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BY PROF. ANTHONY J. FEJFAR, ESQ., COIF
(C) Copyright 2004 by Prof. Anthony J. Fejfar, Esq., Coif Imprimautur by Coif, by Anthony J. Fejfar, Coif
TABLE OF CONTENTS CHAPTER I CHAPTER II CHAPTER III CHAPTER IV JURISPRUDENCE: THE STUDY OF WISDOM CRITICAL THOMISM CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? A HOME RUN BALL, POSSESSION OF PROPERTY AND THE ETHICAL MATRIX, A UNIVERSAL NATURAL LAW ETHIC CORPORATE RESPONSIBILITY THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS 3 6 11 23
CHAPTER V CHAPTER VI
55 59 66 71
CHAPTER VII LUKE SKYWALKER AND THE VOID CHAPTER VIII CRITICAL THOMISM, LOGICAL POSITIVISM AND LAW CHAPTER IX CHAPTER XI CHAPTER XII
CRITICAL THOMIST LAWYERS AND JUNGIAN ARCHETYPES 80 THE HANGMAN 88 THE BARTENDER 96 100
CHAPTER XIII PROPERTY AS A FOUNDATION FOR LAW CHAPTER XIV EQUITY 105 CHAPTER XV THOU SHALT NOT MURDER 110
CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? 113 CHAPTER XVII LAW AND OBJECTIVE FACTS 119
CHAPTER XVIII LITIGATION TACTICS AND STRATEGY 130 CHAPTER XIX MEDIATION 137 CHAPTER XX EQUALITY AND EQUITY 139
CHAPTER XXI STATISTICAL PROBABILITY 142 CHAPTER XXII REALITY LEVELS AND METAPHYSICS 145 CHAPTER XXIII EQUALITY 147 CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM 150 CHAPTER XXV REAL PROPERTY AND METAPHYSICS CHAPTER XXVI TRINITARIAN METAPHSICS 152 156
’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. Metaphysics. and. with policy. It is my position that where one has received a Juris Doctor degree. business management. sociology. but then again. philosophy. I suppose that we all could get Ph. is The Study of Wisdom. one has also received a Doctorate in Jurisprudence. even. You see. psychology. finance. but I suspect we typically do it a different way. values." What is Jurisprudence? Well it is hard to say.. of course. one has not only received a Doctor of Laws. accounting. Quantum Physics. then. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture.. and has taken a jurisprudence course during law school. a lot of jurisprudence involves sociology or psychology. solid. They use their business and financial abilities to help their clients make good. theology. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. Put another way. Lawyers use policy arguments all the time to supplement their legal arguments. One might say that it is Legal Philosophy. the problem with Law is that it has to be interpreted. 4 . business decisions..CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. religion. Now. if there is no basis for that interpretation then problems result.D." . Jurisprudence.
In college I was a concrete laborer for eight months. not in the tennis sense. these people certainly are ditch digger academics. I think that it is unfair to ditch diggers to place these fundamentalist. perhaps unconsciously." who just channel and parrot other people’s minds. and complain. call these academics Borg. ala Star Trek. and then. So. I suspect that ditch diggers are more highly evolved than these academics. "The Law is The Law. So. I must apologize. and a day laborer for another summer. you know. moan. in Law School I decided. here. The solution? Well. never having an original thought of their own. Shit in.Unfortunately some Legal Academics are legal ditch diggers. and. 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. and if hypothetically we had nazis or communists in this country. In any event." Or perhaps. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it. legal academics in the same category with ditch diggers. usually spouting phrases like. one might suspect that they have faked credentials known as "dummy espionage degrees. Input in. I think I’ve been a little harsh. These Cyborg academics must look to their Central Control Units to tell them what to do. and. knee jerk. to become a Critical Thomist. They spend all their time digging themselves and others into ditches. but in the robotic sense. whine. You know. placing ourselves in a world of science fiction. maybe we should. If this were a world of espionage. that’s the problem. input out. maybe these persons are just "psychic channelers. academics. How they get into academia or law in the first place is beyond my comprehension. when they find themselves in ditches with virtually no way out." But what you really see of course is that they are Fascists. They don’t believe in jurisprudence. No programming alternatives here. for me it just keeps getting better 5 . bitch. shit out.
Mind. and Substance (Formless Form). Being is A Pure Act of Understanding. their respective philosphies were based on the Aristotelian concept of Being. 6 . what Thomas Aquinas called Intellectus. CHAPTER II CRITICAL THOMISM Critical Thomism. what is it? Well. For a Critical Thomist. I. Logos (Creative Form). and as a Critical Thomist. reality and consciousness is structured primarily on three levels. using the formulation. Level 2: Mind. and is the Intellect. but Critical Thomists don’t buy this. its my thing. Level 1: Body. the Highest Level of Consciousness is structured by Logos. it is perhaps a little bit of both. Logos is Divine Reason. For Bernard Lonergan. and Level 3: Intellect. For a Critical Thomist. I believe in. intend. For me. Now. Ken Wilber does something similar. and Thomas Aquinas. It’s not Thomism. on the other hand. and Substance is the basis and underlying foundation for true reality. then. use a trinitarian metaphysic which parallels the Trinity of God itself. and Spirit.and better. Being (Form of Form). its not Critical Realism. and a bit more. Body.
it is a different story. at level 2 in actuality. substantial forms. it has always been the case that the Immutable Platonic Forms could be "added to. One supposes that is at this level that Particle Physics reigns. Interestingly. however. Additionally. What else could they be? At Level 1. in fact. and Substance. discussed below. the Immutable Platonic Forms are of course composed of Platonic Substance. First of all. those forms typically only manifest probabalistically. then. in reacality. Form. then. and Intellectual pleasure or the integrative reflective way of being is found at Level 3. while we can talk about. Mind pleasure. or analytical or moral activity is found a Level 2. it must be noted that of course statistical probability is itself. but 7 . The same is true of individual substantial forms at Level 1. Bodily pleasure and sense experience is found at Level 1. discrete. its not. and one’s unconscious or preconscious Mind accesses. the thing about Critical Thomism is this. and. then. For a Critical Thomist. interestingly enough. and. For a Critical Thomist." that reality is composed of and structured by Substantial Form. which leads one to Substantial Form. This is of course consistent with both Plato and Aristotle. one believes in. consistent with Catholic Doctrinal theology. Logos. It is at this "material level. and even use the Immutable Platonic Forms at Level 2.In the preceding natural law framework.. however. an Immutable Platonic Form. but not subracted from. While the foregoing might seem a departure from Classical Philosophy. rearranged. not Quantum Physics. which is a secondary metaphysical principle. The Immutable Platonic Forms. supplements Being. individual objects are themselves. there are also corresponding levels of virtue or activity.
relational meaning streams structure and partially constitute reality." Now. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules. as Bernard Lonergan would tell us. Our world is not just a po-mo (post modern) fantasy. rather it is grounded in Saint Thomas the Apostle. who we are and the world we live in is determined. Change can occur without "change" occuring. Finally. or Substantial Form. "The World Mediated by Meaning.not changed. a "non-systematic statistical divergence from a classical norm or rule" of course takes place. Finally. Outside of space-time. it is at Level 3 that reality is structured by "relational meaning streams. To some degree. 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. it should be pointed out that statistical probability." As I have pointed out previously. paradoxically enough. as Bernard Lonergan would put it." Nevertheless. Finally." This is completely consist with the point that the Immutable Platonic Forms exist. Doubting Thomas is the Patron Saint of Critical Thomism. beginning with experience. moving to understanding. or the Immutable Platonic Forms. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. might find the foregoing discussion a little bit "out there. outside of space-time. 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. subsist. One suspects that Saint Thomas the Apostle himself very 8 . and culminating in judgment and reflection. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas.
I think for me the tradeoff is worth it. presumably had understood it. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets. obviously starting with experience. and then finishing with judgment. 9 . had judged it to be true as a matter of a critical judgment of fact. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. political or religious. So there it is. moving to understanding. Although it may take take me a little longer to see Reality. I go with Doubting Thomas. 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. I think that I will be sure that it is Reality and not something else. and then. when I do.well may have been a Critical Thomist. and finally through a process of critical reflection and judgment. For me. but nevertheless.
if I lived in Crete. Nebraska. Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. Fejfar. Daoist? Zen? On the Left? On the Right? I wasn’t sure. individual rights. especially in law school at the University of Nebraska College of Law. In Mass Communications Law I had chosen to sit in the anonymous middle of the class.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. out of the blue I heard my name being called. Snowden said: "‘Nowwww. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career. I could never quite figure out where he was coming from. certainly not sitting in the front row and being a "gunner. how did it all fit together? Well. Constitutional Rights. We got it in class somewhere. Snowden) was concerned that I could not get a fair 10 .’ Mr. Then one day in class it started coming together for me." Suddenly. and the people there were not cool and if I (Prof. Prof. a reminder to many of Nazi’s marching Neurenberg. Professor Snowden tried to help us get it. Exactly where I don’t remember. The whole issue of people getting along. rather than "back benching" it.
the people in Crete. Sweating palms. (Of course we all knew that Prof. and then you Professor Snowden moved to Lincoln. where the people were cool-. Nebraska. What could I possibly say? This question didn’t involve ’t in the case in the case book. Inspiration. with me moving to Lincoln? What do you (Mr. So.shake in court (in Crete. if you have 1 Of course I definitely did not say "excretion" or "shit. of course. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief.B. I did have a little premonition I think. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing). Insight. 11 .. inspired. Snowden continued: "‘Wellllll’. why couldn’t we have a system that handles it that way.(and where presumably Prof. And then. King at the Zoo Bar downtown). Nebraska)– why couldn’t I (Prof. Nebraska. Once again. Lonergan strikes again. That cold empty feeling in the pit of your stomach. Fejfar) could say is that that would make you. Click. Then it hit me. of course the usual blank out caused by panic. So. Fejfar) said: "Welllll’. and. where the people were cool. This was like getting lost in the grocery store at age four and not being able to find mom or dad. It wasn’t even close. an ex-cretian1. Professor Snowden. Shit. Eureka. I guess all I (Mr. Snowden) move to Lincoln. Mr. Was it some sort of Jungian unconscious linkage? My response? Panic of course. Prof. Fejfar. I (Mr. Nebraska. I guess if you lived in Crete. Professor Snowden. were not cool. Nebraska." Now. out of the blue." the term ex-cretion was of course only a merely coincidental use of language relative to those terms. Snowden would get along great). Fejfar) think of that?” Now.. Snowden was cool– what other Law Professor could you catch watching and listening to B.
Snowden was just great. I don’t think there was a ball to hide with Snowden. I am going to press the envelope in this 2 The "pit. is to be contrasted with Professor Bob Works." in this essay. of course. I think they have better things to do with their time). first of all I think Snowden would love hearing the story again. risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary. Second. and having it in print would help to pass it on in the lore of my alma mater (Nebraska. 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. "out of school. The "Harvard" of the Plains)." of course. Prof. And. This. with only a few scattered laughs." 12 3 . It’s not that Snowden was hiding the ball. why did I tell this story. being the proverbial student lounge area in the basement of the law school. and in thinking of Constitutional law relating to the First Amendment. of course. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class. in the spirit of Professor Snowden. you might well anticipate. Why? Well. All my professors were good– don’t get me wrong. that at this point. and beat his forehead on the table several times. Perhaps it was to poke fun a little bit at Professor Snowden.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.gotten the joke here. who always "hid the ball. Professor Snowden placed his head on the table from which he was lecturing. but really in a backhanded way. Now. it was meant as a compliment. I of course thought that I would receive a startling round of applause from my classmates.
(One Warin Fitz Gerald. scriveners error. there is an infinite regress. First. 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. which 13 . with my mom in our rent house in Terre Haute. though. when my dad had his first teaching job at Indiana State (I guess this was around 1963). or in any way harmed.. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta]. and Stephen. Magna Carta is interesting. The Archbishop of Canterbury was a signatory.save by lawful judgment of his peers or by the law of the land. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. This seems rather awkward though in light of his earlier support for and approval of the Document... here. I usually flash "progressive" when I hit faculty functions and faculty meetings. or imprisoned. 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. (We’re Fitzgeralds. approved it. I am a liberal kennedy democrat "hiding out" as a moderate democrat.article. Now. in the alternative. or disseized.v. I suppose in Europe I would be considered a Social Democrat.) One supposes that it would take a Royal to be a signatory otherwise the document would not have been binding on Evil King John. Magna Carta is one part of the "Law of the Land. Indiana. but then again. Magna Carta in the year 1215. Kingsblood4 I remember my mom saying. after the Battle of Runnymeade. watching it on a black and white t.” or.. it only takes a little bit of analysis to see that the requirement of Magna Carta. a Fitzgerald was a signatory of the English Constitution. is that the judgment be one of "lawful judgment of his peers [and] by the law of the land. of course. Boston 4 Now of course this might be pure hypoerbole. of course.. the authors really intended "and" not "or." Now.. or exiled. that is. me one quarter). Norman Irish. Finally. It was especially sad because we were Irish Catholic (my mom half. or outlawed. It guarantees that all freemen shall not be "taken. I remember that my mom and I both cried. alleging that it was coerced." I have three arguments. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. I remember Jack Kennedy’s funeral when I was four years old.” ." Second." so that the clause can and should be read.
I didn’t know what it was. Not again. We. We knew truth was possible even though it might be a little ambiguous and hard to get at. of course Bobby Kennedy was shot. Thomas Aquinas said there were three levels of law human law (political law).Fitzgeralds. Catholic Thomists believe in Liberal Truth. They were the antithesis of everything we believed in. They were fanatics. I’ve got judicial immunity. it was somehow in the blood. the Catholic Liberals were Thomists.) Then. natural law (common law). we all knew. 14 . Now. We believed in Reason. as Tom Shaffer might put it. These killers were fundamentalists. Now. or Creighton. but in our household we knew it wasn’t the whole story. I figured it out at Rockhurst College. and a jury of those who are Members of the Order of the Coif. I think. A Liberal Irish Catholic simply could not be President of the United States. that’s the story. there was a lone gunman in each case. and thus are Esquires. 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. tough luck. Suddenly instead of Camelot. Ours family went West after the Civil War. in my case. "Who cares?" Well. that means that I have a right to a jury of Lawyers who have passed the Bar. If they can’t find such a jury. It couldn’t be. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. Ted knew. at this point you might say. Sure. it was the Kennedy curse. and of course is irrational and therefore an unacceptable interpretation. I do. It was impossible. as well as the United States Supreme Court Bar.
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
rather than "his" or "her" would be More appropriate. one developes a conscience (to the extent that one does not already have one). An author faces this problem constantly. 7 18 . 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. using that word in its broadest meaning as including his6 spoken or written words. The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. from the motives of equity and fair dealing. that if one practices using this tool long enough. one way or the other. unless prevented by estoppel. his positive acts. Its foundation is justice and good conscience. remarkably enough. I argue. perhaps the word "hae" as a personal neuter pronoun. and its practical effect is." a Universal Natural Law Ethical Decision making tool. I think that this solves the problem nicely.of a party. to create and vest opposing rights in the party who obtains the benefit of the estoppel. and in good faith. and his silence or negative omission to do anything. In my "Home Run Ball" article I introduce the "Ethic Matrix.
143 S.W. Duncan. Bank of Neelyville v. Title Guarantee & Trust. 1016 (1916). Rothschild v. section 802. 298 (1913). it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. 8 2 Pomeroy’s Equity Jurisprudence. and in particular. Pease 82 Atl. 1918) (Citing. 1068 (1912). Conway Nat’l.E. Martin v. or its application to others in similar circumstances. as such. Lee. Bank v. 19 . Havalena Mining.8 Now. Maine Cent. Franklin v. one comes up with the Doctrine of "Constitutional Estoppel. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution. 182 S. Clark & Boise Lumber v. While some might argue such an approach is inappropriate. pp." That is. 740 (1890). 1635-1637 (4th Ed. R. 139 Pac. Brusha v.. it is in fact no more radical than arguing in equity that Constitutional rights can be waived.pre-eminently a creature of equity. 21 Atl. 157 Pac. in conjunction with the United States Constitution.W. 879 (1912)). Board of Education. 97 N. 986 (1916). 644 (1912). in relation to the First Amendment of the United States Constitution.
) Cross Examination (United States Attorney) Q. Mr. applies to the local Federal District Court for a permit for his group. and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States. The United States Attorney. as well as several other interested parties oppose the permit application. such a resemblence is purely coincidental. A. on information and belief. Rupert Robotic. The "Hypo Nazi Party. Those opposing the permit argue that Mr. Robotic is of course a purely fictional character. Robotic. and a such for First Amendment Free Speech and Free Association protected purposes. Mr. Robotic and his cohorts are. please state your name for the record. to march in Skokie. Constitutionally Estopped from getting the permit and marching. Robotic9. place. here is how it goes. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. 9 Mr. requirements have been met.Now. the Hypo Nazi Party10. how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well. 20 10 . Direct Examination (Mr. Our Hypo Fuhrer. and manner." of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945. They assert that reasonable time. represented by Counsel for Applicant. and any resemblence to anyone else is purely a coidcidence.
Mr. I withdraw the question. isn’t true that your Party supports the abolition of the United States Constitution. that is the end of the United States Government’s cross examination. including but not limited to the First Amenment? Well. Under pain of perjury. Q. Your Honor. handicapped persons. isn’t that correct? A. Mr. do you agree that other persons. once we reach power. Alright. Applicant. Robotic. and in that capacity are requesting a Parade Permit to march in Skokie.. Q.. Q. Your Honor. A.) (Judge: Overruled. Q. Mr. such as racial minorities. mental or physical. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel. and the other interested parties have waived cross.Q.. Robotic. Robotic you are representing the Hypo Nazi Party. It is our intention. would also have a right to a permit to march in similar circumstances? Absolutely not. Yes. Irrelevant. please answer the question. The First Amendment thereto under which any rights of free speech and free association can be asserted. (Applicant’s Counsel: Objection. perhaps. Q. not in your party. Q. Answer goes to the Estoppel Argument). Under pain of perjury. 5th Amendment). and finally has specifically denied that 21 A. Your Honor. Q. We want them abolished. to kill or place such people in concentration camps. A.. Does your opposition include violent means? (Applicant’s Counsel: Objection. Your honor. Robotic has admitted on cross examination that he and his party reject the United States Constitution. . yes. Your Honor. Mr. We oppose the United States Constitution and the First Amendment.
I am also denying the Permit on the basis of Equitable Estoppel. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade. the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. I’m denying this permit to march in Skokie on the principle of Constitutional Estoppel denying any First Amendment or Substantive Due Process Rights to the applicant and his group the Hypo. Alright. and incorporated by implicit and constructive reference into the United States Constitution. rather. Now. This is the kind of law. and Pursuit of Happiness. as such. Therefore. This Court is adjourned." that I encourage my law students to develop. this is how things would play out if I (Prof. Now. "pushing the envelope.A. The Court is now ruling from the Bench. since. nor is it simply discovered. Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. It is neither created. as well as the United States Constitution itself. Nazi Party in this matter. and." "thinking outside the box. the United States government and the United States Attorney argues that Mr. one must simply swish away the slag and the fools gold and look for the real gold that was always already there. Liberty. it is developed. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw.” Although it may seem 22 . I would argue that the application of Constitutional Estoppel can be used in a variety of contexts. Thank you Counsel. Additionally. Like panning for gold in the Rocky Mountains in Colorado. Tony Fejfar) were on the bench. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. one last thought here. Robotic and his Hypo Nazi group from marching. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case. and since he rejects the First Amendment itself. that although it could be used against a criminal defendant in certain circumstances. but do not even have to rights of Life. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist. found in the Declaration of Independence. Mr.
Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality .unlikely to the typical bystander. 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. CHAPTER IV A HOME RUN BALL. A UNIVERSAL NATURAL LAW ETHIC The Ethical Matrix Copyright (2002) by Anthony J. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX.
Aristotle.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. See . Ethics. Feeling. 34 (1971) (discussing Value as a transcendental notion). An analogous concept is found in modern economics and the philosophy of Mill and Bentham. 3. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. It is based on the Golden Rule found in the teachings of Jesus of Nazareth. Proportionality is based upon Mathematics and Geometry. See also. Ethics . Equity is based on the principle that Equity favors the one in need. 5. Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. The cognitive functions of Thinking. It is found in common law equitable precepts. Utility involves the Maximization of Value. and Sensation come 24 . 1131a22-1131b14 (1976). Intuition. 1137a351137b24 (1976). Method in Theology. 2. See. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. Aristotle. Bernard Lonergan. 4. Proportionality as a basis for Justice is found in the work of Aristotle.
Fejfar." The Essay then involves a linguistic. reflection/ judgment come from the work of Bernard Lonergan. that life. is. It is concluded that the Ethical Matrix is a valid natural 11 A common expression. 25 . then it follows that life is play. The cognitive functions of experience. Introduction. A Universal Natural Law Ethic. and then ethical analyis of the problem presented in the example.11 Tony Fejfar 1. (See Carl Jung. The Essay then proceeds with an example involving possession of personal property and a "home run ball. Existence is a Game to be Played. If one broadens this concept even further one finds that existence is a game to be played. 6 (1990)). This Essay begins with an overview of The Ethical Matrix. (See Bernard Lonergan. understanding. Copyright . is like a baseball game.from the work of Depth Psychologist Carl Jung. Psychological Types . policy. Cognitional Structure in Second Collection (1967)). And if indeed baseball is one variety of play. 2002 Anthony J. One could also see this phrase as a Zen Koan.
law ethical tool for engaging in public policy and legal analysis. As a part of the analysis, the "fair opportunity" rule for the possession and ownership of personal property is developed.
2. An Overview of The Ethical Matrix. The Ethical Matrix provides an ethical approach to public policy analysis that is based upon four natural law ethical principles which are, Reciprocity, Utility, Proportionality, and Equity. While each of these principles can be found in some sense in the work of earlier philosophers and sages, and while it is my belief that many persons use these principles in ethical reflection, often unconsciously, the integration of these principles in the Ethical Matrix as described and utilized here in this Article is to the best of the Author’s knowledge an original development.12 The concept of Reciprocity, although mentioned in Aristotle, is used in the context of the Ethical Matrix as an ethical principle is based on the Golden Rule as taught by Jesus of Nazareth.13 Utility, although it is an ethical principle developed by philosopher Jeremy Bentham,14 is modified in the context of the Ethical Matrix to take into account the ethical position of Jesuit
The Author wishes to acknowledge that the Rawlsian idea of "The Original Position" shares some of the same qualities as the Ethical Matrix but differs in may respects. For a discussion of the Original Position, see John Rawls, A Theory of Justice,. (1971). Additionally, the Author would like to acknowledge that The Ethical Matrix draws its inspiration in part from the work of Ken Wilber, particularly his use of a Quadrant Schematic as a vehicle analyzing evolution. See, Ken Wilber, Sex, Ecology, and Spirituality 198 (2000). See, Math. Ch. 7, v. 12, Oxford Anno. Bible (1977) ([w]hatsoever you wish that men would do to you, do so to them....). See generally, Jeremy Bentham, "The Principles of Morals and Legislation" (1988). 26
philosopher Bernard Lonergan.15 Thus instead of limiting utility to a pleasure/pain calculus, the principles involves the broader concept of maximizing Value. Value, in this context, then, is a transcendental notion.16
See, Bernard Lonergan, "Method in Theology" (1971). C.f., id., at 34.
The concept of proportionality utilized in the Ethical Matrix is based upon mathematics and geometry and is discussed in the work of Artistotle.17 Perfect proportionality is the basis for the idea of equality and of the idea of generating rules intended to be applied generally, all other things being equal. The concept of Equity as used in the Ethical Matrix is also discussed in Aristotle.18 Equity makes Equitable Exceptions from general rules based on need. While Aristotle does not discuss the basis for Equitable decision making, the position that the Author takes in this article
Artistotle, Ethics 1131a22-1131b14 (1976). Id., at 1137a35-1137b24.
Jesus of Nazareth and his mother Mary were attending a wedding celebration. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. Oxford Anno. The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. Chap. and the catholic Holy Spirit of Divine Wisdom See generally. 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. The hosts run out of wine and don’t know what to do. In this narrative. John. Mary asks him to perform the miracle anyway (Equitable intervention based on need).21 This is seen for example in the equitable doctrine of unconscionability. v. The hosts come to Mary and ask her if there is something that can be done.22 19 The mythos of wisdom if found in the greek Sophia and Athena. the underlying symbolism of the narrative is the same. the roman Minerva. (See. 1-11. Bastick. and Jesus does so. Bible (1977). 2. Feminine Equity based upon wisdom intuition 20 21 29 ."). T. turning water into wine. Whether one takes these events as literally true or not.is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need.
Hoosier Photo.2d 450 (1982) (discussing the "need" factors of knowledge. and bargaining power. 30 . for the application of the equitable doctrine of unconscionability.E. Carr v.intercedes to make an Equitable Exception from a general rule based upon need. sophistication. 441 N. 22 See.
"Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). Carl Jung. 31 . See also. Thinking. "Psychological Types" (1990).The Ethical Matrix finds support in the work of depth psychologist Carl Jung. Feeling. the Jungian psychological functions of Intuition.23 as seen in the figure below. and 23 See generally. Isabel Myers.
2. my schema is as follows: Lonergan 1. These functions correlate to the Jungian functions as follows: Jung 1. In order to more fully access the principles one must intuit Being. The natural law ethical principles are universal in the sense that each contains minimal moral content. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan. and Love. understanding. judgment/reflection 2. 4.25 It is also argued that each of the Ethical Matrix natural law ethical principles discussed above exist and operate as core "relational meaning streams" which inhere "naturally" in reality and manifest probalistically from the "Unrestricted Act of Understanding" which is "Being."26.24 and the Lonerganian cognitional functions of experience.Sensation. Insight 350-352 (1956). understanding 3. Judgment/Reflection. support the respective Ethical Principles discussed above. 32 . Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience. Understanding. and reflection/judgment. 3.
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.
used most effectively.33 My formulation of the rule as the principle of reciprocity is somewhat different. Bible (1977). 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. 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. 36 . Additionally. it has a more communitarian flavor. 3. "Treat another as you would wish to be treated in a similar context. Ch. 7. Oxford Anno." Although the two different formulations are very close. v. The idea of reciprocity as an ethical principle takes into account the value of 33 Math.
"A Theory of Justice" 513-519 (1971).34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. This is based on 34 For an interesting discussion of Autonomy. 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. 37 .Autonomy. see John Rawls.
or change context. 38 36 37 . "‘God plays dice with the universe." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness." but also as "Being.’" Id. Ford answers." "rearraned but not changed.’ ‘But they’re loaded dice. Chaos (1987). however.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. see.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. 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."from the point of view of ordinary causality. 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. is an even more interesting question.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. 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. then one would probably argue that such forms can be "added to but not subtracted from. how much do they change. and when? These are the questions which have vexed philosophers for quite some time." If one sees the relational meaning streams as immutable platonic forms. For a general discussion of Chaos theory." What sort of "chaos" is produced. at 314. James Gleick. What are these relational meaning streams. Of course one finds the notion of the "Good" in Plato’s work. its correlative cognitive functions.
there is no value to be achieved by Stan in having his face punched. This. one must imagine that one is Stan placing himself in George’s shoes. Although in this situation the double reciprocal reflection may seem unnecessary. will choose pleasure over pain." George must now place himself in the shoes of Stan. George. Utilizing what can be described as "double reciprocity.accurately and making better decisions. George must place himself imaginatively in Stan’s shoes and ask himself. let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. 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. and in the absence of a higher value achieved instrumentally through pain. he (George) would not want to get punched in the face for no apparent reason. 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. Stan does not choose pain for the sake of pain. George must posit that Stan’s desires in the situation are based upon positive values. and have Stan engage in a reciprocal reflection. Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation. Anticipating our discussion of Value. Taking simple hypothetical then. Is there any 39 . however. is not the end of reciprocal reflection. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason. that is.
the next subsection will discuss the principle of Utility. 38 While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face. The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. 4. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse.38 Having discussed the ethical principle of Reciprocity. Jeremy Bentham. 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. Utility. "The Principles of Morals and Legislation (1988). See. there does not appear to be any higher reflective or moral value which Stan might recognize as valid. it’s usefulness becomes more apparent in more complex situations where there are legitimate values which relate to the interests of all the relevant actors. 39 40 . would see any value in George’s potential activity of punching Stan in the face.reason why Stan imagining himself as George.
it must be stated at this point that my approach to decision making differs. as I pointed out in my first article in the Boston College Law Review. Method in Theology 12 (1971). Finally. the Author. Although this has much to recommend to it.40 What can this mean? The Author would Bernard Lonergan. Although it is obvious that I. Here. 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. even those who have a good intuitive sense. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. the argument is that Utility is the ethical principle based on the maximization of Value. Value is a transcendental notion. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. am building on the work on Bernard Lonergan.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. it is problematic in that it is not a principled ethic. and who intuit Being and Value in a positive way. Additionally. As pointed out by Jesuit philosopher Bernard Lonergan. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. Lonergan could only theorize that 40 41 .
and is one which promotes constitutional democracy. as such. the goal of political society. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. 42 . in a particular decision-making context. by intuiting Value one is better able to consciously recognize and then reflect upon the values relevant to a particular situation.argue that Value is an core relational meaning stream. and the law. objectively. and due process of law. Additionally. If one reflectively intends Value. is the "good of order. the rule of law. 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." While I have always read and interpreted this in a positive light. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. the state. or in the context of a particular public policy analysis. and have as a result of that process developed the Ethical Matrix.
and enforced through moral communities and authority figures. it does entail certain problems. reinforced. the reflective person chooses a higher pleasure over a lower pleasure.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem. 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. 41and that true happiness is achieved through the contemplative life. moral rules are taught. cannot be denied. 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. and through the intuition of Value." it is the author’s suggestion that such activity is very difficult for the moral person to engage in precisely because it conflicts with that person’s moral identity on a psychological level. upon reflection. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. several points can be made. First. Ethics 1097a15-1097b2 (1976). While the moral life has many positive attributes to recommend it. for various religious groups to have violent confrontations. 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 . This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life. Additionally. First. However. for example. Thus it is not unusual. It is asserted that all other things being equal. pleasure. one can begin to recognize higher pleasures. as such.43 Other than this general 41 42 Aristotle. can certainly be the basis for a particular value. for example. Moral communities are problematic because group identity and the identity of individuals within the group are based upon distinguishing group moral identity from that of outsiders. 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. While Aristotle argued that the end of the human person is happiness.
We seek for Spirit in this or that object. We seek for Spirit in the world of space. and the pursuit of lower pleasure as one’s only ends in life. but Spirit is timeless. shiny and alluring and full of fame or fortune. The acquisition of the sports car will typically not satisfy the selfish person... and even when they are achieved. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value. And that is the Atman project.complexity of the real world it is impossible to make appropriate decisions without contextual reflection. the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends. and cannot there be found. he or she must have a better more prestigious sports car which in turn will not suffice. "irrational self. and force us to settle for substitute gratifications. In other words. Thus. the selfish life is immoral and unethical. 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. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. leaves the person with a lack of genuine pleasure. Id. we are seeking for Spirit in ways that prevent its realization. the non-reflective. C. Additionally. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law. 44 . and it cannot be seen or grasped in the world of commodities and commotion.f. in point of fact.. Instead. 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. manipulation of others. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. 43 Perhaps it goes without saying that for an adult. but the Spirit is spaceless. but Spirit is not an object.. at 61. Because these rules exist. This is because selfish person is merely pursuing a sensate addiction when in fact the satiation of a lower order sensate desire for pleasure will never ultimate satisfy one’s underlying need to experience and express Value as such. the accumulation of material wealth. anti-self interest" operates. The Atman Project (1999): We seek for Spirit in the world of time. Ken Wilber." that is. the Author would argue that something like liberal "original sin. and cannot there be found. but rather impedes it.
and equity and equitable thinking. has no definitive serial ordering. Thus. It involves the idea that perfect proportion is found in a 1:1 ratio. other than to say that it is self evident that Value itself must be valued. The second corallary is that Perfect Justice is found in Perfect Proportion. and as expressed in particular concrete values. "An eye for an 45 . Or. or as it is put biblically. once again. Proportionality. and. on proportionality and proportional thinking. in criminal law. The principle of proportionality is found in geometry and mathematics. it must be stated that Value itself. 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. however. all other things being equal. Proportional values involve the value of equality and having rules. of course. compensatory money damages should always equal the amount damaged. 5. or in an equalateral triangle which has been divided down the middle. punishment should be meted out in perfect proportion to the crime committed.guidance or limitation. This leads us to our discussion of Proportionality. while equitable values involve the value of favoring or helping one in need. for example.
in his Ethics. 23-25 Oxford Bible (1977) ( For any harm. Exodus. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. 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. foot for foot. burn for burn. eye for eye. you shall give/have. stripe for stripe.eye and a tooth for a tooth. Ch."44 Aristotle. "life for life. 21. appears to be the first person to formally recognize proportionality as a basis for justice. hand for hand. wound for wound. 46 ."). v. tooth for tooth.
Aristotle. 1130b32-1131b14.. there is a problem with this approach that Aristotle himself recognized. and a case arises under this that is exceptional. 1132b3-1133a13 (1976).treated equal on the basis of formal equality. and there are some things about which it is not possible pronounce rightly in general terms. Ethics.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice.. [W]hen a law states a general rule. then it is right. owing to the generality of his language. 47 47 . in fact this is not possible. 6. Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance. and as he would have enacted had he been aware of the circumstances.48 45 46 See. has erred in not covering that case. "[A]ll law is universal. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there. Equity In his Ethics.46 As Aristotle puts it. Id. Ethics 1137a17-1138a11 (1976)."47 Thus. where the [legal decision-maker]. Aristotle..
is. a rectification of law insofar as law 48 Id.Therefore... "the essential nature of equity.. 48 ..
and how? Here there 49 50 Id."51 And as noted earlier. that rather it is impossible to generate a rule system that would justly take into account every possible circumstance. however. The question remains. when does equity intervene. 694 (1986). 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. 681."49 This of course raises the corallary question. Thus. many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words. Fejfar.is defective on account of its generality." otherwise injustice is simply produced by unnecessary rigidity.50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch. Id. 51 49 . "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. I suggested no to this question. Anthony J.
Having discussed the component parts of the Ethical Matrix in some detail. and a true assessment of need must be an intuitive one. rather only a strictly logical exception. but rather one which is alinear and arational. the next section will deal with a discussion of the concept of possession. the definition of possession in Property Law. we will now move to a concrete but theoretical legal problem. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. accessible both to women and men. is a half way house between purely irrational emotional feeling and strictly rational analysis. This intuitive intermediate way of knowing which is associated with wisdom. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control. Thus. Nevertheless.can be no hard and fast answer other than the fact that equity is based upon need. 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. 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. 50 .52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. 7. to be followed by a section analyzing the concept of possession in light of the Ethical Matrix.
utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. this of course would be a problem." Should this surprise us? No. however. If however. 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. "Deconstructing the Legislative Veto." 68 Minn. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. 51 . 53 See generally. 520 (1984). and that is this: possession is related to control. we find that reality comes at a higher level. this could be troubling to you and I. we try to generate list of definitions of words associated with possession. because all definitions are ultimately circular. Now. for example. 473. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. Girdeau Spann. one is typically thought to possess it." one is again faced with a problem. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. the substance of what the students are getting at remains the same."53 showing that all definitional arguments are ultimately circular and thus indeterminate. Now if we expected to find reality on the level of logic or ideas. Rev. but it need not be. L. is that when one attempts to find an adequate definition of "control.that one has control over personal property. The problem. While we sometimes get to 10 or 12 or so different words. 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. If one analyzes a concept enough. one simply is presented with the phenomenon of "analytic spin.
Actuality: Mind: Understanding: Logic and Logical Reasoning 1. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2.54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention.then we find that there is no problem at all. which deploy as follows: 3. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case. Now all of this seems very abstract. Reacality: Body: Sense Experience/Data: Power/Authority Power Politics Now. and then using physical or political force to retain possession. possession could be considered respectively. At level two on the level of "actuality." 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. returning to our concept of possession." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. a critical realist understanding of the problem can be seen as involving at least three levels to reality. on the "reacal" level. At level three in "reality." one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values. Following the work of Bernard Lonergan. on the three levels above. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball. At level one. He also wishes to thank students from several property classes 52 54 .
Oct. who turns out to be Patrick Hayashi. "Once major league baseball identifies the individual with the possession of the ball. before Popov is tackled by dozens of other fans clawing for the ball.. Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco. ‘Who has the Ball?’ Id. that’s the end of that. "Another 30 seconds pass and finally Hayashi pulls the ball out of what appears to be his pocket and offers a broad smile and asks: ‘Is this the ball?’ Id.000 received at auction for the home run ball. Patriot News Newspaper. 53 ." Id." Id. In the Barry Bond’s Home Run Ball case. (2003 Westlaw # 3207018. clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands]." Id. Petersburg Times Newspaper. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away.. 2003)." Id. 10. St. Team Senior Vice President of Pacific Bell Baseball Park Operations.. "[A] man. (2001 Westlaw # 25594143. as well as this article.. June 26. 2001). Who gets the ball? According to Jorge Costa. "A tape of the homerun scrable. emerges from the pile he has been mining for more than a minute with a smile and appears to say.who have discussed the possession issue relating to a home run ball. A lawsuit is filed and the case ends up settling with a 50-50 split of $450. Both Popov and Hayashi end up claiming the ball. "At first the ball appears to [pop] out.. but then it drifts back into the glove.
55 Suddenly Pudge Rodriguez hits a home run into the stands in left field.Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. The ball has just made contact with the trap of your glove. There are few more memorable experiences than leaving the stadium ball in hand. the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. that fan can expect appreciative cheers from the crowd). and risk injury attempting to catch baseballs rocketing their way. but you slip on a hotdog and lose your balance. and instead of completely closing. 173-74 (1994). and other apparatus to the ballpark to aid in their quest. 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. nets. Many will bring gloves. especially the younger ones. You reach up to catch the ball. 54 . 56 This is obviously an imaginary hypothetical since Pudge Rodriguez. As each ball heads toward the seats. your glove opens an inch 55 For many fans. Richard Skolnik. 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. and will occasionally display incredible bravery (or is it foolhardiness?).
further and you start to bobble the ball. See supra. The ball pops out of your glove and into your other hand. Costa’s position. note . You say the ball is yours because you caught it first. bounces back toward your glove. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. Joe Smith. the second guy says it his because you did not have control of the ball. 55 . Ballpark rules say that the first person to "possess" the ball owns it.57 57 This appears to be Mr.
"63 "leaving a space of about seven fathoms 58 59 60 61 6 Q. Black Law Dictionary.B.59 Although both these cases deal with the possession of wild animals. The argument is that a flying baseball is analogous to a free flying wild animal. 875 (1902). the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish. Young v. fish. Shaw.The case is turned over to a judge who must decide the case based on case law from two previous cases. A fathom is six feet in length. they are the only two relevant cases. in Bruce and Ely. 900 feet would be a length of 300 yards or three football fields long. 607.B. 6 Q. 62 63 56 . for our purposes. 65 N. Bracketed information found in edited version of Young. Hichens58 and State v. namely. Modern Property Law (1999). 606 (1844). Hichens.E.60 In Young v.
