Tuesday, June 16, 2009

Cross-jurisdictional judgments

A question I am pondering now as I work is that of cross-jurisdictional judgments. It is fairly common in a federal system (like the United States or Canada) for there to be some form of recognition by other territorial divisions of the legal judgments or determinations of other divisions.

For example, if you get married in Ontario, that marriage is recognized in Quebec, British Columbia, Alberta, and every other province, and depending on a variety of factors, by American states, such as New York and California.

This is not always true, of course. If you get married to someone of the same sex in Ontario, the chances of that marriage being recognized as valid in, say, Iran or perhaps Utah is likely to be negligible. And the opposite can also be true; if you get divorced in Ontario, that divorce will not be recognized in states that do not recognize divorce.

However, in any case, one can say in general that there is a reciprocal agreement between North American territorial divisions to generally accept marriage and divorce decrees, although not those between same-sex couples.

Where I am having trouble is with respect to the effect of those judgments. It's very easy to say that person X and person Y are married in Ontario, and therefore if they move to Hawaii, they'll still be married under the laws of Hawaii. It's also true to say that if they divorce in Hawaii, chances are, this divorce will be recognized when they get back to Ontario.

But what if, while in Hawaii, they created a divorce decree that stated that the issue of alimony would be decided by the court at a later date after both parties have filed information on their respective incomes, and then both parties went back to Ontario?

Would the Ontario Superior Court of Justice give full effect to this judgment, in effect treating it as a judgment of the Ontario Court, and proceed from there (i.e., requiring that the parties file information on their respective incomes and then make an alimony decision)? Would it set the issue aside entirely and conduct its own judgment? Or would it require that the parties go back to Hawaii and litigate the issue at question there?

If it chose the first option, on the basis of which law would it then proceed? Hawaii law, or Ontario law?

This is of course made all the more complicated by the fact that, even within Canada and the United States separately, not all judgments, records, or other determinations are carried over. If, for example, you receive a concealed carry permit for a firearm in Florida, it is not true that all other states would recognize that. They have a public policy concern in doing so, primarily which tends to override the full faith and credit.

The Defense of Marriage Act seeks to prevent same-sex marriages from carrying over from states where they are permitted to states where they are not permitted. Obviously, therefore, the issue is more complicated than it first appears.

The truth of it is, however, I'm not sure exactly what the answer is...

Monday, June 15, 2009

Ontological Inertia

I have been thinking, fairly recently, about something called ontological inertia. Inertia itself is a fairly basic concept; it can be simplified into the bold statement that a body in motion will remain in motion unless a force acts on it to counter that motion.

Similarly, ontological inertia is the claim that things which exist will continue existing unless a force acts upon them to counter that existence. Now, this might seem perfectly obvious to you; well and so. Oddly, most people are not so lucky. This is perhaps reinforced by television, where concepts like 'status quo is god' are reinforced again and again to the point where they pervade our cultural psyche. We are trained, essentially, to believe that everything will return to the way it was magically, and things will continue along the way they were.

But, you might cry, I don't think that way!

Well, perhaps you don't. Earlier this week, I overheard a group of people speaking about Iran. One of them mentioned that because Iran was not a democracy, they had no moral legitimacy. Specifically, they argued that since Iran was able to overthrow its monarchy in a revolution in 1979, it should have established a 'democracy' in its place as opposed to a theocratic republic.

It's difficult to establish exactly why the people in question thought this. Perhaps they thought, as many do, that a democracy is the 'default' state of government; and that if you overthrow tyrants and totalitarianists everywhere, magically democracy will appear overnight. However, then they went on to proclaim that since the current Islamic Republic continues, the people must be in favor of it continuing and therefore were guilty of its operation.

This is a more difficult proposition. I have, on various occasions, agreed with it; from a political-science point of view, after all, it makes a great deal of sense. When looking at populations on a large scale, it is an effective view of modelling population behavior.

But it doesn't tell the whole story. In fact, the vast majority of people in Iran could be very unhappy with their government, and yet still have it continue in operation, for a variety of reasons. Firstly, they could agree with the form of government, but disagree with the leader. This argument could be extended to US president George W. Bush, who, during the end of his tenure, had approximately 68% disapproval ratings and yet was not forced from office. In that case, one could argue that they are supporting their system of governance but not the leader by supporting the government.

The second is perhaps more pervasive. If you walk into a room with perhaps 100 people, and ask them how many of them feel comfortable with the ambient temperature, chances are that the majority of them would prefer it hotter or colder, ideally. Perhaps they'd like the lights dimmer, or brighter. When I personally conducted this experiment on a class of students, out of 35 of them, exactly four were satisfied with the ambient environment of the classroom. That means close to 90% disapproved- and yet, of this 90% who disapproved of the ambient environment, not one took steps to alter it. You could argue that the effort required to alter the environment would be significant; but it wasn't that. In fact, the main reason why nobody changed the environment was that it did not cause them sufficient discomfort for them to want to expend the effort at all. Even if it was an effort as simple as walking over to the wall and changing the thermostat, they did not want to exert that effort.

Governments possess a significant amount of ontological inertia. The government exists, but to overthrow the government requires not only that the government be extremely unpopular, but requires that those people who are unhappy with it be willing to exert sufficient effort required to overthrow it- a non-trivial amount of effort, in fact, one that becomes even less trivial in environments where the government is operating to continue its existence, as most do.

The result is that plenty of places on this planet have governments that their people are unhappy with, and those governments continue operating. They may not be the best, but they are, essentially, 'good enough'- and good enough is generally entirely sufficient for most people.