THE SHIP OF THESEUS

But if thought corrupts language, language can also corrupt thought.

— George Orwell

As much as I hate giving Marxism credence for anything, so much in contemporary society forces me to credit as sound and pragmatically true both the Marxist disenchantment of morality and ethics concluding they are simply ruling class ideology and the socialist Upton Sinclair’s disenchantment of aesthetics as “all art is propaganda. It is universally and inescapably propaganda; sometimes unconsciously, but often deliberately, propaganda.” The zero sum wordgame that is patrician parlor game philosophy by sleight-of-hand wording has managed to take the analytic concept of social construct and change it to social and language deconstruction. Patrician academia and intelligentsia, solely through a will to power despite never having to take apart and rebuild anything except for rearranging verbiage for purely aesthetic reasons, continue to view themselves as individual mechanics viewing the social construct engine that is contemporary society as something they need to take apart and then reassemble in their image in order to “produce real progress”. The reality of individuality, perception, and any resulting social construct of contemporary society of which we are conscious and of which we can speak are that they are one-engine, and we do not view either from outside but we are it. There are no “illusions of trust”, there is either genuine pragmatic trust or there is no trust. We can no more deconstruct society, contemporary or otherwise, and its language than an engine can take itself apart — that is without destroying itself with nothing and no one remaining to reassemble it. No more can there be spoken “individual perception” than there can be a private language. Or better yet, to paraphrase the poetic propaganda of Delmore Schwartz, contemporary society is not that of a fire in which we burn, but we are the fire. This pragmatic reality should enchant morality and ethics with more than just ruling class ideology, but it never will.

 
The analytic concept of a social construct was fairly simple before post-modernism got a hold of it. Its simplicity is one reason post-modernism was able to grab onto it and turn it to entertaining fiction. Philosophy has argued knowledge as a pragmatic social construct since the Ancient Greeks. Science was grudgingly forced to accept pragmatic truth with the advent of quantum mechanics though it is still putting up a fight. The unfortunate epistemological reality is that sense perception is unavoidably intertwined with theory expressed by language that is itself laden with theory. Thus language often decides what facts we experience, observe, and use. As Albert Einstein stated, “whether you can observe a thing or not depends on the theory which you use. It is the theory which decides what can be observed.” Better yet is the description of Ludwig Wittgenstein: “the limits of my language mean the limits of my world.”

 
Simple enough. However, these conclusions are in no way equivalent to concluding that language is reality; that deconstructing language is equivalent to deconstructing reality; or that the more words we throw into the world pot the larger the limits of the pot. No, as with any real pot, the words simply overflow. In the pot of language, they simply overflow into an aesthetic world in which meaningless words are the reality. For example, nominally, one can change a word such as “small pox” to “butterfly bumps”, “God’s Will”, and a multiple of other names to make its reality more aesthetically pleasing and this aesthetic truth may make it easier to die of it, but such nominal change does not in any way change the reality of small pox or stop it from killing you. At the other end of the pot, empirically, one can do all the scientific experimentation possible on one’s or anyone’s visual field in all possible worlds viewed but in none of them will one ever find the inner limit or the point from which its contents are seen because the existential observer or individual consciousness is it; without the consciousness of the observer there is no visual field. The meaning of words and wordgames are not simply their use but their usefulness to that use in the activity of life.

 
Some would argue that deconstruction is to words what algorithms are to numbers and that any deconstruction as with algorithms is only as good as the premises or assumptions that go into them. Problem is that algorithms do not care about what premises are used nor what conclusions are reached nor how. A radical feminist as well as a radical sexist can equally use an algorithm to find patterns in purchasing by women on amazon and get the same results if they use the same premises. If the results are not the same or do not add up, so to speak, they know their premises are different, can examine them to see the difference, and can do whatever is necessary to get the same or different results. There is no such thing as immoral or unethical numbers in either the premises, method, or conclusion of an algorithm; any decision as to whether algorithms, their premises, or their conclusions are immoral or unethical is based on normative decisions that are outside the algorithm. Deconstruction cares about the premises, the results, and the deconstruction; they must all be moral and ethical — whatever that means. A feminist and a sexist using deconstruction to perceive the buying choices of women on Amazon is a nonsensical concept because the usefulness of deconstruction of the buying choices of women on Amazon would be to show the effects of sexism. It would be probably considered sexist for a sexist to do deconstruction of the buying choices of women on Amazon because, supposedly, their only purpose would be to use women’s choices for a sexist purpose. Deconstruction at its best is the art of fiction and thus the propaganda of fiction. At its worse, it is simply propaganda. “All art is propaganda, but not all propaganda is art.” – George Orwell.

 
The easiest way to understand what is going on is not by spoken or written language that by logical necessity is discussed by spoken and written language thus creating the “this sentence is false” logic problem used by post-modernism to convolute reasoning and logic to magnify the problem instead of clarifying and understanding it. Rather, the clearer path I submit here is to contemplate perception by using two images used as thought experiments by the philosophers Ludwig Wittgenstein and Norwood Russell Hanson known as the Duck/Rabbit and the My Parisian Wife/Mother-in-Law:

duck-rabbit

2000px-My_Wife_and_My_Mother-In-Law_Hill.svg_-850x1172

 

The empirical reality of these two drawings is the same in all possible worlds in which they exist. The perception of them is not. If you have experience with ducks or rabbits and the English words for that experience, you will see either a duck or a rabbit in the above left-side image when the words “duck” or “rabbit” are spoken to you. If you only have experience with one or none, you will only see that one or none. If you have experience with some common published images of some early 20th Century aging Parisian women and the English words for that experience, you will see either a young Parisian woman or an older Parisian woman in the above right-side image when I speak the words “My Parisian Wife” or “Parisian Mother-in-Law” and so forth. In either case, it is the acts of the observer responding to the words spoken that give meaning to the words spoken. In the right-side image, I may have to add the words “view the chin as a nose” or something similar in order to get an observer to respond or act on the “Parisian Mother-in-Law” but it will still be you as the observer by your acts and responsive activity that gives meaning to “My Parisian Wife/Mother-in-Law”.

 
Are there any sense experience regarding these images for which social construct words do not exist or only exist in some language but not in our language thus limiting our reality? What we perceive of these images is a seamless fabric of sense experience and social construct language. As with all meaning, the meaning of these images or words created by the writer or artist is given by the observer. So, how does contemporary society seamlessly acting as both writers and observers produce “real progress” in the limits of the world of these images?

 
The patrician popular option is deconstruction of the Duck/Rabbit which here would mean deconstruction into a duck and into a rabbit — or into a duck and non-duck; rabbit and non-rabbit; or similar random and arbitrary distinction. Then, by deconstruction we would go on to convert the distinctions into words stating a dialectical opposition such as for example: from either a duckism or rabbitism perspective, we would respectively theorize about duckism or rabbitism concerns for duck rabbit equality; and then we investigate by deconstruction any rabbit-centricism or duck-centricism. We can also conduct the same type of deconstruction of the wife-ism and the mother-in-law-ism from the second image.

 
However, such deconstruction misses the entire point of this wordgame and its meaning. The duck/rabbit may seem to be a duck or may seem to be a rabbit or may seem to be whatever distinctions for which you have words but it is not; it is a Duck/Rabbit. The Parisian Wife/Mother-in-Law may also seem to be a Parisian wife or Mother-in-Law or may seem to be whatever distinctions for which you have words, but it is not; it is a Parisian Wife/Mother-in-Law. The artist drew them as a Duck/Rabbit and a Parisien Wife/Mother-in-Law. As Robert Di Niro said in The Deerhunter, “This is this. This ain’t something else. This is this”; in the real world, these images are this and not that. This is the only way we can know the intent of the artist, by what they drew. Deconstructing either of them to something they are not is not progress or a means to creating or progressing the present social constructs of these images into a new social construct reality. Such deconstruction only tells us at best what we already know but in many more words or, worse, creates ignorance of what we know using as many words as possible. If the artist wanted to construct a duck or a rabbit or just a wife and a mother-in-law, they could have done so. If your conclusion is that they could not have done so, than the path to progress is to construct what prevented the artist from doing so not from making a that into a this simply for aesthetic reasons. At best deconstruction of any language if done using the necessary formulaic verbiage serves as aesthetically pleasing fiction for submission to the Social Text and thus for self-promotion but would have no pragmatic value which is the only value that matters for social construct progress. Progress for most contemporary society observers means progress naturalized to science and thus something progresses if it not only works but works better.

 
Real progress for social construct purposes can only be made by having new experience to associate with these images thus requiring new words to describe them empirically not just aesthetically. If we travel to another planet and see for the first time something we call a “gavagai” and then notice this “gavagai” looks the same as the Duck/Rabbit, the nominal use meaning of the Duck/Rabbit would remain the same but the sense experience usefulness of it would change to Gavagai or Duck/Rabbit/Gavagai. If historical records reveal Parisian women did not dress as drawn in the above image but only women from Venice did, the sense experience usefulness meaning of the image would remain the same but its nominal use will change to Venetian Wife/Mother-in-Law. Simply changing or multiplying the words associated with these images without changing any of the sense experience or pragmatic theory associated with them does not change their perception in anyway nor the limits of my world, it just clouds it. Why the need to cloud perception? None, other than a will-to-power need to enjoy the clouds, or more likely, because the clouds enforce the power of those generating clouds.

 
Going on to the words “individual perceptions”, when dealing with the “individual” or self-identity aspect of perception, for no other reason again but that of patrician lordliness, the social construct nature of meaning, words, and language for this set of words are suddenly dogmatically assumed to represent not social constructs but a thing-in-itself that individuals experience privately then discuss by translation into social construct language. Without doubt, the existential “I am” of the existential “I am therefore I think” exists before language and exists in all possible worlds in which it exists but it does not logically follow that this “I am” once expressed in language such as by “I am” is a thing-in-itself that is not given meaning by social construction like all other words and wordgames. As with all words, it is the observer who defines the meaning of “individual”, “self-identity”, and “I am”. For any language to express meanings concerned with “producing real progress” not just generating aesthetic verbiage, it must be concerned and express the meaning of truth defined pragmatically. In such language, regardless of how it may damage our egos, the reality is that if you want to find or express yourself or give meaning to the words “individual” and “self-identity”, the only way to do it is by letting others name you and give you your identity. Though this concept is usually contemplated by the abstraction of Wittgenstein’s Private Language Argument, we can see it at work in concrete form in contemporary society with the problem of Rachel Dolezal and the refusal of post-modernism to deconstruct her problem.

 
Rachel Dolezal is the former leader of the Spokane, Washington, NAACP chapter. She is the former leader because the NAACP discovered she was white: both parents were listed as Caucasian on her Montana birth certificate and all her known ancestors had a completely Caucasian descent of Eastern European origin. However, she “identified as black” and felt constrained by the “biological identity thrust upon her”; “[s]he said she had identified as black from the age of five but had the white identity ‘thrust’ upon her until she was strong enough to embrace her true self.” She attended and graduated from Howard University, and she eventually admitted she was born “white” but considered herself “black”. Clearly, she did not consider being “black” only a sense experience issue of skin color but a social construct that dialectically contradicted or opposed her private “perception” of who she was. Applying the same post-modern social construct reasoning of deconstruction that is applied to everything else from age to sexual identity, there is no reason why she should not be able to call herself black or any social construct founded upon skin color, but it is not going to happen now nor any time in the foreseeable future. It will not happen simply because the will-to-power aspect of the social construct that is post-modernism does not want her to do it. Will-to-power will always trump reason.

