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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
They use their business and financial abilities to help their clients make good.. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture. one has also received a Doctorate in Jurisprudence. finance.. psychology." . Jurisprudence. is The Study of Wisdom. Quantum Physics. One might say that it is Legal Philosophy." What is Jurisprudence? Well it is hard to say. Lawyers use policy arguments all the time to supplement their legal arguments. and has taken a jurisprudence course during law school.CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. accounting. philosophy. business decisions. then. even.D. business management. a lot of jurisprudence involves sociology or psychology.. Metaphysics. values. the problem with Law is that it has to be interpreted. religion. but I suspect we typically do it a different way. theology. one has not only received a Doctor of Laws. but then again. Put another way. and. 4 . You see. if there is no basis for that interpretation then problems result. with policy.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. Now. It is my position that where one has received a Juris Doctor degree. sociology. solid. of course. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. I suppose that we all could get Ph.
bitch. I suspect that ditch diggers are more highly evolved than these academics. In any event. and if hypothetically we had nazis or communists in this country. that’s the problem. I think that it is unfair to ditch diggers to place these fundamentalist. one might suspect that they have faked credentials known as "dummy espionage degrees.Unfortunately some Legal Academics are legal ditch diggers. academics. No programming alternatives here. in Law School I decided. Shit in. maybe we should. when they find themselves in ditches with virtually no way out. These Cyborg academics must look to their Central Control Units to tell them what to do. ala Star Trek. placing ourselves in a world of science fiction. here. 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. not in the tennis sense. input out. and. maybe these persons are just "psychic channelers." who just channel and parrot other people’s minds. shit out. I must apologize. and. "The Law is The Law. knee jerk. You know. and then. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it." But what you really see of course is that they are Fascists. whine. They don’t believe in jurisprudence. and complain. to become a Critical Thomist. How they get into academia or law in the first place is beyond my comprehension. never having an original thought of their own. If this were a world of espionage. I think I’ve been a little harsh. you know. for me it just keeps getting better 5 . The solution? Well. They spend all their time digging themselves and others into ditches. Input in. legal academics in the same category with ditch diggers. So." Or perhaps. usually spouting phrases like. and a day laborer for another summer. moan. In college I was a concrete laborer for eight months. but in the robotic sense. call these academics Borg. perhaps unconsciously. So. these people certainly are ditch digger academics.
on the other hand. and a bit more. and is the Intellect. Mind. and Substance is the basis and underlying foundation for true reality. CHAPTER II CRITICAL THOMISM Critical Thomism.and better. 6 . using the formulation. Logos (Creative Form). I believe in. For me. their respective philosphies were based on the Aristotelian concept of Being. reality and consciousness is structured primarily on three levels. it is perhaps a little bit of both. Now. and Spirit. what is it? Well. I. Ken Wilber does something similar. and as a Critical Thomist. the Highest Level of Consciousness is structured by Logos. For Bernard Lonergan. Body. Being is A Pure Act of Understanding. For a Critical Thomist. Being (Form of Form). intend. but Critical Thomists don’t buy this. and Thomas Aquinas. use a trinitarian metaphysic which parallels the Trinity of God itself. its not Critical Realism. and Level 3: Intellect. then. Level 2: Mind. what Thomas Aquinas called Intellectus. Level 1: Body. Logos is Divine Reason. its my thing. It’s not Thomism. For a Critical Thomist. and Substance (Formless Form).
and. Bodily pleasure and sense experience is found at Level 1. the Immutable Platonic Forms are of course composed of Platonic Substance. and Intellectual pleasure or the integrative reflective way of being is found at Level 3. then. and even use the Immutable Platonic Forms at Level 2." that reality is composed of and structured by Substantial Form. It is at this "material level. interestingly enough. individual objects are themselves. or analytical or moral activity is found a Level 2. the thing about Critical Thomism is this. What else could they be? At Level 1. This is of course consistent with both Plato and Aristotle. but not subracted from. its not. For a Critical Thomist. then. at level 2 in actuality. it must be noted that of course statistical probability is itself. Logos. Mind pleasure. The Immutable Platonic Forms. and. Form. rearranged.. While the foregoing might seem a departure from Classical Philosophy. and one’s unconscious or preconscious Mind accesses. in fact. in reacality. supplements Being. it is a different story.In the preceding natural law framework. Additionally. discussed below. Interestingly. and Substance. For a Critical Thomist. which leads one to Substantial Form. One supposes that is at this level that Particle Physics reigns. one believes in. but 7 . those forms typically only manifest probabalistically. not Quantum Physics. however. while we can talk about. however. it has always been the case that the Immutable Platonic Forms could be "added to. The same is true of individual substantial forms at Level 1. First of all. substantial forms. which is a secondary metaphysical principle. consistent with Catholic Doctrinal theology. there are also corresponding levels of virtue or activity. an Immutable Platonic Form. then. discrete.
a "non-systematic statistical divergence from a classical norm or rule" of course takes place. or Substantial Form. Our world is not just a po-mo (post modern) fantasy. One suspects that Saint Thomas the Apostle himself very 8 ." This is completely consist with the point that the Immutable Platonic Forms exist. Finally. moving to understanding. subsist. Outside of space-time. or the Immutable Platonic Forms. it is at Level 3 that reality is structured by "relational meaning streams. Doubting Thomas is the Patron Saint of Critical Thomism. and culminating in judgment and reflection. 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. To some degree. might find the foregoing discussion a little bit "out there. beginning with experience. 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. relational meaning streams structure and partially constitute reality. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. Change can occur without "change" occuring." As I have pointed out previously. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas. paradoxically enough. who we are and the world we live in is determined. as Bernard Lonergan would put it. it should be pointed out that statistical probability. outside of space-time. "The World Mediated by Meaning." Nevertheless." Now. Finally. as Bernard Lonergan would tell us. rather it is grounded in Saint Thomas the Apostle.not changed. Finally. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules.
For me. had judged it to be true as a matter of a critical judgment of fact. and then finishing with judgment. Thomas did not believe in the resurrection of Jesus until after he (Thomas) had experienced the physical presence of the Post ressurection Jesus personally. 9 . I think that I will be sure that it is Reality and not something else. and finally through a process of critical reflection and judgment. obviously starting with experience.well may have been a Critical Thomist. moving to understanding. Although it may take take me a little longer to see Reality. when I do. political or religious. I go with Doubting Thomas. The Critical Thomist may doubt. and then. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. presumably had understood it. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets. So there it is. but nevertheless. I think for me the tradeoff is worth it.
Nebraska. Snowden) was concerned that I could not get a fair 10 . certainly not sitting in the front row and being a "gunner. individual rights. a reminder to many of Nazi’s marching Neurenberg. We got it in class somewhere. if I lived in Crete. rather than "back benching" it.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. Fejfar. how did it all fit together? Well. Constitutional Rights. Professor Snowden tried to help us get it. out of the blue I heard my name being called. Prof. especially in law school at the University of Nebraska College of Law. The whole issue of people getting along.’ Mr." Suddenly. Exactly where I don’t remember. In Mass Communications Law I had chosen to sit in the anonymous middle of the class. Daoist? Zen? On the Left? On the Right? I wasn’t sure. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career. Then one day in class it started coming together for me. I could never quite figure out where he was coming from. 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. Snowden said: "‘Nowwww.
Snowden) move to Lincoln. where the people were cool. So. I (Mr. And then. This was like getting lost in the grocery store at age four and not being able to find mom or dad. of course the usual blank out caused by panic.B. Mr. Snowden would get along great). were not cool." the term ex-cretion was of course only a merely coincidental use of language relative to those terms.. King at the Zoo Bar downtown). Prof. Fejfar) think of that?” Now. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing).. out of the blue. if you have 1 Of course I definitely did not say "excretion" or "shit. Fejfar) could say is that that would make you. Nebraska. Shit." Now. Fejfar. Eureka. the people in Crete. Inspiration. What could I possibly say? This question didn’t involve ’t in the case in the case book. I guess all I (Mr. It wasn’t even close. Snowden was cool– what other Law Professor could you catch watching and listening to B. and then you Professor Snowden moved to Lincoln. Click. (Of course we all knew that Prof. That cold empty feeling in the pit of your stomach.shake in court (in Crete. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief. Sweating palms. Nebraska. I did have a little premonition I think. inspired. an ex-cretian1. and. Insight. Was it some sort of Jungian unconscious linkage? My response? Panic of course. Once again. Nebraska)– why couldn’t I (Prof. of course. Fejfar) said: "Welllll’. 11 . why couldn’t we have a system that handles it that way. Nebraska. So. I guess if you lived in Crete.(and where presumably Prof. Professor Snowden. where the people were cool-. Professor Snowden. Then it hit me. with me moving to Lincoln? What do you (Mr. Snowden continued: "‘Wellllll’. Nebraska. Lonergan strikes again.
first of all I think Snowden would love hearing the story again. that at this point. but really in a backhanded way." in this essay. And. is to be contrasted with Professor Bob Works." 12 3 . it was meant as a compliment. Perhaps it was to poke fun a little bit at Professor Snowden. I think they have better things to do with their time). Why? Well. Professor Snowden placed his head on the table from which he was lecturing. "out of school.gotten the joke here." of course. of course. I of course thought that I would receive a startling round of applause from my classmates. of course. Now. who always "hid the ball. I don’t think there was a ball to hide with Snowden. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class. with only a few scattered laughs. and beat his forehead on the table several times. and having it in print would help to pass it on in the lore of my alma mater (Nebraska. and in thinking of Constitutional law relating to the First Amendment. being the proverbial student lounge area in the basement of the law school. All my professors were good– don’t get me wrong.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. The "Harvard" of the Plains). Snowden was just great. you might well anticipate. 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. Prof. It’s not that Snowden was hiding the ball. This. why did I tell this story. risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary. in the spirit of Professor Snowden. Second. I am going to press the envelope in this 2 The "pit.
.. when my dad had his first teaching job at Indiana State (I guess this was around 1963). there is an infinite regress. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. Boston 4 Now of course this might be pure hypoerbole. that is.. Kingsblood4 I remember my mom saying. here. It guarantees that all freemen shall not be "taken. Indiana. though.” . or exiled.. 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. approved it. 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. I remember Jack Kennedy’s funeral when I was four years old. (One Warin Fitz Gerald. or outlawed. me one quarter). alleging that it was coerced. Finally.v. of course. but then again. which 13 ." so that the clause can and should be read. or in any way harmed. I suppose in Europe I would be considered a Social Democrat. is that the judgment be one of "lawful judgment of his peers [and] by the law of the land. I remember that my mom and I both cried. and Stephen. Magna Carta in the year 1215.) One supposes that it would take a Royal to be a signatory otherwise the document would not have been binding on Evil King John. watching it on a black and white t. (We’re Fitzgeralds. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta]. 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. It was especially sad because we were Irish Catholic (my mom half. First.” or. the authors really intended "and" not "or.article." Now. I usually flash "progressive" when I hit faculty functions and faculty meetings. I am a liberal kennedy democrat "hiding out" as a moderate democrat. a Fitzgerald was a signatory of the English Constitution. with my mom in our rent house in Terre Haute. in the alternative.. Magna Carta is interesting.save by lawful judgment of his peers or by the law of the land. Norman Irish. The Archbishop of Canterbury was a signatory. or disseized. of course. Now. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. scriveners error.. or imprisoned. after the Battle of Runnymeade." Second." I have three arguments. it only takes a little bit of analysis to see that the requirement of Magna Carta.
in my case. I think. that’s the story. Ours family went West after the Civil War. They were the antithesis of everything we believed in. Sure. there was a lone gunman in each case. at this point you might say. natural law (common law). it was somehow in the blood.Fitzgeralds. We believed in Reason. it was the Kennedy curse. as well as the United States Supreme Court Bar.) Then. They were fanatics. Now. These killers were fundamentalists. I do. and of course is irrational and therefore an unacceptable interpretation. of course Bobby Kennedy was shot. It was impossible. as Tom Shaffer might put it. 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. It couldn’t be. Thomas Aquinas said there were three levels of law human law (political law). I figured it out at Rockhurst College. 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. we all knew. or Creighton. Now. We. but in our household we knew it wasn’t the whole story. "Who cares?" Well. We knew truth was possible even though it might be a little ambiguous and hard to get at. I’ve got judicial immunity. and thus are Esquires. If they can’t find such a jury. Not again. Ted knew. I didn’t know what it was. and a jury of those who are Members of the Order of the Coif. Suddenly instead of Camelot. the Catholic Liberals were Thomists. Catholic Thomists believe in Liberal Truth. tough luck. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. 14 .
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
from the motives of equity and fair dealing. one developes a conscience (to the extent that one does not already have one). one way or the other. 7 18 . unless prevented by estoppel. I think that this solves the problem nicely. I argue.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." a Universal Natural Law Ethical Decision making tool. An author faces this problem constantly. In my "Home Run Ball" article I introduce the "Ethic Matrix. not wanting to be sexist. and in good faith. and its practical effect is. rather than "his" or "her" would be More appropriate. to create and vest opposing rights in the party who obtains the benefit of the estoppel. and his silence or negative omission to do anything.of a party. perhaps the word "hae" as a personal neuter pronoun. remarkably enough. his positive acts. using that word in its broadest meaning as including his6 spoken or written words. The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. that if one practices using this tool long enough. Its foundation is justice and good conscience.
and in particular. 1068 (1912). Board of Education. Martin v. 298 (1913). pp.8 Now. in relation to the First Amendment of the United States Constitution.. Brusha v. or its application to others in similar circumstances. 740 (1890). Maine Cent. 21 Atl. in conjunction with the United States Constitution. 1016 (1916). Havalena Mining.W. Bank v. 19 . it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. 8 2 Pomeroy’s Equity Jurisprudence. as such. Title Guarantee & Trust. 879 (1912)). 644 (1912). Clark & Boise Lumber v. Pease 82 Atl.E. While some might argue such an approach is inappropriate. Lee. Rothschild v." That is. Bank of Neelyville v. 139 Pac. Conway Nat’l. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution. 1918) (Citing. 143 S. section 802. 157 Pac. one comes up with the Doctrine of "Constitutional Estoppel. it is in fact no more radical than arguing in equity that Constitutional rights can be waived. R. Franklin v. 986 (1916). 97 N.pre-eminently a creature of equity. 182 S. 1635-1637 (4th Ed.W. Duncan.
applies to the local Federal District Court for a permit for his group. Mr. such a resemblence is purely coincidental. and any resemblence to anyone else is purely a coidcidence. place. The "Hypo Nazi Party. and a such for First Amendment Free Speech and Free Association protected purposes. here is how it goes.Now. the Hypo Nazi Party10. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. please state your name for the record. 9 Mr. on information and belief. and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States. Those opposing the permit argue that Mr. Robotic9. how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well. They assert that reasonable time. Robotic is of course a purely fictional character. Robotic. Direct Examination (Mr. 20 10 . to march in Skokie. Rupert Robotic." of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945. Our Hypo Fuhrer. represented by Counsel for Applicant. Constitutionally Estopped from getting the permit and marching. Mr. The United States Attorney. A. and manner. as well as several other interested parties oppose the permit application.) Cross Examination (United States Attorney) Q. Robotic and his cohorts are. requirements have been met.
Q. A.. do you agree that other persons.. Robotic has admitted on cross examination that he and his party reject the United States Constitution..Q. please answer the question. Does your opposition include violent means? (Applicant’s Counsel: Objection. Your Honor. Applicant. Mr. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel. Your Honor. Your Honor. isn’t true that your Party supports the abolition of the United States Constitution. Answer goes to the Estoppel Argument). Under pain of perjury. and in that capacity are requesting a Parade Permit to march in Skokie. and the other interested parties have waived cross. that is the end of the United States Government’s cross examination. Irrelevant.) (Judge: Overruled. Alright. A. Robotic. mental or physical. Q. Mr. isn’t that correct? A. I withdraw the question. Your Honor. Yes.. We want them abolished. Q. not in your party. including but not limited to the First Amenment? Well. would also have a right to a permit to march in similar circumstances? Absolutely not. once we reach power. Robotic. Under pain of perjury. Mr. Q. yes. handicapped persons. Robotic you are representing the Hypo Nazi Party. 5th Amendment). It is our intention. to kill or place such people in concentration camps. Q. The First Amendment thereto under which any rights of free speech and free association can be asserted. Q. and finally has specifically denied that 21 A. such as racial minorities. We oppose the United States Constitution and the First Amendment. Your honor. Q. Mr. . (Applicant’s Counsel: Objection. perhaps.
Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. found in the Declaration of Independence. nor is it simply discovered. "pushing the envelope. rather. as such. one last thought here. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist. and. that although it could be used against a criminal defendant in certain circumstances. and since he rejects the First Amendment itself. the United States government and the United States Attorney argues that Mr. Mr. and incorporated by implicit and constructive reference into the United States Constitution. and Pursuit of Happiness. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts. Tony Fejfar) were on the bench. since. Robotic and his Hypo Nazi group from marching. Therefore. Liberty. but do not even have to rights of Life. 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. Additionally. Thank you Counsel. This Court is adjourned. the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. this is how things would play out if I (Prof. This is the kind of law. Now. Like panning for gold in the Rocky Mountains in Colorado. it is developed. I’m denying this permit to march in Skokie on the principle of Constitutional Estoppel denying any First Amendment or Substantive Due Process Rights to the applicant and his group the Hypo. Alright. I am also denying the Permit on the basis of Equitable Estoppel." "thinking outside the box. one must simply swish away the slag and the fools gold and look for the real gold that was always already there.A. It is neither created. Nazi Party in this matter. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw. Now.” Although it may seem 22 . The Court is now ruling from the Bench. as well as the United States Constitution itself.
CHAPTER IV A HOME RUN BALL.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. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX. Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality .
The cognitive functions of Thinking. Bernard Lonergan. 4. Proportionality as a basis for Justice is found in the work of Aristotle. 34 (1971) (discussing Value as a transcendental notion). Aristotle. Equity is based on the principle that Equity favors the one in need. Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. An analogous concept is found in modern economics and the philosophy of Mill and Bentham. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. See . Utility involves the Maximization of Value. It is found in common law equitable precepts. See. Aristotle. 1137a351137b24 (1976). See also. Feeling. Ethics. Method in Theology. Intuition.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. 1131a22-1131b14 (1976). and Sensation come 24 . 2. It is based on the Golden Rule found in the teachings of Jesus of Nazareth. 5. Proportionality is based upon Mathematics and Geometry. Ethics . 3. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context.
