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THE HOSTESS

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Legal Reasoning
« on: July 27, 2005, 04:20:40 AM »
Anyone interested in legal reasoning method, its pecularities and the like, please post here.

I think the need to believe in the power of legal reason plays an important role in producing the extremely complex and interesting psychological phenomenon, the modern legal mind.

I hope you have heard of unicorns. One could believe that unicorns are actual biological phenomena -- that unicorns are real in the same way horses are real. Or one could believe that unicorns are creations of the human mind, imaginary creatures whose characteristics are therefore wholly a product of our assumptions about those same characteristics. Now imagine a social practice that requires persons to act as if they sincerely believe there actually are independent facts of the matter regarding unicorns -- facts not dependent on human beliefs -- and indeed routinely requires these people to assert the existence of such facts. Yet suppose this practice also requires that on certain occasions those who engage in the practice claim no such independent facts concerning the status of unicorns exist because, after all, "everyone knows" unicorns are merely products of the human mind. We could anticipate that many of the participants in this practice will develop a sort of double consciousness about unicorns, one in which they will both affirm and deny -- and in which they will in a sense both believe and not believe -- that unicorns are actual or imaginary creatures, depending on the context in which such affirmation or denial, and belief or absence of belief, is deemed appropriate.

On certain occasions, they would argue passionately about what colors unicorns really were, or about their actual population, whereabouts, and habits. On other occasions they would treat with derision anyone who could be foolish enough to take the naive view that unicorns were the sort of creatures that existed outside the minds of the men and women who imagined them into being. On yet other occasions they would seem to assert both views at once, claiming that while of course unicorns didn't really exist outside our imaginations, nevertheless by treating them as if  they were actual living animals we could eleminate any practical distinction between the characteristics of real and imaginary creatures.

Such is the ordinary mental condition of the modern American lawyer. The modern lawyer, and especially the modern judge and law professor, must continually practice a sort of "as if" jurisprudence, within the context of which the lawyer both knows and doesn't know that most important legal facts are facts only to the extent we believe them to be legal facts. Various strategies are then employed to deal with the intense cognitive dissonance that characterizes this condition. A common one among practicing lawyers is to simply ignore the dissonance -- to treat it as someone else's problem. That someone is, of course, whatever decision maker is precluded from employing the same cognitive strategy by virtue of the decision maker's decisional responsibilites.

Perhaps the proper function of a legal education is to produce persons who "think like lawyers": individuals, that is, who are trained to hold various unambivalent yet rationally unjustified beliefs, necessary for the vigorous deployment of social power, that nevertheless remain highly role specific, and are therefore subject to change at a moment's -- or a client's -- notice. Such beliefs help mold otherwise ordinary people into the sorts of state actors who will not hesitate to kill, cage, and impoverish their fellow citizens on what are deemed institutionally appropriate occasions, in much the same way that successful military training renders otherwise pacific young men capable of committing acts of politically sanctioned homicide.

tit4tat

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Sawada v. Endo
« Reply #1 on: August 02, 2005, 06:30:17 AM »
In November 1968, Masako Sawada and Helen Sawada were injured when struck by a car driven by Kokichi Endo. They sued him and won judgments slightly more than $25,000. During the 19-month period between the filing of the suits and the jury's verdicts Kokichi Endo and his wife, Ume Endo, transferred ownership of their house to their sons. The Endos continued to live in the house after the transfer, although Ume Endo died only ten days after the verdicts were returned against her husband.

The Sawadas were subsequently unable to collect their judicially decreed debt from the remaining assets of Kokichi Endo. They brought another suit, asking the court to declare the transfer of the Endo home a fraudulent conveyance, undertaken for the purpose of defrauding the property owner's creditors, and to therefore set the conveyance aside.

