A Better Interpretation Of Law

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

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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.

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