I. Prologue

This is a conceptual argument against the use of rules or codes of professional conduct as a means to enforce professional ethics or morality because such rules are unavoidably conceptually arbitrary, random, and indeterminate and contradict the foundational concepts of our rule of law such as Due Process and Equal Protection and thus are immoral; are unnecessary given the availability of criminal and civil law to enforce whatever rules or codes of professional ethics are intended to enforce; and their teleological and pragmatic rule following works against the diversity of cultural and individual identity the rhetoric of United States rule of law culture states it wants in its culture of law.

The relationship between law and morality is fertile and omnipresent ground for analysis and argument in law in particular in philosophy of law. This is true of both analytic philosophy and of post-modern social justice continental versions of philosophy that used to be called in my law school days critical legal studies but now seem to be calling themselves critical legal realism among many other names. Many would argue all law regardless of whether it is a civil, criminal, administrative, or whatever form serves only to enforce dominant cultural and social power structures of the social group Powers-that-be creating and enforcing the rule of law. However, even if true, such structural evil would not be a sound basis nor a practical basis to argue for elimination of all rules that are called laws — at most it would be a basis for modification or elimination of some, many, or most; inevitably, modern civilization would not and perhaps cannot accept anarchy and “the greater evil of private retribution” instead of some form of law. ( Holmes Jr., Oliver Wendell. The Common Law. Holmes Press: Middleton, Delaware (2012) pp. 25-26.)

Similarly, except for outcaste nihilists, no one disputes ethics is a good and all assume inferentially that having rules of ethics is a good. There is a universally assumed inference from “ethics is good” to “rules of ethics are good”. Thus, what once were aspirational, exemplary, or at best custom and etiquette paradigms of professional conduct, often expressed informally and enforced informally, have become omnipresent rules or codes of professional conduct formally expressed and multiplying constantly so as to govern the conduct of every law student, lawyer, and judge in every known Bar of which I am aware and in every activity in every legal forum varying from the lowest clerk-magistrate conducting a traffic hearing or complaint application and on up to the Supremes of the United States and of each state. All assume rules of ethics are as necessary as are rules of law. Even though the Wittgensteinian Rule Following Paradox both as initially argued by Wittgenstein and as developed in its Kripkenstein versions provides fertile ground for challenging this assumption, legal culture ignores this Paradox and its implications when it comes to procreating rules and codes of rules of professional conduct.

The assumption that rules of ethics are as necessary as the rule of law is conceptually unsound and as argument is invalid. The Rule Following Paradox undermines not only the validity of the conclusion that rules of ethics are a necessary good but also the soundness of this inference when contemplated in the state of affairs in which and by which rules of ethics are enforced. Ultimately, conceptually through contemplation of the Rule Following Paradox, the conclusion must be that formal rules of ethics which by necessity must be enforced by some form of violence (such as by denying one the ability to earn a living as an attorney) serve only to enforce dominant cultural and social power structures of the social group creating and enforcing the rules of ethics. Given the rhetoric of present legal culture in the United States worshiping diversity of culture and individual egalitarianism as to meaning and understanding and even happiness in life, formal codified rules of ethics are not a good but an arbitrary and random structural enforcement of power dominance whose limited practical value for promoting and marketing a desired image of the legal profession is unnecessary while doing more harm than good. Codes of Ethics are unnecessary both conceptually and practically because the universal presence and acceptance of the rule of law in present society in and through criminal and civil law with its centuries of substantive and procedural Due Process guidance serves whatever purposes — including aesthetic purposes of image promoting and marketing the business of law as a profession — those in power desire to promulgate through codes of rules of ethics.

