Cushing v. Dupuy

The enduring issue in Cushing v. Dupuy concerned whether a provision in the federal Insolvency Act making certain court judgements "final" meant the Judicial Committee could not hear an appeal. The Committee held that the effect of the provision was to exclude an appeal to the JCPC as of right, but did not effect the ability of the Committee to give leave. The rationale was that giving leave was an aspect of the Crown Prerogative, which could only be extinguished by a statute if the statute was explicit. The editor of the Appeal Cases court reports added "quaere, what powers may be possess by the Parliament of Canada so to do", a note that anticipated battles in the twentieth century.

So far, we have been able to avoid talking about the tricky ontological issues about what the Judicial Committee of the Privy Council really was. We were able to get away with just treating it like the final court of appeal for the Empire, which nineteenth century Canada was very much a part of. In the twentieth century, that gets embarrassing, but no one was worried about that when Britannia still ruled the waves and Gilbert and Sullivan were at the height of their creative powers. Why not have your final court in London? As we will see, the part of Canada least enthusiastic about dying to keep China British -- Quebec -- was even less enthusiastic about having the relative powers of the federal and provincial governments decided by a tribunal located in Ottawa and picked entirely by federal Prime Ministers. But that's all in the future.

But whatever its merits as an impartial and imperial adjudicator, the Judicial Committee was built on a pile of legal fiction. In theory, litigants did not appeal to the Committee in accordance with some procedure set out in a statute. The legal fiction was rather that the Queen Insurance Company or Madame Belisle, as a subject of Queen (and now Empress) Victoria, was appealing to the batty old Hanoverian herself. And as the descendant and ultimate successor of a Norman bastard with above-average luck and leadership skills, she had the prerogative right to entertain an appeal from one of her subjects that her judges had erred.

Now nineteenth century Brits were sharp enough to see that leaving deciding the fine points of insolvency law to a grumpy matron from a line of notoriously plodding intellects was not fair either to her or to the contending parties. Shortly before she came to the throne, Parliament had enacted the Judicial Committee Act, which provided that members of the monarch's privy council who had "high judicial office" would constitute a judicial committee, and the monarch could refer matters to them, and they would advise him or her about them. This was already standard practice when colonial appeals were taken to the monarch, and it was already invariably the case that the monarch would just rubber stamp whatever the Committee advised.

However, some peculiar features arose from this fiction. For example, unlike the House of Lords, which was the final court of appeal for England and Wales, and whose judicial functions were exercised by largely the same people, the Judicial Committee always gave a single set of reasons, without dissent, since it would not be seemly for Her Majesty to receive conflicting advice about what to do. This was all good, since dissents and concurring judgements are really exercises in ego, and confuse lawyers.

The legal fiction had more controversial consequences in that it implied that any restriction on the jurisdiction of the Judicial Committee was, in legal theory, a restriction on the traditional prerogatives of the Queen. The constitutional battles of the seventeenth century had confirmed that Parliament could curtail Crown prerogatives, but went along with a presumption (remaining to this day) that it would not do so unless it said so expressly.

Sir Montague Smith reasoned that the Act must have intended to eliminate appeals as of right, but it did not explicitly eliminate the "Queen's" power to give leave. It therefore remained. The Committee gave leave, but it didn't help the appellant, since they ruled against him anyway. Or rather, humbly advised Her Majesty that her colonial court knew what it was talking about. Since the underlying issue was a secured transaction question under the Civil Code, which could only confuse common lawyers, that was a good move.

Ethiopian Government Uses Famine as Weapon in Ogaden

So reports The New York Times (HT: Rob Farley). The Times specifically mentions the Canadian-based Ogaden Online, apparently the voice of the secessionist Ogaden National Liberation Front.

Zenawi and the EPRDF are repeating the crimes that the Amhara-dominted Derg government (1974-1991) committed against their own Tigrayan people against the ethnic Somalis of Ogaden. We didn't hear much about "Ogaden" during the reporting of Ethiopia's invasion of Somalia last Christmas, which just shows how imperial policy is necessarily the policy of the clueless against the helpless.

