JURISPRUDENCE FOR A NEW AGE
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
CHAPTER I JURISPRUDENCE: THE STUDY OF WISDOM In Legal Academia there is a discipline called "Jurisprudence." What is Jurisprudence? Well it is hard to say. One might say that it is Legal Philosophy, but then again, a lot of jurisprudence involves sociology or psychology. I’ve thought about it a lot and I guess I would say that Jurisprudence is that Discipline which is concerned with Wisdom. Put another way, Jurisprudence, is The Study of Wisdom. Now, I suppose that we all could get Ph.D.’s in Jurisprudence like Pope Innocent III did at the University of Bolonga, but I suspect we typically do it a different way. It is my position that where one has received a Juris Doctor degree, and has taken a jurisprudence course during law school, then, one has not only received a Doctor of Laws, one has also received a Doctorate in Jurisprudence. Why is this important? Well Jurisprudence is really the only academic discipline concerned with "the big picture," ..., with policy, values, philosophy, religion, sociology, psychology, business management, accounting, finance, Quantum Physics, Metaphysics, even, theology. You see, of course, the problem with Law is that it has to be interpreted, and, if there is no basis for that interpretation then problems result. Lawyers use policy arguments all the time to supplement their legal arguments. They use their business and financial abilities to help their clients make good, solid, business decisions.
Unfortunately some Legal Academics are legal ditch diggers. They don’t believe in jurisprudence, usually spouting phrases like, "The Law is The Law." But what you really see of course is that they are Fascists. They don’t believe in reason in any way shape or form and they certainly don’t seem to use it. How they get into academia or law in the first place is beyond my comprehension. If this were a world of espionage, and if hypothetically we had nazis or communists in this country, one might suspect that they have faked credentials known as "dummy espionage degrees." Or perhaps, placing ourselves in a world of science fiction, maybe these persons are just "psychic channelers," who just channel and parrot other people’s minds, never having an original thought of their own. In any event, these people certainly are ditch digger academics. They spend all their time digging themselves and others into ditches, and then, bitch, whine, moan, and complain, when they find themselves in ditches with virtually no way out. You know, I must apologize, here, I think I’ve been a little harsh. In college I was a concrete laborer for eight months, and a day laborer for another summer, and, I think that it is unfair to ditch diggers to place these fundamentalist, knee jerk, legal academics in the same category with ditch diggers. I suspect that ditch diggers are more highly evolved than these academics. 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. So, maybe we should, ala Star Trek, call these academics Borg, academics, not in the tennis sense, but in the robotic sense. These Cyborg academics must look to their Central Control Units to tell them what to do. No programming alternatives here. Input in, input out. Shit in, shit out. So, that’s the problem. The solution? Well, in Law School I decided, perhaps unconsciously, to become a Critical Thomist, and, you know, for me it just keeps getting better 5
Critical Thomism, what is it? Well, its my thing. It’s not Thomism, its not Critical Realism, it is perhaps a little bit of both, and a bit more. For Bernard Lonergan, and Thomas
Aquinas, their respective philosphies were based on the Aristotelian concept of Being. I, on the other hand, use a trinitarian metaphysic which parallels the Trinity of God itself. I believe in, and as a Critical Thomist, intend, Being (Form of Form), Logos (Creative Form), and Substance (Formless Form). For me, then, Being is A Pure Act of Understanding, Logos is Divine Reason, and Substance is the basis and underlying foundation for true reality. For a Critical Thomist, reality and consciousness is structured primarily on three levels, Level 1: Body, Level 2: Mind, and Level 3: Intellect. Now, Ken Wilber does something
similar, using the formulation, Body, Mind, and Spirit, but Critical Thomists don’t buy this. For a Critical Thomist, the Highest Level of Consciousness is structured by Logos, and is the Intellect, what Thomas Aquinas called Intellectus. 6
In the preceding natural law framework, then, there are also corresponding levels of virtue or activity. Bodily pleasure and sense experience is found at Level 1, Mind pleasure, or analytical or moral activity is found a Level 2, and Intellectual pleasure or the integrative reflective way of being is found at Level 3. This is of course consistent with both Plato and Aristotle. For a Critical Thomist, then, one believes in, and one’s unconscious or preconscious Mind accesses, The Immutable Platonic Forms, at level 2 in actuality. Form, then, which is a secondary metaphysical principle, supplements Being, Logos, and Substance, and, which leads one to Substantial Form, discussed below. For a Critical Thomist, interestingly enough, the Immutable Platonic Forms are of course composed of Platonic Substance. What else could they be? At Level 1, in reacality, it is a different story, however. It is at this "material level," that reality is composed of and structured by Substantial Form, and, individual objects are themselves, discrete, substantial forms. One supposes that is at this level that Particle Physics reigns, not Quantum Physics. Interestingly, the thing about Critical Thomism is this,. while we can talk about, and even use the Immutable Platonic Forms at Level 2, in fact, those forms typically only manifest probabalistically. The same is true of individual substantial forms at Level 1. While the foregoing might seem a departure from Classical Philosophy, its not. First of all, it must be noted that of course statistical probability is itself, an Immutable Platonic Form. Additionally, however, consistent with Catholic Doctrinal theology, it has always been the case that the Immutable Platonic Forms could be "added to, but not subracted from, rearranged, but 7
not changed." This is completely consist with the point that the Immutable Platonic Forms exist, subsist, outside of space-time. Outside of space-time, paradoxically enough, Change can occur without "change" occuring. Finally, it should be pointed out that statistical probability, a "non-systematic statistical divergence from a classical norm or rule" of course takes place, this is really nothing different than the classical idea that "accidents" occur which are exceptions from classical rules, or the Immutable Platonic Forms, or Substantial Form. Finally, it is at Level 3 that reality is structured by "relational meaning streams." As I have pointed out previously, relational meaning streams structure and partially constitute reality. To some degree, who we are and the world we live in is determined, as Bernard Lonergan would put it, "The World Mediated by Meaning." Now, one who is accostumed to living in a world mediated by logical positivism and newtonian physics, might find the foregoing discussion a little bit "out there." 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. Our world is not just a po-mo (post modern) fantasy, 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, beginning with experience, moving to understanding, and culminating in judgment and reflection, as Bernard Lonergan would tell us. Finally, it is my position that Critical Thomism is not ultimately grounded in Saint Thomas Aquinas, rather it is grounded in Saint Thomas the Apostle. Doubting Thomas is the Patron Saint of Critical Thomism. One suspects that Saint Thomas the Apostle himself very 8
well may have been a Critical Thomist, obviously starting with experience, moving to understanding, and then finishing with judgment. Thomas did not believe in the resurrection of Jesus until after he (Thomas) had experienced the physical presence of the Post ressurection Jesus personally, and then, presumably had understood it, and finally through a process of critical reflection and judgment, had judged it to be true as a matter of a critical judgment of fact. So there it is. For me, I go with Doubting Thomas. Although I may end up figuring things out a little bit behind those who take irrational leaps of faith, I think for me the tradeoff is worth it. Although it may take take me a little longer to see Reality, when I do, I think that I will be sure that it is Reality and not something else. The Critical Thomist may doubt, but
nevertheless, he is the one who asks the critical questions which ensure that he is not taken in by hucksters and false prophets, political or religious.
CONSTITUTIONAL ESTOPPEL AND THE HYPO NAZI’S MARCHING IN SKOKIE WHO WILL PREVAIL?
Hypo Nazi’s marching in Skokie, a reminder to many of Nazi’s marching Neurenberg. What does it mean? Where will it end? Believe it or not these were questions asked throughout my educational career, especially in law school at the University of Nebraska College of Law. We got it in class somewhere. Exactly where I don’t remember. Professor Lake’s Constitutional Law Class or Professor Snowden’s First Amendment Mass Communications Law Class. The whole issue of people getting along, individual rights, Constitutional Rights, how did it all fit together? Well, Professor Snowden tried to help us get it. I could never quite figure out where he was coming from. Daoist? Zen? On the Left? On the Right? I wasn’t sure. Then one day in class it started coming together for me. In Mass Communications Law I had chosen to sit in the anonymous middle of the class, rather than "back benching" it; certainly not sitting in the front row and being a "gunner." Suddenly, out of the blue I heard my name being called. Prof. Snowden said: "‘Nowwww,’ Mr. Fejfar, if I lived in Crete, Nebraska, and the people there were not cool and if I (Prof. Snowden) was concerned that I could not get a fair 10
shake in court (in Crete, Nebraska)– why couldn’t I (Prof. Snowden) move to Lincoln, Nebraska, where the people were cool-- (and where presumably Prof. Snowden would get along great). (Of course we all knew that Prof. Snowden was cool– what other Law Professor could you catch watching and listening to B.B. King at the Zoo Bar downtown). So, Prof. Snowden continued: "‘Wellllll’, Mr. Fejfar, why couldn’t we have a system that handles it that way, with me moving to Lincoln? What do you (Mr. Fejfar) think of that?” Now, what was I supposed to say? First of all I was reading the assigned case and looking over my case brief. Amazingly enough I still did this in the second year (although admittedly by year three I was pretty much book briefing). I did have a little premonition I think. That cold empty feeling in the pit of your stomach. Was it some sort of Jungian unconscious linkage? My response? Panic of course. Sweating palms, of course. And then, of course the usual blank out caused by panic. What could I possibly say? This question didn’t involve ’t in
the case in the case book. It wasn’t even close. Shit. This was like getting lost in the grocery store at age four and not being able to find mom or dad. Then it hit me. Once again, out of the blue. Inspiration. Click. Insight. Lonergan strikes again. Eureka. So, inspired, I (Mr. Fejfar) said: "Welllll’, Professor Snowden, I guess if you lived in Crete, Nebraska, and, the people in Crete, Nebraska, were not cool... and then you Professor Snowden moved to Lincoln, Nebraska, where the people were cool, I guess all I (Mr. Fejfar) could say is that that would make you, Professor Snowden, an ex-cretian1." Now, if you have
Of course I definitely did not say "excretion" or "shit," the term ex-cretion was of course only a merely coincidental use of language relative to those terms. 11
gotten the joke here, you might well anticipate, that at this point, Professor Snowden placed his head on the table from which he was lecturing, and beat his forehead on the table several times. I of course thought that I would receive a startling round of applause from my classmates, but instead all I really heard was a rather remarkable sonorous communal gasping intake of air by the remainder of the class, with only a few scattered laughs. Now, why did I tell this story, "out of school," in this essay, risking the wrath of the bar and legal academe? (For some reason I’m not worried about the judiciary, I think they have better things to do with their time). Perhaps it was to poke fun a little bit at Professor Snowden, but really in a backhanded way, it was meant as a compliment. Why? Well, first of all I think Snowden would love hearing the story again, and having it in print would help to pass it on in the lore of my alma mater (Nebraska, The "Harvard" of the Plains). Second, of course, Prof. Snowden was just great. All my professors were good– don’t get me wrong, 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.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. And, in the spirit of Professor Snowden, and in thinking of Constitutional law relating to the First Amendment, I am going to press the envelope in this
The "pit," of course, being the proverbial student lounge area in the basement of the law school. It’s not that Snowden was hiding the ball. I don’t think there was a ball to hide with Snowden. This, of course, is to be contrasted with Professor Bob Works, who always "hid the ball." 12
article. Now, I am a liberal kennedy democrat "hiding out" as a moderate democrat. I usually flash "progressive" when I hit faculty functions and faculty meetings. I suppose in Europe I would be considered a Social Democrat. I remember Jack Kennedy’s funeral when I was four years old, watching it on a black and white t.v. with my mom in our rent house in Terre Haute, Indiana, when my dad had his first teaching job at Indiana State (I guess this was around 1963). I remember that my mom and I both cried. It was especially sad because we were Irish Catholic (my mom half, me one quarter). (We’re Fitzgeralds. Kingsblood4 I remember my mom saying. Norman Irish. Boston
Now of course this might be pure hypoerbole, but then again, a Fitzgerald was a signatory of the English Constitution, Magna Carta in the year 1215, after the Battle of Runnymeade. (One Warin Fitz Gerald.) One supposes that it would take a Royal to be a signatory otherwise the document would not have been binding on Evil King John. The Document must have been valid and validated since the text itself indicates that Pope Innocent The III, approved it, and Stephen, The Archbishop of Canterbury was a signatory. Later Pope Innocent The III issued a Papal Bull rejecting Magna Carta, alleging that it was coerced. This seems rather awkward though in light of his earlier support for and approval of the Document. Magna Carta is interesting, though. It guarantees that all freemen shall not be "taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed...save by lawful judgment of his peers or by the law of the land." Now, of course, it only takes a little bit of analysis to see that the requirement of Magna Carta, here, is that the judgment be one of "lawful judgment of his peers [and] by the law of the land." I have three arguments. First, scriveners error, that is, the authors really intended "and" not "or." Second, 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. Finally, of course, Magna Carta is one part of the "Law of the Land," so that the clause can and should be read, that “judgment” can only be had by "lawful judgment of his peers or by [Magna Carta],” ...., 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, in the alternative, there is an infinite regress, which 13
Fitzgeralds. The family lore was that we were distant cousins of the Kennedy’s on the Fitzgerald side. Ours family went West after the Civil War.) Then, of course Bobby Kennedy was shot. It was impossible. It couldn’t be. Not again. Suddenly instead of Camelot, it was the Kennedy curse. A Liberal Irish Catholic simply could not be President of the United States. Ted knew, we all knew. Sure, there was a lone gunman in each case, that’s the story, but in our household we knew it wasn’t the whole story. These killers were fundamentalists. They were fanatics. They were the antithesis of everything we believed in. I didn’t know what it was, it was somehow in the blood, as Tom Shaffer might put it. I figured it out at Rockhurst College, or Creighton, I think. We, the Catholic Liberals were Thomists. We believed in Reason. We knew truth was possible even though it might be a little ambiguous and hard to get at. Catholic Thomists believe in Liberal Truth. Thomas Aquinas said there were three levels of law human law (political law), natural law (common law), and
of course is irrational and therefore an unacceptable interpretation. Now, at this point you might say, "Who cares?" Well, I do. 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. Now, in my case, that means that I have a right to a jury of Lawyers who have passed the Bar, and thus are Esquires, and a jury of those who are Members of the Order of the Coif, as well as the United States Supreme Court Bar. If they can’t find such a jury, tough luck, I’ve got judicial immunity.
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
of a party, using that word in its broadest meaning as including his6 spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice and good conscience.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, unless prevented by estoppel; and its practical effect is, from the motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel. The doctrine of equitable estoppel is
Although I use the original word “his” in the quoted text, perhaps the word "hae" as a personal neuter pronoun, rather than "his" or "her" would be More appropriate. An author faces this problem constantly, not wanting to be sexist, one way or the other. I think that this solves the problem nicely. In my "Home Run Ball" article I introduce the "Ethic Matrix," a Universal Natural Law Ethical Decision making tool. I argue, remarkably enough, that if one practices using this tool long enough, and in good faith, one developes a conscience (to the extent that one does not already have one).
pre-eminently a creature of equity.8 Now, it is fairly straightforward that when one combines the well established Doctrine of Equitable Estoppel, in conjunction with the United States Constitution, and in particular, in relation to the First Amendment of the United States Constitution, one comes up with the Doctrine of "Constitutional Estoppel." That is, one can be Constitutionally Estopped in certain circumstances from asserting Constitutional rights if one denies the validity of the Constitution, as such, or its application to others in similar circumstances. While some might argue such an approach is inappropriate, it is in fact no more radical than arguing in equity that Constitutional rights can be waived..
2 Pomeroy’s Equity Jurisprudence, section 802, pp. 1635-1637 (4th Ed. 1918) (Citing, Martin v. Maine Cent. R. 21 Atl. 740 (1890); Franklin v. Havalena Mining, 157 Pac. 986 (1916); Bank of Neelyville v. Lee, 182 S.W. 1016 (1916); Brusha v. Board of Education, 139 Pac. 298 (1913); Clark & Boise Lumber v. Duncan, 143 S.W. 644 (1912); Conway Nat’l. Bank v. Pease 82 Atl. 1068 (1912); Rothschild v. Title Guarantee & Trust, 97 N.E. 879 (1912)).
Now, how does this Constitutional Estoppel doctrine apply to the Skokie situation? Well, here is how it goes. Our Hypo Fuhrer, Mr. Robotic9, applies to the local Federal District Court for a permit for his group, the Hypo Nazi Party10, to march in Skokie, represented by Counsel for Applicant. The United States Attorney, as well as several other interested parties
oppose the permit application. Those opposing the permit argue that Mr. Robotic and his cohorts are, on information and belief, Constitutionally Estopped from getting the permit and marching.
Direct Examination (Mr. Robotic and his lawyer state that they are requesting a permit to march in Skokie for political purposes, and a such for First Amendment Free Speech and Free Association protected purposes. They assert that reasonable time, place, and manner, requirements have been met.)
Cross Examination (United States Attorney) Q. Mr. Robotic, please state your name for the record. A. Rupert Robotic.
Mr. Robotic is of course a purely fictional character, and any resemblence to anyone else is purely a coidcidence. The "Hypo Nazi Party," of course is a hypothetical Nazi Party based upon the record of the German Nazi party from 1933-1945, and of course to the extent that it bears any resemblence to any current "Nazi" party in the United States, such a resemblence is purely coincidental. 20
Q. Mr. Robotic you are representing the Hypo Nazi Party, and in that capacity are requesting a Parade Permit to march in Skokie, isn’t that correct? A. Yes. Q. Mr. Robotic, isn’t true that your Party supports the abolition of the United States Constitution, including but not limited to the First Amenment? Well..... Under pain of perjury, please answer the question. Alright, yes. We oppose the United States Constitution and the First Amendment. We want them abolished. Does your opposition include violent means? (Applicant’s Counsel: Objection. Your honor. Irrelevant.) (Judge: Overruled. Answer goes to the Estoppel Argument). (Applicant’s Counsel: Objection, Your Honor. 5th Amendment). Q. Q. Your Honor, I withdraw the question. Under pain of perjury, Mr. Robotic, do you agree that other persons, not in your party, such as racial minorities, perhaps, handicapped persons, mental or physical, would also have a right to a permit to march in similar circumstances? Absolutely not. It is our intention, once we reach power, to kill or place such people in concentration camps. Your Honor, that is the end of the United States Government’s cross examination, and the other interested parties have waived cross. Your Honor, at this time the United States Government moves that this parade permit be denied on grounds of Constitutional Estoppel. Applicant, Mr. Robotic has admitted on cross examination that he and his party reject the United States Constitution, The First Amendment thereto under which any rights of free speech and free association can be asserted, and finally has specifically denied that 21
A. Q. A. Q.
A. Q. Q.
persons of other groups such as racial minorities or handicapped persons not only would not have a right to march in a parade, but do not even have to rights of Life, Liberty, and Pursuit of Happiness, found in the Declaration of Independence, and incorporated by implicit and constructive reference into the United States Constitution. Therefore, since, Mr. Robotic rejects the Constitutional Rights he wishes to assert for others in similarly situations, and since he rejects the First Amendment itself, the United States government and the United States Attorney argues that Mr. Robotic and his group of Hypo Nazis are Constitutionally Estopped from asserting any First Amendment Rights in this case. Additionally, the Doctrine of Constitutional Estoppel also Equitably Estoppes Mr. Robotic and his Hypo Nazi group from marching, as such. Thank you Counsel. Alright. The Court is now ruling from the Bench. 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. Nazi Party in this matter. I am also denying the Permit on the basis of Equitable Estoppel. This Court is adjourned.
Now, this is how things would play out if I (Prof. Tony Fejfar) were on the bench. The Constitutional Estoppel argument is based in solid traditional hornbook law and caselaw, as well as the United States Constitution itself. This is the kind of law, "pushing the envelope," "thinking outside the box," that I encourage my law students to develop. It is neither created, nor is it simply discovered, rather, it is developed. Like panning for gold in the Rocky Mountains in Colorado, one must simply swish away the slag and the fools gold and look for the real gold that was always already there. Now, one last thought here. A lot of liberals on the left might think that Constitutional Estoppel will simply be a “fascist tool” used to hurt minorities. I would argue that the application of Constitutional Estoppel can be used in a variety of contexts, and, that although it could be used against a criminal defendant in certain circumstances, it could equally be used against either a judge or a prosecutor who seem to be “flashing fascist.” Although it may seem
unlikely to the typical bystander, the United States Constitution evokes such strong emotions in many people that I think that they would testify truthfully as to their true beliefs in regard thereto.
A HOME RUN BALL, POSSESSION OF PROPERTY
AND THE ETHICAL MATRIX,
A UNIVERSAL NATURAL LAW ETHIC
The Ethical Matrix Copyright (2002) by Anthony J. Fejfar Reciprocity Jung Intuition Jung Thinking
Lonergan Reflection Judgment Equity 23
Feeling Feeling Utility
1. Reciprocity is the maxim that one should treat another as oneself would like to be treated in a similar context. It is based on the Golden Rule found in the teachings of Jesus of Nazareth. 2. Proportionality is based upon Mathematics and Geometry. Proportionality as a basis for Justice is found in the work of Aristotle. See, Aristotle, Ethics, 1131a22-1131b14 (1976). 3. Utility involves the Maximization of Value. An analogous concept is found in modern economics and the philosophy of Mill and Bentham. See also, Bernard Lonergan, Method in Theology, 34 (1971) (discussing Value as a transcendental notion). 4. Equity is based on the principle that Equity favors the one in need. It is found in common law equitable precepts. It is also based upon the concept found in Aristotle that Equity makes Equitable Exceptions from General Rules where concrete circumstances require. See , Aristotle, Ethics , 1137a351137b24 (1976). Thus Equity operates to make an Equitable Exception to a General Rule based upon Need. 5. The cognitive functions of Thinking, Feeling, Intuition, and Sensation come 24
from the work of Depth Psychologist Carl Jung. (See Carl Jung, Psychological Types , 6 (1990)). The cognitive functions of experience, understanding, reflection/
judgment come from the work of Bernard Lonergan. (See Bernard Lonergan, Cognitional Structure in Second Collection (1967)). Copyright , 2002 Anthony J. Fejfar.
Existence is a Game to be Played.11
1. Introduction. This Essay begins with an overview of The Ethical Matrix, A Universal Natural Law Ethic. The Essay then proceeds with an example involving possession of personal property and a "home run ball." The Essay then involves a linguistic, policy, and then ethical analyis of the problem presented in the example. It is concluded that the Ethical Matrix is a valid natural
A common expression, is, that life, is like a baseball game. And if indeed baseball is one variety of play, then it follows that life is play. If one broadens this concept even further one finds that existence is a game to be played. One could also see this phrase as a Zen Koan. 25
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.21 This is seen for example in the equitable doctrine of unconscionability.22
The mythos of wisdom if found in the greek Sophia and Athena, the roman Minerva, and the catholic Holy Spirit of Divine Wisdom See generally, T. Bastick, Intuition (1982) (discussing the empirical literature supporting the existence and functioning of "intuition."). 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. In this narrative, Jesus of Nazareth and his mother Mary were attending a wedding celebration. The hosts run out of wine and don’t know what to do. The hosts come to Mary and ask her if there is something that can be done. Mary asks her son Jesus to perform a miracle so that more wine would be available for the celebration. The initial response of Jesus is that it is not yet his time to perform miracles (a proportional rule). Mary asks him to perform the miracle anyway (Equitable intervention based on need), and Jesus does so, turning water into wine. (See, John, Chap. 2, v. 1-11, Oxford Anno. Bible (1977). Whether one takes these events as literally true or not, the underlying symbolism of the narrative is the same. Feminine Equity based upon wisdom intuition
intercedes to make an Equitable Exception from a general rule based upon need.
