What is the rule of law vs. rule by law? transcript

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode two, “What is the Rule of Law versus Rule by Law?” This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host. 

Jon Festinger

I'm Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and I teach at UBC's Allard School of Law and TRU's Faculty of Law.

Today, we are honored to have Dr. Catherine Dauvergne Q.C. join us. She was Dean of UBC's Allard School of Law from 2015 to 2020. I'm very proud to have called her my dean, one of my deans. She was recently appointed to be Simon Fraser University's next Vice President Academic and Provost and will be taking up those duties very soon. She'll be responsible for overseeing the delivery of all academic programs at SFU. Over the course of her legal academic career, Dr. Dauvergne has worked primarily in the areas of refugee, immigration and citizenship law and she has held the Canada Research Chair in migration law for 10 years. In 2012, Dr. Dauvergne was named a Fellow of the Trudeau Foundation in recognition of her contributions to public discourse in Canada.

Dr. Dauvergne has been involved with the Law Society's Rule of Law initiatives before. She spoke at our Rule of Law lecture in 2018 which focused on social justice and the rule of law. Welcome Catherine.

Catherine Dauvergne

Thank you very much Jon, thank you for inviting me.

Jon Festinger

Today we're going to be diving deeper into the meaning of the rule of law, how that differs from rule by law and what it looks like in the context of real world events. So going back probably a long, long way, when did you first learn about the rule of law and did that in any way influence your decision to go to law school?

Catherine Dauvergne

Well, let me start at the end. I'm absolutely certain that it had nothing to do with my decision to go to law school. I think I probably first learned about the rule of law at law school and I have to say at the time that I was a law student, I don’t think it made much of an impression upon me.

There was lots of fascinating stuff to learn at law school and I was at law school in a time when critical legal studies were ascendant and sort of all the theoretical rage was about the radical indeterminacy of the law. And the rule of law just didn't take up much space in that atmosphere, or perhaps in my young mind just didn't capture my imagination in that moment.

I think it's fair to say that I took the rule of law for granted at that time and I think that I probably still believe that in a well-functioning Western liberal democracy, actually most of the time you can take the rule of law for granted, that we see it most and are motivated to care about it most in times when it's really under pressure.

Jon Festinger

Well then, let's maybe dig into that a little bit. Do you have a particular image or event, as you look backwards, that stands out to you as sort of rule of law in action or rule of law in reality?

Catherine Dauvergne

Yeah, there's a very particular moment in my academic career when I started thinking and writing about the rule of law and thinking about what the rule of law meant for my own scholarship. That moment is the aftermath of the terrorist attacks of 9/11.

So at that point, I was a very junior member of the Faculty of Law at the University of Sydney in Australia and I was, as you kindly mentioned in your introduction, working on matters mostly of immigration and refugee law. And in the aftermath of 9/11, you know that was what really ushered in an enormous wave of xenophobia and a real confusion that all non-citizens were somehow a terrorist risk of some sort.

My first response to that sort of growing public opinion as a scholar was really to resist that and say you know this has nothing to do with me, nothing has changed about the way we manage immigration or asylum seeking and you know the whole idea that non-citizens, particularly certain kinds of non-citizens must somehow regarded as potential terrorist threats is something that I don’t want to be involved in at all. And it took maybe a year or two for me to realize that all of migration law was going to become intertwined with security measures and that if I didn't start thinking into that space that I was not going to be a very good migration lawyer anymore or migration scholar. I probably could have very well functioned as an immigration lawyer but that what was important from a scholarly perspective was really pulling apart the sort of security net that was falling over everything about how we regulate borders.

