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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 management." What is Jurisprudence? Well it is hard to say.D. the problem with Law is that it has to be interpreted. one has also received a Doctorate in Jurisprudence. and has taken a jurisprudence course during law school. Put another way. I suppose that we all could get Ph. Jurisprudence. One might say that it is Legal Philosophy. but I suspect we typically do it a different way.CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. psychology. Quantum Physics.. Now. business decisions. solid. Lawyers use policy arguments all the time to supplement their legal arguments. one has not only received a Doctor of Laws. philosophy. religion." . with policy. a lot of jurisprudence involves sociology or psychology. then. accounting.. finance. They use their business and financial abilities to help their clients make good.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. sociology. You see. 4 .. and. It is my position that where one has received a Juris Doctor degree. Metaphysics. theology. of course. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. values. if there is no basis for that interpretation then problems result. even. is The Study of Wisdom. but then again.
when they find themselves in ditches with virtually no way out. So. 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." who just channel and parrot other people’s minds. moan. in Law School I decided. perhaps unconsciously. maybe these persons are just "psychic channelers. usually spouting phrases like.Unfortunately some Legal Academics are legal ditch diggers. to become a Critical Thomist. In college I was a concrete laborer for eight months. not in the tennis sense. and a day laborer for another summer. maybe we should. you know. Input in. for me it just keeps getting better 5 . They spend all their time digging themselves and others into ditches. whine. and complain. They don’t believe in jurisprudence." But what you really see of course is that they are Fascists. In any event. If this were a world of espionage. here. these people certainly are ditch digger academics. I must apologize. bitch. I think I’ve been a little harsh. I think that it is unfair to ditch diggers to place these fundamentalist. input out. You know. How they get into academia or law in the first place is beyond my comprehension. placing ourselves in a world of science fiction. one might suspect that they have faked credentials known as "dummy espionage degrees. I suspect that ditch diggers are more highly evolved than these academics. academics. and. and. that’s the problem. These Cyborg academics must look to their Central Control Units to tell them what to do. "The Law is The Law. ala Star Trek. and then. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it." Or perhaps. knee jerk. No programming alternatives here. The solution? Well. Shit in. never having an original thought of their own. So. but in the robotic sense. call these academics Borg. legal academics in the same category with ditch diggers. shit out. and if hypothetically we had nazis or communists in this country.
what Thomas Aquinas called Intellectus. it is perhaps a little bit of both.and better. reality and consciousness is structured primarily on three levels. For a Critical Thomist. and Thomas Aquinas. Level 1: Body. Body. intend. Being (Form of Form). and a bit more. their respective philosphies were based on the Aristotelian concept of Being. and as a Critical Thomist. and Level 3: Intellect. For me. Level 2: Mind. and Spirit. its not Critical Realism. using the formulation. I believe in. what is it? Well. then. and Substance (Formless Form). For a Critical Thomist. For Bernard Lonergan. and Substance is the basis and underlying foundation for true reality. but Critical Thomists don’t buy this. Mind. Logos is Divine Reason. Now. CHAPTER II CRITICAL THOMISM Critical Thomism. on the other hand. 6 . and is the Intellect. Being is A Pure Act of Understanding. Logos (Creative Form). Ken Wilber does something similar. use a trinitarian metaphysic which parallels the Trinity of God itself. the Highest Level of Consciousness is structured by Logos. It’s not Thomism. its my thing. I.
supplements Being. substantial forms. rearranged. then. First of all. an Immutable Platonic Form. however. not Quantum Physics. there are also corresponding levels of virtue or activity. then. its not. at level 2 in actuality. While the foregoing might seem a departure from Classical Philosophy. but not subracted from. interestingly enough. the Immutable Platonic Forms are of course composed of Platonic Substance. Form. which is a secondary metaphysical principle. consistent with Catholic Doctrinal theology. One supposes that is at this level that Particle Physics reigns. and Intellectual pleasure or the integrative reflective way of being is found at Level 3. it must be noted that of course statistical probability is itself. and. and Substance. those forms typically only manifest probabalistically. For a Critical Thomist. What else could they be? At Level 1. It is at this "material level. it has always been the case that the Immutable Platonic Forms could be "added to. and even use the Immutable Platonic Forms at Level 2." that reality is composed of and structured by Substantial Form. however. Additionally. in fact. Interestingly. in reacality. while we can talk about. or analytical or moral activity is found a Level 2. individual objects are themselves. The same is true of individual substantial forms at Level 1. then. This is of course consistent with both Plato and Aristotle. Mind pleasure. but 7 . discussed below. The Immutable Platonic Forms. one believes in. For a Critical Thomist. Logos. and.In the preceding natural law framework.. it is a different story. the thing about Critical Thomism is this. discrete. which leads one to Substantial Form. and one’s unconscious or preconscious Mind accesses. Bodily pleasure and sense experience is found at Level 1.
" As I have pointed out previously. who we are and the world we live in is determined." Nevertheless. Finally. as Bernard Lonergan would put it. subsist. 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. Finally. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules. it is at Level 3 that reality is structured by "relational meaning streams.not changed. it should be pointed out that statistical probability. might find the foregoing discussion a little bit "out there. moving to understanding. Our world is not just a po-mo (post modern) fantasy. paradoxically enough. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. To some degree. Outside of space-time. "The World Mediated by Meaning. outside of space-time. as Bernard Lonergan would tell us. a "non-systematic statistical divergence from a classical norm or rule" of course takes place." Now. relational meaning streams structure and partially constitute reality. rather it is grounded in Saint Thomas the Apostle. Change can occur without "change" occuring. 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. and culminating in judgment and reflection. beginning with experience. or Substantial Form. or the Immutable Platonic Forms." This is completely consist with the point that the Immutable Platonic Forms exist. Doubting Thomas is the Patron Saint of Critical Thomism. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas. Finally. One suspects that Saint Thomas the Apostle himself very 8 .
So there it is. 9 . and finally through a process of critical reflection and judgment. political or religious. when I do. I go with Doubting Thomas. but nevertheless. For me.well may have been a Critical Thomist. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. presumably had understood it. moving to understanding. The Critical Thomist may doubt. had judged it to be true as a matter of a critical judgment of fact. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets. Although it may take take me a little longer to see Reality. I think that I will be sure that it is Reality and not something else. Thomas did not believe in the resurrection of Jesus until after he (Thomas) had experienced the physical presence of the Post ressurection Jesus personally. and then. and then finishing with judgment. I think for me the tradeoff is worth it. obviously starting with experience.
Nebraska. if I lived in Crete.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. Snowden said: "‘Nowwww. Daoist? Zen? On the Left? On the Right? I wasn’t sure." Suddenly. out of the blue I heard my name being called. Snowden) was concerned that I could not get a fair 10 . individual rights. how did it all fit together? Well.’ Mr. In Mass Communications Law I had chosen to sit in the anonymous middle of the class. especially in law school at the University of Nebraska College of Law. I could never quite figure out where he was coming from. Constitutional Rights. Then one day in class it started coming together for me. Professor Snowden tried to help us get it. Exactly where I don’t remember. Prof. The whole issue of people getting along. Fejfar. and the people there were not cool and if I (Prof. Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. certainly not sitting in the front row and being a "gunner. rather than "back benching" it. a reminder to many of Nazi’s marching Neurenberg. We got it in class somewhere. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career.
Fejfar) think of that?” Now. And then. Snowden) move to Lincoln. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing). What could I possibly say? This question didn’t involve ’t in the case in the case book. Eureka. Nebraska. inspired.. Inspiration. Mr. King at the Zoo Bar downtown). why couldn’t we have a system that handles it that way. Sweating palms. the people in Crete. out of the blue. Nebraska. if you have 1 Of course I definitely did not say "excretion" or "shit. Lonergan strikes again. Professor Snowden. Snowden was cool– what other Law Professor could you catch watching and listening to B.B. I guess all I (Mr. Fejfar) could say is that that would make you. 11 .shake in court (in Crete. Professor Snowden. Snowden would get along great). and. Prof." the term ex-cretion was of course only a merely coincidental use of language relative to those terms. where the people were cool. Nebraska. It wasn’t even close. Fejfar. and then you Professor Snowden moved to Lincoln. I guess if you lived in Crete.. an ex-cretian1. Insight.(and where presumably Prof. were not cool. Nebraska)– why couldn’t I (Prof. This was like getting lost in the grocery store at age four and not being able to find mom or dad. where the people were cool-. (Of course we all knew that Prof. Once again. I (Mr. Click. of course the usual blank out caused by panic. Shit. Then it hit me. Fejfar) said: "Welllll’. with me moving to Lincoln? What do you (Mr. Was it some sort of Jungian unconscious linkage? My response? Panic of course. That cold empty feeling in the pit of your stomach. of course." Now. I did have a little premonition I think. Snowden continued: "‘Wellllll’. So. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief. So. Nebraska.
of course.gotten the joke here. Now.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. Second. I am going to press the envelope in this 2 The "pit. it was meant as a compliment. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class. Why? Well. that at this point. Prof. "out of school. first of all I think Snowden would love hearing the story again. I of course thought that I would receive a startling round of applause from my classmates. This. why did I tell this story. with only a few scattered laughs. being the proverbial student lounge area in the basement of the law school. and beat his forehead on the table several times. Professor Snowden placed his head on the table from which he was lecturing. and in thinking of Constitutional law relating to the First Amendment. of course." 12 3 . who always "hid the ball. risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary. Snowden was just great. I don’t think there was a ball to hide with Snowden." in this essay. but really in a backhanded way. 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. and having it in print would help to pass it on in the lore of my alma mater (Nebraska. And. is to be contrasted with Professor Bob Works." of course. It’s not that Snowden was hiding the ball. I think they have better things to do with their time). The "Harvard" of the Plains). in the spirit of Professor Snowden. All my professors were good– don’t get me wrong. Perhaps it was to poke fun a little bit at Professor Snowden. you might well anticipate.
is that the judgment be one of "lawful judgment of his peers [and] by the law of the land. which 13 . Finally. Boston 4 Now of course this might be pure hypoerbole." I have three arguments. here. I remember Jack Kennedy’s funeral when I was four years old. a Fitzgerald was a signatory of the English Constitution. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. the authors really intended "and" not "or. that is. or disseized. watching it on a black and white t. It was especially sad because we were Irish Catholic (my mom half. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta].” or. It guarantees that all freemen shall not be "taken. of course.." Second. there is an infinite regress. Kingsblood4 I remember my mom saying.) 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 outlawed. I am a liberal kennedy democrat "hiding out" as a moderate democrat. scriveners error. me one quarter). (One Warin Fitz Gerald.v. with my mom in our rent house in Terre Haute. 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.. (We’re Fitzgeralds. Indiana. Now. alleging that it was coerced. This seems rather awkward though in light of his earlier support for and approval of the Document. Magna Carta is one part of the "Law of the Land. though.” ." Now. Magna Carta is interesting. of course. or in any way harmed. it only takes a little bit of analysis to see that the requirement of Magna Carta. or exiled.." so that the clause can and should be read. Norman Irish.save by lawful judgment of his peers or by the law of the land. approved it.. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. after the Battle of Runnymeade. The Archbishop of Canterbury was a signatory. and Stephen. or imprisoned. I suppose in Europe I would be considered a Social Democrat.. in the alternative.. but then again. when my dad had his first teaching job at Indiana State (I guess this was around 1963). Magna Carta in the year 1215. First. I remember that my mom and I both cried.article. I usually flash "progressive" when I hit faculty functions and faculty meetings. 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.
tough luck. that’s the story. there was a lone gunman in each case.) Then. and thus are Esquires. at this point you might say. It couldn’t be. natural law (common law). but in our household we knew it wasn’t the whole story. Catholic Thomists believe in Liberal Truth. that means that I have a right to a jury of Lawyers who have passed the Bar. A Liberal Irish Catholic simply could not be President of the United States. Now. we all knew. These killers were fundamentalists. it was somehow in the blood. as well as the United States Supreme Court Bar. I’ve got judicial immunity. "Who cares?" Well. Now. Sure. We. the Catholic Liberals were Thomists.Fitzgeralds. Thomas Aquinas said there were three levels of law human law (political law). as Tom Shaffer might put it. If they can’t find such a jury. Suddenly instead of Camelot. and of course is irrational and therefore an unacceptable interpretation. Not again. 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. Ted knew. We believed in Reason. I figured it out at Rockhurst College. 14 . I think. it was the Kennedy curse. It was impossible. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. I didn’t know what it was. in my case. I do. and a jury of those who are Members of the Order of the Coif. Ours family went West after the Civil War. They were the antithesis of everything we believed in. or Creighton. of course Bobby Kennedy was shot. We knew truth was possible even though it might be a little ambiguous and hard to get at. They were fanatics.
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
to create and vest opposing rights in the party who obtains the benefit of the estoppel.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.of a party. I think that this solves the problem nicely. and his silence or negative omission to do anything. and in good faith. from the motives of equity and fair dealing. his positive acts. Its foundation is justice and good conscience. perhaps the word "hae" as a personal neuter pronoun. unless prevented by estoppel." a Universal Natural Law Ethical Decision making tool. one way or the other. 7 18 . The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. using that word in its broadest meaning as including his6 spoken or written words. one developes a conscience (to the extent that one does not already have one). I argue. rather than "his" or "her" would be More appropriate. remarkably enough. and its practical effect is. In my "Home Run Ball" article I introduce the "Ethic Matrix. not wanting to be sexist. that if one practices using this tool long enough. An author faces this problem constantly.
157 Pac.W. While some might argue such an approach is inappropriate. in relation to the First Amendment of the United States Constitution. R. Havalena Mining. 139 Pac. 1635-1637 (4th Ed. 8 2 Pomeroy’s Equity Jurisprudence. 97 N. Pease 82 Atl. Title Guarantee & Trust. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution. 1068 (1912). 986 (1916). one comes up with the Doctrine of "Constitutional Estoppel. 879 (1912)). Rothschild v. Franklin v. 298 (1913). 19 . Lee. 143 S. Brusha v. section 802. Board of Education. as such. 1918) (Citing. 182 S. 644 (1912). it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. 740 (1890). Martin v.W.. Bank v. Conway Nat’l. Maine Cent. 21 Atl. Duncan. in conjunction with the United States Constitution." That is. Clark & Boise Lumber v.pre-eminently a creature of equity. or its application to others in similar circumstances.8 Now.E. and in particular. 1016 (1916). Bank of Neelyville v. pp. it is in fact no more radical than arguing in equity that Constitutional rights can be waived.
A. place. to march in Skokie. as well as several other interested parties oppose the permit application. please state your name for the record. The United States Attorney. and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States. how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well. 9 Mr. here is how it goes. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. represented by Counsel for Applicant." 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. Rupert Robotic. requirements have been met. Direct Examination (Mr. They assert that reasonable time. Mr. Robotic. Mr.Now. and any resemblence to anyone else is purely a coidcidence. The "Hypo Nazi Party. applies to the local Federal District Court for a permit for his group. Our Hypo Fuhrer. such a resemblence is purely coincidental. Robotic9. and manner. and a such for First Amendment Free Speech and Free Association protected purposes.) Cross Examination (United States Attorney) Q. Those opposing the permit argue that Mr. 20 10 . the Hypo Nazi Party10. Robotic and his cohorts are. on information and belief. Constitutionally Estopped from getting the permit and marching.
Applicant. Mr. not in your party. handicapped persons. 5th Amendment). including but not limited to the First Amenment? Well. Yes. We oppose the United States Constitution and the First Amendment. isn’t true that your Party supports the abolition of the United States Constitution. would also have a right to a permit to march in similar circumstances? Absolutely not. Robotic. Q. I withdraw the question. Your Honor. (Applicant’s Counsel: Objection. Mr.) (Judge: Overruled. mental or physical. We want them abolished. A. Q. Does your opposition include violent means? (Applicant’s Counsel: Objection. do you agree that other persons. Mr. and the other interested parties have waived cross. . The First Amendment thereto under which any rights of free speech and free association can be asserted. Mr.Q. Q. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel.. Your honor. Your Honor. Alright.. Your Honor. and in that capacity are requesting a Parade Permit to march in Skokie. Robotic. Q. yes. Answer goes to the Estoppel Argument). Your Honor. Under pain of perjury. please answer the question. such as racial minorities. Robotic has admitted on cross examination that he and his party reject the United States Constitution.. once we reach power. Q. perhaps. Q. It is our intention. that is the end of the United States Government’s cross examination. Irrelevant. Robotic you are representing the Hypo Nazi Party. Q. to kill or place such people in concentration camps.. isn’t that correct? A. and finally has specifically denied that 21 A. A. Under pain of perjury.
it is developed. the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. Thank you Counsel. I am also denying the Permit on the basis of Equitable Estoppel. that although it could be used against a criminal defendant in certain circumstances. as such. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade. Now. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw. one last thought here. the United States government and the United States Attorney argues that Mr. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts. Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. and Pursuit of Happiness. Alright. nor is it simply discovered. and. found in the Declaration of Independence. The Court is now ruling from the Bench. rather. as well as the United States Constitution itself. This Court is adjourned. and incorporated by implicit and constructive reference into the United States Constitution. Additionally. Nazi Party in this matter. Robotic and his Hypo Nazi group from marching. since. but do not even have to rights of Life.A. Tony Fejfar) were on the bench. this is how things would play out if I (Prof. Therefore. "pushing the envelope. Liberty. This is the kind of law. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist." "thinking outside the box.” Although it may seem 22 . one must simply swish away the slag and the fools gold and look for the real gold that was always already there. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. Now. It is neither created. 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. Mr. and since he rejects the First Amendment itself. Like panning for gold in the Rocky Mountains in Colorado. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case." that I encourage my law students to develop.
CHAPTER IV A HOME RUN BALL. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX.unlikely to the typical bystander. A UNIVERSAL NATURAL LAW ETHIC The Ethical Matrix Copyright (2002) by Anthony J. 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. Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality .
Proportionality is based upon Mathematics and Geometry. 2. See. Bernard Lonergan. 5. Feeling. 3. Method in Theology. An analogous concept is found in modern economics and the philosophy of Mill and Bentham. 34 (1971) (discussing Value as a transcendental notion). Proportionality as a basis for Justice is found in the work of Aristotle. See also. It is found in common law equitable precepts.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. Aristotle. Aristotle. See . It is based on the Golden Rule found in the teachings of Jesus of Nazareth. Ethics . Utility involves the Maximization of Value. Equity is based on the principle that Equity favors the one in need. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. The cognitive functions of Thinking. 4. and Sensation come 24 . Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. 1137a351137b24 (1976). Intuition. Ethics. 1131a22-1131b14 (1976).