Four Years Ago, Part 2

This post is from April 2003, so it is technically cheating:

I didn't say the Bush administration had advanced the most transparently immoral argument for war since Alaric. I used that characterization for the Canadian business community that says we should have participated so that we don't face protectionist measures from the United States. That argument is transparently immoral since it uses economic interest as a justification for lethal force. The Bush administration (rightly) does not argue that the war against Iraq will bring the United States any economic benefit.

No doubt there will be *some* good consequences of the war. But it seems strange for a libertarian [like my interlocutor] to think that's the end of the analysis. There would be some benefits of a government program giving all high school graduates free sports cars. The question is whether the costs of the war in global instability outweigh the benefits. It seems odd to me that you think governments will necessarily make things worse by regulating pesticides, but establishing democratic self-government in a (at minimum) half hostile country is a doddle.

All occupations, like all taxes, are "temporary." Just as soon as order is restored, democracy established, "terrorists" disarmed and global brotherhood established, the United States and United Kingdom will be on their way, bedecked in garlands by a grateful population.

If the Iraqi population is genuinely supportive of this adventure, then this rosy scenario could materialize. But I don't think it will. We really don't know what the Iraqi population think now. The evidence from exile communities (which would, if anything, be biased in an anti-Hussein direction) suggests that even at the beginning of the occupation, there is a range of opinion from support through indifference to hostility to the Americans among anti-regime Iraqis.

Historical experience suggests that the longer the occupation lasts, the more hostility there will be. In Somalia in 1993 and in Ulster in 1969, the population initially welcomed the occupiers: neither turned out that well. Even if there is material improvement, Iraqis have suffered a national humiliation. Arabs in neighbouring countries are in a cold fury against the United States, and it seems likely that, assuming the country opens up, this message will spread. If anything goes wrong, the occupiers will (rightly) be held responsible. Moreover, American armies are not known for their cultural sensitivity and the Bush regime prefers to smother bad news than learn from it. All in all, a recipe for increasing resentment.

This resentment could lead to an intifada. The undeniably immense technological superiority of the US military will be of little use if this occurs. Instead, the US will have to choose between crushing the rebellion and withdrawing. The obvious leaders of such an intifada are (you guessed it) Islamist fundamentalists.

The more general point is that national sovereignty is a necessary, although obviously not sufficient, condition for democratic self-government.

More broadly, this war sets a bad precedent. If we take seriously the "Bush doctrine" of pre-emption, then any country could justify invading any other. If we, more realistically, accept that the Bush doctrine is only intended for hegemons to invoke, then there is no reason to stop at Baghdad. Damascus and Tehran await. Etcetera. Either America becomes the ruler of the world or it repudiates the Bush doctrine.

But if I am wrong about all of this, I would say the same things about Celluci's intervention, and the craven response to it on the Canadian right. Even if the war and occupation turns out brilliantly, friendly countries, like Canada, are entitled to take a different view without being threatened. Loyal oppositions do not react to threats to their country by chiding the government of the day for upsetting the hegemon. The threats on Canada are what make me angry, but they are not of the greatest world-historic importance. But similar threats have been delivered to Turkey because its government followed the wishes of over 90% of its population. This *is* of world historic importance, since Turkey is a precarious Muslim democracy, with a pro-American military willing to threaten the civil government.

It seems odd to me that you don't recognize the inherently mercantilist logic behind Celluci's statement that the US values security more highly than trade, with its implicit threat that Canada will suffer trade consequences if it does not adopt the Bush administration's view of security. Canada will suffer if the United States goes down the protectionist road, but so will the United States. We will suffer more, but we will suffer proudly if our only alternative is capitulation.

The Folkways of the Pathan, Law and Humanitarioimperialism

The Economist publishes two thick issues at the end of each December. "The World in ---- [next year]" invariably sucks. But the Christmas double issue is snooty English journalism at its best.

