© Mark van Manen/Vancouver Sun/Postmedia NewsA statue of Justice stands outside the law courts in Vancouver, B.C.
When Windsor law school condemned the Canadian legal system as an instrument of oppression, I suggested in a Post column that legal education had lost its way. Some of my colleagues do not agree. Law schools should be political, say Queen's assistant professors Lisa Kelly and Lisa Kerr in a piece published in the Globe and Mail. "Law has helped to create much of the inequality that we see today, and we should be suspicious of those who don't want law schools to notice."
Kelly and Kerr say that law is political, and on that they are correct. Legal rules have historical and philosophical context and reflect ideas about how the world should work. How should we punish people who harm others? Should the same standards apply to everyone? Can the government tell you what to say? The law on these subjects reflects political beliefs. Good law teachers embrace that reality to examine and challenge received truths. Legal education should expose students to a diverse set of perspectives so that they can figure out what they think. That is quite a different thing from law schools advocating an ideology and telling students what to believe. Rather than teaching intelligent critical thinking about the politics of law, law schools have themselves become political torchbearers for social justice dogma. The result is as much indoctrination as education.
Kelly and Kerr rightly reject legal formalism - teaching rules without reasoning - which is of little value. But instead of thinking critically and taking nothing for granted, they do what they condemn: they treat certain values as self-evident and pretend that their political interpretation is neutral and true. For example, they insist that it is the responsibility of law schools to implement the recommendations of Canada's Truth and Reconciliation Commission (TRC), itself a political body that produced a political set of recommendations. They take as given that different sentencing considerations should apply to Aboriginal offenders. These are positions borne of political belief. Should law schools obediently endorse them? Or should they facilitate transparent and probing debate from a diversity of legal perspectives on their legitimacy and value? Inside today's law schools, expressing dissent on politically correct initiatives can earn you scorn and contempt.
While Professor Kelly agrees that law is political, she does not appear to believe in open inquiry on that topic. In March I invited Jordan Peterson, Professor of Psychology at the University of Toronto, to give the inaugural Queen's University Liberty Lecture, sponsored by Queen's law alumni Greg Piasetzki. Some faculty and students strenuously objected to the invitation. To his credit, Queen's Principal Daniel Woolf defended the importance of academic freedom and informed respectful debate. Professor Kelly was one of several Queen's professors to sign an open letter to Woolf criticizing his refusal to condemn the talk. The letter said, "The problem created by this lecture is not "free speech." The problem is that Queen's is providing a platform to someone who already has extensive access to a range of venues for circulating his odious and ill-informed views. ... you fail to recognize that these 'debates' take place within the context of, and indeed contribute to, a rising tide of white supremacy and hate."
© Elliot Ferguson/The Whig-Standard/Postmedia NewsProtesters demonstrate against a lecture by Prof. Jordan Peterson at Queen's University on June 15, 2017.
When a university adopts a political stance, it imposes an ideology on its professors and students. Kelly and Kerr seem unwilling or unable to distinguish between the role of the individual and the role of the group. The professor is the individual with views and expertise. The law school is the group, which has no views of its own since academic opinions are not a function of democracy. A law school does not "believe" something even if a majority of its professors do. Its role is merely to house its faculty and to facilitate their individual research and teaching.
When existing law schools in Canada objected to the licensing of graduates from Trinity Western's proposed school, one of the arguments against Trinity Western was that law schools should not impose values, but instead be neutral institutions of intellectual and philosophical diversity. That argument turns out to be a sham. Critics actually meant that they simply didn't like the particular values that Trinity Western's community covenant was promoting.
By adopting social justice mandates, universities become combatants in the culture wars. This strategy is especially insidious at the law schools because they are responsible for training tomorrow's lawyers and judges, who will graduate from publicly funded institutions teaching that legal justice and progressive values are synonymous and that Western legal principles are oppressive. The problem is especially acute because Canada's law schools do not profess a variety of political convictions. They now largely preach together from the manifesto of the progressive left. It was not always so. If law schools are going to promote ideologies, then should we not insist on having a range of schools with diverse political positions?
Yes, the law is political, but that does not mean that law schools should be. The social justice revolution has taken them. Beware of the challenges ahead.
Bruce Pardy is Professor of Law at Queen's University.
Not anymore.
Wake up!
R.C.