And you don’t have to go very far down that path before you realize that the rule of law is pretty important and that it's a really vital, both a tool and an ideology for trying to describe what's wrong with the assumption that all non-citizens would be terrorists. It was a concept that quickly became important in a series of decisions so every English speaking common law jurisdiction in the more or less immediate aftermath of 9/11. Let's call it the litigation aftermath of 9/11 because you know it takes a few years, there were a series of decisions around the world about indefinite detention of non-citizens. And those were a series of decisions that used immigration law provisions to lock people up without evidence or trial. So as an immigration lawyer, that was a really big deal and the rule of law is front and center there in terms of trying to explain why that's wrong, what's wrong with it and what can be done about it.

Jon Festinger

Well you know, it's interesting because I don’t think there's any denying that in those circumstances, whether, and for political reasons often, you know national security becomes a core issue and is turned first on immigrant communities and the less powerful. So, why did you go to law school?

Catherine Dauvergne

I went to law school because of my father and it's a lovely story and I actually don't often tell it.  I was born in 1965 and grew up mostly in Edmonton and my father was, well, you know trained as a social worker and was a provincial bureaucrat in various social services departments throughout his career. And for reasons that I'm not sure about, I guess I should just ask him, he decided at some point when I was about 11 or 12 that it was important to introduce girls to role models who were not teachers or nurses. I had, over a period of about four or five years, mostly when I was in junior high school, even before I was 16 or 17 and thought that it was too silly to go downtown and have lunch with my dad, he introduced me to a whole group of women lawyers. And they were interesting, thoughtful people who did a huge variety of things.

Years and years and years later, because I didn't go to law school until I was what we would have then called a mature student, I thought well what am I going to do? I have a master's degree in political philosophy, the path forward is far from assured and I am myself working as an Environment Canada bureaucrat which is not something that spoke to me with deep passion and I thought well, now is really the time. I will check out that law school thing that dad has urged upon me. And you know by that point my father, like that was a project for really quite a young person, not even a teenager when we started down that path. So it's a story that's really lovely. I started law school having not ever met any other lawyers except for that group of women that I met in the mid-seventies.

Jon Festinger

Well, what's really interesting, one of the things that's really interesting, it's a touching story and your father's foresight in connecting you to women lawyers, from your experience as dean and teaching at many law schools, how is the rule of law taught to law school students? How are we role modeling as teachers the rule of law? Is it a difficult thing to teach and if so why?

Catherine Dauvergne

Okay, that is a really multifaceted question and I think, and I do have an answer to it. So let me give you a quick answer and then maybe I'll go a little bit deeper. I think the rule of law is very hard to teach. I think that we don't do a lot of explicit deliberate teaching of the rule of law and that what we do do tends to be hurried and we don't do it all that well.

But I think that law schools model a commitment to the rule of law in a really fantastic way. So I think in that way we tend to teach, a lot of the value content of the rule of law is delivered very thoroughly at law schools and what is delivered less well is a sort of a step back theoretical reflection on what we're delivering. That's probably true of teaching law in Canada generally, so you know some of that is good in that that immersive kind of instruction is really very strong and that people learn things deeply when they're continually reinforced throughout a curriculum. But we don’t always, and I think this is generally true about law school and I think it's also true about writing about legal education, we are not very deliberate or articulate in telling people about what some of those meta-messages of learning the law actually are.

And the rule of law is a difficult thing to teach because it is a lot more than a sort of narrow definition of what might we put in a definition of the rule of law, the idea that no one is above the law, the idea that law is the mode through which governments act, the idea that government action can be scrutinized by the courts, all of those things are sort of core to a definition of the rule of law. But they don't get at what's really special about the rule of law. And if you had all of those elements of that sort of basic definition, you still wouldn't have anything that would distinguish you or, or would allow you to distinguish between rule by law and rule of law. And there's not a whole lot of clear agreement on the substantive content of the rule of law and that makes it hard to teach and it makes it contested terrain. And it also isn't any particular law, and so we tend to introduce it in one or another introductory subject in first year at a time when students are not very well prepared to interrogate it and press at it and really see it in action. And then we act throughout the three years of a law school curriculum as though the rule of law is actually a linchpin of everything that we're teaching but we never come back at the end and say why and talk about why and ask people to reflect on the rule of law when they have a lot more tools.