See, Carr v. Hoosier Photo, 441 N.E.2d 450 (1982) (discussing the "need" factors of knowledge, sophistication, and bargaining power, for the application of the equitable doctrine of unconscionability. 30
The Ethical Matrix finds support in the work of depth psychologist Carl Jung,23 as seen in the figure below, the Jungian psychological functions of Intuition, Thinking, Feeling, and
See generally, Carl Jung, "Psychological Types" (1990). See also, Isabel Myers, "Gifts Differing" (1980) (discussing the Myers-Briggs personality-temperament psychological theory based on Jung’s work).
Sensation, support the respective Ethical Principles discussed above,24 and the Lonerganian cognitional functions of experience, understanding, and reflection/judgment.25 It is also argued
that each of the Ethical Matrix natural law ethical principles discussed above exist and operate as core "relational meaning streams" which inhere "naturally" in reality and manifest probalistically from the "Unrestricted Act of Understanding" which is "Being."26. 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
Lonergan discusses the cognitive functions of Experience, Understanding, Judgment/Reflection, and Love. These functions correlate to the Jungian functions as follows:
Jung 1. 2. 3. 4.
Lonergan Experience Understanding Judgment/Reflection Feeling (including Love)
Sensation Thinking Intuition Feeling
In this context, my schema is as follows: Lonergan 1. judgment/reflection 2. understanding 3. experience Fejfar intellect mind body > intends the real and value > intends ideas > intends sense experience
Bernard Lonergan, Insight 350-352 (1956). 32
fully developed through sustained mental activity involving contemplation or meditation.27 It is argued that the Ethical Matrix itself and the principles contained therein is best utilized by one who both intends and actualizes a reflective life, rather than merely a moral life, or a selfish life.28 This is simply true because it is very difficult for a moral person to reflectively evaluate moral rules if in fact those very moral rules are at the core of that person’s identity. Similarly, it is very difficult for a selfish person to decenter imaginatively and consider the needs or viewpoint
See, Frances Vaughan, "Awakening Intuition" (1979).
28 This parallels the Aristotelian notion of three different types of living, the contemplative life, the political life, and the life based on pleasure. See, Artistotle, Ethics (1976). It also parallels the levels of the soul or different types of life described in the work of Plato, which, are respectively, the life of wisdom, the life of ambition, and the life of physical passion. See, G.M.A. Grube, Plato’s Thought 67-68 (1980). It also parallels the stage theory found in the transpersonal psychology of Ken Wilber which asserts that there are three different levels of consciousness, body, mind/soul, and spirit. See, Ken Wilber, Sex, Ecology, Spirituality 447 (2000). As pointed out by Wilber, these levels in turn parallel the levels of morality described in Kohlberg’s work which are pre-conventional, conventional, and post-conventional. Id. at 5. See, Lawrence Kohlberg, Moral Development, 5 Int’l Encyl. Soc. Sci. 483, 489 (1968). This general schema can be seen in the chart below:
Fejfar 1. selfish life 2. moral life
Aristotle pleasure political life
Kohlberg pre-conventional morality conventional morality post-conventional morality
physical passion body ambition soul/mind spirit
3. intellectual/ contemplative life wisdom reflective life
of another. On the other hand as pointed out by Wilber 29it must be noted that the upper levels do not negate the existence and operation of the lower levels, rather they sublate and integrate them.
See generally, Ken Wilber, "Sex, Ecology, and Spirituality" 28-29 (2000).
Thus the reflective person does not reject moral rules as such, but rather refines them and uses them in a more reflective, flexible way. Similarly, the reflective person does not deny pleasure as a positive value, but rather recognizes that higher order "pleasures" may have more value in certain contexts than mere physical pleasure.30 Thus intellectual "pleasure" or psychic satisfaction produced by "flow"31 experiences may be valued more than eating caviar at a cocktail party. However, the principle of Value in the Ethical Matrix does contain within the inherent notion of "positive" value. Thus pain or suffering which is sought as an end rather than as a means to higher pleasure is seen as a psuedo-value rather than as a positive value.32
Having discussed an overview of the Ethical Matrix the Article now proceeds with a fuller discussion of each one of the four ethical principles and a discussion of how the Ethical Matrix is
30 C.f., G.M.A. Grube, Plato’s Thought 68 (1980): According to Plato’s work, "It follows that the pleasure’s of the mind are the greatest, those of honor inferior, and the physical pleasures come last of all. Plato does not say that physical pleasure is a delusion or that honour is an empty thing. He merely gives it as his considered opinion that they pale into insignificance by the side of the pleasure that one gets for the search for the truth." In Wilber’s language, the higher is arguably better because it both transcends, integrates, and sublates the lower without losing the positive aspects of the lower. 31
See generally, Mihaly Csikszentmihalyi Flow (1990) (arguing that at "flow" experience of "spiritual" satisfaction takes place when one places oneself in the "flow zone" between boredom on the one hand and stress from failure on the other hand in relation to chosen goals or tasks). Thus, while the sado-masochistic experience of pain simply for the sake of pleasure is rejected as a value, pain can be chosen as an instrumental value to achieve higher pleasure, satisfaction, or flow. Thus, the basketball player is willing to put up with the pain and suffering involved with running wind sprints after basketball practice because he or she knows that this will improve his or her ability to play basketball for a longer period of time in a game in a more satisfying and skilled way.
used most effectively.
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.33 My formulation of the rule as the principle of reciprocity is somewhat different, "Treat another as you would wish to be treated in a similar context." Although the two different formulations are very close, one can interpret the Golden Rule formulation as only applying to action and not to forbearance from action. Additionally, it has a more communitarian flavor, while my formulation has a more individual flavor. The idea of reciprocity as an ethical principle takes into account the value of
Math. Ch. 7, v. 12, Oxford Anno. Bible (1977).
Autonomy,34 that is the ability and the actuality of living a Self directed or "intellectual" life based upon ethical reflection. This is the actuality of Reflective Autonomy rather than rational autonomy which manifests at the moral level based on moral rules and in a more limited sense at the selfish level based simply on the maximization of pleasure without reflection. Thus included within the potential values which could be "plugged into" the principle of reciprocity is the value of allowing space for and respecting the Reflective Autonomy of another. This is based on
For an interesting discussion of Autonomy, see John Rawls, "A Theory of Justice" 513-519 (1971).
the premise that Being and its manifesting relational meaning streams structure reality probabalisticly thus leaving room for individual Self expression and autonomy within a range of statistical probability which diverges non-systematically from classical or systematic norms.35 Thus the argument is that personal expression (diversity) which diverges to moderate degree from the statistical norms expressed by core relational meaning streams of the Good (Being)36 is good, while personal expression which diverges substantially from the norms expressed by these core relational meaning streams is illusory and negative. What are these relational meaning streams, how much do they change, or change context, and when? These are the questions which have vexed philosophers for quite some time.37 The author would merely suggest that in his considered judgment the use of the Ethical Matrix, its correlative cognitive functions, and Natural Law Ethical principles definitely points one in the right direction of seeing reality more
One might argue that nonsystematic statistical divergences from classical or systematic norms produces "chaos." What sort of "chaos" is produced, however, is an even more interesting question. For a general discussion of Chaos theory, see, James Gleick, Chaos (1987). 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, "‘God plays dice with the universe,’ ‘But they’re loaded dice. 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.’" Id. at 314. Of course one finds the notion of the "Good" in Plato’s work. Here I intend the "Good" as a transcendental notion which one intends when one intends "Goodness," but also as "Being." If one sees the relational meaning streams as immutable platonic forms, then one would probably argue that such forms can be "added to but not subtracted from," "rearraned but not changed." The other option is that such forms are merely ontological "habits" whose "change" operates beyond space-time and thus is still "immutable,"from the point of view of ordinary causality. 38
accurately and making better decisions. 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. Taking simple hypothetical then, let us say that George walks up to Stan and has an irrational impulse to hit that Stan in the face. Rather than merely acting on this impulse George does a reciprocity check to see whether or not such an action would be ethically reciprocal. George must place himself imaginatively in Stan’s shoes and ask himself, if I were Stan would I want some guy to come up and punch me in the fact for no apparent reason. Anticipating our discussion of Value, George must posit that Stan’s desires in the situation are based upon positive values, that is, Stan does not choose pain for the sake of pain, and in the absence of a higher value achieved instrumentally through pain, will choose pleasure over pain. Since getting punched in the face would only seem to produce pain and possible physical harm to Stan in this situation, there is no value to be achieved by Stan in having his face punched. George, after having imaginative placed himself in the place of Stan and utilizing the values of pain avoidance and physical harm avoidance would then reflectively come to the conclusion that if he (George) were Stan, he (George) would not want to get punched in the face for no apparent reason. This, however, is not the end of reciprocal reflection. Utilizing what can be described as "double reciprocity," George must now place himself in the shoes of Stan, and have Stan engage in a reciprocal reflection. Although in this situation the double reciprocal reflection may seem unnecessary, one must imagine that one is Stan placing himself in George’s shoes. Is there any 39
reason why Stan imagining himself as George, would see any value in George’s potential activity of punching Stan in the face. The answer of course is that while George might get some impulse relief from acting on his irrational impulse to hit Stan, there does not appear to be any higher reflective or moral value which Stan might recognize as valid. Thus reflective double reciprocity would not suggest that any reciprocal values would be realized by George hitting Stan based on an irrational impulse.38 Having discussed the ethical principle of Reciprocity, the next subsection will discuss the principle of Utility.
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. Additionally,
While reflection based upon double reciprocity may seem unnecessary in the hypothetical in the text involving the potential punch in the face, 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, Jeremy Bentham, "The Principles of Morals and Legislation (1988).
pure utility posits that it is impossible to order some pleasures as being higher or having more value than others. The principle of Utility as used in the Ethical Matrix is broader and to some degree inconsistent with that formulated by Bentham. Here, the argument is that Utility is the ethical principle based on the maximization of Value. As pointed out by Jesuit philosopher Bernard Lonergan, Value is a transcendental notion.40 What can this mean? The Author would
Bernard Lonergan, Method in Theology 12 (1971). Although it is obvious that I, the Author, am building on the work on Bernard Lonergan, it must be stated at this point that my approach to decision making differs. Lonergan’s decisionmaking is based in large measure upon an intuitionist value based morality. Although this has much to recommend to it, it is problematic in that it is not a principled ethic. Many persons lack a good intuitive sense and thus the Lonerganian approach will leave them with little guidance. Additionally, even those who have a good intuitive sense, and who intuit Being and Value in a positive way, 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. Finally, as I pointed out in my first article in the Boston College Law Review, Lonergan could only theorize that
argue that Value is an core relational meaning stream. If one reflectively intends Value, as such, then one begins to have a basis for ordering one’s values. Additionally, in a particular decision-making context, or in the context of a particular public policy analysis, by intuiting Value one is better able to consciously recognize and then reflect upon the values relevant to a particular situation.
the goal of political society, the state, and the law, is the "good of order." While I have always read and interpreted this in a positive light, it must be stated that order without liberty is simply totalitarianism–a status quo which I find highly objectionable. Thus I spent approximately 5 years in a search for somehow supplementing Longergan, and have as a result of that process developed the Ethical Matrix. It is my position that the Ethical Matrix is the natural law-critical realist ethic, and is one which promotes constitutional democracy, the rule of law, and due process of law, objectively.
What can be stated about values in the abstract? Although much is left in abeyance absent the contextual analysis of a particular problem, several points can be made. First, pleasure, as such, can certainly be the basis for a particular value. Thus the value associated with having the pleasure of eating good food and experiencing sexual pleasure, for example, cannot be denied. However, upon reflection, and through the intuition of Value, one can begin to recognize higher pleasures. It is asserted that all other things being equal, the reflective person chooses a higher pleasure over a lower pleasure. While Aristotle argued that the end of the human person is happiness, 41and that true happiness is achieved through the contemplative life, 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. This is because the reflected life involves a higher level of consciousness than that of the moral life 42or the selfish life.43 Other than this general
Aristotle, Ethics 1097a15-1097b2 (1976). While the moral life has many positive attributes to recommend it, it does entail certain problems. First, moral rules are taught, reinforced, and enforced through moral communities and authority figures. 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. Thus it is not unusual, for example, for various religious groups to have violent confrontations. If a culture as a whole is made up of one seemingly homogenous moral group then it is likely that that group will discover "heretics" within the group which must be identified and then suppressed. While moral injunctions to "love one’s enemy" are intended to act as "double bind" commands which are intended to motivate the member of a moral group to relate in a positive way to "outsiders," it is the author’s suggestion that such activity is very difficult for the moral person to engage in precisely because it conflicts with that person’s moral identity on a psychological level. Additionally, 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
complexity of the real world it is impossible to make appropriate decisions without contextual reflection. Unreflective adherence to moral rules or the commands of a moral authority in many instances does not promote Value, but rather impedes it. This involves the general idea of persons who somewhat rigidly follow the letter of the law rather than the "spirit" of the law.
Perhaps it goes without saying that for an adult, the selfish life is immoral and unethical. While the selfish person can perhaps manifest a degree of rational reflection intended to achieve psuedo-values based upon power for it’s own sake, manipulation of others, the accumulation of material wealth, and the pursuit of lower pleasure as one’s only ends in life, in point of fact, the selfish person usually cannot even accomplish these goals without running into problems. Society is structured by and through the use of moral rules which are intended to channel individual selfishness into group cooperation. Group rules inevitably exist which enforce some measure of proportional or reciprocal values . Because these rules exist, the non-reflective, 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. Additionally, the Author would argue that something like liberal "original sin," that is, "irrational self, anti-self interest" operates, the result of which is that the selfish person is incapable of rationally achieving his or her selfish ends, and even when they are achieved, leaves the person with a lack of genuine pleasure. Thus, let us hypothesize a person who selfishly and unreflectively desires the latest sports car. The acquisition of the sports car will typically not satisfy the selfish person. Instead, he or she must have a better more prestigious sports car which in turn will not suffice. 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. C.f., Ken Wilber, The Atman Project (1999): We seek for Spirit in the world of time; but Spirit is timeless, and cannot there be found. We seek for Spirit in the world of space; but the Spirit is spaceless, and cannot there be found. We seek for Spirit in this or that object, shiny and alluring and full of fame or fortune; but Spirit is not an object, and it cannot be seen or grasped in the world of commodities and commotion. In other words, we are seeking for Spirit in ways that prevent its realization, and force us to settle for substitute gratifications.... And that is the Atman project. Id. at 61.
guidance or limitation, however, it must be stated that Value itself, and as expressed in particular concrete values, has no definitive serial ordering, other than to say that it is self evident that Value itself must be valued, and, of course, 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, on proportionality and proportional thinking, and equity and equitable thinking. Proportional values involve the value of equality and having rules, for example, while equitable values involve the value of favoring or helping one in need. This leads us to our discussion of 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, or in an equalateral triangle which has been divided down the middle. The second corallary is that Perfect Justice is found in Perfect Proportion. Thus, all other things being equal, compensatory money damages should always equal the amount damaged. Or, once again, in criminal law, punishment should be meted out in perfect proportion to the crime committed, or as it is put biblically, "An eye for an
eye and a tooth for a tooth."44 Aristotle, in his Ethics, appears to be the first person to formally recognize proportionality as a basis for justice, although he stopped short of recognizing the principle of perfect proportionality which would have entailed the corallary principle of formal equality before law. Apparently in his culture in ancient Greece it was not politically correct to assert the position that a servant bringing a lawsuit a against a noble would be
See, Exodus, Ch. 21, v. 23-25 Oxford Bible (1977) ( For any harm, you shall give/have, "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.").
treated equal on the basis of formal equality.45 While some person’s undoubtedly view proportionality as the ultimate basis for justice, there is a problem with this approach that Aristotle himself recognized.
6. Equity In his Ethics, Aristotle points out that although the ideal lawgiver might attempt to legislate for every possible circumstance, in fact this is not possible.46 As Aristotle puts it, "[A]ll law is universal, and there are some things about which it is not possible pronounce rightly in general terms...."47
Thus, [W]hen a law states a general rule, and a case arises under this that is exceptional, then it is right, where the [legal decision-maker], owing to the generality of his language, has erred in not covering that case, to correct the omission by a ruling such as the [legal decision-maker] himself would have given if he had been present there, and as he would have enacted had he been aware of the circumstances.48
See, Aristotle, Ethics, 1130b32-1131b14, 1132b3-1133a13 (1976). Aristotle, Ethics 1137a17-1138a11 (1976). Id.
Therefore, "the essential nature of equity... is... a rectification of law insofar as law
is defective on account of its generality."49 This of course raises the corallary question, is it possible to generate a rule system which would promote a just result in every possible circumstance? In other words, 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, I suggested no to this question, that rather it is impossible to generate a rule system that would justly take into account every possible circumstance.50 We live in a
"jig saw puzzle world" that is characterized by "vast interdependent schemes of recurrence."51 And as noted earlier, many of the relationships in our world are only understood in terms of "fractal" "chaos" patterns which seem to deny a strictly linear intelligibility. Thus, individual ethical decision-making as well as the legal system itself must have equitable "joints" which allow the legal "body" to "breath" and "stretch," otherwise injustice is simply produced by unnecessary rigidity. The question remains, however, when does equity intervene, and how? Here there
Id. Anthony J. Fejfar, "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence, 681, 694 (1986). Id.
can be no hard and fast answer other than the fact that equity is based upon need, and a true assessment of need must be an intuitive one.52 It is an assessment not made upon strictly
linear truth as one would find with a proportionality analysis, but rather one which is alinear and arational. This intuitive intermediate way of knowing which is associated with wisdom, is a half way house between purely irrational emotional feeling and strictly rational analysis. We see neither the fundamentalists nor the logical positivists lining up to worship Athena the Goddess of Wisdom or Minerva the Holy Spirit of Divine Wisdom. Nevertheless, it is from this feminine intuitive wisdom that our equitable sense of justice comes from, accessible both to women and men. Having discussed the component parts of the Ethical Matrix in some detail, we will now move to a concrete but theoretical legal problem, the definition of possession in Property Law. Thus, the next section will deal with a discussion of the concept of possession, to be followed by a section analyzing the concept of possession in light of the Ethical Matrix.
7. Legal Analysis and the Concept of Possession in Property Law
"Possession" in Property Law is usually defined in terms of control. To the extent
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, rather only a strictly logical exception.
that one has control over personal property, for example, one is typically thought to possess it. The problem, however, is that when one attempts to find an adequate definition of "control," one is again faced with a problem. What is "control?" What is sufficient "control" to constitute "possession?" When I play around with these concept with my students in Property class during the first few weeks of class, we try to generate list of definitions of words associated with possession. While we sometimes get to 10 or 12 or so different words, the substance of what the students are getting at remains the same, and that is this: possession is related to control. Now, this could be troubling to you and I, but it need not be. We simply have come to the recognition that the definition of "possession" is a circular one which in some way involves "control." Should this surprise us? No, because all definitions are ultimately circular. If one analyzes a concept enough, one simply is presented with the phenomenon of "analytic spin,"53 showing that all definitional arguments are ultimately circular and thus indeterminate. 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. Look up a word in a dictionary and eventually you will find that the words needed to define a particular term repeat themselves. Now if we expected to find reality on the level of logic or ideas, this of course would be a problem. In fact we would be guilty of playing critical legal studies or postmodernist games seen to only result in nihilism and absurdity. If however, we find that reality comes at a higher level, utilizing a higher and different cognitive operation than pure logical analytic reasoning itself,
See generally, Girdeau Spann, "Deconstructing the Legislative Veto," 68 Minn. L. Rev. 473, 520 (1984). 51
then we find that there is no problem at all. Following the work of Bernard Lonergan, a critical realist understanding of the problem can be seen as involving at least three levels to reality, which deploy as follows:
Intuitive Reflection and Integration of Policy and Values
2. Actuality: Mind: Understanding: Logic and Logical Reasoning 1. Reacality: Body: Sense Experience/Data: Power/Authority Power Politics
Now, returning to our concept of possession, possession could be considered respectively, on the three levels above. At level one, on the "reacal" level, possession could be experienced
in a relatively unconscious way by a person grabbing and holding onto a item such a baseball, and then using physical or political force to retain possession. 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." It is at this level of "actuality" that definitions are logically circular and indeterminate absent the use of some additional "extralogical" function. At level three in "reality," one comes into contact with the "real" by engaging in acts of intuitive reflection which involves policy and values. Now all of this seems very abstract, so let us tie it down a bit by using a concrete hypothetical based on the Barry Bonds homerun baseball case.54
This Author wishes to thank Chris Phillips for bringing the Barry Bond’s Home Run Ball case to his attention. He also wishes to thank students from several property classes 52
who have discussed the possession issue relating to a home run ball, as well as this article. In the Barry Bond’s Home Run Ball case, Barry Bonds hit his record setting 73rd home run ball at Pacific Bell Baseball Park in San Fransisco. (2001 Westlaw # 25594143, St. Petersburg Times Newspaper, Oct. 10, 2001). "A tape of the homerun scrable... clearly shows [Alex] Popov in a sea of humanity catching the ball in his mitt [in the stands]." Id. "At first the ball appears to [pop] out, but then it drifts back into the glove, before Popov is tackled by dozens of other fans clawing for the ball." Id. "[A] man, who turns out to be Patrick Hayashi, emerges from the pile he has been mining for more than a minute with a smile and appears to say, ‘Who has the Ball?’ Id. "Another 30 seconds pass and finally Hayashi pulls the ball out of what appears to be his pocket and offers a broad smile and asks: ‘Is this the ball?’ Id. Then a couple of men "from Major League Baseball seize Hayashi and the ball and whisk them away." Id. Who gets the ball? According to Jorge Costa, Team Senior Vice President of Pacific Bell Baseball Park Operations, "Once major league baseball identifies the individual with the possession of the ball, that’s the end of that...." Id. Both Popov and Hayashi end up claiming the ball. A lawsuit is filed and the case ends up settling with a 50-50 split of $450,000 received at auction for the home run ball. (2003 Westlaw # 3207018, Patriot News Newspaper, June 26, 2003). 53
Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game.55 Suddenly Pudge Rodriguez hits a home run into the stands in left field.56 You (Freddie Fan) have your ball glove on and the ball is coming right toward you. You reach up to catch the ball. The ball has just made contact with the trap of your glove, but you slip on a hotdog and lose your balance, and instead of completely closing, your glove opens an inch
For many fans, especially the younger ones, the game [of baseball] is no more important than to latch onto a baseball that’s been hit out of play. Many will bring gloves, nets, and other apparatus to the ballpark to aid in their quest, and will occasionally display incredible bravery (or is it foolhardiness?), and risk injury attempting to catch baseballs rocketing their way. As each ball heads toward the seats, all rise in an attempt to judge where it will land and to position themselves to compete for the most prized possession (and if a fine catch is made, that fan can expect appreciative cheers from the crowd). There are few more memorable experiences than leaving the stadium ball in hand.
