This action might not be possible to undo. Are you sure you want to continue?
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
religion.. is The Study of Wisdom. business management. One might say that it is Legal Philosophy. Jurisprudence. They use their business and financial abilities to help their clients make good. of course.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. Put another way. a lot of jurisprudence involves sociology or psychology. but I suspect we typically do it a different way. and has taken a jurisprudence course during law school. You see. philosophy. and. accounting. solid. Lawyers use policy arguments all the time to supplement their legal arguments. business decisions. Quantum Physics. one has not only received a Doctor of Laws." . Now. even.CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. theology. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture. values. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. then. one has also received a Doctorate in Jurisprudence. I suppose that we all could get Ph. psychology. sociology." What is Jurisprudence? Well it is hard to say.. It is my position that where one has received a Juris Doctor degree. with policy.. but then again. the problem with Law is that it has to be interpreted. if there is no basis for that interpretation then problems result.D. finance. Metaphysics. 4 .
placing ourselves in a world of science fiction. So. bitch. These Cyborg academics must look to their Central Control Units to tell them what to do. In college I was a concrete laborer for eight months. whine. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it. How they get into academia or law in the first place is beyond my comprehension. Input in. when they find themselves in ditches with virtually no way out. input out. you know. You know. moan." who just channel and parrot other people’s minds. and complain. one might suspect that they have faked credentials known as "dummy espionage degrees. not in the tennis sense. knee jerk." Or perhaps. So. but in the robotic sense. for me it just keeps getting better 5 . If this were a world of espionage. maybe these persons are just "psychic channelers. here. in Law School I decided. never having an original thought of their own. and a day laborer for another summer. I think that it is unfair to ditch diggers to place these fundamentalist. ala Star Trek. call these academics Borg. that’s the problem. and if hypothetically we had nazis or communists in this country. I must apologize. perhaps unconsciously. and then.Unfortunately some Legal Academics are legal ditch diggers. shit out. Shit in. 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. No programming alternatives here. usually spouting phrases like. these people certainly are ditch digger academics. In any event. The solution? Well. to become a Critical Thomist. and. legal academics in the same category with ditch diggers. They spend all their time digging themselves and others into ditches. "The Law is The Law. maybe we should. I think I’ve been a little harsh." But what you really see of course is that they are Fascists. I suspect that ditch diggers are more highly evolved than these academics. and. academics. They don’t believe in jurisprudence.
Ken Wilber does something similar. Logos (Creative Form). its not Critical Realism. For a Critical Thomist. It’s not Thomism. what is it? Well. the Highest Level of Consciousness is structured by Logos. on the other hand. and Substance is the basis and underlying foundation for true reality. 6 . For a Critical Thomist. and a bit more. using the formulation. what Thomas Aquinas called Intellectus. and Substance (Formless Form). but Critical Thomists don’t buy this. Being is A Pure Act of Understanding. I believe in. Mind. and is the Intellect. For me.and better. use a trinitarian metaphysic which parallels the Trinity of God itself. its my thing. Body. it is perhaps a little bit of both. intend. and as a Critical Thomist. Level 1: Body. Logos is Divine Reason. then. I. For Bernard Lonergan. their respective philosphies were based on the Aristotelian concept of Being. and Thomas Aquinas. Now. Being (Form of Form). and Spirit. CHAPTER II CRITICAL THOMISM Critical Thomism. Level 2: Mind. and Level 3: Intellect. reality and consciousness is structured primarily on three levels.
It is at this "material level. The same is true of individual substantial forms at Level 1. Bodily pleasure and sense experience is found at Level 1. then. substantial forms. For a Critical Thomist. and even use the Immutable Platonic Forms at Level 2. rearranged. at level 2 in actuality." that reality is composed of and structured by Substantial Form. an Immutable Platonic Form. but not subracted from. its not. one believes in. however. Additionally.. One supposes that is at this level that Particle Physics reigns. it must be noted that of course statistical probability is itself. The Immutable Platonic Forms. and one’s unconscious or preconscious Mind accesses. and Substance. the Immutable Platonic Forms are of course composed of Platonic Substance. Form. First of all. This is of course consistent with both Plato and Aristotle. and. which is a secondary metaphysical principle. it is a different story. For a Critical Thomist. While the foregoing might seem a departure from Classical Philosophy. while we can talk about. interestingly enough. which leads one to Substantial Form. Interestingly. consistent with Catholic Doctrinal theology. then.In the preceding natural law framework. or analytical or moral activity is found a Level 2. in reacality. Logos. the thing about Critical Thomism is this. those forms typically only manifest probabalistically. and. What else could they be? At Level 1. not Quantum Physics. individual objects are themselves. in fact. Mind pleasure. discussed below. supplements Being. and Intellectual pleasure or the integrative reflective way of being is found at Level 3. then. it has always been the case that the Immutable Platonic Forms could be "added to. but 7 . however. discrete. there are also corresponding levels of virtue or activity.
beginning with experience. Outside of space-time." This is completely consist with the point that the Immutable Platonic Forms exist. Doubting Thomas is the Patron Saint of Critical Thomism. 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. and culminating in judgment and reflection. moving to understanding. it should be pointed out that statistical probability. Finally. Finally. Finally. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules." As I have pointed out previously. a "non-systematic statistical divergence from a classical norm or rule" of course takes place. it is at Level 3 that reality is structured by "relational meaning streams." Now. or the Immutable Platonic Forms. "The World Mediated by Meaning. Change can occur without "change" occuring. To some degree." Nevertheless. who we are and the world we live in is determined. or Substantial Form. subsist.not changed. as Bernard Lonergan would tell us. might find the foregoing discussion a little bit "out there. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas. outside of space-time. as Bernard Lonergan would put it. One suspects that Saint Thomas the Apostle himself very 8 . rather it is grounded in Saint Thomas the Apostle. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. relational meaning streams structure and partially constitute reality. 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. Our world is not just a po-mo (post modern) fantasy. paradoxically enough.
political or religious. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets.well may have been a Critical Thomist. had judged it to be true as a matter of a critical judgment of fact. I think that I will be sure that it is Reality and not something else. presumably had understood it. I think for me the tradeoff is worth it. I go with Doubting Thomas. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. 9 . moving to understanding. and finally through a process of critical reflection and 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. The Critical Thomist may doubt. Although it may take take me a little longer to see Reality. when I do. but nevertheless. and then. So there it is. and then finishing with judgment. For me. obviously starting with experience.
Then one day in class it started coming together for me. Snowden said: "‘Nowwww. rather than "back benching" it. In Mass Communications Law I had chosen to sit in the anonymous middle of the class. certainly not sitting in the front row and being a "gunner. Professor Snowden tried to help us get it. Fejfar. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career. Exactly where I don’t remember. and the people there were not cool and if I (Prof. individual rights. We got it in class somewhere. a reminder to many of Nazi’s marching Neurenberg. how did it all fit together? Well. Prof.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. Snowden) was concerned that I could not get a fair 10 . Constitutional Rights. if I lived in Crete.’ Mr." Suddenly. I could never quite figure out where he was coming from. especially in law school at the University of Nebraska College of Law. Daoist? Zen? On the Left? On the Right? I wasn’t sure. Nebraska. Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. out of the blue I heard my name being called. The whole issue of people getting along.
Snowden) move to Lincoln. Fejfar) think of that?” Now. Once again. Nebraska)– why couldn’t I (Prof. Eureka. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing)." the term ex-cretion was of course only a merely coincidental use of language relative to those terms. Professor Snowden. Then it hit me. Fejfar) said: "Welllll’. Sweating palms. Mr. Nebraska. Fejfar) could say is that that would make you. So. Professor Snowden. I (Mr. Nebraska. 11 . Click. King at the Zoo Bar downtown). Nebraska. where the people were cool. And then." Now. and then you Professor Snowden moved to Lincoln. of course the usual blank out caused by panic. Shit. This was like getting lost in the grocery store at age four and not being able to find mom or dad. That cold empty feeling in the pit of your stomach. the people in Crete. and. So. with me moving to Lincoln? What do you (Mr. inspired. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief. I did have a little premonition I think. Snowden would get along great). I guess if you lived in Crete. Snowden continued: "‘Wellllll’. if you have 1 Of course I definitely did not say "excretion" or "shit.. Inspiration. Was it some sort of Jungian unconscious linkage? My response? Panic of course.shake in court (in Crete.. I guess all I (Mr. where the people were cool-. It wasn’t even close. were not cool. why couldn’t we have a system that handles it that way. Nebraska. an ex-cretian1. What could I possibly say? This question didn’t involve ’t in the case in the case book. Snowden was cool– what other Law Professor could you catch watching and listening to B. Lonergan strikes again. Insight. Prof.(and where presumably Prof. of course. Fejfar. out of the blue.B. (Of course we all knew that Prof.
" 12 3 . This. with only a few scattered laughs. and beat his forehead on the table several times. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class. It’s not that Snowden was hiding the ball. first of all I think Snowden would love hearing the story again. of course. that at this point. and having it in print would help to pass it on in the lore of my alma mater (Nebraska.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. in the spirit of Professor Snowden. you might well anticipate. I am going to press the envelope in this 2 The "pit. "out of school. Second. 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. is to be contrasted with Professor Bob Works. 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. but really in a backhanded way. and in thinking of Constitutional law relating to the First Amendment. And. Perhaps it was to poke fun a little bit at Professor Snowden. Prof. I don’t think there was a ball to hide with Snowden. it was meant as a compliment. I of course thought that I would receive a startling round of applause from my classmates. Why? Well. The "Harvard" of the Plains). Professor Snowden placed his head on the table from which he was lecturing." of course. Now. All my professors were good– don’t get me wrong. being the proverbial student lounge area in the basement of the law school." in this essay. who always "hid the ball. I think they have better things to do with their time).gotten the joke here. Snowden was just great. of course.
. This seems rather awkward though in light of his earlier support for and approval of the Document.) One supposes that it would take a Royal to be a signatory otherwise the document would not have been binding on Evil King John. but then again. here. alleging that it was coerced. The Archbishop of Canterbury was a signatory.. is that the judgment be one of "lawful judgment of his peers [and] by the law of the land. approved it.v. Finally. of course. and Stephen." Now. Now. Norman Irish. Magna Carta is interesting. I remember that my mom and I both cried.. though. after the Battle of Runnymeade. I remember Jack Kennedy’s funeral when I was four years old. with my mom in our rent house in Terre Haute. or outlawed. I usually flash "progressive" when I hit faculty functions and faculty meetings. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. or imprisoned. a Fitzgerald was a signatory of the English Constitution." so that the clause can and should be read.save by lawful judgment of his peers or by the law of the land.” or. Boston 4 Now of course this might be pure hypoerbole. I suppose in Europe I would be considered a Social Democrat. me one quarter). of course. it only takes a little bit of analysis to see that the requirement of Magna Carta. or exiled. the authors really intended "and" not "or. It was especially sad because we were Irish Catholic (my mom half. First. Magna Carta is one part of the "Law of the Land.. 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. watching it on a black and white t.. or in any way harmed. there is an infinite regress. It guarantees that all freemen shall not be "taken.. that is. (One Warin Fitz Gerald.” . Magna Carta in the year 1215. in the alternative. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta]. Indiana. (We’re Fitzgeralds. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. Kingsblood4 I remember my mom saying." I have three arguments. which 13 . when my dad had his first teaching job at Indiana State (I guess this was around 1963).article. I am a liberal kennedy democrat "hiding out" as a moderate democrat. or disseized." Second. scriveners error. 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.
and a jury of those who are Members of the Order of the Coif. I didn’t know what it was. We. Not again. but in our household we knew it wasn’t the whole story. of course Bobby Kennedy was shot. "Who cares?" Well. that’s the story. These killers were fundamentalists. If they can’t find such a jury. as Tom Shaffer might put it. I’ve got judicial immunity. it was somehow in the blood.) Then. Sure. We believed in Reason. I figured it out at Rockhurst College. I think. A Liberal Irish Catholic simply could not be President of the United States. Ours family went West after the Civil War. Now. Suddenly instead of Camelot. the Catholic Liberals were Thomists. at this point you might say. Now. We knew truth was possible even though it might be a little ambiguous and hard to get at. or Creighton. it was the Kennedy curse. tough luck. Thomas Aquinas said there were three levels of law human law (political law). If the Hangman (See chapter ) ever comes after me I assert that I am protected by Magna Carta and have a right to a jury of my peers applying the law of the land. Ted knew. natural law (common law). and thus are Esquires.Fitzgeralds. They were the antithesis of everything we believed in. I do. in my case. we all knew. They were fanatics. Catholic Thomists believe in Liberal Truth. that means that I have a right to a jury of Lawyers who have passed the Bar. and of course is irrational and therefore an unacceptable interpretation. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. It was impossible. there was a lone gunman in each case. as well as the United States Supreme Court Bar. 14 . It couldn’t be.
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
that if one practices using this tool long enough." a Universal Natural Law Ethical Decision making tool. his positive acts. and his silence or negative omission to do anything. one developes a conscience (to the extent that one does not already have one). unless prevented by estoppel. and its practical effect is. and in good faith. In my "Home Run Ball" article I introduce the "Ethic Matrix. using that word in its broadest meaning as including his6 spoken or written words. rather than "his" or "her" would be More appropriate.of a party. from the motives of equity and fair dealing. I argue. The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. 7 18 . I think that this solves the problem nicely. perhaps the word "hae" as a personal neuter pronoun. one way or the other. to create and vest opposing rights in the party who obtains the benefit of the estoppel. An author faces this problem constantly. not wanting to be sexist.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. Its foundation is justice and good conscience. remarkably enough.
it is in fact no more radical than arguing in equity that Constitutional rights can be waived. Bank of Neelyville v. Board of Education. 740 (1890). Rothschild v. 879 (1912)).E. Lee.. pp. 8 2 Pomeroy’s Equity Jurisprudence. or its application to others in similar circumstances. 157 Pac. Conway Nat’l. Duncan. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution. Pease 82 Atl. section 802. 97 N. 1068 (1912).pre-eminently a creature of equity. as such. one comes up with the Doctrine of "Constitutional Estoppel. 182 S. Bank v. R. 986 (1916). 644 (1912). and in particular. in relation to the First Amendment of the United States Constitution." That is.W. Martin v. 298 (1913). 139 Pac. 1635-1637 (4th Ed. Franklin v.W. it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. 1016 (1916). 19 . Maine Cent.8 Now. Brusha v. in conjunction with the United States Constitution. Havalena Mining. Title Guarantee & Trust. Clark & Boise Lumber v. 1918) (Citing. While some might argue such an approach is inappropriate. 143 S. 21 Atl.
how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well." of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945. Robotic is of course a purely fictional character. place. to march in Skokie. Our Hypo Fuhrer. Robotic and his cohorts are. requirements have been met. represented by Counsel for Applicant. A. The United States Attorney. and any resemblence to anyone else is purely a coidcidence.Now. such a resemblence is purely coincidental. 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. Constitutionally Estopped from getting the permit and marching. Rupert Robotic. here is how it goes. the Hypo Nazi Party10. and manner. Robotic9. Mr. Mr. They assert that reasonable time. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. as well as several other interested parties oppose the permit application. Direct Examination (Mr. 20 10 . The "Hypo Nazi Party. Robotic. on information and belief. 9 Mr. and a such for First Amendment Free Speech and Free Association protected purposes. applies to the local Federal District Court for a permit for his group. please state your name for the record.) Cross Examination (United States Attorney) Q.
Your Honor. Q. Q. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel. A. Robotic.) (Judge: Overruled. Mr. Under pain of perjury. once we reach power. such as racial minorities. (Applicant’s Counsel: Objection. not in your party. yes. Mr. Mr. Your Honor. perhaps. Does your opposition include violent means? (Applicant’s Counsel: Objection. I withdraw the question. and in that capacity are requesting a Parade Permit to march in Skokie. that is the end of the United States Government’s cross examination. 5th Amendment). Your Honor. Q. and the other interested parties have waived cross. please answer the question.Q. including but not limited to the First Amenment? Well. Robotic has admitted on cross examination that he and his party reject the United States Constitution. Irrelevant. Under pain of perjury. Alright. isn’t true that your Party supports the abolition of the United States Constitution. to kill or place such people in concentration camps. The First Amendment thereto under which any rights of free speech and free association can be asserted.. Q. Your Honor. Robotic. Answer goes to the Estoppel Argument). do you agree that other persons. . would also have a right to a permit to march in similar circumstances? Absolutely not. Applicant. We oppose the United States Constitution and the First Amendment. isn’t that correct? A. A. Your honor.. Yes. Q. We want them abolished. Mr.. mental or physical. Q. handicapped persons. It is our intention. and finally has specifically denied that 21 A. Robotic you are representing the Hypo Nazi Party.. Q.
nor is it simply discovered. 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. "pushing the envelope. one last thought here. Additionally. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist. Liberty. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. Now." that I encourage my law students to develop. since.A. This is the kind of law. Tony Fejfar) were on the bench. as such. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case. Now. one must simply swish away the slag and the fools gold and look for the real gold that was always already there. as well as the United States Constitution itself. I am also denying the Permit on the basis of Equitable Estoppel. it is developed. Alright. that although it could be used against a criminal defendant in certain circumstances. Therefore. but do not even have to rights of Life. This Court is adjourned. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts. Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. this is how things would play out if I (Prof. and since he rejects the First Amendment itself. Robotic and his Hypo Nazi group from marching. and Pursuit of Happiness. Nazi Party in this matter. Like panning for gold in the Rocky Mountains in Colorado. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw.” Although it may seem 22 . rather. Mr. The Court is now ruling from the Bench. It is neither created. and incorporated by implicit and constructive reference into the United States Constitution. found in the Declaration of Independence. the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. the United States government and the United States Attorney argues that Mr. Thank you Counsel. and." "thinking outside the box.
CHAPTER IV A HOME RUN BALL. the United States Constitution evokes such strong emotions in many people that I think that they would testify truthfully as to their true beliefs in regard thereto. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX.unlikely to the typical bystander. Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality . A UNIVERSAL NATURAL LAW ETHIC The Ethical Matrix Copyright (2002) by Anthony J.
It is based on the Golden Rule found in the teachings of Jesus of Nazareth. Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. See. Intuition. An analogous concept is found in modern economics and the philosophy of Mill and Bentham. 3. It is found in common law equitable precepts. Utility involves the Maximization of Value. Feeling. Ethics . See also. 5. See . Bernard Lonergan. The cognitive functions of Thinking. 1131a22-1131b14 (1976). Aristotle. 34 (1971) (discussing Value as a transcendental notion). 1137a351137b24 (1976). Ethics. Proportionality is based upon Mathematics and Geometry. 4. Aristotle. Equity is based on the principle that Equity favors the one in need. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. 2.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. Proportionality as a basis for Justice is found in the work of Aristotle. and Sensation come 24 . Method in Theology.
