "get it" in my opinion was a parish priest of ours who told all of us assembled C.C.D. kids that we were all "going to hell" for going to public schools instead of Catholic Parochial schools. He was very sure. I doubt he was a Thomist, although he might have claimed to be one.
Well, my generation might have decided to play it safe. But they didn’t. We decided to press the envelope and make a difference. At Creighton University in Swanson Dorm there was a huge banner which said: "On a Mission from God." I think we all felt that way. Especially the Roman Catholics and the Episcolpalian Catholics or Protestants. Make it happen. Transform the Earth. Help bring about the Second Coming. A lot of us became lawyers, some law professors. We looked up to Jack and Bobby Kennedy and Saint Thomas More– but do you know what? Like McCauliff said at Bastogne, we said and say "nuts." We won’t surrender. We are not going down. We will fight totalitarianism, in all its forms of communism, nazism, and fascism. And, we will get the job done. Now, with all of this in mind Liberal/Moderate Catholics of my generation, like me, I think were stumped by the Nazi’s marching in Skokie reality and hypothetical. As a Liberal/Moderate Catholic lawyer would I argue for the right of the Nazi’s to march in Skokie on First Amendment grounds? What if I was the "last lawyer in town?" ala Monroe Freedman. Now, it is not just we lawyers who think about the Skokie conundrum, ordinary people who tend toward fundamentalism, many with close relatives and friends who died in World War II, think about this a lot too. The possibility of Hypo Nazi’s marching in Skokie and Liberal
Lawyers defending their right to march, made a lot of them (these ordinary people), and in some ways us, hate liberalism. How could we support a system of government whose very foundation, The United States Constitution, played right into the hands of those very people who wished to destroy it? How could a Constitution work, when its very application (First Amendment Right of Free Speech and Association) operated , in practice to support political parties and movements, who, as I believe Bob Lipkin, might say, were committing "Constitutional Treason"? 16
Now, for some of us, we just swallowed hard and said to ourselves, well it’s the best we can do, there will always be problems and contradictions, we’ve got to support the system. For others, though, this was, and is impossible. It is not abortion, one way or the other, it is not welfare, one way or the other, it is not military spending, one way or the other, that are the make or break issues for liberalism–the issue that causes liberals to lose faith in Constitutional Democracy is the fundamental problem of the Nazi’s marching in Skokie. So, what is the solution? It appears a legal conundrum. But in fact it is not. All we have to do is apply a few well established legal doctrines in a new and different way, and wala, problem solved–at least for me. So, here is my proposal, and in making this I would point out, as a matter of fact, that I am a card carrying A.C.L.U. member, and in my judgment this doctrine is fundamentally consistent with the goals of that organization. Article III, Section 2, of the United States Constitution, provides that: The Judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution.... Now, what this says very clearly, even if paradoxically, is that the United States Constitution provides on its face, that, the United States Constitution shall be interpreted and applied through the use of Equity Jurisdiction, Equity Power, Equity Policy, Equity Values, Equitable Maxims, and Equitable Doctrine. One of the most powerful Equity Maxims/Doctrines is that of Equitable Estoppel. Pomeroy’s Equity Jurisprudence is, of course, the authoritative source in that regard: Equitable estoppel in the modern sense arises from the conduct
and his silence or negative omission to do anything. I think that this solves the problem nicely. that if one practices using this tool long enough. to create and vest opposing rights in the party who obtains the benefit of the estoppel. rather than "his" or "her" would be More appropriate. one way or the other. not wanting to be sexist. perhaps the word "hae" as a personal neuter pronoun. and its practical effect is.of a party. his positive acts. and in good faith. An author faces this problem constantly. unless prevented by estoppel. remarkably enough. Its foundation is justice and good conscience. I argue. one developes a conscience (to the extent that one does not already have one). 7 18 ." a Universal Natural Law Ethical Decision making tool. using that word in its broadest meaning as including his6 spoken or written words.7 Its object is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of law. In my "Home Run Ball" article I introduce the "Ethic Matrix. The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. from the motives of equity and fair dealing.
R. Title Guarantee & Trust. Conway Nat’l. Brusha v. Rothschild v. one comes up with the Doctrine of "Constitutional Estoppel. Clark & Boise Lumber v. 97 N. Havalena Mining. and in particular. Maine Cent. 8 2 Pomeroy’s Equity Jurisprudence. Duncan. 19 . 986 (1916). in conjunction with the United States Constitution." That is. Martin v. Lee. 1918) (Citing. 143 S. it is in fact no more radical than arguing in equity that Constitutional rights can be waived. 1068 (1912). 139 Pac. 21 Atl.E.W.8 Now. section 802. 644 (1912). Bank of Neelyville v. 1635-1637 (4th Ed. as such. 182 S. 1016 (1916). 879 (1912)).pre-eminently a creature of equity. 157 Pac. Franklin v. Pease 82 Atl. Bank v. 740 (1890). or its application to others in similar circumstances. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution..W. pp. it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. Board of Education. in relation to the First Amendment of the United States Constitution. While some might argue such an approach is inappropriate. 298 (1913).
The "Hypo Nazi Party. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. Direct Examination (Mr. represented by Counsel for Applicant. Constitutionally Estopped from getting the permit and marching." of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945. Robotic is of course a purely fictional character. and any resemblence to anyone else is purely a coidcidence. Rupert Robotic. Mr. as well as several other interested parties oppose the permit application. They assert that reasonable time.Now. Robotic9.) Cross Examination (United States Attorney) Q. please state your name for the record. applies to the local Federal District Court for a permit for his group. here is how it goes. The United States Attorney. and a such for First Amendment Free Speech and Free Association protected purposes. requirements have been met. to march in Skokie. 9 Mr. on information and belief. such a resemblence is purely coincidental. Robotic. how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well. Mr. and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States. A. Our Hypo Fuhrer. place. Those opposing the permit argue that Mr. Robotic and his cohorts are. 20 10 . and manner. the Hypo Nazi Party10.
Q. handicapped persons. Irrelevant. Yes. Mr. (Applicant’s Counsel: Objection. do you agree that other persons. including but not limited to the First Amenment? Well. Your Honor.. Q. please answer the question. Your Honor. I withdraw the question. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel. yes. Q. . The First Amendment thereto under which any rights of free speech and free association can be asserted.. Answer goes to the Estoppel Argument). such as racial minorities. Mr. Applicant. Robotic. that is the end of the United States Government’s cross examination. Q. Robotic has admitted on cross examination that he and his party reject the United States Constitution. Under pain of perjury. Mr. Your honor. 5th Amendment). Your Honor. Robotic. isn’t that correct? A. would also have a right to a permit to march in similar circumstances? Absolutely not. isn’t true that your Party supports the abolition of the United States Constitution. A.. and finally has specifically denied that 21 A. Q. once we reach power. to kill or place such people in concentration camps. Under pain of perjury. A..) (Judge: Overruled. not in your party. Alright. mental or physical. Mr. It is our intention.Q. and in that capacity are requesting a Parade Permit to march in Skokie. We want them abolished. Q. Does your opposition include violent means? (Applicant’s Counsel: Objection. We oppose the United States Constitution and the First Amendment. perhaps. Q. Robotic you are representing the Hypo Nazi Party. and the other interested parties have waived cross. Your Honor.
Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. "pushing the envelope. Liberty. and incorporated by implicit and constructive reference into the United States Constitution. Like panning for gold in the Rocky Mountains in Colorado. This Court is adjourned. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw. Now. nor is it simply discovered. one must simply swish away the slag and the fools gold and look for the real gold that was always already there. Robotic and his Hypo Nazi group from marching. Alright. Tony Fejfar) were on the bench. Nazi Party in this matter. and. Now. this is how things would play out if I (Prof. Mr. the United States government and the United States Attorney argues that Mr. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist. that although it could be used against a criminal defendant in certain circumstances. It is neither created. and Pursuit of Happiness.” Although it may seem 22 . and since he rejects the First Amendment itself. it is developed. I’m denying this permit to march in Skokie on the principle of Constitutional Estoppel denying any First Amendment or Substantive Due Process Rights to the applicant and his group the Hypo. This is the kind of law. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts. found in the Declaration of Independence. Additionally. as such. as well as the United States Constitution itself. but do not even have to rights of Life. I am also denying the Permit on the basis of Equitable Estoppel. since. the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. Therefore. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade.A." that I encourage my law students to develop." "thinking outside the box. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. The Court is now ruling from the Bench. rather. one last thought here. Thank you Counsel.
Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality .unlikely to the typical bystander. A UNIVERSAL NATURAL LAW ETHIC The Ethical Matrix Copyright (2002) by Anthony J. CHAPTER IV A HOME RUN BALL. the United States Constitution evokes such strong emotions in many people that I think that they would testify truthfully as to their true beliefs in regard thereto. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX.
Bernard Lonergan. 34 (1971) (discussing Value as a transcendental notion). 1131a22-1131b14 (1976). It is based on the Golden Rule found in the teachings of Jesus of Nazareth. Intuition. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. Feeling.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. See also. See . Aristotle. 2. Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. Proportionality is based upon Mathematics and Geometry. Method in Theology. 1137a351137b24 (1976). 4. Ethics . 5. 3. It is found in common law equitable precepts. Ethics. Equity is based on the principle that Equity favors the one in need. An analogous concept is found in modern economics and the philosophy of Mill and Bentham. The cognitive functions of Thinking. See. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. Utility involves the Maximization of Value. Proportionality as a basis for Justice is found in the work of Aristotle. Aristotle. and Sensation come 24 .
A Universal Natural Law Ethic. And if indeed baseball is one variety of play. If one broadens this concept even further one finds that existence is a game to be played. This Essay begins with an overview of The Ethical Matrix. One could also see this phrase as a Zen Koan. and then ethical analyis of the problem presented in the example. (See Carl Jung. is like a baseball game. Existence is a Game to be Played. The Essay then proceeds with an example involving possession of personal property and a "home run ball. Fejfar.from the work of Depth Psychologist Carl Jung. is. understanding. Psychological Types . that life. reflection/ judgment come from the work of Bernard Lonergan. 2002 Anthony J. Cognitional Structure in Second Collection (1967)). It is concluded that the Ethical Matrix is a valid natural 11 A common expression.11 Tony Fejfar 1. then it follows that life is play. policy. 6 (1990)). The cognitive functions of experience. 25 . (See Bernard Lonergan. Copyright . Introduction." The Essay then involves a linguistic.
law ethical tool for engaging in public policy and legal analysis. As a part of the analysis, the "fair opportunity" rule for the possession and ownership of personal property is developed.
2. An Overview of The Ethical Matrix. The Ethical Matrix provides an ethical approach to public policy analysis that is based upon four natural law ethical principles which are, Reciprocity, Utility, Proportionality, and Equity. While each of these principles can be found in some sense in the work of earlier philosophers and sages, and while it is my belief that many persons use these principles in ethical reflection, often unconsciously, the integration of these principles in the Ethical Matrix as described and utilized here in this Article is to the best of the Author’s knowledge an original development.12 The concept of Reciprocity, although mentioned in Aristotle, is used in the context of the Ethical Matrix as an ethical principle is based on the Golden Rule as taught by Jesus of Nazareth.13 Utility, although it is an ethical principle developed by philosopher Jeremy Bentham,14 is modified in the context of the Ethical Matrix to take into account the ethical position of Jesuit
The Author wishes to acknowledge that the Rawlsian idea of "The Original Position" shares some of the same qualities as the Ethical Matrix but differs in may respects. For a discussion of the Original Position, see John Rawls, A Theory of Justice,. (1971). Additionally, the Author would like to acknowledge that The Ethical Matrix draws its inspiration in part from the work of Ken Wilber, particularly his use of a Quadrant Schematic as a vehicle analyzing evolution. See, Ken Wilber, Sex, Ecology, and Spirituality 198 (2000). See, Math. Ch. 7, v. 12, Oxford Anno. Bible (1977) ([w]hatsoever you wish that men would do to you, do so to them....). See generally, Jeremy Bentham, "The Principles of Morals and Legislation" (1988). 26
philosopher Bernard Lonergan.15 Thus instead of limiting utility to a pleasure/pain calculus, the principles involves the broader concept of maximizing Value. Value, in this context, then, is a transcendental notion.16
See, Bernard Lonergan, "Method in Theology" (1971). C.f., id., at 34.
The concept of proportionality utilized in the Ethical Matrix is based upon mathematics and geometry and is discussed in the work of Artistotle.17 Perfect proportionality is the basis for the idea of equality and of the idea of generating rules intended to be applied generally, all other things being equal. The concept of Equity as used in the Ethical Matrix is also discussed in Aristotle.18 Equity makes Equitable Exceptions from general rules based on need. While Aristotle does not discuss the basis for Equitable decision making, the position that the Author takes in this article
Artistotle, Ethics 1131a22-1131b14 (1976). Id., at 1137a35-1137b24.
2. Mary asks him to perform the miracle anyway (Equitable intervention based on need). T. An example of this sort of Equity based on intuitive wisdom is found in the gospel narrative involving the Wedding Feast at Cana in Galilee.21 This is seen for example in the equitable doctrine of unconscionability. Feminine Equity based upon wisdom intuition 20 21 29 . Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. (See.22 19 The mythos of wisdom if found in the greek Sophia and Athena. John.is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need. the underlying symbolism of the narrative is the same. and Jesus does so. Whether one takes these events as literally true or not. Jesus of Nazareth and his mother Mary were attending a wedding celebration. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. The hosts come to Mary and ask her if there is something that can be done. turning water into wine. Bastick. The hosts run out of wine and don’t know what to do. 1-11. Chap. Oxford Anno. Bible (1977). The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). In this narrative. and the catholic Holy Spirit of Divine Wisdom See generally. v. the roman Minerva.").
2d 450 (1982) (discussing the "need" factors of knowledge. Carr v.intercedes to make an Equitable Exception from a general rule based upon need. 30 . 22 See. for the application of the equitable doctrine of unconscionability. 441 N.E. Hoosier Photo. and bargaining power. sophistication.
The Ethical Matrix finds support in the work of depth psychologist Carl Jung. Isabel Myers. Carl Jung. "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). the Jungian psychological functions of Intuition. and 23 See generally. Feeling. Thinking. "Psychological Types" (1990). 31 . See also.23 as seen in the figure below.
understanding.Sensation. and Love. In order to more fully access the principles one must intuit Being.24 and the Lonerganian cognitional functions of experience. The natural law ethical principles are universal in the sense that each contains minimal moral content. Insight 350-352 (1956)."26. Understanding. 32 . Judgment/Reflection. understanding 3. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. judgment/reflection 2. 4. my schema is as follows: Lonergan 1. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan.25 It is also argued that each of the Ethical Matrix natural law ethical principles discussed above exist and operate as core "relational meaning streams" which inhere "naturally" in reality and manifest probalistically from the "Unrestricted Act of Understanding" which is "Being. 3. and reflection/judgment. These functions correlate to the Jungian functions as follows: Jung 1. Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience. 2. support the respective Ethical Principles discussed above.
fully developed through sustained mental activity involving contemplation or meditation.27 It is argued that the Ethical Matrix itself and the principles contained therein is best utilized by one who both intends and actualizes a reflective life, rather than merely a moral life, or a selfish life.28 This is simply true because it is very difficult for a moral person to reflectively evaluate moral rules if in fact those very moral rules are at the core of that person’s identity. Similarly, it is very difficult for a selfish person to decenter imaginatively and consider the needs or viewpoint
See, Frances Vaughan, "Awakening Intuition" (1979).
28 This parallels the Aristotelian notion of three different types of living, the contemplative life, the political life, and the life based on pleasure. See, Artistotle, Ethics (1976). It also parallels the levels of the soul or different types of life described in the work of Plato, which, are respectively, the life of wisdom, the life of ambition, and the life of physical passion. See, G.M.A. Grube, Plato’s Thought 67-68 (1980). It also parallels the stage theory found in the transpersonal psychology of Ken Wilber which asserts that there are three different levels of consciousness, body, mind/soul, and spirit. See, Ken Wilber, Sex, Ecology, Spirituality 447 (2000). As pointed out by Wilber, these levels in turn parallel the levels of morality described in Kohlberg’s work which are pre-conventional, conventional, and post-conventional. Id. at 5. See, Lawrence Kohlberg, Moral Development, 5 Int’l Encyl. Soc. Sci. 483, 489 (1968). This general schema can be seen in the chart below:
Fejfar 1. selfish life 2. moral life
Aristotle pleasure political life
Kohlberg pre-conventional morality conventional morality post-conventional morality
physical passion body ambition soul/mind spirit
3. intellectual/ contemplative life wisdom reflective life
of another. On the other hand as pointed out by Wilber 29it must be noted that the upper levels do not negate the existence and operation of the lower levels, rather they sublate and integrate them.
See generally, Ken Wilber, "Sex, Ecology, and Spirituality" 28-29 (2000).
Thus the reflective person does not reject moral rules as such, but rather refines them and uses them in a more reflective, flexible way. Similarly, the reflective person does not deny pleasure as a positive value, but rather recognizes that higher order "pleasures" may have more value in certain contexts than mere physical pleasure.30 Thus intellectual "pleasure" or psychic satisfaction produced by "flow"31 experiences may be valued more than eating caviar at a cocktail party. However, the principle of Value in the Ethical Matrix does contain within the inherent notion of "positive" value. Thus pain or suffering which is sought as an end rather than as a means to higher pleasure is seen as a psuedo-value rather than as a positive value.32
Having discussed an overview of the Ethical Matrix the Article now proceeds with a fuller discussion of each one of the four ethical principles and a discussion of how the Ethical Matrix is
30 C.f., G.M.A. Grube, Plato’s Thought 68 (1980): According to Plato’s work, "It follows that the pleasure’s of the mind are the greatest, those of honor inferior, and the physical pleasures come last of all. Plato does not say that physical pleasure is a delusion or that honour is an empty thing. He merely gives it as his considered opinion that they pale into insignificance by the side of the pleasure that one gets for the search for the truth." In Wilber’s language, the higher is arguably better because it both transcends, integrates, and sublates the lower without losing the positive aspects of the lower. 31
See generally, Mihaly Csikszentmihalyi Flow (1990) (arguing that at "flow" experience of "spiritual" satisfaction takes place when one places oneself in the "flow zone" between boredom on the one hand and stress from failure on the other hand in relation to chosen goals or tasks). Thus, while the sado-masochistic experience of pain simply for the sake of pleasure is rejected as a value, pain can be chosen as an instrumental value to achieve higher pleasure, satisfaction, or flow. Thus, the basketball player is willing to put up with the pain and suffering involved with running wind sprints after basketball practice because he or she knows that this will improve his or her ability to play basketball for a longer period of time in a game in a more satisfying and skilled way.
Bible (1977).used most effectively. "Treat another as you would wish to be treated in a similar context." Although the two different formulations are very close. The idea of reciprocity as an ethical principle takes into account the value of 33 Math. while my formulation has a more individual flavor. 7. v. Additionally. Reciprocity As stated above the principle of reciprocity that is used in the context of the Ethical Matrix is based upon the Golden Rule found in the teachings of Jesus of Nazareth.33 My formulation of the rule as the principle of reciprocity is somewhat different. it has a more communitarian flavor. 36 . one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action. 12. Oxford Anno. Ch. 3.
see John Rawls.34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. 37 . This is based on 34 For an interesting discussion of Autonomy. This is the actuality of Reflective Autonomy rather than rational autonomy which manifests at the moral level based on moral rules and in a more limited sense at the selfish level based simply on the maximization of pleasure without reflection.Autonomy. "A Theory of Justice" 513-519 (1971). Thus included within the potential values which could be "plugged into" the principle of reciprocity is the value of allowing space for and respecting the Reflective Autonomy of another.
its correlative cognitive functions. how much do they change."from the point of view of ordinary causality. Ford answers." What sort of "chaos" is produced. For a general discussion of Chaos theory. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness. then one would probably argue that such forms can be "added to but not subtracted from. 38 36 37 . Perhaps one of the more interesting quotations in Gleick’s book is from scientist Joseph Ford: Referring to Albert Einstein famous question as to whether God plays dice with the universe." but also as "Being.’ ‘But they’re loaded dice. is an even more interesting question. or change context.the premise that Being and its manifesting relational meaning streams structure reality probabalisticly thus leaving room for individual Self expression and autonomy within a range of statistical probability which diverges non-systematically from classical or systematic norms. Chaos (1987). And the main objective of physics now is to find out by what rules they were loaded and how we can use them for our own ends.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. "‘God plays dice with the universe. Of course one finds the notion of the "Good" in Plato’s work. and Natural Law Ethical principles definitely points one in the right direction of seeing reality more 35 One might argue that nonsystematic statistical divergences from classical or systematic norms produces "chaos." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. at 314.’" Id. however. James Gleick. see." If one sees the relational meaning streams as immutable platonic forms." "rearraned but not changed. and when? These are the questions which have vexed philosophers for quite some time. What are these relational meaning streams.35 Thus the argument is that personal expression (diversity) which diverges to moderate degree from the statistical norms expressed by core relational meaning streams of the Good (Being)36 is good.
