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Australian Journal of Legal History |
I first encountered Alex Castles on a visit to Adelaide in 1994. Both his encyclopedic knowledge of and boundless enthusiasm for legal history became apparent to me, as we ambled back to my hotel, with Alex walking backwards down the street in full flight on some vital point of Tasmania’s legal past. Our second meeting was in Victoria, BC when Alex visited the law school. He had, I think, his doubts about the city. The rather ‘twee’ bed and breakfast we had arranged with its option of afternoon sherry offended his equalitarian spirit. Furthermore, when he discovered that in ‘The Stickey Wicket’ public house pride of place had been given to C Aubrey Smith, the some time captain of the Hollywood 1st XII Alex knew that he had landed on another planet! However, all was forgiven when he and I went to it on policing in Australia and Canada before an electrified classroom of students. When I met him a third time I discovered what being a sports afficionado really meant. I sat with Alex and a friend at a Melbourne v Port Adelaide footie game at which Alex made it clear a number of times that neither was a patch on his beloved Hawthorne. Remarkably no one, not even the surrounding Port Adelaide fans, took issue. Perhaps they recognized the qualities of a true enthusiast.
What all these encounters have taught me is that Alex, apart from being a man of the people, has both a passionate belief in the importance of legal history, and at the same time lives life to the full. Indeed, given the occasional post cards I get from him in exotic places such as Sarawak, I harbour the suspicion that he is a dab hand at integrating the two. His work in legal history is prodigious, painstaking and inspired.
This chapter in his honour outlines developments in Canadian legal history in the past three decades which in some respects track quite closely the blooming of Australian legal history. While it would be wrong to suggest that there has been a longstanding, open and explicit reciprocal process of influence between legal historians in the two countries, the fact that they have developed in similar tracks says much about a set of common intellectual influences that have produced interest in domestic legal history in the two countries. That would not have happened without the work of pioneers like Alex Castles. We have to thank him and his Canadian counterparts for providing the inspiration, an inspiration that has produced a body of scholarship that is now inducing legal historians to explore jointly comparisons and contrasts in the legal cultures of Australia and Canada from an historical perspective.[1]
On any relative gauge the gestation period for legal historiography in former British colonies and dominions is short. This should not be a surprise. For judges, lawyers and legal educators in these territories colonial status brought with it what Graham Parker has described colourfully as the ‘cultural cringe’ – the strong sense that it was the law and legal history of the colonial power that was the only subject worthy of analysis, scholarship and emulation.[2] It was English legal history and law refracted through versions of Blackstone that for much of the 19th century provided the inspiration for and guidance in applying English law in the colonies. Constitutional constraints, particularly the opportunity of appeal to the Judicial Committee of the Privy Council, compounded this belief that English law and legal culture were all-embracing and the only legitimate focus of speculation and research.
Fortunately there was not a complete void in colonial legal history. Alex makes clear in his monumental bibliographic work on the legal history of Australia in the 19th century that the potential for unearthing the legal history of colonial territories was being laid in the documents and publications generated within and between colonies, as well as with London.[3] There the records lay tantalizingly in libraries, courthouse basements, archival warehouses and private collections, largely untouched by scholars well into the 20th century.
English legal history which had been taught as a compulsory course in most Canadian common law schools died in the late 1960s, generally unlamented. The 1970s were to mark the beginnings of a realization that Canada had a legal history that was worthy of investigation in its own right. Professor Richard (Dick) Risk of the University of Toronto’s Faculty of Law sounded the tocsin in the cause of domestic legal history in 1973. Risk, originally a protégé of Willard Hurst at the University of Wisconsin, set out a prospectus for Canadian legal history in an article in the Dalhousie Law Journal.[4] This article identified themes that he felt were ripe for research and reporting. All of these, he suggested, showing his Hurstian colours, were susceptible to a contextualized approach that would view and explain legal developments and legal policy in terms of the broader sweep of Canadian political, social, economic and cultural history. For a while although little in the forest stirred, Risk himself took his invitation seriously. In a series of four further articles he demonstrated how corporate, commercial, property and the common law more generally had evolved in nineteenth-century Upper Canada. He traced the influence on these central areas of legal activity of the local political, social and economic culture with its roots firmly in English liberalism, Loyalism and professional conservatism. Risk also stressed the physical and human realities of the Ontario frontier that sometimes suggested and drew novel legal responses or redirected the search for inspiration elsewhere, most notably to the United States.[5] Despite his respect for Hurst, however, this work was highly sensitive to the differences as well as the commonalties in the legal cultures of the United States and Canada. An important distinguishing feature in Risk’s mind was the extent to which both the constitutional significance of English law, as well as the inherent conservatism of bench and bar, worked against significant remolding of the common law to reflect local conditions.[6] This was hardly a Hurstian evocation of the ‘boundless energy’ of the frontier as the inspiration for legal change.