Copyright ." The Essay then involves a linguistic. then it follows that life is play. policy. Existence is a Game to be Played. If one broadens this concept even further one finds that existence is a game to be played. The cognitive functions of experience. that life. (See Carl Jung. And if indeed baseball is one variety of play. 6 (1990)). is like a baseball game. Psychological Types . understanding.11 Tony Fejfar 1. Introduction. It is concluded that the Ethical Matrix is a valid natural 11 A common expression. This Essay begins with an overview of The Ethical Matrix. The Essay then proceeds with an example involving possession of personal property and a "home run ball. Fejfar. A Universal Natural Law Ethic. reflection/ judgment come from the work of Bernard Lonergan. 25 . (See Bernard Lonergan. One could also see this phrase as a Zen Koan. and then ethical analyis of the problem presented in the example. 2002 Anthony J. Cognitional Structure in Second Collection (1967)). is.from the work of Depth Psychologist Carl Jung.
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.
Bastick. The hosts come to Mary and ask her if there is something that can be done. The hosts run out of wine and don’t know what to do.21 This is seen for example in the equitable doctrine of unconscionability. Mary asks him to perform the miracle anyway (Equitable intervention based on need). In this narrative. (See. 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. Bible (1977). Oxford Anno."). the underlying symbolism of the narrative is the same. 2. and the catholic Holy Spirit of Divine Wisdom See generally. Jesus of Nazareth and his mother Mary were attending a wedding celebration. John. v.is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need. The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). the roman Minerva. Feminine Equity based upon wisdom intuition 20 21 29 . Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. Chap. 1-11. Whether one takes these events as literally true or not. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. and Jesus does so. turning water into wine. T.22 19 The mythos of wisdom if found in the greek Sophia and Athena.
intercedes to make an Equitable Exception from a general rule based upon need. Hoosier Photo. 30 . 441 N.2d 450 (1982) (discussing the "need" factors of knowledge.E. sophistication. Carr v. and bargaining power. 22 See. for the application of the equitable doctrine of unconscionability.
Thinking. and 23 See generally.23 as seen in the figure below. "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). Carl Jung. Feeling. Isabel Myers. the Jungian psychological functions of Intuition.The Ethical Matrix finds support in the work of depth psychologist Carl Jung. "Psychological Types" (1990). See also. 31 .
Understanding. Judgment/Reflection. support the respective Ethical Principles discussed above. The natural law ethical principles are universal in the sense that each contains minimal moral content. my schema is as follows: Lonergan 1. judgment/reflection 2. 4. understanding 3. Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. These functions correlate to the Jungian functions as follows: Jung 1. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan. Insight 350-352 (1956).Sensation. and Love. 3. 32 .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. and reflection/judgment."26. understanding.24 and the Lonerganian cognitional functions of experience. 2. In order to more fully access the principles one must intuit Being.
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.
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. 12. it has a more communitarian flavor. Bible (1977). 7. 36 . while my formulation has a more individual flavor. one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action. v. "Treat another as you would wish to be treated in a similar context.used most effectively. The idea of reciprocity as an ethical principle takes into account the value of 33 Math. Ch.33 My formulation of the rule as the principle of reciprocity is somewhat different. Oxford Anno. Additionally. 3." Although the two different formulations are very close.
"A Theory of Justice" 513-519 (1971). 37 . 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. 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.34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. see John Rawls. This is based on 34 For an interesting discussion of Autonomy.Autonomy.
Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness. how much do they change. What are these relational meaning streams. Ford answers." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. For a general discussion of Chaos theory. is an even more interesting question." "rearraned but not changed. however. 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." If one sees the relational meaning streams as immutable platonic forms. "‘God plays dice with the universe. And the main objective of physics now is to find out by what rules they were loaded and how we can use them for our own ends. James Gleick.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. at 314. 38 36 37 ." What sort of "chaos" is produced. see. then one would probably argue that such forms can be "added to but not subtracted from.’" Id. while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. or change context. and when? These are the questions which have vexed philosophers for quite some time. its correlative cognitive functions. Of course one finds the notion of the "Good" in Plato’s work.’ ‘But they’re loaded dice."from the point of view of ordinary causality.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. 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." but also as "Being.35 Thus the argument is that personal expression (diversity) which diverges to moderate degree from the statistical norms expressed by core relational meaning streams of the Good (Being)36 is good. Chaos (1987).
Utilizing what can be described as "double reciprocity. there is no value to be achieved by Stan in having his face punched. George must posit that Stan’s desires in the situation are based upon positive values. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation. George. that is. Taking simple hypothetical then. one must imagine that one is Stan placing himself in George’s shoes. Is there any 39 . This. Although in this situation the double reciprocal reflection may seem unnecessary." George must now place himself in the shoes of Stan. however. and in the absence of a higher value achieved instrumentally through pain. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason. Anticipating our discussion of Value. and have Stan engage in a reciprocal reflection. let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. 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. he (George) would not want to get punched in the face for no apparent reason. George must place himself imaginatively in Stan’s shoes and ask himself. 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.accurately and making better decisions. Stan does not choose pain for the sake of pain. is not the end of reciprocal reflection. will choose pleasure over pain. Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal.
reason why Stan imagining himself as George. 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.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. 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. Jeremy Bentham. See. The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. there does not appear to be any higher reflective or moral value which Stan might recognize as valid. would see any value in George’s potential activity of punching Stan in the face. 4. "The Principles of Morals and Legislation (1988). Additionally. 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. 39 40 . Utility.
Here. 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.40 What can this mean? The Author would Bernard Lonergan.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. Although it is obvious that I. As pointed out by Jesuit philosopher Bernard Lonergan. Method in Theology 12 (1971). Finally. Value is a transcendental notion. am building on the work on Bernard Lonergan. Although this has much to recommend to it. Additionally. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. 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. and who intuit Being and Value in a positive way. the argument is that Utility is the ethical principle based on the maximization of Value. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. the Author. Lonergan could only theorize that 40 41 . even those who have a good intuitive sense. it is problematic in that it is not a principled ethic.
the rule of law. the goal of political society. objectively.argue that Value is an core relational meaning stream." While I have always read and interpreted this in a positive light. the state. Additionally. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. and the law. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. and is one which promotes constitutional democracy. It is my position that the Ethical Matrix is the natural law-critical realist ethic. then one begins to have a basis for ordering one’s values. and have as a result of that process developed the Ethical Matrix. 42 . and due process of law. is the "good of order. in a particular decision-making context. If one reflectively intends Value. as such. or in the context of a particular public policy analysis. by intuiting Value one is better able to consciously recognize and then reflect upon the values relevant to a particular situation.
one can begin to recognize higher pleasures. several points can be made. 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. reinforced. Thus it is not unusual. pleasure. First.43 Other than this general 41 42 Aristotle. as such. for various religious groups to have violent confrontations. cannot be denied. for example. for example. Additionally. 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. While moral injunctions to "love one’s enemy" are intended to act as "double bind" commands which are intended to motivate the member of a moral group to relate in a positive way to "outsiders." it 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. the reflective person chooses a higher pleasure over a lower pleasure. and through the intuition of Value. While the moral life has many positive attributes to recommend it. 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. It is asserted that all other things being equal. Ethics 1097a15-1097b2 (1976). First. it does entail certain problems. 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 . moral rules are taught. This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life. can certainly be the basis for a particular value. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. However. upon reflection.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem. While Aristotle argued that the end of the human person is happiness. 41and that true happiness is achieved through the contemplative life. and enforced through moral communities and authority figures.
f.. 43 Perhaps it goes without saying that for an adult. but Spirit is not an object. and cannot there be found. leaves the person with a lack of genuine pleasure. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law." that is. manipulation of others. the non-reflective.. Ken Wilber.. Id. but the Spirit is spaceless. he or she must have a better more prestigious sports car which in turn will not suffice. In other words. shiny and alluring and full of fame or fortune. the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends. at 61. Additionally. and the pursuit of lower pleasure as one’s only ends in life. but Spirit is timeless. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . Because these rules exist. but rather impedes it. in point of fact. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value. anti-self interest" operates. The acquisition of the sports car will typically not satisfy the selfish person. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. and even when they are achieved. We seek for Spirit in this or that object. and cannot there be found. 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. "irrational self. 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. the selfish person usually cannot even accomplish these goals without running into problems. the Author would argue that something like liberal "original sin.. the accumulation of material wealth. And that is the Atman project. C. the selfish life is immoral and unethical. Instead. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. This is because selfish person is merely pursuing a sensate addiction when in fact the satiation of a lower order sensate desire for pleasure will never ultimate satisfy one’s underlying need to experience and express Value as such. and it cannot be seen or grasped in the world of commodities and commotion. and force us to settle for substitute gratifications. 44 .complexity of the real world it is impossible to make appropriate decisions without contextual reflection. we are seeking for Spirit in ways that prevent its realization. The Atman Project (1999): We seek for Spirit in the world of time. We seek for Spirit in the world of space. Thus.
This leads us to our discussion of Proportionality. once again. 5. or in an equalateral triangle which has been divided down the middle. and as expressed in particular concrete values. or as it is put biblically. Proportionality. "An eye for an 45 . The principle of proportionality is found in geometry and mathematics. other than to say that it is self evident that Value itself must be valued. of course. Or. Thus. it must be stated that Value itself.guidance or limitation. in criminal law. It involves the idea that perfect proportion is found in a 1:1 ratio. one’s assessment of Value and concrete values in the context of the Ethical Matrix is of course influenced to a great degree upon the ethical principles of reciprocity and reciprocal thinking. Proportional values involve the value of equality and having rules. while equitable values involve the value of favoring or helping one in need. compensatory money damages should always equal the amount damaged. and. however. on proportionality and proportional thinking. and equity and equitable thinking. for example. punishment should be meted out in perfect proportion to the crime committed. The second corallary is that Perfect Justice is found in Perfect Proportion. has no definitive serial ordering. all other things being equal.
appears to be the first person to formally recognize proportionality as a basis for justice. burn for burn. Exodus. 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."44 Aristotle. wound for wound. you shall give/have. "life for life. v.eye and a tooth for a tooth. 21."). foot for foot. in his Ethics. 23-25 Oxford Bible (1977) ( For any harm. Ch. tooth for tooth. eye for eye. hand for hand. stripe for stripe. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. 46 .
1132b3-1133a13 (1976). Id. 6... where the [legal decision-maker]. 1130b32-1131b14."47 Thus. and there are some things about which it is not possible pronounce rightly in general terms. Aristotle. Ethics 1137a17-1138a11 (1976). has erred in not covering that case. 47 47 . and a case arises under this that is exceptional. and as he would have enacted had he been aware of the circumstances..45 While some person’s undoubtedly view proportionality as the ultimate basis for justice. then it is right.48 45 46 See. there is a problem with this approach that Aristotle himself recognized. owing to the generality of his language. Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance. Aristotle. "[A]ll law is universal. Ethics. in fact this is not possible.treated equal on the basis of formal equality. Equity In his Ethics.46 As Aristotle puts it. [W]hen a law states a general rule. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there.
. is. 48 . "the essential nature of equity..Therefore. a rectification of law insofar as law 48 Id...
is defective on account of its generality. Fejfar. many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. 694 (1986).50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. 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. that rather it is impossible to generate a rule system that would justly take into account every possible circumstance. The question remains. Anthony J. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. 681."51 And as noted earlier. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words." otherwise injustice is simply produced by unnecessary rigidity. I suggested no to this question. Thus. 51 49 . Id. however."49 This of course raises the corallary question. and how? Here there 49 50 Id. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch.
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.can be no hard and fast answer other than the fact that equity is based upon need. accessible both to women and men. 7. and a true assessment of need must be an intuitive one. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. but rather one which is alinear and arational. is a half way house between purely irrational emotional feeling and strictly rational analysis. Thus. This intuitive intermediate way of knowing which is associated with wisdom.52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control. 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. the definition of possession in Property Law. the next section will deal with a discussion of the concept of possession. we will now move to a concrete but theoretical legal problem. Nevertheless. rather only a strictly logical exception. 50 . to be followed by a section analyzing the concept of possession in light of the Ethical Matrix.
"Deconstructing the Legislative Veto." Should this surprise us? No. the substance of what the students are getting at remains the same. one is typically thought to possess it. this could be troubling to you and I." 68 Minn. because all definitions are ultimately circular. 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. and that is this: possession is related to control." one is again faced with a problem. however. The problem. While we sometimes get to 10 or 12 or so different words. this of course would be a problem. Now if we expected to find reality on the level of logic or ideas. If one analyzes a concept enough. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves."53 showing that all definitional arguments are ultimately circular and thus indeterminate. we find that reality comes at a higher level. but it need not be. we try to generate list of definitions of words associated with possession. one simply is presented with the phenomenon of "analytic spin. 520 (1984). for example. Girdeau Spann. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. is that when one attempts to find an adequate definition of "control. 473. If however.that one has control over personal property. 53 See generally. 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. 51 . L. utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. Rev. Now.
Reacality: Body: Sense Experience/Data: Power/Authority Power Politics Now.54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention. possession could be considered respectively. returning to our concept of possession.then we find that there is no problem at all. Following the work of Bernard Lonergan. At level three in "reality. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case." 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." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2. and then using physical or political force to retain possession. At level one. Actuality: Mind: Understanding: Logic and Logical Reasoning 1. Now all of this seems very abstract. on the three levels above. He also wishes to thank students from several property classes 52 54 . a critical realist understanding of the problem can be seen as involving at least three levels to reality. At level two on the level of "actuality. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball. which deploy as follows: 3." one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values. on the "reacal" level.
emerges from the pile he has been mining for more than a minute with a smile and appears to say. St. as well as this article. June 26. "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." Id... (2001 Westlaw # 25594143. Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco.000 received at auction for the home run ball. Petersburg Times Newspaper. Both Popov and Hayashi end up claiming the ball.. 10. 53 . 2003). ‘Who has the Ball?’ Id.." Id. In the Barry Bond’s Home Run Ball case. A lawsuit is filed and the case ends up settling with a 50-50 split of $450. Patriot News Newspaper. Who gets the ball? According to Jorge Costa. "At first the ball appears to [pop] out. Team Senior Vice President of Pacific Bell Baseball Park Operations. "A tape of the homerun scrable. "[A] man. who turns out to be Patrick Hayashi. that’s the end of that. but then it drifts back into the glove. before Popov is tackled by dozens of other fans clawing for the ball. 2001)." Id. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away. (2003 Westlaw # 3207018." Id. "Once major league baseball identifies the individual with the possession of the ball.who have discussed the possession issue relating to a home run ball. Oct.. clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands].
Baseball and the Pursuit of Innocence. 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.Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. Many will bring gloves. 173-74 (1994). As each ball heads toward the seats. especially the younger ones. your glove opens an inch 55 For many fans. and other apparatus to the ballpark to aid in their quest. 54 . There are few more memorable experiences than leaving the stadium ball in hand. The ball has just made contact with the trap of your glove. Richard Skolnik. You reach up to catch the ball. and instead of completely closing. but you slip on a hotdog and lose your balance.55 Suddenly Pudge Rodriguez hits a home run into the stands in left field. that fan can expect appreciative cheers from the crowd). the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. nets. and risk injury attempting to catch baseballs rocketing their way. and will occasionally display incredible bravery (or is it foolhardiness?). 56 This is obviously an imaginary hypothetical since Pudge Rodriguez. to the author’s knowledge now plays for the Florida Marlins.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you.
Costa’s position. You say the ball is yours because you caught it first. The ball pops out of your glove and into your other hand. See supra.57 57 This appears to be Mr. note . Ballpark rules say that the first person to "possess" the ball owns it. the second guy says it his because you did not have control of the ball. 55 .further and you start to bobble the ball. Joe Smith. bounces back toward your glove. when another fan reaches in with his hand and grabs the ball out of your unclosed glove.
60 In Young v. they are the only two relevant cases.B. Bracketed information found in edited version of Young."63 "leaving a space of about seven fathoms 58 59 60 61 6 Q.B. 900 feet would be a length of 300 yards or three football fields long. Hichens. for our purposes. 875 (1902). namely. fish. 606 (1844). Modern Property Law (1999). the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish. Young v. The argument is that a flying baseball is analogous to a free flying wild animal.The case is turned over to a judge who must decide the case based on case law from two previous cases. Shaw. in Bruce and Ely. Black Law Dictionary. 6 Q. 607. Hichens58 and State v.E. A fathom is six feet in length. 62 63 56 . 65 N.59 Although both these cases deal with the possession of wild animals.
"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. Id... 57 ."64 (42 feet)..67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id.open. and splashing the water about for the purpose of terrifying the fish from passing through the opening. "two boats belonging to the plaintiff. Id.... Id."65 At this time. were stationed at the opening. "which he was about to close with a stop net.
"70 Additionally. this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals. is State v. If the plaintiff did have possession of the fish. 611. Chief Justice. the defendant was criminally charged 68 69 70 Id. In contrast to Young. Id.B."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. 58 . In his opinion. was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant. 6 Q. Shaw.72 In Shaw."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. Lord Denman stated.in the defendant’s net. "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish.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. Partial control is not enough. Justice Patteson stated.
875 (1902). 65 N.E.71 72 Id. 59 .
To put the argument more fully. 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. Id.76 In Shaw. the defendants who were not the owner-complainants. the defendant must have stolen property from someone owning the property.E.E.with stealing 730 pounds of fish from the complainant’s73 nets. 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. In fact the case only inicates that the these parties were named in the indictment.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. 68 N. 60 74 75 76 77 78 79 .79 73 The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets. there can be no theft.78 The trial court directed a verdict of not guilty for the defendant.74 The facts indicate that the compainants had placed "trap nets. 876. took the fish from the owner-compainants’ nets prior to the return of the owner-complainants. and the state appealed. to prove theft.E. not that they were formal complaintants. to escape. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment. 65 N. 876. 65 N.
61 . yet it was practically so impossible. "the fish were not at large in lake Erie."81 The court opined.84 8. from which it was not absolutely impossible for them to escape.On appeal the court in Shaw heard the case on the assumption that the trial court "directed the jury to return a verdict of ‘not guilty’ on the theory that the fish must have been confined so that there was absolutely no possibility of escape. therefore. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession. They were confined in nets. 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. of the fish escape."83 Thus. for it seems that in ordinary circumstances few."80 The court noted that in Shaw. at 876-877. that it considered the trial court’s approach to be "unnecessarily technical and erroneous. Id. if any. 80 81 82 83 84 Id."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net. Id. Id.
You (Freddie Fan) have your ball glove on and the ball is coming right toward you. and instead of completely closing. You reach up to catch the ball.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. Young. based on the foregoing precedents.In the present case we must attempt a logical analysis. The argument is of course that by custom. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. The ball has just made contact with the trap of your glove. and Shaw. In this sense the ball is like a "wild duck" flying into the stands which then becomes the property of the first person to "net" the "duck" and place it in his or her possession. your glove opens an inch further and you start to bobble the ball. You say the ball is yours because you caught it first. as to who has a right of possession in the home run baseball. Daoism was first developed in China by Lao Tzu. the second guy says it his because you did not have control of the ball. Joe Smith. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. 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. 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. bounces back toward your glove. See generally. both the batter. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. but you slip on a hotdog and lose your balance. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. Arguably. This possibility is reflected in the following story: 62 . The Wisdom of Laotse (1976).
