Caption Contest

The decision of the Superior Court of Ontario in  McAteer v. Canada (Attorney General), 2013 ONSC 5895, upholding the constitutionality of the reference to the Queen in the citizenship oath stresses the importance of the legal distinction between the Queen as a person, and the Queen as (a symbol of) an institution. Accordingly, those who have written about this distinction ― starting with Justice Morgan in McAteer ―  have ventured a variety of more or less convoluted phrases to describe the former.

Justice Morgan used the rather unimaginative “Elizabeth R.” Philippe Lagassé speaks merely of “a British woman” here, but he gives a more elaborate description here:

[S]he was a Girl Guide when she was a tween, and she a mechanic during the Second World War, prior to become the monarch of various realms in 1952. She owns Balmoral Castle …  She currently owns two corgis and the horse that she owns, Estimate, won the Royal Ascot this year.

The pithier Steven Muerrens describes her as “an elderly lady with a unique wave” and “the woman who appears on our currency.” And I myself have written about “the kindly old lady whose portraits the federal government is obsessed with hanging all over the place” and “the physical person living in Buckingham palace” ― though that’s probably not a unique identifier.

Can you do better than this? Although I really like the “elderly lady with a unique wave,” can you come up with a more entertaining way of describing Elizabeth R.? Oh, and here’s a picture, for inspiration ― not a great picture, but one I took myself.

Her Majesty visiting Ottawa for Canada Day, 2010
Her Majesty visiting Ottawa for Canada Day, 2010

So, who is she?

P.S. Whether you like the monarchy or not, you have to admit that the Queen has the most awesome license plate ever.

Follow Me

Apologies for the lack of blogging in last couple of weeks. I was swamped, among other things by my contribution to co-writing, on short notice, a paper on the federal government’s Senate reform plans. (The paper isn’t quite ready yet, but should be soon enough, so I hope to have more to say about it in the coming weeks.) I am still swamped, but will try to post, if not as frequently as I might like.

To get my rhythm back, here’s a not-entirely-serious thought inspired by a story that ran 10 days ago. The story is about a 1967 Ferrari being sold for $27.5 million, a price one usually associates with famous paintings, not used cars (albeit that these too can get pretty expensive, at least if you add punitve damages and full-indemnity costs into the mix). Then again, describing the Ferrari 275 GTB/4*S NART as a “used car” doesn’t really give you the picture (to get the picture, do click on the link above). This thing is not really a “used car” ― it is, indeed, more like a work of art. (Other old cars, by the way, have been exhibited in art museums ― even one as serious and prestigious as Arts Décoratifs in Paris.)

Which brings me to my not-entirely-but-somewhat serious, and legal, thought. Many jurisdictions, especially in Europe, give an artist a right to receive a royalty from the re-sale of one of his or her works ― something known as a droit de suite. Interestingly, California, where the Ferrari seems to have been auctioned off, also has a statutory provision, s. 986 of the California Civil Code recognizing a droit de suite, though it has been found unconstitutional (as an interference with interstate or foreign commerce) by a federal District Court. Now, I am no expert on art law, but I doubt that such legislation would apply to the sale of the Ferrari. The California provision certainly wouldn’t. It applies only to a “work of fine art,” which it defines as “an original painting, sculpture, or drawing, or an original work of art in glass,” which seems to exclude much or even all decorative art ― not just cars. (I should also note that the sale of the Ferrari would not have come within the scope of this provision for other reasons.) My question is: why is this?

One reason might be that applying the droit de suite to the sale of cars, or indeed of other objets d’art, would not really serve the purpose for which the right was created, which was, apparently, to help help impoverished artists and their families. In a legislative debate, the French culture minister declared that

it is said that it was created following the re-sale of Millet’s L’Angélus after the war of 1914-1918. The painting’s owner made a great deal of money, even as the artist’s family was in strained circumstances. Many artists, as well as their families, had suffered because of the war: the droit de suite was a way to remedy socially difficult situations. (Translation mine; you have to scroll down to the heading “Avant l’article 28” to fin the passage.)

It might be that Ferrari, and other corporations often involved in the creation of objets d’art, are not struggling artists who need that kind of help. But, for one thing, some creators of decorative arts are, in fact, individuals. For another, companies too might be in dire financial straits. Ferrari itself, so long as it was ruled by its founder Enzo Ferrari, mostly struggled along ― he just used it to fund the Formula 1 team, which was the thing that really mattered to him.

