AN EXISTENTIAL META-ETHICS: ARGUMENT FOR A RETURN TO ITS ROOTS IN NIHILISM AS A MORALITY

I. PROLOGUE / THE NATURE OF THE PROBLEM

 

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

 

The correct answer to the trolley problem thought experiment omnipresent in academic, philosophy, and experimental psychology studies on ethics and morality has finally been revealed through the acts of a two-year-old toddler who despite his age is an old school existentialist and is shown in the YouTube video entitled “A two-year-old’s solution to the trolley problem” at Trolley Problem. The general form of the thought experiment is as follows. You see a runaway trolley moving toward five incapacitated people lying on the tracks. To save them, the option exists to pull a lever thus diverting the trolley onto a side track where it will kill only one person. What do morality and ethics require be the good and evil decisions? The video shows a two-year-old boy happily playing with his trolley set when the Power-that-be in his life consisting of his father interrupts him for an important life lesson on good and evil. The Power puts five pretend persons on one rail line and one pretend person on the other rail line, as the pretend trolley reaches a fork in the one line leading to the two lines with the pretend persons, the Power asks “Oh oh, what do we do now? The train is going to crash into these people”. So, the kid dude takes the single pretend person from the one line, adds them to the five pretend persons on the other line, and then happily pretends to run the trolley over all six then continuing with his play as he was before the Power interrupted him with a stupid experiment dependent on a pretend almost impossible chain of events that serves only to indoctrinate human reasoning into a cold-blooded calculation of unimaginative restricted options. The trolley experiment is more suited to training concentration camp guards as social engineers than in learning anything about good and evil in the supposedly diversity thinking modern social justice world in which clear options are usually nonexistent.

 
Here is a more old school existential experiment in normative thought. You are driving your two seat car by a bus stop and see three people there: 1) a physically injured person trying to get to a hospital; 2) an old close friend that you have not seen in years; 3) someone you recently fell in love with. You can only give one of these people a ride in your car because there is no room for more than two people. So, who gets the ride? The nihilist answer is: let your old friend drive the injured person to the hospital while you stay with your love at the bus stop.

 
The kid’s nihilist response to the Powers’ wordgame of ethics so he can concentrate on his game of trolleys puts him in the true existential hero ranks of Camus’ Sisyphus, Meursault, and the Rebel/Conqueror of Myth of Sisyphus. As with Sisyphus and his boulder, we must leave the video imagining the kid dude happy as he continues in his meaningless task. (If one has a satirical sense of humor normally not allowed in proper company, the music video version of the toddler’s solution is funnier:  “Kids Solution To The Trolley Problem THUG LIFE”. )

 
The true old school existential question in the trolley problem is not concerned with the freedom of the few Powers authentically controlling the trolley switches but with the freedom, if any, of the vast majority of humanity consisting of the individual incapacitated tied to the tracks. That is, of the waiters out there that new school existentialism ridicules for their being too good at their job and therefore inauthentic. As they “hear Time’s wingèd chariot hurrying near; And yonder all before us lie Deserts of vast eternity” should they abandon all hope and as did Meursault lay their existential “heart open to the benign indifference of the universe” or engage in Kierkegaard’s religious final stage of hope in God to make the existential “qualitative transition of the leap from non-belief to belief”. Or, more practically, given the chance, how many of the Other tied to the tracks would they kill in a Nietzschean will to power act to save themselves? If history is any clue, the answer is pretty much all of them. But, how many are they allowed actually to kill and who is it that decides whether this natural law of survival is the same Natural Law derived from Divine Law that actually allows them the choice for killing of the Other? How do questions of individual life become questions about cosmic Natural Law?

 
Beginning in the modern world with early 19th Century Soren Kierkegaard and continuing to mid 20th Century Albert Camus, it was the contemplation of the meaning or lack of meaning of individual life that was the foundation of existentialism not social engineering. Kierkegaard and Camus sought individual passion for life as the foundation for meaning in life. However, a passionate life by its very nature is existentially the greatest act of discrimination.

