Offspring of Depravity

The origins of the administrative state, and why they matter

To a degree that is, I think, unusual among other areas of the law, administrative law in the United States and, to a lesser extent, in Canada is riven by a conflict about its underlying institution. To be sure there, there are some constitutional lawyers who speak of getting rid of judicial review of legislation and so transferring the constitution to the realm of politics, rather than law, but that’s very much a minority view. Labour unions have their critics, but not so much among labour lawyers. But the administrative state is under attack from within the field of administrative law. It has, of course, its resolute defenders too, some of them going so far as to argue that the administrative state has somehow become a constitutional requirement.

In an interesting article on “The Depravity of the 1930s and the Modern Administrative State” recently published in the Notre Dame Law Review, Steven G. Calabresi and Gary Lawson challenge the defenders of the administrative state by pointing out its intellectual origins in what they persuasively argue was

a time, worldwide and in the United States, of truly awful ideas about government, about humanity, and about the fundamental unit of moral worth—ideas which, even in relatively benign forms, have institutional consequences that … should be fiercely resisted. (828)

That time was the 1930s.


Professors Calabresi and Lawson point out that the creation of the administrative state was spearheaded by thinkers ― first the original “progressives” and then New Dealers ― who “fundamentally did not believe that all men are created equal and should democratically govern themselves through representative institutions”. (829) At an extreme, this rejection of the belief in equality led them to embrace eugenics, whose popularity in the United States peaked in the 1930s. But the faith in expertise and “the modern descendants of Platonic philosopher kings, distinguished by their academic pedigrees rather than the metals in their souls” (829) is a less radical manifestation of the same tendency.

The experts, real or supposed ― some of whom “might well be bona fide experts [while] [o]thers might be partisan hacks, incompetent, entirely lacking in judgment beyond their narrow sphere of learning, or some combination thereof” (830n) ― would not “serve as wise counselors to autonomous individuals and elected representatives [but] as guardians for servile wards”. (830) According to the “advanced” thinkers of the 1930s, “[o]rdinary people simply could not handle the complexities of modern life, so they needed to be managed by their betters. All for the greater good, of course.” (834) Individual agency was, in any case, discounted: “the basic unit of value was a collective: the nation, the race, or the tribe. Individuals were simply cells in an organic whole rather than ends in themselves.” (834)

Professors Calabresi and Lawson are careful to stress that the point of their argument is not condemn the administrative state by association with the worst excesses of the times in which it originated. Rather, they want to push back against the trend, exemplified in articles such as Gillian Metzger’s “1930s Redux: The Administrative State Under Siege“, of treating the foundation of the administrative state as deserving of particular deference or respect. They explain that

[b]ecause there is no authoritative constitutional text emanating from the 1930s, any reasons for treating that decade as interpretatively sacrosanct must focus on the moral goodness of the ideas that grounded that period. Many of the intellectual currents that dominated the 1930s were, frankly, very bad. As a starting point for thinking about human affairs, one’s first instinct should be to run as far away from that decade as quickly as one can. More fundamentally, the bad ideas of the 1930s that specifically drove the construction of certain parts of the modern administrative state—belief in omnipotent government by socially superior experts under broad subdelegations of legislative power, with a formal (or rote) separation of powers seen as an anachronistic hindrance to modern scientific management of people, who are not ends in themselves but simply means to the accomplishment of collective nationalist or tribalist ends—are at the intellectual core of just about everything bad that occurred during that decade. (839)

Professors Calabresi and Lawson conclude that, instead of looking to the 1930s as a source of public law we should ― even on purely moral grounds, in addition to fidelity to law ― we should look to the 1780s and the 1860s. The former decade was marked by “libertarian and egalitarian commitments to replace European feudalism with something new and better”, (842) as well as to separation of powers; the latter, by important progress in the implementation of those libertarian and egalitarian commitments, initially admittedly honoured in the breach in many ways. Professors Calabresi and Lawson also appeal to another historical point: the signing of the Magna Carta at Runnymede in 1215, to which they trace what they call “the principle of legality, which says that executive and judicial actors can only act in accordance with preexisting law”. (863)


While I think it is a little, and perhaps more than a little, optimistic to connect this principle ― this formulation of the Rule of Law ― to the Magna Carta, it is supposed to be central to Canadian, and not only American, administrative law. As the Supreme Court said in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, “[b]y virtue of the rule of law principle, all exercises of public authority must find their source in law.  All decision-making powers have legal limits”. [28] But the belief in the superiority of administrative power wielded by alleged experts for what is deemed, by them, to be the public good is very much a part of our administrative law too, and it goes back to the same roots as that of the American champions of the administrative state. As co-blogger Mark Mancini has argued here,

the reasons marshalled for why we defer to administrative agencies are the same today as they were in the 1940s. … For the most part, Canadian administrative law continues to be stuck in the thrall of American Progressivism—by which I mean [the] school of thought[] dominant in the New Deal era.