If one broadens this concept even further one finds that existence is a game to be played. Copyright . and then ethical analyis of the problem presented in the example. The cognitive functions of experience. reflection/ judgment come from the work of Bernard Lonergan. Existence is a Game to be Played. understanding. then it follows that life is play. A Universal Natural Law Ethic. that life." The Essay then involves a linguistic.11 Tony Fejfar 1.from the work of Depth Psychologist Carl Jung. is. 6 (1990)). This Essay begins with an overview of The Ethical Matrix. And if indeed baseball is one variety of play. Psychological Types . (See Bernard Lonergan. It is concluded that the Ethical Matrix is a valid natural 11 A common expression. The Essay then proceeds with an example involving possession of personal property and a "home run ball. policy. Fejfar. Introduction. 2002 Anthony J. 25 . (See Carl Jung. is like a baseball game. Cognitional Structure in Second Collection (1967)). One could also see this phrase as a Zen Koan.
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.
"). 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. T. Chap. Oxford Anno.22 19 The mythos of wisdom if found in the greek Sophia and Athena. and the catholic Holy Spirit of Divine Wisdom See generally. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. The hosts run out of wine and don’t know what to do. 2. John. Mary asks him to perform the miracle anyway (Equitable intervention based on need). the underlying symbolism of the narrative is the same. In this narrative. The hosts come to Mary and ask her if there is something that can be done. Bible (1977). The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. and Jesus does so. Feminine Equity based upon wisdom intuition 20 21 29 . Jesus of Nazareth and his mother Mary were attending a wedding celebration. v. Whether one takes these events as literally true or not. Bastick.is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need. the roman Minerva. 1-11. (See. turning water into wine.21 This is seen for example in the equitable doctrine of unconscionability.
E. and bargaining power. 441 N. Hoosier Photo. 22 See. 30 .2d 450 (1982) (discussing the "need" factors of knowledge. sophistication. Carr v.intercedes to make an Equitable Exception from a general rule based upon need. for the application of the equitable doctrine of unconscionability.
Carl Jung. and 23 See generally. "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). See also. Feeling.The Ethical Matrix finds support in the work of depth psychologist Carl Jung. the Jungian psychological functions of Intuition. "Psychological Types" (1990). Thinking.23 as seen in the figure below. 31 . Isabel Myers.
Understanding. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. Insight 350-352 (1956). 32 . 3. understanding.24 and the Lonerganian cognitional functions of experience. judgment/reflection 2. Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience."26. my schema is as follows: Lonergan 1. In order to more fully access the principles one must intuit Being. understanding 3. and reflection/judgment. and Love. Judgment/Reflection. The natural law ethical principles are universal in the sense that each contains minimal moral content. These functions correlate to the Jungian functions as follows: Jung 1. 2.Sensation. 4.25 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. support the respective Ethical Principles discussed above. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan.
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.
Oxford Anno. 3.33 My formulation of the rule as the principle of reciprocity is somewhat different. 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. Ch. while my formulation has a more individual flavor. it has a more communitarian flavor. 12. 7. Bible (1977). "Treat another as you would wish to be treated in a similar context. Additionally. v. The idea of reciprocity as an ethical principle takes into account the value of 33 Math.used most effectively. 36 ." Although the two different formulations are very close. one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action.
37 .34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. 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. see John Rawls.Autonomy. "A Theory of Justice" 513-519 (1971). This is based on 34 For an interesting discussion of Autonomy. This is the actuality of Reflective Autonomy rather than rational autonomy which manifests at the moral level based on moral rules and in a more limited sense at the selfish level based simply on the maximization of pleasure without reflection.
while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. 38 36 37 .’" Id. how much do they change.’ ‘But they’re loaded dice. What are these relational meaning streams." What sort of "chaos" is produced." "rearraned but not changed. Ford answers.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.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. For a general discussion of Chaos theory. is an even more interesting question."from the point of view of ordinary causality." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. James Gleick. its correlative cognitive functions. 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." If one sees the relational meaning streams as immutable platonic forms. Of course one finds the notion of the "Good" in Plato’s work. at 314. however. and when? These are the questions which have vexed philosophers for quite some time. or change context. then one would probably argue that such forms can be "added to but not subtracted from. 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. see. Chaos (1987). "‘God plays dice with the universe.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness." but also as "Being. 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.
let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. will choose pleasure over pain." George must now place himself in the shoes of Stan. Stan does not choose pain for the sake of pain. however. 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. Although in this situation the double reciprocal reflection may seem unnecessary. one must imagine that one is Stan placing himself in George’s shoes. and in the absence of a higher value achieved instrumentally through pain.accurately and making better decisions. there is no value to be achieved by Stan in having his face punched. George. is not the end of reciprocal reflection. This. and have Stan engage in a reciprocal reflection. George must posit that Stan’s desires in the situation are based upon positive values. 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. he (George) would not want to get punched in the face for no apparent reason. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation. Taking simple hypothetical then. Anticipating our discussion of Value. that is. Is there any 39 . 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. George must place himself imaginatively in Stan’s shoes and ask himself. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason.
The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. 4. there does not appear to be any higher reflective or moral value which Stan might recognize as valid.38 Having discussed the ethical principle of Reciprocity. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse. See. Utility. it’s usefulness becomes more apparent in more complex situations where there are legitimate values which relate to the interests of all the relevant actors. 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.reason why Stan imagining himself as George. Additionally. 38 While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face. the next subsection will discuss the principle of Utility. "The Principles of Morals and Legislation (1988). 39 40 . Jeremy Bentham. would see any value in George’s potential activity of punching Stan in the face.
and who intuit Being and Value in a positive way. Method in Theology 12 (1971).40 What can this mean? The Author would Bernard Lonergan. Although this has much to recommend to it. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. Value is a transcendental notion. Finally. Additionally. am building on the work on Bernard Lonergan. as I pointed out in my first article in the Boston College Law Review. it must be stated at this point that my approach to decision making differs. Although it is obvious that I. 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.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. Lonergan could only theorize that 40 41 . As pointed out by Jesuit philosopher Bernard Lonergan. the Author. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. Here. even those who have a good intuitive sense. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. the argument is that Utility is the ethical principle based on the maximization of Value. it is problematic in that it is not a principled ethic.
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. the state. in a particular decision-making context. If one reflectively intends Value. and the law. 42 . the rule of law. or in the context of a particular public policy analysis. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. as such.argue that Value is an core relational meaning stream. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. It is my position that the Ethical Matrix is the natural law-critical realist ethic. and due process of law. is the "good of order." While I have always read and interpreted this in a positive light. objectively. and is one which promotes constitutional democracy. Additionally. and have as a result of that process developed the Ethical Matrix. the goal of political society.
43 Other than this general 41 42 Aristotle. First.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem. can certainly be the basis for a particular value. moral rules are taught." 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. 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. for example. 41and that true happiness is achieved through the contemplative life. as such. upon reflection. it does entail certain problems. It is asserted that all other things being equal. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. Ethics 1097a15-1097b2 (1976). While the moral life has many positive attributes to recommend it. 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 . one can begin to recognize higher pleasures. pleasure. First. Additionally. cannot be denied. However. for example. While Aristotle argued that the end of the human person is happiness. and through the intuition of Value. and enforced through moral communities and authority figures. reinforced. 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. for various religious groups to have violent confrontations. 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. several points can be made. Thus it is not unusual. 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. the reflective person chooses a higher pleasure over a lower pleasure.
. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law.. the selfish person usually cannot even accomplish these goals without running into problems. and even when they are achieved. we are seeking for Spirit in ways that prevent its realization. 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. the accumulation of material wealth. he or she must have a better more prestigious sports car which in turn will not suffice. We seek for Spirit in this or that object. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. C. We seek for Spirit in the world of space. Ken Wilber. Additionally. And that is the Atman project. manipulation of others. anti-self interest" operates. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation.f. The Atman Project (1999): We seek for Spirit in the world of time. In other words. 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 force us to settle for substitute gratifications. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . Thus. in point of fact. and the pursuit of lower pleasure as one’s only ends in life. and it cannot be seen or grasped in the world of commodities and commotion. the selfish life is immoral and unethical. the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends. but the Spirit is spaceless.. and cannot there be found. the non-reflective. Id. shiny and alluring and full of fame or fortune.. at 61." that is. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value. and cannot there be found. leaves the person with a lack of genuine pleasure. but rather impedes it. 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. The acquisition of the sports car will typically not satisfy the selfish person.complexity of the real world it is impossible to make appropriate decisions without contextual reflection. but Spirit is not an object. but Spirit is timeless. the Author would argue that something like liberal "original sin. Because these rules exist. 43 Perhaps it goes without saying that for an adult. "irrational self. 44 . Instead.
The principle of proportionality is found in geometry and mathematics. It involves the idea that perfect proportion is found in a 1:1 ratio. Proportionality. 5. or in an equalateral triangle which has been divided down the middle. and. or as it is put biblically. The second corallary is that Perfect Justice is found in Perfect Proportion. other than to say that it is self evident that Value itself must be valued. for example. Proportional values involve the value of equality and having rules. once again. of course. and equity and equitable thinking. This leads us to our discussion of Proportionality. compensatory money damages should always equal the amount damaged. all other things being equal.guidance or limitation. in criminal law. punishment should be meted out in perfect proportion to the crime committed. and as expressed in particular concrete values. Thus. "An eye for an 45 . has no definitive serial ordering. however. Or. on proportionality and proportional thinking. 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. while equitable values involve the value of favoring or helping one in need. it must be stated that Value itself.
foot for foot. wound for wound. eye for eye."44 Aristotle. 46 . Exodus. appears to be the first person to formally recognize proportionality as a basis for justice. burn for burn. 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. stripe for stripe. Ch. you shall give/have. "life for life. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. 23-25 Oxford Bible (1977) ( For any harm. in his Ethics.eye and a tooth for a tooth. hand for hand. v. 21. tooth for tooth.").
1130b32-1131b14.treated equal on the basis of formal equality. and a case arises under this that is exceptional. 47 47 . "[A]ll law is universal. Aristotle.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice. [W]hen a law states a general rule. has erred in not covering that case. Ethics. Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance.46 As Aristotle puts it... there is a problem with this approach that Aristotle himself recognized. and as he would have enacted had he been aware of the circumstances. owing to the generality of his language. in fact this is not possible. Equity In his Ethics. Aristotle.48 45 46 See. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there.. Ethics 1137a17-1138a11 (1976)."47 Thus. then it is right. 6. 1132b3-1133a13 (1976). and there are some things about which it is not possible pronounce rightly in general terms. where the [legal decision-maker]. Id.
a rectification of law insofar as law 48 Id...Therefore.. 48 . is. "the essential nature of equity..
681."51 And as noted earlier." otherwise injustice is simply produced by unnecessary rigidity. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. 694 (1986). many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. Id. that rather it is impossible to generate a rule system that would justly take into account every possible circumstance. Thus. when does equity intervene. 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.50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. Fejfar. The question remains.is defective on account of its generality. however. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch. Anthony J. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words."49 This of course raises the corallary question. and how? Here there 49 50 Id. 51 49 . I suggested no to this question.
rather only a strictly logical exception. Nevertheless. accessible both to women and men. 50 .52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. we will now move to a concrete but theoretical legal problem. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. but rather one which is alinear and arational. is a half way house between purely irrational emotional feeling and strictly rational analysis.can be no hard and fast answer other than the fact that equity is based upon need. the next section will deal with a discussion of the concept of possession. 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. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control. the definition of possession in Property Law. and a true assessment of need must be an intuitive one. 7. to be followed by a section analyzing the concept of possession in light of the Ethical Matrix. 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. Having discussed the component parts of the Ethical Matrix in some detail. Thus. This intuitive intermediate way of knowing which is associated with wisdom.
The problem. If however. Now. 520 (1984).that one has control over personal property. Now if we expected to find reality on the level of logic or ideas. we find that reality comes at a higher level. While we sometimes get to 10 or 12 or so different words."53 showing that all definitional arguments are ultimately circular and thus indeterminate. 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." Should this surprise us? No. L. one simply is presented with the phenomenon of "analytic spin. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. 53 See generally. and that is this: possession is related to control. If one analyzes a concept enough. Rev. because all definitions are ultimately circular. we try to generate list of definitions of words associated with possession. utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. the substance of what the students are getting at remains the same. is that when one attempts to find an adequate definition of "control." one is again faced with a problem. 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. "Deconstructing the Legislative Veto. this of course would be a problem. 51 . for example." 68 Minn. but it need not be. 473. this could be troubling to you and I. one is typically thought to possess it. Girdeau Spann. however. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity.
" one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball.54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention. Actuality: Mind: Understanding: Logic and Logical Reasoning 1. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. At level two on the level of "actuality. possession could be considered respectively. At level one." 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. Now all of this seems very abstract. Following the work of Bernard Lonergan. which deploy as follows: 3. He also wishes to thank students from several property classes 52 54 . on the "reacal" level. At level three in "reality. returning to our concept of possession. and then using physical or political force to retain possession.then we find that there is no problem at all. Reacality: Body: Sense Experience/Data: Power/Authority Power Politics Now. on the three levels above. a critical realist understanding of the problem can be seen as involving at least three levels to reality. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case.
Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco. June 26." Id." Id... 2001). Patriot News Newspaper. (2003 Westlaw # 3207018. as well as this article.. In the Barry Bond’s Home Run Ball case. St... 2003). who turns out to be Patrick Hayashi. "At first the ball appears to [pop] out. Who gets the ball? According to Jorge Costa. before Popov is tackled by dozens of other fans clawing for the ball. clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands].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. "Once major league baseball identifies the individual with the possession of the ball. Oct. Petersburg Times Newspaper. 53 . 10.000 received at auction for the home run ball. Both Popov and Hayashi end up claiming the ball. but then it drifts back into the glove. emerges from the pile he has been mining for more than a minute with a smile and appears to say. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away. "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. "A tape of the homerun scrable." Id. "[A] man. Team Senior Vice President of Pacific Bell Baseball Park Operations. (2001 Westlaw # 25594143. that’s the end of that." Id. ‘Who has the Ball?’ Id.
56 This is obviously an imaginary hypothetical since Pudge Rodriguez. You reach up to catch the ball. your glove opens an inch 55 For many fans.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. and risk injury attempting to catch baseballs rocketing their way. but you slip on a hotdog and lose your balance.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you. 54 . especially the younger ones. nets. and will occasionally display incredible bravery (or is it foolhardiness?). Many will bring gloves. Baseball and the Pursuit of Innocence. and other apparatus to the ballpark to aid in their quest. There are few more memorable experiences than leaving the stadium ball in hand. 173-74 (1994).Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. The ball has just made contact with the trap of your glove. and instead of completely closing. that fan can expect appreciative cheers from the crowd). As each ball heads toward the seats. 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. the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. Richard Skolnik.
Joe Smith. Ballpark rules say that the first person to "possess" the ball owns it. See supra. note . 55 . You say the ball is yours because you caught it first. The ball pops out of your glove and into your other hand. the second guy says it his because you did not have control of the ball. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. Costa’s position.further and you start to bobble the ball. bounces back toward your glove.57 57 This appears to be Mr.
The case is turned over to a judge who must decide the case based on case law from two previous cases. 875 (1902). Young v. fish. they are the only two relevant cases. 6 Q."63 "leaving a space of about seven fathoms 58 59 60 61 6 Q. The argument is that a flying baseball is analogous to a free flying wild animal.B. 607. 606 (1844). the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish. in Bruce and Ely.B. A fathom is six feet in length. 65 N. Shaw. 900 feet would be a length of 300 yards or three football fields long.60 In Young v. Bracketed information found in edited version of Young.59 Although both these cases deal with the possession of wild animals. Black Law Dictionary. Hichens. Modern Property Law (1999).E. Hichens58 and State v. 62 63 56 . namely. for our purposes.
Id..open."64 (42 feet)."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.67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id.."65 At this time. were stationed at the opening... 57 .. and splashing the water about for the purpose of terrifying the fish from passing through the opening. Id. Id. "two boats belonging to the plaintiff..
"70 Additionally. Chief Justice. In his opinion. the defendant was criminally charged 68 69 70 Id.B. 58 . "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish. 611. Shaw. If the plaintiff did have possession of the fish.72 In Shaw. 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."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. Lord Denman stated."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. 6 Q. Justice Patteson stated.68 At issue in Young. "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. In contrast to Young. is State v. Id. this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals.
E.71 72 Id. 59 . 65 N. 875 (1902).
to escape. 65 N.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. 65 N. In fact the case only inicates that the these parties were named in the indictment.E.with stealing 730 pounds of fish from the complainant’s73 nets. took the fish from the owner-compainants’ nets prior to the return of the owner-complainants. 876.78 The trial court directed a verdict of not guilty for the defendant. there can be no theft. 68 N. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment.76 In Shaw.74 The facts indicate that the compainants had placed "trap nets. not that they were formal complaintants. To put the argument more fully. 60 74 75 76 77 78 79 . A "trap net" is a type of net which has a long tunnel which gradually narrows leading to an aperature in a "pot" portion of the net from which it is very difficult but not impossible for fish who have found their way into the pot. the defendants who were not 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. the defendant must have stolen property from someone owning the property. and the state appealed. to prove theft. 876."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. Id.E. 876.79 73 The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken.E.
"the fish were not at large in lake Erie. from which it was not absolutely impossible for them to escape."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net.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. yet it was practically so impossible. for it seems that in ordinary circumstances few. Id. Id."81 The court opined."83 Thus."80 The court noted that in Shaw. that it considered the trial court’s approach to be "unnecessarily technical and erroneous. 80 81 82 83 84 Id. 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. Id. They were confined in nets. if any. 61 . therefore. of the fish escape.84 8. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession. at 876-877.
Arguably. The Wisdom of Laotse (1976). You reach up to catch the ball. Joe Smith.In the present case we must attempt a logical analysis. and instead of completely closing. 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. based on the foregoing precedents. 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. Suddenly Pudge Rodriguez hits a home run into the stands in left field. The ball pops out of your glove and into your other hand. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. your glove opens an inch further and you start to bobble the ball. This possibility is reflected in the following story: 62 . Daoism was first developed in China by Lao Tzu. You (Freddie Fan) have your ball glove on and the ball is coming right toward you. bounces back toward your glove. Young. as to who has a right of possession in the home run baseball. but you slip on a hotdog and lose your balance. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. See generally. The ball has just made contact with the trap of your glove. the second guy says it his because you did not have control of the ball. The argument is of course that by custom. You say the ball is yours because you caught it first. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap.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. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. and Shaw. both the batter.
