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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
religion." What is Jurisprudence? Well it is hard to say. one has also received a Doctorate in Jurisprudence. Put another way. of course. Lawyers use policy arguments all the time to supplement their legal arguments. psychology. I suppose that we all could get Ph. and has taken a jurisprudence course during law school. Quantum Physics. You see.. is The Study of Wisdom. even. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom.CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture. theology. One might say that it is Legal Philosophy. solid. and. one has not only received a Doctor of Laws. accounting.. They use their business and financial abilities to help their clients make good. It is my position that where one has received a Juris Doctor degree.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga. but then again. finance. Now. if there is no basis for that interpretation then problems result. a lot of jurisprudence involves sociology or psychology.. business decisions. business management. sociology.D. philosophy." . but I suspect we typically do it a different way. with policy. the problem with Law is that it has to be interpreted. Metaphysics. Jurisprudence. 4 . then. values.
and. legal academics in the same category with ditch diggers. these people certainly are ditch digger academics. that’s the problem. You know. moan. I think I’ve been a little harsh. They spend all their time digging themselves and others into ditches. for me it just keeps getting better 5 . knee jerk. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it. So. one might suspect that they have faked credentials known as "dummy espionage degrees. These Cyborg academics must look to their Central Control Units to tell them what to do. "The Law is The Law. ala Star Trek. and if hypothetically we had nazis or communists in this country. academics.Unfortunately some Legal Academics are legal ditch diggers. shit out. I must apologize. In any event. At least the ditch diggers can think for themselves and know enough never to dig yourself into a hole that you can’t get out of. not in the tennis sense." who just channel and parrot other people’s minds. and. maybe these persons are just "psychic channelers. How they get into academia or law in the first place is beyond my comprehension. I think that it is unfair to ditch diggers to place these fundamentalist. maybe we should. here. never having an original thought of their own. So. and complain. bitch. No programming alternatives here. Shit in. If this were a world of espionage. and then. I suspect that ditch diggers are more highly evolved than these academics. in Law School I decided. call these academics Borg. and a day laborer for another summer. you know. They don’t believe in jurisprudence. usually spouting phrases like." But what you really see of course is that they are Fascists. whine. but in the robotic sense. perhaps unconsciously." Or perhaps. Input in. input out. to become a Critical Thomist. The solution? Well. In college I was a concrete laborer for eight months. placing ourselves in a world of science fiction. when they find themselves in ditches with virtually no way out.
Level 2: Mind. I believe in.and better. intend. and Substance is the basis and underlying foundation for true reality. then. CHAPTER II CRITICAL THOMISM Critical Thomism. For a Critical Thomist. I. 6 . Level 1: Body. Being (Form of Form). use a trinitarian metaphysic which parallels the Trinity of God itself. and as a Critical Thomist. Ken Wilber does something similar. For a Critical Thomist. Being is A Pure Act of Understanding. using the formulation. and is the Intellect. what Thomas Aquinas called Intellectus. reality and consciousness is structured primarily on three levels. and Level 3: Intellect. what is it? Well. and a bit more. but Critical Thomists don’t buy this. Now. it is perhaps a little bit of both. and Thomas Aquinas. its not Critical Realism. their respective philosphies were based on the Aristotelian concept of Being. on the other hand. Body. and Spirit. Logos is Divine Reason. the Highest Level of Consciousness is structured by Logos. and Substance (Formless Form). Logos (Creative Form). Mind. It’s not Thomism. its my thing. For me. For Bernard Lonergan.
or analytical or moral activity is found a Level 2. the thing about Critical Thomism is this. supplements Being. then. Additionally. in fact. which is a secondary metaphysical principle. Logos. an Immutable Platonic Form. it is a different story. It is at this "material level. Mind pleasure. in reacality. The Immutable Platonic Forms. those forms typically only manifest probabalistically. and. individual objects are themselves. For a Critical Thomist." that reality is composed of and structured by Substantial Form. then. Form.. This is of course consistent with both Plato and Aristotle. which leads one to Substantial Form. and even use the Immutable Platonic Forms at Level 2. it has always been the case that the Immutable Platonic Forms could be "added to. rearranged. and Intellectual pleasure or the integrative reflective way of being is found at Level 3. however. then. What else could they be? At Level 1. The same is true of individual substantial forms at Level 1. there are also corresponding levels of virtue or activity. discussed below. at level 2 in actuality. however.In the preceding natural law framework. one believes in. For a Critical Thomist. it must be noted that of course statistical probability is itself. but 7 . Bodily pleasure and sense experience is found at Level 1. Interestingly. not Quantum Physics. and. While the foregoing might seem a departure from Classical Philosophy. substantial forms. interestingly enough. One supposes that is at this level that Particle Physics reigns. while we can talk about. consistent with Catholic Doctrinal theology. the Immutable Platonic Forms are of course composed of Platonic Substance. discrete. but not subracted from. its not. and Substance. First of all. and one’s unconscious or preconscious Mind accesses.
who we are and the world we live in is determined. as Bernard Lonergan would tell us. it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas. Finally. moving to understanding. Finally. beginning with experience. one who is accostumed to living in a world mediated by logical positivism and newtonian physics. paradoxically enough. or Substantial Form. a "non-systematic statistical divergence from a classical norm or rule" of course takes place. or the Immutable Platonic Forms. relational meaning streams structure and partially constitute reality. rather it is grounded in Saint Thomas the Apostle. Doubting Thomas is the Patron Saint of Critical Thomism. Our world is not just a po-mo (post modern) fantasy. might find the foregoing discussion a little bit "out there." Nevertheless. 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. One suspects that Saint Thomas the Apostle himself very 8 . Outside of space-time." This is completely consist with the point that the Immutable Platonic Forms exist. subsist. as Bernard Lonergan would put it. this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules. "The World Mediated by Meaning. Finally. it should be pointed out that statistical probability. outside of space-time." Now. it is at Level 3 that reality is structured by "relational meaning streams.not changed. Change can occur without "change" occuring. and culminating in judgment and reflection. in fact it is ordered by higher metaphysical principles which can be confirmed through one’s own personal reflection upon and experimentation with the cognitional structure of one’s own mind. To some degree." As I have pointed out previously.
had judged it to be true as a matter of a critical judgment of fact. moving to understanding. Thomas did not believe in the resurrection of Jesus until after he (Thomas) had experienced the physical presence of the Post ressurection Jesus personally. I think for me the tradeoff is worth it. presumably had understood it. I go with Doubting Thomas. 9 . The Critical Thomist may doubt. but nevertheless. For me. and then finishing with judgment. he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith. obviously starting with experience. and then. So there it is. and finally through a process of critical reflection and judgment. Although it may take take me a little longer to see Reality. when I do. political or religious. I think that I will be sure that it is Reality and not something else.well may have been a Critical Thomist.
if I lived in Crete. I could never quite figure out where he was coming from.CHAPTER III CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL? Hypo Nazi’s marching in Skokie. and the people there were not cool and if I (Prof. Nebraska. Constitutional Rights. The whole issue of people getting along. In Mass Communications Law I had chosen to sit in the anonymous middle of the class. Professor Snowden tried to help us get it. a reminder to many of Nazi’s marching Neurenberg. individual rights. We got it in class somewhere. Then one day in class it started coming together for me. especially in law school at the University of Nebraska College of Law. Exactly where I don’t remember.’ Mr. Snowden) was concerned that I could not get a fair 10 . certainly not sitting in the front row and being a "gunner. rather than "back benching" it. Snowden said: "‘Nowwww." Suddenly. how did it all fit together? Well. Prof. Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. Fejfar. out of the blue I heard my name being called. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career. Daoist? Zen? On the Left? On the Right? I wasn’t sure.
So. Fejfar) could say is that that would make you. of course the usual blank out caused by panic. So. What could I possibly say? This question didn’t involve ’t in the case in the case book. This was like getting lost in the grocery store at age four and not being able to find mom or dad. (Of course we all knew that Prof. and. were not cool. Lonergan strikes again. Eureka.. 11 . That cold empty feeling in the pit of your stomach. Nebraska. Snowden continued: "‘Wellllll’. Mr. Click. Nebraska. why couldn’t we have a system that handles it that way. It wasn’t even close. of course. Nebraska. where the people were cool. Snowden) move to Lincoln. Prof. Nebraska)– why couldn’t I (Prof. the people in Crete." Now. Was it some sort of Jungian unconscious linkage? My response? Panic of course. Snowden would get along great). if you have 1 Of course I definitely did not say "excretion" or "shit. Inspiration. Then it hit me. Professor Snowden. with me moving to Lincoln? What do you (Mr. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing).shake in court (in Crete. what was I supposed to say? First of all I was reading the assigned case and looking over my case brief. Professor Snowden. I guess if you lived in Crete. inspired. I (Mr. I guess all I (Mr. Nebraska. Once again. an ex-cretian1. Sweating palms.." the term ex-cretion was of course only a merely coincidental use of language relative to those terms. King at the Zoo Bar downtown). Shit. Insight.B.(and where presumably Prof. Snowden was cool– what other Law Professor could you catch watching and listening to B. I did have a little premonition I think. out of the blue. And then. where the people were cool-. Fejfar. Fejfar) said: "Welllll’. Fejfar) think of that?” Now. and then you Professor Snowden moved to Lincoln.
of course. in the spirit of Professor Snowden. but really in a backhanded way. but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class." 12 3 . Snowden was just great. And.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. with only a few scattered laughs. It’s not that Snowden was hiding the ball. being the proverbial student lounge area in the basement of the law school. Now. who always "hid the ball. The "Harvard" of the Plains). Second. it was meant as a compliment. All my professors were good– don’t get me wrong." of course. and having it in print would help to pass it on in the lore of my alma mater (Nebraska. I of course thought that I would receive a startling round of applause from my classmates. I think they have better things to do with their time). 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. why did I tell this story. first of all I think Snowden would love hearing the story again. and in thinking of Constitutional law relating to the First Amendment. Prof. you might well anticipate. Perhaps it was to poke fun a little bit at Professor Snowden. This. risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary. of course. and beat his forehead on the table several times.gotten the joke here. "out of school. I don’t think there was a ball to hide with Snowden. Professor Snowden placed his head on the table from which he was lecturing. Why? Well. is to be contrasted with Professor Bob Works. I am going to press the envelope in this 2 The "pit. that at this point." in this essay.
" so that the clause can and should be read. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta. It guarantees that all freemen shall not be "taken. watching it on a black and white t. Finally. 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. and Stephen. Kingsblood4 I remember my mom saying. that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta]. after the Battle of Runnymeade. in the alternative. Boston 4 Now of course this might be pure hypoerbole.” ..v. I am a liberal kennedy democrat "hiding out" as a moderate democrat. but then again. or disseized. This seems rather awkward though in light of his earlier support for and approval of the Document. Indiana. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III. of course. I remember that my mom and I both cried. (We’re Fitzgeralds. scriveners error. here. which 13 . I usually flash "progressive" when I hit faculty functions and faculty meetings. Now.. there is an infinite regress. Magna Carta is interesting.” or. it only takes a little bit of analysis to see that the requirement of Magna Carta." Now.. that is. 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... or exiled. or outlawed. The Archbishop of Canterbury was a signatory. of course.. I remember Jack Kennedy’s funeral when I was four years old.save by lawful judgment of his peers or by the law of the land." I have three arguments. alleging that it was coerced. the authors really intended "and" not "or. 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. with my mom in our rent house in Terre Haute." Second. when my dad had his first teaching job at Indiana State (I guess this was around 1963). approved it. Magna Carta is one part of the "Law of the Land. (One Warin Fitz Gerald. a Fitzgerald was a signatory of the English Constitution. Norman Irish. or imprisoned. though. Magna Carta in the year 1215. It was especially sad because we were Irish Catholic (my mom half. me one quarter).article. or in any way harmed. First. is that the judgment be one of "lawful judgment of his peers [and] by the law of the land.
as well as the United States Supreme Court Bar. Sure. there was a lone gunman in each case. They were fanatics. the Catholic Liberals were Thomists.) Then. We believed in Reason. as Tom Shaffer might put it. Catholic Thomists believe in Liberal Truth. "Who cares?" Well. natural law (common law). It was impossible. in my case. at this point you might say. I figured it out at Rockhurst College. Ours family went West after the Civil War. or Creighton. I do. and thus are Esquires. Not again. that means that I have a right to a jury of Lawyers who have passed the Bar. Now.Fitzgeralds. it was the Kennedy curse. Suddenly instead of Camelot. Ted knew. but in our household we knew it wasn’t the whole story. 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. it was somehow in the blood. I think. If they can’t find such a jury. and a jury of those who are Members of the Order of the Coif. tough luck. I didn’t know what it was. A Liberal Irish Catholic simply could not be President of the United States. 14 . We. of course Bobby Kennedy was shot. I’ve got judicial immunity. We knew truth was possible even though it might be a little ambiguous and hard to get at. we all knew. They were the antithesis of everything we believed in. and of course is irrational and therefore an unacceptable interpretation. These killers were fundamentalists. It couldn’t be. that’s the story. Now. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. Thomas Aquinas said there were three levels of law human law (political law).
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
I argue. unless prevented by estoppel." a Universal Natural Law Ethical Decision making tool. that if one practices using this tool long enough. Its foundation is justice and good conscience. perhaps the word "hae" as a personal neuter pronoun. not wanting to be sexist. his positive acts. rather than "his" or "her" would be More appropriate. An author faces this problem constantly. one developes a conscience (to the extent that one does not already have one). and his silence or negative omission to do anything. remarkably enough. and its practical effect is. one way or the other. using that word in its broadest meaning as including his6 spoken or written words. I think that this solves the problem nicely. from the motives of equity and fair dealing. The doctrine of equitable estoppel is 6 Although I use the original word “his” in the quoted text. 7 18 . to create and vest opposing rights in the party who obtains the benefit of the estoppel. and in good faith.of a party.7 Its object is to prevent the unconscientious and inequitable assertion or enforcement of claims or rights which might have existed or been enforceable by other rules of law. In my "Home Run Ball" article I introduce the "Ethic Matrix.
97 N. 1918) (Citing. Maine Cent. pp. 644 (1912). Bank v. Franklin v. Conway Nat’l.W.." That is.E. Board of Education. it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel. and in particular. Lee. 139 Pac. 21 Atl. 182 S. While some might argue such an approach is inappropriate. 1016 (1916). Rothschild v. 986 (1916). 8 2 Pomeroy’s Equity Jurisprudence. Brusha v. Title Guarantee & Trust. 19 . 1068 (1912). it is in fact no more radical than arguing in equity that Constitutional rights can be waived. or its application to others in similar circumstances. 143 S. Duncan. Clark & Boise Lumber v.W. 1635-1637 (4th Ed. one comes up with the Doctrine of "Constitutional Estoppel.8 Now. R. in relation to the First Amendment of the United States Constitution.pre-eminently a creature of equity. section 802. 740 (1890). 157 Pac. Havalena Mining. 879 (1912)). Martin v. one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution. Pease 82 Atl. Bank of Neelyville v. in conjunction with the United States Constitution. 298 (1913). as such.
Robotic9. requirements have been met. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes. Constitutionally Estopped from getting the permit and marching. Rupert Robotic. Mr. A. Robotic. Those opposing the permit argue that Mr. and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States. to march in Skokie. the Hypo Nazi Party10. Robotic and his cohorts are. applies to the local Federal District Court for a permit for his group. 9 Mr." of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945.Now. as well as several other interested parties oppose the permit application. They assert that reasonable time. Mr. 20 10 . here is how it goes. Robotic is of course a purely fictional character. Our Hypo Fuhrer. and manner. such a resemblence is purely coincidental. how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well. and any resemblence to anyone else is purely a coidcidence. The "Hypo Nazi Party.) Cross Examination (United States Attorney) Q. on information and belief. Direct Examination (Mr. please state your name for the record. represented by Counsel for Applicant. place. and a such for First Amendment Free Speech and Free Association protected purposes. The United States Attorney.
We oppose the United States Constitution and the First Amendment. A. isn’t that correct? A. Q. Mr. would also have a right to a permit to march in similar circumstances? Absolutely not. Mr. to kill or place such people in concentration camps. perhaps. Your honor. Robotic you are representing the Hypo Nazi Party. mental or physical. not in your party. Under pain of perjury. Applicant. Q. Your Honor. Q. I withdraw the question. Your Honor. and the other interested parties have waived cross. Your Honor. Yes. The First Amendment thereto under which any rights of free speech and free association can be asserted. A. Q. do you agree that other persons. such as racial minorities. Robotic has admitted on cross examination that he and his party reject the United States Constitution. (Applicant’s Counsel: Objection. once we reach power.Q. that is the end of the United States Government’s cross examination. isn’t true that your Party supports the abolition of the United States Constitution. 5th Amendment). Irrelevant. Q. Robotic. and in that capacity are requesting a Parade Permit to march in Skokie. Mr. Q..) (Judge: Overruled.. and finally has specifically denied that 21 A. . including but not limited to the First Amenment? Well. please answer the question. Q. Robotic. Alright. handicapped persons. Does your opposition include violent means? (Applicant’s Counsel: Objection. Mr. at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel.. It is our intention. Answer goes to the Estoppel Argument). yes. We want them abolished. Under pain of perjury.. Your Honor.
" that I encourage my law students to develop. persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade. it is developed. Nazi Party in this matter. Now. Additionally. This Court is adjourned. I am also denying the Permit on the basis of Equitable Estoppel. Liberty. nor is it simply discovered.” Although it may seem 22 . This is the kind of law. Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations. Thank you Counsel. Therefore. this is how things would play out if I (Prof. Like panning for gold in the Rocky Mountains in Colorado. Robotic and his Hypo Nazi group from marching. Mr. rather. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw. and since he rejects the First Amendment itself. "pushing the envelope. It is neither created. one last thought here." "thinking outside the box. and incorporated by implicit and constructive reference into the United States Constitution. the United States government and the United States Attorney argues that Mr. 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. but do not even have to rights of Life. and. that although it could be used against a criminal defendant in certain circumstances. found in the Declaration of Independence. since. and Pursuit of Happiness. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case. Tony Fejfar) were on the bench.A. The Court is now ruling from the Bench. as such. as well as the United States Constitution itself. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. Alright. one must simply swish away the slag and the fools gold and look for the real gold that was always already there. Now. it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts.
CHAPTER IV A HOME RUN BALL. POSSESSION OF PROPERTY AND THE ETHICAL MATRIX. Fejfar Reciprocity Jung Intuition Jung Thinking Lonergan Reflection Judgment Equity 23 Lonergan Understanding Proportionality . 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. A UNIVERSAL NATURAL LAW ETHIC The Ethical Matrix Copyright (2002) by Anthony J.unlikely to the typical bystander.
Ethics . Proportionality as a basis for Justice is found in the work of Aristotle. 5. Feeling. See . The cognitive functions of Thinking. Equity is based on the principle that Equity favors the one in need. It is found in common law equitable precepts. and Sensation come 24 . It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require.Jung Lonergan Feeling Feeling Utility Jung Sensation Lonergan Experience 1. Proportionality is based upon Mathematics and Geometry. 34 (1971) (discussing Value as a transcendental notion). An analogous concept is found in modern economics and the philosophy of Mill and Bentham. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. See. Aristotle. Bernard Lonergan. 1131a22-1131b14 (1976). Aristotle. Ethics. 4. Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. 2. Utility involves the Maximization of Value. It is based on the Golden Rule found in the teachings of Jesus of Nazareth. Method in Theology. 3. Intuition. See also. 1137a351137b24 (1976).
then it follows that life is play. (See Carl Jung. Copyright .11 Tony Fejfar 1. 2002 Anthony J. Existence is a Game to be Played. policy. that life. The Essay then proceeds with an example involving possession of personal property and a "home run ball. is. Cognitional Structure in Second Collection (1967)). Introduction. 25 . One could also see this phrase as a Zen Koan. 6 (1990))." The Essay then involves a linguistic. is like a baseball game. A Universal Natural Law Ethic. It is concluded that the Ethical Matrix is a valid natural 11 A common expression.from the work of Depth Psychologist Carl Jung. And if indeed baseball is one variety of play. This Essay begins with an overview of The Ethical Matrix. reflection/ judgment come from the work of Bernard Lonergan. and then ethical analyis of the problem presented in the example. Psychological Types . Fejfar. understanding. (See Bernard Lonergan. If one broadens this concept even further one finds that existence is a game to be played. The cognitive functions of experience.