The 1980s were to prove a decade of a take off in research and interest in domestic legal history in both Canada. A highly significant event in providing momentum was the launching in 1979 of the Osgoode Society.[7] This organization was the inspiration of a group of academics, judges and practitioners interested in promoting the research and recording of Canadian legal history and committed to the sponsoring of a wide range of publications designed to open up the field to scholarly endeavour.[8] The parallels with the Selden Society are obvious, although the mission of the Canadian society is far more directed to the writing of legal history than its English counterpart. To date, as the Society’s publications list indicates, the emphasis in Canadian legal historiography, differing to some extent from the Australian pattern set by Alex and carried on by Bruce Kercher, has been and continues to be on regional, provincial, and thematic histories rather than crafting a comprehensive national legal history. This reflects perhaps the long and complex legal history of the British North American colonies and of a country that, as some have suggested, can only have been constructed by a committee.[9] It became clear early on that the Society’s publications would not be limited to the traditional forms and substance of legal history. In his introduction to the first volume in the Osgoode essay series, editor David Flaherty felt no compunction about recommending to Canadian legal historians that they frame their research in the context of Robert Gordon’s distinction between ‘internal’ and ‘external’ legal history.[10] The investigation of the broader intellectual and material context in which law has developed is as important, if not more so, he argued, than an appreciation of the internal principles, rules and mechanics of the legal system. Moreover, he regarded the theoretical models established by American scholars of the stamp of Lawrence Friedman, Willard Hurst and Morton Horwitz as inspirations for Canadian legal historical scholarship.[11]
A second important development was the growth of interest in legal history in some history departments. In several cases, there were historians who had legal history as a major focus of their research and teaching. Lou Knafla at the University of Calgary, already known for his work on Jacobean English legal history, took the lead. In 1986 he published a pioneer book of essays on the legal history of western Canada.[12] These were linked by an inspired lead essay by the author that combined synoptic outline, thematic suggestion and the conceptual influences of the Common Law tradition on local colonial law and its remolding to fit frontier conditions.[13]
That the call of ‘external’ legal history had struck a responsive chord in Canada was evident at the 1987 Canadian Law in History Conference at Carleton University organized by Wes Pue and Barry Wright which showcased a rich sampling of this type of scholarship. In the essays that followed stress was laid on the value of ‘new’ legal history with its roots firmly in the progressive and critical schools of the social sciences in opening up inquiry into legal culture, its influences and impact in their fullness. Firmly placed on the research table was the importance of theory in both framing research and interpreting its results while preserving rigorous research methods.[14] Here was a clear call to scholars to recognize the value to interpretation of the historical record of both law and society and critical legal studies scholarship.