As Mark notes, “in Canada, we had our own band of administrative law Progressives” ― though of course they looked to the United States for inspiration. (There’s anything wrong with looking to the United States, of course; that’s what I’m doing here!) But then again, we had also had our own band of eugenicist progressives too, some of whom have statues on Parliament Hill. And we had our more peculiar rotten ideas about government too. The 1930s were a bad time ― arguably an especially bad time― in Canada, as well as in the United States and, for this reason, the argument made by Professors Calabresi and Lawson is relevant to Canadians.

Of course, the Canadian constitution is not the same is the American one. In particular, it does not incorporate as strong a conception of the separation of powers. Arguments to the effect that the administrative state in its current form is unconstitutional are much less straightforward in Canada; perhaps they are wrong. Certainly the case against the delegation of legislative power is more difficult to make under the Constitution Act, 1867, than under the U.S. Constitution. But all this means is that the moral case made by Professors Calabresi and Lawson is that much more significant. If the modern administrative state is the misbegotten offspring of an especially depraved epoch, then it should be dismantled, even if it is not unconstitutional. (The case for it being constitutionally required, however, is that much weaker ― not that it had much strength to begin with.)

And the advice to look to the 1780s or the 1860s is applicable to Canada too. Admittedly, the 1780s do not hold the same significance for our constitutional history as they do for our neighbours. But the ideas of what Jeremy Waldron calls “enlightenment constitutionalism”, which Professors Calabresi and Lawson associate with the 1780s, are relevant to Canada. Indeed, our own constitutional arrangements implement some of what, as I suggested in my critique of Professor Waldron’s arguments here, were the Enlightenment’s signal contributions to constitutional thought ― federalism and judicial review of legislation. As for the 1860s, sapienti sat.


As I noted at the outset, the moral worth of the administrative state is not just a matter for political philosophers to debate. It is an issue that is tied up with the ongoing fights about the details of administrative law doctrine. Perhaps this worth is unconnected to its sinister origins. But I think that it is for pro-administrativists to make this case. And I am quite skeptical that they can succeed. As have noted a number of times, most recently here, “[t]he administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them”. It has come rather less far from its smug, authoritarian beginnings than its defenders would have us believe.

On the Origin of Rights

Are religious justifications for rights and equality inadmissible in Canadian politics?

Why have we got the fundamental rights we think we have? This is a somewhat embarrassing question for secular liberals, such as yours truly. We don’t have a very satisfactory answer to it. Our religious fellow-citizens, by contrast, have one, which is that rights come from God, in whose image (at least the Judeo-Christian tradition) human beings have been created. As it turns out, however, not everyone is okay with this answer being publicly aired, at least by a politician. This is puzzling to me, and worth a response.

The minor Twitter dustup of the week so far was triggered by the Conservative Party’s leader, Andrew Scheer, who wanted us all to know that he “believe[s] that we are all children of God and there is equal and infinite value in all of us”, from which it follows that no one is superior or inferior to anyone else on the basis of “race, religion, gender, or sexual orientation”. Pretty anodyne stuff, I should have thought. But not according to, well, a number of people ― one can never tell how many with these Twitter dustups. Emmett Macfarlane demanded that Mr. Scheer “[k]eep his imaginary shit out of [his] public policy”, eventually adding that”[i]t’s actually highly disagreeable to imply … that the equality of people is rooted in our status as ‘children of God'”. And I’ve seen other comments along these lines too. Perhaps, as Jonathan Kay suggested, “Canada has run out of real things to fight about”. But I take it that to Professor Macfarlane, and to others who think like him, this is a serious thing.


So here are some hopefully serious thoughts on this, from the perspective of one who does not share Mr. Scheer’s belief that human beings are children of God. To begin with, it’s necessary to recall that something like Mr. Scheer’s view was, historically, the foundation of the argument for the normative equality of human beings and the existence of fundamental rights inviolable by a political community. It was John Locke’s argument and Thomas Jefferson’s, for instance. The Declaration of Independence proclaimed, as “self-evident” “truths”, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Lord Acton would later write that “the equal claim of every man to be unhindered by man in the fulfillment of duty to God … is the secret essence of the Rights of Man”.

