On the Tyranny of Rights

Jamie McGowan

This is the final piece of the symposium Ius & Iustitium is presenting on the classical legal tradition and the common good. It is a reply to Michael Foran’s piece “Rights and the Common Good.” A general introduction to the symposium can be found here. Jamie McGowan is a PhD Candidate, University of Glasgow. 

In the Rhetorica, Aristotle argued that judges should “be allowed to decide as few thing as possible”. In short, he was worried about how the subjectivity of individual cases could detrimentally affect the common good. St Albert and St Thomas shared this view with Aristotle, elaborating further that it is better to allow political institutions to create law for the entire community, and leave judges to deal with any omissions or make exemptions from the law as justice requires. This classical preference for political institutions seems to stem from three core concerns about the resources available to a court.

  1. The court room is a forum where specific technical matters are debated. St Albert particularly decries how lawyers use (or misuse) law for litigatory victory, rather than using it to establish moral rectitude or pursue the truth.[2] This tendency is not unheard of today; the intentional manipulation of the law for specific interests is commonplace in practices such as public interest litigation;
  2. Courts are not typically endowed with foresight. St Thomas expressed a particular concern about how judges deal with cases as they arise, whereas lawmakers (mostly) have an abundance of time to deliberate and draft laws which are holistic and cater well for the entire community.
  3. Courts are not endowed with political prudence. St Albert makes a very clear connection between good law and the lawmaker’s knowledge of the community to which that law is directed, “in order to lead them to the good.” This is apparent in St Thomas’ discussion of how law must always be made with peace in mind: while laws which are too lax will not encourage virtue at all, laws which are too strict will also not encourage virtue if they incite civil unrest. Knowledge of such a delicate equilibrium is not generally a resource available to judges, but oft available to politicians.

Courts, thus, are not the ideal forum for general norms (i.e. law) to be determined; rather, courts deal with exceptions and abnormalities to address the needs of right and justice in individual cases, through appeal to both the positive law and the natural law (and, by extension, the common good).

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St. Benedict’s Rule and the penal law

Pat Smith

Dom Cuthbert Butler’s Benedictine Monachism begins by quoting Viollet-le-Duc’s statement that, “[r]egarded merely from the philosophical point of view, the Rule of St. Benedict is perhaps the greatest historical fact of the Middle Ages.” Pius XII, in his Fulgens radiatur, praises Benedict’s monastic law as an “outstanding monument of Roman and Christian prudence.” While St. Benedict’s Rule is first and foremost a document governing common monastic life, it is, as Viollet-le-Duc, Butler, and Pius XII recognize, an example of the classical tradition and applicable more broadly. One particular area where the Rule offers great insight is penal law. St. Benedict offers a vision of the penal law that has significant value even today.

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Charity and the penal law

Pat Smith

Pope Francis’s Apostolic Constitution Pascite gregem Dei drew considerable attention for the pontiff’s wide-ranging reforms of Book VI of the 1983 Code of Canon Law, containing the Church’s penal law. Much of the attention focused on the Pope’s revision to the laws dealing with sexual abuse. Francis has spent much of his pontificate addressing the filth of sexual abuse in the Church and the Church’s response. The new Book VI represents another major step forward in addressing in a serious way the abuse crisis and its consequences. However, there was some attention devoted to the Pope’s general comments on a jurisprudence of penal law within the Church. These comments have a much wider applicability. Indeed, Pope Francis’s insightful connection between charity and the penal law goes to the very heart of human law in St. Thomas Aquinas’s concept.

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Ius & Iustitium, One Year On

JAF

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.  

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Justinian Goes Fox Hunting

Yves Casertano

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?”)

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The risks of angelology for lawyers

Pat Smith

Anna Lukina proposes an interesting thought experiment for considering the law that exists in wicked states, like Nazi Germany, the Soviet Union, or the so-called Islamic State. She proposes looking at the fallen angels, at demons. She argues that demons have a need among themselves for hierarchy and indeed for rules. The world of demons, she notes, is not a world of chaos; there is still order among the demons. By analogy, a human community ordered toward evil ends has the same need. While she acknowledges that, by Aquinas’s definition of law, the law of an evil regime will be defective, she suggests that its law may well be effective as a coordination mechanism. 

However, Lukina’s angelology has some problems. These problems, I think, lead ultimately to problems for Lukina’s argument. The crux of the matter is this: Lukina assumes—or seems to assume—that the bad angels establish some order among themselves in response to a need for order. She suggests that they band together and coordinate through rules, even if the ends they pursue are vicious. (An understatement.) However, Lukina does not account sufficiently for the created nature of angels versus men. “Quia parvus error in principio magnus est in fine”—“A small mistake in the beginning is a big one in the end” (QD de Ente et Essentia, Prooemium).

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Trademarks and Free Speech

Jacob Neu

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.

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Scots Law, Dyarchy, and Judicial Restraint

Jamie McGowan

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” →

Yes, Courts Can Enforce Fourteenth Amendment Personhood For The Unborn

Yves Casertano

One of the objections to extending Fourteenth Amendment protections to unborn children is that it would be impossible for the Supreme Court and lower courts to meaningfully enforce such a ruling. Ed Whelan raised this objection in his initial response to John Finnis. Josh Craddock, Finnis, and Whelan published further replies and sur-replies. Most recently, Ramesh Ponnuru expressed his agreement with Finnis’s view on the Fourteenth Amendment, but argued that only Congress can enforce these protections. Finnis and Craddock convincingly explain, in broad strokes, how a Supreme Court ruling would translate into concrete legal protections for the unborn. While I largely agree with Craddock and Finnis, I would like to offer a few supplemental observations.

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Originalism and the tyranny of values

Pat Smith

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. 

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