Law - Opus Publicum

February 24, 2016 Law

Something on Scalia

I have been torn for the last week on whether or not to post something on the late Supreme Court Justice Antonin Scalia. After all, there is already a flood of commentary out there (pro and con), including numerous Catholic journalists and bloggers weighing-in on the matter. Amidst all of the heartfelt praises and damn demonizations has come some soberminded analysis as well, such as Eric Posner’s eyebrow-raising (albeit incomplete) analysis of Scalia’s legal influence. That doesn’t start to measure Scalia’s far more potent political and jurisprudential influence, however. Several generations of lawyers, judges, and law professors have been influenced by both Scalia’s originalism when it comes to constitutional interpretation and textualism with regard to statutes. At the political level, American conservatives have long looked to Scalia as their champion on the Court, wryly picking apart the opinions of his fellow liberal justices while attempting to fashion a legal basis upon which to roll back “living constitutionalism,” if not now, then at some point in the (distant?) future. And even if Scalia’s influence peters out over the next generation, there can be little doubt that his writings from the bench — particularly his dissents — will be marveled over for centuries for their rhetorical genius.

For what it’s worth, I have never been very high on either Scalia or originalism. In my first foray into legal-academic writing (which I am not inclined to defend too strongly these days), I found myself siding with Harry Jaffa’s “Straussian” critique of originalism as a historicist jurisprudence unfit for a vibrant and virtuous democracy. Over time, however, I became less convinced of Jaffa’s account of how the Constitution should be interpreted and started to appreciate the consequentialist defenses of originalism as a means of limiting the courts’ capacity for running roughshod over classical federalism. Still, there is no denying that originalism, as a judicial philosophy, is riddled with difficulties, not the least of which being its abhorrence toward the natural-law tradition. Why that doesn’t appear to bother more (American) Catholics is something of a mystery, but I digress.

No one expects the upcoming political battle over Scalia’s replacement on the Court to be either pretty or edifying. Some are hoping the appointment can be delayed until next year when either Hillary Clinton or Donald Trump take the Oath of Office. Either way, it is doubtful that Scalia’s successor will carry either the gravitas or talent he did to the bench regardless of their ideological persuasion. Besides, the arrival of a single conservative justice to the Court will do next-to-nothing to undo the social and moral damage which has already been inflicted on the nation. Catholics, particularly conservative Catholics, need to learn that the Supreme Court will not save us, nor for that matter will the liberal democracy so many desperately cling to as the surest means of securing our freedom.

December 23, 2015 Eastern Catholicism, Eastern Orthodox Church, Law

Some Remarks on Trullo in the Catholic Church

In my earlier post, “Edwards Peters Contra the East,” I incorporated some critical remarks concerning Peters’s dismissal of the 692 A.D. Council in Trullo (otherwise known as the Quinisext Council or Penthekte Synod). It is commonplace for Latin Catholics dismissive of the Eastern practice of married clergy without the requirement of perpetual continence to claim, on the one hand, that Trullo introduced innovations into the (Eastern) Church and, on the other, has no standing in the Catholic Church. Indeed, it is not difficult to find popular and academic pieces written from a Latin perspective which dismiss Trullo tout court. This picture is not altogether accurate, as detailed in Fr. Frederick R. McManus’s article, “The Council in Trullo: A Roman Catholic Perspective,” 40 Greek Orthodox Theological Review 79 (1995). Without claiming to summarize all of the article’s contents, allow me to mention a few highlights:

Although the disciplinary canons promulgated at Trullo were immediately rejected by Pope Sergius I at the close of the seventh century, John VIII, in the ninth century (if not also his predecessor Pope Constantine in the eighth century), accepted those canons which did not contradict the usages and disciplines of the See of Rome. At the heart of Rome’s initial rejection of Trullo was its pretense of defining disciplines and practices for the universal Church, ones which would have contracted longstanding Latin usage (e.g., Lenten fast on Saturdays and mandatory celibacy for deacons and presbyters).
Numerous sources throughout the medieval period indicate that that Rome recognized that Trullo was binding law for the Greeks (i.e., Eastern Orthodox and Eastern Catholics who follow the Byzantine Rite) even though it had no binding status for Latin Catholics.
Critical editions of the canons of Trullo — in Latin and Greek — were published first under Blessed Pope Pius IX and, second, under Popes Pius XI and XII when sources were being assembled for what would eventually become the Code of Canons for the Eastern Churches.
Although the 1990 Code of Canons for the Eastern Churches leaves much to be desired in both substance and form, the manner of its promulgation is noteworthy. In his Apostolic constitution Sacri Canones, John Paul II explicitly recognizes the legitimacy of the Eastern canonical tradition, including Trullo.

