Richard A. Posner On Voluntary Actions and Criminal Responsibility.

Richard A. Posner, The Problems of Jurisprudence (Cambridge MA: Harvard University Press, 1988), pp. 161-220.

Introduction.

I have always enjoyed and learned from the writings of Richard Posner. Mr. Posner was a distinguished professor at the University of Chicago when I discovered his scholarly writings.

Posner subsequently became a celebrated jurist as a Circuit Court judge for the Seventh Circuit in the United States federal system.

I am not a "law and economics" person. I am much closer to the romantic side of Critical Legal Studies (CLS) in the form of Roberto Mangabeira Unger's theorizing -- or even to Ronald Dworkin's jurisprudence -- than to Posner's brand of consequentialism.

Law and economics was more popular during the late eighties and early nineties than it is today. However, it was never very popular with me.

I believe that there are contexts in life where calculations of rational self-interest or the language of economic benefits is out of place or even insane.

I am sure that this legal-economic approach is helpful in understanding some developments in private law -- notably the evolution of tort law away from fault-based liability towards risk-spreading rationales. These same rationales, ostensibly, "justify" eliminating not only fault but also causation from determining liability (D.E.S. cases and their progeny).

Nevertheless, as I say, there are areas of legal thinking where economic reasoning is inappropriate and even morally dangerous.

Why bother "justifying" legal doctrine if law is merely a quasi-scientific process of adjusting rules to produce the most "beneficial" social consequences? Why should "justification" -- which is a moral concept -- enter into deliberations at all if economists and "legal engineers" only need to worry about "efficiency" and "effectiveness" or means-and-ends rationality? Is morality always and necessarily subjective and relative like aesthetic preferences or religious affiliations?

I urge the members of New Jersey's Supreme Court to ponder these issues and many others in legal ethics to the extent that they are capable of doing so. ("New Jersey's Feces-Covered Supreme Court.") 

I am sure that -- maybe Posner would agree to some extent -- law is inseparable from political and moral reasoning and values. I have serious doubts concerning recent forms of popular ethical non-cognitivism and the abandonment of "rationality" to scientists. (See "John Finnis and Ethical Cognitivism" and "Why I am not an ethical relativist.")

There are forms of perfectly valid "rationality" that are different from and irrelevant to the scientific method. For example, rational intuitionism is a plausible approach to moral reasoning which is not necessarily scientific in a positivistic sense. (R.M. Hare versus H.A. Pritchard.)

Notice that there are areas of American tort law where a defendant in a civil suit need not be blamed -- nor to have caused the specific harm suffered by a plaintiff -- in order to be held liable and made to pay damages to that injured plaintiff.

This practice seems absurd to many attorneys and scholarly commentators from other societies. Indeed, even so eminent an authority as William Prosser expressed reservations about these developments in his final analysis of Torts principles finding it "impossible" to understand how liability might be justified without fault or causation nor whether there would be any end to such widespread liability in civil law.

Crucial to traditional considerations of liability is identity. The metaphysics of identity and causation issues are found everywhere in American law these days where new areas of scholarly endeavor devoted to conceptual analysis (in a philosophical sense) of entire doctrinal fields are becoming routine.

There is now a "philosophy of criminal law" and epistemology of the administration of law to say nothing of the logic of trial advocacy to which legal academics and non-legal scholars devote their working lives. ("Law and Literature.")

What are the boundaries of a corporate "person's" identity? What is an "action" by a "corporate person"? The metaphysics of identity is a matter not usually discussed or recognized in analyses by American legal scholars, even when these ultimate questions underlie, again, an entire area of substantive doctrine.

Among distinguished legal theorists commenting on matters of legal metaphysics I suggest that you read Michael Moore's scholarly works and Lloyd Weinreb's writings, including a fine article I seem to remember from volume 100 of the Harvard Law Review.

Legal issues are not amenable to a North Bergen butcher's approach by which questions are chopped into ever smaller pieces. The pieces tend to return to the legal chopping block in altered forms.

Being "more specific" in some instances can be a way of thinking less precisely or inclusively of a doctrinal area.

Is the defendant engaged in an enterprise from which large profits are drawn which has generated a public threat resulting in harm to distant others? If so, then it may be rational to allocate the costs of those harms to that "enterprise" -- as a policy decision by a legislature -- without abandoning individualized justice, in particular cases, where tribunals are mindful of the rights of litigants.

Litigants appear as both defendants and plaintiffs in courtrooms. Fictions of "enterprise" identity are woven into doctrinal areas in private law for public policy reasons. These fictions and public policy rationales should be recognized and defended, publicly, as "necessary myths."

What a legal system must not do is to allow its officials to engage in (or reward) secret criminality in the form of vendettas, as in New Jersey. ("New Jersey is America's Legal Toilet.")

For a classic discussion of the epistemology and ontology of fictions in law, please see Lon Fuller's, Legal Fictions (Stanford: Stanford University Press, 1967), pp. 93-139.

Some social policies may be correct and make lots of sense. Yet these policies should be enacted into law and/or implemented by legislatures, not judges. Judges must decide cases for specific persons/parties in accordance with rules and principles as distinct from general social objectives which may certainly be reflected in relevant provisions of law.

The first question a good judge asks -- after "Can we settle this?" -- should be: "What are the factual allegations and responses, together with the applicable provisions of law cited by the parties? What happened? What rules are you relying upon? What are you asking the court to do?"

Concerning law and economics please compare Guido Calabrese, Ideals, Beliefs, Attitudes and the Law: Private Law Perspectives on a Public Law Problem (New York: Syracuse University Press, 1985), pp. 69-119 with Mark Kelman, "Choice and Utility," in 1979 Wisconsin Law Review 769 (1979) and Mark Kelman, "Consumption Theory, Production Theory and Ideology in the Coase Theory," in 52 Southern California Law Review 669 (1979).

Finally, much to his chagrin, Judge Posner's law and economics is a kind of idealism:

"This process of allowing the structures we ourselves have built to mediate relations among us so as to make us see ourselves as performing abstract roles in a play that is produced by no human agency is what is usually called (following Marx and such modern writers as Sartre and Lukacs) reification. It is a way people have of manufacturing necessity: they build up structures, then act as if (and genuinely come to believe that) the structures they have built are determined by history, human nature, ECONOMIC LAW."

Robert Gordon, "New Developments in Legal Theory," in David Kairys, ed., The Politics of Law (New York: Pantheon, 1982), p. 289 (emphasis added).

Criminal law is an area where, with all due respect to Judge Posner, the moral component of law -- which is both discovered and made -- cannot (and should not be) eliminated from deliberations nor from an issue that is rarely seen or discussed by Posner: How are we to understand "rationality" or "rationalism" as opposed to "reasonableness" in our moral or legal lives? Is it always rational to be self-interested, Judge Posner? ("The Wanderer and His Shadow.")

A great criticism of the law and economics approach -- and, indeed, of Mr. Posner's work generally -- is that Posner's method reveals a distressing absence of feeling or compassion, a failure to appreciate the moral reality or emotive concerns implicated in some controversial legal analyses, or in life, for that matter.

Mr. Posner's suggestion of a "market for babies" comes to mind as one example of "reasoning" that is less than filled with the milk of human kindness or a full appreciation of what people feel in extreme states such as a couple's attempt to compensate for the loss of one child by adopting another.

People's feelings are always relevant and important to understanding the requirements of justice in their lives.

Is this to speak of empathy?

Culture certainly has a role to play in these determinations concerning "rationality."

As for the increasingly obvious constitutive role of culture in establishing the contours of human subjectivity, please see Nicholas Wade, "Human Culture, an Evolutionary Force," in The New York Times, Science Times, March 2, 2010, at p. D1, then Richard Schatt, "The Future of Human Nature: Marjorie Grene and the Idea of a Philosophical Anthropology," in Randall E. Auxier & Lewis Edwin Hahn, eds., The Philosophy of Marjorie Grene (Illinois: Open Court, 2002), pp. 103-127 (with response by Professor Grene).

I summarized this argument drawn from phenomenology in the twentieth century both in the text and notes in my discussion of Ricoeur's hermeneutics.

If Posner were a "Latina Judge" perhaps he would be more empathetic concerning the dilemmas of poor women who are often powerless and unwilling litigants in our courts. The typical response to Posner's work by non-theoretically minded lawyers -- which is most of them -- is that: "something is missing from Posner's analysis." I agree.

What is missing from Posner's analysis is a capacity for empathy for those less fortunate than himself, especially those who are afflicted with great suffering.

Despite Posner's impressive talents and sharp mind, I would not wish to see Richard Posner appointed to the U.S. Supreme Court.

Elena Kagan may turn out to be a pleasant surprise since she is reportedly a careful student of Dworkin's work.