. "two boats belonging to the plaintiff.67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id.. were stationed at the opening. "which he was about to close with a stop net."65 At this time. and splashing the water about for the purpose of terrifying the fish from passing through the opening.."66 At this point the defendant took his boat through the gap in the plaintiff’s net and then the defendant completely enclosed the plaintiff’s partially enclosed fish and took them into his (the defendant’s) possession. Id."64 (42 feet).. Id. 57 . Id..open..
"70 Additionally. Chief Justice. 58 . "I do not see how we could support [the plaintiff’s position] unless we were prepared to hold that all but reducing into possession is the same as reducing into possession. 611. If the plaintiff did have possession of the fish. In his opinion. is State v. Justice Patteson stated. 6 Q.68 At issue in Young. "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish. was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant.72 In Shaw. Id.B. the defendant was criminally charged 68 69 70 Id.in the defendant’s net. this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals. 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. Partial control is not enough. In contrast to Young."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. Lord Denman stated.
71 72 Id.E. 65 N. 59 . 875 (1902).
E. to escape.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.76 In Shaw. 68 N. the defendant must have stolen property from someone owning the property. 65 N. took the fish from the owner-compainants’ nets prior to the return of the owner-complainants. 65 N. not that they were formal complaintants."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. 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.with stealing 730 pounds of fish from the complainant’s73 nets. 60 74 75 76 77 78 79 . there can be no theft. the defendants who were not the owner-complainants. to prove theft. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment.79 73 The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken.74 The facts indicate that the compainants had placed "trap nets. 876.E.78 The trial court directed a verdict of not guilty for the defendant.E. Id. In fact the case only inicates that the these parties were named in the indictment. 876. 876. To put the argument more fully. and the state appealed. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets.
from which it was not absolutely impossible for them to escape."80 The court noted that in Shaw. therefore. Id. if any.84 8. that it considered the trial court’s approach to be "unnecessarily technical and erroneous. 61 . "the fish were not at large in lake Erie. Id. Id. They were confined in nets."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net. of the fish escape. 80 81 82 83 84 Id. yet it was practically so impossible."83 Thus. at 876-877."81 The court opined. Id. for it seems that in ordinary circumstances few. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession.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. 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.
This possibility is reflected in the following story: 62 . Daoism was first developed in China by Lao Tzu. The ball has just made contact with the trap of your glove. Suddenly Pudge Rodriguez hits a home run into the stands in left field. 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. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. both the batter. Arguably. You say the ball is yours because you caught it first. The Wisdom of Laotse (1976). Young. but you slip on a hotdog and lose your balance. You (Freddie Fan) have your ball glove on and the ball is coming right toward you. as to who has a right of possession in the home run baseball. The ball pops out of your glove and into your other hand. The argument is of course that by custom. 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.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. See generally. You reach up to catch the ball. Joe Smith. bounces back toward your glove.In the present case we must attempt a logical analysis. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. and Shaw. based on the foregoing precedents. the second guy says it his because you did not have control of the ball. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. and instead of completely closing.
et. 63 . and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. see. edited by Jack Canfield. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. she [my wife] said. The good fan does not lose his temper. 128-29 (2001). The Wisdom of Lao Tzu. Joanne. For a discussion of the Dao in relation to Basketball. Rudy. first pitch to leadoff batter Ricky Henderson. The [D]ao of the Jumpshot (2000). Chicken Soup for the Baseball Fan’s Soul. my Dad. "Honey. we watched the ball drop between us–right in [my wife] Joanne’s lap. To our horror. To a Daoist the above story does not seem improbable. Looking up with a wide grin. I thought you said catching a [fly] ball was tough.It happened this way: My wife. To paraphrase Lao Tzu: The brave baseball player is not athletic. The Virtue of Non-contending 293 (1976). The great player does not compete. The great conquerer does not fight. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. First inning. John F. Dad and I leapt to our feet. But he did the same. The good fighter does not lose his temper. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. al. stepping back to let his son’s dream come true. He hit a high pop-up that came sailing straight at us. Mahoney . realizing that I had to let my Dad get it.
then. absolute control of the ball is necessary before one can assert that one has possession. Only partial control was present in Young. Accordingly. 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. The bobbled ball case. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. is remarkably like Young where the net of the first boat had not completed closed. then it could be argued that in the present case involving the bobbled ball. the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most. and only had partial control before Joe Smith reached in and grabbed the ball. In this case Freddie Fan bobbled the ball. 64 . Arguably then.If we were to follow the Young case. Recall that the court concluded in Young that partial control is not enough." Shaw. Freddie Fan did not have sufficient control to obtain possession of the ball. and therefore Joe Smith as first possessor would own the ball. On the other hand it one could argue that the Young case although generally controlling. In the present case." and "almost" possession is not "possession. in the case of the home run ball. Recall that in Shaw the court held that practical control was enough to grant the "trap net" fisherman ownership rights associated with first possession. practical control should be sufficient to place ownership in the hands of Freddie Fan. is distinguishable. In Young there was a gap in the net of almost 42 feet in length. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw." Following Young. "Almost" control is not "control.
Drew A. fair play. 65 . X (1983): 61-70. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. Peter J. In this case it appears that the batter. Philosophy of Sport. Critical Readings. However.9. Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport. Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport. A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix. ch. and Craig Clifford and Randolph M. Hyland. Feezel. Since this is a baseball game. but recognition. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. First we must identify the persons relevant to the reciprocity analysis. 6 (The Stance of Sport) 125 (1990). in one sense an outfielder is competing with other outfielders on the same team for not only excellence. In baseball. Arnold. have waived their rights to the ball and so they will not be discussed. 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. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship. and the owner of the stadium (if different). and sports related values. Coaching for Character (1997). the team owner. see.
using the principle of reciprocity. in N.between center and left field it is often the case that both the center fielder and the left fielder position themselves to catch the ball. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. then." Subsection (a. one might generalize this rule to apply to all cases involving partial possession of property. how does all of this play out in terms of the Ethical Matrix? First..must be given an unimpeded opportunity to catch [a] kick. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. Thus. In fact. believe in fair play and sportsmanship. One must make the assumption for purposes of analysis that both Freddie and Joe.A. the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder.A. Starting with this operating assumption." 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. Similarly.) 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. as sports fans. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession.C.. 66 . at least in the abstract. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player. When both players have positioned themselves closely enough to the ball to possibly catch the ball. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply. we start with Freddie Fan and Joe Smith. Now. Football Rules." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way.
Additionally. Freddie Fan." Freddie Fan should get the home run ball as first possessor with partial control. relative to the question of who gets the ball "ethically.one must have Freddie Fan place himself in the shoes of Joe Smith. then. ethically. because. take the position that "ethically. With respect to the principle of proportionality. Now we apply the Ethical Matrix the other way. who also is hypothesized to be believe in sportsmanship and fairplay. believes in the "fair opportunity" rule. at least in the hypothetical . the discussion is relatively strait forward. with respect to Utility. he. Joe Smith. With respect to the remainder of the analysis under the Ethical Matrix. Freddie Fan would be entitled to the home run ball. that is. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. It can so be applied." Hypothetically. Joe Smith. and therefore the proportionality test is met. Would Joe Smith." he. in a similar situation. and thus recognizes that "after the dust has settled. as a matter of rule based ethics is legally entitled to the home run ball. 67 Finally. Joe Smith as a sports fan. had partial possession of a home run ball. No further discussion is needed. In my judgment. placing himself in the shoes of Freddie Fan. would come to the position. and hypothetically all others. the fair opportunity rule. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. the principle can be used in the sense of creating a general rule. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances. Joe Smith would be ethically and legally entitled to the ball. that Freddie Fan is entitled to the ball. Joe Smith. and takes comfort in the conclusion and rule that next time. understands. if he. First. which can be applied relative to both Joe and Freddie.
68 . 10. the "fair opportunity" rule for the possession and ownership of personal property is developed. A Universal Natural Law Ethic.presented there does not seem to be any need for contextual equity. As a part of the analysis. and then ethical analysis of the problem presented in the example. the result reached in the policy analysis section passes the muster of the Ethical Matrix." The Article then involved a linguistic. policy. Conclusion This Article began with an overview of The Ethical Matrix. The Article then proceeded with an example involving possession of personal property and a "home run ball. Thus. It is concluded that the Ethical Matrix is a valid natural law ethical tool for engaging in public policy and legal analysis. and therefore the fair opportunity rule applies as stated.
traditionally. families of employees. If one takes what I would call a “property rights” oriented view of the Corporation. and even. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. local and regional communities themselves. is to profit maximize for the benefit of the 69 . then. etc. The Corporation’s typical goal. legally. and then trying to fairly balance or adjudicate their respective interests.” Cynically. often. traditionally. Typically. but. also. The argument is that. only the stock holders would be prioritized or even included as stakeholders. but also in terms of long hours. 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. and perhaps only goal. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders. Corporate work places are dehumanizing both in terms of the type of work that is done. consumers of products.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. Corporate employees. Often.
In a competitive market. The solution to this problem in my view is to at least allow. a “duty-conscience rights” oriented view of the Corporation could be developed and used. if not require. in the guise of short term profit taking. “The Z Corp. 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. first of all all of the empirical evidence that I have seen indicates that in most industries. In this instance. one gains the edge by having management and employees who are not merely competent. is that the Corporation would not be profit maximizing. but are on the cutting edge. medium. and perhaps even in the short term. however. How do we resolve this condundrum? Well. which is irrational in both the medium and long term. Alternatively. discussed previously in Chapter IV .” The Business Judgment Rule would be based on the Ethical Matrix. especially. corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. but also in making ethical judgments to promote the Common Good. and Truly Worthwhile. the restructuring of Corporations to create a new type of Corporation. and the Good as a Critical Thomist Ideal. that. The purpose of the Corporation also would be to promote the 70 . from a “liberal” point of view. corporate fascists often fire employees and break up companies for no rational reason at all. The problem with this second approach. Unfortunately.stockholders. and long run. arguably. and. other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. the shareholders.
I would argue that overall. would of course be “profit moderatizing.. disability insurance. with a values orientation. A Z Corporation would be able set up subsidiary corporations which could provide health insurance. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover. or on the Chicago Mercantile Exchange. and The Good as a Critical Thomist Ideal. for example. The Z Corp. at below market rates. and I suggest. etc. Of course one might respond that one is comparing apples and oranges. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. would be “irrational. This stock would produce no dividends. A law firm which was a Z Corporation. Finally. Another objection might be that ethical decision making in the context of a Z Corp. would produce a greater profit than its older cousin. no more than 20% of the stock would be publicly traded. such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. Capital would be raised primarily through the use of Corporate Debenture Bonds.“Common Good. and an ability to use the Ethical Matrix.” However.” Here the rather obvious response is that ethical decisionmaking in the 71 . The Bonds could of course be publicly traded either on the New York Stock Exchange. in an attempt to meet the objection head on. because the management literature almost uniformly suggests that ethically run corporations produce more money. which would be give preferential tax treatment with respect to the interest produced. life insurance.” Additionally. law professors. The Truly Worthwhile. Z Corps. The trustees would be experienced business persons. One might argue of course that a Z Corporation would not be “profit maximizing. and.
are totally unrelated and thus would diversify the income stream of the parent Z Corp. bonds be given preferential tax treatment. traditional non-profits such as Universities and Hospitals could incorporate as Z Corps.context of the “Ethical Matrix. It is an objective. and in conjunction with the subsidiarity doctrine which diversifies responsibility through society. will be the way of the future. or offshoot. operations. Additionally. universal. I think that we will find that Z Corps. spin-off. will be the end of both unreflective fascist capitalism. perhaps even treating the interest as tax exempt. natural law. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. and. I would reiterate that Z Corp.” is objective. type way of thinking. unreflective fascist communism or nazism. and have wholly owned subsidiary Z Corps. in the case of economic or other cyclical downturns. 72 . Finally. or alternatively. which involve related.
Does this really make sense? Logical positivism at its best. Form. or perhaps." Now in order to avoid "Quantum Spin." and "Substance. So perhaps we might wonder. denies the existence and efficacy of metaphysical principles. deals with formality. "Form." as such is defined as "Formless Form. let’s talk about these concepts. but the problem itself. without taking the time here to trash Ockham’s Razor. the logical positivist. or structure. Substance." So. is defined as "Empty Form." as such. not only how we solve the problem. not only how we approach the problem." Now. Use the wrong concepts and one’s mind goes into "Quantum Spin. tells that reality is manifested primarily through words or language. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle. typically. on the other hand. found in Quantum Physics. or 73 . suggests that the meaning framework that we bring to a problem affects. surfaces. the ideal. deals with depth.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. Form and Substance. on a Quantum Level. Ken Wilber calls this "flatland. or perhaps even hermeneutics." I suggest that we at least try out two very interesting metaphysical concepts. then.
I’d probably call that scrub. what is that?" Josh responds. what’s the difference?" Uncle Chris Stluka." Uncle Chris comes along. Bill Shakespeare thought about the same question when he asked in one of his plays. true. Texas ( home of Shinerbock Beer). But before you decide." Now. shrub. he says. "Well. Josh (age 9) and Cristina (age 12). and although not literally. I think you have been hanging around Dad 74 . course. In describing this bush. and beside the road that you are walking on is some "scrub. I think that that just might be a shrub not scrub. "Would a rose by any other name smell as sweet?" "Uncle Chris. Crista asks. Now at this point in the story. however. "Dad. even though both seen to have some relationship to Texas in this story)." Crista then says. I would call it some shoots that are sort of clumped together. "Bush. is lots of fun. says. scrub. would say that if something is growing on the side of the road which is larger than a grass or a weed. a bush (not to be confused with President Bush. and you see some scrub. coming from Nebraska. Texas. Well. with leaves sticking out in various places. where my wife’s folks live. along comes my kids. This yarn involves members of my family. from my point of view. "Mom calls that scrub. and my folks live down there now in Fort Worth. and although he is from Texas. wise in the ways of the world. Now the logical positivist might doubt that these two concepts are really different. my wife is from Texas. You go for a walk. and I think that on a good day my wife’s relatives from Shiner. but is smaller than a tree. is some scrub. Crista.reality without form. let’s say for the sake of argument that you are a Yankee from up north (like me). "You know Josh. Now. let me tell a yarn that includes a couple of examples. and for some reason your out for a walk in Shiner.
the Mom now appears. "Well. "Wait a minute Dad. we’re all supposed to think about things like that." says Dad "Allright Dad. the same." "scrub. let’s put the pedal to the metal." however." Uncle Chris. that why God gave us these noggins to think with. Dad. I just give up." "See kids. where could you have gotten such an idea." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. how is this going to help me get a job. let’s say that I believe that the form-substance distinction exists. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary. its getting hot– remember we’re in Texas in July." "Josh and Crista. "Yeah Dad. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids. "bush. Crista. all three words mean the same thing." (Judi. kids. is this one of your tricks?" says Josh. "I give up. I want to see some practical results here. now listen to your Dad. and Uncle Chris. So. At this point Dad cuts in." says Crista." says Dad. and of course Scruffy. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. "Now Crista." says Crista." says Uncle Chris. I think Scruffy (the Dog) wants to go in. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. "Tricks Josh?" asks Dad?. "Dad.) "Well kids let’s get inside and have 75 . "Well. "Yeah." and "shrub. in form there is a difference. but in substance. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad." that is." as a matter of "substance.too much. "Well. and a red convertible car on my 16th birthday?" responds Crista." says Uncle Chris. really. "the point is that although as a matter of "form" we have three different words for a "bush. your Dad solved it.
. 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. "Well Chris. even property lawyers." say Judi. "Mom. "Yes. is there really any inconsistency here. we raised our kids to think critically and question authority.. were trying to create a joint tenancy with you and myself with some property you already owned." says Mom." says Dad." "Whoah there Judi.." says Uncle Chris. "Mom. responds Dad." says Crista.?" says Dad. "Yeah Mom. "Well Crista. we’re discussing the form substance distinction here. Tony.. O.. "Now wait a minute" says Uncle Chris." says Uncle Chris. Judi. I think using the Ethical Matrix we have to weigh the utility of staying up late with the down side of you sleeping in until noon tomarrow when we are planning to go into Victoria for lunch and to a movie. "Well. Dear. and how does that work?" says Mom.." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions. and we haven’t quite got through yet." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up.your late night snack and get ready for bed." "Oh.." say Josh. Josh.m. "I for one want to hear the end of the discussion about the form-substance distinction. "Yes. does this mean I call stay up until 2:00 a. the practical point Cristina Elise is that lawyers use the form-substance distinction all the time.K." says Mom. Mother. we’re a Critical Thomist family." say Josh. "lets say that you.. 76 . couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. but from the point of view of the "truly worthwhile. "would a Mom by any other name smell as sweet?" "Josh mind your manners. I like the utility of have three popsicles for our late night snack rather than two. "Well. well.
the survivor automatically gets the other tenant’s share.K. "Me too Dad. one with a strawperson." says Crista. "O. "I think I’ve got this one figured 77 . "Well.K Dad. says Crista." says Dad." says Mom. "a joint tenancy could not be created by one person who already owned the property conveying part to another." "O." says Dad. Therefore the four unities could not be satisfied.K". Crista. Tony.K. and interest.K.m." says Crista. the point is. title would already have been conveyed to you the grantor.. one with a direct conveyance." "O. in fact. "Well. it getting late and I want to watch Law and Order at 10:00 p. I think I’m getting this. not to cut the story short. in substance they are the same. its where two or more persons hold real property in common. at the traditional common law. the two transactions are different. this is because the unities of time. says Uncle Chris."O. title. "that although in form. who then conveyed the property to the grantor-original owner and the other person at the same time. what does this have to do with the form substance distinction. "Well. so?" says Judi. "O. "You know"." says Dad. Tony. the problem was that if you already owned the property. But what is the point." says Dad. If the two transactions are the same in substance. but as joint tenants. "Now. possession. "Now. which of course means that unless the tenancy is severed before one of them dies." say Mom." who was a trustee. I think I got it. why not just say that the original transaction was O. to create this joint tenancy of yours?" says Judi." says Josh (as he rolls his eyes). "What’s a joint tenancy again Dad?. "Alright. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson. prior to your attempt to convey it to the other person." says Dad. all have to be satisfied at the same time. thus satisfying all four unities all at once.K..
" says Dad. let me think it through." "Well. "No." go ahead Tony" says Uncle Chris. their minds filled with jurisprudential sugar plums. let’s continue this discussion inside. "and in fact that is just what has happened." "The law is like this all over the place. "You know I had it but then I lost it. says Mom. you can create a joint tenancy by a direct conveyance without using a strawperson. you’ve got the floor. 78 . interesting. and you still get the substance." And so the Fejfar-Stluka clan." says Tony. I don’t want to miss my show. Well." says Mom. go ahead. did you want to chime in?" asks Tony. head on into the house to watch Law and Order. "Judi. Lawyers are constantly arguing that something is or is not the same in form or substance." "Hmmm." says Chris. By modern common law and modern statute. then you know what? they change the rule so that the form does not have to be met. "Well." says Tony. "if a court or a legislature chooses substance over form. do I get to guess the answer?" "Sure Chris.out.
but somehow I think the whole process worked in reverse. So. believe me. Missouri–a good mid-western Jesuit school. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. 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. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). This was my first exposure to priests in tweed sports coats. Carl Dehne.. in Kansas City. was my freshman theology professor. I stopped by Father Dehne’s office. Anyway.D. before you know it. in Lincoln. for a 79 .J. Nebraska. I was teaching mentally retarded children’s C.C. S.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College. the priests wore their collars and blacks even while taking their showers. its not that I thought that I would be manipulated the Good Father. Don’t get me wrong. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends. because.