I’m tempted to think, half-seriously at least, that the distinction being made here are just another product of the law’s inability to deal with art, about which I have already written here. Art is difficult to evaluate, and it is difficult even to define. Smarter people than lawyers have a hard time with that ― it is not surprising that lawyers, and legislators, do too.  All that is not to say that the droit de suite is generally a good idea ― I don’t know whether it is. But if it is, then the question of what qualifies as art, and how the law is going to implement this definition becomes an interesting one.

Risk and Reward

I wrote recently about whether scholarship (in philosophy and in other areas, such as law) can make a difference, and whether this matters. As it happens, PrawfsBlog has been running an interesting series of interviews with scholars whose work has been cited by the US Supreme Court, asking them, among other things, what they thought of the alleged uselessness and irrelevance of legal scholarship. Some say scholarship matters, though courts will not admit to being influenced by it. Others cheerfully say that most scholarship is, indeed, irrelevant ― but add that that’s fine. Wille Baude is in the latter category, and he has a great line by Frank Easterbrook’s article called “What’s So Special About Judges”, 61 U. Colo. L. Rev. 773 (1990), as evidence:

 A free mind is apt to err ― most mutations in thought, as well as in genes, are neutral or harmful ― but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain. (777)

This brings to mind my own favourite line by prof. Easterbrook (as he then was), from “Vertical Arrangements and the Rule of Reason”, 53 Antitrust L.J. 135:

We live in a world where knowledge is scarce and costly, ignorance rampant. (145)

If “knowledge is scarce and costly,” then producing a bit more of it is a “high gain.” So it makes sense that an investment in its production is always a speculative one. Judge Easterbrook, at least, seems to subscribe to what I described, in my previous post, as the “venture capitalist” theory of the value of scholarship (as opposed to the “stonemason” theory, according to which each researcher adds a little something to knowledge, which is thus built up one small element at a time).

It is ironic, of course, that academia turns out to be a risky enterprise. Those who enter it probably see it as safer than business or even, possibly, the practice of law. But it all depends on what risks one considers. The risk of being a failure, in the sense of not producing anything worthwhile, might be higher in academia than in many other lines of work. Then again, this risk has its rewards. Just ask the people whose scholarship is cited by the Supreme Court.

Why Bother?

Does research in philosophy make the world a better place, beyond the pleasure it gives one? There was an interesting discussion on this topic on the Leiter Reports (in the comments). Though I’m two weeks late to the party, it’s worth saying a few words about it. Although the discussion there focused on philosophy, I think the general principles one can gather from it are more widely applicable ― to legal theory, for instance (which is why I found it so interesting), but perhaps, to some extent at least, to just about any sort of abstract research.

The danger in any such discussion lies in the fact that human beings are generally poor judges of their own work, both of the significance of the enterprise they are engaged in to human affairs and of the quality of their own contribution to this enterprise. Most overestimate the importance of what they do; some underestimate it; nobody can be objective. Philosophers might be a bit better than others at avoiding biased judgments, but I doubt that they are much better at it.  At the same time, just because one’s judgment is in one’s favour, it is not necessarily wrong.

Be that as it may, a strong minority of the participants in the discussion argue that philosophical research does not actually make the world a better place. It is, often by design, too remote from practical concerns to make a difference; and the people who make a difference are not interested in philosophy. Indeed, says John Gardner, this might be for the best, because much philosophical research “is ripe for abuse. It is better not to have any effects than to have predictably unwelcome effects through the kind of people who are likely to put my work to use.” You’d think the man is a nuclear physicist rather than the Oxford Professor of Jurisprudence. But the most caustic version of the skeptical position is those who say that academic philosophy is basically a waste of good brains, and those who are tempted by it ought to do something else that would be of more tangible benefit to humanity.

Most, though, are not so pessimistic, and do in fact believe that philosophical research makes the world better in one way or another. One commonly cited reason is the indirect contribution research makes by making the researcher a better teacher ― and teaching, in turn, is what really makes the world a better place. But many say that research itself is (also) valuable. There are, so far as I can tell, three main claims about why this might be the case.

The first is that doing philosophy is intrinsically valuable ― that, to quote prof. Gardner again, “the world is a better place ― constitutively ― just in virtue of containing more good philosophy, and more good philosophers.” Or, as a scientist quoted by Richard Baron answered when asked why the United States should bother spending money on particle physics put it, “[i]t has nothing to do directly with defending our country except to make it worth defending.”