The 1990s were the decade in which the full flowering of legal history began to occur in Canada. In a very real sense it is in this ten year period that scholarship in the domestic legal history of the country came of age.[15] What strikes one immediately about that scholarship is its diversity in substance, theoretical context and methodology. This corpus of legal history is a far cry from the concerns of traditional English legal history focused primarily, as it was, on the evolution of the Common Law, the Royal courts, and the cast of characters who administered them and made decisions or practiced in them. While by no means entirely ignoring law, legal thought and legal institutions in this more particular sense, the focus of contemporary legal historical scholarship in Canada is broad. This work extends well beyond the courts and their denizens to law and legal culture in all its complexity. There is emphasis on: the legislative, administrative and ‘policing’ functions, and private ordering; the impact of law on all manner of people from the privileged to the marginalized, as well as their effect on it; the legal culture of particular regions and communities; law’s place in the broader culture and between competing cultures; case studies and story telling as a means of dramatizing law’s operation; as well as on the history of legal doctrine and legal biography. Scholarship in this field now extends more obviously than in the past to investigation of cultural factors, social forces and values, ideological and intellectual impulses and political and economic realities. In turn it takes account of the impact of law and legal culture on intellectual thought and on the community and life more generally. Legal history attracts researchers whose academic interests lie in geography, political science, English and linguistics, sociology, anthropology, criminology, cultural and ethnic studies and economics, as well as in law and history. The sources of intellectual inspiration are also varied. conservative, liberal, Marxist, feminist, post-colonial and post-modernist thought is all represented in the scholarship. A rich body of theory is being employed in postulating hypotheses and in interpreting results, including discursive, critical, structuralist, feminist and Foucauldian, alongside more traditional, evolutionary and rationalist models. There is also methodological diversity. A wide range of documentary, archival and increasingly oral evidence is being interrogated by the use of empirical, statistical, linguistic, literary as well as by doctrinal, institutional, policy and biographical analysis.
The range and richness of the substance and methodology of colonial legal history, in this instance of Canada is easily explicable. The colonial legal history of settler colonies is simply the history of modernity in particular geographical, politico-economic and cultural settings. This message which is implicit in Alex’s work is now informing legal historical scholarship in both countries. The establishment of colonies of the second British Empire was directly related to the restless spirit of economic expansion and technological ingenuity unleashed by the Industrial Revolution.[16] The idea of empire had been lodged in western consciousness in the latter centuries of the medieval era and the Renaissance, and several commercial empires were active by the 17th century. However, the boost given to trade by new technologies and knowledge and the accumulation of capital, especially in Britain, were to strengthen the beliefs that empire was necessary to enhance the power and welfare of colonizing nations. Colonization was also seen as having the ancillary benefit of bringing the fruits of real civilization to the rest of the globe. [17]
The role of the state in the promotion of industry, commerce and transportation has been important in colonial societies, especially those established during or after the Industrial Revolution. Its financial resources and access to them, as well as its capacity to guarantee funding from private sources has often been crucial to colonial economic development.[18] The result in institutional terms has been the development of a myriad of institutions and processes through which the state governs and regulates the affairs of its people and economic interests. These structures also enable interest groups to manage their affairs in ways acceptable to the state, or to press for state intervention to deal with serious generic problems.[19]
The face of modernity in former colonial settler societies has also been complex in a cultural sense. Political and economic upheaval, the ravages of war, displacement of populations as well as economic opportunity and the dislocations of colonization itself have led to significant migration into these countries from other parts of the globe. These movements occurred in part during a time in which a culture of racial superiority had emerged fed by strong western European belief in the destiny of that portion of the world to have achieved the highest rung on the ladder of civilization. This was accompanied by sense that western Europeans had been called to educate the rest of humankind. Both sentiments worked against understanding of or empathy with other cultures. These attitudes were manifest in intensely racist policies towards immigrants who were seen as both an economic threat and culturally inferior. In Canada, as well as in other settler territories, that often meant any one or group who was not of British or northwest European stock, but was most intense in the case of non-European immigrants, especially Asians.[20]
In terms of justice former colonies such as those which formed Canada, founded as outposts of European resettlement, have faced and continue to face an additional and more fundamental challenge. What should they do about the uneasy coexistence of individualistic western political, social and economic culture and the customary communal cultures of indigenous peoples with fundamentally different conceptions of law and governance and understandings of their relationship to the land than the newcomers? The answers to this question that have ranged from extermination to assimilation have been tragic and often genocidal for the Aboriginal peoples in question. However, many of those peoples have resisted complete cultural destruction and integration and with remarkable patience claimed and continue to claim their right both to their land and to self-determination.[21] The relationship between former colonial settler colonies and their indigenous inhabitants is ‘unfinished business’ in both cultural and legal senses.
