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Ius et Iustitium is happy to present this guest post by Gregory B.L. Chilson. Mr. Chilson is an LL.M. candidate at the University of Vienna.

In his examination of American patent law for Ius & Iustitium earlier this year, Jake Neu’s piece explored Adrian Vermeule’s view that the common good tradition enjoys a pedigree worthy of greater examination. Neu offered a compelling demonstration of the practical role which the classical legal tradition can and should play in contemporary jurisprudence, drawing on his chosen topic of patent law. Can the same be said of the company and corporate law as well?

Just as the patent found its role in Venetian courts, the parentage for our companies can be traced back to late medieval Italy. Although the modern company is often attributed to English and Dutch Mercantilism (and French liberalism)^[1], jurists ought not overlook the extent to which English guilds were in part influenced by Italian confraternities and para-ecclesiastical bodies.^[2] The term ‘guild’ itself, is well noted for its dual meaning as it is a derivative of the Germanic word ‘geld’ which first and foremost as a verb means ‘to pay’ or ‘contribute’, but also as a noun for ‘sacrifice’ or ‘worship’.^[3]

Both meanings point to a common theme: pulling resources together in order to achieve common goals, both religious and secular in character, which were desired by stakeholders and at the same time benefitted the society and the state.

Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the second part of a two-part series, part I can be found here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.

Defining Fair Use

As introduced in my first post on copyright law, fair use is a peculiarly American legal doctrine that permits the public to copy copyrighted works without payment to the original author in various circumstances. Other Anglo-American jurisdictions have some notion of fair use or fair dealing, but these are typically more limited in scope, nothing like the fact-based flexible inquiry found in the United States. But as I also previewed in the initial post, the flexibility of the inquiry and its increasing scope has also been the source of two concerns. First, there are jurisprudential concerns about fair use exceptions swallowing the grant of copyright. Second, pragmatically, the application of fair use in any given case has become highly unpredictable. In this post, I argue that by introducing to the fair use analysis certain principles from the natural law and common good jurisprudence underlying the Continental conception of author’s right, we may retain the flexibility so advantageous to the American conception of fair use while also providing predictable contours and limiting principles to allay the twin concerns that fair use raises.

Continue reading “Copyright, Author’s Right, and the Common Good: Fair Use (Part II)” →

Ius et Iustitium is happy to present this guest post by Jake Neu. Mr. Neu is a partner at Bradley Arant Boult Cummings LLP. This is the first part of a two-part series. Part II is available here. Mr. Neu argues in favor of the civil law (or droit d’auteur) understanding of copyright. A reply to this series, countering that the droit d’auteur (and copyright generally) is ill-founded on natural law and Thomistic grounds, will follow.

In my previous post on “The Common Good in Patent Law,” I stated that modern patent law had a single source, the Venetian Patent Statute of 1474. In that statute one finds all the principal characteristics of modern patent law present in various stages of maturity, and this conception eventually spread to all European countries and around the world. Therefore, patent law enjoys a very stable and common global understanding of its nature and purpose, even if the contours and scope of the law remain hotly debated.

The same cannot be said for copyright law, which has long struggled to balance two competing, ancient conceptions of what copyright law should be and do. Given the importance that copyright plays in technology, software, data management, and mass entertainment today, these differences have profound implications for how we organize rights and obligations under the law. Before considering how copyright may operate in support of the common good, we must first discuss these competing conceptions.

Continue reading “Copyright, Author’s Right, and the Common Good (Part I)” →

Until now, the submission process for Ius & Iustitium has involved contacting an editor, either here or at The Josias, or a previous contributor, with a pitch or a draft essay. We have received (and published) some really excellent submissions. Candidly, however, the process has been a little inefficient—both for authors and editors. To streamline things, Ius & Iustitium has implemented a contact form, the link to which may be found here, as well as in the upper right hand of the homepage. We welcome intelligent contributions from within the classical legal tradition. Editors will review all submissions through the contact form and respond as promptly as possible. We also welcome responses to published pieces, notes of appreciation, critiques, queries, and whatever else our readers might submit.

A word about style: Ius & Iustitium does not have a complicated house style. Acknowledging the range of sources our contributors draw upon, it would be impossible to cover each and every question. Additionally, there is no requirement that submissions be heavily footnoted or contain links to every source. However, authors should try to conform to a few general guidelines:

• A brief note requires less support than a lengthy essay.
• Ius & Iustitium has an audience of readers interested in questions of jurisprudence and politics—in many cases these readers will want to read your sources.
• Ius & Iustitium does not publish briefs, motions, or law review articles: One need not write in a highly formal style, but excessive informality hampers your argument.
• Personal attacks may be effective on Twitter, but Ius & Iustitium is not Twitter.
• Selections in Latin (or any other foreign language) should also be translated.
• Very lengthy contributions may be broken up into a series of posts: If you submit a lengthy contribution, it is helpful to indicate how best it might be divided.

The Editors

Ius et Iustitium is happy to present this post by Patrick Button. Mr. Button is an attorney in Orlando, Florida.

Usually when the natural law is brought up in mainstream discourse on law and morality, when it is brought up at all, it is in one of two contexts. First, the legitimacy of disobeying unjust laws, and second, debates over so-called morals legislation aimed against carnal vices. These are certainly areas where the relationship between natural law and positive law is of great importance, but the scope of that relationship is much broader. In truth, all just legislation is derived from the natural law, from the prohibition of murder to parking regulations. One might reasonably object that parking regulations are relatively arbitrary, and do not seem comparable to laws against specific and grave evils like murder. In fact there is a categorical distinction to be made, which St. Thomas explains in Question 95 of Part I-II of the Summa Theologiae.