A Twitter interlocutor told me that this was of no import in Canada. Stuff and nonsense. Canada is very much an heir to the liberal tradition of which both Locke and Jefferson were among the founders, and Acton one of the great exponents. (The Canadian Charter of Rights and Freedoms, in particular, embodies this tradition ― and, in permitting individual rights to be set up as limits on public power, does so in a manner that is more Jeffersonian than the defenders of Canadian exceptionalism care to acknowledge.) Others have pointed out that Locke’s egalitarianism did not extend to the Aboriginal peoples of the New World. They might have added that Jefferson was, notoriously, a slave-owner who fathered children with an enslaved woman. Acton almost as notoriously, supported the slave-owners in the American Civil War, in a shockingly misguided and embarrassing defence of federalism. But I don’t think this matters here. Locke, Jefferson, and Acton fell short of their principles ― as human beings often do ― and this is to their individual discredit, but not to that of the principles which, had they followed these principles fully, would have prevented them from discrediting themselves.

More modern, secular statements about the origin of rights, meanwhile, are full of elisions and circumlocution. Article 1 of the Universal Declaration of Human Rights provides that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This is, up to a point, an echo of Jefferson’s words, but notice what’s missing here: any indication of why human beings are born free and equal, or how we know this, or who endowed them with reason and conscience. Section 1 of the Canadian Bill of Rights “recognized and declared that in Canada there have existed and shall continue to exist … [certain] human rights and fundamental freedoms”. This (like similar, if more laconic, language in section 2 of the New Zealand Bill of Rights Act 1990) is a recognition of the pre-political nature of rights, which are not created by whatever positive law implements them. But again, it is not clear how these pre-political rights came into being. The preamble to the Canadian Bill of Rights declares that “the Canadian Nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions”. The preamble to the Canadian Charter of Rights and Freedoms also refers to “principles that recognize the supremacy of God and the rule of law”. But the connection between these principles and the rights these instruments protect is left studiously undefined.

I am not saying that this is a bad thing. It’s probably more important to agree on our having rights than on the causes of our having rights. I share A.V. Dicey’s belief that it is more important to provide legal remedies for the violations of rights than to declare grand principles of rights-protection. Jefferson could consider the divine origin of rights self-evident, but in contemporary society neither his view nor any alternative can make such claims, and it is fortunate that we have gotten on with the practical business of providing legal remedies against the breaches of at least some important rights instead of debating the precise metaphysical reasons why we should do so.

It would be a long debate. We secularists cannot claim to know, collectively, where rights or equality come from. Some of us, individually, have hypotheses of course. There is Kant’s work on human dignity of course (arguably as mysterious as many a religious dogma). Jeremy Waldron (although he is no secularist, actually, as will soon be apparent), sets out a (multifaceted) justification for equality in his book One Another’s Equals. Another line of thought that I personally find appealing is based (non-religious) natural law, developed along the lines Randy Barnett sketches out. In a nutshell, this argument holds that, given certain facts about human nature ― perhaps especially our general tendency, all too well attested by history, to disregard the interests of those whom we do not consider to be (at least) our equals ― if we want to live peacefully and prosperously with one another, we really ought to consider each other as equals and as holders of certain rights. Intriguingly, the preamble of the Universal Declaration actually makes an argument of more or less this sort: “[w]hereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”. In other words, if we don’t commit to ideas like equality and some other fundamental rights, we can be pretty sure that things will turn out badly.

But none of that is, to use Jefferson’s words, self-evident. One can plausibly be a Kantian, a secular Waldronian, a latter-day natural lawyer, but one cannot plausibly insist that these explanations, or any one of them, are the only admissible ones. Nor can one specifically exclude religious explanations for equality or fundamental rights from the realm of admissibility. (That’s not to say one has to find them persuasive.) Professor Waldron himself writes that it “seem[s] obvious to [him]” that

an adequate conception of human dignity and of the equality that is predicated on that dignity is rooted in an understanding of the relation of the human person to God or in aspects of human nature that matter to God or matter for our relation to God[;] that human worth and human dignity are going to have to be rooted in something like a theological anthropology, a religiously loaded account of human nature. (177)

Professor Waldron acknowledges that these things are not obvious ― to put it mildly ― to many others; that “[m]any philosophers” ― or political scientists, like Professor Macfarlane, or others ― “are inclined to dismiss religious accounts of human equality as superstitious nonsense”. (178) He specifically addresses the concerns of those who would rather that religious arguments on such issues not be offered to the public. As read him, Professor Waldron speaks mostly to the position of the philosopher (not necessarily a professional one, but perhaps simply a philosophically-minded citizen), not that of the aspiring office-holder. But I think that his conclusion that “everybody calling it as they see it and giving the fullest and most honest account they can is superior to … embarrassed self-censorship about a matter this important” (213) is applicable to people in Mr. Scheer’s position, as well as in Professor Waldron’s. This is partly a matter of honesty both personal and intellectual, and partly also a consequence of the fact that, as noted above, for politics and law, our agreement on the existence of rights and the value of equality matters rather more than the reasons we might have for subscribing to this agreement. If some people want to sign on for religious reasons, we should welcome them and be glad of their company even if we do not find their reasons convincing.