Ultimately, the Supreme Court of Hawaii was asked to answer the question of whether or not the manner in which the Endos had held their property precluded a finding that the transfer to their sons was fraudulent as a matter of law, no matter how "fraudulent", in ordinary lay terms, the transferors' intent may have been. The Endos had owned their house in a "tenancy by the entireties." In the English common law, property held in a tenancy by the entireties had the following relevant characteristics: it had to be owned jointly by a married couple; it could be conveyed or mortgaged by the husband, but not by the wife (at common law, a married woman was for most property-owning purposes not a judicially recognized person); it was subject to the husband's general debts; and at the death of one spouse , it was treated as if it simply remained the sole property of the surviving spouse. Thus if the husband sold or mortgaged the property and then died before his wife, the husband's interest in the estate was treated as if it had never existed, and hence the property would belong solely to his widow, unencumbered by her late husband's conveyances and debts.

With the passage of the Married Women's Property Acts in the 19th century, American jurisdictions removed most of the formal common law disabilities that precluded married women from controlling marital property. These statutes, however, failed to address the question of what effect they should be construed to have on the tenancy by the entireties. Various state courts subsequently answered this question in four different ways. A few states treated the tenancy as unchanged; the husband retained sole power to convey the estate, and it remained liable to his debts, subject only to the wife's right of survivorship. Other states placed the wife in what under the common law had been the husband's shoes, by making the estate liable to her separate debts as well as to his, and by allowing either spouse to sell the property. A third group placed the husband in the wife's former position, barring the separate debts of either party from affecting the estate, and not allowing either spouse to convey the estate without the consent of the other. Finally, two states allowed either spouse to subject his or her survivorship interest to creditors, but barred any separate debts from being attached to the property itself while both spouses still owned it.

By the 1970s, Hawaii remained the only state not to have addressed this particular question; and the inability of the Sawadas to collect on their debt gave the state's supreme court the opportunity to do so. For if Hawaii chose to retain the common law estate, or if it put the wife in the former position of the husband, then the Ebdos' transfer of their property to their sons would be treated as fraudulent as a matter of law, given that Mr. Endo's interest in the estate would still be liable to his general debts. On the other hand if Mr. Endo was placed in what under the common law was the wife's position, neither his or his wife's separate debts could then affect the solvency of the estate, and hence as a technical matter the transfer would not be considered fraudulent.

The modern tenancy by the entireties produces some difficult conceptual puzzles. Its common law predecessor was a product of what to us seems the metaphysically mysterious idea, derived from various elements of Christian doctrine, that a husband and wife were a single legal person. This idea led to little practical difficulty as long as only one of the subjects in this consubstantial union was a juridically recognized entity. But with the legal emancipation of women, Simone de Beauvoir's observation that for the equation 1 + 1 = 1 to work one of the integers had to, functionally speaking, become a zero could no longer adequately explain the conceptual structure of the tenancy by the entireties. As the opinion in Sawada v. Endo notes, "The tenancy was and still is predicated upon the legal unity of the husband and the wife, but the Acts converted it into a unity of equals and not unequals as at common law." The conceptual difficulty thus arises because under the modern view each spouse owns, in both theory and practice, the entire estate: each is deemed in the reifying jargon of property law to be "seized of the entirety" rather than "taking by respective moieties [parts]." But if each spouse owns all the estate, then strict logic would seem to dictate the paradox that while the property's owner cannot convey or indebt the land without the consent of the property's owner, neither can the property's owner stop the property's owner from selling or indebting that which, after all, belongs to the property's owner.

tit4tat

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Re: Legal Reasoning
« Reply #2 on: August 02, 2005, 07:04:15 AM »
In deciding the case, the court attempts to navigate this conceptual muddle through the straightforward use of circular reasoning. It first quotes another court to the effect that "each spouse owns the whole [estate] while both live" and that "at the death of either the other continues to own the whole, and does not acquire any new interest from the other." From its witnessing of this metaphysical marvel the court "deduces the indivisibility and unseverability of the estate into two interests, and hence that the creditors of either spouse cannot during their joint lives reach by execution any interest which the debtor had in land so held." Impressed by the force of its own deductive powers, the court then muses that while "one may have doubts as to whether the holding of land by entireties is advisable or in harmony with the spirit of the legislation in favor of married women," these doubts must give way before the insight that "when such an estate is created due effect must be given to its peculiar characteristics."