 
As the modern world becomes a Technological Society in which by the conceptual and practical necessity of the epistemology of science and of the methodology, economics, and technique of technology, humanity is becoming C.S. Pierce’s “colony of insects” whose group knowledge far exceeds the knowledge of any expendable individual, old school existentialism is needed more than ever. As Orwell accurately predicted, “[b]y comparison with that existing today, all the tyrannies of the past were half-hearted and inefficient. … The possibility of enforcing not only complete obedience to the will of the State, but complete uniformity of opinion on all subjects, now exist[s] for the first time.” Old school existentialism saw the possibility of an individual life of passion despite despair. New school existentialism sees passion and the individual discrimination that passion by necessity creates between that for which we are passionate and that for which we are not as cause of despair not the solution. Rather, it sees social engineering and ethics reducing everything to the needs of cosmic equality as the only hope out of despair thus serving the necessary need of Technological Society to reduce the individual to isolated paper cutout worker bees — genderless; raceless; no ethnicity; no national, group, or social identity; no family or marital allegiance; nor any acceptable sense of community other than their work including academic work; and pretty much eliminating any passion that would threaten the technological collective — while at the same time whining about the technological collective. All individuals are reduced to being a social construct identity but no individual is allowed to be a social construct identity.

 
Passion is the will to power that compels the individual to cut through the meaningless of life to seek that which the individual decides is worthy of singling out, loving, and fighting for either in offense or defense despite the struggle being without hope of victory. Existentialism is supposed to be the enemy of the authoritarian and the collective. Yet, it has become the exact opposite. New school existentialism with its post-modernism and social justice theory has simply hijacked passion to imprison it within aesthetics so that no one notices the passion is gone.

 
Instead of going old school, we get the new school existential groupthink of Rawlsian utilitarianism, structuralism, post-structuralism, post-modernism, social justice theory, or whatever the Powers-that-be want to call their foundational need for cosmic so-called social justice chaining all individuals to the tracks of their wordgames of ethics and morality — living, dead, or yet to be born — except for the few Powers controlling everyone’s trolley so as to make sure they run over only the individuals they have decided should be run over. Kierkegaard and religion are now irrelevant and subservient to the law and Camus would not even be considered an existentialist any longer just as he denied he was one toward the end of his life because it appears he saw what was coming. Other than serving as an object of satire for Woody Allen movies, old school existentialism has become irrelevant to the class struggle of history.

 
What happened?

 
What happened are the success and aesthetics of Technological Society: its technological material power over the banality of the universe gives the Powers the necessary pragmatics to avoid physical nihilism; and its power of Orwellian propaganda — though it constantly whines about the threat of nihilism — gives the Powers the conceptual power to avoid nihilism as an opponent to its ideology. This propaganda derives its power from the aesthetics of morality and ethics: the ontology present in their wordgame of an objective ultimate value called “good”. Nihilism is a threat to this ontology by making the aesthetics of good and evil equal.

 
Nihilism is the one fear of all successful philosophies: Buddhism seeking the oneness of the whole or the wholeness of the one — which it is, I forget — to the pretend nihilism of Nietzschean continental philosophies worshiping Christianity without a Christ and onto the analytic rationalists and also the empirical pragmatists who all fear the existence of a social ethical and individual moral vacuum in human society as so irrational or so impractical as to make civilization unworkable. This is true even for my boyhood hero Camus and for existentialism as it morphed into social justice engineering. His quote from The Rebel that I use as an epigram is his last genial comment on nihilism and the last intelligent one to have come out of existentialism and its progeny founded on the ramblings of Sartre and his followers’ hijacking of existentialism. Camus goes on in The Rebel to conclude with a condemnation of nihilism:

Nihilistic passion, adding to falsehood and injustice, destroys in its fury its original demands and thus deprives rebellion of its most cogent reasons. It kills in the fond conviction that this world is dedicated to death. The consequence of rebellion, on the contrary, is to refuse to legitimize murder because rebellion, in principle, is a protest against death. — Camus, Albert. The Rebel. p. 285.