Is there any 39 . George must posit that Stan’s desires in the situation are based upon positive values. he (George) would not want to get punched in the face for no apparent reason. Stan does not choose pain for the sake of pain. is not the end of reciprocal reflection. Although in this situation the double reciprocal reflection may seem unnecessary. Taking simple hypothetical then. that is. and have Stan engage in a reciprocal reflection. there is no value to be achieved by Stan in having his face punched. George must place himself imaginatively in Stan’s shoes and ask himself. Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal. let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. This." George must now place himself in the shoes of Stan. however. George. Anticipating our discussion of Value. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason. and in the absence of a higher value achieved instrumentally through pain. one must imagine that one is Stan placing himself in George’s shoes.accurately and making better decisions. Utilizing what can be described as "double reciprocity. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation. will choose pleasure over pain. How then does one utilize the principle of reciprocity? One must use one’s imagination to identify the relevant actors in a particular situation as well as the values involved and then decenter one’s own identity imaginatively to consider the viewpoints and the values involved relative to each actor. after having imaginative placed himself in the place of Stan and utilizing the values of pain avoidance and physical harm avoidance would then reflectively come to the conclusion that if he (George) were Stan.
Utility.38 Having discussed the ethical principle of Reciprocity. would see any value in George’s potential activity of punching Stan in the face. there does not appear to be any higher reflective or moral value which Stan might recognize as valid. 38 While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face. Additionally. "The Principles of Morals and Legislation (1988). The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. Jeremy Bentham. 39 40 . the next subsection will discuss the principle of Utility. it’s usefulness becomes more apparent in more complex situations where there are legitimate values which relate to the interests of all the relevant actors.reason why Stan imagining himself as George. 4. See. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse. The ethical principle of Utility is usually associated with the work of Jeremy Bentham39 and generally involves the notion of maximizing pleasure and minimizing pain.
the Author. Value is a transcendental notion.40 What can this mean? The Author would Bernard Lonergan. As pointed out by Jesuit philosopher Bernard Lonergan. it is problematic in that it is not a principled ethic. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. Additionally. Here. it must be stated at this point that my approach to decision making differs. am building on the work on Bernard Lonergan. the argument is that Utility is the ethical principle based on the maximization of Value. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. as I pointed out in my first article in the Boston College Law Review. and who intuit Being and Value in a positive way. even those who have a good intuitive sense. there may be concern that this ability is not widely shared and that many selfish negative people could simply assert that they "intuit Value or Being" and then manipulate others in an inauthentic way. Method in Theology 12 (1971). Although this has much to recommend to it. Although it is obvious that I.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. Lonergan could only theorize that 40 41 . Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. Finally.
the rule of law." While I have always read and interpreted this in a positive light. Additionally. the goal of political society. and due process of law. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. by intuiting Value one is better able to consciously recognize and then reflect upon the values relevant to a particular situation. and the law. If one reflectively intends Value. It is my position that the Ethical Matrix is the natural law-critical realist ethic. in a particular decision-making context. or in the context of a particular public policy analysis. is the "good of order. as such. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. objectively. then one begins to have a basis for ordering one’s values.argue that Value is an core relational meaning stream. the state. and have as a result of that process developed the Ethical Matrix. 42 . and is one which promotes constitutional democracy.
reinforced. for various religious groups to have violent confrontations. It is asserted that all other things being equal. can certainly be the basis for a particular value. and enforced through moral communities and authority figures. and through the intuition of Value." it is the author’s suggestion that such activity is very difficult for the moral person to engage in precisely because it conflicts with that person’s moral identity on a psychological level. several points can be made. First.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem. However. First. Thus it is not unusual. If a culture as a whole is made up of one seemingly homogenous moral group then it is likely that that group will discover "heretics" within the group which must be identified and then suppressed. the problem with simply living the moral life is that even if one were to receive an instruction booklet of "perfect moral rules" (which is of course is impossible absent something like an angelic intelligence writing the rules and then interpreting them) given the 43 .43 Other than this general 41 42 Aristotle. moral rules are taught. the Author would make the more direct argument that the end of the human person is the reflected life rather than the moral life or the selfish life. for example. Moral communities are problematic because group identity and the identity of individuals within the group are based upon distinguishing group moral identity from that of outsiders. cannot be denied. upon reflection. 41and that true happiness is achieved through the contemplative life. the reflective person chooses a higher pleasure over a lower pleasure. Additionally. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life. pleasure. While the moral life has many positive attributes to recommend it. While moral injunctions to "love one’s enemy" are intended to act as "double bind" commands which are intended to motivate the member of a moral group to relate in a positive way to "outsiders. it does entail certain problems. for example. one can begin to recognize higher pleasures. While Aristotle argued that the end of the human person is happiness. as such. Ethics 1097a15-1097b2 (1976).
the non-reflective. The acquisition of the sports car will typically not satisfy the selfish person. but rather impedes it. 44 . the Author would argue that something like liberal "original sin. anti-self interest" operates. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value. 43 Perhaps it goes without saying that for an adult. and it cannot be seen or grasped in the world of commodities and commotion. This is because selfish person is merely pursuing a sensate addiction when in fact the satiation of a lower order sensate desire for pleasure will never ultimate satisfy one’s underlying need to experience and express Value as such. While the selfish person can perhaps manifest a degree of rational reflection intended to achieve psuedo-values based upon power for it’s own sake. shiny and alluring and full of fame or fortune. Thus." that is. and cannot there be found. the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends.. we are seeking for Spirit in ways that prevent its realization.complexity of the real world it is impossible to make appropriate decisions without contextual reflection. Ken Wilber. but the Spirit is spaceless. he or she must have a better more prestigious sports car which in turn will not suffice. We seek for Spirit in the world of space. but Spirit is timeless. in point of fact. We seek for Spirit in this or that object.f. and the pursuit of lower pleasure as one’s only ends in life. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law. and even when they are achieved. "irrational self. and force us to settle for substitute gratifications.. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . Additionally. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. The Atman Project (1999): We seek for Spirit in the world of time. Id. leaves the person with a lack of genuine pleasure. C. manipulation of others.. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. the accumulation of material wealth. the selfish person usually cannot even accomplish these goals without running into problems. And that is the Atman project. Instead. but Spirit is not an object. In other words. and cannot there be found. immoral person will often find that his or her pursuit of selfish self interest conflicts with societal rules resulting in informal social sanction or formal legal sanction. at 61. Because these rules exist. the selfish life is immoral and unethical..
for example. on proportionality and proportional thinking. Proportionality. other than to say that it is self evident that Value itself must be valued. compensatory money damages should always equal the amount damaged. has no definitive serial ordering. or as it is put biblically. The second corallary is that Perfect Justice is found in Perfect Proportion. and as expressed in particular concrete values. Thus. and. all other things being equal. punishment should be meted out in perfect proportion to the crime committed. while equitable values involve the value of favoring or helping one in need.guidance or limitation. once again. The principle of proportionality is found in geometry and mathematics. "An eye for an 45 . and equity and equitable thinking. It involves the idea that perfect proportion is found in a 1:1 ratio. one’s assessment of Value and concrete values in the context of the Ethical Matrix is of course influenced to a great degree upon the ethical principles of reciprocity and reciprocal thinking. Or. 5. of course. or in an equalateral triangle which has been divided down the middle. it must be stated that Value itself. in criminal law. Proportional values involve the value of equality and having rules. however. This leads us to our discussion of Proportionality.
stripe for stripe. tooth for tooth. foot for foot.eye and a tooth for a tooth. Exodus. in his Ethics. eye for eye. you shall give/have. wound for wound."). appears to be the first person to formally recognize proportionality as a basis for justice. 21. hand for hand. v. burn for burn. "life for life. 46 . 23-25 Oxford Bible (1977) ( For any harm. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law."44 Aristotle. Ch. Apparently in his culture in ancient Greece it was not politically correct to assert the position that a servant bringing a lawsuit a against a noble would be 44 See.
where the [legal decision-maker].48 45 46 See. "[A]ll law is universal.. 1132b3-1133a13 (1976). 1130b32-1131b14. in fact this is not possible. Aristotle. Id. 6. then it is right. Ethics 1137a17-1138a11 (1976)."47 Thus. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there. there is a problem with this approach that Aristotle himself recognized.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice. 47 47 . and there are some things about which it is not possible pronounce rightly in general terms. owing to the generality of his language.. and a case arises under this that is exceptional.. has erred in not covering that case. and as he would have enacted had he been aware of the circumstances. Equity In his Ethics. Ethics. Aristotle. [W]hen a law states a general rule.treated equal on the basis of formal equality. Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance.46 As Aristotle puts it.
48 .. "the essential nature of equity. is. a rectification of law insofar as law 48 Id...Therefore..
" otherwise injustice is simply produced by unnecessary rigidity. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch. Id. 694 (1986). I suggested no to this question. Anthony J.is defective on account of its generality. Thus."51 And as noted earlier. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. 51 49 . that rather it is impossible to generate a rule system that would justly take into account every possible circumstance.50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. 681. however. The question remains. it is possible in theory that some day we could eliminate the need for equity by simply refining our rules to such a degree that equity would become obsolete? In an earlier article. Fejfar. when does equity intervene. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words. and how? Here there 49 50 Id."49 This of course raises the corallary question.
accessible both to women and men. We see neither the fundamentalists nor the logical positivists lining up to worship Athena the Goddess of Wisdom or Minerva the Holy Spirit of Divine Wisdom. the definition of possession in Property Law. To the extent 52 Obviously the determination cannot be a "legal" determination based upon strictly linear rules otherwise there would not be a need for an equitable exception at all.52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. to be followed by a section analyzing the concept of possession in light of the Ethical Matrix. and a true assessment of need must be an intuitive one. the next section will deal with a discussion of the concept of possession. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. but rather one which is alinear and arational. 7. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control. 50 . Having discussed the component parts of the Ethical Matrix in some detail. This intuitive intermediate way of knowing which is associated with wisdom. is a half way house between purely irrational emotional feeling and strictly rational analysis. rather only a strictly logical exception. Thus. we will now move to a concrete but theoretical legal problem. Nevertheless.can be no hard and fast answer other than the fact that equity is based upon need.
"53 showing that all definitional arguments are ultimately circular and thus indeterminate. but it need not be. we find that reality comes at a higher level. Now if we expected to find reality on the level of logic or ideas. While we sometimes get to 10 or 12 or so different words. utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. The problem." Should this surprise us? No. and that is this: possession is related to control. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. 53 See generally. 520 (1984)." one is again faced with a problem. Girdeau Spann. however. one simply is presented with the phenomenon of "analytic spin. one is typically thought to possess it. is that when one attempts to find an adequate definition of "control. Now. On a purely logical level all analytic arguments are ultimately circular and thus intederminate precisely because one cannot find an analytically justifiable reason for choosing a particular definition of a legal term independent of the knower. we try to generate list of definitions of words associated with possession.that one has control over personal property. If one analyzes a concept enough. What is "control?" What is sufficient "control" to constitute "possession?" When I play around with these concept with my students in Property class during the first few weeks of class." 68 Minn. this could be troubling to you and I. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. L. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. Rev. the substance of what the students are getting at remains the same. 473. this of course would be a problem. "Deconstructing the Legislative Veto. If however. for example. 51 . because all definitions are ultimately circular.
He also wishes to thank students from several property classes 52 54 .54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention. At level one. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball. on the three levels above. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2. At level two on the level of "actuality." one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values. on the "reacal" level." one could argue that one has legal possession of an item such as a baseball by arguing that one has sufficient "control" over the ball to constitute "possession. Reacality: Body: Sense Experience/Data: Power/Authority Power Politics Now. which deploy as follows: 3. At level three in "reality. possession could be considered respectively. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case. a critical realist understanding of the problem can be seen as involving at least three levels to reality. and then using physical or political force to retain possession. Now all of this seems very abstract. Actuality: Mind: Understanding: Logic and Logical Reasoning 1." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function.then we find that there is no problem at all. Following the work of Bernard Lonergan. returning to our concept of possession.
"At first the ball appears to [pop] out. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away. ‘Who has the Ball?’ Id. 10.who have discussed the possession issue relating to a home run ball.. "A tape of the homerun scrable. "[A] man. St.. Petersburg Times Newspaper. "Once major league baseball identifies the individual with the possession of the ball. 2001)." Id. emerges from the pile he has been mining for more than a minute with a smile and appears to say. Patriot News Newspaper. In the Barry Bond’s Home Run Ball case. A lawsuit is filed and the case ends up settling with a 50-50 split of $450. as well as this article.. 2003). Who gets the ball? According to Jorge Costa. Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco. Team Senior Vice President of Pacific Bell Baseball Park Operations. June 26. (2003 Westlaw # 3207018.. "Another 30 seconds pass and finally Hayashi pulls the ball out of what appears to be his pocket and offers a broad smile and asks: ‘Is this the ball?’ Id.000 received at auction for the home run ball. 53 . that’s the end of that.." Id. but then it drifts back into the glove. (2001 Westlaw # 25594143. who turns out to be Patrick Hayashi. Both Popov and Hayashi end up claiming the ball." Id. Oct. clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands]. before Popov is tackled by dozens of other fans clawing for the ball." Id.
that fan can expect appreciative cheers from the crowd). and risk injury attempting to catch baseballs rocketing their way.55 Suddenly Pudge Rodriguez hits a home run into the stands in left field. especially the younger ones. Many will bring gloves. 56 This is obviously an imaginary hypothetical since Pudge Rodriguez. but you slip on a hotdog and lose your balance. the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. nets.Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. 54 . your glove opens an inch 55 For many fans. to the author’s knowledge now plays for the Florida Marlins. You reach up to catch the ball. There are few more memorable experiences than leaving the stadium ball in hand. all rise in an attempt to judge where it will land and to position themselves to compete for the most prized possession (and if a fine catch is made. As each ball heads toward the seats.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you. Richard Skolnik. 173-74 (1994). Baseball and the Pursuit of Innocence. and instead of completely closing. and other apparatus to the ballpark to aid in their quest. and will occasionally display incredible bravery (or is it foolhardiness?). The ball has just made contact with the trap of your glove.
Costa’s position. Ballpark rules say that the first person to "possess" the ball owns it.further and you start to bobble the ball. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. You say the ball is yours because you caught it first. The ball pops out of your glove and into your other hand. bounces back toward your glove. 55 . See supra. Joe Smith.57 57 This appears to be Mr. note . the second guy says it his because you did not have control of the ball.
B. for our purposes. 6 Q. The argument is that a flying baseball is analogous to a free flying wild animal. Modern Property Law (1999).B.60 In Young v. Bracketed information found in edited version of Young. Black Law Dictionary. Hichens58 and State v. A fathom is six feet in length. Hichens.E. 900 feet would be a length of 300 yards or three football fields long.59 Although both these cases deal with the possession of wild animals. Shaw. 607. namely. 65 N. they are the only two relevant cases. fish.The case is turned over to a judge who must decide the case based on case law from two previous cases. Young v. in Bruce and Ely. 606 (1844)."63 "leaving a space of about seven fathoms 58 59 60 61 6 Q. the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish. 62 63 56 . 875 (1902).
.. 57 .. Id.."66 At this point the defendant took his boat through the gap in the plaintiff’s net and then the defendant completely enclosed the plaintiff’s partially enclosed fish and took them into his (the defendant’s) possession.67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id. Id. "two boats belonging to the plaintiff. Id.open.."65 At this time.."64 (42 feet). were stationed at the opening. and splashing the water about for the purpose of terrifying the fish from passing through the opening. "which he was about to close with a stop net.
"69 "It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he [the plaintiff] had not possession. In contrast to Young."71 Thus the court in Young comes to the conclusion that one must have complete control over the fish before it can be said to be in one’s possession."70 Additionally. the defendant was criminally charged 68 69 70 Id. "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish. Partial control is not enough. was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant. is State v. Justice Patteson stated. "I do not see how we could support [the plaintiff’s position] unless we were prepared to hold that all but reducing into possession is the same as reducing into possession. Id. Lord Denman stated. Chief Justice.in the defendant’s net. Shaw. 58 .72 In Shaw. If the plaintiff did have possession of the fish. this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals.B. 611. In his opinion. 6 Q.68 At issue in Young.
59 .E.71 72 Id. 875 (1902). 65 N.
took the fish from the owner-compainants’ nets prior to the return of the owner-complainants. the defendants who were not the owner-complainants. Id. and the state appealed.E. 60 74 75 76 77 78 79 . the defendant must have stolen property from someone owning the property. to escape. 68 N. 876.77 At trial the defendant moved for a directed verdict of not guilty on the ground that the complainant did not have sufficient possession of the fish to constitute ownership and thus no "theft" could have taken place."75 This type of net is left in the water by its owners and is constructed in such a way that a gap in the net allows fish to swim into the net but makes it unlikely that they will swim out again. 876.76 In Shaw.74 The facts indicate that the compainants had placed "trap nets.E. 876. 65 N. to prove theft. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment.78 The trial court directed a verdict of not guilty for the defendant. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets. To put the argument more fully.with stealing 730 pounds of fish from the complainant’s73 nets. 65 N. there can be no theft. not that they were formal complaintants.79 73 The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken. In fact the case only inicates that the these parties were named in the indictment.E. A "trap net" is a type of net which has a long tunnel which gradually narrows leading to an aperature in a "pot" portion of the net from which it is very difficult but not impossible for fish who have found their way into the pot.
"the fish were not at large in lake Erie. at 876-877. Id. of the fish escape. 61 ."81 The court opined. therefore.84 8. yet it was practically so impossible."83 Thus. Id."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net. 80 81 82 83 84 Id. Id. Id."80 The court noted that in Shaw. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession. for it seems that in ordinary circumstances few.On appeal the court in Shaw heard the case on the assumption that the trial court "directed the jury to return a verdict of ‘not guilty’ on the theory that the fish must have been confined so that there was absolutely no possibility of escape. They were confined in nets. that it considered the trial court’s approach to be "unnecessarily technical and erroneous. from which it was not absolutely impossible for them to escape. if any. on appeal the court in Shaw concluded that the complainants’ by having "practical" control had a sufficient property interest in the fish that the taking of them by the defendants constituted theft.
You say the ball is yours because you caught it first. as to who has a right of possession in the home run baseball. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. The Wisdom of Laotse (1976). Daoism was first developed in China by Lao Tzu. The ball has just made contact with the trap of your glove. both the batter. Young. The argument is of course that by custom. See generally.In the present case we must attempt a logical analysis. Recall that in our hypothetical the following situation took place: Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game.85 85 Of course one might argue that if Freddie Fan or Joe Smith were in the Dao then all this concern about getting the baseball would be irrelevant. You (Freddie Fan) have your ball glove on and the ball is coming right toward you. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. You reach up to catch the ball. and Shaw. The ball pops out of your glove and into your other hand. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. based on the foregoing precedents. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. Arguably. and instead of completely closing. Suddenly Pudge Rodriguez hits a home run into the stands in left field. bounces back toward your glove. your glove opens an inch further and you start to bobble the ball. This possibility is reflected in the following story: 62 . the second guy says it his because you did not have control of the ball. In this sense the ball is like a "wild duck" flying into the stands which then becomes the property of the first person to "net" the "duck" and place it in his or her possession. Joe Smith. but you slip on a hotdog and lose your balance.
John F. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. "Honey. To paraphrase Lao Tzu: The brave baseball player is not athletic. The Virtue of Non-contending 293 (1976). 63 . she [my wife] said. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. 128-29 (2001). see. For a discussion of the Dao in relation to Basketball. The [D]ao of the Jumpshot (2000). Mahoney . Dad and I leapt to our feet.It happened this way: My wife. my Dad. Looking up with a wide grin. To a Daoist the above story does not seem improbable. Joanne. realizing that I had to let my Dad get it. al. stepping back to let his son’s dream come true. To our horror. He hit a high pop-up that came sailing straight at us. The good fan does not lose his temper. But he did the same. The Wisdom of Lao Tzu. we watched the ball drop between us–right in [my wife] Joanne’s lap. I thought you said catching a [fly] ball was tough. Rudy. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. edited by Jack Canfield. First inning. The great conquerer does not fight. The good fighter does not lose his temper. and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. Chicken Soup for the Baseball Fan’s Soul. first pitch to leadoff batter Ricky Henderson. The great player does not compete. et.