For purposes of this essay, I assume foundationalism in ethics: morally good principles are objective or natural kinds in reality existing either in the mind of God; as entities somewhere in the physical or some other universe; or wherever you want the Good to be. If the Good is actually some kind of social construct, my arguments here would only be stronger not weaker. Thus, we can avoid meta-ethics problems with rules of ethics. This essay is a conceptual analysis, though it could just as easily be a practical one. I keep it conceptual because my argument is a radical one disliked by all aspects and practitioners of the profession of law; as I have argued elsewhere, the practice of law has become a religion for many lawyers and in particular for those who make a living pontificating on the law as a reflection of natural law; as an embodiment of Rawlsian ethics; or as an exemplification of any variety of a vast quantity of other available conceptualizations equating ethics with some kind of either universal cosmic justice social construct good or with a universal morality — even social construct relativist theories of ethics assume a morality of universal application though they go through great distortions to avoid saying so. (See generally, Neiman, Susan. EVIL IN MODERN THOUGHT, an alternative history of philosophy. Princeton University Press: Princeton, N.J. (2002)). Regardless of my assuming there are objectively sound moral principles or entities of the Good, or whatever, it does not follow there can be objective understanding, interpretation, or even meaning for rule following called codes of ethics. Thus, my goal here is to create conceptual doubt for the omnipresent assumption that rules of ethics are necessary; once the doubt begins, practical and empirical support will be easy to find.

Personally, I admit to being a dupe in the random and arbitrary structural evil made up of professional rules of ethics. Personally, I also admit to having experienced the pain of watching many other good and honest attorneys become dupes of this random and arbitrary evil called “codes of ethics” as a result of their honest cultural and social inability to understand the dominant cultural language, etiquette, or customs of the wordgame rules or codes of professional ethics. This experience is my motivation for finally writing in essay form my conclusions reached during twenty-five years of trial practice. I say dupes instead of victims because we all come into the practice of law intentionally and knowingly and fully aware there exist professional rules of ethics we must follow or they will bite us if we do not. However, many of us because of a lack of sophistication and cultural indoctrination into the dominant culture of those writing and enforcing such codes of rules were duped into the naive belief indoctrinated into us by law school and the profession that these rules can be knowingly and intentionally followed and even understood and interpreted by anyone with a sense of fairness guided by rationality and that they are so enforced in a rational manner and with a sense of fairness (which they are not). It is this dangerous delusion protecting the emperor from admitting the nakedness of their clothing I am attacking. There is no problem with having a wordgame of ethics to promote standards of conduct and conversations about acceptable conduct; it is quite another form of life to have rules enforced by violence in such a wordgame and giving it a final necessary attribute of violence — the violence consisting of financial ruin and denial of an attorney’s ability to practice law.

Though much of my rule following analysis could erroneously be applied to law following, this is not my intention nor would it be rationally sound to do so. To paraphrase Voltaire, even if law following were ultimately to be shown to be a meaningless concept no better than a leap in the dark, if the rule of law did not exist, it would be necessary to invent it. It does not follow from the fact the United States was founded upon a rebellion in which its founders were considered by the rule of law to be criminals and traitors who would be hanged if caught that we should be an anarchy. However, if rule following in the wordgame of professional ethics is conceptual nonsense, it does follow we should be an anarchy as to professional rules of ethics because demanding logically impossible rule following from individuals is itself an immoral demand especially when the rules are enforced by violence; i.e., to demand the blind to see or to demand one both be and not be at the same time to avoid punishment are different in degree but not in substance to demanding one follow a teleological or even pragmatic rule whose meaning and rule following is inherently conceptually unknown or non-existent.

II. Realism Not Idealism Is Assumed

While assuming moral realism and not advocating nihilism, I am also not advocating nor admitting to ethical idealism by my assumption of a moral reality. In my lifetime, I have seen both ethics and law become secular religions. Though some dispute whether the latter is entitled to such worship, almost no one presently disputes ethics and morality and any rule following called ethical and moral rule following as entitled to such worship. This idealism toward ethics and its rule following has no basis in the reality of professional codes of ethics especially in the law. The first code of ethics for any Bar in the United States was adopted by the State of Alabama on 14 December 1887 and it served as the foundation for the canons of ethics of the American Bar Association which then spread to almost all states. The supposed motive was:

… to advance the science of jurisprudence, to promote the administration of justice throughout the State, uphold the honor of the profession of the profession of the law, and establish cordial intercourse among the members of the Bar of Alabama.

The object of the Code of Ethics is to condemn practices which have prevailed, and
which should be avoided, and to set the seal of condemnation of the association upon certain conduct which has been practiced to the detriment of the profession.

— Jones, Walter Burgwyn. “First Legal Code of Ethics Adopted in the United States”. American Bar Association Journal. Vol. 8, No.2 (Feb. 1922) pp. 111-113.



