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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Friday, April 16, 2010

Cold water

Expelled revisited 

 A couple of years ago, I wrote in defence of the makers of Expelled, who'd used a small amount of John Lennon's song "Imagine" to make a point in their meretricious film. Jim Lippard has a very good summary of events in both the real world and the blogosphere here. Although I don't claim to be an expert in intellectual property, and particularly on the American statutes and case law, it seemed to me throughout that the principles behind the law should favour the makers of the movie.

When the case found its way to court, the judge ruled in their favour, using reasoning quite similar to mine (though obviously far more informed about the detail of the actual law).

Although Jim Lippard took the same view as I did, we were swimming against the tide of opinion in those waters of the blogosphere that we tend to frequent. I was amazed at how many atheists, sceptics, and freethinkers suddenly became advocates for the most overreaching aspects of intellectual property law, not to mention the extravagantly generous interpretations of it in the practices of the American entertainment industry. It seemed that they became zealous advocates of IP rights because the "bad guys" in the case under discussion were the ones who were arguing for fair use and for constraints on intellectual property in the name of free speech. They were not standing back and thinking about what the policy of the law - which applies to both "bad guys" and "good guys" - should be.

Despite the shoddy aspects of Expelled, which features a defence of Intelligent Design and involved various morally questionable practices in its making, intellectual property rights, specifically those relating to copyright, are an artificial exception to our freedom to use information. There is a reasonable policy behind intellectual property: it rewards efforts in creating such things as inventions, designs, stories, songs, and so on, and thus encourages creators by giving them a source of income, even wealth in some cases. Fair enough so far. But it thereby carves out an exception to the ability of people to say what they want, adapt the inventions of others to their own purposes, etc. The exception can't be allowed to swallow up the rule. Intellectual property rights should not be used to wipe out large areas of free speech.

On pouring cold water 

Now and then, I am going to pour cold water on the enthusiasms of people who are generally my allies but don't necessarily have a good understanding of how the law all fits together, or of the policies and principles behind it. The controversy over Expelled and its use of "Imagine" was one such example. Obviously, no one has to defer to me. In some cases, my views on legal principle will not be supported by courts when push comes to shove (though I have a pretty good success rate over the years, both in my prognostications on this blog and during my years of quasi-legal work and my briefer time in professional legal practice). Be that as it may, I'll go on saying what I think about the law and the policies and principles behind it, even when I find myself in the uncomfortable position of having most of my friends disagree with me.

Arrest the pope? 

No one will disagree with me, I imagine, in my support for the reasoning of the Court of Appeals in the UK in Simon Singh's libel case. I think the logic of the joint judgment is very compelling and that there was little prospect of challenging it successfully in the Supreme Court (formerly the House of Lords - a judicial body that is not the same as the upper house of parliament in the UK). It looks as if the BCA has come to the same conclusion, based on its legal advice.

But some are certainly going to disagree with me when I say that the current calls to arrest the Pope when he visits Britain later this year are legally misguided. It only took me a few hours of research on the internet to conclude that the legal theories being offered by Geoffrey Robertson and others are very dubious. My first response of any substance was in a comment over at RD.net:

If Geoffrey Robertson wants to test the law on these issues, I wish him every success. I have to say that I don't think the case will succeed. The claim that The State of the Vatican City is not a legitimate country in international law looks murky to me. It does look as if it's legally a country, even though not a UN member, and that the pope is its head of state. And then there's the legal effect of the fact that the pope is also the head of the Holy See, to which the UK doubtless provides an ambassador and which it otherwise recognises as a sovereign entity in its own right (in addition to Vatican City). That alone would seemingly give the Pope immunity from prosecution in the UK. And odious as the institutionalised sexual abuse of children within the care of the Catholic Church has been, this is not a classic case of crimes against humanity. Normally, you'd think of a campaign of persecution by a country or an unofficial regime of some kind (like warlords or rebels who are in control of territory). In the classic kind of case, they'll be mounting, or at least somehow allowing, a recognisable campaign of persecution and terror against either a group of their own citizens or people who live in territory where they've established control. What we have with the Catholic Church's institutionalised cover ups of rape and other abuses by its priests, etc., doesn't easily fit that picture. There's a legal definition, and arguably it can be broader than that sort of case. All the same, Robertson will need to work very hard to show that this situation falls within the definition, rather than just being a whole lot of largely-unconnected crimes in many different countries, properly falling under the ordinary laws of those countries. All that said, there's at least been something like "a wide practice of atrocities tolerated or condoned by a government or a de facto authority" if you read those words cold. I can see why somebody like Robertson would be prepared to argue about how far the wording stretches to cover unusual situations. So why not get the point clarified by the courts, if possible? 