64 . one could conclude following Young that a mere 6 inch gap compared to a gap of 42 feet in length is de minimis and thus would not be considered a "gap" for purposes of defining "control" or "possession. In Young there was a gap in the net of almost 42 feet in length." Shaw." Following Young. In the present case. "Almost" control is not "control. in the case of the home run ball. then. Only partial control was present in Young. The bobbled ball case." and "almost" possession is not "possession. On the other hand it one could argue that the Young case although generally controlling. the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most. is remarkably like Young where the net of the first boat had not completed closed. and therefore Joe Smith as first possessor would own the ball. then it could be argued that in the present case involving the bobbled ball. Arguably then. Accordingly. and only had partial control before Joe Smith reached in and grabbed the ball. is distinguishable. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. Freddie Fan did not have sufficient control to obtain possession of the ball. Recall that in Shaw the court held that practical control was enough to grant the "trap net" fisherman ownership rights associated with first possession. absolute control of the ball is necessary before one can assert that one has possession. practical control should be sufficient to place ownership in the hands of Freddie Fan. In this case Freddie Fan bobbled the ball. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw.If we were to follow the Young case. Recall that the court concluded in Young that partial control is not enough.
fair play. Arnold. the Author would argue that the Fans in some sense should be assumed to operating in the context of the same values as a baseball player and while we could certainly postulate an analysis which begins with selfishness and greed (a level one analysis) why not start with a level 2-3 analysis which involves values associated with fair play and sportsmanship. have waived their rights to the ball and so they will not be discussed. Feezel.9. Critical Readings. and the owner of the stadium (if different). 65 . and sports related values. Coaching for Character (1997). the team owner. ch. Drew A. Philosophy of Sport. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. but recognition. However. In baseball. A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix. First we must identify the persons relevant to the reciprocity analysis. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. In this case it appears that the batter. X (1983): 61-70. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. see. Peter J. Since this is a baseball game. and Craig Clifford and Randolph M. in one sense an outfielder is competing with other outfielders on the same team for not only excellence. 6 (The Stance of Sport) 125 (1990). Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport. Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport. Hyland.
at least in the abstract. using the principle of reciprocity." Subsection (a.) further provides "No player of the kicking team may be within two yards of the receiving team positioned to catch a free or scrimmage kick.between center and left field it is often the case that both the center fielder and the left fielder position themselves to catch the ball. one might generalize this rule to apply to all cases involving partial possession of property. then. how does all of this play out in terms of the Ethical Matrix? First. in N. believe in fair play and sportsmanship. the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder. One must make the assumption for purposes of analysis that both Freddie and Joe. In fact. Starting with this operating assumption. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted." When taking the above sportsmanship values into account it is apparent that in football as well as baseball there is present the notion that one should be given a fair opportunity to catch a ball in some situations.C. When both players have positioned themselves closely enough to the ball to possibly catch the ball.A. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession.A. 66 . Now. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply. Football Rules." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player.must be given an unimpeded opportunity to catch [a] kick. Similarly. we start with Freddie Fan and Joe Smith.. Thus. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. as sports fans..
Now we apply the Ethical Matrix the other way. in a similar situation. as a matter of rule based ethics is legally entitled to the home run ball. the discussion is relatively strait forward. Joe Smith. which can be applied relative to both Joe and Freddie. placing himself in the shoes of Freddie Fan. the principle can be used in the sense of creating a general rule. he. would come to the position. with respect to Utility. Joe Smith." Freddie Fan should get the home run ball as first possessor with partial control. Would Joe Smith. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances." Hypothetically. believes in the "fair opportunity" rule. In my judgment. Freddie Fan would be entitled to the home run ball." he. that is. and takes comfort in the conclusion and rule that next time. at least in the hypothetical . who also is hypothesized to be believe in sportsmanship and fairplay. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. Joe Smith would be ethically and legally entitled to the ball.one must have Freddie Fan place himself in the shoes of Joe Smith. that Freddie Fan is entitled to the ball. then. No further discussion is needed. ethically. With respect to the remainder of the analysis under the Ethical Matrix. 67 Finally. With respect to the principle of proportionality. understands. had partial possession of a home run ball. if he. the fair opportunity rule. Additionally. Freddie Fan. relative to the question of who gets the ball "ethically. Joe Smith as a sports fan. First. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. and thus recognizes that "after the dust has settled. It can so be applied. take the position that "ethically. because. and therefore the proportionality test is met. Joe Smith. and hypothetically all others.
presented there does not seem to be any need for contextual equity. Thus." The Article then involved a linguistic. and therefore the fair opportunity rule applies as stated. 68 . policy. and then ethical analysis of the problem presented in the example. the result reached in the policy analysis section passes the muster of the Ethical Matrix. It is concluded that the Ethical Matrix is a valid natural law ethical tool for engaging in public policy and legal analysis. 10. the "fair opportunity" rule for the possession and ownership of personal property is developed. A Universal Natural Law Ethic. The Article then proceeded with an example involving possession of personal property and a "home run ball. Conclusion This Article began with an overview of The Ethical Matrix. As a part of the analysis.
Corporate employees. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. also. etc. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. only the stock holders would be prioritized or even included as stakeholders.” Cynically. Corporate work places are dehumanizing both in terms of the type of work that is done. legally. consumers of products. Typically. and then trying to fairly balance or adjudicate their respective interests. but. is to profit maximize for the benefit of the 69 . but also in terms of long hours. and perhaps only goal.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. Often. local and regional communities themselves. often. If one takes what I would call a “property rights” oriented view of the Corporation. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders. The argument is that. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. traditionally. traditionally. The Corporation’s typical goal. then. families of employees. in the first instance can be asserted against the Corporation. and even.
one profit maximizes by investing in human capital in and for the short. corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. and long run. but also in making ethical judgments to promote the Common Good. Unfortunately. discussed previously in Chapter IV . is that the Corporation would not be profit maximizing. The purpose of the Corporation also would be to promote the 70 . corporate fascists often fire employees and break up companies for no rational reason at all.” The Business Judgment Rule would be based on the Ethical Matrix. Alternatively. but are on the cutting edge. the shareholders. arguably. especially. which is irrational in both the medium and long term. a “duty-conscience rights” oriented view of the Corporation could be developed and used. and the Good as a Critical Thomist Ideal. How do we resolve this condundrum? Well. one gains the edge by having management and employees who are not merely competent. medium. The problem with this second approach. and Truly Worthwhile.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. if not require. the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization. “The Z Corp. from a “liberal” point of view. other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. first of all all of the empirical evidence that I have seen indicates that in most industries. In a competitive market.stockholders. The solution to this problem in my view is to at least allow. that. and. the restructuring of Corporations to create a new type of Corporation. in the guise of short term profit taking. and perhaps even in the short term. In this instance. however.
which would be give preferential tax treatment with respect to the interest produced. This stock would produce no dividends. and I suggest. The Bonds could of course be publicly traded either on the New York Stock Exchange.“Common Good. at below market rates. The Truly Worthwhile. life insurance. I would argue that overall. would of course be “profit moderatizing.” Additionally. and an ability to use the Ethical Matrix.” However. A Z Corporation would be able set up subsidiary corporations which could provide health insurance. One might argue of course that a Z Corporation would not be “profit maximizing. and The Good as a Critical Thomist Ideal. Finally. in an attempt to meet the objection head on. would produce a greater profit than its older cousin. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover. Capital would be raised primarily through the use of Corporate Debenture Bonds. The trustees would be experienced business persons.” Here the rather obvious response is that ethical decisionmaking in the 71 . Z Corps. such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. etc. and. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. or on the Chicago Mercantile Exchange. no more than 20% of the stock would be publicly traded. Another objection might be that ethical decision making in the context of a Z Corp. for example. with a values orientation. would be “irrational. law professors. because the management literature almost uniformly suggests that ethically run corporations produce more money.. disability insurance. A law firm which was a Z Corporation. Of course one might respond that one is comparing apples and oranges. The Z Corp.
and in conjunction with the subsidiarity doctrine which diversifies responsibility through society. operations. Finally. spin-off. will be the way of the future.context of the “Ethical Matrix. natural law. are totally unrelated and thus would diversify the income stream of the parent Z Corp.” is objective. It is an objective. or offshoot. perhaps even treating the interest as tax exempt. universal. will be the end of both unreflective fascist capitalism. unreflective fascist communism or nazism. type way of thinking. I think that we will find that Z Corps. Additionally. I would reiterate that Z Corp. in the case of economic or other cyclical downturns. and have wholly owned subsidiary Z Corps. which involve related. 72 . traditional non-profits such as Universities and Hospitals could incorporate as Z Corps. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. and. or alternatively. bonds be given preferential tax treatment.
is defined as "Empty Form. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle. or perhaps. So perhaps we might wonder. not only how we solve the problem. then. the logical positivist. without taking the time here to trash Ockham’s Razor. found in Quantum Physics. or perhaps even hermeneutics. tells that reality is manifested primarily through words or language. on a Quantum Level. on the other hand." as such." as such is defined as "Formless Form. Substance." and "Substance." So. typically. Does this really make sense? Logical positivism at its best. the ideal.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. suggests that the meaning framework that we bring to a problem affects." Now in order to avoid "Quantum Spin. surfaces. deals with formality. Ken Wilber calls this "flatland. let’s talk about these concepts. Form. deals with depth." Now. Form and Substance. "Form. denies the existence and efficacy of metaphysical principles. Use the wrong concepts and one’s mind goes into "Quantum Spin." I suggest that we at least try out two very interesting metaphysical concepts. or 73 . or structure. not only how we approach the problem. but the problem itself.
a bush (not to be confused with President Bush. along comes my kids. scrub. "Well. and you see some scrub. is some scrub. Bill Shakespeare thought about the same question when he asked in one of his plays. Crista asks. however. Well. "Would a rose by any other name smell as sweet?" "Uncle Chris. You go for a walk. "Bush.reality without form. shrub. I think you have been hanging around Dad 74 . where my wife’s folks live. and my folks live down there now in Fort Worth. what’s the difference?" Uncle Chris Stluka. I would call it some shoots that are sort of clumped together. says. Josh (age 9) and Cristina (age 12). "You know Josh. with leaves sticking out in various places." Uncle Chris comes along. but is smaller than a tree. and for some reason your out for a walk in Shiner. In describing this bush. and beside the road that you are walking on is some "scrub. wise in the ways of the world. my wife is from Texas. and although he is from Texas. would say that if something is growing on the side of the road which is larger than a grass or a weed. and I think that on a good day my wife’s relatives from Shiner. But before you decide. "Mom calls that scrub. is lots of fun. coming from Nebraska. Now at this point in the story. from my point of view. and although not literally. let’s say for the sake of argument that you are a Yankee from up north (like me). true. course." Now." Crista then says. let me tell a yarn that includes a couple of examples. Now the logical positivist might doubt that these two concepts are really different. "Dad. he says. what is that?" Josh responds. even though both seen to have some relationship to Texas in this story). I think that that just might be a shrub not scrub. Texas. Crista. This yarn involves members of my family. I’d probably call that scrub. Texas ( home of Shinerbock Beer). Now.
"I give up." that is. I want to see some practical results here." says Dad "Allright Dad. the Mom now appears." says Crista. At this point Dad cuts in. "Well. let’s say that I believe that the form-substance distinction exists. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary. where could you have gotten such an idea. "Well. we’re all supposed to think about things like that. "bush. and of course Scruffy. but in substance." says Crista. "Tricks Josh?" asks Dad?. "the point is that although as a matter of "form" we have three different words for a "bush. in form there is a difference. So. "Well. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. now listen to your Dad. its getting hot– remember we’re in Texas in July.too much." "scrub. really." says Uncle Chris. all three words mean the same thing. kids. let’s put the pedal to the metal. "Yeah Dad." says Uncle Chris as he gives Crista a little knock on her head with his knuckles." says Dad. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids." "See kids. and a red convertible car on my 16th birthday?" responds Crista. Crista. "Wait a minute Dad. how is this going to help me get a job. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista." and "shrub." however. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad.) "Well kids let’s get inside and have 75 ." (Judi. and Uncle Chris." as a matter of "substance." says Uncle Chris. Dad." "Josh and Crista. "Now Crista. your Dad solved it. I just give up. the same. that why God gave us these noggins to think with. "Dad." Uncle Chris. "Yeah. I think Scruffy (the Dog) wants to go in. is this one of your tricks?" says Josh.
"Mom. does this mean I call stay up until 2:00 a.?" says Dad. even property lawyers." says Mom. "Well Chris. watching the Eminem special? I think from a critical point of view my ability to critique the lyrics and the tonal harmonics would be a very important step in my Thomistic development." say Judi. Judi. I think using the Ethical Matrix we have to weigh the utility of staying up late with the down side of you sleeping in until noon tomarrow when we are planning to go into Victoria for lunch and to a movie." says Mom. and how does that work?" says Mom. "Yes. "Well. Dear. well. were trying to create a joint tenancy with you and myself with some property you already owned. is there really any inconsistency here.. "I for one want to hear the end of the discussion about the form-substance distinction. Mother. but from the point of view of the "truly worthwhile. "Mom.your late night snack and get ready for bed." "Oh." say Josh. "would a Mom by any other name smell as sweet?" "Josh mind your manners. responds Dad." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up. O. "Well." says Crista. we’re a Critical Thomist family. we raised our kids to think critically and question authority. "Now wait a minute" says Uncle Chris." says Dad.." says Uncle Chris.. we’re discussing the form substance distinction here. and we haven’t quite got through yet.." "Whoah there Judi..m.. Tony." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions. "Yes. "lets say that you. "Well Crista. 76 ..K." say Josh.. I like the utility of have three popsicles for our late night snack rather than two." says Uncle Chris. Josh. couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. the practical point Cristina Elise is that lawyers use the form-substance distinction all the time. "Yeah Mom.
what does this have to do with the form substance distinction. but as joint tenants. the survivor automatically gets the other tenant’s share.K.m. to create this joint tenancy of yours?" says Judi. its where two or more persons hold real property in common. why not just say that the original transaction was O. title would already have been conveyed to you the grantor." says Dad. thus satisfying all four unities all at once. in substance they are the same." says Crista. the two transactions are different. and interest. "O. "I think I’ve got this one figured 77 . prior to your attempt to convey it to the other person.K.K". I think I’m getting this." who was a trustee. "Well. Crista. says Uncle Chris." says Mom. If the two transactions are the same in substance. one with a direct conveyance. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson." says Dad. one with a strawperson. "What’s a joint tenancy again Dad?." "O. "You know". "Alright. "Well. it getting late and I want to watch Law and Order at 10:00 p.K Dad. But what is the point. "Me too Dad. I think I got it. "O." says Josh (as he rolls his eyes). "Now. all have to be satisfied at the same time."O." says Crista. this is because the unities of time. says Crista." says Dad. "Well. "Now. title. in fact. Tony.. the point is. "a joint tenancy could not be created by one person who already owned the property conveying part to another.K. at the traditional common law." "O. so?" says Judi. not to cut the story short. Therefore the four unities could not be satisfied.. which of course means that unless the tenancy is severed before one of them dies." say Mom.K. who then conveyed the property to the grantor-original owner and the other person at the same time. "that although in form. Tony." says Dad. the problem was that if you already owned the property." says Dad. possession.
" says Tony." "Well. Well. "No. and you still get the substance. interesting." says Mom." And so the Fejfar-Stluka clan. I don’t want to miss my show." "Hmmm. their minds filled with jurisprudential sugar plums.out. says Mom." go ahead Tony" says Uncle Chris. Lawyers are constantly arguing that something is or is not the same in form or substance. "and in fact that is just what has happened. let’s continue this discussion inside. By modern common law and modern statute. let me think it through. go ahead. did you want to chime in?" asks Tony." "The law is like this all over the place. "Judi. "if a court or a legislature chooses substance over form." says Dad. head on into the house to watch Law and Order. do I get to guess the answer?" "Sure Chris. 78 ." says Tony. you’ve got the floor. then you know what? they change the rule so that the form does not have to be met. "You know I had it but then I lost it. you can create a joint tenancy by a direct conveyance without using a strawperson. "Well." says Chris.
Don’t get me wrong. S. but somehow I think the whole process worked in reverse. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. before you know it. I was teaching mentally retarded children’s C. I stopped by Father Dehne’s office. was my freshman theology professor. because. in Kansas City. This was my first exposure to priests in tweed sports coats. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends.J. Carl Dehne.. So.D. Usually you end up being friends with professors when you take the trouble of stopping by their offices to get a sense of where they are coming from. Anyway. Missouri–a good mid-western Jesuit school.C. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). its not that I thought that I would be manipulated the Good Father. the priests wore their collars and blacks even while taking their showers.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College. believe me. in Lincoln. Nebraska. for a 79 .
so.. I don’t know. that sounds great Father Dehne. I couldn’t figure it out on the spot.D. no. and believe me. there is an opening.C. "Oh. I don’t see a problem with that. "Great. and me Paul Atredeides. Well. C. when you’ve been eating dormitory food. so I said . Then he said.A.couple of big university masses. can go over to the J... once I knew Weiss was invited. Dehne looked at me.D." replied. Oh.m. is from 5:00 p. I thought to myself. he"s another Rockhurst student who is already teaching.m. the point." I said. Not the President of the College. "maybe around 9:00 o’clock or so. what is 80 .R." I gulped. sort of quizzically. I had already heard about Jenny’s Italian restaurant down by the river. you know." Then Dehne says. "what time do they start?" "Oh. that sounds good. and raid the refrigertator. and then you.E. program across the street on Saturday evenings. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade. I thought to myself. till 6:00 p. fraternity parties on Saturday nights and I think I’d have a conflict. the thought of eating good Italian food was beyond the imagination. we have this mentally retarded children’s C. Now there was a quid pro quo. Father Weiss. Now what was I going to do? "Well. and you can get your Sunday mass obligation out of the way. that is the Planet Dune. Father Carl. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. then I say mass for the kids." "Well then it’s perfect. Somehow. Maybe we could get Father Weiss to come along. of course. metaphorically.k. "O.R. or was there a deeper plot." said Dehne.C. was Kansas City Arrakis." "but you know. I have S." I replied." J. Duncan Idaho. Oh. I and John Blando. Now was Father Dehne bluffing? Thinking that I would back out. Father Dehne.