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.
is that Equity is based upon aconceptual wisdom19intuition20 which has compassion for those in need. The hosts run out of wine and don’t know what to do. John. v."). the roman Minerva. (See. The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). T. In this narrative. 2. Bastick. Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. the underlying symbolism of the narrative is the same.21 This is seen for example in the equitable doctrine of unconscionability.22 19 The mythos of wisdom if found in the greek Sophia and Athena. Bible (1977). Chap. 1-11. and Jesus does so. turning water into wine. and the catholic Holy Spirit of Divine Wisdom See generally. Feminine Equity based upon wisdom intuition 20 21 29 . 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. Mary asks him to perform the miracle anyway (Equitable intervention based on need). Oxford Anno. Whether one takes these events as literally true or not. Jesus of Nazareth and his mother Mary were attending a wedding celebration. Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition. The hosts come to Mary and ask her if there is something that can be done.
30 . sophistication. 441 N. for the application of the equitable doctrine of unconscionability. 22 See.intercedes to make an Equitable Exception from a general rule based upon need. Hoosier Photo. and bargaining power.2d 450 (1982) (discussing the "need" factors of knowledge. Carr v.E.
"Psychological Types" (1990). 31 . Thinking.23 as seen in the figure below. Carl Jung. Isabel Myers. "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work). and 23 See generally.The Ethical Matrix finds support in the work of depth psychologist Carl Jung. See also. Feeling. the Jungian psychological functions of Intuition.
and Love. 32 . understanding 3. support the respective Ethical Principles discussed above. 3.24 and the Lonerganian cognitional functions of experience. Judgment/Reflection. The natural law ethical principles are universal in the sense that each contains minimal moral content. In order to more fully access the principles one must intuit Being. Such intuition is ordinarily most 24 Lonergan discusses the cognitive functions of Experience. These functions correlate to the Jungian functions as follows: Jung 1. 4. Understanding.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. 2. understanding. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience 26 Bernard Lonergan."26.Sensation. judgment/reflection 2. 25 Lonergan Experience Understanding Judgment/Reflection Feeling (including Love) Sensation Thinking Intuition Feeling In this context. and reflection/judgment. my schema is as follows: Lonergan 1. Insight 350-352 (1956).
fully developed through sustained mental activity involving contemplation or meditation.27 It is argued that the Ethical Matrix itself and the principles contained therein is best utilized by one who both intends and actualizes a reflective life, rather than merely a moral life, or a selfish life.28 This is simply true because it is very difficult for a moral person to reflectively evaluate moral rules if in fact those very moral rules are at the core of that person’s identity. Similarly, it is very difficult for a selfish person to decenter imaginatively and consider the needs or viewpoint
See, Frances Vaughan, "Awakening Intuition" (1979).
28 This parallels the Aristotelian notion of three different types of living, the contemplative life, the political life, and the life based on pleasure. See, Artistotle, Ethics (1976). It also parallels the levels of the soul or different types of life described in the work of Plato, which, are respectively, the life of wisdom, the life of ambition, and the life of physical passion. See, G.M.A. Grube, Plato’s Thought 67-68 (1980). It also parallels the stage theory found in the transpersonal psychology of Ken Wilber which asserts that there are three different levels of consciousness, body, mind/soul, and spirit. See, Ken Wilber, Sex, Ecology, Spirituality 447 (2000). As pointed out by Wilber, these levels in turn parallel the levels of morality described in Kohlberg’s work which are pre-conventional, conventional, and post-conventional. Id. at 5. See, Lawrence Kohlberg, Moral Development, 5 Int’l Encyl. Soc. Sci. 483, 489 (1968). This general schema can be seen in the chart below:
Fejfar 1. selfish life 2. moral life
Aristotle pleasure political life
Kohlberg pre-conventional morality conventional morality post-conventional morality
physical passion body ambition soul/mind spirit
3. intellectual/ contemplative life wisdom reflective life
of another. On the other hand as pointed out by Wilber 29it must be noted that the upper levels do not negate the existence and operation of the lower levels, rather they sublate and integrate them.
See generally, Ken Wilber, "Sex, Ecology, and Spirituality" 28-29 (2000).
Thus the reflective person does not reject moral rules as such, but rather refines them and uses them in a more reflective, flexible way. Similarly, the reflective person does not deny pleasure as a positive value, but rather recognizes that higher order "pleasures" may have more value in certain contexts than mere physical pleasure.30 Thus intellectual "pleasure" or psychic satisfaction produced by "flow"31 experiences may be valued more than eating caviar at a cocktail party. However, the principle of Value in the Ethical Matrix does contain within the inherent notion of "positive" value. Thus pain or suffering which is sought as an end rather than as a means to higher pleasure is seen as a psuedo-value rather than as a positive value.32
Having discussed an overview of the Ethical Matrix the Article now proceeds with a fuller discussion of each one of the four ethical principles and a discussion of how the Ethical Matrix is
30 C.f., G.M.A. Grube, Plato’s Thought 68 (1980): According to Plato’s work, "It follows that the pleasure’s of the mind are the greatest, those of honor inferior, and the physical pleasures come last of all. Plato does not say that physical pleasure is a delusion or that honour is an empty thing. He merely gives it as his considered opinion that they pale into insignificance by the side of the pleasure that one gets for the search for the truth." In Wilber’s language, the higher is arguably better because it both transcends, integrates, and sublates the lower without losing the positive aspects of the lower. 31
See generally, Mihaly Csikszentmihalyi Flow (1990) (arguing that at "flow" experience of "spiritual" satisfaction takes place when one places oneself in the "flow zone" between boredom on the one hand and stress from failure on the other hand in relation to chosen goals or tasks). Thus, while the sado-masochistic experience of pain simply for the sake of pleasure is rejected as a value, pain can be chosen as an instrumental value to achieve higher pleasure, satisfaction, or flow. Thus, the basketball player is willing to put up with the pain and suffering involved with running wind sprints after basketball practice because he or she knows that this will improve his or her ability to play basketball for a longer period of time in a game in a more satisfying and skilled way.
7. Oxford Anno. while my formulation has a more individual flavor. "Treat another as you would wish to be treated in a similar context.33 My formulation of the rule as the principle of reciprocity is somewhat different. Ch. 36 . v. Additionally. 12. Bible (1977). one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action. 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.used most effectively. 3." Although the two different formulations are very close. it has a more communitarian flavor. The idea of reciprocity as an ethical principle takes into account the value of 33 Math.
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.Autonomy. see John Rawls.34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. 37 . This is the actuality of Reflective Autonomy rather than rational autonomy which manifests at the moral level based on moral rules and in a more limited sense at the selfish level based simply on the maximization of pleasure without reflection. "A Theory of Justice" 513-519 (1971).
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. 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. Ford answers.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix. "‘God plays dice with the universe.’" Id. however. at 314. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness. James Gleick. Chaos (1987)." If one sees the relational meaning streams as immutable platonic forms. What are these relational meaning streams." "rearraned but not changed. its correlative cognitive functions. Of course one finds the notion of the "Good" in Plato’s work. how much do they change. see. 38 36 37 . For a general discussion of Chaos theory. 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." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable. or change context. then one would probably argue that such forms can be "added to but not subtracted from. and when? These are the questions which have vexed philosophers for quite some time."from the point of view of ordinary causality." but also as "Being." What sort of "chaos" is produced. while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. is an even more interesting question.’ ‘But they’re loaded dice.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.
one must imagine that one is Stan placing himself in George’s shoes. that is. there is no value to be achieved by Stan in having his face punched. and have Stan engage in a reciprocal reflection. and in the absence of a higher value achieved instrumentally through pain. Is there any 39 . Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal. he (George) would not want to get punched in the face for no apparent reason. Although in this situation the double reciprocal reflection may seem unnecessary. Utilizing what can be described as "double reciprocity. Stan does not choose pain for the sake of pain. let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. George must place himself imaginatively in Stan’s shoes and ask himself. however. This.accurately and making better decisions. will choose pleasure over pain. How then does one utilize the principle of reciprocity? One must use one’s imagination to identify the relevant actors in a particular situation as well as the values involved and then decenter one’s own identity imaginatively to consider the viewpoints and the values involved relative to each actor. after having imaginative placed himself in the place of Stan and utilizing the values of pain avoidance and physical harm avoidance would then reflectively come to the conclusion that if he (George) were Stan. if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason." George must now place himself in the shoes of Stan. Taking simple hypothetical then. is not the end of reciprocal reflection. 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. George must posit that Stan’s desires in the situation are based upon positive values. George.
39 40 .38 Having discussed the ethical principle of Reciprocity. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse. 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. See. the next subsection will discuss the principle of Utility. would see any value in George’s potential activity of punching Stan in the face. 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.reason why Stan imagining himself as George. Additionally. Jeremy Bentham. "The Principles of Morals and Legislation (1988). 4. The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan. there does not appear to be any higher reflective or moral value which Stan might recognize as valid. 38 While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face.
even those who have a good intuitive sense. Additionally. the Author. and who intuit Being and Value in a positive way. it is problematic in that it is not a principled ethic. am building on the work on Bernard Lonergan. Although this has much to recommend to it.pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. it must be stated at this point that my approach to decision making differs. Here. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. 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.40 What can this mean? The Author would Bernard Lonergan. As pointed out by Jesuit philosopher Bernard Lonergan. Value is a transcendental notion. Finally. as I pointed out in my first article in the Boston College Law Review. the argument is that Utility is the ethical principle based on the maximization of Value. Lonergan could only theorize that 40 41 . Method in Theology 12 (1971). The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. Although it is obvious that I.
and is one which promotes constitutional democracy. objectively. 42 . and due process of law." While I have always read and interpreted this in a positive light. and have as a result of that process developed the Ethical Matrix. Additionally. the rule of law. is the "good of order. then one begins to have a basis for ordering one’s values. as such. the state. it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable.argue that Value is an core relational meaning stream. If one reflectively intends Value. and the law. the goal of political society. Thus I spent approximately 5 years in a search for somehow supplementing Longergan. 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. It is my position that the Ethical Matrix is the natural law-critical realist ethic. or in the context of a particular public policy analysis.
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. cannot be denied. Thus it is not unusual. upon reflection. can certainly be the basis for a particular value. as such. While Aristotle argued that the end of the human person is happiness. Additionally. While the moral life has many positive attributes to recommend it. reinforced.43 Other than this general 41 42 Aristotle. for various religious groups to have violent confrontations. First. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure. First. However. and enforced through moral communities and authority figures. pleasure. 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. the reflective person chooses a higher pleasure over a lower pleasure. for example. This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life. moral rules are taught. the problem with simply living the moral life is that even if one were to receive an instruction booklet of "perfect moral rules" (which is of course is impossible absent something like an angelic intelligence writing the rules and then interpreting them) given the 43 . one can begin to recognize higher pleasures. several points can be made. 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. for example." 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. it does entail certain problems. Ethics 1097a15-1097b2 (1976). 41and that true happiness is achieved through the contemplative life. and through the intuition of Value. It is asserted that all other things being equal. 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.What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem.
C. anti-self interest" operates. but Spirit is timeless. and even when they are achieved. the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends. In other words. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . and cannot there be found. The acquisition of the sports car will typically not satisfy the selfish person. 43 Perhaps it goes without saying that for an adult. We seek for Spirit in this or that object. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. in point of fact.. but Spirit is not an object. let us hypothesize a person who selfishly and unreflectively desires the latest sports car. Ken Wilber. Instead. Because these rules exist. he or she must have a better more prestigious sports car which in turn will not suffice. the non-reflective. manipulation of others. And that is the Atman project. the selfish life is immoral and unethical. "irrational self. Thus. Additionally. shiny and alluring and full of fame or fortune. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value.. 44 . the Author would argue that something like liberal "original sin. 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. Id... and cannot there be found." that is.f. 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. but the Spirit is spaceless. The Atman Project (1999): We seek for Spirit in the world of time. the selfish person usually cannot even accomplish these goals without running into problems. the accumulation of material wealth. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law. and it cannot be seen or grasped in the world of commodities and commotion. leaves the person with a lack of genuine pleasure. at 61. 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. but rather impedes it. and the pursuit of lower pleasure as one’s only ends in life. and force us to settle for substitute gratifications. we are seeking for Spirit in ways that prevent its realization.complexity of the real world it is impossible to make appropriate decisions without contextual reflection. We seek for Spirit in the world of space.
or as it is put biblically. The second corallary is that Perfect Justice is found in Perfect Proportion. Proportionality. The principle of proportionality is found in geometry and mathematics. It involves the idea that perfect proportion is found in a 1:1 ratio. and as expressed in particular concrete values. has no definitive serial ordering. it must be stated that Value itself. for example. Proportional values involve the value of equality and having rules. on proportionality and proportional thinking. one’s assessment of Value and concrete values in the context of the Ethical Matrix is of course influenced to a great degree upon the ethical principles of reciprocity and reciprocal thinking. and. punishment should be meted out in perfect proportion to the crime committed. Thus. all other things being equal. and equity and equitable thinking. This leads us to our discussion of Proportionality. while equitable values involve the value of favoring or helping one in need. in criminal law. of course. or in an equalateral triangle which has been divided down the middle. however. Or. 5. compensatory money damages should always equal the amount damaged. other than to say that it is self evident that Value itself must be valued.guidance or limitation. "An eye for an 45 . once again.
23-25 Oxford Bible (1977) ( For any harm. burn for burn. Apparently in his culture in ancient Greece it was not politically correct to assert the position that a servant bringing a lawsuit a against a noble would be 44 See. 21. v. "life for life. although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. in his Ethics. appears to be the first person to formally recognize proportionality as a basis for justice. Exodus. hand for hand."44 Aristotle. wound for wound. stripe for stripe.eye and a tooth for a tooth. you shall give/have. Ch. eye for eye. 46 . tooth for tooth. foot for foot.").
there is a problem with this approach that Aristotle himself recognized.48 45 46 See. 1130b32-1131b14. then it is right. Aristotle. Id. Aristotle. has erred in not covering that case.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice. and a case arises under this that is exceptional. and there are some things about which it is not possible pronounce rightly in general terms. and as he would have enacted had he been aware of the circumstances.. [W]hen a law states a general rule. "[A]ll law is universal. in fact this is not possible. where the [legal decision-maker]."47 Thus. Ethics. 6. 47 47 . owing to the generality of his language... Equity In his Ethics.treated equal on the basis of formal equality. Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance. to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there.46 As Aristotle puts it. Ethics 1137a17-1138a11 (1976). 1132b3-1133a13 (1976).
.Therefore... "the essential nature of equity. 48 . a rectification of law insofar as law 48 Id. is..
" otherwise injustice is simply produced by unnecessary rigidity. that rather it is impossible to generate a rule system that would justly take into account every possible circumstance.is defective on account of its generality. 51 49 . however."51 And as noted earlier. 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. The question remains. when does equity intervene. and how? Here there 49 50 Id."49 This of course raises the corallary question. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. I suggested no to this question. 694 (1986).50 We live in a "jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence. Anthony J. is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words. many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. Fejfar. 681. individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch. Thus. Id.
Having discussed the component parts of the Ethical Matrix in some detail. Legal Analysis and the Concept of Possession in Property Law "Possession" in Property Law is usually defined in terms of control. it is from this feminine intuitive wisdom that our equitable sense of justice comes from. 7. we will now move to a concrete but theoretical legal problem. to be followed by a section analyzing the concept of possession in light of the Ethical Matrix. the next section will deal with a discussion of the concept of possession.52 It is an assessment not made upon strictly linear truth as one would find with a proportionality analysis. Thus. This intuitive intermediate way of knowing which is associated with wisdom. the definition of possession in Property Law. 50 . but rather one which is alinear and arational. rather only a strictly logical exception. 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. and a true assessment of need must be an intuitive one. 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. accessible both to women and men. is a half way house between purely irrational emotional feeling and strictly rational analysis. Nevertheless.can be no hard and fast answer other than the fact that equity is based upon need.
but it need not be. If one analyzes a concept enough. the substance of what the students are getting at remains the same. 473. this of course would be a problem. If however. Girdeau Spann.that one has control over personal property. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. 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. L. While we sometimes get to 10 or 12 or so different words. we try to generate list of definitions of words associated with possession. 51 . utilizing a higher and different cognitive operation than pure logical analytic reasoning itself. "Deconstructing the Legislative Veto. 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. this could be troubling to you and I. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. The problem. and that is this: possession is related to control. one is typically thought to possess it." 68 Minn. is that when one attempts to find an adequate definition of "control. one simply is presented with the phenomenon of "analytic spin. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control. because all definitions are ultimately circular."53 showing that all definitional arguments are ultimately circular and thus indeterminate. for example. Now if we expected to find reality on the level of logic or ideas. 520 (1984). we find that reality comes at a higher level. however. Now. 53 See generally." Should this surprise us? No." one is again faced with a problem. Rev.
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. on the "reacal" level. At level one. possession could be considered respectively. which deploy as follows: 3. Now all of this seems very abstract. and then using physical or political force to retain possession. returning to our concept of possession. on the three levels above. Reality: Intellect/ Reflection: Intuitive Reflection and Integration of Policy and Values 2. so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case. At level three in "reality.54 This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention." one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. a critical realist understanding of the problem can be seen as involving at least three levels to reality. possession could be experienced in a relatively unconscious way by a person grabbing and holding onto a item such a baseball. Reacality: Body: Sense Experience/Data: Power/Authority Power Politics Now. Actuality: Mind: Understanding: Logic and Logical Reasoning 1. Following the work of Bernard Lonergan. He also wishes to thank students from several property classes 52 54 .then we find that there is no problem at all.
" Id. Patriot News Newspaper. Oct. clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands].. emerges from the pile he has been mining for more than a minute with a smile and appears to say." Id. but then it drifts back into the glove. Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco. 10. "[A] man.000 received at auction for the home run ball.. 2003).. Who gets the ball? According to Jorge Costa.. Team Senior Vice President of Pacific Bell Baseball Park Operations. 2001). Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away. St. Both Popov and Hayashi end up claiming the ball.. as well as this article. that’s the end of that. "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. In the Barry Bond’s Home Run Ball case. June 26. "A tape of the homerun scrable. (2001 Westlaw # 25594143. (2003 Westlaw # 3207018. who turns out to be Patrick Hayashi. 53 . ‘Who has the Ball?’ Id. "At first the ball appears to [pop] out. "Another 30 seconds pass and finally Hayashi pulls the ball out of what appears to be his pocket and offers a broad smile and asks: ‘Is this the ball?’ Id. A lawsuit is filed and the case ends up settling with a 50-50 split of $450.who have discussed the possession issue relating to a home run ball. Petersburg Times Newspaper." Id." Id.
your glove opens an inch 55 For many fans.55 Suddenly Pudge Rodriguez hits a home run into the stands in left field. As each ball heads toward the seats.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you. Baseball and the Pursuit of Innocence. and risk injury attempting to catch baseballs rocketing their way. especially the younger ones. Richard Skolnik. The ball has just made contact with the trap of your glove. Many will bring gloves.Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. and instead of completely closing. and other apparatus to the ballpark to aid in their quest. to the author’s knowledge now plays for the Florida Marlins. the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. 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. You reach up to catch the ball. nets. that fan can expect appreciative cheers from the crowd). but you slip on a hotdog and lose your balance. 54 . There are few more memorable experiences than leaving the stadium ball in hand. 56 This is obviously an imaginary hypothetical since Pudge Rodriguez. 173-74 (1994). and will occasionally display incredible bravery (or is it foolhardiness?).