It is idle and naïve to suppose that law stood in splendid isolation from these events. Law acted as both an agent and conditioner of this process of cultural transformation, and, in turn, was affected by it. As a consequence it became a much more complex body of knowledge and practices than was true of either ancient or medieval law.[22] As modern societies have become more complicated structurally so inexorably has law. Law and regulation exist in many forms and in many places. Far from being simply the order of the sovereign, if ever it was, law is increasingly fragmented, playing out at multiple levels and in multiple jurisdictions and forums.[23] These realities have affected the work and focus of both legal historians and scholars working in other branches of history and in the humanities and social sciences more generally.[24]
The study of legal history, insofar as it involves descriptions and interpretations of modernity, will inevitably draw upon the knowledge and insights spawned by the new disciplines which are themselves products of modern thought and curiosity and the quest to explain the phenomena of modern societies. In this sense the trends in modern legal historical scholarship away from attempts at objective description of law and legal institutions to an understanding of their contingency and value-laden character is irresistible and unavoidable, even though there is danger of ignoring the role of historical accident and professional creativity that features for instance so powerfully in the work of Milsom.[25] Moreover, there are clearly now as previously areas of law in which tradition and professional conservatism have loomed large that resist historical explication in broader structural or functional terms. There is no reason, however, why as Roscoe Pound once eloquently hinted, any of these ways of framing the legal historical agenda should be excluded. They all provide insights into the reality of modern legal culture.[26]
What, then, has been particularly notable about the growing corpus of legal history in Canada in the past fifteen years or so? First of all, contemporary Canadian legal history embraces a diverse range of institutional histories. Courts continue to feature as an important element in scholarship. However, their work is now viewed clearly in the context of the political, social and conditions in which they have operated, which have affected their decisions to one degree or another and which have been in turn affected by what they have done. For example in the case of the Supreme Court of Canada, the perspectives brought to its history by social historians and political scientists have done much to relate its work more closely and critically to political, economic and social beliefs and practices. As James Walker has reminded us in his recent inspired study of the treatment of race historically in that court, the very adoption of supposedly neutral and objective methods in deciding cases, in this context involving racial discrimination, embodies a political choice with clear ideological roots.[27]
Two sets of work on the legal profession deserve particular mention because they consciously relate the lives of lawyers to the society of which they have been a part and in which they have often enjoy significant political, economic and social status. The first comprises essays on the role of lawyers and law firms in business and broader professional and political pursuits.[28] The second is the work of an international group of scholars investigating the cultures of the legal professions within the more general public cultures in which they operate. The research on the cultures of lawyers in the colonies has been assisted by a growing corpus of post-colonial scholarship which has revealed the much more complex and self-interested nature of colonial rule than traditional historiography would allow.[29] One sees very clearly in both areas of scholarship the implication of lawyers at the centre of power in colonial societies and their successors. As well, their role as the agents of spread of the principles and values of British governance and English law into these vast, sprawling land masses is more precisely revealed.[30] Here is one of those points at which Canadian and Australian scholars are working together through the efforts of Wes Pue and Rob McQueen.
Contextualization and the drawing of connections between the development of European law and settler culture in these colonial territories is essential. The founding of colonies represented ‘political acts’.[31] Life for those who settled in them represented in part a world in which the individual and communities experienced the pulls (often contradictory) of imperial policy, local needs and contested understandings of what was meant by the terms the ‘rule of law’, and ‘the rights of freeborn Englishmen’. Contention also existed over the extent to which those rights were or were not recognized in colonial arrangements. They featured too in the degree to which unadulterated English law was carried to the new colonies or tempered by the felt need to craft law and legal institutions to the physical demands on and human needs of the colonists.[32] The fact that these settlements were viewed variously as dependents of the colonial power exacerbated the tensions that emerged.[33] Overshadowing all other issues was the matter of political, legal, social and economic relations with the original inhabitants of these lands.
These features of imperialism and the colonial condition are reflected in recent work on Canadian legal history in the colonial period. The British North American colonies witnessed vigorous and sometimes vicious debate about the role of law as the delimitation, regulation and facilitation of human conduct. Discussion of these matters overflowed from the legislative bodies into the courts, the press and other public forums. The two Canadas (Lower and Upper) had been formed in 1791 with the hope that they would be models of what good colonization and settlers could achieve under the benign tutelage and guidance of mother Britain in the wake of the American Revolution. It was evident, however, within the first ten years of their existence that there were inner tensions within the settler communities and between them and imperial and colonial governments over the nature of governance and constitutional and legal rights.[34] The frustration level caused by these tensions was to result ultimately in the rebellions of 1837-8 in the two colonies.