We were there at my favorite spot behind the first-base dugout at Angel’s stadium. The good fighter does not lose his temper. For a discussion of the Dao in relation to Basketball. Looking up with a wide grin. 128-29 (2001). she [my wife] said. my Dad. The [D]ao of the Jumpshot (2000). "Honey. Rudy.It happened this way: My wife. To paraphrase Lao Tzu: The brave baseball player is not athletic. To our horror. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. He hit a high pop-up that came sailing straight at us. I thought you said catching a [fly] ball was tough. et. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. edited by Jack Canfield. The Wisdom of Lao Tzu. The great conquerer does not fight. The good fan does not lose his temper. Mahoney . The Virtue of Non-contending 293 (1976). The great player does not compete. we watched the ball drop between us–right in [my wife] Joanne’s lap. see. Joanne. and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. To a Daoist the above story does not seem improbable. John F. al. Dad and I leapt to our feet. stepping back to let his son’s dream come true. 63 . first pitch to leadoff batter Ricky Henderson. But he did the same. First inning. Chicken Soup for the Baseball Fan’s Soul. realizing that I had to let my Dad get it.
" and "almost" possession is not "possession." Shaw.If we were to follow the Young case. practical control should be sufficient to place ownership in the hands of Freddie Fan. and therefore Joe Smith as first possessor would own the ball. is remarkably like Young where the net of the first boat had not completed closed. In Young there was a gap in the net of almost 42 feet in length. Only partial control was present in Young. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. Recall that in Shaw the court held that practical control was enough to grant the "trap net" fisherman ownership rights associated with first possession. "Almost" control is not "control. Freddie Fan did not have sufficient control to obtain possession of the ball. Arguably then. absolute control of the ball is necessary before one can assert that one has possession. Accordingly. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw. one could conclude following Young that a mere 6 inch gap compared to a gap of 42 feet in length is de minimis and thus would not be considered a "gap" for purposes of defining "control" or "possession. In the present case. then. and only had partial control before Joe Smith reached in and grabbed the ball." Following Young. Recall that the court concluded in Young that partial control is not enough. then it could be argued that in the present case involving the bobbled ball. is distinguishable. in the case of the home run 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. The bobbled ball case. In this case Freddie Fan bobbled the ball. 64 . On the other hand it one could argue that the Young case although generally controlling.
Critical Readings. Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport. Peter J. First we must identify the persons relevant to the reciprocity analysis. fair play. and sports related values. Coaching for Character (1997). A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix.9. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship. but recognition. In this case it appears that the batter. X (1983): 61-70. the team owner. ch. 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. Arnold. Feezel. Hyland. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. However. see.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. 65 . Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport. Philosophy of Sport. have waived their rights to the ball and so they will not be discussed. Since this is a baseball game. 6 (The Stance of Sport) 125 (1990). and Craig Clifford and Randolph M. in one sense an outfielder is competing with other outfielders on the same team for not only excellence. In baseball. and the owner of the stadium (if different). Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. Drew A.
then. at least in the abstract. One must make the assumption for purposes of analysis that both Freddie and Joe.." Subsection (a. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. When both players have positioned themselves closely enough to the ball to possibly 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. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player. Thus. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. believe in fair play and sportsmanship." 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. one might generalize this rule to apply to all cases involving partial possession of property. 66 . we start with Freddie Fan and Joe Smith.must be given an unimpeded opportunity to catch [a] kick. Similarly. Starting with this operating assumption. Football Rules.A. in N.A. as sports fans.C.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.." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way. In fact. Now.) 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. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession. how does all of this play out in terms of the Ethical Matrix? First. using the principle of reciprocity.
and hypothetically all others. with respect to Utility. that Freddie Fan is entitled to the ball. would come to the position. that is. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances." he. Joe Smith. With respect to the principle of proportionality. Freddie Fan would be entitled to the home run ball. if he. who also is hypothesized to be believe in sportsmanship and fairplay. the principle can be used in the sense of creating a general rule. Joe Smith. First. as a matter of rule based ethics is legally entitled to the home run ball. the fair opportunity rule. placing himself in the shoes of Freddie Fan. Joe Smith. he. 67 Finally. It can so be applied. and thus recognizes that "after the dust has settled. Joe Smith as a sports fan. then." Hypothetically. had partial possession of a home run ball. at least in the hypothetical . and takes comfort in the conclusion and rule that next time. relative to the question of who gets the ball "ethically. understands. take the position that "ethically. because. which can be applied relative to both Joe and Freddie." Freddie Fan should get the home run ball as first possessor with partial control. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. believes in the "fair opportunity" rule. No further discussion is needed. in a similar situation. ethically. With respect to the remainder of the analysis under the Ethical Matrix. In my judgment. Would Joe Smith. Now we apply the Ethical Matrix the other way. Additionally. and therefore the proportionality test is met.one must have Freddie Fan place himself in the shoes of Joe Smith. the discussion is relatively strait forward. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. Freddie Fan. Joe Smith would be ethically and legally entitled to the ball.
the result reached in the policy analysis section passes the muster of the Ethical Matrix.presented there does not seem to be any need for contextual equity. Thus. It is concluded that the Ethical Matrix is a valid natural law ethical tool for engaging in public policy and legal analysis. policy. As a part of the analysis. Conclusion This Article began with an overview of The Ethical Matrix. 68 ." The Article then involved a linguistic. A Universal Natural Law Ethic. and therefore the fair opportunity rule applies as stated. the "fair opportunity" rule for the possession and ownership of personal property is developed. The Article then proceeded with an example involving possession of personal property and a "home run ball. and then ethical analysis of the problem presented in the example. 10.
and perhaps only goal. The argument is that. often. etc. only the stock holders would be prioritized or even included as stakeholders. Often. The Corporation’s typical goal. Corporate employees. but also in terms of long hours. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. local and regional communities themselves. Corporate work places are dehumanizing both in terms of the type of work that is done. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders. consumers of products. families of employees. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. If one takes what I would call a “property rights” oriented view of the Corporation. Typically.” Cynically. traditionally. is to profit maximize for the benefit of the 69 . but. and even. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility. in the first instance can be asserted against the Corporation. legally. traditionally. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. also.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. then. and then trying to fairly balance or adjudicate their respective interests.
arguably. corporate fascists often fire employees and break up companies for no rational reason at all. and.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. that. is that the Corporation would not be profit maximizing. The purpose of the Corporation also would be to promote the 70 . other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. the shareholders. a “duty-conscience rights” oriented view of the Corporation could be developed and used. one gains the edge by having management and employees who are not merely competent. corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. How do we resolve this condundrum? Well.stockholders. and Truly Worthwhile. from a “liberal” point of view. The solution to this problem in my view is to at least allow. and the Good as a Critical Thomist Ideal. especially. first of all all of the empirical evidence that I have seen indicates that in most industries. Unfortunately. but are on the cutting edge. which is irrational in both the medium and long term. and perhaps even in the short term. medium. In this instance. “The Z Corp. the restructuring of Corporations to create a new type of Corporation. one profit maximizes by investing in human capital in and for the short. the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization. Alternatively. but also in making ethical judgments to promote the Common Good. however. In a competitive market. discussed previously in Chapter IV . if not require.” The Business Judgment Rule would be based on the Ethical Matrix. and long run. The problem with this second approach. in the guise of short term profit taking.
“Common Good. for example. This stock would produce no dividends. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. etc.” Here the rather obvious response is that ethical decisionmaking in the 71 . at below market rates. Another objection might be that ethical decision making in the context of a Z Corp. would of course be “profit moderatizing. A law firm which was a Z Corporation. One might argue of course that a Z Corporation would not be “profit maximizing. and. such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. and The Good as a Critical Thomist Ideal.” Additionally. The Bonds could of course be publicly traded either on the New York Stock Exchange.. law professors.” However. because the management literature almost uniformly suggests that ethically run corporations produce more money. The trustees would be experienced business persons. in an attempt to meet the objection head on. with a values orientation. life insurance. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover. would produce a greater profit than its older cousin. Capital would be raised primarily through the use of Corporate Debenture Bonds. and an ability to use the Ethical Matrix. and I suggest. The Z Corp. Finally. I would argue that overall. Of course one might respond that one is comparing apples and oranges. Z Corps. would be “irrational. or on the Chicago Mercantile Exchange. disability insurance. A Z Corporation would be able set up subsidiary corporations which could provide health insurance. which would be give preferential tax treatment with respect to the interest produced. no more than 20% of the stock would be publicly traded. The Truly Worthwhile.
will be the way of the future. are totally unrelated and thus would diversify the income stream of the parent Z Corp. natural law. universal. Finally. Additionally.context of the “Ethical Matrix. or alternatively. I think that we will find that Z Corps. perhaps even treating the interest as tax exempt. unreflective fascist communism or nazism. in the case of economic or other cyclical downturns. will be the end of both unreflective fascist capitalism. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. 72 . and in conjunction with the subsidiarity doctrine which diversifies responsibility through society.” is objective. traditional non-profits such as Universities and Hospitals could incorporate as Z Corps. spin-off. and. bonds be given preferential tax treatment. and have wholly owned subsidiary Z Corps. which involve related. type way of thinking. I would reiterate that Z Corp. It is an objective. or offshoot. operations.
" Now in order to avoid "Quantum Spin. on the other hand. So perhaps we might wonder. or perhaps. denies the existence and efficacy of metaphysical principles. deals with depth. but the problem itself. on a Quantum Level. or perhaps even hermeneutics. not only how we approach the problem. without taking the time here to trash Ockham’s Razor." and "Substance. suggests that the meaning framework that we bring to a problem affects. Form. then. deals with formality. the logical positivist." as such is defined as "Formless Form. surfaces. the ideal." So. Ken Wilber calls this "flatland. Form and Substance. or structure. not only how we solve the problem. is defined as "Empty Form. typically. Does this really make sense? Logical positivism at its best." I suggest that we at least try out two very interesting metaphysical concepts. Substance." as such. or 73 . found in Quantum Physics.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. let’s talk about these concepts. tells that reality is manifested primarily through words or language." Now. "Form. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle. Use the wrong concepts and one’s mind goes into "Quantum Spin.
" Now. says. and beside the road that you are walking on is some "scrub. "Mom calls that scrub. but is smaller than a tree. let’s say for the sake of argument that you are a Yankee from up north (like me). even though both seen to have some relationship to Texas in this story). and although he is from Texas. Well. with leaves sticking out in various places. "Well. "Would a rose by any other name smell as sweet?" "Uncle Chris. and I think that on a good day my wife’s relatives from Shiner. In describing this bush. course. Now at this point in the story. You go for a walk. let me tell a yarn that includes a couple of examples. Crista. and although not literally. Texas ( home of Shinerbock Beer). I’d probably call that scrub. Now the logical positivist might doubt that these two concepts are really different. and you see some scrub. is lots of fun. shrub. what is that?" Josh responds. scrub. Bill Shakespeare thought about the same question when he asked in one of his plays." Uncle Chris comes along. But before you decide. along comes my kids. he says. I think you have been hanging around Dad 74 . "You know Josh. This yarn involves members of my family. Now. from my point of view. Texas. would say that if something is growing on the side of the road which is larger than a grass or a weed. "Dad. "Bush. Josh (age 9) and Cristina (age 12).reality without form. true. coming from Nebraska. and for some reason your out for a walk in Shiner. Crista asks. what’s the difference?" Uncle Chris Stluka. is some scrub. where my wife’s folks live. I would call it some shoots that are sort of clumped together. and my folks live down there now in Fort Worth. I think that that just might be a shrub not scrub. my wife is from Texas. a bush (not to be confused with President Bush." Crista then says. wise in the ways of the world. however.
your Dad solved it. "the point is that although as a matter of "form" we have three different words for a "bush. and Uncle Chris. but in substance. I want to see some practical results here. Dad. At this point Dad cuts in." "Josh and Crista. is this one of your tricks?" says Josh. So. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. "Well. "bush. in form there is a difference. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad." Uncle Chris. let’s put the pedal to the metal. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids. that why God gave us these noggins to think with." (Judi. let’s say that I believe that the form-substance distinction exists." says Crista." however. "Yeah. "Now Crista. really." says Dad "Allright Dad." "See kids. the same. and of course Scruffy." "scrub. "Dad. "Wait a minute Dad." says Uncle Chris. "Well. the Mom now appears. I just give up. "Yeah Dad. all three words mean the same thing." says Crista.too much." and "shrub. "I give up. we’re all supposed to think about things like that. "Tricks Josh?" asks Dad?. Crista." as a matter of "substance. "Well." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. where could you have gotten such an idea. and a red convertible car on my 16th birthday?" responds Crista. its getting hot– remember we’re in Texas in July. kids. how is this going to help me get a job." that is. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary.) "Well kids let’s get inside and have 75 . I think Scruffy (the Dog) wants to go in." says Uncle Chris." says Dad. now listen to your Dad.
"Well. "I for one want to hear the end of the discussion about the form-substance distinction." say Josh. I like the utility of have three popsicles for our late night snack rather than two. Dear..K. "Well. Tony. Josh.. well. O.. does this mean I call stay up until 2:00 a. "Mom. 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. but from the point of view of the "truly worthwhile.. we’re a Critical Thomist family. responds Dad.. and we haven’t quite got through yet." says Mom. "Well Crista. we raised our kids to think critically and question authority." says Uncle Chris." says Uncle Chris.. "Yes. "Yes. watching the Eminem special? I think from a critical point of view my ability to critique the lyrics and the tonal harmonics would be a very important step in my Thomistic development." say Judi.?" says Dad. couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. were trying to create a joint tenancy with you and myself with some property you already owned." "Whoah there Judi." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up.. "Well Chris. even property lawyers. the practical point Cristina Elise is that lawyers use the form-substance distinction all the time.your late night snack and get ready for bed." "Oh." says Mom.. "lets say that you. and how does that work?" says Mom. "Mom. "Yeah Mom." say Josh." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions. is there really any inconsistency here." says Dad.m. 76 . we’re discussing the form substance distinction here. Mother. Judi. "would a Mom by any other name smell as sweet?" "Josh mind your manners." says Crista. "Now wait a minute" says Uncle Chris.
" says Mom.K." says Dad.K. If the two transactions are the same in substance. "Alright. the point is. one with a strawperson. title.K." says Crista. all have to be satisfied at the same time. says Uncle Chris. says Crista. which of course means that unless the tenancy is severed before one of them dies." "O." say Mom. Crista. what does this have to do with the form substance distinction..K"." says Dad. prior to your attempt to convey it to the other person. "Now. the survivor automatically gets the other tenant’s share. the two transactions are different." says Dad. "that although in form. one with a direct conveyance." who was a trustee. "Me too Dad. "I think I’ve got this one figured 77 . why not just say that the original transaction was O. not to cut the story short. "What’s a joint tenancy again Dad?. "Well. to create this joint tenancy of yours?" says Judi. in fact. it getting late and I want to watch Law and Order at 10:00 p." says Crista. and interest." "O." says Dad.K Dad."O. so?" says Judi. thus satisfying all four unities all at once. I think I got it. at the traditional common law.m." says Josh (as he rolls his eyes). the problem was that if you already owned the property. Tony. Tony. possession. "a joint tenancy could not be created by one person who already owned the property conveying part to another. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson. But what is the point. but as joint tenants. "You know". "Well. I think I’m getting this. who then conveyed the property to the grantor-original owner and the other person at the same time. "Well. this is because the unities of time." says Dad.K. "O.. "O. its where two or more persons hold real property in common. in substance they are the same. "Now. Therefore the four unities could not be satisfied. title would already have been conveyed to you the grantor.
I don’t want to miss my show. "You know I had it but then I lost it. did you want to chime in?" asks Tony. By modern common law and modern statute." And so the Fejfar-Stluka clan." says Tony." says Mom. you can create a joint tenancy by a direct conveyance without using a strawperson.out. let me think it through. Well. "if a court or a legislature chooses substance over form. "No. their minds filled with jurisprudential sugar plums." says Dad." "The law is like this all over the place. "Well. "Judi. Lawyers are constantly arguing that something is or is not the same in form or substance." go ahead Tony" says Uncle Chris." says Tony. says Mom. interesting. then you know what? they change the rule so that the form does not have to be met. let’s continue this discussion inside. head on into the house to watch Law and Order. and you still get the substance. 78 . go ahead. you’ve got the floor." "Well." says Chris. "and in fact that is just what has happened." "Hmmm. do I get to guess the answer?" "Sure Chris.
Missouri–a good mid-western Jesuit school.. Carl Dehne. was my freshman theology professor. This was my first exposure to priests in tweed sports coats. in Lincoln. in Kansas City. its not that I thought that I would be manipulated the Good Father.J. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class.D.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College. S. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). Anyway.C. I stopped by Father Dehne’s office. the priests wore their collars and blacks even while taking their showers. but somehow I think the whole process worked in reverse. 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. because. Nebraska. believe me. for a 79 . So. Don’t get me wrong. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends. I was teaching mentally retarded children’s C. before you know it.
"Oh. Now was Father Dehne bluffing? Thinking that I would back out." said Dehne. I thought to myself. Dehne looked at me. "what time do they start?" "Oh.couple of big university masses. he"s another Rockhurst student who is already teaching. metaphorically.R. till 6:00 p." "Well then it’s perfect. Then he said." Then Dehne says. so. Now there was a quid pro quo.. that is the Planet Dune. I and John Blando. Not the President of the College. that sounds great Father Dehne. that sounds good.E. "O. I don’t know. Oh. what is 80 . program across the street on Saturday evenings.m. and then you. Maybe we could get Father Weiss to come along. Now what was I going to do? "Well.C." "but you know." I replied. no. Well. then I say mass for the kids. can go over to the J.A. Oh. Duncan Idaho." J. was Kansas City Arrakis. and me Paul Atredeides." replied.C..D. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. "maybe around 9:00 o’clock or so. I don’t see a problem with that. "Great." I gulped. we have this mentally retarded children’s C.m. or was there a deeper plot. sort of quizzically. I had already heard about Jenny’s Italian restaurant down by the river. is from 5:00 p. Father Dehne. and you can get your Sunday mass obligation out of the way. Father Weiss. the thought of eating good Italian food was beyond the imagination. once I knew Weiss was invited.R. I have S. C." I said. and believe me. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade.. you know. and raid the refrigertator. fraternity parties on Saturday nights and I think I’d have a conflict. when you’ve been eating dormitory food. Father Carl. there is an opening. I couldn’t figure it out on the spot. Somehow.D. the point. I thought to myself. of course. so I said .k.