. of course the answer is that Carl Dehne and I took the C. Well. I just don’t think that is done anymore. however." replied Carl. "This isn’t part of the Jesuit rush program.87 a bit of a philosopher." was all I could say. I think since Vatican II we just expect vocations to fall from the trees.C.." I guess I can do the C. "Rush program. The Force clearly being the Dao. you know..” rather than “Jurisprudentialist. Now. being a jurisprudentialist. almost as if He doesn’t exist. "O. or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force. but what the hell did it mean? I couldn’t figure it out. Now I heard that.” when I was in law school. I muse about Starwars a lot." said Father Dehne.K.this. . the Jesuit Residence." said Father Carl. "whatever could that be?" "Well. Not much talk about God. what does this have to do with Luke Skywalker and the Void. and. I’ve been hooked on Starwars ever since. Starwars is clearly a Daoist Universe.. Dallas? "The J. the guys in the dorm say that there is a Jesuit Rush program where you guys try to recruit us to go into the Jesuit Novitiate and be Jesuits. Good is pitted against Evil.C. Evil is Ying and Good is Yang. 87 John Snowden used the term “Jurisprude. I find the term “Jurisprude.R. For some reason.D." And so I did." I said. looking for deeper insights. at least not consciously. what would that be?" I asked. Father Carl. the first think I’d say about Starwars is that unlike Star Trek. only the Daoist Force. "Oh. Now. is it Father Carl?" I asked. thing and be a Crucifer. "Oh. and an amateur theologian. for once at a complete loss for words. "Well.D. Now.” to be a little bit 81 . kids Nick and Billy to see the original Starwars movie when it first came out. Tony.
one enter encounters a different world. Campbell’s book on Myth). the battle goes on. Hell is more of a state of being rather than a place. not unlike Beowulf. One could describe the Void as a place. In the lore of the East. in the hollow of the tree must you go and say more I cannot. and Hero. I would say that the Hollow in the Underworld represents the Daoist Void. and then one day Yoda gives Luke an unusual instruction. apprentice Jedi Knight. where Kirk is found and (rescued?) by Captain Picard and Riker. Now. parry. riposte. Luke goes through a variety of training exersizes. When one enters The Void. what’s the point? Well. Thrust. Luke looks ahead of himself and sees none other than The Evil Darth Vader himself in front of him (Luke) armed with a light saber. But before Luke fully developes his powers he must first be trained by his Daoist Master. So. or. Luke then bends over Vader’s body and takes off his mask. in the Underworld. on his Shamanic Hero’s journey into the subconscious (see generally. own face. In the Hollow of the Tree. This world is a world which is in some ways like the Oblivion that Captain Kirk finds on a planet in one of the Star Trek Movies. So Luke descends into the bowels of the earth. as perhaps Henri Bergson might put it." in substance. Luke’s. Luke lights up his light saber and engages. Luke vanquishes Darth Vader. or otherwise. within what he thought was Vader’s Helmet. the point is that in the East. finds his. Hell. says Yoda. after death. but it is a different kind of “prudish. "Luke. Yoda. Good Guy. He runs out of the Hollow and back to ordinary reality. only the Void. Luke is shocked.” for me to use. 82 . and to Luke’s utter surprise. The Absolute.Into all of this steps Luke Skywalker. Finally. as such does not really exist. what is my gloss on this situation? Well.
we judge ourselves in The Void. after death. that is his persona (Darth’s? Luke’s?}. if you have been a remarkably good person on earth. even if we have screwed up. then. as Fox points out in his book. The Void immediately dishes up for the participant a reality which reflects at the core. food for 83 . and finds within the self which is Luke. God doesn’t judge us. In Jungian terms. My gloss on Star Wars and Luke Skywalker. it’s a little more immediate. you will find yourself in a reality where your Void Projections will attack and torture you in the same way you have attacked and tortured others on earth. for one who is in The Void. I do believe that The Void exists. "What goes around comes around." except of course in The Void. Rather than the Void imposing its reality on the participant. like Yoda." Jesus transcends all Karma. But. or a Goddess or a good friend. as such exists. So there it is. This is of course confirmed when Luke takes off Darth Vader’s mask. Where does God fit in? Well. with a little luck. If nothing else. but I won’t. So. get our psyche shaped up. will help us to withdraw our projections. If you are genuinely a horrible person as a result of your own free will. On the other hand.place. Luke finds Darth Vader. The Void immediately manifests back to the participant the particiapant’s projected Shadow. his nemesis. and then to make amends for what we have done. and He. not only for Himself. then you will find Heaven in The Void. I personally don’t think that Hell. maybe you or I will find Jesus in The Void. I could stop here and play it safe. in The Void. Who you are is what you get. it’s the other other way around. Just like I tell my students in my law school classes. "The Sermon on the Mount. or an Angel. but for us. Now. back to Luke Skywalker. Instead of finding God. his enemy. So. who and what that person really is. As many New Age writers point out.
thought.88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest.. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based. 84 89 . is the author of "Insight. A Study in Human Understanding (1958). S. neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. in part. CHAPTER VIII CRITICAL THOMISM. and then culminating in a third cognitive 88 Bernard Lonergan.J.’ in "Collection." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy). and. rather. "Method in Theology" (1971). continuing with understanding. as originally developed by Jesuit Philosopher Bernard Lonergan. upon the Critical Realist philosophy. ‘Cognitional structure. Papers by Bernard Lonergan. knowing involves at the least a set of three interrellated cognitive operations beginning with experience.
operation which is judgment. understanding. as outlined by Lonergan.90 For a general discussion of the cognitional levels of experience. and judgment/reflection. or reflection. see ‘Cognitional Structure’ in "Collection" above. 90 85 .
on the first level one would ask the question how?." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough. Actuality is discussed in Erik Erikson’s psychology. 128).. is consistent with other ways of relating to the world around us." 86 . and on the third level. Anthony J. on a second level. and judgment. on the second level.92 Additionally.T. "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act. citing. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding. rather reality was thought to be found on three levels. and spirit (intellect). Attempting to consider these categories in terms of logical questions relating to law. Ecology. in analyzing law. 92 93 See Ken Wilber. a naively idealist view of the "already-out-there-now-real. understanding. the notion of Being valuing found in Maslow is also similar. Ken Wilber. 683 (1986).. and.") (p. Fejfar. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. on level one we would simply find "reacality" or illusory sense experience93. a matter of values. D. we in fact find "reality. one can see that law can first be seen on one level as a matter of power and authority. body. can be found there as well. and on a third level. at least Existential Hell. Perhaps Nirvana or Heaven can be found at level two. mind. what?. and Spirituality" (199x). "Insight: A Study in Human Understanding." 251 (1958). Suzuki. but in some sense perhaps Hell. For example.? Consistent with Buddism."95 All of the foregoing can be illustrated to some degree using the 91 See."94 Finally. a matter of logic and policy. Bernard Lonergan. 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position. it is at level three. "Boomeritis. one would ask the question. but in my view could also be described as "Zen Realism. postmodernism itself. one would ask the question." 681.This tripartite structure of experience. on level two we would find actuality. why. "Sex.
the portion of the branch below the water looks crooked relative to the portion of the branch above the water. another part of your mind which is utilizing current sense experience. because in fact the laws of biology. Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight. You reach the shore of the pond and stick the branch into the water. Because of the refraction of light. and chemistry.chart below: Fejfar 3. experience and understanding." This is a perfect example of how one’s mind can in the same 87 . in the first instance. The following illustration. "sees" that the branch is "crooked. The branch is six feet long and straight. taken from Lonergan’s work may be useful. Intellect 2. Mind 1. On the other hand. suggest to you. that the branch "really" must be straight. You are going to a pond full of water and you pick up a tree branch on the way. Newtonian Physics. in conjunction with past sense experience. Body Operations Reflection/ Judgment Philosophy Critical Thomism Law Levels values Logic Levels Realty Levels Why? What? How? reality actuality reacality Understanding/ Analysis Experience logical positivism idealism empiricism naive reacalism logic/policy power/ authority Now. perhaps the empiricist or the logical positivist doubts that there is a difference between.
As Gadamer points out to us. it is apparent that experience by itself. as such. in distinguishing judgment from experience. First. Now all of this raises a third question. and at same time on the level of understanding "understand" the data differently on the level of understanding. and the levels of understanding and experience on the other.1992) 88 . Judgment or reflection as acts of reasonable knowing only occur as a result of the integration of sense experience at level one with understanding and meaning at level two. how is it that we can differentiate between the level of reflection or judgment on the one hand. is merely a collage of mixed sense impressions. "Truth and Method" (2nd Ed.96 knowledge cannot come to us apart from mediated meaning categories. These occur primarily on the level of understanding. 96 See generally. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest.context "experience" the data of sense on the level of experience. one need only respond as Gadamer does that it is only through "forestructures of knowing" which help to organize our sense experience that we can know anything at all. Hans Georg Gadamer.
"The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. at a distance. see Nick Herbert. Anthony J. Ken Wilber. in fact. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. and. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory. I’m sure that I read this "koan" type statement in a book by D. In some sense judgment and reflection reach beyond mere understanding and mere sense experience. Judge Hutcheson.. "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance. Volume II).Now. See also. Nick Herbert.Q. Fejfar. 285 (1929) (quoting. Suzuki. one must "become" the rock." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982). it is at this point that the logical positivist might object that there is no real distinction between understanding at level two and judgment based." 158-161 (1999) (in the Collected Works of Ken Wilber. "The Atman Project. Radin.99 While this may sound far fetched to the man or woman in the street. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. The Theory of Judicial Decision: or How Judges Think. In any event it is clearly a Zen Realist type statement. perhaps it doesn’t. "Quantum Reality: Beyond the New Physics. sublate98 them. However." citing. 359 (1925). Fejfar. There at least two possible responses to this objection.B.100 So perhaps as the philosopher Henri Bergson suggests." My understanding of the quantum physics literature at this point is that it does not seem possible to send a strictly linear quantum message nonlocally. from a Critical Thomist point of view. and transcend them to form a judgment of real fact or a reflection on or of deeper reality.A." 14 Cornell L. 357. it is also my reading of the literature that an "alinear" or 89 100 . An Excursion Into Metaphysics" (1985).T." 11 A. Zen Buddism suggests a similar procedure when it says that to know the rock. it is possible to 97 For a discussion of intuition. First. quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly.J. or reflective knowing at level three. 274. 99 Or. integrate them. Perhaps. "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education. see Anthony J. but I can’t find the cite for it.
On the contrary. However. rather. and a timer. It is possible. using classical newtonian physics. the conventional scientist might object that we simply need a more accurate measuring device. that such a probabalistic universe is unverifiable. and quantum indeterminacy. I would argue that every conventional experiment that is undertaken. Thus." since all that quantum physics seems to postulate is a probabalistic universe anyway. this is perfectly consistent with "intuition. One might object that from a Newtonian point of view. in this sense that Bernard Lonergan states "asymetrical" message can be sent. 90 . it is not possible to "send" a perfectly linear message. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. and thus would clearly be more bound by quantum indeterminacy. Instead there would be a statistical spread.have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. and with a Force measuring device at the bottom of the ramp. if we were to take the equation Force=Mass x Accelleration. the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like. will produce probablistic variances. and then we would get identicle results. if sufficiently precise measuring devices are used. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. Now. only a probabalistic one. However. then. Because of Heisenberg’s indeterminacy theory. one would be clearly embarking into measurements which are more clearly taken in the quantum range.
Block. On level two there is a logic of analysis. Panacea or Plague. further questions. Fejfar. Symbolic logic reigns: If A. "The Business Judgment Rule (1998) (arguing that a reasonableness standard of "gross negligence" is the standard for director-officer liability under the business judgment rule. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. or solutions to the problem. two. B. B. Given two seemingly logical explanations of the data. A. In doing so we can make both judgments of fact and judgments of value. It is here that language and interpreted data are collated. A Question of Horizon. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. Stephen A. At level one is a logic of movement or operation. Anthony J. however.that the act of judgment itself involves an additional "check" on the data for a type of coherence which would seem to transcend purely logical thinking. A second way of distinguishing levels two and three is simply through the use of logic. see. or even in some cases overrule logical "rational" results and reason to judgments of some type. Radin. At level two. Law Journal 859 91 101 . Nancy E. "Corporate Voluntarism. how is it that one is used or chosen and the other simply discarded? How is it that some of us can distinguish between good judgment and poor judgment. For a discussion of critical realism in the context of management decision making. compared. and others suggest that "judgment" does not even exist? Looking at this problem inductively it is apparent that somehow we are able to go beyond logical or linguistic indeterminacy. Ideas are analogized and distinguished. Barton. Dennis J. C.f. remain.. and contrasted. therefore. My argument is that a different type of "logic" operates at levels one. It is not purely The business judgement rule does not require "perfect" judgment. then. but rather only reasonable judgment." 17 Del. In a judgment of fact it is apparent that somehow we are able to make probabalistic assessments of whether or not a certain fact or set of facts exist. and three.
On level one on the level of operative logic. Instead. 92 . Now. three. and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. Jr. This is of course consist with both conventional Newtonian Physics and Quantum Physics which in different ways suggest that we live and act in a probabalistic universe. Susan P.syllogistically logical in nature. the sign and the language it contains simply commands us not to walk. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. even though it really is not. somehow sense data. Hazard. logically. Roger C. for example. "The and Ethics of Lawyering 156 (1999). as Lonergan points out. if it turns out that our provisional judgment based on probability is not correct. Also at level two we must assess the underlying policy of the rule "Don’t Walk. it is not true that we are incapable of making better probabistic judgments or assessments. in the context of decision making. breach. Cramton. we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. and damages." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers. causation. Additionally. Koniak. On level two. the standard of care is one of reasonableness. it is simply the case that in this instance we could have done better. As Lonergan puts it. let us consider a "Don’t Walk" sign in a crosswalk. the probability judgment "kicks over" into a de facto absolute judgment of fact. Geoffrey C.. one can distinguish levels one. with the elements of the cause of action for legal malpractice being: duty. applying hermeneutics. when the probability level of a judgment goes high enough in one’s mind. or negligence. interpretation. two." Put another way. as a practical matter. So.
that from a purely logical point of view. and in this context.103 Thus while level two intelligence intends an analysis of policy as such. suggests three levels of different logic. 93 104 . with my earlier thesis.assumption that there are reasons or policies underlying rules in general. Here." and "reflection. is it not the case that "judgment. and a level three. so does protection of human life and of human property. Critical Thomism.. Anthony J. so does freedom. The above then is consistent. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. at this point we again have to question whether there is any difference between level two operations and level three operations. and.f. the policy underlying the "Don’t Walk" rule in all liklihood is to order the movement of persons and vehicles at intersections and to prevent unneccessary accidents. underlying the policy.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article. we ask Why? The logical positivist will undoubtedly ask. at level two we ask. interpreting language. the value or values. "Method in Theology" 34 (1971) ("Value is a transcendental" notion). Thus. perhaps." for example are purely "reified" terms which cannot be taken seriously. Now. The Critical Realist position is that level three judgment or reason in this context intends value. and in the final measure determining which outcome is the most "logical" at level two."). at level one we ask How?. whether or not a "lamp" is a "reified" object and thus not "really real. at a deeper level it can be judged that order itself has value. Level three reason or judgment intends value. What?. "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning.104 While previously I spent an entire article 103 Bernard Lonergan. All these values would be taken into account in assessing policy. C. Fejfar.
CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. 94 . let alone “doing” Critical Thomism as a philosophy is the “Level Thing. id." In the final analysis.” The idea of levels of growth or maturation or 105 See.105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid. logical positivism can offer us much in terms of level two analysis.addressing the foregoing type of objection. but in the end it is an incomplete philosophy compared to Critical Thomism. As a matter of both epistemology and cognitive psychology logical positivism is inadequate.
” Let us imagine that you double click on “My Documents” and as a result the subfolders relative to “My Documents” appear on your computer screen.” Sublation means that at every level the higher level transcends the lower level or levels. in his ethical theory. and later in Ken Wilber’s work. “Fishing with Dad. adds something new. Imagine that you have a computer with a desktop. What you find in both Piaget and Kohlberg. rather they are included in a new and higher integration.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg.” another. but also the notion of “sublation. itself. of course. Kohlberg. really only goes up to level 6.” etc. but also includes and integrates them.” You then double click on the Folder Icon “My Photos. is not only the important concept of levels of thinking or concsciousness. the lower levels are not lost. the whole thing sort of looks like this: Level 3 Desk Icon: Includes/Contains: My Documents Includes/Contains: My Photos Includes/Contains: 95 Level 2 Sub Folders: Includes/Contains: . themselves as Icons. One being “On the Pond. So. Now this is very hard to conceptualize for a lot of people but perhaps this example might help. which. So.” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos. On the Desktop there is the Icon “My Documents. Imagine that one folder is the Folder entitled “My Photos.
“understand” the picture by cropping the edges. perhaps your computer is programmed so that you can process. let us imagine that a new Desk Icon has been created. but which also adds a new “intuitive” operation which gives more depth of field to the picture. This is the level of sense experience. thus creating the gestalt Desk “Pond Icon” at level three. changing the contrast.. and a task menu pops up with different operations. on the subfile/picture level. let’s say your “mind. deepening the colors. So. At level three at the Desk Icon Level.” (do this in your imagination if it helps) at level one. at level two. But the other trick is this. at the “Folder” level. using a photo editing program. ala Bergson. there it is. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. i.e. or alternatively. if you understand what I am trying to get at above. which is a gestalt of the first two operations (levels one and two). Now. or File Icon. can access a remote digital camera which takes a picture. You then upload the level two “processed” picture to level three. At each level let’s say that you can right click on the Desk Icon. Of course if we were dealing with a “picture” which involved all five senses at level one. So. and then upload it to level two for processing. you immediately upload the Pond picture to level two for saving to memory and processing.Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So. perhaps not unlike the “image schemata” discussed by Lakoff. On this level you take a picture of a Pond and then either save it to memory at level one. Folder Icon. A little example of how you might organize your mind as a Critical 96 . you are about half way there.
Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious. such archetypes function as “forestructures of 97 . Try it all in your imagination. In this article.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering. however. Tom has spent a lot of time thinking about Sir Thomas More. CHAPTER IX CRITICAL THOMIST LAWYERS AND JUNGIAN ARCHETYPES What does it mean to be a Lawyer? Tom Shaffer at Notre Dame has spent a lot of time wrestling with this issue.” It is in our own unconscious that “deep structuring” symbols and metaphors. Use different metaphors and examples. what he calls “archetypes. I’d like to take a Chancellor of England under King Henry the VIII.” help to structure and partially constitute our individual “way of being.” and collectively.Thomist. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired. Good luck.” As Hans Georg Gadamer might put it. Experiment. our communal “way of being.
for many of us. No. there are two choices: Simon Peter or Doubting Thomas. in doing this.m. most of us spend a good deal of our time trying very hard to do the right thing. the Ushers. I would like to suggest another type of Thomism. Now. the Readers. Now. So for our heros we must have heros who. people who say the Rosary. in the morning and still stay up with him.. to help a baby with the colic get to sleep at 2:00 a. Now. Thomas L.knowing” which help us to think and to know. Now why these two? Well. in the end. loved and adored..” they think of Saint Thomas Aquinas and the Summa Theologica. but still failing.g.” 98 . in the morning. however. when you think of realpolotik in the Catholic Church–people in the pews. you come to understand that one of the primary criterion for their theology is durability. what do you look for as your role model. e. “On Being a Christian and a Lawyer. the Knights of Columbus. Critical Thomism holds of Saint Thomas the Apostle. at least part of the time. people who belong to the Alter Society.” not Thomas Aquinas. somehow make it through the next day. We’re not looking for the type of perfection that gets it right every time–that’s Jesus–that’s for other people–the ones in religious life. must some how have failed–otherwise we’re damned. we 106 See. People might not admit this.m. that is “Doubting Thomas. but I think this is it. and not Thomas More. to change baby diapers.. and then. that’s the ticket for us. They want the kind theology that helps to get and keep a good job. Perfect imperfection. your hero? Well.. Shaffer. and then later on. when people typically think of the idea of “Thomism. they might not even know it consciously. even idolized (in a positive sense). to help clean up your gradeschool kid’s puke at 4:00 a.
insisting that the early Christians observe both Kosher as well as adult circumcision. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. and yet he still is the Rock upon which Jesus builds his church. felt. as a Critical Thomist. and side. I don’t mean they were literally apostates.” who Jesus obviously loved. feet. the legal system. First. as you may recall. takes a stab a Lawyering. what does this mean for we Lawyers. and who stayed the course and stayed in the Church. of course. Jesus simply says. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. human in the first instance. or experiencing. Jesus. Simon Peter denies Jesus three times before the cock crows. reasoning. Now. whom he relied on. shows up. later on. only metaphorically. you Thomas have believed because you have seen. Authority. Instead of condemning Thomas. Whether one reads the Bible as literature. What we want are the two “Apostate Apostles. rather. we have Simon Peter. or a Divinely Inspired. believes that reality and law must be based upon authority. who. Now. Simon Peter. essentially. The Apostle Thomas. before he (Thomas) would believe. Simon Peter is the Archetypal Imperfect Authority. it means that we have two foundational apostolic role models for Lawyering. and for the Legal System. blessed are those who believe without seeing. is the one who after the resurrection. feeling. on the other hand. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law. and legal 99 . This is Petrine Lawyering.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. experienced. and insists that Thomas feel the nail holes. rule based in the second instance. is the basis for law. refuses to believe that Jesus has resurrected. It takes the adept Lawyer Paul. Well.
and presumably God the Father. well. God is “right” not because He’s God. “Creative Form. The Incarnate Word. bet on Simon Peter. completely and absolutely and ultimately consistent. instead it is Faith that Faith and Reason are totally. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. concrete people. and in doing so on Papal Authority. right. When Faith and Reason “appear” to be at odds with one another. as the Logos. sooner or later we will sort 100 . on the other hand. Now. This was Jesus’ promise to us in the Gospel of John. On average the Popes seem to do pretty well. totally consistent. and of Papal Authority. This is not apostacy as some Petrines might think. And you know. The Critical Thomists. this is simply a temporary glitch. Judicial Authoritarianism. they follow Jesus. instead of following the Pope. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. What is right is what the authority says is right. The Divine Word. Although this may take a little time. Simon Peter. taken as true. Critical Thomists have Faith–it’s just not Faith in Authority. but because he’s. as a given.. are remarkable suspicious of both the Petrine outlook. the Apostle Paul. Reason Rules.practice. For Critical Thomists. all of whom. lawyers or no. Just let the ancient wheels of the Church roll along themselves. and perhaps. conventional people. There is a certain school of thought that Rome rules best when it does nothing at all. and perhaps typically are. that’s the ticket. rather. or in Platonic terms. Faith and Reason are assumed to be. Divine Reason. guided of course by the Holy Spirit. at least archetypally are seen as ruling on the basis of authority.” For the Critical Thomist. it really isn’t such a bad bet. For them the Pope is it.