Fejfar. 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. (See Bernard Lonergan. Cognitional Structure in Second Collection (1967)). reflection/ judgment come from the work of Bernard Lonergan. is like a baseball game. It is concluded that the Ethical Matrix is a valid natural 11 A common expression. that life.11 Tony Fejfar 1." The Essay then involves a linguistic. Copyright . 6 (1990)). is. Psychological Types . And if indeed baseball is one variety of play. 2002 Anthony J. (See Carl Jung. Existence is a Game to be Played. 25 . Introduction. The cognitive functions of experience. understanding. A Universal Natural Law Ethic.from the work of Depth Psychologist Carl Jung. The Essay then proceeds with an example involving possession of personal property and a "home run ball. policy. then it follows that life is play. and then ethical analyis of the problem presented in the example.
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.
and the catholic Holy Spirit of Divine Wisdom See generally. turning water into wine. the underlying symbolism of the narrative is the same. The hosts run out of wine and don’t know what to do. T. John. and Jesus does so."). v. (See. Chap. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. Mary asks him to perform the miracle anyway (Equitable intervention based on need). 1-11. The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). Whether one takes these events as literally true or not. the roman Minerva. 2. Feminine Equity based upon wisdom intuition 20 21 29 . Oxford Anno. 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. Jesus of Nazareth and his mother Mary were attending a wedding celebration.22 19 The mythos of wisdom if found in the greek Sophia and Athena. Bastick.is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need. The hosts come to Mary and ask her if there is something that can be done. Bible (1977). In this narrative.21 This is seen for example in the equitable doctrine of unconscionability. Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration.
Carr v. and bargaining power. Hoosier Photo. 441 N.E.2d 450 (1982) (discussing the "need" factors of knowledge. 22 See.intercedes to make an Equitable Exception from a general rule based upon need. 30 . sophistication. for the application of the equitable doctrine of unconscionability.
the Jungian psychological functions of Intuition. and 23 See generally. "Psychological Types" (1990). 31 .The Ethical Matrix finds support in the work of depth psychologist Carl Jung. Carl Jung. Feeling. Thinking.23 as seen in the figure below. "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). See also. Isabel Myers.
experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan. judgment/reflection 2.Sensation. understanding 3. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. my schema is as follows: Lonergan 1. 2. and reflection/judgment.24 and the Lonerganian cognitional functions of experience.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. Understanding. and Love. The natural law ethical principles are universal in the sense that each contains minimal moral content. Judgment/Reflection."26. 3. 32 . understanding. Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience. support the respective Ethical Principles discussed above. 4. In order to more fully access the principles one must intuit Being. These functions correlate to the Jungian functions as follows: Jung 1. Insight 350-352 (1956).
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.
7. Additionally." Although the two different formulations are very close. it has a more communitarian flavor. Bible (1977). 36 .33 My formulation of the rule as the principle of reciprocity is somewhat different. while my formulation has a more individual flavor. v. one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action.used most effectively. Oxford Anno. The idea of reciprocity as an ethical principle takes into account the value of 33 Math. "Treat another as you would wish to be treated in a similar context. Ch. 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. 3. 12.
see John Rawls. 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.34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. 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. "A Theory of Justice" 513-519 (1971). This is based on 34 For an interesting discussion of Autonomy.Autonomy. 37 .
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. Chaos (1987). Ford answers. is an even more interesting question. its correlative cognitive functions." What sort of "chaos" is produced." but also as "Being.’" Id. see.’ ‘But they’re loaded dice. and when? These are the questions which have vexed philosophers for quite some time. "‘God plays dice with the universe. For a general discussion of Chaos theory. while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative." If one sees the relational meaning streams as immutable platonic forms. at 314. 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. James Gleick. 38 36 37 . 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." "rearraned but not changed. What are these relational meaning streams. how much do they change."from the point of view of ordinary causality.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. or change context. then one would probably argue that such forms can be "added to but not subtracted from.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. 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. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness. however." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. Of course one finds the notion of the "Good" in Plato’s work.
he (George) would not want to get punched in the face for no apparent reason. This. 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. is not the end of reciprocal reflection. one must imagine that one is Stan placing himself in George’s shoes. Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal. Utilizing what can be described as "double reciprocity. 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. George must place himself imaginatively in Stan’s shoes and ask himself. and have Stan engage in a reciprocal reflection. that is. Anticipating our discussion of Value. however. George. will choose pleasure over pain. Is there any 39 . there is no value to be achieved by Stan in having his face punched. Stan does not choose pain for the sake of pain. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation.accurately and making better decisions." George must now place himself in the shoes of Stan. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason. George must posit that Stan’s desires in the situation are based upon positive values. Taking simple hypothetical then. and in the absence of a higher value achieved instrumentally through pain. let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. Although in this situation the double reciprocal reflection may seem unnecessary.
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. 38 While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face.38 Having discussed the ethical principle of Reciprocity. 4. Additionally. The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse.reason why Stan imagining himself as George. Jeremy Bentham. the next subsection will discuss the principle of Utility. See. "The Principles of Morals and Legislation (1988). there does not appear to be any higher reflective or moral value which Stan might recognize as valid. 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. 39 40 . would see any value in George’s potential activity of punching Stan in the face. Utility.
Value is a transcendental notion. Although this has much to recommend to it. am building on the work on Bernard Lonergan. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. the Author. it is problematic in that it is not a principled ethic. Method in Theology 12 (1971).40 What can this mean? The Author would Bernard Lonergan. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. Although it is obvious that I. even those who have a good intuitive sense. Here. Finally.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. the argument is that Utility is the ethical principle based on the maximization of Value. it must be stated at this point that my approach to decision making differs. 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. Additionally. Lonergan could only theorize that 40 41 . Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. and who intuit Being and Value in a positive way. as I pointed out in my first article in the Boston College Law Review. As pointed out by Jesuit philosopher Bernard Lonergan.
and have as a result of that process developed the Ethical Matrix. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. Additionally. the goal of political society. It is my position that the Ethical Matrix is the natural law-critical realist ethic. If one reflectively intends Value. and is one which promotes constitutional democracy. the rule of law. or in the context of a particular public policy analysis.argue that Value is an core relational meaning stream. 42 . in a particular decision-making context. the state. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. is the "good of order. and the law. and due process of law. objectively." While I have always read and interpreted this in a positive light. as such. by intuiting Value one is better able to consciously recognize and then reflect upon the values relevant to a particular situation. then one begins to have a basis for ordering one’s values.
pleasure. While Aristotle argued that the end of the human person is happiness. 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. 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. First. Additionally.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem. Ethics 1097a15-1097b2 (1976). and through the intuition of Value. reinforced. for example. as such. and enforced through moral communities and authority figures. for various religious groups to have violent confrontations. It is asserted that all other things being equal. it does entail certain problems.43 Other than this general 41 42 Aristotle. However. one can begin to recognize higher pleasures. cannot be denied. 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. This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life. 41and that true happiness is achieved through the contemplative life. for example. several points can be made. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. While the moral life has many positive attributes to recommend it. the reflective person chooses a higher pleasure over a lower pleasure. upon reflection. 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 . can certainly be the basis for a particular value. moral rules are taught. Thus it is not unusual." 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. First.
In other words.. 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.f. C. and cannot there be found. We seek for Spirit in this or that object. Because these rules exist. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value. anti-self interest" operates. Instead. the selfish life is immoral and unethical.. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law. Additionally. Id.. "irrational self. Thus. We seek for Spirit in the world of space. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. we are seeking for Spirit in ways that prevent its realization." that is. the non-reflective. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. in point of fact. but Spirit is not an object.complexity of the real world it is impossible to make appropriate decisions without contextual reflection. at 61. 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. and even when they are achieved. but Spirit is timeless. 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. And that is the Atman project. and cannot there be found. leaves the person with a lack of genuine pleasure. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends. but rather impedes it. but the Spirit is spaceless. The acquisition of the sports car will typically not satisfy the selfish person. the Author would argue that something like liberal "original sin. and the pursuit of lower pleasure as one’s only ends in life. and force us to settle for substitute gratifications. manipulation of others. shiny and alluring and full of fame or fortune. Ken Wilber. he or she must have a better more prestigious sports car which in turn will not suffice.. 44 . The Atman Project (1999): We seek for Spirit in the world of time. the accumulation of material wealth. the selfish person usually cannot even accomplish these goals without running into problems. and it cannot be seen or grasped in the world of commodities and commotion. 43 Perhaps it goes without saying that for an adult.
5. The second corallary is that Perfect Justice is found in Perfect Proportion. compensatory money damages should always equal the amount damaged. in criminal law. and. 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. "An eye for an 45 . It involves the idea that perfect proportion is found in a 1:1 ratio. Thus. and equity and equitable thinking. once again. it must be stated that Value itself. or in an equalateral triangle which has been divided down the middle. The principle of proportionality is found in geometry and mathematics. has no definitive serial ordering. or as it is put biblically.guidance or limitation. Proportionality. on proportionality and proportional thinking. other than to say that it is self evident that Value itself must be valued. and as expressed in particular concrete values. for example. however. punishment should be meted out in perfect proportion to the crime committed. Or. while equitable values involve the value of favoring or helping one in need. of course. Proportional values involve the value of equality and having rules. This leads us to our discussion of Proportionality. all other things being equal.
Exodus.eye and a tooth for a tooth. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. 46 . v. eye for eye. 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."). 23-25 Oxford Bible (1977) ( For any harm. you shall give/have. foot for foot. 21. in his Ethics. wound for wound."44 Aristotle. burn for burn. "life for life. tooth for tooth. stripe for stripe. appears to be the first person to formally recognize proportionality as a basis for justice. Ch. hand for hand.
Aristotle. Id.. in fact this is not possible. 6. has erred in not covering that case. and there are some things about which it is not possible pronounce rightly in general terms. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there. "[A]ll law is universal.. 47 47 .treated equal on the basis of formal equality. owing to the generality of his language. 1130b32-1131b14.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice. Aristotle. [W]hen a law states a general rule. and a case arises under this that is exceptional. Ethics 1137a17-1138a11 (1976). Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance. then it is right. there is a problem with this approach that Aristotle himself recognized. Equity In his Ethics."47 Thus. 1132b3-1133a13 (1976).46 As Aristotle puts it.. where the [legal decision-maker]. and as he would have enacted had he been aware of the circumstances. Ethics.48 45 46 See.
is... 48 .. a rectification of law insofar as law 48 Id. "the essential nature of equity.Therefore..
681. that rather it is impossible to generate a rule system that would justly take into account every possible circumstance. 51 49 . The question remains. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words.is defective on account of its generality. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch."51 And as noted earlier. many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. Thus. I suggested no to this question. 694 (1986).50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. and how? Here there 49 50 Id. when does equity intervene. Fejfar." otherwise injustice is simply produced by unnecessary rigidity. 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. Id. however."49 This of course raises the corallary question. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. Anthony J.
Nevertheless.can be no hard and fast answer other than the fact that equity is based upon need. 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. accessible both to women and men. the next section will deal with a discussion of the concept of possession. rather only a strictly logical exception. 7. Thus. Having discussed the component parts of the Ethical Matrix in some detail. This intuitive intermediate way of knowing which is associated with wisdom. 50 . and a true assessment of need must be an intuitive one. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. to be followed by a section analyzing the concept of possession in light of the Ethical Matrix. we will now move to a concrete but theoretical legal problem. but rather one which is alinear and arational. the definition of possession in Property Law. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control.52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. is a half way house between purely irrational emotional feeling and strictly rational analysis. 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.
is that when one attempts to find an adequate definition of "control. The problem. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. If one analyzes a concept enough. one simply is presented with the phenomenon of "analytic spin."53 showing that all definitional arguments are ultimately circular and thus indeterminate. this could be troubling to you and I. 51 . We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. we find that reality comes at a higher level. and that is this: possession is related to control. the substance of what the students are getting at remains the same. 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. utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. for example. however. Now. If however. "Deconstructing the Legislative Veto. because all definitions are ultimately circular. 520 (1984). but it need not be." one is again faced with a problem. 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. While we sometimes get to 10 or 12 or so different words. Girdeau Spann." 68 Minn.that one has control over personal property." Should this surprise us? No. 53 See generally. L. one is typically thought to possess it. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. 473. this of course would be a problem. Rev. Now if we expected to find reality on the level of logic or ideas. we try to generate list of definitions of words associated with possession.
then we find that there is no problem at all. Actuality: Mind: Understanding: Logic and Logical Reasoning 1. on the three levels above.54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention. He also wishes to thank students from several property classes 52 54 . Now all of this seems very abstract. on the "reacal" level. At level one. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball. returning to our concept of possession. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2. possession could be considered respectively. and then using physical or political force to retain possession. Following the work of Bernard Lonergan. a critical realist understanding of the problem can be seen as involving at least three levels to reality. At level three in "reality." 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." one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. which deploy as follows: 3. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case. At level two on the level of "actuality.
emerges from the pile he has been mining for more than a minute with a smile and appears to say. before Popov is tackled by dozens of other fans clawing for the ball. Team Senior Vice President of Pacific Bell Baseball Park Operations. "Once major league baseball identifies the individual with the possession of the ball. Both Popov and Hayashi end up claiming the ball. "A tape of the homerun scrable." Id. ‘Who has the Ball?’ Id. (2001 Westlaw # 25594143. who turns out to be Patrick Hayashi. Petersburg Times Newspaper. "At first the ball appears to [pop] out. 10. Oct. In the Barry Bond’s Home Run Ball case. 2001). clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands]. St. as well as this article. 2003). June 26.000 received at auction for the home run ball. "[A] man." Id. (2003 Westlaw # 3207018... Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco.... 53 . Patriot News Newspaper." Id. but then it drifts back into the glove.who have discussed the possession issue relating to a home run ball. A lawsuit is filed and the case ends up settling with a 50-50 split of $450. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away." Id. "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. that’s the end of that. Who gets the ball? According to Jorge Costa.
Many will bring gloves. nets.Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. As each ball heads toward the seats. The ball has just made contact with the trap of your glove. and other apparatus to the ballpark to aid in their quest. but you slip on a hotdog and lose your balance. 54 . 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. especially the younger ones. the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. Baseball and the Pursuit of Innocence. There are few more memorable experiences than leaving the stadium ball in hand. 56 This is obviously an imaginary hypothetical since Pudge Rodriguez. and risk injury attempting to catch baseballs rocketing their way. your glove opens an inch 55 For many fans. and instead of completely closing.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you. that fan can expect appreciative cheers from the crowd). Richard Skolnik. and will occasionally display incredible bravery (or is it foolhardiness?). You reach up to catch the ball.55 Suddenly Pudge Rodriguez hits a home run into the stands in left field. to the author’s knowledge now plays for the Florida Marlins. 173-74 (1994).
55 . The ball pops out of your glove and into your other hand. bounces back toward your glove.further and you start to bobble the ball.57 57 This appears to be Mr. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. Joe Smith. note . You say the ball is yours because you caught it first. Costa’s position. Ballpark rules say that the first person to "possess" the ball owns it. the second guy says it his because you did not have control of the ball. See supra.
fish. 606 (1844). Shaw.60 In Young v. 62 63 56 . Modern Property Law (1999)."63 "leaving a space of about seven fathoms 58 59 60 61 6 Q. Young v. in Bruce and Ely.The case is turned over to a judge who must decide the case based on case law from two previous cases. 6 Q. 65 N.59 Although both these cases deal with the possession of wild animals.B. Bracketed information found in edited version of Young. The argument is that a flying baseball is analogous to a free flying wild animal. Hichens58 and State v. 900 feet would be a length of 300 yards or three football fields long.E. Black Law Dictionary. 607. Hichens. for our purposes.B. namely. A fathom is six feet in length. 875 (1902). the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish. they are the only two relevant cases.
. Id..67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id."64 (42 feet).. Id.. and splashing the water about for the purpose of terrifying the fish from passing through the opening."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.. "which he was about to close with a stop net. "two boats belonging to the plaintiff. were stationed at the opening. 57 .. Id."65 At this time.open.
Lord Denman stated. 6 Q. If the plaintiff did have possession of the fish.B.68 At issue in Young. is State v."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. the defendant was criminally charged 68 69 70 Id. In his opinion. this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals.72 In Shaw. "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. 611. Id. Justice Patteson stated. "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish."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 the defendant’s net."70 Additionally. Chief Justice. Shaw. 58 . In contrast to Young. was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant. Partial control is not enough.
71 72 Id. 65 N.E. 59 . 875 (1902).
76 In Shaw. 876. To put the argument more fully.74 The facts indicate that the compainants had placed "trap nets. Id. 876. the defendants who were not the owner-complainants.E.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. 876. 65 N. there can be no theft.E.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.78 The trial court directed a verdict of not guilty for the defendant. not that they were formal complaintants. 60 74 75 76 77 78 79 .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. to prove theft. and the state appealed. 65 N. the defendant must have stolen property from someone owning the property. to escape. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment."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. took the fish from the owner-compainants’ nets prior to the return of the owner-complainants. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets.with stealing 730 pounds of fish from the complainant’s73 nets. 68 N.
"83 Thus. 80 81 82 83 84 Id. 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. They were confined in nets.84 8. Id. Id."80 The court noted that in Shaw."81 The court opined. "the fish were not at large in lake Erie. 61 ."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net. if any. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession. from which it was not absolutely impossible for them to escape. yet it was practically so impossible. that it considered the trial court’s approach to be "unnecessarily technical and erroneous. Id. Id.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. therefore. for it seems that in ordinary circumstances few. at 876-877. of the fish escape.
Young. as to who has a right of possession in the home run baseball. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. and instead of completely closing. You say the ball is yours because you caught it first. Arguably. The Wisdom of Laotse (1976). your glove opens an inch further and you start to bobble the ball. 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. both the batter. Suddenly Pudge Rodriguez hits a home run into the stands in left field. See generally. Joe Smith. You (Freddie Fan) have your ball glove on and the ball is coming right toward you.In the present case we must attempt a logical analysis. The argument is of course that by custom. The ball pops out of your glove and into your other hand. and Shaw. 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. The ball has just made contact with the trap of your glove. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner.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. but you slip on a hotdog and lose your balance. based on the foregoing precedents. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. This possibility is reflected in the following story: 62 . Daoism was first developed in China by Lao Tzu. You reach up to catch the ball. the second guy says it his because you did not have control of the ball. bounces back toward your glove.
