Naomi Wolf, author of The End of America: Letter of Warning To A Young Patriot, has an interesting premise on how the rule of law is eroded in society. She claims there is a discernable historical pattern that would-be dictators follow. Even scarier, she claims to see many of these patterns in contemporary Western society.
Some of the signposts she cites includes the inappropriate use of tasers, a secret detention system where torture can occur, and the use of falsified documents to justify actions.
Lawyers, who are arguably the vanguards of justice in any rule of law society, could use her 10 points to monitor the actions of the executive and evaluate them by existing civil rights legislation.
She relates them in the Huffington Post:
1 Invoke a terrifying internal and external enemy
2 Create a gulag
3 Develop a thug caste
4 Set up an internal surveillance system
5 Harass citizens’ groups
6 Engage in arbitrary detention and release
7 Target key individuals
8 Control the press
9 Dissent equals treason
10 Suspend the rule of law
She makes some interesting observations in the last point:
Even as Americans were focused on Britney Spears’s meltdown and the question of who fathered Anna Nicole’s baby, the New York Times editorialised about this shift: “A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night … Beyond actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or any ‘other condition’.”
Critics see this as a clear violation of the Posse Comitatus Act – which was meant to restrain the federal government from using the military for domestic law enforcement. The Democratic senator Patrick Leahy says the bill encourages a president to declare federal martial law. It also violates the very reason the founders set up our system of government as they did: having seen citizens bullied by a monarch’s soldiers, the founders were terrified of exactly this kind of concentration of militias’ power over American people in the hands of an oppressive executive or faction.
You can hear her speak on this in depth from a talk on October 11, 2007 at Kane Hall on the University of Washington campus:
Similar trends in Canada?
Although the historical legacy quoted by Wolf is markedly different in Canada, there are some similarly disturbing trends here.
There is the alleged complicity of Canadian troops in what amounts to inhumane treatment of prisoners, and others that have died through asphyxiation.
But there are domestic issues of concern as well.
Toronto city Councillor Giorgio Mammoliti recently suggested that the Canadian Forces be used to fight gang violence in his city.
“Gang members will retaliate and hurt people who talk. The gangs are at war in our wards, and innocent people are being caught in the crossfire. If the feds can justify that (designation), perhaps there could be some law that could take them off the streets.”
Professional Apathy
Many law students still appear reluctant to take on such social justice issues, possibly because there is greater concern of finding a job to pay off student debt.
The Canadian Bar Association, as an impartial, neutral body, has done a considerable amount of work in terms of advocacy.
Their recent initiatives include a number of marches in past weeks calling for restoration of the rule of law in Pakistan, led personally by CBA president Bernard Amyot.
But student jobs where the big money in law still exists, in the big law firms, still do not have enough advocacy as a component of their professional portfolios, and students are often forced to choose between addressing student loans or doing pro bono work.
Quoting Shakespeare…
Shakespeare had his own theory about how the rule of law was eroded in a society. In King Henry VI (Act IV, Scene II), he said:
The first thing we do, let’s kill all the lawyers
Debbie Vogel elaborates in the New York Times
Dick the Butcher was a follower of the rebel Jack Cade, who thought that if he disturbed law and order, he could become king. Shakespeare meant it as a compliment to attorneys and judges who instill justice in society.
American-based international firm Dickstein Shapiro Morin & Oshinsky LLP explains further,
Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution — thus underscoring the important role that lawyers can play in society.
James Morton of the National Post claims lawyers are essential to society, and demonstrates how this principle relates to contemporary erosions of rule of law:
Washington Post writer Anne Applebaum pointed out that Russia has become a desperate, dangerous place in large part because it lacks “a working legal system.” Countries where lawyers do not operate freely, such as Zimbabwe, are countries in chaos. “The first thing we do, let’s kill all the lawyers,” declares the treacherous Dick the Butcher in Shakespeare’s Henry VI. The comment often is cited as an indictment of lawyers. But taken in context, it shows that the surest path to tyranny is to eliminate the professionals whose job it is to protect and promote freedom and justice.
Howard L. Nations of Texas even extrapolates this further to extend to his professional litigation work,
Over the centuries tyrants and demagogues have come in many forms. In today’s context, it is not the “army of rabble and a demagogue pandering to the ignorant” who cry for the demise of the lawyers, but rather modern demagogues who manipulate our governmental institutions to their own ends. Why? Because trial lawyers are the first line of defense to prevent irresponsible elements within the insurance, manufacturing, and chemical companies from dismantling the tort system, disrupting the judiciary and abrogating the common law to the detriment of the rights of individual citizens, consumers and tort victims.
This should serve as a reminder, and yet another call to the major firms, of the importance of social justice to all the professionals in our field.