 
No matter how Dolezale changes our sense experience of her and regardless of the existential purgatory in which she may in fact reside because of Despair and lack of Authenticity, she will never be perceived as Black. If she undergoes successful DNA engineering to actually make her skin the blackest of black (a technique that will no doubt be available in the near future), this will only turn any perception of her as a harmless eccentric to a racist putting on black face. She could trace her ancestry far enough back so as to find multiple slave ancestors of different race and ethnic backgrounds because we would all be able to find them in our ancestry if we wanted given the omnipresence of slavery in all history. However, such a tracing would make matters worse for her; she would then be perceived as a racist guilty of cultural misappropriation. Regardless of her individuality, her self-identity, or her life experience, she will always be perceived as White; she was born White and will die White — unless post-modernism or contemporary society allows her self-identity to be Black.

 
Abstractly, the fact that there is no private experience of which we can speak and no private language expressing it that can be translated into any social construct language is analyzed by Ludwig Wittgenstein’s Private Language Argument often exemplified by contemplation of the statement “only I know my pain”. It is existentially true that only you know the existential nature of your “I am”, but unfortunately the unpleasant self-effacing reality is that only others know your pain. “Pain” can only be given meaning by observable acts: screaming, clenched muscles or face, blood, ripped muscles, broken bones, taking aspirin, squeezing a ball or biting a bullet, a rising manometer resulting from the squeezing of an air ball; picking a number on a pain chart, and so forth. Though it is existentially true that one can give any or whatever existential meaning one wants to “pain” or any word for that matter, for this same existential reason it is also true that one cannot give any purely private meaning to “pain” or any word because there would be no way to differentiate correct or incorrect meaning — the concept of meaning would become nonsense just as in any wordgame in which contradictions are true everything is true or false however you want it; in a private language the word “meaning” becomes meaningless in anyway but aesthetically. In any imagined private language with private meanings, the concept of meaning would be nonsense because the solitary individual speaker of the private language of private experience would have no way to tell whether or not a word spoken at one time has the same meaning as that same word spoken at any other time. The same would be true of any speakers or observers of any language in which private meanings and a private language are real. Thus, it is not unfortunate but fortunate there is no such thing as a private language speaking about private sense experience, if there were, there would be no language just gibberish.

 
This leads to Wittgenstein’s famous conclusion “whereof one cannot speak thereof one must be silent”. I wish this would be an absolute truth so as to put some type of lid on post-modernism and its need to deconstruct everything by verbiage for no reason other than aesthetics and self-promotion, but fortunately for social construction purposes it is not. As even Wittgenstein described it, language is a “form of life”; it has words but by seamless necessity it also has action. We must be silent about that of which we cannot speak but we can still act with it and upon it. It is acts and the resulting struggles between different acts that give meaning to the new words we need to create to deal with the struggles. This leads me to the Ship of Theseus — also known as Theseus’s Paradox — a thought experiment exemplifying among much else the substantive difference between social constructs as they exist in reality and social deconstruction existing solely in the reality of patrician aesthetics and the associated ethics that result from each.

 
This Paradox goes back to ancient philosophers such as Heraclitus and Plato and is present in popular form in Greek legend. It goes as follows:

As a result of storms and other damage and decay, the crew made up of Theseus and the youth of Athens returning from Crete on the Ship of Theseus as it was named by its owner had to replace each plank and all other parts and pieces of the Ship of Theseus so that upon their return to Athens all of the pieces and parts of the Ship of Theseus that it had when it left Crete had been replaced. Is the Ship of Theseus that arrived in Athens still the Ship of Theseus that left Crete?

Centuries later, the philosopher Thomas Hobbes introduced further facts to this thought experiment to incite further contemplation:

The original planks and all other replaced parts and pieces were thrown overboard and floated onto a deserted island where a group of castaways reassembled everything into their original positions in the same design and built as the Ship of Theseus and sailed to Athens. Which ship, if either, is the original Ship of Theseus?

 

Sitting on the pier contemplating the Ship of Theseus gives much to contemplate and upon which to generate a library of aesthetic verbiage. No doubt such deconstruction would be valuable to the owner, the insurance company, and to the lawyers arguing over who ought to be the owners of which ship or over what ships ought to belong to whom or to anyone. The former contemplation has been going on among philosophers for a couple of millennia and no doubt will continue in the guise of post-modern deconstruction serving only to negate the philosophy of language progress made on contemplating this Paradox by repeating the same philosophical conclusions of the last two millennia but adding more and more words. The litigation will stop within a few years when the judge in the secrecy of the judicial chamber flips a coin to give the ships to one party or another and then issues a decision not mentioning the coin toss.

 
Instead of deconstruction that gives meaning to the Ship by what observers not on this Ship argue it seems to be, let us take it as it is and perceive the social construct Ship of Theseus as a “form of life” constructed by the society that is the crew — not as a construction by spectators on the pier or in the courthouse but by its crew. For the crew, regardless of which crew of which Ship, there is only one Ship of Theseus even though nominally and empirically there are two. For any given crew, it is this Ship and not that Ship that is the Ship of Theseus.

 
Foremost, the Ship is a construct of the struggles between the crew and the benign indifference and often outright antagonism of the sea and its universe to the crew’s existence. This struggle involved both mental and physical work involving everything from the complexities of mathematics and astronomy in the navigation and the art of judging wind and waves to the purely physical sweaty backbreaking work of dealing with leaks, decay, and seasickness; it involved both the panic of potential death and the mental drudgery of boredom and banal work. It involved every misery that life has to offer. In this struggle, identity of the crew was as oarsmen, boatswain mates, riggers, quartermaster, seamen, and swabs — identities all constructed by the crew or prior crews to win the struggle. We do not view our identity as a member of the crew as distinct from the identities of those who came before us in the struggle because we know our lives and identities were built on their lives; all riggers were and are riggers and so forth. If our Ship is to progress to a future Ship with a crew made up of seawomen, seapersons, oarspersons, machinists, quartermistresses, electricians, electronic technicians, or whatever new social construct identities are created to assure survival of the Ship, this future must also be constructed seamlessly upon the prior identities. At reunions, we hug and remember by ceremony those who came before us, both Honored Dead and dishonored dead; all are equal in death. We hope the best for those that follow us in life.

 
The social construct of the crew is not made up of “illusions of trust” but the actual pragmatic trust required for survival. To have deconstructed the Ship physically at sea would have meant death for all; to deconstruct the Ship by words would not mean death for the Ship but would for the crew. A crew made up of individuals speaking a private language of private identities is a crew speaking gibberish unable to create meaning for any wordgames including those required for struggle and thus is a crew that will not survive its struggle with the indifference of the universe and its sea trying to kill both. The crew’s survival depends on seamless social construction building the future on the past through the present. It is this social construction that would defeat Hume’s Power Paradox and allow the many of the plebeian crews to defeat the few patricians on the pier and in court enforcing their deconstruction upon the Ship to maintain their patrician power. As analytically described by the philosopher William James:

A social organism of any sort whatever, large or small, is what it is because each member proceeds to his own duty with a trust that the other members will simultaneously do theirs. Wherever a desired result is achieved by the cooperation of many independent persons, its existence as a fact is a pure consequence of the precursive faith in one another of those immediately concerned. A government, an army, a commercial system, a ship, a college, an athletic team, all exist on this condition, without which not only is nothing achieved, but nothing is even attempted. A whole train of passengers (individually brave enough) will be looted by a few highwaymen, simply because the latter can count on one another, while each passenger fears that if he makes a movement of resistance, he will be shot before any one else backs him up. If we believed that the whole carful would rise at once with us, we should each severally rise, and train robbing would never even be attempted. There are, then, cases where a fact cannot come at all unless a preliminary faith exists in its coming.

(Parenthetically, for the intellectually curious, though pirate ships were all eventually defeated by the monopoly on violence that is the law, it is interesting reading to note and contemplate that pirate ship crews were actually the first pragmatically successful democracies in the West. See “The Invisible Hook, The Hidden Economics of Pirates”, Peter T. Leeson (Princeton University Press, 2009) )

 
Unfortunately, the Ship is also a social construct of the struggle between our social construct crew identities and our own existential struggle to survive within these struggles as a unique “I am” of which whereof we cannot speak. This latter struggle is always forgotten in the heat of the struggle with the universe and its sea but always returns with the calm. It is this struggle existing simultaneously with the struggle against the universe that leads necessarily to social construct identities of crew members as moral, immoral, ethical, unethical, and on to master-at-arms, gunner, sniper, and weaponeer. It is also this struggle that prevents the pragmatic reality of morality and ethics from being anything more than just ruling class ideology as Hume’s Power Paradox returns to do its magic. While the crew doubts and fights among themselves to establish their own identities of which we cannot speak, there will always be the few of the Orwellian Inner and Outer Parties who by the natural order of the physical and metaphysical universe will be able to take advantage of this latter struggle to create social constructs in their image for no other reason than because they can. At which point, they are no longer James’ “highwaymen” but the ethical Dorian Gray’s of all genders that make up the Powers-that-be of the ultimate ethics with a monopoly on violence called the law. “And the party on the left, is now the party on the right … Don’t get fooled again, no, no”. (Similar to being in a fight club, a clear sign of being in either Party is denying either Party exists.)

 
For those of us not in either Party and thus denied its social construct power of deconstruction to achieve power, how do we maintain, construct, and progress further the material progress that has created our Technological Society without getting fooled again into losing what little power we do have? For “producing real progress”, this is the question with which we must be enchanted and that we need to answer by social construction not by deconstruction.

 
One thing is for certain. The poser existentialists who out of fear of nihilism and motivated by a will to power, who need to be gods, and who have converted existentialism into a patrician parlor game deconstructing words by multiplying them into gibberish as if they were deconstructing reality to create a new reality are not the answer. Plebeians have made history and whatever historical progress there is in history has happened not by verbiage but by social construct pragmatic action in struggle. In the struggle they were unified not in an individual perception of reality but in a social construct perception of reality. All history is class struggle. Take out the class and the class struggle and history is over:

In that everyone wants equally much to be recognized by everyone, the fight for life will cease only with the recognition of all by all, which will mark the termination of history. The existence that Hegelian consciousness seeks to obtain is born in the hard-won glory of collective approval.
― Albert Camus

Post-modernism as patrician distortion of existentialism has already taken or is seeking to take away and destroy all options for plebeian unity based on family, ethnicity, gender, race, religion, community, neighborhood, and everything else that historically gave plebeians unity in their struggles with patricians. If it succeeds in deconstructing the struggle, there will be no progress because there will be no history. Deconstruction seeks to make plebeians into unisex, classless, homogeneous, culturally stagnant, one color, paper-cutouts of each other living solitary lives of temporary wage slavery jobs except for the handouts they get from Big Brother and perhaps for the companionship of a dog or cat. In return it does not even grant us the passionate hate and anger of a Meursault opening his heart to the benign indifference of the universe and wishing to share his passion with the crowd viewing his execution because they will all soon join him in death. No, rather, in return deconstruction gives us only the loving surrender of a Winston to the timeliness of power as an end itself accepted with a tear in one’s eye as one bullet enters the head for a peaceful, lonely, and passionless death.