" replied Carl.C. looking for deeper insights." said Father Carl.C. you know. Now. only the Daoist Force.87 a bit of a philosopher. what does this have to do with Luke Skywalker and the Void. "Well.D. I just don’t think that is done anymore. or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force. Good is pitted against Evil. For some reason.D. Tony." was all I could say. however. of course the answer is that Carl Dehne and I took the C. but what the hell did it mean? I couldn’t figure it out. Not much talk about God." I guess I can do the C.. Starwars is clearly a Daoist Universe.this.” to be a little bit 81 . I muse about Starwars a lot. for once at a complete loss for words. "O.. "Oh.K.R. "This isn’t part of the Jesuit rush program. Dallas? "The J. Now I heard that. kids Nick and Billy to see the original Starwars movie when it first came out. Father Carl. and. Well. "Oh. thing and be a Crucifer." I said. the first think I’d say about Starwars is that unlike Star Trek.. and an amateur theologian. I find the term “Jurisprude. the Jesuit Residence. . I’ve been hooked on Starwars ever since. what would that be?" I asked. being a jurisprudentialist. 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. Now." said Father Dehne. I think since Vatican II we just expect vocations to fall from the trees. "whatever could that be?" "Well.” when I was in law school.. The Force clearly being the Dao. "Rush program. at least not consciously. Evil is Ying and Good is Yang. Now. almost as if He doesn’t exist.” rather than “Jurisprudentialist. is it Father Carl?" I asked." And so I did. 87 John Snowden used the term “Jurisprude.
Luke goes through a variety of training exersizes. what’s the point? Well. the point is that in the East. So Luke descends into the bowels of the earth. but it is a different kind of “prudish. Luke lights up his light saber and engages. In the Hollow of the Tree. Yoda.” for me to use. He runs out of the Hollow and back to ordinary reality. where Kirk is found and (rescued?) by Captain Picard and Riker. But before Luke fully developes his powers he must first be trained by his Daoist Master. in the hollow of the tree must you go and say more I cannot. Finally." in substance. and Hero. Campbell’s book on Myth). within what he thought was Vader’s Helmet. "Luke. So. after death. Luke then bends over Vader’s body and takes off his mask. Luke’s. When one enters The Void. says Yoda. The Absolute. I would say that the Hollow in the Underworld represents the Daoist Void. as such does not really exist. Luke vanquishes Darth Vader. or otherwise. Thrust. riposte. Luke is shocked. Good Guy. the battle goes on. Hell. Hell is more of a state of being rather than a place. 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. what is my gloss on this situation? Well. or. own face.Into all of this steps Luke Skywalker. and then one day Yoda gives Luke an unusual instruction. and to Luke’s utter surprise. apprentice Jedi Knight. only the Void. Now. finds his. not unlike Beowulf. on his Shamanic Hero’s journey into the subconscious (see generally. 82 . one enter encounters a different world. parry. in the Underworld. In the lore of the East. as perhaps Henri Bergson might put it. 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.
As many New Age writers point out." except of course in The Void. maybe you or I will find Jesus in The Void. it’s a little more immediate. and He. Instead of finding God. for one who is in The Void. So. as such exists. "What goes around comes around. I could stop here and play it safe. if you have been a remarkably good person on earth. and finds within the self which is Luke. his enemy. Rather than the Void imposing its reality on the participant. even if we have screwed up. and then to make amends for what we have done. his nemesis. In Jungian terms. with a little luck. but for us. My gloss on Star Wars and Luke Skywalker. On the other hand. or an Angel. God doesn’t judge us. back to Luke Skywalker. we judge ourselves in The Void. If you are genuinely a horrible person as a result of your own free will. The Void immediately manifests back to the participant the particiapant’s projected Shadow. 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. who and what that person really is. Just like I tell my students in my law school classes. will help us to withdraw our projections. Now. But. like Yoda. So. then you will find Heaven in The Void. in The Void. then. I personally don’t think that Hell. So there it is. Who you are is what you get. as Fox points out in his book. "The Sermon on the Mount. it’s the other other way around. but I won’t.place. The Void immediately dishes up for the participant a reality which reflects at the core. Luke finds Darth Vader. or a Goddess or a good friend. food for 83 . after death. This is of course confirmed when Luke takes off Darth Vader’s mask. get our psyche shaped up. I do believe that The Void exists. If nothing else." Jesus transcends all Karma. that is his persona (Darth’s? Luke’s?}. not only for Himself. Where does God fit in? Well.
knowing involves at the least a set of three interrellated cognitive operations beginning with experience.’ in "Collection. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based. neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. S.thought. continuing with understanding.J.. 84 89 . and then culminating in a third cognitive 88 Bernard Lonergan. "Method in Theology" (1971). ‘Cognitional structure. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. rather. in part." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy). is the author of "Insight. Papers by Bernard Lonergan. CHAPTER VIII CRITICAL THOMISM. and.88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest. upon the Critical Realist philosophy. A Study in Human Understanding (1958). as originally developed by Jesuit Philosopher Bernard Lonergan.
90 85 .operation which is judgment.90 For a general discussion of the cognitional levels of experience. and judgment/reflection. as outlined by Lonergan. understanding. or reflection. see ‘Cognitional Structure’ in "Collection" above.
This tripartite structure of experience. Suzuki." 681. postmodernism itself. and. Fejfar. D.92 Additionally. citing. "Boomeritis. on level one we would simply find "reacality" or illusory sense experience93. a naively idealist view of the "already-out-there-now-real. 92 93 See Ken Wilber. "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. it is at level three. and Spirituality" (199x)." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough. Actuality is discussed in Erik Erikson’s psychology. body. can be found there as well. a matter of logic and policy. Anthony J. 683 (1986)." 251 (1958). is consistent with other ways of relating to the world around us. Attempting to consider these categories in terms of logical questions relating to law. For example. a matter of values.. one would ask the question. Perhaps Nirvana or Heaven can be found at level two.? Consistent with Buddism. but in my view could also be described as "Zen Realism. understanding. but in some sense perhaps Hell. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. Bernard Lonergan. at least Existential Hell. on a second level.") (p."94 Finally. on level two we would find actuality. what?.. we in fact find "reality. and on the third level. "Sex. the notion of Being valuing found in Maslow is also similar. and judgment. why.T."95 All of the foregoing can be illustrated to some degree using the 91 See. in analyzing law. and spirit (intellect). on the second level. Ken Wilber. one would ask the question. one can see that law can first be seen on one level as a matter of power and authority. rather reality was thought to be found on three levels. on the first level one would ask the question how?. 128). Ecology. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding. and on a third level. mind." 86 . 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position.
Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight. Newtonian Physics. in the first instance. 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. 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. Intellect 2. experience and understanding. You are going to a pond full of water and you pick up a tree branch on the way. The branch is six feet long and straight. in conjunction with past sense experience. suggest to you. On the other hand. taken from Lonergan’s work may be useful. "sees" that the branch is "crooked. that the branch "really" must be straight. perhaps the empiricist or the logical positivist doubts that there is a difference between. another part of your mind which is utilizing current sense experience. and chemistry. The following illustration. Because of the refraction of light." This is a perfect example of how one’s mind can in the same 87 . Mind 1.chart below: Fejfar 3. because in fact the laws of biology.
1992) 88 . Hans Georg Gadamer. it is apparent that experience by itself. "Truth and Method" (2nd Ed. Judgment or reflection as acts of reasonable knowing only occur as a result of the integration of sense experience at level one with understanding and meaning at level two. As Gadamer points out to us. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest. one need only respond as Gadamer does that it is only through "forestructures of knowing" which help to organize our sense experience that we can know anything at all. in distinguishing judgment from experience.96 knowledge cannot come to us apart from mediated meaning categories. First. how is it that we can differentiate between the level of reflection or judgment on the one hand. These occur primarily on the level of understanding. as such. is merely a collage of mixed sense impressions. Now all of this raises a third question. and the levels of understanding and experience on the other.context "experience" the data of sense on the level of experience. and at same time on the level of understanding "understand" the data differently on the level of understanding. 96 See generally.
99 Or. 359 (1925). "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance. Judge Hutcheson. see Nick Herbert. Anthony J. "Quantum Reality: Beyond the New Physics. The Theory of Judicial Decision: or How Judges Think." 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. "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education. at a distance. sublate98 them. integrate them. perhaps it doesn’t. Nick Herbert. but I can’t find the cite for it. it is possible to 97 For a discussion of intuition. or reflective knowing at level three. In any event it is clearly a Zen Realist type statement.T." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982). Fejfar.Now.99 While this may sound far fetched to the man or woman in the street. However.A.100 So perhaps as the philosopher Henri Bergson suggests. it is also my reading of the literature that an "alinear" or 89 100 .B. "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. 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. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. Fejfar.Q. Volume II). one must "become" the rock." 11 A. 357. 285 (1929) (quoting. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory. from a Critical Thomist point of view. see Anthony J. 274." 14 Cornell L. Suzuki. Perhaps. and transcend them to form a judgment of real fact or a reflection on or of deeper reality. "The Atman Project. in fact. Radin. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly. In some sense judgment and reflection reach beyond mere understanding and mere sense experience..J. Zen Buddism suggests a similar procedure when it says that to know the rock. See also. and. Ken Wilber. There at least two possible responses to this objection." citing. I’m sure that I read this "koan" type statement in a book by D. An Excursion Into Metaphysics" (1985). First." 158-161 (1999) (in the Collected Works of Ken Wilber.
rather. if we were to take the equation Force=Mass x Accelleration. and thus would clearly be more bound by quantum indeterminacy. However. However. Instead there would be a statistical spread. One might object that from a Newtonian point of view. the conventional scientist might object that we simply need a more accurate measuring device. one would be clearly embarking into measurements which are more clearly taken in the quantum range. in this sense that Bernard Lonergan states "asymetrical" message can be sent. Because of Heisenberg’s indeterminacy theory. and a timer. It is possible. it is not possible to "send" a perfectly linear message. On the contrary. and then we would get identicle results. the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like. 90 . this is perfectly consistent with "intuition.have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. and quantum indeterminacy. Thus. will produce probablistic variances. only a probabalistic one. using classical newtonian physics. and with a Force measuring device at the bottom of the ramp." since all that quantum physics seems to postulate is a probabalistic universe anyway. Now. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. that such a probabalistic universe is unverifiable. I would argue that every conventional experiment that is undertaken. if sufficiently precise measuring devices are used. then.
C. Barton." 17 Del. It is not purely The business judgement rule does not require "perfect" judgment. two. 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.. Fejfar. or even in some cases overrule logical "rational" results and reason to judgments of some type. then. Given two seemingly logical explanations of the data. however. B. Ideas are analogized and distinguished. A Question of Horizon. At level one is a logic of movement or operation. remain. Dennis J. Stephen A. A second way of distinguishing levels two and three is simply through the use of logic. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. It is here that language and interpreted data are collated. Panacea or Plague. On level two there is a logic of analysis. "Corporate Voluntarism. A. For a discussion of critical realism in the context of management decision making. 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. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. In doing so we can make both judgments of fact and judgments of value. compared. further questions.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. Nancy E. 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. and contrasted. Radin. and three. Symbolic logic reigns: If A. My argument is that a different type of "logic" operates at levels one. B.f. Anthony J. or solutions to the problem. see. 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. Law Journal 859 91 101 . At level two. Block. but rather only reasonable judgment.
" A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. "The and Ethics of Lawyering 156 (1999). causation. Geoffrey C. and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. one can distinguish levels one. Cramton. breach. Roger C. On level one on the level of operative logic. 92 . On level two. the probability judgment "kicks over" into a de facto absolute judgment of fact. in the context of decision making. logically. two. as a practical matter. we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. it is simply the case that in this instance we could have done better. the sign and the language it contains simply commands us not to walk. applying hermeneutics. Susan P." Put another way. when the probability level of a judgment goes high enough in one’s mind. Koniak. even though it really is not. with the elements of the cause of action for legal malpractice being: duty.syllogistically logical in nature. Hazard. interpretation. let us consider a "Don’t Walk" sign in a crosswalk. it is not true that we are incapable of making better probabistic judgments or assessments. 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.. Additionally. Also at level two we must assess the underlying policy of the rule "Don’t Walk. As Lonergan puts it. somehow sense data. Now. the standard of care is one of reasonableness. if it turns out that our provisional judgment based on probability is not correct. and damages. So. or negligence. as Lonergan points out. for example. Jr. Instead. three.
Anthony J.. Critical Thomism.f. The Critical Realist position is that level three judgment or reason in this context intends value. Thus. 93 104 ."). whether or not a "lamp" is a "reified" object and thus not "really real.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article.assumption that there are reasons or policies underlying rules in general. so does freedom. Now. the value or values. Level three reason or judgment intends value. at level two we ask. and. that from a purely logical point of view." and "reflection. C. underlying the policy. and in the final measure determining which outcome is the most "logical" at level two. suggests three levels of different logic. we ask Why? The logical positivist will undoubtedly ask. interpreting language.104 While previously I spent an entire article 103 Bernard Lonergan. Fejfar. Here. is it not the case that "judgment." for example are purely "reified" terms which cannot be taken seriously. 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. "Method in Theology" 34 (1971) ("Value is a transcendental" notion). The above then is consistent. "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. at level one we ask How?. What?. and a level three.103 Thus while level two intelligence intends an analysis of policy as such. at this point we again have to question whether there is any difference between level two operations and level three operations. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. and in this context. with my earlier thesis. All these values would be taken into account in assessing policy. so does protection of human life and of human property. perhaps.
As a matter of both epistemology and cognitive psychology logical positivism is inadequate. 94 . logical positivism can offer us much in terms of level two analysis.” The idea of levels of growth or maturation or 105 See. but in the end it is an incomplete philosophy compared to Critical Thomism.addressing the foregoing type of objection. id. CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. let alone “doing” Critical Thomism as a philosophy is the “Level Thing." In the final analysis.105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid.
On the Desktop there is the Icon “My Documents. Now this is very hard to conceptualize for a lot of people but perhaps this example might help. “Fishing with Dad. is not only the important concept of levels of thinking or concsciousness. the lower levels are not lost. in his ethical theory.” etc. Kohlberg. Imagine that you have a computer with a desktop. but also includes and integrates them.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg. What you find in both Piaget and Kohlberg. So. Imagine that one folder is the Folder entitled “My Photos. really only goes up to level 6.” another. itself. which. and later in Ken Wilber’s work. rather they are included in a new and higher integration.” 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. of course.” Sublation means that at every level the higher level transcends the lower level or levels. themselves as Icons.” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos.” You then double click on the Folder Icon “My Photos. So. One being “On the Pond. adds something new. the whole thing sort of looks like this: Level 3 Desk Icon: Includes/Contains: My Documents Includes/Contains: My Photos Includes/Contains: 95 Level 2 Sub Folders: Includes/Contains: . but also the notion of “sublation.
e. Now. you are about half way there. can access a remote digital camera which takes a picture.. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. deepening the colors. at the “Folder” level. there it is. “understand” the picture by cropping the edges. and a task menu pops up with different operations. thus creating the gestalt Desk “Pond Icon” at level three. or File Icon. at level two. You then upload the level two “processed” picture to level three. let us imagine that a new Desk Icon has been created. you immediately upload the Pond picture to level two for saving to memory and processing. or alternatively. At each level let’s say that you can right click on the Desk Icon. perhaps your computer is programmed so that you can process. changing the contrast. This is the level of sense experience. i. using a photo editing program. A little example of how you might organize your mind as a Critical 96 . but which also adds a new “intuitive” operation which gives more depth of field to the picture. ala Bergson. if you understand what I am trying to get at above. Folder Icon.Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So. Of course if we were dealing with a “picture” which involved all five senses at level one. On this level you take a picture of a Pond and then either save it to memory at level one. and then upload it to level two for processing. But the other trick is this.” (do this in your imagination if it helps) at level one. which is a gestalt of the first two operations (levels one and two). So. So. let’s say your “mind. on the subfile/picture level. At level three at the Desk Icon Level. perhaps not unlike the “image schemata” discussed by Lakoff.
Thomist. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired. 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. Use different metaphors and examples. In this article.” help to structure and partially constitute our individual “way of being.” and collectively. Good luck. Tom has spent a lot of time thinking about Sir Thomas More. such archetypes function as “forestructures of 97 . Try it all in your imagination.” As Hans Georg Gadamer might put it.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering. Experiment. our communal “way of being. Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious. however. I’d like to take a Chancellor of England under King Henry the VIII.” It is in our own unconscious that “deep structuring” symbols and metaphors. what he calls “archetypes.
at least part of the time. in doing this. your hero? Well. that’s the ticket for us.” 98 . Now why these two? Well. somehow make it through the next day. but still failing. and then later on. and then. however. Now. and not Thomas More. Perfect imperfection. but I think this is it.. No. Now. the Knights of Columbus. the Readers. when you think of realpolotik in the Catholic Church–people in the pews. people who say the Rosary. in the end.. They want the kind theology that helps to get and keep a good job.m.” they think of Saint Thomas Aquinas and the Summa Theologica. So for our heros we must have heros who. in the morning. I would like to suggest another type of Thomism. they might not even know it consciously. even idolized (in a positive sense). what do you look for as your role model. Shaffer. to change baby diapers..m. the Ushers. most of us spend a good deal of our time trying very hard to do the right thing. we 106 See. People might not admit this. Now. “On Being a Christian and a Lawyer. loved and adored. there are two choices: Simon Peter or Doubting Thomas.knowing” which help us to think and to know. Critical Thomism holds of Saint Thomas the Apostle. that is “Doubting Thomas. when people typically think of the idea of “Thomism. We’re not looking for the type of perfection that gets it right every time–that’s Jesus–that’s for other people–the ones in religious life. must some how have failed–otherwise we’re damned.g. people who belong to the Alter Society. in the morning and still stay up with him. you come to understand that one of the primary criterion for their theology is durability. to help a baby with the colic get to sleep at 2:00 a.. to help clean up your gradeschool kid’s puke at 4:00 a. Thomas L.” not Thomas Aquinas. e. for many of us.
I don’t mean they were literally apostates. or a Divinely Inspired. we have Simon Peter. believes that reality and law must be based upon authority. rather. feet. and legal 99 . What we want are the two “Apostate Apostles. reasoning. later on. Now. or experiencing. before he (Thomas) would believe. The Apostle Thomas. Simon Peter is the Archetypal Imperfect Authority. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. Simon Peter denies Jesus three times before the cock crows. This is Petrine Lawyering.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. only metaphorically. you Thomas have believed because you have seen. experienced. shows up. it means that we have two foundational apostolic role models for Lawyering. takes a stab a Lawyering. and for the Legal System. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. Jesus. Instead of condemning Thomas. is the basis for law. and yet he still is the Rock upon which Jesus builds his church. Now. and insists that Thomas feel the nail holes. Authority. of course. First. It takes the adept Lawyer Paul. insisting that the early Christians observe both Kosher as well as adult circumcision. on the other hand. rule based in the second instance. who. feeling. and side. Whether one reads the Bible as literature. the legal system. felt. Jesus simply says. and who stayed the course and stayed in the Church. as you may recall. Well. blessed are those who believe without seeing. as a Critical Thomist. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law. Simon Peter. essentially. is the one who after the resurrection. whom he relied on. human in the first instance. refuses to believe that Jesus has resurrected.” who Jesus obviously loved. what does this mean for we Lawyers.
