Over the last few days, I received several personal emails from Jewish attorneys in Toronto, expressing alarm and pain after learning from a B’nai Brith Canada press release that I had included a picture of Justice Spiro in my Twitter profile, along with a quote from political theorist and jurist Carl Schmitt, who also happened to be a Nazi. They also thought the phrase in my Twitter profile, “Schmitt lives in Toronto,” was a reference to Justice Spiro. They therefore concluded that I had compared Justice Spiro to a Nazi. I replied to them politely, but without a thorough explanation why I chose the Twitter profile picture that I did, and why it included one of Carl Schmitt’s most (in)famous statements. Although I never intended to compare Justice Spiro to a Nazi, I can understand in retrospect why some people understood that my twitter profile did just that. I am deeply sorry for the pain that I unintentionally caused them.

I feel that I also owe them an explanation. My intent with the profile and the adoption of the moniker “Schmitt Lives in Toronto” was to highlight both the lawlessness Justice Spiro displayed in his actions in connection with the hire of Dr. Azarova, and the weak-kneed institutional response of the University and the Faculty of Law to his conduct.

The lawyers who reached out to me were right to note that Carl Schmitt was a Nazi who played a role in the rise of the Nazi Party to power in German in the 1930s, and I certainly agree that his politics and actions were loathsome.

But Schmitt was much more than a run-of-the-mill Nazi apparatchik: even before the rise of Nazism, he had been recognized as a prominent conservative legal professor and a powerful critic of liberalism and the liberal ideals of the rule of law. Unfortunately, despite his association with Nazism, his writings have made a comeback in the post-9/11 world. Questions similar to those he posed in Weimar Germany about the relationship of the rule of law versus emergency law have re-emerged in the wake of 9/11. Some contemporary scholars found his searing critique of liberalism appealing, even while distancing themselves from his Nazism. For example, legal scholars such as Paul Kahn at Yale, and Adrian Vermeule at Harvard, who are each critical of liberalism in his own way, have adapted elements of Schmitt’s political critique of liberalism to their own analysis of American law. 

While the ongoing appeal of Schmitt deeply disturbs me, he has become a central figure in contemporary jurisprudential debates involving issues of democracy, constitutional law and the liberal ideal of the rule of law. Anyone concerned with preserving liberal ideals of the rule of law in today’s environment must contend with Schmitt’s critique of liberalism and the rule of law. Indeed, one of my colleagues at the Law Faculty, David Dyzenhaus, has written extensively and eloquently, in defense of the liberal ideal of the rule of law and against Schmittian conceptions of the law and politics. Outside of the narrow circle of political and constitutional theorists, and some critical humanities scholars, however, Schmitt is an obscure figure, and so it is not surprising that my twitter profile could cause confusion.

I decided to change my twitter profile to a picture of Justice Spiro, with the quote “The sovereign is he who decides the exception” shortly after the release of the Cromwell Report, and after the University and the Faculty used it to claim full vindication of their conduct after Justice Spiro intervened to block Dr. Azarova’s appointment as director of the International Human Rights Program. The University continued to claim vindication despite the searing criticism that had been leveled at the incompleteness of the Report and its unjustified conclusions by voices within the Faculty of Law and voices outside of it. I observed that Justice Spiro’s intervention and the reaction of the Faculty and the University to it, raised in principle – albeit at a much smaller scale – some of the same theoretical problems concerning how to respond to breaches of the rule of law that we at the Faculty of Law have been discussing over the last two decades since 9/11.

One of Schmitt’s most important critiques of liberalism is that liberals constitute a “chattering class.” He asserts that liberals, when push comes to shove, lack the moral courage to defend the rule of law against authoritarian assertions of sovereign privilege, even when democracy itself is threatened. I adopted the phrase “Schmitt Lives in Toronto” as a critique of the University of Toronto and the Faculty of Law’s reaction to the IHRP hiring scandal. From my perspective these institutions behaved in precisely the fashion that Schmitt predicted when their norms were threatened: by backing down. In my opinion, the institutional response to Justice Spiro’s conduct was, and to a large extent has been, one of paralysis, served with a large dollop of wishful thinking on the side. The institutional indifference to Justice Spiro’s intervention in the IHRP matter sadly confirmed Schmitt’s criticism of liberals.

As for Justice Spiro himself, his conduct mirrored that of the Schmittian sovereign. He flagrantly disregarded the applicable norms of the rule of law when he interfered in Dr. Azarova’s hire and arrogated to himself the prerogative of excepting himself from ordinary legal norms that apply to others.

Justice Spiro gave himself the authority to breach at least three different sets of legal norms, ostensibly out of concern to deal with the “emergency” arising out of the imminent hire of a scholar who had written critically of Israel and in solidarity with Palestinian human rights.