 
There must be social construction not deconstruction to maintain both the struggle against the universe and the struggle that is history and progress in history. How to maintain both in a contemporary society whose patricians have lost sight of reality to live in the illusion of aesthetics so as to use their will to power to create a ruling class morality and ethics that seeks to deconstruct and thus destroy both the struggle and history is the open question. I do not have an answer at present but I am leaning toward nihilism.

 

REMINISCING ON YANIA V. BIGAN, MORT THE TORT, AND CLASS IDENTITY AT HARVARD LAW SCHOOL

After 25 years of practicing law in the trenches, I have the fortune or misfortune of having the free time to look back and try to make sense of those years and of my random and arbitrary graduation from a school that I had no business ever attending: Harvard Law in 1988. As the first in my family to speak English, be literate, graduate from grammar school, high school, and then college after six years in the military, acceptance to Harvard Law School seemed at the time to be some type of gift from the Fates. What a fool I was, still am. In this essay, I look back to one of only approximately two events I remember of my IL year consisting of when I was first called upon in class to do an analysis of a case. The case was Yania v. Bigan, 397 Pa. 318, 155 A.2d 343 (1959) in the Torts class of Professor Morton Horwitz known to us at the time as Mort the Tort. I had the pleasure of recently visiting Professor Horwitz, who is retired, at his office in Langdell to discuss the event as I remember it and to get his take on it. I remember it because it was my first step to the realization that if Harvard, the Ivy League, and the Powers-that-be actually want progress in the law they have got to stop pretending they want diversity, and furthermore that the presently called “disenfranchised” from the law have to stop wanting to be enfranchised. Neither of these pretend desires are going to happen nor should they, the soul of the law is not the law but its outcastes including the lawless. As the working class hero Albert Camus said, “The slave begins by demanding justice and ends by wanting to wear a crown.” To stop the cycle, one must not only eliminate slavery but also the demand for justice; as any experienced trial attorney will tell you, “there is no justice, in or out of court” (Clarence Darrow). Let religion be the opium for the people if they want and if there is to be any; the law is not about justice, it is about maintaining law and order — to delude ourselves into believing otherwise is to surrender one’s freedom to the monopoly on violence that is law.

 
During my first year, first semester at HLS there was a required Torts class taught by a professor Morton Horwitz whom we called Mort “the Tort” Horwitz. He was and probably still is a part of the Critical Legal Studies philosophical movement in law schools that maintains in substance that the logic and structure attributed to the law is a social construct of the power relationships of the society; that judges act as legislators; and that the law is more often than not what a judge says the law is on any given day. Having come to law school with a philosophy degree from the University of Illinois with a concentration in the philosophy of language, this view did not strike me as very radical but at the time it was considered radical at Harvard and at law schools in general. Practicing law confirmed this existential view of the law to be a foundation assumption among trial attorneys, so much so that it is not even discussed in the same way sailors at sea have no need to discuss being surrounded by water. About the only ones who contest or hide this assumption are non-trial and inexperienced attorneys, law professors, judges, legislators, and politicians who have either deluded themselves into believing otherwise or who fraudulently maintain the appearance of believing otherwise. At the time, he and a bunch of other professors were into cross-teaching the various mandatory first year subjects of contract, torts, criminal law, and civil procedure. We were supposed to learn how everything was related not just treat them as separate subjects. Early in the semester when, unlike second semester, I was still going to class and reading casebooks, one assigned case by Professor Horwitz to read and analyze was Yania v. Bigan, a case written by the Pennsylvania Supremes with facts as follows:

On September 25, 1957, John E. Bigan was engaged in a coal strip-mining operation in Shade Township, Somerset County. On the property being stripped were large cuts or trenches created by Bigan when he removed the earthen overburden for the purpose of removing the coal underneath. One cut contained water eight to ten feet in depth with side walls or embankments 16 to 18 feet in height; at this cut Bigan had installed a pump to remove the water.

At approximately 4 PM on that date, Joseph F. Yania, the operator of another coal strip-mining operation, and one Boyd M. Ross went upon Bigan’s property for the purpose of discussing a business matter with Bigan, and, while there, were asked by Bigan to aid him in starting the pump. Ross and Bigan entered the cut and stood at the point where the pump was located. Yania stood at the top of one of the cut’s side walls and then jumped from the side wall–a height of 16 to 18 feet–into the water and was drowned.

Yania’s widow, in her own right and on behalf of her three children, instituted wrongful death and survival actions against Bigan contending Bigan was responsible for Yania’s death. Preliminary objections, in the nature of demurrers, to the complaint were filed on behalf of Bigan. The court below sustained the preliminary objections; from the entry of that order this appeal was taken.

 

The attorney for the widow argued the Defendant Bigan had a duty to rescue Yania because it was his land and it had a dangerous condition. The Defendants argued Yania made his choice and Bigan had no duty to rescue someone from their own mistakes. The court agreed with the latter. What the last paragraph means is that the case was dismissed outright without ever going to a jury trial — something that happens very often in modern times; much too often in violation of any pragmatic sense of justice based either on the Constitutional right to a jury trial or on any democratic sense of justice but I digress. (Despite popular opinion to the contrary, Americans were much more litigious and they got and there were many more trials by a multiple factor in the 19th Century and early 20th Century than they get now).

 
Next day, Mork started going around the room asking for an analysis of this case. Even back then, there were plenty of available summaries of the case in commercial and student printed handouts. On the internet now, there are hundreds. They all deal with what is supposedly the substance of the case: the extent and nature of a legal duty of care; a duty to rescue; and the slippery slope of creating too many duties that become tyranny over private lives. After 2 – 3 students that he called upon gave the usual formulaic speeches about these issues, apparently, Professor Horwitz did not get what he wanted and kept going around the class. He then called my name. I made the typical working class mistake of being honest and forthright — never a good idea in law nor in the upper class of any society. I told him essentially as follows that is the same conclusion I make now of the above facts:

It does not take three people to prime a pump. There is no need to go above a pump to prime it or work on it — especially not 16 – 18 feet above it. If there is a problem with the suction, you pump the suction hose out of the water and clear it. There was no reason for someone to jump into eight to ten feet of water from 16 to 18 feet especially someone who apparently could not swim. Or, even if they could, no way to climb out. Given that these were hard men struggling in a hard business involved in some type of business dispute, there is a good chance this was a set-up. Thanks to the law and Bigan and Ross being smart enough to use it, they probably got away with murder.

I also said this humorously with a small laugh as if it were funny. It is an unfortunate characteristic of the working and other lower classes that they will laugh at almost anything — beats crying. My years in the military did not improve on my classless sense of humor.

 
Silence in the room. Professor Horowitz however apparently finally got what he wanted, looked at me for a few moments, then in silence, went to his book and onto the next case. There are libraries of material analyzing the issues presented by the other students. You will not find my comments anywhere, then or now as far as I can discover. I did not see the other problems discussed by the other students; not because I am a working class idiot as would be the usual assumption for not thinking with upper class Doublethink, but because I know there are no solutions. Any solution would create not only a multiple of known problems but, since we cannot test any solution, there would be a butterfly effect of a possible infinite number of unknown problems. How would I have decided the Yania case, if anyone had asked which they didn’t? I would solve it in the way many Western courts since the Romans have decided it: let the community decide; let it go to the jury and let them decide. There was obviously a problem in the facts both individually and socially; a man died when he could have been saved. Let his peers and the peers of the Plaintiffs and Defendants listen to the facts and have them decide a solution for the community. Is that not what democracy and a jury system are all about? Having lived a life of chaos, anarchy, and lack of control and the risk associated with such a life, I saw no problem with risking further chaos and anarchy. I saw no reason to waste time and resources on Doublethink about an infinite number of possible solutions none of which could ever be proven to be the best or even a good solution just so that a solitary Outer Party judge can then at some point randomly pick one so as to use the monopoly on violence of the law and its Doublethink to force that solution upon others — to force them to agree by imprisonment if need be.

 
I lost nights of sleep agonizing over my answer. Could not understand how I could have been so clueless and proven myself as clueless before an entire class. What I did not understand at the time and that took me years to understand is that the last thing any upper class lawyer, judge, or lawgiver wants to give up is the power to make a world in their image or at least the power to maintain the world in their image. Despite its pretensions to the opposite, the last thing it wants is freedom. Having a natural instinctive ability to manage and enforce a monopoly on normative power is the defining characteristic of a patrician class and thus of its law.

 
With time I now have on my hands, I emailed Professor Horowitz recently and made an appointment to see him to discuss the Yania case and my memory of these events. He graciously gave me an appointment and I went. To my surprise, he agreed with my analysis and told me that is why he often did not bring up the case in Torts because it was more of a criminal law issue. Though after twenty-five years of trial work, I had long ago gained the confidence to know my analysis was right despite no one telling me so, it was good to hear that I was not totally clueless as a 1L. We both agreed that I should have seen him in his office hours to discuss the events and taken care of any doubts I had about my being at Harvard 30 years ago, but he was also well aware enough of the reality of Harvard Law to know that usually the disenfranchised are the last to use such an option, if they use it at all,  because we usually feel we “are not deserving of it”. An accurate description of my attitude half of the time at Harvard; the other half was spent thinking how much better I was than it and its spoiled patricians — thus I only made matters worse. I was never able to get the natural instinctive ability to manage and enforce a monopoly on normative power because it is a natural instinctive ability that I was long pass the age of catching from my parents, social group, or whatever it is in life that the Fates use to grant this gift. I eventually graduated Harvard Law with a C+ average despite never going to class for most of my last two years and cycling between these two attitudes so much that I probably could have been diagnosed with paranoia or some similar mental problem in addition to severe depression. If not for Hemenway Gym and its pick-up basketball games, I would have gone nuts or been suicidal long before graduation.

 
Despite the misery of lacking the gift of power over my life and that of others, ultimately I am glad I never have gotten it. I spend 25 years in trial work; I was involved in about 1000 cases involving both criminal and civil work; and handled a little more than 100 cases to a trial verdict. I have tried or handled everything from age discrimination cases to lender liability to rape criminal defenses and onto undertaker liability cases. I took millions of dollars from insurance companies and other Powers-that-be and gave it to my clients and usually 1/3 to myself. All of this means nothing. To the Powers I am still a dumb working class kid from the far west side of Chicago with no credibility and who obviously cannot be trusted. Doubt if most people I meet even believe I graduated from Harvard Law when the issue of my Harvard degree comes up in conversation.

