Thursday, July 23, 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 21, Dyzenhaus writes: 

Recently, I have written two popular articles on the demise of the rule of law. The first focused on the U.S. and on Adrian Vermeule, an influential Harvard law professor, who is a follower of the German fascist legal theorist Carl Schmitt.

Vermeule embraces Schmitt’s claim that the fundamental distinction of politics is that between friend and enemy; that society will be stabilized only once it consists of friends united by an anti-liberal vision of the common good in which a militantly reactionary version of Catholicism can feel at home; that law should be used as the instrument of this vision; that judges will do their duty when they show loyalty to it; and that the chief executive is best placed in the constitutional order to articulate and implement this vision.

That embrace of course chimes ominously with what we can think of as a Trumpian theory of law and politics, one shared by Trump’s Attorney General William Barr.

The second article focused on the U.K. and the role of John Finnis, the retired Oxford law professor and prominent Catholic natural law thinker. 

There is no evidence that Finnis or his protégés have read, let alone been influenced by, Schmitt. But I argue that their interventions in public debates about the constitutional issues, most prominently  in the debates about Brexit, follow a Schmittian logic aimed ultimately at freeing a strong executive from parliamentary and judicial control, so that society can be stabilized on the basis of an anti-liberal vision of the common good.

I note that PM Boris Johnson’s prorogation of Parliament in order to try to escape its scrutiny during a crucial stage in Brexit negotiations was Finnis’s brainchild and that the U.K. Supreme Court’s invalidation of that prorogation was met with anger by Finnis and his main protégé, Richard Ekins, also an Oxford law professor, who seems to have the ear of government and who is arguing for a project of reform which will cut the judiciary down to size.

Ekins has even suggested that the judges of the U.K. Supreme Court who recently read a privative clause in a statute as not ousting all judicial review should be removed from office for disloyalty to the constitution, a step which he claimed, quite astonishingly, would not compromise judicial independence. He thus advocated the kind of tactic so successfully deployed in Viktor Orbán’s Hungary and in Poland over the last few years of using mechanisms of judicial discipline to ensure a compliant judiciary at the same time as maintaining a façade of the rule of law and of constitutionalism.  

I think that most Canadian lawyers would be aghast if this kind of suggestion were made here, at least since Ivan Rand’s counter in Roncarelli v. Duplessis [1959] S.C.R. 121 to the thought that a statute could put the executive beyond the reach of the rule of law: “there is always a perspective within which a statute is intended to operate.” And with the Charter, that sense of perspective was broadened to include the substantive liberal values with which statutes as well as executive action must comply.

But it would be a mistake to suppose that Canada enjoys some kind of immunity. I do not have in mind here the clumsy way in which Trudeau and his team approached the SNC-Lavalin remediation issue, but that it was common knowledge during the last years of Stephen Harper’s prime ministership that he would fill judicial vacancies with mainly conservative judges, some of whom were openly opposed to judicial guardianship of the fundamental legal commitments of the Charter.

In addition, it is not that the kind of autocratic tendencies to which the Supreme Court was reacting in the 1950s have disappeared from the Canadian political landscape. The Ontario legislature has before it a bill — An Act to enact the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 — which, while purporting to end the public health emergency will give the premier emergency powers for a year, without the possibility of the legislature being able to hold the government to account. This bill has to be evaluated in a context that predates the current health crisis.

Soon after coming to power, Premier Doug Ford retaliated against the Toronto city council for its past treatment of him and his brother by having the legislature enact a statute halving the number of seats midway through a council election. The majority of the Ontario Court of Appeal found that the statute did not limit freedom of expression and the matter will fall to be decided by the Supreme Court.

Ford also decreed that students should be allowed to opt out of paying fees to student associations and stated in a fundraising letter that he had stopped the “crazy Marxist nonsense student unions get up to.” In Canadian Federation of Students v. Ontario (Minister of Training, Colleges and Universities) [2019] O.J. No. 5868, the Ontario Divisional Court quashed the decree, relying heavily on the U.K. Supreme Court’s decision in the prorogation matter.

Justice Rand sought long ago in Roncarelli to have us not forget that, were courts to permit the state to act on the basis of the “arbitrary likes, dislikes and irrelevant purposes of public officers,” it would “signalize the beginning of disintegration of the rule of law as a fundamental postulate of our con­stitutional structure.”

As lawyers dedicated to upholding the rule of law, we should not be complacent about our present situation, particularly when our political leaders may be tempted to accrue more power for the future during the very real crisis which currently afflicts us.

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