These observations do not obviate the fact that Latin Catholics will likely continue to raise the false flag that Trullo’s canons concerning priestly celibacy are “an innovation” or that celibate priesthood is ipso facto superior to the married priesthood. Let me close with a reminder that that the crisis of Christianity in modern times — one which can be found in the East and the West — will not be remedied through petty polemics, triumphalism, insult, creative history, or chauvinism. The ancient Latin Catholic discipline of clerical celibacy — in my humble opinion — ought to be respected and retained, and no Easterner — Catholic, Orthodox, or Oriental — should cast aspersions upon it. Perhaps it would be good if, at some point in the future, Eastern Christians take time to reflect more deeply on the unique spiritual and practical benefits of clerical celibacy in the light of their own tradition. Eastern Christendom’s great monastic culture would never have been possible without the discipline of celibacy, nor, in the Catholic context, would the missionary work of the Redemptorists in Ukraine have been possible either. Catholics everywhere should give thanks to God for the gift of the priesthood and pray that more men take up this vocation, married or celibate.

December 13, 2015 Law

The Paris Agreement

The 2015 Paris Climate Conference (better known as COP21) is over and we have an agreement—sort of. Despite what you read in the press, the so-called “Paris Agreement” looks a lot less like a binding multilateral treaty and much more like an aspirational policy statement. The short and the long of it is that the Paris Agreement has no teeth, only a soft shaming mechanism intended to keep countries compliant with its loosey-goosey terms. Here’s how it works. Every signatory state is expected to put forth “nationally determined contributions” (NDC), that is, domestic policy steps intended to reduce emissions. These NDCs are then subject to monitoring and review, with countries expected to dial-up their NDCs every five years (though there is no requirement that they do so). Potential scofflaw states, so the thinking goes, will not wish to be “outed” under the Paris Agreement’s transparency requirements, but even if they are, so what? All countries defect from their international commitments when the costs of compliance outweigh the benefits. The Paris Agreement will not change this reality.

Some commentators have stated that the Paris Agreement should have come packaged with a stronger enforcement mechanism without bothering to think through how such a mechanism might work. Imposing multilateral sanctions on defectors would probably be next-to-impossible to coordinate. Bilateral enforcement is easier to pull off, so long as there is a real incentive in play. If China, for instance, defected from its NDCs, why would Canada bring an enforcement action against it? NDC defection arguably harms the whole planet, not just Canada, and Canada will not want to incur enforcement costs alone. Now compare this scenario to a routine trade dispute where China imposes illegal quotas on imports of Canadian maple syrup. In that case (which would likely be handled through the World Trade Organization), Canada has a concrete and unique economic interest in trying to force China to remove the quotas and if China doesn’t, Canada can take retaliatory measures. The Paris Agreement is not a trade treaty, and so it’s unrealistic to expect it to function like one.

Another gripe about the Paris Agreement is that it does not impose concrete emissions benchmarks on states but instead allows each country to come up with their own independent determinations that may fall far below what is needed in order to keep global temperatures at bay. Let’s assume the Paris Agreement did come up with these standards. Would any country—particularly ones with developing economies—have signed on? The odds are strong that any imposed standards would have been fairly low level and, again, without a strong enforcement mechanism in place, would the imposed standards have mattered at all? At least the NDC model allows states to make their own economic and environmental calculus in line with domestic interests which can be altered as the political winds shift. A country hesitant to make strong NDC commitments now may be singing a different tune in 10 years.

In the end the Paris Agreement isn’t worth getting too excited about. Conservative critics of the accord miss the point when they act as if international law is once again encroaching upon American sovereignty. The whole agreement is built around domestic policy considerations, not internationally imposed standards. The U.S. can be as “progressive” or “regressive” on emissions policy as it wants without offending the terms of the Paris Agreement. And even if the U.S. defected from its NDC commitments, it’s unlikely that anything would come of it except for some bad international press. And Americans should be quite accustomed to that by now.

November 5, 2015 Law

Metrojet Flight 9268 – A Preliminary (Legal) Remark

As most longtime readers are aware, I know a thing or two about international aviation law and have even ventured to comment on it from time to time (see, e.g., posts related to the Malaysia Airlines tragedy). News has now broken that Russian air carrier Metrojet Flight 9268 (7K9268), which crashed over Sinai last week, was likely brought down by a bomb planted by the so-called Islamic State (ISIS) or one of its affiliates. Nothing is 100% official yet, though United States and United Kingdom intelligence services are backing this conclusion. Russia and Egypt are not so sure.

It should come as no surprise that the apparent attack on 7K9268 is a crime under international law. The 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971 Montreal Convention) expressly prohibits any act which endangers, damages, or destroys an international carrier, though arguably earlier air-crimes treaties and customary international law proscribed such actions as well. One of he purposes of the 1971 Montreal Convention was to ensure that air criminals would be either prosecuted or extradited, no matter where in the world they are apprehended (the classic principle of aut dedere aut judicare). Despite the hype around the air-crimes treaties, none of them impose an unbreakable obligation on their respective state parties to prosecute or extradite. Any state can have recourse to its national laws governing extradition to block the obligation. So, for example, a country which has a law prohibiting extradition to any state which imposes torture or the death penalty can evade the obligation. As for prosecution, that is left up to national authorities; they can take a walk if they so desire.