An important milestone in the historiography of law and the struggle for rights in colonial and post-colonial societies be they political, religious, social, economic or cultural is likely to be the set of volumes on Canadian state trials edited by Barry Wright and Murray Greenwood. The first volume published in 1996 provides an exciting model for presenting political trials in modern historiography.[35] Unlike the State Trials series in the United Kingdom which took a discrete and identifiable series of cases in which the state prosecuted crimes against the state and public order, this collection ranges more widely in the jurisprudence for both reported and unreported cases involving the prosecution of political dissent. Rather than binding them into a series, it presents them through a collection of historiographic essays on the state’s prosecution of dissenting individuals and groups, with a selection of relevant primary documents relevant to each episode or theme. The editors provide the overarching commentary that puts the essays and case materials into a broader analytical and critical matrix.[36]
Feminist theory and interpretation has been deployed effectively in Canada in investigating both criminal and civil law and its application to women and other subject populations. Feminist legal historians have been able by virtue of prodigious archival research, the excavation of sources of popular history and statistical analysis to show conclusively the existence of a broad gender bias by a system that was irrefutably patriarchal in terms of its values and assumptions. This manifest itself both in the construction of the law itself and in its application as between men and women. This work also raises profound questions about whether reform of the law, ostensibly to improve the lot of women as complainants, for example in rape cases, as offenders, for instance in morals prosecutions, and as plaintiffs in child custody or divorce cases actually rid the system of the incubus of patriarchy. Connie Backhouse who has been a leader in this area of scholarship argues convincingly that it did not.[37]
Finally, there is in Canadian legal historiography the recognition that the law is at the centre of the continuing struggle of Aboriginal people in Canada for recognition of their title to land and a right to self-government. It is the source of many of the problems that Aboriginal peoples face. At the same time it is a medium for arguing that both as a matter of Aboriginal law and Common Law their rights to land and their systems of governance were never or were illegally extinguished by the Crown or colonial governments. Recent scholarship by both Aboriginal (John Borrows and James Youngblood Henderson) and non-Aboriginal (Hamar Foster and Sid Harring) shows that, despite the aberrations of law and policy in the colonies and dominions in divesting indigenous peoples of their lands and birthright, they consistently maintained their position that the land was still theirs and that its use and management was rightfully subject to their law and customs. Moreover, they were often resolute in asserting that the legal system of the colonizer had accommodated or was capable of accommodating both Aboriginal rights and title.[38]
What of the connection between this impressive growth of research and the teaching of legal history in Canada? The various forces inspiring interest in teaching and research into legal history in Canada came together in the establishment of annual workshops on legal history for interested academics held each summer between 1983 and 1987 at the University of Western Ontario.[39] The inspiration provided by these workshops was to provide a great boost to the revival of the teaching of legal history in Canadian law schools. By the late 1980s, legal history had been reincarnated in Canada with a majority of common law schools providing at least one option, typically in Canadian legal history. Currently, one legal history course is offered in almost every Canadian common law school, and in some there are two or more. Accordingly, in addition to more generalized coverage of aspects of Canadian legal history, options may be available to students in criminal justice history, comparative colonial legal history, the history of the legal profession, the history of law and society, the history of Aboriginal rights and, even, English legal history. These law school courses are complemented by a small but growing list of offerings in history, criminology and sociology departments.[40]
Looking forward, it is becoming apparent that enough groundwork has been covered in the history of modern legal systems, especially those that share the same roots and heritage, to make possible comparisons and contrasts of colonial legal cultures. This reality opens up a rich new area of speculative historiography. One such experiment is a collaborative teaching venture in comparative colonial legal history that may have considerable implications for twenty-first century joint teaching enterprises and research across former colonial boundaries. Legal historians teaching at Australian National University, the University of British Columbia and the University of Victoria have collaborated to link their courses in colonial legal history.[41] Macquarie Law School has recently joined the program. Under this program, OZCAN students are challenged to develop an understanding of and a broader context for interpreting law and culture in both Australian and Canadian colonies through the medium not only of a narrative text, but also through various artifacts (maps, photos and artwork), ballads, poetry, historical novels, videos, CDs and CD Roms. Reflection on the materials is encouraged through a combination of questions in the text and the use of an interactive discussion program, Web Board, first with their peers and then with students from the other law schools.[42] Such pioneering intercontinental legal history teaching programs promise new forms of comparative law teaching, rich in the potential to expand the intellectual sights and ambitions of participants beyond the limits of domestic legal cultures, to begin to comprehend other legal cultures and to engage in keen and enlightening dialogue with students and faculty a world away.[43]
It is significant that in the space of three years there should have been conferences held and festschifts published in honour of the respective pioneers of Canadian and Australian legal history. A festschrift for Dick Risk was published in 1999 by the Osgoode Society after a conference in his honour. This present work is in part an outcome of the Australian and New Zealand Legal History conference in honour of Alex in 2000. The contribution of Lou Knafla to Canadian Legal History was similarly recognized in a conference in Vancouver in the autumn of 2001 with a book of essays to follow. These celebrations, I would suggest, reflect the ‘coming of age’ of domestic legal history in the two countries and point to new horizons opening up before us. We all owe much to these individuals who had the vision, guts and energy to lay the basis for the legal history of Canada and Australia. To Alex Castles in particular a very great ‘thank you’ is due.