What is right is what the authority says is right. For them the Pope is it. On average the Popes seem to do pretty well. guided of course by the Holy Spirit.” For the Critical Thomist. or in Platonic terms. it really isn’t such a bad bet. Simon Peter. instead it is Faith that Faith and Reason are totally. For Critical Thomists. sooner or later we will sort 100 . Although this may take a little time. concrete people. Faith and Reason are assumed to be. and perhaps typically are. and of Papal Authority. that’s the ticket.practice. they follow Jesus. and in doing so on Papal Authority. as a given. and perhaps. This is not apostacy as some Petrines might think. Critical Thomists have Faith–it’s just not Faith in Authority.. Reason Rules. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. the Apostle Paul. all of whom. Just let the ancient wheels of the Church roll along themselves. Divine Reason. Now. The Incarnate Word. taken as true. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. as the Logos. The Divine Word. This was Jesus’ promise to us in the Gospel of John. totally consistent. on the other hand. There is a certain school of thought that Rome rules best when it does nothing at all. but because he’s. at least archetypally are seen as ruling on the basis of authority. completely and absolutely and ultimately consistent. The Critical Thomists. Judicial Authoritarianism. well. “Creative Form. conventional people. God is “right” not because He’s God. rather. instead of following the Pope. this is simply a temporary glitch. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. When Faith and Reason “appear” to be at odds with one another. right. and presumably God the Father. are remarkable suspicious of both the Petrine outlook. bet on Simon Peter. And you know. lawyers or no.
Now. One suspects that the Petrines start with the person of authority. how does “Doubting Thomas” fit into all of this? Well. If we are to be judicially damned or canonized it is because we have thought things through. 101 . it is my argument that they Lawyer best when they start with reason. Doubting Thomas.things out and we will find a reason based way of reconciling any apparent contradiction. going to understanding. A totally different way of thinking. by starting with experience. then go to the authoritative statement or rule. Although Lawyers certainly use authority. and thus “know” reality. not because we have unthinkingly and unreflectively followed authority. Saint Thomas the Apostle is the Patron Saint of Critical Thomism. and then deductively apply the rule to their experience. and then finishing )(provisionally) with judgment and reflection. As Lonergan tells us. and then finally to reflection or judgment. and reason inductively starting with experience. Our Patron Saint is the “Apostate” Apostle. This is the intellectual approach to living. from my point of view. going to understanding. and inductively. we think critically.
black silk shirt. I’m going to tell you the story of The Hangman. Now. the 102 . black cotton cloak. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. I sort of heard it. but I guess its fair to say that I also saw it. the dark side radio hero. in person. involves a story that I first heard in junior high. Perhaps he reminds you of The Shadow. black jeans. Black boots.C. Of course I don’t remember the original story as such. but I do think I’ve got the general gist of it. But. the details. and I think it had the appropriate effect. I mean.CHAPTER X THE HANGMAN The Hangman. the first thing to know about The Hangman is that He always wears black. just to make it fun. for me The Hangman. Now. religion class. A kid’s word game? For most of us perhaps. But not for me. No.D. I told a story something like this to one of my law school classes last year. black hat. maybe 8th or 9th grade. black gloves.
with shells filled with double odd buckshot. down Main street. and of course a fair number of houses.two are not the same. unless of course you had to cross a street. looked at the buildings of the town. The sweep boy saw him first. was a prosperous little town called Purgatory. except his skin. colt navys. ten gauge. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. The man in black just waited. Soon the Marshall came out with a double barrel shotgun. hacked up some flem. He got a third of the way into town. 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. a gunsmith. in Nebraska Territory–the Kansas part. Purgatory was a nice town. The people went to church on Sunday. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. and a bowie knife with a jet black handle on his belt. of course. He rode into town slowly with the sun at his back. a saloon. here goes. Back in the Old West. His skin was a very pale white. he had on a double rig of six guns. a hotel. and spat down on the ground. He was armed. and the boy ran to tell the town Marshall that a stranger was in town. Hello stranger. a livery stable. a hardware store. what can I do for you. until any of the townsfolk noticed him. creating black shadow in front of him. typical. black as pitch. He stopped and looked. "Howdy stranger. Everything was normal. The town had a dry goods store. cat got your tongue?" said the Marshall. the man in black. His bear gun. The man in black squinted his eyes even further. His eyes were like obsidian orbs." said the Marshall. a butcher shop. Everything was black about him. and the townsfolk that were 103 . "I said. So. by the looks of them. a lumber yard. Then he.
. But the Hangman just stared even harder at the Marshall. "I think it means whatever you want it to mean Marshall. especially your town. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. "Listen all of you. The Marshall couldn’t take it. supple and strong. listening to piano music." said the Hangman. hacked some flem. His eyes squinted. the man in black said. He glanced to the left." "Business.beginning to congregate. and right now it means that I am going to the saloon and get a drink. I hang people. mostly for committing crimes. cowboys drinking beer. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. and threw two bits on the table and turned and scanned the room. He slammed it down. "What’s that supposed to mean?"asked the Marshall. The Hangman rode down Main street past the Marshall a half a block. he just couldn’t keep eye contact and instead looked down at the dusty street. I solve all your problems. and tied the reins to the wooden bar in front of him. why don’t you just mosey out of town before you get hurt. "Oh. playing poker." asked the Marshall. Then the Hangmen waited a moment and looked to see if anyone else was 104 . The Hangman stretched. and I do that by hanging people. The Hangman walked up to the Bar and ordered a whiskey. and strode into the saloon.. and behind him to see if the bartender had his shotgun out. what kind of business. got off his jet black horse." The Hangman’s eyes squinted even further. Then. Then he said. I don’t like black. I’m The Hangman." said the Hangman. The bartender didn’t. and I don’t like you. but it all stopped when The Hangman stepped inside. I thought you might have some business for me. The saloon was crowded. like a black cougar. Finally. and I don’t like hangmen. I help make the world a better place." A drunk cowboy stood up and said. "Mr. "I’m The Hangman.
tested. calmly aimed. Then The Hangman walked to the Livery Stable. what time is it?" "I don’t know mister. The Hangman didn’t even move. He drank the whiskey and this time simply smiled at the Bartender and walked out." said the Hangman. "I know you don’t understand this. A wooden gallows had been built. The Hangman walked from the Hotel where he spent the night to the Lumber yard. "No sir. The Stable Boy was cleaning up horse manure from the stable floor. "Son." said the Hangman. but then it was done. He just laughed. "Anybody else care for a shot. you have cognitive dementia. I guess I feel like staying. "Well son. without paying. He had some lumber delivered to the end of town." said the Boy.? asked the Hangman. Son. "Yes sir. and place a bullet through the forehead of the cowboy. "Bartender. I can’t tell time. you had better come with me." said The Hangman. The next morning at dawn. son. Suddenly the cowboy went for his six gun.backing the cowboy’s play. "Hey Boy. He then went to the Hardware store and bought some tools and started to work It took him a week. the Hangman’s Switch. and to protect the town from and further 105 . a nice prosperous town like this should make someone like me feel welcome. but this is for your own good." "What is sir?" asked the Boy. you have cognitive dementia. The cowboy stared into infinity for a second then fell on the floor and died. another whiskey. The Hangman took the Boy down the street to the gallows." answered the Boy. No one said a word. "Can you read?" asked The Hangman. "Well. No one was. "Well. So." said the Hangman." said The Hangman. The shot went wide and broke the mirror behind the Bar. and so I am going to have to hang you until dead in order to put you out of your misery. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy." said the Boy.
A few people cried." said the Marshall. His mind blanked out with panic." "I am here to help you clean up this town. and the Boy’s neck was snapped. "and this is a good town. We need to put him out of his misery." said The Hangman." said the Hangman. "You know. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk. "But. killing him instantly. Unless anyone objects. "Marshall." said the Hangman." he continued. Well. The townsfolk all say that you are dead wood. "Anyone here object?" 106 . And so the process repeated itself. He didn’t know what to do. He left and the crowd went home." A few people laughed. thank you for your help. The trap swung out from under the Boy’s feet. as he pulled the Marshall’s six gun out of his holster. The Boy froze with fear. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall. He deserves to die. Luckily for the Boy the rope was placed just right." said the Hangman. The Hangman said. He is dead weight and dead wood. The next day the Hangman went up to the Marshall. I’m going to hang him now." said the Hangman. you just can’t get the job done anymore.. this boy is a wastrel and a blight on humanity. Although twenty men were there who were armed with six guns. I guess this confirms it. "Yes.." "You are to be commended for helping to clean up this white trash. Marshall you know that you simply cannot be a dead weight here anymore. that’s a hanging offense in these parts. no one drew their gun. and then pulled the lever. He couldn’t even stop me from coming into town. Soon a crowd had gathered. the Marshall just can’t get the job done anymore." "You won’t be needing this anymore Marshall.leeching of yours off the common good. no one said anything. The Hangman tied the Boy’s hands. put the noose around the Boy’s neck. "You are good people. "This boy has cognitive dementia. He fell through. you seem a little overweight to me." said the Hangman.
you don’t need one. "What will the town do without a town Marshall." seeing that the Boy was going to reply. The townsfolk applauded. I answered it. the Boy must die. The Boy stood their shivering. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here. and down went the Marshall. he is the only authority. "Now Boy. you asked a question. I need some help up here. "If you follow me." And then the Hangman pulled the trap." he continued. here. black as night." said the Hangman." said the Hangman." said the Hangman." he promised." said the Hangman." "This Boy is guilty of gross deriliction of duty and insubordination. when the Hangman is here everybody figures it out. you will hang seperately.continued The Hangman. I will give you a well ordered society. Once The Hangman come to town. he called out the 107 . "You have questioned my authority. isn’t that true?" "Well mister. I was just testing you and the townfolks. as you very well know. Any objections?" This time. The next day the circuit judge rode into town. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together. what else was I supposed to do?" "Son don’t be smart with me. in the boy’s mouth so that the Boy couldn’t talk any further." said the Hangman." said the Hangman. Although unarmed. dead as a door nail. a Boy asked. "In order maintain order and authority in this town. you must know that. he didn’t want to go near The Hangman. The Boy started crying. quickly stuck his handkerchief. To everyone’s surprise. The Hangman cut the Marshall down and retied to hangman’s knot. "The Hangman. But the crowd pushed him forward and up the steps. "Now Boy." said the Hangman." "Well Boy. and you know that is wrong. "Well. no one said anything. I am a dementer from Hell set loose on earth to test you. everybody does the right thing.
These people you have hung have violated no law and were given no trial. tied her hands. you are the last one. And so they did. 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. to keep you enslaved. "Well. "those who were hung were trash. you can’t get me. so the story goes. All the rest were dead. The Mayor looked over. "We are making progress. "he is the cause of all of your problems.Hangman into the street. his demenour. this is my town. the rule of law is a myth designed to deceive you. and then down she went. The Mayor balked." A crowd had gathered. The next day the Hangman called out the Mayor onto the street." The Mayor’s wife fainted when she was called out. each day another hanging. your honor. giving himself a shave. and approved." said the Hangman to the assembled crowd. And so it went." "Grab this vile judge and take him to the gallows. It took awhile of course. Only The Hangman has real power. "The Hangman doesn’t need a trial. From the Hotel. but finally there was only one person left in town other than The Hangman. Only The Hangman gets things done. its your turn. set the noose. cold as night." said the Hangman." said the Judge." asked the Hangman. "I pass it on to my wife. "Not me. Each day a new accusation. the good people of this town knew it. Only The Hangman can save you." said the Hangman. "See this judge." 108 ." said the Mayor." responded the Hangman." replied The Hangman. The Hangman came out. "What is it you want. that was the town Mayor who had "passed it on" to his wife. And down went the judge. I run things. A couple of months. hanged by The Hangman. "You can’t just hang people. take here instead. The Hangman crossed the street and went into the Barber shop." said the Hangman." "What then am I to do. Inside was the Mayor. "Mayor.
" "Did you really think that would save you. and slowly rode out of town looking for the next town.said the Hangman." asked The Hangman. put me back in Hell under the Rules of the Game." said the Hangman." said the Hangman. or you hang separately." said the Mayor. Is the next town yours? 109 . A job well done." said the Mayor. "Yes you did. He got his gear." "All of you could have hung together as a group and opposed me. the hands tied. letting me win. "But there won’t be anyone left. "Me." said the Hangman. The noose was fixed. let’s get this over with." said the Mayor. And so up the steps of the gallows they went. "Exactly. "I passed it on. "But I didn’t really understand what you said. The Hangman smiled a smile of satisfaction. and down the Mayor went." "And now. then you can rest assured that there is a well ordered town here in Purgatory." but instead you all chose to hang separately. "Either you hang together. Remember I told you early on in the process. saddled his horse. I’m safe. "and if you didn’t you should have asked.
.. No. quite different. Of course I don’t remember the original story as such. in person. The Hangman. the first thing to know about The Hangman is that 110 . for me The Hangman. But. A kid’s word game? For most of us perhaps. and I think it had the appropriate effect. Now.D. I mean. the details. maybe 8th or 9th grade. But not for me. but I guess its fair to say that I also saw it. just to make it fun. I’m going to tell you the story of The Hangman. at least at the beginning. in the end. I sort of heard it.CHAPTER XI THE BARTENDER Well. Now.. this is another story dealing withe The Hangman. religion class. involves a story that I first heard in junior high. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. . but I do think I’ve got the general gist of it. pretty close to the last one. I told a story something like this to one of my law school classes last year.C.
His eyes were like obsidian orbs. the two are not the same. in Nebraska Territory–the Kansas part. His bear gun. "I said. black jeans. black silk shirt. The man 111 . and of course a fair number of houses. a hotel. what can I do for you. "Howdy stranger. here goes. a butcher shop. He rode into town slowly with the sun at his back. Soon the Marshall came out with a double barrel shotgun. The sweep boy saw him first. by the looks of them. typical. He stopped and looked. Perhaps he reminds you of The Shadow. with shells filled with double odd buckshot. Everything was black about him. he had on a double rig of six guns. cat got your tongue?" said the Marshall. black cotton cloak. down Main street. of course. So. the dark side radio hero. His skin was a very pale white. He was armed. a hardware store.He always wears black. The man in black just waited. Black boots." said the Marshall. until any of the townsfolk noticed him. black hat. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. The town had a dry goods store. a lumber yard. black as pitch. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. and a bowie knife with a jet black handle on his belt. except his skin. The people went to church on Sunday. a saloon. Purgatory was a nice town. He got a third of the way into town. black gloves. a gunsmith. Back in the Old West. Hello stranger. 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. a livery stable. creating black shadow in front of him. was a prosperous little town called Purgatory. ten gauge. unless of course you had to cross a street. and the boy ran to tell the town Marshall that a stranger was in town. colt navys. Everything was normal. But.
. listening to piano music. hacked up some flem. "Listen all of you." A drunk cowboy stood up and said. supple and strong." asked the Marshall. he just couldn’t keep eye contact and instead looked down at the dusty street. and the townsfolk that were beginning to congregate. "I think it means whatever you want it to mean Marshall. and tied the reins to the wooden bar in front of him. Finally. hacked some flem. The saloon was crowded. but it all stopped when The Hangman stepped inside. But the Hangman just stared even harder at the Marshall. The Marshall couldn’t take it. I help make the world a better place. I solve all your problems. especially your town. I thought you might have some business for me. the man in black. why don’t you just mosey out of town before you get hurt. His eyes squinted. got off his jet black horse.in black squinted his eyes even further. and threw two bits on the table and turned and scanned the room." said the Hangman. "Mr." said the Hangman. I don’t like black. "What’s that supposed to mean." asked the Marshall. The Hangman rode down Main street past the Marshall a half a block. "I’m The Hangman. mostly for committing crimes. Then. I’m The Hangman. what kind of business. and I don’t like hangmen. cowboys drinking beer. and spat again–this time the spit landing only a foot away from the Marshall’s right boot.. and I do that by hanging people. The Hangman walked up to the Bar and ordered a whiskey. and I don’t like you. The Hanman stretched. like a black cougar. playing poker. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. "Oh. looked at the buildings of the town. Then he. and spat down on the ground. and right now it means that I am going to the saloon and get a drink. and strode into the saloon. the man in black said. Then he said. He slammed it down." "Business. I hang people." The Hangman’s eyes squinted even 112 .
I guess I feel like staying.A." said The Marshall to The Barber. you know the Lore." And so the Marshall dragged The Hangman’s body away. "Well. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun." said the Hangman. "See the Shingle up behind me which says. The bartender didn’t. He glanced to the left. a Peacemaker always wins over a Navy. and behind him to see if the bartender had his shotgun out. some laughed but no one cried. son. I’m the District Attorney. "that’s how they hex them. "The D. I’ve never lost a case and I’ve never lost a gunfight. "Well. knocking him out. and on top of that. Then. "Well. that’s the Rule. is Coif. I’m charging this hombre with attemped murder. The Hangman should have known better." "It’s really not fair.further. do you Hangman?" said the Bartender. lock him up. I thought. "I don’t think you really want to hassle that cowboy. Louis. suddenly." said The Bartender. "Well." replied the Bartender. "Why?" asked The Barber. its totally fair since only a Thomist can even carry a Peacemaker. "Well. a nice prosperous town like this should make someone like me feel welcome. and the Hangman was convicted of attempted murder. "Well. that went pretty well. they never go down. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play. Next day was the trial. some folks even call me "The Devil’s Advocate. "fast as lightning. "Attorney at Law?" As The Hangman turned and looked up to see the shingle." replied the Bartender." "Marshall. When The Hangman fell through the trap the next day. reverse handled his Peacemaker and hit The Hangman over the head. In "St. as he walked 113 . it won’t be exactly fair if you use that Peacemaker against my Colt Navy." replied The Marshall. "I suppose the ciruit judge will be here tomarrow.A. would it?" asked the Hangman. "Wher’d you get that Peacemaker?" asked the Hangman." said The Hangman again." said The D." The D.A. No one was.
And so. one is often tempted to look back at the Code of Hammurabi.. . CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law. heading for the Saloon to get a drink. or. that is. at least none other than the prohibition against murder. I would like to offer a different slant on things. I would like to suggest that 114 . our critical friends may suggest that there really is no objective basis for law. Instead. however. In this essay. not that I necessarily disagree with all that has been said above. that prohibition itself would be subject to a great deal of interpretation. and then of course..away. The sociologists seem to agree on one thing however. that murder is the only cross cultural legal prohibition. perhaps in terms of contemporary natural law or socio-biology.
the notion of property grounded in metaphysics as such. Although it is difficult to put colloquially then. but that reality is based primarily upon meaning. property. that is. regardless of whether it is real estate.” If we look at Blackstone. is the basis for all rights. A Critical Thomist would say that property is real.” In this sense. property law. in the first instance. Although it may seem a bit different from the Restatement approach. “property” hardly exists at all. at least in the concrete sense.” including the right of possession.” with each “stick” representing some “right. 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. in what one suspects is a rather traditional. If one considers the three metaphysical categories of being. I suppose. Finally. a fixture. would be seen as that which is judged to be “property” on the basis of experience. suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. and reflection and judgment. Blackstone took an avaricious view of property. or tangible or intangible personal property. he defines property in “concrete” terms simply as a “bundle of sticks. I a rather different sense. on the other hand. there is the Critical Thomist understanding of property of ala critical stage theory. that we have get some clarity about what we mean by “property. defines “property” as “A legal relationship between persons with respect to some thing. along these lines. Now. The Restatement Second of Property. but perhaps mistakenly seen in an avant garde sense.” Well. but also the basis for human dignity.property. understanding. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. form. one can see that property can be 115 . tangible or intangible.” that is it is intangible. and substance.
