Thursday, July 30, 2020

David Dyzenhaus is a University professor of law and philosophy at the University of Toronto. 

In an article for The Lawyer's Daily, published July 27, Dyzenhaus writes: 

On July 21, in The Lawyers Daily I wrote about the demise of the rule of law and the potential for its decline in Canada. I focused on the problem of arbitrary government decisions, particularly when executives seek to use the law to put themselves beyond the reach of the rule of law. My main example was the Reopening Ontario (A Flexible Response to COVID-19) Act, the “flexibility” of which resides in the autocratic powers the Progressive Conservative government has given to itself for a year. That law was rammed through the Ontario legislature on the day my article appeared.

Here I respond to a reader’s point that when many people think of the decline of the rule of law, they worry more about the individuals who blockade bridges, railways, roads and pipelines with no police intervention or charges laid, as well as the occupation of downtown Portland. That point raises an important set of issues for the rule of law. But it also seems to depend on some mistaken assumptions.

The first situation referred to is of course the protests over the construction of the Coastal GasLink Pipeline through Wetʼsuwetʼen First Nation territory in British Columbia. Those protests quickly grew in both scope and size, as they became about the ongoing injustice of Canada’s treatment of Indigenous peoples and spread across the country, causing significant economic damage and disrupting the lives of many.

While these protests often involved acts of lawbreaking, and the authorities often were slow to enforce the law or lay charges against those involved, there was no problem from a rule of law perspective. For these were acts of civil disobedience, that is, disobedience to particular laws in order to alert both the public and the political authorities to the fact that the law is being used as an instrument of a great injustice which remains part of Canada’s political and legal fabric. Moreover, the injustice to which they point is arguably that the Canadian state is not living up to the rule of law. Rather, it is enforcing a settler-colonial set of rules, thereby continuing to disrespect commitments the Crown once made.

In contrast, there is without doubt a rule of law problem in downtown Portland. But it is not caused by the protests there, which are for most part ongoing acts of civil disobedience. It is not even caused by the occasional looting, arson and violence that tends to happen alongside such protests. The latter is just ordinary criminal activity and the local authorities and police force are more than up to the task of responding to it. The rule of law problem comes from the fact that President Donald Trump has moved the border of the U.S.A. inside of Portland by deploying federal border forces to use against U.S. citizens the kind of violent and often illegal tactics they get away with in the borderlands, and which tend to go unnoticed when used against nameless “aliens.”

Recently, John Yoo, the U.S. law professor and infamous author of the “torture memos,” which sought to legally sanitize the use of torture by the CIA after 9/11, has advised the Trump administration that it can continue with these tactics simply by refusing to prosecute acts of state criminality. Such condonation of official illegality would be of a piece with Trump’s pardoning of Sherriff Joe Arpaio and others, his commutation of Roger Stone’s sentence and the attacks of his Attorney General William Barr on the justice system which he oversees. But from a rule of law perspective, Portland and Yoo’s proposal are more troubling.

In my article last week, I referred to two earlier pieces in which I discuss the influence of the German fascist lawyer Carl Schmitt on thinking today. As I set out in one of these, Schmitt provided the legal cover for the federal government’s coup against Prussia in 1932 whereby the conservatives in charge of the government first provoked a situation of unrest in Prussia and then invoked its emergency powers under the Weimar constitution to take over Prussia, thus getting rid of the last major bastion of commitment to the rule of law and democracy. That laid the basis and set a precedent for Hitler’s rise to power, a story well told by Benjamin Carter Hett in his recent book The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic. I challenge anyone to read this fine account (by a Toronto-trained lawyer turned historian) of the fragility of democracy and the rule of law without finding terrifying resonances with the world we live in today.

In analyzing our current predicament, we need therefore to be alert to a distinction between a situation of widespread acts of civil disobedience and the situation in which a government succeeds in putting itself beyond the reach of the rule of law. In the latter, citizens find themselves subject not to law but to the arbitrary power of their rulers. They live in what the German lawyer Ernst Fraenkel, in his analysis of the Nazi state, called a Prerogative State — a state in which officials are a “law unto to themselves.”

This article was originally published by The Lawyer’s Daily ( a division of LexisNexis Canada