A. Somehow." I replied. Oh.E. no.. fraternity parties on Saturday nights and I think I’d have a conflict. when you’ve been eating dormitory food. I don’t see a problem with that. Oh. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade." replied. I couldn’t figure it out on the spot. he"s another Rockhurst student who is already teaching. the thought of eating good Italian food was beyond the imagination. C. that is the Planet Dune.D. "O. till 6:00 p.m. and me Paul Atredeides. Duncan Idaho.m. so. "maybe around 9:00 o’clock or so. that sounds great Father Dehne.R. Father Dehne. Now there was a quid pro quo.. and believe me. and you can get your Sunday mass obligation out of the way. there is an opening. Dehne looked at me. of course. is from 5:00 p. I had already heard about Jenny’s Italian restaurant down by the river.k. or was there a deeper plot. Father Carl.R." said Dehne. "Great. Father Weiss. and then you. "what time do they start?" "Oh.. can go over to the J." J. the point.C. I thought to myself. you know." Then Dehne says. sort of quizzically." "but you know. Maybe we could get Father Weiss to come along. that sounds good.D. Then he said. so I said . I don’t know. I have S. and raid the refrigertator. Now was Father Dehne bluffing? Thinking that I would back out. once I knew Weiss was invited.couple of big university masses.C." "Well then it’s perfect. program across the street on Saturday evenings. was Kansas City Arrakis." I gulped. metaphorically. we have this mentally retarded children’s C." I said. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. I and John Blando. I thought to myself. Not the President of the College. what is 80 . then I say mass for the kids. Now what was I going to do? "Well. Well. "Oh.
and an amateur theologian. I think since Vatican II we just expect vocations to fall from the trees. Now. "Well. the first think I’d say about Starwars is that unlike Star Trek.D. at least not consciously. Well. thing and be a Crucifer.. The Force clearly being the Dao. "Oh. almost as if He doesn’t exist. "Rush program. and. Now I heard that. the Jesuit Residence. . 87 John Snowden used the term “Jurisprude.” rather than “Jurisprudentialist. "O. Dallas? "The J. of course the answer is that Carl Dehne and I took the C.." said Father Carl. is it Father Carl?" I asked.C. I muse about Starwars a lot. what does this have to do with Luke Skywalker and the Void.this. "Oh.R. only the Daoist Force." And so I did." was all I could say. Evil is Ying and Good is Yang. 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. for once at a complete loss for words. Good is pitted against Evil. Father Carl. but what the hell did it mean? I couldn’t figure it out. "This isn’t part of the Jesuit rush program.K. I’ve been hooked on Starwars ever since. For some reason. kids Nick and Billy to see the original Starwars movie when it first came out. "whatever could that be?" "Well." replied Carl. Starwars is clearly a Daoist Universe.D. Tony. or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force. Now." said Father Dehne.87 a bit of a philosopher. looking for deeper insights.” when I was in law school. Now.C. being a jurisprudentialist. you know. what would that be?" I asked. Not much talk about God." I said... I find the term “Jurisprude. however.” to be a little bit 81 ." I guess I can do the C. I just don’t think that is done anymore.
or otherwise. as perhaps Henri Bergson might put it. own face. Yoda. or. what’s the point? Well. where Kirk is found and (rescued?) by Captain Picard and Riker. within what he thought was Vader’s Helmet. but it is a different kind of “prudish. 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. Thrust. Campbell’s book on Myth). not unlike Beowulf. Luke goes through a variety of training exersizes.Into all of this steps Luke Skywalker. the battle goes on. Luke is shocked. what is my gloss on this situation? Well. In the Hollow of the Tree. The Absolute. one enter encounters a different world. on his Shamanic Hero’s journey into the subconscious (see generally. Finally. So Luke descends into the bowels of the earth." in substance. 82 . in the hollow of the tree must you go and say more I cannot. Luke then bends over Vader’s body and takes off his mask. after death. Luke’s. and to Luke’s utter surprise. Good Guy. 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. In the lore of the East. only the Void. Luke lights up his light saber and engages. in the Underworld. But before Luke fully developes his powers he must first be trained by his Daoist Master. Hell. as such does not really exist. the point is that in the East. "Luke. and Hero. He runs out of the Hollow and back to ordinary reality. So. and then one day Yoda gives Luke an unusual instruction.” for me to use. One could describe the Void as a place. Hell is more of a state of being rather than a place. Now. finds his. apprentice Jedi Knight. When one enters The Void. I would say that the Hollow in the Underworld represents the Daoist Void. Luke vanquishes Darth Vader. riposte. parry. says Yoda.
it’s the other other way around. and then to make amends for what we have done. My gloss on Star Wars and Luke Skywalker. back to Luke Skywalker. I could stop here and play it safe. I personally don’t think that Hell. but for us. So there it is. after death. But. 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. in The Void. Luke finds Darth Vader. Rather than the Void imposing its reality on the participant. with a little luck. but I won’t.place. As many New Age writers point out. then. maybe you or I will find Jesus in The Void. for one who is in The Void. In Jungian terms. This is of course confirmed when Luke takes off Darth Vader’s mask. get our psyche shaped up. Instead of finding God. Just like I tell my students in my law school classes. or an Angel. food for 83 . if you have been a remarkably good person on earth. If you are genuinely a horrible person as a result of your own free will. "The Sermon on the Mount. like Yoda. and He. as such exists." Jesus transcends all Karma. If nothing else. not only for Himself. as Fox points out in his book. who and what that person really is. will help us to withdraw our projections. I do believe that The Void exists. So. The Void immediately manifests back to the participant the particiapant’s projected Shadow. "What goes around comes around. Now. that is his persona (Darth’s? Luke’s?}. Who you are is what you get. then you will find Heaven in The Void. or a Goddess or a good friend. So. his enemy. and finds within the self which is Luke. we judge ourselves in The Void. even if we have screwed up. it’s a little more immediate. Where does God fit in? Well." except of course in The Void. God doesn’t judge us. The Void immediately dishes up for the participant a reality which reflects at the core. On the other hand. his nemesis.
and.thought.J. Papers by Bernard Lonergan. S. knowing involves at the least a set of three interrellated cognitive operations beginning with experience. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based. upon the Critical Realist philosophy. "Method in Theology" (1971). A Study in Human Understanding (1958).. continuing with understanding. CHAPTER VIII CRITICAL THOMISM. ‘Cognitional structure. neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis.88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest. as originally developed by Jesuit Philosopher Bernard Lonergan. in part." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy). and then culminating in a third cognitive 88 Bernard Lonergan. 84 89 . is the author of "Insight. rather.’ in "Collection.
90 85 . see ‘Cognitional Structure’ in "Collection" above. understanding. as outlined by Lonergan. or reflection.90 For a general discussion of the cognitional levels of experience. and judgment/reflection.operation which is judgment.
Suzuki. and on a third level." 86 . is consistent with other ways of relating to the world around us. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. a matter of logic and policy. one can see that law can first be seen on one level as a matter of power and authority. Ecology. body. rather reality was thought to be found on three levels. at least Existential Hell. "Boomeritis. 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position. postmodernism itself. Attempting to consider these categories in terms of logical questions relating to law. but in some sense perhaps Hell."95 All of the foregoing can be illustrated to some degree using the 91 See. and on the third level. 683 (1986). 92 93 See Ken Wilber. citing." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough. "Insight: A Study in Human Understanding. Ken Wilber. Fejfar.T. and judgment. and. and spirit (intellect). For example. in analyzing law.. on a second level.. mind. the notion of Being valuing found in Maslow is also similar.") (p. why. a naively idealist view of the "already-out-there-now-real. it is at level three. on level two we would find actuality.? Consistent with Buddism. and Spirituality" (199x). one would ask the question. on the first level one would ask the question how?. D.This tripartite structure of experience. understanding. on the second level. "Sex. a matter of values."94 Finally." 251 (1958). can be found there as well. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding.92 Additionally. one would ask the question. Perhaps Nirvana or Heaven can be found at level two. we in fact find "reality. what?. Actuality is discussed in Erik Erikson’s psychology. "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act. Bernard Lonergan. Anthony J. but in my view could also be described as "Zen Realism." 681. on level one we would simply find "reacality" or illusory sense experience93. 128).
suggest to you. in the first instance. Because of the refraction of light.chart below: Fejfar 3. and chemistry. You reach the shore of the pond and stick the branch into the water. because in fact the laws of biology. The branch is six feet long and straight. perhaps the empiricist or the logical positivist doubts that there is a difference between. in conjunction with past sense experience. "sees" that the branch is "crooked. The following illustration. taken from Lonergan’s work may be useful. Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight. You are going to a pond full of water and you pick up a tree branch on the way. Intellect 2. experience and understanding. On the other hand. that the branch "really" must be straight." This is a perfect example of how one’s mind can in the same 87 . Body Operations Reflection/ Judgment Philosophy Critical Thomism Law Levels values Logic Levels Realty Levels Why? What? How? reality actuality reacality Understanding/ Analysis Experience logical positivism idealism empiricism naive reacalism logic/policy power/ authority Now. Mind 1. another part of your mind which is utilizing current sense experience. Newtonian Physics. the portion of the branch below the water looks crooked relative to the portion of the branch above the water.
how is it that we can differentiate between the level of reflection or judgment on the one hand.1992) 88 . in distinguishing judgment from experience.context "experience" the data of sense on the level of experience. First. 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. it is apparent that experience by itself. Hans Georg Gadamer. Now all of this raises a third question. "Truth and Method" (2nd Ed. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest. As Gadamer points out to us. and at same time on the level of understanding "understand" the data differently on the level of understanding. as such. 96 See generally. 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.96 knowledge cannot come to us apart from mediated meaning categories. These occur primarily on the level of understanding. is merely a collage of mixed sense impressions. and the levels of understanding and experience on the other.
it is also my reading of the literature that an "alinear" or 89 100 . An Excursion Into Metaphysics" (1985). In some sense judgment and reflection reach beyond mere understanding and mere sense experience. quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly.99 While this may sound far fetched to the man or woman in the street." 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. integrate them." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982)." 11 A." citing. First. 274. but I can’t find the cite for it.A. Nick Herbert. "The Atman Project.T. There at least two possible responses to this objection. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory.100 So perhaps as the philosopher Henri Bergson suggests. "Quantum Reality: Beyond the New Physics. one must "become" the rock. 285 (1929) (quoting. 359 (1925).J.Q.Now. it is at this point that the logical positivist might object that there is no real distinction between understanding at level two and judgment based. in fact. The Theory of Judicial Decision: or How Judges Think.. Anthony J. perhaps it doesn’t. In any event it is clearly a Zen Realist type statement. "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education. Radin. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. from a Critical Thomist point of view. Fejfar. Zen Buddism suggests a similar procedure when it says that to know the rock. Ken Wilber." 14 Cornell L. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. Fejfar. Judge Hutcheson. 99 Or." 158-161 (1999) (in the Collected Works of Ken Wilber. at a distance. see Nick Herbert. I’m sure that I read this "koan" type statement in a book by D. "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance. sublate98 them. and transcend them to form a judgment of real fact or a reflection on or of deeper reality. 357. it is possible to 97 For a discussion of intuition. Suzuki. see Anthony J. See also. Perhaps. However.B. and. or reflective knowing at level three. Volume II).
Instead there would be a statistical spread. Now. On the contrary. rather. will produce probablistic variances. one would be clearly embarking into measurements which are more clearly taken in the quantum range. Thus. that such a probabalistic universe is unverifiable. it is not possible to "send" a perfectly linear message. the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like. if we were to take the equation Force=Mass x Accelleration. then. It is possible. However. and with a Force measuring device at the bottom of the ramp. Because of Heisenberg’s indeterminacy theory. 90 . However. if sufficiently precise measuring devices are used.have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. the conventional scientist might object that we simply need a more accurate measuring device. in this sense that Bernard Lonergan states "asymetrical" message can be sent. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. this is perfectly consistent with "intuition. only a probabalistic one. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. and then we would get identicle results. One might object that from a Newtonian point of view. and quantum indeterminacy. and thus would clearly be more bound by quantum indeterminacy. and a timer." since all that quantum physics seems to postulate is a probabalistic universe anyway. using classical newtonian physics. I would argue that every conventional experiment that is undertaken.
two. 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. Panacea or Plague. Fejfar. remain. For a discussion of critical realism in the context of management decision making. In doing so we can make both judgments of fact and judgments of value. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. "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. A second way of distinguishing levels two and three is simply through the use of logic.. further questions. see. B. Anthony J. Stephen A. Barton. compared. Radin. B. Symbolic logic reigns: If A. or even in some cases overrule logical "rational" results and reason to judgments of some type. In a judgment of fact it is apparent that somehow we are able to make probabalistic assessments of whether or not a certain fact or set of facts exist. but rather only reasonable judgment." 17 Del. therefore.f. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. Dennis J. C. Block. A Question of Horizon. Given two seemingly logical explanations of the data. At level one is a logic of movement or operation. Nancy E. or solutions to the problem. A. At level two. then. 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. It is not purely The business judgement rule does not require "perfect" judgment.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. "Corporate Voluntarism. It is here that language and interpreted data are collated. On level two there is a logic of analysis. Ideas are analogized and distinguished. and three. My argument is that a different type of "logic" operates at levels one. however. Law Journal 859 91 101 .
" Put another way. applying hermeneutics. On level one on the level of operative logic. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. when the probability level of a judgment goes high enough in one’s mind. even though it really is not. Jr. Geoffrey C. three. causation. for example. and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. the standard of care is one of reasonableness. Hazard. or negligence. Cramton. 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. 92 . the probability judgment "kicks over" into a de facto absolute judgment of fact. breach. On level two. Additionally. two. As Lonergan puts it. interpretation. Instead. somehow sense data. 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. the sign and the language it contains simply commands us not to walk. Now.syllogistically logical in nature. Susan P. one can distinguish levels one. logically. if it turns out that our provisional judgment based on probability is not correct. "The and Ethics of Lawyering 156 (1999). as Lonergan points out. Roger C. let us consider a "Don’t Walk" sign in a crosswalk. So. and damages. it is not true that we are incapable of making better probabistic judgments or assessments. Also at level two we must assess the underlying policy of the rule "Don’t Walk." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers. Koniak. in the context of decision making. with the elements of the cause of action for legal malpractice being: duty. it is simply the case that in this instance we could have done better..
is it not the case that "judgment. The above then is consistent. "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. Here. so does freedom. Now. suggests three levels of different logic. Level three reason or judgment intends value. and a level three.103 Thus while level two intelligence intends an analysis of policy as such. underlying the policy. at this point we again have to question whether there is any difference between level two operations and level three operations. and. at level one we ask How?." for example are purely "reified" terms which cannot be taken seriously. "Method in Theology" 34 (1971) ("Value is a transcendental" notion)."). perhaps. C.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article. interpreting language. Anthony J. the value or values. with my earlier thesis. so does protection of human life and of human property. The Critical Realist position is that level three judgment or reason in this context intends value. whether or not a "lamp" is a "reified" object and thus not "really real.assumption that there are reasons or policies underlying rules in general. we ask Why? The logical positivist will undoubtedly ask." and "reflection. All these values would be taken into account in assessing policy. What?. and in the final measure determining which outcome is the most "logical" at level two.f.. the policy underlying the "Don’t Walk" rule in all liklihood is to order the movement of persons and vehicles at intersections and to prevent unneccessary accidents. at level two we ask. Critical Thomism. 93 104 . and in this context. Fejfar. Thus. that from a purely logical point of view.104 While previously I spent an entire article 103 Bernard Lonergan. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. at a deeper level it can be judged that order itself has value.
addressing the foregoing type of objection. As a matter of both epistemology and cognitive psychology logical positivism is inadequate.105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid. 94 .” The idea of levels of growth or maturation or 105 See. logical positivism can offer us much in terms of level two analysis. let alone “doing” Critical Thomism as a philosophy is the “Level Thing." In the final analysis. but in the end it is an incomplete philosophy compared to Critical Thomism. CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. id.
the lower levels are not lost.” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos. itself. rather they are included in a new and higher integration. So. What you find in both Piaget and Kohlberg.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg. Kohlberg. Imagine that you have a computer with a desktop.” etc. and later in Ken Wilber’s work. really only goes up to level 6. in his ethical theory. Now this is very hard to conceptualize for a lot of people but perhaps this example might help.” 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. is not only the important concept of levels of thinking or concsciousness.” Sublation means that at every level the higher level transcends the lower level or levels. 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: . of course. adds something new. “Fishing with Dad.” another. which. On the Desktop there is the Icon “My Documents.” You then double click on the Folder Icon “My Photos. So. themselves as Icons. One being “On the Pond. but also includes and integrates them. Imagine that one folder is the Folder entitled “My Photos. but also the notion of “sublation.
This is the level of sense experience. which is a gestalt of the first two operations (levels one and two). and a task menu pops up with different operations. at the “Folder” level. let us imagine that a new Desk Icon has been created. So. can access a remote digital camera which takes a picture.” (do this in your imagination if it helps) at level one. if you understand what I am trying to get at above. or alternatively. Now. You then upload the level two “processed” picture to level three. let’s say your “mind. So. but which also adds a new “intuitive” operation which gives more depth of field to the picture. on the subfile/picture level. or File Icon.. there it is. thus creating the gestalt Desk “Pond Icon” at level three. you immediately upload the Pond picture to level two for saving to memory and processing. perhaps your computer is programmed so that you can process. But the other trick is this. “understand” the picture by cropping the edges. Folder Icon. i. you are about half way there. At level three at the Desk Icon Level.e.Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So. deepening the colors. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. At each level let’s say that you can right click on the Desk Icon. On this level you take a picture of a Pond and then either save it to memory at level one. and then upload it to level two for processing. at level two. Of course if we were dealing with a “picture” which involved all five senses at level one. using a photo editing program. ala Bergson. changing the contrast. A little example of how you might organize your mind as a Critical 96 . perhaps not unlike the “image schemata” discussed by Lakoff.
Tom has spent a lot of time thinking about Sir Thomas More. Use different metaphors and examples. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired. In this article. 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.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering. what he calls “archetypes.” As Hans Georg Gadamer might put it. Good luck. such archetypes function as “forestructures of 97 .” help to structure and partially constitute our individual “way of being.” It is in our own unconscious that “deep structuring” symbols and metaphors. Try it all in your imagination.Thomist. I’d like to take a Chancellor of England under King Henry the VIII. 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. Experiment. however.” and collectively.
there are two choices: Simon Peter or Doubting Thomas. to change baby diapers. So for our heros we must have heros who. most of us spend a good deal of our time trying very hard to do the right thing. They want the kind theology that helps to get and keep a good job. people who belong to the Alter Society. and not Thomas More.” not Thomas Aquinas. the Ushers. somehow make it through the next day. and then later on. Thomas L. when you think of realpolotik in the Catholic Church–people in the pews. in doing this. No. Now. Shaffer. however. we 106 See. what do you look for as your role model. that’s the ticket for us. to help clean up your gradeschool kid’s puke at 4:00 a. Perfect imperfection.” they think of Saint Thomas Aquinas and the Summa Theologica. People might not admit this. must some how have failed–otherwise we’re damned. but I think this is it. Critical Thomism holds of Saint Thomas the Apostle. you come to understand that one of the primary criterion for their theology is durability. loved and adored. the Knights of Columbus.” 98 . 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. I would like to suggest another type of Thomism. Now. e. they might not even know it consciously. and then. for many of us. the Readers. “On Being a Christian and a Lawyer. when people typically think of the idea of “Thomism. at least part of the time. people who say the Rosary. that is “Doubting Thomas.m.. in the end..g. even idolized (in a positive sense).knowing” which help us to think and to know. in the morning.. but still failing. your hero? Well. to help a baby with the colic get to sleep at 2:00 a.m. Now. in the morning and still stay up with him.. Now why these two? Well.
as a Critical Thomist. believes that reality and law must be based upon authority. whom he relied on. shows up. Whether one reads the Bible as literature.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. I don’t mean they were literally apostates. only metaphorically. human in the first instance. the legal system. as you may recall. insisting that the early Christians observe both Kosher as well as adult circumcision. Now. of course. Simon Peter. experienced. essentially. takes a stab a Lawyering. Jesus simply says. It takes the adept Lawyer Paul. Now. and side. before he (Thomas) would believe. Simon Peter is the Archetypal Imperfect Authority. it means that we have two foundational apostolic role models for Lawyering. Simon Peter denies Jesus three times before the cock crows. we have Simon Peter. rather. on the other hand. and insists that Thomas feel the nail holes. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law. later on. feeling.” who Jesus obviously loved. feet. is the one who after the resurrection. what does this mean for we Lawyers. and for the Legal System. The Apostle Thomas. who. This is Petrine Lawyering. and legal 99 . and who stayed the course and stayed in the Church. and yet he still is the Rock upon which Jesus builds his church. First. What we want are the two “Apostate Apostles. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. Instead of condemning Thomas. or experiencing. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. you Thomas have believed because you have seen. felt. rule based in the second instance. reasoning. Jesus. Authority. Well. or a Divinely Inspired. is the basis for law. blessed are those who believe without seeing. refuses to believe that Jesus has resurrected.