 
These facts used to bother me, but I have finally realized they are right: they should not trust me nor have confidence in me. I am their worse enemy. Taking me or anyone from a working class background that is smarter than they are and giving them the credibility and the power to actually do something in life would be the greatest danger to class structure there could be because we would actually change the structure of society. The Fates gave me HLS just to teach me this lesson the hard way. As George Orwell wrote in 1984:

As compared with their opposite numbers in past ages, the new aristocracy is less avaricious, less tempted by luxury, hungrier for pure power, and, above all, more conscious of what they were doing and more intent on crushing opposition. This last difference was cardinal. By comparison with that existing today, all the tyrannies of the past were half-hearted and inefficient. The ruling groups were always infected to some extent by liberal ideas, and were content to leave loose ends everywhere, to regard only the overt act, and to be uninterested in what their subjects were thinking.
..
In principle, membership [in the Party] is not hereditary. The child of Inner Party parents is in theory not born into the Inner Party. … . Nor is there any racial discrimination, or any marked domination of one province by another. Jews, Negroes, South Americans of pure Indian blood are to be found in the highest ranks of the Party, and the administrators of any area are always drawn from the inhabitants of that area. … Its rulers are not held together by blood-ties but by adherence to a common doctrine. It is true that our society is stratified, and very rigidly stratified, on what at first sight appear to be hereditary lines. There is far less to-and-fro movement between the different groups than happened under capitalism or even in the pre-industrial age. Between the two branches of the Party there is a certain amount of interchange, but only so much as will ensure that weaklings are excluded from the Inner Party and that ambitious members of the Outer Party are made harmless by allowing them to rise. Proletarians, in practice, are not allowed to graduate into the Party. The most gifted among them, who might possibly become nuclei of discontent, are simply marked down by the Thought Police and eliminated. But this state of affairs is not necessarily permanent, nor is it a matter of principle. The Party is not a class in the old sense of the word. It does not aim at transmitting power to its own children, as such; and if there were no other way of keeping the ablest people at the top, it would be perfectly prepared to recruit an entire new generation from the ranks of the proletariat. In the crucial years, the fact that the Party was not a hereditary body did a great deal to neutralize opposition. The older kind of Socialist, who had been trained to fight against something called ‘class privilege’ assumed that what is not hereditary cannot be permanent. He did not see that the continuity of an oligarchy need not be physical, nor did he pause to reflect that hereditary aristocracies have always been short-lived, whereas adoptive organizations such as the Catholic Church have sometimes lasted for hundreds or thousands of years. The essence of oligarchical rule is not father-to-son inheritance, but the persistence of a certain world-view and a certain way of life, imposed by the dead upon the living. A ruling group is a ruling group so long as it can nominate its successors. The Party is not concerned with perpetuating its blood but with perpetuating itself. Who wields power is not important, provided that the hierarchical structure remains always the same.

 

It is fine to take my classmate Michelle Obama and make her a corporate attorney; to take a Barack Obama or a Hillary Clinton and make them President and Secretary of State or whatever and give them the power to actually make a difference because the Powers know that they will not really make a difference nor do anything to substantively change either the Inner or Outer Party — they will never change the Powers or their power because they are the Powers. It is fine to allow a J.D. Vance to attend Yale and write a book on hillbillies in which he makes them sound like the idiots rich people think they are so that he can become a rich man’s poor friend because in the end they know he is not a threat to them. Just as appointing anyone of them to a judgeship will not really change anything. In the end, the same people and social groups that pulled the strings before them will pull the strings after them. Sure they will talk about sex, patricians love to talk about sex. It is also fine for them to talk about race as long as the rich white people who happen to be black such as the Obamas do not make any real trouble which they never will and as long as white and black poor people keep fighting among themselves through the racism generated by the rich white folks and their black friends as a means of control. It is also great to talk about gender equality as long as it keeps the poor of any gender poor — especially their mothers.  It is great for J.D. Vance to talk about the poor as long as he serves the rich to keep them poor. In the end the party on the left will always become the party on the right once in power. The law has never been on the right side of history; it never will be. The law has never helped the oppressed; it creates them. The law is not a gunman with a gun to your head but a mob of gunmen with a gun to your head.

 

Plebeians have made history and achieved whatever justice they could in life not through the law but despite of it. The law even in its patrician distortion of existentialism it calls post -modernism, structuralism, critical legal studies, critical race studies, or whatever it aesthetically creates to hide what goes on in the trenches has already taken or is seeking to take away and destroy all options for plebeian and working class unity based on family, ethnicity, gender, race, religion, community, neighborhood, and everything else that historically gave plebeians unity in their struggles with patricians and their law — it is their law and always will be regardless of how they try to hide it. The law seeks to make all of us into unisex, homogeneous, culturally stagnant, one color, paper-cutouts of each other living solitary lives of temporary wage slavery jobs except for the handouts we get from Big Brother and perhaps for the companionship of a dog or cat. In return it does not even grant us the passionate hate and anger of a Meursault opening his heart to the benign indifference of the universe. No, rather, in return the law gives us only the loving surrender of a Winston to the timeliness of the power of law as an end itself accepted until we have a peaceful, lonely, and passionless death.

 

Hope for any happiness and justice in this life without selling one’s soul to power, even momentary, for the working class is outside of the law not in it. To any student presently at HLS from a working or lower class background: get a joint degree with the business school, transfer to an engineering school, get a science degree, or do something to make connections and to get an education other than law unless you are willing always to be a rich person’s house servant. The latter is not a bad life as the likes of a J.D. Vance, Deval Patrick, the Clintons, and the Obamas establish.  However, if you are willing to do that, do it wholeheartedly as they did: sell your heart and soul to the upper class and do not hold back. If there is a hidden desire to save your soul by infiltrating them and then revealing the workings of power, you will not make it. Bigan got away with murder without the law noticing because he wholeheartedly gave his intelligence and attention to beating the law and was lucky. Such victories for plebeians are few and far between and are getting fewer and rarer as Technological Society gives law even more power and reduces our luck. The only hope for plebeians now is the only hope we have always had before law started to cloud our judgment: ourselves organized into families, unions, clubs, crafts, even mafias, or any other association that gave us power to act in unison outside the law so that it must notice and appease us to stay in power.

 

EXISTENTIAL PHILOSOPHY OF LAW

A full copy of this essay is available at Academia and at SSRN.

A slave begins by demanding justice and ends by wanting to wear a crown. He must dominate in his turn. — Albert Camus, The Rebel

This essay is a continuation of my closing thoughts in Why Tolerate Law available on the attached Blogroll. Blind loyalty to patrician Hegelian reason and state worship in the form of law as meaning in life is different in degree but not in substance to the theocratic state worship of the East and is a surrender to cowardice not an existential leap from it.

This is a contemplation of the meaning of the universal “law” in its modern sense of nonscientific law: in the universe of language discourse that results in decisions of legality and illegality. There seems to be more to the meaning of “law” than simply a set of rules. For one, calling something a rule instead of a law requires knowing the difference between rules and laws. Second, unlike most sets of rules such as games, one can leave the game to make other games. This option does not exist with law; if one leaves the law or legality, one is either in lawlessness or illegal. I will further contemplate whether this universal can be naturalized to scientific law and seek to determine whether such meaning and naturalization are or can be an existential philosophy of law. This contemplation will require contemplating the attributes of existentialism as they exist in plebeian lives that includes nihilism and not solely from the more popular academic patrician existentialism that excludes nihilism. I do not want this contemplation and any existential philosophy of law to be just another academic -ism, it was have pragmatic value for the plebeian portion of the class struggle that is history.

Existentially, life will always be meaningless and whatever social meaning it has will be forced upon the many by a few. For those few with the power to make their meaning in life the meaning of the group’s life, existentialism gives their will to power freedom to act and makes their struggle existential and aesthetically beautiful. However, for the many upon whom the few force their meaning, existentialism not only fails to give their will to power this same freedom but instead binds it and leaves their struggle to be existential and ugly. Patricians have the luxury to pine for meaning through their aesthetics and then violently either through law or directly to force that meaning on the remainder of humanity, but the plebeian existential absurd hero must not only fight and survive the absurdity of the universe but also this patrician will to power that forces the meaning of their lives upon the universe and all outside their class. For all known history and at present, both struggles eventually involve use of violence, but at least for the moment, the violence aspect is hidden in the behavior modifying techniques of Technological Society. As the plebeian existential absurd hero Don “Wardaddy” Collierand through Brad Pitt ad-libbed: “ideals are peaceful, history is violent”. Empirically, given that class struggle is an unavoidable inherent attribute of all social constructs, plebeians must ask whether it is better to suffer an existential struggle with the universe while governed by the few while living in material poverty in pre-Technological Society or while living comfortably in Technological Society with free time for contemplation of philosophy.

If an existential leap to morality is made, eventually that morality will run into the status of law as an unopposed normative power in the West as the present reality that must be confronted and then accepted or opposed as a good or an evil.

I do not intend to promote or criticize any particular social construct of Technological Society, either political (so-called conservative or liberal versions) nor any of the countless academic myopic constructs pretending to be history varying from feminism to classism to libertarian to post-structuralism to race studies and so forth nor its economic constructs such as capitalism, socialism, and so forth. My contemplation is only to describe the social construct called law that is a universal in all social constructs as a final arbiter of their normative statements. From the plebeian perspective, criticism would be stupid. Modern plebes irrespective of their status as wage slaves or not, of all sexes, kinds, and lives in Western Technological Society, live the finest material and least violent lives in known history. Money may not buy happiness but it buys everything else. At the same time, however, it would be stupid to promote Technological Society because it still maintains the same class distinctions and unequal will to power that all social constructs throughout known history have maintained. Patricians will promote it on their own without our help — despite their pretending to despise it. However, patricians despite complaints to the contrary, will promote it as static condition to remain forever as the ultimate social construct meaning for life in the same way they promoted chattel slavery, feudalism, bullionism, mercantilism, and all the other -ism’s that came before capitalism and socialism and any other social constructs they presently promote. If there is a next progression for Technological Society, it must come through plebeian existential struggles with patricians and not from any patrician existential struggle among themselves. Regardless of whining about despair, patricians are just fine as they are, were, and will be.

COSMIC JUSTICE AND THE LAW

The economist Thomas Sowell is a true working class hero. He was born in the Jim Crow South in 1930 with his father dying shortly thereafter leaving his mother, a housemaid, with five children to raise. As a child, his encounters with white people were so limited he did not know blond was a hair color. He and his extended family eventually moved to Charlotte, North Carolina then to Harlem, New York City. After serving in various manual labor and other odd jobs, he was drafted into the military in 1951 during the Korean War and was assigned to the Marine Corps. After his honorable discharge, he went on to use his G.I. Bill and subsequent educational opportunities to attend Howard University, Harvard University, Columbia University, and the University of Chicago to get his Ph.D. in economics. He is now at Stanford University.

 

In many of his essays and subsequent books, he argues against the concept of cosmic justice that is required talk throughout the American upper class, its law, and its intelligentsia — its social justice warriors — to hide its will to power. He defines cosmic justice in relation to traditional concepts of justice as follows:

For those with this view, “genuine equality of opportunity” cannot be achieved by the application of the same rules and standards to all, but requires specific interventions to equalize either prospects or results. As Rawls puts it, “undeserved inequalities call for redress.” A fight in which both boxers observe the Marquis of Queensberry rules would be a fair fight, according to traditional standards of fairness, irrespective of whether the contestants were of equal skill, strength, experience or other factors likely to affect the outcome– and irrespective of whether that outcome was a hard-fought draw or a completely one-sided beating. This would not, however, be a fair fight within the framework of those seeking “social justice,” if the competing fighters came into the ring with very different prospects of success — especially if these differences were due to factors beyond their control.  “The Quest for Cosmic Justice” by Thomas Sowell

I have spent most of my life disagreeing with him, but I must now admit at least partial error in my disagreement. Gradually, as I have gotten older and fortunately or unfortunately my idealism has been diluted by pragmatic reality, I have learned to agree with him but only to the extent of rejecting cosmic justice in the rule of law but not as a normative goal through social and cultural goals that existentially may never be achieved. The existentialist absurd individual who has made a leap into morality as an individual dealing with other individuals in daily life must continue to struggle for cosmic justice as an end in itself with its own independent meaning. As I have argued before in this series of essays, social economic classes are a necessary part of human social group struggle against the universe. We need to admit their existence in order to minimize their unfairness and for society to prosper even though existentially I will always protest their existence in reality.