So, despite not being religious, I would not purge the religious accounts of equality and fundamental rights from the realm of intellectually respectable ideas or from the public square. Indeed, I will end on a on wistful and worried note. Professor Waldron suggests that “perhaps some of the foundations” of our morality “have [a] nonnegotiable character;” (188) they must be obeyed and are not subject to revision in light of our other commitments. These foundations “may include the basic equality of all human beings, and I wonder whether a religious grounding might not be a good way of characterizing this particularly strenuous form of objective resilience”. (188) Perhaps the same might be said about liberty, or its more specific instantiations, such as the freedom of conscience and the freedom of speech.

And so, like Professor Waldron, I wonder whether a world, call it Jefferson’s world if you like, in which there was certainty about the origin of rights ― and about their divine origin, and hence transcendant importance, too ― was not one in which rights could be more secure than in our world of pluralist doubt. Against that, we must count the reality of, on the whole, much greater respect for rights today than in Jefferson’s own time and in his own life. Still, it is difficult not to worry that our lack of confidence about the origin of rights leaves them vulnerable to the rhetoric of those who see rights (and other legal and constitutional limitations) as dispensable luxuries or outright obstacles in their pursuit of plans for remodelling human beings, society, and the world in the name of this or that ideal.

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.


The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.


One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are
wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it in is cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights protections are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometime come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Ce qui compte

Que le projet de loi anti-religieux du Québec soit ou non raciste ou islamophobe est sans importance. Ce qui compte, c’est son illibéralisme

Dans le débat autour du Projet de loi 21, la législation mise de l’avant pour faire de la laïcité la doctrine religieuse officielle du Québec et pour imposer une tenue vestimentaire fondée sur ce dogme aux enseignants, juristes et policiers de la province, on consacre beaucoup d’attention à la question de savoir si ce projet est un reflet du racisme, de l’islamophobie ou d’une autre forme de discrimination. Ceux qui critiquent le projet de loi le disent souvent. Ceux qui le défendent, et même certaines personnes qui ne le font pas, s’en déclarent offusqués et insistent pour dire que la forme agressive de laïcité que le Québec cherche à imposer découle d’une vision politique fondée sur des principes. Or, il me semble que tout cela est sans importance. Que le Projet de loi 21 soit le produit de la discrimination ou de principes fondamentaux importe peu. Il est tout aussi abominable dans un cas comme dans l’autre.

Je dois dire que, personnellement, je me doute bien de ce que la xénophobie contribue, de façon plus que négligeable, au soutien politique dont bénéficie le Projet de loi 21. Sans une peur irrationnelle d’un « envahissement », des étrangers (réels ou supposées tels) qui « imposent leurs façons de faire » aux populations existantes (30, 50, voire 100 fois plus nombreuses), l’ambition des tenants de la laïcité dogmatique d’imposer leur croyance au Québec serait selon toute vraisemblance restée parfaitement théorique. Elle l’a été, après tout, des décennies durant, avant que cette peur ne fût gonflée suite à la décision de la Cour suprême dans Multani c Commission scolaire Marguerite-Bourgeoys, 2006 CSC 6, [2006] 1 RCS 256, alias l’affaire du kirpan. On nous demande certes de nous rappeler la relation unique et troublante qu’a entretenue le Québec avec la religion (catholique), mais l’appui à la laïcité virulente était sans commune mesure avec son niveau actuel à une époque où, pourtant, la mémoire de cette relation était bien plus vive qu’elle ne l’est à présent. Cependant, quoi qu’il en soit en général, on devrait probablement être réticent à l’idée de lancer des accusations de xénophobie à des individus ― à moins, bien sûr, d’avoir des raisons spécifiques de le faire dans leur cas particulier.

Concentrons-nous donc sur les principes qu’on prétend justifier le Projet de loi 21. Présumons, pour les fins de l’argument, que ceux qui l’appuient croient réellement que, pour citer Christian Rioux dans Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Pourquoi ont-il néanmoins tort? Tout simplement, parce que cette forme de laïcité requiert de grossières violations de la liberté individuelle. Elle veut dire que l’État peut imposer aux individus une façon particulière de pratiquer ou de ne pas pratiquer leur foi ― leur dire, donc, s’ils pourront ou non vivre selon leurs valeurs fondamentales. M. Rioux soutient que le Projet de loi 21 ne fait rien de tel, puisqu’il n’affecterait pas le droit de vivre sa foi, mais seulement le « droit de l’afficher pendant les heures de travail » ― comme si on pouvait avoir une foi à temps partiel. L’idée est risible. Si on demandait à M. Rioux de porter une kippah, mais seulement pendant les heures de travail, ça lui irait? (C’est pour cette raison que les tentatives, fréquentes, de dresser une analogie entre le Projet de loi 21 et les interdictions sur l’auto-identification politique ne fonctionnent pas : l’engagement politique, lui, est toujours à temps partiel, même pour un partisan endurci, et peut être mis de côté, puis renouvelé, alors que la foi religieuse ne le peut pas.)