Our Patron Saint is the “Apostate” Apostle. it is my argument that they Lawyer best when they start with reason. then go to the authoritative statement or rule. going to understanding. Saint Thomas the Apostle is the Patron Saint of Critical Thomism. Although Lawyers certainly use authority. A totally different way of thinking. going to understanding. Doubting Thomas. and then deductively apply the rule to their experience. 101 . and then finishing )(provisionally) with judgment and reflection. we think critically.things out and we will find a reason based way of reconciling any apparent contradiction. and reason inductively starting with experience. and inductively. Now. by starting with experience. from my point of view. As Lonergan tells us. One suspects that the Petrines start with the person of authority. not because we have unthinkingly and unreflectively followed authority. how does “Doubting Thomas” fit into all of this? Well. This is the intellectual approach to living. and thus “know” reality. and then finally to reflection or judgment. If we are to be judicially damned or canonized it is because we have thought things through.
D. Of course I don’t remember the original story as such. Perhaps he reminds you of The Shadow. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. the 102 . black jeans. black hat.C. the first thing to know about The Hangman is that He always wears black. religion class. black cotton cloak. maybe 8th or 9th grade. I mean. involves a story that I first heard in junior high. But. black gloves. A kid’s word game? For most of us perhaps. I’m going to tell you the story of The Hangman. but I do think I’ve got the general gist of it. Now.CHAPTER X THE HANGMAN The Hangman. black silk shirt. just to make it fun. I sort of heard it. but I guess its fair to say that I also saw it. No. for me The Hangman. the dark side radio hero. and I think it had the appropriate effect. But not for me. Now. the details. I told a story something like this to one of my law school classes last year. in person. Black boots.
here goes. a saloon. colt navys. "I said. and spat down on the ground. by the looks of them. the man in black. "Howdy stranger. a livery stable. except his skin. a hotel. So. was a prosperous little town called Purgatory. He got a third of the way into town. The sweep boy saw him first. and the boy ran to tell the town Marshall that a stranger was in town. of course. creating black shadow in front of him. black as pitch. just passing through?" The man in black just stared and squinted his eyes in a way that would make Clint Eastwood a poster child for sweetness and light. and a bowie knife with a jet black handle on his belt. He rode into town slowly with the sun at his back. The town had a dry goods store.two are not the same. Purgatory was a nice town. He was armed. unless of course you had to cross a street. until any of the townsfolk noticed him. typical." said the Marshall. He stopped and looked. His bear gun. and of course a fair number of houses. Everything was black about him. Back in the Old West. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. Then he. a gunsmith. what can I do for you. in Nebraska Territory–the Kansas part. he had on a double rig of six guns. The people went to church on Sunday. The man in black just waited. Hello stranger. a lumber yard. down Main street. His eyes were like obsidian orbs. a hardware store. and the townsfolk that were 103 . looked at the buildings of the town. cat got your tongue?" said the Marshall. ten gauge. His skin was a very pale white. The man in black squinted his eyes even further. Soon the Marshall came out with a double barrel shotgun. Everything was normal. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. hacked up some flem. with shells filled with double odd buckshot. a butcher shop.
especially your town. but it all stopped when The Hangman stepped inside. He slammed it down. "I think it means whatever you want it to mean Marshall. and behind him to see if the bartender had his shotgun out. The Hangman walked up to the Bar and ordered a whiskey. "Oh. The Hangman stretched. I solve all your problems. "Listen all of you. the man in black said. what kind of business. I’m The Hangman. "Mr. hacked some flem. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. and strode into the saloon." said the Hangman. and threw two bits on the table and turned and scanned the room. and I don’t like hangmen. and I do that by hanging people. The Marshall couldn’t take it.beginning to congregate. and right now it means that I am going to the saloon and get a drink. supple and strong. "What’s that supposed to mean?"asked the Marshall. Finally. he just couldn’t keep eye contact and instead looked down at the dusty street. I don’t like black. His eyes squinted. Then he said. and I don’t like you." asked the Marshall. like a black cougar." A drunk cowboy stood up and said. Then. I hang people. I help make the world a better place.. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. The Hangman rode down Main street past the Marshall a half a block. "I’m The Hangman. playing poker. But the Hangman just stared even harder at the Marshall. and tied the reins to the wooden bar in front of him. got off his jet black horse. listening to piano music. mostly for committing crimes. I thought you might have some business for me." "Business. He glanced to the left. The bartender didn’t.." said the Hangman. Then the Hangmen waited a moment and looked to see if anyone else was 104 . The saloon was crowded. cowboys drinking beer." The Hangman’s eyes squinted even further. why don’t you just mosey out of town before you get hurt.
"Son. another whiskey. "Well. The cowboy stared into infinity for a second then fell on the floor and died." said the Hangman. "Can you read?" asked The Hangman. I can’t tell time. He then went to the Hardware store and bought some tools and started to work It took him a week. The Hangman walked from the Hotel where he spent the night to the Lumber yard. The Stable Boy was cleaning up horse manure from the stable floor. what time is it?" "I don’t know mister. "Well." said The Hangman. Then The Hangman walked to the Livery Stable. but this is for your own good." said the Boy. The Hangman took the Boy down the street to the gallows. you had better come with me. I guess I feel like staying. "No sir. son." said the Boy. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy. No one said a word. tested. but then it was done." said the Hangman. He just laughed. So. "Bartender. "Anybody else care for a shot." "What is sir?" asked the Boy. without paying." said The Hangman. Son. A wooden gallows had been built. you have cognitive dementia. He had some lumber delivered to the end of town. a nice prosperous town like this should make someone like me feel welcome. "Hey Boy. and to protect the town from and further 105 .backing the cowboy’s play. The shot went wide and broke the mirror behind the Bar. "Well son. calmly aimed. No one was." said the Hangman. He drank the whiskey and this time simply smiled at the Bartender and walked out.? asked the Hangman. the Hangman’s Switch. and place a bullet through the forehead of the cowboy. "Yes sir. you have cognitive dementia." answered the Boy. "I know you don’t understand this. and so I am going to have to hang you until dead in order to put you out of your misery. The next morning at dawn. Suddenly the cowboy went for his six gun. The Hangman didn’t even move.
The next day the Hangman went up to the Marshall. He deserves to die. The trap swung out from under the Boy’s feet. He couldn’t even stop me from coming into town." said the Hangman. The Boy froze with fear. "Anyone here object?" 106 ." said the Hangman." said the Marshall. "But. you seem a little overweight to me. His mind blanked out with panic. Marshall you know that you simply cannot be a dead weight here anymore. the Marshall just can’t get the job done anymore. that’s a hanging offense in these parts. I guess this confirms it. put the noose around the Boy’s neck. "and this is a good town. no one drew their gun. this boy is a wastrel and a blight on humanity." "You won’t be needing this anymore Marshall. "This boy has cognitive dementia. Unless anyone objects.. The Hangman said. Although twenty men were there who were armed with six guns. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall.leeching of yours off the common good. I’m going to hang him now. The townsfolk all say that you are dead wood. He fell through. thank you for your help. A few people cried." said the Hangman. He left and the crowd went home. and the Boy’s neck was snapped. Soon a crowd had gathered." said the Hangman. "Yes. "You know." he continued." A few people laughed. and then pulled the lever. killing him instantly. We need to put him out of his misery. He is dead weight and dead wood." said the Hangman." said The Hangman. And so the process repeated itself. He didn’t know what to do." "You are to be commended for helping to clean up this white trash.. "Marshall. Well. as he pulled the Marshall’s six gun out of his holster. you just can’t get the job done anymore. no one said anything. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk." "I am here to help you clean up this town. "You are good people. The Hangman tied the Boy’s hands. Luckily for the Boy the rope was placed just right.
"What will the town do without a town Marshall. you will hang seperately. everybody does the right thing. Any objections?" This time." said the Hangman." said the Hangman. Although unarmed. The next day the circuit judge rode into town. dead as a door nail." said the Hangman. "The Hangman. black as night. as you very well know. I am a dementer from Hell set loose on earth to test you. I answered it. The Boy stood their shivering." said the Hangman. when the Hangman is here everybody figures it out." he promised." "Well Boy. The townsfolk applauded." "This Boy is guilty of gross deriliction of duty and insubordination. I was just testing you and the townfolks. "You have questioned my authority. and you know that is wrong. he didn’t want to go near The Hangman." seeing that the Boy was going to reply. what else was I supposed to do?" "Son don’t be smart with me." said the Hangman." said the Hangman. "Now Boy. here. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together. he called out the 107 ." said the Hangman. a Boy asked. "In order maintain order and authority in this town. isn’t that true?" "Well mister. and down went the Marshall. quickly stuck his handkerchief. But the crowd pushed him forward and up the steps. The Hangman cut the Marshall down and retied to hangman’s knot. no one said anything. Once The Hangman come to town. you asked a question. you don’t need one. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here. the Boy must die. "If you follow me. The Boy started crying." And then the Hangman pulled the trap. in the boy’s mouth so that the Boy couldn’t talk any further. "Now Boy. "Well. To everyone’s surprise. you must know that. he is the only authority." he continued.continued The Hangman. I need some help up here. I will give you a well ordered society.
"he is the cause of all of your problems. A couple of months. From the Hotel." The Mayor’s wife fainted when she was called out." said the Hangman. All the rest were dead. your honor. Each day a new accusation. giving himself a shave." said the Hangman to the assembled crowd." said the Mayor. And down went the judge. the rule of law is a myth designed to deceive you. to keep you enslaved. "Mayor. hanged by The Hangman." 108 . set the noose." asked the Hangman. "those who were hung were trash. Inside was the Mayor." responded the Hangman. you can’t get me. And so they did. his demenour. the good people of this town knew it. The Mayor looked over. Only The Hangman gets things done. It took awhile of course." replied The Hangman. And so it went. take here instead. "Not me." said the Hangman. The Mayor balked. but finally there was only one person left in town other than The Hangman. Only The Hangman can save you. "I pass it on to my wife. but this did not stop the Mayor from carrying her limp body to the gallows. and approved. so the story goes. cold as night." said the Judge." "Grab this vile judge and take him to the gallows. Only The Hangman has real power. The next day the Hangman called out the Mayor onto the street. each day another hanging." said the Hangman. The Hangman came out. "We are making progress. I run things. this is my town. "See this judge. "Well." "What then am I to do. tied her hands. "You can’t just hang people. "The Hangman doesn’t need a trial. These people you have hung have violated no law and were given no trial.Hangman into the street. "What is it you want. you are the last one. that was the town Mayor who had "passed it on" to his wife. The Hangman crossed the street and went into the Barber shop. and then down she went. The Hangman and the Mayor revived the Mayor’s wife with smelling salts. its your turn." A crowd had gathered.
said the Hangman." said the Hangman." but instead you all chose to hang separately. I’m safe. the hands tied. And so up the steps of the gallows they went. "I passed it on. "and if you didn’t you should have asked." "All of you could have hung together as a group and opposed me. and down the Mayor went. "Yes you did." asked The Hangman." said the Mayor. then you can rest assured that there is a well ordered town here in Purgatory." said the Mayor. letting me win. "Me. The noose was fixed. or you hang separately. and slowly rode out of town looking for the next town. "Exactly. A job well done. "But I didn’t really understand what you said. put me back in Hell under the Rules of the Game. "Either you hang together." said the Hangman. He got his gear. let’s get this over with. Remember I told you early on in the process. "But there won’t be anyone left." "And now. Is the next town yours? 109 ." "Did you really think that would save you. saddled his horse." said the Hangman. The Hangman smiled a smile of satisfaction." said the Mayor.
and I think it had the appropriate effect. in person. pretty close to the last one. just to make it fun. I’m going to tell you the story of The Hangman. I sort of heard it. religion class. . The Hangman. Of course I don’t remember the original story as such.D. but I guess its fair to say that I also saw it. quite different. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C.. for me The Hangman.. A kid’s word game? For most of us perhaps. the details. Now. the first thing to know about The Hangman is that 110 ..C. but I do think I’ve got the general gist of it. this is another story dealing withe The Hangman. in the end. But not for me. But. No. I mean. at least at the beginning.CHAPTER XI THE BARTENDER Well. maybe 8th or 9th grade. involves a story that I first heard in junior high. Now. I told a story something like this to one of my law school classes last year.
His skin was a very pale white. Purgatory was a nice town. Back in the Old West. black cotton cloak. colt navys. His bear gun. The man 111 . a butcher shop. except his skin. creating black shadow in front of him. He rode into town slowly with the sun at his back. until any of the townsfolk noticed him. So. a hotel. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain.He always wears black. ten gauge. here goes. just passing through?" The man in black just stared and squinted his eyes in a way that would make Clint Eastwood a poster child for sweetness and light. and the boy ran to tell the town Marshall that a stranger was in town. he had on a double rig of six guns. a lumber yard. He stopped and looked. Soon the Marshall came out with a double barrel shotgun. But. black silk shirt. The people went to church on Sunday. typical. a saloon. black jeans. unless of course you had to cross a street. The sweep boy saw him first. He was armed. with shells filled with double odd buckshot. His eyes were like obsidian orbs. the two are not the same. Hello stranger. The man in black just waited. a livery stable. Everything was black about him. Everything was normal. down Main street. black hat. black gloves. a gunsmith. a hardware store. The town had a dry goods store. "I said." said the Marshall. by the looks of them. cat got your tongue?" said the Marshall. Black boots. of course. He got a third of the way into town. was a prosperous little town called Purgatory. Perhaps he reminds you of The Shadow. in Nebraska Territory–the Kansas part. and a bowie knife with a jet black handle on his belt. black as pitch. and of course a fair number of houses. "Howdy stranger. the dark side radio hero. what can I do for you. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes.
listening to piano music. mostly for committing crimes. He slammed it down. "Listen all of you." asked the Marshall. and threw two bits on the table and turned and scanned the room. hacked up some flem. and I do that by hanging people. why don’t you just mosey out of town before you get hurt.. Then he. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. the man in black said. I don’t like black. looked at the buildings of the town. But the Hangman just stared even harder at the Marshall. I’m The Hangman.. "I think it means whatever you want it to mean Marshall. Then. and the townsfolk that were beginning to congregate. "What’s that supposed to mean. what kind of business. and spat down on the ground. and I don’t like you." said the Hangman. supple and strong." said the Hangman. and right now it means that I am going to the saloon and get a drink. cowboys drinking beer. "Mr. I thought you might have some business for me. and tied the reins to the wooden bar in front of him." "Business." A drunk cowboy stood up and said. he just couldn’t keep eye contact and instead looked down at the dusty street. and I don’t like hangmen. His eyes squinted. the man in black. "Oh. playing poker. and strode into the saloon. hacked some flem.in black squinted his eyes even further. The Hanman stretched." The Hangman’s eyes squinted even 112 . got off his jet black horse. The saloon was crowded. Finally. like a black cougar. I help make the world a better place. especially your town. The Marshall couldn’t take it. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. The Hangman rode down Main street past the Marshall a half a block. "I’m The Hangman. The Hangman walked up to the Bar and ordered a whiskey. I solve all your problems." asked the Marshall. but it all stopped when The Hangman stepped inside. Then he said. I hang people.
"I don’t think you really want to hassle that cowboy. that’s the Rule. lock him up.further." And so the Marshall dragged The Hangman’s body away. Next day was the trial. In "St. and on top of that. "Well. "Well. "fast as lightning. they never go down. do you Hangman?" said the Bartender. "Well. "Wher’d you get that Peacemaker?" asked the Hangman." said The Bartender. would it?" asked the Hangman. some folks even call me "The Devil’s Advocate. that went pretty well.A. "Attorney at Law?" As The Hangman turned and looked up to see the shingle. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun. "See the Shingle up behind me which says. When The Hangman fell through the trap the next day. it won’t be exactly fair if you use that Peacemaker against my Colt Navy. son. and behind him to see if the bartender had his shotgun out. The Hangman should have known better. "that’s how they hex them. you know the Lore. its totally fair since only a Thomist can even carry a Peacemaker. I’m charging this hombre with attemped murder." replied The Marshall. and the Hangman was convicted of attempted murder. I’m the District Attorney." said the Hangman." said The D. a nice prosperous town like this should make someone like me feel welcome. "I suppose the ciruit judge will be here tomarrow. Louis. Then. "Well. No one was. suddenly.A." replied the Bartender. I thought. "Well." The D." said The Marshall to The Barber. knocking him out. some laughed but no one cried." "It’s really not fair. reverse handled his Peacemaker and hit The Hangman over the head.A. He glanced to the left." "Marshall. The bartender didn’t. I guess I feel like staying. a Peacemaker always wins over a Navy. is Coif. "Why?" asked The Barber. as he walked 113 . "Well. "The D. I’ve never lost a case and I’ve never lost a gunfight. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play." replied the Bartender." said The Hangman again.
CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law. In this essay. And so. or.. that murder is the only cross cultural legal prohibition. .. not that I necessarily disagree with all that has been said above. that is. I would like to offer a different slant on things. our critical friends may suggest that there really is no objective basis for law. however.away. at least none other than the prohibition against murder. one is often tempted to look back at the Code of Hammurabi. heading for the Saloon to get a drink. I would like to suggest that 114 . that prohibition itself would be subject to a great deal of interpretation. perhaps in terms of contemporary natural law or socio-biology. Instead. The sociologists seem to agree on one thing however. and then of course.
suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. would be seen as that which is judged to be “property” on the basis of experience. he defines property in “concrete” terms simply as a “bundle of sticks. at least in the concrete sense. but also the basis for human dignity. and substance. understanding.” that is it is intangible.property.” including the right of possession. on the other hand. in what one suspects is a rather traditional. a fixture. I suppose.” with each “stick” representing some “right. in the first instance. defines “property” as “A legal relationship between persons with respect to some thing. The Restatement Second of Property. but that reality is based primarily upon meaning. property. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. Finally.” If we look at Blackstone. property law. along these lines. or tangible or intangible personal property. Now. but perhaps mistakenly seen in an avant garde sense. there is the Critical Thomist understanding of property of ala critical stage theory.” In this sense. I a rather different sense. and reflection and judgment. If one considers the three metaphysical categories of being. Although it is difficult to put colloquially then. that we have get some clarity about what we mean by “property. Blackstone took an avaricious view of property. tangible or intangible. one can see that property can be 115 . A Critical Thomist would say that property is real. is the basis for all rights. Although it may seem a bit different from the Restatement approach. the notion of property grounded in metaphysics as such. how could this be when Karl Marx was thoughful enough to let us know about dialectical materialism and what philosopher John Kavanaugh describes as the “commodity form. that is. “property” hardly exists at all.” Well. form. regardless of whether it is real estate.
or simply represent contractul interests. The concept of substance. one assumes. seisin. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. involved the transfer of a clod of earth with straw embedded in it taken from the land of the vassal into the hand of the liege lord and then placed into the hand of the vassal. where does this put us in terms of our first issue involving property as the 116 . tend to see and experience it in terms of a “being” mode. if not insoluable question of whether a mere contract. amount to property. there is property which is property in form only. seemingly bordering on the occult. of course. or even money. in favor of spiritual development. Being philosophers and psychologists tend to discount the acquisition of material wealth.seen in at least these three different ways. as such. Idealists. typically seen as real estate. dated in the first instance from the time of Anaximander in ancient Greece. as represented by the clod of earth represented the substance of the property. Perhaps this is why one gets the sense that real estate developers and real estate attorneys are grounded in the substance of real property in a way that others are not. If one were to think of property in terms of the metaphysical concept of being. The law professor encounters the difficult. In medeival law in England. Here property is hardly distinguishable from that of a mere formal contractual right. One might speculate that this relationship to the substance of the earth in a metaphysical sense is one of the reasons why persons in religious life are required to take poverty or simplicity vows. one suspects. as such. Finally. I suspect that it would be confined to personal property. This ceremony. Well. it they approve of property at all. Metaphysically.
perhaps can be leased for a limited period in a human way for purposes of appropriate employment. we can mortgage our souls. As one comes into possession of personal or real property in a legal or customary way. but we can never really sell them. one starts with one’s possessory interest in oneself. My position is that each of us. God. that is Divine Reason. there is criminal law which is an extension of tort law. which. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 . or the Dao. which. or the law of the Logos. for money. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. On this line of thought. So. One can certainly never be enslaved. and the Good as a Critical Thomist Ideal. has a possessory interest in our own bodies. requires that the harm inflicted must be responded to by the state with punishment equal to that original harm.foundation for law in general. or perhaps with a little luck. once again. or in a more sophisticated economy.” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction. one understands that the possessory interest that one has in one’s body can be extended to a possessory or even fee simple interest in property beyond one’s body. or the law of the Angels. the law of the gods. the Truly Worthwhile. or the cosmos. or the Dao have in terms of our personhood are governed by Divine Law. utilizing primarily the principle of proportionality. holds title to our bodies. that is. Last but not least there is Constitutional Law. such a homesteading in the old west in America. The rights that God. in relation to one’s rights under a contract. Finally. under natural law. or the cosmos. but to the Common Good. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature. and in this sense we are responsible not only to ourselves.