I thought you said catching a [fly] ball was tough. The good fan does not lose his temper. 128-29 (2001). my Dad. The Virtue of Non-contending 293 (1976). To a Daoist the above story does not seem improbable. He hit a high pop-up that came sailing straight at us. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. The great player does not compete. edited by Jack Canfield. we watched the ball drop between us–right in [my wife] Joanne’s lap.It happened this way: My wife. Chicken Soup for the Baseball Fan’s Soul. First inning. To paraphrase Lao Tzu: The brave baseball player is not athletic. stepping back to let his son’s dream come true. realizing that I had to let my Dad get it. see. Joanne. al. Rudy. 63 . Looking up with a wide grin. But he did the same. For a discussion of the Dao in relation to Basketball. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. John F. The good fighter does not lose his temper. she [my wife] said. "Honey. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. first pitch to leadoff batter Ricky Henderson. Dad and I leapt to our feet. To our horror. The [D]ao of the Jumpshot (2000). The Wisdom of Lao Tzu. The great conquerer does not fight. and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. et. Mahoney .
" Shaw." Following Young. Arguably then. in the case of the home run 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. is distinguishable. 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. and only had partial control before Joe Smith reached in and grabbed the ball. Accordingly. 64 . In this case Freddie Fan bobbled the ball. On the other hand it one could argue that the Young case although generally controlling. absolute control of the ball is necessary before one can assert that one has possession. The bobbled ball case. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. 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." and "almost" possession is not "possession. then it could be argued that in the present case involving the bobbled ball. the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most. and therefore Joe Smith as first possessor would own the ball. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw.If we were to follow the Young case. Recall that the court concluded in Young that partial control is not enough. then. is remarkably like Young where the net of the first boat had not completed closed. In the present case. Freddie Fan did not have sufficient control to obtain possession of the ball. "Almost" control is not "control. Only partial control was present in Young.
see. In this case it appears that the batter. Since this is a baseball game.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. Drew A. 6 (The Stance of Sport) 125 (1990). In baseball. and sports related values. have waived their rights to the ball and so they will not be discussed. the team owner. fair play. Hyland. X (1983): 61-70. Critical Readings. but recognition. in one sense an outfielder is competing with other outfielders on the same team for not only excellence. ch. 65 . However. Peter J. and the owner of the stadium (if different). 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. and Craig Clifford and Randolph M. Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. Feezel. Coaching for Character (1997). Philosophy of Sport. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix. First we must identify the persons relevant to the reciprocity analysis. Arnold.9. Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship.
in N.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. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player.C. Thus. One must make the assumption for purposes of analysis that both Freddie and Joe.A." Subsection (a. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder. In fact. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession.. we start with Freddie Fan and Joe Smith." 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.must be given an unimpeded opportunity to catch [a] kick.. believe in fair play and sportsmanship. as sports fans.) 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. at least in the abstract. Starting with this operating assumption. Now. Similarly. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. Football Rules. how does all of this play out in terms of the Ethical Matrix? First. one might generalize this rule to apply to all cases involving partial possession of property." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way. using the principle of reciprocity. 66 . then. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply.A.
Joe Smith. and thus recognizes that "after the dust has settled. understands. which can be applied relative to both Joe and Freddie. then. First. No further discussion is needed. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances. would come to the position. at least in the hypothetical . Joe Smith as a sports fan. Freddie Fan would be entitled to the home run ball. Joe Smith. the discussion is relatively strait forward. with respect to Utility. take the position that "ethically. With respect to the principle of proportionality.one must have Freddie Fan place himself in the shoes of Joe Smith. In my judgment. the principle can be used in the sense of creating a general rule. had partial possession of a home run ball. ethically. With respect to the remainder of the analysis under the Ethical Matrix. in a similar situation. Would Joe Smith. as a matter of rule based ethics is legally entitled to the home run ball. if he. and therefore the proportionality test is met. and takes comfort in the conclusion and rule that next time. It can so be applied. Now we apply the Ethical Matrix the other way. who also is hypothesized to be believe in sportsmanship and fairplay." Hypothetically. placing himself in the shoes of Freddie Fan. 67 Finally. Joe Smith would be ethically and legally entitled to the ball. Joe Smith. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. Freddie Fan. that is. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. the fair opportunity rule. believes in the "fair opportunity" rule. Additionally. he. and hypothetically all others. that Freddie Fan is entitled to the ball." Freddie Fan should get the home run ball as first possessor with partial control. relative to the question of who gets the ball "ethically." he. because.
As a part of the analysis. and then ethical analysis of the problem presented in the example. 68 . It is concluded that the Ethical Matrix is a valid natural law ethical tool for engaging in public policy and legal analysis. policy. A Universal Natural Law Ethic. the result reached in the policy analysis section passes the muster of the Ethical Matrix. The Article then proceeded with an example involving possession of personal property and a "home run ball. Thus.presented there does not seem to be any need for contextual equity. the "fair opportunity" rule for the possession and ownership of personal property is developed. and therefore the fair opportunity rule applies as stated. Conclusion This Article began with an overview of The Ethical Matrix." The Article then involved a linguistic. 10.
etc. Corporate work places are dehumanizing both in terms of the type of work that is done. only the stock holders would be prioritized or even included as stakeholders. Often. consumers of products.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. The Corporation’s typical goal. then. and even. but also in terms of long hours. legally. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. traditionally. The argument is that. Typically. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility. traditionally. in the first instance can be asserted against the Corporation. local and regional communities themselves. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. and then trying to fairly balance or adjudicate their respective interests. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders.” Cynically. also. and perhaps only goal. Corporate employees. but. If one takes what I would call a “property rights” oriented view of the Corporation. families of employees. is to profit maximize for the benefit of the 69 . often.
other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. is that the Corporation would not be profit maximizing.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. The solution to this problem in my view is to at least allow. from a “liberal” point of view. “The Z Corp. The purpose of the Corporation also would be to promote the 70 . in the guise of short term profit taking. and perhaps even in the short term. and long run.stockholders. one gains the edge by having management and employees who are not merely competent. that. the restructuring of Corporations to create a new type of Corporation. however. especially. Unfortunately. and Truly Worthwhile. and the Good as a Critical Thomist Ideal. which is irrational in both the medium and long term. How do we resolve this condundrum? Well. medium. the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization. arguably. The problem with this second approach. first of all all of the empirical evidence that I have seen indicates that in most industries. but are on the cutting edge. one profit maximizes by investing in human capital in and for the short.” The Business Judgment Rule would be based on the Ethical Matrix. the shareholders. In this instance. Alternatively. discussed previously in Chapter IV . corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. but also in making ethical judgments to promote the Common Good. and. if not require. corporate fascists often fire employees and break up companies for no rational reason at all. a “duty-conscience rights” oriented view of the Corporation could be developed and used. In a competitive market.
” However. life insurance. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. which would be give preferential tax treatment with respect to the interest produced. law professors. A law firm which was a Z Corporation. because the management literature almost uniformly suggests that ethically run corporations produce more money. The Z Corp.” Here the rather obvious response is that ethical decisionmaking in the 71 . and I suggest. and The Good as a Critical Thomist Ideal. would of course be “profit moderatizing. Of course one might respond that one is comparing apples and oranges. The Bonds could of course be publicly traded either on the New York Stock Exchange. in an attempt to meet the objection head on. at below market rates. The trustees would be experienced business persons. Another objection might be that ethical decision making in the context of a Z Corp. The Truly Worthwhile. Z Corps. Finally. etc. no more than 20% of the stock would be publicly traded. with a values orientation. One might argue of course that a Z Corporation would not be “profit maximizing. This stock would produce no dividends. such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover.“Common Good. and an ability to use the Ethical Matrix. would produce a greater profit than its older cousin. disability insurance. would be “irrational. for example. and. Capital would be raised primarily through the use of Corporate Debenture Bonds. or on the Chicago Mercantile Exchange.” Additionally.. I would argue that overall. A Z Corporation would be able set up subsidiary corporations which could provide health insurance.
spin-off. Additionally. operations. It is an objective. are totally unrelated and thus would diversify the income stream of the parent Z Corp. I would reiterate that Z Corp. will be the end of both unreflective fascist capitalism.” is objective.context of the “Ethical Matrix. I think that we will find that Z Corps. unreflective fascist communism or nazism. natural law. in the case of economic or other cyclical downturns. traditional non-profits such as Universities and Hospitals could incorporate as Z Corps. Finally. type way of thinking. and in conjunction with the subsidiarity doctrine which diversifies responsibility through society. universal. perhaps even treating the interest as tax exempt. and have wholly owned subsidiary Z Corps. will be the way of the future. and. bonds be given preferential tax treatment. which involve related. or alternatively. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. or offshoot. 72 .
" as such." I suggest that we at least try out two very interesting metaphysical concepts. Does this really make sense? Logical positivism at its best." So. but the problem itself. on the other hand. is defined as "Empty Form. suggests that the meaning framework that we bring to a problem affects. on a Quantum Level. deals with depth. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle. surfaces. or structure. the logical positivist. Substance. Ken Wilber calls this "flatland. let’s talk about these concepts. Form and Substance. then. "Form. So perhaps we might wonder. Form. deals with formality. tells that reality is manifested primarily through words or language. or perhaps even hermeneutics. Use the wrong concepts and one’s mind goes into "Quantum Spin. or 73 . not only how we solve the problem. or perhaps. denies the existence and efficacy of metaphysical principles. not only how we approach the problem.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. found in Quantum Physics." Now in order to avoid "Quantum Spin. without taking the time here to trash Ockham’s Razor. typically." Now. the ideal." as such is defined as "Formless Form." and "Substance.
my wife is from Texas. "Well. would say that if something is growing on the side of the road which is larger than a grass or a weed. he says. This yarn involves members of my family. I would call it some shoots that are sort of clumped together." Uncle Chris comes along. I’d probably call that scrub. but is smaller than a tree. wise in the ways of the world. along comes my kids. "Bush. let me tell a yarn that includes a couple of examples. Well. from my point of view. "Would a rose by any other name smell as sweet?" "Uncle Chris. is some scrub. I think you have been hanging around Dad 74 . Josh (age 9) and Cristina (age 12). and my folks live down there now in Fort Worth. In describing this bush. Now at this point in the story. "Mom calls that scrub. and I think that on a good day my wife’s relatives from Shiner. true. and although not literally. coming from Nebraska. is lots of fun. Crista. says. however. Texas. even though both seen to have some relationship to Texas in this story). "Dad. Now the logical positivist might doubt that these two concepts are really different. and although he is from Texas. where my wife’s folks live. Crista asks. You go for a walk. with leaves sticking out in various places. what’s the difference?" Uncle Chris Stluka. shrub. But before you decide. what is that?" Josh responds. and beside the road that you are walking on is some "scrub. and for some reason your out for a walk in Shiner." Now. Now.reality without form. Bill Shakespeare thought about the same question when he asked in one of his plays. Texas ( home of Shinerbock Beer). course. scrub. I think that that just might be a shrub not scrub." Crista then says. "You know Josh. and you see some scrub. a bush (not to be confused with President Bush. let’s say for the sake of argument that you are a Yankee from up north (like me).
" "Josh and Crista. its getting hot– remember we’re in Texas in July." says Crista. "Tricks Josh?" asks Dad?. the Mom now appears. I want to see some practical results here. and a red convertible car on my 16th birthday?" responds Crista. and of course Scruffy. "Dad. is this one of your tricks?" says Josh. all three words mean the same thing." "See kids.too much." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. now listen to your Dad." as a matter of "substance. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad. "Yeah Dad. the same. At this point Dad cuts in. "I give up." says Uncle Chris. we’re all supposed to think about things like that." says Crista." (Judi. that why God gave us these noggins to think with.) "Well kids let’s get inside and have 75 . your Dad solved it. where could you have gotten such an idea. I just give up." says Dad "Allright Dad. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. So. Dad." Uncle Chris. "Well. really. in form there is a difference. I think Scruffy (the Dog) wants to go in. "Well. "Yeah. "Well. kids. "the point is that although as a matter of "form" we have three different words for a "bush. "Wait a minute Dad. let’s say that I believe that the form-substance distinction exists. "Now Crista." and "shrub. but in substance. "bush. let’s put the pedal to the metal." however. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids. how is this going to help me get a job." says Uncle Chris." "scrub. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary." that is. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. Crista. and Uncle Chris." says Dad.
" says Mom. "Now wait a minute" says Uncle Chris.your late night snack and get ready for bed. well. "lets say that you. "Well Crista. I like the utility of have three popsicles for our late night snack rather than two." says Uncle Chris. "Well Chris. we raised our kids to think critically and question authority. and how does that work?" says Mom. Mother.. the practical point Cristina Elise is that lawyers use the form-substance distinction all the time. is there really any inconsistency here. "Mom. but from the point of view of the "truly worthwhile.m.. Josh. "I for one want to hear the end of the discussion about the form-substance distinction. we’re discussing the form substance distinction here. 76 . responds Dad.." "Whoah there Judi.. "Yes. and we haven’t quite got through yet." says Crista. "Yes." says Dad. "would a Mom by any other name smell as sweet?" "Josh mind your manners. does this mean I call stay up until 2:00 a. couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. Judi." says Mom." say Judi. I think using the Ethical Matrix we have to weigh the utility of staying up late with the down side of you sleeping in until noon tomarrow when we are planning to go into Victoria for lunch and to a movie. Tony." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up.." "Oh." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions. 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. were trying to create a joint tenancy with you and myself with some property you already owned." say Josh. "Yeah Mom. we’re a Critical Thomist family.K. O.. "Mom.?" says Dad." say Josh.. "Well." says Uncle Chris.. Dear. even property lawyers. "Well.
" who was a trustee. what does this have to do with the form substance distinction. not to cut the story short. "Well. "that although in form. "O. one with a strawperson. and interest. the point is. the problem was that if you already owned the property. "Well. "What’s a joint tenancy again Dad?." says Dad. to create this joint tenancy of yours?" says Judi."O. title would already have been conveyed to you the grantor." says Dad." "O. in fact.K"." says Mom. Therefore the four unities could not be satisfied." says Dad. "Well. Crista.m.. thus satisfying all four unities all at once. "I think I’ve got this one figured 77 .K. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson. possession. "O. Tony. "Now.K. which of course means that unless the tenancy is severed before one of them dies.K. Tony. who then conveyed the property to the grantor-original owner and the other person at the same time. "Me too Dad. But what is the point." says Crista.K." says Dad. says Uncle Chris. so?" says Judi. If the two transactions are the same in substance." says Crista. one with a direct conveyance. says Crista. "Now. I think I got it. at the traditional common law. this is because the unities of time. all have to be satisfied at the same time. why not just say that the original transaction was O. I think I’m getting this. but as joint tenants. "Alright. it getting late and I want to watch Law and Order at 10:00 p. "You know". in substance they are the same." say Mom. "a joint tenancy could not be created by one person who already owned the property conveying part to another. its where two or more persons hold real property in common." says Josh (as he rolls his eyes)." says Dad." "O. prior to your attempt to convey it to the other person. title. the survivor automatically gets the other tenant’s share.K Dad.. the two transactions are different.
" "Hmmm. interesting. then you know what? they change the rule so that the form does not have to be met. "No. go ahead. "if a court or a legislature chooses substance over form. I don’t want to miss my show. head on into the house to watch Law and Order." says Mom." "The law is like this all over the place. let me think it through.out. do I get to guess the answer?" "Sure Chris. says Mom. you’ve got the floor." says Dad. and you still get the substance. "Well. did you want to chime in?" asks Tony. their minds filled with jurisprudential sugar plums. "You know I had it but then I lost it." And so the Fejfar-Stluka clan. let’s continue this discussion inside." "Well." says Tony." says Tony." go ahead Tony" says Uncle Chris. "and in fact that is just what has happened. "Judi. Lawyers are constantly arguing that something is or is not the same in form or substance. By modern common law and modern statute. 78 . you can create a joint tenancy by a direct conveyance without using a strawperson." says Chris. Well.
was my freshman theology professor. Don’t get me wrong. Anyway. I stopped by Father Dehne’s office. Missouri–a good mid-western Jesuit school. in Kansas City. 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. Nebraska.D. but somehow I think the whole process worked in reverse. in Lincoln. This was my first exposure to priests in tweed sports coats. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends. for a 79 .. S.C. I was teaching mentally retarded children’s C. its not that I thought that I would be manipulated the Good Father. Carl Dehne.J. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). the priests wore their collars and blacks even while taking their showers. before you know it. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. because. believe me. So.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College.