I do not believe that, say, First Amendment jurisprudence is essentially a matter of engaging in a cost/benefit analysis. I have suggested that Ronald Dworkin is our greatest legal theorist because, in opposition to Posner, Dworkin certainly does display dazzling philosophical talents which are always combined with great respect for the dignity and inviolability of PERSONS compatible with our Constitutional vision. The same may be said of Laurence Tribe, Charles Ogletree, Ruth Gingsburg, and many others. In a future essay, I will focus on Roberto Unger's The Critical Legal Studies Movement as a negative/positive mirror-image of Posner's theory. In my opinion, Unger is the far better philosopher while Posner may be a better judge.

Posner's discussion of voluntary as opposed to involunatry conduct omits any reference to Paul Ricoeur's two volume examination of the controversy which has been so influential in much of the world, including American academia. This is like a lawyer arguing before the U.S. Supreme Court and ignoring the essential precedent. Curiously, Ricoeur was a colleague of Posner's at the University of Chicago. Most philosophers regard Paul Ricoeur as the foremost thinker to examine these issues in the second half of the twentieth century. I urge Judge Posner to consider Ricoeur's The Symbolism of Evil -- a work which is highly relevant to the issues discussed in a crucial section of Posner's book on Jurisprudence.

Regrettably, this suggestion may result in further computer crime aimed against this essay and me. It is true that Paul Ricoeur was a French person. Nevertheless, even American lawyers hostile to considering the legal systems of other societies (Antonin Scalia) may learn from his writings.

I recommend Judge Posner's treatise on jurisprudence if supplemented with readings from case law and discussions by other scholars. I have learned a great deal from Posner and other law and economics thinkers in appreciating the rationale offered for developments in American Tort as well as contract law.

Posner's book is one of the texts that I would use if I were teaching this course in the philosophy of law to undergraduates. I will not list all of my readings in this area. I will mention only a few of my most important sources. I wish to offer this discussion in as non-threatening and welcoming a form as possible with the hope that philosophers who are not trained in law and all students will be drawn into the argument.

I will read through Posner's chapter (or essay) and react to the text in a kind of dialogue with its author. I contend that Posner lapses into a "category mistake" (Gilbert Ryle) leading to a self-contradiction that undermines his argument.

What is a crime? Is a crime ever merely an event occurring in the empirical world?

Nothing that I say in this essay should detract in any way from Posner's brilliance and superb writing. It is always a pleasure to read Posner's articles and books.

I am afraid that, if my critique is successful I may expect to see this essay in a law review bearing another person's name without attribution to my work. The reality of plagiarism and suppression of ideas is not the goal of intellectual debate or free discussion in American academia. ("What is it like to be plagiarized?" then "'Brideshead Revisited': A Movie Review" and "How censorship works in America.")

I. Ontological Skepticism.

A. How skeptical is Posner?

Posner begins with some criticisms of Platonists and others who believe in "essences" or "ideas" disconnected from concrete entities.

Posner dislikes the notion of "ideas" or "essences" against which empirical "things" may be compared. Universals as opposed to particulars are suspect for Posner. Ironically, as I have noted, it has been suggested that law and economics is a kind of idealism, a play of essences determining particulars. Posner fears multiplying entities unnecessarily. Posner is fond of Ockham's razor (the principle of parsimony) and makes use of it with "Mack-the-Knife"-like glee.

I am sure that Posner falls into exactly this practice of universalizing that he ostensibly rejects by making use of his own convenient abstraction ("The Law") during the course of this very discussion. I am suggesting that he cannot avoid doing so.

Furthermore, Posner often resorts to similar conceptual moves and reifications in his writings resulting in an evasion of important philosophical difficulties.

By the way, "science" (a term that is much-loved by Posner) as distinct from "chemistry," "biology," or "physics," or any of the other areas of specialized empirical inquiry is also a universal.

If I am correct about this troublesome usage then Posner must be found "guilty" (with a possible explanation) of a performative self-contradiction.

In other words if this charge of idealism is established -- I am afraid that it will be -- Judge Posner's analysis in this essay becomes incoherent on its own terms. In addition, external to Posner's position, competing values and theories of law make much of Posner's argument together with the "invisible ontology" of his legal theory both unattractive and unpersuasive to me:

"Philosophers have long puzzled over immaterial 'things,' although their enthusiasm for such debates is beginning to wane. Chicago and New York, we may agree tentatively, are things, or assemblages of things. But what about the fact that Chicago is west of New York -- is that a thing too? What about another relation, the Pythagorean theorem? Is that a thing, despite its lack of spacio-temporal locus, and if so would it still be one if no one had ever discovered it? ... Do we have a material part (the body) and an immaterial part (the mind, if you prefer, the soul)? A rabbit is a thing; is law a thing? And what about moral 'entities'? Is 'goodness' real? 'Justice'?" (Posner, pp. 161-162.)

Posner resolves these matters easily enough -- to his own satisfaction, anyway -- by looking to the consequences of the various positions concerning the ultimate metaphysical issue. Posner has read C.S. Peirce and William James.

As lawyers like to say during settlement negotiations: "What difference does it make?" In other words, what are the consequences of one position as compared with another?

Posner's goal is to maximize "rational self-interest" since he believes that human beings are inevitably and always motivated by self-interest.

At some point in life one may decide that, say, the little wife is getting on in years. Additional expenditure on a new "babe" may, thus, be warranted by the expected "greater return" in terms of increased or more satisfying amorous relations provided by a "new" wife.

This is, perhaps, what Jeremy Bentham would describe as "the felicific calculus."

For Posner, moral considerations do not enter into evaluations of such issues, of course, as anything other than "soft variables" that are not easily quantified in a scale of costs and benefits. Abstract terms like "loyalty" are meaningless except as they may enter into self-interested calculations.

What is in "it" for me? What I am "getting out" of a relationship is always the primary consideration under such a theory. The decision should be or is, usually, based only on rational self-interest.

Posner escapes unwelcome consequences by defining "rational self-interest" so that it really means that altruism is a factor to consider as part of the weighing of gains and losses.

Much of Posner's analysis depends on a flawed assumption that persons in society are atomized individual choosing agents who stand apart from their communities calculating self-interest rather than social beings shaped by their communities long before they "rationally" choose anything.

Genetics and class, environment and upbringing choose us long before we get to make many choices of our own.

"We can ask, for example, what the consequences are of believing that people do or do not have minds. Maybe there are no consequences. Maybe the heavy talk in law about such mental entities as intent and premeditation, or such metaphysical entities as causation and justice, is bogus." (Posner, p. 163.)

Again:

" ... more pertinent to the problems of jurisprudence, is whether other people, or animals, really have minds; for one can never observe another creature's mind. On one level this is an absurd question -- we simply cannot help thinking that there are other minds. But on another level it is a fruitful question, or at least a spur to fruitful speculation. There is after all something deeply puzzling about 'the mind.' ... " (Posner, p. 163.)

There needs no ghost come from the Seventh Circuit to tell us this. David Pears, The False Prison: A Study of the Development of Wittgenstein's Philosophy, vol. I, pp. 32-33 (1987), cited by Posner.

Why should you expect to "see" another person's mind? How are you aware of your own mind? Do you "see" your mind? What do you use to make these determinations concerning "minds" or their contents? Your mind? Can you see or evaluate your mind with external observations or must you introspect? What is introspection? Phenomenology? Paul Weiss comments:

"To say that I am a distinct type of being is to make an ontological claim. To say that I am like others but have a source of information regarding myself which they do not have, is, in contrast, to make an epistemological claim. [Phenomenology?] The former insists on a difference in natures despite all publicly available evidence that can be produced to the contrary. It goes beyond what the facts warrant. The fact that others are not sure that I have a mind does not make me conclude that I do not have one. Rather, I conclude that they are not privy to all of my sources of information."

You may not see the qualities that I detect in someone I love or in myself.

This blindness by others does not lead me to conclude that these qualities that I see and experience otherwise are non-existent. I merely surmise that you are sadly lacking in cognitive ability, or deprived of my unique perspective:

" ... through love and sympathy we can penetrate beneath the forms men exhibit in public, and can therefore directly reach their private beings, we will be able to say that on the basis of bodily behavior alone, we rightly can attribute minds, wills, feelings, etc., to machines, as well as to other men. But we will also be able to say that we cannot love those machines. There will always be some men we will not love, and some machines to which we will become attached. If we find a being which looks and behaves like other men and is beyond our capacity ever to love, we must say of it that it is only a machine, to be placed outside the society where only men can be. Should we find a machine which we can love, we must say of it that it has a human nature and human powers. We will, in short, divide beings, all of whom behave in the same way, into two classes, calling 'men' those which are in principle within our powers to love, and calling 'machines' those which we cannot possibly love."

Paul Weiss, "Love in a Machine Age," in Sidney Hook, ed., Dimensions of Mind: A Symposium (New York: Macmillan, 1960), pp. 178-179 and Paul Weiss, "Common Sense and Beyond," in Sidney Hook, ed., Determinism and Freedom in the Age of Modern Science (New York: Mcmillan, 1958), pp. 231-237. ("A Doll's Aria" and "The 'Galatea Scenario' and the Mind/Body Problem" then "'Ex Machina': A Movie Review.")