 

Camus came from a dirt-poor background and thus likely did not get to play with trains as a child, so why he eventually chose to adopt socially acceptable philosophy is understandable; though — as I will later contemplate — to his credit he subsequently began to regret his sellout to the Powers before his untimely death. However, even those who must have been able to play with trains in their youth such as the proponent of philosophical phenomenology Bruce Wilshire (who ironically ended his career in philosophy as chair of the philosophy department at Rutgers University which at the time was one of the most dominant analytic philosophy departments in the United States) have nothing good to say about nihilism:

Nihilism means to mangle the roots of our thinking-feeling-evaluating selves, to lose the full potential of our immediate ecstatic involvement in the world around us. It means to lose full contact with our willing-feeling-valuing life-projects to have a shallow sense of what is valuable in human life. It means to be arch, smug, dried out — to be a talking head among other talking heads. Speak and reason as we will, we are no longer moved in our depths. — Wilshire, Bruce. Fashionable Nonsense, a critique of analytic philosophy. State University of New York Press: Albany, NY (2002) p. 2.

If all the Powers and their intelligentsia are all opposed to nihilism, there must be something to it, especially for those that are not in the Powers — either Inner or Outer Party.

 
I will argue that existentialism started with nihilism and it should have ended with it as its meta-ethics foundation for all other existential thought — including for morality and ethics — instead of treating it as an “evil” problem to be solved as does social justice theory in all its forms whether it is the analytic rationalism of a John Rawls or the Nietzschean relativists proclaiming the death of God in order to birth themselves and multiple gods in their image.

 
Meta-ethics seeks to know whether there are properties or attributes common to all instances of the words “good” and “evil” in all their forms as normative universals of ultimate value. The term “normative” as are all words is vague and indeterminate with many uses and usefulness. Meta-ethics deals with the conceptualization of evaluative and perspective normative good and evil. It does not deal with the normative in a descriptive rule-following or descriptive predictive sense (though rule-following will be an issue in meta-ethics) such as for example: “to play chess, one must cannot move the pawn more than two spaces”; “to get to manhattan quickly, one ought to take the subway”; “to help your plant live, give it more sun”; “To get to the moon, follow classical physics”. Meta-ethics deals with good and evil in terms of ultimate value: “honesty is good”; “robbery is evil”; “killing is evil”; “all humans have equal human rights”.

 
The conceptual problems raised by various meta-ethics proposed properties and attributes for the words “good” and “evil” in all their forms as normative universals is well known — varying from the famous Hume’s Guillotine and Moore’s Open Question Argument to J.L. Mackie’s error theory and Susan Neiman’s history of philosophy as an inquiry into the nature of good and evil. Though it is important to seek theories of knowledge that can naturalize morality and ethics or at least by Rawlsian style rationalism link them to knowledge about the world, in many ways this problem in meta-ethics is simply irrelevant to modern society. In Technological Society, because its power of propaganda exists independently of any epistemic worth other than for power as an end in itself (As Orwell wrote in 1984, “God is Power”), it is morality and ethics that now often decide not only what ought to be the state of affairs but what actually is the state of affairs — not just as theory-laden language but ontologically as the language of fact and truth. For example, “gender is a social construct” is no longer a question of fact but of ethics; the Powers want it so, it is so. Thus, given this state of affairs, I will argue that nihilism not only acts as individual morality but also as a theodicy because God is the ultimate nihilist. The following I will argue in this essay are all ontologically true, not just linguistically true as a matter of language based on there being “nothing outside of text” or a similar philosophy of language, but ontologically objectively true — to the extent these words can have meaning — for the concepts of evaluative and perspective normative ultimate valuation of good and evil:

1) In the language wordgames of ethics and morality, there are no objective foundational prescriptive or evaluative values for good or evil in a normative sense though these wordgames always assume objective foundational absolute values. Saying there is no truth is a contradiction and nihilism does not require such inconsistent skepticism toward descriptive reality and truth especially toward scientific truth and this is not the nihilism that I will be contemplating. Saying there are no objective values for ultimate normative good and evil is not a contradiction. Nihilism accepts this lack of value as factual truth.

2) Good is anything that one approves as giving meaning to one’s life. Evil is anything of which one disapproves because it opposes or threatens that meaning.

3) Morality and ethics are distinct conceptual forms of life or wordgames. Morality consists of rules by which an individual analyzes compliance with their Good. Since all rules are talked about by public language, morality seems to be public but ontologically it is an individual construct that exists ontologically only as action. Ethics is a set of rules by which a social group defines what is good for the group. Because groups cannot act except through individuals, ethics is ultimately decided by the most powerful of any social group and thus ethics is always ontologically ruling class ideology.