Here we see the more or less hypnotic power that formal -- or, more precisely, pseudo-formal -- modes of reasoning continue cast over the workings of the legal mind. Yet the Supreme Court of Hawaii gives no indication whatsoever that it has the faintest suspicion there might be anything fishy about this particular use of deductive reasoning. Indeed, the idea that they are simply begging the question seems quite beyond the judges' collective ken.

When the court turns from discussing legal concepts to instrumental considerations of policy, we receive even clearer confirmation that we are in the presence of a level of cognitive confusion akin to that accompanying some sort of mental illness. The argument that it is unfair to creditors to exempt the tenancy from the debts of either spouse is dismissed with the observation that "If the debt arose prior to the creation of the estate, the property was not a basis of credit, and if the debt arose subsequently the creditor presumably had notice of the characteristics of the estate which limited his right to reach the property." The court then criticizes by implication the choices supposedly made by the plaintiffs in the case before it, pointing out that "there is obviously nothing to prevent the creditor from insisting upon the subjection of property held in a tenancy by the entirety as a condition precedent to the extension of credit."

These kinds of statements should give teachers of law pause. Do we have the misfortune to be burdened with the task of subjecting some number of mentally impaired persons to the benefits of legal education, or is it perhaps the case that those "benefits" are in fact doing serious damage to the cognitive capacities of persons of otherwise normal intelligence? How is it possible for these judges to entirely overlook problems of fairness created by the existence of involuntary creditors, when the plaintiffs in the case before them are representatives of that very class? And how is it possible for this court to assume that even voluntary creditors "presumably had notice" of the relevant characteristics of the tenancy by the entireties in this particular legal context when, after all, the court is creating those same characteristics by means of this very decision?

After some further discussion of various public policy justifications for ruling as it has, the specious character of the court's reasoning achieves a sort of Platonic perfection when it concludes its analysis with the following remarkable announcement:

If we were to select between a public policy favoring the creditors of one of the spouses and one favoring the interests of the family unit, we would not hesitate to choose the latter. But we need not make this choice for, as we pointed out earlier, by the very nature of the tenacy by the entirety as we view it, "a ... broad immunity from claims of separate creditors remains among its vital interests."

The opinion in Sawada v. Endo can be reduced to the following propositions.

1. Legal concept X is conceptualized in a number of different ways in the context of situation Y, thus producing result A in Jurisdiction 1, result B in Jurisdiction 2, result C in Jurisdiction 3, and result D in Jurisdiction 4.

2. Legal concept X has never been conceptualized in the context of situation Y in Jurisdiction 5.

3. In Jurisdiction 5, legal concept X must be conceptualized in the context of situation Y to produce result C.

4. This conceptualization is impelled on the decision maker not because the result it produces is in some way desirable, but rather because this result is inherent in the proper conceptualization of legal concept X in the context of situation Y in Jurisdiction 5. Q.E.D.

This is the kind of thing that drove classic legal realists -- antiformalist legal scholars of the 1920s and 1930s -- into paroxysms of rage and disgust. 60 years later, despite routine legal academic claims that "we" are all realists now, anyone who practices law is well aware that such blatantly circular forms of pseudo-formal reasoning are still an integral part of actual legal decision making. Sawada is far from uncommon demonstration of what happens when a particularly clumsy magician struggles in full view of his audience to stuff a recalcitrant rabbit into a too-small hat, and then -- having at last succeeded -- proceeds with an air of absurdly triumphant pride to lift the enraged bunny high aloft, so that all may look on his handiwork with amazement and awe.