Richard Skolnik, Baseball and the Pursuit of Innocence, 173-74 (1994).
This is obviously an imaginary hypothetical since Pudge Rodriguez, to the author’s knowledge now plays for the Florida Marlins.
further and you start to bobble the ball. The ball pops out of your glove and into your other hand, bounces back toward your glove, when another fan reaches in with his hand and grabs the ball out of your unclosed glove. You say the ball is yours because you caught it first. Joe Smith, the second guy says it his because you did not have control of the ball. Ballpark rules say that the first person to "possess" the ball owns it.57
This appears to be Mr. Costa’s position. See supra, note
The case is turned over to a judge who must decide the case based on case law from two previous cases, Young v. Hichens58 and State v. Shaw.59 Although both these cases deal with
the possession of wild animals, namely, fish, for our purposes, they are the only two relevant cases.60 In Young v. Hichens, the plaintiff had drawn his fish net of 140 fathoms61 in length (840 feet)62 "partially around" a "large number of fish,"63 "leaving a space of about seven fathoms
58 59 60 61
6 Q.B. 606 (1844). 65 N.E. 875 (1902). The argument is that a flying baseball is analogous to a free flying wild animal. Bracketed information found in edited version of Young. in Bruce and Ely, Modern Property Law (1999). A fathom is six feet in length. Black Law Dictionary. 900 feet would be a length of 300 yards or three football fields long. 6 Q.B. 607.
open,"64 (42 feet), "which he was about to close with a stop net...."65 At this time, "two boats belonging to the plaintiff, were stationed at the opening, and splashing the water about for the purpose of terrifying the fish from passing through the opening...."66 At this point the defendant
took his boat through the gap in the plaintiff’s net and then the defendant completely enclosed the plaintiff’s partially enclosed fish and took them into his (the defendant’s) possession.67 The plaintiff then brought a conversion action against the defendant for the value of the fish taken
64 65 66 67
Id. Id. Id. Id.
in the defendant’s net.68 At issue in Young, was whether or not the plaintiff had possession of the fish at the time they were taken from the plaintiff by the defendant. If the plaintiff did have possession of the fish, this possession would be sufficient to create an ownership interest in the fish which had previously been freely roaming wild animals. In his opinion, Chief Justice, Lord Denman stated, "I think that it is impossible to say that [the plaintiff had possesssion] until [the plaintiff] had actual power over the fish."69 "It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant: but it is quite certain that he [the plaintiff] had not possession."70 Additionally, Justice Patteson stated, "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."71 Thus the court in Young comes to the conclusion that one must have complete control over the fish before it can be said to be in one’s possession. Partial control is not enough. In contrast to Young, is State v. Shaw.72 In Shaw, the defendant was criminally charged
68 69 70
Id. 6 Q.B. 611. Id.
Id. 65 N.E. 875 (1902). 59
with stealing 730 pounds of fish from the complainant’s73 nets.74 The facts indicate that the compainants had placed "trap nets."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. The fisher-owners of the nets return and check on them periodically to remove any fish that have swam into the nets.76 In Shaw, the defendants who were not the owner-complainants, took the fish from the owner-compainants’ nets prior to the return of the owner-complainants.77 At trial the defendant moved for a directed verdict of not guilty on the ground that the complainant did not have sufficient possession of the fish to constitute ownership and thus no "theft" could have taken place.78 The trial court directed a verdict of not guilty for the defendant, and the state appealed.79
The author uses the term "complainant’s" here for ease of identification of the parties from whom the fish were taken. In fact the case only inicates that the these parties were named in the indictment, not that they were formal complaintants. 65 N.E. 876. 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, to escape. 65 N.E. 876. Id. To put the argument more fully, to prove theft, the defendant must have stolen property from someone owning the property. Thus the defendant argues that if there is no ownership of the fish by the complainants as alleged in the indictment, there can be no theft. 68 N.E. 876. 60
76 77 78
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."80 The court noted that in Shaw,
"the fish were not at large in lake Erie. They were confined in nets, from which it was not absolutely impossible for them to escape, yet it was practically so impossible; for it seems that in ordinary circumstances few, if any, of the fish escape."81 The court opined, therefore, that
it considered the trial court’s approach to be "unnecessarily technical and erroneous."82 The court in Shaw distinguished Young on the basis that the fish in Young were "never in the plaintiff’s net."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.84
8. A Logical but Indeterminate Analysis of the Home Run Ball Hypothetical based on the Legal Concept of Possession.
80 81 82 83 84
Id. Id. Id. Id. Id. at 876-877. 61
In the present case we must attempt a logical analysis, based on the foregoing precedents, Young, and Shaw, as to who has a right of possession in the home run baseball. The argument is of course that by custom, both the batter, as well as the owner of the stadium and the ball clubs all disclaim an interest in the ball. The rule is that one who is the first possessor of the ball once it is hit into the stands is the owner. 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. Recall that in our hypothetical the following situation took place: Imagine that you are in the ballpark at Arlington watching a Texas Rangers professional baseball game. Suddenly Pudge Rodriguez hits a home run into the stands in left field. You (Freddie Fan) have your ball glove on and the ball is coming right toward you. You reach up to catch the ball. The ball has just made contact with the trap of your glove, but you slip on a hotdog and lose your balance, and instead of completely closing, your glove opens an inch further and you start to bobble the ball. The ball pops out of your glove and into your other hand, bounces back toward your glove, when another fan reaches in with his hand and grabs the ball out of your unclosed glove. You say the ball is yours because you caught it first. Joe Smith, the second guy says it his because you did not have control of the ball.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. Daoism was first developed in China by Lao Tzu. See generally, The Wisdom of Laotse (1976). Arguably, if one were simply to put oneself in the "flow" of the Dao then the baseball would effortlessly fall into one’s lap. This possibility is reflected in the following story: 62
It happened this way: My wife, Joanne, my Dad, Rudy, and I were at a Saturday doubleheader with the Oakland Athletics in town to play the Anaheim Angels. We were there at my favorite spot behind the first-base dugout at Angel’s stadium. First inning, first pitch to leadoff batter Ricky Henderson. He hit a high pop-up that came sailing straight at us. Dad and I leapt to our feet. I knew this was it: I was about to grab a [fly] ball! Then I stepped back, realizing that I had to let my Dad get it. But he did the same, stepping back to let his son’s dream come true. To our horror, we watched the ball drop between us–right in [my wife] Joanne’s lap. Looking up with a wide grin, she [my wife] said, "Honey, I thought you said catching a [fly] ball was tough. Chicken Soup for the Baseball Fan’s Soul, edited by Jack Canfield, et. al. 128-29 (2001). To a Daoist the above story does not seem improbable. To paraphrase Lao Tzu: The brave baseball player is not athletic. The good fan does not lose his temper. The great player does not compete. Lao Tzu makes the above observations in relation to fighting a war: The brave soldier is not violent; The good fighter does not lose his temper; The great conquerer does not fight. The Wisdom of Lao Tzu, The Virtue of Non-contending 293 (1976). For a discussion of the Dao in relation to Basketball, see, John F. Mahoney , The [D]ao of the Jumpshot (2000). 63
If we were to follow the Young case, absolute control of the ball is necessary before one can assert that one has possession. In this case Freddie Fan bobbled the ball, and only had partial control before Joe Smith reached in and grabbed the ball. The bobbled ball case, then, is remarkably like Young where the net of the first boat had not completed closed. Only partial control was present in Young. Recall that the court concluded in Young that partial control is not enough. "Almost" control is not "control," and "almost" possession is not "possession." Following Young, then it could be argued that in the present case involving the bobbled ball, Freddie Fan did not have sufficient control to obtain possession of the ball, and therefore Joe Smith as first possessor would own the ball. On the other hand it one could argue that the Young case although generally controlling, is distinguishable. In Young there was a gap in the net of almost 42 feet in length. In the present case, the "gap" in separating complete closure within Freddie Fan’s glove from partial closure would seem to be only about 6 inches at most. Arguably then, one could conclude following Young that a mere 6 inch gap compared to a gap of 42 feet in length is de minimis and thus would not be considered a "gap" for purposes of defining "control" or "possession." Shaw, seemingly supports the argument that Freddie Fan should get the ball on the basis of partial control. Recall that in Shaw the court held that practical control was enough to grant the "trap net" fisherman ownership rights associated with first possession. Accordingly, in the case of the home run ball, practical control should be sufficient to place ownership in the hands of Freddie Fan, just as "practical control" was enough for "possession" and ownership by the "trapnet" owners in Shaw.
9. A Policy Analysis of the Home Run Ball Hypothetical
We start our policy analysis with the use of the Ethical Matrix. First we must identify the persons relevant to the reciprocity analysis. In this case it appears that the batter, the team owner, and the owner of the stadium (if different), have waived their rights to the ball and so they will not be discussed. Thus we merely have Freddie Fan and Joe Smith who have a claim to the baseball. However, before using our reciprocity analysis we must first identify the appropriately Values to be discussed under the principle of Utility. Since this is a baseball game, 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.86 The Author would argue that an important value involved in baseball and football is the fair opportunity rule. In baseball, in one sense an outfielder is competing with other outfielders on the same team for not only excellence, but recognition. When a fly ball is hit to the outfield
For a discussion of sportsmanship, fair play, and sports related values, see, Drew A. Hyland, Philosophy of Sport, ch. 6 (The Stance of Sport) 125 (1990), Peter J. Arnold, Three Approaches Toward an Understanding of Sportsmanship in Philosophy of Sport, Critical Readings, Critical Issues 155 (2002) reprinted from Journal of Philosophy of Sport, X (1983): 61-70, and Craig Clifford and Randolph M. Feezel, Coaching for Character (1997). 65
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. When both players have positioned themselves closely enough to the ball to possibly catch the ball, the player who is closest will essentially signal that he has the catch by waving his arm and thus waves off the other outfielder. The other player is supposed to respect the signal and allow the first player a fair opportunity to catch the ball. Similarly, in N.C.A.A. Football Rules, Section 4 (Opportunity to Catch a Kick) Article I (Interference with Opportunity) provide "A player...must be given an unimpeded opportunity to catch [a] kick." Subsection (a.) 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." 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. The author would argue that in the case of a baseball fan attempting to catch a ball this "fair opportunity" rule should apply. In fact, one might generalize this rule to apply to all cases involving partial possession of property. Thus, " When one has partial possession of property one should be give a fair opportunity for a reasonable length of time to obtain complete possession." The author would argue that this this an objectively fair rule which treats similarly situated individuals in the same way. It accomplishes the policies related to fair play and sportsmanship and thus should be adopted. Now, how does all of this play out in terms of the Ethical Matrix? First, we start with Freddie Fan and Joe Smith. One must make the assumption for purposes of analysis that both Freddie and Joe, as sports fans, believe in fair play and sportsmanship, at least in the abstract. Starting with this operating assumption, then, using the principle of reciprocity, 66
one must have Freddie Fan place himself in the shoes of Joe Smith, relative to the question of who gets the ball "ethically." Hypothetically, then, Joe Smith as a sports fan, believes in the "fair opportunity" rule, and thus recognizes that "after the dust has settled," Freddie Fan should get the home run ball as first possessor with partial control. Now we apply the Ethical Matrix the other way. Would Joe Smith, placing himself in the shoes of Freddie Fan, who also is hypothesized to be believe in sportsmanship and fairplay, take the position that "ethically," he, Freddie Fan would be entitled to the home run ball. In my judgment, Joe Smith, would come to the position, ethically, that Freddie Fan is entitled to the ball, because, Freddie Fan, as a matter of rule based ethics is legally entitled to the home run ball. Joe Smith is not permitted to hypothesize that Freddie Fan is an irrational martyr. Additionally, Joe Smith, understands, and takes comfort in the conclusion and rule that next time, in a similar situation, if he, Joe Smith, had partial possession of a home run ball, he, Joe Smith would be ethically and legally entitled to the ball. With respect to the remainder of the analysis under the Ethical Matrix, the discussion is relatively strait forward. First, with respect to Utility, the values relevant to the discussion have been discussed in the context of sportsmanship and the fair opportunity rule. No further discussion is needed. With respect to the principle of proportionality, the principle can be used in the sense of creating a general rule, that is, the fair opportunity rule, which can be applied relative to both Joe and Freddie, and hypothetically all others. It can so be applied, and therefore the proportionality test is met. The rule produced proportional equality since all similarly situated actors are treated equally in similar circumstances. 67 Finally, at least in the hypothetical
presented there does not seem to be any need for contextual equity, and therefore the fair opportunity rule applies as stated. Thus, the result reached in the policy analysis section passes the muster of the Ethical Matrix.
This Article began with an overview of The Ethical Matrix, A Universal Natural Law Ethic. The Article then proceeded with an example involving possession of personal property and a "home run ball." The Article then involved a linguistic, policy, and then ethical analysis of the problem presented in the example. It is concluded that the Ethical Matrix is a valid natural 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.
A lot has been written about making Corporations more humane. The argument is that, often, Corporate work places are dehumanizing both in terms of the type of work that is done, but also in terms of long hours, etc. From a liberal perspective it is difficult to say one way or the other whether or not a Corporation should pursue “social responsibility.” Cynically, some say that the only reason that any corporations have an interest in social responsibility is to prevent hostile corporate takeovers. The basic problem from a liberal perspective is that of figuring out who the “stakeholders” are, and then trying to fairly balance or adjudicate their respective interests. Typically, controversy begins when the “stakeholders” are expanded to include those who do not have contractual or property rights which, traditionally, in the first instance can be asserted against the Corporation. Often, Corporate employees, or even employees of subsidiary corporations or subcontractors are alledged to be stakeholders, but, also, local and regional communities themselves, consumers of products, and even, families of employees. If one takes what I would call a “property rights” oriented view of the Corporation, then, traditionally, only the stock holders would be prioritized or even included as stakeholders. The Corporation’s typical goal, and perhaps only goal, legally, is to profit maximize for the benefit of the 69
stockholders. Alternatively, a “duty-conscience rights” oriented view of the Corporation could be developed and used. In this instance, the Corporation would be seen as having a duty to exersize not only good judgment in pursuit of profit maximization, but also in making ethical judgments to promote the Common Good, and Truly Worthwhile, and the Good as a Critical Thomist Ideal. The problem with this second approach, arguably, however, is that the Corporation would not be profit maximizing, and, that, from a “liberal” point of view, corporate management would simply be imposing their “subjective” and even perhaps irrational notion of the “Good” on others, especially, the shareholders. How do we resolve this condundrum? Well, first of all all of the empirical evidence that I have seen indicates that in most industries, one profit maximizes by investing in human capital in and for the short, medium, and long run. In a competitive market, one gains the edge by having management and employees who are not merely competent, but are on the cutting edge. Unfortunately, in the guise of short term profit taking, which is irrational in both the medium and long term, and perhaps even in the short term, corporate fascists often fire employees and break up companies for no rational reason at all, other than perhaps to have a sadistic satisfaction in seeing people thrown out on the street. The solution to this problem in my view is to at least allow, if not require, the restructuring of Corporations to create a new type of Corporation, “The Z Corp.” The purpose of a “Z Corporation” is to promote a “moderate profit” through the use of “moderate means.” The Business Judgment Rule would be based on the Ethical Matrix, discussed previously in Chapter IV . The purpose of the Corporation also would be to promote the 70
“Common Good, The Truly Worthwhile, and The Good as a Critical Thomist Ideal.” Additionally, 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, and I suggest, law professors, with a values orientation, and an ability to use the Ethical Matrix. This stock would produce no dividends, and, no more than 20% of the stock would be publicly traded. Capital would be raised primarily through the use of Corporate Debenture Bonds, which would be give preferential tax treatment with respect to the interest produced. The Bonds could of course be publicly traded either on the New York Stock Exchange, or on the Chicago Mercantile Exchange. Finally, such a Z Corporation would be able “over capitalize” itself without worry of a hostile corporate takeover. A Z Corporation would be able set up subsidiary corporations which could provide health insurance, life insurance, disability insurance, etc., at below market rates. A law firm which was a Z Corporation, for example, could have wholly owned subsidiary Z Corps involved in Real Estate Development or other areas related to the firm’s practice. One might argue of course that a Z Corporation would not be “profit maximizing. Of course one might respond that one is comparing apples and oranges. The Z Corp. would of course be “profit moderatizing.” However, in an attempt to meet the objection head on, I would argue that overall, Z Corps. would produce a greater profit than its older cousin, because the management literature almost uniformly suggests that ethically run corporations produce more money. Another objection might be that ethical decision making in the context of a Z Corp. would be “irrational.” Here the rather obvious response is that ethical decisionmaking in the 71
context of the “Ethical Matrix,” is objective. It is an objective, universal, natural law, type way of thinking. Finally, in meeting the perpetual debate between Republicans and Democrats regarding corporate taxation. I would reiterate that Z Corp. bonds be given preferential tax treatment, perhaps even treating the interest as tax exempt. Additionally, traditional non-profits such as
Universities and Hospitals could incorporate as Z Corps. and have wholly owned subsidiary Z Corps. which involve related, spin-off, or offshoot, operations, or alternatively, are totally unrelated and thus would diversify the income stream of the parent Z Corp. in the case of economic or other cyclical downturns. I think that we will find that Z Corps. will be the way of the future, and in conjunction with the subsidiarity doctrine which diversifies responsibility through society, will be the end of both unreflective fascist capitalism, and, unreflective fascist communism or nazism.
THE FORM-SUBSTANCE DISTINCTION IN LAW: THE MAGIC OF METAPHYSICS
Logical positivism sees the world on one flat plane. Ken Wilber calls this "flatland." So, the logical positivist, typically, then, denies the existence and efficacy of metaphysical principles. Does this really make sense? Logical positivism at its best, or perhaps even
hermeneutics, tells that reality is manifested primarily through words or language. So perhaps we might wonder, are there any words which might take us out of "flatland?" Heisenberg’s Indeterminacy Principle, found in Quantum Physics, suggests that the meaning framework that we bring to a problem affects, on a Quantum Level, not only how we approach the problem, not only how we solve the problem, but the problem itself. Use the wrong concepts and one’s mind goes into "Quantum Spin." Now in order to avoid "Quantum Spin," I suggest that we at least try out two very interesting metaphysical concepts, Form and Substance. "Form," as such, is defined as "Empty Form," and "Substance," as such is defined as "Formless Form." Now, without taking the time here to trash Ockham’s Razor, let’s talk about these concepts. Form, deals with formality, or structure, the ideal, or perhaps, surfaces. Substance, on the other hand, deals with depth, or 73
reality without form. Now the logical positivist might doubt that these two concepts are really different. But before you decide, let me tell a yarn that includes a couple of examples. This yarn involves members of my family, and although not literally, true, is lots of fun. You go for a walk, and beside the road that you are walking on is some "scrub." Now, my wife is from Texas, and my folks live down there now in Fort Worth, and I think that on a good day my wife’s relatives from Shiner, Texas, would say that if something is growing on the side of the road which is larger than a grass or a weed, but is smaller than a tree, is some scrub. Now, let’s say for the sake of argument that you are a Yankee from up north (like me), and for some reason your out for a walk in Shiner, Texas ( home of Shinerbock Beer), where my wife’s folks live, and you see some scrub. Well, from my point of view, coming from Nebraska, I’d probably call that scrub, a bush (not to be confused with President Bush, course, even though both seen to have some relationship to Texas in this story). In describing this bush, I would call it some shoots that are sort of clumped together, with leaves sticking out in various places. Now at this point in the story, along comes my kids, Josh (age 9) and Cristina (age 12). Crista asks, "Dad, what is that?" Josh responds, "Mom calls that scrub." Uncle Chris comes along, and although he is from Texas, he says, "You know Josh, I think that that just might be a shrub not scrub." Crista then says, "Bush, scrub, shrub, what’s the difference?" Uncle Chris Stluka, wise in the ways of the world, however, says, "Well, Crista, Bill Shakespeare thought about the same question when he asked in one of his plays, "Would a rose by any other name smell as sweet?" "Uncle Chris, I think you have been hanging around Dad 74
too much, isn’t this just the sort of thing that only egghead law professors are supposed to think about?" says Crista. "Now Crista, where could you have gotten such an idea, we’re all supposed to think about things like that, that why God gave us these noggins to think with." says Uncle Chris as he gives Crista a little knock on her head with his knuckles. "Well, how is this going to help me get a job, and a red convertible car on my 16th birthday?" responds Crista. At this point Dad cuts in. "Well, Crista, remember I told you that what is wrong with Harry Potter is that there is no metaphysics class in the movie in Hogwarts?" "Dad, really." says Crista. "Dad, I think Scruffy (the Dog) wants to go in, its getting hot–
remember we’re in Texas in July." "Josh and Crista, now listen to your Dad," says Uncle Chris. "Well, kids, and Uncle Chris, and of course Scruffy," says Dad, "the point is that although as a matter of "form" we have three different words for a "bush," that is, "bush," "scrub," and "shrub," as a matter of "substance," however, all three words mean the same thing. So, in form there is a difference, but in substance, the same." "See kids, your Dad solved it." says Uncle Chris. "Wait a minute Dad, is this one of your tricks?" says Josh. "Tricks Josh?" asks Dad?. "Yeah Dad, is this like that Neuro Linguistic Programming stuff you talk about?" asks Crista. "Yeah, Dad, did we just get NELPED?" asks Josh? "I think this is more like hermeneutics kids.
You don’t want to make your Uncle Chris nervous using all that newfangled volcabulary," says Dad "Allright Dad, let’s say that I believe that the form-substance distinction exists," says Crista, let’s put the pedal to the metal, I want to see some practical results here." Uncle Chris, "I give up, I just give up." (Judi, the Mom now appears.) "Well kids let’s get inside and have 75
your late night snack and get ready for bed." "Whoah there Judi, we’re discussing the form substance distinction here, and we haven’t quite got through yet." says Uncle Chris. "Yeah Mom," say Josh, "would a Mom by any other name smell as sweet?" "Josh mind your manners." "Judi I just can’t figure out why you let these kids hem and haw and ask so many questions," says Uncle Chris. "Well Chris, we’re a Critical Thomist family, we raised our kids to think critically and question authority." say Judi. "Mom, does this mean I call stay up until 2:00 a.m.