If one were to think of property in terms of the metaphysical concept of being. as represented by the clod of earth represented the substance of the property. or simply represent contractul interests. 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. there is property which is property in form only. of course. as such. The concept of substance. in favor of spiritual development. seemingly bordering on the occult. Metaphysically.seen in at least these three different ways. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. one assumes. seisin. typically seen as real estate. if not insoluable question of whether a mere contract. Idealists. dated in the first instance from the time of Anaximander in ancient Greece. Being philosophers and psychologists tend to discount the acquisition of material wealth. amount to property. or even money. Finally. 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. Here property is hardly distinguishable from that of a mere formal contractual right. it they approve of property at all. 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. This ceremony. tend to see and experience it in terms of a “being” mode. The law professor encounters the difficult. In medeival law in England. as such. I suspect that it would be confined to personal property. where does this put us in terms of our first issue involving property as the 116 . Well. one suspects.
and in this sense we are responsible not only to ourselves.foundation for law in general. that is. and the Good as a Critical Thomist Ideal. such a homesteading in the old west in America. As one comes into possession of personal or real property in a legal or customary way. but to the Common Good. there is criminal law which is an extension of tort law. or in a more sophisticated economy. or the law of the Angels. Last but not least there is Constitutional Law. the Truly Worthwhile. perhaps can be leased for a limited period in a human way for purposes of appropriate employment. one starts with one’s possessory interest in oneself. 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. has a possessory interest in our own bodies. once again. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. holds title to our bodies.” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction. or the Dao have in terms of our personhood are governed by Divine Law. or perhaps with a little luck. or the cosmos. but we can never really sell them. God. for money. the law of the gods. The rights that God. we can mortgage our souls. or the cosmos. So. or the Dao. which. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 . requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. under natural law. One can certainly never be enslaved. in relation to one’s rights under a contract. or the law of the Logos. utilizing primarily the principle of proportionality. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature. On this line of thought. that is Divine Reason. which. Finally. My position is that each of us.
must be applied in the context of equitable rules which favor relationship. While a fuller discussion of this must be saved for a later Chapter. going beyond Locke. including but not limited to Freedom of Religion. even if only taken into account equitably in concrete circumstances. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. and compassion. but also for the protection of our individual rights flowing from our possessory rights in our personhood. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. Liberty and the pursuit of Happiness. context. Freedom of Association. Rather than abolishing property interests as some marxists seem to wish to do. 118 . involving Life. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. it is apparent that law at every level from the Constitution on down. So. to contribute to the Common Good in the equitable requirement of serving those in need. as well as those found in the Declaration of Independence. at least in the abstract.by reciprocal obligations necessary for the proper functioning of the body politic. applying equitable rules. in my judgment it is better to see property as the foundation for all our rights. Freedom of Contract. Germain put it some time ago. and of course. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. one has the responsibility.
but then I found the concept in Aristotle. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard.” I used to. So. in order to rescue the child. 119 . while technically as a matter of law you might be prohibited from going onto that person’s property to rescue the child. Equity would allow you to make an Equitable Exception from the general rule of no tresspassing. if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need.CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play. for example. “A Man for All Seasons. that you could not go onto another person’s property for any reason.
while equity. would not seem to work. did the right thing from and equitable point of view. of course. from each according to his ability. required everyone to give everything away and give the money to the “poor” or the “community. The problem.” I can imagine my mom. Christian “communism. cited by Marx. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More. however. Now. and so the German socialists. from my point of view. basically abrogating the Rule of Law. poor working conditions. and poor living conditions at home. at least the ability to work ordinary jobs for low pay. In Communist societies I think that at least ideally. Law being based upon proportional reasoning. is that the politburo and the commissars tend to think that they are the one’s with all of the needs. one might argue that people could rather arbitrarily create equitable exceptions all over the place. basically saying this. or. Obviously if the Christian community runs out of rich recruits. unfortunately. societies are always faced with the problem of either favoring law over equity.” not even thinking about ability. in this case the child rescuer. at home. that once one take the Ethical Matrix into account. or any mom. one might suspect that 120 . even for luxury goods. So. while the proloteriat are the one’s with all the abilitities. The “needs” thing tends to be a one way street. in essence is based upon arational (not irrational) intuition.” which at least for awhile seems to have existed in the early church. then. stated the ideal “To each according to his need.” Here the equitable slogan must have been “to each according to his need. equity over law.Now. Equity is placed above law. of course. It is my position. But even in More’s case. since the whole thing is sort of a pyramid scheme. problems would result. placing Equity above law. in reading human history.
as is pointed out in one of my land use planning cases that I use in class. the Law must be a Dao of law and equity. reasonably.” 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. 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. The most significant equitable rule is “equitable estoppel. “temper and mitigate the rigor of the law.” The problem is. This is the Aristotelian approach. They don’t want equity at all. to one’s detriment. In eastern terms. that after awhile the law types get very pissed off even at this. in the United States we have a fair number of Equitable Maxims or Rules which help to. and law has its Equity. or. Now the solution I have come up with. The other obvious option is to favor law over equity. but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge. usually for the “little guy” or the “old lady.” That is. as Christopher St. Who you are is what you own. 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. So in our country. Equity only intervenes in the extraordinary case. and seem unable to distinguish the criminal playing field from the civil playing field. then the former can be equitably estopped from changing his or her original position. as well as the King himself felt threatened not only by Thomas More’s popularity.the reason for his (More’s) execution by King Henry VIII was that the law courts. “Equity has its law. however. This doctrine is similar to “promisory 121 .” If one takes a position and another relies on that position. Germain puts it. the Second Coming.
equity favors the little guy. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. at least on the east coast of the United States. 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.” which sits wholly apart from the Common Pleas or State District Court. then the original promise can be enforced with or without consideration. the equity lawyer need only plead the case in equity. and then. This is an American thing. one of the problems with pleading a case partly in equity and partly at law is that often. there is a completely different court. of course. however. although perhaps not often stated equitable rule. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity. Waiver and laches are also important equitable rules. similar to a statute of limitations. Another well know. After seeing this situation. If one “sits on one’s rights” too long then one can be deemed to have waived them. such as court ordered injunctive relief.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. Under the doctrine of laches. or. 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. find them no longer enforceable. and before that an 122 . one can be barred from asserting them. With respect to some equitable remedies. The solution. This is sometimes true of other equitable remedies as well. that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. is that all other things being equal. even more interestingly. Now. plead all of one’s legal causes of action at law in equity.
and all of England suffering under unjust taxes levied by the Evil King John. and typically are. 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. where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. 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. presumably at the Battle of Runnymeade in 1215. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. Equity seeks to find exceptions to otherwise ridiculous rules de jure. So. and orphans. this is what Equity is like. Equity finds certain contracts unconscionable if a part to the contract in whole or in part meets the factor test of lack of sophistication. the tale of Robin Hood is told. Equity favors the little guy. and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. In England of course. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. rational and autonomous 123 .English thing. or at least ridiculous rules de facto in the particular context. At the same time. is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. returning from the Crusades. Robin forms his band of yoemen in Sherwood Forest who rob from the rich and give to the poor who have been ripped off by unjust high taxes. In America you get it from the Old Westerns. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. widows. where Sir Robin of Locksley. or lack of bargaining power. lack of knowledge.
as an amatuer scripture scholar. Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. Later. When we see Equity and law this way. including Catholic Christians. of course killing many in the opposing armies. surpisingly enough. One of those commandments is commonly interpreted as “Thou shalt not kill. we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples. and. the Roman Armies. with law and equity at the same level. we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai.” Yet. also. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire. So. whether one studies it as literature or as Divinely Inspired. were killing others. after the time of Emperor Constantine. obviously enough. we see the value of the structure which law provides.actors in the marketplace. what do we make of this? My gloss. CHAPTER XIV THOU SHALT NOT MURDER In the Bible. and as a legal 124 . the flexibility and compassion that equity provides. but. in many instances the common sense household rules that our parents applied to us when we were kids.
Depressive suicidal impulses are considered signs of illness physical or mental. Even beyond this. It is easy to see that if one cannot kill in self defense. again? Divine Law is simply starting with the natural law prohibition against murder. What is Divine Law. this gives us property law. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. we eat grain that has been harvested before the field has gone fallow. By reason of natural law we have a survival instinct. then the next step is that one cannot defend oneself or one’s family physically at all. if we were in a science fiction world. not unlike Enlightened rational self interest. and finally Constitutional Law.” Now. We are not only to live. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. that is. As stated before in the Chapter on Property. and then applying the Ethical Matrix to every situation and rule concretely and abstractly. we live in a world where we as human beings are required to kill to survive. we eat meat from animals. Dovetailing on that earlier discussion. contract law. we “kill” all the time. criminal law. perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence. let alone achieve material or any other type of success. “Thou shalt not kill. ends up being de fact satanic. but to succeed. in my view. tort law. is that what is really meant in the Commandment is “Thou shalt not commit murder. Divine Law.ethicist. which includes the injunction not to commit murder requires that we not commit murder in order to survive. and our minds were somehow subject to psychic invasion. 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. we are programmed to live.” The other interpretation. For better or worse. utilizing Rational Self Interest. Besides.
and together.” “Don’t Tread on Me. has no right of self defence.” means only that it is best to avoid a stupid or idiotic fight if we can. Non-violence implies that each of us. respectively. totally in favor of nonviolence. Non-violence is satanic. but to fight to the death for our right of self defence if we cannot. with the members on the surface often seeming to be very religious. which of course we do both under natural law and Divine Law.correllative possessory interest in our own bodies. “Give me Liberty or Give Me Death. “Turning the Other Cheek. As a last aside on this topic. If we are to have a just society we cannot teach our children non-violence. but to the point of seemingly not eating at all.” 126 . 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. even to the point of not only being vegetarians. One hears the rumors and reads the novels about satanic cults.
Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). Sandy’s on Friday afternoon was a Greek hangout on football weekends. they did not serve Gyros. but only drunk by the glass. in season. instead it was Fraternity and Sorority city. Chrisman and John Vitek and I would always go. making sure that we hit Sandy’s Bar on Friday afternoon’s. worked out at the East Campus Gym a few times a week with my cohort in crime. where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. I went to class.CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. We went to Nebraska football games. 127 . No. studied.
you were D. Phi Delta Phi members.A. together. and complain about things a bit. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). Believe me. first rate legal education. a lot of whom I think were Vietnam War Vets. what does all of this have to do with legal academia? Well. We knew we were getting a top of the line. if you were not Greek you did not frequent Sandy’s on football Fridays. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively. although we might bitch. you might say nothing. I might say something like. we would get a little drunk. It was fun. Chrisman and I had this routine we used in trying to pick up sorority chicks.ploy was doomed to failure. Anyway. "My God. who complained that the faculty was too liberal. maybe it just might work. if you were Greek and you went to the Zoo Bar. First of all. a lot of us I think first generation lawyers in our families. we didn’t really mean it.O. Now.We sort of thought we were BMOC. clearly did like to see Greeks at the Bar). we were happy to be in law school." "You are a model aren’t you?" And so it went. for example. second. moan. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. that is. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. at Sandy’s on football Friday afternoons. but we did it anyway because it was fun. So. Dead on Arrival. big men on campus. but I think that there is a connection there. I guess that would make it about 5 and one half pitchers apiece. we were successful law students. The Lock Blade crowd at The Zoo Bar. We knew this whole method. Believe me. 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. 128 . (This is of course the opposite situation relative to the Zoo Bar. and hope beyond hope.
contract. Now. We like to let things percolate for a while. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican. Critical Thomists. what I discovered after awhile at Widener." Now. being a liberal or moderate democratic.. I could simply have brushed this off as ideology. a moderate to conservative Republican. 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. Not rabid of course. Over and over again I read articles which said the concepts such as liberty. then on the tenure track at Widener in Harrisburg. love. Now. I mean really real. I slammed out a few articles making this point. words. as a Critical Thomist. this situation flabbergasted me. especially used in a real world context such as law. Well things percolated until I got into Legal Academia. first a visitor at Marquette.. like myself. tort.. were simply "reified concepts" which were illegitimate because they were "abstract. don’t like to rush to judgment. and I suspect still is. are very real. "Trash and Bash." and not "concrete. so. meaning is real. getting tenure in 1994. So I filed this conversation away in my long term memory. Jurisprudence being of course that discipline within law which involves Legal Wisdom.Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. was that critical legal studies was the jurisprudence that was in fashion. and do you know what I found out? 129 ." were the watchwords of critical legal studies. since Bob was. mostly through reading the legal scholarship of outside law professors at other law schools." and therefore not "real. For a Critical Thomist. So.. justice. and concepts.
as such. and basically found reification to be an inadequate concept.A.. I developed a refutation of the concept of reification in a one line proof. what I call. Now.G. (As I recall. what you find underneath all of this.. Finally. don’t they have the names and information 130 . Because. in my view this makes critical legal studies. but lets save that one for later. What is post-modernism? Well. really. first of all extreme relativism is an incoherent jurisprudential and philosophical position to take. I think.. one simply starts playing around with language to show that concepts are circular or indeterminate..O. Anyway. they just left town. I got ignored. But even if that is true. What is the problem with this? Well. And it is not just legal academia. and if they did. even better. no one seems to care. nothing.Well. the K.B. and maybe moonlight a little bit for the K. Why would this be. now. don’t you think. its academia in general. The political problem with extreme relativism is that it is nihilistic. then why bother? I mean really why bother? Why not blow your brains out? . is that all of these people are. Now. which still maybe hanging on even though the cold war is supposedly over. in Moscow and all its files probably ended up in North Korea or Communist China. D. This is called deconstruction. I suppose you could even use Wittgenstein on a good day.G. For them. extreme relativists. in 2003. 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. and I suppose that will be ignored too.. . No one would respond. Or."). really didn’t go down.. which usually is not stated. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid. Dead on Arrival. anything can mean anything. why not just walk down to your local political commisar and join the communist party. The K.B.B. If anything can mean anything..G. Finally. people usually cite Derrida for authority.
we all have a drive for meaning and meaningfulness. before I finish this essay up. the American Nazi party existed." For the intellectual elite in American Law Schools. no one takes attendance. This is Critical Thomism. then why not find your local gaultlieter and see if the Nazi’s are interested. Listen. you might say this sounds ridiculous. we ground our position epistemologically and metaphysically on the right. liberalism is false consciousness. really. There are no totalitarian political parties in the United States. Liberalism on the right believes in truth. Well. if you’re a po mo (post-modern) and you don’t like the communist deal. What is left. In fact there were always stories about a guy in Lincoln. they packed in a long time ago. other than totalitarian political parties. let me digress a minute to discuss extreme relativism. especially when your law professors don’t even bother showing up for class. Well. Now. just looking at things from a jurisprudential point of view.for all the agents in place and sleeper agents in American? Just a thought). They showed the literature and everything. 131 . Last time I heard. I not so sure. we look for it elsewhere. in point of fact. and instead use research assistants. which has always been considered to be a liberal position. Although we support all sorts of programs to help the disadvantaged. everything is seen as just being ideologically subjective and a "bad trip. Nebraska. Now. Liberalism was on the right and in the right. in the local newspaper who was a big shot in the American Nazi party. This is because you can base liberal principles and values in classical metaphysics and philosophy. as Bernard Lonergan puts it. and if anyone does show up. A lot of liberals from the 1960's started out as liberals on the right. if we can’t get it through liberalism and the rule of law.
I suggest that Academia in General. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent. moderate idealism. being. embrace Critical Thomism." This is an philosophically existential refutation. Somehow. "everything is relative. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. Extreme relativism." Now. A Good Liberal is one who believes in moderate relativism. the statement contradicts performance. and equitable compassion for others. So. 132 . during the 1960'. Anyway liberalism on the left doesn’t work. I suppose is why so many Nazi’s hate Liberals on the Right. The reason that we. Such a Good Liberal. liberalism moved to the left. The Nazi’s were wrong because they were denying persons their individual right. then. We knew we were in the right in fighting Hitler. This is a commonly known proof: "If everything is relative. what is the solution to this situation. and moderate realism. won world war two and the cold war was that we were Liberals on the Right who were further to the Right than either the Nazi or the Communist parties. and therefore meaningless and invalid. ironically enough is further to the right than Adolph Hitlter. which. I suppose that Communists on the Right. . It is based on relativism which always ends up being extreme relativism. that is Hardliners or Stalinists hate Liberals on the Right as well. Once you’ve done that you are still free to deconstruct languge. Maybe this happened somehow after Jack Kennedy was shot. then of course the statement that everything is relative is relative. on the right and in the right.I say that a Good Liberal is on the Right and in the Right. The Americans. Even more. not one that is nihilistic. As a Lonerganian might put it. and Legal Academia in particular. but in a constructive way.
Any trial lawyer worth his salt will simply say. argued that Facts are what control the outcome of cases. what about Facts? Do Facts Rule? Jerome Frank thought so. and in his book. maybe jurors. not the Law. "Courts on Trial. "The hell with the 133 . or at least we pretend to." But. What are they? Who cares? Well. lawyers and judges do."107 Frank. what is that? How can Law Rule? What about people. a 1930's legal realist. Lawyers are supposed to uphold the "Rule of Law. A lot of trial lawyers think so to.CHAPTER XVII LAW AND OBJECTIVE FACTS Facts.
just get me in front of the jury and I’ll win my case.Law. experience > where one intends sense impressions 2. approximately half. one suspects. in order to try the case to the jury. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. perhaps unethically. and he won. Well." and a lot of lawyers do to. that was attorney Frank Galvin’s salvation."108 with Paul Newman. "The Verdict" 1982. But some of us wonder that even if we can imagine that The Law is objective in some sense. He passed up a settlement offer. working off the philosophy of Bernard Lonergan. how about The Facts... argues that we in fact know reality through three interrellated cognitive operations: 1. 134 . "Courts on Trial (1949). Critical Thomism." In "The Verdict. 20th Century Fox. Frank Galvin did win in "The Verdict.
" The Buddists call this illusion.3. 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. "Truth and Method" 239 (1975)."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two." see Anthony J. Fejfar. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence.’" 25 Capital Univ. Hans Georg Gadamer. we organize sense impressions through the use of symbols and ideas. For a discussion of "relational meaning streams. setting the stage for "Reality" at Level Three." 27 Boston College L.110 which act as "forestructures of knowing. L. 681 (1986). 110 111 135 . "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. See generally. 579 (1996). 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. This is the level of "Reacality. Rev. Rev. It is on this level that we not only understand what is going on. On Level Two. we simply experience a blurr of data. even myths. Anthony J.109 What this means is that on Level One. Fejfar. the level of sense impressions. 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.
where does the Critical Thomist schema fit in? 112 See generally. But given this. but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic. Walter Conn. 136 . possibly even fascist. positive in some sense and negative in others. this is all very nice."112 Now. "Conscience and Self Transcendence (1973).operations and Kohlberg’s "conventional morality. I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag.