I've now changed my mind about this. I was right to think that Robertson's theories are dubious, but I now think that I initially underestimated just how dubious they are. It now appears to me that Robertson is seeking a very expansive interpretation of an area of international law, i.e. the law relating to crimes against humanity, that is intended to be construed strictly and narrowly. For a stronger dose of reality, see this thread on Jack of Kent's blog. Robertson has a powerful legal mind, of course, but he is also pushing very hard against the limits of the law. My confident prediction is that none of this will intimidate the pope into cancelling his visit to the UK. When he visits to the UK, he will not be arrested for any crime.

"So what?" you ask. So, let's be responsible 

"Fine," you say, "but so what?" Why not use discussion of the outer, speculative limits of international law as a way of giving publicity to the pope's past involvement in the practice of transferring pedophile priests to new parishes, rather than removing them from the priesthood? Well, I'm all in favour of publicising this. The Church's approach did enormous damage, and we can see what a morally corrupt institution it is. But I'm not in favour of obtaining publicity by spreading to the public highly speculative, and probably incorrect, theories about the law. Not unless we give them something more like the full story.

In my opinion, Robertson's conduct is getting close to irresponsibility. I say "getting close", because there is a degree of hedging when you read what he says carefully. But Robertson is a noted expert on international law, and people who are not expert - and especially people with no legal training - are likely to defer to him. Some are not noticing the degree to which he is hedging, and, frankly, I don't think he hedges anywhere near enough to provide a realistic impression. It would be good if his public pronouncements contained a stronger element of realism, amongst the creative theorising. 

If you take Robertson's theories as fact, or as the nearest thing you can get to it in the law, you'll be misled. For scientists, they are the equivalent of a radical and untested set of hypotheses, not the equivalent of well-corroborated theory. I wouldn't want to square off in a courtroom against someone with Robertson's legendary forensic skills, but I don't trust his judgment (at least as he's expressed it publicly so far) on this issue. He's writing like an advocate in the courtroom, putting a brave legal theory in rather one-sided way. That's what barristers do (of course, it's the opposite of what philosophers do, and also the opposite of what barristers do when actually preparing to go to trial; in both of those cases, the task includes identifying and considering the strongest case for the opposing viewpoint). 

No matter how skilled a lawyer Robertson may be, he's not necessarily correct on any particular question of law that hasn't been tested. In this instance, I think he's almost certainly wrong if he thinks there's any reasonable legal prospect that the pope could be arrested in the UK for crimes under any municipal jurisdiction or under international law. That's not going to be a popular conclusion among my friends, but it's what I honestly believe.


Margaret said...

As a former lawyer (very former, I should add), let me first say that while my area of expertise was in criminal law, it wasn't in international criminal law. Nevertheless I've followed Robertson's career over the years, and take issue with your suggestion that there is anything intrinsically wrong in his taking an "expansive" interpretation of the relevant law, or his "pushing very hard against the limits of the law". That is precisely what he has done throughout his career as a human rights lawyer. It is only through lawyers (and subsequently the judiciary) pushing those limits that precedent law exists at all. Sometimes it succeeds, sometimes it doesn't. That's the way the law works.

The legal issue of whether the Pope is a Head of State and thus entitled to immunity is absolutely open, as far as I am aware. That the Vatican has observer status at the UN does not necessarily speak to this question, which I would love to see legally determined.

Russell Blackford said...

No, but if that's what you're doing you should give people a sense that that's what you're doing. I think a lot of people don't realise that Robertson's claims are very speculative and probably wrong in law. Robertson gives the impression that the pope's claim to head-of-state immunity is weak. That's not the case at all.