[*] Lansdowne Professor of Law, University of Victoria, British Columbia.
[1] See A R Buck, John McLaren and Nancy Wright (eds), Land and Freedom: Law, Property Rights and the British Diaspora (2001); Diane Kirkby and Catherine Colborne (eds), Law, History and Colonialism: The Reach of Empire (2001); Peter Karsten, Between Law and Custom: ‘High’ and ‘Low’ Legal Cultures in the Lands of the British Diaspora – The United States, Canada, Australia and New Zealand 1600-1900 (2002).
[2] Graham Parker, ‘Canadian Legal Culture’ in Louis Knafla (ed), Law and Justice in a New Land: Essays in Western Canadian Legal History (1986) 3, 18.
[3] Alex Castles, Annotated Bibliography of Printed Materials on Australian Law, 1788-1900 (1994).
[4] R C B Risk, ‘A Prospectus for Canadian Legal History’ (1973) 1 Dalhousie Law Journal 227.
[5] R C B Risk, ‘The Nineteenth-Century Foundations of the Business Corporation in Ontario’ (1973) 23 University of Toronto Law Journal 270; ‘The Golden Age: The Law About the Market in Nineteenth-Century Ontario’ (1976) 26 University of Toronto Law Journal 307; ‘The Last Golden Age: Property and the Allocation of Losses in Ontario in the Nineteenth Century’ (1977) 27 University of Toronto Law Journal 199; ‘The Law and the Economy in Mid-Nineteenth Century Ontario: A Perspective’ (1977) 27 University of Toronto Law Journal 403.
[6] A particularly instructive piece which shows how as time went on Ontario’s judges became increasingly less creative is R C B Risk, ‘Sir William R Meredith: The Search for Authority’ (1983) 7 Dalhousie Law Journal 713.
[7] Now the Osgoode Society for Canadian Legal History.
[8] The Society has had a professional historian, Peter Oliver of York University at the helm as general editor.
[9] The first two volumes of essays focused largely on central Canada, in particular Ontario – see David Flaherty (ed), Essays in the History of Canadian Law, Vols. I & II (1981, 1983). Since those volumes there have been six more, two dedicated to other regions (Philip Girard and Jim Phillips (eds), Essays in the History of Canadian Law, Vol III, Nova Scotia (1990); Hamar Foster and John McLaren (eds), Essays in the History of Canadian Law, Vol VI, British Columbia and the Yukon (1995)), two to the history of the legal profession (Carol Wilton (ed), Essays in the History of Canadian Law, Vol IV, Beyond the Law: Lawyers and Business in Canada, 1830-1930 (1990); Essays in the History of Canadian Law, Vol VII, Inside the Law: Canadian Law Firms in Historical Perspective (1996)), one to a substantive theme (Jim Phillips, Tina Loo and Susan Lewthwaite (eds), Essays in the History of Canadian Law, Vol V, Crime and Criminal Justice in Canadian History (1994)) and one to a festschrift (Baker and Phillips (eds), EHCL, Vol VIII, Richard C B Risk: A Tribute).