For them the Pope is it. When Faith and Reason “appear” to be at odds with one another. Reason Rules. the Apostle Paul. For Critical Thomists. The Incarnate Word. and of Papal Authority. guided of course by the Holy Spirit. well. What is right is what the authority says is right. And you know. at least archetypally are seen as ruling on the basis of authority. but because he’s. “Creative Form. This was Jesus’ promise to us in the Gospel of John. taken as true. On average the Popes seem to do pretty well. The Divine Word. instead it is Faith that Faith and Reason are totally. Simon Peter. This is not apostacy as some Petrines might think. this is simply a temporary glitch. Faith and Reason are assumed to be.” For the Critical Thomist. sooner or later we will sort 100 . as the Logos. completely and absolutely and ultimately consistent. on the other hand. lawyers or no. conventional people. and perhaps typically are. Divine Reason. it really isn’t such a bad bet. rather. concrete people. God is “right” not because He’s God. totally consistent. Judicial Authoritarianism. and in doing so on Papal Authority. Although this may take a little time.. are remarkable suspicious of both the Petrine outlook. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. that’s the ticket. and presumably God the Father. they follow Jesus. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. as a given. Just let the ancient wheels of the Church roll along themselves. all of whom. or in Platonic terms. instead of following the Pope. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. right.practice. There is a certain school of thought that Rome rules best when it does nothing at all. Critical Thomists have Faith–it’s just not Faith in Authority. bet on Simon Peter. and perhaps. Now. The Critical Thomists.
things out and we will find a reason based way of reconciling any apparent contradiction. Doubting Thomas. This is the intellectual approach to living. and thus “know” reality. A totally different way of thinking. from my point of view. Now. As Lonergan tells us. by starting with experience. then go to the authoritative statement or rule. and then finishing )(provisionally) with judgment and reflection. going to understanding. One suspects that the Petrines start with the person of authority. not because we have unthinkingly and unreflectively followed authority. 101 . Saint Thomas the Apostle is the Patron Saint of Critical Thomism. and then deductively apply the rule to their experience. If we are to be judicially damned or canonized it is because we have thought things through. Although Lawyers certainly use authority. Our Patron Saint is the “Apostate” Apostle. we think critically. and then finally to reflection or judgment. it is my argument that they Lawyer best when they start with reason. going to understanding. and reason inductively starting with experience. how does “Doubting Thomas” fit into all of this? Well. and inductively.
in person. No. I’m going to tell you the story of The Hangman. religion class. and I think it had the appropriate effect. Of course I don’t remember the original story as such.D. I mean. Black boots. Now. Now. I told a story something like this to one of my law school classes last year. black hat. A kid’s word game? For most of us perhaps.C. but I guess its fair to say that I also saw it. black silk shirt. But not for me. just to make it fun. black cotton cloak. But. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. involves a story that I first heard in junior high. black jeans. maybe 8th or 9th grade. I sort of heard it. Perhaps he reminds you of The Shadow. but I do think I’ve got the general gist of it. the details.CHAPTER X THE HANGMAN The Hangman. the dark side radio hero. for me The Hangman. the first thing to know about The Hangman is that He always wears black. black gloves. the 102 .
He stopped and looked. of course. Everything was black about him. Hello stranger. Back in the Old West. The town had a dry goods store. in Nebraska Territory–the Kansas part. what can I do for you. typical. down Main street. by the looks of them. black as pitch. a hardware store. The man in black just waited. and spat down on the ground. The people went to church on Sunday. here goes. So. He rode into town slowly with the sun at his back. colt navys. and the townsfolk that were 103 . His eyes were like obsidian orbs. "Howdy stranger. a lumber yard. He was armed. until any of the townsfolk noticed him. and a bowie knife with a jet black handle on his belt. except his skin. the man in black. Everything was normal. His bear gun. a butcher shop. and the boy ran to tell the town Marshall that a stranger was in town. "I said.two are not the same. just passing through?" The man in black just stared and squinted his eyes in a way that would make Clint Eastwood a poster child for sweetness and light. and of course a fair number of houses. Then he. with shells filled with double odd buckshot. The man in black squinted his eyes even further. unless of course you had to cross a street. The sweep boy saw him first. ten gauge. Soon the Marshall came out with a double barrel shotgun. a gunsmith. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. was a prosperous little town called Purgatory. creating black shadow in front of him." said the Marshall. hacked up some flem. a saloon. looked at the buildings of the town. a hotel. he had on a double rig of six guns. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. His skin was a very pale white. Purgatory was a nice town. He got a third of the way into town. cat got your tongue?" said the Marshall. a livery stable.
I solve all your problems. the man in black said. I don’t like black. and I don’t like you." "Business. I help make the world a better place. and tied the reins to the wooden bar in front of him. especially your town. "Mr. "I think it means whatever you want it to mean Marshall.beginning to congregate. and behind him to see if the bartender had his shotgun out. listening to piano music. mostly for committing crimes. The Hangman stretched. The saloon was crowded." said the Hangman. and threw two bits on the table and turned and scanned the room. The Marshall couldn’t take it. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. I’m The Hangman. got off his jet black horse. playing poker. and strode into the saloon. But the Hangman just stared even harder at the Marshall. Then the Hangmen waited a moment and looked to see if anyone else was 104 ." said the Hangman. "Listen all of you. like a black cougar.. hacked some flem. and right now it means that I am going to the saloon and get a drink. cowboys drinking beer. Finally. I hang people. Then he said. He glanced to the left." The Hangman’s eyes squinted even further. and I do that by hanging people. "Oh. The Hangman walked up to the Bar and ordered a whiskey. He slammed it down. "I’m The Hangman. but it all stopped when The Hangman stepped inside. what kind of business." A drunk cowboy stood up and said. he just couldn’t keep eye contact and instead looked down at the dusty street. The bartender didn’t. The Hangman rode down Main street past the Marshall a half a block. why don’t you just mosey out of town before you get hurt. supple and strong.. and I don’t like hangmen. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down." asked the Marshall. His eyes squinted. "What’s that supposed to mean?"asked the Marshall. I thought you might have some business for me. Then.
The shot went wide and broke the mirror behind the Bar. and place a bullet through the forehead of the cowboy." said The Hangman. another whiskey." answered the Boy. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy. you had better come with me. I can’t tell time. The Hangman walked from the Hotel where he spent the night to the Lumber yard. and so I am going to have to hang you until dead in order to put you out of your misery. "Can you read?" asked The Hangman. a nice prosperous town like this should make someone like me feel welcome." said the Hangman." "What is sir?" asked the Boy. "Well son. "Yes sir. The Stable Boy was cleaning up horse manure from the stable floor.? asked the Hangman. son. you have cognitive dementia. No one was. "Hey Boy. "No sir. A wooden gallows had been built. The next morning at dawn. tested. The Hangman took the Boy down the street to the gallows. without paying. The Hangman didn’t even move. "Anybody else care for a shot. "I know you don’t understand this." said the Hangman. "Bartender." said The Hangman. but then it was done. but this is for your own good. calmly aimed. the Hangman’s Switch. So. you have cognitive dementia. No one said a word. "Well. Suddenly the cowboy went for his six gun. He drank the whiskey and this time simply smiled at the Bartender and walked out." said the Boy. "Well. The cowboy stared into infinity for a second then fell on the floor and died." said the Hangman.backing the cowboy’s play. He then went to the Hardware store and bought some tools and started to work It took him a week. and to protect the town from and further 105 . "Son." said the Boy. Then The Hangman walked to the Livery Stable. what time is it?" "I don’t know mister. I guess I feel like staying. He just laughed. He had some lumber delivered to the end of town. Son.
Luckily for the Boy the rope was placed just right. no one drew their gun. "Marshall. A few people cried. that’s a hanging offense in these parts." said the Hangman." said The Hangman.leeching of yours off the common good. put the noose around the Boy’s neck. He didn’t know what to do. as he pulled the Marshall’s six gun out of his holster. He fell through. He is dead weight and dead wood. He deserves to die. and the Boy’s neck was snapped. Soon a crowd had gathered. "and this is a good town.." "I am here to help you clean up this town. "Yes. you just can’t get the job done anymore. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk. "Anyone here object?" 106 . Although twenty men were there who were armed with six guns." "You are to be commended for helping to clean up this white trash. He left and the crowd went home. I’m going to hang him now. killing him instantly. and then pulled the lever. The townsfolk all say that you are dead wood." said the Hangman. thank you for your help. "But. Marshall you know that you simply cannot be a dead weight here anymore. you seem a little overweight to me." said the Hangman. no one said anything. "You know." A few people laughed." said the Marshall. We need to put him out of his misery. The next day the Hangman went up to the Marshall. this boy is a wastrel and a blight on humanity. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall." said the Hangman. His mind blanked out with panic. I guess this confirms it." said the Hangman. The Boy froze with fear. He couldn’t even stop me from coming into town." "You won’t be needing this anymore Marshall. Well.." he continued. The Hangman tied the Boy’s hands. "You are good people. The trap swung out from under the Boy’s feet. And so the process repeated itself. The Hangman said. "This boy has cognitive dementia. the Marshall just can’t get the job done anymore. Unless anyone objects.
you must know that." said the Hangman. The townsfolk applauded. isn’t that true?" "Well mister. The Hangman cut the Marshall down and retied to hangman’s knot. you will hang seperately. The Boy stood their shivering. everybody does the right thing. "Now Boy. "You have questioned my authority. here. I am a dementer from Hell set loose on earth to test you. I need some help up here. he is the only authority. "If you follow me. The Boy started crying." said the Hangman. the Boy must die. Although unarmed. dead as a door nail. Any objections?" This time." he promised. you asked a question. as you very well know. To everyone’s surprise. black as night. he didn’t want to go near The Hangman." said the Hangman. a Boy asked. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here." he continued." said the Hangman." seeing that the Boy was going to reply. I answered it. "Now Boy." said the Hangman. what else was I supposed to do?" "Son don’t be smart with me." And then the Hangman pulled the trap. "What will the town do without a town Marshall. I was just testing you and the townfolks. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together. Once The Hangman come to town." said the Hangman. "Well." said the Hangman. "In order maintain order and authority in this town. when the Hangman is here everybody figures it out. and down went the Marshall. But the crowd pushed him forward and up the steps. no one said anything. I will give you a well ordered society. quickly stuck his handkerchief. you don’t need one. The next day the circuit judge rode into town." "Well Boy. in the boy’s mouth so that the Boy couldn’t talk any further. "The Hangman. he called out the 107 .continued The Hangman." "This Boy is guilty of gross deriliction of duty and insubordination. and you know that is wrong.
The Hangman and the Mayor revived the Mayor’s wife with smelling salts." said the Hangman to the assembled crowd. hanged by The Hangman. The Mayor looked over. tied her hands." 108 . "those who were hung were trash." asked the Hangman." responded the Hangman. but this did not stop the Mayor from carrying her limp body to the gallows. "Not me. that was the town Mayor who had "passed it on" to his wife. And so they did." replied The Hangman. A couple of months. The Mayor balked. "See this judge. All the rest were dead. and then down she went. "You can’t just hang people. the rule of law is a myth designed to deceive you. your honor. his demenour. "I pass it on to my wife. but finally there was only one person left in town other than The Hangman. each day another hanging.Hangman into the street. Only The Hangman has real power. this is my town. the good people of this town knew it. you can’t get me. its your turn. And so it went." The Mayor’s wife fainted when she was called out. so the story goes. These people you have hung have violated no law and were given no trial. cold as night. I run things." said the Hangman." said the Judge. "Well. take here instead. Each day a new accusation. "he is the cause of all of your problems. set the noose." A crowd had gathered. Only The Hangman can save you. Only The Hangman gets things done." "What then am I to do. "We are making progress. The Hangman crossed the street and went into the Barber shop. and approved. to keep you enslaved. And down went the judge. giving himself a shave." "Grab this vile judge and take him to the gallows. From the Hotel. It took awhile of course." said the Hangman. The next day the Hangman called out the Mayor onto the street. you are the last one." said the Mayor." said the Hangman. "Mayor. "The Hangman doesn’t need a trial. The Hangman came out. Inside was the Mayor. "What is it you want.
" "All of you could have hung together as a group and opposed me. He got his gear. The Hangman smiled a smile of satisfaction. then you can rest assured that there is a well ordered town here in Purgatory.said the Hangman." said the Hangman. the hands tied." said the Hangman. And so up the steps of the gallows they went. and slowly rode out of town looking for the next town. Remember I told you early on in the process. or you hang separately. The noose was fixed. let’s get this over with. "But I didn’t really understand what you said. put me back in Hell under the Rules of the Game." said the Mayor." "Did you really think that would save you. I’m safe. and down the Mayor went. "I passed it on. "Me. "Exactly. A job well done. letting me win. saddled his horse." but instead you all chose to hang separately." said the Mayor." said the Hangman. "and if you didn’t you should have asked." said the Mayor. "But there won’t be anyone left. Is the next town yours? 109 ." asked The Hangman." "And now. "Yes you did. "Either you hang together.
and I think it had the appropriate effect.. I’m going to tell you the story of The Hangman. .. Now. the first thing to know about The Hangman is that 110 . quite different. No. Now. in the end. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. The Hangman. just to make it fun. pretty close to the last one.CHAPTER XI THE BARTENDER Well. maybe 8th or 9th grade. A kid’s word game? For most of us perhaps. Of course I don’t remember the original story as such. but I guess its fair to say that I also saw it. But not for me. But. at least at the beginning. in person. I told a story something like this to one of my law school classes last year. I sort of heard it.. religion class. but I do think I’ve got the general gist of it. the details. for me The Hangman.C.D. I mean. involves a story that I first heard in junior high. this is another story dealing withe The Hangman.
the dark side radio hero. a livery stable. black hat. "Howdy stranger. colt navys. a saloon. But. a hardware store. black silk shirt. Black boots. what can I do for you. He rode into town slowly with the sun at his back. with shells filled with double odd buckshot. black as pitch. a hotel. and of course a fair number of houses. The sweep boy saw him first. the two are not the same. ten gauge. The town had a dry goods store. Soon the Marshall came out with a double barrel shotgun. down Main street. and the boy ran to tell the town Marshall that a stranger was in town. Perhaps he reminds you of The Shadow. The people went to church on Sunday. creating black shadow in front of him. here goes. was a prosperous little town called Purgatory. black gloves. and a bowie knife with a jet black handle on his belt. he had on a double rig of six guns. He was armed." said the Marshall. The man 111 . black jeans. Everything was black about him. black cotton cloak. He got a third of the way into town. a gunsmith. unless of course you had to cross a street. Purgatory was a nice town. His bear gun. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. except his skin. until any of the townsfolk noticed him. The man in black just waited. in Nebraska Territory–the Kansas part. of course. typical. a lumber yard. "I said. His skin was a very pale white. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. cat got your tongue?" said the Marshall. He stopped and looked. Back in the Old West. Hello stranger. a butcher shop. by the looks of them. His eyes were like obsidian orbs. Everything was normal. So. just passing through?" The man in black just stared and squinted his eyes in a way that would make Clint Eastwood a poster child for sweetness and light.He always wears black.
and I don’t like hangmen. mostly for committing crimes. Then he. and right now it means that I am going to the saloon and get a drink.in black squinted his eyes even further. and I don’t like you. what kind of business. cowboys drinking beer. but it all stopped when The Hangman stepped inside. the man in black." "Business. His eyes squinted. The Hanman stretched. I’m The Hangman. I help make the world a better place. But the Hangman just stared even harder at the Marshall." A drunk cowboy stood up and said. listening to piano music. and spat down on the ground." said the Hangman. "Mr. "I’m The Hangman. and the townsfolk that were beginning to congregate. I solve all your problems. especially your town.. looked at the buildings of the town. and strode into the saloon. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. and I do that by hanging people. the man in black said." asked the Marshall. "What’s that supposed to mean. I thought you might have some business for me.. The saloon was crowded." said the Hangman. supple and strong. He slammed it down. The Hangman rode down Main street past the Marshall a half a block. Then. and threw two bits on the table and turned and scanned the room. Finally. he just couldn’t keep eye contact and instead looked down at the dusty street. and tied the reins to the wooden bar in front of him. Then he said. playing poker. I don’t like black. "I think it means whatever you want it to mean Marshall. "Oh." asked the Marshall. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. "Listen all of you. I hang people. like a black cougar. why don’t you just mosey out of town before you get hurt." The Hangman’s eyes squinted even 112 . The Marshall couldn’t take it. hacked some flem. The Hangman walked up to the Bar and ordered a whiskey. hacked up some flem. got off his jet black horse.
"The D. "Well. No one was." said The Marshall to The Barber. that went pretty well." The D. and behind him to see if the bartender had his shotgun out. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun. and on top of that. that’s the Rule. The Hangman should have known better. "See the Shingle up behind me which says.further." said the Hangman. "Well. I’m charging this hombre with attemped murder. some laughed but no one cried. "I don’t think you really want to hassle that cowboy. Louis." said The D. its totally fair since only a Thomist can even carry a Peacemaker." replied the Bartender. as he walked 113 . "fast as lightning. do you Hangman?" said the Bartender. "Wher’d you get that Peacemaker?" asked the Hangman. When The Hangman fell through the trap the next day. son. knocking him out. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play. suddenly. lock him up. "Well. He glanced to the left.A. "that’s how they hex them. I’m the District Attorney. "Why?" asked The Barber. you know the Lore.A. some folks even call me "The Devil’s Advocate." said The Bartender. a Peacemaker always wins over a Navy. "Attorney at Law?" As The Hangman turned and looked up to see the shingle.A. Next day was the trial." "It’s really not fair. it won’t be exactly fair if you use that Peacemaker against my Colt Navy." And so the Marshall dragged The Hangman’s body away. The bartender didn’t." replied The Marshall." said The Hangman again. In "St. would it?" asked the Hangman." replied the Bartender. I’ve never lost a case and I’ve never lost a gunfight. "Well. and the Hangman was convicted of attempted murder. they never go down. is Coif. I guess I feel like staying. Then. "Well." "Marshall. a nice prosperous town like this should make someone like me feel welcome. reverse handled his Peacemaker and hit The Hangman over the head. I thought. "I suppose the ciruit judge will be here tomarrow. "Well.
. or. I would like to offer a different slant on things.. perhaps in terms of contemporary natural law or socio-biology. not that I necessarily disagree with all that has been said above. that murder is the only cross cultural legal prohibition. The sociologists seem to agree on one thing however. that is. one is often tempted to look back at the Code of Hammurabi. however. that prohibition itself would be subject to a great deal of interpretation. our critical friends may suggest that there really is no objective basis for law. heading for the Saloon to get a drink.away.. And so. I would like to suggest that 114 . at least none other than the prohibition against murder. Instead. CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law. and then of course. In this essay.