Beautiful sounding words but the reality of the goals and purposes of these words was to create rules to use and to be useful against “carpetbagger” lawyers and judges whom the esteemed lawyers and jurists of Alabama detested while being more than willing to accept in 1887 and for another seventy five years an Alabama in which racism and classism were not only considered morally good but this supposed Good was enforced by supposed ethical law following and rule following requiring courses of action varying from Jim Crow laws and social serfdom to mob lynching and forced de jure and de facto segregation of white from black and poor from rich. Id. Just as the Alabama legal code of ethics did nothing to make Alabama attorneys take courses of action now universally assumed to be correct and required by ethics and morality (in fact, given its true motive to control so-called carpet baggers who were trying to change Alabama culture to what is now socially considered to be a better society, this Code probably did more harm than good), there is no factual or rational reason for assuming any present legal code of ethics is making the law any more moral or an aspect of the Good with it than without it — even if I assume there is a moral reality the “science of jurisprudence” can know just as the eminent lawyers and jurists of 1887 Alabama assumed. Id. For those who worship the rule of law and moral reality, present professional rules of ethics may be as much a mockery of their worship of the law and morality as was the 1887 Alabama code of ethics. Regardless of how real morality may be, especially given the conceptual problem presented by the Rule Following Paradox, academic scholarship and the law should not assume rules of ethics are moral.

III. The Rule Following Paradox

The presently called Rule Following Paradox (RFP) is shorthand for various contemplations of problems in the philosophy of language and of mathematics by the analytic philosopher Ludwig Wittgenstein in his Philosophical Investigations (PI); the most direct expression of the Paradox in the PI is: “[t]his was our paradox: no course of action could be determined by a rule, because any course of action can be made out to accord with the rule”. (Wittgenstein, Ludwig. Philosophical Investigations. Hacker, P.M.S.; Anscombe, G.E.M; Schulte, Joachim; trans. Blackwell Publishing: West Sussex, United Kingdom (2009) at ¶201.) This Paradox was highlighted; made more explicit; brought into the mainstream limelight; and studied in analytic detail instead of the dialectical Socratic method of the PI by the philosopher Saul Kripke in his Wittgenstein on Rules and Private Language in which he writes this Paradox is: “the most radical and original skeptical problem that philosophy has seen to date” because it undermines the possibility of ever following rules in our use of language and thus the possibility of ever having objectivity in the meaning of words. Because many dispute Kripke’s treatment of the RFP, it is often treated as a distinct RFP and referenced as Kripkenstein.

It is not my purpose here to get into a rigorous all-encompassing contemplation of RFP. Given my realist assumption that moral principles or the Good make up an objective reality we can come to know and understand as we do sense experience, there is no need to do so. A basic understanding of the essence of the RFP and of how it occurs in natural language is sufficient.


Both Wittgenstein and Kripke and most philosophers contemplating RFP begin by analyzing mathematical language as an expression of RFP because mathematical language is the clearest example of what is almost universally assumed to be clear and precise rule following expressed in unambiguous words applicable to an infinite number of cases that share with natural language the potential for an infinite number of meanings for words, sentences, and rules derived from a finite set of experiences — in the case of mathematical language unlike natural languages however, the infinite possibilities are clear and precise and the rules determinate. If RFP is a real problem in the language of mathematics, it is a real problem in any natural language. Therefore, I will also begin with an analysis of RFP in mathematical language before natural language.

Since I have assumed realism for moral principles and their Good, for consistency, I will assume realism for numbers and numeric entities in my reasoning. Again, as with morality and ethics, if numbers are really just social constructs, my argument here only becomes stronger.

We must begin by a holistic understanding of the transition from the finite nature of our empirical experiences including the experience of speaking a language to the infinite conceptual possibilities of reason and language. Not only is this transition the source of the RFP problem, it also marks a conceptual wordgame distinction between descriptive and normative rule following:

… although an intelligence tester may suppose that there is only one possible continuation to the sequence 2, 4, 6, 8, . . ., mathematical and philosophical sophisticates know that an indefinite number of rules (even rules stated in terms of mathematical functions as conventional as ordinary polynomials) are compatible with any finite initial segment. So, if the tester urges me to respond, after 2, 4, 6, 8, . . ., with the unique appropriate next number, the proper response is that no such unique number exists, nor is there any unique (rule determined) infinite sequence that continues the given one.