. he"s another Rockhurst student who is already teaching. I thought to myself.A." "Well then it’s perfect." J. Well." said Dehne. Oh." Then Dehne says. so I said . "Great. was Kansas City Arrakis. till 6:00 p. then I say mass for the kids.R. what is 80 . that is the Planet Dune." I gulped. we have this mentally retarded children’s C.k.m. Not the President of the College. Father Weiss. so. "maybe around 9:00 o’clock or so. of course. Dehne looked at me. "O. once I knew Weiss was invited.D. "what time do they start?" "Oh. and then you.. no.R. can go over to the J. Then he said.m. fraternity parties on Saturday nights and I think I’d have a conflict. I have S. and me Paul Atredeides. I and John Blando. that sounds great Father Dehne. metaphorically. the point. I don’t know. or was there a deeper plot." I replied. there is an opening. Now what was I going to do? "Well.C. Father Dehne." I said. "Oh. C." "but you know. Father Carl. I thought to myself. I don’t see a problem with that." replied. when you’ve been eating dormitory food. I couldn’t figure it out on the spot.couple of big university masses. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade. and believe me. Now there was a quid pro quo. you know.C. the thought of eating good Italian food was beyond the imagination. is from 5:00 p. Duncan Idaho. and raid the refrigertator. I had already heard about Jenny’s Italian restaurant down by the river. Somehow. sort of quizzically. program across the street on Saturday evenings.. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. Now was Father Dehne bluffing? Thinking that I would back out. Maybe we could get Father Weiss to come along. Oh.D.E. that sounds good. and you can get your Sunday mass obligation out of the way.
for once at a complete loss for words." And so I did. I’ve been hooked on Starwars ever since.. 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. Evil is Ying and Good is Yang. "O.” to be a little bit 81 .D. 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. "Oh.K. at least not consciously. Tony." replied Carl.” rather than “Jurisprudentialist. I think since Vatican II we just expect vocations to fall from the trees. "Rush program. Dallas? "The J. I muse about Starwars a lot." I said.. looking for deeper insights. of course the answer is that Carl Dehne and I took the C. The Force clearly being the Dao. thing and be a Crucifer. is it Father Carl?" I asked.this. "Well.R. Now I heard that. you know. "This isn’t part of the Jesuit rush program. Father Carl.87 a bit of a philosopher. I find the term “Jurisprude. however. but what the hell did it mean? I couldn’t figure it out. what would that be?" I asked." was all I could say. kids Nick and Billy to see the original Starwars movie when it first came out. For some reason. the first think I’d say about Starwars is that unlike Star Trek..C.C. Now. Well. 87 John Snowden used the term “Jurisprude. almost as if He doesn’t exist. Not much talk about God. and. the Jesuit Residence." I guess I can do the C. . what does this have to do with Luke Skywalker and the Void.. Good is pitted against Evil. Now. only the Daoist Force. being a jurisprudentialist.D. "Oh." said Father Dehne. I just don’t think that is done anymore.” when I was in law school." said Father Carl. Now. "whatever could that be?" "Well. Starwars is clearly a Daoist Universe.
own face. Thrust. and Hero. and to Luke’s utter surprise. or otherwise. In the lore of the East. Campbell’s book on Myth). and then one day Yoda gives Luke an unusual instruction. The Absolute. He runs out of the Hollow and back to ordinary reality. finds his. But before Luke fully developes his powers he must first be trained by his Daoist Master. within what he thought was Vader’s Helmet. Luke is shocked. not unlike Beowulf. on his Shamanic Hero’s journey into the subconscious (see generally. Hell is more of a state of being rather than a place. after death. Luke vanquishes Darth Vader. the point is that in the East. as perhaps Henri Bergson might put it. Good Guy. Luke lights up his light saber and engages. "Luke. One could describe the Void as a place. 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. Hell. but it is a different kind of “prudish.Into all of this steps Luke Skywalker. So Luke descends into the bowels of the earth. Luke then bends over Vader’s body and takes off his mask. Luke goes through a variety of training exersizes. what is my gloss on this situation? Well. the battle goes on. one enter encounters a different world. as such does not really exist. Luke’s. parry. When one enters The Void. So. 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. says Yoda. where Kirk is found and (rescued?) by Captain Picard and Riker." in substance. only the Void. riposte. in the Underworld. in the hollow of the tree must you go and say more I cannot. or. In the Hollow of the Tree. apprentice Jedi Knight. 82 . Finally. what’s the point? Well. Yoda.” for me to use. Now. I would say that the Hollow in the Underworld represents the Daoist Void.
as such exists. food for 83 . As many New Age writers point out. then you will find Heaven in The Void. So there it is. My gloss on Star Wars and Luke Skywalker. The Void immediately dishes up for the participant a reality which reflects at the core. even if we have screwed up. Just like I tell my students in my law school classes.place. for one who is in The Void. get our psyche shaped up. if you have been a remarkably good person on earth. If you are genuinely a horrible person as a result of your own free will. with a little luck. and then to make amends for what we have done. In Jungian terms. maybe you or I will find Jesus in The Void. So. Now. will help us to withdraw our projections. that is his persona (Darth’s? Luke’s?}. his enemy. This is of course confirmed when Luke takes off Darth Vader’s mask. "What goes around comes around. If nothing else. But. or an Angel. we judge ourselves in The Void. On the other hand. I do believe that The Void exists. as Fox points out in his book. and He. The Void immediately manifests back to the participant the particiapant’s projected Shadow. God doesn’t judge us. it’s the other other way around. after death. it’s a little more immediate. you will find yourself in a reality where your Void Projections will attack and torture you in the same way you have attacked and tortured others on earth." except of course in The Void. like Yoda. I could stop here and play it safe. or a Goddess or a good friend. Luke finds Darth Vader. Instead of finding God. not only for Himself. I personally don’t think that Hell. Where does God fit in? Well. who and what that person really is. Who you are is what you get. back to Luke Skywalker. "The Sermon on the Mount. and finds within the self which is Luke. but for us. in The Void. then. but I won’t. Rather than the Void imposing its reality on the participant. his nemesis. So." Jesus transcends all Karma.
is the author of "Insight. as originally developed by Jesuit Philosopher Bernard Lonergan. ‘Cognitional structure. S.’ in "Collection. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based.J. "Method in Theology" (1971).88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest. in part. and." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy).thought. knowing involves at the least a set of three interrellated cognitive operations beginning with experience. neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. upon the Critical Realist philosophy. Papers by Bernard Lonergan. continuing with understanding. CHAPTER VIII CRITICAL THOMISM. rather. 84 89 .. and then culminating in a third cognitive 88 Bernard Lonergan. A Study in Human Understanding (1958).
understanding. 90 85 . or reflection. see ‘Cognitional Structure’ in "Collection" above.90 For a general discussion of the cognitional levels of experience. and judgment/reflection. as outlined by Lonergan.operation which is judgment.
one would ask the question. 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position. citing. Attempting to consider these categories in terms of logical questions relating to law. on the second level. mind. Ken Wilber. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. a naively idealist view of the "already-out-there-now-real. one can see that law can first be seen on one level as a matter of power and authority. 92 93 See Ken Wilber. and judgment. Bernard Lonergan. 683 (1986).T. but in my view could also be described as "Zen Realism. Suzuki.") (p. on a second level. the notion of Being valuing found in Maslow is also similar. on the first level one would ask the question how?. 128). at least Existential Hell. postmodernism itself. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding. Anthony J. and on a third level. is consistent with other ways of relating to the world around us. one would ask the question. but in some sense perhaps Hell. Actuality is discussed in Erik Erikson’s psychology. rather reality was thought to be found on three levels. on level one we would simply find "reacality" or illusory sense experience93. we in fact find "reality.This tripartite structure of experience. Perhaps Nirvana or Heaven can be found at level two.92 Additionally." 86 . a matter of logic and policy."94 Finally.? Consistent with Buddism. and spirit (intellect). in analyzing law. For example. why. it is at level three.. "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act. "Insight: A Study in Human Understanding. and Spirituality" (199x). "Sex. body. and on the third level.. "Boomeritis. a matter of values. understanding." 251 (1958)." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough." 681. D. Ecology."95 All of the foregoing can be illustrated to some degree using the 91 See. can be found there as well. on level two we would find actuality. Fejfar. what?. and.
because in fact the laws of biology. perhaps the empiricist or the logical positivist doubts that there is a difference between. Newtonian Physics." This is a perfect example of how one’s mind can in the same 87 . The branch is six feet long and straight. Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight. The following illustration. "sees" that the branch is "crooked. in conjunction with past sense experience. Intellect 2. Because of the refraction of light. that the branch "really" must be straight. experience and understanding. taken from Lonergan’s work may be useful. You are going to a pond full of water and you pick up a tree branch on the way. Mind 1. the portion of the branch below the water looks crooked relative to the portion of the branch above the water. You reach the shore of the pond and stick the branch into the water. suggest to you. another part of your mind which is utilizing current sense experience. in the first instance. and chemistry. On the other hand.chart below: Fejfar 3. 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.
As Gadamer points out to us. and at same time on the level of understanding "understand" the data differently on the level of understanding. 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. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest.1992) 88 . Now all of this raises a third question.96 knowledge cannot come to us apart from mediated meaning categories. "Truth and Method" (2nd Ed. 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.context "experience" the data of sense on the level of experience. Hans Georg Gadamer. 96 See generally. First. These occur primarily on the level of understanding. in distinguishing judgment from experience. as such. is merely a collage of mixed sense impressions. and the levels of understanding and experience on the other. it is apparent that experience by itself.
Anthony J. but I can’t find the cite for it.99 While this may sound far fetched to the man or woman in the street. Fejfar.B. see Anthony J. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. 274. Perhaps. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory." citing. it is also my reading of the literature that an "alinear" or 89 100 . "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. There at least two possible responses to this objection." 14 Cornell L. The Theory of Judicial Decision: or How Judges Think. and transcend them to form a judgment of real fact or a reflection on or of deeper reality. 285 (1929) (quoting. 357." 158-161 (1999) (in the Collected Works of Ken Wilber.Now." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982). I’m sure that I read this "koan" type statement in a book by D. from a Critical Thomist point of view.A. Judge Hutcheson. "Quantum Reality: Beyond the New Physics. Radin. Ken Wilber.J.T. "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance. Nick Herbert. First. An Excursion Into Metaphysics" (1985). 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. In some sense judgment and reflection reach beyond mere understanding and mere sense experience.. it is possible to 97 For a discussion of intuition." 11 A. perhaps it doesn’t. 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. Suzuki. 99 Or. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. Volume II). quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly. integrate them. 359 (1925). or reflective knowing at level three. "The Atman Project. In any event it is clearly a Zen Realist type statement.Q. at a distance.100 So perhaps as the philosopher Henri Bergson suggests. one must "become" the rock. in fact. See also." 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. sublate98 them. However. and. see Nick Herbert. Fejfar.
Because of Heisenberg’s indeterminacy theory. if sufficiently precise measuring devices are used. using classical newtonian physics. then. and a timer. On the contrary. and then we would get identicle results. Now. will produce probablistic variances. Thus. 90 . and quantum indeterminacy. Instead there would be a statistical spread. that such a probabalistic universe is unverifiable. one would be clearly embarking into measurements which are more clearly taken in the quantum range. and with a Force measuring device at the bottom of the ramp. only a probabalistic one. One might object that from a Newtonian point of view. However. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. the conventional scientist might object that we simply need a more accurate measuring device. in this sense that Bernard Lonergan states "asymetrical" message can be sent. However. 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 thus would clearly be more bound by quantum indeterminacy." since all that quantum physics seems to postulate is a probabalistic universe anyway. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. this is perfectly consistent with "intuition.have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. I would argue that every conventional experiment that is undertaken. It is possible. it is not possible to "send" a perfectly linear message. if we were to take the equation Force=Mass x Accelleration. rather.
A second way of distinguishing levels two and three is simply through the use of logic. It is here that language and interpreted data are collated. 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. compared. My argument is that a different type of "logic" operates at levels one. A. At level one is a logic of movement or operation. remain." 17 Del. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. Block. and three. In doing so we can make both judgments of fact and judgments of value.. two. Given two seemingly logical explanations of the data. Fejfar. Symbolic logic reigns: If A. "Corporate Voluntarism. On level two there is a logic of analysis. Stephen A.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. Radin. or solutions to the problem. B. A Question of Horizon. or even in some cases overrule logical "rational" results and reason to judgments of some type. 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. Anthony J. and contrasted. At level two. but rather only reasonable judgment. Panacea or Plague. C. Nancy E. Ideas are analogized and distinguished. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. therefore. "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. B.f. see. however. For a discussion of critical realism in the context of management decision making. It is not purely The business judgement rule does not require "perfect" judgment. Dennis J. Barton. Law Journal 859 91 101 . further questions. 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. then.
So. Additionally. Koniak. or negligence. the standard of care is one of reasonableness. in the context of decision making. causation. Hazard. 92 . On level one on the level of operative logic. we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. two. logically. even though it really is not. the sign and the language it contains simply commands us not to walk. as Lonergan points out. Roger C. Cramton. applying hermeneutics. and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. Geoffrey C. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. Now. As Lonergan puts it. if it turns out that our provisional judgment based on probability is not correct. somehow sense data. Susan P.syllogistically logical in nature. the probability judgment "kicks over" into a de facto absolute judgment of fact. interpretation. Jr. let us consider a "Don’t Walk" sign in a crosswalk. 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. breach. with the elements of the cause of action for legal malpractice being: duty. one can distinguish levels one. Instead. it is not true that we are incapable of making better probabistic judgments or assessments. it is simply the case that in this instance we could have done better.. three. and damages. when the probability level of a judgment goes high enough in one’s mind. as a practical matter. "The and Ethics of Lawyering 156 (1999). for example. On level two." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers. Also at level two we must assess the underlying policy of the rule "Don’t Walk." Put another way.
at level two we ask. and in this context. "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. at a deeper level it can be judged that order itself has value. underlying the policy." and "reflection. perhaps. Thus. and in the final measure determining which outcome is the most "logical" at level two.. C. 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. Now. Anthony J. Here. at this point we again have to question whether there is any difference between level two operations and level three operations. so does freedom. The Critical Realist position is that level three judgment or reason in this context intends value. and a level three. All these values would be taken into account in assessing policy. The above then is consistent. suggests three levels of different logic.assumption that there are reasons or policies underlying rules in general. and. with my earlier thesis. is it not the case that "judgment. "Method in Theology" 34 (1971) ("Value is a transcendental" notion).103 Thus while level two intelligence intends an analysis of policy as such. What?.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article. whether or not a "lamp" is a "reified" object and thus not "really real.f.104 While previously I spent an entire article 103 Bernard Lonergan. Critical Thomism. we ask Why? The logical positivist will undoubtedly ask. at level one we ask How?. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. 93 104 . that from a purely logical point of view." for example are purely "reified" terms which cannot be taken seriously. so does protection of human life and of human property."). interpreting language. the value or values. Level three reason or judgment intends value.
let alone “doing” Critical Thomism as a philosophy is the “Level Thing.105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid.addressing the foregoing type of objection.” The idea of levels of growth or maturation or 105 See. CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. logical positivism can offer us much in terms of level two analysis. but in the end it is an incomplete philosophy compared to Critical Thomism. id." In the final analysis. 94 . As a matter of both epistemology and cognitive psychology logical positivism is inadequate.
adds something new. the lower levels are not lost. itself. What you find in both Piaget and Kohlberg. and later in Ken Wilber’s work.” and within that Folder now pops up a new screen which contains a group of subfiles which are your 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. So. Imagine that one folder is the Folder entitled “My Photos.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg. is not only the important concept of levels of thinking or concsciousness. which. On the Desktop there is the Icon “My Documents. but also includes and integrates them. Imagine that you have a computer with a desktop. rather they are included in a new and higher integration. Kohlberg.” You then double click on the Folder Icon “My Photos. 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: . in his ethical theory.” another. One being “On the Pond. of course.” Sublation means that at every level the higher level transcends the lower level or levels. but also the notion of “sublation. “Fishing with Dad. So. Now this is very hard to conceptualize for a lot of people but perhaps this example might help. themselves as Icons. really only goes up to level 6.” etc.
and a task menu pops up with different operations. or File Icon. At each level let’s say that you can right click on the Desk Icon. which is a gestalt of the first two operations (levels one and two).e. deepening the colors. So. i.Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So. Now. ala Bergson. you are about half way there. “understand” the picture by cropping the edges.. at level two. But the other trick is this. you immediately upload the Pond picture to level two for saving to memory and processing. there it is. Of course if we were dealing with a “picture” which involved all five senses at level one. Folder Icon. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. changing the contrast. on the subfile/picture level. This is the level of sense experience. let’s say your “mind.” (do this in your imagination if it helps) at level one. or alternatively. can access a remote digital camera which takes a picture. and then upload it to level two for processing. perhaps not unlike the “image schemata” discussed by Lakoff. let us imagine that a new Desk Icon has been created. but which also adds a new “intuitive” operation which gives more depth of field to the picture. perhaps your computer is programmed so that you can process. at the “Folder” level. if you understand what I am trying to get at above. using a photo editing program. You then upload the level two “processed” picture to level three. At level three at the Desk Icon Level. A little example of how you might organize your mind as a Critical 96 . On this level you take a picture of a Pond and then either save it to memory at level one. So. thus creating the gestalt Desk “Pond Icon” at level three.
Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious. Try it all in your imagination. Tom has spent a lot of time thinking about Sir Thomas More.Thomist.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering.” As Hans Georg Gadamer might put it. however. Good luck.” It is in our own unconscious that “deep structuring” symbols and metaphors. Use different metaphors and examples. 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. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired. what he calls “archetypes. In this article.” help to structure and partially constitute our individual “way of being.” and collectively. such archetypes function as “forestructures of 97 . Experiment. our communal “way of being. I’d like to take a Chancellor of England under King Henry the VIII.
what do you look for as your role model.. to help a baby with the colic get to sleep at 2:00 a. and not Thomas More. in doing this.m. in the morning and still stay up with him.” not Thomas Aquinas. to help clean up your gradeschool kid’s puke at 4:00 a. and then. “On Being a Christian and a Lawyer. e. but I think this is it. the Knights of Columbus. People might not admit this. to change baby diapers.” they think of Saint Thomas Aquinas and the Summa Theologica. in the morning. Now why these two? Well. they might not even know it consciously. there are two choices: Simon Peter or Doubting Thomas. Now.g. your hero? Well. Thomas L.. Critical Thomism holds of Saint Thomas the Apostle. even idolized (in a positive sense). when you think of realpolotik in the Catholic Church–people in the pews. must some how have failed–otherwise we’re damned.knowing” which help us to think and to know. we 106 See. when people typically think of the idea of “Thomism. at least part of the time. Perfect imperfection. and then later on. the Readers. somehow make it through the next day. Shaffer. that is “Doubting Thomas. however. for many of us. loved and adored.m. 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. Now.. people who say the Rosary. you come to understand that one of the primary criterion for their theology is durability. I would like to suggest another type of Thomism. Now.. the Ushers. No. that’s the ticket for us. in the end. So for our heros we must have heros who. most of us spend a good deal of our time trying very hard to do the right thing.” 98 . people who belong to the Alter Society. but still failing. They want the kind theology that helps to get and keep a good job.
who. believes that reality and law must be based upon authority. and who stayed the course and stayed in the Church. First. I don’t mean they were literally apostates. rather. later on. it means that we have two foundational apostolic role models for Lawyering. What we want are the two “Apostate Apostles. and insists that Thomas feel the nail holes. Now. or experiencing. This is Petrine Lawyering. takes a stab a Lawyering. Whether one reads the Bible as literature. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. Now. on the other hand.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. felt. Jesus. The Apostle Thomas. feeling. Jesus simply says. is the basis for law. whom he relied on. as you may recall. insisting that the early Christians observe both Kosher as well as adult circumcision. as a Critical Thomist. experienced. what does this mean for we Lawyers. refuses to believe that Jesus has resurrected. and legal 99 . is the one who after the resurrection. and for the Legal System. you Thomas have believed because you have seen. feet. Simon Peter is the Archetypal Imperfect Authority. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law. Simon Peter. before he (Thomas) would believe. of course. essentially. and yet he still is the Rock upon which Jesus builds his church. Well. blessed are those who believe without seeing. Instead of condemning Thomas. the legal system. shows up. reasoning. Authority. It takes the adept Lawyer Paul. human in the first instance. Simon Peter denies Jesus three times before the cock crows. and side. rule based in the second instance. only metaphorically.” who Jesus obviously loved. we have Simon Peter. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. or a Divinely Inspired.
and perhaps typically are. that’s the ticket. Just let the ancient wheels of the Church roll along themselves. When Faith and Reason “appear” to be at odds with one another. There is a certain school of thought that Rome rules best when it does nothing at all. For them the Pope is it. instead of following the Pope.practice. Simon Peter. rather. Judicial Authoritarianism. Divine Reason. Faith and Reason are assumed to be. concrete people. and presumably God the Father. sooner or later we will sort 100 . Reason Rules. are remarkable suspicious of both the Petrine outlook. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. Now. this is simply a temporary glitch. For Critical Thomists. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. This is not apostacy as some Petrines might think. instead it is Faith that Faith and Reason are totally. all of whom. taken as true.. and of Papal Authority. totally consistent.” For the Critical Thomist. completely and absolutely and ultimately consistent. “Creative Form. conventional people. the Apostle Paul. or in Platonic terms. The Critical Thomists. right. Critical Thomists have Faith–it’s just not Faith in Authority. well. and in doing so on Papal Authority. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. On average the Popes seem to do pretty well. bet on Simon Peter. on the other hand. God is “right” not because He’s God. it really isn’t such a bad bet. This was Jesus’ promise to us in the Gospel of John. What is right is what the authority says is right. and perhaps. The Divine Word. as the Logos. they follow Jesus. And you know. lawyers or no. as a given. at least archetypally are seen as ruling on the basis of authority. The Incarnate Word. Although this may take a little time. but because he’s. guided of course by the Holy Spirit.
we think critically.things out and we will find a reason based way of reconciling any apparent contradiction. Now. This is the intellectual approach to living. 101 . If we are to be judicially damned or canonized it is because we have thought things through. and reason inductively starting with experience. going to understanding. Although Lawyers certainly use authority. then go to the authoritative statement or rule. and thus “know” reality. from my point of view. by starting with experience. One suspects that the Petrines start with the person of authority. Saint Thomas the Apostle is the Patron Saint of Critical Thomism. and then finishing )(provisionally) with judgment and reflection. and then deductively apply the rule to their experience. and inductively. how does “Doubting Thomas” fit into all of this? Well. not because we have unthinkingly and unreflectively followed authority. it is my argument that they Lawyer best when they start with reason. A totally different way of thinking. As Lonergan tells us. and then finally to reflection or judgment. going to understanding. Our Patron Saint is the “Apostate” Apostle. Doubting Thomas.
the details. the first thing to know about The Hangman is that He always wears black. black gloves. No. I told a story something like this to one of my law school classes last year. black cotton cloak. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. But. black silk shirt. Black boots. I sort of heard it. religion class. the dark side radio hero. black hat. black jeans. the 102 . A kid’s word game? For most of us perhaps. Now. but I guess its fair to say that I also saw it. for me The Hangman.CHAPTER X THE HANGMAN The Hangman. and I think it had the appropriate effect. I’m going to tell you the story of The Hangman. Of course I don’t remember the original story as such. Now. in person. But not for me. involves a story that I first heard in junior high. I mean. Perhaps he reminds you of The Shadow.C. maybe 8th or 9th grade. just to make it fun.D. but I do think I’ve got the general gist of it.
creating black shadow in front of him. typical. The man in black just waited. Back in the Old West. a butcher shop. He stopped and looked. and a bowie knife with a jet black handle on his belt. He rode into town slowly with the sun at his back. colt navys. Purgatory was a nice town. Soon the Marshall came out with a double barrel shotgun. hacked up some flem. of course. Then he. a hotel. down Main street." said the Marshall. Everything was black about him. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. The man in black squinted his eyes even further. until any of the townsfolk noticed him. So. and spat down on the ground.two are not the same. ten gauge. "Howdy stranger. He was armed. by the looks of them. here goes. His bear gun. 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. black as pitch. The sweep boy saw him first. Everything was normal. The people went to church on Sunday. except his skin. and the boy ran to tell the town Marshall that a stranger was in town. He got a third of the way into town. and of course a fair number of houses. The town had a dry goods store. looked at the buildings of the town. Hello stranger. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. in Nebraska Territory–the Kansas part. with shells filled with double odd buckshot. a hardware store. and the townsfolk that were 103 . the man in black. a lumber yard. cat got your tongue?" said the Marshall. His eyes were like obsidian orbs. a saloon. he had on a double rig of six guns. a livery stable. a gunsmith. "I said. what can I do for you. unless of course you had to cross a street. was a prosperous little town called Purgatory. His skin was a very pale white.
I thought you might have some business for me. hacked some flem. got off his jet black horse. I help make the world a better place. "Listen all of you. and I don’t like hangmen. cowboys drinking beer. The Hangman rode down Main street past the Marshall a half a block. But the Hangman just stared even harder at the Marshall. the man in black said. but it all stopped when The Hangman stepped inside. The saloon was crowded. The bartender didn’t.." said the Hangman. and I don’t like you. Then the Hangmen waited a moment and looked to see if anyone else was 104 . and I do that by hanging people. and strode into the saloon." A drunk cowboy stood up and said. The Marshall couldn’t take it. like a black cougar. He slammed it down. and right now it means that I am going to the saloon and get a drink. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. He glanced to the left." "Business. His eyes squinted. supple and strong. especially your town. Finally. I solve all your problems. and tied the reins to the wooden bar in front of him. mostly for committing crimes. I hang people. I’m The Hangman. The Hangman walked up to the Bar and ordered a whiskey. "I’m The Hangman." asked the Marshall. playing poker." said the Hangman. and behind him to see if the bartender had his shotgun out. "Oh. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. listening to piano music. what kind of business. I don’t like black." The Hangman’s eyes squinted even further.. "Mr. "I think it means whatever you want it to mean Marshall. and threw two bits on the table and turned and scanned the room. The Hangman stretched. he just couldn’t keep eye contact and instead looked down at the dusty street.beginning to congregate. Then. why don’t you just mosey out of town before you get hurt. "What’s that supposed to mean?"asked the Marshall. Then he said.
backing the cowboy’s play. "Bartender. The Hangman took the Boy down the street to the gallows." said The Hangman. "Yes sir. tested. and so I am going to have to hang you until dead in order to put you out of your misery. and to protect the town from and further 105 . The next morning at dawn." answered the Boy. you have cognitive dementia. The Stable Boy was cleaning up horse manure from the stable floor." said the Boy. but then it was done. "Anybody else care for a shot. The shot went wide and broke the mirror behind the Bar. "Well. I guess I feel like staying." said the Hangman. He just laughed. "No sir. another whiskey. A wooden gallows had been built. "Well son. Then The Hangman walked to the Livery Stable. "Can you read?" asked The Hangman. No one was. "I know you don’t understand this." "What is sir?" asked the Boy. but this is for your own good." said the Hangman. The Hangman walked from the Hotel where he spent the night to the Lumber yard. He drank the whiskey and this time simply smiled at the Bartender and walked out. calmly aimed. "Hey Boy. He had some lumber delivered to the end of town. you have cognitive dementia. a nice prosperous town like this should make someone like me feel welcome. and place a bullet through the forehead of the cowboy." said the Boy. what time is it?" "I don’t know mister." said the Hangman. No one said a word. Suddenly the cowboy went for his six gun. you had better come with me. "Son. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy. Son." said The Hangman. son.? asked the Hangman. "Well. I can’t tell time. The Hangman didn’t even move. He then went to the Hardware store and bought some tools and started to work It took him a week. The cowboy stared into infinity for a second then fell on the floor and died. without paying. So. the Hangman’s Switch.
thank you for your help. Luckily for the Boy the rope was placed just right.. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk." said the Hangman. Well. He is dead weight and dead wood. He couldn’t even stop me from coming into town." A few people laughed." "You are to be commended for helping to clean up this white trash.leeching of yours off the common good. "But. "Anyone here object?" 106 ." said the Hangman. no one said anything. "You know. The trap swung out from under the Boy’s feet. Marshall you know that you simply cannot be a dead weight here anymore." said the Hangman. no one drew their gun. He left and the crowd went home. "Marshall. and then pulled the lever. The townsfolk all say that you are dead wood." he continued. A few people cried. you just can’t get the job done anymore. put the noose around the Boy’s neck. and the Boy’s neck was snapped." said the Hangman." said The Hangman. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall." "You won’t be needing this anymore Marshall. "and this is a good town. you seem a little overweight to me. killing him instantly. The Boy froze with fear. He deserves to die. "Yes. The next day the Hangman went up to the Marshall. Although twenty men were there who were armed with six guns. He fell through. Soon a crowd had gathered. Unless anyone objects. The Hangman tied the Boy’s hands." said the Hangman. "This boy has cognitive dementia." "I am here to help you clean up this town. And so the process repeated itself. We need to put him out of his misery. I’m going to hang him now." said the Marshall. "You are good people.. I guess this confirms it. this boy is a wastrel and a blight on humanity. as he pulled the Marshall’s six gun out of his holster. He didn’t know what to do. the Marshall just can’t get the job done anymore. His mind blanked out with panic. that’s a hanging offense in these parts. The Hangman said.
quickly stuck his handkerchief. The Boy started crying." said the Hangman. Any objections?" This time. you don’t need one. dead as a door nail. "Well.continued The Hangman." said the Hangman." seeing that the Boy was going to reply. "What will the town do without a town Marshall. isn’t that true?" "Well mister. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here. "You have questioned my authority." said the Hangman. and you know that is wrong. The townsfolk applauded. you will hang seperately. Although unarmed. and down went the Marshall. what else was I supposed to do?" "Son don’t be smart with me. "Now Boy. "If you follow me. he is the only authority. I will give you a well ordered society. The Boy stood their shivering." he continued. he didn’t want to go near The Hangman. Once The Hangman come to town. I was just testing you and the townfolks. I need some help up here. everybody does the right thing." said the Hangman. The next day the circuit judge rode into town. black as night. The Hangman cut the Marshall down and retied to hangman’s knot. To everyone’s surprise. you must know that. he called out the 107 . "Now Boy." "This Boy is guilty of gross deriliction of duty and insubordination. But the crowd pushed him forward and up the steps. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together." said the Hangman. no one said anything." "Well Boy. I answered it. you asked a question. "The Hangman." said the Hangman. as you very well know. here." said the Hangman. the Boy must die." And then the Hangman pulled the trap. when the Hangman is here everybody figures it out. a Boy asked. I am a dementer from Hell set loose on earth to test you." he promised. in the boy’s mouth so that the Boy couldn’t talk any further. "In order maintain order and authority in this town.
Inside was the Mayor. From the Hotel." said the Judge. All the rest were dead. his demenour. the good people of this town knew it. "Well. that was the town Mayor who had "passed it on" to his wife." said the Mayor. your honor. "What is it you want." said the Hangman. Only The Hangman has real power. you can’t get me." replied The Hangman. the rule of law is a myth designed to deceive you. "You can’t just hang people. each day another hanging." A crowd had gathered. And down went the judge. Each day a new accusation. "he is the cause of all of your problems. and approved. And so it went. its your turn. giving himself a shave. It took awhile of course. The Mayor looked over." "Grab this vile judge and take him to the gallows. "Mayor." asked the Hangman. The Hangman came out. I run things. but finally there was only one person left in town other than The Hangman. The next day the Hangman called out the Mayor onto the street. this is my town. "The Hangman doesn’t need a trial. and then down she went. to keep you enslaved. hanged by The Hangman. Only The Hangman can save you." said the Hangman. cold as night. A couple of months." said the Hangman to the assembled crowd. but this did not stop the Mayor from carrying her limp body to the gallows. The Hangman and the Mayor revived the Mayor’s wife with smelling salts. "those who were hung were trash. set the noose. take here instead. The Hangman crossed the street and went into the Barber shop." 108 . "See this judge." responded the Hangman." said the Hangman. so the story goes. tied her hands." The Mayor’s wife fainted when she was called out. These people you have hung have violated no law and were given no trial. "We are making progress. Only The Hangman gets things done. The Mayor balked." "What then am I to do. you are the last one.Hangman into the street. "I pass it on to my wife. And so they did. "Not me.
And so up the steps of the gallows they went." said the Mayor. "Either you hang together." "Did you really think that would save you." "All of you could have hung together as a group and opposed me. "I passed it on." said the Hangman." said the Hangman. "But there won’t be anyone left. He got his gear. saddled his horse. or you hang separately." asked The Hangman." "And now." said the Mayor. "But I didn’t really understand what you said. and down the Mayor went. A job well done. Is the next town yours? 109 . "and if you didn’t you should have asked.said the Hangman. The noose was fixed. put me back in Hell under the Rules of the Game. and slowly rode out of town looking for the next town. Remember I told you early on in the process. let’s get this over with. "Me." but instead you all chose to hang separately. then you can rest assured that there is a well ordered town here in Purgatory. letting me win. the hands tied." said the Mayor. I’m safe. The Hangman smiled a smile of satisfaction." said the Hangman. "Exactly. "Yes you did.
No. maybe 8th or 9th grade. in person. just to make it fun.D. I’m going to tell you the story of The Hangman. A kid’s word game? For most of us perhaps. pretty close to the last one.C. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. this is another story dealing withe The Hangman. Now. the details. But not for me. Of course I don’t remember the original story as such. in the end. religion class.CHAPTER XI THE BARTENDER Well. I told a story something like this to one of my law school classes last year. and I think it had the appropriate effect.. I mean. But. Now. for me The Hangman. involves a story that I first heard in junior high. I sort of heard it. the first thing to know about The Hangman is that 110 . .. at least at the beginning. quite different. but I do think I’ve got the general gist of it. but I guess its fair to say that I also saw it.. The Hangman.
unless of course you had to cross a street. "I said. here goes. The sweep boy saw him first. down Main street. His bear gun. He rode into town slowly with the sun at his back. and the boy ran to tell the town Marshall that a stranger was in town. ten gauge. and of course a fair number of houses. a gunsmith. colt navys. 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.He always wears black. what can I do for you. Black boots. Soon the Marshall came out with a double barrel shotgun. until any of the townsfolk noticed him. the two are not the same. Purgatory was a nice town. black hat. by the looks of them. black gloves. typical. a hardware store. He stopped and looked. But. Back in the Old West. His skin was a very pale white. He was armed. He got a third of the way into town. he had on a double rig of six guns. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. black jeans." said the Marshall. Perhaps he reminds you of The Shadow. The town had a dry goods store. His eyes were like obsidian orbs. black cotton cloak. "Howdy stranger. The man in black just waited. Everything was normal. a saloon. was a prosperous little town called Purgatory. a lumber yard. with shells filled with double odd buckshot. of course. the dark side radio hero. and a bowie knife with a jet black handle on his belt. a livery stable. The people went to church on Sunday. The man 111 . except his skin. So. a butcher shop. Everything was black about him. creating black shadow in front of him. Hello stranger. black silk shirt. a hotel. black as pitch. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. in Nebraska Territory–the Kansas part. cat got your tongue?" said the Marshall.
hacked up some flem." The Hangman’s eyes squinted even 112 . playing poker.. The Hangman walked up to the Bar and ordered a whiskey. and right now it means that I am going to the saloon and get a drink. cowboys drinking beer. why don’t you just mosey out of town before you get hurt. I help make the world a better place. and I do that by hanging people. and I don’t like hangmen. and spat down on the ground. Then he. "Listen all of you.." asked the Marshall. especially your town. I thought you might have some business for me. looked at the buildings of the town. "I’m The Hangman. The saloon was crowded. I’m The Hangman. what kind of business. I solve all your problems. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. He slammed it down. listening to piano music. "I think it means whatever you want it to mean Marshall. he just couldn’t keep eye contact and instead looked down at the dusty street." A drunk cowboy stood up and said. "Mr. The Hangman rode down Main street past the Marshall a half a block. the man in black said. and tied the reins to the wooden bar in front of him. but it all stopped when The Hangman stepped inside. The Hanman stretched. like a black cougar. and threw two bits on the table and turned and scanned the room. and the townsfolk that were beginning to congregate. The Marshall couldn’t take it." asked the Marshall. Then he said. supple and strong. got off his jet black horse. mostly for committing crimes. His eyes squinted. and I don’t like you. the man in black. "What’s that supposed to mean. I don’t like black. Then." "Business." said the Hangman. hacked some flem. "Oh.in black squinted his eyes even further." said the Hangman. But the Hangman just stared even harder at the Marshall. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. and strode into the saloon. I hang people. Finally.
some laughed but no one cried.further. knocking him out. I’m the District Attorney. "See the Shingle up behind me which says. "fast as lightning. you know the Lore. In "St." "It’s really not fair. a nice prosperous town like this should make someone like me feel welcome." And so the Marshall dragged The Hangman’s body away. lock him up. Then. I guess I feel like staying. and behind him to see if the bartender had his shotgun out." said The Hangman again. "Well." replied the Bartender." "Marshall. Louis. they never go down. is Coif.A." replied The Marshall. its totally fair since only a Thomist can even carry a Peacemaker. I’ve never lost a case and I’ve never lost a gunfight. "Well. "Attorney at Law?" As The Hangman turned and looked up to see the shingle. as he walked 113 . The bartender didn’t.A. son. "that’s how they hex them. a Peacemaker always wins over a Navy. do you Hangman?" said the Bartender. "Why?" asked The Barber. some folks even call me "The Devil’s Advocate." said The Bartender. No one was. "I don’t think you really want to hassle that cowboy." replied the Bartender. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun. The Hangman should have known better. Next day was the trial. "The D. "I suppose the ciruit judge will be here tomarrow." The D. would it?" asked the Hangman. I thought. and the Hangman was convicted of attempted murder. "Well. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play. He glanced to the left. I’m charging this hombre with attemped murder. and on top of that.A. "Well." said The Marshall to The Barber. "Wher’d you get that Peacemaker?" asked the Hangman. reverse handled his Peacemaker and hit The Hangman over the head. suddenly." said The D." said the Hangman. that’s the Rule. When The Hangman fell through the trap the next day. "Well. that went pretty well. "Well. it won’t be exactly fair if you use that Peacemaker against my Colt Navy.