What this means is that there is no guarantee under international law that the perpetrator(s) of the 7K9268 attack will be brought to justice even if apprehended. While there would no doubt be intense diplomatic pressure for any apprehending state to comply with the principle of aut dedere aut judicare, it’s uncertain that it will, particularly if the domestic political costs for doing so are high. The only reliable recourse Russia has is to use its own resources, including military force, to track down and kill or capture those responsible.

I will likely write more on this as further information comes to light.

October 13, 2015 Law

The Malaysia Airlines Tragedy and International Law – Post-Postscript

Today’s news that a Russian-built Buk missile launched from eastern Ukraine brought down Malaysia Airlines Flight 17 (MH17) has set off fresh calls to hold the perpetrators legally responsible. That is exponentially easier said than done, as I discussed last year on Opus Publicum in a series of off-the-cuff posts examining the international-law issues surrounding the tragedy. (For those unaware, I am the co-author of a critical treatise on international aviation law published by Cambridge University Press.)

At this point I see no compelling reason to substantially revise the preliminary conclusions I reached last year: Russia will skate; the Ukrainian rebels directly responsible will likely not be apprehended; and Malaysia Airlines itself will wind up footing the civil-liability bill. For those interested, I have linked the original posts below.

October 5, 2015 Law, Politics

Augustus Sol Invictus

For a variety of reasons I miss teaching, and not just because I think young and impressionable minds ought to be subjected to my every intellectual whim and fancy. (That’s what blogs are for.) I miss it because teaching provided me with both the chance to sharpen my thinking on the subjects I taught (primarily aviation and trade law) and to interact with a fairly diverse group of students who routinely brought a surprising amount of intellectual energy to the classroom. I know not every professor, former or current, can say that, even at the law school level. Having had the luxury of teaching niche international-law classes which, generally speaking, attracted students with a genuine enthusiasm for the material, I doubt that my five years as a faculty fellow at DePaul University College of Law were in any sense typical. Adding to the atypical dynamic of my time at DePaul were the personalities of certain students, perhaps none more fascinating and offsetting than that of Augustus Sol Invictus. Yes, you read his name right, and if you have been following the news, then you know he is not only running for Marco Rubio’s former U.S. Senate seat, but apparently sacrificed a goat and drank its blood, too.

It is not my intention to speak in any depth on the personality or academic performance of Augustus. The former is apparent enough from his various YouTube videos, interviews, and Internet scribblings; the latter is nobody’s business. What fascinates me is what his “political orientation”—a strange brew of libertarianism and neo-paganism—says about the failure of American political ideology, one which historically took the liberal ethos and attempted to fuse it with Christianity (or, at least, Christian religious symbolism). Based on a perusal of Augustus’s writings, housed at his law firm’s website, it seems he is attaining to libertarianism’s apotheosis, namely the freedom from all reasonable constraint without any horizon or vision. Of course, there exists a tension between Augustus’s libertarian politics and neo-paganism. For while the libertarian wants a life free of demands and full of entertainment—the very thing which nauseated Carl Schmitt enough to come out swinging against liberalism in his seminal work The Concept of the Political (a book Augustus has perhaps read)—the pagan’s (though perhaps not the neo-pagan?) existence has cosmological meaning, albeit of a fated variety. Augustus, the good libertarian, doesn’t want fate; he just wants Lebensraum for guns and narcotics.

This confusion of the spheres is not entirely Augustus’s fault. Having been subjected to a run-of-the-mill undergraduate experience coupled with a “legal education” (I use that expression lightly given the current orientation of most law schools), he’s no doubt been taught how to huff hard the paint-thinner of secular-liberal ideology while embracing his “individuality.” That stab at individualism seems to have decayed ironically into an unspectacular internalization of the worst aspirations of American culture. Many may be nauseated by some of Augustus’s extracurricular activities, to say nothing of his personal beliefs, but he is fighting—or grandstanding—to defend them. He’s doing the same for society’s intermundane desire for six figures, semi-automatic rifles, good coke, 1.3 kids, and a porn-packed iCloud as well. Who are we to judge? We deserve him representing us.

June 27, 2015 Law

Posted Under a Rainbow Banner

Preface: The title of this post, which was not the original title I had intended, comes from the fact that I can only post to WordPress today underneath a rainbow banner. It’s there, on the screen, staring at me. Perhaps it’s there to remind me that I should be celebrating, or admonish me for not doing so.

March 27, 2015 Law

Germanwings and International Law

For those interested, my take on the international liability issues surrounding the recent airline crash in France, “Germanwings Tragedy: Untangling the Legal Web,” is available at The National Interest. Here’s an excerpt:

The crash of Germanwings Flight 9525 in the French Alps on Tuesday opens another chapter in the macabre story of international aviation that began a year ago with the disappearance of Malaysian Airlines Flight 370 and seemed to reach its tragic peak in July with the downing of that same airliner’s Flight 17 over eastern Ukraine. The loss of AirAsia Flight 8501 in December was no less tragic, though it failed to capture sustained public attention. Breaking reports that Flight 9525 was brought down intentionally by the aircraft’s copilot, 28-year old German citizen Andreas Lubitz, has sparked an international outcry and a full criminal investigation by French officials. In the end, who will pay and why are questions that are already addressed under international law.