lockerforfree

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Re: Legal Reasoning
« Reply #3 on: August 08, 2005, 03:55:09 AM »
tag
An artist has no home anywhere in the world except in Paris.

casusbelli

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Re: Legal Reasoning
« Reply #4 on: August 09, 2005, 07:17:58 AM »
Well I guess one of the most curious aspects of socially constructed entities is that many of them are the sorts of artifacts that can perform the social work they are supposed to accomplish only if we ignore or forget their artificial nature. A classic example of this is the socially necessary assumption that value inheres in what we call "money." As a matter of practical psychology money can fucntion as a medium of exchange only to the extent that we manage to treat it as valuable in itself. We don't "believe" money is valuable: we know it is. Yet what is that knowledge other than our unconscious confidence that, in this case, knowledge and belief are not merely compatible, but actually identical? We believe we know money is valuable becuase we know we believe it is. In such cases, the psychology of appropriate social belief requires that we maintain an involuted state of mind in which we both know and don't know that various artifacts in whose existence we believe exist precisely because we believe they do.

Films, and to a lesser extent currencies, are examples of where our knowledge of the fictional, context-specific nature of our belief remains fairly close to the surface of conscious thought. But many other psychological artifacts of contemporary life are much more cognitively complicated. To what extent do we, or should we, recognize that a concept like "the government" or "the court" is also a pragmatic and mimetic fiction? One thing is certain: given the socially constructed nature of so much of our daily experience, the structure of modern life ensures that a great deal of what we think of as "reality" will be product of a kind of mass hypnosis, which requires that we maintain ourselves in delicately balanced, psychologically complex states of knowing ignorance and skeptical credulity. (To paraphrase Thomas Szasz: if you believe in the United States of America that's called "patriotism"; if you believe in the Republic of Texas that's called "schizophrenia.")

Which brings us to what is called "the law." In what sense does law exist? As a historical matter, it is fairly clear that at one time the lawyers and judges of the English common law thought of their law as rather more like a horse than a unicorn; that is, to the extent they considered the question at all, they believed "the law" was an objective, metaphysically robust entity. They also appeared to believe the law had existed from time immemorial and that therefore it certainly was not a product of, or dependent on, human beliefs and desires. This particular metaphysical vision -- what Oliver Wendell Holmes famously called "the brooding omnipresence of the law" -- cannot be maintained as a matter of self-conscious belief in a thoroughly secular, aggressively materialist public culture such as our own. In our legal culture, one can no longer assert openly the proposition that law is not an artifact of human will without running the risk of being told that anyone who could believe such a thing must be deeply confused, if not actually deluded.

Nevertheless contrary to the explicit claims of rationalizers, technocrats, and utiliatarians of every stipe the implicit belief in law as a brooding omnipresence is far from dead. Indeed, given what we require of law, it may be that some degree of belief that it is "really" there -- that the unicorn that you dear poster mention still inhabits some hidden hollow of the forest --  remains a necessary component of the legal form of thought.

*.*

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Legal Sophistry
« Reply #5 on: August 10, 2005, 10:25:46 PM »
Here are the common logical fallacies that are crucial for a good lawyer to condemn theoretically and apply practically:

Fallacies of Distraction

False Dilemma
 
Definition: A limited number of options (usually two) is given, while in reality there are more options. A false dilemma is an illegitimate use of the "or" operator.
Putting issues or opinions into "black or white" terms is a common instance of this fallacy.

Examples:
Either you're for me or against me.
America: love it or leave it.
Either support Meech Lake or Quebec will separate.
Every person is either wholly good or wholly evil.

Argumentum ad Ignorantiam

Arguments of this form assume that since something has not been proven false, it is therefore true. Conversely, such an argument may assume that since something has not been proven true, it is therefore false. (This is a special case of a false dilemma, since it assumes that all propositions must either be known to be true or known to be false.) As Davis writes, "Lack of proof is not proof." (p. 59)

Examples:
Since you cannot prove that ghosts do not exist, they must exist.
Since scientists cannot prove that global warming will occur, it probably won't.
Fred said that he is smarter than Jill, but he didn't prove it, so it must be false.