. however.. that prohibition itself would be subject to a great deal of interpretation. that murder is the only cross cultural legal prohibition. In this essay. The sociologists seem to agree on one thing however. not that I necessarily disagree with all that has been said above. perhaps in terms of contemporary natural law or socio-biology. that is. I would like to offer a different slant on things. one is often tempted to look back at the Code of Hammurabi.. and then of course. Instead. at least none other than the prohibition against murder. I would like to suggest that 114 . our critical friends may suggest that there really is no objective basis for law. heading for the Saloon to get a drink. or. CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law. And so.away.
that is. the notion of property grounded in metaphysics as such. defines “property” as “A legal relationship between persons with respect to some thing. and reflection and judgment. suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. he defines property in “concrete” terms simply as a “bundle of sticks. or tangible or intangible personal property. one can see that property can be 115 .” with each “stick” representing some “right. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. A Critical Thomist would say that property is real. a fixture. understanding. is the basis for all rights. there is the Critical Thomist understanding of property of ala critical stage theory. property law. along these lines. If one considers the three metaphysical categories of being.” In this sense. but that reality is based primarily upon meaning. property. that we have get some clarity about what we mean by “property. Now. in what one suspects is a rather traditional.” If we look at Blackstone.property. “property” hardly exists at all. would be seen as that which is judged to be “property” on the basis of experience.” including the right of possession. form. regardless of whether it is real estate. at least in the concrete sense. I suppose. Although it may seem a bit different from the Restatement approach. on the other hand. in the first instance. 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. The Restatement Second of Property.” that is it is intangible. Blackstone took an avaricious view of property. but also the basis for human dignity. I a rather different sense. Finally. but perhaps mistakenly seen in an avant garde sense. tangible or intangible.” Well. and substance. Although it is difficult to put colloquially then.
as such. seemingly bordering on the occult. If one were to think of property in terms of the metaphysical concept of being. amount to property. Metaphysically. dated in the first instance from the time of Anaximander in ancient Greece.seen in at least these three different ways. as represented by the clod of earth represented the substance of the property. The law professor encounters the difficult. tend to see and experience it in terms of a “being” mode. I suspect that it would be confined to personal property. or even money. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. In medeival law in England. one assumes. Idealists. Well. Here property is hardly distinguishable from that of a mere formal contractual right. in favor of spiritual development. or simply represent contractul interests. 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. it they approve of property at all. This ceremony. Finally. Being philosophers and psychologists tend to discount the acquisition of material wealth. as such. 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. of course. seisin. 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. The concept of substance. one suspects. typically seen as real estate. there is property which is property in form only. if not insoluable question of whether a mere contract.
or the law of the Angels. or the Dao. has a possessory interest in our own bodies. which. God. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 . So.foundation for law in general. and in this sense we are responsible not only to ourselves. under natural law. or the cosmos. or the Dao have in terms of our personhood are governed by Divine 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. we can mortgage our souls. but we can never really sell them. Last but not least there is Constitutional Law. Finally. once again. there is criminal law which is an extension of tort law. utilizing primarily the principle of proportionality. and the Good as a Critical Thomist Ideal. requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. perhaps can be leased for a limited period in a human way for purposes of appropriate employment. or the cosmos. One can certainly never be enslaved. On this line of thought. one starts with one’s possessory interest in oneself. The rights that God. but to the Common Good. holds title to our bodies. that is. for money. As one comes into possession of personal or real property in a legal or customary way. the law of the gods. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature. which. or in a more sophisticated economy. the Truly Worthwhile. in relation to one’s rights under a contract. that is Divine Reason. such a homesteading in the old west in America. or the law of the Logos. 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. My position is that each of us. or perhaps with a little luck.
applying equitable rules. and of course. Freedom of Contract. So. to contribute to the Common Good in the equitable requirement of serving those in need. Rather than abolishing property interests as some marxists seem to wish to do. Freedom of Association. Germain put it some time ago. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. must be applied in the context of equitable rules which favor relationship. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. involving Life. and compassion. While a fuller discussion of this must be saved for a later Chapter. Liberty and the pursuit of Happiness. at least in the abstract. 118 . as well as those found in the Declaration of Independence. but also for the protection of our individual rights flowing from our possessory rights in our personhood. context. going beyond Locke.by reciprocal obligations necessary for the proper functioning of the body politic. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. in my judgment it is better to see property as the foundation for all our rights. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. even if only taken into account equitably in concrete circumstances. including but not limited to Freedom of Religion. it is apparent that law at every level from the Constitution on down. one has the responsibility.
CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play. 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. if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception. in order to rescue the child. but then I found the concept in Aristotle. for example. So. Equity would allow you to make an Equitable Exception from the general rule of no tresspassing. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard. that you could not go onto another person’s property for any reason. 119 . “A Man for All Seasons.
basically saying this. problems would result. from each according to his ability. in reading human history. In Communist societies I think that at least ideally. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. placing Equity above law. It is my position. equity over law. Equity is placed above law. So.Now.” I can imagine my mom. is that the politburo and the commissars tend to think that they are the one’s with all of the needs. while the proloteriat are the one’s with all the abilitities. Now. But even in More’s case. and so the German socialists.” not even thinking about ability. societies are always faced with the problem of either favoring law over equity. cited by Marx. basically abrogating the Rule of Law. or any mom. of course. and poor living conditions at home. The “needs” thing tends to be a one way street. in essence is based upon arational (not irrational) intuition.” Here the equitable slogan must have been “to each according to his need. The problem. since the whole thing is sort of a pyramid scheme. poor working conditions. or. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More. from my point of view. at least the ability to work ordinary jobs for low pay. while equity. did the right thing from and equitable point of view. would not seem to work. in this case the child rescuer. one might suspect that 120 . stated the ideal “To each according to his need. Obviously if the Christian community runs out of rich recruits. Law being based upon proportional reasoning. that once one take the Ethical Matrix into account. of course. one might argue that people could rather arbitrarily create equitable exceptions all over the place.” which at least for awhile seems to have existed in the early church. unfortunately. Christian “communism. even for luxury goods. then. required everyone to give everything away and give the money to the “poor” or the “community. at home. however.
Germain puts it. 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. as well as the King himself felt threatened not only by Thomas More’s popularity. as is pointed out in one of my land use planning cases that I use in class. This doctrine is similar to “promisory 121 . 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. and law has its Equity.” The problem is.” 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. however. as Christopher St. They don’t want equity at all. 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. So in our country. then the former can be equitably estopped from changing his or her original position.” That is. to one’s detriment. This is the Aristotelian approach. The most significant equitable rule is “equitable estoppel. or. “temper and mitigate the rigor of the law. Who you are is what you own. the Law must be a Dao of law and equity. Now the solution I have come up with. that after awhile the law types get very pissed off even at this. In eastern terms. “Equity has its law. usually for the “little guy” or the “old lady. The other obvious option is to favor law over equity. Equity only intervenes in the extraordinary case. the Second Coming. reasonably. in the United States we have a fair number of Equitable Maxims or Rules which help to.” If one takes a position and another relies on that position. 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.
of course. Another well know. even more interestingly. With respect to some equitable remedies. This is sometimes true of other equitable remedies as well. one can be barred from asserting them. there is a completely different court. such as court ordered injunctive relief. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity.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. one of the problems with pleading a case partly in equity and partly at law is that often. The solution. however. Now. is that all other things being equal. at least on the east coast of the United States. although perhaps not often stated equitable rule. and then. that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. If one “sits on one’s rights” too long then one can be deemed to have waived them. Under the doctrine of laches. This is an American thing. equity favors the little guy. and before that an 122 . find them no longer enforceable. plead all of one’s legal causes of action at law in equity. similar to a statute of limitations. or. Waiver and laches are also important equitable rules. often denominated the “Chancery Court. again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches. After seeing this situation. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. then the original promise can be enforced with or without consideration. the equity lawyer need only plead the case in equity.” which sits wholly apart from the Common Pleas or State District Court. stating that there is no adequate remedy at law because at law no joinder on causes of action is possible. is a fairly simple one.
In England of course. where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. 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. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. and all of England suffering under unjust taxes levied by the Evil King John. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. 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. widows. returning from the Crusades. At the same time. So. rational and autonomous 123 . and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. and orphans. the tale of Robin Hood is told. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. Equity seeks to find exceptions to otherwise ridiculous rules de jure. and typically are.English thing. Equity finds certain contracts unconscionable if a part to the contract in whole or in part meets the factor test of lack of sophistication. 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. this is what Equity is like. is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. where Sir Robin of Locksley. presumably at the Battle of Runnymeade in 1215. or lack of bargaining power. lack of knowledge. Equity favors the little guy. or at least ridiculous rules de facto in the particular context.
Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. were killing others. and as a legal 124 . we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. whether one studies it as literature or as Divinely Inspired. the Roman Armies. what do we make of this? My gloss. surpisingly enough. after the time of Emperor Constantine. we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples. we see the value of the structure which law provides. also. One of those commandments is commonly interpreted as “Thou shalt not kill. but. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire.” Yet.actors in the marketplace. obviously enough. Later. So. and. as an amatuer scripture scholar. with law and equity at the same level. including Catholic Christians. in many instances the common sense household rules that our parents applied to us when we were kids. the flexibility and compassion that equity provides. of course killing many in the opposing armies. When we see Equity and law this way. CHAPTER XIV THOU SHALT NOT MURDER In the Bible.
criminal law. this gives us property law. It is easy to see that if one cannot kill in self defense. ends up being de fact satanic. if we were in a science fiction world. We are not only to live. we “kill” all the time. which includes the injunction not to commit murder requires that we not commit murder in order to survive. For better or worse. and finally Constitutional Law. perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence. not unlike Enlightened rational self interest. Depressive suicidal impulses are considered signs of illness physical or mental. and then applying the Ethical Matrix to every situation and rule concretely and abstractly. again? Divine Law is simply starting with the natural law prohibition against murder. By reason of natural law we have a survival instinct.” Now. in my view. Besides. “Thou shalt not kill. Divine Law. and our minds were somehow subject to psychic invasion. As stated before in the Chapter on Property. that is. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. let alone achieve material or any other type of success. What is Divine Law.” The other interpretation. we are programmed to live. we eat meat from animals. we eat grain that has been harvested before the field has gone fallow. we can see that the natural law prohibition against murder is of course a basis for asserting that each of us has a 125 . does this mean that anything goes? No it doesn’t. is that what is really meant in the Commandment is “Thou shalt not commit murder. but to succeed. tort law. Even beyond this. we live in a world where we as human beings are required to kill to survive.ethicist. then the next step is that one cannot defend oneself or one’s family physically at all. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. contract law. utilizing Rational Self Interest. Dovetailing on that earlier discussion.
” 126 . but to the point of seemingly not eating at all. One hears the rumors and reads the novels about satanic cults. even to the point of not only being vegetarians. One suspects that the healthy natural law instict for survival is subverted into the horrid satanic pratices of ritual sacrificial human murder and the ingestion of human blood and flesh. and together. respectively. As a last aside on this topic. has no right of self defence. with the members on the surface often seeming to be very religious. which of course we do both under natural law and Divine Law. “Turning the Other Cheek. Non-violence is satanic.” “Don’t Tread on Me. Non-violence implies that each of us. totally in favor of nonviolence. “Give me Liberty or Give Me Death.correllative possessory interest in our own bodies. If we are to have a just society we cannot teach our children non-violence. but to fight to the death for our right of self defence if we cannot.” means only that it is best to avoid a stupid or idiotic fight if we can.
where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. 127 . Sandy’s on Friday afternoon was a Greek hangout on football weekends. but only drunk by the glass. studied. Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). making sure that we hit Sandy’s Bar on Friday afternoon’s. they did not serve Gyros. worked out at the East Campus Gym a few times a week with my cohort in crime. in season.CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. I went to class. No. Chrisman and John Vitek and I would always go. We went to Nebraska football games. instead it was Fraternity and Sorority city.
what does all of this have to do with legal academia? Well. big men on campus. Believe me. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. I might say something like. although we might bitch. second. a lot of us I think first generation lawyers in our families. and hope beyond hope. for example. Dead on Arrival. The Lock Blade crowd at The Zoo Bar. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively. if you were Greek and you went to the Zoo Bar. First of all. We knew this whole method. "My God. maybe it just might work.O. We knew we were getting a top of the line. a lot of whom I think were Vietnam War Vets. but I think that there is a connection there. first rate legal education. It was fun. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). clearly did like to see Greeks at the Bar). 128 . we were successful law students. Anyway. together. but we did it anyway because it was fun. Now. Chrisman and I had this routine we used in trying to pick up sorority chicks. you might say nothing. we would get a little drunk. 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.We sort of thought we were BMOC. you were D.A. we didn’t really mean it. (This is of course the opposite situation relative to the Zoo Bar. we were happy to be in law school. if you were not Greek you did not frequent Sandy’s on football Fridays. that is.ploy was doomed to failure. I guess that would make it about 5 and one half pitchers apiece. at Sandy’s on football Friday afternoons. and complain about things a bit. Believe me. who complained that the faculty was too liberal. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. moan." "You are a model aren’t you?" And so it went. So. Phi Delta Phi members.
like myself.. this situation flabbergasted me. contract. first a visitor at Marquette.Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. as a Critical Thomist. a moderate to conservative Republican. getting tenure in 1994. don’t like to rush to judgment.. being a liberal or moderate democratic. 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. Jurisprudence being of course that discipline within law which involves Legal Wisdom. what I discovered after awhile at Widener. Over and over again I read articles which said the concepts such as liberty. We like to let things percolate for a while. were simply "reified concepts" which were illegitimate because they were "abstract. words. Now." and not "concrete. I mean really real. Well things percolated until I got into Legal Academia.. Now. Not rabid of course. and do you know what I found out? 129 . so. meaning is real. "Trash and Bash. since Bob was. I slammed out a few articles making this point. are very real." Now. especially used in a real world context such as law. So. love. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican.. and I suspect still is. was that critical legal studies was the jurisprudence that was in fashion. tort. then on the tenure track at Widener in Harrisburg. and concepts. So I filed this conversation away in my long term memory. For a Critical Thomist. mostly through reading the legal scholarship of outside law professors at other law schools." and therefore not "real. I could simply have brushed this off as ideology." were the watchwords of critical legal studies. Critical Thomists. justice.
in 1996 I put out an article in the Capital Law Review where I explored the concept of reification. that critical legal studies has now shifted ground and has moved to post-modernism.. (As I recall. No one would respond.B. people usually cite Derrida for authority. one simply starts playing around with language to show that concepts are circular or indeterminate.G. Or. I suppose you could even use Wittgenstein on a good day. I developed a refutation of the concept of reification in a one line proof.").. Now. then why bother? I mean really why bother? Why not blow your brains out? .O. and basically found reification to be an inadequate concept. in Moscow and all its files probably ended up in North Korea or Communist China. which still maybe hanging on even though the cold war is supposedly over.G. Finally.Well. Anyway. The K. even better.. they just left town. which usually is not stated. anything can mean anything. what you find underneath all of this. don’t they have the names and information 130 . in my view this makes critical legal studies. I got ignored. And it is not just legal academia. really. . and if they did. now. first of all extreme relativism is an incoherent jurisprudential and philosophical position to take.. what I call. in 2003. But even if that is true. The political problem with extreme relativism is that it is nihilistic. extreme relativists. the K. but lets save that one for later. really didn’t go down. This is called deconstruction. I think. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid.. What is post-modernism? Well. don’t you think. nothing. its academia in general. Dead on Arrival.G. and I suppose that will be ignored too. What is the problem with this? Well.. Now. D. If anything can mean anything. as such. For them. Finally.A.B.. Why would this be. and maybe moonlight a little bit for the K. is that all of these people are. Because. no one seems to care. why not just walk down to your local political commisar and join the communist party.B.
131 . as Bernard Lonergan puts it. if you’re a po mo (post-modern) and you don’t like the communist deal. Liberalism was on the right and in the right. What is left. then why not find your local gaultlieter and see if the Nazi’s are interested. In fact there were always stories about a guy in Lincoln. no one takes attendance. Well. This is Critical Thomism.for all the agents in place and sleeper agents in American? Just a thought). They showed the literature and everything. if we can’t get it through liberalism and the rule of law. There are no totalitarian political parties in the United States. Listen. A lot of liberals from the 1960's started out as liberals on the right. Nebraska. let me digress a minute to discuss extreme relativism. Well. Liberalism on the right believes in truth. which has always been considered to be a liberal position. they packed in a long time ago. we all have a drive for meaning and meaningfulness. before I finish this essay up. Now. Although we support all sorts of programs to help the disadvantaged. I not so sure. the American Nazi party existed. in the local newspaper who was a big shot in the American Nazi party." For the intellectual elite in American Law Schools. you might say this sounds ridiculous. really. Now. everything is seen as just being ideologically subjective and a "bad trip. This is because you can base liberal principles and values in classical metaphysics and philosophy. especially when your law professors don’t even bother showing up for class. we ground our position epistemologically and metaphysically on the right. just looking at things from a jurisprudential point of view. we look for it elsewhere. other than totalitarian political parties. and instead use research assistants. in point of fact. liberalism is false consciousness. Last time I heard. and if anyone does show up.
moderate idealism. As a Lonerganian might put it. We knew we were in the right in fighting Hitler. not one that is nihilistic. A Good Liberal is one who believes in moderate relativism. 132 . 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. on the right and in the right. then of course the statement that everything is relative is relative. So. Somehow. ironically enough is further to the right than Adolph Hitlter. then. . being.I say that a Good Liberal is on the Right and in the Right. I suppose is why so many Nazi’s hate Liberals on the Right. and equitable compassion for others. Extreme relativism. liberalism moved to the left. that is Hardliners or Stalinists hate Liberals on the Right as well. Such a Good Liberal. what is the solution to this situation. Even more. I suggest that Academia in General. during the 1960'. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent. which. It is based on relativism which always ends up being extreme relativism. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. and moderate realism. Maybe this happened somehow after Jack Kennedy was shot." Now." This is an philosophically existential refutation. The reason that we. Once you’ve done that you are still free to deconstruct languge. and Legal Academia in particular. embrace Critical Thomism. the statement contradicts performance. I suppose that Communists on the Right. but in a constructive way. Anyway liberalism on the left doesn’t work. "everything is relative. and therefore meaningless and invalid. This is a commonly known proof: "If everything is relative. The Nazi’s were wrong because they were denying persons their individual right.