Finally.” In this sense.” If we look at Blackstone. along these lines. at least in the concrete sense. on the other hand. that we have get some clarity about what we mean by “property. there is the Critical Thomist understanding of property of ala critical stage theory. but also the basis for human dignity. suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. is the basis for all rights. “property” hardly exists at all. property law. Now. form.” Well. Although it may seem a bit different from the Restatement approach. in what one suspects is a rather traditional. would be seen as that which is judged to be “property” on the basis of experience. he defines property in “concrete” terms simply as a “bundle of sticks. a fixture. or tangible or intangible personal property. but perhaps mistakenly seen in an avant garde sense. the notion of property grounded in metaphysics as such. If one considers the three metaphysical categories of being. regardless of whether it is real estate. Although it is difficult to put colloquially then. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. tangible or intangible. Blackstone took an avaricious view of property. understanding. that is. I a rather different sense. 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. defines “property” as “A legal relationship between persons with respect to some thing.property.” with each “stick” representing some “right. property.” including the right of possession. one can see that property can be 115 . in the first instance. and reflection and judgment. A Critical Thomist would say that property is real. but that reality is based primarily upon meaning. and substance.” that is it is intangible. The Restatement Second of Property. I suppose.
as such. If one were to think of property in terms of the metaphysical concept of being. seisin. where does this put us in terms of our first issue involving property as the 116 .seen in at least these three different ways. Metaphysically. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. as such. typically seen as real estate. there is property which is property in form only. tend to see and experience it in terms of a “being” mode. Here property is hardly distinguishable from that of a mere formal contractual right. Well. 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. Idealists. 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. The concept of substance. or simply represent contractul interests. This ceremony. in favor of spiritual development. it they approve of property at all. or even money. as represented by the clod of earth represented the substance of the property. seemingly bordering on the occult. Perhaps this is why one gets the sense that real estate developers and real estate attorneys are grounded in the substance of real property in a way that others are not. if not insoluable question of whether a mere contract. one assumes. In medeival law in England. dated in the first instance from the time of Anaximander in ancient Greece. I suspect that it would be confined to personal property. of course. one suspects. Being philosophers and psychologists tend to discount the acquisition of material wealth. Finally. amount to property. The law professor encounters the difficult.
one starts with one’s possessory interest in oneself.” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction. one understands that the possessory interest that one has in one’s body can be extended to a possessory or even fee simple interest in property beyond one’s body. and in this sense we are responsible not only to ourselves. or the Dao have in terms of our personhood are governed by Divine Law. or in a more sophisticated economy. Last but not least there is Constitutional Law. One can certainly never be enslaved. or the cosmos. under natural law. which. but to the Common Good. once again. utilizing primarily the principle of proportionality. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. My position is that each of us. for money. but we can never really sell them. perhaps can be leased for a limited period in a human way for purposes of appropriate employment. we can mortgage our souls. or the law of the Logos. holds title to our bodies. the law of the gods. or perhaps with a little luck. which. such a homesteading in the old west in America. Finally. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 . On this line of thought. or the law of the Angels. So. or the Dao. God. The rights that God. As one comes into possession of personal or real property in a legal or customary way. or the cosmos. has a possessory interest in our own bodies. there is criminal law which is an extension of tort law. the Truly Worthwhile. and the Good as a Critical Thomist Ideal.foundation for law in general. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature. requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. that is. that is Divine Reason. in relation to one’s rights under a contract.
applying equitable rules. even if only taken into account equitably in concrete circumstances.by reciprocal obligations necessary for the proper functioning of the body politic. Freedom of Contract. at least in the abstract. Rather than abolishing property interests as some marxists seem to wish to do. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. While a fuller discussion of this must be saved for a later Chapter. one has the responsibility. it is apparent that law at every level from the Constitution on down. Freedom of Association. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. but also for the protection of our individual rights flowing from our possessory rights in our personhood. 118 . and of course. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. Liberty and the pursuit of Happiness. Germain put it some time ago. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. context. in my judgment it is better to see property as the foundation for all our rights. involving Life. must be applied in the context of equitable rules which favor relationship. So. to contribute to the Common Good in the equitable requirement of serving those in need. including but not limited to Freedom of Religion. going beyond Locke. and compassion. as well as those found in the Declaration of Independence.
if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception. 119 . that you could not go onto another person’s property for any reason. “A Man for All Seasons. 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. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard. in order to rescue the child.CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play.” I used to. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need. So. for example. but then I found the concept in Aristotle.
Obviously if the Christian community runs out of rich recruits. then.” not even thinking about ability. Equity is placed above law. in essence is based upon arational (not irrational) intuition. So. while the proloteriat are the one’s with all the abilitities. Law being based upon proportional reasoning. equity over law. that once one take the Ethical Matrix into account. cited by Marx. did the right thing from and equitable point of view.” which at least for awhile seems to have existed in the early church. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More. would not seem to work. in this case the child rescuer. problems would result. or. In Communist societies I think that at least ideally. at home. of course. and poor living conditions at home. or any mom. from each according to his ability. however.” Here the equitable slogan must have been “to each according to his need. since the whole thing is sort of a pyramid scheme. one might argue that people could rather arbitrarily create equitable exceptions all over the place. basically abrogating the Rule of Law. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. The problem. Now. placing Equity above law. at least the ability to work ordinary jobs for low pay. unfortunately. societies are always faced with the problem of either favoring law over equity. of course. required everyone to give everything away and give the money to the “poor” or the “community. in reading human history.Now. and so the German socialists. one might suspect that 120 . It is my position. from my point of view. while equity. even for luxury goods. Christian “communism. poor working conditions. But even in More’s case.” I can imagine my mom. basically saying this. stated the ideal “To each according to his need. The “needs” thing tends to be a one way street. is that the politburo and the commissars tend to think that they are the one’s with all of the needs.
The other obvious option is to favor law over equity. usually for the “little guy” or the “old lady. as Christopher St. This doctrine is similar to “promisory 121 . or. 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. The most significant equitable rule is “equitable estoppel. in the United States we have a fair number of Equitable Maxims or Rules which help to. So in our country. They don’t want equity at all. 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. Equity only intervenes in the extraordinary case. however. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge. Who you are is what you own. then the former can be equitably estopped from changing his or her original position. “Equity has its law. as well as the King himself felt threatened not only by Thomas More’s popularity. Germain puts it. Now the solution I have come up with. to one’s detriment. 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. the Second Coming. “temper and mitigate the rigor of the law. This is the Aristotelian approach. and seem unable to distinguish the criminal playing field from the civil playing field. In eastern terms. and law has its Equity.” That is.” The problem is. as is pointed out in one of my land use planning cases that I use in class.” If one takes a position and another relies on that position. the Law must be a Dao of law and equity. that after awhile the law types get very pissed off even at this. but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia.the reason for his (More’s) execution by King Henry VIII was that the law courts.
After seeing this situation. even more interestingly. Waiver and laches are also important equitable rules. although perhaps not often stated equitable rule. stating that there is no adequate remedy at law because at law no joinder on causes of action is possible. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. find them no longer enforceable. plead all of one’s legal causes of action at law in equity. such as court ordered injunctive relief. one of the problems with pleading a case partly in equity and partly at law is that often. With respect to some equitable remedies. The solution. one can be barred from asserting them. similar to a statute of limitations. equity favors the little guy. however. Another well know. of course. Under the doctrine of laches. This is sometimes true of other equitable remedies as well. and before that an 122 . at least on the east coast of the United States. and then. then the original promise can be enforced with or without consideration. This is an American thing. again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches. that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. Now.estoppel” which means that if one makes a promise (which presumably is otherwise unenforceable at law) and the other person reasonably relies upon that promise to his or her detriment. If one “sits on one’s rights” too long then one can be deemed to have waived them. the equity lawyer need only plead the case in equity. there is a completely different court. or. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity.” which sits wholly apart from the Common Pleas or State District Court. often denominated the “Chancery Court. is a fairly simple one. is that all other things being equal.
or at least ridiculous rules de facto in the particular context. 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. and orphans. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. Then the Good Guy lawyer represents the small rancher in court and gets the mortgage set aside as unconscionable and reforms the mortgage so that it is fair. In America you get it from the Old Westerns. and all of England suffering under unjust taxes levied by the Evil King John.English thing. widows. rational and autonomous 123 . is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. lack of knowledge. where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause. or lack of bargaining power. this is what Equity is like. and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. 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. Equity favors the little guy. At the same time. where Sir Robin of Locksley. In England of course. and typically are. So. presumably at the Battle of Runnymeade in 1215. 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. returning from the Crusades. Equity seeks to find exceptions to otherwise ridiculous rules de jure. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving.
and. When we see Equity and law this way. Later. were killing others.” Yet. of course killing many in the opposing armies. in many instances the common sense household rules that our parents applied to us when we were kids.actors in the marketplace. after the time of Emperor Constantine. Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. CHAPTER XIV THOU SHALT NOT MURDER In the Bible. we see the value of the structure which law provides. the flexibility and compassion that equity provides. surpisingly enough. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire. we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples. and as a legal 124 . whether one studies it as literature or as Divinely Inspired. but. One of those commandments is commonly interpreted as “Thou shalt not kill. with law and equity at the same level. as an amatuer scripture scholar. So. the Roman Armies. also. we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. what do we make of this? My gloss. obviously enough. including Catholic Christians.
The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. again? Divine Law is simply starting with the natural law prohibition against murder. and then applying the Ethical Matrix to every situation and rule concretely and abstractly. It is easy to see that if one cannot kill in self defense. Depressive suicidal impulses are considered signs of illness physical or mental. we eat grain that has been harvested before the field has gone fallow. if we were in a science fiction world. we are programmed to live. not unlike Enlightened rational self interest. By reason of natural law we have a survival instinct. but to succeed. and finally Constitutional Law.” The other interpretation. What is Divine Law. we “kill” all the time. criminal law. then the next step is that one cannot defend oneself or one’s family physically at all. in my view. We are not only to live. perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence. that is. Besides. Divine Law. For better or worse. does this mean that anything goes? No it doesn’t. is that what is really meant in the Commandment is “Thou shalt not commit murder. ends up being de fact satanic. “Thou shalt not kill. we eat meat from animals. and our minds were somehow subject to psychic invasion. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. Dovetailing on that earlier discussion. tort law. this gives us property law. we live in a world where we as human beings are required to kill to survive. As stated before in the Chapter on Property. we can see that the natural law prohibition against murder is of course a basis for asserting that each of us has a 125 .ethicist.” Now. contract law. Even beyond this. utilizing Rational Self Interest. which includes the injunction not to commit murder requires that we not commit murder in order to survive. let alone achieve material or any other type of success.
respectively.correllative possessory interest in our own bodies. As a last aside on this topic. but to the point of seemingly not eating at all. “Turning the Other Cheek.” means only that it is best to avoid a stupid or idiotic fight if we can. If we are to have a just society we cannot teach our children non-violence. One hears the rumors and reads the novels about satanic cults.” 126 . Non-violence is satanic. and together. “Give me Liberty or Give Me Death. has no right of self defence. with the members on the surface often seeming to be very religious. Non-violence implies that each of us.” “Don’t Tread on Me. totally in favor of nonviolence. even to the point of not only being vegetarians. which of course we do both under natural law and Divine Law. but to fight to the death for our right of self defence if we cannot. 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.
they did not serve Gyros. Chrisman and John Vitek and I would always go. studied. Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). 127 .CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. Sandy’s on Friday afternoon was a Greek hangout on football weekends. in season. making sure that we hit Sandy’s Bar on Friday afternoon’s. instead it was Fraternity and Sorority city. but only drunk by the glass. No. We went to Nebraska football games. where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. worked out at the East Campus Gym a few times a week with my cohort in crime. I went to class.
I might say something like. Believe me. and hope beyond hope. Now. Anyway.We sort of thought we were BMOC. a lot of whom I think were Vietnam War Vets. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). but I think that there is a connection there. 128 . at Sandy’s on football Friday afternoons. Chrisman and I had this routine we used in trying to pick up sorority chicks. It was fun.A. First of all. you might say nothing. big men on campus. maybe it just might work. you were D. a lot of us I think first generation lawyers in our families. together. we were happy to be in law school." "You are a model aren’t you?" And so it went. although we might bitch. we were successful law students. that is. for example. didn’t I see your picture in Vogue last week on the Newsstands?" "Are you sure it wasn’t you?" "Come on it must of been. we would get a little drunk. first rate legal education. "My God. moan. clearly did like to see Greeks at the Bar). (This is of course the opposite situation relative to the Zoo Bar. second. if you were Greek and you went to the Zoo Bar. and complain about things a bit. Believe me. we didn’t really mean it. The Lock Blade crowd at The Zoo Bar.ploy was doomed to failure. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively. I guess that would make it about 5 and one half pitchers apiece. what does all of this have to do with legal academia? Well. if you were not Greek you did not frequent Sandy’s on football Fridays.O. We knew we were getting a top of the line. who complained that the faculty was too liberal. Dead on Arrival. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. Phi Delta Phi members. but we did it anyway because it was fun. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. We knew this whole method. So.
I could simply have brushed this off as ideology. being a liberal or moderate democratic. So I filed this conversation away in my long term memory. a moderate to conservative Republican. love. Now. words.. are very real. justice. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican.Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. So. and do you know what I found out? 129 . tort. mostly through reading the legal scholarship of outside law professors at other law schools. and I suspect still is. especially used in a real world context such as law.." and therefore not "real.. meaning is real. Well things percolated until I got into Legal Academia. We like to let things percolate for a while. "Trash and Bash. and concepts. I slammed out a few articles making this point. 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. For a Critical Thomist. were simply "reified concepts" which were illegitimate because they were "abstract. Jurisprudence being of course that discipline within law which involves Legal Wisdom. so. I mean really real. Not rabid of course. getting tenure in 1994. what I discovered after awhile at Widener. like myself. first a visitor at Marquette. contract." Now. since Bob was. Critical Thomists. as a Critical Thomist. this situation flabbergasted me." were the watchwords of critical legal studies. Now. Over and over again I read articles which said the concepts such as liberty." and not "concrete. then on the tenure track at Widener in Harrisburg.. don’t like to rush to judgment. was that critical legal studies was the jurisprudence that was in fashion.
first of all extreme relativism is an incoherent jurisprudential and philosophical position to take. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid. This is called deconstruction. but lets save that one for later. If anything can mean anything. which usually is not stated. But even if that is true. really. in 2003.."). Because. And it is not just legal academia. nothing. The K. I developed a refutation of the concept of reification in a one line proof. that critical legal studies has now shifted ground and has moved to post-modernism. don’t you think.B. even better. and if they did.. (As I recall. I think. What is the problem with this? Well.G. really didn’t go down. D.Well. Or.B. Dead on Arrival. one simply starts playing around with language to show that concepts are circular or indeterminate.. Finally. which still maybe hanging on even though the cold war is supposedly over.G. Anyway. and I suppose that will be ignored too. then why bother? I mean really why bother? Why not blow your brains out? . don’t they have the names and information 130 . Finally. in Moscow and all its files probably ended up in North Korea or Communist China.A. Now.. they just left town. extreme relativists. Now. I suppose you could even use Wittgenstein on a good day. now. the K. and basically found reification to be an inadequate concept. people usually cite Derrida for authority. why not just walk down to your local political commisar and join the communist party. as such. in my view this makes critical legal studies. anything can mean anything. Why would this be. what you find underneath all of this.. What is post-modernism? Well. and maybe moonlight a little bit for the K. I got ignored. in 1996 I put out an article in the Capital Law Review where I explored the concept of reification.O. For them. is that all of these people are. No one would respond. what I call.G.B.. . its academia in general.. The political problem with extreme relativism is that it is nihilistic. no one seems to care.
and instead use research assistants. Well. really. Now. Well. if we can’t get it through liberalism and the rule of law. What is left. as Bernard Lonergan puts it. Liberalism was on the right and in the right. Liberalism on the right believes in truth. They showed the literature and everything. the American Nazi party existed. we ground our position epistemologically and metaphysically on the right. in point of fact.for all the agents in place and sleeper agents in American? Just a thought). you might say this sounds ridiculous. 131 . I not so sure. which has always been considered to be a liberal position. There are no totalitarian political parties in the United States. we look for it elsewhere. especially when your law professors don’t even bother showing up for class. This is because you can base liberal principles and values in classical metaphysics and philosophy. everything is seen as just being ideologically subjective and a "bad trip. and if anyone does show up. let me digress a minute to discuss extreme relativism. Nebraska. Although we support all sorts of programs to help the disadvantaged. they packed in a long time ago. Listen. liberalism is false consciousness. Last time I heard. no one takes attendance. just looking at things from a jurisprudential point of view. other than totalitarian political parties. if you’re a po mo (post-modern) and you don’t like the communist deal. we all have a drive for meaning and meaningfulness. in the local newspaper who was a big shot in the American Nazi party. then why not find your local gaultlieter and see if the Nazi’s are interested." For the intellectual elite in American Law Schools. A lot of liberals from the 1960's started out as liberals on the right. In fact there were always stories about a guy in Lincoln. before I finish this essay up. This is Critical Thomism. Now.
that is Hardliners or Stalinists hate Liberals on the Right as well. being. not one that is nihilistic. Extreme relativism. during the 1960'. Once you’ve done that you are still free to deconstruct languge. The reason that we. moderate idealism. liberalism moved to the left. then of course the statement that everything is relative is relative. So. It is based on relativism which always ends up being extreme relativism." Now. which. the statement contradicts performance. "everything is relative. Somehow. I suggest that Academia in General. The Nazi’s were wrong because they were denying persons their individual right. and Legal Academia in particular. Such a Good Liberal. Anyway liberalism on the left doesn’t work. embrace Critical Thomism. and moderate realism. what is the solution to this situation. As a Lonerganian might put it. Even more. We knew we were in the right in fighting Hitler. This is a commonly known proof: "If everything is relative. . and therefore meaningless and invalid. The Americans. but in a constructive way. 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. Maybe this happened somehow after Jack Kennedy was shot. on the right and in the right. and equitable compassion for others. I suppose that Communists on the Right. ironically enough is further to the right than Adolph Hitlter.I say that a Good Liberal is on the Right and in the Right. 132 . then. I suppose is why so many Nazi’s hate Liberals on the Right." This is an philosophically existential refutation. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. A Good Liberal is one who believes in moderate relativism. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent.
"Courts on Trial. Lawyers are supposed to uphold the "Rule of Law. lawyers and judges do."107 Frank." But. What are they? Who cares? Well. a 1930's legal realist. Any trial lawyer worth his salt will simply say. or at least we pretend to. not the Law.CHAPTER XVII LAW AND OBJECTIVE FACTS Facts. what about Facts? Do Facts Rule? Jerome Frank thought so. A lot of trial lawyers think so to. "The hell with the 133 . what is that? How can Law Rule? What about people. argued that Facts are what control the outcome of cases. maybe jurors. and in his book.
Law.. Frank Galvin did win in "The Verdict. argues that we in fact know reality through three interrellated cognitive operations: 1. experience > where one intends sense impressions 2. just get me in front of the jury and I’ll win my case. He passed up a settlement offer. But some of us wonder that even if we can imagine that The Law is objective in some sense." and a lot of lawyers do to. Well. that was attorney Frank Galvin’s salvation. "Courts on Trial (1949). in order to try the case to the jury.. and he won. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. one suspects. 20th Century Fox. approximately half. perhaps unethically. "The Verdict" 1982. Critical Thomism. working off the philosophy of Bernard Lonergan. how about The Facts."108 with Paul Newman. 134 ." In "The Verdict.