Slippery Slope

In order to show that a proposition P is unacceptable, a sequence of increasingly unacceptable events is shown to follow from P. A slippery slope is an illegitimate use of the "if-then" operator.

Examples:
If we pass laws against fully-automatic weapons, then it won't be long before we pass laws on all weapons, and then we will begin to restrict other rights, and finally we will end up living in a communist state. Thus, we should not ban fully-automatic weapons.
You should never gamble. Once you start gambling you find it hard to stop. Soon you are spending all your money on gambling, and eventually you will turn to crime to support your earnings.
If I make an exception for you then I have to make an exception for everyone.

Complex Question

Two otherwise unrelated points are conjoined and treated as a single proposition. The reader is expected to accept or reject both together, when in reality one is acceptable while the other is not. A complex question is an illegitimate use of the "and" operator.

Examples:
You should support home education and the God-given right of parents to raise their children according to their own beliefs.
Do you support freedom and the right to bear arms?

Have you stopped using illegal sales practises? (This asks two questions: did you use illegal practises, and did you stop?)

*.*

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Re: Legal Reasoning
« Reply #6 on: August 10, 2005, 10:28:21 PM »
Appeals to Motives in Place of Support

Appeal to Force(argumentum ad baculum)

The reader is told that unpleasant consequences will follow if they do not agree with the author.

Examples:
You had better agree that the new company policy is the best bet if you expect to keep your job.

NAFTA is wrong, and if you don't vote against NAFTA then we will vote you out of office.

Appeal to Pity (argumentum ad misercordiam)

The reader is told to agree to the proposition because of the pitiful state of the author.

Examples:
How can you say that's out? It was so close, and besides, I'm down ten games to two.

We hope you'll accept our recommendations. We spent the last three months working extra time on it.

Appeal to Consequences

The author points to the disagreeable consequences of holding a particular belief in order to show that this belief is false.

Example:
You can't agree that evolution is true, because if it were, then we would be no better than monkeys and apes.
You must believe in God, for otherwise life would have no meaning. (Perhaps, but it is equally possible that since life has no meaning that God does not exist.)

Prejudicial Language

Loaded or emotive terms are used to attach value or moral goodness to believing the proposition.

Examples:
Right thinking Canadians will agree with me that we should have another free vote on capital punishment.
A reasonable person would agree that our income statement is too low.
Senator Turner claims that the new tax rate will reduce the deficit. (Here, the use of "claims" implies that what Turner says is false.)
The proposal is likely to be resisted by the bureaucrats on Parliament Hill. (Compare this to: The proposal is likely to be rejected by officials on Parliament Hill.)

Appeal to Popularity (argumentum ad populum)

A proposition is held to be true because it is widely held to be true or is held to be true by some (usually upper crust) sector of the population. This fallacy is sometimes also called the "Appeal to Emotion" because emotional appeals often sway the population as a whole.

Examples:
If you were beautiful, you could live like this, so buy Buty-EZ and become beautiful. (Here, the appeal is to the "beautiful people".)
Polls suggest that the Liberals will form a majority government, so you may as well vote for them.
Everyone knows that the Earth is flat, so why do you persist in your outlandish claims?


*.*

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Re: Legal Reasoning
« Reply #7 on: August 10, 2005, 10:30:32 PM »
Changing the Subject

Attacking the Person (argumentum ad hominem)

The person presenting an argument is attacked instead of the argument itself. This takes many forms. For example,the person's character, nationality or religion may be attacked. Alternatively, it may be pointed out that a person stands to gain from a favourable outcome. Or, finally, a person may be attacked by association, or by the company he keeps.
There are three major forms of Attacking the Person:

ad hominem (abusive): instead of attacking an assertion, the argument attacks the person who made the assertion.
ad hominem (circumstantial): instead of attacking an assertion the author points to the relationship between the person making the assertion and the person's circumstances.
ad hominem (tu quoque): this form of attack on the person notes that a person does not practise what he
preaches.