Actually, I care a lot about this difference between a thin version of the rule of law and a thick version of the rule of law. And that thin version of the rule of law, if we think you know the rule of law is, emerges historically as a contrast to the rule of kings, it's the idea that nobody can be above the law so we have no one's above the law, it's the way that governments act and the idea that governments themselves can be scrutinized by the courts, that actually is a, an easy definition to agree upon. Anybody could memorize that but it doesn't get you very far, it doesn't tell you why we would now look at the Nazi regime in Germany in the thirties and forties and criticize its law because that regime adhered very clearly to those three principles and so we want something more from the rule of law and what might that more be.

Well one of the things that I think, one of the easiest things to load onto our understanding of the rule of law is something about process, that law counts as law because it's made in a legitimate way, people don't, governments don't just make it up behind the backs of the public, it's not made by a small oligarchy, you know we have a democratic system. We have an accepted way for making laws. Process is part of the story of what a commitment to rule of law is.

And then we have some sense of fairness. I think it's far too much to add justice in there but some sense of fairness or something right or that the law should somehow not always be fair but at least aspire to it because the idea of rule of law is also, means that there's a space where we can criticize the law frequently for not being fair but that the criticism's worth it because the law matters.

And then if you keep pushing down this line, some people say well the rule of law actually includes more than process and more than fairness and more than a kind of natural sense of justice but it would include things like everybody needs to be treated equally and as soon as we're talking about that then we end up talking about access to justice and access to the courts. And pretty soon it's a very thick concept and there's not very much agreement, not among scholars, not among people who use the law every day, not amongst democratic governments that are really truly bound by rule of law about how thick the rule of law should be.

So it's very easy to move beyond the thin version of the rule of law and very hard to figure out how thick the thick version should be. It's a bit of a shape shifter. So that makes it hard to teach because it's hard to pin down the parameters and say everybody agrees on this and that and the other thing and it makes it very easy to criticize.

As a result, we end up, when we're honest and we're thoughtful and we're reflective about the rule of law, talking about it in a relatively complicated way and that makes teaching hard and the rule of law is almost, because it's so difficult to pin down, it's almost like an article of faith in our system, in our legal system or our system of governance or at the very, very least it's a very powerful ideology. And once we're in that kind of terrain, there's a lot of resistance.

Jon Festinger

So let's try and unpack some of the many important things that you said Catherine. Let me start with one thing. Other schools, not law schools, can have sort of towards the end of their degrees, something that's called the capstone project, one thing that the student has to do in order to graduate; it might be worth some thought as to whether law schools should have a capstone project that involves rule of law issues to bring the student full circle through everything that they've been taught.

Another thing, sort of the other hand that I think law schools are doing much better, and particularly that I think Allard under your tenure, if I may say so, has done particularly well is clinical experiences for law students. And those clinical experiences, particularly when they may relate to equality issues or Indigenous issues or access to justice issues, are real life rule of law labs, whether the students realize it or not. And I think those experiences are, from what I've seen of students who've engaged in them, are truly formative in a very important way when it comes to rule of law and rule of law education. So just perhaps some comments whether you agree or don't agree, on the capstone and you know particularly anything about clinics and the role they play.

Catherine Dauvergne

The first way that I want to respond to those very interesting points that you've raised, John, is to say I'm not sure if it matters if newly educated lawyers have a clear understanding of what the rule of law is if instead they have a sort of deeply absorbed commitment to core values of the rule of law.

In other words, we certainly could do a better job in teaching people to theorize about the rule of law, but I'm not sure, and that would, you know for a theorist like myself that would be interesting and valuable in and of itself, but I'm not sure that it would improve commitment to the rule of law in the profession or in our society to have more theorists out there, much as it pains me to say so.