The great player does not compete. For a discussion of the Dao in relation to Basketball. stepping back to let his son’s dream come true. The [D]ao of the Jumpshot (2000). we watched the ball drop between us–right in [my wife] Joanne’s lap. first pitch to leadoff batter Ricky Henderson. and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. John F. realizing that I had to let my Dad get it. al. "Honey. The good fighter does not lose his temper. I thought you said catching a [fly] ball was tough. my Dad. Looking up with a wide grin. Dad and I leapt to our feet. The Virtue of Non-contending 293 (1976). To our horror. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. The great conquerer does not fight. Mahoney . see. edited by Jack Canfield. But he did the same. she [my wife] said. The good fan does not lose his temper. Chicken Soup for the Baseball Fan’s Soul. First inning. To paraphrase Lao Tzu: The brave baseball player is not athletic. To a Daoist the above story does not seem improbable. He hit a high pop-up that came sailing straight at us. The Wisdom of Lao Tzu. Rudy. Joanne. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. et.It happened this way: My wife. 63 . 128-29 (2001).
64 . Freddie Fan did not have sufficient control to obtain possession of the ball. In this case Freddie Fan bobbled the ball. in the case of the home run ball. absolute control of the ball is necessary before one can assert that one has possession. is remarkably like Young where the net of the first boat had not completed closed.If we were to follow the Young case. Arguably then. 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. then. In the present case. then it could be argued that in the present case involving the bobbled ball. Only partial control was present in Young. "Almost" control is not "control." Following Young. and therefore Joe Smith as first possessor would own 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. The bobbled ball case. and only had partial control before Joe Smith reached in and grabbed the ball. Accordingly. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. Recall that the court concluded in Young that partial control is not enough." and "almost" possession is not "possession. In Young there was a gap in the net of almost 42 feet in length. practical control should be sufficient to place ownership in the hands of Freddie Fan. is distinguishable. the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw. On the other hand it one could argue that the Young case although generally controlling." Shaw.
Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport.9. A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix. Peter J. Since this is a baseball game. but recognition. the team owner.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. Feezel. Arnold. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. and Craig Clifford and Randolph M. and sports related values. Philosophy of Sport. Drew A. Hyland. Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. Coaching for Character (1997). see. X (1983): 61-70. and the owner of the stadium (if different). In baseball. have waived their rights to the ball and so they will not be discussed. fair play. In this case it appears that the batter. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship. 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. 65 . First we must identify the persons relevant to the reciprocity analysis. ch. in one sense an outfielder is competing with other outfielders on the same team for not only excellence. However. Critical Readings. 6 (The Stance of Sport) 125 (1990).
C. In fact.A. one might generalize this rule to apply to all cases involving partial possession of property. in N.. Now. Thus. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. at least in the abstract. Starting with this operating assumption. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply.must be given an unimpeded opportunity to catch [a] kick. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. using the principle of reciprocity..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.A. then. how does all of this play out in terms of the Ethical Matrix? First. Similarly." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way." Subsection (a. as sports fans. believe in fair play and sportsmanship. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player. we start with Freddie Fan and Joe Smith.) 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. One must make the assumption for purposes of analysis that both Freddie and Joe." 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. When both players have positioned themselves closely enough to the ball to possibly catch the ball. Football Rules. the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder. 66 .
relative to the question of who gets the ball "ethically. had partial possession of a home run ball. Joe Smith." Hypothetically. as a matter of rule based ethics is legally entitled to the home run ball. then. Freddie Fan would be entitled to the home run ball. the discussion is relatively strait forward. the fair opportunity rule. In my judgment. that Freddie Fan is entitled to the ball.one must have Freddie Fan place himself in the shoes of Joe Smith. with respect to Utility. Joe Smith as a sports fan. and therefore the proportionality test is met. and takes comfort in the conclusion and rule that next time." he. Joe Smith. and hypothetically all others. understands. and thus recognizes that "after the dust has settled. if he. in a similar situation. With respect to the remainder of the analysis under the Ethical Matrix. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. With respect to the principle of proportionality. Now we apply the Ethical Matrix the other way. Joe Smith would be ethically and legally entitled to the ball. who also is hypothesized to be believe in sportsmanship and fairplay. Freddie Fan. he. It can so be applied. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. believes in the "fair opportunity" rule. ethically. take the position that "ethically. that is. Would Joe Smith. First. which can be applied relative to both Joe and Freddie. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances. No further discussion is needed. 67 Finally. Additionally. placing himself in the shoes of Freddie Fan. Joe Smith. at least in the hypothetical ." Freddie Fan should get the home run ball as first possessor with partial control. would come to the position. because. the principle can be used in the sense of creating a general rule.
It is concluded that the Ethical Matrix is a valid natural law ethical tool for engaging in public policy and legal analysis. A Universal Natural Law Ethic. As a part of the analysis. and then ethical analysis of the problem presented in the example. The Article then proceeded with an example involving possession of personal property and a "home run ball." The Article then involved a linguistic. the result reached in the policy analysis section passes the muster of the Ethical Matrix. 10. Thus.presented there does not seem to be any need for contextual equity. policy. Conclusion This Article began with an overview of The Ethical Matrix. and therefore the fair opportunity rule applies as stated. the "fair opportunity" rule for the possession and ownership of personal property is developed. 68 .
only the stock holders would be prioritized or even included as stakeholders. etc. The argument is that. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility. Often. traditionally. and then trying to fairly balance or adjudicate their respective interests. then. legally.” Cynically. local and regional communities themselves. but also in terms of long hours. Typically. If one takes what I would call a “property rights” oriented view of the Corporation. is to profit maximize for the benefit of the 69 . in the first instance can be asserted against the Corporation. but. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. Corporate employees. traditionally. The Corporation’s typical goal. families of employees. often.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. and perhaps only goal. consumers of products. Corporate work places are dehumanizing both in terms of the type of work that is done. and even. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders. also. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers.
in the guise of short term profit taking. The purpose of the Corporation also would be to promote the 70 . the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. arguably. the shareholders. and the Good as a Critical Thomist Ideal. and. one profit maximizes by investing in human capital in and for the short. and Truly Worthwhile. How do we resolve this condundrum? Well. In this instance. corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. “The Z Corp. especially. a “duty-conscience rights” oriented view of the Corporation could be developed and used. but also in making ethical judgments to promote the Common Good. the restructuring of Corporations to create a new type of Corporation.stockholders. other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. Unfortunately. The problem with this second approach. The solution to this problem in my view is to at least allow. corporate fascists often fire employees and break up companies for no rational reason at all. is that the Corporation would not be profit maximizing. first of all all of the empirical evidence that I have seen indicates that in most industries. Alternatively. In a competitive market. but are on the cutting edge. however. from a “liberal” point of view. discussed previously in Chapter IV . and long run. and perhaps even in the short term. that. one gains the edge by having management and employees who are not merely competent. which is irrational in both the medium and long term. if not require.” The Business Judgment Rule would be based on the Ethical Matrix. medium.
This stock would produce no dividends.” Here the rather obvious response is that ethical decisionmaking in the 71 . for example. One might argue of course that a Z Corporation would not be “profit maximizing. would be “irrational.. in an attempt to meet the objection head on. disability insurance. Of course one might respond that one is comparing apples and oranges. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover. law professors. Capital would be raised primarily through the use of Corporate Debenture Bonds. at below market rates. The trustees would be experienced business persons. life insurance. The Bonds could of course be publicly traded either on the New York Stock Exchange. would produce a greater profit than its older cousin. and The Good as a Critical Thomist Ideal.” However. and I suggest. The Truly Worthwhile. and an ability to use the Ethical Matrix. Another objection might be that ethical decision making in the context of a Z Corp. because the management literature almost uniformly suggests that ethically run corporations produce more money. A Z Corporation would be able set up subsidiary corporations which could provide health insurance. The Z Corp. and. no more than 20% of the stock would be publicly traded. with a values orientation. etc. Finally. such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. or on the Chicago Mercantile Exchange. which would be give preferential tax treatment with respect to the interest produced.” Additionally. would of course be “profit moderatizing. A law firm which was a Z Corporation. Z Corps.“Common Good. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. I would argue that overall.
I would reiterate that Z Corp. and have wholly owned subsidiary Z Corps. or alternatively. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. operations. natural law. perhaps even treating the interest as tax exempt.” is objective. Finally. which involve related. It is an objective. and in conjunction with the subsidiarity doctrine which diversifies responsibility through society. in the case of economic or other cyclical downturns. or offshoot. traditional non-profits such as Universities and Hospitals could incorporate as Z Corps. bonds be given preferential tax treatment. are totally unrelated and thus would diversify the income stream of the parent Z Corp. unreflective fascist communism or nazism. spin-off. Additionally. I think that we will find that Z Corps. will be the way of the future. universal. will be the end of both unreflective fascist capitalism. and.context of the “Ethical Matrix. type way of thinking. 72 .
So perhaps we might wonder. or structure. Substance. found in Quantum Physics. let’s talk about these concepts." as such is defined as "Formless Form." as such. or perhaps even hermeneutics. on a Quantum Level. the logical positivist. typically. on the other hand. "Form. Ken Wilber calls this "flatland.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. deals with formality. Form. deals with depth. or perhaps. or 73 . not only how we solve the problem. is defined as "Empty Form." and "Substance." So. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle." Now in order to avoid "Quantum Spin. but the problem itself. surfaces. Does this really make sense? Logical positivism at its best. the ideal." Now. without taking the time here to trash Ockham’s Razor. suggests that the meaning framework that we bring to a problem affects. denies the existence and efficacy of metaphysical principles." I suggest that we at least try out two very interesting metaphysical concepts. not only how we approach the problem. then. Form and Substance. tells that reality is manifested primarily through words or language. Use the wrong concepts and one’s mind goes into "Quantum Spin.
where my wife’s folks live. but is smaller than a tree. Crista asks. This yarn involves members of my family. scrub. says. "Bush. a bush (not to be confused with President Bush. "You know Josh." Crista then says." Now. along comes my kids. what is that?" Josh responds. Well. I think that that just might be a shrub not scrub. true. and you see some scrub. Texas ( home of Shinerbock Beer). Josh (age 9) and Cristina (age 12). from my point of view. "Would a rose by any other name smell as sweet?" "Uncle Chris. however. Now. is some scrub. let me tell a yarn that includes a couple of examples. coming from Nebraska. You go for a walk. and I think that on a good day my wife’s relatives from Shiner. I would call it some shoots that are sort of clumped together. my wife is from Texas. course. Crista. I’d probably call that scrub. "Dad. Bill Shakespeare thought about the same question when he asked in one of his plays. Texas. let’s say for the sake of argument that you are a Yankee from up north (like me). Now at this point in the story. and my folks live down there now in Fort Worth. with leaves sticking out in various places.reality without form. wise in the ways of the world. and for some reason your out for a walk in Shiner. he says. In describing this bush. and beside the road that you are walking on is some "scrub. what’s the difference?" Uncle Chris Stluka. "Mom calls that scrub. and although he is from Texas. even though both seen to have some relationship to Texas in this story). and although not literally. would say that if something is growing on the side of the road which is larger than a grass or a weed. Now the logical positivist might doubt that these two concepts are really different. But before you decide. "Well. is lots of fun." Uncle Chris comes along. shrub. I think you have been hanging around Dad 74 .
" says Crista. Dad.too much. its getting hot– remember we’re in Texas in July. and of course Scruffy." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad. all three words mean the same thing. how is this going to help me get a job. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary." "Josh and Crista. kids. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. now listen to your Dad. "Well.) "Well kids let’s get inside and have 75 . and a red convertible car on my 16th birthday?" responds Crista." however. "I give up. we’re all supposed to think about things like that. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids. "Well." Uncle Chris. I want to see some practical results here. I just give up. "Tricks Josh?" asks Dad?." says Dad "Allright Dad." as a matter of "substance. I think Scruffy (the Dog) wants to go in. and Uncle Chris. So." and "shrub. "Dad." "See kids. let’s say that I believe that the form-substance distinction exists." (Judi." "scrub. really. "the point is that although as a matter of "form" we have three different words for a "bush. Crista. let’s put the pedal to the metal. "Wait a minute Dad." that is. the same. "Well. your Dad solved it. but in substance. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. "Yeah. "Yeah Dad. that why God gave us these noggins to think with." says Dad. "bush." says Uncle Chris. the Mom now appears. where could you have gotten such an idea. is this one of your tricks?" says Josh." says Crista. At this point Dad cuts in." says Uncle Chris. in form there is a difference. "Now Crista.
your late night snack and get ready for bed. "Mom.. Mother. Josh. 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. we’re a Critical Thomist family.. but from the point of view of the "truly worthwhile. "Well Crista.. even property lawyers.K. 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. I like the utility of have three popsicles for our late night snack rather than two. we raised our kids to think critically and question authority." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions." "Whoah there Judi.. responds Dad. 76 ." says Crista. "Well Chris. "lets say that you." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up. "Well. were trying to create a joint tenancy with you and myself with some property you already owned. "Yes. "Well. and we haven’t quite got through yet. well. does this mean I call stay up until 2:00 a. is there really any inconsistency here. and how does that work?" says Mom.m. "Mom." say Josh." "Oh." says Dad..?" says Dad. we’re discussing the form substance distinction here.." says Mom. "would a Mom by any other name smell as sweet?" "Josh mind your manners." says Uncle Chris. Judi... Dear." says Uncle Chris." say Josh. Tony. "Yeah Mom. O. the practical point Cristina Elise is that lawyers use the form-substance distinction all the time. "I for one want to hear the end of the discussion about the form-substance distinction." say Judi. couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. "Now wait a minute" says Uncle Chris." says Mom. "Yes.
who then conveyed the property to the grantor-original owner and the other person at the same time." says Dad. "I think I’ve got this one figured 77 . Tony. why not just say that the original transaction was O. what does this have to do with the form substance distinction. "O. thus satisfying all four unities all at once.K.." says Dad.K.m. Tony. all have to be satisfied at the same time. the two transactions are different. title." says Dad." says Mom. it getting late and I want to watch Law and Order at 10:00 p. its where two or more persons hold real property in common. I think I’m getting this. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson. title would already have been conveyed to you the grantor." "O." "O. But what is the point.K. in substance they are the same. at the traditional common law.K".K Dad. this is because the unities of time. "Now. "Well. Crista. but as joint tenants." says Crista. "Now. Therefore the four unities could not be satisfied. I think I got it."O." says Josh (as he rolls his eyes). says Crista. the survivor automatically gets the other tenant’s share. in fact. "Well." says Dad." say Mom. "Alright. so?" says Judi.K. which of course means that unless the tenancy is severed before one of them dies. "You know". If the two transactions are the same in substance. "Me too Dad. one with a direct conveyance. to create this joint tenancy of yours?" says Judi. "that although in form. prior to your attempt to convey it to the other person. "What’s a joint tenancy again Dad?. possession." says Dad. the point is. "a joint tenancy could not be created by one person who already owned the property conveying part to another." says Crista. and interest. "Well.. one with a strawperson. says Uncle Chris. the problem was that if you already owned the property." who was a trustee. not to cut the story short. "O.
let me think it through." says Tony. you can create a joint tenancy by a direct conveyance without using a strawperson. Well. Lawyers are constantly arguing that something is or is not the same in form or substance. you’ve got the floor. I don’t want to miss my show. let’s continue this discussion inside." "Hmmm." "Well." "The law is like this all over the place." And so the Fejfar-Stluka clan." says Chris. "Well. "Judi. then you know what? they change the rule so that the form does not have to be met. says Mom. "and in fact that is just what has happened." says Dad. By modern common law and modern statute. head on into the house to watch Law and Order." says Tony. did you want to chime in?" asks Tony. and you still get the substance. "You know I had it but then I lost it. 78 ." says Mom. their minds filled with jurisprudential sugar plums. "No. "if a court or a legislature chooses substance over form. go ahead. do I get to guess the answer?" "Sure Chris. interesting." go ahead Tony" says Uncle Chris.out.
D. So.J. This was my first exposure to priests in tweed sports coats. Don’t get me wrong. I was teaching mentally retarded children’s C. in Kansas City. for a 79 . on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). Carl Dehne. but somehow I think the whole process worked in reverse. believe me. before you know it.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College. 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. in Lincoln. the priests wore their collars and blacks even while taking their showers. because. Nebraska.. its not that I thought that I would be manipulated the Good Father. I stopped by Father Dehne’s office. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends. was my freshman theology professor. S.C. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. Missouri–a good mid-western Jesuit school. Anyway.
I have S. "Oh." "but you know.A. Now was Father Dehne bluffing? Thinking that I would back out." J. that sounds good. he"s another Rockhurst student who is already teaching. I and John Blando. we have this mentally retarded children’s C. "O. what is 80 . Dehne looked at me." I replied. Somehow. is from 5:00 p. till 6:00 p." "Well then it’s perfect. and then you. and you can get your Sunday mass obligation out of the way.C. Father Weiss.. I had already heard about Jenny’s Italian restaurant down by the river. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade. Now there was a quid pro quo. Oh. can go over to the J. I don’t see a problem with that. and believe me.D. Duncan Idaho. metaphorically." Then Dehne says. I don’t know. sort of quizzically. there is an opening.k.couple of big university masses. then I say mass for the kids. the thought of eating good Italian food was beyond the imagination.D.E. once I knew Weiss was invited. no. "maybe around 9:00 o’clock or so." replied.m.." I gulped. the point. Oh. C. "what time do they start?" "Oh." said Dehne. you know.m. and me Paul Atredeides. so I said . Not the President of the College.. program across the street on Saturday evenings. Father Carl. or was there a deeper plot. Then he said. that sounds great Father Dehne. and raid the refrigertator. when you’ve been eating dormitory food. fraternity parties on Saturday nights and I think I’d have a conflict.R.R.C. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. so. "Great." I said. Maybe we could get Father Weiss to come along. of course. I couldn’t figure it out on the spot. Now what was I going to do? "Well. was Kansas City Arrakis. Father Dehne. I thought to myself. Well. I thought to myself. that is the Planet Dune.