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." says Crista. "Well Crista, 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." says Mom. "Mom, I like the utility of have three popsicles
for our late night snack rather than two." say Josh. "Yes, Josh, but from the point of view of the "truly worthwhile," don’t you think you could better spend that time talking with PoPo about what he did when he was growing up." says Mom. "Well, Mother, is there really any inconsistency here, couldn’t Joshua Avery eat the popsicles while talking with PoPo?" asks Crista. "Now wait a minute" says Uncle Chris, "I for one want to hear the end of the discussion about the form-substance distinction." "Oh,..., well,..., the practical point Cristina Elise is that lawyers use the form-substance distinction all the time, even property lawyers." says Dad. "Yes, Tony, and how does that work?" says Mom. "Well, Dear, responds Dad, "lets say that you, Judi, were trying to create a joint tenancy with you and myself with some property you already owned, O.K.?" says Dad. 76
"O.K.," says Mom. "What’s a joint tenancy again Dad?," says Crista. "Well, Crista, its where two or more persons hold real property in common, but as joint tenants; which of course means that unless the tenancy is severed before one of them dies, the survivor automatically gets the other tenant’s share." says Dad. "O.K". says Crista. "Now, at the traditional common law," says Dad, "a joint tenancy could not be created by one person who already owned the property conveying part to another; this is because the unities of time, title, possession, and interest, all have to be satisfied at the same time." "O.K., so?" says Judi. "Well, the problem was that if you already owned the property, title would already have been conveyed to you the grantor, prior to your attempt to convey it to the other person. Therefore the four unities could not be satisfied." says Dad. "Now, not to cut the story short, but common law lawyers developed a legal trick where the grantor owner conveyed the property out to a "strawperson," who was a trustee, who then conveyed the property to the grantor-original owner and the other person at the same time, thus satisfying all four unities all at once," says Dad. "O.K. Tony, what does this have to do with the form substance distinction; it getting late and I want to watch Law and Order at 10:00 p.m." say Mom. "Well, the point is," says Dad, "that although in form, the two transactions are different, one with a direct conveyance, one with a strawperson, in fact, in substance they are the same." "O.K Dad, I think I got it," says Crista. "Me too Dad," says Josh (as he rolls his eyes). "Alright, Tony, I think I’m getting this. But what is the point. If the two transactions are the same in substance, why not just say that the original transaction was O.K. to create this joint tenancy of yours?" says Judi. "You know", says Uncle Chris, "I think I’ve got this one figured 77
out, do I get to guess the answer?" "Sure Chris," says Tony. "Well, let me think it through." says Chris. "You know I had it but then I lost it," go ahead Tony" says Uncle Chris. "Judi, did you want to chime in?" asks Tony. "No, go ahead," says Mom, you’ve got the floor." "Well," says Tony, "if a court or a legislature chooses substance over form, then you know what? they change the rule so that the form does not have to be met, and you still get the substance," says Dad, "and in fact that is just what has happened. By modern common law and modern statute, you can create a joint tenancy by a direct conveyance without using a strawperson." "The law is like this all over the place. Lawyers are constantly arguing that something is or is not the same in form or substance." "Hmmm, interesting, says Mom. Well, let’s continue this discussion inside, I don’t want to miss my show." And so the Fejfar-Stluka clan, their minds filled with
jurisprudential sugar plums, head on into the house to watch Law and Order.
LUKE SKYWALKER AND THE VOID
My first exposure to Star Wars was in my freshman year in college at Rockhurst College, in Kansas City, Missouri–a good mid-western Jesuit school. Carl Dehne, S.J., was my
freshman theology professor. This was my first exposure to priests in tweed sports coats, believe me, in Lincoln, Nebraska, the priests wore their collars and blacks even while taking their showers. Anyway, I went to Father Dehne’s office about the third week of class in order to get the scouting report on the class. Don’t get me wrong, its not that I thought that I would be manipulated the Good Father. 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. So, I stopped by Father Dehne’s office, but somehow I think the whole process worked in reverse. I think somehow Father Dehne must have lured me into his office for his own jesuitical ends, because, before you know it, I was teaching mentally retarded children’s C.C.D. on Saturday evenings and was recruited to be a Crucifer (that is a Liturgical Cross Carrier), for a 79
couple of big university masses. Now there was a quid pro quo. I had already heard about Jenny’s Italian restaurant down by the river, and believe me, when you’ve been eating dormitory food, the thought of eating good Italian food was beyond the imagination. Oh, so, the point, I told Dehne that I’d do the Crucifer thing in exchange for a full course italian dinner at Jennies. Dehne looked at me, sort of quizzically. Then he said, "O.k., I don’t see a problem with that. Maybe we could get Father Weiss to come along." I gulped. Father Weiss, I thought to myself. Oh, no. Not the President of the College. Now was Father Dehne bluffing? Thinking that I would back out, once I knew Weiss was invited, or was there a deeper plot. Somehow, was Kansas City Arrakis, that is the Planet Dune, Father Dehne, Duncan Idaho, and me Paul Atredeides, metaphorically, of course. Well, I couldn’t figure it out on the spot, so I said , "Great, that sounds good." Then Dehne says, you know, we have this mentally retarded children’s C.C.D. program across the street on Saturday evenings, there is an opening, why don’t you come over and teach class to Nick and Billy–they are both in sixth grade. Now what was I going to do? "Well, that sounds great Father Dehne," "but you know, I have S.A.E. fraternity parties on Saturday nights and I think I’d have a conflict," I said. "Oh," replied, Father Carl, "what time do they start?" "Oh, I don’t know," I replied, "maybe around 9:00 o’clock or so." "Well then it’s perfect," said Dehne, C.C.D. is from 5:00 p.m. till 6:00 p.m., then I say mass for the kids, and you can get your Sunday mass obligation out of the way, and then you, I and John Blando, he"s another Rockhurst student who is already teaching, can go over to the J.R. and raid the refrigertator." J.R., I thought to myself, what is 80
this, Dallas? "The J.R., Father Carl, what would that be?" I asked. "Oh, the Jesuit Residence," replied Carl. "This isn’t part of the Jesuit rush program, is it Father Carl?" I asked. "Rush program," said Father Carl, "whatever could that be?" "Well, you know, 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," I said. "Well, Tony, I just don’t think that is done anymore. I think since Vatican II we just expect vocations to fall from the trees," said Father Dehne. Now I heard that, but what the
hell did it mean? I couldn’t figure it out, at least not consciously. "Oh," was all I could say, for once at a complete loss for words. "O.K.," I guess I can do the C.C.D. thing and be a Crucifer." And so I did. Now, what does this have to do with Luke Skywalker and the Void. Well, of course the answer is that Carl Dehne and I took the C.C.D. kids Nick and Billy to see the original Starwars movie when it first came out, and, I’ve been hooked on Starwars ever since. Now, being a jurisprudentialist,87 a bit of a philosopher, and an amateur theologian, I muse about Starwars a lot, looking for deeper insights. Now, the first think I’d say about Starwars is that unlike Star Trek, Starwars is clearly a Daoist Universe. Not much talk about God, ... almost as if He doesn’t exist, only the Daoist Force. Good is pitted against Evil. Evil is Ying and Good is Yang, or is it the other way around? The presumably Light Side of the Force against the Dark Side of the Force. The Force clearly being the Dao.
John Snowden used the term “Jurisprude,” rather than “Jurisprudentialist,” when I was in law school. For some reason, however, I find the term “Jurisprude,” to be a little bit 81
Into all of this steps Luke Skywalker, apprentice Jedi Knight, Good Guy, and Hero. But before Luke fully developes his powers he must first be trained by his Daoist Master, Yoda. Luke goes through a variety of training exersizes, and then one day Yoda gives Luke an unusual instruction. "Luke, in the hollow of the tree must you go and say more I cannot," in substance, says Yoda. So Luke descends into the bowels of the earth, not unlike Beowulf, on his Shamanic Hero’s journey into the subconscious (see generally, Campbell’s book on Myth). In the Hollow of the Tree, in the Underworld, 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 lights up his light saber and engages. Thrust, parry, riposte, the battle goes on. Finally, Luke vanquishes Darth Vader. Luke then bends over Vader’s body and takes off his mask, and to Luke’s utter surprise, finds his, Luke’s, own face, within what he thought was Vader’s Helmet. Luke is shocked. He runs out of the Hollow and back to ordinary reality. So, what is my gloss on this situation? Well, I would say that the Hollow in the Underworld represents the Daoist Void. In the lore of the East, Hell, as such does not really exist, only the Void, or, as perhaps Henri Bergson might put it, The Absolute. When one enters The Void, after death, or otherwise, one enter encounters a different world. 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, where Kirk is found and (rescued?) by Captain Picard and Riker. Now, what’s the point? Well, the point is that in the East, Hell is more of a state of being rather than a place. One could describe the Void as a place, but it is a different kind of
“prudish,” for me to use.
place. Rather than the Void imposing its reality on the participant, it’s the other other way around. Just like I tell my students in my law school classes, "What goes around comes around," except of course in The Void, it’s a little more immediate. As many New Age writers point out, for one who is in The Void, The Void immediately dishes up for the participant a reality which reflects at the core, who and what that person really is. So, back to Luke Skywalker. Instead of finding God, or an Angel, or a Goddess or a good friend, in The Void, Luke finds Darth Vader, his enemy, his nemesis. In Jungian terms, The Void immediately manifests back to the participant the particiapant’s projected Shadow. This is of course confirmed when Luke takes off Darth Vader’s mask, that is his persona (Darth’s? Luke’s?}, and finds within the self which is Luke. Now, I could stop here and play it safe, but I won’t. I personally don’t think that Hell, as such exists. But, I do believe that The Void exists. Who you are is what you get. If you are genuinely a horrible person as a result of your own free will, then, after death, 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. On the other hand, if you have been a remarkably good person on earth, then you will find Heaven in The Void. God doesn’t judge us, we judge ourselves in The Void. Where does God fit in? Well, as Fox points out in his book, "The
Sermon on the Mount," Jesus transcends all Karma, not only for Himself, but for us. So, even if we have screwed up, with a little luck, maybe you or I will find Jesus in The Void, and He, like Yoda, will help us to withdraw our projections, get our psyche shaped up, and then to make amends for what we have done. So there it is. My gloss on Star Wars and Luke Skywalker. If nothing else, food for 83
CRITICAL THOMISM, LOGICAL POSITIVISM AND LAW
The Critical Thomist philosophy that I present in this Book is based, in part, upon the Critical Realist philosophy, as originally developed by Jesuit Philosopher Bernard Lonergan,88 Critical Thomism posits and then affirms that reality is not known simply by sense experience as some empiricist philosophers would suggest, neither is it know completely on the level of understanding or analysis as some logical positivists89 would suggest, rather, knowing involves at the least a set of three interrellated cognitive operations beginning with experience, continuing with understanding, and then culminating in a third cognitive
88 Bernard Lonergan, S.J., is the author of "Insight, A Study in Human Understanding (1958); ‘Cognitional structure,’ in "Collection, Papers by Bernard Lonergan," (1967) (it is in this paper that Lonergan seemingly first coins the appellative "critical realist" or "critical realism" for his philosophy); and, "Method in Theology" (1971).
My definition of "logical positivism" is one involving philosophers who hold that reality is primarily understood through mere logical or linguistic analysis. 84
operation which is judgment, or reflection.90
For a general discussion of the cognitional levels of experience, understanding, and judgment/reflection, as outlined by Lonergan, see ‘Cognitional Structure’ in "Collection" above.
This tripartite structure of experience, understanding, and judgment, is consistent with other ways of relating to the world around us. For example, the ancients did not consider reality to be known or structured on one flat level91 of experience/understanding, rather reality was thought to be found on three levels, body, mind, and spirit (intellect).92 Additionally, in analyzing law, one can see that law can first be seen on one level as a matter of power and authority, on a second level, a matter of logic and policy, and on a third level, a matter of values. Attempting to consider these categories in terms of logical questions relating to law, on the first level one would ask the question how?, on the second level, one would ask the question, what?, and on the third level, one would ask the question, why;? Consistent with Buddism, on level one we would simply find "reacality" or illusory sense experience93, on level two we would find actuality... a naively idealist view of the "already-out-there-now-real."94 Finally, it is at level three, we in fact find "reality."95 All of the foregoing can be illustrated to some degree using the
91 See, Ken Wilber, "Boomeritis," (2002) (where the characters in this postmodern novel critique "flatland" and paradoxically enough, postmodernism itself. 92 93
See Ken Wilber, "Sex, Ecology, and Spirituality" (199x).
D.T. Suzuki, "Essays in Zen Buddism" (1949) ([A]s soon a cognition takes place there is Ignorance clinging to its very act.") (p. 128). Anthony J. Fejfar, "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence," 681, 683 (1986), citing, Bernard Lonergan, "Insight: A Study in Human Understanding," 251 (1958). Actuality is discussed in Erik Erikson’s psychology, and, the notion of Being valuing found in Maslow is also similar. Perhaps Nirvana or Heaven can be found at level two, but in some sense perhaps Hell, at least Existential Hell, can be found there as well.
Such an approach in which one "sees through" illusory sense experience or meaning categories is the basic critical realist position, but in my view could also be described as "Zen Realism." 86
Fejfar 3. Intellect 2. Mind 1. 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
Now, perhaps the empiricist or the logical positivist doubts that there is a difference between, in the first instance, experience and understanding. The following illustration, taken from Lonergan’s work may be useful. You are going to a pond full of water and you pick up a tree branch on the way. The branch is six feet long and straight. You reach the shore of the pond and stick the branch into the water. Because of the refraction of light, the portion of the branch below the water looks crooked relative to the portion of the branch above the water. Now a part of your mind "knows" on the level of understanding that the branch "really" must be straight, because in fact the laws of biology, Newtonian Physics, and chemistry, suggest to you, in conjunction with past sense experience, that the branch "really" must be straight. On the other hand, another part of your mind which is utilizing current sense experience, "sees" that the branch is "crooked." This is a perfect example of how one’s mind can in the same 87
context "experience" the data of sense on the level of experience, and at same time on the level of understanding "understand" the data differently on the level of understanding. Now all of this raises a third question, how is it that we can differentiate between the level of reflection or judgment on the one hand, and the levels of understanding and experience on the other. First, in distinguishing judgment from experience, it is apparent that experience by itself, as such, is merely a collage of mixed sense impressions. As Gadamer points out to us,96 knowledge cannot come to us apart from mediated meaning categories. These occur primarily on the level of understanding. To the extent that one "thinks" that one has fully meaningful sense experience on level one in reacality as the empiricists would suggest, one need only respond as Gadamer does that it is only through "forestructures of knowing" which help to organize our sense experience that we can know anything at all. 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.
See generally, Hans Georg Gadamer, "Truth and Method" (2nd Ed.1992)
Now, it is at this point that the logical positivist might object that there is no real distinction between understanding at level two and judgment based, or reflective knowing at level three. There at least two possible responses to this objection. First, from a Critical Thomist point of view, one can argue that judgment and reflection are essentially "intuitive"97 functions that are extralogical in nature. In some sense judgment and reflection reach beyond mere understanding and mere sense experience, integrate them, sublate98 them, and transcend them to form a judgment of real fact or a reflection on or of deeper reality. Perhaps, Zen Buddism suggests a similar procedure when it says that to know the rock, one must "become" the rock.99 While this may sound far fetched to the man or woman in the street, in fact, quantum physics suggests that it is possible that superluminal information can pass between two points at a distance nonlocallly..100 So perhaps as the philosopher Henri Bergson suggests, it is possible to
97 For a discussion of intuition, see Anthony J. Fejfar, "A Road Less Traveled: Critical Realist Foundational Consciousness in Lawyering and Legal Education," 26 Gonzaga Law Review 327 (1991) citing Tony Bastick "Intuition" (1982); and, Anthony J. Fejfar, "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence," citing, Judge Hutcheson, "The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decisionmaking," 14 Cornell L.Q. 274, 285 (1929) (quoting, Radin, The Theory of Judicial Decision: or How Judges Think," 11 A.B.A.J. 357, 359 (1925).
Ken Wilber, "The Atman Project," 158-161 (1999) (in the Collected Works of Ken Wilber, Volume II).
99 Or, perhaps it doesn’t. I’m sure that I read this "koan" type statement in a book by D.T. Suzuki, but I can’t find the cite for it. In any event it is clearly a Zen Realist type statement.
For a discussion of Quantum Indeterminacy and Bell’s Interconnectedness Theory, see Nick Herbert, "Quantum Reality: Beyond the New Physics, An Excursion Into Metaphysics" (1985). See also, Nick Herbert, "Faster Than Light: Superluminal Loopholes in Physics (1989) discussion "communication at a distance." 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, at a distance. However, it is also my reading of the literature that an "alinear" or 89
have or create an "intuitive" "intellectual sympathy" which provides a cognitive experience which transcends mere sense data. It is possible, then, in this sense that Bernard Lonergan states
"asymetrical" message can be sent. Because of Heisenberg’s indeterminacy theory, and quantum indeterminacy, it is not possible to "send" a perfectly linear message, rather, only a probabalistic one. However, this is perfectly consistent with "intuition," since all that quantum physics seems to postulate is a probabalistic universe anyway. One might object that from a Newtonian point of view, using classical newtonian physics, that such a probabalistic universe is unverifiable. On the contrary, I would argue that every conventional experiment that is undertaken, if sufficiently precise measuring devices are used, will produce probablistic variances. Thus, if we were to take the equation Force=Mass x Accelleration, and were to set up a series of experiments using a a ramp which is set up on a diagonal verticle angle, and with a Force measuring device at the bottom of the ramp, and a timer, we would find that in a series of 100 experiments that the experimental results obtained would not be exactly identicle. Instead there would be a statistical spread. Now, the conventional scientist might object that we simply need a more accurate measuring device, and then we would get identicle results. However, the problem with this is that when the devices get to be sufficiently precise and accurate to the point that one might theoretically like, one would be clearly embarking into measurements which are more clearly taken in the quantum range, and thus would clearly be more bound by quantum indeterminacy.
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. A second way of distinguishing levels two and three is simply through the use of logic. My argument is that a different type of "logic" operates at levels one, two, and three. At level one is a logic of movement or operation. One simply uses one’s body to appropriately "take in" the sense data of the physical senses. On level two there is a logic of analysis. It is here that language and interpreted data are collated, compared, and contrasted. Symbolic logic reigns: If A, then, B, A, therefore, B. Ideas are analogized and distinguished.
At level two, further questions, however, remain. Given two seemingly logical explanations of the data, or solutions to the problem, how is it that one is used or chosen and the other simply discarded? How is it that some of us can distinguish between good judgment and poor judgment, and 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, or even in some cases overrule logical "rational" results and reason to judgments of some type. In doing so we can make both judgments of fact and judgments of value. In a judgment of fact it is apparent that somehow we are able to make probabalistic assessments of whether or not a certain fact or set of facts exist. This method of "probabalistic judgment" is found consistently in both business judgment101 and legal judgment102. It is not purely
The business judgement rule does not require "perfect" judgment, but rather only reasonable judgment. C.f., Dennis J. Block, Nancy E. Barton, Stephen A. Radin, "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. For a discussion of critical realism in the context of management decision making, see, Anthony J. Fejfar, "Corporate Voluntarism, Panacea or Plague, A Question of Horizon," 17 Del. Law Journal 859 91
syllogistically logical in nature. Instead, somehow sense data, interpretation, and logic cohere into probabalistic assessments as to whether or not some state of affairs exists. As Lonergan puts it, if it turns out that our provisional judgment based on probability is not correct, it is not true that we are incapable of making better probabistic judgments or assessments, it is simply the case that in this instance we could have done better. Now, as a practical matter, as Lonergan points out, when the probability level of a judgment goes high enough in one’s mind, that judgment simply "kicks over" into a "virtually unconditioned judgment of fact." Put another way, the probability judgment "kicks over" into a de facto absolute judgment of fact, even though it really is not. This is of course consist with both conventional Newtonian Physics and Quantum Physics which in different ways suggest that we live and act in a probabalistic universe. Additionally, one can distinguish levels one, two, three, logically, in the context of decision making. So, for example, let us consider a "Don’t Walk" sign in a crosswalk. On level one on the level of operative logic, the sign and the language it contains simply commands us not to walk. On level two, applying hermeneutics, we must understand the "meaning" of "don’t walk" and logically assess in what factual circumstances the language applies and what it requires. Also at level two we must assess the underlying policy of the rule "Don’t Walk." A Critical Thomist jurisprudential analyst makes the empirical and logical (1992)
102 In the area of legal practice for lawyers, the standard of care is one of reasonableness, or negligence, with the elements of the cause of action for legal malpractice being: duty, breach, causation, and damages. Geoffrey C. Hazard, Jr., Susan P. Koniak, Roger C. Cramton, "The and Ethics of Lawyering 156 (1999).
assumption that there are reasons or policies underlying rules in general, and, the existence of absurd rules is the exception which normally is pruned out by evolutionary advance. Thus, 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. Now, at this point we again have to question whether there is any difference between level two operations and level three operations. The Critical Realist position is that level three judgment or reason in this context intends value.103 Thus while level two intelligence intends an analysis of policy as such. Level three reason or judgment intends value, and in this context, the value or values, underlying the policy. Here, at a deeper level it can be judged that order itself has value, so does freedom, so does protection of human life and of human property. All these values would be taken into account in assessing policy, interpreting language, and in the final measure determining which outcome is the most "logical" at level two. The above then is consistent, with my earlier thesis, that from a purely logical point of view, Critical Thomism, suggests three levels of different logic, at level one we ask How?, at level two we ask, What?, and a level three, we ask Why? The logical positivist will undoubtedly ask, is it not the case that "judgment," and "reflection," for example are purely "reified" terms which cannot be taken seriously.104 While previously I spent an entire article
Bernard Lonergan, "Method in Theology" 34 (1971) ("Value is a transcendental"
notion). C.f., Anthony J. Fejfar, "An Analysis of the Term ‘ Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning,’" 25 Capital University Law Review 579 (1996) (Peter Gabel seems to wonder in his article, perhaps, whether or not a "lamp" is a "reified" object and thus not "really real."). 93
addressing the foregoing type of objection,105 I have developed a shorter refutation of "Reification" which is more to the point: "Reification is itself a reified concept and therefore invalid." In the final analysis, logical positivism can offer us much in terms of level two analysis, but in the end it is an incomplete philosophy compared to Critical Thomism. As a matter of both epistemology and cognitive psychology logical positivism is inadequate.