This approach differs from that in Australia, for instance, where several pioneers in the field have written national legal histories. See Alex Castles, An Introduction to Australian Legal History (1971). The revised version is entitled An Australian Legal History (1982). Also Bruce Kercher, An Unruly Child: A History of Law in Australia (1995).
[10] Flaherty, above n 9, 12. Flaherty was at that time a specialist in American colonial history teaching at the University of Western Ontario.
[11] Flaherty, above n 9, 13-19.
[12] Among Knafla’s many publications on English legal history is L Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (1977). Previous to the 1986 work he had put on and published the proceedings of several conferences. See D Bercuson and L Knafla (eds), Law and Society in Canada in Historical Perspective (1979); L Knafla (ed), Crime and Criminal Justice in Europe and Canada (1981).
[13] Knafla, above n 2. His introductory essay is entitled: ‘From Oral to Written Memory: The Common Law Tradition in Western Canada’ 31-77. Rod Macleod, an historian of criminal justice and author of the definitive work on the Northwest Mounted Police at the University of Alberta worked with Knafla on rationalizing the provincial archives for legal historical research, while continuing his own path breaking research in policing and criminal justice. See R C Macleod, The Northwest Mounted Police and Law Enforcement 1873-1905 (1976).
[14] W Wesley Pue and Barry Wright (eds), Canadian Perspectives on Law and Society: Issues in Legal History (1988). The founding of the Canadian Law and Society Association and its journal in 1985 no doubt encouraged this trend.
[15] The legal historians who had emerged in the early to mid-1980s by this time had vigorous research agendas. New adherents had been added to the ranks during the latter part of that decade, and the expansion of legal history courses was producing graduate students working in the field and moving into teaching positions. The momentum was also assisted by interaction with legal historians elsewhere. United States legal historians, most notably Willard Hurst, John Philip Reid, Morton Horwitz, Robert Gordon and Lawrence Friedman, had had a profound influence on Canadian legal historians over the years as graduate supervisors, workshop leaders and through the influence of their writings. The emergence of legal historians in Britain whose focus is modern legal history and who counted themselves as critical legal studies or law and society enthusiasts also made for interaction and communication. Canadian graduate students studied with them, and several of them visited and presented in North America. The leader in this context has been and continues to be the amazingly energetic, prolific and always insightful David Sugarman.
[16] For a helpful overview of this process in the English context, see Roy Porter, English Society in the Eighteenth Century (1982) 329-57. David S Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1972) 41-192 traces both the Industrial Revolution in Britain and then its emulation on the continent. Peter Stearns, The Industrial Revolution in World History (1993) looks at the global implications of the Industrial Revolution.
[17] For a succinct and helpful examination of the connections between trade, technology and empire, particularly in the British context, see E J Hobsbawm, Industry and Empire: An Economic History of Britain since 1750 (1968) 50-54. On the cultural significance of the connection, see Linda Colley, Britons: Forging the Nation 1707-1837 (1992) 61-77.
[18] See Peter Busby Waite, Canada 1874-1896: Arduous Destiny (1971). On the symbiotic relationship between the state and industry in the primary resources sector in Canada, see H V Nelles, The Politics of Development: Forests, Mines & Hydro-Electric Power in Ontario 1849-1941 (1974).
[19] See eg, J Struthers, The Limits of Affluence: Welfare in Ontario, 1920-1970 (1994).
[20] R Huttenback, Racism and Empire; White Settlers and Coloured Immigrants in the British Self-Governing Colonies, 1830-1910 (1976); Peter Ward, White Canada Forever: Popular Attitudes Towards Orientals in British Columbia (2nd ed, 1990); Patricia Roy, A White Man’s Province: British Columbia Politicians and Chinese and Japanese Immigrants (1989).
[21] For examples of the historiography of Aboriginal-settler relations, see Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890 (1977); J R Miller, Skyscapers Hide the Heavens: A History of Indian-White Relations in Canada (revised ed, 1991); Olive Patricia Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times (1992); Arthur J Ray, I Have Lived Here Since the World Began: An Illustrated History of Canada’s Native People (1996).
[22] For an evocative treatment of this reality in English legal history, see David Sugarman and G R Rubin, ‘Towards a New History of Law and Material Society in England 1750-1914’ in G R Rubin and David Sugarman (eds), Law, Economy and Society, 1750-1914: Essays in the History of English Law (1984) 1.