— Kripke, Saul. Wittgenstein on Rules and Private Language. Harvard University Press: Cambridge, MA (1982) p. 60.



An intelligence tester asking me to predict the next number in the sequence 2, 4, 6, 8, . . . is on the surface testing my understanding of rule following having descriptive meaning — in this case the descriptive meaning is also predictive. The obvious course of action for anyone with the necessary grammar school experience and understanding is to predict the correct answer to be 10; the rule to be followed is the function add(x + 2). However, this answer is not obvious because of any descriptive rule following that is an experienced fact of this state of affairs in the same way the numbers are experienced facts: we experience no addition or other function in the facts. There are an infinite number of possible rules I can experience and follow and resulting courses of action that will predict the next number in this series and go on to predict any number at any point in a following infinite series of courses of action and of their numbers.


The remainder of this essay is at AGAINST RULES OF PROFESSIONAL ETHICS .


The newest cult created by worshipers of science who know little about science is the cult of artificial intelligence. It appears anything is allowed that serves to ridicule hoi polloi beliefs in their uniqueness as human individuals. The Powers need no such beliefs because they have power as an end in itself, including the power to tell hoi polloi what they ought to believe. Artificial intelligence is artificial but not intelligence. It is millions of lines of complicated computer code that cannot speak the simplest language of the simplest human child. In the simplest of terms, code is not language and language is not code even though informally sometimes it is incorrectly called “computer language”. Neither the computer nor any linked community of computers such as the internet speaks a language, humans represent language information in the computer through code in the same way musical notes represent human music. Sheets of music however are not music.

Code is a finite set of rules for getting specific outputs from specific inputs. This is why you can create code for a and any language alphabet but not for a language directly: finite input leads to finite output. All non-mathematical language is vague and indeterminate. Vagueness and indeterminacy cannot be coded: infinite input leads to an infinite output.

Though language is sometimes a rule-based activity, it is not defined by rules — it defines rules and pretty much everything else. Language is best described as a holistic social activity by which individuals in a society communicate. Do not commit the Homunculus Fallacy that is omnipresent in artificial intelligence; in much of modern linguistics; and even in the related cult of so-called cognitive science in which behaviorism tries to hide as a hypothetical-deductive scientific model. (For more contemplation, see Kenny, A.J.P. “The Homunculus Fallacy”. (1971). Reported in his The Legacy of Wittgenstein, Oxford: Blackwell (1984), pp. 125-36.) Language does not exist in the brain anymore than code exists in the computer. A brain is necessary to speak a language in the same way that a computer is necessary for computer code but it is nonsense to say the brain contains or has rules for language in the same way it is nonsense to say the computer contains or has code. Language is the social activity by which we create words such as “brain” and create their meaning not the other way around. To paraphrase the Ancients and Star Trek: language is the fire in which we burn. Talking about language involves an observer effect as much as does quantum physics, however there is no way to compensate for it but we can be aware of it. For more contemplation, see Bennett, M.R.; Hacker, P.M.S. Philosophical Foundations of Neuroscience, Oxford: Blackwell (2014).


The following is the prologue of an essay that can be read in full at Preliminary Argument:

We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away a new one must at once be put there, and for this the rest of the ship is used as support. In this way, by using the old beams and driftwood the ship can be shaped entirely anew, but only by gradual reconstruction. — Quine, W.V. Word and Object. Martino Publishing: Mansfield Centre, Connecticut (2013) at Epigram. Original in Neurath, Otto. “Protocol Sentences”. Reprinted in Ayer (ed.) Logical Positivism. The Free Press: NY, NY (1959).

I. Prologue / The Nature of the Concepts in Philosophy of Mind that Make No Sense.


This essay is a beginning attempt to synthesize and to make sense of the inconsistencies and outright absurdities present in many writings in the philosophy of mind that have led me to conclude there is a basic conceptual misunderstanding in modern philosophy of mind as to what it is contemplating just as there are equally absurd conceptual misunderstandings in the work calling itself scientific study of the mind. The conceptual errors are so foundationally basic to the arguments being made that it makes it impossible to take seriously many of the arguments presented in the readings and their conclusions. Yet, these errors are completely ignored and the arguments and their conclusions are taken seriously both by many philosophers and by many neuroscientists who seemingly believe them on faith or argument by authority. This only makes matters worse. These conceptual errors seem to be related but I am still unclear of how or why. Much of it appears to be due to an archaic realist view of scientific theory that romanticizes it.