CHAPTER IX LEVEL THINKING One of the difficulties that one might have with understanding, let alone “doing” Critical Thomism as a philosophy is the “Level Thing.” The idea of levels of growth or maturation or
consciousness really is first found in the developmental literature of developmental psychologists Piaget and Kohlberg. Kohlberg, in his ethical theory, really only goes up to level 6. What you find in both Piaget and Kohlberg, and later in Ken Wilber’s work, is not only the important concept of levels of thinking or concsciousness, but also the notion of “sublation.” Sublation means that at every level the higher level transcends the lower level or levels, but also includes and integrates them. So, the lower levels are not lost, rather they are included in a new and higher integration, which, of course, itself, adds something new. Now this is very hard to conceptualize for a lot of people but perhaps this example might help. Imagine that you have a computer with a desktop. On the Desktop there is the Icon “My Documents.” 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, themselves as Icons. Imagine that one folder is the Folder entitled “My Photos.” You then double click on the Folder Icon “My Photos,” and within that Folder now pops up a new screen which contains a group of subfiles which are your Photos. One being “On the Pond,” another, “Fishing with Dad,” etc. So, the whole thing sort of looks like this:
Desk Icon: Includes/Contains:
My Documents Includes/Contains: My Photos Includes/Contains: 95
Sub Folders: Includes/Contains:
“On the Pond Picture” “Fishing with Dad Picture”
So, if you understand what I am trying to get at above, you are about half way there. But the other trick is this. At each level let’s say that you can right click on the Desk Icon, Folder Icon, or File Icon, and a task menu pops up with different operations. So, let’s say your “mind,” (do this in your imagination if it helps) at level one, on the subfile/picture level, can access a remote digital camera which takes a picture. This is the level of sense experience. 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, or alternatively, you immediately upload the Pond picture to level two for saving to memory and processing. Now, at level two, at the “Folder” level, perhaps your computer is programmed so that you can process, i.e., “understand” the picture by cropping the edges, changing the contrast, deepening the colors, using a photo editing program. You then upload the level two “processed” picture to level three. At level three at the Desk Icon Level, let us imagine that a new Desk Icon has been created, which is a gestalt of the first two operations (levels one and two), but which also adds a new “intuitive” operation which gives more depth of field to the picture, thus creating the gestalt Desk “Pond Icon” at level three, perhaps not unlike the “image schemata” discussed by Lakoff. Of course if we were dealing with a “picture” which involved all five senses at level one, the “image schemata” would be something like an IMAX Surroundsound Surroundfeel MovieSchemata, ala Bergson. So, there it is. A little example of how you might organize your mind as a Critical 96
Thomist. Experiment. Try it all in your imagination. Use different metaphors and examples. People whose minds have the most problems jurisprudentially are those who have very limited programming which is very rigid and hardwired. Good luck.
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. Tom has spent a lot of time thinking about Sir Thomas More, In this article, however, 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. Now what does this mean? Depth psychologist Carl Jung tells us that each of our unconscious mind “interfaces” with the “collective unconscious.” It is in our own unconscious that “deep structuring” symbols and metaphors, what he calls “archetypes,” help to structure and partially constitute our individual “way of being,” and collectively, our communal “way of being.” As Hans Georg Gadamer might put it, such archetypes function as “forestructures of
knowing” which help us to think and to know. Now, when people typically think of the idea of “Thomism,” they think of Saint Thomas Aquinas and the Summa Theologica. I would like to suggest another type of Thomism, however. Critical Thomism holds of Saint Thomas the Apostle, that is “Doubting Thomas,” not Thomas Aquinas, and not Thomas More. Now, when you think of realpolotik in the Catholic Church–people in the pews, people who say the Rosary, people who belong to the Alter Society, the Knights of Columbus, the Ushers, the Readers, you come to understand that one of the primary criterion for their theology is durability. They want the kind theology that helps to get and keep a good job, to change baby diapers, to help a baby with the colic get to sleep at 2:00 a.m. in the morning, and then later on, to help clean up your gradeschool kid’s puke at 4:00 a.m. in the morning and still stay up with him, and then..., somehow make it through the next day. Now, in doing this, what do you look for as your role model, your hero? Well, for many of us, in the end, there are two choices: Simon Peter or Doubting Thomas. People might not admit this, they might not even know it consciously, but I think this is it. Now why these two? Well, most of us spend a good deal of our time trying very hard to do the right thing, but still failing, at least part of the time. So for our heros we must have heros who, loved and adored, even idolized (in a positive sense), must some how have failed–otherwise we’re damned. Perfect imperfection, that’s the ticket for us. 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. No, we
See, e.g., Thomas L. Shaffer, “On Being a Christian and a Lawyer.”
ordinary everyday people look for something more "earthy" as Tom Shaffer might put it. What we want are the two “Apostate Apostles,” who Jesus obviously loved, whom he relied on, and who stayed the course and stayed in the Church. Now, I don’t mean they were literally apostates, rather, only metaphorically. Whether one reads the Bible as literature, or a Divinely Inspired, as you may recall, Simon Peter denies Jesus three times before the cock crows, and yet he still is the Rock upon which Jesus builds his church. Simon Peter, later on, takes a stab a Lawyering, insisting that the early Christians observe both Kosher as well as adult circumcision. It takes the adept Lawyer Paul, to insist that Siimon Peter is rigidly adhering to the letter of the Law rather than the Spirit of the Law, reasoning, as a Critical Thomist, that Jewish legal requirements were not binding on the new Christian Church without good theological arguments supporting those practices. The Apostle Thomas, on the other hand, is the one who after the resurrection, refuses to believe that Jesus has resurrected, but instead insists that he (Thomas) must feel the nail marks in Jesus’ hands, feet, and side, before he (Thomas) would believe. Jesus, of course, shows up, and insists that Thomas feel the nail holes. Instead of condemning Thomas, Jesus simply says, essentially, you Thomas have believed because you have seen, felt, experienced, blessed are those who believe without seeing, feeling, or experiencing. Now, what does this mean for we Lawyers. Well, it means that we have two foundational apostolic role models for Lawyering, and for the Legal System. First, we have Simon Peter. Simon Peter is the Archetypal Imperfect Authority, who, believes that reality and law must be based upon authority. This is Petrine Lawyering. Authority, human in the first
instance, rule based in the second instance, is the basis for law, the legal system, and legal 99
What is right is what the authority says is right, taken as true, as a given, in spite of
the fact that Simon Peter started out with a remarkable bad track record by denying Jesus three times, and then later was overruled by what essentially was an early church council and the Pharisaic Lawyer, the Apostle Paul. Now, conventional people, concrete people, lawyers or no, bet on Simon Peter, and in doing so on Papal Authority, and perhaps, Judicial Authoritarianism.. For them the Pope is it. And you know, it really isn’t such a bad bet. On average the Popes seem to do pretty well. Even the “corrupt Popes” such as the Borgias perhaps have done better than their contemporaries. There is a certain school of thought that Rome rules best when it does nothing at all. Just let the ancient wheels of the Church roll along themselves, guided of
course by the Holy Spirit, that’s the ticket. The Critical Thomists, on the other hand, are remarkable suspicious of both the Petrine outlook, and of Papal Authority. For Critical Thomists, Reason Rules. This is not apostacy as some Petrines might think, rather, instead of following the Pope, Simon Peter, and presumably God the Father, all of whom, at least archetypally are seen as ruling on the basis of authority, they follow Jesus, as the Logos, The Divine Word, Divine Reason, The Incarnate Word, or in Platonic terms, “Creative Form.” For the Critical Thomist, God is “right” not because He’s God, but because he’s, well, right. Faith and Reason are assumed to be, and perhaps typically are, totally consistent. Critical Thomists have Faith–it’s just not Faith in Authority, instead it is Faith that Faith and Reason are totally, completely and absolutely and ultimately consistent. This was Jesus’ promise to us in the Gospel of John. When Faith and Reason “appear” to be at odds with one another, this is simply a temporary glitch. Although this may take a little time, sooner or later we will sort 100
things out and we will find a reason based way of reconciling any apparent contradiction. Now, how does “Doubting Thomas” fit into all of this? Well, from my point of view, Saint Thomas the Apostle is the Patron Saint of Critical Thomism. As Lonergan tells us, we think critically, and inductively, and thus “know” reality, by starting with experience, going to understanding, and then finally to reflection or judgment. This is the intellectual approach to living. One suspects that the Petrines start with the person of authority, then go to the authoritative statement or rule, and then deductively apply the rule to their experience. A totally different way of thinking.
Although Lawyers certainly use authority, it is my argument that they Lawyer best when they start with reason, and reason inductively starting with experience, going to understanding, and then finishing )(provisionally) with judgment and reflection. Our Patron Saint is the “Apostate” Apostle, Doubting Thomas. If we are to be judicially damned or canonized it is because we have thought things through, not because we have unthinkingly and unreflectively followed authority.
CHAPTER X THE HANGMAN The Hangman. A kid’s word game? For most of us perhaps. But not for me. No, for me The Hangman, involves a story that I first heard in junior high, maybe 8th or 9th grade. I sort of heard it, but I guess its fair to say that I also saw it. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C.C.D. religion class. Now, just to make it fun, I’m going to tell you the story of The Hangman. I told a story something like this to one of my law school classes last year, in person, and I think it had the appropriate effect. Of course I don’t remember the original story as such, the details, I mean, but I do think I’ve got the general gist of it. Now, the first thing to know about The Hangman is that He always wears black. Black boots, black gloves, black jeans, black silk shirt, black cotton cloak, black hat. Perhaps he reminds you of The Shadow, the dark side radio hero. But, the 102
two are not the same. So, here goes. Back in the Old West, in Nebraska Territory–the Kansas part, of course, was a prosperous little town called Purgatory. Purgatory was a nice town. The people went to church on Sunday, and they even had wooden sidewalks so that your feet didn’t get muddy after a rain, unless of course you had to cross a street. The town had a dry goods store, a butcher shop, a gunsmith, a saloon, a hotel, a lumber yard, a hardware store, a livery stable, and of course a fair number of houses. Everything was normal, typical, until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. Everything was black about him, except his skin. His skin was a very pale white. He was armed, he had on a double rig of six guns, colt navys, by the looks of them, and a bowie knife with a jet black handle on his belt. He rode into town slowly with the sun at his back, creating black shadow in front of him. He got a third of the way into town, down Main street, until any of the townsfolk noticed him. He stopped and looked. His eyes were like obsidian orbs, black as pitch. The sweep boy saw him first, and the boy ran to tell the town Marshall that a stranger was in town. The man in black just waited. Soon the Marshall came out with a double barrel shotgun, ten gauge, with shells filled with double odd buckshot. His bear gun. "Howdy stranger," said the Marshall, what can I do for you, 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 said, Hello stranger, cat got your tongue?" said the Marshall. The man in black squinted his eyes even further, hacked up some flem, and spat down on the ground. Then he, the man in black, looked at the buildings of the town, and the townsfolk that were 103
beginning to congregate. Then, the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. The Marshall couldn’t take it, he just couldn’t keep eye contact and instead looked down at the dusty street. Finally, the man in black said, "I’m The Hangman, I thought you might have some business for me." "Business, what kind of business," asked the Marshall. "Oh, I hang people, mostly for committing crimes," said the Hangman. "What’s that supposed to mean?"asked the Marshall. But the Hangman just stared even harder at the Marshall, hacked some flem, and spat again–this time the spit landing only a foot away from the Marshall’s right boot. "I think it means whatever you want it to mean Marshall," said the Hangman, and right now it means that I am going to the saloon and get a drink. The Hangman rode down Main street past the Marshall a half a block, got off his jet black horse, and tied the reins to the wooden bar in front of him. The Hangman stretched, like a black cougar, supple and strong, and strode into the saloon. The saloon was crowded, cowboys drinking beer, playing poker, listening to piano music... but it all stopped when The Hangman stepped inside. The Hangman walked up to the Bar and ordered a whiskey. He slammed it down, and threw two bits on the table and turned and scanned the room. His eyes squinted. Then he said, "Listen all of you, I’m The Hangman, I solve all your problems, I help make the world a better place, especially your town, and I do that by hanging people." A drunk cowboy stood up and said, "Mr. I don’t like black, and I don’t like you, and I don’t like hangmen, why don’t you just mosey out of town before you get hurt." The Hangman’s eyes squinted even further. He glanced to the left, and behind him to see if the bartender had his shotgun out. The bartender didn’t. Then the Hangmen waited a moment and looked to see if anyone else was 104
backing the cowboy’s play. No one was. "Well, son, I guess I feel like staying, a nice prosperous town like this should make someone like me feel welcome," said the Hangman. Suddenly the cowboy went for his six gun. The Hangman didn’t even move. He just laughed. The shot went wide and broke the mirror behind the Bar. The cowboy just gaped as The Hangman smoothly pulled out his Colt Navy, calmly aimed, and place a bullet through the forehead of the cowboy. The cowboy stared into infinity for a second then fell on the floor and died. "Anybody else care for a shot,? asked the Hangman. No one said a word. "Bartender, another whiskey," said The Hangman. He drank the whiskey and this time simply smiled at the Bartender and walked out, without paying. The next morning at dawn, The Hangman walked from the Hotel where he spent the night to the Lumber yard. He had some lumber delivered to the end of town. He then went to the Hardware store and bought some tools and started to work It took him a week, but then it was done. A wooden gallows had been built, the Hangman’s Switch, tested. Then The Hangman walked to the Livery Stable. The Stable Boy was cleaning up horse manure from the stable floor. "Hey Boy," said the Hangman, what time is it?" "I don’t know mister, I can’t tell time," said the Boy. "Can you read?" asked The Hangman. "No sir," answered the Boy. "Well son, you have cognitive dementia, you had better come with me," said The Hangman. "Yes sir," said the Boy. So, The Hangman took the Boy down the street to the gallows. "Son," said the Hangman, "I know you don’t understand this, but this is for your own good." "What is sir?" asked the Boy. "Well, Son, you have cognitive dementia, and so I am going to have to hang you
until dead in order to put you out of your misery, and to protect the town from and further 105
leeching of yours off the common good," said the Hangman. The Boy froze with fear. He didn’t know what to do. His mind blanked out with panic. Soon a crowd had gathered. The Hangman said, "This boy has cognitive dementia, that’s a hanging offense in these parts. Unless anyone objects, I’m going to hang him now." A few people laughed. A few people cried. Although twenty men were there who were armed with six guns, no one drew their gun, no one said anything. Well, I guess this confirms it, this boy is a wastrel and a blight on humanity. He deserves to die. The Hangman tied the Boy’s hands, put the noose around the Boy’s neck, and then pulled the lever. The trap swung out from under the Boy’s feet. He fell through. Luckily for the Boy the rope was placed just right, and the Boy’s neck was snapped, killing him instantly. "You are good people," said the Hangman, "and this is a good town." "You are to be commended for helping to clean up this white trash." "I am here to help you clean up this town," he continued, thank you for your help. He left and the crowd went home. The next day the Hangman went up to the Marshall. "Marshall, you seem a little overweight to me, have you considered the fact that you have cognitive dementia?" "Cognitive dementia?" replied the Marshall. "Yes," said The Hangman, as he pulled the Marshall’s six gun out of his holster." "You won’t be needing this anymore Marshall," said the Hangman. "But..." said the Marshall. Marshall you know that you simply cannot be a dead weight here anymore. The townsfolk all say that you are dead wood, you just can’t get the job done anymore," said the Hangman. And so the process repeated itself. The Hangman placed the Marshall on the Gallows and then addressed the crowd of townsfolk. "You know, the Marshall just can’t get the job done anymore. He is dead weight and dead wood. He couldn’t even stop me from coming into town. We need to put him out of his misery," said the Hangman. "Anyone here object?" 106
continued The Hangman. To everyone’s surprise, a Boy asked, "What will the town do without a town Marshall." "Well Boy, you don’t need one," said the Hangman, when the Hangman is here everybody figures it out, everybody does the right thing." And then the Hangman pulled the trap, and down went the Marshall, dead as a door nail. "Now Boy, I need some help up here," said the Hangman. The Boy started crying, he didn’t want to go near The Hangman. But the crowd pushed him forward and up the steps. The Hangman cut the Marshall down and retied to hangman’s knot. The Boy stood their shivering. "Now Boy," said the Hangman, "You have questioned my authority, and you know that is wrong, isn’t that true?" "Well mister, you asked a question, I answered it, what else was I supposed to do?" "Son don’t be smart with me, as you very well know, I was just testing you and the townfolks, here. Once The Hangman come to town, he is the only authority, you must know that," said the Hangman. "The Hangman," seeing that the Boy was going to reply, quickly stuck his handkerchief, black as night, in the boy’s mouth so that the Boy couldn’t talk any further." "This Boy is guilty of gross deriliction of duty and insubordination," said the Hangman, "In order maintain order and authority in this town, the Boy must die. Any objections?" This time, no one said anything. "Well, I am required by Divine Law by both God and the Devil to tell you at this point that unless you hang together, you will hang seperately," said the Hangman. I am a dementer from Hell set loose on earth to test you," he continued. " My position is that I am here to bring order to this town and to eliminate those who do not deserve to be here," said the Hangman. "If you follow me, I will give you a well ordered society," he promised. The townsfolk applauded. The next day the circuit judge rode into town. Although unarmed, he called out the 107
Hangman into the street. The Hangman came out, his demenour, cold as night. "What is it you want, your honor," asked the Hangman. "You can’t just hang people. These people you have hung have violated no law and were given no trial," said the Judge. "The Hangman doesn’t need a trial," responded the Hangman, "those who were hung were trash, the good people of this town knew it, and approved." A crowd had gathered. "See this judge," said the Hangman, "he is the cause of all of your problems, the rule of law is a myth designed to deceive you, to keep you enslaved. Only The Hangman can save you. Only The Hangman has real power. Only The Hangman gets things done." "Grab this vile judge and take him to the gallows," said the Hangman. And so they did. And down went the judge. The next day the Hangman called out the Mayor onto the street. "Mayor, its your turn," said the Hangman. The Mayor balked. "Not me, this is my town, I run things, you can’t get me." "What then am I to do," replied The Hangman. "I pass it on to my wife," said the Mayor, take here instead." The Mayor’s wife fainted when she was called out, but this did not stop the Mayor from carrying her limp body to the gallows. The Hangman and the Mayor revived the Mayor’s wife with smelling salts, tied her hands, set the noose, and then down she went. "We are making progress," said the Hangman to the assembled crowd. And so it went. Each day a new accusation, each day another hanging. It took awhile of course. A couple of months, so the story goes, but finally there was only one person left in town other than The Hangman, that was the town Mayor who had "passed it on" to his wife. All the rest were dead, hanged by The Hangman. From the Hotel, The Hangman crossed the street and went into the Barber shop. Inside was the Mayor, giving himself a shave. The Mayor looked over. "Well, you are the last one," 108
said the Hangman. "Me," said the Mayor, "I passed it on, I’m safe." "Did you really think that would save you," asked The Hangman. Remember I told you early on in the process, "Either you hang together, or you hang separately." "All of you could have hung together as a group and opposed me, put me back in Hell under the Rules of the Game," but instead you all chose to hang separately, letting me win," said the Hangman. "But I didn’t really understand what you said," said the Mayor. "Yes you did," said the Hangman, "and if you didn’t you should have asked." "And now, let’s get this over with, then you can rest assured that there is a well ordered town here in Purgatory. "But there won’t be anyone left," said the Mayor. "Exactly," said the Hangman. And so up the steps of the gallows they went. The noose was fixed, the hands tied, and down the Mayor went. The Hangman smiled a smile of satisfaction. A job well done. He got his gear, saddled his horse, and slowly rode out of town looking for the next town. Is the next town yours?
CHAPTER XI THE BARTENDER Well, this is another story dealing withe The Hangman, pretty close to the last one, ..., at least at the beginning. But, in the end, quite different. The Hangman. A kid’s word game? For most of us perhaps. But not for me. No, for me The Hangman, involves a story that I first heard in junior high, maybe 8th or 9th grade. I sort of heard it, but I guess its fair to say that I also saw it. That’s because The Hangman was a film strip presentation with audio accompanyment that I heard and say in C.C.D. religion class. Now, just to make it fun, I’m going to tell you the story of The Hangman. I told a story something like this to one of my law school classes last year, in person, and I think it had the appropriate effect. Of course I don’t remember the original story as such, the details, I mean, but I do think I’ve got the general gist of it. Now, the first thing to know about The Hangman is that 110
He always wears black. Black boots, black gloves, black jeans, black silk shirt, black cotton cloak, black hat. Perhaps he reminds you of The Shadow, the dark side radio hero. But, the two are not the same. So, here goes. Back in the Old West, in Nebraska Territory–the Kansas part, of course, was a prosperous little town called Purgatory. Purgatory was a nice town. The people went to church on Sunday, and they even had wooden sidewalks so that your feet didn’t get muddy after a rain, unless of course you had to cross a street. The town had a dry goods store, a butcher shop, a gunsmith, a saloon, a hotel, a lumber yard, a hardware store, a livery stable, and of course a fair number of houses. Everything was normal, typical, until one day a black rider came into town riding a jet black horse with black saddle bags and black clothes. Everything was black about him, except his skin. His skin was a very pale white. He was armed, he had on a double rig of six guns, colt navys, by the looks of them, and a bowie knife with a jet black handle on his belt. He rode into town slowly with the sun at his back, creating black shadow in front of him. He got a third of the way into town, down Main street, until any of the townsfolk noticed him. He stopped and looked. His eyes were like obsidian orbs, black as pitch. The sweep boy saw him first, and the boy ran to tell the town Marshall that a stranger was in town. The man in black just waited. Soon the Marshall came out with a double barrel shotgun, ten gauge, with shells filled with double odd buckshot. His bear gun. "Howdy stranger," said the Marshall, what can I do for you, 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 said, Hello stranger, cat got your tongue?" said the Marshall. The man 111
in black squinted his eyes even further, hacked up some flem, and spat down on the ground. Then he, the man in black, looked at the buildings of the town, and the townsfolk that were beginning to congregate. Then, the Man in Black looked at the Marshall square in the face and locked eyes with him and stared him down. The Marshall couldn’t take it, he just couldn’t keep eye contact and instead looked down at the dusty street. Finally, the man in black said, "I’m The Hangman, I thought you might have some business for me." "Business, what kind of business," asked the Marshall. "Oh, I hang people, mostly for committing crimes," said the Hangman. "What’s that supposed to mean," asked the Marshall. But the Hangman just stared even harder at the Marshall, hacked some flem, and spat again–this time the spit landing only a foot away from the Marshall’s right boot. "I think it means whatever you want it to mean Marshall," said the Hangman, and right now it means that I am going to the saloon and get a drink. The Hangman rode down Main street past the Marshall a half a block, got off his jet black horse, and tied the reins to the wooden bar in front of him. The Hanman stretched, like a black cougar, supple and strong, and strode into the saloon. The saloon was crowded, cowboys drinking beer, playing poker, listening to piano music... but it all stopped when The Hangman stepped inside. The Hangman walked up to the Bar and ordered a whiskey. He slammed it down, and threw two bits on the table and turned and scanned the room. His eyes squinted. Then he said, "Listen all of you, I’m The Hangman, I solve all your problems, I help make the world a better place, especially your town, and I do that by hanging people." A drunk cowboy stood up and said, "Mr. I don’t like black, and I don’t like you, and I don’t like hangmen, why don’t you just mosey out of town before you get hurt." The Hangman’s eyes squinted even 112
further. He glanced to the left, and behind him to see if the bartender had his shotgun out. The bartender didn’t. Then the Hangmen waited a moment and looked to see if anyone else was backing the cowboy’s play. No one was. "Well, son, I guess I feel like staying, a nice prosperous town like this should make someone like me feel welcome," said the Hangman. Then, suddenly, the Bartender tapped the Hangman on the shoulder with a Colt Peacemaker handgun. "I don’t think you really want to hassle that cowboy, do you Hangman?" said the Bartender. "Wher’d you get that Peacemaker?" asked the Hangman. In "St. Louis," replied the Bartender. "Well, it won’t be exactly fair if you use that Peacemaker against my Colt Navy, would it?" asked the Hangman. "Well, you know the Lore, a Peacemaker always wins over a Navy, that’s the Rule," replied the Bartender, "that’s how they hex them." "It’s really not fair," said The Hangman again. "Well, its totally fair since only a Thomist can even carry a Peacemaker, and on top of that, I’m the District Attorney, some folks even call me "The Devil’s Advocate, I’ve never lost a case and I’ve never lost a gunfight," said The Bartender. "See the Shingle up behind me which says, "Attorney at Law?" As The Hangman turned and looked up to see the shingle, "fast as lightning," The D.A. reverse handled his Peacemaker and hit The Hangman over the head, knocking him out. "Well, that went pretty well, I thought," said The D.A. "I suppose the ciruit judge will be here tomarrow." "Marshall, I’m charging this hombre with attemped murder, lock him up." And so the Marshall dragged The Hangman’s body away. Next day was the trial, and the Hangman was convicted of attempted murder. When The Hangman fell through the trap the next day, some laughed but no one cried. "Well, The Hangman should have known better," said The Marshall to The Barber. "Why?" asked The Barber. "The D.A. is Coif, they never go down," replied The Marshall, as he walked 113
away, heading for the Saloon to get a drink.