4) A necessary and final ontological attribute of all morality and ethics is violence. If an individual is unwilling to enforce their morality upon the Other by violence then it is simply habit. An ethics unwilling to enforce its ideology by violence upon the Other is simply etiquette or custom. Ethics reaches perfection as ruling class ideology with a monopoly on violence: that is by becoming law. The more a society is dependent upon ethics and law for its social cohesion, the more a society is dependent upon violence for its social cohesion. To paraphrase the philosopher Willard Van Orman Quine’s comments on science, the language fabric of normative language impinges on experience only at the edge of the dagger hidden beneath the fabric: acting upon its attribute of violence.

5) There is no interpretative language that can logically derive normative language from descriptive language and thus neither moral nor ethical beliefs need be based upon true assertions of fact: one can rationally say without contradiction “it is snowing but I do not believe it is snowing” or “Trump is President but I do not believe him to be President”. Epistemically, the foundation of ethics and morality is having norms that are not based on descriptive reality but on what reality ought to be. This gives ethics and morality the power of being the only descriptive wordgame in which a concept of non-pragmatic truth is more than just a deflationary assertion of what is: one can rationally say “there is no objective basis for rape (murder or whatever) to be wrong but I believe it to be objectively wrong”. However, this creates the weakness that pragmatic truth — that is whether an ethics or morality actually works to solve a problem — and descriptive assertions of what is are irrelevant to ethics and morality. For example, for those of a certain ethics, “Trump is not President” becomes a true assertion of fact regardless of whether he is or is not President because according to the norms of such speakers Trump ought not to be President — and similarly the same could have been said of a Clinton if the election results had been different.

6) Modern Technological Society ruling class ideology will by necessity seek through ethics to have power and control over all individual morality including religious morality just as it needs control over everything else in reality. This necessary methodology serves humanity’s needs as a form of life to discover, explore, and conquer the universe trying to kill both the individual and humanity and requires a building of collective knowledge at the expense of individual knowledge — C.S. Pierce’s “colony of insects” with the individual and their morality expendable if not subservient to ruling class ideology.

7) The early religious existentialist Kierkegaard saw hope for individual meaning for the individual living even in necessary servitude to the arbitrary and random Fates through three ascending stages of what are now called phenomenological experiences: aesthetic, ethical, and religious. The incomplete work of Camus reversed the ascending experience: religious, ethical, and aesthetic. I want to begin anew the early thought of the work of Camus by dissolving all three stages into nihilism as a morality based on action not words for the individual trying simply to find meaning in the unavoidable incapacitating ruling class ideology — its ethics — of Technological Society. An opposition struggle to Technological Society so as to continue historical struggle cannot derive from ethics or even from socially acceptable morality but only from nihilism as a morality.

— The remainder of this essay is found at: AN EXISTENTIAL META-ETHICS: ARGUMENT FOR A RETURN TO ITS ROOTS IN NIHILISM AS A MORALITY

PRELIMINARY ARGUMENT FOR A HOLISTIC CONCEPT OF CONSCIOUSNESS AND PERCEPTION

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

LAW AND DATA SCIENCE

Data science has been successful in achieving accuracy rates as high as 83% in predicting the outcome of court decisions: Artificial intelligence prevails at predicting Supreme Court decisions. It is only a matter of time before the algorithms used to predict court decisions progress to the point of actually being able to make better decisions than the judges who now make them, that is of replacing judges and juries to be judge and jury but not the executioner — assuming we can get around the human intuitive block to allowing an algorithm or mathematical formula make normative decisions for us. If the words “justice” and “justice system” are to have any practical or pragmatic social construct meanings other than nominal normative meaning created solely to benefit the few in power in the future of our Technological Society, we need to get around this antiquated and unwarranted intuition.

 
For anyone who has studied history and existential reality, there should be no such intuitive block. The progression of history is an anarchic chaotic progression of random and arbitrary events with any historical patterns that exist almost always ignored by those who make history especially normative history; they are ignored in order for the Powers-that-be who create and define the law and its norms to create a future in their image irrespective of the images of their predecessors who used the same will-to-power to create the present. The prior essays entitled “Why Tolerate Law?” and “An Existential Philosophy of Law” have well established that the concept that judges use the facts and something called the law to reach conclusions or that there is such a thing as the common law that serves as premises for future legal decisions are both nonsense. Judges make decisions to enforce their personal ethics and morality through a monopoly on violence with protecting such monopoly one of the goals of their ethics and morality.