Conceptually, for example, arguing whether there exists both unconscious perception and conscious perception is equivalent to arguing whether there exists √1 and √-1 (imaginary number i). Of course they exist; here they are in the previous sentence, I just wrote them down. These concepts exist as meaningful words if you can find a use for them or if they are useful in some wordgame but such existence does not mean they are in the same wordgame. Even if their only use is in the aesthetics of using them, this aesthetics exists and is their meaning in the same way that good fiction exists and is meaningful. According to the German mathematician Leopold Kronecker, “God made the integers; all else is the work of man.” This is a statement by a mathematician of a philosophical problem not a mathematical one. Mathematicians and scientists using the imaginary number i do not, need not, and probably should not care who made it as long as it solves the problem they are trying to solve. However, the confusing of or treatment of √1 and √-1 as the same wordgame or type of number simply because they are both square roots is a conceptual error as mathematicians know and not an empirical error. The difference between these number types and the concept of a square root cannot be decided empirically — other than nominally by how they are written as numerals. Without doubt, there is some descriptive and instrumental or predictive values to the concepts of conscious perception and unconscious perception as there are both to √1 and √-1, this does not require the conclusion that these concepts are of the same type or meaning or even exist in the same wordgame so that they can be compared as if they were — in the same way that 1 and -1 are not the same when used under a √ sign or even that √1 and √-1 are the same simply because they are square roots.

Matters are made worse when such conceptual confusion found everywhere in philosophy of mind is then routinely and seemingly unknowingly used by so-called cognitive science in cargo-cult science experiments to confirm the conceptual bias of those running the experiments. The basic path of scientific reasoning is as follows: 1) to hypothesize — for example, that all swans are white; 2) observe — all available swans; 3) predicate the property — all available swans are white; and 4) conclusion — all swans are white. This reasoning presents well-known conceptual problems of induction and the logical nature of cause and effect explanation as part of the pragmatic value these observations may have, however this reasoning is scientific reasoning. However, the following reasoning under no empirical conditions is science or even valid reasoning: 1) hypothesizing that all swans are white; 2) deciding to observe only white swans; 3) intentionally and knowingly observing only white swans; and 4) concluding from these observations that all swans are white. Such knowing and intentional reasoning is not even cargo-cult science because at least cargo-cult science can be falsified by the cargo planes not showing up. It may still achieve pragmatic value by coincidence due to the rarity of black swans and for aesthetic and propaganda meaning and has the advantage of avoiding conceptual problems of induction and the nature of cause and effect explanation but does so at the expense of not being induction, science, nor explanation of anything except confirmation bias.

Examples of this pseudoscience at work in philosophy of mind are the experiments done on persons who have gone through a commissurotomy or brain surgery that resulting in blind sight. As with any surgery, the surgery leads to observed behavior by the patient that is different from before the surgery. Just as after surgically removing a patient’s arm or making a white swan black a scientist should not expect the patient to behave as a two-armed person nor for the cosmetically created black swan to be white, a scientist should not expect the patient after brain surgery to behave the same as before. Brain surgery patients that are allowed to use the entirety of their available abilities — such as moving their head and eyes as necessary to have full perception of their acts and the things around them — behave as a conscious individual perceiving their actions and the things around them in the same way a person with one arm will get by in life by using other aspects of their humanity in ways two-armed persons do not. An example of this state of affairs is the blind psychologist Donald Kish, the founder and director of the nonprofit World Access for the Blind, and other blind persons who use their other abilities such as human echolocation (orally created sonar) and their sense of hearing to make up for their blindness and thus know what it is like to be a bat without becoming a bat.

