As mentioned in Robert Pascal, R.I.P., after law school I became friends with retired Professor Emeritus Robert Pascal, a famous law professor at LSU that I never met until after I graduated (likewise, I also became friends and correspondent with LSU Law professor Saúl Litvinoff after graduation). 1 We had a good deal of correspondence in the 1990s and even after, when I was an attorney in Houston and then Philadelphia, and would meet on occasion at his home in Baton Rouge when I would return home for visits. He passed away in 2018 at the age of 102.
Much of his correspondence with me was elegantly hand-written. It spanned from 1993 to 2011, and I have at least 75 pages worth. I may post it some day after reviewing it more closely, even though some of my youthful enthusiasm and desperation to find anyone intelligent to converse with is a bit embarrassing now (this was before the Internet starting making it easier to discourse with remote people in our Phyles). 2
But as I mention him in Herman, The Louisiana Civil Code: A European Legacy for the United States, I’ll post below some selected text from two of our interchanges in 1993–1994, concerning, in part, the “Tournament of Scholars” between Pascal and Batiza. As was clear in our first discussion, Pascal was a leftist and what he called a “catholic communist,” small-c catholic, he emphasized. But he was smart and courtly and decent and I really liked and admired him.
Kinsella (in Houston) to Pascal, March 31, 1993
Dear Professor Pascal,
I’d like to thank you for taking the time to speak with me about jurisprudence, philosophy and other matters last Friday when I was at LSU for the Mineral Law Institute. Philosophy, especially political/legal philosophy, is my passion, and it is such a stimulating (but rare) experience when I’m able to discuss the really interesting, deeper ideas with someone. As I promised you, enclosed is a copy of the article I just had published in the journal Reason Papers, published by the philosophy department of Auburn University, entitled “Estoppel: A New Justification for Individual Rights.” I am currently working on a much larger, expanded version of many of the ideas discussed in that article; hopefully it will be long enough and good enough to be published as a book. My working title is: Estoppel and Rights-Talk: Why and Which Rights Exist.
Pursuant to your urging, I have looked up Voegelin’s works, and plan to read his The Nature of Law and Other Writings.
Again, I enjoyed meeting and speaking with you, and hope I run into you again in the future. Best wishes for (the remainder of) 1993!
Yours,
Pascal to Kinsella, April 6, 1993 (typed)
Dear Mr. Kinsella:
Friday I received your overly kind and gracious letter of Wednesday last enclosing a copy of your Estoppel article published in Reason Papers last fall. I thank you sincerely for both.
I too like to meet and have exchanges with people interested in legal and political philosophy and I learned quickly that your concern is a serious one. I am not able, however, to share the views you expressed and implied in Estoppel, at least if they are as they seem to me to be.
Your repeated statement that one who uses aggressive force against another may not object to similar force being used against him because, in taking his action, he implicitly has approved of aggressive force, is in essence a denial of the aggrieved person’s obligation to act morally toward his attacker in spite of the fact that the latter has acted immorally toward him. In Christian terms, one must love everyone, including one’s enemies. In philosophical terms, all men form, ontologically, a community of mankind, and everyone in every instance must respect every other person as a member of that ontological community, even one who does not act as he should. Returning to Christian phraseology, one’s sin toward another does not justify the other’s sin against the first. Punishment that goes beyond action necessary to prevent the offender from harming others, or that is administered for reasons other than eliciting the reform of the offender, simply cannot be justified morally. In that event the initial aggressor indeed may object.
In all probability you posit a mankind of individuals ontologically unrelated to each other. If you do, then you must admit that moral obligations and moral rights cannot exist among them. Each, then, may treat every other as he wishes and none has a moral right to complain of the actions of others toward him. This is Hobbes’ state of war. Such persons might enter social contracts creating societies, these societies might enact laws prescribing and proscribing certain behavior, and individuals might enter into private contracts prescribing certain order among them. But none of these conventions— societies, laws, contracts—could have moral force and, lacking moral force, they would neither command respect nor be respected except to the extent, always insufficient, force might be effective. On the other hand, if ontologically persons do constitute a community of mankind, then each is obliged ontologically to respect and cooperate with every other for the good of all. This being true, the conventions of society, law, and contract acquire moral force as means of specifying an order appropriate for securing respect and cooperation for the common good.
You will understand from the above why I cannot in conscience ally myself with the Republican Party, much less the Liberation Party, or any form of individualism, even if such thought is rampant today. I cannot think of my advantage only if I would be a moral man.