Joe Smith. The ball pops out of your glove and into your other hand. bounces back toward your glove. Costa’s position.57 57 This appears to be Mr. Ballpark rules say that the first person to "possess" the ball owns it.further and you start to bobble the ball. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. See supra. You say the ball is yours because you caught it first. 55 . the second guy says it his because you did not have control of the ball. note .
59 Although both these cases deal with the possession of wild animals. 6 Q. they are the only two relevant cases. A fathom is six feet in length. fish. 62 63 56 . 607. Shaw. in Bruce and Ely.The case is turned over to a judge who must decide the case based on case law from two previous cases. 900 feet would be a length of 300 yards or three football fields long. namely. 606 (1844). 875 (1902). Modern Property Law (1999). for our purposes. 65 N.60 In Young v. Hichens58 and State v. Young v. the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish.B. Black Law Dictionary. The argument is that a flying baseball is analogous to a free flying wild animal."63 "leaving a space of about seven fathoms 58 59 60 61 6 Q. Hichens.E.B. Bracketed information found in edited version of Young.
Id... "two boats belonging to the plaintiff.. 57 ."66 At this point the defendant took his boat through the gap in the plaintiff’s net and then the defendant completely enclosed the plaintiff’s partially enclosed fish and took them into his (the defendant’s) possession. "which he was about to close with a stop net.67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken 64 65 66 67 Id.open. and splashing the water about for the purpose of terrifying the fish from passing through the opening. Id... Id. were stationed at the opening.."64 (42 feet)."65 At this time.
this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals. "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish. 611."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.72 In Shaw. Lord Denman stated.in the defendant’s net. Chief Justice.B. If the plaintiff did have possession of the fish."69 "It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he [the plaintiff] had not possession. 58 ."70 Additionally. "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.68 At issue in Young. 6 Q. is State v. Justice Patteson stated. Id. the defendant was criminally charged 68 69 70 Id. In contrast to Young. In his opinion. was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant. Shaw. Partial control is not enough.
875 (1902).71 72 Id. 59 .E. 65 N.
E. 60 74 75 76 77 78 79 .78 The trial court directed a verdict of not guilty for the defendant. 65 N. In fact the case only inicates that the these parties were named in the indictment. to prove theft.74 The facts indicate that the compainants had placed "trap nets. there can be no theft. 876. 65 N. the defendants who were not the owner-complainants.E. Id.with stealing 730 pounds of fish from the complainant’s73 nets. 68 N.76 In Shaw.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. not that they were formal complaintants. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment.E. the defendant must have stolen property from someone owning the property."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. took the fish from the owner-compainants’ nets prior to the return of the owner-complainants.79 73 The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken. and the state appealed. to escape. To put the argument more fully. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets. 876. 876.
84 8. from which it was not absolutely impossible for them to escape. Id. Id."81 The court opined."83 Thus. 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. therefore. They were confined in nets. 80 81 82 83 84 Id. yet it was practically so impossible. Id. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession. for it seems that in ordinary circumstances few. at 876-877."80 The court noted that in Shaw. 61 . Id. of the fish escape."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net. if any. that it considered the trial court’s approach to be "unnecessarily technical and erroneous.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. "the fish were not at large in lake Erie.
You say the ball is yours because you caught it first. Young. You reach up to catch the ball. Daoism was first developed in China by Lao Tzu.85 85 Of course one might argue that if Freddie Fan or Joe Smith were in the Dao then all this concern about getting the baseball would be irrelevant. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. as to who has a right of possession in the home run baseball. when another fan reaches in with his hand and grabs the ball out of your unclosed glove. Joe Smith.In the present case we must attempt a logical analysis. but you slip on a hotdog and lose your balance. as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. Suddenly Pudge Rodriguez hits a home run into the stands in left field. You (Freddie Fan) have your ball glove on and the ball is coming right toward you. and instead of completely closing. In this sense the ball is like a "wild duck" flying into the stands which then becomes the property of the first person to "net" the "duck" and place it in his or her possession. if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. based on the foregoing precedents. both the batter. See generally. The argument is of course that by custom. the second guy says it his because you did not have control of the ball. The ball pops out of your glove and into your other hand. Arguably. 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 Wisdom of Laotse (1976). and Shaw. bounces back toward your glove. your glove opens an inch further and you start to bobble the ball. The ball has just made contact with the trap of your glove. This possibility is reflected in the following story: 62 .
al. Chicken Soup for the Baseball Fan’s Soul. she [my wife] said. First inning. we watched the ball drop between us–right in [my wife] Joanne’s lap. "Honey. To our horror. Looking up with a wide grin.It happened this way: My wife. and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. The [D]ao of the Jumpshot (2000). stepping back to let his son’s dream come true. To paraphrase Lao Tzu: The brave baseball player is not athletic. I knew this was it: I was about to grab a [fly] ball! Then I stepped back. 63 . John F. I thought you said catching a [fly] ball was tough. Dad and I leapt to our feet. Rudy. The Virtue of Non-contending 293 (1976). The good fan does not lose his temper. see. my Dad. The good fighter does not lose his temper. et. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. realizing that I had to let my Dad get it. edited by Jack Canfield. He hit a high pop-up that came sailing straight at us. The great player does not compete. For a discussion of the Dao in relation to Basketball. But he did the same. first pitch to leadoff batter Ricky Henderson. 128-29 (2001). The Wisdom of Lao Tzu. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent. To a Daoist the above story does not seem improbable. The great conquerer does not fight. Joanne. Mahoney .
and therefore Joe Smith as first possessor would own the ball. Arguably then. Accordingly. absolute control of the ball is necessary before one can assert that one has possession. In Young there was a gap in the net of almost 42 feet in length. Recall that in Shaw the court held that practical control was enough to grant the "trap net" fisherman ownership rights associated with first possession. is remarkably like Young where the net of the first boat had not completed closed. just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw." and "almost" possession is not "possession." Following Young. the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most." Shaw. seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. On the other hand it one could argue that the Young case although generally controlling. then it could be argued that in the present case involving the bobbled ball. practical control should be sufficient to place ownership in the hands of Freddie Fan. 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. 64 . is distinguishable.If we were to follow the Young case. Only partial control was present in Young. in the case of the home run ball. The bobbled ball case. then. In this case Freddie Fan bobbled the ball. Recall that the court concluded in Young that partial control is not enough. "Almost" control is not "control. In the present case. and only had partial control before Joe Smith reached in and grabbed the ball. Freddie Fan did not have sufficient control to obtain possession of the ball.
Hyland. fair play. Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport. When a fly ball is hit to the outfield 86 For a discussion of sportsmanship. Arnold. Drew A. and Craig Clifford and Randolph M. 65 . In baseball. and sports related values. before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. Since this is a baseball game. Feezel. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. 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. but recognition. Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport.9. see. However. 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. Coaching for Character (1997). and the owner of the stadium (if different). Philosophy of Sport. Peter J. A Policy Analysis of the Home Run Ball Hypothetical We start our policy analysis with the use of the Ethical Matrix. the team owner. In this case it appears that the batter. First we must identify the persons relevant to the reciprocity analysis. X (1983): 61-70. Critical Readings. ch. have waived their rights to the ball and so they will not be discussed.
one might generalize this rule to apply to all cases involving partial possession of property. as sports fans. When both players have positioned themselves closely enough to the ball to possibly catch the ball." Subsection (a. how does all of this play out in terms of the Ethical Matrix? First. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply. Similarly. One must make the assumption for purposes of analysis that both Freddie and Joe. in N. 66 . believe in fair play and sportsmanship.. In fact. Football Rules. " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession. the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. 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. Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player.) 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.must be given an unimpeded opportunity to catch [a] kick. we start with Freddie Fan and Joe Smith.A. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. then. at least in the abstract. Now.C. Thus.between center and left field it is often the case that both the center fielder and the left fielder position themselves to catch the ball." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way.A. using the principle of reciprocity..
" Hypothetically. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. Freddie Fan would be entitled to the home run ball. Joe Smith as a sports fan. 67 Finally. the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. With respect to the principle of proportionality. Additionally. had partial possession of a home run ball. then. placing himself in the shoes of Freddie Fan. Would Joe Smith. would come to the position. In my judgment. the fair opportunity rule. because. in a similar situation. and takes comfort in the conclusion and rule that next time. the discussion is relatively strait forward. that is. at least in the hypothetical . and therefore the proportionality test is met. that Freddie Fan is entitled to the ball. which can be applied relative to both Joe and Freddie. Now we apply the Ethical Matrix the other way. Joe Smith. With respect to the remainder of the analysis under the Ethical Matrix. who also is hypothesized to be believe in sportsmanship and fairplay. Joe Smith would be ethically and legally entitled to the ball. the principle can be used in the sense of creating a general rule. Joe Smith. Freddie Fan. It can so be applied. and hypothetically all others. he. relative to the question of who gets the ball "ethically. understands. take the position that "ethically. if he. Joe Smith. with respect to Utility." he. believes in the "fair opportunity" rule. No further discussion is needed. ethically. and thus recognizes that "after the dust has settled. First.one must have Freddie Fan place himself in the shoes of Joe Smith. as a matter of rule based ethics is legally entitled to the home run ball." Freddie Fan should get the home run ball as first possessor with partial control.
policy." The Article then involved a linguistic.presented there does not seem to be any need for contextual equity. 10. 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. Conclusion This Article began with an overview of The Ethical Matrix. 68 . As a part of the analysis. and then ethical analysis of the problem presented in the example. A Universal Natural Law Ethic. the result reached in the policy analysis section passes the muster of the Ethical Matrix. the "fair opportunity" rule for the possession and ownership of personal property is developed. Thus. The Article then proceeded with an example involving possession of personal property and a "home run ball.
etc. Corporate work places are dehumanizing both in terms of the type of work that is done.” Cynically. If one takes what I would call a “property rights” oriented view of the Corporation. then. The Corporation’s typical goal. some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. Corporate employees. The argument is that. traditionally. consumers of products. only the stock holders would be prioritized or even included as stakeholders. also. but. and perhaps only goal. often. Often. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility. legally. and then trying to fairly balance or adjudicate their respective interests. in the first instance can be asserted against the Corporation. and even. traditionally. is to profit maximize for the benefit of the 69 . families of employees. Typically. but also in terms of long hours.CHAPTER V CORPORATE RESPONSIBILITY A lot has been written about making Corporations more humane. local and regional communities themselves. controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are. or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders.
Alternatively. other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. is that the Corporation would not be profit maximizing. a “duty-conscience rights” oriented view of the Corporation could be developed and used.” The Business Judgment Rule would be based on the Ethical Matrix. corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others. and Truly Worthwhile. one profit maximizes by investing in human capital in and for the short. How do we resolve this condundrum? Well. first of all all of the empirical evidence that I have seen indicates that in most industries. In this instance. the shareholders. medium. however. from a “liberal” point of view.stockholders. the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization. and long run. In a competitive market. arguably. especially. and the Good as a Critical Thomist Ideal. which is irrational in both the medium and long term.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means. The purpose of the Corporation also would be to promote the 70 . Unfortunately. if not require. corporate fascists often fire employees and break up companies for no rational reason at all. and. “The Z Corp. and perhaps even in the short term. but also in making ethical judgments to promote the Common Good. one gains the edge by having management and employees who are not merely competent. discussed previously in Chapter IV . The solution to this problem in my view is to at least allow. but are on the cutting edge. that. the restructuring of Corporations to create a new type of Corporation. in the guise of short term profit taking. The problem with this second approach.
This stock would produce no dividends. and an ability to use the Ethical Matrix.” Here the rather obvious response is that ethical decisionmaking in the 71 . law professors. no more than 20% of the stock would be publicly traded. Another objection might be that ethical decision making in the context of a Z Corp. The Z Corp.” However.. which would be give preferential tax treatment with respect to the interest produced.“Common Good. Finally. the First Class “Control” voting stock would be held in a voting stock trust to minimize the possibility of a Corporate Takeover. The trustees would be experienced business persons. A law firm which was a Z Corporation. because the management literature almost uniformly suggests that ethically run corporations produce more money. A Z Corporation would be able set up subsidiary corporations which could provide health insurance. The Truly Worthwhile. would be “irrational.” Additionally. for example. and I suggest. would of course be “profit moderatizing. Of course one might respond that one is comparing apples and oranges. Z Corps. and. etc. would produce a greater profit than its older cousin. disability insurance. at below market rates. I would argue that overall. One might argue of course that a Z Corporation would not be “profit maximizing. in an attempt to meet the objection head on. could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. life insurance. or on the Chicago Mercantile Exchange. with a values orientation. The Bonds could of course be publicly traded either on the New York Stock Exchange. and The Good as a Critical Thomist Ideal. 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.
It is an objective. I would reiterate that Z Corp. unreflective fascist communism or nazism.context of the “Ethical Matrix. or alternatively. I think that we will find that Z Corps. or offshoot. in the case of economic or other cyclical downturns. perhaps even treating the interest as tax exempt. type way of thinking. universal. bonds be given preferential tax treatment. Finally. will be the end of both unreflective fascist capitalism. and. which involve related. natural law. and have wholly owned subsidiary Z Corps. operations. and in conjunction with the subsidiarity doctrine which diversifies responsibility through society.” is objective. 72 . are totally unrelated and thus would diversify the income stream of the parent Z Corp. will be the way of the future. Additionally. traditional non-profits such as Universities and Hospitals could incorporate as Z Corps. spin-off. in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation.
So perhaps we might wonder." as such is defined as "Formless Form. let’s talk about these concepts. without taking the time here to trash Ockham’s Razor." I suggest that we at least try out two very interesting metaphysical concepts. are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle. "Form. tells that reality is manifested primarily through words or language. is defined as "Empty Form. deals with formality. found in Quantum Physics. surfaces. suggests that the meaning framework that we bring to a problem affects. deals with depth. on a Quantum Level. on the other hand. or perhaps.CHAPTER VI THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS Logical positivism sees the world on one flat plane. denies the existence and efficacy of metaphysical principles. or structure. or perhaps even hermeneutics. not only how we solve the problem. but the problem itself." Now in order to avoid "Quantum Spin. the ideal. Substance. Form. Does this really make sense? Logical positivism at its best." So. then. or 73 . not only how we approach the problem. the logical positivist. Ken Wilber calls this "flatland." as such. Use the wrong concepts and one’s mind goes into "Quantum Spin." Now. Form and Substance." and "Substance. typically.
and my folks live down there now in Fort Worth. is lots of fun. Crista asks. Josh (age 9) and Cristina (age 12). he says. where my wife’s folks live. wise in the ways of the world. "Would a rose by any other name smell as sweet?" "Uncle Chris. "Well." Uncle Chris comes along. true. I think that that just might be a shrub not scrub. and I think that on a good day my wife’s relatives from Shiner. let’s say for the sake of argument that you are a Yankee from up north (like me). Now at this point in the story. and beside the road that you are walking on is some "scrub. "Bush. Now. Bill Shakespeare thought about the same question when he asked in one of his plays. from my point of view. "Dad." Crista then says. Now the logical positivist might doubt that these two concepts are really different. course. would say that if something is growing on the side of the road which is larger than a grass or a weed. my wife is from Texas. even though both seen to have some relationship to Texas in this story). and although he is from Texas. This yarn involves members of my family.reality without form. coming from Nebraska. but is smaller than a tree. But before you decide. You go for a walk. however. and for some reason your out for a walk in Shiner. scrub. Texas. with leaves sticking out in various places. I think you have been hanging around Dad 74 . I’d probably call that scrub. along comes my kids. "You know Josh. I would call it some shoots that are sort of clumped together." Now. is some scrub. Crista. Well. and although not literally. and you see some scrub. says. what’s the difference?" Uncle Chris Stluka. shrub. what is that?" Josh responds. let me tell a yarn that includes a couple of examples. In describing this bush. Texas ( home of Shinerbock Beer). a bush (not to be confused with President Bush. "Mom calls that scrub.
" says Uncle Chris. isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. but in substance. we’re all supposed to think about things like that." says Crista. "Wait a minute Dad." as a matter of "substance. in form there is a difference. and Uncle Chris. "Tricks Josh?" asks Dad?. "Well. did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids." however. is this one of your tricks?" says Josh." says Crista. where could you have gotten such an idea. "bush." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. kids. You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary. "Well. I want to see some practical results here. "Well. "I give up. So. now listen to your Dad. let’s put the pedal to the metal." Uncle Chris. all three words mean the same thing." says Dad "Allright Dad." (Judi. remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad. the Mom now appears. I just give up. really. how is this going to help me get a job. let’s say that I believe that the form-substance distinction exists.) "Well kids let’s get inside and have 75 ." "Josh and Crista." "See kids. "the point is that although as a matter of "form" we have three different words for a "bush. "Now Crista. "Dad. your Dad solved it. its getting hot– remember we’re in Texas in July. is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. and of course Scruffy." that is. Crista. the same. At this point Dad cuts in. I think Scruffy (the Dog) wants to go in." says Uncle Chris. and a red convertible car on my 16th birthday?" responds Crista." and "shrub. that why God gave us these noggins to think with." "scrub. "Yeah Dad. Dad." says Dad.too much. "Yeah.
"would a Mom by any other name smell as sweet?" "Josh mind your manners. "Mom. "Well. Tony." says Uncle Chris." say Josh. 76 . the practical point Cristina Elise is that lawyers use the form-substance distinction all the time.K.?" says Dad." say Josh. "lets say that you. O." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions.." "Whoah there Judi.." don’t you think you could better spend that time talking with PoPo about what he did when he was growing up. "Now wait a minute" says Uncle Chris. "Mom. but from the point of view of the "truly worthwhile. we’re discussing the form substance distinction here. Mother. well. we’re a Critical Thomist family. and we haven’t quite got through yet. were trying to create a joint tenancy with you and myself with some property you already owned. 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. I like the utility of have three popsicles for our late night snack rather than two. we raised our kids to think critically and question authority. couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista... "Well Chris. even property lawyers. responds Dad." says Crista." says Uncle Chris. 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.. "Yes. "I for one want to hear the end of the discussion about the form-substance distinction. does this mean I call stay up until 2:00 a." says Dad. Judi. "Yes.m." says Mom. Josh." "Oh. is there really any inconsistency here. "Well Crista.." say Judi. "Yeah Mom. Dear.." says Mom. and how does that work?" says Mom..your late night snack and get ready for bed.
why not just say that the original transaction was O."O.. its where two or more persons hold real property in common. the problem was that if you already owned the property.K." says Crista." says Dad. "What’s a joint tenancy again Dad?.K. says Crista. "You know". "Well.. "Now. "Well. but as joint tenants. Tony." "O. who then conveyed the property to the grantor-original owner and the other person at the same time. so?" says Judi. prior to your attempt to convey it to the other person.K." say Mom. "Me too Dad. I think I got it. title. "Now." says Dad. Tony. "that although in form." who was a trustee.m. Therefore the four unities could not be satisfied. If the two transactions are the same in substance. "I think I’ve got this one figured 77 . "O. says Uncle Chris. "Alright. "a joint tenancy could not be created by one person who already owned the property conveying part to another. all have to be satisfied at the same time. "Well. Crista. the point is. in fact.K". what does this have to do with the form substance distinction." says Dad." "O. at the traditional common law. in substance they are the same. the two transactions are different. one with a strawperson. it getting late and I want to watch Law and Order at 10:00 p. to create this joint tenancy of yours?" says Judi. but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson." says Dad." says Mom. not to cut the story short." says Crista.K. and interest. thus satisfying all four unities all at once. possession. "O. But what is the point. which of course means that unless the tenancy is severed before one of them dies. one with a direct conveyance. this is because the unities of time. title would already have been conveyed to you the grantor.K Dad." says Josh (as he rolls his eyes). the survivor automatically gets the other tenant’s share. I think I’m getting this." says Dad.
