Richard Devlin, professor emeritus at the Dalhousie University Schulich school of law, brought his expertise to the Robson Hall Distinguished Visitors Lecture Series on Oct. 25, challenging faculty and staff to rethink the foundations of the legal profession. Devlin’s lecture, “Glimpses of a Critical Theory of Canadian Law,” synthesized his 40 years of research, critically analyzing the judiciary and the judicial appointment process.
Drawing from the work of the Honourable Murray Sinclair, Devlin started the lecture by outlining how a person’s social context impacts their understanding of law. Devlin grew up in Belfast during the ’70s and ’80s, a time of great discrimination against Irish people, supported by both the British Parliament and celebrated common law judges such as Lord Denning, Lord Diplock and Lord Scarman. Shaped by the state violence and colonization of his youth, Devlin was drawn, during law and graduate school, to critical theorists whose conceptions of law mirrored his own experiences.
Devlin explained that critical theory “is an intervention and ongoing conversation on the nature of law and the function of law,” with its main focus being on the relationship between law and power. According to critical theory, the judiciary is a political institution, and judges serve as political actors. This theory posits that law is inherently indeterminate, allowing for significant judicial discretion. Devlin explained that judges are not impartial adjudicators, but rather normal people with their own thoughts and opinions.
According to Devlin, when judges construct ideas of the rule of law, the result reflects their own worldviews. Devlin argued, “Most critical theorists have strong reconstructive aspirations, programs and proposals.”
Using critical theory as a backdrop, Devlin mapped out the ongoing failures inherent in the Canadian judicial appointment process he has observed and reported on in the last few decades.
Devlin described the appointment process for federally appointed judges as an “executive failure.” On this matter, he co-authored an article titled, “Reducing the Democratic Deficit: Representation on Diversity in the Canadian Judiciary.” The 25-year-old paper argued, as Devlin explained, “that the Canadian judiciary [at the time] was hegemonically white and male.” The paper further noted “the ultimate decision in the employment process lay either with the minister of justice or the prime minister,” adding that these appointments “tended to correspond with the political ideologies of the government in power.”
To remedy this issue, Devlin and his co-authors suggested “independent judicial appointment commissions across the country [to] ensure judges were impartial, independent and purportedly representative.”
In 2016, Devlin and his co-author Adam Dodek, full professor and former dean at the University of Ottawa faculty of law, published their book, Regulating Judges: Beyond Independence and Accountability, introducing accountability, transparency and efficiency as important principles to consider in the appointment process. Devlin explained this work constructed “an alternative narrative [beyond] just independence and impartiality,” building off the criticisms in his earlier work.
Devlin wrote another article on this topic in 2017 for a conference in South Africa titled “Dirty Laundry.” This piece examined Canadian judicial appointments under the Stephen Harper government, finding that every judge appointed in Nova Scotia at the time was a personal friend of the minister of justice. Implementing the principles highlighted in his previous works, Devlin concluded that “independence was called into question, accountability was located exclusively in the executive, transparency was negligible, representativeness was very much a work in progress and efficiency was questionable.”
Devlin’s latest piece on the subject, “Trudeau’s Judicial Appointments: Good Looks Will Only Get You So Far,” was published in 2024. He argued significant issues persisted within the appointment process. “While there had been significant […] progress in terms of diversity in the judiciary, many of the other values remain underdeveloped,” he explained. “In fact, things got so bad in terms of the appointment process, there were about 60 or 70 unfilled judicial vacancies.” It was discovered that this delay resulted from the minister of justice’s office rigorously vetting candidates for their political credentials. For Devlin, this is indicative of a still underdeveloped and failed process.
Devlin’s lecture also examined the failures in judicial discipline, judicial reconstruction and the dangers inherent in the self-regulation of the legal profession. Ultimately, this lecture served as a call to action, urging legal professionals and scholars to move beyond complacency and actively reimagine a legal system grounded in genuine accountability, substantive diversity and a critical awareness of its own political nature.
His lifelong work demonstrates that understanding the law’s relationship with power is the first and most necessary step toward transforming it.