Good is pitted against Evil. I just don’t think that is done anymore. Not much talk about God. is it Father Carl?" I asked. I find the term “Jurisprude.87 a bit of a philosopher. "Well. Now. "O." I said. at least not consciously." replied Carl. what would that be?" I asked. of course the answer is that Carl Dehne and I took the C.K. 87 John Snowden used the term “Jurisprude. you know. the first think I’d say about Starwars is that unlike Star Trek. Now I heard that." was all I could say. "This isn’t part of the Jesuit rush program." And so I did. Evil is Ying and Good is Yang. what does this have to do with Luke Skywalker and the Void..” to be a little bit 81 . almost as if He doesn’t exist. however. I muse about Starwars a lot. only the Daoist Force. the Jesuit Residence. thing and be a Crucifer. "Oh.C. "Rush program. Now. I’ve been hooked on Starwars ever since. For some reason." said Father Dehne. Well.” when I was in law school.. for once at a complete loss for words. 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. kids Nick and Billy to see the original Starwars movie when it first came out.this. Starwars is clearly a Daoist Universe. The Force clearly being the Dao. Dallas? "The J.D.D. looking for deeper insights." said Father Carl. and... and an amateur theologian. or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force." I guess I can do the C. "whatever could that be?" "Well.C.” rather than “Jurisprudentialist. Father Carl. but what the hell did it mean? I couldn’t figure it out. Tony. .R. "Oh. being a jurisprudentialist. I think since Vatican II we just expect vocations to fall from the trees. Now.
The Absolute. So Luke descends into the bowels of the earth. on his Shamanic Hero’s journey into the subconscious (see generally. Luke lights up his light saber and engages. as such does not really exist. apprentice Jedi Knight. what is my gloss on this situation? Well. But before Luke fully developes his powers he must first be trained by his Daoist Master. 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. Luke’s. Hell is more of a state of being rather than a place. One could describe the Void as a place. own face. Luke vanquishes Darth Vader. Luke then bends over Vader’s body and takes off his mask. In the Hollow of the Tree. or otherwise. in the Underworld. but it is a different kind of “prudish. Campbell’s book on Myth). Finally. 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. finds his. I would say that the Hollow in the Underworld represents the Daoist Void." in substance. Good Guy. where Kirk is found and (rescued?) by Captain Picard and Riker. Thrust. In the lore of the East. Now. riposte. one enter encounters a different world. as perhaps Henri Bergson might put it.” for me to use. in the hollow of the tree must you go and say more I cannot. and Hero. He runs out of the Hollow and back to ordinary reality. the battle goes on. says Yoda. after death. and to Luke’s utter surprise.Into all of this steps Luke Skywalker. Hell. what’s the point? Well. Luke goes through a variety of training exersizes. the point is that in the East. When one enters The Void. and then one day Yoda gives Luke an unusual instruction. Luke is shocked. "Luke. parry. only the Void. 82 . or. within what he thought was Vader’s Helmet. not unlike Beowulf. Yoda. So.
In Jungian terms. Just like I tell my students in my law school classes. Who you are is what you get. his nemesis. we judge ourselves in The Void. I personally don’t think that Hell. and then to make amends for what we have done. On the other hand. The Void immediately dishes up for the participant a reality which reflects at the core. as such exists. So there it is. "The Sermon on the Mount. Luke finds Darth Vader. So. for one who is in The Void. As many New Age writers point out. and finds within the self which is Luke. and He. Where does God fit in? Well. maybe you or I will find Jesus in The Void. Instead of finding God. will help us to withdraw our projections. food for 83 . after death. God doesn’t judge us. it’s the other other way around. then you will find Heaven in The Void. in The Void. But. My gloss on Star Wars and Luke Skywalker. I do believe that The Void exists. that is his persona (Darth’s? Luke’s?}. then. back to Luke Skywalker. This is of course confirmed when Luke takes off Darth Vader’s mask. even if we have screwed up. Rather than the Void imposing its reality on the participant. but I won’t. Now. I could stop here and play it safe. as Fox points out in his book. So. get our psyche shaped up. 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.place. like Yoda. not only for Himself. The Void immediately manifests back to the participant the particiapant’s projected Shadow. If you are genuinely a horrible person as a result of your own free will." Jesus transcends all Karma. or an Angel. it’s a little more immediate. or a Goddess or a good friend. but for us. If nothing else. with a little luck. his enemy. "What goes around comes around. if you have been a remarkably good person on earth. who and what that person really is." except of course in The Void.
CHAPTER VIII CRITICAL THOMISM. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based. is the author of "Insight. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. "Method in Theology" (1971). and. A Study in Human Understanding (1958). Papers by Bernard Lonergan. S." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy).’ in "Collection.88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest.J. as originally developed by Jesuit Philosopher Bernard Lonergan. ‘Cognitional structure. continuing with understanding. neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. 84 89 . and then culminating in a third cognitive 88 Bernard Lonergan. knowing involves at the least a set of three interrellated cognitive operations beginning with experience..thought. in part. upon the Critical Realist philosophy. rather.
and judgment/reflection. or reflection. as outlined by Lonergan. see ‘Cognitional Structure’ in "Collection" above.operation which is judgment. 90 85 .90 For a general discussion of the cognitional levels of experience. understanding.
citing. why. Ken Wilber. a naively idealist view of the "already-out-there-now-real. on level two we would find actuality. body. Attempting to consider these categories in terms of logical questions relating to law. Bernard Lonergan.." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough. the notion of Being valuing found in Maslow is also similar.T. Ecology. Suzuki. can be found there as well. it is at level three." 251 (1958). and on the third level. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. Fejfar. in analyzing law. and spirit (intellect). a matter of logic and policy. "Sex. we in fact find "reality. on a second level. Actuality is discussed in Erik Erikson’s psychology.This tripartite structure of experience. understanding. mind. D. Perhaps Nirvana or Heaven can be found at level two. postmodernism itself. what?. For example. on the first level one would ask the question how?." 86 . Anthony J. a matter of values. one can see that law can first be seen on one level as a matter of power and authority.. at least Existential Hell."95 All of the foregoing can be illustrated to some degree using the 91 See. and on a third level. one would ask the question. is consistent with other ways of relating to the world around us. 92 93 See Ken Wilber. but in my view could also be described as "Zen Realism. 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding. on level one we would simply find "reacality" or illusory sense experience93."94 Finally. one would ask the question.") (p.92 Additionally. "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act. rather reality was thought to be found on three levels. and Spirituality" (199x). on the second level. and judgment." 681. 683 (1986). "Boomeritis. 128).? Consistent with Buddism. "Insight: A Study in Human Understanding. and. but in some sense perhaps Hell.
Intellect 2. On the other hand. taken from Lonergan’s work may be useful. The following illustration. You reach the shore of the pond and stick the branch into the water. Now a part of your mind "knows" on the level of understanding 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. experience and understanding. in conjunction with past sense experience. because in fact the laws of biology. Newtonian Physics. in the first instance." This is a perfect example of how one’s mind can in the same 87 . 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. Because of the refraction of light. The branch is six feet long and straight. suggest to you.chart below: Fejfar 3. the portion of the branch below the water looks crooked relative to the portion of the branch above the water. that the branch "really" must be straight. perhaps the empiricist or the logical positivist doubts that there is a difference between. another part of your mind which is utilizing current sense experience. "sees" that the branch is "crooked. Mind 1. and chemistry.
Now all of this raises a third question. it is apparent that experience by itself. "Truth and Method" (2nd Ed.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. in distinguishing judgment from experience. and the levels of understanding and experience on the other. These occur primarily on the level of understanding. 96 See generally. First. As Gadamer points out to us.1992) 88 . is merely a collage of mixed sense impressions. and at same time on the level of understanding "understand" the data differently on the level of understanding. Hans Georg Gadamer. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest. how is it that we can differentiate between the level of reflection or judgment on the one hand. 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. as such.96 knowledge cannot come to us apart from mediated meaning categories.
359 (1925)." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982). Fejfar. There at least two possible responses to this objection. Suzuki. in fact.Now. The Theory of Judicial Decision: or How Judges Think. quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly.B. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. and transcend them to form a judgment of real fact or a reflection on or of deeper reality. Radin. Zen Buddism suggests a similar procedure when it says that to know the rock. "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education." 14 Cornell L. or reflective knowing at level three.. Fejfar. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory. "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance. one must "become" the rock.A. Perhaps. see Nick Herbert. integrate them. "The Atman Project." citing. "Quantum Reality: Beyond the New Physics. In any event it is clearly a Zen Realist type statement. "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. Anthony J. 274. from a Critical Thomist point of view. Volume II).100 So perhaps as the philosopher Henri Bergson suggests. 99 Or." 11 A. In some sense judgment and reflection reach beyond mere understanding and mere sense experience. 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.T. but I can’t find the cite for it. and." 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. Nick Herbert. 357. Judge Hutcheson. it is also my reading of the literature that an "alinear" or 89 100 . An Excursion Into Metaphysics" (1985).J. See also. it is possible to 97 For a discussion of intuition. Ken Wilber. 285 (1929) (quoting.99 While this may sound far fetched to the man or woman in the street.Q. However. perhaps it doesn’t. I’m sure that I read this "koan" type statement in a book by D. see Anthony J. First. sublate98 them. at a distance. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature.
Now. and quantum indeterminacy." since all that quantum physics seems to postulate is a probabalistic universe anyway. one would be clearly embarking into measurements which are more clearly taken in the quantum range. if we were to take the equation Force=Mass x Accelleration. if sufficiently precise measuring devices are used. Thus. then. On the contrary. using classical newtonian physics. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. and then we would get identicle results. this is perfectly consistent with "intuition. Instead there would be a statistical spread. will produce probablistic variances. I would argue that every conventional experiment that is undertaken. that such a probabalistic universe is unverifiable. and thus would clearly be more bound by quantum indeterminacy. in this sense that Bernard Lonergan states "asymetrical" message can be sent. only a probabalistic one. it is not possible to "send" a perfectly linear message. the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like. and a timer. However. Because of Heisenberg’s indeterminacy theory. the conventional scientist might object that we simply need a more accurate measuring device. and with a Force measuring device at the bottom of the ramp. 90 .have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. It is possible. However. One might object that from a Newtonian point of view. rather.
It is here that language and interpreted data are collated. At level two. 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. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. or solutions to the problem. however. 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.f. see. In doing so we can make both judgments of fact and judgments of value. Given two seemingly logical explanations of the data.. On level two there is a logic of analysis. My argument is that a different type of "logic" operates at levels one. but rather only reasonable judgment. C. Fejfar. B. Nancy E. A. remain. compared. A Question of Horizon. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. therefore. A second way of distinguishing levels two and three is simply through the use of logic. 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. Panacea or Plague. Law Journal 859 91 101 . and contrasted. Barton. Block. then. further questions." 17 Del.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. and three. or even in some cases overrule logical "rational" results and reason to judgments of some type. Radin. B. Anthony J. two. Ideas are analogized and distinguished. At level one is a logic of movement or operation. Symbolic logic reigns: If A. It is not purely The business judgement rule does not require "perfect" judgment. Dennis J. For a discussion of critical realism in the context of management decision making. Stephen A. "Corporate Voluntarism. "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.
and logic cohere into probabalistic assessments as to whether or not some state of affairs exists.." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers. As Lonergan puts it. "The and Ethics of Lawyering 156 (1999). interpretation. as a practical matter. On level one on the level of operative logic. 92 . Geoffrey C. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. applying hermeneutics. On level two. Koniak. Now. or negligence. the sign and the language it contains simply commands us not to walk. Instead. for example. let us consider a "Don’t Walk" sign in a crosswalk. even though it really is not. two. So. it is simply the case that in this instance we could have done better. Jr. Additionally. with the elements of the cause of action for legal malpractice being: duty. 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. Also at level two we must assess the underlying policy of the rule "Don’t Walk." Put another way. Cramton. and damages. somehow sense data. the standard of care is one of reasonableness. we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. causation. one can distinguish levels one. logically. breach. as Lonergan points out.syllogistically logical in nature. Hazard. three. Susan P. in the context of decision making. if it turns out that our provisional judgment based on probability is not correct. the probability judgment "kicks over" into a de facto absolute judgment of fact. Roger C. when the probability level of a judgment goes high enough in one’s mind. it is not true that we are incapable of making better probabistic judgments or assessments.
All these values would be taken into account in assessing policy. with my earlier thesis. at level one we ask How?. Anthony J. at this point we again have to question whether there is any difference between level two operations and level three operations. 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. Fejfar. at level two we ask. Now. so does freedom. Level three reason or judgment intends value. 93 104 . the value or values. at a deeper level it can be judged that order itself has value. so does protection of human life and of human property. The above then is consistent. Critical Thomism. C.f. and in this context. and a level three." for example are purely "reified" terms which cannot be taken seriously. "Method in Theology" 34 (1971) ("Value is a transcendental" notion).104 While previously I spent an entire article 103 Bernard Lonergan. we ask Why? The logical positivist will undoubtedly ask. The Critical Realist position is that level three judgment or reason in this context intends value. "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. interpreting language. that from a purely logical point of view. Thus." and "reflection. is it not the case that "judgment. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. What?.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article. and in the final measure determining which outcome is the most "logical" at level two.assumption that there are reasons or policies underlying rules in general. and. Here.. perhaps.103 Thus while level two intelligence intends an analysis of policy as such. underlying the policy. suggests three levels of different logic."). whether or not a "lamp" is a "reified" object and thus not "really real.
94 .105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid. but in the end it is an incomplete philosophy compared to Critical Thomism. logical positivism can offer us much in terms of level two analysis.addressing the foregoing type of objection.” The idea of levels of growth or maturation or 105 See. let alone “doing” Critical Thomism as a philosophy is the “Level Thing. CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. id. As a matter of both epistemology and cognitive psychology logical positivism is inadequate." In the final analysis.
themselves as Icons. in his ethical theory. On the Desktop there is the Icon “My Documents.” Sublation means that at every level the higher level transcends the lower level or levels.” You then double click on the Folder Icon “My Photos. “Fishing with Dad. itself. the lower levels are not lost.” etc. really only goes up to level 6. adds something new. 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: . Imagine that one folder is the Folder entitled “My Photos.” 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. and later in Ken Wilber’s work. Now this is very hard to conceptualize for a lot of people but perhaps this example might help.” another. but also includes and integrates them. but also the notion of “sublation.” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos. is not only the important concept of levels of thinking or concsciousness. What you find in both Piaget and Kohlberg. which. So. of course. Kohlberg. Imagine that you have a computer with a desktop.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg. One being “On the Pond. rather they are included in a new and higher integration. So.
on the subfile/picture level. or alternatively. and a task menu pops up with different operations. At each level let’s say that you can right click on the Desk Icon. On this level you take a picture of a Pond and then either save it to memory at level one. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. thus creating the gestalt Desk “Pond Icon” at level three. you are about half way there. let’s say your “mind. At level three at the Desk Icon Level. which is a gestalt of the first two operations (levels one and two). Of course if we were dealing with a “picture” which involved all five senses at level one. there it is. and then upload it to level two for processing. you immediately upload the Pond picture to level two for saving to memory and processing. or File Icon. using a photo editing program. Now. deepening the colors. This is the level of sense experience. You then upload the level two “processed” picture to level three.. “understand” the picture by cropping the edges. A little example of how you might organize your mind as a Critical 96 . ala Bergson. But the other trick is this. at level two. but which also adds a new “intuitive” operation which gives more depth of field to the picture. can access a remote digital camera which takes a picture.e. changing the contrast. perhaps not unlike the “image schemata” discussed by Lakoff.” (do this in your imagination if it helps) at level one. perhaps your computer is programmed so that you can process. i. So. if you understand what I am trying to get at above. Folder Icon. at the “Folder” level. let us imagine that a new Desk Icon has been created. So.Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So.
Try it all in your imagination. however.” and collectively. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired.” help to structure and partially constitute our individual “way of being. Use different metaphors and examples. Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious. what he calls “archetypes. Tom has spent a lot of time thinking about Sir Thomas More. our communal “way of being.Thomist. Experiment. such archetypes function as “forestructures of 97 .” It is in our own unconscious that “deep structuring” symbols and metaphors. I’d like to take a Chancellor of England under King Henry the VIII.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering. In this article.” As Hans Georg Gadamer might put it. Good luck. 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.