PROPERTY AS A FOUNDATION FOR LAW
When one thinks of the foundation for modern law, one is often tempted to look back at the Code of Hammurabi, or, perhaps in terms of contemporary natural law or socio-biology. The sociologists seem to agree on one thing however, that is, that murder is the only cross cultural legal prohibition. And so, our critical friends may suggest that there really is no objective basis for law, at least none other than the prohibition against murder, ... and then of course, that prohibition itself would be subject to a great deal of interpretation. In this essay, however, I would like to offer a different slant on things, not that I necessarily disagree with all that has been said above. Instead, I would like to suggest that 114
property, that is, property law, is the basis for all rights, but also the basis for human dignity. Now, 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.” Well, in the first instance, I suppose, that we have get some clarity about what we mean by “property.” If we look at Blackstone, he defines property in “concrete” terms simply as a “bundle of sticks,” with each “stick” representing some “right,” including the right of possession. Blackstone took an avaricious view of property, suggesting that humanity’s greed for property acquisition was one of the surest bets we could count on. The Restatement Second of Property, on the other hand, defines “property” as “A legal relationship between persons with respect to some thing, tangible or intangible.” In this sense, “property” hardly exists at all, at least in the concrete sense. A Critical Thomist would say that property is real, but that reality is based primarily upon meaning. Although it is difficult to put colloquially then, a Critical Thomist using the Restatement definition would say that “property” is primary a “legal relationship,” that is it is intangible, regardless of whether it is real estate, a fixture, or tangible or intangible personal property. I a rather different sense, there is the Critical Thomist understanding of property of ala critical stage theory. Although it may seem a bit different from the Restatement approach, property, along these lines, would be seen as that which is judged to be “property” on the basis of experience, understanding, and reflection and judgment. Finally, in what one suspects is a rather traditional, but perhaps mistakenly seen in an avant garde sense, the notion of property grounded in metaphysics as such. If one considers the three metaphysical categories of being, form, and substance, one can see that property can be 115
seen in at least these three different ways. In medeival law in England, title to property was transferred by the liege lord transferring seisin to his vassal in an enfoeffment ceremony. This ceremony, seemingly bordering on the occult, 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. Metaphysically, one assumes, seisin, as represented by the clod of earth represented the substance of the property. The concept of substance, of course, dated in the first instance from the time of Anaximander in ancient Greece. 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. One might speculate that this relationship to the substance of the earth in a metaphysical sense is one of the reasons why persons in religious life are required to take poverty or simplicity vows. Idealists, one suspects, it they approve of property at all, tend to see and experience it in terms of a “being” mode. Being philosophers and psychologists tend to discount the acquisition of material wealth, typically seen as real estate, in favor of spiritual development. If one were to think of property in terms of the metaphysical concept of being, I suspect that it would be confined to personal property. Finally, there is property which is property in form only. Here property is hardly distinguishable from that of a mere formal contractual right. The law professor encounters the difficult, if not insoluable question of whether a mere contract, as such, or even money, as such, amount to property, or simply represent contractul interests. Well, where does this put us in terms of our first issue involving property as the 116
foundation for law in general. My position is that each of us, under natural law, has a possessory interest in our own bodies. God, or the cosmos, or the Dao, holds title to our bodies, and in this sense we are responsible not only to ourselves, but to the Common Good, the Truly Worthwhile, and the Good as a Critical Thomist Ideal. On this line of thought, we can mortgage our souls, but we can never really sell them. The rights that God, or the cosmos, or the Dao have in terms of our personhood are governed by Divine Law, that is, the law of the gods, or the law of the Angels, or the law of the Logos, that is Divine Reason. So, once again, one starts with one’s possessory interest in oneself, which, perhaps can be leased for a limited period in a human way for purposes of appropriate employment. One can certainly never be enslaved. As one comes into possession of personal or real property in a legal or customary way, such a homesteading in the old west in America, 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. This is of course an extension of Locke’s argument regarding the acquistion of property in the “State of Nature.” Contract law of course then flows from property law in that one may begin to trade personal or real property in a barter transaction, or in a more sophisticated economy, 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, in relation to one’s rights under a contract. Finally, there is criminal law which is an extension of tort law, which, utilizing primarily the principle of proportionality, requires that the harm inflicted must be responded to by the state with punishment equal to that original harm. Last but not least there is Constitutional Law. The Bill of Rights and Judicial Constitutional provisions are based upon the social contract theory that we all agree to be bound 117
by reciprocal obligations necessary for the proper functioning of the body politic, but also for the protection of our individual rights flowing from our possessory rights in our personhood, including but not limited to Freedom of Religion, Freedom of Association, Freedom of Contract, as well as those found in the Declaration of Independence, involving Life, Liberty and the pursuit of Happiness. In all this we cannot forget of course Locke’s distinction between Liberty and mere license. One’s Liberty can only extend as far as it does not conflict with the Liberty of others, and of course, going beyond Locke, one has the responsibility, even if only taken into account equitably in concrete circumstances, applying equitable rules, to contribute to the Common Good in the equitable requirement of serving those in need. So, rather than knocking property rights as being inauthentic as some liberals on the left as well as progressives on the left do, in my judgment it is better to see property as the foundation for all our rights. Rather than abolishing property interests as some marxists seem to wish to do, at least in the abstract, the better course is to develop equitable rules which “mitigate the rigor of the law” as Christopher St. Germain put it some time ago. While a fuller discussion of this must be saved for a later Chapter, it is apparent that law at every level from the Constitution on down, must be applied in the context of equitable rules which favor relationship, context, and compassion.
CHAPTER XIII EQUITY
A lot of Lawyers associate the idea of Equity with Sir Thomas More and Bolt’s Play, “A Man for All Seasons.” I used to, but then I found the concept in Aristotle. Artistotle says in essence that Equity exists to make Equitable Exceptions from general Rules based upon Need. So, for example, 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, and then you walked by and saw a little kid drowning in the pool in a property owner’s backyard, while technically as a matter of law you might be prohibited from going onto that person’s property to rescue the child, Equity would allow you to make an Equitable Exception from the general rule of no tresspassing, in order to rescue the child. 119
Now, of course, one might argue that people could rather arbitrarily create equitable exceptions all over the place, basically abrogating the Rule of Law. It is my position, however, that once one take the Ethical Matrix into account, that it would be fairly easy for the people themselves or a judge after the fact to determine whether or not the intervenor, in this case the child rescuer, did the right thing from and equitable point of view. Now, from my point of view, in reading human history, societies are always faced with the problem of either favoring law over equity, or, equity over law. Law being based upon proportional reasoning, while equity, in essence is based upon arational (not irrational) intuition. In Communist societies I think that at least ideally, Equity is placed above law, and so the German socialists, cited by Marx, stated the ideal “To each according to his need, from each according to his ability.” I can imagine my mom, or any mom, at home, basically saying this. The problem, of course, is that the politburo and the commissars tend to think that they are the one’s with all of the needs, even for luxury goods, while the proloteriat are the one’s with all the abilitities, at least the ability to work ordinary jobs for low pay, poor working conditions, and poor living conditions at home. The “needs” thing tends to be a one way street. Christian “communism,” 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.” Here the equitable slogan must have been “to each according to his need,” not even thinking about ability. Obviously if the Christian community runs out of rich recruits, problems would result, since the whole thing is sort of a pyramid scheme. So, then, placing Equity above law, except perhaps in the case of an extraordinary Chanceller like Sir Thomas More, would not seem to work. But even in More’s case, unfortunately, one might suspect that 120
the reason for his (More’s) execution by King Henry VIII was that the law courts, as well as the King himself felt threatened not only by Thomas More’s popularity, but also by his gradual ability to help bring about the Catholic Humanist vision of Utopia, or, the Second Coming. The other obvious option is to favor law over equity. This is the Aristotelian approach. Equity only intervenes in the extraordinary case, usually for the “little guy” or the “old lady.” The problem is, however, that after awhile the law types get very pissed off even at this. They don’t want equity at all. Judges are appointed and elected who are essentially “hardliners” who are former prosecutors who seem unable to make the transition from advocate to judge, and seem unable to distinguish the criminal playing field from the civil playing field. 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. Who you are is what you own.
Now the solution I have come up with, 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. In eastern terms, the Law must be a Dao of law and equity. So in our country, as is pointed out in one of my land use planning cases that I use in class, “Equity has its law, and law has its Equity.” That is, in the United States we have a fair number of Equitable
Maxims or Rules which help to, as Christopher St. Germain puts it, “temper and mitigate the rigor of the law.” So lets talk about some of those that are already out there and then talk about some that are being used but probably not talked about. The most significant equitable rule is “equitable estoppel.” If one takes a position and another relies on that position, reasonably, to one’s detriment, then the former can be equitably estopped from changing his or her original position. This doctrine is similar to “promisory 121
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, then the original promise can be enforced with or without consideration. Waiver and laches are also important equitable rules. If one “sits on one’s rights” too long then one can be deemed to have waived them, find them no longer enforceable. Under the doctrine of laches, similar to a statute of limitations, again if one waits so long that the cause of action is deemed to be “stale” then under the doctrine of laches, one can be barred from asserting them. With respect to some equitable remedies, such as court ordered injunctive relief, one is not permitted to bring the cause of action in equity unless there is no adequate remedy at law. This is sometimes true of other equitable remedies as well. Now, one of the problems with pleading a case partly in equity and partly at law is that often, at least on the east coast of the United States, that either the civil procedure rules do not provide for joinder of legal and equitable causes of action, or, even more interestingly, there is a completely different court, often denominated the “Chancery Court,” which sits wholly apart from the Common Pleas or State District Court. After seeing this situation, many lawyers go home feeling hopeless in regard to pleading a case joining law and equity. The solution, however, is a fairly simple one, the equity lawyer need only plead the case in equity, stating that there is no adequate remedy at law because at law no joinder on causes of action is possible, and then, of course, plead all of one’s legal causes of action at law in equity. Another well know, although perhaps not often stated equitable rule, is that all other things being equal, equity favors the little guy. This is an American thing, and before that an 122
English thing. In America you get it from the Old Westerns, where the mean and evil banker who has unfairly forclosed on a small rancher using an unconscionable title theory mortgage clause, is rescued in the first instance by the the “Good Gunfighter” who does battle with the evil gunfighter wearing black. Then the Good Guy lawyer represents the small rancher in court and gets the mortgage set aside as unconscionable and reforms the mortgage so that it is fair. In England of course, the tale of Robin Hood is told, where Sir Robin of Locksley, returning from the Crusades. 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. When Robin comes home he finds t hat his father has been murdered and his lands forfieted by the King John’s cronies, and all of England suffering under unjust taxes levied by the Evil King John. The taxes on the ordinary folk around Nottingham and Sherwood forest are so bad that the people are starving. Robin forms his band of yoemen in Sherwood Forest who rob from the rich and give to the poor who have been ripped off by unjust high taxes. The day is finally saved when Good King Richard returns from the Crusades and displaces his evil little brother King John, presumably at the Battle of Runnymeade in 1215, and quite possibly with King Richard himself being a signatory of Magna Carta at Warin Fitz Gerald. So, this is what Equity is like. Equity seeks to find exceptions to otherwise ridiculous rules de jure, or at least ridiculous rules de facto in the particular context. Equity favors the little guy, widows, 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, lack of knowledge, or lack of bargaining power. At the same time, Equity tends to leave alone contracts between sophisticated businesspersons who are assumed to be, and typically are, rational and autonomous 123
actors in the marketplace. Equity does not have much sympathy for a Fortune 500 Corporation doing battle with another Fortune 500 company over a commercial contract. When we see Equity and law this way, with law and equity at the same level, we see the value of the structure which law provides, but, also, the flexibility and compassion that equity provides, and, surpisingly enough, in many instances the common sense household rules that our parents applied to us when we were kids.
CHAPTER XIV THOU SHALT NOT MURDER In the Bible, whether one studies it as literature or as Divinely Inspired, we find the Ten Commandments given to the Israelites by Moses after receiving them from God on Mount Sinai. One of those commandments is commonly interpreted as “Thou shalt not kill.” Yet, we see that subsequent to the promulgation of this rule the Israelites fought many wars for generations against other peoples, of course killing many in the opposing armies. Later, after the time of Emperor Constantine, with the establishment of the Roman Catholic Church as the Official Church of the Roman Empire, obviously enough, the Roman Armies, including Catholic Christians, were killing others. So, what do we make of this? My gloss, as an amatuer scripture scholar, and as a legal 124
ethicist, is that what is really meant in the Commandment is “Thou shalt not commit murder.” The other interpretation, in my view, ends up being de fact satanic. By reason of natural law we have a survival instinct. We are not only to live, we are programmed to live. Depressive suicidal impulses are considered signs of illness physical or mental. Besides, we “kill” all the
time, we eat meat from animals, we eat grain that has been harvested before the field has gone fallow. For better or worse, we live in a world where we as human beings are required to kill to survive. The absolute prohibition of killing then is absurd and quite possibly could lead to mental illness. It is easy to see that if one cannot kill in self defense, then the next step is that one cannot defend oneself or one’s family physically at all. Even beyond this, if we were in a science fiction world, and our minds were somehow subject to psychic invasion, perhaps the next argument is that we should let occult entities invade and destroy our minds all in the name of nonviolence, that is, “Thou shalt not kill.” Now, does this mean that anything goes? No it doesn’t. For while some might argue as a matter of natural law that we have the right to murder others not only to survive, but to succeed, Divine Law, which includes the injunction not to commit murder requires that we not commit murder in order to survive, let alone achieve material or any other type of success. What is Divine Law, again? Divine Law is simply starting with the natural law prohibition against murder, utilizing Rational Self Interest, not unlike Enlightened rational self interest, and then applying the Ethical Matrix to every situation and rule concretely and abstractly. As stated before in the Chapter on Property, this gives us property law, contract law, tort law, criminal law, and finally Constitutional Law. Dovetailing on that earlier discussion, we can see that the natural law prohibition against murder is of course a basis for asserting that each of us has a 125
correllative possessory interest in our own bodies. As a last aside on this topic. One hears the rumors and reads the novels about satanic cults, with the members on the surface often seeming to be very religious, totally in favor of nonviolence, even to the point of not only being vegetarians, but to the point of seemingly not eating at all. One suspects that the healthy natural law instict for survival is subverted into the horrid satanic pratices of ritual sacrificial human murder and the ingestion of human blood and flesh. If we are to have a just society we cannot teach our children non-violence. Non-violence is satanic. Non-violence implies that each of us, respectively, and together, has no right of self defence, which of course we do both under natural law and Divine Law. “Turning the Other Cheek,” means only that it is best to avoid a stupid or idiotic fight if we can, but to fight to the death for our right of self defence if we cannot. “Give me Liberty or Give Me Death.” “Don’t Tread on Me.”
WHY IS LEGAL ACADEMIA IN DISARRAY?
When I was in law school at the University of Nebraska, I went to class, studied, worked out at the East Campus Gym a few times a week with my cohort in crime, Jamie Chrisman (obviously it was illegal to go to the gym when you should be in the library studying). We went to Nebraska football games, in season, making sure that we hit Sandy’s Bar on Friday afternoon’s, where the secret alcoholic concoction of "Elk Creeks" were sold by the pitcher, but only drunk by the glass. Chrisman and John Vitek and I would always go. Sandy’s on Friday afternoon was a Greek hangout on football weekends. No, they did not serve Gyros, instead it was Fraternity and Sorority city. 127
We sort of thought we were BMOC, that is, big men on campus, we were successful law students, Phi Delta Phi members. It was fun. Believe me, if you were not Greek you did not frequent Sandy’s on football Fridays. (This is of course the opposite situation relative to the Zoo Bar. Believe me, if you were Greek and you went to the Zoo Bar, you were D.O.A. Dead on Arrival. The Lock Blade crowd at The Zoo Bar, a lot of whom I think were Vietnam War Vets, clearly did like to see Greeks at the Bar). Anyway, at Sandy’s on football Friday afternoons, Chrisman and I had this routine we used in trying to pick up sorority chicks, we would get a little drunk, go up to a group of girls (sorry women) (I mean young women) and then do everything we could to compliment them. So, for example, I might say something like, "My God, 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." "You are a model aren’t you?" And so it went. We knew this whole method- ploy was doomed to failure, but we did it anyway because it was fun, and hope beyond hope, maybe it just might work. (One time Chrisman and I literally drank eleven pitchers of Elk Creeks, together. I guess that would make it about 5 and one half pitchers apiece. Maybe that week they forgot to put in the everclear and only put in the vodka and gin). Now, what does all of this have to do with legal academia? Well, you might say nothing, but I think that there is a connection there. First of all, we were happy to be in law school, a lot of us I think first generation lawyers in our families, second, although we might bitch, moan, and complain about things a bit, we didn’t really mean it. We knew we were getting a top of the line, first rate legal education. The only person I ever really heard complain from a jurisprudential point of view was Bob Shively, who complained that the faculty was too liberal. 128
Bob also told me that it was his impression that the Nebraska Bar thought the faculty was too liberal. Now, being a liberal or moderate democratic, I could simply have brushed this off as ideology, since Bob was, and I suspect still is, a moderate to conservative Republican. Not rabid of course, just a regular guy who should have been a moderate democrat and somehow lost his way and became a moderate Republican. So I filed this conversation away in my long term memory. Critical Thomists, like myself, don’t like to rush to judgment. We like to let things
percolate for a while. Well things percolated until I got into Legal Academia, first a visitor at Marquette, then on the tenure track at Widener in Harrisburg, getting tenure in 1994. I taught jurisprudence several times and still try to integrate jurisprudence into my other courses as suggested by the American Bar Association’s McCrate Report. Jurisprudence being of course that discipline within law which involves Legal Wisdom. Now, what I discovered after awhile at Widener, mostly through reading the legal scholarship of outside law professors at other law schools, was that critical legal studies was the jurisprudence that was in fashion. "Trash and Bash," were the watchwords of critical legal studies. Over and over again I read articles which said the concepts such as liberty, justice, love, contract, tort, were simply "reified concepts" which were illegitimate because they were "abstract," and not "concrete," and therefore not "real." Now, as a Critical Thomist, this situation flabbergasted me. For a Critical Thomist, meaning is real, I mean really real, so,..., words, and concepts, especially used in a real world context such as law, are very real. So, I slammed out a few articles making this point, and do you know what I found out? 129
Well, nothing, really. I got ignored. No one would respond. Finally, in 1996 I put out an article in the Capital Law Review where I explored the concept of reification, and basically found reification to be an inadequate concept. Finally, now, in 2003, I developed a refutation of the
concept of reification in a one line proof, and I suppose that will be ignored too. (The refutation proof is as follows: "Reification is itself a reified concept and therefore invalid."). Now, in my view this makes critical legal studies, as such, D.O.A., Dead on Arrival. But even if that is true, no one seems to care. Why would this be. Because, I think, that critical legal studies has now shifted ground and has moved to post-modernism. What is post-modernism? Well, people usually cite Derrida for authority. I suppose you could even use Wittgenstein on a good day. Anyway, one simply starts playing around with language to show that concepts are circular or indeterminate. This is called deconstruction. Now, what you find underneath all of this, which usually is not stated, is that all of these people are, what I call, extreme relativists. For them, anything can mean anything. And it is not just legal academia, its academia in general. What is the problem with this? Well, first of all extreme relativism is an incoherent jurisprudential and philosophical position to take, ... but lets save that one for later. The political problem with extreme relativism is that it is nihilistic. If anything can mean anything, then why bother? I mean really why bother? Why not blow your brains out? ...., Or, even better, why not just walk down to your local political commisar and join the communist party, and maybe moonlight a little bit for the K.G.B, which still maybe hanging on even though the cold war is supposedly over. (As I recall, the K.G.B. really didn’t go down, they just left town. The K.G.B. in Moscow and all its files probably ended up in North Korea or Communist China, don’t you think, and if they did, don’t they have the names and information 130
for all the agents in place and sleeper agents in American? Just a thought). Well, if you’re a po mo (post-modern) and you don’t like the communist deal, then why not find your local gaultlieter and see if the Nazi’s are interested. Last time I heard, the American Nazi party existed. In fact there were always stories about a guy in Lincoln, Nebraska, in the local newspaper who was a big shot in the American Nazi party. They showed the literature and everything. Now, you might say this sounds ridiculous. There are no totalitarian political parties in the United States, they packed in a long time ago. Well, I not so sure, just looking at things
from a jurisprudential point of view. Listen, as Bernard Lonergan puts it, we all have a drive for meaning and meaningfulness, if we can’t get it through liberalism and the rule of law, we look for it elsewhere. What is left, really, other than totalitarian political parties, especially when your law professors don’t even bother showing up for class, and instead use research assistants, no one takes attendance, and if anyone does show up, everything is seen as just being ideologically subjective and a "bad trip." For the intellectual elite in American Law Schools, liberalism is false consciousness. Now, before I finish this essay up, let me digress a minute to discuss extreme relativism. A lot of liberals from the 1960's started out as liberals on the right. Liberalism was on the right and in the right. This is because you can base liberal principles and values in classical metaphysics and philosophy, which has always been considered to be a liberal position. Liberalism on the right believes in truth. Although we support all sorts of programs to help the disadvantaged, in point of fact, we ground our position epistemologically and metaphysically on the right. This is Critical Thomism. 131
I say that a Good Liberal is on the Right and in the Right. A Good Liberal is one who believes in moderate relativism, moderate idealism, and moderate realism, and equitable compassion for others. Such a Good Liberal, ironically enough is further to the right than Adolph Hitlter, which, I suppose is why so many Nazi’s hate Liberals on the Right. Even more, I suppose that Communists on the Right, that is Hardliners or Stalinists hate Liberals on the Right as well. The reason that we, The Americans, 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. . We knew we were in the right in fighting Hitler. The Nazi’s were wrong because they were denying persons their individual right, on the right and in the right. We knew we were in the right in fighting Stalin and Kruschev because they were denying persons their individual rights as well. Somehow, then, during the 1960', liberalism moved to the left. Maybe this happened somehow after Jack Kennedy was shot. Anyway liberalism on the left doesn’t work. It is based on relativism which always ends up being extreme relativism. Extreme relativism, being, "everything is relative." Now, once and for all I want to say that extreme relativism is jurisprudentially and philosophically incoherent. This is a commonly known proof: "If everything is relative, then of course the statement that everything is relative is relative, and therefore meaningless and invalid." This is an philosophically existential refutation. As a Lonerganian might put it, the statement contradicts performance. So, what is the solution to this situation. I suggest that Academia in General, and Legal Academia in particular, embrace Critical Thomism. Once you’ve done that you are still free to deconstruct languge, but in a constructive way, not one that is nihilistic. 132
LAW AND OBJECTIVE FACTS
Facts. What are they? Who cares? Well, lawyers and judges do, maybe jurors, or at least we pretend to. Lawyers are supposed to uphold the "Rule of Law." But, what is that? How can Law Rule? What about people, what about Facts? Do Facts Rule? Jerome Frank thought so, and in his book, "Courts on Trial,"107 Frank, a 1930's legal realist, argued that Facts are what control the outcome of cases, not the Law. A lot of trial lawyers think so to. Any trial lawyer worth his salt will simply say, "The hell with the
Law, just get me in front of the jury and I’ll win my case." In "The Verdict,"108 with Paul Newman, that was attorney Frank Galvin’s salvation. He passed up a settlement offer, perhaps unethically, in order to try the case to the jury... and he won. Well, Frank Galvin did win in "The Verdict," and a lot of lawyers do to, approximately half, one suspects. But some of us wonder that even if we can imagine that The Law is objective in some sense, how about The Facts. Critical Thomism, working off the philosophy of Bernard Lonergan, argues that we in fact know reality through three interrellated cognitive operations:
1. experience > where one intends sense impressions 2. understanding > where one intends ideas and thoeries
Jerome Frank, "Courts on Trial (1949). "The Verdict" 1982, 20th Century Fox.