If machines are becoming more human even as persons are becoming less human and more machine-like (i.e., Posner) then it is likely that we will find ourselves falling back on forms of awareness that are internal but still shared with other subjects, like languages and (especially) the language of love. The crucial factor is capacity for subjectivity (Chomsky's a priory linguistic capacity of humans comes to mind) and not our tentative status as objects, "legal" or material bodies, whether made of flesh and bone or, someday, titanium or stainless steel.

Compare, again, "The 'Galatea Scenario' and the Mind/Body Problem" with Gary Stix, "Jacking Into the Brain," Scientific American, November, 2008, at pp. 56-61 and http://www.sciam.com/ (To speak of "legal bodies" is to make use of an abstraction or "universal" essential to necessary legal-theoretical modes of discourse that are "outlawed" by Judge Posner.)

"Duke University's Miguel A.L. Nicolelis, another pioneer in brain-machine interfaces" -- interfaces made possible by expanding understandings of the linguistic capacities of the human brain/mind and their non-geographical "essence" -- "has begun to explore how monkeys connected to brain-controlled prosthetic devices begin to develop kinesthetic awareness, a sense of movement and touch, that is completely separate from sensory inputs into their biological bodies."

We are told that:

"There is some evidence that during the experiment they feel [and are] more CONNECTED to the robots than to their biological bodies." (Stix, "Jacking Into the Brain," pp. 59-61.)

The trans-bodily connection is conceptual and linguistic in the sense that brain signals are translated into an "interpreted" computer code [hermeneutics] that is then transmitted from the animal to the robot. ("The Naked Ape.")

Posner fails to consider the ways in which we may have awareness of things that we cannot observe empirically by sharing in a kind of "ideational" or "emotive" linguistic space (Lebenswelt) with those things or entities. (Compare "Where are thoughts located?" with "Are you trying to make a monkey out of me?")

Please see "The Singularity (The Rapture of the Geeks)," in Special Report of IEEE Spectrum, Vol. 45, No. 6 (June, 2008) and then Daniel Robinson's argument in "Higher Order Thought: A Machine in the Ghost," in Consciousness and Mental Life (New York: Columbia University Press, 2008), pp. 83-100:

"It was Aristotle's contention that social and political modes of organization are entirely natural, but it would be nonsensical to attempt to translate the political and social practices of a community into a set of physics equations. The respects in which social beings are social are different from the respects in which they are also physical. The respects in which they are social is, however, as 'natural' as are the respects in which they conjugate proteins. But might they be, along with consciousness itself, no more than social? ..."

Ibid.

International news accounts of a new vaccine-like procedure developed by Cuban physicians and researchers, verified internationally and still tested, suggests astonishing results achieved with slowing down (even reversing) colon cancer. ("What is it like to be plagiarized?")

America's government does not regard the intellectual work of little brown people who are Communists as worthwhile. As a result Americans may not benefit from this research. Persons in the United States whose lives may be saved may well die as a result of this embargo against Cuba.

It is certainly true that persons in other countries die of hunger and curable diseases because of America's embargos and other measures of control that are aimed at colonizing the foreign policies of other countries and the minds of their citizens. Venezuela is the latest theater for such experiments. Is this rational? Not according to Republican Judge Posner's criteria of "rational self-interest." The embargo against Cuba is not in America's material interest. Neither is any effort to "press" China into obeying our will. Starving Venezuela will not help that nation to find its own solutions. ("Time to End the Embargo Against Cuba.")

Do we really expect that China will allow the U.S. to set its currency and/or monetary policies? "Mr. Obama and Mr. Hu," (Editorial) in The New York Times, April 14, 2010, at p. A26. ("They need to leave no doubt in Beijing's mind that its global standing will suffer if it does not listen.")

Fortunately, more politicians in Washington, D.C. (including some who are unhappy about "torture") are beginning to agree on this matter: Ginger Thompson, "Bill in Senate Spurs Debate Over Easing Ban on Cuba," in The New York Times, March 5, 2009, at p. A12. ("Menendez Charged With Selling His Office.")

Posner neglects the difficulties associated with the concept of "observation." There may be no such thing as "observing" events in the empirical world without deploying linguistic and conceptual tools, universals, like "law," "person," "mind," "love," and so on. Indeed, Richard Posner largely proves my point under the impression that he is arguing the opposite position.

Posner's concern with the "externally observable" is equally fraught with difficulties since all of us are already part of what we seek to "observe" or "control." Law cannot regard persons as "objects" to be observed and manipulated, externally, when law is implicated in what persons are or must become. Moreover, law constitutes persons as "citizens" or "workers," subjects or inmates. For instance, Ronald Dworkin reminds us:

"We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things. It is sword, shield, and menace: we insist on our wage, or refuse to pay our rent, or are forced to forfeit penalties, or are closed up in jail, all in the name of what our abstract [universal?] and ethereal sovereign, the law, has decreed, even when the books that are supposed to record its commands and directions are silent; we act then as if law had muttered its doom, too low to be heard distinctly. We are subject's of law's empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do."

Law's Empire (Cambridge: Harvard University Press, 1986), p. vi (emphasis added).

H.H. Price warns:

"It seems to me that there are some serious difficulties about the concept of the publicly observable, which I take to be the basic concept of behaviorism. ... Observing is itself an instance of being aware of something ... [Depending on any number of a priori concepts that make that awareness possible, like culture.] ... What is meant by 'publicly'? ..."

"Some Objections to Behaviorism," in Dimensions of Mind, p. 80.

By way of comparison and illustration please see: Danah Zohar, "The Relationship That I am: Quantum Intimacy," in The Quantum Self: Human Nature and Consciousness Defined by the New Physics (New York: William Morrow, 1990), pp. 125-140.

Where do observations take place? in the world? within the observer? Is the observer ever distinct from what he or she observes? Or from the languages used to do the observing? Does Posner assume an outdated scientific ontology? What is "seeing" or "observing"? What cultural and other preconditions make observation possible? The analogy to aesthetic experience is important here.

Physics teaches a continuity between observer and observed which suggests that external behavior and internal experience may exist as points on a spectrum that makes them identical in ultimate terms.

Absolute idealism is amazingly useful in this discussion. But then, so is quantum physics. Could there be an area of overlap between these disciplines or theories of quantum mechanics and philosophical idealism?

I believe this shared territory (humanities-sciences) is part of what is described as "phenomenological-hermeneutics." A philosopher contributing important work to this epistemological problem field is Nancy Cawrtright. ("Stuart Hampshire and Iris Murdoch on Freedom of Mind.")

Observer and observed may be thought of as aspects of the single protean reality(ies) that we are in relationships or communities in opposition to Posner's atomistic individualism.

It may be impossible to "observe" events without words that allow us to classify and order perceptions, but then we are within the tool (language) that we use to see and manipulate reality(ies). This is to speak of the lives of persons and societies as "entangled" narratives. ("Dialectics, Entanglements, and Special Relativity" and "Immanuel Kant and the Narrative of Freedom.")

What is a crime? Who is a criminal? Who decides what is "ethical"? Who is "the Prostitute" in New Jersey? Ms. Riordan? Or Mr. Ferreiro? Chief Justice Rabner? Who will cast the first stone?

Reality -- linguistic and non-linguistic -- is within us even as we are "within" realities. None of this deprives us of objective reality, in an metaphysical sense, since this is an epistemological observation. For a perceptive anaysis of these conundrums in an elegant essay, see Juan Galis-Menendez, Paul Ricoeur and the Hermeneutics of Freedom (North Carolina: Lulu, 2004). (N.J.'s OAE says of this handsome author: "He's suffering from delusions of grandeur!")

If this symbiosis or unity of knowing and being is valid, then (especially in loving relationships) "rational self-interest" as against the "considerations of others" becomes difficult. I am the others whose welfare concerns me.

I "feel" this especially when among women and children or old people that I love whose welfare is experienced as continuous with my own. This is usually described as a feminist jurisprudential orientation. There is no line dividing my interests from loved-ones' interests. The crucial and increasingly dominant symbol for this view of reality and human nature in the universe is mother/child imagery or images. As against Posner's (often unconscious) highly masculine symbolism there is the equally pervasive feminine symbolism by rival theorists, Unger/Butler/Cornell. ("Jacques Derrida's Philosophy as Jazz.")

None of this deprives us of objectivity or truth. To appreciate this point it is necessary to absorb a new scientific ontology that is, perhaps, fifty years-old (or less) and that has not yet reached the level of popular culture or humanistic studies. This metaphysical-scientific picture seems to be immediately available to great artists, however, actors or poets, painters and cinema directors who feel the so-called "plasticity" in our new cultural spaces. (See "'The Matrix": A Movie Review" and "'The English Patient': A Movie Review.")

