Editor’s note: The text that follows is adapted from the 2018 Rule of Law Lecture, delivered by Canadian Quillette editor Jonathan Kay to the Law Society of British Columbia on June 7 in Vancouver.
This is a speech about the interplay of law and social justice. And I can’t think of a better way to start it than by praising a great lawyer who died last month at the age of 104—a black woman by the name of Dovey Johnson Roundtree.
In 1965, Ms. Roundtree represented a poor black day laborer named Raymond Crump Jr., who stood falsely accused of killing a glamorous white woman in Washington D.C. Everyone assumed Crump would hang. But in court, Roundtree saved Crump’s life.
Even before that, Roundtree, did amazing things. She was one of the first female officers—of any race—in the U.S. military. And in 1952, she helped strike down racial segregation on interstate buses.
I start with Ms. Roundtree because she embodies a story that lawyers love telling. It is a story in which law and social justice walk hand in hand. In the United States, where I went to law school, we loved studying these cases—especially Brown v. Board of Education—because they made us proud to become lawyers.
But law and social justice do not always go hand in hand—at least, not in the short term.
When Colten Boushie, an indigenous man, was shot dead by a white Saskatchewan farmer named Gerald Stanley, there were many Canadians who instinctively believed that this was an act of murder. And so when he was acquitted in February, they expressed outrage—because it conflicted with their sense of social justice The faculty of one Canadian law school even signed an unsettling open letter attacking the jury’s verdict.
In that moment, I tried to remind people why due-process safeguards exist within our system. The presumption of innocence and the requirement of proof beyond a reasonable doubt in criminal cases—these safeguards are there to protect all of us from the mob and from the state.
And on most days, those safeguards don’t protect men such as Gerald Stanley. On most days, they protect disadvantaged black or indigenous men such as Raymond Crump Jr.—because those are the people who are most likely to end up on the wrong side of a prosecution.
As for social justice, it’s a wonderful thing. But remember that people have very different versions of what social justice looks like.
Many people in this room probably have a vision of social justice that includes less inequality, less racism, less Islamophobia, less homophobia, less transphobia, and better lives for indigenous people. But if you are a Trump supporter, social justice might also include, say, fewer refugees, and less affirmative action.
In life, you have to be careful what you wish for. If you decide that social justice trumps the rule of law, you may be horrified to see how that principle is applied by those whose views you find to be regressive.
Due process knows no colour. It knows no gender. It knows no hash tags. That is what makes due process, and the rule of law more generally, so essential to a free society. But that is also what makes it so maddening in cases where it grates against our ideological and humanitarian reflexes.
Any child can understand the need for social justice. But to understand why we need due process—for that you need to be an adult.
Yet in the long run, I would argue, the rule of law—if faithfully applied, without favour or corruption—can build the social trust that is the true bedrock of social justice. In a healthy society, due process is the concession that competing groups extend to one another. We say to one another: “Yes, I disagree with you. But no matter our disagreements, this thing is something I cannot take away from you.”
In some cases, the impetus toward social justice can damage the rule of law by inciting an attitude of tribalism. If society is depicted as a pastiche of warring groups, in which powerful groups systematically exploit the disadvantaged, then this will encourage everyone to circle the wagons around their own tribe—and even to circumvent the rule of law on behalf of their own tribe if they can get away with it.
In such societies, loyalty to tribe is imagined to be more important than adherence to due process—especially among those tribes deemed to be disadvantaged. That is not a recipe for social trust.
Another unfortunate tendency of many social justice movements, in their extreme form, is the veneration of one group’s narratives at the expense of another. The old racists did this. That’s how Raymond Crump Jr. ended up in the dock. The truth-telling power of whites was seen as greater than that of blacks. In those days, when a white woman said she had been raped by a black man, everyone just automatically believed the victim.
During my careers as a scientist, a lawyer and a journalist, I have learned to never “just believe” anyone. I have seen great people lie, and bad people tell hard truths.
What I believe in is process. As a scientist, I relied on the scientific method and peer review. As a lawyer, I relied on such tools as discovery and cross-examination. As a journalist, I try to interview both sides and let them challenge each other.
That is how truth emerges: By clear-eyed scrutiny and by open debate, not blinkered loyalty to one narrative, even if that narrative is coded in the appealing language of social justice.
Of course, when it comes to prosecuting crimes, the state always has the resources to build up its own narrative—and to make almost any person look guilty in the process, even those who are innocent. One of the ways lawyers can defend the cause of social justice is by challenging those narratives, as Dovey Johnson Roundtree did.
