Speak out against injustice and corruption. Fight for universal legal access. Restore people's lost faith that law and government can serve them. The battle for the Rule of Law starts now.
You are, as always, very articulate. I don't take issue with anything you've said. In fact I agree that the problem goes way back. One question: when and where did we ever see the Rule of Law holding sway? Was there a 'golden age' of the Rule of Law? Let's look at the history of the use of the term. I recall years ago (my exploration of the legal system began in the year 2000) when I first came across the term. I was at the Vancouver courthouse library (which, thank God, the public can access). I don't recall what I was reading when I came across the term. I didn't realize that 'rule' meant 'sovereignty' so I thought it was referring to an actual rule written down somewhere. That wasn't just a reflection on me. It was a reflection on how infrequently the term was being used even as recently as that. But I soon started learning and by the time Tom Bingham's book was in the bookstores I figured I wouldn't learn anything more by reading it. But I decided to buy a copy anyway and I was glad I did. It's not a bad place to start, especially considering who Bingham was. What he didn't talk about was the vast chasm between the lovely theory and reality.
Tom Bingham's book on the Rule of Law was magisterial, although I freely admit I couldn't get all the way through it -- something that says more about me than about his work. I don't know whether there was ever a golden age for the Rule of Law, but if it had never held sway, we wouldn't still be looking to it as a standard today. However well or poorly it used to work, it's worse now. Access to justice wasn't this bad 30 years ago. Governments weren't routinely ignoring FOI requests 30 years ago. SCOTUS wasn't writing permission slips for the president 30 years ago. Yes, the Rule of Law is aspirational; but that still requires us to actually aspire, to strive for it, to put in the effort. I feel like we've forgotten how to do that, and we need to relearn.
Here's a suggestion. I don't know how to do this, but it should be easy for the right person. I want to see how often 'the rule of law' was cited in Canadian media (mainly I guess the newspapers) each year starting from at least the year 2000 (and preferably earlier). My view is that the term came into wider use as merely a slogan for the legal profession to promote itself. This is self-defeating. Look at the little five stop tour Richard Wagner and (apparently just two) other SCC justices are commencing in Victoria in about two weeks: https://scc-csc.ca/150/index_eng.html. This is a mistake. What's the purpose? The problem I see is the monopoly. The efforts to sustain and protect it are getting more and more desperate. In contrast to that we have a hearing that was scheduled to start in a Federal Court courtroom today in Ottawa, part of the log saga of a Quebec Superior Court judge who has been allowed to use the system (at our expense) to remain a judge long after he should have been removed. And part of that story is the silence of the media
I have spent most of my recent professional life trying to instill the importance of these principles in the minds of the young lawyers who come and work with me.
Unfortunately, in my last round of interviews for new graduate lawyers, only 1 out of 20 candidates had any idea what I was talking about when I asked them what 'the Rule of Law' meant to them. All the candidates came from top law schools in Australia.
But what I do not understand - and what I think is part of the problem - is why you are only getting worked-up over this issue now?
I am no fan of Donald Trump. But I cannot see any difference between his open distain for the principles of the Rule of Law, and the hidden distain and neglect of the other side of politics (as well as the education establishment).
The reason no one respects (or has any idea of the importance of the principles of the Rule of Law), is because people think it is a political issue. People think it is a political issue because of emails like yours.
You conflate the demise of the Rule of Law in the US with Trump. Seriously? You think that is the real problem? Did you not see what the other guy was doing while in power and on his way out? Not to mention every other President of both persuasions in living memory.
By making it political, you have immediately alienated 50% of your audience for no good reason. More significantly, they are the 50% you need to convince - and they have already switched off the moment you mentioned Trump negatively! Preaching to the converted will not help buttress the Rule of Law. You need to convince the people who support Trump, not alienate them.
The principles of the Rule of Law are above politics. They are fundamental to our system. They are the bedrock on which politics takes place. The role of lawyers (and legal scholars) is to preserve the system - the fabric, and not undermine their own credibility with political discourse.
If you really care about the Rule of Law (and I believe you do), then this should have been something you felt strongly about, wrote impartially about, from the beginning. You would also not have made it political by conflating its demise with a single individual. The Rule of Law is constantly under attack - that is its very nature. It constrains power, and power does not like being constrained (whether it be in the hands of Biden, Trump, or billionaires).
I would really like to think that Trump has less respect for the Rule of Law than the last few Presidents, but unfortunately the record does not support that view.