I'll come back in a moment to talk about the capstone but one of the things about clinical legal education is that clinical legal education when it's done well is really not only an apprenticeship, so one of the things that law schools really try to do is to build into clinical programs an opportunity for students in those settings to really reflect on what it is they're doing when they are helping people with their legal problems. And they do that, unlike our teaching of the rule of law, is something that we spend a great deal of time on getting people to reflect on what they're doing, to be articulate about it, to think about what that role is when they put the law into practice to be very deliberate about the word, and they actually use the law to make changes in the world.

We spend a lot of time getting people to think hard about the how and the why and the consequences of that. And all of that is an education in the rule of law, particularly in the clinical setting because almost all clinical settings are, are settings which bring students in contact with clients who in a variety of different ways would otherwise not have access to a lawyer.

There's an access to justice mandate that goes indirectly into all of our clinical programs and they have the effect of extending legal services to people who otherwise don't have them. And that is a very powerful context in which to think about what it means to have access to legal assistance and through that access to legal processes and then we teach students to reflect on that.

So if they learn all that at law school, do they need to learn a theory about the rule of law? I'm not sure if they need the theory if they've got the substance and they've got the practice and if the theory is difficult anyway. And then I said I'd say something about capstones which is really, there are opportunities in smaller ways to have a capstone experience at most law schools writing a cumulating paper or doing actually a capstone course in business law which is something that more, close to half of our students do. But those experiences are all different. We don’t have a uniform capstone experience which would be a very different thing indeed, you're quite right.

Jon Festinger

There's a lot to talk about in terms of what we do in law school but there's even more to talk about when we start reaching out beyond law school. And in your earlier answer, you raised somewhat explicitly and implicitly as well, at what point do we start worrying, thinking, understanding that the direction a state is taking, and a state that might think of itself as a rule of law state, but is really becoming a rule by law state; how, when, at what point do we start differentiating between the two? How do we tell the difference?

And obviously you know right now the United States and Donald Trump's presidency is much in the news often as a threat to the rule of law or acting in ways that are contrary to the rule of law. You know I would argue Donald Trump has done more for rule of law education than any figure in a very, very long time because he has us thinking about the rule of law, but is there a point or some semi-clear tests as to when a state has kind of gone off track?

Catherine Dauvergne

Let me say that I really agree with you, John, that Donald Trump has done a huge amount to bring the idea of the rule of law into popular consciousness, and I'm willing to bet that there are many, many more Americans over the past four years who have been out there looking up constitutional provisions that they weren't previously familiar with and asking themselves the question: can the president really do that? And it's an interesting question and it's a question that speaks directly to what the rule of law is and what the sort of ideological content behind that is, is that there's a text somewhere that answers the question can the president really do that rather than saying well that individual is the commander in chief of the most powerful military that has ever existed in the history of the world; what can't that person do?

And the essence of the rule of law is that even there are figures in the military who've come out and said you know the president just can't do this or I regret that I wore my uniform and stood behind him while he held that bible up in front of the church or what, you know during the Black Lives Matter protests most recently in the summer.

So I actually think that the rule of law is really alive and well in the United States right now and I think it's partially because there is a president who is I don't know what we might say, sailing so close to the wind that we see the rule of law under strain and I think that by and large to this point that makes it more visible. So the rule of law is more visible because the president is constantly pushing at the limits of it but I don’t think he's gone over those limits. Now if, for example, as is occasionally mooted in the press these days, if, for example, the president declines to hold an election in November or an election is held and he immediately without plausible evidence, works to discredit the result or there is a result that is widely publicized but he doesn't leave office if he loses the election, I think all of those things would be real threats to the rule of law and I think that that would put the United States into a position that we see Belarus in over these past few weeks with mass protests and a very contested election and to the evidence that I see in the paper, a very open question about who won that election.

But I really don't take seriously the idea that there's not going to be an election in the United States in November and I actually think that if Donald Trump loses that election that he will leave office and I know that, and I think that people who are saying that might not happen are really at this point agitating to press the panic button to say that would absolutely certainly signal that he's over the line and I think that it would.