I would argue that some people at Level Three learn to make inductive intuitive judgments of fact which in some sense integrates and involves a gestalt of both sense experience at Level One and analytic understanding and hermeneutic "structures of knowing" at Level Two. Now how can this happen? Quantum Physics suggests very strongly the not only the possiblity but the actuality of non-local probalistic communication- at- a- distance.113 Thus one’s intuitive judgment or reflection upon a "rock," for example, includes one’s current sense impressions of the "rock," if any, one’s past and current understanding of "rockness," and rock relatedness, any "forestructures of knowing" which involve the foregoing, and finally, a non-local-at-a-distance intuitive judgment of the situation producing a probabalistic intuitive judgment-gestalt of the "fact" of the situation. Additionally, there is the sense that some of us have a deeper sense of "rockness" than others. How could this be? Perhaps we are accessing at an unconscious or preconsious level "Parallel Quantum Universes" which are probabalistically similar to ours but not exactly the same.114 Perhaps this gives us a certain intuitive wisdom as to the "rock" that another might not have.
See, Nick Herbert, "Quantum Reality" (1985) and Nick Herbert, "Faster than Light, Superluminal Loopholes in Physics (1989) (discussing Bell’s Theorem).
For a discussion of "Parallel Quantum Universes," see Quantum Physicist, Fred Alan Wolfe, "Parallel Universes" (1990).
Now, let’s digress for a moment and think about lawyering and judging a bit. Perhaps the "wisemen" and "wisewomen" in the legal profession know a little more about the world, and a little more about facts, and a little more about "rocks," and a little more about the deep background necessary to understand a case or the law generally, because they have unconscious or preconsious "Quantum Mental Access" in their minds?115 Now at this point a skeptic might object, well even if this is true, it is not as if what you are getting is in any sense "objective;" who is to say that "Quantum Mental Access" to parallel universes would give us a better understanding of what is "really" going on than anything else? Here Lonergan would, I think respond that because we intend "Being" as an "Unrestricted Act of Understanding"116 with our cognitive intentionality, given a broader Quantum Mental Access
How do we get this Quantum Mental Access, or intuition. Francis Vaughan argues
that such intuition is best accessed through meditation. See, Francis Vaughan, "Awakening Intuition" (1979). The author has found that the best method of "meditation" for him, is "relaxation meditation." See generally, Herbert Benson, M.D., "The Relaxation Response" (2000).
Bernard Lonergan, "Insight" 350-351 (1956).
and Understanding of Reality, we would in fact know more, and in fact, better. Just because facts involve values, as hermeneutics suggests, simply implies that we are able to find qualitatively "better" facts which are in some sense more "true" than we would otherwise. As Lonergan would put it, our "objectivity" is authentic subjectivity.117 Now, why would this be? Well, whether Being exists or not in some abstract sense, it is certainly true that for many of us, Being acts as a "deep structuring symbol" and as a "forestructure of knowing" such that Being is Real as a matter of Quantum Mental Meaning in the context of Quantum Indeterminacy regardless of any hypothetical situation, in the abstract, where our intentionality is not structured this way. As Werner Heisenberg, one of the early and leading Quantum Physicists has shown, one’s intentionality or meaning stance affects the "experiment" of
As Lonergan puts it, "[I]t is now apparent that in the world mediated by meaning and motivated by value, objectivity is simply the consequence of authentic subjectivity, of genuine attention [at Level One], genuine intelligence [at Level Two], genuine reasonableness [at Level Three], and genuine responsibility [at Level Three]." Bernard Lonergan, "Method in Theology" 265 (1971).
at least as to Quantum Events. 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. (Even in a "gross" Newtonian physical world. then. there is plenty of room for Quantum Mental Communication at a distance. Questioning this possibility. Id. the interesting point to be made." Id. it is possible that "quantum effects" trigger much larger neural activities within the brain.118 In other words.9999%. Moreover. probabilistically. Nick Herbert. on the one hand. and quantum activities on the other hand. at 348. Now. 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 our logic is not sophisticated enough to accommodate such a possibility. Heisenberg states. is that when we combine the foregoing. 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. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. Penrose points out." Id. "Quantum Reality" (1985) (quoting Heisenberg: "Some physicists would prefer to come back to the idea of an objective real world whose smallest parts exist objectively in the same sense as stones or trees exist independently of whether we observe them." Id. any purported newtonian "objectivity" is chimerical. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. Now.one’s life at least epistemologically if not metaphysically. at 349. Id. at 31). with the result of Bell’s Interconnectedness Theorem. at 17. when one lives the 118 See generally. at sublight speeds. This however is impossible. Thus. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. however. "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. Similarly." Id. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy. 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. Thus. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically.
141 . and the right hemisphere toward "quantum interaction" associated with intuition. Finally. results. one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. perhaps in ordinary right handed persons. the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning. 119 See. Let the Dreamers Wake the Nation. Thus in this vein. Thus scripture scholar Walter Brueggeman argues very forceful for the existence of "alternative prophetic consciousness" and "alternative prophetic reality"119 which interface with but reject static fascist consciousness. "The Prophetic Imagination" (1978). in an earlier article. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world).critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy. Walter Brueggemann.
"Wake the Nation: Law Student Insights into the New Jerusalem. 767 (1993) (Quote in text adapted from Carly Simon. Fejfar. "Let the River Run. Shaffer and Anthony J." 76 Marquette L.Come the New Jerusalem. Rev."120 Now the skeptic might argue of course that such "alternative reality" or "alternative 120 Thomas L. 142 ." on Working Girl Soundtrack (Arista Records 1989).
My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. however. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results.121 There are of course two responses to this." In practical application and ordinary interpretation. however. the foregoing means. arguably. First of all Quantum Physics. "Quantum Philosophy" 19 (1999)). the definition that I use. above." (Quoted in Roland Omnes. in the text is more adequate and relevant. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid. Additionally. "Entities are not to be multiplied without need. Literally. is not metaphysics at all. 143 . any more than newtonian physics or einsteinian physics.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. it is my position that Ockham’s Razor itself is flawed and invalid. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate.
scientific. 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. Thus Metaphysics is excluded by the operation of Ockham’s Razor in relation to scientific or legal problems on the basis that and Metaphysics is unnecessary extraneous assumptions. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself. 2. 144 . Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid.Refutation of Ockham’s Razor 1. legal. the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. Ockham’s Razor which was created by William of Ockham. provides in essence that in considering any problem. or otherwise. upon reflection. 3. Once step 2 is taken.
Thus Ockham’s Razor is rendered self contradictory and invalid. Let us consider the mathematical problem: 4 + X = 7. Since the foregoing problem was solved without the use of Ockham’s Razor. In fact. Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. then by the operation of Ockham’s Razor. J.4 = 7. However. B. E.4 X = 7. I.4. D. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor. A.4 X=3 G. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. We must now proceed to solving the problem 4+X=7. Ockham’s Razor as a starting assumption must be excluded. Mathematical Illustration. as such. one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X . It is argued that a concept that cannot allow for its own existence is invalid. 145 . prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted. H. F. C.
" psychologically. above. legal. our highly probable judgments of fact simply "kick over. we might say. especially since Quantum Indeterminacy seems to leave us our hat. While "objectivity" may not be possible as an abstract metaphysical possiblity.9999% real probability in the real world. after the fact.. if we intend "objectivity" then in some fashion we get "objectivity. or otherwise.A. it is argued that scientific materialism (including marxism) and capitalist materialism are D. it is certainly true that Metaphysical concepts such as "Being. This of course is not true. perhaps the materialist is aghast at this point. into "virtually unconditioned judgments of fact. Ockham’s Razor is proved as being invalid in every case universally. our authentic subjectivity will produce our "objectivity." Finally. scientific. it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts. in a world of Heisenberg’s indeterminacy. Put another way. Additionally. Now as Bernard Lonergan points out." In other words." are now once again relevant to scientific as well as jurisprudential inquiry. ethical. cosmological. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak." at Level Four which is constructed through "virtually unconditioned judgments of 146 ." A la Lonergan. given that Ockham’s Razor is invalid.O. Now. but no hatrack to hang it on. Because this is true. The best we get in the real world at Level Three is something like 99. that is Dead on Arrival. Now.5. 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. It is argued that the proof/approach used in 4. can be used as the first step in the resolution of any problem.
So. here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept. and.. as such. judicial or otherwise. "How to Know God" (2001) (discussing virtual reality).” 122 C."122 So in the end perhaps Piaget and Kohlberg are right. arguing our cases. as an enticement for the reader to keep reading.fact. probabalistically at Level Three and objectively at Level 4. We use these facts in counseling our clients. and. therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid. Facts do exist. Finally. And. We need not be fact skeptics at all. for better or worse. 147 . is excluded by the operation of Ockham’s Razor. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail.f. back to lawyering again. and in making our decisions. Deepak Choprah. 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.
You had to 148 . the opposing lawyer. the litigation partner I was working with and I would go off to trial. Holm. doing primarily corporate-commercial litigation. I remember when I practiced law at the Baird. “Well. and the guy. You had an opponent. I was in Nam.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. and your gut tightened up. and you got a little sick to your stomach. but the whole thing was still a battle. almost tearing up. the Nam guy was right in one sense and wrong in another. and didn’t know what to say. Nebraska. Bill would say as we were going out the door. said. just like before a big basketball game you were playing in highschool. Now. Sure. the physical bullets weren’t flying in the courtroom. and believe me this isn’t war.” Bill and I both sort of gulped. “We’re off to War. after loading up our litigation briefcases. law firm in Omaha. when Bill Dittrick.
and involves military tactics. I suppose this was like the trench warfare of World War I. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank . blitzkrieg. There was another sense that litigation was like war. and at the same time you had to care. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. and in the end nobody really gets what they wanted in the first place. In fact. that is. 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. What these type of commanders often fail to realize. The war is waged back and forth between entrenched positions. but rather to the ends of their front lines where their primary forces are deployed. The casualties are horrendous. if nothing else you did not want to lose. however. Even in the commercial cases you cared.tough. however. Flanks of course not refering to their posterior anatomies. is both the vulnerability and the opportunity of exploiting the flanks of your opposition. Another method of litigation was the war of attrition. I’ve read a lot about military history and military tactics and what I’ve discovered more than anything else is that the typical military commander. that is in the sense that litigation in many ways parallels war. seemingly forever. As I mentioned above. the typical litigation partner. simply bulls his way forward with a frontal assault. they might not even remember what they wanted in the first place. Losing was for losers.
Just like the game of Chess. there are of course response moves in such a situation. we can shift our left and right flank defensively so that when the enemy’s line passes by. our flanks can turn to the center. it is pure idiocy to attack straight at an entrenched position. then the defenders will almost certainly win. not unlike the Charge of the Light Brigade. As the poem goes. if they don’t have the ability to change orders and adapt in the middle of the fight. We have a ten to one advantage over the end of the enemy’s line on each flak. they want it carried out. I would go so far to say that an order to do so is an illegal order. “Ours is not to question why. if the enemy trained to think multilaterally. and then move forward with the flanks. notice that if the Enemy’s line moves forward and engages our front line. However. even if they are outnumbered. and then attack the enemy’s line in a way the enemy cannot combat. and to have the troopers and non-commissioned officers to take the initiative. ours is but to do 150 . those ranks of troops are exposed as well. Now. then it is possible to engage the flanks and at least stalemate the defensive attack. Now. Once “high command” has decided on a strategy.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now. from an offensive point of view. regardless of the outcome. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. but they rarely work. engage the enemy in the middle. If there is more than one line.
Now. The Confederate Army was underprovisioned. The battlefield itself is about three or four miles wide. 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. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. effectively ending the war. That’s the background. a small mountain on the Union Army’s right flank. outside of Harrisburg. around Little Roundtop. Similarly. if you have seen the movie “The Thin Red Line. and was stuck in Union territory. Now. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. before we get to the law application. and then some trees behind. Unfortunately. 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.” Now. cutting off supplies. and the road to Washington. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania.or die. the first thing to remember is the context.” about the Marines in combat 151 . Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. and attacked the Union rear. he didn’t get that far. for him. let’s consider the above in light of the Battle of Gettysburg. even if Lee had sent a few scouts out. Lee had to attack. Then there is a farm field about one mile in width. and. as well as attacking the Union troops themselves. he could have seen that the Union lines did not extend beyond Little Roundtop. Now.
is your opponent. national. Will it be necessary to associate with other lawfirms. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. The commanding officer said no and threatened to relieve the company commander. or international. The next thing to know. This is not always possible. Whether the case might be removed to a different jurisdiction. you must know the ground. how does this apply to litigation. with relatively few casualties. The company commander. a lawyer from civilian life before the war. your context. Always remember the philosopher Hume. must absolutely win the lawsuit for whatever reasons. underprovisioned. nothing is locked in place. Whether discovery will be local.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. at least to some degree. The company commander had his men make a few attempts up the middle. 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. What has happened in the past merely provides some basis for predicting the future. first of all you need to know you situation. Next. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. Well. etc. Now. broke. what this usually means is that you must know what courts are available to hear the case. taking out an enemy encampment. In the case of litigation. and then the Japanese entrenched position on the hill. but also needed to prepare the case. I your client. but it was hopeless. but sometimes it is. however. Hume even went so far as to say that all we can really know in our ordinary world is 152 .
So. three inches taller. underestimate your enemy. “When is this going to stop?” thinking we might have an truce or something.” This is of course the doctrine of strategic retreat.based upon inductive reasoning involving statistical probability. and about 50 pounds heavier than my six foot four inch frame. The bully looked at me and said. no. Somehow. lives to fight another day. but. at the same time. though. That is. Unfortunately. we ran right into the bully and his side kick and the fight ensued again. so I asked the guy. so instead we will go the opposite way. I was simply a guy who happened to be at the 153 . I got in a fight with a bully from another school.” Suddenly. He was about three years older. until a teacher came to break up the fight. I made this mistake in junior high one time. my two buddies and I hit the bike racks and got our bikes. It was about a three mile bike ride home for me. So. don’t necessarily conclude that your enemy is remarkably smarter than you are. I was face to face with evil in a way that I never had been before. because I could tell that he meant it. Following the words of Rupert of Henzau from the “Prisoner of Zenda. I held my own again. however. I held my own in the fight on the front porch of the school. never overestimate your enemy. they will know that we will take the 40th street way home. I thought. telling my buddies to get one of their parents so I could get out of the mess. down 48th street. never. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. I could see the gang at the end of the block.” “He who fights and runs away. 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. I figured that I would go to the right down to 40th street and we would get around them that way. “It will be over when I get you down on the ground and beat your head in.
Both at your client’s end of the street but at the other end as well. file the complaint. Yes. If you find yourself in a muliparty conflict.wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. the point. the next year my buddies and I were in highschool at Lincoln. the point is to not in the first instance attack the case head on. also. 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. don’t think that evil doesn’t exist. but I guess. Southeast. And. I got my bike loaded up and we were out of there. of course being careful not to violate the anti-contact rule. they will just gang up on you. Now. and I never saw either of these bullys again. Don’t let one become so dominant that you will lose in the end. Although wisdom allows this strategy. So. One last point. She chewed the bully out verbally. or even arrange for your enemies to attack each other. in terms of thinking about attacking the flanks in litigation. Get a trusted private investigator to check things out. Then. allow. 154 . don’t waste time attacking all of your enemies at once. or even game. Third parties are of course fair game for interviewing but the opposing party is not. yes get discovery started. but don’t push it right at first. Get a paralegal to check into available public records to the extent they would in any way be relevant. don’t overestimate your enemy. my buddy’s mom drove up in the family station wagon. except in some situations low level corporate employees. I’m not sure that conventional notions of morality do. An eastern way of thinking about war and litigation is this. Instead. of course.
should still involve the symbolic state. ala marx. for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day.CHAPTER XIX MEDIATION Mediation has been very popular in the United States in recent years. Things might even go great for 200. The idea that we will somehow be able to do 155 . The judiciary taking the bench for at least a day. I hate to be pessistic. No. ala Critical Thomism. and then all we have worked for up to that time will have been lost. and then we suddenly get a lousy generation or two of authoritarian people. The first thing that I have learned is that mediation does not work without a judicial system to back it up. is that our goal for Utopia. and all disputes will be solved through mediation. I know that some mediators think that someday the state will fall away. and learned a lot. etc. I was a neighborhood dispute mediator for about two years myself.000 years on earth. including but not limited to the judiciary. so I am going to cut the apple in two and say that my goal.
I then do an overview. I think that mediation is a very positive thing. is excessively utopian. the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. I ask each party what he or she would like to see happen or get out of the mediation. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem. Mediation is. Nevertheless. While there are several different styles. and here. We pound out an agreement point by point. and then call it a day. the mode that I prefer and have used is that of facilitative mediation. 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 see a strong role for mediation in our society and system of government. We then hone down the possible solutions to just one. In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves.away with law or the state en toto. 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. as a last comment. for me. but also should refuse to help facilitate 156 . stating that we will first have each of the parties get their stories out. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. and that in most circumstances one get’s a very good result. modes. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. So. memorialize it in writing. But. of course. 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. or methods of mediation. as a Liberal on the Right. Then. ala Justice Brandeis. I then ask further questions factually to flesh out the situation and get a better handle on what was happening.
e. if remarkably well read. Intellect. It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law.agreements which in the mediator’s mind are unconscionable. though. perfect mathematical and geometric ratio. I think associate the idea with the civil rights movement in the 1960's. Interestingly. Aristotle stopped short of proportionality as a basis for perfect equality. 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.” For me. “A Theory of Justice. Equality is based upon the idea of proportionality. with John Rawl’s book. it must be stated here that even if a 157 .. In Aristotle’s Ethics. Mind. though. While previously I have recognized the idea of the natural law hierarchy of Body. equality originates with Aristotle. or before that with Enlightenment Liberalism. Instead. i. Most people. or maybe. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea.
Here. society should affirmatively seek to place such individuals in jobs ahead of others. 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. The argument is that because of past and present systematic discrimination against particular groups. the person in the discriminated against class should get the job. The principle of equal opportunity requires that everyone be given a even chance at getting a job. however. 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. my position is that this can only be done on a limited basis with 158 . ethnic. have been damaged greater. say a concrete laborer.” Equality also comes up in the employment area. Nevertheless. This is affirmative action. This is equality before the law. then. If a street person is defamed by being wrongfully called a “scumbag. 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. I seems absolutely clear to me that as between two equally qualified persons. or religious.” 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. Although in some sense trajic. the principle is the same in the case of defamation. himself. racial.particular person. The issue of past and present irrational discrimination also must be dealt with. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment. one who has a greater educational background and greater skills might in fact. de facto. functioned primarily on the Body level in terms of cognition and consciousness. if one person is in a class which has been discriminated against.