CHAPTER XVII LAW AND OBJECTIVE FACTS Facts. argued that Facts are what control the outcome of cases. Any trial lawyer worth his salt will simply say."107 Frank." But. lawyers and judges do. what about Facts? Do Facts Rule? Jerome Frank thought so. Lawyers are supposed to uphold the "Rule of Law. What are they? Who cares? Well. and in his book. not the Law. "The hell with the 133 . A lot of trial lawyers think so to. maybe jurors. what is that? How can Law Rule? What about people. a 1930's legal realist. or at least we pretend to. "Courts on Trial.
"Courts on Trial (1949). how about The Facts."108 with Paul Newman. that was attorney Frank Galvin’s salvation. He passed up a settlement offer. experience > where one intends sense impressions 2. and he won. working off the philosophy of Bernard Lonergan. perhaps unethically." In "The Verdict. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. one suspects. in order to try the case to the jury. "The Verdict" 1982. just get me in front of the jury and I’ll win my case." and a lot of lawyers do to. argues that we in fact know reality through three interrellated cognitive operations: 1.. 20th Century Fox. approximately half. Critical Thomism. But some of us wonder that even if we can imagine that The Law is objective in some sense.Law.. Well. Frank Galvin did win in "The Verdict. 134 .
See generally. we simply experience a blurr of data. 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. 110 111 135 . Fejfar. 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. On Level Two.110 which act as "forestructures of knowing." see Anthony J. the level of sense impressions. judgment/reflection > where one intends the real or reality. but in some sense participatively create what is going on through the use of meaning structures. 681 (1986). "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. It is on this level that we not only understand what is going on. "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. For a discussion of "relational meaning streams.109 What this means is that on Level One. setting the stage for "Reality" at Level Three. Anthony J. "Truth and Method" 239 (1975).’" 25 Capital Univ.3. we organize sense impressions through the use of symbols and ideas. This is the level of "Reacality. L." 27 Boston College L."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two. Fejfar. 579 (1996). Hans Georg Gadamer. Rev. Rev. even myths." The Buddists call this illusion.
but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic. "Conscience and Self Transcendence (1973)."112 Now. I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag. possibly even fascist. 136 . But given this. where does the Critical Thomist schema fit in? 112 See generally. positive in some sense and negative in others. this is all very nice.operations and Kohlberg’s "conventional morality. Walter Conn.
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).
"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." Id. Id. Now. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy. there is plenty of room for Quantum Mental Communication at a distance. probabilistically. Id. Thus. "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. 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. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. it is possible that "quantum effects" trigger much larger neural activities within the brain. when one lives the 118 See generally. at 17." Id.118 In other words. at 31). Questioning this possibility. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. Moreover. however. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. Heisenberg states. Nick Herbert. Penrose points out. Thus. on the one hand." Id. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically. 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. Now. Perhaps our logic is not sophisticated enough to accommodate such a possibility. This however is impossible.9999%. at 349.one’s life at least epistemologically if not metaphysically. with the result of Bell’s Interconnectedness Theorem. (Even in a "gross" Newtonian physical world." Id. at 348. My response to Penrose is simply to say that there is no reason why there cannot be a dialectical interactive relationship between conventional newtonian neural activities. at least as to Quantum Events. the interesting point to be made. at sublight speeds. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment. then. it is impossible to produce perfectly replicable scientific 140 . "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action. any purported newtonian "objectivity" is chimerical. Similarly. is that when we combine the foregoing. and quantum activities on the other hand.
results. Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. Finally.critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy. 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. in an earlier article. Thus in this vein. and the right hemisphere toward "quantum interaction" associated with intuition. 141 . the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning. Walter Brueggemann. "The Prophetic Imagination" (1978). We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). 119 See. Let the Dreamers Wake the Nation. perhaps in ordinary right handed persons.
" 76 Marquette L.Come the New Jerusalem. "Let the River Run. Rev." on Working Girl Soundtrack (Arista Records 1989). "Wake the Nation: Law Student Insights into the New Jerusalem."120 Now the skeptic might argue of course that such "alternative reality" or "alternative 120 Thomas L. 767 (1993) (Quote in text adapted from Carly Simon. Fejfar. Shaffer and Anthony J. 142 .
First of all Quantum Physics. "Quantum Philosophy" 19 (1999)).121 There are of course two responses to this. the foregoing means. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. in the text is more adequate and relevant. Literally. however. above. My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. arguably. is not metaphysics at all. any more than newtonian physics or einsteinian physics. "Entities are not to be multiplied without need." (Quoted in Roland Omnes. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate. Additionally. the definition that I use." In practical application and ordinary interpretation. it is my position that Ockham’s Razor itself is flawed and invalid.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. 143 . however. 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.
the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions.Refutation of Ockham’s Razor 1. 144 . 2. Once step 2 is taken. Ockham’s Razor which was created by William of Ockham. provides in essence that in considering any problem. legal. or otherwise. upon reflection. scientific. Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid. 3. Thus Metaphysics is excluded by the operation of Ockham’s Razor in relation to scientific or legal problems on the basis that and Metaphysics is unnecessary extraneous assumptions. 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. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself.
4 = 7. A. B. However. Since the foregoing problem was solved without the use of Ockham’s Razor.4 X = 7. H. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor. then by the operation of Ockham’s Razor. F. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted. 145 .4. Ockham’s Razor as a starting assumption must be excluded. C. We must now proceed to solving the problem 4+X=7.4 X=3 G. prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. I. Mathematical Illustration. In fact. Thus Ockham’s Razor is rendered self contradictory and invalid. Let us consider the mathematical problem: 4 + X = 7. E. as such. one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X . Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. It is argued that a concept that cannot allow for its own existence is invalid. D. J.
our highly probable judgments of fact simply "kick over. if we intend "objectivity" then in some fashion we get "objectivity.5. can be used as the first step in the resolution of any problem.9999% real probability in the real world." A la Lonergan. but no hatrack to hang it on. Now. perhaps the materialist is aghast at this point." psychologically. it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts. Because this is true. in a world of Heisenberg’s indeterminacy. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak. our authentic subjectivity will produce our "objectivity. While "objectivity" may not be possible as an abstract metaphysical possiblity." are now once again relevant to scientific as well as jurisprudential inquiry. into "virtually unconditioned judgments of fact." at Level Four which is constructed through "virtually unconditioned judgments of 146 . it is certainly true that Metaphysical concepts such as "Being. scientific. legal. Now. especially since Quantum Indeterminacy seems to leave us our hat.A. above. it is argued that scientific materialism (including marxism) and capitalist materialism are D." 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. we might say. after the fact. This of course is not true.O. ethical. or otherwise. Put another way. Additionally. Ockham’s Razor is proved as being invalid in every case universally. It is argued that the proof/approach used in 4.. given that Ockham’s Razor is invalid. cosmological. that is Dead on Arrival. The best we get in the real world at Level Three is something like 99. Now as Bernard Lonergan points out." Finally.
"122 So in the end perhaps Piaget and Kohlberg are right. and. We need not be fact skeptics at all. for better or worse. We use these facts in counseling our clients.f.fact.. "How to Know God" (2001) (discussing virtual reality). arguing our cases. and in making our decisions. is excluded by the operation of Ockham’s Razor. 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. as an enticement for the reader to keep reading. 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. back to lawyering again. And. Finally. So. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail.” 122 C. probabalistically at Level Three and objectively at Level 4. Facts do exist. 147 . and. Deepak Choprah. as such. judicial or otherwise.
and your gut tightened up. Sure. and the guy. when Bill Dittrick. after loading up our litigation briefcases. 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. the opposing lawyer. “Well. said. Nebraska.” Bill and I both sort of gulped. and you got a little sick to your stomach. and believe me this isn’t war. law firm in Omaha. You had an opponent. doing primarily corporate-commercial litigation. You had to 148 . I was in Nam. almost tearing up. and didn’t know what to say. “We’re off to War. but the whole thing was still a battle. the physical bullets weren’t flying in the courtroom. the Nam guy was right in one sense and wrong in another.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase. I remember when I practiced law at the Baird. Bill would say as we were going out the door.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. Holm. Now.
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. I suppose this was like the trench warfare of World War I. Another method of litigation was the war of attrition. In fact. Flanks of course not refering to their posterior anatomies. What these type of commanders often fail to realize. and at the same time you had to care. and in the end nobody really gets what they wanted in the first place. but rather to the ends of their front lines where their primary forces are deployed. 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. is both the vulnerability and the opportunity of exploiting the flanks of your opposition. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank . that is in the sense that litigation in many ways parallels war. Losing was for losers. There was another sense that litigation was like war. however. if nothing else you did not want to lose.tough. the typical litigation partner. seemingly forever. that is. As I mentioned above. they might not even remember what they wanted in the first place. and involves military tactics. simply bulls his way forward with a frontal assault. blitzkrieg. however. Even in the commercial cases you cared. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. The casualties are horrendous. The war is waged back and forth between entrenched positions.
even if they are outnumbered. from an offensive point of view. those ranks of troops are exposed as well. engage the enemy in the middle. “Ours is not to question why. they want it carried out. and to have the troopers and non-commissioned officers to take the initiative. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. there are of course response moves in such a situation. However. our flanks can turn to the center. then it is possible to engage the flanks and at least stalemate the defensive attack. not unlike the Charge of the Light Brigade. ours is but to do 150 . Once “high command” has decided on a strategy. Just like the game of Chess. but they rarely work. notice that if the Enemy’s line moves forward and engages our front line. it is pure idiocy to attack straight at an entrenched position.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now. Now. and then move forward with the flanks. If there is more than one line. As the poem goes. We have a ten to one advantage over the end of the enemy’s line on each flak. and then attack the enemy’s line in a way the enemy cannot combat. I would go so far to say that an order to do so is an illegal order. regardless of the outcome. then the defenders will almost certainly win. if the enemy trained to think multilaterally. Now. if they don’t have the ability to change orders and adapt in the middle of the fight. we can shift our left and right flank defensively so that when the enemy’s line passes by.
the first thing to remember is the context. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania.or die. and was stuck in Union territory. The Confederate Army was underprovisioned. The battlefield itself is about three or four miles wide. Then there is a farm field about one mile in width. Now. That’s the background. outside of Harrisburg. and attacked the Union rear. and then some trees behind. and the road to Washington. around Little Roundtop. before we get to the law application. Now. even if Lee had sent a few scouts out. he could have seen that the Union lines did not extend beyond Little Roundtop. as well as attacking the Union troops themselves. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. 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. Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. cutting off supplies. Now.” Now. Lee had to attack. Similarly. he didn’t get that far. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. Neither France nor Britain was entering the war on behalf of the Confederacy. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. and. Unfortunately. for him.” about the Marines in combat 151 . let’s consider the above in light of the Battle of Gettysburg. effectively ending the war. a small mountain on the Union Army’s right flank. if you have seen the movie “The Thin Red Line. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times.
Now. taking out an enemy encampment. you must know the ground. and then the Japanese entrenched position on the hill. a lawyer from civilian life before the war.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. Well. What has happened in the past merely provides some basis for predicting the future. The company commander had his men make a few attempts up the middle. must absolutely win the lawsuit for whatever reasons. Whether discovery will be local. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. In the case of litigation. is your opponent. Will it be necessary to associate with other lawfirms. Always remember the philosopher Hume. what this usually means is that you must know what courts are available to hear the case. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. national. first of all you need to know you situation. The commanding officer said no and threatened to relieve the company commander. but sometimes it is. Whether expert witnesses will not only be needed at trial. The company comander then exercised field discretion and had his men go around the right flank into the jungle. but it was hopeless. etc. with relatively few casualties. however. or international. The next thing to know. nothing is locked in place. I your client. This is not always possible. but also needed to prepare the case. how does this apply to litigation. underprovisioned. at least to some degree. your context. The company commander. Hume even went so far as to say that all we can really know in our ordinary world is 152 . Next. broke. Whether the case might be removed to a different jurisdiction.
don’t necessarily conclude that your enemy is remarkably smarter than you are.” Suddenly. down 48th street. we ran right into the bully and his side kick and the fight ensued again. I thought. underestimate your enemy. I was simply a guy who happened to be at the 153 . I got in a fight with a bully from another school. never overestimate your enemy. “When is this going to stop?” thinking we might have an truce or something. I figured that I would go to the right down to 40th street and we would get around them that way.based upon inductive reasoning involving statistical probability. Following the words of Rupert of Henzau from the “Prisoner of Zenda. because I could tell that he meant it. So. though. I held my own in the fight on the front porch of the school. Somehow. however. so I asked the guy. until a teacher came to break up the fight. lives to fight another day. I was face to face with evil in a way that I never had been before. I could see the gang at the end of the block. at the same time. 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. “It will be over when I get you down on the ground and beat your head in.” “He who fights and runs away. my two buddies and I hit the bike racks and got our bikes. So. That is. and about 50 pounds heavier than my six foot four inch frame. I made this mistake in junior high one time.” This is of course the doctrine of strategic retreat. they will know that we will take the 40th street way home. but. three inches taller. so instead we will go the opposite way. never. The bully looked at me and said. no. It was about a three mile bike ride home for me. telling my buddies to get one of their parents so I could get out of the mess. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. Unfortunately. He was about three years older. I held my own again.
file the complaint. don’t overestimate your enemy. She chewed the bully out verbally. I got my bike loaded up and we were out of there. except in some situations low level corporate employees.wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. but don’t push it right at first. One last point. 154 . my buddy’s mom drove up in the family station wagon. 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. Both at your client’s end of the street but at the other end as well. Southeast. Get a paralegal to check into available public records to the extent they would in any way be relevant. or even arrange for your enemies to attack each other. they will just gang up on you. the point is to not in the first instance attack the case head on. also. Although wisdom allows this strategy. An eastern way of thinking about war and litigation is this. Now. of course being careful not to violate the anti-contact rule. don’t think that evil doesn’t exist. I’m not sure that conventional notions of morality do. Get a trusted private investigator to check things out. Don’t let one become so dominant that you will lose in the end. the point. the next year my buddies and I were in highschool at Lincoln. in terms of thinking about attacking the flanks in litigation. Then. Yes. of course. Instead. don’t waste time attacking all of your enemies at once. allow. but I guess. Third parties are of course fair game for interviewing but the opposing party is not. and I never saw either of these bullys again. If you find yourself in a muliparty conflict. So. And. yes get discovery started. or even game.
and then all we have worked for up to that time will have been lost. should still involve the symbolic state. I know that some mediators think that someday the state will fall away. The idea that we will somehow be able to do 155 . etc. is that our goal for Utopia. for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day. and then we suddenly get a lousy generation or two of authoritarian people. including but not limited to the judiciary. The first thing that I have learned is that mediation does not work without a judicial system to back it up. I hate to be pessistic. ala Critical Thomism. so I am going to cut the apple in two and say that my goal. The judiciary taking the bench for at least a day. and all disputes will be solved through mediation. ala marx. and learned a lot. Things might even go great for 200. I was a neighborhood dispute mediator for about two years myself.CHAPTER XIX MEDIATION Mediation has been very popular in the United States in recent years. No.000 years on earth.
I then ask further questions factually to flesh out the situation and get a better handle on what was happening. as a last comment. 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. stating that we will first have each of the parties get their stories out. We then hone down the possible solutions to just one. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. Then. but also should refuse to help facilitate 156 . I see a strong role for mediation in our society and system of government. and then call it a day. I ask each party what he or she would like to see happen or get out of the mediation. I think that mediation is a very positive thing.away with law or the state en toto. Nevertheless. and that in most circumstances one get’s a very good result. as a Liberal on the Right. In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves. for me. and here. memorialize it in writing. ala Justice Brandeis. We pound out an agreement point by point. the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. I then do an overview. 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. of course. 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. 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). I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. Mediation is. the mode that I prefer and have used is that of facilitative mediation. While there are several different styles. or methods of mediation. So. modes. But.
Interestingly. though. Aristotle stopped short of proportionality as a basis for perfect equality.agreements which in the mediator’s mind are unconscionable. I think associate the idea with the civil rights movement in the 1960's. Intellect. It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law. While previously I have recognized the idea of the natural law hierarchy of Body. or maybe. Instead. “A Theory of Justice.e. it must be stated here that even if a 157 . equality originates with Aristotle. Equality is based upon the idea of proportionality. with John Rawl’s book. In Aristotle’s Ethics. or before that with Enlightenment Liberalism.” For me. Most people. 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. though.. if remarkably well read. Mind. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea. i. perfect mathematical and geometric ratio.
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. have been damaged greater. functioned primarily on the Body level in terms of cognition and consciousness.” 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.” Equality also comes up in the employment area. The issue of past and present irrational discrimination also must be dealt with. This is equality before the law. Nevertheless. If a street person is defamed by being wrongfully called a “scumbag. one who has a greater educational background and greater skills might in fact. The principle of equal opportunity requires that everyone be given a even chance at getting a job. racial. the person in the discriminated against class should get the job. ethnic. my position is that this can only be done on a limited basis with 158 . I seems absolutely clear to me that as between two equally qualified persons. de facto. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment. Although in some sense trajic. the principle is the same in the case of defamation. 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. if one person is in a class which has been discriminated against. himself. or religious. then. This is affirmative action. society should affirmatively seek to place such individuals in jobs ahead of others. The argument is that because of past and present systematic discrimination against particular groups. Here. say a concrete laborer. however.particular person. 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.
and before that highschool. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards.respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. or a grandparent. The categories for discrimination have to expanded. and before that undergraduate education. or a greatgrandparent. and they aren’t necessarily “white. and for affirmative action. I don’t really expect these kind of attitudes to go away in the near future. who would consider my ethnic/racial background to be unacceptable. In order to qualify one need only have parents of different ethicitity or race. and I suspect that there are a fair number of ethnically German. White Russians discriminated against siberians and other ethnic groups. Irish. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics. In the old Soviet Union. my point is this. 159 . Anyway.” In fact. I want to make the following point. and German. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. For example. There are an awful lot of bigoted people who are interested in ethnic or racial purity. racial Nazi purists. Finally. I would simply say this. with respect to anti-discrimination measures and affirmative action. The Japanese in WWII considered Americans in general to mongrels. then the solution is to stop discrimination in graduate education in the same proportional way. Hitler made it very clear that all slavic peoples were considered to be subhuman. I am Czech.