" says Tony. "You know I had it but then I lost it." says Dad. then you know what? they change the rule so that the form does not have to be met." And so the Fejfar-Stluka clan. "Well.out." says Chris. Well. you’ve got the floor. head on into the house to watch Law and Order. 78 . "and in fact that is just what has happened. "No. says Mom. go ahead. their minds filled with jurisprudential sugar plums. interesting." says Tony. let’s continue this discussion inside. did you want to chime in?" asks Tony. you can create a joint tenancy by a direct conveyance without using a strawperson." go ahead Tony" says Uncle Chris. Lawyers are constantly arguing that something is or is not the same in form or substance. By modern common law and modern statute." "Hmmm. let me think it through. and you still get the substance." "Well. I don’t want to miss my show. "if a court or a legislature chooses substance over form." says Mom." "The law is like this all over the place. "Judi. do I get to guess the answer?" "Sure Chris.
was my freshman theology professor. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends. its not that I thought that I would be manipulated the Good Father. This was my first exposure to priests in tweed sports coats. for a 79 . I stopped by Father Dehne’s office. believe me. in Kansas City. Nebraska.J.C. the priests wore their collars and blacks even while taking their showers. Missouri–a good mid-western Jesuit school. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier). before you know it.. Don’t get me wrong. I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. because. in Lincoln. Anyway. S.CHAPTER VII LUKE SKYWALKER AND THE VOID My first exposure to Star Wars was in my freshman year in college at Rockhurst College.D. I was teaching mentally retarded children’s C. So. Carl Dehne. but somehow I think the whole process worked in reverse. Usually you end up being friends with professors when you take the trouble of stopping by their offices to get a sense of where they are coming from.
. Father Carl. is from 5:00 p.E.m." I replied. Somehow. so I said . "Great. we have this mentally retarded children’s C. he"s another Rockhurst student who is already teaching. Maybe we could get Father Weiss to come along. so. I thought to myself. that sounds great Father Dehne. "Oh." replied. Oh. what is 80 . then I say mass for the kids. Now there was a quid pro quo. Well. I don’t know." said Dehne." I gulped. program across the street on Saturday evenings. I couldn’t figure it out on the spot. and you can get your Sunday mass obligation out of the way. C. can go over to the J. Father Dehne." "Well then it’s perfect. Duncan Idaho. fraternity parties on Saturday nights and I think I’d have a conflict. that is the Planet Dune. metaphorically. till 6:00 p. I thought to myself.C. and me Paul Atredeides. I had already heard about Jenny’s Italian restaurant down by the river. Oh. of course. Not the President of the College.A.D." "but you know.k. that sounds good.D. or was there a deeper plot. sort of quizzically. Then he said. Dehne looked at me. "maybe around 9:00 o’clock or so. and raid the refrigertator.m.R. and then you. was Kansas City Arrakis." I said. "O." J. I and John Blando. once I knew Weiss was invited." Then Dehne says.couple of big university masses. there is an opening. I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. Now what was I going to do? "Well. and believe me. Now was Father Dehne bluffing? Thinking that I would back out. when you’ve been eating dormitory food. I have S.. the thought of eating good Italian food was beyond the imagination. Father Weiss. I don’t see a problem with that.C. the point. why don’t you come over and teach class to Nick and Billy–they are both in sixth grade.. you know. "what time do they start?" "Oh.R. no.
but what the hell did it mean? I couldn’t figure it out. the first think I’d say about Starwars is that unlike Star Trek. Now. being a jurisprudentialist. almost as if He doesn’t exist.. only the Daoist Force. Tony. "Well. I think since Vatican II we just expect vocations to fall from the trees.C. kids Nick and Billy to see the original Starwars movie when it first came out. is it Father Carl?" I asked. or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force.” rather than “Jurisprudentialist. "Oh. however. Not much talk about God. looking for deeper insights.” when I was in law school. "O. "This isn’t part of the Jesuit rush program." replied Carl.” to be a little bit 81 .K." And so I did. Starwars is clearly a Daoist Universe.. Father Carl.D. For some reason.R. at least not consciously. what does this have to do with Luke Skywalker and the Void." said Father Dehne.. I muse about Starwars a lot." I said.this." I guess I can do the C. for once at a complete loss for words. the Jesuit Residence." said Father Carl." was all I could say. Dallas? "The J. The Force clearly being the Dao. and an amateur theologian. you know. "whatever could that be?" "Well. and.87 a bit of a philosopher.C. Now. Now I heard that. 87 John Snowden used the term “Jurisprude. I just don’t think that is done anymore. I’ve been hooked on Starwars ever since. "Oh. . Now. 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. Well. Good is pitted against Evil. of course the answer is that Carl Dehne and I took the C. I find the term “Jurisprude. Evil is Ying and Good is Yang. thing and be a Crucifer. what would that be?" I asked.. "Rush program.D.
"Luke. Thrust. where Kirk is found and (rescued?) by Captain Picard and Riker. I would say that the Hollow in the Underworld represents the Daoist Void. In the lore of the East. says Yoda. and then one day Yoda gives Luke an unusual instruction. after death. Luke looks ahead of himself and sees none other than The Evil Darth Vader himself in front of him (Luke) armed with a light saber. Luke then bends over Vader’s body and takes off his mask. But before Luke fully developes his powers he must first be trained by his Daoist Master. One could describe the Void as a place. 82 . Luke is shocked. Yoda. and to Luke’s utter surprise. He runs out of the Hollow and back to ordinary reality. one enter encounters a different world. Finally. Hell is more of a state of being rather than a place. Luke lights up his light saber and engages. on his Shamanic Hero’s journey into the subconscious (see generally. Good Guy.” for me to use. riposte. own face. Hell. what’s the point? Well. Luke’s. as perhaps Henri Bergson might put it. In the Hollow of the Tree. but it is a different kind of “prudish. apprentice Jedi Knight. So. as such does not really exist. The Absolute. the battle goes on. and Hero. within what he thought was Vader’s Helmet. the point is that in the East. Luke goes through a variety of training exersizes. or otherwise. Campbell’s book on Myth). So Luke descends into the bowels of the earth. what is my gloss on this situation? Well. 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. When one enters The Void." in substance. only the Void. parry. in the Underworld. in the hollow of the tree must you go and say more I cannot. finds his. Luke vanquishes Darth Vader. not unlike Beowulf.Into all of this steps Luke Skywalker. or. Now.
The Void immediately manifests back to the participant the particiapant’s projected Shadow. will help us to withdraw our projections. if you have been a remarkably good person on earth. "What goes around comes around. and He. or an Angel. As many New Age writers point out. If you are genuinely a horrible person as a result of your own free will. Now. This is of course confirmed when Luke takes off Darth Vader’s mask. it’s a little more immediate. with a little luck. even if we have screwed up. I personally don’t think that Hell. Who you are is what you get. his nemesis. but for us. So. in The Void. The Void immediately dishes up for the participant a reality which reflects at the core. Just like I tell my students in my law school classes. I could stop here and play it safe. and finds within the self which is Luke. So. like Yoda. food for 83 . God doesn’t judge us. But. then. we judge ourselves in The Void. I do believe that The Void exists. then you will find Heaven in The Void. Rather than the Void imposing its reality on the participant." Jesus transcends all Karma. maybe you or I will find Jesus in The Void. or a Goddess or a good friend. who and what that person really is. that is his persona (Darth’s? Luke’s?}. not only for Himself. as such exists. On the other hand. for one who is in The Void. you will find yourself in a reality where your Void Projections will attack and torture you in the same way you have attacked and tortured others on earth." except of course in The Void. and then to make amends for what we have done. as Fox points out in his book. his enemy. So there it is. but I won’t. after death. Luke finds Darth Vader. Instead of finding God. If nothing else. "The Sermon on the Mount. back to Luke Skywalker. My gloss on Star Wars and Luke Skywalker. it’s the other other way around.place. In Jungian terms. Where does God fit in? Well. get our psyche shaped up.
88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest.thought.J. is the author of "Insight. Papers by Bernard Lonergan. A Study in Human Understanding (1958)." (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy). neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest. as originally developed by Jesuit Philosopher Bernard Lonergan. and. LOGICAL POSITIVISM AND LAW The Critical Thomist philosophy that I present in this Book is based. S. rather. CHAPTER VIII CRITICAL THOMISM. 84 89 . in part. upon the Critical Realist philosophy. "Method in Theology" (1971). and then culminating in a third cognitive 88 Bernard Lonergan. knowing involves at the least a set of three interrellated cognitive operations beginning with experience. continuing with understanding.. My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. ‘Cognitional structure.’ in "Collection.
operation which is judgment. 90 85 . or reflection. and judgment/reflection. understanding. see ‘Cognitional Structure’ in "Collection" above.90 For a general discussion of the cognitional levels of experience. as outlined by Lonergan.
in analyzing law. body. and judgment." 251 (1958). on the first level one would ask the question how?. on a second level.") (p. is consistent with other ways of relating to the world around us. Fejfar. a naively idealist view of the "already-out-there-now-real."94 Finally." (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough. and on a third level. it is at level three. 95 94 Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position. Ecology. why. and on the third level.This tripartite structure of experience."95 All of the foregoing can be illustrated to some degree using the 91 See. mind. one can see that law can first be seen on one level as a matter of power and authority. Bernard Lonergan. rather reality was thought to be found on three levels. on level two we would find actuality. at least Existential Hell. a matter of values. and spirit (intellect). can be found there as well. on the second level. Perhaps Nirvana or Heaven can be found at level two. postmodernism itself. a matter of logic and policy. and. D. and Spirituality" (199x). "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act. the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding.? Consistent with Buddism. For example. 128).92 Additionally. Actuality is discussed in Erik Erikson’s psychology.. 92 93 See Ken Wilber. citing. the notion of Being valuing found in Maslow is also similar. Suzuki. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence." 86 . 683 (1986). "Insight: A Study in Human Understanding." 681. we in fact find "reality. "Boomeritis. understanding.T. but in my view could also be described as "Zen Realism. one would ask the question. on level one we would simply find "reacality" or illusory sense experience93.. what?. "Sex. Anthony J. one would ask the question. but in some sense perhaps Hell. Attempting to consider these categories in terms of logical questions relating to law. Ken Wilber.
because in fact the laws of biology. 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.chart below: Fejfar 3. On the other hand. Newtonian Physics. You are going to a pond full of water and you pick up a tree branch on the way. in the first instance. Because of the refraction of light. "sees" that the branch is "crooked. Mind 1. perhaps the empiricist or the logical positivist doubts that there is a difference between." This is a perfect example of how one’s mind can in the same 87 . in conjunction with past sense experience. The branch is six feet long and straight. You reach the shore of the pond and stick the branch into the water. and chemistry. The following illustration. the portion of the branch below the water looks crooked relative to the portion of the branch above the water. suggest to you. Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight. Intellect 2. that the branch "really" must be straight. experience and understanding. taken from Lonergan’s work may be useful. another part of your mind which is utilizing current sense experience.
and at same time on the level of understanding "understand" the data differently on the level of understanding.context "experience" the data of sense on the level of experience.1992) 88 . 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. Now all of this raises a third question. in distinguishing judgment from experience. 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. 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. Hans Georg Gadamer. and the levels of understanding and experience on the other. 96 See generally. These occur primarily on the level of understanding. how is it that we can differentiate between the level of reflection or judgment on the one hand. it is apparent that experience by itself. is merely a collage of mixed sense impressions. "Truth and Method" (2nd Ed. as such. First.
integrate them.T.A. 357. An Excursion Into Metaphysics" (1985). Judge Hutcheson.99 While this may sound far fetched to the man or woman in the street. it is possible to 97 For a discussion of intuition. Perhaps. I’m sure that I read this "koan" type statement in a book by D. See also.. "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education. In some sense judgment and reflection reach beyond mere understanding and mere sense experience. Anthony J. Suzuki. Radin." 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. However. "Quantum Reality: Beyond the New Physics. see Nick Herbert. 98 For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory. Fejfar." 158-161 (1999) (in the Collected Works of Ken Wilber. in fact. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence. 274. 359 (1925). Zen Buddism suggests a similar procedure when it says that to know the rock. "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking. Ken Wilber. one must "become" the rock. or reflective knowing at level three. at a distance. In any event it is clearly a Zen Realist type statement. and. see Anthony J." 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982).J. Nick Herbert. perhaps it doesn’t. and transcend them to form a judgment of real fact or a reflection on or of deeper reality. "The Atman Project.100 So perhaps as the philosopher Henri Bergson suggests." citing.Q.Now. There at least two possible responses to this objection. The Theory of Judicial Decision: or How Judges Think. but I can’t find the cite for it. it is also my reading of the literature that an "alinear" or 89 100 . 285 (1929) (quoting. one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. 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. Fejfar. "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance." 14 Cornell L. sublate98 them. 99 Or." 11 A. Volume II).B. quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly. from a Critical Thomist point of view. First.
On the contrary. and quantum indeterminacy. and then we would get identicle results. However. we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. I would argue that every conventional experiment that is undertaken. that such a probabalistic universe is unverifiable.have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. and with a Force measuring device at the bottom of the ramp. One might object that from a Newtonian point of view. rather. However. then. one would be clearly embarking into measurements which are more clearly taken in the quantum range. in this sense that Bernard Lonergan states "asymetrical" message can be sent. the conventional scientist might object that we simply need a more accurate measuring device. the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like. only a probabalistic one. Because of Heisenberg’s indeterminacy theory. and thus would clearly be more bound by quantum indeterminacy." since all that quantum physics seems to postulate is a probabalistic universe anyway. will produce probablistic variances. this is perfectly consistent with "intuition. if we were to take the equation Force=Mass x Accelleration. 90 . if sufficiently precise measuring devices are used. Now. using classical newtonian physics. and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle. it is not possible to "send" a perfectly linear message. It is possible. Instead there would be a statistical spread. and a timer. Thus.
further questions. Ideas are analogized and distinguished. My argument is that a different type of "logic" operates at levels one. but rather only reasonable judgment. 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. therefore. Nancy E. "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. two. Anthony J. or solutions to the problem. compared. At level one is a logic of movement or operation. or even in some cases overrule logical "rational" results and reason to judgments of some type. B. see. Given two seemingly logical explanations of the data. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. 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.. On level two there is a logic of analysis. At level two." 17 Del. It is not purely The business judgement rule does not require "perfect" judgment. In doing so we can make both judgments of fact and judgments of value. Stephen A. and contrasted. remain. A Question of Horizon. Fejfar. and three.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. Dennis J. Barton. Symbolic logic reigns: If A. "Corporate Voluntarism. however. It is here that language and interpreted data are collated. Radin. For a discussion of critical realism in the context of management decision making. Block. 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. A. A second way of distinguishing levels two and three is simply through the use of logic. C. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. then.f. B. Law Journal 859 91 101 .
it is not true that we are incapable of making better probabistic judgments or assessments. and damages. and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. Also at level two we must assess the underlying policy of the rule "Don’t Walk. causation. Geoffrey C. the sign and the language it contains simply commands us not to walk. somehow sense data. Susan P. Jr. when the probability level of a judgment goes high enough in one’s mind. if it turns out that our provisional judgment based on probability is not correct. As Lonergan puts it." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992) 102 In the area of legal practice for lawyers.syllogistically logical in nature. it is simply the case that in this instance we could have done better. On level one on the level of operative logic. three. interpretation. On level two. So. the probability judgment "kicks over" into a de facto absolute judgment of fact. Hazard. logically. one can distinguish levels one. Now. Additionally.. for example. as Lonergan points out. we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. 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. as a practical matter. in the context of decision making. Cramton. applying hermeneutics. breach. Roger C. 92 . even though it really is not. let us consider a "Don’t Walk" sign in a crosswalk." Put another way. "The and Ethics of Lawyering 156 (1999). the standard of care is one of reasonableness. or negligence. Instead. two. with the elements of the cause of action for legal malpractice being: duty. that judgment simply "kicks over" into a "virtually unconditioned judgment of fact. Koniak.
perhaps. and a level three. at level two we ask. Here.assumption that there are reasons or policies underlying rules in general. whether or not a "lamp" is a "reified" object and thus not "really real. The above then is consistent. C. Anthony J. and in this context. at this point we again have to question whether there is any difference between level two operations and level three operations.103 Thus while level two intelligence intends an analysis of policy as such. Thus." and "reflection. underlying the policy.104 While previously I spent an entire article 103 Bernard Lonergan.’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article. What?.. the value or values. and in the final measure determining which outcome is the most "logical" at level two. "Method in Theology" 34 (1971) ("Value is a transcendental" notion)."). Fejfar. we ask Why? The logical positivist will undoubtedly ask. 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." for example are purely "reified" terms which cannot be taken seriously. so does freedom. is it not the case that "judgment. Level three reason or judgment intends value. that from a purely logical point of view. and. "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. All these values would be taken into account in assessing policy. at level one we ask How?. with my earlier thesis. suggests three levels of different logic. Critical Thomism. so does protection of human life and of human property. Now.f. 93 104 . at a deeper level it can be judged that order itself has value. the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. The Critical Realist position is that level three judgment or reason in this context intends value. interpreting language.
94 . id." In the final analysis.” 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.addressing the foregoing type of objection. CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding. but in the end it is an incomplete philosophy compared to Critical Thomism. As a matter of both epistemology and cognitive psychology logical positivism is inadequate.105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid.
” 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. 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: . “Fishing with Dad. is not only the important concept of levels of thinking or concsciousness. On the Desktop there is the Icon “My Documents. rather they are included in a new and higher integration. So. What you find in both Piaget and Kohlberg. the lower levels are not lost.” You then double click on the Folder Icon “My Photos.” etc. and later in Ken Wilber’s work. but also includes and integrates them. Imagine that one folder is the Folder entitled “My Photos. One being “On the Pond.consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg.” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos. adds something new. itself. themselves as Icons. but also the notion of “sublation.” another. So. in his ethical theory. Now this is very hard to conceptualize for a lot of people but perhaps this example might help. of course.” Sublation means that at every level the higher level transcends the lower level or levels. Kohlberg. Imagine that you have a computer with a desktop. which. really only goes up to level 6.
or File Icon.” (do this in your imagination if it helps) at level one. So. deepening the colors. changing the contrast. You then upload the level two “processed” picture to level three. which is a gestalt of the first two operations (levels one and two). At level three at the Desk Icon Level.e. or alternatively. perhaps not unlike the “image schemata” discussed by Lakoff. thus creating the gestalt Desk “Pond Icon” at level three. But the other trick is this.. ala Bergson. can access a remote digital camera which takes a picture. let’s say your “mind. at level two. the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata. 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. on the subfile/picture level. i. perhaps your computer is programmed so that you can process. you immediately upload the Pond picture to level two for saving to memory and processing. but which also adds a new “intuitive” operation which gives more depth of field to the picture. Now. At each level let’s say that you can right click on the Desk Icon. you are about half way there. there it is. “understand” the picture by cropping the edges. using a photo editing program. So. Folder Icon. Of course if we were dealing with a “picture” which involved all five senses at level one. This is the level of sense experience. if you understand what I am trying to get at above. and a task menu pops up with different operations. let us imagine that a new Desk Icon has been created. at the “Folder” level. A little example of how you might organize your mind as a Critical 96 .Level 1 Sub Files/Pictures: “On the Pond Picture” “Fishing with Dad Picture” So.
such archetypes function as “forestructures of 97 . Tom has spent a lot of time thinking about Sir Thomas More. Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious. Experiment. however. what he calls “archetypes. Good luck. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired.Thomist. Try it all in your imagination.” As Hans Georg Gadamer might put it. In this article.” help to structure and partially constitute our individual “way of being. I’d like to take a Chancellor of England under King Henry the VIII.106 different approach– here I would like to contrast Critical Thomist from Petrine approaches to lawyering. Use different metaphors and examples. our communal “way of being. CHAPTER IX CRITICAL THOMIST LAWYERS AND JUNGIAN ARCHETYPES What does it mean to be a Lawyer? Tom Shaffer at Notre Dame has spent a lot of time wrestling with this issue.” It is in our own unconscious that “deep structuring” symbols and metaphors.” and collectively.
somehow make it through the next day. when people typically think of the idea of “Thomism. Now. So for our heros we must have heros who. in the morning..m. Perfect imperfection. in the morning and still stay up with him. what do you look for as your role model.m. No. must some how have failed–otherwise we’re damned. Shaffer. people who say the Rosary. People might not admit this. “On Being a Christian and a Lawyer. and not Thomas More. to help a baby with the colic get to sleep at 2:00 a. even idolized (in a positive sense). for many of us.” 98 . loved and adored. e. that’s the ticket for us. but I think this is it. but still failing. and then later on. people who belong to the Alter Society. 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.” they think of Saint Thomas Aquinas and the Summa Theologica. we 106 See. Now. when you think of realpolotik in the Catholic Church–people in the pews. that is “Doubting Thomas. Thomas L. They want the kind theology that helps to get and keep a good job. you come to understand that one of the primary criterion for their theology is durability. most of us spend a good deal of our time trying very hard to do the right thing.. they might not even know it consciously. and then. the Readers. Now why these two? Well..” not Thomas Aquinas. Critical Thomism holds of Saint Thomas the Apostle.knowing” which help us to think and to know.g. at least part of the time. to change baby diapers. the Knights of Columbus. however. in doing this. your hero? Well. I would like to suggest another type of Thomism. the Ushers. there are two choices: Simon Peter or Doubting Thomas. in the end.. Now. to help clean up your gradeschool kid’s puke at 4:00 a.