Of course I agree with you about the need for legal creativity. But that wasn't my point. The point, well among other things, is that we must be wary of favouring a legal view because it is against the interests of the bad guys in a particular case. Hence my revisiting of the Expelled litigation, where so many people could only see that the makers of Expelled were the bad guys, and it clouded their judgment - both about the likely legal rights of the parties and about what the principles behind intellectual property law.

I see this sort of thing happen a lot.

Anonymous said...

Go away Mabus, you pest; the adults are talking. What on earth are you trying to achieve?

As a non-lawyer, but with a little faint familiarity with international law, I share Russell's scepticism about Robertson's arguments on this point.

The Vatican is an internationally recognised nation-state, and has been so for many years. It is treated as such by other states, sends ambassadors (Papal Pro-Nuncios) abroad and behaves in most ways as a normal state. To follow Robertson on this point would seem to be a drastic departure from normal international legal practice.

I am also not aware of any currently serving head of state being arrested, though of course we have the precedents of ex-heads of state facing charges - notably Pinochet, and especially Milosevic. Since we rarely see ex-Popes, I doubt if we'll ever see the Bishop of Rome under arrest.

But of course the whole episode has further dramatised the scandal, and maybe, just maybe, gives some slight comfort to the victims. Let's not forget that very few of them have seen anything like justice in this sorry mess.

Unknown said...

The argument over the Vatican having ambassadorial representation is not as strong as you might think.

The UK sends an ambassador to the UN, yet I doubt anyone will try to argue the UN is a country. In addition a number of non-Nato countries send an ambassador to represent them at Nato, and the same is the case with the EU.

Russell Blackford said...

Actually, Matthew, the argument about ambassadorial representation does not relate to whether the Vatican is a country. If I said or implied that, I misspoke. It's actually a bit more complicated than that.

Anyway, we can discuss it tomorrow. I'm mainly here to clean up after the troll.

Blake Stacey said...

"In this case, I think he's almost certainly wrong if he thinks there's any reasonable legal prospect that the pope could be arrested in the UK for crimes under any municipal jurisdiction or under international law. That's not going to be a popular conclusion among my friends, but it's what I honestly believe."

FWIW, I haven't seen too many people expressing the opinion that the legalistic noises against the pope would lead to an actual arrest. (PZ Myers: "I have no illusions that the Pope will actually be perp-walked back onto an airplane and sent away from England".) So, while your conclusion will most likely come as a splash of cold water, it might not be all that "unpopular", in the sense of people actually disagreeing with it.

Russell Blackford said...

Blake, I was thinking more of commenters than actual posters. A lot of people commenting in various places don't seem to be aware of such things as problems about extraterritoriality, the narrow definition of crimes against humanity in the Rome Statute, etc., and/or seem very willing to trust Robertson that all the problems can/should be overcome.

But of course there are good reasons to be worried about laws with extraterritorial effect. The US can't arrest me when I visit there for something I did back in Australia. Not unless there are special circumstances like Australia asking them to and wanting to extradite me. Prima facie, the UK can't just arrest the Pope for something he did back in Italy/Vatican City, even if there were no issue about head of state immunity and all the rest of it.

We had this problem with extraterritoriality with David Hicks, when the US high-handedly imprisoned an Australian citizen for things he did in Afghanistan. Generally speaking, that's not a good idea.

There are also reasons why certain immunities are given to diplomats and heads of state. And there are reasons why the Rome Statute is drafted so narrowly with a guarantee in Article 22 (I think it is) that it won't be interpreted expansively. No one wants it to take over a whole lot of domestic criminal law or to create far-reaching and unclear extraterritorial jurisdiction. That's important even it means that some bad guys are harder to get at than would otherwise be the case.

Hence my analogy with the Expelled/Yoko Ono case. There were and are good reasons to want a broad and robust "fair use" defence, even though it helped the bad guys in that case.

Blake Stacey said...

Good points, all.

In the Expelled case, I recall experiencing the unholy delight which comes when creationists — who set themselves up as the arbiter of right and wrong — get their noses thumped on ethical grounds. As far as that goes, I'm as guilty as the next evolutionist on the Blogohedron. When the Schadenfreude wore off, though, I could see the merit in a broad interpretation of "fair use" law. A rising tide floats all boats, even the one with Ben Stein in it, etc. I probably should have been more explicit about that, back at the time; too late now, I suppose. Oh, well.