 

One objection to Sovell’s arguments is that even traditional concepts of fairness such as those exhibited by the rules of sports incorporate pragmatic means outside the rules to make them fair. For example, in boxing there are weight classes. It would not be considered a “fair fight” for a 135 lb. lightweight to be matched up against a 235 lb. heavyweight. These types of class distinctions are made in all rules of sports varying from baseball with its various levels of amateur and pro playing to golf with its handicaps and onto Formula and Moto racing with classes based on engine size. Mr. Sowell seems to admit to the validity of this objection in some of his other writings and implies the need for a social equivalent to sports classes. For example, in his criticism of affirmative action, he argues it disadvantages the lower classes because they cannot compete on the same level as upper class college students and thus drop-up at higher rates; he argues they would be better off attending a college with others of their class thus allowing them to graduate and work up to upper class education. “”Affirmative Action Around the World” by Thomas Sowell.

 

Furthermore, as a young man, I objected to his argument because I took on as a moral code the classic so-called Warrior Ethos: “I will never leave a fallen comrade.” Why should I leave any fellow workers behind in my battle for victory over the powers-that-be, especially if I win the battle or the war? Is that not also the Christian Ethos: “We who are strong ought to bear with the failings of the weak and not to please ourselves”? Romans 15.

 

My first step to agreeing at least partially with him was my military service and reading of military history. Turns out warriors leave their comrades behind all the time. The trials for cowardice of the Battle of Arginusae generals for leaving stranded drowning sailors behind and the Marines dragging their frozen dead with them as they retreated from the Battle of Chosin Reservoir were a rarity in military history including Marine Corps history and for all military units in world history, on land and on sea. During hasty retreats, leaving behind the wounded, the dead, and the equipment while running like hell was much more common.

 

Next, I was changed by my years spent in the American system of injustice. In it, though one might occasionally win a battle against the powers-that-be, in the end, one always lose the war. The law is full of talk of diversity, victims, and social justice but the end result is the same as in all systems of injustice throughout history: maintain the power of the status quo. The reality of cosmic justice at work in the law is twofold: 1) changing from time to time whom it advantages and disadvantages so as to keep competing social groups including the male and female sexes in constant conflict; 2) transforming being a victim of injustice, including its own, into a culture of victimization that gives meaning to victims’ lives and to those who want power over them so they do not become motivated to force real change in life. In fact, many cosmic justice warriors and their camp followers are more happy in their culture of victimization and poverty than I have ever been or will be in fighting to avoid it; so much so that they are willing to promote and procreate their myth onto messing up the lives of posterity.

 

One clear example of this process at work is American Indian culture — a fabricated culture that does not really even exist. If there is any meaning to the words “American Indian” other than to give upper class Americans and their intelligentsia something to pity, it would be only to reference a particular trial culture, i.e., Cherokee, Navajo, and so forth. However, these tribal cultures died out long ago with the best and brightest individuals of those cultures long ago having mixed into American culture as all other immigrant groups of the past have done and as occurred throughout history between conquerors and those conquered. What remains of those dead tribal cultures consist of a bunch of modern day Americans pretending to be tribes as a source of meaning in their lives and as a means to get government assistance. American Indians are the most impoverished social group in the country and statistically lead in single parent households, mental illness, child abuse, crime, drug problems, and education dropouts with a resulting lead in juvenile crime. Yet, their so-called leaders with their will-to-power need to protect their fiefdoms of power on government provided reservations continue and foster the farce of American Indian culture. At any level of power, those in power, including the big fish in the small pond of American Indian reservations, will convert any intentions — either good or bad — into a means of power as an end in itself, even intentions of cosmic justice. No good deed will go unpunished by the powers-that-be if they can use it as a means of maintaining their power or of obtaining more power.

 

A future example of this culture of victimization will be the black Americans left behind by their upper class brothers and sisters using new school racism as a means to get and stay upper class. Please see my previous essays on New School Racism. As I predicted in those essays and in greater detail in “Between the World and Us” (that is already coming to life by the demands of black Harvard University students for a separate graduation ceremony for black graduates), the solution for racism by Ta-Nehisi Coates and other black members and friends of the upper class is: establish a separate but equal education system for “black bodies”, letting black men commit self-genocide by continuing to kill each other, letting black women raise families by themselves, and creating black ghettos with the help of a new 21st Century slave master: government. Thus, thanks to cosmic justice warriors, we have come full circle: the solution to racism will be racism.

 

For any working social construct concept of fairness to be useful to humanity’s struggle with the universe to survive, as with fairness in rules of athletics and other sports, it must accept the presence of social economic class struggle as a present and future necessity. This presence is not a basis to create laws giving preference or preventing discrimination among class as occurs with all preferences present in civil rights laws serving only to hide class conflict while aggravating it. The acceptance of the necessity to have class conflict is necessary as a basis to eliminate and negate such law in order to allow classes to work and struggle within themselves for individual success and to compete with each other for overall social success. Civil rights laws result from the arrogance of the Orwellian High who view workers as hopeless idiots doomed to a life of misery, drug addiction, violence, and meaningless deaths without their aid and control. Billions of Orwellian Middle and Low throughout history have loved and been loved and have struggled and triumphed in every day struggles for life, property, and liberty. These struggles have created modern Technological Society. As basic fairness, this Society must allow us the freedom to continue our struggles among ourselves to control the present and future of the Technological Society our struggles have created.

 

A cosmic justice concept demanding illusionary equality for all enforced by the law’s monopoly on violence at the expense of equity for all through social and cultural pragmatism helps only the powers-that-be. The first stumbling block for application into Technological Society of Sovell’s “genuine equality of opportunity” with social economic class acceptance will be the law. How can we bring this pragmatic concept of fairness to life in the present delusional reality of the American system of injustice in which law negates and then demands a monopoly of violence for its power of negation of all social and cultural norms other than its cosmic vision of justice?

WHY TOLERATE LAW?

A full copy of this essay with all parts is available in Academia and in the Social Sciences Research Network: Essay in response to “Why Tolerate Religion” essay by law professor Brian Leiter

Initially when I started reading Brian Leiter’s “Why Tolerate Religion”, my first impression was that I had found one of the rarest types of lawyers especially of the academic type: one with a sense of humor. As I continued, my impression of dark humor changed to his being factious, then he was gloating, but finally I was forced to conclude he was serious. The timid, cowardly, and fainthearted response by the American religious and legal culture in essence lamely trying to justify nonexistent toleration, “special” or otherwise, worsened the tragedy of his question and answer. In Western Technological Society, the law does not tolerate religion in any sense but a nominal one and most certainly not in any normative or pragmatic sense, the only senses that matter for either law or religion. Western Law has negated and displaced Western religion to become the only normative power in Western Civilization. The realistic question that should be asked is why tolerate law qua law: what principled argument is there for tolerating law with its special monopoly on violence? If this special toleration for the law is really just a categorical demand unhinged from reason and evidence then by Leiter’s own reasoning, it is a religion with its own morality and demigods not entitled to this special toleration. Realistically, without Western law and Western religion giving each other special toleration as separate but equal communal normative powers, the former violent and the latter nonviolent, either is a tyrant willing to kill the innocent for power and there is no principled argument to tolerate either.

“There are some ideas so absurd that only an intellectual could believe them.”
― George Orwell

 
I. PROLOGUE / THE NATURE OF THE QUESTIONS

 

Having grown up lower working class in which the only source of hope in life was through religion, and then working my way up through military service eventually into Harvard Law School, and then 25 years of solo-attorney trial practice in the miserable trenches of the American system of injustice, I am fully aware of the power and weaknesses of both religion and law. For all but a small minority of humanity, the existential question we should ask of law and religion is why we tolerate either. Neither should have the audacity to question the other’s communal authority to which neither is rationally entitled. This reality should be undisputed in Western so-called “Realist” philosophy of law and jurisprudence that supposedly recognizes two separate but equal normative powers: the law is law and not morality; morality is morality and not law. Despite such existential and legal reality, a philosopher of law Brian Leiter gives fallacious answers that have little connection to reality to his question “why tolerate religion” while assuming that tolerating law is a given.

 
In asking his question, as easily could be predicted, as is true of most academics’ myopic view of life, though Leiter and his school of philosophy readily make distinctions as needed between different word meanings, wordgames, legal systems, laws, rules, philosophies of law, philosophies, moralities, obligations, principles, and much more, to him and to Western Law, they consider all religions the same and assume they can be lumped into a bound variable called “religion” they can judge and give value as the law deems necessary in its wisdom. Then, using popular cliches lacking any philosophy of language, he gives the existential attributes or values of this bound variable “religion” to be: “categorical demands that are unhinged from reason and evidence”. Amazingly, despite philosophy of law having spent more than a hundred years unsuccessfully arguing about whether “law” is a universal, in a few pages he has no problem telling us not only the ontology of religion but doing so while leaving out its most important attribute: a communal social construct just as is law.

 
While Leiter digitally compresses the nature of religion to its supposed essence in order to contemplate toleration, he cannot be bothered to define and tell us in any analytic sense what he means by “tolerate”.

 
Based on Leiter’s ontology of religion, faulty logic, hidden premises, and a confusion of word meanings as necessary to reach his predetermined answer — an exemplification of jurisprudence at work — the answer to his question was also readily predictable. He answers that as a matter of noblesse oblige within “limits of religious toleration” as decided also by law, the law should not grant religion qua religion any special toleration or protection but simply place it alongside any other toleration the law in its wisdom decides to give to matters or liberty of “conscience”. If and how this answer is to be enforced on society and pontificating on what “liberty of conscience” entails is left for another day.

 
The timid, cowardly, and fainthearted response by the American religious establishment to this Why Tolerate Religion essay is consistent with all of their other surrenders of the past hundred years to the power of law — that is supposed to be its equal in power — thus indicating the question and the answer to be facetious and gloating at best. In Western Technological Society, the law does not tolerate religion specially or in anyway; instead, as a secular religion with its own irrational disguised morality and demigods, law has negated and displaced religion to become the only normative power in Western Civilization. Realistically, in the law’s path of displacement are all other moralities or matters of conscience with the intent being to have law reach perfection as a power no longer existing as a means but as an end in itself. As admitted in some of Leiter’s other essays, this path is not governed by naturalized analytical thought but by elitist sympathies pretending to be Nietzschean existentialism that are really a Hegelian world view — the ultimate enemy to any existentialist free and open society.