Jesus simply says. and yet he still is the Rock upon which Jesus builds his church. and insists that Thomas feel the nail holes. Jesus. who. and for the Legal System. Now. or a Divinely Inspired. and who stayed the course and stayed in the Church. we have Simon Peter. It takes the adept Lawyer Paul. blessed are those who believe without seeing. feet. later on. it means that we have two foundational apostolic role models for Lawyering. The Apostle Thomas. insisting that the early Christians observe both Kosher as well as adult circumcision. felt. feeling. Authority. whom he relied on. that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. before he (Thomas) would believe. essentially. of course. Simon Peter denies Jesus three times before the cock crows. and legal 99 . Instead of condemning Thomas. This is Petrine Lawyering. and side. Whether one reads the Bible as literature. shows up. I don’t mean they were literally apostates. the legal system. Simon Peter is the Archetypal Imperfect Authority. as a Critical Thomist. only metaphorically. or experiencing. rather. Well. believes that reality and law must be based upon authority. but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands. reasoning. human in the first instance. is the basis for law. Now. to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law.ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. What we want are the two “Apostate Apostles. experienced. refuses to believe that Jesus has resurrected. what does this mean for we Lawyers. rule based in the second instance.” who Jesus obviously loved. takes a stab a Lawyering. First. as you may recall. you Thomas have believed because you have seen. is the one who after the resurrection. on the other hand. Simon Peter.
taken as true.” For the Critical Thomist. Critical Thomists have Faith–it’s just not Faith in Authority. it really isn’t such a bad bet. Divine Reason. On average the Popes seem to do pretty well. as the Logos. For them the Pope is it. God is “right” not because He’s God. lawyers or no. What is right is what the authority says is right. all of whom. “Creative Form. Although this may take a little time. concrete people. conventional people. Just let the ancient wheels of the Church roll along themselves. instead of following the Pope.practice. There is a certain school of thought that Rome rules best when it does nothing at all. completely and absolutely and ultimately consistent. as a given. well. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. rather. Reason Rules. The Incarnate Word. Judicial Authoritarianism. This is not apostacy as some Petrines might think. right. instead it is Faith that Faith and Reason are totally. Faith and Reason are assumed to be. This was Jesus’ promise to us in the Gospel of John. When Faith and Reason “appear” to be at odds with one another. at least archetypally are seen as ruling on the basis of authority. that’s the ticket. And you know. and of Papal Authority. totally consistent. bet on Simon Peter. For Critical Thomists. The Divine Word. Now. are remarkable suspicious of both the Petrine outlook. and perhaps. the Apostle Paul. and in doing so on Papal Authority. guided of course by the Holy Spirit. or in Platonic terms. and presumably God the Father. The Critical Thomists. on the other hand. sooner or later we will sort 100 . Simon Peter. and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer. in spite of the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times. they follow Jesus. this is simply a temporary glitch.. but because he’s. and perhaps typically are.
Saint Thomas the Apostle is the Patron Saint of Critical Thomism. going to understanding. we think critically. Now. One suspects that the Petrines start with the person of authority. This is the intellectual approach to living. Our Patron Saint is the “Apostate” Apostle. not because we have unthinkingly and unreflectively followed authority. If we are to be judicially damned or canonized it is because we have thought things through. and inductively. it is my argument that they Lawyer best when they start with reason. 101 . Although Lawyers certainly use authority. and then finishing )(provisionally) with judgment and reflection. and then deductively apply the rule to their experience. and thus “know” reality. from my point of view. and then finally to reflection or judgment. by starting with experience. going to understanding.things out and we will find a reason based way of reconciling any apparent contradiction. Doubting Thomas. how does “Doubting Thomas” fit into all of this? Well. A totally different way of thinking. As Lonergan tells us. then go to the authoritative statement or rule. and reason inductively starting with experience.
in person. just to make it fun. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. Now. No. the 102 . the dark side radio hero. but I do think I’ve got the general gist of it. Perhaps he reminds you of The Shadow. religion class. for me The Hangman. the first thing to know about The Hangman is that He always wears black. Now. but I guess its fair to say that I also saw it. the details. and I think it had the appropriate effect. black cotton cloak. black gloves. maybe 8th or 9th grade. Of course I don’t remember the original story as such. involves a story that I first heard in junior high. I sort of heard it. black hat. I told a story something like this to one of my law school classes last year. But not for me.C. A kid’s word game? For most of us perhaps.D. Black boots. But. black silk shirt. I’m going to tell you the story of The Hangman.CHAPTER X THE HANGMAN The Hangman. I mean. black jeans.
he had on a double rig of six guns. the man in black. "Howdy stranger. The sweep boy saw him first. and the boy ran to tell the town Marshall that a stranger was in town. Back in the Old West. a livery stable. He stopped and looked. and a bowie knife with a jet black handle on his belt. The people went to church on Sunday. a lumber yard. a butcher shop. His eyes were like obsidian orbs. and spat down on the ground. by the looks of them. Hello stranger.two are not the same. creating black shadow in front of him. and the townsfolk that were 103 . looked at the buildings of the town. a saloon. Soon the Marshall came out with a double barrel shotgun. Everything was normal. unless of course you had to cross a street. He was armed. cat got your tongue?" said the Marshall. Everything was black about him. in Nebraska Territory–the Kansas part. He rode into town slowly with the sun at his back. with shells filled with double odd buckshot. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. typical. The town had a dry goods store." said the Marshall. So. black as pitch. His bear gun. The man in black squinted his eyes even further. Purgatory was a nice town. down Main street. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. "I said. was a prosperous little town called Purgatory. ten gauge. a hotel. what can I do for you. until any of the townsfolk noticed him. here goes. His skin was a very pale white. just passing through?" The man in black just stared and squinted his eyes in a way that would make Clint Eastwood a poster child for sweetness and light. The man in black just waited. of course. colt navys. a hardware store. He got a third of the way into town. and of course a fair number of houses. a gunsmith. hacked up some flem. except his skin. Then he.
and tied the reins to the wooden bar in front of him. "What’s that supposed to mean?"asked the Marshall. and threw two bits on the table and turned and scanned the room.. Then the Hangmen waited a moment and looked to see if anyone else was 104 . playing poker. why don’t you just mosey out of town before you get hurt. the man in black said. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. but it all stopped when The Hangman stepped inside. especially your town. I don’t like black. and I don’t like hangmen. I solve all your problems." asked the Marshall. Finally. and behind him to see if the bartender had his shotgun out. cowboys drinking beer. listening to piano music. The Hangman walked up to the Bar and ordered a whiskey. got off his jet black horse. His eyes squinted. The bartender didn’t. Then. "Listen all of you. and right now it means that I am going to the saloon and get a drink." The Hangman’s eyes squinted even further." said the Hangman. and I don’t like you.. supple and strong. "Mr. he just couldn’t keep eye contact and instead looked down at the dusty street. and strode into the saloon. "I’m The Hangman." said the Hangman. I hang people. The Marshall couldn’t take it. I help make the world a better place. Then he said. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. what kind of business. mostly for committing crimes.beginning to congregate. "I think it means whatever you want it to mean Marshall. The Hangman rode down Main street past the Marshall a half a block. "Oh." A drunk cowboy stood up and said. The Hangman stretched. I thought you might have some business for me. But the Hangman just stared even harder at the Marshall. I’m The Hangman. He slammed it down." "Business. He glanced to the left. hacked some flem. The saloon was crowded. and I do that by hanging people. like a black cougar.
The next morning at dawn. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy. He had some lumber delivered to the end of town. tested. and place a bullet through the forehead of the cowboy. you have cognitive dementia. "Well. So. "Bartender. another whiskey. "Well son. and so I am going to have to hang you until dead in order to put you out of your misery. He just laughed. The Stable Boy was cleaning up horse manure from the stable floor." answered the Boy. son. I guess I feel like staying. Son. I can’t tell time. a nice prosperous town like this should make someone like me feel welcome. "No sir. "Can you read?" asked The Hangman. The Hangman walked from the Hotel where he spent the night to the Lumber yard. "Anybody else care for a shot. The shot went wide and broke the mirror behind the Bar. No one was. you have cognitive dementia." said The Hangman. but this is for your own good. No one said a word. but then it was done. "Son. what time is it?" "I don’t know mister. He drank the whiskey and this time simply smiled at the Bartender and walked out. The Hangman didn’t even move.? asked the Hangman. you had better come with me.backing the cowboy’s play. "Well. without paying." said the Hangman. calmly aimed. Then The Hangman walked to the Livery Stable. Suddenly the cowboy went for his six gun. the Hangman’s Switch." said the Boy. "Hey Boy." said the Hangman. The Hangman took the Boy down the street to the gallows." "What is sir?" asked the Boy." said The Hangman. The cowboy stared into infinity for a second then fell on the floor and died." said the Boy. "Yes sir. A wooden gallows had been built. He then went to the Hardware store and bought some tools and started to work It took him a week. "I know you don’t understand this. and to protect the town from and further 105 ." said the Hangman.
no one said anything. "This boy has cognitive dementia. The trap swung out from under the Boy’s feet. "Marshall." "I am here to help you clean up this town. put the noose around the Boy’s neck. this boy is a wastrel and a blight on humanity. "You are good people.. The Boy froze with fear. He fell through. I guess this confirms it. He deserves to die. He couldn’t even stop me from coming into town. Marshall you know that you simply cannot be a dead weight here anymore. Although twenty men were there who were armed with six guns. The Hangman tied the Boy’s hands." said the Hangman. The next day the Hangman went up to the Marshall. We need to put him out of his misery." "You won’t be needing this anymore Marshall. the Marshall just can’t get the job done anymore." said the Marshall. He is dead weight and dead wood. The Hangman said." said the Hangman. have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall. The townsfolk all say that you are dead wood. Well." said the Hangman. and the Boy’s neck was snapped. "Anyone here object?" 106 ." A few people laughed. Soon a crowd had gathered. "Yes." said the Hangman. no one drew their gun. A few people cried. you seem a little overweight to me." he continued. His mind blanked out with panic. He left and the crowd went home.." said The Hangman. that’s a hanging offense in these parts. "But. killing him instantly. He didn’t know what to do. Unless anyone objects. and then pulled the lever.leeching of yours off the common good. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk. you just can’t get the job done anymore. "and this is a good town. Luckily for the Boy the rope was placed just right. "You know." "You are to be commended for helping to clean up this white trash." said the Hangman. I’m going to hang him now. And so the process repeated itself. as he pulled the Marshall’s six gun out of his holster. thank you for your help.
everybody does the right thing. I answered it. the Boy must die." said the Hangman." "This Boy is guilty of gross deriliction of duty and insubordination." he continued. in the boy’s mouth so that the Boy couldn’t talk any further. you must know that. "You have questioned my authority. Any objections?" This time. dead as a door nail. you don’t need one. Once The Hangman come to town. and down went the Marshall. But the crowd pushed him forward and up the steps. I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together. The Hangman cut the Marshall down and retied to hangman’s knot. "If you follow me." "Well Boy." seeing that the Boy was going to reply. Although unarmed. as you very well know." said the Hangman. "Now Boy. "What will the town do without a town Marshall. The Boy started crying. a Boy asked. "Well. "In order maintain order and authority in this town." And then the Hangman pulled the trap. "The Hangman. no one said anything. The townsfolk applauded. "Now Boy. here. he didn’t want to go near The Hangman. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here. he is the only authority. The Boy stood their shivering. I am a dementer from Hell set loose on earth to test you. isn’t that true?" "Well mister. when the Hangman is here everybody figures it out.continued The Hangman. I was just testing you and the townfolks. To everyone’s surprise. you will hang seperately. and you know that is wrong." said the Hangman. I will give you a well ordered society." said the Hangman." said the Hangman. quickly stuck his handkerchief. The next day the circuit judge rode into town. I need some help up here. you asked a question. he called out the 107 ." said the Hangman. what else was I supposed to do?" "Son don’t be smart with me." said the Hangman. black as night." he promised.
each day another hanging. Each day a new accusation. The Hangman crossed the street and went into the Barber shop. I run things." said the Hangman. Only The Hangman gets things done." said the Hangman. "I pass it on to my wife." said the Mayor.Hangman into the street. set the noose. The Mayor balked. The Hangman and the Mayor revived the Mayor’s wife with smelling salts. you can’t get me." "Grab this vile judge and take him to the gallows. so the story goes." 108 . "Not me. From the Hotel. the good people of this town knew it." asked the Hangman. but this did not stop the Mayor from carrying her limp body to the gallows. giving himself a shave. "See this judge. "he is the cause of all of your problems. All the rest were dead. but finally there was only one person left in town other than The Hangman." responded the Hangman. that was the town Mayor who had "passed it on" to his wife." "What then am I to do. you are the last one. "The Hangman doesn’t need a trial. hanged by The Hangman. "You can’t just hang people. tied her hands. It took awhile of course. to keep you enslaved. The next day the Hangman called out the Mayor onto the street." said the Hangman to the assembled crowd. The Hangman came out. Inside was the Mayor. And so it went. its your turn. Only The Hangman can save you." said the Hangman. Only The Hangman has real power. the rule of law is a myth designed to deceive you. These people you have hung have violated no law and were given no trial. And so they did. "those who were hung were trash. and approved. your honor. and then down she went. his demenour. "Mayor." A crowd had gathered. "Well. And down went the judge." said the Judge. A couple of months." replied The Hangman. The Mayor looked over." The Mayor’s wife fainted when she was called out. "What is it you want. this is my town. cold as night. "We are making progress. take here instead.
" asked The Hangman." said the Hangman. "But I didn’t really understand what you said." said the Hangman. And so up the steps of the gallows they went. then you can rest assured that there is a well ordered town here in Purgatory. or you hang separately. "and if you didn’t you should have asked." said the Mayor." said the Mayor." said the Hangman.said the Hangman. Is the next town yours? 109 . The noose was fixed. Remember I told you early on in the process. "Yes you did." "And now." "Did you really think that would save you." "All of you could have hung together as a group and opposed me. I’m safe. He got his gear. "Either you hang together. "Exactly. put me back in Hell under the Rules of the Game. "I passed it on. The Hangman smiled a smile of satisfaction. A job well done. letting me win. "Me." said the Mayor. let’s get this over with. the hands tied. "But there won’t be anyone left. and down the Mayor went. and slowly rode out of town looking for the next town. saddled his horse." but instead you all chose to hang separately.
religion class. The Hangman.. I mean. involves a story that I first heard in junior high. for me The Hangman. A kid’s word game? For most of us perhaps. Now. quite different.CHAPTER XI THE BARTENDER Well. But. maybe 8th or 9th grade. the details. I’m going to tell you the story of The Hangman. but I do think I’ve got the general gist of it. . No. the first thing to know about The Hangman is that 110 .C. pretty close to the last one. Now. in the end. in person.. I sort of heard it. at least at the beginning. Of course I don’t remember the original story as such. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C. but I guess its fair to say that I also saw it.. just to make it fun. this is another story dealing withe The Hangman. But not for me. and I think it had the appropriate effect. I told a story something like this to one of my law school classes last year.D.
His eyes were like obsidian orbs. "I said. unless of course you had to cross a street. The town had a dry goods store. black cotton cloak. here goes. black as pitch. by the looks of them. He rode into town slowly with the sun at his back. Everything was black about him. The man in black just waited. Perhaps he reminds you of The Shadow. Back in the Old West. except his skin. He got a third of the way into town. black silk shirt.He always wears black. typical. But. creating black shadow in front of him. colt navys. cat got your tongue?" said the Marshall. a hotel." said the Marshall. Soon the Marshall came out with a double barrel shotgun. until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. and of course a fair number of houses. and they even had wooden sidewalks so that your feet didn’t get muddy after a rain. of course. down Main street. a butcher shop. His skin was a very pale white. black gloves. His bear gun. "Howdy stranger. was a prosperous little town called Purgatory. until any of the townsfolk noticed him. The man 111 . Black boots. Hello stranger. The sweep boy saw him first. a lumber yard. the two are not the same. ten gauge. He was armed. He stopped and looked. Purgatory was a nice town. black hat. the dark side radio hero. in Nebraska Territory–the Kansas part. So. Everything was normal. a saloon. what can I do for you. and the boy ran to tell the town Marshall that a stranger was in town. black jeans. a livery stable. and a bowie knife with a jet black handle on his belt. with shells filled with double odd buckshot. he had on a double rig of six guns. a gunsmith. The people went to church on Sunday. a hardware store. 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.
