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.

Bobby Ghosh at Time has a blog entry today disparaging the democratic skills of Egypti’s liberals and suggesting that, by contrast, the Muslim Brotherhood has a much better understanding of how democracy actually works.  There is little to disagree with in Ghosh’s post except that he perhaps understates the inability of the “secular” or “liberal” forces in Egypt to compete effectively in a democratic system.  The reason for this failing, I think, has little to do with the the inherent unattractiveness of liberal ideas in Egypt as much as it does with the class divisioins that are rife in Egypt, and that lead many of the liberal elite to believe — although they will never say so explicitly — that they are entitled to rule because they are the “best” of Egyptian society, the “awlad al-nas,” so to speak.  Parties that are actually popular are dismissed as demagogues or as exploiting the ignorance of the Egyptian masses.  Indeed, one prominent Egyptian liberal, a justice on the Egyptian Supreme Constitutional Court, no less, suggested that the votes of illiterate Egyptians should be weighted 1/2 of those of educated Egyptians.