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A Better Interpretation of Law

A Tract Book Essay

By

Anthony J. Fejfar, J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

Some people are legal literalists, they argue that there is one and

only one interpretation of law that is valid. I argue that legal literalism is

wrong, that reality, including law, is characterized by moderate relativism,

so that there will always be alternative or competing legal interpretations of

a given law.

Some people are legal postmodernists, and extreme relativists. They

argue that there are many different and competing interpretations of law and

that there is no way to privilege one interpretation as being better than

another. I argue that postmodern extreme relativism is wrong. I argue that

cognitive transcendence still exists which transcends mere language and

linguistic analysis, and also transcends extreme relativism.

I argue, like Bernard Lonergan, that authentic subjectivity is possible

which is a type of objectivity. Authentic subjectivity involves the

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transcendental use of cognitive capabilities or faculties. Consider the

following chart:

Level Description Function

6. Intuition Intuiting reality

5. Creativity Finding the 3rd Creative Way

4. Being Formal Analytic Logical Operations

Self Actualization

3. Reflective Judgment Adaptive Conventional Wisdom

2. Understanding compare and contrast

and categorize ideas

1. Experience Sense experience, Basic Emotions

I argue that levels six through one sublate and integrate each other.

Ken Wilber makes a similar argument in his work. So, once one has

developed level 6 intuition, that intuition is sublated and used at all of the

other levels. Any higher function can be downloaded to a lower level.

Additionally, every lower level is also uploaded and integrated with every

higher level. My experience, at level 6, however, will be different and

more refined that my experience at level 1 without any downloading. So, if

I have developed all the levels, including level 6, I would argue that my

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level 6 “experience” will be phenomenological in character and will involve

higher emotions such as empathy.

Let us take the following example. We are trying to determine the better

interpretation of the law of contracts to see if equity will intervene and find

an unfair contract to be unconscionable and unenforceable where an elderly

lady bought a window air conditioner which did not fit her apartment

window.

Let us start with level 1 experience. At this level I want to know all

of the relevant facts of the situation. I want to know all about the apartment,

the air conditioner, the age, sophistication, and financial means of the elderly

lady. Finally, in at least a rudimentary way, I want to know the law. I want

to know basic contract law and equity law relating to unconscionable or

unfair contracts.

At level 2, I begin to categorize ideas. I place facts in the legal

categories and I compare and contrast different cases dealing with the law

and facts that are relevant to the problem at hand.

At level 3, I begin to judge and reflect on the situation in order to

come to a provisional judgment as to what the law is or should be in this

situation. At level 4, I then test the law that I have come up with, using

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various hypotheticals in order to ensure that the law holds up to hypothetical

testing. . I also test the logical consistency of the law.

At level 5, I use my creativity to test the proposed law with further

hypotheticals. To the extent that I cannot find a good solution to the

problem legally, I may have to use creativity to find a 3rd way to solve the

problem.

Finally, at level 6, I use my intuition to test for the overall intuitive

feel of the solution. The law needs to feel intuitively right.

I argue that dealing with law at level 1-6 will help me to find a better

interpretation of law. Each level has it’s own specialization and it’s own

type of transcendence. Because I can transcend congntively, because I can

even transcend linguistics, I can use authentic subjectivity to find a better

answer. A relatively transcendent answer, objectively and authentically

subjectively.