I help make the world a better place." asked the Marshall. "I’m The Hangman. The Hanman stretched. "What’s that supposed to mean. I’m The Hangman. I solve all your problems.. like a black cougar. "I think it means whatever you want it to mean Marshall. But the Hangman just stared even harder at the Marshall. The Hangman walked up to the Bar and ordered a whiskey. and spat again–this time the spit landing only a foot away from the Marshall’s right boot. Then. Finally. and tied the reins to the wooden bar in front of him." "Business. and right now it means that I am going to the saloon and get a drink. what kind of business. The saloon was crowded. playing poker. I thought you might have some business for me. Then he said. He slammed it down. "Mr. why don’t you just mosey out of town before you get hurt. supple and strong. and I don’t like hangmen.. Then he. especially your town. I don’t like black. "Oh." said the Hangman. the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. "Listen all of you. and the townsfolk that were beginning to congregate. listening to piano music. The Marshall couldn’t take it. the man in black.in black squinted his eyes even further." said the Hangman." A drunk cowboy stood up and said. the man in black said. The Hangman rode down Main street past the Marshall a half a block. I hang people. and threw two bits on the table and turned and scanned the room. and I do that by hanging people." asked the Marshall. looked at the buildings of the town." The Hangman’s eyes squinted even 112 . hacked up some flem. and spat down on the ground. and strode into the saloon. and I don’t like you. got off his jet black horse. he just couldn’t keep eye contact and instead looked down at the dusty street. mostly for committing crimes. hacked some flem. cowboys drinking beer. His eyes squinted. but it all stopped when The Hangman stepped inside.
further. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play." replied the Bartender." said The Marshall to The Barber. "Wher’d you get that Peacemaker?" asked the Hangman. its totally fair since only a Thomist can even carry a Peacemaker. "Why?" asked The Barber. He glanced to the left. In "St." And so the Marshall dragged The Hangman’s body away.A." The D. "that’s how they hex them. some laughed but no one cried. and the Hangman was convicted of attempted murder. "Well." said The Bartender. and behind him to see if the bartender had his shotgun out." replied the Bartender. Louis.A. that went pretty well. "fast as lightning. No one was. "See the Shingle up behind me which says. lock him up. When The Hangman fell through the trap the next day. that’s the Rule. would it?" asked the Hangman. some folks even call me "The Devil’s Advocate. suddenly. I guess I feel like staying. a Peacemaker always wins over a Navy. it won’t be exactly fair if you use that Peacemaker against my Colt Navy. do you Hangman?" said the Bartender. as he walked 113 ." said The Hangman again. The Hangman should have known better. Then. is Coif. I’m the District Attorney. "Well. "Well. "Well. knocking him out. I thought." "It’s really not fair. and on top of that. I’m charging this hombre with attemped murder. "Well. son. you know the Lore. the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun." said The D. "I don’t think you really want to hassle that cowboy. reverse handled his Peacemaker and hit The Hangman over the head. Next day was the trial. "Attorney at Law?" As The Hangman turned and looked up to see the shingle. I’ve never lost a case and I’ve never lost a gunfight." said the Hangman. The bartender didn’t. a nice prosperous town like this should make someone like me feel welcome. they never go down." "Marshall. "The D. "I suppose the ciruit judge will be here tomarrow.A." replied The Marshall. "Well.
that is. or. not that I necessarily disagree with all that has been said above.away. one is often tempted to look back at the Code of Hammurabi. perhaps in terms of contemporary natural law or socio-biology. however. I would like to suggest that 114 . Instead. In this essay. CHAPTER XII PROPERTY AS A FOUNDATION FOR LAW When one thinks of the foundation for modern law. And so. I would like to offer a different slant on things. that murder is the only cross cultural legal prohibition. our critical friends may suggest that there really is no objective basis for law. and then of course. that prohibition itself would be subject to a great deal of interpretation. The sociologists seem to agree on one thing however. heading for the Saloon to get a drink... . at least none other than the prohibition against murder.
” If we look at Blackstone. but perhaps mistakenly seen in an avant garde sense. suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. in what one suspects is a rather traditional. is the basis for all rights. but that reality is based primarily upon meaning. one can see that property can be 115 . If one considers the three metaphysical categories of being. at least in the concrete sense. along these lines. and substance. regardless of whether it is real estate. Although it is difficult to put colloquially then.” with each “stick” representing some “right. a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship. The Restatement Second of Property. Although it may seem a bit different from the Restatement approach. Finally. the notion of property grounded in metaphysics as such. in the first instance. property. understanding. he defines property in “concrete” terms simply as a “bundle of sticks. I a rather different sense. but also the basis for human dignity. tangible or intangible.” Well. Now. “property” hardly exists at all. and reflection and judgment. there is the Critical Thomist understanding of property of ala critical stage theory.” In this sense. that we have get some clarity about what we mean by “property. property law. how could this be when Karl Marx was thoughful enough to let us know about dialectical materialism and what philosopher John Kavanaugh describes as the “commodity form. a fixture. A Critical Thomist would say that property is real. that is. on the other hand. I suppose. would be seen as that which is judged to be “property” on the basis of experience.property. form.” that is it is intangible.” including the right of possession. defines “property” as “A legal relationship between persons with respect to some thing. or tangible or intangible personal property. Blackstone took an avaricious view of property.
Being philosophers and psychologists tend to discount the acquisition of material wealth. I suspect that it would be confined to personal property. in favor of spiritual development. there is property which is property in form only. it they approve of property at all. title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. or simply represent contractul interests. dated in the first instance from the time of Anaximander in ancient Greece. as such. if not insoluable question of whether a mere contract. as represented by the clod of earth represented the substance of the property. or even money. Idealists. The concept of substance. Metaphysically. 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. 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. Finally. of course. seisin. one assumes. typically seen as real estate. as such. one suspects. 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. tend to see and experience it in terms of a “being” mode.seen in at least these three different ways. where does this put us in terms of our first issue involving property as the 116 . This ceremony. If one were to think of property in terms of the metaphysical concept of being. amount to property. The law professor encounters the difficult. seemingly bordering on the occult. Here property is hardly distinguishable from that of a mere formal contractual right. Well. In medeival law in England.
” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction. and the Good as a Critical Thomist Ideal. one starts with one’s possessory interest in oneself. Last but not least there is Constitutional Law. once again. or the cosmos. perhaps can be leased for a limited period in a human way for purposes of appropriate employment. but to the Common Good. which. that is Divine Reason. So. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117 . such a homesteading in the old west in America. for money. Tort law involves causes of action and damages relating to harm to one’s property or one’s person. or perhaps with a little luck. My position is that each of us. Finally. or the law of the Angels. holds title to our bodies. requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. or the Dao have in terms of our personhood are governed by Divine Law. the law of the gods. or in a more sophisticated economy. under natural law. the Truly Worthwhile. has a possessory interest in our own bodies. or the cosmos. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature.foundation for law in general. and in this sense we are responsible not only to ourselves. On this line of thought. or the Dao. One can certainly never be enslaved. or the law of the Logos. The rights that God. in relation to one’s rights under a contract. 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. As one comes into possession of personal or real property in a legal or customary way. but we can never really sell them. utilizing primarily the principle of proportionality. that is. God. there is criminal law which is an extension of tort law. we can mortgage our souls. which.
going beyond Locke. it is apparent that law at every level from the Constitution on down. even if only taken into account equitably in concrete circumstances. 118 . and compassion. context. including but not limited to Freedom of Religion. One’s Liberty can only extend as far as it does not conflict with the Liberty of others. and of course. While a fuller discussion of this must be saved for a later Chapter. Freedom of Contract.by reciprocal obligations necessary for the proper functioning of the body politic. to contribute to the Common Good in the equitable requirement of serving those in need. the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. involving Life. Germain put it some time ago. one has the responsibility. in my judgment it is better to see property as the foundation for all our rights. as well as those found in the Declaration of Independence. must be applied in the context of equitable rules which favor relationship. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. but also for the protection of our individual rights flowing from our possessory rights in our personhood. Liberty and the pursuit of Happiness. So. applying equitable rules. Freedom of Association. Rather than abolishing property interests as some marxists seem to wish to do. rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do. at least in the abstract.
Equity would allow you to make an Equitable Exception from the general rule of no tresspassing. So.” I used to. while technically as a matter of law you might be prohibited from going onto that person’s property to rescue the child. for example. and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard. 119 . but then I found the concept in Aristotle. in order to rescue the child. “A Man for All Seasons. if there was a tresspass law in a certain jurisdiction which said rather rigidly and without exception. that you could not go onto another person’s property for any reason. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need.CHAPTER XIII EQUITY A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play.
The “needs” thing tends to be a one way street. and so the German socialists. cited by Marx. at home. at least the ability to work ordinary jobs for low pay. that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor. Obviously if the Christian community runs out of rich recruits. of course. stated the ideal “To each according to his need. Now. while equity. from my point of view. Law being based upon proportional reasoning. would not seem to work.Now. The problem. in this case the child rescuer. It is my position. or. placing Equity above law. basically saying this. one might argue that people could rather arbitrarily create equitable exceptions all over the place. unfortunately.” not even thinking about ability. however. then. equity over law. in reading human history. and poor living conditions at home. from each according to his ability. basically abrogating the Rule of Law. problems would result. even for luxury goods. while the proloteriat are the one’s with all the abilitities. of course. except perhaps in the case of an extraordinary Chanceller like Sir Thomas More. one might suspect that 120 . societies are always faced with the problem of either favoring law over equity. that once one take the Ethical Matrix into account.” Here the equitable slogan must have been “to each according to his need. Christian “communism. In Communist societies I think that at least ideally.” which at least for awhile seems to have existed in the early church. required everyone to give everything away and give the money to the “poor” or the “community. did the right thing from and equitable point of view. in essence is based upon arational (not irrational) intuition.” I can imagine my mom. So. poor working conditions. or any mom. Equity is placed above law. But even in More’s case. is that the politburo and the commissars tend to think that they are the one’s with all of the needs. since the whole thing is sort of a pyramid scheme.
The most significant equitable rule is “equitable estoppel. and law has its Equity. and seem unable to distinguish the criminal playing field from the civil playing field. So in our country. as is pointed out in one of my land use planning cases that I use in class. then the former can be equitably estopped from changing his or her original position. Equity only intervenes in the extraordinary case. Now the solution I have come up with. or. 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 has its law. to one’s detriment. This doctrine is similar to “promisory 121 . 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 other obvious option is to favor law over equity. They don’t want equity at all. Who you are is what you own. as Christopher St. reasonably. the Law must be a Dao of law and equity. but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia. as well as the King himself felt threatened not only by Thomas More’s popularity. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge. that after awhile the law types get very pissed off even at this. usually for the “little guy” or the “old lady. Germain puts it. however. In eastern terms. in the United States we have a fair number of Equitable Maxims or Rules which help to. “temper and mitigate the rigor of the law. the Second Coming.” The problem is.” So lets talk about some of those that are already out there and then talk about some that are being used but probably not talked about.” If one takes a position and another relies on that position. This is the Aristotelian approach.the reason for his (More’s) execution by King Henry VIII was that the law courts.” That is.
that either the civil procedure rules do not provide for joinder of legal and equitable causes of action. stating that there is no adequate remedy at law because at law no joinder on causes of action is possible. Waiver and laches are also important equitable rules. With respect to some equitable remedies. is that all other things being equal. of course. The solution. similar to a statute of limitations. and before that an 122 . or. Under the doctrine of laches. there is a completely different court. again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches. find them no longer enforceable. equity favors the little guy. 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. many lawyers go home feeling hopeless in regard to pleading a case joining law and equity. Another well know. one can be barred from asserting them. however. plead all of one’s legal causes of action at law in equity. such as court ordered injunctive relief. at least on the east coast of the United States. one of the problems with pleading a case partly in equity and partly at law is that often. and then. even more interestingly. often denominated the “Chancery Court. Now. After seeing this situation. then the original promise can be enforced with or without consideration. is a fairly simple one. although perhaps not often stated equitable rule. This is an American thing.” which sits wholly apart from the Common Pleas or State District Court. This is sometimes true of other equitable remedies as well. one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law.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.
lack of knowledge. 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. and orphans. Equity finds certain contracts unconscionable if a part to the contract in whole or in part meets the factor test of lack of sophistication. 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. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies. Equity seeks to find exceptions to otherwise ridiculous rules de jure. presumably at the Battle of Runnymeade in 1215. this is what Equity is like. In England of course. where Sir Robin of Locksley.English thing. So. returning from the Crusades. Equity favors the little guy. rational and autonomous 123 . and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. and typically are. the tale of Robin Hood is told. is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. At the same time. or at least ridiculous rules de facto in the particular context. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John. Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be. In America you get it from the Old Westerns. and all of England suffering under unjust taxes levied by the Evil King John. 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. 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. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. widows.
CHAPTER XIV THOU SHALT NOT MURDER In the Bible. One of those commandments is commonly interpreted as “Thou shalt not kill. surpisingly enough. whether one studies it as literature or as Divinely Inspired. were killing others. and as a legal 124 . of course killing many in the opposing armies. So.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. and. including Catholic Christians. we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples. the Roman Armies. in many instances the common sense household rules that our parents applied to us when we were kids. with law and equity at the same level. as an amatuer scripture scholar. the flexibility and compassion that equity provides. but. Later. When we see Equity and law this way. obviously enough. with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire. what do we make of this? My gloss.” Yet. we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. also. we see the value of the structure which law provides.
We are not only to live. and our minds were somehow subject to psychic invasion. we can see that the natural law prohibition against murder is of course a basis for asserting that each of us has a 125 . again? Divine Law is simply starting with the natural law prohibition against murder. that is. For while some might argue as a matter of natural law that we have the right to murder others not only to survive. As stated before in the Chapter on Property. utilizing Rational Self Interest. perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence. contract law. Even beyond this. then the next step is that one cannot defend oneself or one’s family physically at all. this gives us property law. is that what is really meant in the Commandment is “Thou shalt not commit murder. we eat meat from animals.” The other interpretation. Divine Law. criminal law. we are programmed to live. Besides. we eat grain that has been harvested before the field has gone fallow. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. not unlike Enlightened rational self interest. ends up being de fact satanic. does this mean that anything goes? No it doesn’t. we live in a world where we as human beings are required to kill to survive. 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. but to succeed. if we were in a science fiction world. By reason of natural law we have a survival instinct.” Now.ethicist. which includes the injunction not to commit murder requires that we not commit murder in order to survive. in my view. let alone achieve material or any other type of success. “Thou shalt not kill. we “kill” all the time. For better or worse. Depressive suicidal impulses are considered signs of illness physical or mental. What is Divine Law. and finally Constitutional Law. tort law. Dovetailing on that earlier discussion.
” “Don’t Tread on Me.” means only that it is best to avoid a stupid or idiotic fight if we can. with the members on the surface often seeming to be very religious. One hears the rumors and reads the novels about satanic cults. “Give me Liberty or Give Me Death. and together. but to fight to the death for our right of self defence if we cannot. totally in favor of nonviolence. which of course we do both under natural law and Divine Law. “Turning the Other Cheek.correllative possessory interest in our own bodies. 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. Non-violence implies that each of us. but to the point of seemingly not eating at all. even to the point of not only being vegetarians. respectively.” 126 . Non-violence is satanic. As a last aside on this topic. has no right of self defence. If we are to have a just society we cannot teach our children non-violence.
where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher. Sandy’s on Friday afternoon was a Greek hangout on football weekends. I went to class. they did not serve Gyros. Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). Chrisman and John Vitek and I would always go. making sure that we hit Sandy’s Bar on Friday afternoon’s. instead it was Fraternity and Sorority city. worked out at the East Campus Gym a few times a week with my cohort in crime. No. 127 .CHAPTER XVI WHY IS LEGAL ACADEMIA IN DISARRAY? When I was in law school at the University of Nebraska. studied. We went to Nebraska football games. in season. but only drunk by the glass.
but we did it anyway because it was fun. So." "You are a model aren’t you?" And so it went. big men on campus. moan. and hope beyond hope. we were happy to be in law school.We sort of thought we were BMOC. second. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). 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. (This is of course the opposite situation relative to the Zoo Bar. you were D. we didn’t really mean it. "My God. The Lock Blade crowd at The Zoo Bar.O. you might say nothing. although we might bitch. a lot of whom I think were Vietnam War Vets. first rate legal education. First of all. maybe it just might work. We knew we were getting a top of the line. if you were Greek and you went to the Zoo Bar. Anyway. a lot of us I think first generation lawyers in our families. together. Dead on Arrival. Believe me. that is. what does all of this have to do with legal academia? Well. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks. and complain about things a bit. clearly did like to see Greeks at the Bar).A. Believe me. who complained that the faculty was too liberal. Chrisman and I had this routine we used in trying to pick up sorority chicks. I guess that would make it about 5 and one half pitchers apiece. if you were not Greek you did not frequent Sandy’s on football Fridays. Phi Delta Phi members. I might say something like. go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. we would get a little drunk. for example. we were successful law students. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively.ploy was doomed to failure. but I think that there is a connection there. It was fun. 128 . We knew this whole method. Now. at Sandy’s on football Friday afternoons.
Now. meaning is real. Critical Thomists. words." were the watchwords of critical legal studies.Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. then on the tenure track at Widener in Harrisburg. We like to let things percolate for a while. especially used in a real world context such as law. a moderate to conservative Republican. So I filed this conversation away in my long term memory. "Trash and Bash.." and not "concrete. just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican. are very real. I taught jurisprudence several times and still try to integrate jurisprudence into my other courses as suggested by the American Bar Association’s McCrate Report. and do you know what I found out? 129 . Not rabid of course. For a Critical Thomist.. mostly through reading the legal scholarship of outside law professors at other law schools. Well things percolated until I got into Legal Academia. Jurisprudence being of course that discipline within law which involves Legal Wisdom." and therefore not "real. Now. tort. like myself. and I suspect still is. as a Critical Thomist. and concepts. what I discovered after awhile at Widener. first a visitor at Marquette. love. so. don’t like to rush to judgment. Over and over again I read articles which said the concepts such as liberty. were simply "reified concepts" which were illegitimate because they were "abstract. since Bob was. I slammed out a few articles making this point. this situation flabbergasted me. was that critical legal studies was the jurisprudence that was in fashion." Now. being a liberal or moderate democratic. So. I could simply have brushed this off as ideology. justice. contract.. I mean really real. getting tenure in 1994..
is that all of these people are. its academia in general.O.B. now.. Finally.G. This is called deconstruction. but lets save that one for later. Finally.A.G. The K. No one would respond. What is the problem with this? Well..G. Now. even better. I developed a refutation of the concept of reification in a one line proof. If anything can mean anything. Dead on Arrival. D. no one seems to care. what I call.B. Because. and maybe moonlight a little bit for the K. Or. and basically found reification to be an inadequate concept. in my view this makes critical legal studies. first of all extreme relativism is an incoherent jurisprudential and philosophical position to take. For them. But even if that is true. The political problem with extreme relativism is that it is nihilistic. And it is not just legal academia.. they just left town. (As I recall.. Anyway. Why would this be. I think. as such. nothing. why not just walk down to your local political commisar and join the communist party."). the K.. I got ignored. What is post-modernism? Well.. people usually cite Derrida for authority. in Moscow and all its files probably ended up in North Korea or Communist China. anything can mean anything. I suppose you could even use Wittgenstein on a good day. what you find underneath all of this.. really didn’t go down. and if they did. and I suppose that will be ignored too. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid. that critical legal studies has now shifted ground and has moved to post-modernism. really.Well. don’t they have the names and information 130 . which still maybe hanging on even though the cold war is supposedly over. Now. don’t you think. which usually is not stated. then why bother? I mean really why bother? Why not blow your brains out? .B. extreme relativists. one simply starts playing around with language to show that concepts are circular or indeterminate. in 2003. . in 1996 I put out an article in the Capital Law Review where I explored the concept of reification.