The second and third justifications of research in philosophy both claim that it is instrumentally valuable because it helps us get (closer) to Truth. The difference between them is in how they perceive the contribution each individual researcher might make. The first claim about the instrumental value of philosophical research is that, although the odds of any individual philosopher of making a valuable discovery are very low indeed, a few will get lucky. Philosophy, on this view, is a bit like venture capitalism ― it involves lots of investments, most of which will have to be written off, but a few of which will. hopefully, yield returns rich enough to make up for the rest. The second claim is that, on the contrary, an individual philosopher’s work does make a contribution, albeit small, and that we get closer to Truth as these small contributions add up. As Craig Duncan puts it, a philosopher a “medieval mason helping to build a cathedral. An individual mason’s contribution was doubtless small, and he likely did not live to see the conclusion of the project and witness its full value” ― but that doesn’t mean it hadn’t any.

For my part, I find all three of these claims somewhat appealing, though perhaps the “venture capitalist” one more than the others. It is consistent with Sturgeon’s Revelation (a.k.a. Sturgeon’s law), which holds that “ninety percent of everything is crap.” There seems to be no reason to be reason to believe that it doesn’t apply to philosophy, or jurisprudence, or any other area of academic research. But the revelation’s universal applicability means not only that much of the philosophers’ collective output is going to be worthless, but also that they would not necessarily be better occupied at anything else, and that their collective contribution, like that of any other profession, is to be judged by small fraction of non-crap that it produces. (Of course, this is no excuse for the individual who consistently only produces crap ― he or she should indeed try to find something else to do. The point only holds for groups.)

I will end with two similar quotes from very dissimilar economists.

The first is a well-known bon mot from Keynes’s General Theory of Employment, Interest and Money:

The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.

The second is from Milton Friedman’s introduction to a 1982 edition of his Capitalism and Freedom:

Only a crisis—actual or perceived—produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around.

Despite a difference in emphasis (it would be too much to expect Keynes and Friedman to quite agree!), the point that both make is that ideas matter, in everyday life (so Keynes), but especially so in times of crisis (so Friedman). And I am pretty sure that this is true not only of ideas on politics, policy, and economics, which both had in mind, but also of those on ethics, law, and any number of other “abstract” areas of inquiry. Good ideas can make the world a better place.

Happy Birthday, Double Aspect!

My blog is a year old! (A year and a day actually.) As I wrote in my 100th post, “[o]n the whole, I would rate this blogging adventure as a time-consuming success.” Despite occasional periods of delinquency, I’ve produced just over 200 posts during that time. If I worked on my dissertation at this pace, I’d be done already. Of course I don’t, because it’s not nearly as much fun.

And a big part of the fun, of course, are you, the readers. It’s nice to know that one is read, and read by all sorts of people―not only fellow academics (not that I have anything against my readers who are!), but also people who actually practice law, and those who are not lawyers at all.

Another part of the fun has been organizing my thoughts, and exploring topics I would probably not have ventured into but for the blogging (in particular, the interaction of law and technological change). No papers have yet come out of the blog, but I have plans for two or three. (It’s easy to have plans of course…) If any of them materializes, there will be a more tangible benefit to show for all the time spent here, but that wasn’t, and isn’t, the main purpose.

I suppose it would be de rigueur to talk about plans for the next year here, but I hardly have any. I will do my best to keep at least my current pace, and will try to make sure that the second year is no worse than the first. If you’ve enjoyed it so far, please keep coming back, and tell your friends!

The End of Supremacy

This just in from DOJ:

OTTAWA, April 1, 2013 – The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today announced important changes in the organization of the Canadian Judiciary. The Harper government will immediately introduce legislation to restore appeals to the Judicial Committee of the Privy Council from the Supreme Court of Canada, making it once again the court of last resort for Canada. This legislation will restore accountability for the the activist judges of the Supreme Court, and further the government’s agenda of making Canadians proud of their Imperial heritage.

“This important change will help restore traditions lost in the last six decades and a half of the Supreme Court’s supremacy,” said Minister Nicholson. “Thanks to the timely passage of this legislation, important decisions about public policy will no longer be made by nine unelected men and women in Ottawa, but given by English judges, in the form of respectful advice to Her Majesty the Queen. The Harper government is confident that, along with its other recent measures, this will help build the pride and confidence of Canadians in their institutions.”

UPDATE, April 2: And now that April Fools’ is over, I just hope I haven’t given anyone ideas…

Organized Hypocrisy

I want to come back to the issue of human smuggling. I posted yesterday about R. v. Appulonappa, 2013 BCSC 31, a decision of the B.C. Supreme Court striking down the provision of the Immigration and Refugee Protection Act (IRPA among friends or former federal court clerks) which criminalized aiding people to come to Canada without the papers required by IRPA―i.e. human smuggling. A sentence in Justice Silverman’s reasons caught my eye:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPA … ), why is it a crime to assist such a refugee to arrive? (par. 144)

Why indeed? Justice Silverman does not follow through on this question, indeed he seems to reject it, asserting that the policy of criminalizing human smuggling is “legitimate” (par. 166), although he holds that the way in which Parliament went about it was unconstitutionally clumsy. But I think that this question is worth asking.