I am relieved at no longer having to explain difficult metaphysical arguments or issues to some of my former colleagues.

25-50,000 of us in the world will starve to death today. Is this not a kind of self-murder by degrees on the part of humanity to which we have become indifferent? Is the suffering or death of my neighbor justified by my "self-interest" in increased consumption at the cost of the planet? Should I care about the damage to the eco-system from my SUV as long as "I've got mine" and the devastation will not be felt until after I am dead?

Not if I am a Posnerian self-interested rational agent, who can ask: "What has posterity ever done for me?"

Perhaps daily deaths from hunger will bring up the prices of, say, coffins and burials. Thus, continued starvation for millions is in the "rational self-interest" of the funeral industry. After all, suffering and pain are subjective. Money is objective. Funeral directors may wish to lobby elected officials to generate as many deaths as possible, preferably of foreigners or persons of color. Ideally, foreign women of color may be terminated -- this will cut down on the number of future little brown persons -- and "boost" the economy of funerals.

The foregoing "reasoning" is an almost literal example of the kind of American legal thinking that I have struggled against for more than two decades. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

AIDS will take 10-to-20 million lives in Africa in the next 10 years. America's "defunding" of research efforts of possible cures and treatments after so much progress was made when we are willing to spend hundreds of millions of dollars per year on any one of our favorite sports (or wars) reveals our priorities as a society.

Would legal economists say that the "defunding decision" is a matter of individual "rational choice" for sports fans (more numerous) as distinct from AIDS sufferers (less numerous)? Is there a moral imperative in this matter that should make one "choice" rather than any other compelling?

I think there is such a determining consideration in our struggle against AIDS.

People are dying.

These ideas are helpful for all communitarian theorists of law and politics.

Our new metaphysics of participation is also foundational for many feminist philosophers building on the logical and ontological implications of this set of ideas in light of developments in physics, bio-chemistry and mathematics. These developments in the sciences are international -- "international" is not a dirty word -- requiring wide reading beyond disciplinary boundaries from adherents and are not as fully appreciated in the United States as they should be (especially) in the legal world.

Many scientifically-adept and culturally-aware philosophers are themselves little brown persons in strange parts of the world where a McDonald's restaurant is difficult to find. No doubt efforts are underway to "close" the Internet for them as well as for me.

Many of the best thinkers using these novel approaches happen to be women. Does this feminist component explain the hostility and disregard for creative as well as scientific-hermeneutic approaches to social issues?

I anticipate that the response offered by my Republican friends will be further attempts at censorship or alterations of this essay. ("How Censorship Works in America" and "Censorship and Cruelty in New Jersey.")

A counter-herstory of American legal as well as political thought is long overdue. Those who prefer analogies from the so-called hard sciences should look to the constitutive equations in covariance models. These mathematical concepts are beautiful and parallel developments in aesthetic theory. C.C. Lin & L.A. Segel, "On Constitutive Equations, Covariance, and the Continuum Model," in Mathematics Applied to Deterministic Problems in the Natural Sciences (Philadelphia: Society for Applied Mathematics, 1988), pp. 485-491.

A metaphysics of participation is difficult for Americans to appreciate, initially, because so much of our consumer culture is about instilling the opposite idea. You pay your money and you get what you want. Let the other guy worry about getting his. Unfortunately, interdependence means that "yours-and-his" become somewhat meaningless terms.

The destruction of the environment is not only about affecting others it is also a kind of suicide to which our culture of material satisfactions and atomistic calculations or greed and will-to-power (Marco Rubio?) seems to be leading us. There is also such a thing as moral suicide.

The sinking of the "Titanic" was not an event to celebrate even if your worst enemy was on the ship  if you also happened to be on that doomed vessel. Our planetary climate situation recalls the dilemma of passengers on that cruise ship approaching an iceberg. Posner's analysis certainly seems to collide with a logical iceberg. I will now present you, again, with a moral impasse which you should be unable to cross:

25,000 persons, at least, will die of hunger in the world as more than two times the food necessary to feed all of them will be thrown away in America, today.

50,000 or more are dying of thirst as I type these words.

You and I share responsibility for these deaths if we are indifferent to them. Is such indifference rational? Is this attitude of non-concern "self-interested" on the part of members of affluent societies? How do we define the "self" and its "interests"? ("John Rawls and Justice" then "Little brown men are only objects for us.")

Who cares about the little brown people? Censoring my writings is destroying First Amendment protections for everyone? Do courts and law enforcement in America care about "public" criminality?

Much depends on who is victimized by crimes in determining American police action.

Posner always wonders: "What is my interest in all of this?" ("An Open Letter to Cyrus Vance, Jr., Esq.")

What is desperately needed, Judge Posner, is a revolution in consciousness. The welfare of sick people and the dying, improvements in the lives of hungry and miserable billions who will endure their sojourn on this earth in abysmal ignorance and pain is in YOUR interest, part of your concern, and their suffering must also become your suffering and motivated for melioristic action by all of us. ("Innumerate Ethics" and "Law and Literature.")

B. Posner is not so skeptical after all.

Posner's typical suspicions concerning the concept of mind are revealing of the dilemmas of all forms of behaviorism:

"I suggest that we often use the word 'mind' (either in the weak sense of consciousness or in the strong sense of intentionality and control) not to name a thing, not to make an ontological assertion, but to cover our ignorance of certain causal relationships. Dispel the ignorance, and the concept of mind ceases to have consequences and can be -- and what is more interesting is -- discarded." (Posner, p. 166.)

This statement often seems like madness to educated persons from other cultures.

If all ignorance concerning the precise neural events necessary to account for the lifting of my arm were resolved, all neurology known, the meaning of that gesture would remain open and the feelings of those witnessing the gesture must also remain undetermined.

Posner fails to distinguish adequately "causation" from explanation or "motivation." Posner's subsequent use of these terms fails because they are confused or imprecise in his analysis.

Posner is stumbling towards this insight concerning interpretive freedom in the next few lines, but then shies away from its implications:

" ... we are more likely to impute a mind to a cat than to the most powerful computer, even though the computer will beat the world's smartest cat at chess every time." (Posner, p. 166.)

Why is that imputation of mind to a cat so tempting?

The mythology of the world is filled with imputations of subjectivity to animals, living creatures whose "moods" and hungers are (apparently) as baffling as our own. ("Serendipity, III.")

Let us "name" Posner's hypothetical cat, "Amathea." (H. Belloc.)

Posner's analysis falters at this point through a characteristic lack of imagination. The need for imagination is one lesson actors and other artists impart to all of us:

"Actually, a cat is much more intelligent than any computer -- indeed, the world's most powerful computer probably has no more computational power than a cockroach. (This will change.) Computers are special-purpose calculators, unlike animals, and through specialization can beat animals (including people) at certain specific, well-defined, 'routinizable' tasks. ... (Posner, p. 166.)

Gary Kasparov, the former World Chess Champion, said that when he played an International Grand Master (Karpov), he felt the other person's energy opposing him.

When Kasparov played "Big Blue" (the IBM Supercomputer), however, he was disconcerted to find a void, like a black hole, opposite to him.

Kasparov felt a kind of emptiness, coldness, nothingness from the machine. ("'Westworld': A Review of the HBO Series.")

Evil has been described in such terms -- as radical nothingness -- or as an abyss resulting from absolute disconnection from other minds. A human being should not be as empty of affect as a computer or, indeed, as is Judge Posner.

I urge psychologists to study filmed interviews with Jeffrey Dammer. (Compare "A Doll's Aria" with "Magician's Choice" then "The Allegory of the Cave" and, again, "The Wanderer and His Shadow.")

Judges should not strive to be machine-like in their objectivity. I am sure that Judge Sotomayor was referring to this inevitable humanity of legal decision-makers when she spoke of "wise Latinas." One's ethnicity is part of what one is and enters into all reasoning.

This is not to suggest that objectivity is impossible, merely that it is human beings who are or seek to be objective. This human component will be a feature of Chief Justice Roberts' decisions, or those of Mr. Estrada, or any other person's reasoning about law or science, including medicine and pseudosciences, like psychology or astrology. ("What is law?")

Genius in the arts is about integrating emotive and logical thinking or knowing. Integration of mental faculties requires imagination. ("The Art of Melanie Griffith" and "The Art of Robert Downey, Jr.")

The need for imagination does not make everything (metaphysics) relative (epistemology).

I wonder whether, as a society, we are moving towards feeling less or more? Shall we calculate self-interest without emotion and is that really human self-interest? Or shall we allow emotion and values to enter into our deliberations concerning "self-interest" and "rational" decision-making? Feeling our way along? Is it possible that such things, emotions or values would not form a part even of our most seemingly objective thinking? I doubt it.