 
Even if a judge wanted to synthesize the thousands of pages of common and statutory law and the convoluted almost incomprehensible intertwined facts involved in even the simplest of court decisions, they could not do so. It is simply behind the ability of human consciousness because of the complexity and the large amount of data and information involved. In order to achieve some semblance of fairness and to make court decisions other than simply a product of a particular judge’s personal ethics and morality and thus of their biases and prejudices, we need to use the great human creation of data science and its algorithms. For a detailed argument on this issue, please see the extensive essay: “Knowledge and Truth in Data Science: Theory Without Theory?” .

LAWYERS AS LEADERS / NOT!

There is a new fad among law schools: teaching lawyers to be leaders. Even Harvard Law School has such courses both as part of their curriculum and as separate continuing education courses at $10,000 tuition for each. This would be funny if it were not so sad and even scary.

 
Lawyers are the ultimate followers. Take any established, well respected, and reputable United States lawyer or judge and transfer their birth and life to a different culture such as North Korea, Stalinist Russia, or any similar non-democratic system of law and they would just as ardently preach the divinity of “the rule of law” in those countries as they do in the United States. The “rule of law” has never been on the right side of history and never will be. Law exists to enforce status quo ruling class ideology and serves to suppress any leaders that would oppose status quo ruling class ideology — including lawyers that would be such leaders. From Socrates to Clarence Darrow and onto lawyers such as Abraham Lincoln, Nelson Mandela, and even to a Richard Nixon whose working class coarseness and background were seen as beneath the culture of the Washington elite and thus justified their unforgiving hatred of him, any lawyers that try to lead instead of follow will inevitably face legal problems, suspension, disbarment, and even imprisonment from the law.

 
Lawyers get into law because they want to follow rules and believe in rule-following as a distinct and unique virtue completely ignorant of Wittgenstein’s Rule Following Paradox and any modern philosophy of language and even of science. Does not matter the rule, all rule-following is a virtue for the lawyer mentality. This would not be a problem if they would admit to such form-over-substance mentality and thus incorporate or insert methodology to control it within the practice of law and the judiciary but they do not. In fact it is the exact opposite. The judicial system is the largest oligarchy in the American Republic. Its supposed leaders are chosen for their life tenure jobs giving them complete immunity for their actions by small committees of other lawyers based not on any merits that can be tested and falsified but based solely on political etiquette and ideology standards. After its primary purpose of maintaining the status quo ruling class ideology through a monopoly on violence, the second purpose in life of the rule of law is to hide its primary purpose of maintaining ruling class ideology through a monopoly on violence.

 
Having served in both the military and in the legal system, as anyone who has served extensively in both will most likely tell you, I know there is significantly more freedom of speech and development of leadership by merit in the military than there is anywhere in law. As the military knows, leaders are developed not taught. If one needs to be taught how to be a leader, one is not a leader and never will be. The first rules of leadership are to treat all those you lead fairly and not to demand anything from them you would not demand or expect from yourself. These rules are nonexistent in the oligarchy of the law. In practice, what leadership exists in the practice of law consists of the networking leadership of using one’s connections to bring in clients and business to a law firm — that is it is the leadership of making friends with others in order to benefit financially from the friendship. This is not leadership in any sense but in the sense of nepotism — there is no merit-based meaning to such leadership.

 
The prior essays entitled “Why Tolerate Law?” and “An Existential Philosophy of Law” have established how law has become the unopposed normative power with a monopoly on violence in the Western World. What these law school leadership training courses are really about is networking and about establishing an etiquette wordgame for being called a lawyer-leader within the context of ruling class ideology. These courses teach those that can afford the teaching and who are already at least indoctrinated into class ideology what to say and how to say it so that those in power will recognize you as a follower of their power who can be trusted to follow their orders and to make others follow orders so as to maintain their power. It is not about being leaders but about being followers who are nominally entitled to call themselves leaders for the benefit of those they follow and to hide their ignorance of the nature of law.

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