Examples:
You may argue that God doesn't exist, but you are just following a fad. (ad hominem abusive)
We should discount what Premier Klein says about taxation because he won't be hurt by the increase. (ad hominem circumstantial)

We should disregard Share B.C.'s argument because they are being funded by the logging industry. (ad hominem circumstantial)

You say I shouldn't drink, but you haven't been sober for more than a year. (ad hominem tu quoque)

Appeal to Authority (argumentum ad verecundiam)

While sometimes it may be appropriate to cite an authority to support a point, often it is not. In particular, an appeal to authority is inappropriate if:
the person is not qualified to have an expert opinion on the subject,
experts in the field disagree on this issue.
the authority was making a joke, drunk, or otherwise not being serious
A variation of the fallacious appeal to authority is hearsay. An argument from hearsay is an argument which depends on second or third hand sources.

Examples:

Noted psychologist Dr. Frasier Crane recommends that you buy the EZ-Rest Hot Tub.
Economist John Kenneth Galbraith argues that a tight money policy s the best cure for a recession. (Although Galbraith is an expert, not all economists agree on this point.)
We are headed for nuclear war. Last week Ronald Reagan remarked that we begin bombing Russia in five minutes.(Of course, he said it as a joke during a microphone test.)
My friend heard on the news the other day that Canada will declare war on Serbia. (This is a case of hearsay;in fact, the reporter said that Canada would not declare war.)
The Ottawa Citizen reported that sales were up 5.9 percent this year. (This is hearsay; we are not in a position to check the Citizen's sources.)

Anonymous Authorities

The authority in question is not named. This is a type of appeal to authority because when an authority is not named it is impossible to confirm that the authority is an expert. However the fallacy is so common it deserves special mention.
A variation on this fallacy is the appeal to rumour. Because the source of a rumour is typically not known, it is not possible to determine whether to believe the rumour. Very often false and harmful rumours are deliberately started in order to discredit an opponent.


Examples:
A government official said today that the new gun law will be proposed tomorrow.
Experts agree that the best way to prevent nuclear war is to prepare for it.
It is held that there are more than two million needless operations conducted every year.
Rumour has it that the Prime Minster will declare another holiday in October.

Style Over Substance

The manner in which an argument (or arguer) is presented is taken to affect the likelihood that the conclusion is true.

Examples:
Nixon lost the presidential debate because of the sweat on his forehead.
Trudeau knows how to move a crowd. He must be right.
Why don't you take the advice of that nicely dressed young man?

(continues)

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Re: Legal Reasoning
« Reply #8 on: August 13, 2005, 06:22:12 AM »
On the issue of holding two contradictory beliefs in mind simultaneously, and accepting both of them (doublethink): well, I would suggest you study a bit Zen Buddhism. You know, Zen is a complete difference in perception to the dominant Western worldview. The Western world, dominated by science, has a logical and rational view of life. Contradiction and paradox are frowned upon in this worldview.

1 + 1 = 2 and cannot be 3.

The rational perspective is only one view of life, and not necessarily the most valid. This is not to say that rationality is wrong, but rather that is limited and only one perception that has been historically and geographically prescribed.

Enlightenment as the goal of Zen Buddhism. This again is a very difficult term to describe in a sentence or two. We can understand enlightenment as knowledge of the truth; but this knowledge is not the accumulative and rational knowledge of the West. The word enlightenment is understandable and frequently used in the religions of the West. A monk went to the Zen master wanting to know more about the truth of enlightenment. When he asked this question of the Zen master, the master replied, "Do you hear the sound of that running brook." "Yes, I hear it," answered the monk. "That is the entrance to the truth" the Master replied to him. From this example a number of things should be obvious. Enlightenment is not a form of perception that is mediated by logic or even cause and effect reasoning. It is an immediate and complete clear view and understanding of the nature of reality.

