June marks the one year anniversary of Ius & Iustitium. We started this blog because we recognized a growing dissatisfaction with the mainstream conservative legal movement in the United States, and we perceived a hunger for a better alternative. The blog went live two days after Bostock and two weeks before June Medical, two Supreme Court decisions that have rightfully shaken the faith in the conservative legal movement’s ability to deliver on its promises. But the Ius & Iustitium project goes deeper than that. What we propose is a fundamental re-thinking of jurisprudence that rejects the positivism and liberalism embedded in mainstream conservative legal thought and embraces the classical legal tradition.
Continue reading “Ius & Iustitium, One Year On”Category: Uncategorized
Justinian Goes Fox Hunting
Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:
Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.
This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, ‘sub jove frigido,’ or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)
Trademarks and Free Speech
Every now and then, a court case on a mundane topic grabs the public’s attention simply because of its colorful facts. Most people do not care about the nuances of federal registration of trademarks, for example, but everyone perks up when they hear the Supreme Court is considering the registrability of the trademark FUCT, as happened in 2019 in Iancu v. Brunetti.
I want to revisit Brunetti and its predecessor Matal v. Tam here for two reasons. First, they provide an entryway for discussing the relationship between trademarks and consumer protection, in particular how courts view the consumer protection function of trademarks as secondary to commercial interests. Second, despite its colorful nature Brunetti was a mundane case, which can be more illuminating on the thinking of justices than “blockbuster” cases, particularly when it comes to matters of statutory and constitutional interpretation.
Continue reading “Trademarks and Free Speech”Scots Law, Dyarchy, and Judicial Restraint
Last month, the Scottish Court of Session ruled that the Scottish government’s decision to ban public worship in light of the coronavirus pandemic was both unconstitutional and a disproportionate interference with the Article 9 right to freedom of religion or belief, as protected by the European Convention of Human Rights (ECHR).
Compared to other jurisdictions, the Scottish Government’s recent measures to prevent the spread of COVID-19 have been especially strict. With the arrival of a new and more deadly variant of COVID-19 in late 2020, the Scottish Ministers (the executive) declared a second national lockdown on 5 January 2021. This involved the closure of all hospitality venues and the prohibition of all indoor and outdoor gatherings, allowing citizens to only leave the house for essential purposes such as shopping, exercise, and meeting up with one other person outdoors. Public worship, however, was caught in the crossfire. While in England public worship could continue during their national lockdown, the Scottish Government decided to close Churches on 8th January 2020. The Bishops’ Conference of Scotland condemned the Scottish Government’s decision to close to Churches.
Not very long after these regulations were imposed, two groups (petitioners) sought to challenge the ban of public worship in the courts. The petitioner was a group of protestant clergymen from various confessions and the additional petitioner was a Catholic priest from the Archdiocese of Glasgow, Canon Thomas White. Both parties were invited to present their submissions before the Outer House of the Court of Session on the 11th and 12th March. The decision was handed down on the 24th March, where Lord Braid ruled in favour of the petitioners. Continue reading “Scots Law, Dyarchy, and Judicial Restraint”
Originalism and the tyranny of values
The dispute over originalism is fundamentally an American dispute. The question as it is usually framed deals with what the authors and the people who ratified the United States Constitution understood a constitutional provision to mean. This debate usually takes place at the level of text and history. However, in one of the foundational documents of originalism, Robert Bork’s 1971 Indiana Law Journal essay, the concerns motivating originalism are set forth with admirable clarity. Bork saw the Warren Court as imposing its values in an unmediated, unprincipled way, which for him was a crisis for the Court’s legitimacy and authority. His formulation of originalism, while idiosyncratic, was ultimately an attempt to mediate and regulate the enforcement of values by the courts. In this project, Bork finds an unusual antecedent: Carl Schmitt.
Continue reading “Originalism and the tyranny of values”A Crucial Experiment
Life and law being messy, there is rarely a crucial experiment available to test competing views. But in the recent controversy over the conservative legal movement’s strategy with respect to abortion, we have a test that is as good as we are likely to get: the pending certiorari petition in Dobbs v. Jackson Women’s Health Organization, in which the lower courts struck down Mississippi’s ban on abortions after 15 weeks (with various exceptions). The cert petition squarely asks, in its first question presented, “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” It is a head-on challenge to the Roe v. Wade framework.
A voice of the originalist establishment has said that “it is unlikely that there will ever be a more opportune vehicle” to reconsider Roe, and this is exactly right; Dobbs presents a choice opportunity. Four votes are needed to grant cert. There are now six GOP-appointed Justices on the Court, including three Trump appointees (Justices Gorsuch, Kavanaugh and Barrett, in order of appointment) who were openly screened by the Federalist Society. If four votes cannot be found among these six even to consider a square challenge to Roe, it seems well past time to take stock of the conservative legal movement’s approach to abortion, and well past time for some accountability — ideally self-imposed accountability — on the part of the movement’s leaders. Of course, even a grant, although welcome, will hardly guarantee success on the merits. But if a supermajority of GOP-appointed Justices are unwilling even to consider the issue, something has gone very wrong.
“What is the Common Good?”
Here’s my talk on “What is the Common Good?” for the new Oxford Law/Blackfriars project on Law and the Common Good. It’s not a talk on political theory or theology, but on constitutional and administrative law. Both Anglo-American and European law, past and present, are full of provisions referring to the “common good,” “general welfare,” “public interest,” “public order,” and so forth; these have to be construed some way or other. Thanks to my interlocutors, Profs. Ryan Meade and Chris Conway.
The Moral Rule Against Retroactivity
Retroactive laws present vexing problems for lawyers. On one hand, they are awfully convenient, especially when a problem with the law is discovered. On the other hand, they are a favorite tool of tyrannies like Nazi Germany. They are especially disfavored in the penal context, especially in the Anglo-American tradition of the seventeenth and eighteenth centuries. However, the problem remains present in the jurisprudence of the twentieth century, notably in the work of Lon Fuller. Yet the condemnation of retroactive laws has deep roots in the classical legal tradition, going back to Justinian and Gregory IX’s Liber Extra. Indeed, one can find condemnations of the concept all the way back to Ancient Rome. Given that retroactive laws—and putatively retroactive administrative regulations—remain troublesome for lawyers and judges, the tradition provides an under-utilized source for considering the problem.
Continue reading “The Moral Rule Against Retroactivity”Reviving the Classical Legal Tradition in an Age of Legal Barbarism
Historians debate whether and how much the barbarian invasions of the fifth century marked a rupture with the Roman past in the former territories of the Western Roman Empire in Europe. Given the endurance of the Catholic religion and the Latin language (at least outside of Britannia and Germania), a strong argument can be made for continuity. Perhaps the clearest sign of rupture, however, was the eclipse of Roman law.
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Monstrous Government
In his mini-treatise On the Government of a City, the great Italian lawyer-commentator Bartolus (Bartolo de Sasseferrato) begins with a fairly conventional typology of the six regime-types of classical constitutional theory. The city may be ruled by the many, the people; by the few, the optimates; or by one man. Any of these forms of rule may or may not be tyrannical. We thus have six categories, named respectively polity or regimen ad populum (good rule by the many) and democracy (bad or, in Bartolus’ preferred term, “perverse” rule by the many); aristocracy (good rule by the few) and oligarchy (bad); kingship (good rule by one) and tyranny (bad).
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