As for Presidents hanging out with billionaires, it was only 4 years ago that Google and Meta openly said that they were actively banning and filtering out Trump to ensure he did not win. Musk was supporting the Democrats. You suggest that the proximity between money and politics is only a problem now?!
The fact that Trump is so much more 'unlikeable' should not mean that we attach our active support for the Rule of Law to his actions and hoped-for demise. We need to be better than that. Otherwise, no one who gives the issue any serious thought will truly respect what we have to say.
We need to highlight transgressions of the Rule of Law impartially, so that we build broad-based credibility, to thereby make real change. (That is sort of one of the principles of the Rule of Law…)
- Starting in the fourth paragraph, I make it clear that the failure of the Rule of Law did not begin with Donald Trump. The rich and powerful bent the law to their benefit long before today or even 2016; the poor and powerless have lacked the law's assistance even before then. But to imagine that the second Trump presidency does not pose unique dangers to the Rule of Law and the world in general is asking too much. If you really see no difference between Trump and other politicians in this regard, we'll have to agree to disagree.
- If someone reads my newsletter but immediately "switches off" the moment I speak negatively of Donald Trump, then there's no reason to expect that a fruitful dialogue and stimulating exchange of views would be forthcoming, if only I made more of an effort to be neutral and apolitical. Anyone who really believes that today's inauguration marks the beginning of a new golden age for America is not going to be moved by anything I have to say. We're eight years into this phenomenon at this point, and all the arguments have been made.
I am a legal journalist writing for Harvard. If you are aware of the objections to lawfare, there is no evidence of it in your comments. No mention of the new President's statement to Judge Merchan as that judge declared a "no sentence" final adjudication.
I offer to fill the glaring omissions in your thoughts. We must begin to speak to those who disagree with us. You seem to be committed to speak to only those who agree with you. That (You?) is part of the problem.
Take me invitation please and show you can listen to those who disagree with you.
You are, as always, very articulate. I don't take issue with anything you've said. In fact I agree that the problem goes way back. One question: when and where did we ever see the Rule of Law holding sway? Was there a 'golden age' of the Rule of Law? Let's look at the history of the use of the term. I recall years ago (my exploration of the legal system began in the year 2000) when I first came across the term. I was at the Vancouver courthouse library (which, thank God, the public can access). I don't recall what I was reading when I came across the term. I didn't realize that 'rule' meant 'sovereignty' so I thought it was referring to an actual rule written down somewhere. That wasn't just a reflection on me. It was a reflection on how infrequently the term was being used even as recently as that. But I soon started learning and by the time Tom Bingham's book was in the bookstores I figured I wouldn't learn anything more by reading it. But I decided to buy a copy anyway and I was glad I did. It's not a bad place to start, especially considering who Bingham was. What he didn't talk about was the vast chasm between the lovely theory and reality.
Tom Bingham's book on the Rule of Law was magisterial, although I freely admit I couldn't get all the way through it -- something that says more about me than about his work. I don't know whether there was ever a golden age for the Rule of Law, but if it had never held sway, we wouldn't still be looking to it as a standard today. However well or poorly it used to work, it's worse now. Access to justice wasn't this bad 30 years ago. Governments weren't routinely ignoring FOI requests 30 years ago. SCOTUS wasn't writing permission slips for the president 30 years ago. Yes, the Rule of Law is aspirational; but that still requires us to actually aspire, to strive for it, to put in the effort. I feel like we've forgotten how to do that, and we need to relearn.
Here's a suggestion. I don't know how to do this, but it should be easy for the right person. I want to see how often 'the rule of law' was cited in Canadian media (mainly I guess the newspapers) each year starting from at least the year 2000 (and preferably earlier). My view is that the term came into wider use as merely a slogan for the legal profession to promote itself. This is self-defeating. Look at the little five stop tour Richard Wagner and (apparently just two) other SCC justices are commencing in Victoria in about two weeks: https://scc-csc.ca/150/index_eng.html. This is a mistake. What's the purpose? The problem I see is the monopoly. The efforts to sustain and protect it are getting more and more desperate. In contrast to that we have a hearing that was scheduled to start in a Federal Court courtroom today in Ottawa, part of the log saga of a Quebec Superior Court judge who has been allowed to use the system (at our expense) to remain a judge long after he should have been removed. And part of that story is the silence of the media
I have spent most of my recent professional life trying to instill the importance of these principles in the minds of the young lawyers who come and work with me.
