In the most non-controversial and basic sense, the rule of law means formal legality. The law binds citizens and governments. When it comes to nation states, law is enacted by democratically elected legislatures; legal statutes are openly available and sufficiently clear to follow. State actions can be judicially reviewed for compliance with a constitution.
In its more ambitious conceptualization, the rule of law can also be understood to include substantive human rights and equity. In Canada, The Constitution Act of 1982 references the rule of law in its preamble.
The modern Canadian iteration of the rule of law — which includes substantive ideas about human rights as well as Indigenous treaty rights — is based on liberal ideas shared by many countries, including, historically, the United States. What distinguishes a rule-of-law state from an authoritarian one to a large extent is whether state actions can be judicially reviewed for compliance with a constitution.
Although rule of law scholars debate the parameters of the concept of the rule of law, few would debate that what is happening during U.S. President Donald Trump’s second term presents anything other than a wholesale attack on the rule of law both domestically in the U.S and internationally.
I am a rule of law researcher, educator and lawyer. Since Trump was elected to his first term in 2016, I’ve relied on American scholars, from a variety of disciplines, to understand what is happening.
These include two prominent Yale professors, philosopher Jason Stanley and historian Timothy Snynder, both of whom have recently announced they’re moving to the Munk School of Global Affairs at the University of Toronto.
Authoritarian impulse
In their scholarship, Stanley and Snyder have sought to explain the authoritarian impulses of the first Trump administration and how to resist it.
Stanley’s father, a German Jew who fled Germany for America in 1939, carries the remembrance of fascism.
Both Stanley and Snyder explore the similarities between what is occurring in Trump’s America, Viktor Orban’s Hungary, Vladimir Putin’s Russia, Xi Jinping’s China and, equally chillingly, between Trump’s America and Adolf Hitler’s Germany. Even prior to the first Trump presidency, Stanley already asked in his 2015 book, How Propoganda Works, whether the U.S., “the world’s oldest liberal democracy,” might already have become a liberal democracy “in name only?”
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Examination of propaganda, rhetoric
In his 2018 book, The Road to Unfreedom: Russia, Europe, America, Snyder described Trump as a “sado-populist, whose policies were designed to hurt the most vulnerable people of his own electorate.”
Stanley’s focus on propaganda and rhetoric were especially useful for framing the politics of Trump.
Similarly, Snyder’s focus on the similarities between Trump and other authoritarian leaders, through their attachment to extreme illiberal ideologies, helped frame public discourse in the U.S. during the first Trump presidency. “Illiberal” does not imply conservative in opposition to “being liberal” (with the resonance of “leftist”); rather, it denotes a repudiation of liberal democracy, in the words of political scientist Thomas J. Main.
Both Stanley and Snyder are on the public record explaining their decision to immigrate to Canada, on the basis that they can no longer continue their scholarly activities in an American university, even a premier one like Yale.
Improper interference
This is an admission by important thinkers that civil society, intellectuals and critical scholars, in particular, are under assault.
It comes as no surprise given other developments. Trump’s executive orders, threats to some university funding and crackdowns on activists and academics — as well as the attempted deportations of those without U.S. citizenship — have used the idea of combatting campus antisemitism as cover for an attack on free expression, academic independence and student activism.
From my perspective as a Jewish person, a post-secondary teacher and as someone with a legal education, all of these developments have hit hard, especially alongside accounts of some of America’s most prestigious law firms caving to improper interference by the Trump administration.
What ‘fascism’ means
In the introduction to his bestselling 2020 book, How Fascism Works, Stanley wrote: “In recent years, multiple countries across the world have been overtaken by a certain kind of far-right nationalism; the list includes Russia, Hungary, Poland, India, Turkey and the United States.”
He explains the choice of the word “fascism” to speak about each of these countries, despite their differences of degree and context:
“I have chosen the label ‘fascism’ for ultra nationalism of some variety (ethnic, religious, cultural), with the nation represented in the person of an authoritarian leader who speaks on its behalf. As Donald Trump declared in his Republican National Convention speech in July 2016, ‘I am your voice.’”
In his similarly bestselling book, On Tyranny, published in 2017, Snyder wrote: “To abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is not basis upon which to do so. If nothing is true, then all is spectacle. The biggest wallet pays for the most blinding lights.”
Now that Trump is back in office, Stanley and Snyder, as well as Snyder’s Yale colleague and spouse, Marie Shore, the celebrated author of The Ukrainian Night, are leaving Yale for Canada with good reason.
Shared mutual concern
While the departure of a handful of prominent academics is hardly a trend, it raises questions about whether there will be an accelerated academic “brain drain”, or more American students in Canada.
As a Canadian, I would like to say America’s loss is our gain, and I wish these scholars well. I am also aware that narratives of flight to Canada as refuge have historically bolstered national myths while obscuring Canadian inequities. My hope is that Canadians will not observe the arrival of U.S. scholars with smugness, but instead with shared concern.
We should not be blind to this unique moment in which Canada is called to revisit why we care about Canada and keep watch on the rule of law. Yet, we must also recognize our own profound historical blind spots.
For example, while an overt threat to sovereignty is new for some Canadians, it is nothing new for Canada’s Indigenous Peoples. Today it’s important to understand the distinctively Canadian importance of Indigenous law to any reaffirmation of the rule of law tradition in Canada in the 21st century.
Too much cynicism might prevent us from acknowledging the importance of these three scholars’ decisions to leave their country and come to ours at this particular time in history. However, my hope is also that we are also inspired by their considerable truth-telling skills to demand Canada also do better.