Now. especially when your law professors don’t even bother showing up for class." For the intellectual elite in American Law Schools. we all have a drive for meaning and meaningfulness. Liberalism was on the right and in the right. other than totalitarian political parties. and instead use research assistants. in point of fact. Last time I heard. before I finish this essay up. the American Nazi party existed. then why not find your local gaultlieter and see if the Nazi’s are interested. Although we support all sorts of programs to help the disadvantaged. This is Critical Thomism. as Bernard Lonergan puts it. we ground our position epistemologically and metaphysically on the right. liberalism is false consciousness. I not so sure. This is because you can base liberal principles and values in classical metaphysics and philosophy. and if anyone does show up. A lot of liberals from the 1960's started out as liberals on the right. let me digress a minute to discuss extreme relativism. Liberalism on the right believes in truth. which has always been considered to be a liberal position. Nebraska. Now. you might say this sounds ridiculous. no one takes attendance. in the local newspaper who was a big shot in the American Nazi party. In fact there were always stories about a guy in Lincoln. What is left. Listen. They showed the literature and everything. 131 . just looking at things from a jurisprudential point of view.for all the agents in place and sleeper agents in American? Just a thought). if we can’t get it through liberalism and the rule of law. they packed in a long time ago. There are no totalitarian political parties in the United States. Well. if you’re a po mo (post-modern) and you don’t like the communist deal. we look for it elsewhere. really. Well. everything is seen as just being ideologically subjective and a "bad trip.
not one that is nihilistic. ironically enough is further to the right than Adolph Hitlter. moderate idealism. It is based on relativism which always ends up being extreme relativism. Even more. So. I suppose is why so many Nazi’s hate Liberals on the Right. . and equitable compassion for others. then of course the statement that everything is relative is relative. on the right and in the right. As a Lonerganian might put it. Somehow. I suggest that Academia in General. then. Anyway liberalism on the left doesn’t work. embrace Critical Thomism. won world war two and the cold war was that we were Liberals on the Right who were further to the Right than either the Nazi or the Communist parties. and Legal Academia in particular. The Americans. and moderate realism. The Nazi’s were wrong because they were denying persons their individual right. Maybe this happened somehow after Jack Kennedy was shot. I suppose that Communists on the Right. We knew we were in the right in fighting Hitler. This is a commonly known proof: "If everything is relative. "everything is relative. A Good Liberal is one who believes in moderate relativism. that is Hardliners or Stalinists hate Liberals on the Right as well. Extreme relativism. the statement contradicts performance. Such a Good Liberal. 132 . and therefore meaningless and invalid. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. but in a constructive way. which. once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent. Once you’ve done that you are still free to deconstruct languge." This is an philosophically existential refutation.I say that a Good Liberal is on the Right and in the Right. what is the solution to this situation. being. liberalism moved to the left. during the 1960'. The reason that we." Now.
or at least we pretend to. lawyers and judges do. Lawyers are supposed to uphold the "Rule of Law. not the Law. what about Facts? Do Facts Rule? Jerome Frank thought so. a 1930's legal realist. argued that Facts are what control the outcome of cases.CHAPTER XVII LAW AND OBJECTIVE FACTS Facts." But. and in his book. "Courts on Trial. A lot of trial lawyers think so to. "The hell with the 133 . maybe jurors."107 Frank. what is that? How can Law Rule? What about people. Any trial lawyer worth his salt will simply say. What are they? Who cares? Well.
. Well. how about The Facts. 20th Century Fox. working off the philosophy of Bernard Lonergan."108 with Paul Newman. argues that we in fact know reality through three interrellated cognitive operations: 1.Law. Frank Galvin did win in "The Verdict. that was attorney Frank Galvin’s salvation. Critical Thomism. and he won." and a lot of lawyers do to." In "The Verdict. 134 .. experience > where one intends sense impressions 2. just get me in front of the jury and I’ll win my case. But some of us wonder that even if we can imagine that The Law is objective in some sense. He passed up a settlement offer. approximately half. "The Verdict" 1982. understanding > where one intends ideas and thoeries 107 108 Jerome Frank. in order to try the case to the jury. "Courts on Trial (1949). one suspects. perhaps unethically.
Anthony J. L." The Buddists call this illusion. setting the stage for "Reality" at Level Three. "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning. On Level Two. "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence.’" 25 Capital Univ. we organize sense impressions through the use of symbols and ideas.3. This is the level of "Reacality. we simply experience a blurr of data. Hans Georg Gadamer. Rev.109 What this means is that on Level One. but in some sense participatively create what is going on through the use of meaning structures. 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. "Truth and Method" 239 (1975). It is on this level that we not only understand what is going on. See generally. Rev."111 These "forestructures" of knowing help us individually and collectively to "interpret" or "interpretively create" "Actuality" at Level Two. even myths. Fejfar." 27 Boston College L. judgment/reflection > where one intends the real or reality. 681 (1986). For a discussion of "relational meaning streams. Fejfar. Piaget of course confirms this for us when he points out that level two is essentially the magic stage of development while level three puts us firmly in concrete 109 See generally. the level of sense impressions. 110 111 135 .110 which act as "forestructures of knowing." see Anthony J. 579 (1996).
this is all very nice. where does the Critical Thomist schema fit in? 112 See generally.operations and Kohlberg’s "conventional morality. possibly even fascist. Walter Conn. but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic."112 Now. positive in some sense and negative in others. 136 . I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag. But given this. "Conscience and Self Transcendence (1973).
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).
one’s life at least epistemologically if not metaphysically. Similarly." Id. Id. perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. however. on the one hand. at sublight speeds. then. Nick Herbert. Perhaps our logic is not sophisticated enough to accommodate such a possibility." Id. "Quantum Reality" (1985) (quoting Heisenberg: "Some physicists would prefer to come back to the idea of an objective real world whose smallest parts exist objectively in the same sense as stones or trees exist independently of whether we observe them. Thus." Id. 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. when one lives the 118 See generally. Heisenberg states. there is plenty of room for Quantum Mental Communication at a distance. (Even in a "gross" Newtonian physical world. Now. Id. at least as to Quantum Events.9999%. Thus. any purported newtonian "objectivity" is chimerical. at 348. 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. that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. Moreover. at 17.118 In other words. and quantum activities on the other hand. "The hope that new experiments will lead us back to objective events in time and space is about as well founded as discovering the end of the world in the unexplored regions of the Antarctic. Penrose points out. probabilistically. This however is impossible." Id. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem. "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically. is that when we combine the foregoing. Now. it is impossible to produce perfectly replicable scientific 140 . it is possible that "quantum effects" trigger much larger neural activities within the brain. at 31). 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. Questioning this possibility. which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment. with the result of Bell’s Interconnectedness Theorem. at 349. totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy.
perhaps in ordinary right handed persons. Finally. Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run. Thus in this vein. the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning. 119 See. one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. Let the Dreamers Wake the Nation.critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy. We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). Walter Brueggemann. results. in an earlier article. 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. 141 . "The Prophetic Imagination" (1978). and the right hemisphere toward "quantum interaction" associated with intuition. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation.
142 ." 76 Marquette L. Shaffer and Anthony J." on Working Girl Soundtrack (Arista Records 1989). Rev."120 Now the skeptic might argue of course that such "alternative reality" or "alternative 120 Thomas L. "Let the River Run. "Wake the Nation: Law Student Insights into the New Jerusalem. 767 (1993) (Quote in text adapted from Carly Simon. Fejfar.Come the New Jerusalem.
First of all Quantum Physics.121 There are of course two responses to this. Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate. in the text is more adequate and relevant. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results. My “Long Proof” refutation proof of Ockham’s Razor is as follows: 121 Literally. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need. above. however." In practical application and ordinary interpretation. is not metaphysics at all. however." (Quoted in Roland Omnes.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. and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid. arguably. any more than newtonian physics or einsteinian physics. "Entities are not to be multiplied without need. the foregoing means. 143 . the definition that I use. Literally. it is my position that Ockham’s Razor itself is flawed and invalid. "Quantum Philosophy" 19 (1999)). Additionally.
2. upon reflection.Refutation of Ockham’s Razor 1. legal. 144 . the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. or otherwise. 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. Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid. provides in essence that in considering any problem. Ockham’s Razor which was created by William of Ockham. 3. Once step 2 is taken. 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. scientific.
as such.4 = 7. 145 . D. Mathematical Illustration. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor.4 X=3 G. It is argued that a concept that cannot allow for its own existence is invalid. Ockham’s Razor as a starting assumption must be excluded. We must now proceed to solving the problem 4+X=7. C. In fact. However. J. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. then by the operation of Ockham’s Razor.4. Thus Ockham’s Razor is rendered self contradictory and invalid. Since the foregoing problem was solved without the use of Ockham’s Razor. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted. A. H. I. F. Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. B. 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 . E.4 X = 7. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor. Let us consider the mathematical problem: 4 + X = 7.
5. Because this is true. 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. after the fact. we might say. ethical. The best we get in the real world at Level Three is something like 99." are now once again relevant to scientific as well as jurisprudential inquiry. in a world of Heisenberg’s indeterminacy. This of course is not true.A. it is argued that scientific materialism (including marxism) and capitalist materialism are D.O. but no hatrack to hang it on. While "objectivity" may not be possible as an abstract metaphysical possiblity. if we intend "objectivity" then in some fashion we get "objectivity. Now. into "virtually unconditioned judgments of fact. perhaps the materialist is aghast at this point.9999% real probability in the real world. it is certainly true that Metaphysical concepts such as "Being." at Level Four which is constructed through "virtually unconditioned judgments of 146 . Now as Bernard Lonergan points out. especially since Quantum Indeterminacy seems to leave us our hat. Ockham’s Razor is proved as being invalid in every case universally." In other words. scientific. our authentic subjectivity will produce our "objectivity." A la Lonergan." Finally. given that Ockham’s Razor is invalid. above. that is Dead on Arrival. can be used as the first step in the resolution of any problem. Now. Put another way. it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts." psychologically. legal. our highly probable judgments of fact simply "kick over. It is argued that the proof/approach used in 4.. or otherwise. it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak. Additionally. cosmological.
for better or worse. Facts do exist.fact. judicial or otherwise. We use these facts in counseling our clients. we leave the conventional or reflectively probabalistic world of Level Three and shift up our consciousness to a world of "formal operations" and obtain virtually real objectivity at Level Four. back to lawyering again.f. and. in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail. therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid. We need not be fact skeptics at all. 147 . "How to Know God" (2001) (discussing virtual reality). probabalistically at Level Three and objectively at Level 4. as an enticement for the reader to keep reading. arguing our cases."122 So in the end perhaps Piaget and Kohlberg are right. is excluded by the operation of Ockham’s Razor. and in making our decisions. and. Finally. So.. here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept. Deepak Choprah. And.” 122 C. as such.
and you got a little sick to your stomach. after loading up our litigation briefcases. the Nam guy was right in one sense and wrong in another. when Bill Dittrick. said. Bill would say as we were going out the door.CHAPTER XVIII LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. You had to 148 . Nebraska. and your gut tightened up.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase. Sure. doing primarily corporate-commercial litigation. almost tearing up. Holm. the opposing lawyer. I remember when I practiced law at the Baird. “Well. You had an opponent. and the guy. law firm in Omaha. the physical bullets weren’t flying in the courtroom. but the whole thing was still a battle. and believe me this isn’t war. the litigation partner I was working with and I would go off to trial. “We’re off to War. I was in Nam. just like before a big basketball game you were playing in highschool. Now.” Bill and I both sort of gulped. and didn’t know what to say.
In fact. however. Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank . and in the end nobody really gets what they wanted in the first place. if nothing else you did not want to lose. Flanks of course not refering to their posterior anatomies. What these type of commanders often fail to realize. The casualties are horrendous. The war is waged back and forth between entrenched positions. and involves military tactics. 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. Another method of litigation was the war of attrition. and at the same time you had to care. but rather to the ends of their front lines where their primary forces are deployed. Losing was for losers. There was another sense that litigation was like war. they might not even remember what they wanted in the first place.tough. is both the vulnerability and the opportunity of exploiting the flanks of your opposition. simply bulls his way forward with a frontal assault. I suppose this was like the trench warfare of World War I. As I mentioned above. however. that is. 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. this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. blitzkrieg. seemingly forever. the typical litigation partner. that is in the sense that litigation in many ways parallels war. Even in the commercial cases you cared.
“Ours is not to question why. We have a ten to one advantage over the end of the enemy’s line on each flak. there are of course response moves in such a situation. it is pure idiocy to attack straight at an entrenched position. Just like the game of Chess. they want it carried out. notice that if the Enemy’s line moves forward and engages our front line. if they don’t have the ability to change orders and adapt in the middle of the fight. then it is possible to engage the flanks and at least stalemate the defensive attack. not unlike the Charge of the Light Brigade. and then move forward with the flanks. engage the enemy in the middle. regardless of the outcome. we can shift our left and right flank defensively so that when the enemy’s line passes by. If there is more than one line. if the enemy trained to think multilaterally. Now. Now. Once “high command” has decided on a strategy. As the poem goes. However. from an offensive point of view. those ranks of troops are exposed as well. then the defenders will almost certainly win. but they rarely work. even if they are outnumbered. I would go so far to say that an order to do so is an illegal order. One should always pick the terrain in such a way that one can deploy one’s flanks on the right and left. and to have the troopers and non-commissioned officers to take the initiative.xxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Front Line of Enemy Now. and then attack the enemy’s line in a way the enemy cannot combat. our flanks can turn to the center. ours is but to do 150 .
Unfortunately. he didn’t get that far. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. and. outside of Harrisburg. Lee had to attack. even if Lee had sent a few scouts out. a small mountain on the Union Army’s right flank. let’s consider the above in light of the Battle of Gettysburg. Now. cutting off supplies. he could have seen that the Union lines did not extend beyond Little Roundtop.or die. Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered. and was stuck in Union territory.” about the Marines in combat 151 . the first thing to remember is the context. as well as attacking the Union troops themselves.” Now. for him. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania. and then some trees behind. I am choosing this battle in part because I live fairly close by and have actually visited the battle field several times. Neither France nor Britain was entering the war on behalf of the Confederacy. 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. Similarly. The Confederate Army was underprovisioned. effectively ending the war. and the road to Washington. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank. if you have seen the movie “The Thin Red Line. Now. That’s the background. Now. before we get to the law application. and attacked the Union rear. The battlefield itself is about three or four miles wide. Then there is a farm field about one mile in width. around Little Roundtop.
The commanding officer said no and threatened to relieve the company commander. how does this apply to litigation. Next. suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. Will it be necessary to associate with other lawfirms. underprovisioned. and then the Japanese entrenched position on the hill. Whether discovery will be local. Whether the case might be removed to a different jurisdiction. at least to some degree. is your opponent. but sometimes it is. The company commander. with relatively few casualties. taking out an enemy encampment. nothing is locked in place. Well. broke.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. or international. etc. but it was hopeless. a lawyer from civilian life before the war. The company comander then exercised field discretion and had his men go around the right flank into the jungle. Now. This is not always possible. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. national. What has happened in the past merely provides some basis for predicting the future. you must know the ground. I your client. first of all you need to know you situation. The next thing to know. but also needed to prepare the case. In the case of litigation. The company commander had his men make a few attempts up the middle. Whether expert witnesses will not only be needed at trial. must absolutely win the lawsuit for whatever reasons. however. your context. Always remember the philosopher Hume. Hume even went so far as to say that all we can really know in our ordinary world is 152 . what this usually means is that you must know what courts are available to hear the case.
based upon inductive reasoning involving statistical probability. I was simply a guy who happened to be at the 153 .” “He who fights and runs away. we ran right into the bully and his side kick and the fight ensued again. my two buddies and I hit the bike racks and got our bikes. and about 50 pounds heavier than my six foot four inch frame. they will know that we will take the 40th street way home. So. lives to fight another day. however. so I asked the guy. I held my own again. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me. “It will be over when I get you down on the ground and beat your head in. I got in a fight with a bully from another school. three inches taller. never overestimate your enemy. I could see the gang at the end of the block. down 48th street. because I could tell that he meant it. though. The bully looked at me and said. “When is this going to stop?” thinking we might have an truce or something. no. at the same time.” Suddenly. So. It was about a three mile bike ride home for me. I was face to face with evil in a way that I never had been before. I made this mistake in junior high one time. underestimate your enemy. Somehow. That is. Following the words of Rupert of Henzau from the “Prisoner of Zenda. 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. don’t necessarily conclude that your enemy is remarkably smarter than you are. never. He was about three years older. I thought. until a teacher came to break up the fight. I figured that I would go to the right down to 40th street and we would get around them that way. Unfortunately. but. 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. so instead we will go the opposite way. I held my own in the fight on the front porch of the school.
also. or even arrange for your enemies to attack each other. yes get discovery started. or even game. Although wisdom allows this strategy. Now. but I guess. the next year my buddies and I were in highschool at Lincoln. they will just gang up on you. but don’t push it right at first. and I never saw either of these bullys again. 154 . Southeast. Instead. allow. Get a trusted private investigator to check things out. my buddy’s mom drove up in the family station wagon. Don’t let one become so dominant that you will lose in the end. Yes. file the complaint. So. Then. of course. don’t waste time attacking all of your enemies at once. the point. I’m not sure that conventional notions of morality do. Both at your client’s end of the street but at the other end as well. If you find yourself in a muliparty conflict. 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. I got my bike loaded up and we were out of there. in terms of thinking about attacking the flanks in litigation. the point is to not in the first instance attack the case head on. She chewed the bully out verbally. of course being careful not to violate the anti-contact rule. don’t overestimate your enemy. except in some situations low level corporate employees.wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. Third parties are of course fair game for interviewing but the opposing party is not. 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. don’t think that evil doesn’t exist. And. One last point.
I was a neighborhood dispute mediator for about two years myself. and learned a lot. is that our goal for Utopia.CHAPTER XIX MEDIATION Mediation has been very popular in the United States in recent years. should still involve the symbolic state. ala Critical Thomism. No. and all disputes will be solved through mediation.000 years on earth. I know that some mediators think that someday the state will fall away. including but not limited to the judiciary. so I am going to cut the apple in two and say that my goal. Things might even go great for 200. and then all we have worked for up to that time will have been lost. for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day. The first thing that I have learned is that mediation does not work without a judicial system to back it up. ala marx. The judiciary taking the bench for at least a day. I hate to be pessistic. and then we suddenly get a lousy generation or two of authoritarian people. The idea that we will somehow be able to do 155 . etc.
I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. as a Liberal on the Right. and that in most circumstances one get’s a very good result. Mediation is. ala Justice Brandeis. We pound out an agreement point by point. Nevertheless. for me. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem. the mode that I prefer and have used is that of facilitative mediation. I ask each party what he or she would like to see happen or get out of the mediation. While there are several different styles. of course. 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 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. In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves. but also should refuse to help facilitate 156 . But. I then ask further questions factually to flesh out the situation and get a better handle on what was happening. I think that mediation is a very positive thing. So. as a last comment. or methods of mediation. the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. modes. We then hone down the possible solutions to just one. I then do an overview. I see a strong role for mediation in our society and system of government. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. 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. and then call it a day. and here. stating that we will first have each of the parties get their stories out.away with law or the state en toto. Then. is excessively utopian. memorialize it in writing.
It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law.e. Intellect. Equality is based upon the idea of proportionality. equality originates with Aristotle. While previously I have recognized the idea of the natural law hierarchy of Body. “A Theory of Justice.” For me. perfect mathematical and geometric ratio. with John Rawl’s book. or before that with Enlightenment Liberalism. i. In Aristotle’s Ethics. though. Instead. Mind. Interestingly. if remarkably well read.. though. Aristotle stopped short of proportionality as a basis for perfect equality. he insisted that the physical damage done by a freeman to a noble would amount to a greater legal harm and resultant recompense than a similar physical damage done by a noble to a freeman. CHAPTER XX EQUALITY AND EQUITY Equality is an interesting idea. Most people.agreements which in the mediator’s mind are unconscionable. I think associate the idea with the civil rights movement in the 1960's. it must be stated here that even if a 157 . or maybe.
The issue of past and present irrational discrimination also must be dealt with. say a concrete laborer. 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. if one person is in a class which has been discriminated against. The argument is that because of past and present systematic discrimination against particular groups. I seems absolutely clear to me that as between two equally qualified persons. the person in the discriminated against class should get the job. ethnic. then. 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.” Equality also comes up in the employment area. himself. one who has a greater educational background and greater skills might in fact. If a street person is defamed by being wrongfully called a “scumbag. This is affirmative action. have been damaged greater. racial. This is equality before the law. my position is that this can only be done on a limited basis with 158 . In a Right Liberal society the person who objectively is the most qualified for the job is the one who is supposed to get it. the principle is the same in the case of defamation. 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. functioned primarily on the Body level in terms of cognition and consciousness. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment. Although in some sense trajic. de facto.particular person. however. Nevertheless.” 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. Here. or religious.
