When it is not plagiarism in a Court decision

The Philippine Supreme Court has resolved the issue of whether a Justice plagiarized the work of others.  In the course of its deliberations, the Court clarified that there are certain instances which cannot amount to plagiarism.

In its decision, the Court in effect correctly held that plagiarism is intellectual dishonesty or theft, in which case, mens rea is a necessary element.  In the case, the lack of attribution was explained as an accident.  It was explained as human error on the part of a Court Researcher who contributed to the drafting of the decision. The resolution states:

“But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions.”

Thus, there being no intent on the part of the researcher or the Court to pass off the work of others as their own, there cannot be plagiarism.

There are certain passages — specifically eight sentences from a scholarly article,  A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent (Yale Journal of International Law, 2009) — where there was no attribution to authors Criddle and Descent in the Vinuya decision. [1]  But here, the Court explained that, apart from the accidental deletion of attribution, it appears that there was no longer a duty to attribute because the passages involved basic ideas or facts, which of course are not subject to copyright.  The Court explained:

“The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm.”

In a Facebook post, the petitioners who originally alleged plagiarism have stated that they defer to the Court’s judgment on the matter of plagiarism.

As Shakespeare once said, “All’s well that ends well.”  Of course, the idea of a happy ending is one that also already belongs to the public realm.  Still, if I hadn’t really read Shakespeare but cited him just to show off, I would be intellectually dishonest but completely free of plagiarism.

So there, “plagiarism” is a double-edged sword after all.  This is fair because otherwise there would be little progress in clarifying and cementing good ideas in human discourse.

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PS:  Of course, once the Court has admitted to the lack of attribution, even if unintended, there now arises a duty to fill the gap.  Why?  Because knowledge of the lack of attribution is now present, and leaving the matter “as is” would re-open the charge of plagiarism.  After all, the original decision with passages lifted from certain authors without the proper attribution seemingly stands.

However, it would seem possible to argue that the decision on the plagiarism case by itself fills the gap.  This would be because the Supreme Court ordered that a copy of its decision on the plagiarism case be delivered to the authors who raised the issue of plagiarism, and the decision does admit, for example, that whole sentences were lifted from a scholarly article — including the authors’ footnotes — without attribution.

It is possible that the authors may nonetheless choose to disagree with the Court’s approach to “closing” the plagiarism issue, especially if no corrigenda to the Vinuya decision (to incorporate the originally missing attributions)  are made on the Court’s website.  But perhaps that’s another matter.

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[1] The eight sentences were:

‘xxx In international law, the term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom.  Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority.71

Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that “there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens.”76 In a commentary accompanying the draft convention, the ILC indicated that “the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals.”77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78′


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