Hitler made it very clear that all slavic peoples were considered to be subhuman. or a greatgrandparent. Anyway. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. White Russians discriminated against siberians and other ethnic groups. There are an awful lot of bigoted people who are interested in ethnic or racial purity. then the solution is to stop discrimination in graduate education in the same proportional way. The Japanese in WWII considered Americans in general to mongrels. and before that highschool. In order to qualify one need only have parents of different ethicitity or race. or a grandparent.respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. For example. I am Czech. my point is this. The categories for discrimination have to expanded. and they aren’t necessarily “white. and I suspect that there are a fair number of ethnically German. Irish. I want to make the following point.” In fact. and German. with respect to anti-discrimination measures and affirmative action. racial Nazi purists. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards. who would consider my ethnic/racial background to be unacceptable. and for affirmative action. and before that undergraduate education. I would simply say this. I don’t really expect these kind of attitudes to go away in the near future. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics. 159 . Finally. In the old Soviet Union.
We do a little legal research. ask some more questions. That is. Critical Thomists. and more particularly. the world is a bit fuzzy. certainty. do aim for concepts or ideas or conclusions of exact. of course. and then we make a probablistic assessment of the situation. Quantum Physics. If we think of the ideal rule as a genuinely existing straight line. using litigator’s intuition and gut instinct one comes to a judgment or assessment. and in particular. and what should be done next. the “empirical” real rule from an inductive point of view 160 . as well as our world. in point of fact. For us. When a client walks into one of our offices. provisionally. is. Critical Thomist Lawyers. and even “Greater Reality as a Whole” are all probabalistic. typically a few days later. Heisenberg’s Indeterminacy Principle suggest that we. what the law. linear. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. of what is going on.CHAPTER XXI STATISTICAL PROBABILITY Well. we ask the appropriate questions to try and get a handle on the facts. as stated in a previous Chapter.
. and graduate school grade point averages. is that the probable solution is to improve opportunities for particular types of classes. and maybe even require them 161 ... and. So. relative to race. ( R = Rule and x = 1 through approx. 10 ). at least over the medium to long range. Now.. This could be seen through the classical equation: R = x + 0. and ideally does take a statistical sample of the relevant data. say for example regarding the objectivity or validity of a law bar exam... First of all. accounting. but what I would like to suggest is that from a corrective point of view.. using a regression analysis which excludes “aberrational data” one then comes up with conclusions. etc. it is important to include commonly understood analysis of independent variables in one’s study. a classical rule deontologically and decuctively looks like this: -------------------------------. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. In any type of sociological study. Ethics. ethnic. Communications.. one is supposed to. and espionage novels which involve complex social and political situations.. and then. Now in all of this I am not saying that there may be underlying patterns of racial. English Literature. one should make sure that other independent variables are properly accounted for. I have just two points here to make.. economics... undergraduate.... Management.. Such variables typically might include: grade school. high school. and... or religious discrimination coming from one source or another. courses taken previously relating to: logic. ethnicity. interestingly enough mystery. English Composition. detective. what type of employment the applicants parent(s) have held.. I’m sure there are others. perhaps. if the applicant had a great deal of work experience with summer jobs. religion.only exists as a line of dashes. for example.while an ontologically and inductively classical rule looks like this: .
opportunities for the development of leadership skills in the military. or finally. Finally. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. Remarkably. perhaps required. some researchers. or in my opinion. Clearly unscientific and totally political. 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. with respect to empirical research.for admission to law school. Computer programs which do no display the standard deviation. are using standard deviations of 10. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent. Additionally. or more. or legal academia in particular. In my mind. 162 . ethnic. one must remember the difficulty in coming up with an acceptable standard deviation when one performs an regression analysis to exclude “aberrant data. so I have heard. including but not limited to social science research.” I have heard that some studies are now not even disclosing what standard deviation they are using. there should be opportunities. or religious minorities in the legal profession generally. 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. This is real “political” science and it does not just involve social science research.
When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that. 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. on the other hand. For me it all began with discussions of Piaget and Kohlberg and Glaser’s reality approach to education around the dinner table with my mom and dad who are and were educators. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness.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 Ken Wilber. The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. level five seems to be the creativity level.
4. Whether the mind is in the brain. we can advert to Plato’s discussion thousands of years ago. 3. We don’t need Christian theologians to tells us about life after death or the immortality of the soul. there it is. or Law. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations. but complex way of thinking. Rule. Perhaps some perform these operations laterally on one level. or the brain is in the mind. Why is this important? I suspect it is important because those of us who somehow have a 164 .Metaphysics 5. 1. So. 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. Its not mysticism at all its simply a very good. 2. or both. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. gets to be irrelevant after awhile. As noted before. but I do it vertically.
feelings. thoughts. What is “equality?” I mean. if only congnitively. one notes that given an equal amount of square footage for a restroom for both men and women. it takes a lot longer for a 165 . Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. and emotions in His Mind forever. that the line to the men’ restroom was comparatively short. But let’s go po-mo here for a second and deconstruct the concept of equality. 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. what does it really mean? When I think of equality. letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education. because women need to use stalls and cannot pony up to the urinal trough like men.lived experience of a higher reality. Apparently. assuming that women need not urinate or defacate any more often than men. 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). When I was teaching a visiting professor at Marquette Law School my wife Judi and I went to a few basketball games downtown in the sports center. I noticed the perennial problem. which I first saw at Nebraska football games growing up. while the line to the women’s restroom was remarkably long. CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s. One suspects that their jurisprudence begins and ends with the concept of equality.
My point is that equality only means something in relation to something else or some other standard. as I said before. this does have economic. should equality be based upon usage. how about tractors. but they are unequal in terms of tire/wheel size. If we think of equality jurisprudentially. is much different for men and women. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. gender. that equality is geared toward some standard. but to a lot of women its not. legal. The John Deere’s are green. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. alternatively. usually unstated assumption. for example. We could. In each case there is the implicit. to a lot of men its not. Now. equality could in fact be related to social class. and remarkably enough. usage per hour. at this point. Now. that is. of course. So. etc. the 166 . natural law hierarchy. Now the philosophical question involved is this. One might say that two tractors are equal in terms of horsepower. or. age. have a long and interesting discussion of policy regarding restroom parity. should equality be based upon the amount of square footage floor space. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. where. The examples we could use are endless. But let’s think of it more philosophically. but that is not my point here.comparable number of women to “take care of business” than it does for an equal number of men. and political consequences. Let’s take a John Deere tractor versus a Massey Ferguson tractor. so to speak. The men don’t like having their restrooms taken away in already existing buildings. More time creates a longer line. wealth. race. this may seem a little silly.
There is a little more to it. but it is equality with some meat on the bones. which. It just doesn’t work. Anyway. But. red. Now. as my dog Scruffy might say. as I have mentioned before is a logically inconsistent. I could stop here and play it safe. We might even start a protest movement trying to change the law so that we have color parity among tractors. green. then. 167 . or orange. My position is that equality is a good thing. but that it must be understood and used in the context of metaphysics. and ultimately nihilistic position to take. This is tough for the “left liberal” who wants equality to be the ultimate value. if we could figure out which color. at least not on its own. Now. but I won’t. liberal’s on the right know that equality is not enough of a principle to accomplish much. was the best color.Massey Ferguson’s Red. one is left with extreme relativism. If equality is the ultimate value. There is something there to chew on. natural law. as I’ve said before. I’m basically a liberal on the right. food for thought. and the Ethical Matrix that I have discussed previously. Case Tractors Orange. 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. We still get equality.
I suppose.” the Critical Thomist of course feels compelled to respond in some way.” I said. a philosophy. I don’t see how I can respond to your criticism without a little more in the way of definition. Critical Thomism. and that it stinks. really. is to shift the burden of proof to the complainant. literally. and that it is full of partially digested cattle food.” Your assailant then looks at you quizzically and responds. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible. like bullshit. that’s it. what is ‘hogwash?. of course.’” The next move. my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle. hogwash. One might make the rather interesting move of asking one’s assailant to define his or her terms. “You know. Here. “Hogwash. and as such. the problem is that ‘critical thomism.CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says.” Then you sit back and think of the next move. is.’ how do you define it. in its deepest sense. “I think Critical Thomism is a bunch of hogwash. I 168 . So. “Well. I might respond by saying.’ just doesn’t line up with that definition.
” “one would necessarily need to refer to one’s experience. and then assert some fact.respond simply by saying. and. that ‘judgment’ does not exist. “Well. what say you?” Usually the response is that there “is nothing like judment. thereby disprove any attack on the proposition that consciousness involves different levels or operations.” 169 . and in so doing. elucidate one’s understanding. the burden of disproving Critical Thomism is on you.” or there is nothing like “levels of consciousness. law. 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. rule. or position as true based upon critical reflection or judgment.
one typically thinks of the ground that one is standing on. and form. the general idea of “substance. that is.CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. being. From a metaphysical standpoint. one can play around with some interesting concepts and produce some positive results. however. if we take the three metaphysical principles of substance. seen as “formless form.” the early Greek philosopher Anaximander is credited with first developing the concept. a real property or a real titled interest.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence. For example. one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land. or perhaps one’s home or one’s office building.” is that While John Locke mentions “substance” in passing.123 123 So. 170 . one can analyze real property in those terms. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. Substance. and the medeivals discussed a similar concept of “prima materia. One supposes that “substance” without being affected by one or more other metaphysical quiddities. would be simply the Greek concept of Chaos.
or chaos. and has the valence of substance. personal property. and thus can be distinguished from real property. It is my position that real property.” or the “quantum ocean.” Personal property. or perhaps more traditionally put. Real property is formed in substance. totally formless. is identified with the metaphysical principle of being. is the legal category of “fixtures. participates in. Transactions involving personal property typically involve the Uniform Commercial Code. Perhaps in no other way. In this sense it appears that a fixture must have 171 . yet at the same time in its purest manifestation. because of its fluid nature. then. and in its pure form as material matter is simply the mud or dirt or rock of the earth. other than interacting with a new born infant. As an intermediate category between real property and personal property. as such. on the other hand. to the extent that it is more fluid.” and becomes a fixture. Being having the metaphysical definition of “form of form. and which thus loses its character as “personal property.” A fixture is personal property which is annexed to real property. seems to be more in line with the metaphysical principle of being. or is a real estate agent or broker. usually one does not “get it” until one has practiced real estate law. more movable. To be contrasted with real prperty. While one might get a sense of this in one’s property class. typically by some form of physical attachment. somehow. Water. attached to real property.”124 In fact mystics or quantum physicists often refer to the “ocean of being.it is a virtually unqualified kind of stuff which is primordially physical. does one encounter the “real” of substance in this basic sort of way. someway. is of course. has the valence of substance. 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.
If the home is considered a 124 This is Plato’s definition. in three pieces. is the question of when a fixture becomes “real property. as such. before the home was attached to the foundation on the lot. It seems appropriate then. Now. essences. classical concepts such as essence. form. The sectional home rests on a concrete block foundation. and cable t. All the hookups are attached to the home. and has more of a straightforward valence. using purely evolutionary terms. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. electrical. So.a metaphysical appellation which is a half way house between being and substance. without losing one’s basic underpinnings in classical philosophy. hookups installed in the lot itself.v. the sections were movable. it seems fairly clear that the sections of the home were personal property. As an interesting correllative to the foregoing discussion. Although fairly large in size. I then have water. However. In an evolutionary universe. let’consider whether or not we have a fixture here. to denominate the metaphysical principle which underlies a fixture as that of substancia. essential form.” rather than remaining a fixture. sewer. let’s start with this hypothetical example. and substantial form. Now.” has more structure than substance. or quiddities. and the home itself is bolted to the concrete block foundation. one can come up with a way of discussing the differences between two actualities. Let’s say I own a two acre lot in fee simple absolute. 172 . I then have a “sectional home” moved onto the property with a crane. taking into account some basic metaphysical principles relative to change. or at least the appearance of change. or “being form. Substancia.
If we choose at this point not to use terms involving statistical probability. In classical terms. Tyically courts look to whether the home has running gear attached to it. Now. which in no way affects the substantial form of the object under inquiry. this would simply be a situation involving an “accident. and whether or not it is permanently attached to the foundation– if there is a foundation. So. A good example of this. An accretion to a substantial form. Now. The sectional house. would be mowing the grass on lot to a height of three inches every month. let’s think about it this way. an interesting question is whether a fixture. 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. it will probably be considered a mobile home. one could come up with a classical term such as “accretion” in the first instance. Blackacre exists in classical terms as real property in substantial form (in substance). prior to attachment. an arational. in my view.” or an “accidental change. rather than four inches. that is. is simply the addition of an irrational. perhaps.fixture or even personal property. but this way is a good one. although many grass stems would be affected. if it is in place long enough. exists as a substancia form (in substancia) or perhaps even in being form (in being).” which is not “really” or 173 . can be considered to be real property. part of the fee simple interest incorporated into the larger real property interest itself. or a rational/logical accident. there is more than one way of thinking about this. Presumably. in my judgment. and will have to be removed in accordance with local zoning regulations. Then we have the sectional house. Imagine we start out with the fee simple two acre lot. 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.
because neither “substance” nor “form” are effected. In classical terms. 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. this is simply. Now. 174 . in point of fact such a change seems impossible.“truly” a “change” at all. or. a fixture attached to the real property. In other words. 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. Once an accession has taken place. So. impossible. If we add the accident or the accretion of the parts of the sectional house. suggesting in statistical terms. albiet not yet real property. What. how then does one move from on substantial form to another. incorporated into Blackacre as an undivided whole of the real property itself. 125 In terms of statistical probability. is that of “accession.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. Either something is a particular substantial form or it is not. only an accidental or non-substantial change to the real property. however. however. the presence of a new “variable” which previously had not been accounted for.125 The accession represents an intermediary state between the real property state and the personal property state. a statistically significant change has taken place. let us consider the substantial form of our two acre Blackacre lot. of course. in point of fact real change or true change are both respectively. one has simply placed personal property “a la accident” on the real property. of course. In classical terms of course. The trick to dealing with this situation is that just past the metaphysical concept of accretion. and as such.
although not one accessible to one having the perspective of “houseless Blackacre. This is why to a classicist. nothing is really new. fine with the metaphysics.Now. well. Blackacre with house exists in potency but not in act.” It is not just a word game. as such? One supposes that the inquiry will involve a variety of factors such as intent. life is simply a process of “remembering” or “re-congnizing” what is alway already there. Now. etc. They both exist as independent immutable substantial forms. the foregoing seems absurd. treatment of the house for tax purposes. At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. permanence. In the classical universe of being. at the time of houseless Blackacre. When one has been schooled to think in terms of incremental evoltionary change and statistical probability. 175 . not in act. then Blackacre without house exists only in potency relative to us. but when is it that the house becomes real property and part of Blackacre. In classical terms. but in classical terms it is not. Blackacre with house really exists in a parallel being universe someplace. 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. Once Blackare with house has “manifested” relative to us. If such factors are present. then I would argue that a fully manifested Blackacre with house is present (in act). creativity is always limited by form or some other metaphysical principle.. As Plato puts it. Doubtless the old property hand will now ask. it is literally true that “Blackare with house” has always existed in act in some place in being.
though. . After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents. others simply associate it with the New Age and like it even less.CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about. well. For me. I had a two semester. metaphysics came sort of naturally. Some people with particular religious dispositions don’t like it because they. where the fossils where hundreds of thousands of years old. sort of.” rather than philosophy. A lot of people think its passe or irrelevant. think that it is “theology. mistakenly. six hour course in 176 . however. My freshman year in college. the evolution paridigm for reality seemed the best explanation. Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark.
as such. terms.” That is my reading of it. 177 The evolutionary idea put forth by Carl . I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. Aristotle. but at some point a part of my mind got the neo-thomist metaphysics paradigm. and my highschool science classes. cognitive dissonance was still there. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. So. no one even seemed to care about reconciling this situation. Now. top down. was that it seemed to see reality in static terms. one notes that in Genesis itelself. particularly my highschool physics class. And. however. and which saw the world. or the Holy Spirit as an immanent theological principle was involved. and I saw that there was a deductive explanatory perspective that made sense on its own terms. had seen the world and reality in inductive. It could not really account for new species development. and reality in general in deductive. Renard’s book was a type of Neo-Thomism which cited to Plato. on the other had.metaphysics using the book by Father Renard. and Aquinas. I guess what I’m getting at is this. As far as I could tell. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. Evolution.” Ironically. enough. empirical terms. But. The metaphysics courses my freshman year were tougher than hell. Suggesting of course that at least Substance as a metaphysical principle. 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. getting back to metaphysics. a lot. God is seen as creating the world in seven days out of the “void” of “Substance. The problem with neo-thomism that I saw. in my forebearer’s generation.
and the [Logos] was God. is it like Santa Claus said. when we take the prologue to John. as the Logos is the First Cause. Love and Creativity. I mean. 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 . in an earlier article. I denominated this “trinitarian metaphysic” as So. and is wholly unsatisfactory to me. or Creative Form. is. or Reason. Now. He [the Logos] was present to God in the beginning.A. in conjunction with Genesis. As Ken Wilber has argued. both biblically. and last there is Logos (Creative Form). presence. and objectively. My position. (N.B. we see that there are three primary metaphysical principles.) Now.Sagan. and was. such an approach is essentially infantile. Through him [the Logos] all things came into being.” and that somehow there was nothing which preceded this was. and the [Logos] was in God’s. that the universe began with the “Big Bang. and apart from him [the Logos] nothing came to be. and was the uncaused. there is Substance (Formless Form). this is found in the prologue to the Gospel of John. is that the Logos. second there is Being (Form of Form). First. ridiculous. this is how it all plays out metaphysically and follows: Being. First cause of the universe. where it is stated that Jesus. although such athiestic. In the beginning was the [Logos]. “Poof” and suddenly there was the universe? The whole thing is. In Biblical theological terms. non-metaphysical accounts of how reality began typically assert the opposite.
produce a New Immutable Platonic Form. since the Immutable Platonic Forms. are from a process point of view. in terms of a nonsystematic divergence from a classically stated Rule. acting as the immanent principle of God in creation. and God the Holy Spirit. it is possible that evolutionary processes could. Norm. or maybe even for ever. it is perfectly possible that certain species of animal or plant. even planets. could. as such. the Mediating Principle. God the Father. but not changed. ala Whitehead. or a New Immutable Substantial Form. and Substance.Now. respectively and together. when one realizes that an “accident” in terms of classical philosophy is defined statistically.” for awhile. rearranged. one might also argue that God the Father. God the Son. Substance. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. and Creativity/Creative Form. or Matthew Fox. Finally. one sees that the nature of reality itself is relatively stable. And. Love/Substance. in the Quantum Field of Substance. as well as others. of course. While one can certainly accede that the Trinity Subsists in its Primary relations eternally. the three primary principles of evolutionary advance. bringing all of this back to evolution. so to speak. in an extraordinary case. and God the Son. It makes perfect sense to argue that the three primary Metaphysical Principles of Being. then one begins to see that 179 . Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. on the other hand the Transcendent Principle. from a metaphysical standpoint. or Law. or. the Holy Spirit. as well as an Immutable Substantial Form. or others. and Christian Doctrine can be added to but not subtracted from. The Objectively Existing Metaphysical Principles of Being. the Immutable Substantial Forms. Once again. So. themselves existing in The Mind of God. be put on the “evolutionary shelf. Logos. Now. Ken Wilber.
180 .there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident. and modern systems involving statistical probability.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.