First, he must have known that the information CIJA received regarding Azarova’s imminent hire was obtained by means of an unauthorized disclosure. Legal ethics prohibited him from taking advantage of that unauthorized disclosure. Yet, that did not stop him from contacting the University and further relay additional confidential that he acquired from his contacts within the University back to CIJA.

Second, he knew that as a judge, the judicial code of ethics prohibited him from involving himself in a controversial political issue. Yet, he interfered anyway.

Third, he knew that it was inappropriate for him – from the perspective of the University and the Faculty of Law of which he considers himself a close friend– to attempt to influence a hiring process. Yet, he did so anyway.

That he did so for what he believed were altruistic reasons makes it no less an exercise of the “exception” and no less subversive of the rule of law.

Justice Spiro, it is true, has expressed “contrition” over his conduct before the Canadian Judicial Council. To my knowledge, however, he has not apologized to those whom his conduct most directly injured: Dr. Azarova, the University of Toronto Faculty of Law’s student body, and the Faculty of Law itself. He has taken no concrete steps, to my knowledge, to rectify his breaches of the norms of legality that apply to all of us, to say nothing of the norms applicable to the conduct of a sitting judge, whom we reasonably expect to abide by such norms more strictly than the ordinary citizen.

It has never been my intention to compare Justice Spiro to a Nazi: I don’t need to invent false charges to be critical of his conduct and the conduct of the University of Toronto in this sad affair. Rather, my intention was to draw parallels between the attack on academic freedom and the University’s acquiescence and broader attacks on liberal democracy and the fragility of the rule of law. I should have considered that those who aren’t versed in contemporary debates around Schmitt and his writings could interpret the choices I made on my Twitter profile differently and would be hurt as a result. Unfortunately, I didn’t, and I am deeply sorry.

This is the text of the Presidential Lecture I gave two years ago at Akhawayn University in Morocco. It addresses the current attempts of the Moroccan government to enlist historical conceptions of Sunni orthodoxy along the three dimensions of the legal (Malikism), theology (Ash’ari) and mystical (Sufism) to help resist the allure of Jihadi-Salafism, and the challenges Salafism in general poses to historical Sunnism, but why historical Sunnism, despite these challenges, offers important resources for establishing a democratic Morocco. To take advantage of those resources, however, there must be a sincere commitment to those principles. A cynical attempt to deploy  those resources to resist Salafism while failing to reform the foundations of the public order, however, risks increasing the attractiveness of heterodox religious movements, including, but not limited to, Jihadi-Salafism.

It was my distinct honor to have been invited to give the 2015 Noel Coulson Memorial Lecture at the SOAS School of Law.  Noel Coulson was one of the most prominent British scholars of Islamic law in the 20th century, and he was a canonical author for those of us who studied Islamic law in the west.  As I mentioned in the introduction to my lecture, much of my own work in Islamic law — despite my numerous differences with Coulson in specifics — is motivated by similar concerns: how to reconcile fidelity to revealed law with the legitimate needs of human society, without giving in to either utopian textualism or secular absolutism.  The topic of my talk was “Islamic Reform: Democracy or Reinterpretation?“

One of the interesting fall outs of the Arab Spring has been a renaissance of traditional Sunni quietism and support of authoritarianism as the proper response to political conflict.  As reported by CNN Arabic Service, the UAE (who else?) is now patronizing a group of Sunni scholars under the not so modest name of “The Council of Wise Muslims (Majlis Hukama’ al-Muslimin).” One of its goals, according to this article, is to revive basic doctrines of Sunnism, including, “obedience to the ruler” (ta’at uli’l-amr). The article also states that the wise ones are cautioning Muslims that democracy is not a good desired for itself, but rather, justice and stability are the aims, and these can be achieved, apparently, without democracy.  Indeed, if democracy is pursued in circumstances that are not appropriate, e.g., the Arab world, it will only lead to civil war.  What the wise ones have failed to explain, however, is why oligarchical rulers would be interested in pursuing, among other things, distributive justice.  Just sayin’.

My friend Andrew March recently published an interesting article on the use of religious arguments for public justification and their relationship to public reason.   The article is well-worth reading in its entirety for its interesting taxonomy of the different kinds of religious arguments that might be presented in political life, and crucially, how such arguments interact with different registers of political concern.  In short March argues that a much more sophisticated approach to religious argument and its relationship to a civic life in a politically liberal state is required that goes beyond the binary choice of either never admitting the legitimacy of religious arguments or always admitting them.

The latest issue of al-Ruwaq al-`Arabi, a journal published by the Cairo Institute for Human Rights Studies, is dedicated to the question of the future of the Muslim Brotherhood.  The entire issue (in Arabic) can be downloaded as a pdf from here.