Do we help or hinder our efforts by denying or seeking to escape this fact of human valuing in all reasoning? What is the "fact" of the matter? Does it depend on how you "feel"? ("John Finnis and Ethical Cognitivism.")

I am afraid that deleting additional words from this essay will not help Judge Posner's analysis in this section of his book. In fact, this may not be the kind of "assistance" that Judge Posner would welcome -- not even from fellow Republicans in Miami.

Notice that this emotionally-sensitive method need not deprive us of objectivity or neutrality because we do not have to define subjective/objective as seventeenth century moderns dazzled by Newton's clockwork universe.

The thinking of a computer is disconnected from the subjective and multidimensional perceptions of animals, including human animals, and this impoverishes the thinking of machines even if it confers certain advantages in terms of what computers can do.

I once "owned" a cat. It often seemed the other way around. My cat seemed to own me. "She" liked to leap on to my lap as I viewed television channels, making herself comfy, purring happily, making it perfectly clear to me that my occasional decisions to rise in order to visit the bathroom or to get a snack from the kitchen were not viewed with pleasure and were barely tolerated.

Like New Jersey's Supreme Court my cat was not amused at my presumption in seeking self-determination. We became warm friends, this cat and I -- although there was something a bit regal and snotty about my cat that involved delivering the daily message that I was very fortunate indeed to be allowed to share her life. Furthermore, I was not to forget it.

I certainly did not forget this fact. It has served me well in subsequent relationships. I seriously considered naming the cat "Germaine Greer." Or "Myra Breckinridge"?

I sensed my cat's moods, affections, even concern when I was sick. Our level of understanding and communication was mostly emotional. Scientific and philosophical understanding of the concept of "communication" is still primitive. I "feel" much the same with other animals, including persons. I do not feel this way about machines except that we are beginning to attribute subjectivity to our devices.

The local cash machine is called "Daisy."

My computer has been named for "Anna Karenina."

My television set and DVD player are known as "Melanie" and "Antonio," respectively.

We cannot help trying to understand "subjectivities" as well as knowing "causative" processes. This is not a weakness or stupidity, but the result of grasping the multiple levels of awareness involved in "conscious" living.

We will always need the word "mind." Furthermore, the scope of the word will increase (not decrease) as our technological environment is animated with new "dominations and powers" -- wireless lap top computers, Internet on cell phones, blackberries, and more in our holographic postmodernist spaces.

We are and must be and in the future will be much more "interpreting creatures."

"Once we learn that the causality of a tempest is different from that of a human temper tantrum, we cease imputing mental activity to the sea." (Posner, p. 167.)

There are sound reasons for our attribution of emotions to the sea that allows for deeper understanding of the mystery and unpredictable nature of ourselves as persons who "mind" about things.

These subconscious reasons having to do with our meanings and purposes will not be affected by our grasp of weather patterns. ("Metaphor is Mystery.")

Given recent developments in chaos theory and "butterfly effects" there will always be a mystery about climate changes or the smiles that I sometimes receive from the women at Dunkin Doughnuts. I am wise enough not to attempt to fathom such enigmas nor do I seek to reduce them to a formula. I will just "improvise" my way around these mysteries. Please refer to Mary Midgley, "On Being Animal as well as Rational," in Beast and Man (New York & London: Routledge, 1995), pp. 243-263.

In light of this discussion and Posner's doubts about universals notice what happens next:

" ... if we had a complete model of the criminal act, so that we could predict a crime with one hundred percent accuracy from information about a person's genes and upbringing, we probably would not require proof that the act had been 'intended,' in order to punish the actor. Maybe we could talk about people being programmed to kill rather than deciding to kill, and maybe we would no longer use the word punishment. We would deal with criminals as we would with unreasonably dangerous machines, which implies that where feasible, we would intervene before the crime was committed." (Posner, p. 168.) ("Minority Report.")

A shiver should run down your spine as you read this paragraph.

Posner is providing readers with a prescription for an Aldous Huxley-like dystopia based on shocking conceptual errors. The concept of "crime" is not scientific. All the scientific knowledge possible will not allow for the prediction of a "crime" (which is an act involving legally determined culpability and harm, findings as to INTENT, that is also a value judgment) as opposed to a naked "factual" event in the empirical world. ("The Wanderer and His Shadow.")

Criminality is a matter of interpretation concerning an actor's intentions for conduct and the effects of that conduct.

This befuddlement by Posner reveals a lack of philosophical sophistication in his thinking which is surprising in one of our leading legal theorists. Incidentally, such a determination of factual guilt for committing a crime is for the fact-finder, usually the jury, and not the trier of law, or judge, to make for excellent reasons that have to do with juries being the "conscience" of a community.

Posner insists on a division of fact from value while confusing and mixing the two realms in his thinking. The same event may and should be subject to multiple descriptions, scientific and legal, moral and aesthetic.

These descriptions are conceptually distinct and made for different purposes which must and should not overlap even if they are integrated, finally, in terms of an overarching and articulated set of social values. ("Derek Parfit's Ethics.")

For the state to act before a crime has occurred is for society to commit a crime since anyone may (or may not) commit a future crime.

Commission of a crime is a conclusion concerning a human action that is only possible at the end of legal proceedings that are respectful of human rights finding that someone has been proven guilty of a legally defined offense "beyond a reasonable doubt" and not merely that an empirical event has occurred.

A crime is necessarily a kind of action based on particular intentions by a person and not only an empirical event.

Crimes necessarily involve judgments of meaning concerning those actions as well as determinations of fact.

Such a conclusion -- that a person is guilty of a crime or that a crime has occurred -- is a moral and legal judgment (fact-and-value), not a scientific finding. The judgment CREATES the reality that it describes. (See J.L. Austin's "How to Do Things With Words.")

Think of F.H. Bradley's distinction between analytical, synthetic and ideal judgments. A jurisprudential conclusion may partake of all three of Bradley's categories.

Was Hamlet's killing of his uncle a crime? Was Hamlet's killing of Laertes a crime? If Ophelia were rescued before drowning could she be charged with "attempted suicide" which was a crime at common law? Is Laertes guilty of murder? If I were teaching a law school course in substantive criminal law I would make one of my exam questions focus on Hamlet.

Uncertainties at the quantum interactive levels of physical events and forces make predictions of human conduct more than suspect. We cannot say what the weather will be next week. We cannot "determine" or "predict" that the nice man who lives next door will turn out to be an ax murderer. Indeed, the very notion of predetermining legal and moral conclusions concerning events/actions before they occur is, literally, absurd.

The mysteries of human motivation and conscience are as profoundly elusive as the stormy moods of the sea or the fussy dispositions of a cat. As for universals Posner lapses into a hell of a performative self-contradiction:

"One could argue that as LAW becomes more sophisticated, states of MIND should play an ever larger ROLE in liability. Our understanding of the mind may improve -- maybe we will learn to read minds." (Posner, p. 168.)

Don't you mean brains? Mind is a "universal." So is "law." They do not "really" exist, you said. Laws become "sophisticated"? Do they dress formally for dinner? Do we play "roles" as "minds"? Isn't this a metaphor Judge Posner? (Again: "Jacques Derrida's Philosophy as Jazz" and "Metaphor is Mystery.")

There are a number of judgments of a controversial philosophical and linguistic sort involved in these useful metaphors. Judgments which cannot be avoided in abstract discussions of mentality or intentionality, that is, of crimes as distinct from events. These philosophical judgments and issues have been repudiated by Posner even as they return with a chuckle in Posner's subsequent analysis. ("David Hume's Philosophical Romance.")

Posner is like a man who rejects and denies the importance of breathing, then sets out to live his life without breathing. Within minutes Posner is breathing again even as he continues to reject the importance of breathing for himself and others. Those who take Posner's suggestions seriously enough to attempt to stop "breathing" themselves (i.e., denying the reality of universals in thought), along with the few who succeed in doing so, will experience unpleasant and maybe tragic results.

The point is not whether "random actions are free" but whether our moral judgments about such actions -- if they are to remain moral -- must be free.

Free will is an interpretational conclusion about meanings, an explanation which may well and easily coincide with -- while remaining distinct from -- causal determinations in the empirical world. (Compatibilism)

For this reason Paul Ricoeur speaks of two levels or kinds of causation, empirical and natural (naturalia) or semantic and normative (artefacta), the distinction roughly aligns with the division between science and technology.

Compare Joseph Bien, "Ricoeur as Social Philosopher," in Lewis Edwin Han, ed., The Philosophy of Paul Ricoeur (Chicago: Open Court, 1995), pp. 287-307 (with Ricoeur's response to objections) with D.G. Leahy, "Prolegomena in Comprehension of the History of Being," in Novitas Mundi (New York: SUNY, 1994), p. 19. (" ... this world exists in essence ... is thoroughly compatible with this world exists in fact.") I direct readers to the autobiography of Marjorie Grene. Marjorie Grene, A Philosophical Testament (Illinois: open Court, 1995), pp. 127-191.