 
Leiter’s question raises serious questions about the power of law that should be asked by both nonreligious and religious. Why is law allowed to pretend there is a universal thing such has “law” with nonlegal obligations — disguised morality — making categorical demands less “unhinged” from reason and evidence than the morality of a thing called “religion”? How is it that modern Western law, itself a creation from the forge of Western Religion’s power struggle within itself and with secular power to live on this earth with Christian morality but not of this earth, has the audacity to question its toleration of what is supposed to be its normative equal while Western religion lacks the courage to ask likewise of its creation? How is it that Western religion, Western Civilization’s communal attempt to give not only metaphysical but physical meaning to the fire of time and space in which humanity burns, has become subservient to the secular religion of law created by a minority to force their power upon the majority through a monopoly on violence? How is it that philosophy of law though neither rational, analytic, nor scientific is allowed to continue to pretend it is all three? How is it that for modern American law school intelligentsia, elitists such as Nietzsche and their cowardly version of the existentialist view on reality, individual human life, and open society have greater value for philosophy of law as motivators then the courageous version of existentialism of an Albert Camus or Soren Kierkegaard or even of nihilism? Is it time for existentialism to step out of the shadows and create its own philosophy of law? Why tolerate law?

 
The answer to the last question will turn out to be relatively straightforward: there is no principled basis to tolerate law qua law but only because the law tolerates religion and vice-a-versa. If the reciprocity does not exist, no one has any obligation to tolerate either. Without such reciprocity, the dominant one is a tyrant, either a legal one in the Roman dictatorship sense or an illegal one — it does not matter, a tyrant is a tyrant to whom we owe no rational obligation to tolerate.

 
To contemplate these questions and to lay a foundation for an existentialist philosophy of law, one must first understand the elitist and mostly delusional history of modern philosophy of law and associated jurisprudence and the fork-in-the-road duality of existentialism in modern technological society that separates hoi polloi from those in its Orwellian Inner and Outer Parties such as Leiter and his colleagues. In order to understand how the law has gotten to powerful position of being able to question its tolerance of religion without expecting a reciprocal question from religion and of the significance of such power, one must have a clear realist not Realist understanding of modern philosophy of law, the history of Western Civilization, and of the particular elitist school of existentialism hidden in modern law and modern Western academia pretending to deny the pragmatic value of all morality but its own — including its fraudulent wordgame pretending that its “nonlegal obligation” has a meaning other than morality. Such an understanding must not be solely an academic understanding intended to stand and be judged solely for its aesthetic value as is the case with most academic nonscientific work including all schools of philosophy of law but must be a pragmatic one.

FROM A TRIAL ATTORNEY’S PERSPECTIVE: TWO DOGMAS OF LAW SCHOOL ACADEMICS AND THEIR EFFECT UPON THE FUTURE OF LAWYERING

A full copy of this essay with all parts is available in the Social Sciences Research Network: SSRN  and in Academia.

 

Modern law school academics in the United States are dominated by two major schools of thought: law and economics; critical theory. The most recent popular version of the latter calls itself critical realism. Both schools are conditioned upon two dogmas they claim must be recognized by jurisprudence and policy decisions in law. In critical theory, its foundational dogma states there exists a fundamental empirical distinction between situational influences and individual influences. This dogma exists in law and economics by a multiple of names, all making the same fundamental distinction but in disguised form. For this school, situational influences are dogmatically defined as simply a set, sum, or collection of individual influences. Both schools of thought share another dogma: a belief that normative statements can be derived from empirical statements. Academics and their believers in both schools want to be anything, such as economists, psychologists, anthropologists, sociologists, physicists, and onward, anything but lawyers for whom they both exhibit nothing but contempt making me at least wonder why they went to law school in the first place though I suspect the answer is for the power. As a practicing attorney my whole career in law, I write this essay as a representative of a dying breed (perhaps justly so): trial work and the art of lawyering. Both dogmas and the contempt for the practice of law that goes with them are not only worthless to jurisprudence but the constant bickering over them and associated paper churning verbiage lacking substance pontificated by those who are the law’s teachers serve only to destroy the credibility of jurisprudence and its usefulness for maintaining and passing on to posterity a free, prosperous, and open society. These dogmas and their contempt for the practice of law prevent progress in jurisprudence from catching up and paralleling scientific learning, an update it desperately needs if it will ever be anything more than the under-laborer for the few who are or want power over the many.

 
I. INTRODUCTION / THE NATURE OF THE PROBLEM

 

As I will analyze next in this essay, even in the simplest of problems in jurisprudence such as the proverbial “gun-to-the-head” case examples, the dogmas at issue do nothing useful but serve only to blind the search for the forest by concentrating on the trees. I will concentrate my analysis of the first dogma in the form it exists as a foundation for the new fad of critical realism because this analysis once understood will easily translate into an analysis of the equivalent dogma in law and economics that has had much more time to hide itself in the trees. For this purpose, I will reference examples of the dogma at work in the law review article entitled “The Situation: An Introduction to the Situational Character, Critical Realism, Power Economics, and Deep Capture” by Professors Jon Hanson and David G. Yosifon as this article seems to be the first gospel and foundation gospel for the bible of critical realism. I will refer to it as the Situation.

 
Though nominally hidden, the second dogma is substantively and essentially the same for both critical legalism and law and economics thus the analysis will not need to be split.

 
The Situation article begins with, contains within it, and ends with pages of warning and advice on how the readers need to open their minds, contest their most “reassuring self-perceptions”, read “mindfully”, and avoid being hypocrites who attach to other persons ignorance of truth while ignoring their own ignorance. After which, the authors of the Situation routinely, constantly, repeatedly, and to all indications unknowingly proceed to violate all of this warning and advice. I do not want to repeat their lecturing and risk becoming a hypocrite myself but it is important to have some sense and analysis of the hypocrisy involved to get an appreciation of the harmful, blinding effect these dogmas have upon jurisprudence and lawyering, in fact, upon basic reasoning skills and rational argument.

 
The nature of the problem of these blinding effects on both the substance, essence, and credibility of jurisprudence are most evident when the critical realism authors of the Situation try to be physicists instead of lawyers at pages 155 – 56 by using a “thought experiment” involving plane travel and then at multiple pages beginning at page 206 where they pontificate about the Catholic Church’s initial rejection of the physics of Galileo as an example of “capture”.

 
The plane travel “thought experiment” depicts an airplane passenger getting up from his seat, traveling to the bathroom, and returning fifteen minutes later. The authors than ask you to “estimate the distance that the old man traveled between leaving and returning to his seat.” Now, if you are a reasonably prepared, reasonably educated trial attorney with some diversity in life experience, you would immediately note that this question at a minimum lacks a proper foundation, is misleading, misstates the facts, assumes facts not in evidence, and, even if these problems as to form are resolved, is a question that only would be relevant and have probative value for any reasonable inquiry into truth if asked of a qualified expert witness. However, the authors as law professors are not trying to be lawyers, they are trying to be physicists. As physicists, they answer, “If you are like most people … you estimated thirty feet. A more accurate estimate, however, would be roughly 1000 times greater than that — approximately 150 miles. In other words, most people see the man moving within the plane, but miss his situation, the plane itself. … Indeed, when one takes those additional situational forces [movement of the Earth, solar system, the galaxy, the universe] into account, the old man moved … something closer to 350,000 miles.” As a trial lawyer, my first instinctual response to this individual/situational distinction is, “how is a traveler walking on an airplane” any less “situational” than an “airplane flying on the earth”? I am getting ahead of myself. By admitting the question into the evidence considered in the Situation, the authors prove themselves unskilled trial lawyers; by allowing the answer in, they in addition prove themselves unskilled physicists even at an amateur or sophomoric level.

 
If my above lawyering objections were resolved and then only an expert witness physicist was allowed to answer the question, the first answer would probably be a question: “I cannot answer your question as posed, do you want me to use classical physics or modern relativity physics?” Since the Situation seems to love Galileo, to be consistent with that love, I answer “please use classical physics.” At which point, the answer would probably be another question: “what inertial reference frame do you want me to use?” To keep things simple, I would answer “use the plane”. To which the “truth” would be “approximately 30 feet”. If I had answered, “use the earth”; the “truth” would be “approximately 150 miles.” If we really wanted to challenge our “thought” instead of playing academic games, I should have answered his first question “please use modern relativity physics.” To which, the physicist would have responded with another question, “what coordinate system do you want me to use and from what coordinate do you want me to measure?” In response, if I had answered “from the coordinate of the traveler with his point and coordinate remaining the same in any coordinate system”, the “truth” would have been “zero distance traveled”. What would have been the physicist’s answer if I had asked the witness to use pure quantum physics without simplification for scale? Engage in a real thought experiment by finding this answer yourself, learn something, and thus do something the authors of the Situation for some reason could not be bothered or could not do.

 
If the plane travel “thought experiment” had been approached from a lawyering perspective, we would have had an actual thought and learning experience. Instead we got a differentiation between the “individual” situation of the traveler and the “situational” situation of the plane, earth, and so forth. A differentiation that no physicist would make because to science one inertial reference frame or coordinate system is as good as any other. Which one to use is relative to what they are trying to predict. So, again, “how is a traveler walking on an airplane” any less “situational” than an “airplane flying on the earth”? Is it simply because the authors of the Situation want it to be distinct in order to prove their argument that they are distinct? These questions are not considered in the “thought experiment”, apparently it is assumed that this distinction is either self-evident or accepted based on their authority — that is, the distinction is dogma.

 
The enormity of the blindness to reality, despite calling itself critical realism, involved from such dogma is more evident in the Situation’s dealing with the Catholic Church’s initial rejection of the physics of Galileo that goes on for pages of verbiage that says nothing.

 
So, how does the Situation cover Galileo? Do they act lawyerly and thus review, examine, and cross examine the best evidence: the hearing records, expert submissions, evidence, and documents of the inquisition of Galileo still available for review and much of it on the internet? Do they take evidence or testimony from historians, theologians, and physicists on the subject? No, apparently there is no need for that. After all, they are not just lawyers, they are historians, theologians, and physicists; so, they quote hearsay from other lawyers and tell us themselves what happened as self-evident truth. According to them, what happened is “capture.” The Catholic Church was one of the mighty powers of the 17th Century. Galileo, while a student and then a professor teacher at two Catholic universities was a free-thinking lover of truth with a new “true” idea of the nature of our solar system but this “individual” influence on society was powerless against the “situational” influence of the Catholic Church whose power allowed it to distort and twist the academic and scholarly experts of the times to its irrational purely religious view of the solar system. As a result of this alleged capture, the authors tell us, an innocent individual was wrongly persecuted and silenced by Pope Paul V and a Cardinal Bellarmine denying society the “truth”. According to the Situation, if not for this “capture” of the expert witnesses who testified and of the evidence presented at his inquisition, the experts would have supported Galileo and the truth would have been known earlier and without punishment of Galileo. According to the authors, this “answer is obvious.”

 
Whoa, a powerful concept this “capture” based on this distinction between individual and situational influences. Again, as a lawyer, my initial instinct is to ask how are Galileo’s teachings reached during years of study, examination, and teaching using the resources of two Catholic universities an example of “individual” influence whereas the Pope and Cardinal’s teachings reached as a result of years of study, examination, and teaching using the resources at Catholic universities “situational”? There may be a difference of degree, but how are they different in kind? Does this distinction mean the Divinity School and the Philosophy Department at Harvard are “situational” influences whereas the Law School and Economics Department at Harvard are “individual” influences? Has anyone told the theologians and philosophers at Harvard about their situational power over law and economics that I suggest would be a surprise to them? Is individual influence the egg and situational influence the chicken? If so, which set of teachings is the egg and which the chicken? Which influence came first, the egg or the chicken?