That is where the romance and moral grandeur of the law properly lies. We see this in movies and courtroom dramas—one brilliant lawyer up against the power of a leviathan.
But the rise of social media presents lawyers with a new challenge. For it has become a tool by which prosecutorial narratives can be created not just by the state, but by electronic mobs. On social media, those who express support for due process and rule of law often are shouted down when those sentiments run afoul of popular sentiments.
This tendency plays out institutionally, as well. In Ontario, where I live, the law society now is using its monopoly regulatory power to effectively compel lawyers to express support for the broad ideological principles of equality, diversity and inclusion.
It so happens that these are ideological principles with which I agree. They are popular ideas, broadly supported among lawyers. But that is not the point.
I am a proud supporter of Canadian military veterans and the sacrifices they made, which is why I wear the poppy in November. But the day someone tells me that I am required to wear the poppy, that is the day I take the poppy off. That is the day the poppy becomes meaningless. As any 6-year-old who is forced to deliver an insincere apology to a sibling can attest, compelled speech is always morally meaningless.
In 1950, the Annual Convention of the American Bar Association passed a resolution calling for an anti-Communist loyalty oath for all lawyers. I oppose communism. But that doesn’t mean I think the state—or an oversight body that operates a regulatory regime under state mandate—gets to tell lawyers they can’t believe in it.
Oaths like that were wrong then. And they are wrong now. But the rise of social media makes it harder for the people who run law societies and other institutions to do the right thing, since they know that standing up for the rule of law over populist social-justice sentiment may cause them to be denounced on Twitter or Facebook.
If I employ a lawyer, and I learn that he happens to be religiously observant, and that he does not believe in gay marriage—or that his mosque or synagogue or gurdwara preaches precepts that run afoul of modern feminism—does that mean this man is not fit to practice law?
Now imagine that I complained about such a lawyer to Ontario legal authorities. Imagine that this lawyer’s right to practice law was stripped from him. How many people in this room think that this result would further the cause of ‘equality, diversity and inclusion’?
No lawyer should be compelled to promote political dogmas as a condition of putting food on the table for family. The role of a professional oversight body is to enforce professional standards of conduct—including fair treatment for all, regardless of gender, faith or skin color. That is very different from acting as a modern-day inquisition upon the contents of the human mind or soul.
Fortunately, some Ontario lawyers are standing up to this new provision. And one has even brought forward an application to strike down the new requirement.
I believe it is fitting that we are having this event in Vancouver, in a building that is part of the University of British Columbia. Several years ago, that university fired the head of its creative writing department, a famous author named Steven Galloway, amid claims of serious wrongdoing, including possible sexual assault. In their public statement, the university intimated that Galloway was a dangerous presence on campus. Steven Galloway was cast into disgrace.
Yet when an investigation was conducted by a respected former B.C. Supreme Court judge, that investigation turned up no convincing evidence of assault. One would think that Mr. Galloway’s reputation—perhaps even his job—would be restored.
Instead, the opposite happened. And the whole affair shows how institutions, including universities, now can leverage the mob power of social media to run roughshod over Canadians’ rights.
When writers such as Margaret Atwood demanded due process for Galloway, they were shouted down on social media as apologists for rape culture. When it was pointed out that the university-appointed investigator had found no convincing evidence of sexual assault, this only enflamed the critics. They demanded that members of the Canadian literary community privilege social justice ideology over due process.
Galloway will get his justice. And when he does, it will be worth asking: How many of us used our voice to challenge the mob that attacked him?
I would like to emphasize that threats to due process exist on both sides of the political spectrum. Many people in this room will remember, I hope, that after 9/11, U.S. Attorney General John Ashcroft attacked critics of the Patriot Act with these words: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve.”
If you were distressed, as I was, to hear legitimate concerns about civil liberties and the rule of law dismissed with a flippant phrase such as “phantoms of lost liberty,” then you should also be concerned about what is happening now in some parts of our society.
Whenever anyone tells you that the rule of law must bend in favor of any cause—even causes as important as national security, or anti-discrimination, or rooting out misogynists and criminals, or the vital social justice imperative to improve the lives of indigenous peoples—that is the time when people of good conscience must raise their voices.
As the great Dovey Johnson Roundtree and other giants of legal history have shown us, a great lawyer doesn’t just protect people. She protects principles.
Feature photo by Andy Ngo.
Jonathan Kay is a Toronto-based author, columnist and reporter whose articles have appeared recently in The Atlantic, Foreign Affairs, National Post and the Washington Post. Follow him on Twitter @jonkay