Interpretations are infinite and cannot be determined or contained within any ideology or science:

Why did Hamlet love Ophelia? What was the cause of Ophelia's madness? Who is to blame for the tragedy at Elsinore? However you answer these questions you will prove my point and refute Posner's theory. If you were to ask a great actor who has played one of these roles these questions, the person may answer, truthfully: "I don't know."

I punch someone in the nose. Judge Posner perhaps. The empirical effect of this action may be fully determined, causally, by the physics of moving bodies and neural activity in my brain. The punch in the nose may be a justified act of self-defense. It may be a way of communicating that I do not wish to purchase insurance from a door-to-door salesperson. It may be a criminal assault and battery. It may be a welcome sexual invitation made to someone who enjoys that sort of greeting and returns it. It may be a form of greeting on a distant planet.

The judgment that we make concerning the meaning of the act of punching someone in the nose is an interpretation; our knowledge of the causal chain bringing about the action in empirical terms is scientific. The multiplicity of meanings possible for this single action is a product of a kind of infinite "hermeneutics of freedom." See again: Juan Galis-Menendez, Paul Ricoeur and the Hermeneutics of Freedom (North Carolina: Lulu Press, 2004). (Somebody has to cite my book.)

II. Hermeneutics of Freedom.

A. Freedom is Necessary.

Posner's imprisonment in a kind of discredited individualism prevents him from recognizing that "science" and "philosophy" have moved beyond his theory. Notice my happy use of universals like "philosophy" and "science." Phenomenologists and hermeneutic thinkers permit and expect such uses as a necessary part of discourse.

We are a long way from Posner's initial skepticism concerning metaphysical entities. Posner argues that "once consciousness or IMAGINATION [emphasis added] has enabled the person to form a clear idea of the advantages and disadvantages of alternative courses of action, his choice among them is determined; he goes where the balance of advantages lies." (Posner, p. 172.)

Surely, it is precisely imagination which allows us to reinvent those terms of decision all the time.

A "psychology of conditioning" forms the basis of recent American foreign policy that has made us so "many" friends in the world already.

I am not convinced by this statement of human motivational options in terms of self-interest or advantage for nations or individuals.

What is meant by the "balance of advantages"? In fact, to speak of advantages in this context is absurd, unless the word is deprived of all meaning. Courses of action that seem obligatory to us may require great sacrifices. Will we "nudge" Pakistan to do what we want by becoming cozy with India? Will we then manipulate India or China by "pressuring" these nations to take positions of which we approve? Will "embargos" that starve old people and children bring about the acceptance of our will in small nations? Is this "carrot-and-stick" view of human motivation likely to win friends and influence people, or to be "successful"? Or will regarding entire populations of nations as objects of experiments or "collateral damage" only make us more enemies?

People are dying as a result of our "sanctions." Innocent people are dying because of our robot bombs.

To rationalize the kinds of decisions made in wartime or in a torture chamber -- such as the one in which I find myself every day -- as somehow concerned with "maximizing rational advantages" is ludicrous.

I long for a return to the days of Clintonian dialogue in American governmental and legal policy formulation. "Engagement" is better than continuing failed policies as Mr. Obama pointed out. ("The Soldier and the Ballerina.")

What is missing from Posner's analysis and from the writings of his followers is any appreciation of the respect due to persons endowed with indestructible dignity. The richness and humanity in the thinking of Justice William J. Brennan, for example, is (seemingly) beyond Judge Posner's grasp.

A person is not an inert object to be moved around on the basis of others' determinations concerning his or her welfare or the convenience of the powerful. Nations and individuals will strive mightily for freedom and their own sense of equality even at the cost of their lives.

I am reasonably confident that all attempts at manipulation of persons will (and should fail) in the long run.

Worse, overt and covert manipulations will only create more enemies, as I say, for the would-be manipulators and prolong struggles, indefinitely, that should never take place.

Free persons must be treated with respect for their autonomy and privacy not only within but also beyond the nation's borders.

Someday, persons everywhere -- perhaps this is a goal for Cuban society as well as our own -- will receive such consideration from public officials. Photos of Justice Brennan in my essay discussing his ideas have been blocked. Ironically, Justice Brennan was a great defender of freedom of expression and human dignity even for "little brown people."

Today, judges at the "Brennan Courthouse" in Jersey City, New Jersey seem to disagree that persons have rights to freedom of speech, happily disgracing and dishonoring the memory of a Supreme Court justice who once heard trial cases in their building that is ostensibly devoted to law and justice. ("Corrupt Law Firms, Senator Bob, and New Jersey Ethics" and "Hudson County, New Jersey is the Home of Political Corruption.")

Personal decisions are often about giving up individual advantages, especially material ones. I know a mother who sent her children to another country not knowing whether she would see them again because she thought it was best for them. Her husband chose to fight for his beliefs not knowing whether he would lose his life by doing so. And he did. I respect both decisions.

I suggest that my freely-taken decisions may also merit some respect even in Miami. I will prove to be just as serious as were that man and woman that I describe. I am not a slave. I am not a laboratory animal. I am not a "thing" or "object" to be conditioned by Mr. Posner or the New Jersey Supreme Court in its infinite wisdom and exemplary ethical virtue. My Constitutional and human rights are not negotiable nor subject to modification, secretly, by anonymous "agents" of the state. Rational self-interest may not be the most "useful" way to think of such legal-moral decisions when it comes to others in society nor our own most troubling ethical or spiritual crises and choices. ("New Jersey's Mafia Culture in Law and Politics" and "What is it like to be tortured?")

I wonder how many contributors to American jurisprudential discussions have experienced torture and censorship? Rape?

Perhaps their views would be enriched by such delightful experiences.

Solitary confinement may do U.S. Supreme Court justices a world of good when they ponder appeals by inmates alleging that such confinement over a period of years is inhuman or "cruel and unusual punishment." ("Justice for Mumia Abu-Jamal.")

To doubt the reality of free will (or luck) by arguing that both are ways of characterizing persons' choices "after the fact" is unpersuasive. The reality of words designating ideals or essences in shaping courses of action or reality ("Law") has been demonstrated, unwittingly, by Posner's very analysis claiming the opposite.

A deeper criticism of Posner's cogitations has to do with his dichotomy between a choosing agent deliberating while standing apart from a static world of meanings, which he then acts upon or alters, as against the results of his deliberations in action. The self and its meanings, choices and actions bleed into one another in that elaborate interaction called a "legal system" or "political culture" because each makes and re-makes the other all the time. "This is called dialectics":

"The result is like the perception of a chess player, ... who saw the game not in terms of successive serial moves but as a gestalt -- if a piece were surreptitiously removed, the pattern becomes 'meaningless.' [Aufheben] This player perceived chess oceanically -- he did not analyze the game: in an intelligible sense he 'was,' or incorporated into it. There is a probability that most good chess players proceed in this way, but interpret the game to their abstracted selves by the same process which they would use to describe it to a third party -- they serialize it as a sequence of moves depending on the logical responses of an objectified I who is the player -- precisely as we communicate mathematical structure as a sequence of operations attributed to an objectified mathematician. [Kant's transcedental ego?] In the case of chess it may be the degrees of freedom are limited by the rules of the game. [Yet they are still infinite in combination.] In the case of our general perceptions, they are almost certainly limited by the rules of our pattern-recognizing equipment."

Alex Comfort, I and That (New York: Crown Publishers, 1979), p. 67.

Is language part of our "pattern-recognizing equipment"?

Choices and identitites are made infinite by the constitutive power of combinations of patterns or recognitions allowing for the reshaping of our systems of meanings.

We cannot reinvent the rules or history of chess nor the theory of the game after each move. These objective and preexisting realities constrain our choices which, nevertheless, remain infinite in terms of the possible combinations of options in the languages (plural) that we inherit.

"The self and the world," Hilary Putnam says, "jointly make up the self and the world."

Analogies to Jorge Luis Borges and the infinite library as well as the theories of Michel Foucault become obvious: Michel Foucault, The Order of Things: An Archeology of the Human Sciences (New York: Vinatge, 1973), pp. xv-xxiv, pp. 217-249. ("This book arose out of a passage in Borges ...")

As lawyers and judges, students, and/or citizens we can not invent the law or precedents. However, how we incorporate ourselves and our situations into the tradition and preexisting practices is a matter of creative interpretation and reasoning.

What lawyers and judges do is both subjective and objective. Law is a quantum mystery in which legal "reality" and/or truth is instantiated in our decisions and actions, while remaining quite real, like our identities. As Roberto Unger has understood and argued, in our postmodernist spaces, this protean quality of human social-symbolic life has increased and become self-replicating, because "plasticity becomes power" in a dialectic of sorts, which we may call, again, "the hermeneutics of freedom" or kinematic analysis of fields:

"Now discursive-linear exposition, like chess, is a conventional or culturally transmitted mode of proceeding. [law] As a comment on ontology and the nature of the 'real' it is a philosophic rather than a religious exercise. At the same time it represents a sophistication of the exercise undertaken by every primitive who addresses, or is addressed by, a That which he regards as a not-Self, and, as we shall see, the linear mode conventional to our culture itself partakes of a religion." [Scientism.] (Ibid.)