Finally. The categories for discrimination have to expanded. We need a new category for prevention of employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics. and they aren’t necessarily “white.respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. I would simply say this.” In fact. and German. racial Nazi purists. There are an awful lot of bigoted people who are interested in ethnic or racial purity. 159 . 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. White Russians discriminated against siberians and other ethnic groups. In the old Soviet Union. I want to make the following point. Anyway. with respect to anti-discrimination measures and affirmative action. then the solution is to stop discrimination in graduate education in the same proportional way. For example. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education. I don’t really expect these kind of attitudes to go away in the near future. and for affirmative action. and before that undergraduate education. The Japanese in WWII considered Americans in general to mongrels. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards. my point is this. Irish. who would consider my ethnic/racial background to be unacceptable. or a grandparent. or a greatgrandparent. and before that highschool. In order to qualify one need only have parents of different ethicitity or race.
If we think of the ideal rule as a genuinely existing straight line. what the law. and what should be done next.CHAPTER XXI STATISTICAL PROBABILITY Well. Critical Thomists. Heisenberg’s Indeterminacy Principle suggest that we. Quantum Physics. of what is going on. in point of fact. We do a little legal research. provisionally. linear. For us. certainty. the “empirical” real rule from an inductive point of view 160 . as stated in a previous Chapter. and in particular. When a client walks into one of our offices. we ask the appropriate questions to try and get a handle on the facts. the world is a bit fuzzy. That is. do aim for concepts or ideas or conclusions of exact. of course. and more particularly. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. Critical Thomist Lawyers. is. and even “Greater Reality as a Whole” are all probabalistic. ask some more questions. and then we make a probablistic assessment of the situation. using litigator’s intuition and gut instinct one comes to a judgment or assessment. typically a few days later. as well as our world.
. I have just two points here to make... This could be seen through the classical equation: R = x + 0.. what type of employment the applicants parent(s) have held. using a regression analysis which excludes “aberrational data” one then comes up with conclusions. ( R = Rule and x = 1 through approx. 10 ). First of all..only exists as a line of dashes. interestingly enough mystery. but what I would like to suggest is that from a corrective point of view.. In any type of sociological study. it is important to include commonly understood analysis of independent variables in one’s study. ethnic. Now in all of this I am not saying that there may be underlying patterns of racial. or religious discrimination coming from one source or another. courses taken previously relating to: logic. detective... accounting. at least over the medium to long range. one is supposed to. English Literature. one should make sure that other independent variables are properly accounted for. Communications. and espionage novels which involve complex social and political situations. and maybe even require them 161 ..while an ontologically and inductively classical rule looks like this: . undergraduate. perhaps. if the applicant had a great deal of work experience with summer jobs.. Management. So. is that the probable solution is to improve opportunities for particular types of classes. relative to race. Such variables typically might include: grade school. The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type. and. say for example regarding the objectivity or validity of a law bar exam. and.. Ethics. economics. ethnicity.. etc. Now.. high school. and graduate school grade point averages... and then.... a classical rule deontologically and decuctively looks like this: -------------------------------. English Composition. for example. and ideally does take a statistical sample of the relevant data. I’m sure there are others.. religion.
there should be opportunities. 162 . or legal academia in particular. some researchers.for admission to law school. so I have heard. In my mind. opportunities for the development of leadership skills in the military. or religious minorities in the legal profession generally. 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. Finally. intelligence work with the various military services or the Central Intelligence Agency or the National Security Agency. perhaps required. or finally. Computer programs which do no display the standard deviation. ethnic. with respect to empirical research. Clearly unscientific and totally political. or more.” I have heard that some studies are now not even disclosing what standard deviation they are using. Remarkably. including but not limited to social science research. one must remember the difficulty in coming up with an acceptable standard deviation when one performs an regression analysis to exclude “aberrant data. are using standard deviations of 10. for various type of employment opportunities involving a national service corps. This is real “political” science and it does not just involve social science research. do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent. Additionally. if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. or in my opinion.
For Deepak Choprah. For Ken Wilber. When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that.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. on the other hand. level five seems to be the creativity level. 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 me it goes something like this: 163 . The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. the “integrated” “centaur” level of consciousness seems to be about levels four or five. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness.
We don’t need Christian theologians to tells us about life after death or the immortality of the soul. Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. or Law. Why is this important? I suspect it is important because those of us who somehow have a 164 . Whether the mind is in the brain. So. 3. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations. 4. Rule. 2. As noted before. we can advert to Plato’s discussion thousands of years ago. there it is. gets to be irrelevant after awhile. but complex way of thinking.Metaphysics 5. 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. but I do it vertically. or the brain is in the mind. Its not mysticism at all its simply a very good. Perhaps some perform these operations laterally on one level. or both. 1.
it takes a lot longer for a 165 . CHAPTER XXIII EQUALITY Equality borders on a metaphysical principles for some American’s.lived experience of a higher reality. if only congnitively. 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. I noticed the perennial problem. that the line to the men’ restroom was comparatively short. But let’s go po-mo here for a second and deconstruct the concept of equality. God holds all our memories. feelings. assuming that women need not urinate or defacate any more often than men. what does it really mean? When I think of equality. I wonder quite frankly as to “equality” as to what? One might imagine the rather ridiculous example of restroom parity (although perhaps not so ridiculous). Apparently. find that it is worth the effort to invest in the development of our minds and the minds of others. Even the most pessimistic theistic gloss on Whitehead suggests that even with a “process” God. and emotions in His Mind forever. What is “equality?” I mean. one notes that given an equal amount of square footage for a restroom for both men and women. One suspects that their jurisprudence begins and ends with the concept of equality. while the line to the women’s restroom was remarkably long. thoughts. letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education. 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.
The men don’t like having their restrooms taken away in already existing buildings. usage per hour. Now. so to speak. but they are unequal in terms of tire/wheel size. If we think of equality jurisprudentially. Now the philosophical question involved is this. that is. age. race. but to a lot of women its not. The John Deere’s are green. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now. to a lot of men its not. But let’s think of it more philosophically. We could.comparable number of women to “take care of business” than it does for an equal number of men. legal. equality could in fact be related to social class. The examples we could use are endless. should equality be based upon usage. the 166 . More time creates a longer line. is much different for men and women. Let’s take a John Deere tractor versus a Massey Ferguson tractor. My point is that equality only means something in relation to something else or some other standard. In each case there is the implicit. natural law hierarchy. etc. as I said before. have a long and interesting discussion of policy regarding restroom parity. this does have economic. at this point. that equality is geared toward some standard. usually unstated assumption. we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. how about tractors. alternatively. should equality be based upon the amount of square footage floor space. and political consequences. of course. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. and remarkably enough. One might say that two tractors are equal in terms of horsepower. Now. this may seem a little silly. for example. where. or. but that is not my point here. wealth. gender. So.
as my dog Scruffy might say. Case Tractors Orange. Now. was the best color. I could stop here and play it safe. as I have mentioned before is a logically inconsistent. I’m basically a liberal on the right. We still get equality. natural law. But. and ultimately nihilistic position to take. which. but that it must be understood and used in the context of metaphysics. 167 . Anyway. if we could figure out which color. liberal’s on the right know that equality is not enough of a principle to accomplish much. We might even start a protest movement trying to change the law so that we have color parity among tractors. My position is that equality is a good thing. but I won’t. 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. This is tough for the “left liberal” who wants equality to be the ultimate value.Massey Ferguson’s Red. food for thought. red. There is something there to chew on. then. Now. It just doesn’t work. and the Ethical Matrix that I have discussed previously. There is a little more to it. one is left with extreme relativism. or orange. at least not on its own. as I’ve said before. If equality is the ultimate value. but it is equality with some meat on the bones. green.
I 168 . of course. and as such. what is ‘hogwash?. I don’t see how I can respond to your criticism without a little more in the way of definition.” I said. literally.’ how do you define it. Here. the problem is that ‘critical thomism. a philosophy. “I think Critical Thomism is a bunch of hogwash. I might respond by saying.’” The next move. So. and that it stinks.” the Critical Thomist of course feels compelled to respond in some way. is. that’s it. like bullshit. my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle. Critical Thomism. really.’ just doesn’t line up with that definition. “You know.” Then you sit back and think of the next move. One might make the rather interesting move of asking one’s assailant to define his or her terms. is to shift the burden of proof to the complainant. “Well. in its deepest sense.CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says. “Hogwash.” Your assailant then looks at you quizzically and responds. I suppose. hogwash. incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible. and that it is full of partially digested cattle food.
thereby disprove any attack on the proposition that consciousness involves different levels or operations. what say you?” Usually the response is that there “is nothing like judment. and. and in so doing. let alone ‘good judgment.” At this point the Critical Thomist need only quote my Boston College article for the proposition quoted therein that in order to refute “Critical Thomism. or position as true based upon critical reflection or judgment. that ‘judgment’ does not exist.respond simply by saying.” 169 . and then assert some fact. law. “Well.” “one would necessarily need to refer to one’s experience. elucidate one’s understanding. the burden of disproving Critical Thomism is on you. rule.” or there is nothing like “levels of consciousness.
CHAPTER XXV REAL PROPERTY AND METAPHYSICS When one thinks of Real Property. For example. however. From a metaphysical standpoint.123 123 So. being. or perhaps one’s home or one’s office building. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property. and the medeivals discussed a similar concept of “prima materia. one can analyze real property in those terms. one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land. a real property or a real titled interest.” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence. Substance. One supposes that “substance” without being affected by one or more other metaphysical quiddities. one typically thinks of the ground that one is standing on. that is. if we take the three metaphysical principles of substance. 170 .” the early Greek philosopher Anaximander is credited with first developing the concept.” is that While John Locke mentions “substance” in passing. one can play around with some interesting concepts and produce some positive results. seen as “formless form. would be simply the Greek concept of Chaos. and form. the general idea of “substance.
” A fixture is personal property which is annexed to real property. because of its fluid nature. attached to real property. as such. Perhaps a cube or a blob of black licorice jello might provide us with a metaphor of what substance is like in its pure form. is of course. or is a real estate agent or broker.”124 In fact mystics or quantum physicists often refer to the “ocean of being. personal property. and has the valence of substance. or perhaps more traditionally put. Transactions involving personal property typically involve the Uniform Commercial Code.” Personal property. typically by some form of physical attachment. on the other hand. In this sense it appears that a fixture must have 171 . Perhaps in no other way. does one encounter the “real” of substance in this basic sort of way. participates in. other than interacting with a new born infant. It is my position that real property. Real property is formed in substance. more movable. has the valence of substance.it is a virtually unqualified kind of stuff which is primordially physical. Water. To be contrasted with real prperty. then. Being having the metaphysical definition of “form of form. somehow. or chaos. someway. seems to be more in line with the metaphysical principle of being. and which thus loses its character as “personal property. and in its pure form as material matter is simply the mud or dirt or rock of the earth. yet at the same time in its purest manifestation. usually one does not “get it” until one has practiced real estate law. As an intermediate category between real property and personal property. is identified with the metaphysical principle of being. and thus can be distinguished from real property.” and becomes a fixture.” or the “quantum ocean. to the extent that it is more fluid. totally formless. is the legal category of “fixtures. While one might get a sense of this in one’s property class.
essences. or “being form.v. and substantial form. I then have water. to denominate the metaphysical principle which underlies a fixture as that of substancia. Now. let’s start with this hypothetical example.” rather than remaining a fixture. the sections were movable. If the home is considered a 124 This is Plato’s definition. and cable t. classical concepts such as essence. or quiddities. All the hookups are attached to the home. So. using purely evolutionary terms. seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. and has more of a straightforward valence.a metaphysical appellation which is a half way house between being and substance. As an interesting correllative to the foregoing discussion. is the question of when a fixture becomes “real property. in three pieces. Although fairly large in size. sewer. essential form. 172 . one can come up with a way of discussing the differences between two actualities. In an evolutionary universe. electrical. and the home itself is bolted to the concrete block foundation. taking into account some basic metaphysical principles relative to change. However. as such. before the home was attached to the foundation on the lot. it seems fairly clear that the sections of the home were personal property.” has more structure than substance. hookups installed in the lot itself. Now. Let’s say I own a two acre lot in fee simple absolute. Substancia. It seems appropriate then. I then have a “sectional home” moved onto the property with a crane. The sectional home rests on a concrete block foundation. without losing one’s basic underpinnings in classical philosophy. form. let’consider whether or not we have a fixture here. or at least the appearance of change.
In classical terms. prior to attachment. and whether or not it is permanently attached to the foundation– if there is a foundation. let’s think about it this way. exists as a substancia form (in substancia) or perhaps even in being form (in being). can be considered to be real property. So.” which is not “really” or 173 . but this way is a good one. and will have to be removed in accordance with local zoning regulations. although many grass stems would be affected. 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. if it is in place long enough. an arational. one could come up with a classical term such as “accretion” in the first instance. in my judgment. 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. perhaps. Blackacre exists in classical terms as real property in substantial form (in substance). The sectional house. Now. would be mowing the grass on lot to a height of three inches every month. Tyically courts look to whether the home has running gear attached to it. Now. Presumably. or a rational/logical accident. rather than four inches. A good example of this.” or an “accidental change. a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. Then we have the sectional house. in my view.fixture or even personal property. Imagine we start out with the fee simple two acre lot. which in no way affects the substantial form of the object under inquiry. there is more than one way of thinking about this. is simply the addition of an irrational. an interesting question is whether a fixture. An accretion to a substantial form. that is. Blackacre. this would simply be a situation involving an “accident. it will probably be considered a mobile home.
In classical terms. In other words. however. one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. or. Once an accession has taken place.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. of course. because neither “substance” nor “form” are effected.“truly” a “change” at all. So. a statistically significant change has taken place.125 The accession represents an intermediary state between the real property state and the personal property state. Either something is a particular substantial form or it is not. how then does one move from on substantial form to another. in point of fact such a change seems impossible. The trick to dealing with this situation is that just past the metaphysical concept of accretion. Such a “change” would seem impossible. Now. 125 In terms of statistical probability. this is simply. In classical terms of course. let us consider the substantial form of our two acre Blackacre lot. 174 . 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. and as such. however. impossible. only an accidental or non-substantial change to the real property. of course. incorporated into Blackacre as an undivided whole of the real property itself. a fixture attached to the real property. suggesting in statistical terms. What. one has simply placed personal property “a la accident” on the real property. in point of fact real change or true change are both respectively. the presence of a new “variable” which previously had not been accounted for. is that of “accession. albiet not yet real property. If we add the accident or the accretion of the parts of the sectional house.
at the time of houseless Blackacre. Doubtless the old property hand will now ask. Blackacre with house exists in potency but not in act. Once Blackare with house has “manifested” relative to us. as such? One supposes that the inquiry will involve a variety of factors such as intent. but when is it that the house becomes real property and part of Blackacre. In the classical universe of being. well. treatment of the house for tax purposes. although not one accessible to one having the perspective of “houseless Blackacre. the foregoing seems absurd.. creativity is always limited by form or some other metaphysical principle. not in act. nothing is really new.” It is not just a word game. In classical terms. This is why to a classicist. 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. 175 . When one has been schooled to think in terms of incremental evoltionary change and statistical probability. fine with the metaphysics. As Plato puts it. permanence. They both exist as independent immutable substantial forms. At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. etc. Now. If such factors are present.Now. Blackacre with house really exists in a parallel being universe someplace. it is literally true that “Blackare with house” has always existed in act in some place in being. then I would argue that a fully manifested Blackacre with house is present (in act). life is simply a process of “remembering” or “re-congnizing” what is alway already there. then Blackacre without house exists only in potency relative to us. but in classical terms it is not.
the evolution paridigm for reality seemed the best explanation. A lot of people think its passe or irrelevant. After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents.” rather than philosophy. others simply associate it with the New Age and like it even less. however. mistakenly. six hour course in 176 . though. metaphysics came sort of naturally. well. My freshman year in college. . where the fossils where hundreds of thousands of years old. Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark. I had a two semester.CHAPTER XXVI TRINITARIAN METAPHYSICS Metaphysics is a tough thing to think about. think that it is “theology. sort of. For me. Some people with particular religious dispositions don’t like it because they.
one notes that in Genesis itelself. So. God is seen as creating the world in seven days out of the “void” of “Substance. in my forebearer’s generation. Renard’s book was a type of Neo-Thomism which cited to Plato. getting back to metaphysics. The problem with neo-thomism that I saw. But. or the Holy Spirit as an immanent theological principle was involved. and Aquinas. And. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. I guess what I’m getting at is this. The metaphysics courses my freshman year were tougher than hell. empirical terms. was that it seemed to see reality in static terms. Now. however. terms. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. and I saw that there was a deductive explanatory perspective that made sense on its own terms. Aristotle. a lot. and which saw the world. top down. as such. I really didn’t reconcile the two paradigms until I took a course in Bernard Lonergan’s critical realism and delved into my own scholarly jurisprudential research and writing. Suggesting of course that at least Substance as a metaphysical principle. enough. As far as I could tell. no one even seemed to care about reconciling this situation. but at some point a part of my mind got the neo-thomist metaphysics paradigm. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us. It could not really account for new species development.” Ironically. cognitive dissonance was still there. particularly my highschool physics class. Evolution. on the other had. and reality in general in deductive.metaphysics using the book by Father Renard. had seen the world and reality in inductive.” That is my reading of it. and my highschool science classes. 177 The evolutionary idea put forth by Carl .
” and that somehow there was nothing which preceded this was. is that the Logos. is it like Santa Claus said. and the [Logos] was in God’s. Through him [the Logos] all things came into being. that the universe began with the “Big Bang. this is found in the prologue to the Gospel of John. He [the Logos] was present to God in the beginning. and was the uncaused. is. and apart from him [the Logos] nothing came to be. 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 .A. As Ken Wilber has argued. ridiculous. this is how it all plays out metaphysically and follows: Being. and last there is Logos (Creative Form). there is Substance (Formless Form). both biblically. Love and Creativity. In the beginning was the [Logos]. I denominated this “trinitarian metaphysic” as So. (N. and is wholly unsatisfactory to me. Now. when we take the prologue to John. where it is stated that Jesus. or Reason. and objectively. and was. presence. we see that there are three primary metaphysical principles. such an approach is essentially infantile. as the Logos is the First Cause. second there is Being (Form of Form).) Now. non-metaphysical accounts of how reality began typically assert the opposite. in conjunction with Genesis. in an earlier article. First. First cause of the universe. “Poof” and suddenly there was the universe? The whole thing is.Sagan. although such athiestic. I mean. My position. In Biblical theological terms.B. and the [Logos] was God. or Creative Form.
even planets. and God the Holy Spirit. in terms of a nonsystematic divergence from a classically stated Rule. and Creativity/Creative Form. one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form. Now. And. Once again. or Matthew Fox. could. and Substance. Norm. and Christian Doctrine can be added to but not subtracted from. are from a process point of view. God the Father. respectively and together. when one realizes that an “accident” in terms of classical philosophy is defined statistically. one sees that the nature of reality itself is relatively stable. but not changed. Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms. Logos. the Mediating Principle. of course. as such. in the Quantum Field of Substance. so to speak. on the other hand the Transcendent Principle. or. it is possible that evolutionary processes could. Ken Wilber. the Immutable Substantial Forms. or others. since the Immutable Platonic Forms. While one can certainly accede that the Trinity Subsists in its Primary relations eternally.Now. produce a New Immutable Platonic Form. acting as the immanent principle of God in creation. It makes perfect sense to argue that the three primary Metaphysical Principles of Being. Substance. it is perfectly possible that certain species of animal or plant. then one begins to see that 179 . God the Son. one might also argue that God the Father. as well as others. So. from a metaphysical standpoint. in an extraordinary case. the Holy Spirit. or maybe even for ever. and God the Son. Love/Substance. ala Whitehead. Finally. as well as an Immutable Substantial Form.” for awhile. rearranged. be put on the “evolutionary shelf. or a New Immutable Substantial Form. bringing all of this back to evolution. The Objectively Existing Metaphysical Principles of Being. or Law. the three primary principles of evolutionary advance. themselves existing in The Mind of God.
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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