Jon Festinger

Well certainly it would. From my perspective, and I'm not a theoretician on the rule of law, but part of my background is as a newsroom lawyer; one of my signposts is, and it's consistent with what you said, where there is pretty free public discourse, and there's even an argument in the United States it's too free right now, that's a good thing for the rule of law because they are debating in the United States these issues on a daily basis and in a real way.

So one signpost to me is what's happening with the press and is the press state controlled or in such fear of the state that there isn't public discourse, and the other related one, in a strange way, is the role of lawyers, are lawyers being persecuted as they often are in states that have lost touch with the rule of law. Are lawyers being attacked for representing free discourse values, for representing minorities or groups that are under threat? So I think to me those are kind of the two practical things I look for and I totally understand from you know how important elections are essentially to a political theorist like yourself. And you know I think those are, all we have when it comes to the rule of law are important signposts but they're not absolute rules and the word rule even in the rule of law is slightly misleading.

Catherine Dauvergne

I think that's really right. So first of all, I don’t think that the law is completely indeterminate but I think that it's very easy to make an argument that laws change, that laws are constantly evolving, that laws can be changed by government, all those things are part of the system, and that we don't need absolute stability of a particular legal principle in order to have rule of law. What we need is a belief that the law is how disputes will be settled, that the law is something that's worth fighting about, that it's worth making an argument about whether or not the law is fair, that it's worth making an argument that more people should have access to the legal system and to legal processes.

If the rule of law were not a meaningful thing in our society, access to justice wouldn't be important because it would be the same sort of space of power and bias and discrimination that we would see in, that we use the law to attempt to counter. So even flawed law which changes is important to, is an important value in a system that's governed by law. It's not perfect but it's worth fighting for and it's worth attempting to improve is.

Jon Festinger

So one thing that's been very interesting about teaching in this COVID environment is not just that we're all working from home but that our students are working from home and often sometimes those homes are in different countries and different countries with different rule of law perspectives.

And you know for the first time, I have had to think about what materials I'm putting online and what countries those materials are being downloaded in because some of the things that I might be saying in my courses around freedom of speech, freedom of expression, rule of law issues might be seen as very problematic, even deviant in those countries and get my students in trouble and even charged under, in theory the law of China for example but also otherwise jurisdictions as well.

So suddenly, in COVID the world has become a much smaller teaching place and for the first time that I can think of, I start thinking about the safety of students downloading my materials in other countries where the rule of law is seen differently. How do you reconcile and deal with that fact that the world is both a very small place and a very large place that has very many different perspectives on the rule of law?

Catherine Dauvergne

I'm gonna push back a little bit on that. I'm not sure, like I absolutely agree that there are many different perspectives on the rule of law but I think that some of those are right and others are wrong and I don’t think that it's such a flexible concept as to, like I've never been much of a cultural relativist, I think that human rights, to take another example of something that we, that one often hears there's different perspectives on human rights. I think yes, that's true, there's different interpretive perspectives but I think that there are some core meanings in human rights and that we can't simply say that you know any state can make up its own version of a human right and as long as it's a state it's going to have a legitimate version.

So there are lots of perspectives of the rule of law but some of them don't correspond very closely with the way we understand the rule of law as a core part of a governance system and I think that if we detach the rule of law from some of these substantive commitments that I was talking about earlier, what we're left with is not actually the rule of law. But it's a fairly easy phrase to toss around and it's very important in terms of you know international investment and all sorts of things that all states say yes, you know we adhere to the rule of law. And I think there's probably not a state out there that says no, we're not using the rule of law, that, we have a different system.

So I think the interrogation needs to go a bit further and I don’t think all the perspectives mean that they're all equally the rule of law but the question about teaching in COVID is a really difficult and profound one that I don’t think I have an answer to but I think that it points us to all sorts of things.