Il va sans dire, l’État peut limiter, voire nier, la liberté d’une personne pour l’empêcher de s’en servir pour porter atteinte à la vie, à la liberté ou aux biens d’autrui ; et, peut-être, pour l’empêcher de nier l’appartenance égale d’une autre personne à la communauté. Or, les détenteurs de charges publiques ou les employés de l’État qui refusent de se convertir à une religion à temps partiel ou de faire acte d’apostasie ne font rien de tel. Ils ne volent personne, ils n’empêchent personne de faire quoi que ce soit, ils n’imposent leurs croyances à personne. Ils sont, bien sûr, manifestement identifiables comme appartenant à une confession religieuse ou une autre, mais la plupart de nous sommes manifestement identifiable comme apparentant à un genre ou à un groupe racial plutôt qu’un autre. Une enseignante musulmane qui porte le hijab ne fait pas plus de ses élèves des Musulmans qu’un enseignant blanc n’en fait des hommes blancs. (Il est bien sûr possible qu’une enseignante ou un fonctionnaire croyants fasse du prosélytisme ou accorde un traitement de faveur à un co-religionnaire. C’est cela qu’il faut réprimer, le cas échéant, tout comme il faut réprimer la propagande ou le favoritisme fondés sur d’autres aspects d’une identité personnelle.)

Sauf que, pour leur part, les obsédés de la laïcité qui soutiennent le Projet de loi 21 acceptent que l’État dénie la liberté individuelle pour bien d’autres raisons encore. M. Rioux écrit que, « [f]ace au multiculturalisme qui tente d’imposer partout sa pensée unique, le premier ministre a eu raison d’affirmer dimanche dernier que “c’est comme ça qu’on vit ici” », parce que « les Québécois ont beaucoup plus qu’une langue en partage ». Passons outre, encore une fois, l’ironie d’une dénonciation de la pensée unique conjuguée à l’insistance que l’État peut priver les citoyens de leur liberté au nom de la façon dont on « vivrait ici » et de ce qu’on aurait, supposément, « en partage ». Si M. Rioux n’était pas un hypocrite, l’idée qu’une façon de vivre officiellement reconnue ― réputée largement partagée malgré et, en fait, précisément en raison de l’évidence frappante du fait qu’elle ne l’est pas ― peut être imposée par la force par l’État à ceux qui n’y souscrivent pas ne serait ni moins fausse ni moins pernicieuse. Cette idée, c’est la prétention que ceux qui détiennent le pouvoir sont autorisés à dicter leurs croyances et leur façon de vivre à tous, pour la seule et unique raison qu’ils détiennent le pouvoir. Elle est incompatible avec toute liberté digne de ce nom.

Bien entendu, cette opinion illibérale est largement répandue. Elle n’est le propre d’aucun groupe racial ou religieux, d’aucune nation. M. Rioux en appelle, à l’encontre des accusations d’islamophobie, au fait qu’une large majorité de Musulmans français seraient favorables à des restrictions similaires à celles qu’imposerait le Projet de loi 21. Ils ne peuvent pas être islamophobes, eux, n’est-ce pas? C’est très juste, et sans pertinence aucune. Un Musulman français peut être tout aussi illibéral qu’un Canadien français catho-laïque. D’ailleurs, les chouchous judiciaires des intellectuels canadiens bien-pensants se sont montrés tout à fait capables de verser dans l’illibéralisme de cette sorte quand ils ont invoqué de mythiques « valeurs communes » pour permettre à un organe de l’État de nier une accréditation à une institution religieuse dissidente.

Le dire maintenant peut sembler étonnant, mais le débat autour du Projet de loi 21 démontre aussi bien que n’importe quel autre ne pourrait le faire que l’égalité, et les -phobies et les -ismes qui l’accompagnent, prennent beaucoup trop de place dans notre pensée et notre discours. Il ne s’agit pas de dire que ces choses sont sans importance. Cependant, ce qu’il y a de mauvais dans notre vie publique n’est pas toujours mauvais parce que cela contrevient à la valeur d’égalité. Par ailleurs, ce qui n’y contrevient pas n’est pas forcément permis pour autant, et ce qui contribue à la réaliser n’est pas, dès lors, requis. Il est temps qu’on se rappelle que la liberté est tout aussi importante ― mieux encore, qu’on réalise qu’elle est plus importante, mais je n’en demande pas autant tout de suite. Il est temps qu’on se rappelle que les individus en chair et en os, et non des abstractions rêvées ou des communautés imaginées, sont ce qui compte. Il est temps qu’on cesse de craindre l’usage que feraient les autres de leur liberté si on ne les menottait pas par prévention. Il est temps qu’on soit libre.