Free will always has causal efficacy in society because it explains collective events, especially as we move beyond linear modes of thinking and representing to develop analogies to the organic in our social constructions.

Legal systems, nations, political institutions are made and not merely discovered existing empirically independently of human purposes or wishes or efforts.

Law "requires" justice is a statement that elevates persons to the level of objective terms which are collective and ancient because they depend on a multiple-user "identity" as guarantor of meaning, a meaning that is universal and a priori. Law is a "That" which is also "I." The arts are a "That" which is also "I." God or religion is a "That" which is also "I." This is analogous to the rules of chess for players. (See "Is it rational to believe in God?" and "What is Law?")

Please refer to Joseph Ratzinger (Pope Benedict) & Jurgen Habermas, The Dialectics of Secularization: On Reason and Religion (San Francisco: Ignatius, 2005), pp. 67-81 and listen to an obscure Rock-n-Roll band called "U2's" theological themes in the song, Elevation.

Please see A.E. Green & W. Zerna, Theoretical Elasticity (New York & Oxford: Oxford University Press, 1954), the classic text dealing with elasticity theory which is now supplemented by "multidimensional calculus."

Mathematical analogies have become very popular in the so-called "new" idealism.

Free will constitutes the "space" that we create and share in assessing the moral worth of actions together with liabilities in the legal context. The means are the ends. Hence, torture and other abominations are not simply "means" or tactics that can be used to further the goals of a legal system. Such horrors have the effect of altering legal systems and persons by diminishing both, usually permanently, as torture and rape diminishes or destroys a self. The torturer may well suffer a greater moral harm as a result of his actions than his victim:

"The interdependence of legal and moral obligation caused by their joint application to the same persons has the effect that over time, a community's legal and moral norms converge. The efforts to work out an effective legal order will pull the law in the direction of the community's perception of the good. A limited number of scattered ... departures from the general system of values may be tolerated for the sake of some more immediate good; but they create disharmonies and inconsistencies within the law itself, which a healthy legal system will gradually eliminate. Or the moral principles in a community will gradually be reshaped in the direction of the law."

Lloyd Weinreb, "Natural Law Without Nature," in Natural Law and Justice (Cambridge: Harvard University Press, 1987), pp. 186-187, then Roberto Mangabeirra Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), p. 93:

"Formative contexts do not exist as facts open to straightforward observation like the atomic structure of a natural object. Nor does their existence depend entirely upon illusion that a correct understanding might dispel. Rather, they subsist and become entrenched in a practical sense, by gaining immunity to challenge and revision in the course of ordinary social activity. The stronger this immunity becomes, the sharper is the contrast between routine disputes within the context and revolutionary struggles about the context."

The vision of human dignity underlying the U.S. Constitution is not compatible with torture or secret manipulations denying human freedom to subjects.

I see why it is necessary for some people to try to censor and destroy this essay. My message is subversive. The Constitution is not compatible with the censorship and psychological warfare directed against me on a daily basis.

We must choose the languages in which we will understand the law and ourselves as legal subjects.

We must choose what we will make of law and persons.

Abu Ghraib? The National Security State? Do black lives really matter? Do we ignore our history and the structure of meanings that is already in place for the sake of "expediency" or "security"? Is such a thing even possible?

I hope not.

Posner ends with a well-meaning prescription for what is bound to become totalitarianism: "... there is no anomaly in sometimes imposing criminal liability [emphasis added!] on the pure of heart" -- yes, there is! -- "or the empty of mind." (Posner, p. 176.)

Why stop there? Why not impose criminal liability on the innocent if this satisfies our social purposes as determined by self-described "superiors"? (Judgment in Nuremberg.)

At this point, Posner has traveled a full circle, abandoning his individualism and doubts about essences to reify an abstraction called "law" with so-called "needs" over persons and human rights in a frightening display of the ways by which powerful people arrogate to themselves ever-increasing degrees of control over others' lives. The destruction of my writings, violations of my rights, is mild by comparison to what Posner might do to other "objects" in the legal system.

My friend Sam was arrested in New York for being poor and asking people for money as they exited Dunkin Doughnuts.

A man called "Steve" who sells books on the sidewalks of New York is dying because he needs an operation for which insurance coverage is not forthcoming.

Mr. Trump's war on "Obamacare" will probably leave Steve homeless as well as without access to medical care.

"Collusion" in such heartless public policies from the Trump administration is far worse than any alleged "collusion" by Mr. Trump with Russia's meddling in the most recent presidential election, but Democrats may not consider the issue as sexy in their MSNBC discussions.

There is a gradual process by which anyone becomes Adolf Eichmann after receiving judicial robes or a fancy new office. The process is complete when others become mere "objects" to be manipulated and used for career purposes by the industrious legal executive.

The "law" names a contested territory where ALL segments of society contribute to definitions and expectations, including (I hope) "the pure of heart" and "empty of mind" (does "empty of mind" include me?), rich and poor, sick and old people, children and powerful officials with each counting for one and none for more than one.

This includes poor people who ask for money outside a Dunkin Doughnuts or those who survive by selling books in the streets.

There are levels of understanding of politics that only become possible when one has experienced torture, hunger, rape, dehumanization.

All of these experiences and many other forms of struggle and suffering may be part of a person's legal and moral education. ("What is it like to be tortured?" and, soon, "What is it like to be raped?")

Before another "error" is inserted in my writings, before my t.v. signal disappears again, before the next refusal to distribute my book -- even at my own expense -- I wish to renew my question to Mr. Rabner: "How does a Jew become Mengele?" ("An Open Letter to My Torturers in New Jersey, Terry Tuchin and Diana Lisa Riccioli.")

Behind Posner self-contradictions one detects unconscious will-to-power and a substantial risk of sadism on the part of officials authorized to decide who is "pure of heart" or "empty of mind" in order to require control and guidance for, allegedly, paternalistic reasons from their "superiors" in judicial robes.

Posner's law and economics looks and sounds a lot like fascism:

"[My view] lies at the farthest possible remove from Kant's influential view that human beings should not treat each other just as objects. But the question is not what is good for us to believe on the score of freedom and determinism but what premise is good for law [Do you embody the law, Judge Posner?] to proceed on. Behaviorism is the only proper working assumption for the law ... " (Posner, p. 178 with emphasis added.)

This was certainly Joseph Stalin's view of law. The law has "working assumptions" that may require the loss of your freedom but not Judge Posner's freedom.

Posner does not see himself as "empty of mind." "We The People" decide on the contents of essences, Judge Posner, even as we are shaped by those essences.

The law is where all of us can and must meet as equals.

To realize that this equality requires the dignity of FREE subjects -- who decide together what the law means or requires -- within the boundaries of our fundamental rights that protect both freedom and equality, is to appreciate why Judge Posner is wrong to suggest that the "empty-minded" and other "objects" (you and me) may be held criminally liable regardless of mental states, capacities, or (presumably) tortured for the sake of expediency or security, maybe just because it is amusing or interesting for some sick people (like Tuchin or Riccioli) to hurt others and, evidently, regardless of guilt or innocence.

Perhaps destroying "defective" or "abnormal" people in concentration camps will be deemed convenient by the "Law"?

Posner has provided us with all the ingredients necessary for Abu Ghraib and Guantanamo or the gulags for that matter. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")

Any society that moves in the direction of human freedom and dignity is to be encouraged in that effort at self-realization.

Any society that moves away from those values is heading towards moral suicide. ("Psychological Torture in the American Legal System" and "American Courts Must Not Condone Torture.")

B. Torture or Dignity?

"To Husserl I owed the methodology designated by the term 'eidetic analysis'; to Gabriel Marcel I owed the problematic of a subject at once embodied and capable of placing desires and powers at a distance, in short a subject who was master of himself and the servant of necessity in the figure of character, the unconscious, and life. The ontological implications of this dialectic of ACTING [empirical] and of SUFFERING [meanings] appeared to me only after reading my dissertation, ... 'The unity of the voluntary and involuntary as limit-idea' (1951). The phenomenology of the voluntary and involuntary thus appeared to me to offer an original form between the well-known positions of dualism and monism."

Paul Ricoeur, "Intellectual Autobiography," in The Philosophy of Paul Ricoeur, pp. 12-13.

Ricoeur's distinctions between the realm of meanings and empirical reality, explanations and causality, actions and events, a monism with dual aspects as human being-in-the-world-with-others turns on the crucial word in the foregoing paragraph "unity."

The idea of implication or "instantiation" in the physical world that is also an entry into the realm of interpretations that is always "unfinished" makes us, collectively, responsible for the evil that we must face and from which we suffer.