In all this we cannot forget of course Locke’s distinction between Liberty and mere license. and compassion.by reciprocal obligations necessary for the proper functioning of the body politic. in my judgment it is better to see property as the foundation for all our rights. as well as those found in the Declaration of Independence. at least in the abstract. applying equitable rules. but also for the protection of our individual rights flowing from our possessory rights in our personhood. even if only taken into account equitably in concrete circumstances. one has the responsibility. context. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. Freedom of Contract. going beyond Locke. including but not limited to Freedom of Religion. 118 . Germain put it some time ago. So. and of course. it is apparent that law at every level from the Constitution on down. Rather than abolishing property interests as some marxists seem to wish to do. Liberty and the pursuit of Happiness. While a fuller discussion of this must be saved for a later Chapter. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. Freedom of Association. to contribute to the Common Good in the equitable requirement of serving those in need. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. must be applied in the context of equitable rules which favor relationship. involving Life.
but then I found the concept in Aristotle.CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play. in order to rescue the child. Equity would allow you to make an Equitable Exception from the general rule of no tresspassing.” I used to. So. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need. that you could not go onto another person’s property for any reason. for example. if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard. while technically as a matter of law you might be prohibited from going onto that person’s property to rescue the child. “A Man for All Seasons. 119 .
or. unfortunately. Now. and poor living conditions at home. problems would result. however. The “needs” thing tends to be a one way street.” I can imagine my mom. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. one might suspect that 120 . and so the German socialists. that once one take the Ethical Matrix into account. of course.Now.” not even thinking about ability. in essence is based upon arational (not irrational) intuition.” which at least for awhile seems to have existed in the early church. Law being based upon proportional reasoning. is that the politburo and the commissars tend to think that they are the one’s with all of the needs. from my point of view. societies are always faced with the problem of either favoring law over equity. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More. of course.” Here the equitable slogan must have been “to each according to his need. even for luxury goods. while equity. In Communist societies I think that at least ideally. at least the ability to work ordinary jobs for low pay. from each according to his ability. in this case the child rescuer. So. Obviously if the Christian community runs out of rich recruits. But even in More’s case. did the right thing from and equitable point of view. one might argue that people could rather arbitrarily create equitable exceptions all over the place. then. placing Equity above law. It is my position. equity over law. Equity is placed above law. while the proloteriat are the one’s with all the abilitities. poor working conditions. stated the ideal “To each according to his need. Christian “communism. cited by Marx. The problem. basically saying this. since the whole thing is sort of a pyramid scheme. basically abrogating the Rule of Law. would not seem to work. in reading human history. required everyone to give everything away and give the money to the “poor” or the “community. at home. or any mom.
” That is. usually for the “little guy” or the “old lady. as is pointed out in one of my land use planning cases that I use in class. then the former can be equitably estopped from changing his or her original position. “temper and mitigate the rigor of the law. or.the reason for his (More’s) execution by King Henry VIII was that the law courts. which is I think essentially the solution that our country (the United States) has come up with is that law and equity must be seen and utilized in a dialectical relationship. “Equity has its law. The most significant equitable rule is “equitable estoppel.” The problem is. and law has its Equity.” So lets talk about some of those that are already out there and then talk about some that are being used but probably not talked about. This is the Aristotelian approach. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge. It is simply assumed that anyone who is down on his or her luck and in financial extremis is either a deadbeat or a scumbag. Now the solution I have come up with. as well as the King himself felt threatened not only by Thomas More’s popularity. So in our country. that after awhile the law types get very pissed off even at this. Who you are is what you own. the Second Coming. but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia. as Christopher St. Equity only intervenes in the extraordinary case. They don’t want equity at all. in the United States we have a fair number of Equitable Maxims or Rules which help to. Germain puts it. and seem unable to distinguish the criminal playing field from the civil playing field.” If one takes a position and another relies on that position. reasonably. to one’s detriment. In eastern terms. The other obvious option is to favor law over equity. This doctrine is similar to “promisory 121 . however. the Law must be a Dao of law and equity.
is a fairly simple one. again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches. stating that there is no adequate remedy at law because at law no joinder on causes of action is possible. that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. of course.” which sits wholly apart from the Common Pleas or State District Court. there is a completely different court. one can be barred from asserting them. equity favors the little guy. Under the doctrine of laches. If one “sits on one’s rights” too long then one can be deemed to have waived them. The solution. although perhaps not often stated equitable rule. however. is that all other things being equal. Now.estoppel” which means that if one makes a promise (which presumably is otherwise unenforceable at law) and the other person reasonably relies upon that promise to his or her detriment. at least on the east coast of the United States. This is sometimes true of other equitable remedies as well. one of the problems with pleading a case partly in equity and partly at law is that often. and before that an 122 . With respect to some equitable remedies. similar to a statute of limitations. then the original promise can be enforced with or without consideration. find them no longer enforceable. This is an American thing. often denominated the “Chancery Court. such as court ordered injunctive relief. and then. Waiver and laches are also important equitable rules. the equity lawyer need only plead the case in equity. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. Another well know. even more interestingly. plead all of one’s legal causes of action at law in equity. or. After seeing this situation. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity.
where Sir Robin of Locksley. the tale of Robin Hood is told. and orphans. The Crusades were a “just war” to prevent the persecution by Moslems of Christian religious pilgrims to the Holy Land in violation of previous custom. widows. Equity seeks to find exceptions to otherwise ridiculous rules de jure. or at least ridiculous rules de facto in the particular context. and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. presumably at the Battle of Runnymeade in 1215. is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. and typically are. rational and autonomous 123 . Equity favors the little guy. where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause.English thing. Then the Good Guy lawyer represents the small rancher in court and gets the mortgage set aside as unconscionable and reforms the mortgage so that it is fair. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. At the same time. In America you get it from the Old Westerns. returning from the Crusades. or lack of bargaining power. and all of England suffering under unjust taxes levied by the Evil King John. Robin forms his band of yoemen in Sherwood Forest who rob from the rich and give to the poor who have been ripped off by unjust high taxes. In England of course. lack of knowledge. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. So. Equity finds certain contracts unconscionable if a part to the contract in whole or in part meets the factor test of lack of sophistication. this is what Equity is like.
in many instances the common sense household rules that our parents applied to us when we were kids. what do we make of this? My gloss. but. the Roman Armies. and as a legal 124 . obviously enough. with law and equity at the same level. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire. and. CHAPTER XIV THOU SHALT NOT MURDER In the Bible. also. including Catholic Christians.actors in the marketplace. were killing others. surpisingly enough. after the time of Emperor Constantine. we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples. Later.” Yet. So. whether one studies it as literature or as Divinely Inspired. as an amatuer scripture scholar. of course killing many in the opposing armies. When we see Equity and law this way. we see the value of the structure which law provides. we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. the flexibility and compassion that equity provides. Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. One of those commandments is commonly interpreted as “Thou shalt not kill.
we live in a world where we as human beings are required to kill to survive. we are programmed to live.ethicist. As stated before in the Chapter on Property. It is easy to see that if one cannot kill in self defense. we eat grain that has been harvested before the field has gone fallow. which includes the injunction not to commit murder requires that we not commit murder in order to survive. and then applying the Ethical Matrix to every situation and rule concretely and abstractly. let alone achieve material or any other type of success. this gives us property law. ends up being de fact satanic.” Now. and our minds were somehow subject to psychic invasion. Even beyond this. What is Divine Law. we can see that the natural law prohibition against murder is of course a basis for asserting that each of us has a 125 . tort law. but to succeed. is that what is really meant in the Commandment is “Thou shalt not commit murder.” The other interpretation. Besides. again? Divine Law is simply starting with the natural law prohibition against murder. By reason of natural law we have a survival instinct. we eat meat from animals. perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence. not unlike Enlightened rational self interest. contract law. criminal law. then the next step is that one cannot defend oneself or one’s family physically at all. does this mean that anything goes? No it doesn’t. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. We are not only to live. utilizing Rational Self Interest. Depressive suicidal impulses are considered signs of illness physical or mental. “Thou shalt not kill. if we were in a science fiction world. that is. in my view. For better or worse. we “kill” all the time. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. Dovetailing on that earlier discussion. Divine Law. and finally Constitutional Law.
One hears the rumors and reads the novels about satanic cults. As a last aside on this topic. even to the point of not only being vegetarians. One suspects that the healthy natural law instict for survival is subverted into the horrid satanic pratices of ritual sacrificial human murder and the ingestion of human blood and flesh.” 126 . “Turning the Other Cheek. totally in favor of nonviolence.” “Don’t Tread on Me. “Give me Liberty or Give Me Death. Non-violence is satanic. has no right of self defence. respectively. and together. but to the point of seemingly not eating at all. If we are to have a just society we cannot teach our children non-violence.” means only that it is best to avoid a stupid or idiotic fight if we can. Non-violence implies that each of us.correllative possessory interest in our own bodies. but to fight to the death for our right of self defence if we cannot. which of course we do both under natural law and Divine Law. with the members on the surface often seeming to be very religious.
instead it was Fraternity and Sorority city. We went to Nebraska football games. 127 . Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). Sandy’s on Friday afternoon was a Greek hangout on football weekends. No. I went to class. they did not serve Gyros. Chrisman and John Vitek and I would always go. in season. making sure that we hit Sandy’s Bar on Friday afternoon’s. but only drunk by the glass. studied.CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. worked out at the East Campus Gym a few times a week with my cohort in crime.
Now. 128 . if you were not Greek you did not frequent Sandy’s on football Fridays. a lot of whom I think were Vietnam War Vets.We sort of thought we were BMOC. (This is of course the opposite situation relative to the Zoo Bar. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively. Dead on Arrival. We knew this whole method. who complained that the faculty was too liberal. So. It was fun. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). I guess that would make it about 5 and one half pitchers apiece. We knew we were getting a top of the line." "You are a model aren’t you?" And so it went. a lot of us I think first generation lawyers in our families. First of all. Anyway.O. we didn’t really mean it. we would get a little drunk. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. Chrisman and I had this routine we used in trying to pick up sorority chicks. although we might bitch. first rate legal education. maybe it just might work. together. that is. if you were Greek and you went to the Zoo Bar. but I think that there is a connection there. Phi Delta Phi members. for example.A.ploy was doomed to failure. but we did it anyway because it was fun. The Lock Blade crowd at The Zoo Bar. Believe me. moan. second. "My God. big men on campus. we were successful law students. didn’t I see your picture in Vogue last week on the Newsstands?" "Are you sure it wasn’t you?" "Come on it must of been. Believe me. and complain about things a bit. you were D. at Sandy’s on football Friday afternoons. what does all of this have to do with legal academia? Well. and hope beyond hope. clearly did like to see Greeks at the Bar). (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. I might say something like. we were happy to be in law school. you might say nothing.
So. so. Now. don’t like to rush to judgment. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican.. especially used in a real world context such as law." Now. We like to let things percolate for a while. were simply "reified concepts" which were illegitimate because they were "abstract. contract. and concepts. Critical Thomists. and do you know what I found out? 129 .. this situation flabbergasted me.. a moderate to conservative Republican. I slammed out a few articles making this point. "Trash and Bash. are very real. Jurisprudence being of course that discipline within law which involves Legal Wisdom. mostly through reading the legal scholarship of outside law professors at other law schools." and not "concrete. So I filed this conversation away in my long term memory. then on the tenure track at Widener in Harrisburg. meaning is real.Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. Over and over again I read articles which said the concepts such as liberty. was that critical legal studies was the jurisprudence that was in fashion. what I discovered after awhile at Widener. I could simply have brushed this off as ideology. love. tort. For a Critical Thomist. like myself. Now. since Bob was. I taught jurisprudence several times and still try to integrate jurisprudence into my other courses as suggested by the American Bar Association’s McCrate Report. first a visitor at Marquette. and I suspect still is." were the watchwords of critical legal studies. being a liberal or moderate democratic. as a Critical Thomist. Well things percolated until I got into Legal Academia. words." and therefore not "real. getting tenure in 1994. I mean really real.. Not rabid of course. justice.
what you find underneath all of this. anything can mean anything. then why bother? I mean really why bother? Why not blow your brains out? . Because. This is called deconstruction. . extreme relativists..B. as such. in 2003. Or.A. and if they did.Well. which usually is not stated. Anyway. why not just walk down to your local political commisar and join the communist party. first of all extreme relativism is an incoherent jurisprudential and philosophical position to take. Why would this be. I think. Finally. in my view this makes critical legal studies. Dead on Arrival.. in 1996 I put out an article in the Capital Law Review where I explored the concept of reification. For them. is that all of these people are. If anything can mean anything. what I call. I developed a refutation of the concept of reification in a one line proof. The K.. one simply starts playing around with language to show that concepts are circular or indeterminate.B. and basically found reification to be an inadequate concept.O. D. but lets save that one for later. The political problem with extreme relativism is that it is nihilistic. Now. the K. nothing. its academia in general.B.. really didn’t go down. What is the problem with this? Well.G. But even if that is true. No one would respond.G. and I suppose that will be ignored too. don’t you think. even better. What is post-modernism? Well. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid. really."). I suppose you could even use Wittgenstein on a good day. And it is not just legal academia.. Now. don’t they have the names and information 130 . (As I recall. no one seems to care. I got ignored.. they just left town. and maybe moonlight a little bit for the K. now. people usually cite Derrida for authority. that critical legal studies has now shifted ground and has moved to post-modernism. which still maybe hanging on even though the cold war is supposedly over.G.. Finally. in Moscow and all its files probably ended up in North Korea or Communist China.
in point of fact. which has always been considered to be a liberal position. everything is seen as just being ideologically subjective and a "bad trip. Now. in the local newspaper who was a big shot in the American Nazi party. we look for it elsewhere. we ground our position epistemologically and metaphysically on the right. really. What is left. if you’re a po mo (post-modern) and you don’t like the communist deal. you might say this sounds ridiculous. 131 . There are no totalitarian political parties in the United States. and if anyone does show up. we all have a drive for meaning and meaningfulness. the American Nazi party existed. In fact there were always stories about a guy in Lincoln. and instead use research assistants. other than totalitarian political parties. no one takes attendance. This is Critical Thomism. before I finish this essay up. Now. I not so sure. just looking at things from a jurisprudential point of view. This is because you can base liberal principles and values in classical metaphysics and philosophy.for all the agents in place and sleeper agents in American? Just a thought). Although we support all sorts of programs to help the disadvantaged. Nebraska. Last time I heard." For the intellectual elite in American Law Schools. then why not find your local gaultlieter and see if the Nazi’s are interested. Liberalism on the right believes in truth. as Bernard Lonergan puts it. A lot of liberals from the 1960's started out as liberals on the right. liberalism is false consciousness. they packed in a long time ago. let me digress a minute to discuss extreme relativism. Well. especially when your law professors don’t even bother showing up for class. They showed the literature and everything. Well. Listen. if we can’t get it through liberalism and the rule of law. Liberalism was on the right and in the right.
then. I suppose is why so many Nazi’s hate Liberals on the Right. Extreme relativism. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent.I say that a Good Liberal is on the Right and in the Right. not one that is nihilistic. what is the solution to this situation. ironically enough is further to the right than Adolph Hitlter. embrace Critical Thomism. that is Hardliners or Stalinists hate Liberals on the Right as well. liberalism moved to the left. The Americans. moderate idealism. and equitable compassion for others. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well." Now. This is a commonly known proof: "If everything is relative. Somehow. during the 1960'. won world war two and the cold war was that we were Liberals on the Right who were further to the Right than either the Nazi or the Communist parties. and Legal Academia in particular." This is an philosophically existential refutation. and therefore meaningless and invalid. We knew we were in the right in fighting Hitler. It is based on relativism which always ends up being extreme relativism. Such a Good Liberal. I suppose that Communists on the Right. The Nazi’s were wrong because they were denying persons their individual right. "everything is relative. Once you’ve done that you are still free to deconstruct languge. . then of course the statement that everything is relative is relative. As a Lonerganian might put it. Anyway liberalism on the left doesn’t work. the statement contradicts performance. and moderate realism. A Good Liberal is one who believes in moderate relativism. which. being. but in a constructive way. I suggest that Academia in General. on the right and in the right. 132 . Even more. So. Maybe this happened somehow after Jack Kennedy was shot. The reason that we.
or at least we pretend to. "The hell with the 133 ." But. lawyers and judges do. what about Facts? Do Facts Rule? Jerome Frank thought so. "Courts on Trial.CHAPTER XVII LAW AND OBJECTIVE FACTS Facts. A lot of trial lawyers think so to. a 1930's legal realist. what is that? How can Law Rule? What about people. What are they? Who cares? Well. not the Law. and in his book."107 Frank. Lawyers are supposed to uphold the "Rule of Law. maybe jurors. Any trial lawyer worth his salt will simply say. argued that Facts are what control the outcome of cases.
Critical Thomism. argues that we in fact know reality through three interrellated cognitive operations: 1. But some of us wonder that even if we can imagine that The Law is objective in some sense. how about The Facts.. working off the philosophy of Bernard Lonergan.Law. 20th Century Fox. He passed up a settlement offer. and he won. perhaps unethically. "The Verdict" 1982. just get me in front of the jury and I’ll win my case. in order to try the case to the jury.. Frank Galvin did win in "The Verdict. approximately half. 134 . "Courts on Trial (1949)." and a lot of lawyers do to. experience > where one intends sense impressions 2. that was attorney Frank Galvin’s salvation. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. Well."108 with Paul Newman." In "The Verdict. one suspects.
110 which act as "forestructures of knowing.3. Fejfar. even myths." 27 Boston College L. Philosopher Hans Georg Gadamer calls this creative participation in structuring thought and experience the hermeneutic process by which we generate meaning structures or what I call relational meaning streams. but in some sense participatively create what is going on through the use of meaning structures. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. "Truth and Method" 239 (1975). Hans Georg Gadamer. Piaget of course confirms this for us when he points out that level two is essentially the magic stage of development while level three puts us firmly in concrete 109 See generally."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two. For a discussion of "relational meaning streams.109 What this means is that on Level One.’" 25 Capital Univ. See generally." see Anthony J. Rev. we simply experience a blurr of data. 579 (1996). On Level Two." The Buddists call this illusion. we organize sense impressions through the use of symbols and ideas. This is the level of "Reacality. Anthony J. It is on this level that we not only understand what is going on. 110 111 135 . Rev. "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. L. the level of sense impressions. Fejfar. judgment/reflection > where one intends the real or reality. 681 (1986). setting the stage for "Reality" at Level Three.
"112 Now. possibly even fascist. where does the Critical Thomist schema fit in? 112 See generally. positive in some sense and negative in others.operations and Kohlberg’s "conventional morality. "Conscience and Self Transcendence (1973). this is all very nice. but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic. 136 . But given this. Walter Conn. I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag.
I would argue that some people at Level Three learn to make inductive intuitive judgments of fact which in some sense integrates and involves a gestalt of both sense experience at Level One and analytic understanding and hermeneutic "structures of knowing" at Level Two. Now how can this happen? Quantum Physics suggests very strongly the not only the possiblity but the actuality of non-local probalistic communication- at- a- distance.113 Thus one’s intuitive judgment or reflection upon a "rock," for example, includes one’s current sense impressions of the "rock," if any, one’s past and current understanding of "rockness," and rock relatedness, any "forestructures of knowing" which involve the foregoing, and finally, a non-local-at-a-distance intuitive judgment of the situation producing a probabalistic intuitive judgment-gestalt of the "fact" of the situation. Additionally, there is the sense that some of us have a deeper sense of "rockness" than others. How could this be? Perhaps we are accessing at an unconscious or preconsious level "Parallel Quantum Universes" which are probabalistically similar to ours but not exactly the same.114 Perhaps this gives us a certain intuitive wisdom as to the "rock" that another might not have.
See, Nick Herbert, "Quantum Reality" (1985) and Nick Herbert, "Faster than Light, Superluminal Loopholes in Physics (1989) (discussing Bell’s Theorem).
For a discussion of "Parallel Quantum Universes," see Quantum Physicist, Fred Alan Wolfe, "Parallel Universes" (1990).