What Really Matters

Whether Québec’s anti-religious bill is racist or Islamophobic is beside the point. What matters is its illiberalism

In the debate about Bill 21, Québec’s proposed legislation to make “laicity”, whatever exactly that is, the province’s official religious doctrine, and to impose a correspondingly faith-based dress code on its teachers, lawyers, and police officers, much attention is being devoted to the question of whether the endeavour reflects racism, Islamophobia, or other forms of discrimination. The proposal’s critics often say that it does. Its defenders, and indeed some critics, profess offence at the suggestion, and insist that the aggressive form of secularism the Québec seeks to enforce is a principled political vision. It seems to me that this all quite beside the point. Whether or not Bill 21 is the product of discrimination or of high principle does not matter. It is equally despicable either way.

Now, I should say that I personally have little doubt that xenophobia makes a more-than-deminimis contribution to such political support as there is for Bill 21. Without an irrational fear of “invaders”, of foreigners (actual or presumed) who “impose their customs” on the established populations (which outnumber them by 30- or 50- if not 100-to-1), the ambitions of dogmatic secularists to impose their creed on Québec would in all likelihood have remained perfectly theoretical. This is, after all, what they had been for decades, before this fear started being inflated in the wake of the Supreme Court’s ruling in Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, a.k.a. the kirpan case. For all that we are asked to remember Québec’s uniquely fraught relationship with (Catholic) religion, there was nothing like the current degree of support for virulent secularism at a time when the memories of this relationship were fresher than they are now. Still, whatever may be the case in general, we should probably be reluctant to make accusations of xenophobia against individuals ― unless, of course, we have specific reasons to do so in their particular case.

Let us focus, then, on the supposed principled justifications for Bill 21. Let us presume, for the sake of argument, that its supporters really believe that, as Christian Rioux put it in Le Devoir, “the diversity of modern societies makes state secularism an increasingly unavoidable requirement. The pluralist societies are, more citizens demand that the state’s religious neutrality be beyond reproach” (translation mine here and below). Let us ignore the delightful irony of a man named Christian preaching secularism. Let us even avert our eyes from the sleight-of-hand involved in the equation of “state neutrality”, which as the Supreme Court explained in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3, “is required of institutions and the state, not individuals”, [74] with the “neutrality” of men and women who work for the state. Let us concede, or imagine, that the supporters of Bill 21 believe in good faith that their vision of secularism is morally justified.

Why are they wrong? Simply because this form of secularism involves gross violations of individual liberty. It means that the state gets to tell people how, or how not, to practise their faith ― whether they will be allowed to pursue their fundamental commitments. Mr. Rioux denies that Bill 21 does any such thing, since it only affects “the right to publicize [one’s religion] during working hours” ― as if one could have a part-time faith. This is laughable. If Mr. Rioux were asked to wear a kippah, but only during working hours, would that be all right by him? (This is why the frequent attempts to analogize the policy of Bill 21 to bans on political self-identification do not work: political commitments are indeed part-time things, even for hardened partisans, and can be set aside and then resumed, in a way that religious commitments cannot.)

Needless to say, the state may limit or even take away a person’s liberty to avoid it being used to interfere the life, liberty, or property of others; and, perhaps, to avoid it being used to deny others’ equal membership in the community. But public officials or employees who refuse to convert to part-time religion or to commit apostasy do no such thing. They do not take anyone’s property; they do not deprive anyone of their ability to do anything; they do not impose their beliefs on anyone. Sure, they are visibly, manifestly, identifiable as having a religious affiliations; but most of us are visibly, manifestly identifiable as members of particular genders and racial groups, not to mention as being of a certain age. A Muslim teacher wearing a hijab no more makes her students Muslim than a white male teacher makes his students white men. (Of course it is possible that a religious teacher or public servant will engage in proselytism, or unduly favour co-religionists. These things should be punished, just as propaganda or favouritism based on other commitments or aspects of one’s identity should be punished.)