 
Perhaps it is just a question of power? In his time, Galileo as an individual obviously had less power in every respect than the institution of the Catholic Church, but this would not be true of the individual Charles VII, the Emperor of the Holy Roman Empire, nor of the Pope. If it is an issue of the degree of power controlled, then we should call it an issue of the degree of power. Galileo had little individual power because of his situation as a student and teacher, Charles VII and Pope Paul V had large individual power because of their situations as emperor and pope. We can describe both sets of power honestly and truly either as “situational” or as “individual” depending on the speaker’s intentions not upon any fundamental difference in the nature of “power” as that word is used in English neither in the circumstances of “capture” nor to the extent anyone advocates for its inclusion in jurisprudence. If “capture” means the Catholic Church was more powerful than Galileo, than should we just say so and get on with a Marxist analysis of law as simply a monopoly of violence and forget about the useless word “capture” based on the useless distinction between individual and situational influences whose use is dependent solely on the intent of the speakers not on the facts spoken about? The authors do not consider these questions. Again it is assumed the “answer is obvious” as either self-evident or based on their authority — that is, the distinction is dogma, the same as any dogma issued by the Catholic Church or any church.

 
Instead of being a historian, theologian, or physicist, let’s try to be lawyerly and engage in the critical thought and examination of the alleged “capture” of Galileo’s “truth” that would be required if it ever came up as an issue for trial. I should start by seeing what theologians say about it since it is a theological issue but I am practical enough to know that raising theology in an essay submission to the closed-minded culture of law school is a guarantee that it will be trashed. I actually hope and want someone to read this essay some day, so I will ignore theology.

 
What do historians tell us about the Galileo Inquisition? Historically, what happened is that Galileo while a student and then a professor at two Catholic universities developed a heliocentric theory of our solar system that he could not support at the time by any evidence because the necessary math and physics had not as yet been created and developed. The Church had a formal, open hearing on the matter in which Galileo was allowed to face and to respond to his accusers consisting of qualified, prominent, academic scientific authorities of the time who all disagreed with him and submitted argument and evidence to substantiate their disagreement. Based on such undisputed expert testimony and Galileo’s inability to respond with anything other than unsubstantiated theory, the inquisitor Cardinal Bellarmine after review of his conclusions by the Pope personally ordered Galileo “… to abandon completely… the opinion that the sun stands still at the center of the world and the earth moves” as a physical truth. However, the Church did allow him to discuss such theory as a mathematical and philosophic idea. Thus, as the necessary mathematical and physical theories developed, eventually the heliocentric theory became widely accepted as scientific “truth” at Catholic and all universities. From a lawyering perspective, this was not a bad adjudicatory process overall nor result. Much better than anyone would now get before being terminated, removed, or arrested in our supposedly more open-minded society if one even tried to open a discussion at one’s employment, in class, or in a public forum let along argue the politically incorrect stance on such topics as homosexuality, racism, sexism, or abortion.

 
How about the physics? It turns out that according to the modern general relativity physics of the last hundred years, the concept of an inertial reference frame that is necessary for either a heliocentric or geocentric model of the solar system does not exist. All we can do is establish coordinate systems for space-time in which the only requirement is that each point have a unique coordinate. So, according to modern physics, if we had a mind or computer sophisticated enough to deal with the enormous and convoluted mathematical complexities involved, we could choose and use a coordinate system with the revolving earth at the center and the sun revolving around it. Since real science accepts and practices Ockham’s Razor as heuristic technique for its conceptual choices, real physics chooses the sun as the center of its coordinate system thus greatly simplifying the math and achieving a much more pragmatic model.

 
So, let’s see what we have. A Cardinal Bellarmine condemning a person before him for ideas reached at one of the universities he supervises after a full evidentiary hearing and review that included expert witnesses to which the accused had a right to face and respond and to whom he did face and respond was persecution and “capture”. So, what is it when two secular legal scholars as representatives of one of the most powerful legal cultures in history use solely their chosen written hearsay with no opposition submitted from anyone to condemn the dead and an entire millennia old religious culture? Is this like super-persecution and super-capture? If Cardinal Bellarmine was a tool for situational influences trying to avoid the absolute truth that the earth revolves around the sun, are the two secular legal scholars who wrote the Situation tools for situational influences trying to avoid the truth that there is no absolute truth about what revolves around what in space-time?

 
Is the absolute truth that if modern jurisprudence wants to approach reasoning in the same way as science, it should also accept Ockham’s Razor as a heuristic technique and stop creating unnecessary dogma about distinctions and relationships such as “capture” simply to boast the egos of its academics and their worshipers who see in the law a means for power instead of controlling power but who do not want to call it power? It is with the hope that the answer to this last question is in the affirmative that I get into the body of this essay.

THE MYTH OF JUDGES OF PROVEN INTEGRITY

An omnipresent myth universally marketed by American legal culture is that judges are experienced, honest, impartial, and of proven integrity. To anyone with any significant experience with either a state or federal court system or in the selection either by appointment or election of judges, this myth is a joke. Somehow, it continues. Most likely it continues because most people are so frighten of getting involved in legal disputes that they do not even want to think about those involved. Once they do become involved, such people become “litigants” (or worse, criminal defendants) and thus lose credibility with the rest of society desperately trying to avoid getting involved.

Most judges start out as average human beings with one serious defect: they want to be judges. That is, they want to have a lifetime job in which they sit in judgment on the lives of their fellow human beings; cold-bloodedly view their problems; and then make their lives worse in some way so as to maintain whatever social order exists — be it the order of a North Korean dictatorship, a Russian oligarchy, or an American oligarchy. Judges maintain such status quo by the sacrifice of the individual — unless the judge is sympathetic to the individual — with all decisions required to be universal and not accepting of diversity nor individual personality or morality. There is no curing of disease, no invention, no epiphany, no theorem proven, no joy of pure analytical thought, no joy of experiment, no critical thinking to a solution, no scientific method, no glory of winning, and no agony of defeat — any type of honest emotion and good faith belief in a principle or good or evil is to be avoided (other than “law and order” that actually means just order). The only joy is in the power of playing god except for the fact that they lack the courage to do any killing themselves but have others do it for them — however, the judge cannot admit to such playing but must hide behind the smokescreen of law, pretending there is something more to their decision-making than just their arbitrary decision of what personal ethics and morals to enforce and which not to enforce. Hiding this reality of the judge’s job, American legal culture in all federal courts and in most state courts gives life tenure to average human beings with such an obvious character flaw plus grants them no accountability for their acts — forgetting power corrupts.

For example, present Supreme Court Judge Sonia Sotomayor stated in an Associated Press interview that she wanted be a judge by age 10 after watching a Perry Mason episode at which point she “realized that the judge was the most important player in that room”. What were you dreaming about at age 10? At age 10, I was just trying to survive until the next day. If I did dream, it was to become an astronaut, an explorer of the world and the universe, to cure cancer, to become a military hero, about the girl sitting next to me in class, or of having love and a happy family, or doing something great to help my fellow humans. The few times I watched Perry Mason, I sympathized with the innocent defendant being railroaded through the system by the powers — including the moron judge — miraculously saved from imprisonment or worse only by the hero Perry Mason. Ms. Sotomayor despite having a loving, extended family supporting her path not only to survive but to prosper in life instead was dreaming of being the moron judge simply because he had the most power. What a sick mentality. This sick mentality gets worse as we go up the power chain to such power fiefdoms as the Supremes. Lower court judges are actually the most fair and wise since they must work with real people in real world situations instead of living in ivory towers of power being an end in itself.

Have you ever read or even heard of any judge, in the present or in history, leaving their judgeship because of stress, worry, guilt, overwork, in rebellion, or as a matter of principle? Neither have I. In fact, especially at the federal level, judges have to be carried out in their senile old age while desperately trying to hand-on to their job of being a demigod. The federal system is full of “senior” judges past the suggested retirement age of 70. The idea of becoming part of humanity that is judged instead of those doing the judging is their greatest fear.

There are no merit or competency tests or requirements for being a judge. The only test, regardless of whether a judge is elected or appointed, is a political one. They are usually former government prosecutors or big firm attorneys who spent their whole professional career following orders, not making waves, and taking whatever politically correct position they believed was necessary to get them the needed political credentials for appointment to a lifetime umbilical cord of a government job. They are supposed to be the best and the brightest of an adversarial legal system in which the best attorneys are supposed to take the greatest risks defending the unpopular and powerless of society such as did Attorneys Atticus Finch of “To Kill a Mocking Bird” and Abraham Lincoln — neither of which could ever be appointed to a judgeship but instead would most likely be disbarred in our modern legal culture for their antics. Instead, as attorneys, most judges were the bottom of the barrel in terms of adversarial and analytical skills and courage — their only skill was politics but they even lacked the courage to run for political office.

This myth is present in all legal systems even going back to the sophisticated legal system of the Roman Empire. In fact, it is this myth that is the greatest weakness in the monopoly of violence that is the law and is usually the one way that it can be beaten. Eventually, as the status quo empowered by judges gets further and further out-of-step with technological and material progress, those charged with executing the judgments of judges get tired of their incompetence and stop executing the judgments. Since judges are incapable of doing their own dirty work, this is when things finally start to change. Judges and the “rule of law” consistent with their dishonest nature take credit from our Honored Dead for historical progress that led to the abolishment of slavery, of Jim Crow laws, of forced segregation, of denial of equal rights to women and minorities, of destruction of unions and the imprisonment of their members, and of almost all injustices that in their time were legal and enforced by judges. In reality, judges have throughout history always been on the wrong side of history and were on the wrong side of these listed now abrogated laws. Violence or some type of civil or military revolution has always been required to get judges on the right side of history.
This reality is still true despite judges’ present claims, again, that they are on the right side of history. These present claims by them and their worshipers hint at more than just character flaws to the presence perhaps of insane delusion. “Insanity: doing the same thing over and over again and expecting different results”. — Albert Einstein. For a more detailed analysis of this myth, please see two of our sponsoring books The Law Illusion and Between the World and Us .

THE MYTH OF LAW AS PROTECTING THE POWERLESS FROM THE POWERFUL

Once the powers that led the American Revolutionaries succeeded and created our Nation, they had a problem: they were no longer the outcaste criminal minority operating solely by their arbitrary decisions restricted only by pragmatic concerns for winning the revolution through the principle of might-makes-right and thus violating the “rule of law”. They were now the law-abiding majority. Upon becoming the law, they immediately began to market not only the first false myth just contemplated of the Nation being founded upon the rule of law but the second false myth of law: it protects the powerless from the powerful.

 
The clearest way to contemplate the second myth and see through it to its heart of darkness is by contemplating the often used philosophical analogy of imagining humans in the state of nature or humanity’s primitive state defined as: the hypothetical conditions of what the lives of people were like before societies came into existence. However, since this blog and related blogs are not for academia but for workers spending their lives in the daily struggles of life, do not conduct this contemplation as it usually has been done by philosophers varying from Plato to Robert Nozick in which the result of the contemplation is pretty much predetermined by upper class philosophy. Contemplate our state of nature in its purely working sense by starting with you and adding individuals one by one to a real world of struggle for survival in a universe that at best is indifferent to our existence but usually is actively trying to kill us.