It is on this level that we not only understand what is going on."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two. but in some sense participatively create what is going on through the use of meaning structures. 681 (1986). even myths." see Anthony J." The Buddists call this illusion. See generally. 110 111 135 . 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. Fejfar. "Truth and Method" 239 (1975). "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. For a discussion of "relational meaning streams. Rev. Fejfar. 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. L. setting the stage for "Reality" at Level Three. judgment/reflection > where one intends the real or reality. the level of sense impressions.3.109 What this means is that on Level One.110 which act as "forestructures of knowing. Anthony J. we organize sense impressions through the use of symbols and ideas." 27 Boston College L. 579 (1996). On Level Two. This is the level of "Reacality.’" 25 Capital Univ. we simply experience a blurr of data. Rev. Hans Georg Gadamer. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence.
this is all very nice."112 Now. But given this. where does the Critical Thomist schema fit in? 112 See generally. positive in some sense and negative in others. possibly even fascist.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. but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic. 136 . "Conscience and Self Transcendence (1973). Walter Conn.
I would argue that some people at Level Three learn to make inductive intuitive judgments of fact which in some sense integrates and involves a gestalt of both sense experience at Level One and analytic understanding and hermeneutic "structures of knowing" at Level Two. Now how can this happen? Quantum Physics suggests very strongly the not only the possiblity but the actuality of non-local probalistic communication- at- a- distance.113 Thus one’s intuitive judgment or reflection upon a "rock," for example, includes one’s current sense impressions of the "rock," if any, one’s past and current understanding of "rockness," and rock relatedness, any "forestructures of knowing" which involve the foregoing, and finally, a non-local-at-a-distance intuitive judgment of the situation producing a probabalistic intuitive judgment-gestalt of the "fact" of the situation. Additionally, there is the sense that some of us have a deeper sense of "rockness" than others. How could this be? Perhaps we are accessing at an unconscious or preconsious level "Parallel Quantum Universes" which are probabalistically similar to ours but not exactly the same.114 Perhaps this gives us a certain intuitive wisdom as to the "rock" that another might not have.
See, Nick Herbert, "Quantum Reality" (1985) and Nick Herbert, "Faster than Light, Superluminal Loopholes in Physics (1989) (discussing Bell’s Theorem).
For a discussion of "Parallel Quantum Universes," see Quantum Physicist, Fred Alan Wolfe, "Parallel Universes" (1990).
Now, let’s digress for a moment and think about lawyering and judging a bit. Perhaps the "wisemen" and "wisewomen" in the legal profession know a little more about the world, and a little more about facts, and a little more about "rocks," and a little more about the deep background necessary to understand a case or the law generally, because they have unconscious or preconsious "Quantum Mental Access" in their minds?115 Now at this point a skeptic might object, well even if this is true, it is not as if what you are getting is in any sense "objective;" who is to say that "Quantum Mental Access" to parallel universes would give us a better understanding of what is "really" going on than anything else? Here Lonergan would, I think respond that because we intend "Being" as an "Unrestricted Act of Understanding"116 with our cognitive intentionality, given a broader Quantum Mental Access
How do we get this Quantum Mental Access, or intuition. Francis Vaughan argues
that such intuition is best accessed through meditation. See, Francis Vaughan, "Awakening Intuition" (1979). The author has found that the best method of "meditation" for him, is "relaxation meditation." See generally, Herbert Benson, M.D., "The Relaxation Response" (2000).
Bernard Lonergan, "Insight" 350-351 (1956).
and Understanding of Reality, we would in fact know more, and in fact, better. Just because facts involve values, as hermeneutics suggests, simply implies that we are able to find qualitatively "better" facts which are in some sense more "true" than we would otherwise. As Lonergan would put it, our "objectivity" is authentic subjectivity.117 Now, why would this be? Well, whether Being exists or not in some abstract sense, it is certainly true that for many of us, Being acts as a "deep structuring symbol" and as a "forestructure of knowing" such that Being is Real as a matter of Quantum Mental Meaning in the context of Quantum Indeterminacy regardless of any hypothetical situation, in the abstract, where our intentionality is not structured this way. As Werner Heisenberg, one of the early and leading Quantum Physicists has shown, one’s intentionality or meaning stance affects the "experiment" of
As Lonergan puts it, "[I]t is now apparent that in the world mediated by meaning and motivated by value, objectivity is simply the consequence of authentic subjectivity, of genuine attention [at Level One], genuine intelligence [at Level Two], genuine reasonableness [at Level Three], and genuine responsibility [at Level Three]." Bernard Lonergan, "Method in Theology" 265 (1971).
Questioning this possibility. however. with the result of Bell’s Interconnectedness Theorem. when one lives the 118 See generally. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment." Id. at least as to Quantum Events. "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action. there is plenty of room for Quantum Mental Communication at a distance. on the one hand. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. is that when we combine the foregoing. it is possible that "quantum effects" trigger much larger neural activities within the brain. Now. at 17. probabilistically. Thus.one’s life at least epistemologically if not metaphysically. Now.118 In other words. Moreover. at 348. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy." Id. 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. 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. the interesting point to be made. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. Thus. Id. Heisenberg states. "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. it is impossible to produce perfectly replicable scientific 140 . what does the foregoing mean for us regarding the empirical literature involving cognitional activity? Quantum Neurophysiologist Roger Penrose notes that the conventional explanation of thought is that it takes place on the electro-chemical-neuron level utilizing newtownian processes. Id.9999%. Penrose points out." Id." Id. at 349. any purported newtonian "objectivity" is chimerical. "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. at 31). and quantum activities on the other hand. This however is impossible. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically. then. Similarly. at sublight speeds. (Even in a "gross" Newtonian physical world. Nick Herbert. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. Perhaps our logic is not sophisticated enough to accommodate such a possibility.
Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). perhaps in ordinary right handed persons. "The Prophetic Imagination" (1978). one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. 141 . 119 See. the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning. Finally. Let the Dreamers Wake the Nation. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. in an earlier article. Thus in this vein. results. and the right hemisphere toward "quantum interaction" associated with intuition. 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.critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy. Walter Brueggemann.
142 .Come the New Jerusalem. "Let the River Run. Rev." 76 Marquette L."120 Now the skeptic might argue of course that such "alternative reality" or "alternative 120 Thomas L. Fejfar. "Wake the Nation: Law Student Insights into the New Jerusalem. Shaffer and Anthony J." on Working Girl Soundtrack (Arista Records 1989). 767 (1993) (Quote in text adapted from Carly Simon.
the definition that I use. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. the foregoing means. it is my position that Ockham’s Razor itself is flawed and invalid. is not metaphysics at all. 143 . and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid. arguably." (Quoted in Roland Omnes. however. Literally. My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. "Quantum Philosophy" 19 (1999)). any more than newtonian physics or einsteinian physics. First of all Quantum Physics. above." In practical application and ordinary interpretation. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results.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. Additionally. however.121 There are of course two responses to this. in the text is more adequate and relevant. "Entities are not to be multiplied without need. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate.
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. 144 . Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid. it is apparent that Ockham’s Razor itself is an unnecessary extraneous Metaphysical assumption and as such is excluded by the operation of Ockham’s Razor itself. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself. Once step 2 is taken. Ockham’s Razor which was created by William of Ockham. 2. provides in essence that in considering any problem. upon reflection. the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. or otherwise. legal.Refutation of Ockham’s Razor 1. 3. scientific.
Since the foregoing problem was solved without the use of Ockham’s Razor. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted. J. H. as such. However. E. Let us consider the mathematical problem: 4 + X = 7. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor.4 = 7.4 X = 7.4.4 X=3 G. We must now proceed to solving the problem 4+X=7. Mathematical Illustration. It is argued that a concept that cannot allow for its own existence is invalid. In fact. B. C. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor. F. prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X . A. I. Ockham’s Razor as a starting assumption must be excluded. D. then by the operation of Ockham’s Razor. 145 . Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. Thus Ockham’s Razor is rendered self contradictory and invalid.
cosmological. can be used as the first step in the resolution of any problem. Put another way. after the fact. ethical. especially since Quantum Indeterminacy seems to leave us our hat.. our highly probable judgments of fact simply "kick over. Because this is true. if we intend "objectivity" then in some fashion we get "objectivity. It is argued that the proof/approach used in 4. but no hatrack to hang it on.9999% real probability in the real world. The best we get in the real world at Level Three is something like 99. Now.A.O. Now. we might say. This of course is not true. legal.5. in a world of Heisenberg’s indeterminacy. Additionally. While "objectivity" may not be possible as an abstract metaphysical possiblity. it is certainly true that Metaphysical concepts such as "Being. that is Dead on Arrival." are now once again relevant to scientific as well as jurisprudential inquiry. into "virtually unconditioned judgments of fact. perhaps the materialist is aghast at this point. Ockham’s Razor is proved as being invalid in every case universally. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak. our authentic subjectivity will produce our "objectivity. it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts. it is argued that scientific materialism (including marxism) and capitalist materialism are D. scientific." In other words. Now as Bernard Lonergan points out. 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." psychologically." at Level Four which is constructed through "virtually unconditioned judgments of 146 . or otherwise." Finally. given that Ockham’s Razor is invalid. above." A la Lonergan.
So. for better or worse. And. Facts do exist. here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept. judicial or otherwise. We use these facts in counseling our clients. probabalistically at Level Three and objectively at Level 4. Finally. and in making our decisions.fact. therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid.f.” 122 C. 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.. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail. 147 . as an enticement for the reader to keep reading. is excluded by the operation of Ockham’s Razor. arguing our cases. We need not be fact skeptics at all. and. "How to Know God" (2001) (discussing virtual reality). and. back to lawyering again."122 So in the end perhaps Piaget and Kohlberg are right. Deepak Choprah. as such.
the opposing lawyer. the physical bullets weren’t flying in the courtroom. Now. and you got a little sick to your stomach. Sure.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase. after loading up our litigation briefcases. Bill would say as we were going out the door. You had to 148 . law firm in Omaha. the litigation partner I was working with and I would go off to trial. Nebraska.” Bill and I both sort of gulped. the Nam guy was right in one sense and wrong in another. but the whole thing was still a battle. You had an opponent. I was in Nam. “We’re off to War. and didn’t know what to say. I remember when I practiced law at the Baird. just like before a big basketball game you were playing in highschool. and your gut tightened up. said. and the guy. when Bill Dittrick. Holm. almost tearing up.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. “Well. doing primarily corporate-commercial litigation. and believe me this isn’t war.
however. that is in the sense that litigation in many ways parallels war. and in the end nobody really gets what they wanted in the first place. they might not even remember what they wanted in the first place. seemingly forever. Another method of litigation was the war of attrition. The casualties are horrendous. simply bulls his way forward with a frontal assault. if nothing else you did not want to lose. The war is waged back and forth between entrenched positions. As I mentioned above. What these type of commanders often fail to realize. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. Even in the commercial cases you cared. One could follow Rommel’s approach and file suit and immediately push the case as hard as you could to try to achieve an immediate victory by shock and breakthrough. blitzkrieg. Flanks of course not refering to their posterior anatomies. 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. There was another sense that litigation was like war. is both the vulnerability and the opportunity of exploiting the flanks of your opposition. but rather to the ends of their front lines where their primary forces are deployed. In fact. and at the same time you had to care. and involves military tactics. however. the typical litigation partner. Losing was for losers. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank .tough. I suppose this was like the trench warfare of World War I.
However. If there is more than one line. and then move forward with the flanks. we can shift our left and right flank defensively so that when the enemy’s line passes by. then it is possible to engage the flanks and at least stalemate the defensive attack. regardless of the outcome.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. they want it carried out. As the poem goes. Just like the game of Chess. our flanks can turn to the center. if the enemy trained to think multilaterally. there are of course response moves in such a situation. Once “high command” has decided on a strategy. even if they are outnumbered. Now. We have a ten to one advantage over the end of the enemy’s line on each flak. and to have the troopers and non-commissioned officers to take the initiative. ours is but to do 150 . engage the enemy in the middle. but they rarely work. from an offensive point of view. then the defenders will almost certainly win. Now. notice that if the Enemy’s line moves forward and engages our front line. those ranks of troops are exposed as well. it is pure idiocy to attack straight at an entrenched position. and then attack the enemy’s line in a way the enemy cannot combat. not unlike the Charge of the Light Brigade. if they don’t have the ability to change orders and adapt in the middle of the fight. “Ours is not to question why. I would go so far to say that an order to do so is an illegal order.
he could have seen that the Union lines did not extend beyond Little Roundtop. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. and was stuck in Union territory. before we get to the law application. around Little Roundtop. Now. outside of Harrisburg. and. That’s the background. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times. Now. 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. Now. Neither France nor Britain was entering the war on behalf of the Confederacy. for him. The Confederate Army was underprovisioned. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. and then some trees behind. as well as attacking the Union troops themselves. the first thing to remember is the context. and attacked the Union rear. let’s consider the above in light of the Battle of Gettysburg. Similarly.” Now. even if Lee had sent a few scouts out. Then there is a farm field about one mile in width.” about the Marines in combat 151 .or die. if you have seen the movie “The Thin Red Line. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania. he didn’t get that far. Lee had to attack. a small mountain on the Union Army’s right flank. The battlefield itself is about three or four miles wide. cutting off supplies. Unfortunately. Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. and the road to Washington. effectively ending the war.
Whether the case might be removed to a different jurisdiction. what this usually means is that you must know what courts are available to hear the case. Whether expert witnesses will not only be needed at trial. The company commander had his men make a few attempts up the middle. What has happened in the past merely provides some basis for predicting the future. and then the Japanese entrenched position on the hill. The company commander. Hume even went so far as to say that all we can really know in our ordinary world is 152 . broke. Next. taking out an enemy encampment. I your client. Now. Well. how does this apply to litigation. with relatively few casualties. nothing is locked in place.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. Will it be necessary to associate with other lawfirms. you must know the ground. etc. first of all you need to know you situation. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. but sometimes it is. however. a lawyer from civilian life before the war. The commanding officer said no and threatened to relieve the company commander. your context. but it was hopeless. The company comander then exercised field discretion and had his men go around the right flank into the jungle. national. but also needed to prepare the case. The next thing to know. at least to some degree. This is not always possible. must absolutely win the lawsuit for whatever reasons. Always remember the philosopher Hume. In the case of litigation. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. Whether discovery will be local. underprovisioned. or international. is your opponent.
so instead we will go the opposite way. and about 50 pounds heavier than my six foot four inch frame. I held my own again. Following the words of Rupert of Henzau from the “Prisoner of Zenda. It was about a three mile bike ride home for me.based upon inductive reasoning involving statistical probability. down 48th street. but. Unfortunately. my two buddies and I hit the bike racks and got our bikes. underestimate your enemy.” Suddenly. 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. He was about three years older. So. at the same time. three inches taller. however. telling my buddies to get one of their parents so I could get out of the mess.” This is of course the doctrine of strategic retreat. because I could tell that he meant it. we ran right into the bully and his side kick and the fight ensued again. That is. no. lives to fight another day. I made this mistake in junior high one time. never overestimate your enemy. don’t necessarily conclude that your enemy is remarkably smarter than you are. “When is this going to stop?” thinking we might have an truce or something. I figured that I would go to the right down to 40th street and we would get around them that way. I got in a fight with a bully from another school. I was simply a guy who happened to be at the 153 . though. The bully looked at me and said. so I asked the guy. So. they will know that we will take the 40th street way home. I held my own in the fight on the front porch of the school. I was face to face with evil in a way that I never had been before. I thought. “It will be over when I get you down on the ground and beat your head in.” “He who fights and runs away. until a teacher came to break up the fight. I could see the gang at the end of the block. never. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. Somehow.
don’t waste time attacking all of your enemies at once. don’t think that evil doesn’t exist. Southeast. they will just gang up on you. in terms of thinking about attacking the flanks in litigation. And. of course. and I never saw either of these bullys again. yes get discovery started. the point is to not in the first instance attack the case head on. the next year my buddies and I were in highschool at Lincoln. One last point. or even arrange for your enemies to attack each other. Get a paralegal to check into available public records to the extent they would in any way be relevant. An eastern way of thinking about war and litigation is this. but don’t push it right at first. I’m not sure that conventional notions of morality do. So. Don’t let one become so dominant that you will lose in the end. Get a trusted private investigator to check things out. Instead. 154 . Now. except in some situations low level corporate employees. file the complaint. the point. Although wisdom allows this strategy. If you find yourself in a muliparty conflict. of course being careful not to violate the anti-contact rule. Yes. don’t overestimate your enemy.wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. 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. also. allow. Both at your client’s end of the street but at the other end as well. but I guess. Third parties are of course fair game for interviewing but the opposing party is not. I got my bike loaded up and we were out of there. She chewed the bully out verbally. my buddy’s mom drove up in the family station wagon. or even game. Then.
I was a neighborhood dispute mediator for about two years myself. 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. The idea that we will somehow be able to do 155 . Things might even go great for 200. I hate to be pessistic.000 years on earth. etc. including but not limited to the judiciary. ala marx. and then all we have worked for up to that time will have been lost. No. The judiciary taking the bench for at least a day. so I am going to cut the apple in two and say that my goal. I know that some mediators think that someday the state will fall away. and then we suddenly get a lousy generation or two of authoritarian people. and learned a lot. ala Critical Thomism. 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. should still involve the symbolic state. and all disputes will be solved through mediation.
I see a strong role for mediation in our society and system of government.away with law or the state en toto. the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. I think that mediation is a very positive thing. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. modes. 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. While there are several different styles. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. 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 then do an overview. 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. as a Liberal on the Right. and here. for me. I then ask further questions factually to flesh out the situation and get a better handle on what was happening. the mode that I prefer and have used is that of facilitative mediation. and then call it a day. memorialize it in writing. is excessively utopian. stating that we will first have each of the parties get their stories out. Nevertheless. So. But. ala Justice Brandeis. Mediation is. of course. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem. or methods of mediation. We pound out an agreement point by point. and that in most circumstances one get’s a very good result. Then. but also should refuse to help facilitate 156 . as a last comment. I ask each party what he or she would like to see happen or get out of the mediation. 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.
though. Instead. or maybe. if remarkably well read. I think associate the idea with the civil rights movement in the 1960's. Intellect.. equality originates with Aristotle. perfect mathematical and geometric ratio. While previously I have recognized the idea of the natural law hierarchy of Body. with John Rawl’s book. Aristotle stopped short of proportionality as a basis for perfect equality. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea. though. Mind.e.” For me. i.agreements which in the mediator’s mind are unconscionable. or before that with Enlightenment Liberalism. Most people. he insisted that the physical damage done by a freeman to a noble would amount to a greater legal harm and resultant recompense than a similar physical damage done by a noble to a freeman. “A Theory of Justice. In Aristotle’s Ethics. it must be stated here that even if a 157 . It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law. Equality is based upon the idea of proportionality. Interestingly.
This is equality before the law. Although in some sense trajic. de facto. 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.” 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. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment. then. The issue of past and present irrational discrimination also must be dealt with. the principle is the same in the case of defamation. The principle of equal opportunity requires that everyone be given a even chance at getting a job. society should affirmatively seek to place such individuals in jobs ahead of others. himself. In a Right Liberal society the person who objectively is the most qualified for the job is the one who is supposed to get it. Nevertheless. 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. one who has a greater educational background and greater skills might in fact. my position is that this can only be done on a limited basis with 158 . however. or religious. say a concrete laborer. The argument is that because of past and present systematic discrimination against particular groups.particular person. have been damaged greater. functioned primarily on the Body level in terms of cognition and consciousness. Here.” Equality also comes up in the employment area. if one person is in a class which has been discriminated against. the person in the discriminated against class should get the job. racial. If a street person is defamed by being wrongfully called a “scumbag. ethnic. This is affirmative action.