The secularist obsessives supporting Bill 21, however, have a much more expansive view of the reasons for which the state can deny people’s liberty. Mr. Rioux writes that, “faced with a multiculturalism that seeks to impose its single-minded thinking everywhere, the premier [of Québec] was right to assert … that ‘this is how we live here'”, because “Quebeckers have much more than a language in common”. Never mind, again, the irony of denouncing single-minded thinking while insisting that a state may deprive citizens of liberty in the name of “how we live here” and of what they purportedly “have in common”. Were Mr. Rioux not a hypocrite, the idea that state-sanctioned ways of doing things ― said to be widely or even universally shared despite, and indeed precisely because of, glaring evidence of the fact that they are not ― can be imposed by force on those who do not share them would be no less wrong-headed, and no less pernicious. This idea purports to authorize those in power to dictate their beliefs and their ways of living to everyone, for no other reason than that they are in power. It is incompatible with any liberty that deserves the name.

Of course this illiberal view is widely held. It is not confined to any particular racial or religious group, or any nationality. Mr. Rioux appeals, against the charge of Islamophobia, to the fact that a large majority of French Muslims apparently support restrictions similar to those that would be imposed by Bill 21. They can’t be Islamophobes, can they? This sounds like a good argument, so far as it goes, except that it doesn’t go anywhere that matters. A French Muslim can be as illiberal as a French Canadian lapsed Catholic. For that matter, the judicial darlings of Canada’s bien-pensant multiculturalist intelligentsia have proven themselves quite capable of this sort of illiberalism when then invoked mythical “shared values” to authorize an arm of the state to deny an accreditation to a religious dissenting institution, in Law Society of British Columbia v Trinity Western University, 2018 SCC 32.

It might be odd to say so now, but the debate around Bill 21 shows as well as any other that equality, and its attendant -phobias and -isms, occupy too large a space is our thought and discourse. This is not to say that these things do not matter. But not everything that is wrong in our politics is wrong because it contravenes the value of equality. Nor is anything that does not contravene this value therefore permitted, or anything that supports this value therefore required. It is time we remembered that liberty is no less important ― or, better yet, that we realized that liberty is more important, but I am not asking for everything at once. It is time we remembered that living individuals, not intellectual dreamt-up abstractions or imagined communities, are what really matters. It is time we stopped fearing the way in which others might use their liberty if we do not preemptively coerce them. It is time we were free.

Sed Lex?

Thoughts on Ilya Somin’s defence of non-enforcement of the law

In a recent Volokh Conspiracy post, Ilya Somin argues against the common view that laws ought to be enforced and obeyed regardless of their moral flaws. On this view, the existence of a law is warrant enough to inflict punishment on anyone who breaks it. Professor Somin cites the case of Tammie Hedges, a woman from North Carolina who looked after two dozen pets whose owners could not take them with them when fleeing the recent hurricane and, for her troubles, has been arrested and charged with 12 counts of practising veterinary medicine without a license.

Professor Somin argues

that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges … . But the same principles apply far more broadly.

Professor Somin refers to the historical example of the legislation that required fugitive slaves to be returned to their “owners”, pointing out that “[t]oday, we praise … antislavery activists who” broke them, “and condemn government officials who tried to prosecute” these activists. And, in our own time, Professor Somin cites immigration and anti-drug laws as examples of legislation whose enforcement deserves condemnation, not praise.

I have a great deal of sympathy for the position Professor Somin advances, but I think that things are a bit more complicated than he lets on. Professor Somin recognizes that “there is room for reasonable disagreement about which laws are justifiable to enforce”, but does not consider the implications of such disagreement beyond saying that “[i]n a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical ‘enforce the law’ approach to political morality”. Accepting that this is so does not really make the question of when it is possible to excuse or justify non-enforcement ― and of who is supposed to be making such judgments ― go away.

Consider the subject of my last post: the prospect of enforcement by Québec’s Chief Electoral Officer of legislation that effectively bans interventions in election campaigns by civil society actors, except if a “periodical” or a “radio or television station” agrees to carry it free of charge, as part of its news or editorial content, against an environmentalist NGO, Équiterre. Équiterre’s offence is that it has had the temerity of posting, on its own website, a questionnaire detailing the policies of the main provincial parties on various environmental issues, and expressing approval or disapproval of these positions. I argue, in my post, that Québec’s legislation outlawing such perfectly justifiable attempts to influence public opinion is draconian, and that it should be repealed and/or challenged in court and declared unconstitutional. Yet I also say that the Chief Electoral Officer is justified in enforcing the law until, in one way or another, it is law no longer. I made the same argument in a very similar situation four years ago, during the last provincial election campaign, and criticized the Chief Electoral Officer for backtracking on the basis of what I thought was a tortured interpretation of the applicable legislation.

On Professor Somin’s view, I am probably wrong. I think that the law at issue is morally unjustified. Why should I want the authorities to enforce it and put the people who quite rightly object to it to the trouble, expense, and uncertainty of litigating against it or lobbying for its repeal? If the Chief Electoral Officer declines enforcing an unjust law, shouldn’t I be happy? The reason I’m not has to do with the interaction between law and reasonable disagreement.