3. judgment/reflection > where one intends the real or reality.109 What this means is that on Level One, the level of sense impressions, we simply experience a blurr of data. This is the level of "Reacality." The Buddists call this illusion. On Level Two, we organize sense impressions through the use of symbols and ideas, even myths. It is on this level that we not only understand what is going on, 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,110 which act as "forestructures of knowing."111 These "forestructures" of knowing help us individually and
collectively to "interpret" or "interpretively create" "Actuality" at Level Two, setting the stage for "Reality" at Level Three. 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
See generally, Anthony J. Fejfar, "Insight into Lawyering: Bernard Lonergan’s Critical Realism Applied to Jurisprudence," 27 Boston College L. Rev. 681 (1986). For a discussion of "relational meaning streams," see Anthony J. Fejfar, "An Analysis of the Term ‘Reification’ as Used in Peter Gabel’s ‘Reification in Legal Reasoning,’" 25 Capital Univ. L. Rev. 579 (1996). See generally, Hans Georg Gadamer, "Truth and Method" 239 (1975).
operations and Kohlberg’s "conventional morality."112 Now, this is all very nice, but a lot of people have argued that level three "concrete" reality knowing is totally inauthentic, possibly even fascist. I suspect that conventional moral mores at level three and conventional reality at level three are a mixed bag, positive in some sense and negative in others. But given this, where does the Critical Thomist schema fit in?
See generally, Walter Conn, "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.118 In other words, when one lives the
See generally, Nick Herbert, "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. This however is impossible." Id. at 31). Similarly, Heisenberg states, "The hope that new experiments will lead us back to objective events in time and space is about as well founded as discovering the end of the world in the unexplored regions of the Antarctic." Id. at 17. What Heisenberg is referring to of course is the thesis of Heisenberg’s Indeterminacy theorem, which states that the meaning stance of a Quantum Scientist affects the Quantum Events which are themselves the subject of the experiment. Thus, at least as to Quantum Events, any purported newtonian "objectivity" is chimerical. Now, the interesting point to be made, then, is that when we combine the foregoing, with the result of Bell’s Interconnectedness Theorem, there is plenty of room for Quantum Mental Communication at a distance, probabilistically, at sublight speeds. Now, what does the foregoing mean for us regarding the empirical literature involving cognitional activity? Quantum Neurophysiologist Roger Penrose notes that the conventional explanation of thought is that it takes place on the electro-chemical-neuron level utilizing newtownian processes. Id. at 348. "[However] renowned neurophysiologist [Sir] John Eccles has argued for the importance of quantum effects in [neural] synaptic [brain] action." Id. at 349. Thus, it is possible that "quantum effects" trigger much larger neural activities within the brain." Id. Questioning this possibility, Penrose points out, however, that quantum indeterminacy requires that the "experimental" "observer" affect the quantum indeterminate context/action. Id. My response to Penrose is simply to say that there is no reason why there cannot be a dialectical interactive relationship between conventional newtonian neural activities, on the one hand, and quantum activities on the other hand. Moreover, perhaps it is possible for different quantum "flow" events within the Quantum Field of the mind to affect on another in an "alinear" fashion. Perhaps our logic is not sophisticated enough to accommodate such a possibility. Perhaps if we were to develop and use a "probablistic logic" which discounts all numbers and variables in an equation probabalistically, 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 99.9999%, totally consistent with Quantum Indeterminacy and Newtonian statistical indeterminacy. (Even in a "gross" Newtonian physical world, it is impossible to produce perfectly replicable scientific 140
critical realist stance of Lonergan in conjunction with Quantum Physics stance of Quantum Indeterminacy, one finds that one propelled ever so subtley into alternative consciousness and alternative reality which interfaces with other reality in an interesting way. 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. Thus in this vein, in an earlier article, Tom Shaffer and I cited Carly Simon for the propostion: "Let the River Run, Let the Dreamers Wake the Nation,
results. We only get statistical probability which diverges to some degree nonsystematically from a classical norm or equation. We use subjectively consensual standard deviations to pretent that we can really "see" perfectly into the real world). Finally, perhaps in ordinary right handed persons, the left hemisphere is oriented toward conventional newtonian neural activity and analytic functioning, and the right hemisphere toward "quantum interaction" associated with intuition.
See, Walter Brueggemann, "The Prophetic Imagination" (1978).
Come the New Jerusalem."120 Now the skeptic might argue of course that such "alternative reality" or "alternative
Thomas L. Shaffer and Anthony J. Fejfar, "Wake the Nation: Law Student Insights into the New Jerusalem," 76 Marquette L. Rev. 767 (1993) (Quote in text adapted from Carly Simon, "Let the River Run," on Working Girl Soundtrack (Arista Records 1989).
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.121 There are of course two responses to this. First of all Quantum Physics, arguably, is not metaphysics at all, any more than newtonian physics or einsteinian physics. Bell’s interconnectedness theorem is proved by objectively observable physical experiments and produces objectively observable experimental results. Additionally, however, it is my position that Ockham’s Razor itself is flawed and invalid, and therefore any attempt to reject the position that I have presented as inconsistent with the application of Ockham’s Razor is invalid. My “Long Proof” refutation proof of Ockham’s Razor is as follows:
Literally, Ockham’s Razor is as follows: "Entia non sunt multiplicanda sine necessitate."
(Quoted in Roland Omnes, "Quantum Philosophy" 19 (1999)). Literally, the foregoing means, "Entities are not to be multiplied without need." In practical application and ordinary interpretation, however, the definition that I use, above, in the text is more adequate and relevant. One simply notes that both Being and Ockham’s Razor are "entities" which should not be multiplied with out need.
Refutation of Ockham’s Razor 1. Ockham’s Razor which was created by William of Ockham, provides in essence that in considering any problem, scientific, legal, or otherwise, the most adequate solution is the one which makes the fewest unnecessary extraneous assumptions. 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. 2. In beginning our discussion of this problem we must first of course assume the explicit existence and application of Ockham’s Razor itself. 3. Once step 2 is taken, upon reflection, it is apparent that Ockham’s Razor itself is an unnecessary extraneous Metaphysical assumption and as such is excluded by the operation of Ockham’s Razor itself. Thus the concept of Ockham’s Razor is shown to be self contradictory and thus invalid.
4. Mathematical Illustration. A. Let us consider the mathematical problem: 4 + X = 7. B. C. In solving for this problem we must start first with the assumption of the existence and application of Ockhams Razor. We must now proceed to solving the problem 4+X=7.
D. However, prior to solving the problem itself we must first apply Ockham’s Razor operationally to the problem. E. Thus if the equation 4 + X = 7 can be solved without "using" the starting assumption of Ockham’s Razor, as such, then by the operation of Ockham’s Razor, Ockham’s Razor as a starting assumption must be excluded. F. In fact, one can easily solve the equation without the use of Ockham’s Razor as follows: 4+X=7 4 + X - 4 = 7- 4 X = 7- 4 X=3
G. Since the foregoing problem was solved without the use of Ockham’s Razor, Ockham’s Razor thus excludes the use of Ockham’s Razor as an unnecessary metaphysical concept. Thus Ockham’s Razor is rendered self contradictory and invalid. H. It is argued that a concept that cannot allow for its own existence is invalid. I. J. It is argued that it is a fair rule of logic to use a rule or axiom more than once in a proof. It is argued that the foregoing is a tautolaugical proof and therefore incapable of being refuted.
5. It is argued that the proof/approach used in 4, above, can be used as the first step in the resolution of any problem, scientific, legal, ethical, cosmological, or otherwise. Because this is true, Ockham’s Razor is proved as being invalid in every case universally. Now, given that Ockham’s Razor is invalid, it is certainly true that Metaphysical concepts such as "Being," are now once again relevant to scientific as well as jurisprudential inquiry. Additionally, it is argued that scientific materialism (including marxism) and capitalist materialism are D.O.A., that is Dead on Arrival. Now, perhaps the materialist is aghast at this point, especially since Quantum Indeterminacy seems to leave us our hat, but no hatrack to hang it on. This of course is not true. While "objectivity" may not be possible as an abstract metaphysical possiblity, it is certainly possible "contextually" if we do science in a mode where we intend "objectivity" so to speak, after the fact. Put another way, in a world of Heisenberg’s indeterminacy, if we intend "objectivity" then in some fashion we get "objectivity." A la Lonergan, our authentic subjectivity will produce our "objectivity." Finally, it must be admitted that even the "objective" facts that we obtain will simply be probabalistic facts. The best we get in the real world at Level Three is something like 99.9999% real probability in the real world. Now as Bernard Lonergan points out, our highly probable judgments of fact simply "kick over," psychologically, we might say, into "virtually unconditioned judgments of fact." In other words, as a Quantum matter we shift ever so slightly out of the "real world" of real probability at Level Three into the Quantum world of "virtual reality," at Level Four which is constructed through "virtually unconditioned judgments of
fact."122 So in the end perhaps Piaget and Kohlberg are right, 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.
So, back to lawyering again. Facts do exist, probabalistically at Level Three and objectively at Level 4. We use these facts in counseling our clients, arguing our cases, and in making our decisions, judicial or otherwise. We need not be fact skeptics at all. And, for better or worse, in the final analysis there is an objective basis for determining whether or not the facts underlying a lawsuit are sufficient to prevail. Finally, as an enticement for the reader to keep reading, here is my “Short Proof” refutation of “Ockham’s Razor:” “Ockham’s Razor is itself a metaphysical concept, and, as such, is excluded by the operation of Ockham’s Razor, and, therefore is invalid given the fact that logically a concept which a cannot allow for its own existence is invalid.”
C.f., Deepak Choprah, "How to Know God" (2001) (discussing virtual reality).
LITIGATION TACTICS AND STRATEGY Litigation is a lot like a war. I remember when I practiced law at the Baird, Holm, law firm in Omaha, Nebraska, doing primarily corporate-commercial litigation, when Bill Dittrick, the litigation partner I was working with and I would go off to trial, after loading up our litigation briefcases, Bill would say as we were going out the door, “We’re off to War.” This phrase seemed to work pretty well until were were involved with one case with a Vietnam Vet and Bill used the phrase, and the guy, almost tearing up, said, “Well, I was in Nam, and believe me this isn’t war.” Bill and I both sort of gulped, and didn’t know what to say. Now, the Nam guy was right in one sense and wrong in another. Sure, the physical bullets weren’t flying in the courtroom, but the whole thing was still a battle. You had an opponent, the opposing lawyer, and your gut tightened up, and you got a little sick to your stomach, just like before a big basketball game you were playing in highschool. You had to 148
tough, and at the same time you had to care. Even in the commercial cases you cared, if nothing else you did not want to lose. Losing was for losers. There was another sense that litigation was like war, however, that is in the sense that litigation in many ways parallels war, 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, that is, blitzkrieg. Another method of litigation was the war of attrition. I suppose this was like the trench warfare of World War I. The war is waged back and forth between entrenched positions, seemingly forever. The casualties are horrendous, and in the end nobody really gets what they wanted in the first place. In fact, they might not even remember what they wanted in the first place. 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, the typical litigation partner, simply bulls his way forward with a frontal assault. As I mentioned above, this crowd gives the kudos to Rommel and Patton who were the Blitzkrieg type commanders. What these type of commanders often fail to realize, however, is both the vulnerability and the opportunity of exploiting the flanks of your opposition. Flanks of course not refering to their posterior anatomies, but rather to the ends of their front lines where their primary forces are deployed.
Front Line xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Flank 149 Flank
Front Line of Enemy Now, notice that if the Enemy’s line moves forward and engages our front line, we can shift our left and right flank defensively so that when the enemy’s line passes by, our flanks can turn to the center, and then attack the enemy’s line in a way the enemy cannot combat. We have a ten to one advantage over the end of the enemy’s line on each flak. If there is more than one line, those ranks of troops are exposed as well. Now, if the enemy trained to think multilaterally, and to have the troopers and non-commissioned officers to take the initiative, then it is possible to engage the flanks and at least stalemate the defensive attack. However, if they don’t have the ability to change orders and adapt in the middle of the fight, then the defenders will almost certainly win, even if they are outnumbered. Now, from an offensive point of view, it is pure idiocy to attack straight at an entrenched position. 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, engage the enemy in the middle, and then move forward with the flanks. Just like the game of Chess, there are of course response moves in such a situation, but they rarely work. Once “high command” has decided on a strategy, they want it carried out, regardless of the outcome, not unlike the Charge of the Light Brigade. As the poem goes, “Ours is not to question why, ours is but to do 150
or die.” Now, before we get to the law application, let’s consider the above in light of the Battle of Gettysburg. I am choosing this battle in part because I live fairly close by and have actually
visited the battle field several times. Now, the geographic situation at Gettysburg is that there is a high rolling ridge about 50 feet high with a down sloping inclide of about thirty degrees. Then there is a farm field about one mile in width, and then some trees behind. The battlefield itself is about three or four miles wide. Now, the first thing to remember is the context. Lee had to attack. It is my understanding that he came north in order to capture the Union gold reserves at Union Deposit Pennsylvania, outside of Harrisburg. Unfortunately, for him, he didn’t get that far, and was stuck in Union territory. Neither France nor Britain was entering the war on behalf of the Confederacy, and, Sherman’s march to the Sea through the south was or had destroyed both the cotton crop as well as food crops. The Confederate Army was underprovisioned. That’s the background. Jeb Stuart’s Cavalry was out way behind the Union left flank fighting against George Custer’s cavalry. Now, even if Lee had sent a few scouts out, he could have seen that the Union lines did not extend beyond Little Roundtop, a small mountain on the Union Army’s right flank. Lee could have faked a charge up the hill at Gettysburg and sent a quarter of his troops around the Union right flank, around Little Roundtop, and attacked the Union rear, cutting off supplies, and the road to Washington, as well as attacking the Union troops themselves. Instead Lee ordered a frontal charge right up the hill into the waiting Union Army as were slaughtered, effectively ending the war. Similarly, if you have seen the movie “The Thin Red Line,” about the Marines in combat 151
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. The company commander, a lawyer from civilian life before the war, suggested outflanking the enemy by going to the left around the entrenched position and through the jungle. The commanding officer said no and threatened to relieve the company commander. The company commander had his men make a few attempts up the middle, but it was hopeless. The company comander then exercised field discretion and had his men go around the right flank into the jungle, taking out an enemy encampment, and then the Japanese entrenched position on the hill, with relatively few casualties. Now, how does this apply to litigation. Well, first of all you need to know you situation, your context. I your client, broke, underprovisioned, must absolutely win the lawsuit for whatever reasons. Is the economy affecting this sitution? Politics? In this sense you must know the big picture. Next, you must know the ground. In the case of litigation, what this usually means is that you must know what courts are available to hear the case. Whether the case might be removed to a different jurisdiction. Whether discovery will be local, national, or international. Whether expert witnesses will not only be needed at trial, but also needed to prepare the case. Will it be necessary to associate with other lawfirms, etc. The next thing to know, at least to some degree, is your opponent. This is not always possible, but sometimes it is. Always remember the philosopher Hume, however. What has happened in the past merely provides some basis for predicting the future, nothing is locked in place. Hume even went so far as to say that all we can really know in our ordinary world is 152
based upon inductive reasoning involving statistical probability. So, never, underestimate your enemy, but, at the same time, never overestimate your enemy. That is, don’t necessarily conclude that your enemy is remarkably smarter than you are. I made this mistake in junior high one time. I got in a fight with a bully from another school. He was about three years older, three inches taller, and about 50 pounds heavier than my six foot four inch frame. I held my own in the fight on the front porch of the school, until a teacher came to break up the fight. 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. Following the words of Rupert of Henzau from the “Prisoner of Zenda,” “He who fights and runs away, lives to fight another day.” This is of course the doctrine of strategic retreat. So, my two buddies and I hit the bike racks and got our bikes. I could see the gang at the end of the block. I figured that I would go to the right down to 40th street and we would get around them that way. It was about a three mile bike ride home for me. Somehow, though, I thought, no, they will know that we will take the 40th street way home, so instead we will go the opposite way, down 48th street. Unfortunately, however, we ran right into the bully and his side kick and the fight ensued again. I held my own again, telling my buddies to get one of their parents so I could get out of the mess. After we had been fighting for about 45 minutes the whole thing seemed sort of absurd to me, so I asked the guy, “When is this going to stop?” thinking we might have an truce or something. The bully looked at me and said, “It will be over when I get you down on the
ground and beat your head in.” Suddenly, I was face to face with evil in a way that I never had been before, because I could tell that he meant it. I was simply a guy who happened to be at the 153
wrong place at the wrong time and this bully planned to put me in the hospital and maybe kill me. Then, my buddy’s mom drove up in the family station wagon. She chewed the bully out verbally. I got my bike loaded up and we were out of there. So, the point, don’t overestimate your enemy, but I guess, also, don’t think that evil doesn’t exist. And, of course, the next year my buddies and I were in highschool at Lincoln, Southeast, and I never saw either of these bullys again. Now, in terms of thinking about attacking the flanks in litigation, the point is to not in the first instance attack the case head on. Yes, file the complaint, yes get discovery started, but don’t push it right at first. Get a trusted private investigator to check things out. Both at your client’s end of the street but at the other end as well, of course being careful not to violate the anti-contact rule. Third parties are of course fair game for interviewing but the opposing party is not, except in some situations low level corporate employees. Get a paralegal to check into available public records to the extent they would in any way be relevant. One last point. Although wisdom allows this strategy, I’m not sure that conventional notions of morality do. An eastern way of thinking about war and litigation is this. If you find yourself in a muliparty conflict, or even game, don’t waste time attacking all of your enemies at once, they will just gang up on you. Instead, allow, or even arrange for your enemies to attack each other. Don’t let one become so dominant that you will lose in the end, 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.
CHAPTER XIX MEDIATION
Mediation has been very popular in the United States in recent years. I was a neighborhood dispute mediator for about two years myself, and learned a lot. The first thing that I have learned is that mediation does not work without a judicial system to back it up. I know that some mediators think that someday the state will fall away, ala marx, and all disputes will be solved through mediation. I hate to be pessistic, so I am going to cut the apple in two and say that my goal, ala Critical Thomism, is that our goal for Utopia, should still involve the symbolic state, including but not limited to the judiciary. Things might even go great for
200,000 years on earth, and then we suddenly get a lousy generation or two of authoritarian people, and then all we have worked for up to that time will have been lost. No, for me Utopia will involve the ceremonial seating of the legislature and its activity for at least a day. The judiciary taking the bench for at least a day, etc. The idea that we will somehow be able to do 155
away with law or the state en toto, for me, is excessively utopian. Nevertheless, I see a strong role for mediation in our society and system of government. Mediation is, of course, the process whereby a third party neutral seeks to use consensual processes to solve or resolve a dispute between one or more persons. While there are several different styles, modes, or methods of mediation, the mode that I prefer and have used is that of facilitative mediation. In beginning a mediation I always introduce myself to the parties and ask them to introduce themselves. I check to see if I have any conflict of interest by reason of a prior relationship with any of the parties. I then do an overview, stating that we will first have each of the parties get their stories out. Then, I ask each party what he or she would like to see happen or get out of the mediation. I then ask further questions factually to flesh out the situation and get a better handle on what was happening. I then engage the parties in a sort of “brainstorming” session to try to come up with some creative solutions to the problem. We then hone down the possible solutions to just one, and here, 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, ala Justice Brandeis. We pound out an agreement point by point, memorialize it in writing, and then call it a day. I ordinarily do not meet with the parties of the mediation outside the presence of the other parties. 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. So, I think that mediation is a very positive thing, and that in most circumstances one get’s a very good result. But, as a last comment, as a Liberal on the Right, 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), but also should refuse to help facilitate 156
agreements which in the mediator’s mind are unconscionable.
EQUALITY AND EQUITY
Equality is an interesting idea. Most people, I think associate the idea with the civil rights movement in the 1960's, or before that with Enlightenment Liberalism, or maybe, if remarkably well read, with John Rawl’s book, “A Theory of Justice.” For me, though, equality originates with Aristotle. In Aristotle’s Ethics, Equality is based upon the idea of proportionality, i.e., perfect mathematical and geometric ratio. Interestingly, though, Aristotle stopped short of proportionality as a basis for perfect equality. Instead, 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. It is here that the Critical Thomist must transcend Aristotle and insist on the Right Liberal principle of total equality before the law. While previously I have recognized the idea of the natural law hierarchy of Body, Mind, Intellect, it must be stated here that even if a 157
particular person, say a concrete laborer, functioned primarily on the Body level in terms of cognition and consciousness, 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, himself. This is equality before the law. Nevertheless, 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, one who has a greater educational background and greater skills might in fact, de facto, have been damaged greater. Although in some sense trajic, the principle is the same in the case of defamation. If a street person is defamed by being wrongfully called a “scumbag,” it may very well be that a jury would find that his damages would be substantially less than if a President of a University were called a “scumbag.” Equality also comes up in the employment area. The principle of equal opportunity requires that everyone be given a even chance at getting a job. 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 issue of past and present irrational discrimination also must be dealt with, however. The argument is that because of past and present systematic discrimination against particular groups, racial, ethnic, or religious, society should affirmatively seek to place such individuals in jobs ahead of others. This is affirmative action. I seems absolutely clear to me that as between two equally qualified persons, if one person is in a class which has been discriminated against, then, the person in the discriminated against class should get the job. This leaves the difficult question of placing persons who are less qualified ahead of others in getting employment. Here, my position is that this can only be done on a limited basis with 158
respect to a fractional percentage of those persons in the discriminated class who are in any way qualified for the job. If it turns out that there are not enough discriminated applicants with appropriate job qualifications such as graduate education, then the solution is to stop discrimination in graduate education in the same proportional way, and before that undergraduate education, and before that highschool. Finally, with respect to anti-discrimination measures and affirmative action, I would simply say this. The categories for discrimination have to expanded. There are an awful lot of
bigoted people who are interested in ethnic or racial purity, and they aren’t necessarily “white.” In fact, I want to make the following point. Anyone of mixed ethnicity should be considered a discriminated against minority and given additional help and safe guards. For example, I am Czech, Irish, and German, and I suspect that there are a fair number of ethnically German, racial Nazi purists, who would consider my ethnic/racial background to be unacceptable. Hitler made it very clear that all slavic peoples were considered to be subhuman. In the old Soviet Union,
White Russians discriminated against siberians and other ethnic groups. The Japanese in WWII considered Americans in general to mongrels. Anyway, my point is this, I don’t really expect these kind of attitudes to go away in the near future. We need a new category for prevention of
employment discrimination such as “multi-ethnic” to prevent discrimation against multi-ethnics, and for affirmative action. In order to qualify one need only have parents of different ethicitity or race, or a grandparent, or a greatgrandparent.