First of all, two distinctions are in order. One is between “human smuggling” and “human trafficking”. The former means helping people get into a country illegally, that is to say without the papers (such as a passport and a visa) that entitle them to enter. The people being smuggled consent to it―indeed they actively seek it. Human trafficking, by contrast, means moving people―not necessarily across international borders―by force or fraud. There can be no consent in such circumstances. I am only talking about smuggling. The second distinction I want to draw is between the smuggling of illegal immigrants―people who intend to stay in the destination country without ever telling its authorities and without any claim of right to be there―and the smuggling of refugee claimants, who do notify the authorities and say that they are legally entitled to stay in the country as refugees. Justice Silverman’s question only applies to the latter situation, and that’s what I want to address. Illegal immigration is, well, illegal, so criminalizing assistance to it makes sense in the same way as criminalizing aiding and abetting any crime.

But what about criminalizing assistance to people who want to claim refugee status? To repeat Justice Silverman’s question, why is it a crime to assist those who are not themselves committing a crime?

Justice Silverman says that the purpose of the criminalization is “to protect victims of human smuggling,” (par. 138) but the essence of human smuggling, as opposed to human trafficking, is that the “victims” consent to it. Justice Silverman also says that the criminalization of smuggling “is intended to target criminal groups engaging in human smuggling who often exploit vulnerable migrants (including refugees)”; he distinguishes those who “are exploiting those migrants for profit,” and those who are “saving their lives by helping them escape persecution and violence in their home countries out of humanitarian compassion” (par. 154). But what exactly is wrong about a person making a profit out of a useful act, such as bringing a refugee to safety? The baker who sells me a loaf of bread does nothing wrong, even if he profits by the transaction, and even if I would starve without that bread. At least if I can pay, he is surely not bound to just give me the bread free of charge, “out of humanitarian compassion.” And refugees who resort to the services of smugglers obviously have the means to pay them.

Now the grocer in my example might be acting wrongly if, learning that I am starving, he charges me ten times the normal price. Then we could fairly say that he is “exploiting” me. But is that what happens with smugglers and refugees? I doubt it. It is surely the case that a major reason why smugglers’ services are so expensive as to seem “exploitative” is their illegality. As with drugs, illegality―created by the state―reduces the number of willing sellers and increases the risks for which each of them wants to be compensated out of the price he charges.  (Another major factor is surely the inherent danger and difficulty, and possibly the illegality, of getting the refugees out of the countries they are fleeing.) But it seems quite wrong for the state to manufacture the conditions that give rise to the appearances of exploitation and then blame, and even criminalize, others for that exploitation. And so I come to the conclusion that the reasons we give for criminalizing the smuggling of refugees are hypocritical, and thus the criminalization itself is.

But it is also hypocritical in a different, and arguably even worse, way. We proudly proclaim our commitment to “saving lives and offering protection to the displaced and persecuted” (IRPA, par. 3(2)(a)). But, as Justice Silverman observes, Canada does “not encourag[e] refugees to make their way to our shores” (par. 59). If they come here, well and good, we’ll try to review their cases through some form of fair procedure. (I know that many people will disagree that this is actually what we’re doing, especially after the recent reforms to IRPA. I won’t go into that debate now. I think it is at least the intention, even of the current government, to be fair.) But, sotto voce, we really wouldn’t mind that fewer of them show up. Criminalizing the actions of those who would bring too many refugee claimants here helps keep their numbers down without appearing to be harsh on the refugees themselves―on the contrary, we can go on pretending to be saving the poor people from exploitation. If that’s not a form of organized hypocrisy, I don’t know what is. I hasten to add that this is not just a Canadian problem. The criminalization of those who make a profit out of smuggling refugees is endorsed by the international instruments cited by Justice Silverman. But, again as with drugs, the international sanction does not make our bahaviour right.

Of course, there surely is a limit to the number of refugees any country can let in in a given period of time; especially if we actually give refugee claimants the benefit of a fair procedure, rather than treating their claims summarily and carelessly. Perhaps the fundamental, underlying hypocrisy is simply our claim to be a safe haven for the wretched of the Earth, when we simply don’t have the means to be that.