This year, they had a must-read article (subscribers only) on the customary law of the Pushtuns (formerly Pathans), the largest ethnic group in Afghanistan, and the source of the Taliban.

Why is it a must-read? Well, I have some legal positivist readers (BKN and Fred S.) who think that law is the command of the sovereign, and it would be good for their souls to read about a longstanding legal system that functions without any sovereign at all. I don't want to spoil the ending, but customary arbitration can be pretty hardcore.

Not to say that all is well. Any paleo-anarcho-libertarian readers would also benefit from reading about how the Pathan clans resolve their disputes -- first by killing each other in nasty ways and, once they have tired of that, by trading their women.

But the most important audience would be the naive democracy promoters. I, for one, would be happy to have the Pathans continue in their folkways. Those folkways are the main obstacle (and main target) of the legalistic and textual Talibs. But those folkways are obviously a million miles from our ideas of human rights. The Taliban, unlike the tribes, are connected into an international jihadist network that would like to kill you and me, gentle reader, so I see some point in fighting them. But we shouldn't get all moralistic about it. The society they are reacting against is just as foreign to us as they are.

I am Clark, Scourge of Tigray, Hammer of the Oromo

Canadian public policy circles tend to discuss African politics as a backdrop to a familiar argument about a proposed "Duty to Protect". "Internationalists" are all telling us that state sovereignty is completely outmoded and that if Canadians weren't such sorry selfish wusses, we would be spending half the GDP on invading various impoverished places and sorting out their governance and identity issues. Africa is a handy example for them to use, because it indeed has and has had serious problems of predatory states and ethnic-based slaughter.

But what few of us talk about is that Canada's historic role in Africa has frequently been to actively promote predatory states and ethnic-based slaughter. It's at least arguable that the real lesson should be "first, do no harm."

Trudeau and his foreign minister Mitchell Sharp strongly supported the federal government in Nigeria when it starved and bombed Biafra, homeland of the Igbo (the "Jews of Africa"), into submission. Trudeau and Sharp saw the situation in Nigeria as analogous to Quebec secession, and they were prepared to countenance a bit of ethnic massacre to prevent a bad precedent. (Another possibile motive is raised by this report from the BBC. Apparently, the Biafran conflict was an Franco-British proxy conflict, even though such things were no longer supposed to be going on in 1970. Trudeau in 1970 saw France as Canada's major foreign antagonist.)

The Progressive Conservative and NDP opposition protested Trudeau's stand in Biafra. But the most shameful episode was tripartisan. In the mid-eighties, the military-communist government of Ethiopia repeated Stalin's forced collectivization experiment in 1930s Ukraine, with similar results. The Reagan administration was mildly critical. The Trudeau and Mulroney governments -- for different reasons -- saw their African policy as a way of distinguishing themselves from the US.

This led Canada to knowingly finance forced resettlement programs. Disfavoured ethnic groups -- the Oromos in particular (since the Tigrayans and Eritreans could defend themselves) -- were dumped Soviet-style far from their homes with generous assistance from the Canadian taxpayer. Much well-meaning rhetoric about "overpopulated areas" was forthcoming, on the theory that Canadian bureaucrats know better than Ethiopian peasants about what land is overpopulated.

Biafra and the mid-eighties famine in Ethiopia are hardly minor black spots in the recent history of Africa (and our intevention in Somalia didn't work out perfectly either). In both cases, we did something in Africa for reasons that have more to do with our own obsessions than what was going on there. But it will always be thus. Canadian politicians react to Canadian political realities. Even if an intellectual could design the ideal humanitarian intervention in her head, it would never be what was in fact delivered.

Democratic Imperialism: Once again on why it is a bad idea

I know many of you like to see bloody-minded arguifying. The Pithlord has been busy for personal and work reasons, but the Pithlord understands. So I point you to a fight I get into with ex-pat philosopher "Akrasia" on the subject of whether Canada's foreign policy should involve "democracy promotion".