Western legal tradition has protected individual autonomy better than any other legal system in history. The problem is that for decades that tradition, and the culture from whence it came, have slowly been eroding.
Many years ago, as a new law student, I had a moment of disbelief. “Surely it doesn’t really work this way,” I thought to myself as I sat in an early class. The law, I discovered, is not a set of immutable rules, predictable and secure. Instead, it is rife with ambiguity, riddled with uncertainty, and subject to the whims, temperaments and follies of human beings who make and apply it. And yet, as I also came to realize, it has often worked well. The Western legal tradition, upon which the Canadian system is based, has protected individual autonomy better than any other legal system in history. The problem is that for decades that tradition, and the culture from whence it came, have slowly been eroding. And now, during COVID, when the law has let us down, there is a tide in the affairs of Canadians.
Late last week, three colleagues and I launched the Free North Declaration , a call to defend civil liberties in this country, which lawyers and members of the public are invited to endorse. So far more than 6,000 have done so, including over 100 lawyers. The declaration outlines the ways in which legal authorities — legislatures, governments, public health officials, professional regulators, administrative bodies and public institutions — have restricted Canadians’ liberties during the COVID-19 pandemic. They have done so shrewdly, to attempt to remain inside the strict letter of the law and to avoid triggering protections in the Charter of Rights and Freedoms. Over the past year and a half, legal challenges to lockdowns and quarantines have mostly failed in the courts, whose decisions have largely embraced governments’ COVID narratives.
Canada was in trouble as soon as COVID hit. “Crises are an ideal time for the state to advance into territory from which it will not wish to retreat,” I wrote in the Financial Post in April 2020. “In this new era, we will discover that leaders of all political stripes have more than a little Lenin in them.” It is 20 months since “two weeks to flatten the curve,” and Canadians’ liberties are under siege like never before.
Canadians’ liberties are under siege like never before.
It may not seem that way if you are double-vaccinated and going to restaurants and concerts again, but keeping your hall pass will require booster shots on schedule. The caring arms of the pharmaceutical industry and public health are now reaching out to protect kids from nonexistent risk. The purpose of vaccine passports, authorities have acknowledged, is not to control spread of the virus, which vaccinated and unvaccinated both can do, but to pressure people to get jabbed. How much and for how long vaccines reduce the risk of infection are in dispute. Meanwhile, the Centers for Disease Control and Prevention has no record of any unvaccinated person spreading COVID after recovering from it. Masking persists everywhere, along with the idea upon which this tragedy began: Governments must keep us safe from viruses and the vicissitudes of life.
The panic-demic did not start the fraying of the Western legal tradition, which has been underway for decades. In 1975, Prof. Harold Berman lamented that the idea that law transcends politics and is distinct from the state — a feature of that tradition — had “yielded to the view that law is at all times basically an instrument of the state, a means of effecting the will of those who exercise political authority.” The instrumentalist, managerial state runs on the arrogance of experts, who believe that ordinary people cannot make their way in the world without direction from them. As Friedrich Hayek wrote, “there could hardly be a more unbearable — and more irrational — world than one in which the most eminent specialists in each field were allowed to proceed unchecked with the realization of their ideals.” But experts now have control, and they do not plan to give it up.
No longer does the individual have the right to act without regard for “public good.” Instead, authorities will return the freedom to make your own choices only when it is safe to do so. While we were sleeping, the individual became subordinate to the collective. People are apt to believe that the law will save them when things go bad, but simply taking cases to court won’t fix this. The law is subject to cultural tides and currents, and when the culture goes askew, the law will provide little refuge.
Alone, the Free North Declaration will change nothing. It will not influence omnipotent moral busybodies exercising tyranny for the good of its victims, as C.S. Lewis put it. Nor will it move people comfortable with giving up responsibility for their own decisions. Instead, the declaration is for those who see that something is not right in this country, and who need to know that others see it, too — and that there are still lawyers who will stand up for their freedoms. As Aleksandr Solzhenitsyn wrote, let each of us make a choice: “Whether consciously, to remain a servant of falsehood — of course, it is not out of inclination, but to feed one’s family, that one raises his children in the spirit of lies — or to shrug off the lies and become an honest man worthy of respect … And he who is not sufficiently courageous even to defend his soul — don’t let him be proud of his “progressive” views, don’t let him boast that he is an academician or a people’s artist, a merited figure, or a general — let him say to himself: I am in the herd, and a coward. It’s all the same to me as long as I’m fed and warm.”
When the tide comes, we must take the current or lose the country. Please join us in the voyage of our lives.
Bruce Pardy, reprinted from National Post.
Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.