. the Readers. 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.m. what do you look for as your role model.. to help clean up your gradeschool kid’s puke at 4:00 a. Now. loved and adored. the Ushers. there are two choices: Simon Peter or Doubting Thomas. somehow make it through the next day. Critical Thomism holds of Saint Thomas the Apostle. people who belong to the Alter Society. to help a baby with the colic get to sleep at 2:00 a. and then. people who say the Rosary.” 98 . Now why these two? Well. and not Thomas More. So for our heros we must have heros who. in the end. when you think of realpolotik in the Catholic Church–people in the pews. Thomas L. in the morning and still stay up with him.. No. and then later on. to change baby diapers. People might not admit this.” not Thomas Aquinas. must some how have failed–otherwise we’re damned.. the Knights of Columbus. that’s the ticket for us. “On Being a Christian and a Lawyer. Perfect imperfection.knowing” which help us to think and to know.” they think of Saint Thomas Aquinas and the Summa Theologica. but still failing. in doing this.g. your hero? Well.m. but I think this is it. for many of us. we 106 See. They want the kind theology that helps to get and keep a good job. Now. you come to understand that one of the primary criterion for their theology is durability. most of us spend a good deal of our time trying very hard to do the right thing. in the morning. that is “Doubting Thomas. Now. they might not even know it consciously. at least part of the time. I would like to suggest another type of Thomism. e. even idolized (in a positive sense). however. when people typically think of the idea of “Thomism. Shaffer.
who. felt. Simon Peter. is the one who after the resurrection. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. and for the Legal System. shows up. Whether one reads the Bible as literature. This is Petrine Lawyering. Simon Peter denies Jesus three times before the cock crows. refuses to believe that Jesus has resurrected. The Apostle Thomas. and who stayed the course and stayed in the Church. reasoning. or a Divinely Inspired. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. Well. First. is the basis for law. essentially. what does this mean for we Lawyers. or experiencing. it means that we have two foundational apostolic role models for Lawyering. human in the first instance. and insists that Thomas feel the nail holes. Simon Peter is the Archetypal Imperfect Authority. Jesus. Authority. only metaphorically. It takes the adept Lawyer Paul. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law. feeling. you Thomas have believed because you have seen. and side. as you may recall.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. on the other hand. later on. insisting that the early Christians observe both Kosher as well as adult circumcision. rule based in the second instance. Now. and yet he still is the Rock upon which Jesus builds his church. takes a stab a Lawyering. experienced. of course. before he (Thomas) would believe. rather. and legal 99 . Jesus simply says.” who Jesus obviously loved. I don’t mean they were literally apostates. the legal system. whom he relied on. blessed are those who believe without seeing. Now. believes that reality and law must be based upon authority. as a Critical Thomist. we have Simon Peter. What we want are the two “Apostate Apostles. feet. Instead of condemning Thomas.
or in Platonic terms. This is not apostacy as some Petrines might think. bet on Simon Peter. they follow Jesus. On average the Popes seem to do pretty well. completely and absolutely and ultimately consistent. When Faith and Reason “appear” to be at odds with one another. and of Papal Authority. right. as the Logos.. What is right is what the authority says is right. Judicial Authoritarianism. Now. taken as true. For them the Pope is it. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. The Divine Word. Simon Peter. instead of following the Pope. instead it is Faith that Faith and Reason are totally. all of whom. guided of course by the Holy Spirit. are remarkable suspicious of both the Petrine outlook. This was Jesus’ promise to us in the Gospel of John. and in doing so on Papal Authority. conventional people. but because he’s. it really isn’t such a bad bet. Divine Reason. sooner or later we will sort 100 . Reason Rules. at least archetypally are seen as ruling on the basis of authority. on the other hand. totally consistent. The Critical Thomists. “Creative Form.practice.” For the Critical Thomist. God is “right” not because He’s God. There is a certain school of thought that Rome rules best when it does nothing at all. as a given. Although this may take a little time. The Incarnate Word. And you know. Critical Thomists have Faith–it’s just not Faith in Authority. the Apostle Paul. and perhaps. and presumably God the Father. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. this is simply a temporary glitch. that’s the ticket. and perhaps typically are. Just let the ancient wheels of the Church roll along themselves. lawyers or no. concrete people. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. For Critical Thomists. well. Faith and Reason are assumed to be. rather.
Saint Thomas the Apostle is the Patron Saint of Critical Thomism. it is my argument that they Lawyer best when they start with reason. by starting with experience. not because we have unthinkingly and unreflectively followed authority. If we are to be judicially damned or canonized it is because we have thought things through. and thus “know” reality. Now. and then finishing )(provisionally) with judgment and reflection.things out and we will find a reason based way of reconciling any apparent contradiction. Doubting Thomas. Our Patron Saint is the “Apostate” Apostle. This is the intellectual approach to living. A totally different way of thinking. then go to the authoritative statement or rule. Although Lawyers certainly use authority. going to understanding. and then finally to reflection or judgment. 101 . and inductively. from my point of view. As Lonergan tells us. we think critically. and reason inductively starting with experience. and then deductively apply the rule to their experience. going to understanding. One suspects that the Petrines start with the person of authority. how does “Doubting Thomas” fit into all of this? Well.
Of course I don’t remember the original story as such. black cotton cloak. religion class. I told a story something like this to one of my law school classes last year. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. just to make it fun. maybe 8th or 9th grade. Now. Perhaps he reminds you of The Shadow. for me The Hangman. black silk shirt.C. black jeans. Now. and I think it had the appropriate effect. the first thing to know about The Hangman is that He always wears black. I mean. No. but I guess its fair to say that I also saw it.D. I sort of heard it.CHAPTER X THE HANGMAN The Hangman. black gloves. A kid’s word game? For most of us perhaps. But not for me. the dark side radio hero. But. involves a story that I first heard in junior high. in person. black hat. but I do think I’ve got the general gist of it. Black boots. the details. I’m going to tell you the story of The Hangman. the 102 .
His eyes were like obsidian orbs. The sweep boy saw him first. Then he. a butcher shop." said the Marshall. He rode into town slowly with the sun at his back. except his skin. The man in black squinted his eyes even further. ten gauge. His bear gun. and spat down on the ground. "Howdy stranger. with shells filled with double odd buckshot. cat got your tongue?" said the Marshall. He got a third of the way into town. a lumber yard. He was armed. he had on a double rig of six guns.two are not the same. a livery stable. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. and of course a fair number of houses. looked at the buildings of the town. Hello stranger. of course. and the boy ran to tell the town Marshall that a stranger was in town. colt navys. a saloon. The town had a dry goods store. a hotel. typical. and the townsfolk that were 103 . Purgatory was a nice town. creating black shadow in front of him. black as pitch. "I said. 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. The man in black just waited. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. here goes. So. was a prosperous little town called Purgatory. in Nebraska Territory–the Kansas part. down Main street. what can I do for you. the man in black. Everything was normal. by the looks of them. Back in the Old West. a gunsmith. hacked up some flem. unless of course you had to cross a street. His skin was a very pale white. The people went to church on Sunday. and a bowie knife with a jet black handle on his belt. He stopped and looked. Soon the Marshall came out with a double barrel shotgun. until any of the townsfolk noticed him. Everything was black about him. a hardware store.
But the Hangman just stared even harder at the Marshall. The Hangman rode down Main street past the Marshall a half a block. I hang people. the man in black said. but it all stopped when The Hangman stepped inside. and right now it means that I am going to the saloon and get a drink. cowboys drinking beer. I solve all your problems. "I think it means whatever you want it to mean Marshall. Then the Hangmen waited a moment and looked to see if anyone else was 104 . He slammed it down. I’m The Hangman. "What’s that supposed to mean?"asked the Marshall. Then. and threw two bits on the table and turned and scanned the room. listening to piano music. I don’t like black. playing poker. hacked some flem. Finally. like a black cougar. I thought you might have some business for me. The Hangman walked up to the Bar and ordered a whiskey.. and strode into the saloon. got off his jet black horse. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. what kind of business. supple and strong. mostly for committing crimes." asked the Marshall. why don’t you just mosey out of town before you get hurt. The Marshall couldn’t take it. "I’m The Hangman. and spat again–this time the spit landing only a foot away from the Marshall’s right boot." A drunk cowboy stood up and said. "Listen all of you. and tied the reins to the wooden bar in front of him.. and behind him to see if the bartender had his shotgun out. I help make the world a better place. and I do that by hanging people." said the Hangman. The Hangman stretched." The Hangman’s eyes squinted even further.beginning to congregate." "Business. and I don’t like hangmen. His eyes squinted. he just couldn’t keep eye contact and instead looked down at the dusty street. and I don’t like you. Then he said. "Oh. The saloon was crowded. He glanced to the left." said the Hangman. "Mr. The bartender didn’t. especially your town.
The shot went wide and broke the mirror behind the Bar. another whiskey. calmly aimed. So. I can’t tell time. a nice prosperous town like this should make someone like me feel welcome. but then it was done.? asked the Hangman. "Yes sir. what time is it?" "I don’t know mister. "No sir." answered the Boy. He just laughed." said the Boy. "Can you read?" asked The Hangman. He then went to the Hardware store and bought some tools and started to work It took him a week. "Well. and to protect the town from and further 105 . "Hey Boy. "Anybody else care for a shot. He had some lumber delivered to the end of town. son. tested. "Son. "I know you don’t understand this. but this is for your own good. and place a bullet through the forehead of the cowboy. The next morning at dawn. the Hangman’s Switch. you had better come with me. you have cognitive dementia. The Hangman didn’t even move. The cowboy stared into infinity for a second then fell on the floor and died. Then The Hangman walked to the Livery Stable." said the Hangman. "Well son. A wooden gallows had been built. without paying. "Well." said the Hangman." said the Boy. you have cognitive dementia.backing the cowboy’s play. "Bartender." "What is sir?" asked the Boy. The Hangman took the Boy down the street to the gallows. Suddenly the cowboy went for his six gun. He drank the whiskey and this time simply smiled at the Bartender and walked out. The Hangman walked from the Hotel where he spent the night to the Lumber yard. Son. No one said a word." said the Hangman. No one was. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy. and so I am going to have to hang you until dead in order to put you out of your misery." said The Hangman. The Stable Boy was cleaning up horse manure from the stable floor." said The Hangman. I guess I feel like staying.
I’m going to hang him now. that’s a hanging offense in these parts." A few people laughed." said the Hangman. "You know. He didn’t know what to do. We need to put him out of his misery. Soon a crowd had gathered. "But. "This boy has cognitive dementia." "I am here to help you clean up this town." "You are to be commended for helping to clean up this white trash.. no one said anything. He fell through.. "and this is a good town. Although twenty men were there who were armed with six guns. the Marshall just can’t get the job done anymore." said the Hangman." said the Hangman. The Hangman tied the Boy’s hands. Luckily for the Boy the rope was placed just right. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall. put the noose around the Boy’s neck. no one drew their gun." said the Hangman. The Boy froze with fear. this boy is a wastrel and a blight on humanity. A few people cried. He left and the crowd went home. He deserves to die. The trap swung out from under the Boy’s feet. Unless anyone objects. and the Boy’s neck was snapped. He is dead weight and dead wood. The next day the Hangman went up to the Marshall. and then pulled the lever. "Marshall. His mind blanked out with panic. And so the process repeated itself. I guess this confirms it.leeching of yours off the common good. "Anyone here object?" 106 . killing him instantly. The townsfolk all say that you are dead wood." said The Hangman. The Hangman said. He couldn’t even stop me from coming into town. Marshall you know that you simply cannot be a dead weight here anymore. Well." he continued." said the Marshall. you just can’t get the job done anymore. "You are good people. you seem a little overweight to me. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk." "You won’t be needing this anymore Marshall. as he pulled the Marshall’s six gun out of his holster. thank you for your help." said the Hangman. "Yes.
" "Well Boy.continued The Hangman. I answered it. everybody does the right thing. isn’t that true?" "Well mister." he promised." said the Hangman. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here. "If you follow me. "In order maintain order and authority in this town. he is the only authority." "This Boy is guilty of gross deriliction of duty and insubordination. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together. you don’t need one." said the Hangman. and down went the Marshall. "Now Boy. in the boy’s mouth so that the Boy couldn’t talk any further." said the Hangman. when the Hangman is here everybody figures it out. no one said anything. I will give you a well ordered society. "Now Boy. I need some help up here. black as night. the Boy must die. he called out the 107 . and you know that is wrong. The Hangman cut the Marshall down and retied to hangman’s knot." he continued. Any objections?" This time. you must know that. "You have questioned my authority. here. Once The Hangman come to town. "The Hangman." And then the Hangman pulled the trap. Although unarmed. "What will the town do without a town Marshall. The next day the circuit judge rode into town. as you very well know. he didn’t want to go near The Hangman. you will hang seperately." said the Hangman. The Boy started crying. I was just testing you and the townfolks." said the Hangman. "Well." seeing that the Boy was going to reply. I am a dementer from Hell set loose on earth to test you. you asked a question. But the crowd pushed him forward and up the steps. The Boy stood their shivering. quickly stuck his handkerchief. To everyone’s surprise. The townsfolk applauded." said the Hangman. a Boy asked. dead as a door nail. what else was I supposed to do?" "Son don’t be smart with me." said the Hangman.
The Mayor balked." replied The Hangman. Inside was the Mayor." "Grab this vile judge and take him to the gallows. "The Hangman doesn’t need a trial. each day another hanging. And down went the judge. hanged by The Hangman. I run things." "What then am I to do. and then down she went. Each day a new accusation. "Not me. All the rest were dead." 108 . It took awhile of course. Only The Hangman has real power. The next day the Hangman called out the Mayor onto the street. his demenour. you are the last one. The Mayor looked over. that was the town Mayor who had "passed it on" to his wife. These people you have hung have violated no law and were given no trial. Only The Hangman can save you. "those who were hung were trash." said the Hangman. but this did not stop the Mayor from carrying her limp body to the gallows. The Hangman crossed the street and went into the Barber shop. the good people of this town knew it. And so it went. so the story goes. "You can’t just hang people." responded the Hangman. Only The Hangman gets things done." said the Hangman. From the Hotel.Hangman into the street." asked the Hangman. "I pass it on to my wife. the rule of law is a myth designed to deceive you. The Hangman and the Mayor revived the Mayor’s wife with smelling salts. your honor. "What is it you want." said the Mayor. A couple of months. "We are making progress. but finally there was only one person left in town other than The Hangman. you can’t get me. tied her hands. its your turn. "he is the cause of all of your problems. And so they did." A crowd had gathered. giving himself a shave." said the Hangman." said the Hangman to the assembled crowd. The Hangman came out." The Mayor’s wife fainted when she was called out." said the Judge. "Mayor. "See this judge. this is my town. and approved. cold as night. to keep you enslaved. set the noose. take here instead. "Well.
"and if you didn’t you should have asked. "Yes you did. I’m safe." said the Mayor. "But I didn’t really understand what you said. letting me win." said the Hangman. and down the Mayor went." "Did you really think that would save you. then you can rest assured that there is a well ordered town here in Purgatory. "I passed it on. The Hangman smiled a smile of satisfaction. He got his gear." "And now. Is the next town yours? 109 . The noose was fixed. "But there won’t be anyone left. "Exactly. A job well done." asked The Hangman. Remember I told you early on in the process. and slowly rode out of town looking for the next town." but instead you all chose to hang separately. let’s get this over with." said the Mayor." said the Hangman." said the Hangman. put me back in Hell under the Rules of the Game." said the Mayor." "All of you could have hung together as a group and opposed me. the hands tied.said the Hangman. "Me. And so up the steps of the gallows they went. saddled his horse. "Either you hang together. or you hang separately.
just to make it fun. I told a story something like this to one of my law school classes last year. the details. I sort of heard it. in person. the first thing to know about The Hangman is that 110 . Now. religion class. but I do think I’ve got the general gist of it. involves a story that I first heard in junior high. this is another story dealing withe The Hangman. But. But not for me. in the end. A kid’s word game? For most of us perhaps. and I think it had the appropriate effect. at least at the beginning..C. maybe 8th or 9th grade. Of course I don’t remember the original story as such. quite different. for me The Hangman. Now. I mean.. No. The Hangman. pretty close to the last one.D. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. I’m going to tell you the story of The Hangman. but I guess its fair to say that I also saw it.CHAPTER XI THE BARTENDER Well. ..
of course. a hardware store. Purgatory was a nice town. Black boots. and of course a fair number of houses. creating black shadow in front of him. black silk shirt. 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. black hat. Hello stranger. Back in the Old West. here goes. with shells filled with double odd buckshot. a saloon. "I said. the dark side radio hero. down Main street. The people went to church on Sunday. except his skin. black jeans. colt navys. by the looks of them. and a bowie knife with a jet black handle on his belt. He stopped and looked. a butcher shop. Soon the Marshall came out with a double barrel shotgun. So. The town had a dry goods store. His skin was a very pale white. in Nebraska Territory–the Kansas part. But. Everything was black about him. He rode into town slowly with the sun at his back.He always wears black. unless of course you had to cross a street. black gloves. a gunsmith. a livery stable. black as pitch. Everything was normal. cat got your tongue?" said the Marshall. Perhaps he reminds you of The Shadow. "Howdy stranger. he had on a double rig of six guns. He got a third of the way into town. black cotton cloak. typical. a hotel. The man 111 . The man in black just waited. what can I do for you. until any of the townsfolk noticed him. He was armed. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes." said the Marshall. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. His eyes were like obsidian orbs. was a prosperous little town called Purgatory. a lumber yard. the two are not the same. ten gauge. His bear gun. The sweep boy saw him first.
looked at the buildings of the town. especially your town. I thought you might have some business for me." said the Hangman. I don’t like black. and I don’t like hangmen. Finally. "I’m The Hangman. playing poker. got off his jet black horse. and strode into the saloon. Then he. "I think it means whatever you want it to mean Marshall. I help make the world a better place. supple and strong.. what kind of business.. listening to piano music. and spat again–this time the spit landing only a foot away from the Marshall’s right boot.in black squinted his eyes even further. the man in black said. like a black cougar. and the townsfolk that were beginning to congregate." said the Hangman. and threw two bits on the table and turned and scanned the room. "What’s that supposed to mean. "Listen all of you. and right now it means that I am going to the saloon and get a drink. "Mr. and tied the reins to the wooden bar in front of him." A drunk cowboy stood up and said. The saloon was crowded. His eyes squinted. He slammed it down." asked the Marshall. Then. the man in black." The Hangman’s eyes squinted even 112 . The Hangman rode down Main street past the Marshall a half a block. why don’t you just mosey out of town before you get hurt. "Oh. mostly for committing crimes. I’m The Hangman. hacked up some flem. I solve all your problems. and I don’t like you. and spat down on the ground." asked the Marshall. cowboys drinking beer. I hang people. The Marshall couldn’t take it." "Business. But the Hangman just stared even harder at the Marshall. The Hangman walked up to the Bar and ordered a whiskey. The Hanman stretched. Then he said. he just couldn’t keep eye contact and instead looked down at the dusty street. hacked some flem. and I do that by hanging people. but it all stopped when The Hangman stepped inside. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down.
a nice prosperous town like this should make someone like me feel welcome. Then. its totally fair since only a Thomist can even carry a Peacemaker. "I suppose the ciruit judge will be here tomarrow. do you Hangman?" said the Bartender. as he walked 113 . "Well. and behind him to see if the bartender had his shotgun out." "It’s really not fair. "Why?" asked The Barber. The Hangman should have known better. "Well." said The Marshall to The Barber. "Well.further. Next day was the trial. lock him up. "Wher’d you get that Peacemaker?" asked the Hangman. I’m charging this hombre with attemped murder. "Well.A. suddenly. Louis. son. reverse handled his Peacemaker and hit The Hangman over the head. He glanced to the left." said The D. "fast as lightning. When The Hangman fell through the trap the next day." "Marshall." The D." said The Bartender. knocking him out. a Peacemaker always wins over a Navy. is Coif. they never go down. that’s the Rule. you know the Lore. I guess I feel like staying. "Well. "Attorney at Law?" As The Hangman turned and looked up to see the shingle. "The D." said The Hangman again. I’m the District Attorney. it won’t be exactly fair if you use that Peacemaker against my Colt Navy.A. In "St. some folks even call me "The Devil’s Advocate. would it?" asked the Hangman. "See the Shingle up behind me which says. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun." replied the Bartender. I thought.A. No one was. "I don’t think you really want to hassle that cowboy. some laughed but no one cried. and the Hangman was convicted of attempted murder. I’ve never lost a case and I’ve never lost a gunfight. and on top of that. that went pretty well." said the Hangman. The bartender didn’t. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play." replied the Bartender. "Well. "that’s how they hex them." replied The Marshall." And so the Marshall dragged The Hangman’s body away.