Now, let’s digress for a moment and think about lawyering and judging a bit. Perhaps the "wisemen" and "wisewomen" in the legal profession know a little more about the world, and a little more about facts, and a little more about "rocks," and a little more about the deep background necessary to understand a case or the law generally, because they have unconscious or preconsious "Quantum Mental Access" in their minds?115 Now at this point a skeptic might object, well even if this is true, it is not as if what you are getting is in any sense "objective;" who is to say that "Quantum Mental Access" to parallel universes would give us a better understanding of what is "really" going on than anything else? Here Lonergan would, I think respond that because we intend "Being" as an "Unrestricted Act of Understanding"116 with our cognitive intentionality, given a broader Quantum Mental Access
How do we get this Quantum Mental Access, or intuition. Francis Vaughan argues
that such intuition is best accessed through meditation. See, Francis Vaughan, "Awakening Intuition" (1979). The author has found that the best method of "meditation" for him, is "relaxation meditation." See generally, Herbert Benson, M.D., "The Relaxation Response" (2000).
Bernard Lonergan, "Insight" 350-351 (1956).
and Understanding of Reality, we would in fact know more, and in fact, better. Just because facts involve values, as hermeneutics suggests, simply implies that we are able to find qualitatively "better" facts which are in some sense more "true" than we would otherwise. As Lonergan would put it, our "objectivity" is authentic subjectivity.117 Now, why would this be? Well, whether Being exists or not in some abstract sense, it is certainly true that for many of us, Being acts as a "deep structuring symbol" and as a "forestructure of knowing" such that Being is Real as a matter of Quantum Mental Meaning in the context of Quantum Indeterminacy regardless of any hypothetical situation, in the abstract, where our intentionality is not structured this way. As Werner Heisenberg, one of the early and leading Quantum Physicists has shown, one’s intentionality or meaning stance affects the "experiment" of
As Lonergan puts it, "[I]t is now apparent that in the world mediated by meaning and motivated by value, objectivity is simply the consequence of authentic subjectivity, of genuine attention [at Level One], genuine intelligence [at Level Two], genuine reasonableness [at Level Three], and genuine responsibility [at Level Three]." Bernard Lonergan, "Method in Theology" 265 (1971).
at 348. My response to Penrose is simply to say that there is no reason why there cannot be a dialectical interactive relationship between conventional newtonian neural activities. Perhaps our logic is not sophisticated enough to accommodate such a possibility. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. Nick Herbert.one’s life at least epistemologically if not metaphysically. then. is that when we combine the foregoing. at least as to Quantum Events." Id. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. This however is impossible. at 17. Heisenberg states. at 349. Thus. Now. the interesting point to be made. Now. with the result of Bell’s Interconnectedness Theorem. at sublight speeds. Penrose points out. Similarly.118 In other words. Thus. there is plenty of room for Quantum Mental Communication at a distance. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy." Id.9999%. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically." Id. and quantum activities on the other hand. "The hope that new experiments will lead us back to objective events in time and space is about as well founded as discovering the end of the world in the unexplored regions of the Antarctic. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment. Questioning this possibility. at 31). probabilistically. however. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. (Even in a "gross" Newtonian physical world. any purported newtonian "objectivity" is chimerical. "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action. Moreover. it is possible that "quantum effects" trigger much larger neural activities within the brain. Id. it is impossible to produce perfectly replicable scientific 140 . on the one hand. what does the foregoing mean for us regarding the empirical literature involving cognitional activity? Quantum Neurophysiologist Roger Penrose notes that the conventional explanation of thought is that it takes place on the electro-chemical-neuron level utilizing newtownian processes." Id. "Quantum Reality" (1985) (quoting Heisenberg: "Some physicists would prefer to come back to the idea of an objective real world whose smallest parts exist objectively in the same sense as stones or trees exist independently of whether we observe them. then the model we create would more accurately reflect the rather obvious fact that we live in a probabalistic universe with a maximum probability of approximately 99. when one lives the 118 See generally. Id.
and the right hemisphere toward "quantum interaction" associated with intuition. in an earlier article. the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning.critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy. "The Prophetic Imagination" (1978). We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). results. one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. Let the Dreamers Wake the Nation. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. Finally. 119 See. perhaps in ordinary right handed persons. Thus in this vein. Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. Thus scripture scholar Walter Brueggeman argues very forceful for the existence of "alternative prophetic consciousness" and "alternative prophetic reality"119 which interface with but reject static fascist consciousness. Walter Brueggemann. 141 .
" 76 Marquette L."120 Now the skeptic might argue of course that such "alternative reality" or "alternative 120 Thomas L. "Wake the Nation: Law Student Insights into the New Jerusalem." on Working Girl Soundtrack (Arista Records 1989). "Let the River Run. Fejfar. Shaffer and Anthony J. 142 .Come the New Jerusalem. Rev. 767 (1993) (Quote in text adapted from Carly Simon.
however. the definition that I use. First of all Quantum Physics. "Entities are not to be multiplied without need. 143 . and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid." (Quoted in Roland Omnes. in the text is more adequate and relevant. the foregoing means. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results. it is my position that Ockham’s Razor itself is flawed and invalid." In practical application and ordinary interpretation. "Quantum Philosophy" 19 (1999)). above. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate. however.consciousness" is ruled out of sensible discussion because Ockham’s Razor specifically excludes the discussion of extraneous metaphysical assumptions in rationally discussing an issue or problem. is not metaphysics at all. My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. arguably. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. Literally. Additionally. any more than newtonian physics or einsteinian physics.121 There are of course two responses to this.
it is apparent that Ockham’s Razor itself is an unnecessary extraneous Metaphysical assumption and as such is excluded by the operation of Ockham’s Razor itself. Once step 2 is taken. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself. scientific. Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid.Refutation of Ockham’s Razor 1. upon reflection. 144 . or otherwise. provides in essence that in considering any problem. legal. 2. Ockham’s Razor which was created by William of Ockham. the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. 3. Thus Metaphysics is excluded by the operation of Ockham’s Razor in relation to scientific or legal problems on the basis that and Metaphysics is unnecessary extraneous assumptions.
In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor.4. We must now proceed to solving the problem 4+X=7. as such. H. Mathematical Illustration. Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. D. I.4 X=3 G. one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X . In fact. Since the foregoing problem was solved without the use of Ockham’s Razor. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor. It is argued that a concept that cannot allow for its own existence is invalid. However. E.4 = 7. F. Let us consider the mathematical problem: 4 + X = 7.4 X = 7. 145 . B. C. Thus Ockham’s Razor is rendered self contradictory and invalid. then by the operation of Ockham’s Razor. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. Ockham’s Razor as a starting assumption must be excluded. J. prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. A. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted.
our highly probable judgments of fact simply "kick over." A la Lonergan." are now once again relevant to scientific as well as jurisprudential inquiry. but no hatrack to hang it on. ethical. as a Quantum matter we shift ever so slightly out of the "real world" of real probability at Level Three into the Quantum world of "virtual reality. especially since Quantum Indeterminacy seems to leave us our hat." at Level Four which is constructed through "virtually unconditioned judgments of 146 .5. in a world of Heisenberg’s indeterminacy. It is argued that the proof/approach used in 4. it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts. Now. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak. Now as Bernard Lonergan points out. Additionally. Put another way.A. The best we get in the real world at Level Three is something like 99. scientific. it is argued that scientific materialism (including marxism) and capitalist materialism are D. cosmological.. This of course is not true." Finally. after the fact. or otherwise. perhaps the materialist is aghast at this point. Now. into "virtually unconditioned judgments of fact. our authentic subjectivity will produce our "objectivity. that is Dead on Arrival. Because this is true." In other words. legal. above." psychologically. we might say. if we intend "objectivity" then in some fashion we get "objectivity. While "objectivity" may not be possible as an abstract metaphysical possiblity. given that Ockham’s Razor is invalid.9999% real probability in the real world.O. it is certainly true that Metaphysical concepts such as "Being. Ockham’s Razor is proved as being invalid in every case universally. can be used as the first step in the resolution of any problem.
arguing our cases.” 122 C. Finally. Facts do exist. back to lawyering again. "How to Know God" (2001) (discussing virtual reality). We need not be fact skeptics at all. as an enticement for the reader to keep reading. and in making our decisions. therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid. Deepak Choprah.f."122 So in the end perhaps Piaget and Kohlberg are right. is excluded by the operation of Ockham’s Razor. We use these facts in counseling our clients. And. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail. probabalistically at Level Three and objectively at Level 4. So. and. 147 . here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept.fact. for better or worse.. and. judicial or otherwise. we leave the conventional or reflectively probabalistic world of Level Three and shift up our consciousness to a world of "formal operations" and obtain virtually real objectivity at Level Four. as such.
law firm in Omaha. I remember when I practiced law at the Baird.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase. Nebraska. You had an opponent. just like before a big basketball game you were playing in highschool. “Well. doing primarily corporate-commercial litigation. and didn’t know what to say. the opposing lawyer. and you got a little sick to your stomach.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. and your gut tightened up. said. I was in Nam. when Bill Dittrick. You had to 148 . Now. the Nam guy was right in one sense and wrong in another. “We’re off to War. almost tearing up. Sure. the physical bullets weren’t flying in the courtroom. and the guy. but the whole thing was still a battle. Holm. the litigation partner I was working with and I would go off to trial.” Bill and I both sort of gulped. Bill would say as we were going out the door. after loading up our litigation briefcases. and believe me this isn’t war.
In fact. that is. What these type of commanders often fail to realize. The casualties are horrendous. I suppose this was like the trench warfare of World War I. is both the vulnerability and the opportunity of exploiting the flanks of your opposition. One could follow Rommel’s approach and file suit and immediately push the case as hard as you could to try to achieve an immediate victory by shock and breakthrough. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. I’ve read a lot about military history and military tactics and what I’ve discovered more than anything else is that the typical military commander. blitzkrieg. simply bulls his way forward with a frontal assault. if nothing else you did not want to lose. however. Flanks of course not refering to their posterior anatomies. Another method of litigation was the war of attrition. The war is waged back and forth between entrenched positions. and at the same time you had to care.tough. and in the end nobody really gets what they wanted in the first place. however. Even in the commercial cases you cared. they might not even remember what they wanted in the first place. seemingly forever. the typical litigation partner. Losing was for losers. There was another sense that litigation was like war. but rather to the ends of their front lines where their primary forces are deployed. As I mentioned above. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank . that is in the sense that litigation in many ways parallels war. and involves military tactics.
ours is but to do 150 . and to have the troopers and non-commissioned officers to take the initiative. then it is possible to engage the flanks and at least stalemate the defensive attack. even if they are outnumbered. and then move forward with the flanks. Once “high command” has decided on a strategy. if they don’t have the ability to change orders and adapt in the middle of the fight. “Ours is not to question why. As the poem goes. I would go so far to say that an order to do so is an illegal order. not unlike the Charge of the Light Brigade. However. from an offensive point of view. they want it carried out. our flanks can turn to the center. and then attack the enemy’s line in a way the enemy cannot combat. Now. regardless of the outcome. If there is more than one line. Now. then the defenders will almost certainly win. We have a ten to one advantage over the end of the enemy’s line on each flak. there are of course response moves in such a situation. if the enemy trained to think multilaterally. notice that if the Enemy’s line moves forward and engages our front line. we can shift our left and right flank defensively so that when the enemy’s line passes by. but they rarely work.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now. engage the enemy in the middle. it is pure idiocy to attack straight at an entrenched position. those ranks of troops are exposed as well. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. Just like the game of Chess.
It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania. cutting off supplies. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. he could have seen that the Union lines did not extend beyond Little Roundtop. before we get to the law application. if you have seen the movie “The Thin Red Line. Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. and then some trees behind. Now. effectively ending the war. and.or die. and was stuck in Union territory. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times. the first thing to remember is the context. Now. and the road to Washington. Neither France nor Britain was entering the war on behalf of the Confederacy. Lee had to attack. outside of Harrisburg. for him. The battlefield itself is about three or four miles wide. That’s the background. and attacked the Union rear. Unfortunately. Similarly. Now. around Little Roundtop. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. Then there is a farm field about one mile in width.” Now. let’s consider the above in light of the Battle of Gettysburg. he didn’t get that far. the geographic situation at Gettysburg is that there is a high rolling ridge about 50 feet high with a down sloping inclide of about thirty degrees.” about the Marines in combat 151 . a small mountain on the Union Army’s right flank. even if Lee had sent a few scouts out. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. The Confederate Army was underprovisioned. as well as attacking the Union troops themselves.
broke. Now. and then the Japanese entrenched position on the hill. you must know the ground. In the case of litigation. a lawyer from civilian life before the war. or international. however. how does this apply to litigation. Always remember the philosopher Hume. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. The next thing to know. The company commander. at least to some degree. Well. with relatively few casualties. what this usually means is that you must know what courts are available to hear the case.in the Pacific Islands against the Japanese in World War II the commander wanted the company commander to make a frontal assault against an entrenched enemy position which had machine guns. What has happened in the past merely provides some basis for predicting the future. but it was hopeless. but sometimes it is. etc. The company commander had his men make a few attempts up the middle. Will it be necessary to associate with other lawfirms. Whether expert witnesses will not only be needed at trial. underprovisioned. first of all you need to know you situation. The company comander then exercised field discretion and had his men go around the right flank into the jungle. The commanding officer said no and threatened to relieve the company commander. must absolutely win the lawsuit for whatever reasons. nothing is locked in place. Whether discovery will be local. I your client. Whether the case might be removed to a different jurisdiction. national. Next. This is not always possible. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. but also needed to prepare the case. is your opponent. taking out an enemy encampment. Hume even went so far as to say that all we can really know in our ordinary world is 152 . your context.
That is.” “He who fights and runs away. at the same time. but. so instead we will go the opposite way. So.based upon inductive reasoning involving statistical probability. I figured that I would go to the right down to 40th street and we would get around them that way. never. and about 50 pounds heavier than my six foot four inch frame. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. because I could tell that he meant it. however. I was face to face with evil in a way that I never had been before. though. I was simply a guy who happened to be at the 153 . we ran right into the bully and his side kick and the fight ensued again. telling my buddies to get one of their parents so I could get out of the mess. so I asked the guy. no.” Suddenly. my two buddies and I hit the bike racks and got our bikes. I held my own again. “It will be over when I get you down on the ground and beat your head in. It was about a three mile bike ride home for me. Following the words of Rupert of Henzau from the “Prisoner of Zenda. underestimate your enemy. I got in a fight with a bully from another school. don’t necessarily conclude that your enemy is remarkably smarter than you are. down 48th street. never overestimate your enemy. The bully then hung out with a gang of about 20 other guys at the block at the end of the school yard waiting for me to come by. Somehow. I made this mistake in junior high one time. lives to fight another day. three inches taller. I held my own in the fight on the front porch of the school. “When is this going to stop?” thinking we might have an truce or something. So. I could see the gang at the end of the block. until a teacher came to break up the fight. The bully looked at me and said. Unfortunately. He was about three years older. I thought.” This is of course the doctrine of strategic retreat. they will know that we will take the 40th street way home.
wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. of course being careful not to violate the anti-contact rule. they will just gang up on you. don’t overestimate your enemy. my buddy’s mom drove up in the family station wagon. If you find yourself in a muliparty conflict. Yes. don’t think that evil doesn’t exist. the point is to not in the first instance attack the case head on. or even arrange for your enemies to attack each other. Although wisdom allows this strategy. Southeast. 154 . the point. Then. Third parties are of course fair game for interviewing but the opposing party is not. I got my bike loaded up and we were out of there. also. One last point. but let the see saw of war deplete the resources of each party so that none of them is a threat to you any more. yes get discovery started. Don’t let one become so dominant that you will lose in the end. Get a paralegal to check into available public records to the extent they would in any way be relevant. Get a trusted private investigator to check things out. She chewed the bully out verbally. but don’t push it right at first. but I guess. I’m not sure that conventional notions of morality do. don’t waste time attacking all of your enemies at once. So. Now. in terms of thinking about attacking the flanks in litigation. and I never saw either of these bullys again. file the complaint. Both at your client’s end of the street but at the other end as well. An eastern way of thinking about war and litigation is this. the next year my buddies and I were in highschool at Lincoln. allow. Instead. And. of course. or even game. except in some situations low level corporate employees.
so I am going to cut the apple in two and say that my goal. The first thing that I have learned is that mediation does not work without a judicial system to back it up. for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day. including but not limited to the judiciary. No. ala marx. and then all we have worked for up to that time will have been lost. should still involve the symbolic state. The judiciary taking the bench for at least a day.CHAPTER XIX MEDIATION Mediation has been very popular in the United States in recent years. I was a neighborhood dispute mediator for about two years myself. ala Critical Thomism. and all disputes will be solved through mediation. The idea that we will somehow be able to do 155 . and learned a lot. I hate to be pessistic. I know that some mediators think that someday the state will fall away. Things might even go great for 200.000 years on earth. etc. and then we suddenly get a lousy generation or two of authoritarian people. is that our goal for Utopia.
but also should refuse to help facilitate 156 . the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. is excessively utopian. I then do an overview. I then ask further questions factually to flesh out the situation and get a better handle on what was happening. stating that we will first have each of the parties get their stories out. of course. But. I think that it is perfectly appropriate for a mediator to refuse to facilitate an illegal agreement (maybe even legally required to avoid criminal liability). Then. and here. We then hone down the possible solutions to just one. as a Liberal on the Right. as a last comment. I see a strong role for mediation in our society and system of government. I am often to some degree directive in order to try to suggest what in my judgment is the best solution give the overall situation. for me. While there are several different styles.away with law or the state en toto. modes. and then call it a day. In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves. I think that mediation is a very positive thing. We pound out an agreement point by point. Mediation is. I find such “caucusing” to be counterproductive because in my mind any benefits gained are lost by reason of a felt sense of distrust this raises in the process by the party or parties not involved in the separate caucus. Nevertheless. ala Justice Brandeis. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. I ask each party what he or she would like to see happen or get out of the mediation. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem. memorialize it in writing. and that in most circumstances one get’s a very good result. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. the mode that I prefer and have used is that of facilitative mediation. or methods of mediation. So.
agreements which in the mediator’s mind are unconscionable. Most people. Equality is based upon the idea of proportionality. i. with John Rawl’s book. “A Theory of Justice.” For me. Interestingly. Instead. though. In Aristotle’s Ethics. It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea. perfect mathematical and geometric ratio. though. or maybe. Intellect. he insisted that the physical damage done by a freeman to a noble would amount to a greater legal harm and resultant recompense than a similar physical damage done by a noble to a freeman. if remarkably well read. Mind.e. While previously I have recognized the idea of the natural law hierarchy of Body.. or before that with Enlightenment Liberalism. it must be stated here that even if a 157 . Aristotle stopped short of proportionality as a basis for perfect equality. I think associate the idea with the civil rights movement in the 1960's. equality originates with Aristotle.
or religious. my position is that this can only be done on a limited basis with 158 . In a Right Liberal society the person who objectively is the most qualified for the job is the one who is supposed to get it. Nevertheless. racial. Here. however. Although in some sense trajic. The issue of past and present irrational discrimination also must be dealt with. If a street person is defamed by being wrongfully called a “scumbag.particular person. if one person is in a class which has been discriminated against. functioned primarily on the Body level in terms of cognition and consciousness. I seems absolutely clear to me that as between two equally qualified persons. himself. the Critical Thomist demands that such a person receive recompense for injury or harm done to him just as much as if that person were the President of the United States. society should affirmatively seek to place such individuals in jobs ahead of others. the person in the discriminated against class should get the job. it must also be stated that in terms of the quantification of actual damages it may be in fact that although two physical injuries to two different persons are identicle. The principle of equal opportunity requires that everyone be given a even chance at getting a job.” Equality also comes up in the employment area. ethnic. the principle is the same in the case of defamation. The argument is that because of past and present systematic discrimination against particular groups. say a concrete laborer. This is equality before the law. This is affirmative action. de facto. have been damaged greater. then. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment.” it may very well be that a jury would find that his damages would be substantially less than if a President of a University were called a “scumbag. one who has a greater educational background and greater skills might in fact.
then the solution is to stop discrimination in graduate education in the same proportional way. I want to make the following point. For example. Irish. racial Nazi purists. and they aren’t necessarily “white. The Japanese in WWII considered Americans in general to mongrels.” In fact. I am Czech. and before that undergraduate education. In the old Soviet Union. Anyway. with respect to anti-discrimination measures and affirmative action. In order to qualify one need only have parents of different ethicitity or race. and I suspect that there are a fair number of ethnically German. who would consider my ethnic/racial background to be unacceptable. I would simply say this. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. and before that highschool. Hitler made it very clear that all slavic peoples were considered to be subhuman. or a grandparent. Finally. 159 .respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. and for affirmative action. There are an awful lot of bigoted people who are interested in ethnic or racial purity. my point is this. White Russians discriminated against siberians and other ethnic groups. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards. The categories for discrimination have to expanded. I don’t really expect these kind of attitudes to go away in the near future. and German. or a greatgrandparent.