I am responsible for the pain of others and not only my own pain. This responsibility is a matter of shared "self-interest." The "self" that is interested is plural or social.

25,000 to 50,000 persons will die of hunger or misery today. We are all responsible for these deaths. Recognition of our moral responsibility for this reality is a matter of rational self-interest.

Ricoeur's phenomenological-hermeneutics is a rich and profound religious and philosophical vision of life comparable with the best of Greek tragedy or Shakespeare's Lear.

You are the victim of torture at Abu Ghraib or anywhere. It is up to you whether you will also be the torturer. I have discussed elsewhere the guilt of bystanders to atrocity. To the extent that we remain indifferent to the crimes committed in our names we must share in the guilt for those crimes.

If you are a New Jersey lawyer or judge censorship of these writings takes place with your "collusion" if you fail to act in order to prevent these illegalities.

Mr. Rabner, as a New Jersey lawyer, you are responsible for these acts of censorship and attempts to prevent Constitutionally-protected speech over a period of many years by persons within New Jersey's legal profession and hierarchy.

Continuing failures to punish those directly responsible threatens the Constitutional rights of all citizens in America. None can be free unless all are free. (Once more: "Fidel Castro's 'History Will Absolve Me'" and the recently vandalized essay: "Manifesto for the Unfinished American Revolution.")

Judge Posner, evidently, sees torture as an instrument of government or legal "policy" to be assessed in terms of "the costs of obtaining evidence of dubious reliability" as compared with "the value of the evidence." (p. 179.)

Torture merely raises an instrumental or calculative question like deciding whether to purchase underwear that is costly but attractive.

Posner fails to consider the effects of psychological torture techniques at the hands of servants of state power -- Tuchin and Riccioli, for example, Milgram or Rabner -- or the ways in which hypnosis and/or drugging, anxiety- and guilt-inducement can alter the environment of interrogation making the results obtained worthless while inflicting serious and permanent harm on victims and even more harm on the "conflicted" legal systems of corrupt states:

"Yet although interrogation in these circumstances may make confession far more likely, it does not confront the suspect with a false environment that prevents a reasoned choice [Oh, no?] -- a weighing of the actual (psychic as well as practical, of course) consequences of alternative courses of action free at last from manufactured uncertainty. Despite the mentalist language in which the law of coerced confessions comes wrapped, the theory as I have articulated it is consistent with the overall behaviorist approach of the criminal law. Remember rational choice is not the same as free will in the strong sense. A rational choice is objectively right; no assumptions are made about the chooser's freedom or subjectivity." (Posner, pp. 180-181.)

You can make a rational choice to "confess" at Abu Ghraib, under Posner's theory, despite being beaten and raped with a broomstick during interrogations. This is because a self-incriminating statement may be the least costly and most self-advantageous option under the circumstances. Means-and-ends rationality may allow for the admission of testimony procured in such a fashion according to Judge Posner.

Judge Posner is a Circuit Court judge who represents a dominant approach to legal thinking in the United States of America.

Posner expresses no hesitations in saying that it is "appropriate to treat persons as objects" (his words) in the legal system. No doubt Judge Jay S. Bybee and Berkeley Law Professor John Yoo agree with this conclusion. These men embody the so-called "ethics" of the American legal profession whereas I am told that I am "unethical." ("Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture' then "New Jersey's 'Ethical' Legal System.")

"The person who (whether innocent or guilty) confesses under a credible threat to kill him on the spot unless he confesses is striking a rational balance between the costs and benefits of confession; should his confession therefore be admissable? It should not be; but the reason it should not be is that the rational choice to confess under such a threat is to confess REGARDLESS OF GUILT, rather than that the threat prevents a rational choice from being made. The choice induced by the threat is perfectly rational ..." (Posner, p. 182.) ("Captured American Tortured on Video by Taliban" and "More Tortures of Captured American Soldier by Taliban.")

Yes, judge, it sure is "rational." Americans and/or "others" beheaded after being tortured, savagely, for weeks, by insurgents in Iraq or by ISIS have made statements critical of the U.S. government right before dying, allegedly.

Many hostages and prisoners have done the same "confessing" after psychological torture.

I am quite certain that such statements if made before an American soldier (or anyone) is beheaded, after his torture, are indeed "rational."

This treatment of U.S. soldiers is barbaric and evil, a mirror-image of what we have done to others that will continue to be done to Americans for many years to come. ("The Torture of Persons.")

I suggest, respectfully, that Judge Posner fails to appreciate the emotional reality involved in these discussions or the full implications of treating persons as "objects" as distinct from respecting the "dignity" to which the Constitution entitles every person in the opinion of Justice William J. Brennan and Professor Ronald Dworkin.

John Yoo, Alberto Gonzales, Jay S. Bybee, William J. Haynes -- all of these men and Ms. Rice may wish to ponder this idea of human dignity and autonomy. Charlie Savage & Scott Shane, "Terror-War Fallout Lingers Over Bush Lawyers," in The New York Times, March 9, 2009, at p. A1. (Is rationalization of torture what we wish to describe as American "legal ethics"?)

Please compare "America's Unethical Medical Torturers" with "Is America's Legal Ethics a Lie?"

Not one of the Bush torture lawyers -- or State Department lawyers responsible for the "sanctions regime" in Iraq -- have been found unethical or sanctioned despite thousands of tortured persons and millions of deaths resulting from their legal advice and America's failed policies in the region and also in many other parts of the world.

My response to alterations of my essays will be to focus on further examples of criminality and corruption among New Jersey judges and government officials by identifying and describing possible influence-peddling and payoffs at the Attorney General's office and Supreme Court in Trenton.

Torture lawyers disapprove of my ethics. You decide who is "unethical." ("Law and Ethics in the Soprano State" and "New Jersey's 'Ethical' Legal System.")

Persons are not legal objects under the Constitution. Persons are subjects whose meanings and intentions alone permit the full appreciations of their moral worth and assessments of actions. Evaluations of the messy intentionality of human being-in-the-world cannot be removed from adjudication of responsibility or guilt in a sophisticated legal system.

Judges should and must be pretty smart people. Judges should also be compassionate and wise. This leaves out most of the judiciary in a place like New Jersey. ("What is Law?")

The alternative to such wisdom and skill on the part of judges is psychological or physical torture, brutality, power-worship and corruption in tainted legal proceedings such as may be found any day of the week at the ironically-named "Brennan Courthouse" in Jersey City, New Jersey.

Will $10,000, allegedly, still fix an accident case "gentlemen"? Mr. Ginarte? (See "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "Sybil R. Moses and Conduct Unbecoming to the Judiciary in New Jersey.")

"The decision to detain, [and] to continue to detain someone indefinitely is a unilateral judgment made by government officials who simply deem that a given individual or, indeed, a group poses a danger to the state. This act of 'deeming' takes place in the context of a declared state of emergency in which the state exercises prerogatory power that involves the suspension of law, including due process for these individuals. The act is warranted by the one who acts and the 'deeming' of someone as dangerous ["justifies"] his INDEFINITE DETENTION. The one who makes this decision assumes a lawless and yet fully effective form of power with the consequence of not only depriving an incarcerated human being of the possibility of a trial, in clear defiance of international law, but of investing the governmental bureaucrat with an extraordinary power over life and death. Those who decide on whether someone will be detained, and continue to be detained, are government officials, not elected ones, and not members of the judiciary. They are, rather, part of the apparatus of governmentality, [OAE?] the power they wield to 'deem' someone dangerous and constitute them effectively as such, is a sovereign power, a ghostly and forceful resurgence of sovereignty in the midst of governmentality."

Judith Butler, "Indefinite Detention," in Precarious Life: The Powers of Mourning and Violence (London: Verso, 2006), pp. 58-59. ("It's for their own good?")

Sources:

Richard Posner, "Ontology, the Mind, and Behaviorism," in The Problems of Jurisprudence (Cambridge: Harvard University Press, 1990), pp. 161-196.

Richard A. Posner, "The Reflections of Law in Literature," in Law and Literature: A Misunderstood Relation (Cambridge: Harvard University Press, 1988), pp. 71-131 ("... ["The Merchant of Venice"] takes the side of equity against law in law's narrow sense of mechanically, inflexibly, unimaginably enforced rules, but also against the transcendental values personified by Antonio, whom Portia cheats of martyrdom.")

Ronald Dworkin, "Hard Cases," in Taking Rights Seriously (Cambridge: Harvard University Press, 1977), pp. 81-130 ("... judicial decisions in civil cases ... characteristically are and should be generated by principle and not policy.")

Dworkin's approach "splits the difference" between law and equity by using transcendental ideals or values only to the extent that they are found in the deep structure of legal materials. William Shakespeare anticipated Professor Dworkin's jurisprudence by walking the thin line between these options in the moral universe of his masterpiece The Merchant of Venice. Now take a good look at Measure for Measure.