The sociologists seem to agree on one thing however. I would like to offer a different slant on things. And so. .. that prohibition itself would be subject to a great deal of interpretation. 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 murder is the only cross cultural legal prohibition. that is. perhaps in terms of contemporary natural law or socio-biology. however.away. and then of course. at least none other than the prohibition against murder. not that I necessarily disagree with all that has been said above. our critical friends may suggest that there really is no objective basis for law. In this essay. Instead. or. CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law.
I a rather different sense. but also the basis for human dignity. in what one suspects is a rather traditional. in the first instance. and substance. Now. but that reality is based primarily upon meaning. one can see that property can be 115 . “property” hardly exists at all. property law. I suppose. 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. A Critical Thomist would say that property is real. tangible or intangible. the notion of property grounded in metaphysics as such. along these lines. that is. If one considers the three metaphysical categories of being. is the basis for all rights. would be seen as that which is judged to be “property” on the basis of experience. at least in the concrete sense.” In this sense.property. The Restatement Second of Property. on the other hand. a fixture.” with each “stick” representing some “right. defines “property” as “A legal relationship between persons with respect to some thing. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. Finally.” Well. there is the Critical Thomist understanding of property of ala critical stage theory.” If we look at Blackstone. Although it is difficult to put colloquially then. Blackstone took an avaricious view of property. regardless of whether it is real estate. Although it may seem a bit different from the Restatement approach. and reflection and judgment. that we have get some clarity about what we mean by “property.” including the right of possession. suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. form. property. or tangible or intangible personal property. he defines property in “concrete” terms simply as a “bundle of sticks. but perhaps mistakenly seen in an avant garde sense. understanding.” that is it is intangible.
seisin. If one were to think of property in terms of the metaphysical concept of being. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. of course. Finally. one assumes. typically seen as real estate. or even money. dated in the first instance from the time of Anaximander in ancient Greece. tend to see and experience it in terms of a “being” mode. one suspects. In medeival law in England. as such. The concept of substance. Idealists. 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. seemingly bordering on the occult. Metaphysically. in favor of spiritual development. Being philosophers and psychologists tend to discount the acquisition of material wealth. there is property which is property in form only. if not insoluable question of whether a mere contract. The law professor encounters the difficult. as such. as represented by the clod of earth represented the substance of the property. 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. amount to property.seen in at least these three different ways. where does this put us in terms of our first issue involving property as the 116 . 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. or simply represent contractul interests. it they approve of property at all. Well. I suspect that it would be confined to personal property. This ceremony.
or the cosmos. or in a more sophisticated economy. or the cosmos. The rights that God. which. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. once again. or the law of the Angels. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature. requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. or the Dao have in terms of our personhood are governed by Divine Law. under natural law. but we can never really sell them. has a possessory interest in our own bodies. My position is that each of us. Last but not least there is Constitutional Law. utilizing primarily the principle of proportionality. such a homesteading in the old west in America. for money. So. there is criminal law which is an extension of tort law.” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction.foundation for law in general. and the Good as a Critical Thomist Ideal. that is. in relation to one’s rights under a contract. One can certainly never be enslaved. As one comes into possession of personal or real property in a legal or customary way. that is Divine Reason. the Truly Worthwhile. and in this sense we are responsible not only to ourselves. On this line of thought. the law of the gods. one starts with one’s possessory interest in oneself. or the Dao. or perhaps with a little luck. holds title to our bodies. which. 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. God. we can mortgage our souls. but to the Common Good. Finally. or the law of the Logos. perhaps can be leased for a limited period in a human way for purposes of appropriate employment. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 .
involving Life. So. in my judgment it is better to see property as the foundation for all our rights. and compassion. Freedom of Contract. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. While a fuller discussion of this must be saved for a later Chapter. as well as those found in the Declaration of Independence. Rather than abolishing property interests as some marxists seem to wish to do. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. applying equitable rules. Germain put it some time ago. context. at least in the abstract. to contribute to the Common Good in the equitable requirement of serving those in need. must be applied in the context of equitable rules which favor relationship. and of course. it is apparent that law at every level from the Constitution on down. 118 . but also for the protection of our individual rights flowing from our possessory rights in our personhood. Freedom of Association. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. Liberty and the pursuit of Happiness.by reciprocal obligations necessary for the proper functioning of the body politic. including but not limited to Freedom of Religion. even if only taken into account equitably in concrete circumstances. going beyond Locke. one has the responsibility.
in order to rescue the child. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need.” I used to. while technically as a matter of law you might be prohibited from going onto that person’s property to rescue the child. 119 . that you could not go onto another person’s property for any reason. for example. “A Man for All Seasons. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard. but then I found the concept in Aristotle. Equity would allow you to make an Equitable Exception from the general rule of no tresspassing. if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception.CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play. So.
unfortunately. in this case the child rescuer. however. while the proloteriat are the one’s with all the abilitities. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. problems would result. Now. that once one take the Ethical Matrix into account. Christian “communism. But even in More’s case. societies are always faced with the problem of either favoring law over equity. Law being based upon proportional reasoning. then. did the right thing from and equitable point of view. in essence is based upon arational (not irrational) intuition. So. In Communist societies I think that at least ideally. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More.” not even thinking about ability.Now. poor working conditions. since the whole thing is sort of a pyramid scheme. of course. or. in reading human history. from each according to his ability. even for luxury goods. The “needs” thing tends to be a one way street. required everyone to give everything away and give the money to the “poor” or the “community. would not seem to work.” which at least for awhile seems to have existed in the early church. and poor living conditions at home. is that the politburo and the commissars tend to think that they are the one’s with all of the needs. placing Equity above law. Obviously if the Christian community runs out of rich recruits. of course. Equity is placed above law. equity over law.” I can imagine my mom. from my point of view. basically saying this. The problem.” Here the equitable slogan must have been “to each according to his need. basically abrogating the Rule of Law. at home. at least the ability to work ordinary jobs for low pay. while equity. one might argue that people could rather arbitrarily create equitable exceptions all over the place. or any mom. one might suspect that 120 . It is my position. stated the ideal “To each according to his need. cited by Marx. and so the German socialists.
in the United States we have a fair number of Equitable Maxims or Rules which help to. Who you are is what you own.” The problem is. “temper and mitigate the rigor of the law. usually for the “little guy” or the “old lady. the Law must be a Dao of law and equity. This is the Aristotelian approach. Now the solution I have come up with. that after awhile the law types get very pissed off even at this. This doctrine is similar to “promisory 121 . So in our country. however. and law has its Equity. 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. reasonably. to one’s detriment. as Christopher St. as is pointed out in one of my land use planning cases that I use in class. or.” 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. The most significant equitable rule is “equitable estoppel. They don’t want equity at all. 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 Second Coming. The other obvious option is to favor law over equity. and seem unable to distinguish the criminal playing field from the civil playing field.the reason for his (More’s) execution by King Henry VIII was that the law courts. In eastern terms. as well as the King himself felt threatened not only by Thomas More’s popularity. Germain puts it.” If one takes a position and another relies on that position.” That is. then the former can be equitably estopped from changing his or her original position. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge. but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia. Equity only intervenes in the extraordinary case.
If one “sits on one’s rights” too long then one can be deemed to have waived them. and then. even more interestingly. Under the doctrine of laches. then the original promise can be enforced with or without consideration. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity. With respect to some equitable remedies. is that all other things being equal. the equity lawyer need only plead the case in equity. The solution. is a fairly simple one. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. Another well know. such as court ordered injunctive relief. although perhaps not often stated equitable rule. or. stating that there is no adequate remedy at law because at law no joinder on causes of action is possible. at least on the east coast of the United States. again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches. This is an American thing. Waiver and laches are also important equitable rules. often denominated the “Chancery Court.” which sits wholly apart from the Common Pleas or State District Court.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. there is a completely different court. that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. one can be barred from asserting them. and before that an 122 . however. plead all of one’s legal causes of action at law in equity. equity favors the little guy. similar to a statute of limitations. Now. 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. find them no longer enforceable. After seeing this situation. of course.
where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause. and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. At the same time. 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. 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. In America you get it from the Old Westerns. Equity finds certain contracts unconscionable if a part to the contract in whole or in part meets the factor test of lack of sophistication. and typically are. widows. returning from the Crusades. is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. rational and autonomous 123 . When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. lack of knowledge. and all of England suffering under unjust taxes levied by the Evil King John. presumably at the Battle of Runnymeade in 1215. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. or lack of bargaining power. and orphans. this is what Equity is like. So. 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. Equity favors the little guy. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. the tale of Robin Hood is told. or at least ridiculous rules de facto in the particular context. Equity seeks to find exceptions to otherwise ridiculous rules de jure.English thing. where Sir Robin of Locksley.
we see the value of the structure which law provides. 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. surpisingly enough. also.actors in the marketplace. we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. One of those commandments is commonly interpreted as “Thou shalt not kill. were killing others. with law and equity at the same level. and as a legal 124 . CHAPTER XIV THOU SHALT NOT MURDER In the Bible. as an amatuer scripture scholar. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire. When we see Equity and law this way. Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. whether one studies it as literature or as Divinely Inspired. obviously enough. in many instances the common sense household rules that our parents applied to us when we were kids. the Roman Armies. Later.” Yet. but. the flexibility and compassion that equity provides. and. So. of course killing many in the opposing armies. what do we make of this? My gloss. including Catholic Christians.
criminal law. and finally Constitutional 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 . We are not only to live. let alone achieve material or any other type of success. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness.” Now. and then applying the Ethical Matrix to every situation and rule concretely and abstractly. As stated before in the Chapter on Property. is that what is really meant in the Commandment is “Thou shalt not commit murder. Dovetailing on that earlier discussion. we eat grain that has been harvested before the field has gone fallow. Depressive suicidal impulses are considered signs of illness physical or mental. we live in a world where we as human beings are required to kill to survive. in my view. Besides. ends up being de fact satanic. which includes the injunction not to commit murder requires that we not commit murder in order to survive. Divine Law. we “kill” all the time. contract law. tort law. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. Even beyond this. What is Divine Law. utilizing Rational Self Interest. that is. again? Divine Law is simply starting with the natural law prohibition against murder. By reason of natural law we have a survival instinct. It is easy to see that if one cannot kill in self defense. we are programmed to live. does this mean that anything goes? No it doesn’t. 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. and our minds were somehow subject to psychic invasion.” The other interpretation. this gives us property law. then the next step is that one cannot defend oneself or one’s family physically at all.ethicist. not unlike Enlightened rational self interest. but to succeed. For better or worse. if we were in a science fiction world. “Thou shalt not kill.
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. If we are to have a just society we cannot teach our children non-violence.” “Don’t Tread on Me. Non-violence is satanic. “Give me Liberty or Give Me Death. totally in favor of nonviolence.correllative possessory interest in our own bodies. respectively. but to the point of seemingly not eating at all.” 126 . As a last aside on this topic. even to the point of not only being vegetarians. and together.” means only that it is best to avoid a stupid or idiotic fight if we can. “Turning the Other Cheek. which of course we do both under natural law and Divine Law. but to fight to the death for our right of self defence if we cannot. with the members on the surface often seeming to be very religious. Non-violence implies that each of us. has no right of self defence. One hears the rumors and reads the novels about satanic cults.
they did not serve Gyros. 127 . instead it was Fraternity and Sorority city. We went to Nebraska football games. worked out at the East Campus Gym a few times a week with my cohort in crime. Sandy’s on Friday afternoon was a Greek hangout on football weekends. Chrisman and John Vitek and I would always go. making sure that we hit Sandy’s Bar on Friday afternoon’s. but only drunk by the glass.CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. I went to class. Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). studied. in season. where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. No.
we were successful law students. big men on campus. Believe me. (This is of course the opposite situation relative to the Zoo Bar. but I think that there is a connection there. and complain about things a bit. if you were not Greek you did not frequent Sandy’s on football Fridays. you might say nothing. Believe me. for example. that is. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively.ploy was doomed to failure. I guess that would make it about 5 and one half pitchers apiece. second. first rate legal education.O. but we did it anyway because it was fun. Chrisman and I had this routine we used in trying to pick up sorority chicks. you were D. although we might bitch. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. at Sandy’s on football Friday afternoons. First of all. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. Dead on Arrival. moan. So. what does all of this have to do with legal academia? Well. a lot of us I think first generation lawyers in our families. we were happy to be in law school. Phi Delta Phi members. and hope beyond hope. We knew this whole method. Anyway. We knew we were getting a top of the line. a lot of whom I think were Vietnam War Vets." "You are a model aren’t you?" And so it went. who complained that the faculty was too liberal. we didn’t really mean it. clearly did like to see Greeks at the Bar).We sort of thought we were BMOC. 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. Maybe that week they forgot to put in the everclear and only put in the vodka and gin).A. "My God. Now. maybe it just might work. I might say something like. if you were Greek and you went to the Zoo Bar. together. It was fun. we would get a little drunk. The Lock Blade crowd at The Zoo Bar. 128 .
this situation flabbergasted me. especially used in a real world context such as law. Now. justice..Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal.. mostly through reading the legal scholarship of outside law professors at other law schools. then on the tenure track at Widener in Harrisburg.. contract. love. a moderate to conservative Republican. what I discovered after awhile at Widener. and I suspect still is. Well things percolated until I got into Legal Academia. We like to let things percolate for a while. So I filed this conversation away in my long term memory. don’t like to rush to judgment. I mean really real. were simply "reified concepts" which were illegitimate because they were "abstract. I could simply have brushed this off as ideology. Jurisprudence being of course that discipline within law which involves Legal Wisdom. and concepts. Now. words. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican." and not "concrete. are very real. So. and do you know what I found out? 129 . tort. "Trash and Bash. like myself. since Bob was.. first a visitor at Marquette." and therefore not "real. 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. was that critical legal studies was the jurisprudence that was in fashion. Not rabid of course. as a Critical Thomist. Critical Thomists. meaning is real. so. Over and over again I read articles which said the concepts such as liberty." were the watchwords of critical legal studies." Now. I slammed out a few articles making this point. For a Critical Thomist. being a liberal or moderate democratic. getting tenure in 1994.
. even better. D. don’t you think. Finally. and I suppose that will be ignored too. what I call. now.G. really didn’t go down. Dead on Arrival. and maybe moonlight a little bit for the K. no one seems to care. what you find underneath all of this. the K. which still maybe hanging on even though the cold war is supposedly over. in 2003. I suppose you could even use Wittgenstein on a good day. Now. its academia in general.B. one simply starts playing around with language to show that concepts are circular or indeterminate. and basically found reification to be an inadequate concept. but lets save that one for later. But even if that is true.. in Moscow and all its files probably ended up in North Korea or Communist China. . which usually is not stated. in my view this makes critical legal studies. No one would respond.. that critical legal studies has now shifted ground and has moved to post-modernism. nothing.A. I got ignored.B. as such. really. The political problem with extreme relativism is that it is nihilistic. anything can mean anything. The K."). extreme relativists. And it is not just legal academia. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid. is that all of these people are.Well.B.. they just left town. I think. then why bother? I mean really why bother? Why not blow your brains out? . If anything can mean anything. why not just walk down to your local political commisar and join the communist party. Why would this be. people usually cite Derrida for authority.. first of all extreme relativism is an incoherent jurisprudential and philosophical position to take.O. Anyway. Finally. For them. don’t they have the names and information 130 . Or.G..G. This is called deconstruction. I developed a refutation of the concept of reification in a one line proof. (As I recall. What is post-modernism? Well. and if they did. Now.. Because. in 1996 I put out an article in the Capital Law Review where I explored the concept of reification. What is the problem with this? Well.
Listen. What is left. in point of fact. no one takes attendance." For the intellectual elite in American Law Schools. Liberalism on the right believes in truth. we ground our position epistemologically and metaphysically on the right. Nebraska. we look for it elsewhere. There are no totalitarian political parties in the United States. just looking at things from a jurisprudential point of view. In fact there were always stories about a guy in Lincoln. and if anyone does show up. especially when your law professors don’t even bother showing up for class. Liberalism was on the right and in the right. Well. liberalism is false consciousness. other than totalitarian political parties. before I finish this essay up. if you’re a po mo (post-modern) and you don’t like the communist deal.for all the agents in place and sleeper agents in American? Just a thought). as Bernard Lonergan puts it. if we can’t get it through liberalism and the rule of law. Well. we all have a drive for meaning and meaningfulness. everything is seen as just being ideologically subjective and a "bad trip. the American Nazi party existed. This is because you can base liberal principles and values in classical metaphysics and philosophy. and instead use research assistants. They showed the literature and everything. 131 . Last time I heard. let me digress a minute to discuss extreme relativism. Now. This is Critical Thomism. I not so sure. they packed in a long time ago. A lot of liberals from the 1960's started out as liberals on the right. Although we support all sorts of programs to help the disadvantaged. in the local newspaper who was a big shot in the American Nazi party. really. then why not find your local gaultlieter and see if the Nazi’s are interested. which has always been considered to be a liberal position. Now. you might say this sounds ridiculous.
embrace Critical Thomism. . The Nazi’s were wrong because they were denying persons their individual right. and equitable compassion for others. moderate idealism. but in a constructive way." This is an philosophically existential refutation. Extreme relativism.I say that a Good Liberal is on the Right and in the Right. A Good Liberal is one who believes in moderate relativism. It is based on relativism which always ends up being extreme relativism. "everything is relative. As a Lonerganian might put it. Somehow. So. then of course the statement that everything is relative is relative. I suppose is why so many Nazi’s hate Liberals on the Right. 132 . on the right and in the right. during the 1960'. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. Anyway liberalism on the left doesn’t work. 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. The Americans. liberalism moved to the left. and moderate realism. Even more. We knew we were in the right in fighting Hitler. I suggest that Academia in General. being. then. and Legal Academia in particular. which. and therefore meaningless and invalid. Once you’ve done that you are still free to deconstruct languge." Now. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent. I suppose that Communists on the Right. not one that is nihilistic. what is the solution to this situation. that is Hardliners or Stalinists hate Liberals on the Right as well. ironically enough is further to the right than Adolph Hitlter. Maybe this happened somehow after Jack Kennedy was shot. the statement contradicts performance. This is a commonly known proof: "If everything is relative. Such a Good Liberal. The reason that we.