The misconception of self.
 
One of the obstacles that stand in the way of the initiate trying to enter into Zen understanding is the concept of the self. This is one of the central reasons why Zen is so difficult for the Westerner. Western perceptions of reality are built on the foundation of the Self and the idea of the centrality of the Ego. In terms of understanding Zen, the greatest obstacle to Enlightenment is the Self. The reason for this situation is that the Self is an illusion created by the society, and by the desires and needs of the individual Ego. It is only in moving beyond the Ego that an understanding of the enlightenment can begin. There is an important difference between the terms "Self" and "ego" that must be understood in this regard. For the Eastern Mind the Self is the true self that has been released from the false self of the ego. In other words, the ego is the illusionary element that traps man into a false perception of reality. The Enlightenment is the break-through from the region of the false self into a new consciousness and awareness that is not limited by the ego.

This distinction between the Self and the false ego is not too difficult to understand in ordinary terms. The self, it is widely acknowledged by psychologists and sociologists, is a construction. In other words, the human self is built from social conventions, personal feelings and history and is, in this temporal sense, an illusion. This illusion of the self stands as a barrier between the true Self and a perception of reality. One only has to think of the false ideals like materialism and envy etc, which absorb us in our daily lives, to understand the validity of the Zen perception of no-self. This is a realization that is skirted over by many Western practitioners of Zen, mainly because of its essential difficulty. But, this is also one of the most significant areas of investigation for the Western person wanting to understand Zen. After fully understanding the illusion of the self, the journey into Zen begins. From this point onwards, we enter into the knowledge of Zen without the encumbrance of the baggage of our daily lives or the illusions of our social selves, but rather concentrating on truth as it emerges beyond both objectivity and subjectivity.

Beyond illusion.

Once the journey into Zen begins the dualistic concepts that once imprisoned the mind, fall away. The ideas of birth and death, pain and joy, no longer have any relevance. For the Westerner this is almost a non-sensical world where there seems to be nothing at all. It is precisely this concept of nothingness that is the source, for the Zen Buddhist, of all reality. It is interesting to note that modern science tends to confirm these strange notions. For example, the "Big Bang Theory" of how the universe began is currently one of the contenders for the most legitimate explanation of the start of our Universe. But this theory proposes a moment before the Big Bang where, theoretically, there was nothing. One of the greatest problems in trying to understand Zen from a Western perspective is that Zen is an intensely personal experience. Enlightenment is achieved and recognized as a personal and individual knowledge that cannot be shared in an outward logical sense. In the West, religion is formal and concentrated in the institution of churches. There is a procedure and knowledge in these institutions that must be followed in a public sense. While individual enlightenment is obviously part of institutionalized religion, it must occur within the framework of the Church and its formal arrangements. This is not the case in Zen, where there are no formal elements and the individual initiate and the master find the path to enlightenment without these restrictions and without any external validation process.

In order for us to come to grips with Zen, we often have to use metaphors and seemingly strange examples to help us to understand this attitude towards life. It is a mode of thought that is essentially non-dualistic. This means that it tends to initiate a mode of thinking that collapses distinctions between opposites. This is very difficult for the Western world that has held opposites, in language and in logic, as the central pillars of civilized thought. In order to understand Zen one must be prepared to question the very foundations of one's life and of the societal influences that affect one. The purpose of Zen is nothing less than total freedom from these dualities of life. In this way, it suggests, we are able to move into a state of mind and reality that is not troubled by anger or fear or by envy and ambition.

rapunzel

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Re: Legal Reasoning
« Reply #9 on: August 13, 2005, 07:33:02 PM »
Sounds passionless.  No thanks.