CHAPTER XXI STATISTICAL PROBABILITY
Well, as stated in a previous Chapter, Quantum Physics, and more particularly, Heisenberg’s Indeterminacy Principle suggest that we, as well as our world, and even “Greater Reality as a Whole” are all probabalistic. Critical Thomists, and in particular, Critical Thomist Lawyers, do aim for concepts or ideas or conclusions of exact, linear, certainty. For us, the world is a bit fuzzy. When a client walks into one of our offices, we ask the appropriate questions to try and get a handle on the facts. We do a little legal research, ask some more questions, typically a few days later, and then we make a probablistic assessment of the situation. That is, using litigator’s intuition and gut instinct one comes to a judgment or assessment, provisionally, of course, of what is going on, what the law, is, and what should be done next. The other interesting thing about probability is that probability fields diverge nonsystematically around classical norms or rules. If we think of the ideal rule as a genuinely existing straight line, in point of fact, the “empirical” real rule from an inductive point of view 160
only exists as a line of dashes. So, a classical rule deontologically and decuctively looks like this: -------------------------------- while an ontologically and inductively classical rule looks like this: - - - - - - - - - - - - - - - - - - . This could be seen through the classical equation: R = x + 0. ( R = Rule and x = 1 through approx. 10 ).
The last point that I would like to make regarding statistical probability is that any time one engages in empirical research of any type, one is supposed to, and ideally does take a statistical sample of the relevant data, and then, using a regression analysis which excludes “aberrational data” one then comes up with conclusions. Now, I have just two points here to make. First of all, it is important to include commonly understood analysis of independent variables in one’s study. In any type of sociological study, say for example regarding the objectivity or validity of a law bar exam, for example, relative to race, ethnicity, religion, etc., one should make sure that other independent variables are properly accounted for. Such variables typically might include: grade school, high school, undergraduate, and graduate school grade point averages; courses taken previously relating to: logic, economics, accounting, English Literature, Ethics, English Composition, Communications, Management, and, interestingly enough mystery, detective, and espionage novels which involve complex social and political situations. I’m sure there are others, perhaps, if the applicant had a great deal of work experience with summer jobs, and, what type of employment the applicants parent(s) have held. Now in all of this I am not saying that there may be underlying patterns of racial, ethnic, or religious discrimination coming from one source or another, but what I would like to suggest is that from a corrective point of view, at least over the medium to long range, is that the probable solution is to improve opportunities for particular types of classes, and maybe even require them 161
for admission to law school.
Additionally, there should be opportunities, perhaps required, for
various type of employment opportunities involving a national service corps, intelligence work with the various military services or the Central Intelligence Agency or the National Security Agency, or finally, opportunities for the development of leadership skills in the military. Racism or bigotory after the firm application of Liberal principles as stated above my very well turn out to be a secondary effect rather than a primary cause of under-representation of racial, ethnic, or religious minorities in the legal profession generally, or legal academia in particular. Finally, with respect to empirical research, 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.” I have heard that some studies are now not even disclosing what standard deviation they are using. In my mind, if we are dealing with the “real world” a sensible standard deviation would be about 3 or 4. Remarkably, some researchers, so I have heard, are using standard deviations of 10, or more. Clearly unscientific and totally political. This is real “political” science and it does not just involve social science research. Computer programs which do no display the standard deviation, or in my opinion, do not allow for a adjustable standard deviation should be outlawed as misleading if not fraudulent.
CHAPTER XXII REALITY LEVELS AND METAPHYSICS
When one considers the variety of books that have been written about “levels of consciousness” or “levels of reality” one begins to suspect that there might be something to it. For me it all began with discussions of Piaget and Kohlberg and Glaser’s reality approach to education around the dinner table with my mom and dad who are and were educators. The interesting thing about Kohlberg’s moral theory is that it seemed to “cut out” at about level 6. When one reads Maslow about “being psychology” and “self-actualization” the levels seem to be about levels four or five for that. For Ken Wilber, the “integrated” “centaur” level of consciousness seems to be about levels four or five. For Deepak Choprah, on the other hand, level five seems to be the creativity level. In my system there are levels of metaphysics which correspond with levels of reality and levels of consciousness. For me it goes something like this:
Metaphysics 5. 4. 3. 2. 1. 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, Rule, or Law.
So, there it is. One can shift one’s consciousness up or down onto various levels in order to perform different cognitive operations. Perhaps some perform these operations
laterally on one level, but I do it vertically. Its not mysticism at all its simply a very good, but complex way of thinking. As noted before, Deepak Choprah says much the same thing and asserts that the different levels are supported neurophysiologically at different places/levels in the human brain. Whether the mind is in the brain, or the brain is in the mind, or both, gets to be irrelevant after awhile. We don’t need Christian theologians to tells us about life after death or the immortality of the soul, we can advert to Plato’s discussion thousands of years ago. Why is this important? I suspect it is important because those of us who somehow have a 164
lived experience of a higher reality, if only congnitively, 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, God holds all our memories, thoughts, feelings, and emotions in His Mind forever, letting us know that it is worth the effort to fight the good fight for Justice and the related good fight for critical education.
Equality borders on a metaphysical principles for some American’s. One suspects that their jurisprudence begins and ends with the concept of equality. But let’s go po-mo here for a second and deconstruct the concept of equality. What is “equality?” I mean, 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). When I was teaching a visiting professor at Marquette Law School my wife Judi and I went to a few basketball games downtown in the sports center. I noticed the perennial problem, which I first saw at Nebraska football games growing up, that the line to the men’ restroom was comparatively short, while the line to the women’s restroom was remarkably long. Apparently, assuming that women need not urinate or defacate any more often than men, one notes that given an equal amount of square footage for a restroom for both men and women, because women need to use stalls and cannot pony up to the urinal trough like men, it takes a lot longer for a 165
comparable number of women to “take care of business” than it does for an equal number of men. More time creates a longer line. Now the philosophical question involved is this, should equality be based upon the amount of square footage floor space, or, alternatively, should equality be based upon usage, where, usage per hour, so to speak, is much different for men and women. Now, this does have economic, legal, and political consequences. Do women have a right to “restroom parity” where “restroom parity” can only be achieved with twice the square footage available to men. Will the women’s movement continue its agenda to convert men’s restrooms into women’ restrooms? Now, as I said before, this may seem a little silly, but to a lot of women its not, and remarkably enough, to a lot of men its not. The men don’t like having their restrooms taken away in already existing buildings. We could, of course, at this point, have a long and interesting discussion of policy regarding restroom parity, but that is not my point here. My point is that equality only means something in relation to something else or some other standard. The examples we could use are endless. But let’s think of it more philosophically. If we think of equality jurisprudentially, equality could in fact be related to social class, wealth, natural law hierarchy, race, gender, age, etc. In each case there is the implicit, that is, usually unstated assumption, that equality is geared toward some standard. So, how about
tractors, for example. Let’s take a John Deere tractor versus a Massey Ferguson tractor. One might say that two tractors are equal in terms of horsepower, but they are unequal in terms of tire/wheel size. Now, we might start a movement on behalf of the poor John Deere tractors that they are being discriminated against of the basis of color. The John Deere’s are green, the 166
Massey Ferguson’s Red, Case Tractors Orange. We might even start a protest movement trying to change the law so that we have color parity among tractors, if we could figure out which color, red, green, or orange, was the best color. Now, I’m basically a liberal on the right, as I’ve said before. But, liberal’s on the right know that equality is not enough of a principle to accomplish much, at least not on its own. There is a little more to it. 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. It just doesn’t work. If equality is the ultimate value, then, one is left with extreme relativism, which, as I have mentioned before is a logically inconsistent, and ultimately nihilistic position to take. Now, I could stop here and play it safe, but I won’t. My position is that equality is a good thing, but that it must be understood and used in the context of metaphysics, natural law, and the Ethical Matrix that I have discussed previously. We still get equality, but it is equality with some meat on the bones. There is something there to chew on, as my dog Scruffy might say. Anyway, food for thought.
CHAPTER XXIV A PROOF FOR THE VALIDITY OF CRITICAL THOMISM When someone comes up to a Critical Thomist and says, “I think Critical Thomism is a bunch of hogwash,” the Critical Thomist of course feels compelled to respond in some way. One might make the rather interesting move of asking one’s assailant to define his or her terms. So, I might respond by saying, “Hogwash, really, what is ‘hogwash?,’ how do you define it; I don’t see how I can respond to your criticism without a little more in the way of definition.” Your assailant then looks at you quizzically and responds, “You know, hogwash, like bullshit, that’s it.” Then you sit back and think of the next move. “Well,” I said, my literal understanding of bull shit is that it must come out of the asshole of a hell of a big male beef cattle, and that it stinks, literally, and that it is full of partially digested cattle food; the problem is that ‘critical thomism,’ just doesn’t line up with that definition. Critical Thomism, is, I suppose, a philosophy, and as such, in its deepest sense, incoporeal (I used the term ‘incorporeal’ here knowing that my assailant would not know the meaning of the term ‘intangible.’” The next move, of course, is to shift the burden of proof to the complainant. Here, I 168
respond simply by saying, “Well, the burden of disproving Critical Thomism is on you, what say you?” Usually the response is that there “is nothing like judment,” or there is nothing like “levels of consciousness.” At this point the Critical Thomist need only quote my Boston College article for the proposition quoted therein that in order to refute “Critical Thomism,” “one would necessarily need to refer to one’s experience, elucidate one’s understanding, and then assert some fact, rule, law, or position as true based upon critical reflection or judgment, and in so doing, thereby disprove any attack on the proposition that consciousness involves different levels or operations, and, that ‘judgment’ does not exist, let alone ‘good judgment.”
REAL PROPERTY AND METAPHYSICS When one thinks of Real Property, one typically thinks of the ground that one is standing on, or perhaps one’s home or one’s office building. From a metaphysical standpoint, however, one can think of the enfoeffment ceremony in the early period where a clod of earth with straw represented “seisin” in the land, that is, a real property or a real titled interest. While one suspects that there are no exact metaphysical principles or quiddities which can be priveledged in a discussion of real property, one can play around with some interesting concepts and produce some positive results. For example, if we take the three metaphysical principles of substance, being, and form, one can analyze real property in those terms. Substance, seen as “formless form,” can be conceptualized as that aspect of real property concerned with the concrete “stuff” of existence.123
So, the general idea of “substance,” is that
While John Locke mentions “substance” in passing, and the medeivals discussed a similar concept of “prima materia,” the early Greek philosopher Anaximander is credited with first developing the concept. One supposes that “substance” without being affected by one or more other metaphysical quiddities, would be simply the Greek concept of Chaos. 170
it is a virtually unqualified kind of stuff which is primordially physical, yet at the same time in its purest manifestation, totally formless, or chaos. Perhaps a cube or a blob of black licorice jello might provide us with a metaphor of what substance is like in its pure form. It is my position that real property, somehow, someway, participates in, and has the valence of substance. While one might get a sense of this in one’s property class, usually one does not “get it” until one has practiced real estate law, or is a real estate agent or broker. Perhaps in no other way, other than interacting with a new born infant, does one encounter the “real” of substance in this basic sort of way. To be contrasted with real prperty, as such, is of course, personal property. Real property is formed in substance, has the valence of substance, and in its pure form as material matter is simply the mud or dirt or rock of the earth. Water, on the other hand, because of its fluid nature, seems to be more in line with the metaphysical principle of being; Being having the metaphysical definition of “form of form.”124 In fact mystics or quantum physicists often refer
to the “ocean of being,” or the “quantum ocean.” Personal property, then, to the extent that it is more fluid, or perhaps more traditionally put, more movable, is identified with the metaphysical principle of being, and thus can be distinguished from real property. Transactions involving personal property typically involve the Uniform Commercial Code. As an intermediate category between real property and personal property, is the legal category of “fixtures.” A fixture is personal property which is annexed to real property, typically by some form of physical attachment, and which thus loses its character as “personal property,” and becomes a fixture, attached to real property. In this sense it appears that a fixture must have
a metaphysical appellation which is a half way house between being and substance. It seems appropriate then, to denominate the metaphysical principle which underlies a fixture as that of substancia. Substancia, or “being form,” has more structure than substance, as such, and has more of a straightforward valence. As an interesting correllative to the foregoing discussion, is the question of when a fixture becomes “real property,” rather than remaining a fixture. In an evolutionary universe, using purely evolutionary terms, classical concepts such as essence, form, essential form, and substantial form, seem to lose meaning in light of the gray blurring of statistical probability and incremental evolutionary change. However, taking into account some basic metaphysical principles relative to change, or at least the appearance of change, one can come up with a way of discussing the differences between two actualities, essences, or quiddities, without losing one’s basic underpinnings in classical philosophy. So, let’s start with this hypothetical example. Let’s say I own a two acre lot in fee simple absolute. I then have water, sewer, electrical, and cable t.v. hookups installed in the lot itself. I then have a “sectional home” moved onto the property with a crane, in three pieces. The sectional home rests on a concrete block foundation. All the hookups are attached to the home, and the home itself is bolted to the concrete block foundation. Now, before the home was attached to the foundation on the lot, it seems fairly clear that the sections of the home were personal property. Although fairly large in size, the sections were movable. Now, let’consider whether or not we have a fixture here. If the home is considered a
This is Plato’s definition.
fixture or even personal property, it will probably be considered a mobile home, and will have to be removed in accordance with local zoning regulations. Tyically courts look to whether the home has running gear attached to it, and whether or not it is permanently attached to the foundation– if there is a foundation. Now, an interesting question is whether a fixture, if it is in place long enough, can be considered to be real property, that is, part of the fee simple interest incorporated into the larger real property interest itself. So, let’s think about it this way. Imagine we start out with the fee simple two acre lot, Blackacre. Blackacre exists in classical terms as real property in substantial form (in substance). Then we have the sectional house. The sectional house, prior to attachment, exists as a substancia form (in substancia) or perhaps even in being form (in being). Now, there is more than one way of thinking about this, but this way is a good one, 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. If we choose at this point not to use terms involving statistical probability, one could come up with a classical term such as “accretion” in the first instance. An accretion to a substantial form, in my view, is simply the addition of an irrational, an arational, or a rational/logical accident, which in no way affects the substantial form of the object under inquiry. Presumably, a million accretions could be added to a substantial form without there resulting in either a substantial (real) change or a formal (true) change. A good example of this, perhaps, would be mowing the grass on lot to a height of three inches every month, rather than four inches. In classical terms, although many grass stems would be affected, this would simply be a situation involving an “accident,” or an “accidental change,” which is not “really” or 173
“truly” a “change” at all, because neither “substance” nor “form” are effected. Now, how then does one move from on substantial form to another. Such a “change” would seem impossible. In classical terms, of course, in point of fact such a change seems impossible. In classical terms of course, in point of fact real change or true change are both respectively, impossible. Either something is a particular substantial form or it is not. The trick to dealing with this situation is that just past the metaphysical concept of accretion, is that of “accession.” An accession to a substantial form is one which involves a “temporary” but substantial change to a substantial form. So, let us consider the substantial form of our two acre Blackacre lot. If we add the accident or the accretion of the parts of the sectional house, this is simply, of course, only an accidental or non-substantial change to the real property. In other words, one has simply placed personal property “a la accident” on the real property. What, however, 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, a fixture attached to the real property, albiet not yet real property, or, incorporated into Blackacre as an undivided whole of the real property itself.125 The accession represents an intermediary state between the real property state and the personal property state.
In terms of statistical probability, one could say that a irrational accidental change is one which does not involve a statistically significant statistical correlation. Once an accession has taken place, however, a statistically significant change has taken place, suggesting in statistical terms, the presence of a new “variable” which previously had not been accounted for.
Now, 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. They both exist as independent immutable substantial forms. When one has been schooled to think in terms of incremental evoltionary change and statistical probability, the foregoing seems absurd, but in classical terms it is not. At some point the Blackacre with accession becomes the Blackare of “manifested” house though a process of “accidental” incorporation and integration. In classical terms, at the time of houseless
Blackacre, Blackacre with house exists in potency but not in act.. Now, it is literally true that “Blackare with house” has always existed in act in some place in being, although not one accessible to one having the perspective of “houseless Blackacre.” It is not just a word game. Blackacre with house really exists in a parallel being universe someplace. This is why to a classicist, nothing is really new. As Plato puts it, life is simply a process of “remembering” or “re-congnizing” what is alway already there. Once Blackare with house has “manifested” relative to us, then Blackacre without house exists only in potency relative to us, not in act. In the classical universe of being, creativity is always limited by form or some other metaphysical principle. Doubtless the old property hand will now ask, well, fine with the metaphysics, but when is it that the house becomes real property and part of Blackacre, as such? One supposes that the
inquiry will involve a variety of factors such as intent, permanence, treatment of the house for tax purposes, etc. If such factors are present, then I would argue that a fully manifested Blackacre with house is present (in act). 175
CHAPTER XXVI TRINITARIAN METAPHYSICS
Metaphysics is a tough thing to think about. A lot of people think its passe or irrelevant, others simply associate it with the New Age and like it even less. Some people with particular
religious dispositions don’t like it because they, mistakenly, think that it is “theology,” rather than philosophy. For me, though, metaphysics came sort of naturally, well, sort of. . After growing up with dinasour toys and going on family fossil hunting expeditions led by my parents, where the fossils where hundreds of thousands of years old, the evolution paridigm for reality seemed the best explanation. Mom and Dad could never quite come up with an explanation of why Noah did not have dinasours in the Ark. My freshman year in college, however, I had a two semester, six hour course in 176
metaphysics using the book by Father Renard. Renard’s book was a type of Neo-Thomism which cited to Plato, Aristotle, and Aquinas, a lot, and which saw the world, and reality in general in deductive, top down, terms. Evolution, and my highschool science classes, on the other had, particularly my highschool physics class, had seen the world and reality in inductive, empirical terms. So, I guess what I’m getting at is this. The metaphysics courses my freshman year were tougher than hell, but at some point a part of my mind got the neo-thomist metaphysics paradigm, and I saw that there was a deductive explanatory perspective that made sense on its own terms. But, cognitive dissonance was still there. I just couldn’t reconcile this neo-thomistic position with modern science which included statistical probability and evolution. And, 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. The problem with neo-thomism that I saw, was that it seemed to see reality in static terms. It could not really account for new species development. As far as I could tell, in my forebearer’s generation, no one even seemed to care about reconciling this situation. I think the neo-thomists bought into an unstated literalist reading of Genesis in the Bible and simply disregarded evolution. Perhaps some went as far as believing that God or the Devil “planted” dinasour fossils on earth just to “test us.” Ironically, enough, however, one notes that in Genesis itelself, God is seen as creating the world in seven days out of the “void” of “Substance.” That is my reading of it. Suggesting of course that at least Substance as a metaphysical principle, or the Holy Spirit as an immanent theological principle was involved. Now, getting back to metaphysics, as such. 177 The evolutionary idea put forth by Carl
Sagan, that the universe began with the “Big Bang,” and that somehow there was nothing which preceded this was, and is wholly unsatisfactory to me. As Ken Wilber has argued, such an approach is essentially infantile, although such athiestic, non-metaphysical accounts of how reality began typically assert the opposite. I mean, is it like Santa Claus said, “Poof” and suddenly there was the universe? The whole thing is, and was, ridiculous. My position, is that
the Logos, or Creative Form, or Reason, is, and was the uncaused, First cause of the universe. In Biblical theological terms, this is found in the prologue to the Gospel of John, where it is stated that Jesus, as the Logos is the First Cause. In the beginning was the [Logos]; and the [Logos] was in God’s, presence, and the [Logos] was God. He [the Logos] was present to God in the beginning. Through him [the Logos] all things came into being, and apart from him [the Logos] nothing came to be. (N.A.B.) Now, when we take the prologue to John, in conjunction with Genesis, we see that there are three primary metaphysical principles, both biblically, and objectively. First, there is Substance (Formless Form), second there is Being (Form of Form), and last there is Logos (Creative Form). Now, in an earlier article, I denominated this “trinitarian metaphysic” as So, this is how it all plays out metaphysically and
follows: Being, Love and Creativity. 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)
Now, from a metaphysical standpoint, one might say that each metaphysical principle exists and operates as both an Immutable Platonic Form, as well as an Immutable Substantial Form. While one can certainly accede that the Trinity Subsists in its Primary relations eternally, one might also argue that God the Father, God the Son, and God the Holy Spirit, respectively and together, Subsist themselves as Immutable Platonic Forms and as Immutable Substantial Forms, in the Quantum Field of Substance, as such. Substance, or, the Holy Spirit, acting as the immanent principle of God in creation, God the Father, on the other hand the Transcendent Principle, and God the Son, the Mediating Principle. The Objectively Existing Metaphysical Principles of Being, Logos, and Substance, as well as others, themselves existing in The Mind of God. Now, bringing all of this back to evolution. It makes perfect sense to argue that the three primary Metaphysical Principles of Being, Love/Substance, and Creativity/Creative Form, are from a process point of view, the three primary principles of evolutionary advance, ala Whitehead, or Matthew Fox, Ken Wilber, or others. Once again, since the Immutable Platonic Forms, the Immutable Substantial Forms, and Christian Doctrine can be added to but not subtracted from, rearranged, but not changed, one sees that the nature of reality itself is relatively stable. So, it is perfectly possible that certain species of animal or plant, even planets, could, so to speak, be put on the “evolutionary shelf,” for awhile, or maybe even for ever. And, it is possible that evolutionary processes could, in an extraordinary case, produce a New Immutable Platonic Form, or a New Immutable Substantial Form. Finally, of course, when one realizes
that an “accident” in terms of classical philosophy is defined statistically, in terms of a nonsystematic divergence from a classically stated Rule, Norm, or Law, then one begins to see that 179
there is in fact no contradiction between ancient and medeival systems of philosophy involving the concept of accident, and modern systems involving statistical probability.