 
So, there you are, trying to survive with nature trying to kill you. What law and legal system do you have? Pretty much nothing other than the rule that whatever works for you to survive or to give meaning to your life ought to be done until it stops working.

 
Now add another person, someone who is overall either more powerful in their ability to survive life or less powerful in their ability to survive the struggle for life. Now what legal system do you have? Assuming the more powerful is not a complete and total asshole, pretty much nothing changes except for those instances when there is not enough of something for both of you to share equally or there is disagreement as to what needs or must be done. What is the law at that point? Unless the more powerful person is some type of Christian martyr that by definition would mean that person is not the most powerful person in terms of their ability to survive in life, the new law is: whatever works for survival or to give meaning to the lives of the most powerful person will be done until it stops working for them.

 
Now a third person joins our dynamic duo in the state of nature. At this point matters start to get tricky.  In situations of scarcity or dispute, the most powerful person could in theory and in practice keep full control of the weaker person in the two-person state of nature by tying the weaker up at night and once releasing the other during the day never letting the other out of sight. However, this gets harder to do when the more powerful has two weaker persons to control. In bad times, the stronger can still keep the weaker tied up at night but never letting either of the weaker out of sight during the day gets harder. If the weaker conspire, they could figure out a way to give the stronger the proverbial and most likely physical stab in the back when necessary for survival. The situation is still might-makes-right but the might could now be established by the weaker majority combining together to beat what would be the stronger minority in the absence of the weakers’ conspiracy. At this point, the powerful with their superior will to power survival instincts naturally come up with the concept of “rule by law” and then “rule of law” as a means to remain the powerful: i.e., the weaker should not conspire to stab me in the back because this is illegal (as well as unethical; as we will contemplate later, the concepts of law and ethics for social purposes are essentially the same with the former simply being the latter plus a monopoly on violence to enforce whatever the ethics may be). In order to convince the weaker of the need to give up their potential for joining and killing the powerful, the second myth starts: law is for your own good to protect you the weaker from the powerful — conveniently ignoring the fact that the powerful given the need and opportunity would stab the weaker in the back and kill them regardless of the illegality of such an act.

 
As we add more individuals to this state of nature to make bigger and more complex societies, this minority/majority problem gets worse, but the law becomes a much easier and a more efficient solution to this problem once it is given a monopoly on violence while also becoming more convoluted with verbiage both to foster the myths under discussion and to act as a smokescreen hiding their falsity. There will always be a minority of powers-that-be — or the “High” as Orwell calls them in his 1984 — who will have through fate, destiny, luck, or whatever you what to call God’s hate of the poor a superior might-makes-right will-to-power meaning in their lives. There will always be a majority of the powerless or less powerful — or “Middle” and “Low” from 1984 — who could make meaningless the High’s will to power if they organized, conspired, or combined enough of their will to power. Why God so hates the poor that he would make such a three-part division a necessary part of reality is a contemplation beyond this blog but is contemplated in sandpebblespodcast.com.

 
“The rule of law” comes into existence at that point of social creation or progression from the state of nature in which the minority powerful is concerned about being overpowered by the majority of less power or powerless through shear force of numbers. The law is created to abrogate “might makes right”, but not in the sense of abrogating “might makes right”; it abrogates the might-makes-right of the powerless in order to protect the might-makes-right of the powerful. Law is created to protect the powerless from the powerful but not in the sense of protecting the powerless from the powerful; law is created to prevent the power of the majority powerless through unity from overpowering the power of the minority powerful.

 
Before I go further in this contemplation, I must emphasize that I am not saying that this pragmatic purpose of the law to protect the minority powerful was always a bad thing; I am simply saying that it is a false myth to claim the opposite as being a basic premise or principle of law. As contemplated on the associated blog of www.betweenworldandus.com, in its comparison of racism versus classism, unfortunately the division of human society into social economic classes is a part of reality unavoidably necessary to win the struggle between humanity and the universe trying to kill humanity. Thus, unlike racism, we will always have social economic classes and classism and there will always be a necessity to protect the powerful from the powerless by means of social economic classes maintained by the majesty of the law. Pragmatically, the myth that the law protects the powerless from the powerful perhaps was needed through most of human history as a smokescreen to keep the Middle and Low in their place. As recently as a hundred years ago, 80% of the world population was illiterate and obviously had no internet access for information and the technological revolution was barely beginning. The world is now 80% literate and rising with internet access for information at 60% at rising and we are fully into a Technological Society. At this point, the myth does more harm than good by treating workers as illiterate fools that clearly they are now not. The time has come to let the wage slaves know they are slaves and honestly control them as millennia of human societies and law did with chattel slavery whose true nature was never hidden from the chattel slaves. Such truth is necessary for humanity to move into its next stage of history whatever that may be. I will hopefully contemplate the effects of these myths in our technological society in a later essay.

 
Seeing how the true nature of this second myth played and plays out in human history can be done easily by any reader of this essay by picking up a real history book written by real historians (not polemics by popular historians such as Howard Zinn or Doris Kearns Goodwin) and reading the facts from the perspective of the principle contemplated here: law serves not the false myth of protecting the powerless but to prevent the power of the majority powerless through unity from overpowering the power of the minority powerful. You will immediately see that it pragmatically works to explain the past and to predict the future. In doing this, do not get thrown off by appearances such as seemingly pure altruistic laws as those protecting the handicapped, children, or similar powerless. The law is not a unconditional lover; it always by necessity acts in accordance with its true nature and thus even when appearing to enforce seemingly purely altruistic law; as with a bad lover relationship, it does so solely for ulterior motives and will use its ephemeral altruism against you or expect something from you in return at a later time or at other place. The law giveth and the law taketh. If you want unconditional love, get a dog.

THE MYTH OF A FOUNDATION UPON THE “RULE OF LAW”

This is the omnipresent cry of all socially accepted members of United States legal culture (and of most modern nations’ legal systems): our Nation is founded upon “the rule of law”. This is the predominant myth in United States legal culture: the United States was founded upon the “rule of law”. By “rule of law” is meant the principle that law should govern a nation as opposed to governance by the arbitrary decisions of individuals. This is the law’s strongest marketing myth yet the easiest to see through its deception to the truth once one bothers contemplating it in the context of history.

 
Neither the United States nor any modern industrial or technological nation — including any of the major nation state players in the modern world such as Britain, France, Germany, Italy, Russia, and so forth with the possible exception of Japan’s Meiji Restoration or of satellite nations such as Canada that are castaways from the major players — were founded upon the rule of law. The United States was founded by religious fanatics seeking freedom from all secular law and by criminal revolutionaries motivated by desires for individual freedom exempt from all law and by various forms of a master morality will to power varying from avarice, anarchy, and bootlegging to piracy, sex, tax evasion, and wagering. By “criminals”, I am not referring to the fact that many were slave owners because owning slaves was legal under the rule of law at our founding as it was for all systems of law throughout history until a couple of centuries ago when slavery’s rule of law was abrogated by armed civil revolution. The revolutionaries of our American Revolution in relation to Britain and Europe had more in common with present day Somali pirates than with any enlightened believers in “rule of law”. (In the same way that the British of the 16th Century in relation to Europe had more in common with present day Somali pirates than with any enlightened believers in “rule of law”.) They were a minority who by violence intended to force and did force their minority views and rebellion against established British law upon the Loyalist majority not by any rule of law but through violent tactics and atrocities against Loyalist civilians and their property that would be called terrorism and war crimes in our present world. A detailed chronological history of how a violent criminal minority was able to start and win our American revolution can be seen at www.redcoat.me.uk/Rev-War.htm . In short, the fanatical minority criminal revolutionaries of the American Revolution in trying to give meaning and power to their individual lives used the atrocious, illegal, and deceptive tactics of all revolutionaries in history without consideration or respect to any concepts of “rule of law” other than “might makes right”.

 
The difference is that our revolutionaries because of their unique place in time and space were successful in revolting against the established rule of law. This success has more to do with physical geography and the availability of new industry and technology than of any inherent good in the revolutionaries: luck, destiny, fate, or whatever you want to call it. See www.redcoat.me.uk/Rev-War.htm .

 

The worse and best aspect of the founding of the United States is that such rebellion against the rule of law is what had to occur to make us the first country in history in association with the dawn of the Industrial Age and now the Technological Age to be founded not upon principles of “rule of law” through kings, queens, emperors, military leaders, senators, representatives, judges, or other demagogues but upon principles claiming the individual not the individual’s community is the measure of all things. As such a country, we have been for more than two hundred years a beacon of hope to all humanity still living under the natural and ancient “rule of law” that individuals to survive in a universe at best indifferent to our existence must surrender their individual needs and goals to the needs and goals of the whole to survive. Revolutionaries of the American Revolution said, “F___k the whole” and spit in the face of the indifference of the universe and its “rule of law” to explore, discover, and conquer their universe in a struggle, perhaps never ending, to make their own individual heaven on earth.

 
As a result of their success in founding a nation through might with no respect for any rule of law, our revolutionary rebels were then faced with the issue of how to rule their new nation. This leads me to the second false myth about the rule of law: the rule of law protects the powerless from the powerful

FALSE MARKETING MYTHS OF LAW AND JURISPRUDENCE / INTRODUCTION

Though legal culture in the United States calls itself a profession, it is really a for-profit religion having a monopoly on violence to produce one product: you. Its business goal is to tell you what you ought to be and what you ought to be doing to produce a “you” in its image. The secular religion of law uses well marketed false myths to stay in business: 1) the United States was founded upon the rule of law; 2) the rule of law protects the powerless from the powerful; 3) judges are experienced, honest, impartial, and of proven integrity; and 4) there is a difference between law and the ethics and morality of judges.

 
I will cover each of these myths in separate essays. As I have written elsewhere, in trying to contemplate and write about the general principles that govern such issues as law, it is not my goal to create an idiocracy by oversimplifying the problems of creating a workable social system for adjudicating disputes so as to avoid private violence and internal conflict among individuals or groups that would disrupt the viability of United States society or of any society. However, our modern technological world is so very complicated that it is easy to forget the basic premises of human thought that have made us successful so far in beating the natural world’s will to kill us and wipe our societies from the universe. For example, mathematics is incredibly complicated, yet all of its incredibly convoluted rationally challenging complexity begins with one operation: addition. If you do not understand that 2 + 2 = 4, all of mathematics is worthless farce. To freely operate in a free and open society, one must accept that “freedom is the freedom to say that two plus two makes four. If that is granted, all else follows” — Orwell’s 1984. Modern legal culture loves generating law libraries of verbiage to hide that 2 + 2 = 4. One of its methods for denying us this freedom is through the false marketing myths that I will be contemplating. To be free in an open society, these myths must be seen as false and rejected. We can then go on to a more subtle contemplation of the nature of the concept of justice in a modern technological society.

 
The false myths that I intend to contemplate are universal to all legal cultures but are most powerful and thus have the most adverse effects in United States culture because the United States is so powerful and successful. As with all past societies and especially empires, as they achieve more power and greater success, the few who possess most of that power and success start to generate smokescreens that hide the foundation bases upon which the power and success were built resulting in their being ignored and the foundation allowed to crumble thus eventually crumbling down the society and empire built upon them.