You would be well advised to rethink your premises. Philosophy is not logic applied to assumed premises. This is ideology, not philosophy. Philosophy is the perception of reality, not its distortion by seeking to put reality into one’s mold. You need to perceive the nature of the human being.
Yours sincerely,
After much intervening correspondence,
Pascal to Kinsella, Feb. 8, 1994 (typed)
Dear Mr. Kinsella:
Your letter and “Dictionary” arrived Friday, February 4, 1994 and I began reading it immediately. You are to be congratulated on your desire to be of service to your Anglo-American legal colleagues and on your enormous energy.
I have read carefully only the first seven pages and I have only glanced at the footnotes. At the moment I am not in a position to devote more time to your project. In my opinion, however, you should delay publication of the “Dictionary” until you have improved its accuracy in both content and language.
The two most serious errors I have noted so far are attributable to your giving too much credence to Shael Herman’s recent booklet. Herman would have everyone believe our Civil Code is French in spirit and substance as well as organization and style. I know its substance is basically Spanish and its spirit anything but positivistic, though recent revisions have moved that way. The organization and style, of course, are French. But one may not say that the Louisiana Civil Code was “derived” from the French. The second error, also derived from Herman, is to define “Civil Law” in terms of codification. Roman Law was the original Civil Law and it was not codified in any sense until Justinian’s day. French, Spanish, Italian, and Dutch private law were Civil Law systems before their codifications. The South African and Scottish private laws are Civil Laws. It is the Roman tradition that is Civil Law. (Note I have capitalized Civil Law when speaking of law of the Roman Tradition. This is common if not universal practice).
I am enclosing the book review and book note I wrote on Herman’s booklet and sent to various law reviews and newspapers. Please read them and correct your “Dictionary”.
Being a professor, I could not. refrain from improving some of your language in the first seven pages.
Even in those seven pages I found definitions that were either incomplete or inaccurate. You must be more careful or your energy and ambition will work to your detriment.
Finally, I don’t think you should use Anglo-American sources to define Louisiana terms. If you are citing Black’s Dictionary for comparison only, then let your references be clear on that point.
I return herewith the first seven pages of your “Dictionary”. I have made copies of them so that my copy of the draft will be complete.
Kinsella to Pascal, June 21, 1994 (from Philadelphia, to where I had recently moved, hence my delay in replying):
I today received your La. L. Rev. book review of Shael Herman’s recent book, and your letter, for which I thank you. I read your review in draft form, of course, but have just re-read most of it in its published form. I just put in a request with my firm’s library to have copied from a local law library your and Batiza’s and related articles in the Tulane Law Review so I can read them myself. I must say that I am leaning in your direction just from the little I know of it so far. I am not sure that it matters very much in terms of interpretation, especially today after so many revisions; and I am not sure that I care too much anyway given my personal antipathy to legislation as such (i.e., that I prefer decentralized lawmaking a la common law). I do not know if I am convinced by your thinking that people favor the French interpretation (even if they know better) simply in order to help foster a more individualist society.
First, I don’t know that there is much practical difference in interpretation of the current code, whether or not French or Spanish law is considered to be the source. If so, how would it “help” the individualist cause to support a distinction without a difference. Second, even if I personally believed that urging the French interpretation would lead to a more individualist interpretation of the civil code, and granted that I do prefer individualism and laissez faire, I still would not be willing to falsely say that the French code was the source if I really believed that Spanish law was the source. Rather, I would say that Spanish law was unfortunately the source, but that French law would be better, etc.
I guess my point is that I don’t see much of a motive for people to misrepresent the source of the civil code. Therefore, if Spanish law is really the source, yet most thinkers say otherwise, I think they honestly believe it but are merely mistaken. Why they are mistaken, I do not know. Perhaps your article will help me figure that out. I look forward to reading it when my library copies it for me.