Heisenberg’s Indeterminacy Principle suggest that we. is. Critical Thomist Lawyers. That is. and then we make a probablistic assessment of the situation.CHAPTER XXI STATISTICAL PROBABILITY Well. ask some more questions. Quantum Physics. in point of fact. For us. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. certainty. as stated in a previous Chapter. linear. and what should be done next. If we think of the ideal rule as a genuinely existing straight line. the “empirical” real rule from an inductive point of view 160 . the world is a bit fuzzy. Critical Thomists. we ask the appropriate questions to try and get a handle on the facts. what the law. provisionally. and even “Greater Reality as a Whole” are all probabalistic. of what is going on. typically a few days later. using litigator’s intuition and gut instinct one comes to a judgment or assessment. of course. do aim for concepts or ideas or conclusions of exact. as well as our world. We do a little legal research. and in particular. When a client walks into one of our offices. and more particularly.
religion. if the applicant had a great deal of work experience with summer jobs.. accounting. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. using a regression analysis which excludes “aberrational data” one then comes up with conclusions. high school. English Composition..while an ontologically and inductively classical rule looks like this: . ethnic. or religious discrimination coming from one source or another..... it is important to include commonly understood analysis of independent variables in one’s study. I have just two points here to make. and. Management. Now. In any type of sociological study.. say for example regarding the objectivity or validity of a law bar exam. I’m sure there are others. and graduate school grade point averages. relative to race. undergraduate. one should make sure that other independent variables are properly accounted for. First of all. ( R = Rule and x = 1 through approx. ethnicity.... economics. and then. detective. is that the probable solution is to improve opportunities for particular types of classes.. a classical rule deontologically and decuctively looks like this: -------------------------------. Communications.only exists as a line of dashes. and maybe even require them 161 . but what I would like to suggest is that from a corrective point of view. 10 ).. at least over the medium to long range. and ideally does take a statistical sample of the relevant data. Such variables typically might include: grade school. So.. for example... and. and espionage novels which involve complex social and political situations. courses taken previously relating to: logic. This could be seen through the classical equation: R = x + 0. interestingly enough mystery. English Literature.. Now in all of this I am not saying that there may be underlying patterns of racial. one is supposed to... etc. Ethics. what type of employment the applicants parent(s) have held. perhaps..
” I have heard that some studies are now not even disclosing what standard deviation they are using. 162 . are using standard deviations of 10. or more. for various type of employment opportunities involving a national service corps. intelligence work with the various military services or the Central Intelligence Agency or the National Security Agency. including but not limited to social science research. 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. perhaps required. or finally. Remarkably. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. some researchers. Additionally. or legal academia in particular. This is real “political” science and it does not just involve social science research. opportunities for the development of leadership skills in the military. or religious minorities in the legal profession generally. there should be opportunities. so I have heard. one must remember the difficulty in coming up with an acceptable standard deviation when one performs an regression analysis to exclude “aberrant data. Finally.for admission to law school. or in my opinion. In my mind. Computer programs which do no display the standard deviation. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent. ethnic. with respect to empirical research. Clearly unscientific and totally political.
on the other hand. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness. 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. When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that. For Ken Wilber. The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6.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. For me it goes something like this: 163 . the “integrated” “centaur” level of consciousness seems to be about levels four or five. For Deepak Choprah. level five seems to be the creativity level.
Rule. or Law. Why is this important? I suspect it is important because those of us who somehow have a 164 . 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. As noted before. or both. Its not mysticism at all its simply a very good. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. 2. 3. or the brain is in the mind. Whether the mind is in the brain. there it is. but I do it vertically. 4. We don’t need Christian theologians to tells us about life after death or the immortality of the soul. we can advert to Plato’s discussion thousands of years ago. Perhaps some perform these operations laterally on one level. but complex way of thinking. gets to be irrelevant after awhile. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations.Metaphysics 5. So. 1.
what does it really mean? When I think of equality. 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). Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. that the line to the men’ restroom was comparatively short. letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education. feelings. Apparently. But let’s go po-mo here for a second and deconstruct the concept of equality. What is “equality?” I mean. CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s. 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. because women need to use stalls and cannot pony up to the urinal trough like men. if only congnitively. which I first saw at Nebraska football games growing up. and emotions in His Mind forever. it takes a lot longer for a 165 . one notes that given an equal amount of square footage for a restroom for both men and women.lived experience of a higher reality. One suspects that their jurisprudence begins and ends with the concept of equality. thoughts. God holds all our memories. find that it is worth the effort to invest in the development of our minds and the minds of others. while the line to the women’s restroom was remarkably long. assuming that women need not urinate or defacate any more often than men. I noticed the perennial problem.
so to speak. usage per hour. or. that equality is geared toward some standard. but to a lot of women its not. alternatively. at this point. race. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color.comparable number of women to “take care of business” than it does for an equal number of men. for example. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. that is. as I said before. usually unstated assumption. legal. how about tractors. The John Deere’s are green. of course. gender. is much different for men and women. the 166 . but that is not my point here. should equality be based upon usage. But let’s think of it more philosophically. We could. Now. So. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. Let’s take a John Deere tractor versus a Massey Ferguson tractor. Now the philosophical question involved is this. and political consequences. to a lot of men its not. Now. should equality be based upon the amount of square footage floor space. If we think of equality jurisprudentially. age. this may seem a little silly. wealth. but they are unequal in terms of tire/wheel size. where. and remarkably enough. More time creates a longer line. have a long and interesting discussion of policy regarding restroom parity. One might say that two tractors are equal in terms of horsepower. natural law hierarchy. My point is that equality only means something in relation to something else or some other standard. The men don’t like having their restrooms taken away in already existing buildings. this does have economic. The examples we could use are endless. equality could in fact be related to social class. In each case there is the implicit. etc.
We might even start a protest movement trying to change the law so that we have color parity among tractors. Now. but it is equality with some meat on the bones. I’m basically a liberal on the right. This is tough for the “left liberal” who wants equality to be the ultimate value. food for thought. natural law. It just doesn’t work. My position is that equality is a good thing. We still get equality.Massey Ferguson’s Red. I could stop here and play it safe. 167 . was the best color. or orange. as I’ve said before. if we could figure out which color. which. one is left with extreme relativism. liberal’s on the right know that equality is not enough of a principle to accomplish much. and the Ethical Matrix that I have discussed previously. then. and ultimately nihilistic position to take. 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. Case Tractors Orange. But. There is something there to chew on. as my dog Scruffy might say. red. but I won’t. If equality is the ultimate value. as I have mentioned before is a logically inconsistent. There is a little more to it. green. at least not on its own. Anyway. but that it must be understood and used in the context of metaphysics. Now.
“I think Critical Thomism is a bunch of hogwash. what is ‘hogwash?. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible. and that it is full of partially digested cattle food. hogwash. literally. “You know. in its deepest sense. I don’t see how I can respond to your criticism without a little more in the way of definition. is. that’s it.” the Critical Thomist of course feels compelled to respond in some way. of course. “Hogwash. my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle.’ just doesn’t line up with that definition.’ how do you define it. a philosophy. I might respond by saying. really. One might make the rather interesting move of asking one’s assailant to define his or her terms. I 168 .CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says. is to shift the burden of proof to the complainant. the problem is that ‘critical thomism.” Your assailant then looks at you quizzically and responds.” Then you sit back and think of the next move. and as such. So.” I said. “Well. I suppose.’” The next move. like bullshit. Here. Critical Thomism. and that it stinks.
“Well. and in so doing. elucidate one’s understanding. and then assert some fact. or position as true based upon critical reflection or judgment. rule. thereby disprove any attack on the proposition that consciousness involves different levels or operations. law.” or there is nothing like “levels of consciousness. what say you?” Usually the response is that there “is nothing like judment. and. the burden of disproving Critical Thomism is on you.” 169 . that ‘judgment’ does not exist. let alone ‘good judgment.” 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.respond simply by saying.” “one would necessarily need to refer to one’s experience.
For example. or perhaps one’s home or one’s office building. however.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence.” the early Greek philosopher Anaximander is credited with first developing the concept. seen as “formless form. one can analyze real property in those terms. Substance.” is that While John Locke mentions “substance” in passing. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. would be simply the Greek concept of Chaos. one typically thinks of the ground that one is standing on. being. One supposes that “substance” without being affected by one or more other metaphysical quiddities. a real property or a real titled interest. if we take the three metaphysical principles of substance. the general idea of “substance.123 123 So. and the medeivals discussed a similar concept of “prima materia. 170 . From a metaphysical standpoint. one can play around with some interesting concepts and produce some positive results. and form.CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. 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.
is identified with the metaphysical principle of being. to the extent that it is more fluid. because of its fluid nature.”124 In fact mystics or quantum physicists often refer to the “ocean of being. Perhaps in no other way. As an intermediate category between real property and personal property. To be contrasted with real prperty. personal property. usually one does not “get it” until one has practiced real estate law. is of course. somehow. While one might get a sense of this in one’s property class. Being having the metaphysical definition of “form of form. and which thus loses its character as “personal property. 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.” Personal property. or perhaps more traditionally put.” and becomes a fixture. and thus can be distinguished from real property. participates in. Real property is formed in substance. has the valence of substance. or is a real estate agent or broker. more movable. someway. or chaos.it is a virtually unqualified kind of stuff which is primordially physical. typically by some form of physical attachment. other than interacting with a new born infant. then. and in its pure form as material matter is simply the mud or dirt or rock of the earth. totally formless. does one encounter the “real” of substance in this basic sort of way. Water. on the other hand.” or the “quantum ocean. yet at the same time in its purest manifestation. seems to be more in line with the metaphysical principle of being. and has the valence of substance. Transactions involving personal property typically involve the Uniform Commercial Code. is the legal category of “fixtures. In this sense it appears that a fixture must have 171 .” A fixture is personal property which is annexed to real property. attached to real property. as such. It is my position that real property.
I then have water. as such. or at least the appearance of change. and substantial form. electrical. one can come up with a way of discussing the differences between two actualities. classical concepts such as essence. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. or “being form. Now. All the hookups are attached to the home. is the question of when a fixture becomes “real property. the sections were movable. essences.” has more structure than substance. So. In an evolutionary universe. form. or quiddities. 172 . Now. and cable t. without losing one’s basic underpinnings in classical philosophy. If the home is considered a 124 This is Plato’s definition. it seems fairly clear that the sections of the home were personal property.” rather than remaining a fixture. using purely evolutionary terms. The sectional home rests on a concrete block foundation. As an interesting correllative to the foregoing discussion. to denominate the metaphysical principle which underlies a fixture as that of substancia. Although fairly large in size. sewer. Substancia. let’consider whether or not we have a fixture here.a metaphysical appellation which is a half way house between being and substance. hookups installed in the lot itself. taking into account some basic metaphysical principles relative to change. However. and has more of a straightforward valence.v. It seems appropriate then. 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. before the home was attached to the foundation on the lot. essential form. and the home itself is bolted to the concrete block foundation. let’s start with this hypothetical example. in three pieces.
which in no way affects the substantial form of the object under inquiry. So. that is. Blackacre exists in classical terms as real property in substantial form (in substance).” or an “accidental change. although many grass stems would be affected. If we choose at this point not to use terms involving statistical probability. can be considered to be real property. In classical terms. Blackacre. a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. would be mowing the grass on lot to a height of three inches every month. and whether or not it is permanently attached to the foundation– if there is a foundation. an arational. 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. an interesting question is whether a fixture. it will probably be considered a mobile home. Now. is simply the addition of an irrational. and will have to be removed in accordance with local zoning regulations. but this way is a good one. An accretion to a substantial form. if it is in place long enough. in my view. The sectional house. Then we have the sectional house. there is more than one way of thinking about this. Imagine we start out with the fee simple two acre lot. part of the fee simple interest incorporated into the larger real property interest itself. prior to attachment. this would simply be a situation involving an “accident. or a rational/logical accident. exists as a substancia form (in substancia) or perhaps even in being form (in being). perhaps.” which is not “really” or 173 . in my judgment.fixture or even personal property. let’s think about it this way. Now. one could come up with a classical term such as “accretion” in the first instance. Tyically courts look to whether the home has running gear attached to it. rather than four inches. Presumably. A good example of this.
suggesting in statistical terms. only an accidental or non-substantial change to the real property. is that of “accession. the presence of a new “variable” which previously had not been accounted for. or.“truly” a “change” at all. a fixture attached to the real property. 125 In terms of statistical probability. Either something is a particular substantial form or it is not. What. So. because neither “substance” nor “form” are effected. Now.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. incorporated into Blackacre as an undivided whole of the real property itself. 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. The trick to dealing with this situation is that just past the metaphysical concept of accretion. of course. In classical terms. however. a statistically significant change has taken place. In classical terms of course. how then does one move from on substantial form to another. impossible. If we add the accident or the accretion of the parts of the sectional house. let us consider the substantial form of our two acre Blackacre lot. this is simply. albiet not yet real property. in point of fact real change or true change are both respectively. in point of fact such a change seems impossible. one has simply placed personal property “a la accident” on the real property. 174 . and as such. In other words.125 The accession represents an intermediary state between the real property state and the personal property state. however. one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. Such a “change” would seem impossible. Once an accession has taken place. of course.
At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. fine with the metaphysics. Blackacre with house really exists in a parallel being universe someplace. at the time of houseless Blackacre. Doubtless the old property hand will now ask. well. If such factors are present. nothing is really new. 175 . it is literally true that “Blackare with house” has always existed in act in some place in being. As Plato puts it. but in classical terms it is not. 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..Now. life is simply a process of “remembering” or “re-congnizing” what is alway already there. then Blackacre without house exists only in potency relative to us. In the classical universe of being. creativity is always limited by form or some other metaphysical principle. not in act. although not one accessible to one having the perspective of “houseless Blackacre. In classical terms. Now. Once Blackare with house has “manifested” relative to us. 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). the foregoing seems absurd. They both exist as independent immutable substantial forms. but when is it that the house becomes real property and part of Blackacre. etc. permanence. treatment of the house for tax purposes. as such? One supposes that the inquiry will involve a variety of factors such as intent. This is why to a classicist.” It is not just a word game.
Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark. though. others simply associate it with the New Age and like it even less. A lot of people think its passe or irrelevant. the evolution paridigm for reality seemed the best explanation.CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about. After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents. six hour course in 176 . sort of. think that it is “theology. metaphysics came sort of naturally. where the fossils where hundreds of thousands of years old. My freshman year in college. well. Some people with particular religious dispositions don’t like it because they. mistakenly. however. .” rather than philosophy. For me. I had a two semester.
The metaphysics courses my freshman year were tougher than hell. Now.metaphysics using the book by Father Renard. Renard’s book was a type of Neo-Thomism which cited to Plato. in my forebearer’s generation. getting back to metaphysics. I guess what I’m getting at is this. however.” That is my reading of it. 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. Suggesting of course that at least Substance as a metaphysical principle. terms. on the other had. as such. particularly my highschool physics class. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. And. 177 The evolutionary idea put forth by Carl . Aristotle. and Aquinas. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. was that it seemed to see reality in static terms. or the Holy Spirit as an immanent theological principle was involved. So. a lot.” Ironically. but at some point a part of my mind got the neo-thomist metaphysics paradigm. But. and my highschool science classes. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. enough. As far as I could tell. cognitive dissonance was still there. top down. and reality in general in deductive. had seen the world and reality in inductive. God is seen as creating the world in seven days out of the “void” of “Substance. It could not really account for new species development. and which saw the world. empirical terms. Evolution. no one even seemed to care about reconciling this situation. and I saw that there was a deductive explanatory perspective that made sense on its own terms. one notes that in Genesis itelself. The problem with neo-thomism that I saw.
although such athiestic. this is how it all plays out metaphysically and follows: Being. we see that there are three primary metaphysical principles. In Biblical theological terms. and is wholly unsatisfactory to me.B. and the [Logos] was God. is. such an approach is essentially infantile. when we take the prologue to John. (N. second there is Being (Form of Form). Love and Creativity. I mean. as the Logos is the First Cause. in an earlier article. 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 . that the universe began with the “Big Bang. My position. where it is stated that Jesus. and the [Logos] was in God’s. is it like Santa Claus said. and apart from him [the Logos] nothing came to be. I denominated this “trinitarian metaphysic” as So. ridiculous. As Ken Wilber has argued. First cause of the universe.A. He [the Logos] was present to God in the beginning. is that the Logos. both biblically. and was the uncaused. presence. and was. non-metaphysical accounts of how reality began typically assert the opposite. In the beginning was the [Logos].” and that somehow there was nothing which preceded this was. in conjunction with Genesis. Through him [the Logos] all things came into being. or Creative Form. and objectively. First. “Poof” and suddenly there was the universe? The whole thing is.) Now. this is found in the prologue to the Gospel of John. or Reason. and last there is Logos (Creative Form). Now. there is Substance (Formless Form).Sagan.
produce a New Immutable Platonic Form. or maybe even for ever. And. The Objectively Existing Metaphysical Principles of Being. in the Quantum Field of Substance. of course. acting as the immanent principle of God in creation. are from a process point of view. could. so to speak. God the Son. as well as others. from a metaphysical standpoint. as well as an Immutable Substantial Form. and Substance. or Law. as such. in an extraordinary case. It makes perfect sense to argue that the three primary Metaphysical Principles of Being. even planets. in terms of a nonsystematic divergence from a classically stated Rule. one might also argue that God the Father. on the other hand the Transcendent Principle.Now. and Christian Doctrine can be added to but not subtracted from. Norm. Once again. and Creativity/Creative Form. Substance. the Mediating Principle. rearranged. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. the Holy Spirit. respectively and together. or.” for awhile. themselves existing in The Mind of God. bringing all of this back to evolution. since the Immutable Platonic Forms. or Matthew Fox. God the Father. one sees that the nature of reality itself is relatively stable. when one realizes that an “accident” in terms of classical philosophy is defined statistically. it is perfectly possible that certain species of animal or plant. Finally. it is possible that evolutionary processes could. So. then one begins to see that 179 . or a New Immutable Substantial Form. be put on the “evolutionary shelf. but not changed. Logos. and God the Son. the three primary principles of evolutionary advance. Now. and God the Holy Spirit. While one can certainly accede that the Trinity Subsists in its Primary relations eternally. the Immutable Substantial Forms. ala Whitehead. Love/Substance. Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. Ken Wilber. or others.
and modern systems involving statistical probability.there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident. 180 .