I am Czech. Hitler made it very clear that all slavic peoples were considered to be subhuman. and I suspect that there are a fair number of ethnically German. racial Nazi purists. or a greatgrandparent. There are an awful lot of bigoted people who are interested in ethnic or racial purity. The categories for discrimination have to expanded. For example. In the old Soviet Union. and before that highschool.” In fact. who would consider my ethnic/racial background to be unacceptable. I would simply say this. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards. I don’t really expect these kind of attitudes to go away in the near future.respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. In order to qualify one need only have parents of different ethicitity or race. Finally. 159 . Irish. Anyway. and before that undergraduate education. and for affirmative action. The Japanese in WWII considered Americans in general to mongrels. with respect to anti-discrimination measures and affirmative action. or a grandparent. then the solution is to stop discrimination in graduate education in the same proportional way. and they aren’t necessarily “white. my point is this. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. I want to make the following point. and German. White Russians discriminated against siberians and other ethnic groups. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics.
the world is a bit fuzzy. provisionally. and more particularly. as well as our world. ask some more questions. Critical Thomists. as stated in a previous Chapter. When a client walks into one of our offices. the “empirical” real rule from an inductive point of view 160 . we ask the appropriate questions to try and get a handle on the facts. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. Quantum Physics. using litigator’s intuition and gut instinct one comes to a judgment or assessment. of what is going on.CHAPTER XXI STATISTICAL PROBABILITY Well. of course. and in particular. If we think of the ideal rule as a genuinely existing straight line. certainty. That is. We do a little legal research. Critical Thomist Lawyers. linear. For us. is. and even “Greater Reality as a Whole” are all probabalistic. what the law. in point of fact. Heisenberg’s Indeterminacy Principle suggest that we. and what should be done next. and then we make a probablistic assessment of the situation. typically a few days later. do aim for concepts or ideas or conclusions of exact.
. and maybe even require them 161 . or religious discrimination coming from one source or another. relative to race. accounting. I’m sure there are others.. detective.. it is important to include commonly understood analysis of independent variables in one’s study. for example... So. Now in all of this I am not saying that there may be underlying patterns of racial.. one should make sure that other independent variables are properly accounted for. and. and espionage novels which involve complex social and political situations.. using a regression analysis which excludes “aberrational data” one then comes up with conclusions. Now. religion. This could be seen through the classical equation: R = x + 0. high school. Ethics.. 10 ).. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. one is supposed to. and graduate school grade point averages.. a classical rule deontologically and decuctively looks like this: -------------------------------. say for example regarding the objectivity or validity of a law bar exam. undergraduate.. but what I would like to suggest is that from a corrective point of view. what type of employment the applicants parent(s) have held. ( R = Rule and x = 1 through approx. etc. English Literature.. ethnicity.. courses taken previously relating to: logic. is that the probable solution is to improve opportunities for particular types of classes. Communications.. English Composition.. and ideally does take a statistical sample of the relevant data. Management.only exists as a line of dashes. In any type of sociological study.while an ontologically and inductively classical rule looks like this: . ethnic... at least over the medium to long range. Such variables typically might include: grade school.. First of all. interestingly enough mystery. and then. perhaps. I have just two points here to make. economics.. and. if the applicant had a great deal of work experience with summer jobs.
opportunities for the development of leadership skills in the military. or in my opinion. or finally. 162 . Finally. so I have heard. are using standard deviations of 10. there should be opportunities. or more. Additionally. with respect to empirical research. Racism or bigotory after the firm application of Liberal principles as stated above my very well turn out to be a secondary effect rather than a primary cause of under-representation of racial. ethnic.” I have heard that some studies are now not even disclosing what standard deviation they are using. intelligence work with the various military services or the Central Intelligence Agency or the National Security Agency. In my mind. some researchers. or religious minorities in the legal profession generally. perhaps required. Computer programs which do no display the standard deviation. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. This is real “political” science and it does not just involve social science research. Remarkably. including but not limited to social science research. for various type of employment opportunities involving a national service corps. Clearly unscientific and totally political. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent. one must remember the difficulty in coming up with an acceptable standard deviation when one performs an regression analysis to exclude “aberrant data. or legal academia in particular.for admission to law school.
The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. on the other hand. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness. For me it goes something like this: 163 . For me it all began with discussions of Piaget and Kohlberg and Glaser’s reality approach to education around the dinner table with my mom and dad who are and were educators. For Deepak Choprah. For Ken Wilber. level five seems to be the creativity level. When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that. the “integrated” “centaur” level of consciousness seems to be about levels four or five.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.
3. Why is this important? I suspect it is important because those of us who somehow have a 164 . 2. we can advert to Plato’s discussion thousands of years ago. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations.Metaphysics 5. Perhaps some perform these operations laterally on one level. or both. or Law. Whether the mind is in the brain. there it is. 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. 1. Rule. but complex way of thinking. gets to be irrelevant after awhile. 4. We don’t need Christian theologians to tells us about life after death or the immortality of the soul. As noted before. but I do it vertically. So. or the brain is in the mind.
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. which I first saw at Nebraska football games growing up. because women need to use stalls and cannot pony up to the urinal trough like men. feelings. 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. if only congnitively. that the line to the men’ restroom was comparatively short. 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). find that it is worth the effort to invest in the development of our minds and the minds of others. God holds all our memories. Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. and emotions in His Mind forever. But let’s go po-mo here for a second and deconstruct the concept of equality. What is “equality?” I mean. one notes that given an equal amount of square footage for a restroom for both men and women. assuming that women need not urinate or defacate any more often than men. while the line to the women’s restroom was remarkably long. One suspects that their jurisprudence begins and ends with the concept of equality. thoughts.lived experience of a higher reality. I noticed the perennial problem. Apparently. it takes a lot longer for a 165 . CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s.
We could. etc. alternatively. Now the philosophical question involved is this. as I said before. age. to a lot of men its not. the 166 .comparable number of women to “take care of business” than it does for an equal number of men. but to a lot of women its not. usually unstated assumption. So. this may seem a little silly. In each case there is the implicit. how about tractors. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. natural law hierarchy. should equality be based upon the amount of square footage floor space. this does have economic. Now. Let’s take a John Deere tractor versus a Massey Ferguson tractor. of course. equality could in fact be related to social class. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. If we think of equality jurisprudentially. The examples we could use are endless. but they are unequal in terms of tire/wheel size. is much different for men and women. where. Now. but that is not my point here. for example. that equality is geared toward some standard. usage per hour. or. race. One might say that two tractors are equal in terms of horsepower. at this point. have a long and interesting discussion of policy regarding restroom parity. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. legal. But let’s think of it more philosophically. and political consequences. The men don’t like having their restrooms taken away in already existing buildings. that is. wealth. gender. The John Deere’s are green. More time creates a longer line. so to speak. My point is that equality only means something in relation to something else or some other standard. and remarkably enough. should equality be based upon usage.
But. 167 . Now. and ultimately nihilistic position to take. I’m basically a liberal on the right. red. was the best color. We might even start a protest movement trying to change the law so that we have color parity among tractors. if we could figure out which color. but I won’t. or orange. then.Massey Ferguson’s Red. green. liberal’s on the right know that equality is not enough of a principle to accomplish much. which. We still get equality. If equality is the ultimate value. There is a little more to it. Case Tractors Orange. This is tough for the “left liberal” who wants equality to be the ultimate value. I could stop here and play it safe. as my dog Scruffy might say. as I’ve said before. Values have to be involved and ultimately values in some way have to involve an objective metaphysics otherwise they are themselves not objective or worthwhile. as I have mentioned before is a logically inconsistent. and the Ethical Matrix that I have discussed previously. There is something there to chew on. but it is equality with some meat on the bones. one is left with extreme relativism. food for thought. My position is that equality is a good thing. but that it must be understood and used in the context of metaphysics. natural law. It just doesn’t work. Anyway. at least not on its own. Now.
” I said. really. “I think Critical Thomism is a bunch of hogwash.’ how do you define it. I might respond by saying. So. is to shift the burden of proof to the complainant.’” The next move. I don’t see how I can respond to your criticism without a little more in the way of definition. a philosophy. in its deepest sense. my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle. and as such. what is ‘hogwash?. is. and that it is full of partially digested cattle food. of course. hogwash. like bullshit. and that it stinks.’ just doesn’t line up with that definition.” Your assailant then looks at you quizzically and responds. “You know. One might make the rather interesting move of asking one’s assailant to define his or her terms. I 168 .” Then you sit back and think of the next move. that’s it. Here. literally. “Hogwash.CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says. Critical Thomism. “Well. the problem is that ‘critical thomism. I suppose. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible.” the Critical Thomist of course feels compelled to respond in some way.
” “one would necessarily need to refer to one’s experience. and then assert some fact. thereby disprove any attack on the proposition that consciousness involves different levels or operations.” 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. that ‘judgment’ does not exist. law. “Well.” or there is nothing like “levels of consciousness. elucidate one’s understanding. the burden of disproving Critical Thomism is on you.” 169 . let alone ‘good judgment.respond simply by saying. what say you?” Usually the response is that there “is nothing like judment. and. or position as true based upon critical reflection or judgment. and in so doing. rule.
” is that While John Locke mentions “substance” in passing. the general idea of “substance. if we take the three metaphysical principles of substance.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence. that is. and form. and the medeivals discussed a similar concept of “prima materia. Substance. one can analyze real property in those terms. however. one typically thinks of the ground that one is standing on. 170 . While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. would be simply the Greek concept of Chaos. One supposes that “substance” without being affected by one or more other metaphysical quiddities.123 123 So. or perhaps one’s home or one’s office building. seen as “formless form.CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. one can play around with some interesting concepts and produce some positive results. For example. being. From a metaphysical standpoint. one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land.” the early Greek philosopher Anaximander is credited with first developing the concept. a real property or a real titled interest.
is of course. somehow. is identified with the metaphysical principle of being. as such. usually one does not “get it” until one has practiced real estate law. In this sense it appears that a fixture must have 171 . or perhaps more traditionally put. because of its fluid nature. Real property is formed in substance. other than interacting with a new born infant. While one might get a sense of this in one’s property class. and in its pure form as material matter is simply the mud or dirt or rock of the earth. attached to real property. yet at the same time in its purest manifestation. Perhaps in no other way. more movable. 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. Transactions involving personal property typically involve the Uniform Commercial Code. To be contrasted with real prperty. has the valence of substance. does one encounter the “real” of substance in this basic sort of way. someway. participates in.”124 In fact mystics or quantum physicists often refer to the “ocean of being. and which thus loses its character as “personal property.” A fixture is personal property which is annexed to real property.” or the “quantum ocean. Water. seems to be more in line with the metaphysical principle of being. is the legal category of “fixtures. then. typically by some form of physical attachment.it is a virtually unqualified kind of stuff which is primordially physical.” and becomes a fixture. personal property. totally formless. or chaos. or is a real estate agent or broker. Being having the metaphysical definition of “form of form. to the extent that it is more fluid.” Personal property. and has the valence of substance. It is my position that real property. As an intermediate category between real property and personal property. on the other hand. and thus can be distinguished from real property.
the sections were movable. as such. I then have a “sectional home” moved onto the property with a crane. and cable t. taking into account some basic metaphysical principles relative to change. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. let’s start with this hypothetical example. The sectional home rests on a concrete block foundation. and substantial form. classical concepts such as essence. sewer. 172 .” has more structure than substance. before the home was attached to the foundation on the lot. Let’s say I own a two acre lot in fee simple absolute. Now. one can come up with a way of discussing the differences between two actualities.” rather than remaining a fixture. It seems appropriate then. using purely evolutionary terms. and the home itself is bolted to the concrete block foundation. If the home is considered a 124 This is Plato’s definition. However. it seems fairly clear that the sections of the home were personal property. Substancia. essential form. electrical. or “being form.v. to denominate the metaphysical principle which underlies a fixture as that of substancia. As an interesting correllative to the foregoing discussion. and has more of a straightforward valence. All the hookups are attached to the home. Now. hookups installed in the lot itself. essences. is the question of when a fixture becomes “real property. So. without losing one’s basic underpinnings in classical philosophy. I then have water. or quiddities. in three pieces. In an evolutionary universe. Although fairly large in size. form.a metaphysical appellation which is a half way house between being and substance. let’consider whether or not we have a fixture here. or at least the appearance of change.
Now. 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. Imagine we start out with the fee simple two acre lot. Now. although many grass stems would be affected. prior to attachment. If we choose at this point not to use terms involving statistical probability. part of the fee simple interest incorporated into the larger real property interest itself. which in no way affects the substantial form of the object under inquiry. that is. Blackacre. Blackacre exists in classical terms as real property in substantial form (in substance). if it is in place long enough. An accretion to a substantial form. in my judgment. Then we have the sectional house. and whether or not it is permanently attached to the foundation– if there is a foundation. let’s think about it this way. would be mowing the grass on lot to a height of three inches every month.” or an “accidental change. The sectional house. A good example of this. Tyically courts look to whether the home has running gear attached to it. an arational. it will probably be considered a mobile home. but this way is a good one. one could come up with a classical term such as “accretion” in the first instance. an interesting question is whether a fixture. can be considered to be real property. In classical terms. or a rational/logical accident. in my view. Presumably. and will have to be removed in accordance with local zoning regulations. perhaps. rather than four inches. So. is simply the addition of an irrational. a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. exists as a substancia form (in substancia) or perhaps even in being form (in being). there is more than one way of thinking about this. this would simply be a situation involving an “accident.fixture or even personal property.” which is not “really” or 173 .
If we add the accident or the accretion of the parts of the sectional house. one has simply placed personal property “a la accident” on the real property. because neither “substance” nor “form” are effected. in point of fact real change or true change are both respectively. a statistically significant change has taken place.“truly” a “change” at all. 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. of course. What. Now. a fixture attached to the real property. incorporated into Blackacre as an undivided whole of the real property itself. this is simply. of course. 174 . and as such. The trick to dealing with this situation is that just past the metaphysical concept of accretion. however. So. Either something is a particular substantial form or it is not. one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. In classical terms. only an accidental or non-substantial change to the real property. the presence of a new “variable” which previously had not been accounted for. however. In classical terms of course. albiet not yet real property.125 The accession represents an intermediary state between the real property state and the personal property state. how then does one move from on substantial form to another. in point of fact such a change seems impossible. 125 In terms of statistical probability. suggesting in statistical terms. impossible. Once an accession has taken place. is that of “accession. Such a “change” would seem impossible. let us consider the substantial form of our two acre Blackacre lot. or.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form.
well. They both exist as independent immutable substantial forms. Doubtless the old property hand will now ask. In the classical universe of being. If such factors are present. nothing is really new. life is simply a process of “remembering” or “re-congnizing” what is alway already there. In classical terms. fine with the metaphysics. etc.. the foregoing seems absurd. 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. but when is it that the house becomes real property and part of Blackacre. When one has been schooled to think in terms of incremental evoltionary change and statistical probability. Now. Blackacre with house really exists in a parallel being universe someplace. treatment of the house for tax purposes. at the time of houseless Blackacre. Once Blackare with house has “manifested” relative to us. not in act. permanence. then Blackacre without house exists only in potency relative to us.” It is not just a word game. then I would argue that a fully manifested Blackacre with house is present (in act). but in classical terms it is not.Now. as such? One supposes that the inquiry will involve a variety of factors such as intent. 175 . This is why to a classicist. As Plato puts it. it is literally true that “Blackare with house” has always existed in act in some place in being. creativity is always limited by form or some other metaphysical principle. At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. although not one accessible to one having the perspective of “houseless Blackacre. Blackacre with house exists in potency but not in act.
where the fossils where hundreds of thousands of years old. After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents. think that it is “theology. six hour course in 176 . however. mistakenly.” rather than philosophy. sort of. Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark. A lot of people think its passe or irrelevant. Some people with particular religious dispositions don’t like it because they. well. metaphysics came sort of naturally. I had a two semester. . My freshman year in college. though. For me.CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about. the evolution paridigm for reality seemed the best explanation. others simply associate it with the New Age and like it even less.
Evolution. God is seen as creating the world in seven days out of the “void” of “Substance. a lot. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. and my highschool science classes.” Ironically. And. getting back to metaphysics. So. terms. on the other had. but at some point a part of my mind got the neo-thomist metaphysics paradigm. top down. and Aquinas. It could not really account for new species development. no one even seemed to care about reconciling this situation. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. Aristotle. empirical terms. however. The metaphysics courses my freshman year were tougher than hell. and reality in general in deductive. enough. or the Holy Spirit as an immanent theological principle was involved. 177 The evolutionary idea put forth by Carl . was that it seemed to see reality in static terms.metaphysics using the book by Father Renard. Renard’s book was a type of Neo-Thomism which cited to Plato. cognitive dissonance was still there. Now. The problem with neo-thomism that I saw. I guess what I’m getting at is this. 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. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. had seen the world and reality in inductive. in my forebearer’s generation.” That is my reading of it. Suggesting of course that at least Substance as a metaphysical principle. as such. particularly my highschool physics class. As far as I could tell. But. and I saw that there was a deductive explanatory perspective that made sense on its own terms. one notes that in Genesis itelself. and which saw the world.
and apart from him [the Logos] nothing came to be. (N. “Poof” and suddenly there was the universe? The whole thing is. that the universe began with the “Big Bang.B. is it like Santa Claus said. presence. and the [Logos] was God.A.Sagan. in conjunction with Genesis. is that the Logos. such an approach is essentially infantile. or Reason. and was. second there is Being (Form of Form). we see that there are three primary metaphysical principles. there is Substance (Formless Form). in an earlier article. and the [Logos] was in God’s.) Now. this is found in the prologue to the Gospel of John. and objectively. is. First. Love and Creativity. My position. In Biblical theological terms. or Creative Form. both biblically. Through him [the Logos] all things came into being. and was the uncaused. ridiculous.” and that somehow there was nothing which preceded this was. In the beginning was the [Logos]. where it is stated that Jesus. He [the Logos] was present to God in the beginning. and is wholly unsatisfactory to me. and last there is Logos (Creative Form). 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 . First cause of the universe. As Ken Wilber has argued. when we take the prologue to John. as the Logos is the First Cause. I mean. I denominated this “trinitarian metaphysic” as So. this is how it all plays out metaphysically and follows: Being. non-metaphysical accounts of how reality began typically assert the opposite. although such athiestic. Now.
in the Quantum Field of Substance. the Holy Spirit. The Objectively Existing Metaphysical Principles of Being. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. While one can certainly accede that the Trinity Subsists in its Primary relations eternally. acting as the immanent principle of God in creation. And. are from a process point of view. could. it is possible that evolutionary processes could. one might also argue that God the Father. and Substance. in terms of a nonsystematic divergence from a classically stated Rule. but not changed. when one realizes that an “accident” in terms of classical philosophy is defined statistically. as well as others. So. Logos. and God the Son. Substance. in an extraordinary case. ala Whitehead. as well as an Immutable Substantial Form. or others. or a New Immutable Substantial Form. Once again. Ken Wilber. the Mediating Principle. one sees that the nature of reality itself is relatively stable. bringing all of this back to evolution. the Immutable Substantial Forms. and God the Holy Spirit. It makes perfect sense to argue that the three primary Metaphysical Principles of Being. Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. Love/Substance. Finally. be put on the “evolutionary shelf. or maybe even for ever. God the Son. or Matthew Fox.Now. since the Immutable Platonic Forms. themselves existing in The Mind of God.” for awhile. then one begins to see that 179 . the three primary principles of evolutionary advance. it is perfectly possible that certain species of animal or plant. produce a New Immutable Platonic Form. on the other hand the Transcendent Principle. or Law. even planets. as such. God the Father. from a metaphysical standpoint. rearranged. and Christian Doctrine can be added to but not subtracted from. or. so to speak. Now. and Creativity/Creative Form. of course. respectively and together. Norm.
there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident. 180 . and modern systems involving statistical probability.
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