The patient in these experiments is one conscious person despite their disabilities until so-called cognitive scientists come along to say differently by invalid reasoning from predetermined conclusions. With the aid of neuroscience, they intentionally choose patients who have had a commissurotomy or other surgery because they know of the resulting blindsight or other effects of brain surgery and then knowingly and intentionally experiment on these unfortunate souls by: 1) intentionally not allowing the patient to move their head or eyes as necessary to perceive fully their acts and the things around them; 2) intentionally restrict what the patient can perceive to specified objects in the intentionally restricted field of vision; 3) intentionally restrict the patient’s language ability to say and understand an infinite number of words they have never heard before by restricting them to answering only specific questions asked in order to observe the answers the experimenters expect and want to hear; and 4) then observe the blindsight and other effects of brain surgery they knew would occur thus confirming what they already knew would occur. Why did the experiments restrict the patients’ eye and head movements, what objects to observe, and what questions they could answer? These restrictions occur in order to assure positive results. This is equivalent to throwing a one-armed person in a swimming pool with their legs tied together and then observing and concluding that a one-armed person is not a very good swimmer. The reason for tying their legs together is to assure the result of not being a good swimmer.

The most sophist and pompous aspect of these experiments is when the experimenters go beyond the confirmation of their bias not only to the invalid conclusion (actually, just the fabricated conclusion) that the commissurotomy patient is now not one consciousness but two (left and right side of the brain) and that the blindside individual has a defective link between some type of mental monitoring system in the brain and visual sense perception (an example of the homunculus fallacy) but then actually to tell the patients these conclusions. It is bad enough the patients must suffer with the disabilities they have, they now are told they are not one consciousness but two and that there is a homunculus in their brain deciding what they will or will not see. Might as well tell a blind Mr. Kish that he is a bat. What incredible pompous arrogance. Having like gods created a fictional Adam and Eve in the brain, these pseudo-scientists unlike the God of Genesis skip creation of the Garden of Eden to go directly to create suffering for the lives of their creations. (Given that such arrogance is considered ethical further proves my belief that ethics is simply ruling class ideology). Philosophers and cargo-cult leaders and followers calling themselves scientists are not even able to define what consciousness and perception are for themselves or any one person; they have no basis to separate the unknown into two unknowns other than for the aesthetics of being gods.

A. Summary of My Preliminary Argument


The following is the first paragraph of an essay that can be read in full at “PEOPLE_ONLY_BELIEVE_WHAT_THEY_WANT_TO_BELIEVE”

I. Prologue / The Nature of the Problem and Questions Presented


The aphorism “people only believe what they want to believe” is a common description by proponents of an observation or argument of their opponents’ beliefs — proponents and opponents in a relative sense, this aphorism is often said simultaneously by all parties having opposing descriptions or beliefs regarding the same sense experience, theoretical dispute, or “fabric” made of both. What usually occurs, as exasperation sets in, is that proponents and opponents battling over the truth of their respective claims of knowledge often end their disputes by stating this aphorism of each other as a final means to dismiss the opponent’s beliefs as not justified in any epistemic, normative, nor even in a rational sense but as simply an irrational act of will immune to reason. In such arguments, though it is assumed that truth is the goal of belief, the method being used seems to reduce epistemology to a “search for methods that yield verdicts that one oneself would accept”. As a philosophical observation in Western Philosophy of how beliefs are sometimes justified, this aphorism goes as far back as the Ancient Greeks and is formalized in modern psychology as “confirmation bias”. Furthermore, as a matter of practical reality, in our modern Technological Society in which the average individual is flooded and bombarded by wanted and unwanted information almost every waking minute, it is a necessity to have a reflex or intuitive process of deciding between “junk beliefs” and beliefs with value in order to make it through the day. Except for those whose occupation it is to produce ideas, for most people, moments allowed for deductive or other logical contemplations of beliefs are few and far between. However, this aphorism historically is not a creation of modern technology sound-bite wordgames and polemics or relativism nor solely a trait of Clifford’s “den of thieves” but describes an epistemic voluntarism not limited to the uneducated or unenlightened. The Russian novelist Leo Tolstoy having spent his life among the ruling classes wrote:

I know that most men—not only those considered clever, but even those who are very clever, and capable of understanding most difficult scientific, mathematical, or philosophic problems—can very seldom discern even the simplest and most obvious truth if it be such as to oblige them to admit the falsity of conclusions they have formed, perhaps with much difficulty — conclusions of which they are proud, which they have taught to others, and on which they have built their lives.