The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. as well as our world. linear. typically a few days later. and in particular. certainty. in point of fact. Critical Thomists. ask some more questions. the world is a bit fuzzy. as stated in a previous Chapter. For us. using litigator’s intuition and gut instinct one comes to a judgment or assessment. Critical Thomist Lawyers. Quantum Physics. provisionally. the “empirical” real rule from an inductive point of view 160 . of course. and even “Greater Reality as a Whole” are all probabalistic. and then we make a probablistic assessment of the situation. Heisenberg’s Indeterminacy Principle suggest that we. we ask the appropriate questions to try and get a handle on the facts.CHAPTER XXI STATISTICAL PROBABILITY Well. That is. what the law. and what should be done next. If we think of the ideal rule as a genuinely existing straight line. of what is going on. We do a little legal research. is. and more particularly. When a client walks into one of our offices. do aim for concepts or ideas or conclusions of exact.
I have just two points here to make. if the applicant had a great deal of work experience with summer jobs. ( R = Rule and x = 1 through approx. a classical rule deontologically and decuctively looks like this: -------------------------------. Now in all of this I am not saying that there may be underlying patterns of racial.. and graduate school grade point averages.. ethnic. what type of employment the applicants parent(s) have held... and. This could be seen through the classical equation: R = x + 0. at least over the medium to long range. and then. Communications. one is supposed to. Such variables typically might include: grade school. In any type of sociological study.only exists as a line of dashes. for example. and maybe even require them 161 . ethnicity. and ideally does take a statistical sample of the relevant data.. So... Ethics. interestingly enough mystery.. say for example regarding the objectivity or validity of a law bar exam. relative to race.. detective.. First of all. Now. high school. courses taken previously relating to: logic.. etc... accounting... and... perhaps. and espionage novels which involve complex social and political situations. using a regression analysis which excludes “aberrational data” one then comes up with conclusions.. one should make sure that other independent variables are properly accounted for.while an ontologically and inductively classical rule looks like this: . is that the probable solution is to improve opportunities for particular types of classes. but what I would like to suggest is that from a corrective point of view. undergraduate. religion.. I’m sure there are others. or religious discrimination coming from one source or another. it is important to include commonly understood analysis of independent variables in one’s study. English Literature. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. 10 ). economics. English Composition. Management.
or religious minorities in the legal profession generally. or more. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. opportunities for the development of leadership skills in the military. In my mind.for admission to law school. ethnic. intelligence work with the various military services or the Central Intelligence Agency or the National Security Agency. one must remember the difficulty in coming up with an acceptable standard deviation when one performs an regression analysis to exclude “aberrant data. or in my opinion. are using standard deviations of 10. This is real “political” science and it does not just involve social science research. Additionally. including but not limited to social science research. perhaps required. 162 . Remarkably. Computer programs which do no display the standard deviation. for various type of employment opportunities involving a national service corps. there should be opportunities. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent. with respect to empirical research. so I have heard. Clearly unscientific and totally political.” I have heard that some studies are now not even disclosing what standard deviation they are using. or legal academia in particular. some researchers. Racism or bigotory after the firm application of Liberal principles as stated above my very well turn out to be a secondary effect rather than a primary cause of under-representation of racial. or finally. Finally.
the “integrated” “centaur” level of consciousness seems to be about levels four or five. For Deepak Choprah. The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. For me it goes something like this: 163 .CHAPTER XXII REALITY LEVELS AND METAPHYSICS When one considers the variety of books that have been written about “levels of consciousness” or “levels of reality” one begins to suspect that there might be something to it. When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that. level five seems to be the creativity level. on the other hand. For me it all began with discussions of Piaget and Kohlberg and Glaser’s reality approach to education around the dinner table with my mom and dad who are and were educators. For Ken Wilber. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness.
As noted before. Being (Form of Form) Logos (Creative Reason) Substance (Formless Form) Reality Higher Actuality Virtual Reality Reality Consciousness Creative Actuality Formal Operations Reflective Reason Formal Actuality Reacal Consciousness Form (Empty Form) Actuality Substantial Form (Formed Formless Form) Accident Reacality/Materiality (Non-systematic statistical divergence from a classical/classically stated Norm. Whether the mind is in the brain. We don’t need Christian theologians to tells us about life after death or the immortality of the soul. 3. or the brain is in the mind. or Law. Perhaps some perform these operations laterally on one level. or both. Its not mysticism at all its simply a very good. 1. Why is this important? I suspect it is important because those of us who somehow have a 164 . Rule. 4. we can advert to Plato’s discussion thousands of years ago. there it is.Metaphysics 5. but complex way of thinking. but I do it vertically. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations. 2. So. gets to be irrelevant after awhile. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain.
lived experience of a higher reality. because women need to use stalls and cannot pony up to the urinal trough like men. assuming that women need not urinate or defacate any more often than men. What is “equality?” I mean. what does it really mean? When I think of equality. and emotions in His Mind forever. if only congnitively. that the line to the men’ restroom was comparatively short. But let’s go po-mo here for a second and deconstruct the concept of equality. Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. When I was teaching a visiting professor at Marquette Law School my wife Judi and I went to a few basketball games downtown in the sports center. I wonder quite frankly as to “equality” as to what? One might imagine the rather ridiculous example of restroom parity (although perhaps not so ridiculous). CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s. God holds all our memories. One suspects that their jurisprudence begins and ends with the concept of equality. Apparently. letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education. which I first saw at Nebraska football games growing up. feelings. thoughts. find that it is worth the effort to invest in the development of our minds and the minds of others. I noticed the perennial problem. while the line to the women’s restroom was remarkably long. one notes that given an equal amount of square footage for a restroom for both men and women. it takes a lot longer for a 165 .
should equality be based upon usage. where. should equality be based upon the amount of square footage floor space. and remarkably enough. etc. that equality is geared toward some standard. race. this does have economic. age. So. to a lot of men its not. is much different for men and women. Now the philosophical question involved is this. If we think of equality jurisprudentially. usually unstated assumption. of course. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. but to a lot of women its not. the 166 . The John Deere’s are green. natural law hierarchy. or. but that is not my point here. One might say that two tractors are equal in terms of horsepower. legal. Now.comparable number of women to “take care of business” than it does for an equal number of men. We could. alternatively. as I said before. More time creates a longer line. gender. this may seem a little silly. how about tractors. but they are unequal in terms of tire/wheel size. My point is that equality only means something in relation to something else or some other standard. and political consequences. Now. Let’s take a John Deere tractor versus a Massey Ferguson tractor. equality could in fact be related to social class. The men don’t like having their restrooms taken away in already existing buildings. The examples we could use are endless. But let’s think of it more philosophically. so to speak. usage per hour. In each case there is the implicit. that is. for example. at this point. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. wealth. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. have a long and interesting discussion of policy regarding restroom parity.
then. Now. This is tough for the “left liberal” who wants equality to be the ultimate value. if we could figure out which color. was the best color. at least not on its own. There is something there to chew on. green. We still get equality. Values have to be involved and ultimately values in some way have to involve an objective metaphysics otherwise they are themselves not objective or worthwhile. I’m basically a liberal on the right. Case Tractors Orange. food for thought. and ultimately nihilistic position to take. It just doesn’t work. but it is equality with some meat on the bones.Massey Ferguson’s Red. But. There is a little more to it. one is left with extreme relativism. but that it must be understood and used in the context of metaphysics. I could stop here and play it safe. 167 . Now. red. which. We might even start a protest movement trying to change the law so that we have color parity among tractors. natural law. as I’ve said before. My position is that equality is a good thing. Anyway. liberal’s on the right know that equality is not enough of a principle to accomplish much. or orange. as my dog Scruffy might say. as I have mentioned before is a logically inconsistent. but I won’t. and the Ethical Matrix that I have discussed previously. If equality is the ultimate value.
my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle. Here. really. “I think Critical Thomism is a bunch of hogwash. a philosophy. literally. the problem is that ‘critical thomism. “You know. “Hogwash.” I said. in its deepest sense. and that it is full of partially digested cattle food.’ how do you define it. is. I might respond by saying. I 168 . what is ‘hogwash?. “Well. and that it stinks.CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says. Critical Thomism.’” The next move.” the Critical Thomist of course feels compelled to respond in some way.’ just doesn’t line up with that definition.” Then you sit back and think of the next move. One might make the rather interesting move of asking one’s assailant to define his or her terms. hogwash. I don’t see how I can respond to your criticism without a little more in the way of definition. and as such. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible. I suppose. of course. So. is to shift the burden of proof to the complainant. that’s it. like bullshit.” Your assailant then looks at you quizzically and responds.
respond simply by saying.” “one would necessarily need to refer to one’s experience. or position as true based upon critical reflection or judgment.” or there is nothing like “levels of consciousness. and then assert some fact.” At this point the Critical Thomist need only quote my Boston College article for the proposition quoted therein that in order to refute “Critical Thomism. and in so doing. what say you?” Usually the response is that there “is nothing like judment. and. let alone ‘good judgment. “Well. that ‘judgment’ does not exist. law. elucidate one’s understanding.” 169 . the burden of disproving Critical Thomism is on you. thereby disprove any attack on the proposition that consciousness involves different levels or operations. rule.
if we take the three metaphysical principles of substance.” is that While John Locke mentions “substance” in passing. a real property or a real titled interest. being. or perhaps one’s home or one’s office building. one can play around with some interesting concepts and produce some positive results. one can analyze real property in those terms. Substance. that is. seen as “formless form. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. 170 .CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. the general idea of “substance.” the early Greek philosopher Anaximander is credited with first developing the concept.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence. one typically thinks of the ground that one is standing on. and form. One supposes that “substance” without being affected by one or more other metaphysical quiddities. For example. would be simply the Greek concept of Chaos. and the medeivals discussed a similar concept of “prima materia. one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land. From a metaphysical standpoint. however.123 123 So.
and thus can be distinguished from real property. usually one does not “get it” until one has practiced real estate law. In this sense it appears that a fixture must have 171 . attached to real property.” or the “quantum ocean. somehow. other than interacting with a new born infant.” A fixture is personal property which is annexed to real property. and in its pure form as material matter is simply the mud or dirt or rock of the earth. Transactions involving personal property typically involve the Uniform Commercial Code. as such. Water. or perhaps more traditionally put. personal property. Real property is formed in substance. someway. then. totally formless. because of its fluid nature. and which thus loses its character as “personal property. seems to be more in line with the metaphysical principle of being. is the legal category of “fixtures. It is my position that real property. or is a real estate agent or broker.” Personal property. is of course.” and becomes a fixture. While one might get a sense of this in one’s property class. As an intermediate category between real property and personal property. to the extent that it is more fluid. yet at the same time in its purest manifestation. has the valence of substance. participates in. typically by some form of physical attachment. and has the valence of substance. Being having the metaphysical definition of “form of form. more movable. on the other hand.”124 In fact mystics or quantum physicists often refer to the “ocean of being.it is a virtually unqualified kind of stuff which is primordially physical. Perhaps in no other way. Perhaps a cube or a blob of black licorice jello might provide us with a metaphor of what substance is like in its pure form. is identified with the metaphysical principle of being. or chaos. To be contrasted with real prperty. does one encounter the “real” of substance in this basic sort of way.
as such. 172 . it seems fairly clear that the sections of the home were personal property. using purely evolutionary terms. hookups installed in the lot itself. Let’s say I own a two acre lot in fee simple absolute. or at least the appearance of change. the sections were movable. I then have water. to denominate the metaphysical principle which underlies a fixture as that of substancia. form.v. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. or “being form. classical concepts such as essence. In an evolutionary universe. without losing one’s basic underpinnings in classical philosophy. As an interesting correllative to the foregoing discussion. or quiddities.” rather than remaining a fixture. and the home itself is bolted to the concrete block foundation. one can come up with a way of discussing the differences between two actualities. electrical.a metaphysical appellation which is a half way house between being and substance. However. taking into account some basic metaphysical principles relative to change. Substancia. and cable t. Now. let’s start with this hypothetical example. and substantial form. before the home was attached to the foundation on the lot. All the hookups are attached to the home. is the question of when a fixture becomes “real property. sewer. Although fairly large in size. The sectional home rests on a concrete block foundation. in three pieces. essences. and has more of a straightforward valence. essential form.” has more structure than substance. If the home is considered a 124 This is Plato’s definition. So. let’consider whether or not we have a fixture here. It seems appropriate then. I then have a “sectional home” moved onto the property with a crane. Now.
which in no way affects the substantial form of the object under inquiry.” which is not “really” or 173 . perhaps. or a rational/logical accident.fixture or even personal property. there is more than one way of thinking about this. and whether or not it is permanently attached to the foundation– if there is a foundation. a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. A good example of this. Imagine we start out with the fee simple two acre lot. let’s think about it this way. this would simply be a situation involving an “accident. If we choose at this point not to use terms involving statistical probability. prior to attachment. an interesting question is whether a fixture. if it is in place long enough. an arational. So. one could come up with a classical term such as “accretion” in the first instance. in my view. rather than four inches. would be mowing the grass on lot to a height of three inches every month. Presumably. exists as a substancia form (in substancia) or perhaps even in being form (in being). but this way is a good one. Blackacre exists in classical terms as real property in substantial form (in substance). although many grass stems would be affected. can be considered to be real property. that is. Then we have the sectional house. An accretion to a substantial form. it will probably be considered a mobile home. The sectional house. In classical terms. is simply the addition of an irrational. Blackacre.” or an “accidental change. Tyically courts look to whether the home has running gear attached to it. If we start out with the “sustantial form” of Blackare (as the ground) the question in classical terms is how a presumably “immutable” or “static” substantial form of Blackacre (as the ground) could change. and will have to be removed in accordance with local zoning regulations. Now. in my judgment. Now. part of the fee simple interest incorporated into the larger real property interest itself.
or. let us consider the substantial form of our two acre Blackacre lot.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. The trick to dealing with this situation is that just past the metaphysical concept of accretion. 174 . In classical terms of course.125 The accession represents an intermediary state between the real property state and the personal property state. Now. 125 In terms of statistical probability. how then does one move from on substantial form to another. only an accidental or non-substantial change to the real property. In other words. a fixture attached to the real property. one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. one has simply placed personal property “a la accident” on the real property. this is simply. If we add the accident or the accretion of the parts of the sectional house. in point of fact such a change seems impossible. suggesting in statistical terms. impossible. a statistically significant change has taken place. and as such. So. Such a “change” would seem impossible. because neither “substance” nor “form” are effected.“truly” a “change” at all. however. about a more permanent change? What if we wanted the sections of the house to become a fixture on Blackacre? In this instance the house becomes an accession to the real property. however. in point of fact real change or true change are both respectively. In classical terms. Once an accession has taken place. incorporated into Blackacre as an undivided whole of the real property itself. What. is that of “accession. the presence of a new “variable” which previously had not been accounted for. albiet not yet real property. of course. Either something is a particular substantial form or it is not. of course.
As Plato puts it. Blackacre with house exists in potency but not in act. Now. Once Blackare with house has “manifested” relative to us. At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. at what point could the accession “fixture” become part of the real property itself of Blackacre? Would this mean a second Blackacre now exists? Does this imply a real change? From a strictly classical point of view there is no change between Blackare wi house and Blackacre without house. When one has been schooled to think in terms of incremental evoltionary change and statistical probability. then Blackacre without house exists only in potency relative to us. In classical terms. creativity is always limited by form or some other metaphysical principle. at the time of houseless Blackacre. life is simply a process of “remembering” or “re-congnizing” what is alway already there. then I would argue that a fully manifested Blackacre with house is present (in act). If such factors are present. treatment of the house for tax purposes. nothing is really new. but in classical terms it is not. the foregoing seems absurd. well. Blackacre with house really exists in a parallel being universe someplace. as such? One supposes that the inquiry will involve a variety of factors such as intent. but when is it that the house becomes real property and part of Blackacre. etc.” It is not just a word game. They both exist as independent immutable substantial forms.Now. In the classical universe of being. permanence.. fine with the metaphysics. This is why to a classicist. it is literally true that “Blackare with house” has always existed in act in some place in being. 175 . not in act. although not one accessible to one having the perspective of “houseless Blackacre. Doubtless the old property hand will now ask.
.CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about. Some people with particular religious dispositions don’t like it because they. well. A lot of people think its passe or irrelevant.” rather than philosophy. mistakenly. metaphysics came sort of naturally. Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark. My freshman year in college. others simply associate it with the New Age and like it even less. After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents. think that it is “theology. I had a two semester. though. six hour course in 176 . however. For me. the evolution paridigm for reality seemed the best explanation. where the fossils where hundreds of thousands of years old. sort of.
particularly my highschool physics class. top down. enough. as such. I guess what I’m getting at is this. had seen the world and reality in inductive. and which saw the world. or the Holy Spirit as an immanent theological principle was involved. I really didn’t reconcile the two paradigms until I took a course in Bernard Lonergan’s critical realism and delved into my own scholarly jurisprudential research and writing. And. 177 The evolutionary idea put forth by Carl . one notes that in Genesis itelself. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. no one even seemed to care about reconciling this situation. Aristotle. was that it seemed to see reality in static terms.” Ironically. but at some point a part of my mind got the neo-thomist metaphysics paradigm. The metaphysics courses my freshman year were tougher than hell. Renard’s book was a type of Neo-Thomism which cited to Plato. and Aquinas. and reality in general in deductive. So. cognitive dissonance was still there. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. Evolution. Now.metaphysics using the book by Father Renard. and I saw that there was a deductive explanatory perspective that made sense on its own terms. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. in my forebearer’s generation. empirical terms.” That is my reading of it. a lot. As far as I could tell. getting back to metaphysics. however. But. Suggesting of course that at least Substance as a metaphysical principle. terms. The problem with neo-thomism that I saw. on the other had. It could not really account for new species development. and my highschool science classes. God is seen as creating the world in seven days out of the “void” of “Substance.
” and that somehow there was nothing which preceded this was. both biblically. and apart from him [the Logos] nothing came to be. Through him [the Logos] all things came into being. ridiculous. and was the uncaused. I denominated this “trinitarian metaphysic” as So. As Ken Wilber has argued. this is how it all plays out metaphysically and follows: Being.A. is. and the [Logos] was God. where it is stated that Jesus. second there is Being (Form of Form). we see that there are three primary metaphysical principles. theologically: Theologically Classical Metaphysics Evolutionary Metaphysics God the Father Being (Form of Form) Being (Form of Form) God the Son Logos (Creative Form) Creativity (Creative Form) God the Holy Spirit Substance (Formless Form) Love (Love Substance) 178 . Love and Creativity.) Now. (N. as the Logos is the First Cause. and objectively. in an earlier article. is that the Logos. In Biblical theological terms. in conjunction with Genesis. “Poof” and suddenly there was the universe? The whole thing is. First. there is Substance (Formless Form). that the universe began with the “Big Bang. or Creative Form. Now. such an approach is essentially infantile. My position. is it like Santa Claus said. non-metaphysical accounts of how reality began typically assert the opposite. and last there is Logos (Creative Form). In the beginning was the [Logos]. although such athiestic. presence.Sagan. He [the Logos] was present to God in the beginning. and was. or Reason. and is wholly unsatisfactory to me. when we take the prologue to John.B. and the [Logos] was in God’s. this is found in the prologue to the Gospel of John. First cause of the universe. I mean.
It makes perfect sense to argue that the three primary Metaphysical Principles of Being. Love/Substance. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. as well as others. themselves existing in The Mind of God. Substance. since the Immutable Platonic Forms. are from a process point of view. God the Son. then one begins to see that 179 . in the Quantum Field of Substance. Ken Wilber. be put on the “evolutionary shelf. the Mediating Principle. it is perfectly possible that certain species of animal or plant. it is possible that evolutionary processes could. in terms of a nonsystematic divergence from a classically stated Rule. could. so to speak. and Substance. of course. The Objectively Existing Metaphysical Principles of Being. or others. Once again. bringing all of this back to evolution. ala Whitehead. but not changed. on the other hand the Transcendent Principle. and God the Holy Spirit. when one realizes that an “accident” in terms of classical philosophy is defined statistically. in an extraordinary case. acting as the immanent principle of God in creation. While one can certainly accede that the Trinity Subsists in its Primary relations eternally. Finally. from a metaphysical standpoint.Now. Now. and Creativity/Creative Form. or. or maybe even for ever. as such. and Christian Doctrine can be added to but not subtracted from.” for awhile. the Holy Spirit. or Law. one might also argue that God the Father. rearranged. or Matthew Fox. Norm. God the Father. respectively and together. the Immutable Substantial Forms. produce a New Immutable Platonic Form. Logos. even planets. one sees that the nature of reality itself is relatively stable. as well as an Immutable Substantial Form. So. and God the Son. And. the three primary principles of evolutionary advance. or a New Immutable Substantial Form.
180 .there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident. and modern systems involving statistical probability.
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