Unfortunately, in my last round of interviews for new graduate lawyers, only 1 out of 20 candidates had any idea what I was talking about when I asked them what 'the Rule of Law' meant to them. All the candidates came from top law schools in Australia.
But what I do not understand - and what I think is part of the problem - is why you are only getting worked-up over this issue now?
I am no fan of Donald Trump. But I cannot see any difference between his open distain for the principles of the Rule of Law, and the hidden distain and neglect of the other side of politics (as well as the education establishment).
The reason no one respects (or has any idea of the importance of the principles of the Rule of Law), is because people think it is a political issue. People think it is a political issue because of emails like yours.
You conflate the demise of the Rule of Law in the US with Trump. Seriously? You think that is the real problem? Did you not see what the other guy was doing while in power and on his way out? Not to mention every other President of both persuasions in living memory.
By making it political, you have immediately alienated 50% of your audience for no good reason. More significantly, they are the 50% you need to convince - and they have already switched off the moment you mentioned Trump negatively! Preaching to the converted will not help buttress the Rule of Law. You need to convince the people who support Trump, not alienate them.
The principles of the Rule of Law are above politics. They are fundamental to our system. They are the bedrock on which politics takes place. The role of lawyers (and legal scholars) is to preserve the system - the fabric, and not undermine their own credibility with political discourse.
If you really care about the Rule of Law (and I believe you do), then this should have been something you felt strongly about, wrote impartially about, from the beginning. You would also not have made it political by conflating its demise with a single individual. The Rule of Law is constantly under attack - that is its very nature. It constrains power, and power does not like being constrained (whether it be in the hands of Biden, Trump, or billionaires).
I would really like to think that Trump has less respect for the Rule of Law than the last few Presidents, but unfortunately the record does not support that view.
As for Presidents hanging out with billionaires, it was only 4 years ago that Google and Meta openly said that they were actively banning and filtering out Trump to ensure he did not win. Musk was supporting the Democrats. You suggest that the proximity between money and politics is only a problem now?!
The fact that Trump is so much more 'unlikeable' should not mean that we attach our active support for the Rule of Law to his actions and hoped-for demise. We need to be better than that. Otherwise, no one who gives the issue any serious thought will truly respect what we have to say.
We need to highlight transgressions of the Rule of Law impartially, so that we build broad-based credibility, to thereby make real change. (That is sort of one of the principles of the Rule of Law…)
So, a few things:
- Starting in the fourth paragraph, I make it clear that the failure of the Rule of Law did not begin with Donald Trump. The rich and powerful bent the law to their benefit long before today or even 2016; the poor and powerless have lacked the law's assistance even before then. But to imagine that the second Trump presidency does not pose unique dangers to the Rule of Law and the world in general is asking too much. If you really see no difference between Trump and other politicians in this regard, we'll have to agree to disagree.
- If someone reads my newsletter but immediately "switches off" the moment I speak negatively of Donald Trump, then there's no reason to expect that a fruitful dialogue and stimulating exchange of views would be forthcoming, if only I made more of an effort to be neutral and apolitical. Anyone who really believes that today's inauguration marks the beginning of a new golden age for America is not going to be moved by anything I have to say. We're eight years into this phenomenon at this point, and all the arguments have been made.
- I wrote about the Rule of Law, about its importance and the threats it faces particularly from lawyer inattention, in July 2023 (https://jordanfurlong.substack.com/p/what-are-you-prepared-to-do), June 2023 (https://www.slaw.ca/2023/06/13/the-fundamental-problem-with-the-rule-of-law/), and August 2022 (https://www.slaw.ca/2022/08/19/public-trust-legitimacy-and-the-rule-of-law/) -- all of them during the Biden and Trudeau administrations -- and in general about accessible justice many times before then. Whether you think what I wrote in the past was enough is up to you. But I'm writing on this today because I think the danger today is greater than it's ever been. There's not much more to it than that.
I am a legal journalist writing for Harvard. If you are aware of the objections to lawfare, there is no evidence of it in your comments. No mention of the new President's statement to Judge Merchan as that judge declared a "no sentence" final adjudication.
I offer to fill the glaring omissions in your thoughts. We must begin to speak to those who disagree with us. You seem to be committed to speak to only those who agree with you. That (You?) is part of the problem.
Take me invitation please and show you can listen to those who disagree with you.
Appreciate the offer to fill the glaring omissions in my thoughts, but I'm good.