In this second, and shorter, entry on the Malaysia Airlines Flight 17 (MH17) tragedy and international law I want to focus on a common misconception which I tried to dispel to some news outlets yesterday, namely that the International Civil Aviation Organization (ICAO)—or any other global body—has the authority to shut down a country’s airspace. In a forthcoming post I will look to the complicated matter of assigning civil liability for the downing of MH17.
This entry will be a little offbeat from I normally post here. As some of you know, I am a trained lawyer with a background in international aviation law and policy. In fact, I recently co-authored a treatise on the topic for Cambridge University Press. It should probably come as no surprise then that the recent tragedy in eastern Ukraine involving Malaysia Airlines Flight 17 (MH17) has set my mind to pondering some of the international legal issues involved. Unfortunately, when I tried to explain some of those issues to several media outlets yesterday, they weren’t interested. Terrorism, weaponry, and gore were the primary topics of our conversations, and I couldn’t really speak to any of them. Thankfully my appearances on the local NBC affiliate allowed me to discuss briefly some substantive details surrounding the crash, specifically why MH17 opted to fly over a conflict zone and what the commercial fallout might be. For those interested, the following are some of the more compelling legal issues raised by the MH17 tragedy. Very few of them have been reported and some of the reporting has been inaccurate.
I imagine there will be two or three posts coming that will cover these issues. In this one I will focus solely on the commercial airspace issues involved, along with the primary national security interests that may be in play here. I will try to keep this jargon free and nontechnical.
The latest issue of First Things, which isn’t even highlighted on their website yet, features an article by Acton Institute Director of Research and “Tea Party Catholic” extraordinaire Samuel Gregg entitled “Catholic Blindness.” Without getting into the details of the piece here (that’s for another time), let me note that for those who have followed the general trajectory of Acton’s apologetics for free markets and small government, the article doesn’t break any new ground. In fact, it’s more-or-less an advertisement for Actonism and perhaps part of a campaign to ramp-up interest in Acton University for 2015. Anyway, lurking behind Gregg’s pro-market apologia and, indeed, most of the ideological rhetoric that emanates from the Acton Institute is the specter of crony capitalism, an intentionally slippery concept that is mean to instill fear in the hearts of anyone who believes there is a legitimate—indeed necessary—role for government in the operation of the economy. I call the concept “slippery” because it can be, and often is, quietly expanded and retracted over the course of a single exposition in order to meet an array of critical challenges. Moreover, as I will discuss more below, it is far from clear that crony capitalism describes a new phenomenon—one which is distinct from capitalism per se or, at least, any form of capitalism which has actually existed in the real world. There’s apologetic utility in that. For if every critique of capitalism is not a critique of “real capitalism” but only “crony capitalism,” then the espousers of “real capitalism” are free to continue promoting their ideology without fear of falsification. The irony, of course, is that Actonites and other free-market apologists—including Gregg in his First Things article—perpetually point to real world examples of what they claim is “real capitalism” (not “crony capitalism”!) at work to empirically defend themselves. And this is where the expansion and contraction of the crony capitalism descriptor really comes into play.
Not too long ago, after delivering a talk on a phenomenon I describe as “Catholic libertarianism,” I was informed by one critic that I had over-stated the problem and that a few peripheral voices, like Tom Woods, had no real impact on Catholic socio-economic thought. As much as I wish that were the case, I don’t think it is. On the Catholic libertarian landscape, Woods may be an extremist, but he’s hardly an isolated case. One doesn’t have to look very far to see libertarian ideology being fused with, or favored over, Catholic Social Teaching (CST). Take, for instance, Mark DeForrest’s recent contribution to The Imaginative Conservative: “Can Catholicism and Libertarianism Co-Exist?” While it doesn’t break any new ground in the field of Catholic apologetics for libertarianism, it usefully reveals some of the problems with that line of apologetics.
Tomorrow Christendom, the late Abbot Dom Gerard Calvet’s call for the reestablishment of Christian society, is a book seldom read by Catholics on this side of the pond. In fact, the English translation is now out of print. Even if it were widely available still, would we, good Catholics of America, have the cultural tools to comprehend its message? A resplendent glimpse of that message can be found in Calvet’s 1985 Pentecost sermon, what I and others have dubbed “The Illiberal Catholic Manifesto.” In it you will find a call to reclaim society not for free-market ideology or hawkish nationalism, but for our Lord Jesus Christ, King of all creation, rightful ruler of every man and nation. How foreign—how moth-eaten—that call must seem to us as we prepare to binge on beer and hotdogs before blowing off the tips of our fingers with illicitly acquired fireworks, all to honor the colonial rebellion against Great Britain in the name of libertas.
I can’t say I am surprised by the news and social-media reaction to Burwell v. Hobby Lobby. I just didn’t think my patience for it would be so thin. The smug part of me thinks that people should have to digest all 95 pages of the opinion before being allowed to comment. The merciful part would never contemplate such a cruel and unusual form of punishment. Hobby Lobby isn’t poorly written, mind you; it’s just written like every other Supreme Court opinion: needlessly long, unnecessarily footnoted, obscure in some parts, incomplete in others, and so forth. Apparently it’s a slow news week given how much press and commentary this case is attracting. It is, by several orders of magnitude, less groundbreaking and important — from a legal and policy perspective — than last year’s “gay marriage” cases or 2012’s “Obamacare” decision. Still, as several learned observers have pointed out, Hobby Lobby has a lot of symbolic purchase for both religious and non-religious Americans. The First Amendment’s (mythical?) right to religious liberty was not front and center in the case, but the concept was in play just long enough for all sorts of folks with all sorts of ideological dispositions to use an exercise in statutory interpretation as an excuse to ramp the culture wars back up. To what end? Probably not a good one, at least for American Catholics.
The waiting is over. On the last day of the term the Supreme Court of the United States (SCOTUS) released its opinion in Burwell v. Hobby Lobby, holding by a 5-4 decision (conservatives vs. liberals) that (certain?) privately held companies do not have to supply forms of contraception under the Affordable Care Act (“Obamacare”) which violate the owner(s)’s religious beliefs. Despite all of the hype surrounding the case, including many American Catholics holding it up as a grand showdown over religious liberty, I agree with Eric Posner’s pre-decision assessment in Slate that the case is pretty much a bore. (Posner has some further post-decision thoughts here.)
The Acton Institute’s web-log has been serializing Jonathan Witt’s forthcoming chapter from a book on Christian critiques of capitalism. Today’s installment, “The Distributist Alternative,” purports to demonstrate that Distributism is just another highway to the hell of concentrated government authority over the economy — the sort which leads to “crony capitalism.” Without involving myself right now in an excurses on Distributism, let me point out what should be glaringly obvious to anyone who peruses Witt’s takedown with even a half-critical eye: He’s attacking a strawman. That’s nothing new for the Acton Institute and its cohorts. Just last week, during its so-called “university,” Acton offered a course on Distributism taught not by card-carrying Distributists such as John Medaille or Thomas Storck, but rather by an economic liberal, Todd Flanders.