* * *
I enjoyed our talk the other night and hope I didn’t exasperate you too badly. I didn’t call to argue, but I just like to discuss things, especially with a thinker like you, and sometimes I carry it too far. Anyway, I just read Voegelin’s The Nature of the Law. I must confess that, either it’s not that analytically or systematically written, or I just didn’t get it all. Lots of it I did, but it seemed too vague and meandering for me. I still do not understand the significance of “ontological” as he (and you) use it. He says (I don’t have the book with me so can’t quote) that for something to have a nature, it must ontologically exist, i.e. it must exist as a real entity in a definite realm of being, or something like that. I don’t see how one can reduce the basic fact of reality like this seems to try to do. To my mind, anything that exists has to have a nature, because nothing can exist without identity, a basic part of which is nature. (Which, to my mind, is yet another reason why supernatural things like “God” cannot exist-the way the term God is used, the referent simply has no nature. How often is it said that He can’t be understood, has no definite nature, you can’t “limit” him even by defining his essential characteristics, etc. I take this definition as it is used—He has no nature; but then to exist, something must have a nature. But this is another discussion.) Voegelin asks what the nature of law is, and I think he has very many interesting insights. But it seems too mystical to me in some areas; or perhaps the jargon is just over my head because of my ignorance of certain areas. But I do not think so. Perhaps part of the problem was that this is in somewhat rough form since Voegelin never got to clean it up before publication.
I did find his notions of there being a tension between the Order we perceive and the order we experience, and how we feel a tug on us to become more in align with it. But to me that’s not enough. It’s just not rigorous enough; or, at least, I don’t think so yet. We’ll see after I read more of him. I do have a sort of natural or intuitive sense as to simple matters of right and wrong; it repulses me to think of murder. But I’m afraid that telling someone to just look inside themselves is not a justification. I never have believed in revelation or a sixth sense. I believe only in normal, sensory evidence; to me the “moral sense” (the title of a recent book by James Q. Wilson) is an appeal to another sort of mystical sense, which I am afraid does not really exist. At least the onus of proof is on the urger. I think it seems intuitive to some for other reasons. I know you disagree with these, but I tell you that I am a complete atheist, yet I believe it important to be moral, and I think these things have meaning whether or not there is a God. As I’ve explained to you before, even if there is a God I don’t see what relevance that has to morality, because I am not, in any sense, a positivist. Yet one would have to be a positivist to believe morals could ever be legislated, even by a super-powerful being like God. As I’ve mentioned, if God exists, and if he is Good, that is indeed fortunate. But it is possible to contemplate an evil super-being running the universe; which implies to me that morals are apriori or come before any notion of a supreme being attempting to decree morals.
So I do not see how you can say that, unless one is a mystic, there are no morals. (Even if this were true, I would gladly admit: “No, there’s no God; and this does imply that there are no morals. Thus, unfortunately, in this world there is no right and wrong.” I would not want to be dishonest. The world is at it is, and even if it’s intolerable that’s no reason to delude oneself.) But I do not think this true. I think morals must be independent of the whims and decrees and powers of any Beings. So, therefore, far from your saying that my being atheist precludes my being moral (or, the universe being Godless precluding the possibility of good and bad), I disagree. It seems to me that, if you believe that there are no morals without a God, then you must accept the fact that there are simply no moral truths, since I think it can be shown that there is no God. But additionally, if you say that morals depend on the existence of a supernatural realm, I just don’t see your evidence or reasoning for this. It seems to me that your strongest reason is the sort of vague pointing to the emotional and intuitive feelings people have of wrongness, and claiming that this somehow shows that there’s some connection to some other realm, or Order or Ought or God. But this seems mere assertion to me, a hypothesis of potential explanation for emotions that does not seem testable nor to satisfy Occam’s Razor.
But I am not saying where I do believe morals do come from, because I do believe this in spite of the Godless universe. It has to do with the reasons enunciated in my “Estoppel”
[missing page]
“rational” than the common law-just like communists and socialists are incorrect when they think central planning is more “rational” than the “chaos” and “anarchy” in the market.
* * *
I’ll have to get back to patent-law for now. I must earn the food for my stomach that sustains my mind. Take care, and I’ll speak with you soon. Until then, I remain,
Affectionately yours,
- Saúl Litvinoff, R.I.P. [↩]
- Phyles; se my note here: Re phyles, I am reminded of the idea behind “flag theory” discussed in Emile Phaneuf III and Rahim Taghizadegan, “Jurisdiction Shopping: The Forgotten Logic Behind Flag Theory,” The Daily Economy (February 2, 2026): “Harry Schultz, who coined the term “flag theory,” framed his thinking in an explicitly Austrian register, crediting Friedrich Hayek as his main economic inspiration and frequently citing Ludwig von Mises and Mises’s American student Hans Sennholz. The same pattern appears among other popularizers of international diversification such as Jerome Tuccille and WG Hill. In other words, the “flags” idea did not arise in a vacuum. It grew naturally from a worldview that treats institutions as constraints to compare, compete, and, when necessary, exit.” [↩]