A lot of trial lawyers think so to. not the Law. and in his book. What are they? Who cares? Well. a 1930's legal realist."107 Frank. maybe jurors. what is that? How can Law Rule? What about people. "The hell with the 133 ." But. Lawyers are supposed to uphold the "Rule of Law. what about Facts? Do Facts Rule? Jerome Frank thought so.CHAPTER XVII LAW AND OBJECTIVE FACTS Facts. Any trial lawyer worth his salt will simply say. lawyers and judges do. "Courts on Trial. argued that Facts are what control the outcome of cases. or at least we pretend to.
working off the philosophy of Bernard Lonergan. argues that we in fact know reality through three interrellated cognitive operations: 1. Critical Thomism. He passed up a settlement offer. approximately half. But some of us wonder that even if we can imagine that The Law is objective in some sense. how about The Facts." and a lot of lawyers do to."108 with Paul Newman.. Frank Galvin did win in "The Verdict. 134 . just get me in front of the jury and I’ll win my case. "The Verdict" 1982. "Courts on Trial (1949).Law." In "The Verdict. perhaps unethically. and he won. that was attorney Frank Galvin’s salvation.. in order to try the case to the jury. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. experience > where one intends sense impressions 2. Well. 20th Century Fox. one suspects.
" see Anthony J."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two.’" 25 Capital Univ. we simply experience a blurr of data." The Buddists call this illusion. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. For a discussion of "relational meaning streams. Rev.3. the level of sense impressions. "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. Anthony J. 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. See generally. 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. 579 (1996). Fejfar. even myths. Hans Georg Gadamer. "Truth and Method" 239 (1975)." 27 Boston College L.110 which act as "forestructures of knowing. we organize sense impressions through the use of symbols and ideas. setting the stage for "Reality" at Level Three. On Level Two. 110 111 135 . but in some sense participatively create what is going on through the use of meaning structures. Fejfar. This is the level of "Reacality.109 What this means is that on Level One. It is on this level that we not only understand what is going on. judgment/reflection > where one intends the real or reality. Rev. 681 (1986). L.
but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic. "Conscience and Self Transcendence (1973)."112 Now. Walter Conn. possibly even fascist. I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag. this is all very nice. But given this. 136 . positive in some sense and negative in others.operations and Kohlberg’s "conventional morality. where does the Critical Thomist schema fit in? 112 See generally.
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).
9999%. at 17. with the result of Bell’s Interconnectedness Theorem. it is impossible to produce perfectly replicable scientific 140 . Now." Id. (Even in a "gross" Newtonian physical world. at least as to Quantum Events. however. Questioning this possibility. Perhaps our logic is not sophisticated enough to accommodate such a possibility. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically. it is possible that "quantum effects" trigger much larger neural activities within the brain. Nick Herbert. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action." Id. any purported newtonian "objectivity" is chimerical. Now. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy. Id. then. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment.one’s life at least epistemologically if not metaphysically. and quantum activities on the other hand.118 In other words. at sublight speeds. at 349. Similarly." Id. at 31). when one lives the 118 See generally. "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. 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. 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. Moreover. 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. "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action. Thus. the interesting point to be made. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. probabilistically. Thus. Id." Id. at 348. there is plenty of room for Quantum Mental Communication at a distance. Heisenberg states. on the one hand. "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. is that when we combine the foregoing. Penrose points out. This however is impossible.
in an earlier article. results. "The Prophetic Imagination" (1978). We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. Walter Brueggemann. perhaps in ordinary right handed persons. Thus in this vein. 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. the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning. Finally. We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). 119 See. and the right hemisphere toward "quantum interaction" associated with intuition. Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. 141 . Let the Dreamers Wake the Nation. one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way.critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy.
767 (1993) (Quote in text adapted from Carly Simon."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.Come the New Jerusalem. "Let the River Run." on Working Girl Soundtrack (Arista Records 1989). 142 ." 76 Marquette L. Fejfar. Rev. Shaffer and Anthony J.
Literally. however. "Quantum Philosophy" 19 (1999)). is not metaphysics at all." (Quoted in Roland Omnes. My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. arguably. the foregoing means. it is my position that Ockham’s Razor itself is flawed and invalid. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results. and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid. 143 . One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. the definition that I use. First of all Quantum Physics. above.121 There are of course two responses to this." In practical application and ordinary interpretation. "Entities are not to be multiplied without need. in the text is more adequate and relevant. however. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate. any more than newtonian physics or einsteinian physics. Additionally.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.
provides in essence that in considering any problem. scientific.Refutation of Ockham’s Razor 1. upon reflection. 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. or otherwise. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself. 3. Once step 2 is taken. Ockham’s Razor which was created by William of Ockham. 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. legal. the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. 144 . Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid. 2.
as such. F. We must now proceed to solving the problem 4+X=7. D. one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X . Let us consider the mathematical problem: 4 + X = 7.4 X = 7. then by the operation of Ockham’s Razor. However. It is argued that a concept that cannot allow for its own existence is invalid. Ockham’s Razor as a starting assumption must be excluded. E. Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. H. C. 145 . It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. Thus Ockham’s Razor is rendered self contradictory and invalid. In fact. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor.4 X=3 G. Since the foregoing problem was solved without the use of Ockham’s Razor. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted. J. B.4 = 7. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor. A. prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. I. Mathematical Illustration.4.
A.O. or otherwise. scientific." A la Lonergan." In other words. 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. While "objectivity" may not be possible as an abstract metaphysical possiblity. Now as Bernard Lonergan points out. after the fact. especially since Quantum Indeterminacy seems to leave us our hat.5. into "virtually unconditioned judgments of fact. given that Ockham’s Razor is invalid. cosmological. that is Dead on Arrival. in a world of Heisenberg’s indeterminacy. can be used as the first step in the resolution of any problem. our authentic subjectivity will produce our "objectivity. This of course is not true. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak. but no hatrack to hang it on." psychologically." at Level Four which is constructed through "virtually unconditioned judgments of 146 . ethical. Now. Now. Because this is true. perhaps the materialist is aghast at this point. it is certainly true that Metaphysical concepts such as "Being. 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..9999% real probability in the real world. Put another way. if we intend "objectivity" then in some fashion we get "objectivity. our highly probable judgments of fact simply "kick over. above. legal. The best we get in the real world at Level Three is something like 99. Ockham’s Razor is proved as being invalid in every case universally. Additionally. we might say." are now once again relevant to scientific as well as jurisprudential inquiry. it is argued that scientific materialism (including marxism) and capitalist materialism are D." Finally.
and. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail. 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. "How to Know God" (2001) (discussing virtual reality).fact.” 122 C. and. Deepak Choprah. as such. and in making our decisions. judicial or otherwise. as an enticement for the reader to keep reading.f. back to lawyering again. And. We use these facts in counseling our clients. therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid.. here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept. We need not be fact skeptics at all. So. is excluded by the operation of Ockham’s Razor."122 So in the end perhaps Piaget and Kohlberg are right. Facts do exist. 147 . arguing our cases. probabalistically at Level Three and objectively at Level 4. for better or worse. Finally.
You had an opponent. after loading up our litigation briefcases. law firm in Omaha. I was in Nam. Holm. and your gut tightened up. the physical bullets weren’t flying in the courtroom. “Well. but the whole thing was still a battle. the litigation partner I was working with and I would go off to trial. just like before a big basketball game you were playing in highschool.” Bill and I both sort of gulped. You had to 148 . Bill would say as we were going out the door.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. and you got a little sick to your stomach. when Bill Dittrick. Now. and believe me this isn’t war. “We’re off to War. said. Sure. the opposing lawyer. Nebraska. the Nam guy was right in one sense and wrong in another. and didn’t know what to say. doing primarily corporate-commercial litigation.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase. and the guy. almost tearing up. I remember when I practiced law at the Baird.
however. and in the end nobody really gets what they wanted in the first place. The casualties are horrendous. however. Losing was for losers. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. and involves military tactics. seemingly forever. but rather to the ends of their front lines where their primary forces are deployed. Flanks of course not refering to their posterior anatomies. 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. blitzkrieg. There was another sense that litigation was like war. if nothing else you did not want to lose. Even in the commercial cases you cared. that is in the sense that litigation in many ways parallels war. In fact. 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. What these type of commanders often fail to realize. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank . 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. that is. simply bulls his way forward with a frontal assault. The war is waged back and forth between entrenched positions. Another method of litigation was the war of attrition. and at the same time you had to care.tough. As I mentioned above. they might not even remember what they wanted in the first place. the typical litigation partner.
we can shift our left and right flank defensively so that when the enemy’s line passes by. and then move forward with the flanks. notice that if the Enemy’s line moves forward and engages our front line. from an offensive point of view. even if they are outnumbered. they want it carried out. Once “high command” has decided on a strategy. Now. those ranks of troops are exposed as well. and to have the troopers and non-commissioned officers to take the initiative. I would go so far to say that an order to do so is an illegal order. if they don’t have the ability to change orders and adapt in the middle of the fight. and then attack the enemy’s line in a way the enemy cannot combat. then the defenders will almost certainly win. However. not unlike the Charge of the Light Brigade. our flanks can turn to the center. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. Now. engage the enemy in the middle. there are of course response moves in such a situation. If there is more than one line. Just like the game of Chess. regardless of the outcome. ours is but to do 150 . We have a ten to one advantage over the end of the enemy’s line on each flak. it is pure idiocy to attack straight at an entrenched position. As the poem goes. then it is possible to engage the flanks and at least stalemate the defensive attack. but they rarely work. if the enemy trained to think multilaterally. “Ours is not to question why.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now.
he could have seen that the Union lines did not extend beyond Little Roundtop. a small mountain on the Union Army’s right flank. Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania. and. Now. Similarly. Then there is a farm field about one mile in width.” Now. outside of Harrisburg. before we get to the law application. and was stuck in Union territory. Lee had to attack.” about the Marines in combat 151 . even if Lee had sent a few scouts out.or die. let’s consider the above in light of the Battle of Gettysburg. and the road to Washington. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. the first thing to remember is the context. as well as attacking the Union troops themselves. and then some trees behind. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. Unfortunately. he didn’t get that far. around Little Roundtop. and attacked the Union rear. for him. That’s the background. cutting off supplies. Now. The Confederate Army was underprovisioned. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. effectively ending the war. if you have seen the movie “The Thin Red Line. Neither France nor Britain was entering the war on behalf of the Confederacy. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times. 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. The battlefield itself is about three or four miles wide. Now.
nothing is locked in place. your context. must absolutely win the lawsuit for whatever reasons. Now. Next. This is not always possible. underprovisioned. is your opponent. etc. The company comander then exercised field discretion and had his men go around the right flank into the jungle. but sometimes it is. Hume even went so far as to say that all we can really know in our ordinary world is 152 . national. Will it be necessary to associate with other lawfirms. at least to some degree. or international. The commanding officer said no and threatened to relieve the company commander. broke. you must know the ground. but also needed to prepare the case. The company commander had his men make a few attempts up the middle. what this usually means is that you must know what courts are available to hear the case. Whether the case might be removed to a different jurisdiction. however. taking out an enemy encampment. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. The company commander.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. but it was hopeless. a lawyer from civilian life before the war. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. Whether expert witnesses will not only be needed at trial. What has happened in the past merely provides some basis for predicting the future. I your client. In the case of litigation. The next thing to know. Well. and then the Japanese entrenched position on the hill. Whether discovery will be local. first of all you need to know you situation. Always remember the philosopher Hume. with relatively few casualties. how does this apply to litigation.
lives to fight another day. I made this mistake in junior high one time. and about 50 pounds heavier than my six foot four inch frame. no. don’t necessarily conclude that your enemy is remarkably smarter than you are. He was about three years older. It was about a three mile bike ride home for me. my two buddies and I hit the bike racks and got our bikes. so instead we will go the opposite way. telling my buddies to get one of their parents so I could get out of the mess. because I could tell that he meant it. but. until a teacher came to break up the fight.based upon inductive reasoning involving statistical probability.” This is of course the doctrine of strategic retreat. at the same time. I held my own in the fight on the front porch of the school. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. I got in a fight with a bully from another school.” “He who fights and runs away. never overestimate your enemy. I held my own again. I could see the gang at the end of the block. So. “It will be over when I get you down on the ground and beat your head in. I thought. So. never. three inches taller. 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. That is. underestimate your enemy. down 48th street. Following the words of Rupert of Henzau from the “Prisoner of Zenda. Unfortunately.” Suddenly. 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. The bully looked at me and said. they will know that we will take the 40th street way home. though. I was face to face with evil in a way that I never had been before. so I asked the guy. Somehow. however. I figured that I would go to the right down to 40th street and we would get around them that way. “When is this going to stop?” thinking we might have an truce or something.
except in some situations low level corporate employees. Both at your client’s end of the street but at the other end as well. and I never saw either of these bullys again. of course being careful not to violate the anti-contact rule. my buddy’s mom drove up in the family station wagon. allow. I got my bike loaded up and we were out of there. but I guess. Get a paralegal to check into available public records to the extent they would in any way be relevant. Yes. And. Although wisdom allows this strategy. Don’t let one become so dominant that you will lose in the end. She chewed the bully out verbally. So. Third parties are of course fair game for interviewing but the opposing party is not. 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. file the complaint. in terms of thinking about attacking the flanks in litigation. One last point. An eastern way of thinking about war and litigation is this. Instead. also.wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. the next year my buddies and I were in highschool at Lincoln. Southeast. yes get discovery started. don’t waste time attacking all of your enemies at once. the point. of course. don’t overestimate your enemy. they will just gang up on you. or even game. 154 . If you find yourself in a muliparty conflict. Get a trusted private investigator to check things out. but don’t push it right at first. Now. the point is to not in the first instance attack the case head on. or even arrange for your enemies to attack each other. I’m not sure that conventional notions of morality do. don’t think that evil doesn’t exist. Then.
and then all we have worked for up to that time will have been lost. including but not limited to the judiciary. ala marx. and then we suddenly get a lousy generation or two of authoritarian people. should still involve the symbolic state. The judiciary taking the bench for at least a day. is that our goal for Utopia. I know that some mediators think that someday the state will fall away. and learned a lot.000 years on earth. for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day. The idea that we will somehow be able to do 155 .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. etc. so I am going to cut the apple in two and say that my goal. I hate to be pessistic. Things might even go great for 200. No. The first thing that I have learned is that mediation does not work without a judicial system to back it up. ala Critical Thomism. and all disputes will be solved through mediation.
Nevertheless. 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. I then ask further questions factually to flesh out the situation and get a better handle on what was happening. and then call it a day. the mode that I prefer and have used is that of facilitative mediation. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. or methods of mediation. While there are several different styles. for me. stating that we will first have each of the parties get their stories out.away with law or the state en toto. memorialize it in writing. 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). In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves. So. the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. We pound out an agreement point by point. Mediation is. as a Liberal on the Right. ala Justice Brandeis. I ask each party what he or she would like to see happen or get out of the mediation. 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. and that in most circumstances one get’s a very good result. of course. I see a strong role for mediation in our society and system of government. I think that mediation is a very positive thing. modes. We then hone down the possible solutions to just one. But. but also should refuse to help facilitate 156 . Then. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. as a last comment. I then do an overview. and here. is excessively utopian. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem.
or before that with Enlightenment Liberalism. Interestingly. “A Theory of Justice. 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.agreements which in the mediator’s mind are unconscionable. perfect mathematical and geometric ratio. with John Rawl’s book. I think associate the idea with the civil rights movement in the 1960's. In Aristotle’s Ethics. though. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea. or maybe. if remarkably well read..e. Intellect. While previously I have recognized the idea of the natural law hierarchy of Body. Equality is based upon the idea of proportionality. Aristotle stopped short of proportionality as a basis for perfect equality. equality originates with Aristotle. It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law. i.” For me. though. Instead. Mind. it must be stated here that even if a 157 . Most people.
I seems absolutely clear to me that as between two equally qualified persons. If a street person is defamed by being wrongfully called a “scumbag. if one person is in a class which has been discriminated against. society should affirmatively seek to place such individuals in jobs ahead of others. my position is that this can only be done on a limited basis with 158 . 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. de facto. The issue of past and present irrational discrimination also must be dealt with. 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. himself. the principle is the same in the case of defamation. one who has a greater educational background and greater skills might in fact. however. The principle of equal opportunity requires that everyone be given a even chance at getting a job. Nevertheless. have been damaged greater.particular person. then.” Equality also comes up in the employment area. racial. or religious. This is equality before the law. the person in the discriminated against class should get the job. Here. say a concrete laborer. This is affirmative action.” 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. functioned primarily on the Body level in terms of cognition and consciousness. 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. Although in some sense trajic. The argument is that because of past and present systematic discrimination against particular groups. ethnic. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment.