I have strong views about the injustice (and unconstitutionality) of Québec’s legislation, but others do not share them. The leader of Québec’s Green Party, for instance, has denounced what he sees as “meddling” by Équiterre and other environmentalist groups in elections, claiming “these groups have chosen to exclude the Green Party of Québec from their analysis”, and that this “exclusion … is a political act that undermines our credibility among the voters in the midst of an election campaign”. This nicely captures the policy of Québec’s legislation (and its federal analogue too, albeit that the latter is less draconian): achieving fair competition among political parties, at the expense of everyone else’s liberty. Plenty of people support this policy, at least in the abstract (though many get queasy when they discover that it can actually be applied to people and groups with whom they sympathize).

As I said in my recent talk on the Trinity Western cases at the Centre for Constitutional Studies, in a pluralistic society we constantly disagree about values and justice, and the law for the time being is the one thing we have in common. I take Professor Somin’s point that law is not like the rules of a club that we have knowingly joined and are free to leave; its claims to our assent are incomparably weaker. Still, we do benefit from the existence of this common reference point, which allows us to maintain a well functioning community despite our sometimes radical disagreements.

Consider, for example, one of Professor Somin’s example: immigration laws. I happen to agree with him that they are unjust in preventing persons “fleeing violence and oppression” ― includig economic oppression that typically doesn’t give rise to an entitlement to refugee protection ― from obtaining safety. Sadly, plenty of people think that the problem with existing immigration laws is the opposite: they still allow some people to come to Canada or the United States. If these people take it upon themselves to remedy what they see as injustice ― say by preventing prospective refugee claimants from reaching a border, or by hacking into a government computer system to destroy would-be immigrants’ applications ― how would we feel about that? We want, I think, to be able to say more than “your sense of justice is wrong”, and get into a shouting match about whether we or they are right. Pointing to the law is the best we can do ― but we can only do it if we too are law-abiding. The point, of course, is not that the existing immigration law is, substantively, a sort of half-way house between the wishes of open borders types and wall-builders; it’s that, to repeat, it is a common reference point that exists independently of our subjective views about justice.

Now, it is essential that opportunities to revise the law exist, and highly desirable that some of involve counter-majoritarian procedures, such as judicial review of legislation. The rules that provide these opportunities are valuable ― indeed, probably more so than any substantive laws by themselves ― and worth supporting. When people disobey the law instead of using these procedures, they undermine not only the law that they are actually disobeying, but the whole system of law as the means of provisional resolution of our disagreements with our fellow citizens, as well as the normal procedures for revising this settlement from time to time.

This is especially so when the people at issue are not ordinary citizens, but the very persons charged with implementing the law. Professor Somin does not really address this distinction, but I think it is important. Civil disobedience by a citizen (or a business) can be admirable, but I am very skeptical indeed of civil disobedience by officials. Unlike citizens, officials who decline to enforce the law, if they do it consistently, can effectively change the law ― even though in most cases they are not authorized to do so. This subversion of the normal procedures for changing the law, whether democratic or judicial, risks doing more harm in the long run than it does immediate good.

But of course it is just as, and perhaps more, likely, that the disregard of a law by official charged with enforcing it will not consistent and even-handed. Sympathetic law-breakers ― sympathetic, that is, either in the eyes of the officials themselves, or in those of the public, like Équiterre ― will get a pass, while others will not. How many of Équiterre’s defenders would take the same position of the Chief Electoral Officer went after a right-wing think-tank? Non-enforcement of the law is likely to be arbitrary, and that too is a long-term evil that has to be weighed against any short-term benefits it may have in particular cases.

Now, of course there are extreme cases. Slavery is one. In a very different way, of course, the story of Tammie Hedges is another ― extreme in its senselessness if not in its savagery. As I said at the outset, I am sympathetic to Professor Somin’s view that law does not have an automatic claim to obedience ― certainly not from citizens, and perhaps not even from officials, though I think that it is often the case that an official ought to resign from his or her position rather than subvert the law by selective non-enforcement. The trouble is that any line one draws between extreme cases is likely to be subjective and blurry. I don’t have a good way of dealing with this problem, which probably takes away from whatever force my objections to Professor Somin’s position might otherwise have had. Still, I wanted to explain my disquiet in the face of what strikes as a far-reaching argument against the authority of law. “The law is harsh, but it’s the law” can indeed be a callous and highly objectionable position. And yet, the law has a value of its own that appeals to justice are liable to disregard, and it’s a value that I would like to hold on to, even though I too think that many of our laws, considered individually, are seriously unjust.