And it's one of those moments where individual instructors are thinking about curtailing their own academic freedom to say whatever they want on particular topics in order to protect their students. I can't think of another time in the history of universities when scholars have regularly thought I need to adjust what I'm teaching to protect my students from consequences of government action that are far, far away.

I mean we often have, you know the traditional model is we have international students, they come to Canada or to somewhere else, we teach them here, they have that knowledge, they may get in trouble by how they deploy that knowledge but they're going to take it back to wherever they're from and then they're going to have to figure out on their own how to manage. You know I had a student recently who wrote a master's thesis and was from a country where I was saying yeah, you really just should publish that, it's very interesting, very original work on refugee law in your home country. And he said I can't afford the risk, I want to live there.

Jon Festinger

Yes, you know there are countries that take the rule of law principles and say they adhere to them but then when it comes to free speech for example, say that it's unhealthy for the population or certain kinds of speech are unhealthy for the population or certain kinds of speech are subversive and in those definitions they play so fast and loose with the rule of law that it's clearly political and is not adhering to actual underlying principles.

And so it comes back to, and you said it very well, in a sense we have to say no, that's something else. You call it the rule of law but it actually isn't the rule of law; explain why this rule of law principle should not apply in your country and explain how that's good for your country. Yes, the world has really become a smaller place because when rule of law starts affecting our actual teaching and our actual sort of day-to-day explanation of ideas and thought, that's kind of remarkable.

Now I'm gonna put a positive spin on it and give you the last word but I'm back to it is so good that we are thinking about and talking about the rule of law every day in law schools beyond, as lawyers and beyond lawyering in the public square. So even though there's a lot of uncomfortable moments, I think this is actually potentially a very good time when we look back on it, 20 or 30 years from now.

Catherine Dauvergne

I hope for that to be true. I've been sitting in this small room in my house for so many months now that the idea that this could be a particularly good time is one that I'm just having a little trouble absorbing.

But one of the things I was thinking about as you were making that comment is how difficult it is to translate the rule of law to the international or global sphere and one of the things I've been thinking about recently is the UK government and the pretty cavalier way in which Prime Minister Johnson is willing to walk away from commitments of the Brexit deal and the hue and cry and that is coming up in the British parliament which is hey, that's against international law. And a few things come to mind on that which is why is that viewed as being against international law rather than being a rule of law problem? And I think it's partially because, I mean it is a rule of law problem but it's a rule of law problem at the international level and I think that we're just less able to have a rule of law discourse in the international because rule of law is, as much as anything else, a system of governance and it talks about the relationship that courts have with governments. And we have some of those pieces internationally but not all of those pieces.

So we're not quite there yet globally but one of the things that might happen from this historical moment is we might you know optimistically we might see a real growth in the strength of the rule of law internationally because we are interacting in a different way which causes us to, on a day-to-day basis over and over and over again think about the rule of law because of the information that we're giving to people all around the world and receiving from them as we communicate in this new way by teaching at this time. So that's about as optimistic as I can get for you John, but I'm going to leave the conversation thinking about the great potential that you've offered me.

Jon Festinger

Thank you Catherine for your time today. It's been a wonderful discussion. I'm gonna just try and sum up in a few sentences.

Dr. Dauvergne talked about why the rule of law is a difficult concept to teach, and I certainly agree. She walked us through the thin version of the rule of law which are key principles that are easy to agree on like everyone should be treated equally before the law as well as the thick version which involves additional values including incredibly important things like access to justice.

We also talked about the rule of law in the context of events like 9/11, recent news in the United States and Donald Trump's disregard for the rule of law and certain controversies around Brexit in the UK. We talked about how different countries interpret the rule of law differently and the need for us to hold countries accountable when it is clear their version of the rule of law isn't correct.

I hope we've left you with some important concepts to ponder. If you want to know more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. Vinnie Yuen was our producer today. This is Jon Festinger signing off.