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?”)

Continue reading “Justinian Goes Fox Hunting” →

“Law & Leviathan” in the age of coronavirus

admin

Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández G. is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, and a fellow of the Harvard Kennedy School.

I

Last November, the Centro de Estudios Políticos y Constitucionales in Madrid held a seminar based on Cass Sunstein’s and Adrian Vermeule’s recent and inspiring book: Law & Leviathan. The purpose was to discuss the book’s main ideas from the European, Spanish and Latin American perspectives. Professor Luis Arroyo gave the European vision, while Professor Silvia Díez explained the Spanish perspective. I completed the comparative study from the point of view of Latin American administrative law, which I will focus on in this brief essay. 

It was a rare event. Unfortunately, the fact is that the study of comparative administrative law is still a nascent field. 

Law & Leviathan opens new doors for this comparative approach. The book’s main idea is that administrative law should be studied from the perspective of Fuller’s inner morality of law through general principles that both constrain administrative action and facilitate it in order to promote the common good. Rather than dismantle the modern administrative state, the book proposes to reinforce its framework through the principles of legal morality, such as the principles that “agencies must follow their own rules; retroactive rulemaking is disfavored and must be limited to prevent abuse; and official agency declarations of the law and policy must be congruent with the rule that agencies actually apply” (Law & Leviathan, p. 9). 

Continue reading ““Law & Leviathan” in the age of coronavirus” →

St. Thomas Aquinas on Angels, Demons, and Evil ‘Law’

admin

Ius et Iustitium is happy to present this guest post by Anna Lukina. Anna Lukina is a graduate of the University of Oxford (BA, BCL) and Harvard Law School (LLM). She is a lecturer at Free University Moscow and an incoming PhD student at the University of Cambridge. Her doctoral project will be entitled “Towards a Jurisprudence of Evil Law.” This is the first in a brief series on law and angelology. Pat Smith’s reply can be found here. Pater Edmund Waldstein is writing a response as well, which will be forthcoming soon.

Law, with its ability to change one’s moral obligations and authorize coercion, has the capacity not only to deter, but also to produce evil. This ‘immorality that law makes possible’ (to quote Leslie Green[1]) remains a subject of great interest. In this piece, I aim to explore how this problem was unpacked in the work of St Thomas Aquinas and what insights can it bring to the contemporary jurisprudence. In short, St Aquinas’s teaching on demons shows how the legal form can aid evil regimes despite this use of law taking away from its nature.

This adds much needed nuance to the following exchange between Nigel Simmonds and Matthew Kramer, exemplary of modern legal thought. Simmonds has argued that, since governing by law means that the state needs to restrict its actions, an evil regime would prefer to govern extralegally[2]. As a result, the rule of law[3], he claimed, would be better construed as being, as expressed in Lon Fuller’s formulation, ‘the inner morality of law[4]’, or having a necessary normative quality. Kramer challenges his view, retorting that notwithstanding the limitations it places on the state, governing by law is nevertheless serviceable to evil regimes as it guarantees better compliance of the citizenry with the state’s directives[5]. This renders law akin to, as per Joseph Raz’s analogy, a knife[6], an instrument that can be used for good and evil. Continue reading “St. Thomas Aquinas on Angels, Demons, and Evil ‘Law’” →

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).

Continue reading “The risks of angelology for lawyers” →

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.

Continue reading “Trademarks and Free Speech” →

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” →

Dante’s Lawyers from Hell

admin

Ius & Iustitium is happy to present this guest post by Aníbal Sabater. Aníbal Sabater is a lawyer in New York City specialized in international arbitration. This essay is the first of a planned three pieces on lawyers in the Divina Commedia. Essays on lawyers in Purgatorio and Paradiso are expected to follow in a few weeks. If a discussion of Dante is always timely, it is more so this year, which marks the 700th anniversary of Dante’s death and has seen the publication of Pope Francis’s Candor Lucis Aeterna (March 25, 2021), a lucid analysis of Dante and his work.

That legal talent does not guarantee a place in Dante’s Paradiso is well attested by Judge Ugolino Visconti, whom friends called “Nino.” [1] Around 1290, Judge Nino arrested and sentenced to death a certain Fratre Gomita, chancellor of Gallura in Sicily and brazen barrator according to local contemporary chroniclers, who described him as “molto malizioso e grande trebalderi per danari” (“very wicked and a great purloiner for money”).[2] Dante was probably aligned with popular sentiment when he praised Judge Nino for his decency,[3] while counting Gomita among the fraudsters in the eighth circle of the Inferno.[4] But a rigorous Thomist for the most part, Dante knew that, upon death, the Judge was not quite ready for Paradiso. Lawyers are called to pursue truth, justice, and the common good, with singular unity of life. A person lacking in personal virtue can make a good blacksmith, but not a good lawyer, because ultimately, the lawyer offers, or should offer, himself for others in ways that the blacksmith cannot. Eventually, we find Judge Nino in Purgatorio, because despite his success as Sicily’s anti-corruption czar, he had been so absorbed by local politics that he neglected both his spiritual life and the care of his wife. In a poignant scene in Purgatorio’s Eighth Canto, Judge Nino longs for the prayers of his infant daughter Giovanna, the only person on earth who still seems to miss him, and goes on a proud diatribe against his widow, who was too quick to remarry. [5] 

Continue reading “Dante’s Lawyers from Hell” →

John Finnis, Ed Whelan, and Indian Tribes

admin

Ius et Iustitium is happy to present this guest post by JS.

It is easy to imagine a perplexed reader trying to figure out what John Finnis and Ed Whelan have to do with Indian tribes, but a recent Note, Tribes Can Prohibit Abortions In Indian Country, in the Harvard Law Review makes the connection clear.  The Note advances the perhaps surprising thesis that the 574 federally recognized tribes in the United States can prohibit abortions from being obtained or performed by Indians on their reservations. The argument has four key ideas. 

First—and this might surprise those unfamiliar with federal Indian law—the Constitution does not apply to Indian tribal governments. The Note traces this rule to its roots in Worcester v. Georgia and the first clear articulation of it in Talton v. Mayes, where the Court concluded that the laws of the Cherokee Nation are “not operated upon by the Fifth Amendment.” In recent years, the Court has reaffirmed the rule that the Constitution generally and the Bill of Rights specifically does not operate upon Indian tribal governments, in such cases as Oliphant v. Suquamish Indian Tribe and the 2016 United States v. Bryant decision.

Continue reading “John Finnis, Ed Whelan, and Indian Tribes” →

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.

Continue reading “Yes, Courts Can Enforce Fourteenth Amendment Personhood For The Unborn” →

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. 

Continue reading “Originalism and the tyranny of values” →