Ultra Vires


Talking about law: The environment, war, morality, and more

Nick Papageorge (1L) 

I came to law school with numerous ideas about what might be done with a law degree. But for a few, these were abstract ideas. They ranged from practicing on Bay Street in Toronto, to Wellington Street in Ottawa, to not practicing law at all—think being a professor, or president of the Chicago Cubs.

Two months into my 1L year I have gained a fair bit of insight from various talks and lectures into some of the actual work being done with the law, and the spectrum is broader than one might imagine. From the environment to conflict zones to history, the law is omnipresent.

The first talk happened down the street at the Law Society of Upper Canada. (I might here note that I was among the youngest in the room, dressed way down, and expecting John Goodman to scream “You’re out of your element, Donnie!” at me any moment.) Thankfully, three weeks in law school gave me enough understanding to follow the discussion instead of sitting there for two hours wondering what the hell a tort or a duty was.

Dutch lawyer Roger Cox humbly discussed his brilliance and creativity in successfully suing his national government for negligence (see the video via the link on the online version of this article).

Cox argued that the Dutch Government’s inaction on emissions reductions—in spite of international agreements it was signatory to—constituted a breach of the duty of care it owed to Dutch citizens. The court agreed and ordered the Dutch government to reduce greenhouse gas emissions 25 percent by 2020. Cox has begun working with other European governments to launch similar suits.

After the talk, Mr. Cox and five Canadian legal experts discussed the prospects for a similar suit in Canada. The consensus was that it wouldn’t fly. The Netherlands is a fully civil law jurisdiction; successfully challenging public policy through private law would be implausible in Canada.

Yet, former Court of Appeal for Ontario Justice Stephen Goudge believed a challenge under section seven of the Charter might stand a chance. This possibility should be heartening to those in Professor Schneiderman’s Constitutional Law class, who by now must think constitutional law is all federalisms and Francophone schisms.

In the next talk I attended, Dennis Edney used the law to compel governments to act, but in a markedly different way. For some twelve years he fought a protracted legal battle in American and Canadian courts, and most notably in the military tribunals of the deplorable Guantanamo Bay internment camp. Edney’s goal was to afford Omar Khadr his most basic rights as a Canadian and as a human being by getting Khadr removed from a place that was, and continues to exist, well outside the bounds of law and morality.

Edney’s personal recounting of this journey was mind-numbing and surreal. One may have known the story already, yet in the moment could not quite believe it. The details of the abhorrent conditions and treatment experienced by Khadr—torture by any definition of that term—and the perseverance of Edney to extricate him from this most Kafkaesque situation were astounding in their repugnancy and impressiveness, respectively.

The urgency with which Mr. Edney then spoke of the need to defend our civil liberties more broadly, beyond egregious cases like this one, was a poignant political call to arms. Coming as it did from someone who had done battle on the front lines, it carried considerable weight. It was spoken not as some platitude or ideal but as a very real possibility, of which Mr. Edney was a living example.

Edney spoke not just of the potential for lawyers to snatch justice from the jaws of iniquity, but of our duty to do so. Terms like “social justice” and “human rights” are thrown around so much that they often approach meaninglessness. But Mr. Edney came to our school with the intention of upending that impression, and in that he was an unreserved success.

One may not dream of taking on such a high-profile, emotional, and expensive case, nor does one need to. But one can carry the ideals expounded upon by Mr. Edney—perseverance, defence of civil liberties, the willingness to do what is right over what is profitable—into whatever their post-law school endeavours are.

Finally, while Misters Cox and Edney used the law to oppose governments, Dr. Armitage spoke of the law as historical and contemporary theory.

Dr. Armitage’s talk revolved around the contentious meaning of “civil war” and historical efforts to proffer a definition. He underscored how the Roman roots of the term make it inherently paradoxical; the Latin bellum civile means “war between citizens,” and the idea of war absent an external evil confounded both the Romans and all of posterity. As such, a static conceptual definition has been, and continues to be both much evasive and highly contested. Yet reaching for one is important, as both the definition and its application have clear legal implications.

Naming a conflict as a civil war bears on issues of: potential intervention by governments external to the conflict; legitimacy conferred upon the warring parties; and the prosecution of the war itself. The first two aspects have ties to international law and governance, about which I know nothing and will refrain from commenting on.

However, the third is tied to the most core concepts of law and legal rights; for instance, whether habeas corpus is continued, or suspended (as Lincoln did during his Civil War). The idea that contemporary legal problems may be approached not just with a view to history but by a total immersion in it fascinated me as a student of history. Indeed, one could name any contemporary legal issue and find a long history that both informs and constrains the debate surrounding it.

This is all to say that our school and other local institutions draw some brilliant speakers. Some of us may be certain of our post-law school future, and some may not have the foggiest. Either way, you have something to gain from these sorts of talks, free food included.

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