Irish. and they aren’t necessarily “white. I am Czech. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics. In order to qualify one need only have parents of different ethicitity or race. In the old Soviet Union. and I suspect that there are a fair number of ethnically German. or a grandparent. I want to make the following point. White Russians discriminated against siberians and other ethnic groups. I would simply say this. racial Nazi purists. or a greatgrandparent. 159 . Finally. The categories for discrimination have to expanded. my point is this. Hitler made it very clear that all slavic peoples were considered to be subhuman. Anyway. who would consider my ethnic/racial background to be unacceptable. The Japanese in WWII considered Americans in general to mongrels. and before that undergraduate education. I don’t really expect these kind of attitudes to go away in the near future. then the solution is to stop discrimination in graduate education in the same proportional way.respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. with respect to anti-discrimination measures and affirmative action. and before that highschool. There are an awful lot of bigoted people who are interested in ethnic or racial purity. For example. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. and German. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards.” In fact. and for affirmative action.
of what is going on. we ask the appropriate questions to try and get a handle on the facts.CHAPTER XXI STATISTICAL PROBABILITY Well. ask some more questions. When a client walks into one of our offices. and what should be done next. typically a few days later. using litigator’s intuition and gut instinct one comes to a judgment or assessment. Quantum Physics. and then we make a probablistic assessment of the situation. as well as our world. That is. of course. as stated in a previous Chapter. the world is a bit fuzzy. We do a little legal research. Critical Thomist Lawyers. what the law. and more particularly. in point of fact. and in particular. is. certainty. provisionally. For us. Heisenberg’s Indeterminacy Principle suggest that we. and even “Greater Reality as a Whole” are all probabalistic. Critical Thomists. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. do aim for concepts or ideas or conclusions of exact. the “empirical” real rule from an inductive point of view 160 . If we think of the ideal rule as a genuinely existing straight line. linear.
accounting. and maybe even require them 161 . Such variables typically might include: grade school. religion. Now in all of this I am not saying that there may be underlying patterns of racial. English Literature. a classical rule deontologically and decuctively looks like this: -------------------------------.only exists as a line of dashes. say for example regarding the objectivity or validity of a law bar exam.... courses taken previously relating to: logic. and espionage novels which involve complex social and political situations. one is supposed to...while an ontologically and inductively classical rule looks like this: . and ideally does take a statistical sample of the relevant data. Communications... and.. detective.. Now. relative to race. perhaps.. Ethics. economics... I have just two points here to make. ethnicity.. high school.. but what I would like to suggest is that from a corrective point of view.. if the applicant had a great deal of work experience with summer jobs. one should make sure that other independent variables are properly accounted for. it is important to include commonly understood analysis of independent variables in one’s study.. I’m sure there are others. using a regression analysis which excludes “aberrational data” one then comes up with conclusions.. Management. what type of employment the applicants parent(s) have held. ( R = Rule and x = 1 through approx. interestingly enough mystery. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. at least over the medium to long range. ethnic. and. etc. undergraduate. for example. So. First of all. is that the probable solution is to improve opportunities for particular types of classes. and then. and graduate school grade point averages.. This could be seen through the classical equation: R = x + 0. 10 ).. English Composition. In any type of sociological study. or religious discrimination coming from one source or another.
Additionally. perhaps required. including but not limited to social science research.for admission to law school. 162 . Finally. or legal academia in particular. or religious minorities in the legal profession generally. or in my opinion.” I have heard that some studies are now not even disclosing what standard deviation they are using. are using standard deviations of 10. some researchers. In my mind. opportunities for the development of leadership skills in the military. for various type of employment opportunities involving a national service corps. with respect to empirical research. Computer programs which do no display the standard deviation. 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. 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. Clearly unscientific and totally political. or finally. there should be opportunities. or more. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. Remarkably. This is real “political” science and it does not just involve social science research. ethnic. so I have heard. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent.
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. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness. For me it goes something like this: 163 . For Ken Wilber. the “integrated” “centaur” level of consciousness seems to be about levels four or five. 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. The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. For Deepak Choprah. on the other hand. level five seems to be the creativity level.
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. or both. Whether the mind is in the brain. or the brain is in the mind. gets to be irrelevant after awhile. 2. but I do it vertically. Perhaps some perform these operations laterally on one level. We don’t need Christian theologians to tells us about life after death or the immortality of the soul. 4. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. Why is this important? I suspect it is important because those of us who somehow have a 164 . Its not mysticism at all its simply a very good.Metaphysics 5. there it is. but complex way of thinking. 1. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations. we can advert to Plato’s discussion thousands of years ago. 3. So. or Law. Rule. As noted before.
one notes that given an equal amount of square footage for a restroom for both men and women. because women need to use stalls and cannot pony up to the urinal trough like men. I noticed the perennial problem. what does it really mean? When I think of equality. assuming that women need not urinate or defacate any more often than men. 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. What is “equality?” I mean. But let’s go po-mo here for a second and deconstruct the concept of equality. feelings. Apparently. that the line to the men’ restroom was comparatively short. Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. find that it is worth the effort to invest in the development of our minds and the minds of others. CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s. God holds all our memories. while the line to the women’s restroom was remarkably long.lived experience of a higher reality. One suspects that their jurisprudence begins and ends with the concept of equality. it takes a lot longer for a 165 . thoughts. which I first saw at Nebraska football games growing up. and emotions in His Mind forever. 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). if only congnitively. letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education.
So.comparable number of women to “take care of business” than it does for an equal number of men. Let’s take a John Deere tractor versus a Massey Ferguson tractor. this does have economic. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. We could. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. The examples we could use are endless. but that is not my point here. that is. The John Deere’s are green. Now. The men don’t like having their restrooms taken away in already existing buildings. More time creates a longer line. wealth. usage per hour. have a long and interesting discussion of policy regarding restroom parity. Now. where. for example. should equality be based upon usage. at this point. to a lot of men its not. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. natural law hierarchy. is much different for men and women. legal. alternatively. that equality is geared toward some standard. how about tractors. should equality be based upon the amount of square footage floor space. this may seem a little silly. age. One might say that two tractors are equal in terms of horsepower. If we think of equality jurisprudentially. the 166 . Now the philosophical question involved is this. gender. or. as I said before. and political consequences. of course. But let’s think of it more philosophically. 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. equality could in fact be related to social class. etc. and remarkably enough. In each case there is the implicit. usually unstated assumption. so to speak. but to a lot of women its not. race.
and ultimately nihilistic position to take. at least not on its own. There is something there to chew on. I could stop here and play it safe. Now. green. There is a little more to it. was the best color. then. We might even start a protest movement trying to change the law so that we have color parity among tractors. I’m basically a liberal on the right. red. or orange. Now. if we could figure out which color. This is tough for the “left liberal” who wants equality to be the ultimate value. 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. But. 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. as I have mentioned before is a logically inconsistent. 167 . but that it must be understood and used in the context of metaphysics. but I won’t. It just doesn’t work. food for thought. and the Ethical Matrix that I have discussed previously. which. We still get equality. as my dog Scruffy might say. natural law. one is left with extreme relativism. but it is equality with some meat on the bones. as I’ve said before. Case Tractors Orange. If equality is the ultimate value.Massey Ferguson’s Red.
is. “You know.” the Critical Thomist of course feels compelled to respond in some way.’” The next move. and as such. and that it stinks. that’s it. like bullshit.” I said. what is ‘hogwash?. really. Critical Thomism.’ just doesn’t line up with that definition. a philosophy. literally.” Your assailant then looks at you quizzically and responds. my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle. “Hogwash. “Well. of course. I might respond by saying. “I think Critical Thomism is a bunch of hogwash. I suppose.CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible. in its deepest sense. One might make the rather interesting move of asking one’s assailant to define his or her terms. the problem is that ‘critical thomism. and that it is full of partially digested cattle food. hogwash. Here. So. I don’t see how I can respond to your criticism without a little more in the way of definition.” Then you sit back and think of the next move. is to shift the burden of proof to the complainant. I 168 .’ how do you define it.
the burden of disproving Critical Thomism is on you.respond simply by saying. what say you?” Usually the response is that there “is nothing like judment. law. “Well. or position as true based upon critical reflection or judgment. rule. that ‘judgment’ does not exist. and. let alone ‘good judgment. and in so doing. and then assert some fact. thereby disprove any attack on the proposition that consciousness involves different levels or operations.” 169 . elucidate one’s understanding.” 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.” “one would necessarily need to refer to one’s experience.” or there is nothing like “levels of consciousness.
being. seen as “formless form. For example. one typically thinks of the ground that one is standing on. 170 . Substance. a real property or a real titled interest. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. or perhaps one’s home or one’s office building. one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land. that is. From a metaphysical standpoint.” is that While John Locke mentions “substance” in passing.123 123 So. the general idea of “substance. if we take the three metaphysical principles of substance. One supposes that “substance” without being affected by one or more other metaphysical quiddities. and form. one can analyze real property in those terms.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence. would be simply the Greek concept of Chaos. however.CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. one can play around with some interesting concepts and produce some positive results. and the medeivals discussed a similar concept of “prima materia.” the early Greek philosopher Anaximander is credited with first developing the concept.
as such. totally formless. and which thus loses its character as “personal property. participates in. personal property. other than interacting with a new born infant. or chaos. yet at the same time in its purest manifestation.” Personal property. It is my position that real property.” A fixture is personal property which is annexed to real property. is identified with the metaphysical principle of being. because of its fluid nature. has the valence of substance. is of course. As an intermediate category between real property and personal property. Water. to the extent that it is more fluid. Real property is formed in substance. attached to real property. seems to be more in line with the metaphysical principle of being. While one might get a sense of this in one’s property class.”124 In fact mystics or quantum physicists often refer to the “ocean of being. someway. and in its pure form as material matter is simply the mud or dirt or rock of the earth. on the other hand. To be contrasted with real prperty. typically by some form of physical attachment. usually one does not “get it” until one has practiced real estate law. 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.it is a virtually unqualified kind of stuff which is primordially physical. Perhaps in no other way. Transactions involving personal property typically involve the Uniform Commercial Code.” or the “quantum ocean. is the legal category of “fixtures. and has the valence of substance. somehow. In this sense it appears that a fixture must have 171 . and thus can be distinguished from real property. or is a real estate agent or broker. more movable. does one encounter the “real” of substance in this basic sort of way.” and becomes a fixture. or perhaps more traditionally put. Being having the metaphysical definition of “form of form. then.
or quiddities. or at least the appearance of change. let’consider whether or not we have a fixture here.” has more structure than substance. electrical. I then have water. Now. Although fairly large in size. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. taking into account some basic metaphysical principles relative to change. is the question of when a fixture becomes “real property.a metaphysical appellation which is a half way house between being and substance.” rather than remaining a fixture. and cable t. and has more of a straightforward valence. let’s start with this hypothetical example. 172 . before the home was attached to the foundation on the lot. It seems appropriate then. without losing one’s basic underpinnings in classical philosophy. sewer. The sectional home rests on a concrete block foundation. Substancia. and the home itself is bolted to the concrete block foundation. using purely evolutionary terms. and substantial form. one can come up with a way of discussing the differences between two actualities. in three pieces. However. as such. essential form. In an evolutionary universe. it seems fairly clear that the sections of the home were personal property. classical concepts such as essence. As an interesting correllative to the foregoing discussion.v. I then have a “sectional home” moved onto the property with a crane. Let’s say I own a two acre lot in fee simple absolute. essences. Now. All the hookups are attached to the home. If the home is considered a 124 This is Plato’s definition. or “being form. form. So. hookups installed in the lot itself. the sections were movable. to denominate the metaphysical principle which underlies a fixture as that of substancia.
An accretion to a substantial form. Imagine we start out with the fee simple two acre lot. or a rational/logical accident. an interesting question is whether a fixture. Blackacre. So. there is more than one way of thinking about this. it will probably be considered a mobile home. can be considered to be real property.fixture or even personal property. 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. If we choose at this point not to use terms involving statistical probability. but this way is a good one. in my view. part of the fee simple interest incorporated into the larger real property interest itself. Tyically courts look to whether the home has running gear attached to it. a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. Now. perhaps. Blackacre exists in classical terms as real property in substantial form (in substance). The sectional house. that is. this would simply be a situation involving an “accident. and whether or not it is permanently attached to the foundation– if there is a foundation. In classical terms. would be mowing the grass on lot to a height of three inches every month.” or an “accidental change. is simply the addition of an irrational. let’s think about it this way. rather than four inches. one could come up with a classical term such as “accretion” in the first instance.” which is not “really” or 173 . Presumably. and will have to be removed in accordance with local zoning regulations. although many grass stems would be affected. A good example of this. Then we have the sectional house. Now. in my judgment. if it is in place long enough. prior to attachment. which in no way affects the substantial form of the object under inquiry. exists as a substancia form (in substancia) or perhaps even in being form (in being). an arational.
So. The trick to dealing with this situation is that just past the metaphysical concept of accretion. in point of fact real change or true change are both respectively. 125 In terms of statistical probability. let us consider the substantial form of our two acre Blackacre lot. or. one has simply placed personal property “a la accident” on the real property. in point of fact such a change seems impossible. is that of “accession. In other words.125 The accession represents an intermediary state between the real property state and the personal property state. If we add the accident or the accretion of the parts of the sectional house. Either something is a particular substantial form or it is not. a fixture attached to the real property. impossible. In classical terms of course. only an accidental or non-substantial change to the real property. albiet not yet real property. this is simply. In classical terms. one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. a statistically significant change has taken place. Now. however. the presence of a new “variable” which previously had not been accounted for. 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. incorporated into Blackacre as an undivided whole of the real property itself. 174 . because neither “substance” nor “form” are effected. What. Once an accession has taken place. Such a “change” would seem impossible.“truly” a “change” at all. of course. and as such. how then does one move from on substantial form to another.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. of course. suggesting in statistical terms. however.
. life is simply a process of “remembering” or “re-congnizing” what is alway already there. well. although not one accessible to one having the perspective of “houseless Blackacre. When one has been schooled to think in terms of incremental evoltionary change and statistical probability. then I would argue that a fully manifested Blackacre with house is present (in act). Blackacre with house exists in potency but not in act. 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. it is literally true that “Blackare with house” has always existed in act in some place in being. but in classical terms it is not. This is why to a classicist. In the classical universe of being. If such factors are present.Now. They both exist as independent immutable substantial forms. etc.” It is not just a word game. fine with the metaphysics. Blackacre with house really exists in a parallel being universe someplace. the foregoing seems absurd. as such? One supposes that the inquiry will involve a variety of factors such as intent. Once Blackare with house has “manifested” relative to us. then Blackacre without house exists only in potency relative to us. In classical terms. not in act. permanence. but when is it that the house becomes real property and part of Blackacre. creativity is always limited by form or some other metaphysical principle. nothing is really new. at the time of houseless Blackacre. Now. 175 . At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. Doubtless the old property hand will now ask. As Plato puts it. treatment of the house for tax purposes.
Some people with particular religious dispositions don’t like it because they. 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. think that it is “theology. After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents. My freshman year in college. well. .CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about.” rather than philosophy. six hour course in 176 . though. where the fossils where hundreds of thousands of years old. the evolution paridigm for reality seemed the best explanation. however. others simply associate it with the New Age and like it even less. A lot of people think its passe or irrelevant. sort of. mistakenly. For me. I had a two semester.
enough. 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. particularly my highschool physics class. on the other had. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. terms. a lot. Evolution. in my forebearer’s generation. It could not really account for new species development. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution.” Ironically. getting back to metaphysics. had seen the world and reality in inductive. and which saw the world. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. or the Holy Spirit as an immanent theological principle was involved. So. and my highschool science classes. And. empirical terms. one notes that in Genesis itelself.” That is my reading of it. no one even seemed to care about reconciling this situation. The metaphysics courses my freshman year were tougher than hell. God is seen as creating the world in seven days out of the “void” of “Substance. and I saw that there was a deductive explanatory perspective that made sense on its own terms. Aristotle. top down. I guess what I’m getting at is this. Now. Suggesting of course that at least Substance as a metaphysical principle. cognitive dissonance was still there. But. The problem with neo-thomism that I saw. As far as I could tell. Renard’s book was a type of Neo-Thomism which cited to Plato. however. as such. and Aquinas. was that it seemed to see reality in static terms.metaphysics using the book by Father Renard. but at some point a part of my mind got the neo-thomist metaphysics paradigm. 177 The evolutionary idea put forth by Carl . and reality in general in deductive.
in an earlier article. and the [Logos] was God.) Now. presence. In Biblical theological terms. and was the uncaused. non-metaphysical accounts of how reality began typically assert the opposite.” and that somehow there was nothing which preceded this was. In the beginning was the [Logos]. such an approach is essentially infantile. Now. Through him [the Logos] all things came into being.A. when we take the prologue to John. and was. and apart from him [the Logos] nothing came to be. and is wholly unsatisfactory to me. where it is stated that Jesus. He [the Logos] was present to God in the beginning.Sagan. I denominated this “trinitarian metaphysic” as So. this is found in the prologue to the Gospel of John. 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 . and last there is Logos (Creative Form). or Creative Form. and the [Logos] was in God’s. “Poof” and suddenly there was the universe? The whole thing is. in conjunction with Genesis. I mean. is. although such athiestic. Love and Creativity. is it like Santa Claus said. there is Substance (Formless Form). As Ken Wilber has argued. ridiculous. My position. or Reason. we see that there are three primary metaphysical principles. that the universe began with the “Big Bang. this is how it all plays out metaphysically and follows: Being.B. and objectively. First cause of the universe. second there is Being (Form of Form). First. as the Logos is the First Cause. (N. is that the Logos. both biblically.
and Creativity/Creative Form. or others. and God the Son. as such. Ken Wilber. acting as the immanent principle of God in creation. or Law.” for awhile. So. the Immutable Substantial Forms. in the Quantum Field of Substance. rearranged. since the Immutable Platonic Forms. but not changed. Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. respectively and together. the Holy Spirit. or maybe even for ever. in terms of a nonsystematic divergence from a classically stated Rule. It makes perfect sense to argue that the three primary Metaphysical Principles of Being. God the Father. it is perfectly possible that certain species of animal or plant. could. The Objectively Existing Metaphysical Principles of Being. ala Whitehead. even planets. and Substance. be put on the “evolutionary shelf. and Christian Doctrine can be added to but not subtracted from. Finally. Logos. While one can certainly accede that the Trinity Subsists in its Primary relations eternally. or. produce a New Immutable Platonic Form. as well as an Immutable Substantial Form. Now. when one realizes that an “accident” in terms of classical philosophy is defined statistically. or a New Immutable Substantial Form. Norm. or Matthew Fox. so to speak. then one begins to see that 179 . the Mediating Principle. bringing all of this back to evolution. of course. And. one might also argue that God the Father. from a metaphysical standpoint. God the Son. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. as well as others. Substance. and God the Holy Spirit. it is possible that evolutionary processes could. themselves existing in The Mind of God. are from a process point of view. Love/Substance.Now. one sees that the nature of reality itself is relatively stable. on the other hand the Transcendent Principle. in an extraordinary case. the three primary principles of evolutionary advance. Once again.
there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident. and modern systems involving statistical probability. 180 .
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