[23] The effects of this reality on scholarship can be observed at a very simple level by comparing the organization and substance of a conventional text on English legal history in a medieval and early modern context, such as J H Baker, Introduction to English Legal History (3rd ed, 1990) and in a modern context, such as W R Cornish and G de N Clark, Law and Society in England 1750-1950 (1989).
[24] David Sugarman, ‘Introduction’ in D Sugarman (ed), Law in History: Histories of Law and Society, Vol I (1996) xv-xvi encapsulates this scholarly trend and its intellectual impact well: The last three decades have witnessed a remarkable renaissance of the history of law, legal institutions and the relationship between law and society. While remaining distinct fields of inquiry, a degree of convergence has taken place as more and more historians are recognizing that the history of law in society is too important to be left to lawyers. The traditional boundaries separating legal histories from other varieties of history (social, political, intellectual, economic, cultural, gender business etc.) have been challenged by a ‘new legal history’. Increasingly, law is treated not as some dry functionally dependent variable or superstructure, separate from and marginal to ‘society’ and ‘economy’, but as one of the major constitutors of society and economy. From this perspective, law, society and economy were (and are) inextricably mixed.
[25] S F C Milsom, Historical Foundations of the Common Law (2nd ed, 1981).
[26] Roscoe Pound, The Spirit of the Common Law (first published 1921, Reprinted 1966) 205.
[27] James W St G Walker, ‘Race’, Rights and the Law in the Supreme Court of Canada (1997). Fred Vaughan and James Snell for their part have noted that a weak court, which is how the Canadian Supreme Court was viewed for much of its history, says as much about external expectations and lack of support as it does about the quality of the jurists and their work. See James G Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (1985) xi-xiii.
[28] Two books of essays from the Osgoode Society stable deserve mention here: Carol Wilton (ed), Essays in the History of Canadian Law, Vol IV, Beyond the Law: Lawyers and Business in Canada, 1830-1930 (1990); Essays in the History of Canadian Law, Vol VII, Inside the Law: Canadian Law Firms in Historical Perspective (1996). The former volume has helpful essays by Robert Gordon and David Sugarman on American and British historiography in this field.
[29] See eg, Rob McQueen and W Wesley Pue (eds), Misplaced Traditions: British Lawyers, Colonial Peoples (1999). Work is in progress by some of these scholars that suggests that what may have seemed like a monolith was in fact sometimes fragmented and challenged from within. This was a mark not so much of differences of opinion on the need for a legal profession, but of ideological divergence over whose interests needed the greatest protection. See the paper presented by Rob McQueen, ‘Together We Fall, Divided We Stand: The Victorian Legal Profession in Crisis 1890-1940’ (Paper presented at ‘Land and Freedom’, 18th Annual Conference Australia and New Zealand Law and History Conference, Newcastle, NSW, July 1999).
[30] Also valuable in this context are Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (1997) and C Ian Kyer and Jerome E Bickenbach, The Fiercest Debate: Cecil A Wright, The Benchers and Legal Education in Ontario, 1923-1957 (1987).
On the important role of Attorneys General in the administration and political life of Canadian colonies and provinces, see Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature 1791-1899 (1986).
[31] See John Manning Ward, Colonial Self-Government: The British Experience 1759-1856 (1976).
[32] On the roots of these considerations, see John Philip Reid, The Concept of Liberty in the Age of the American Revolution (1988); Jack P Greene, ‘Empire and Identity from the Glorious Revolution to the American Revolution’ in P Marshall (ed), The Oxford History of the British Empire, Vol II, The Eighteenth Century (1998) 208-30. For its impact in later legal and political discourse, see Greg Marquis, ‘In Defense of Liberty: 17th-Century England and 19th-Century Maritime Political Culture’ (1993) 42 University of New Brunswick Law Journal 69.
[33] This was true whether the colony’s governance replicated British legislative institutions and those of English law, or the territory was closely held under gubernatorial diktat.
[34] Ward, above n 31, 4-81. On the tensions see, F Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution (1993); Jane Errington, The Lion, the Eagle and Upper Canada: A Developing Colonial Ideology (1987); Robert Fraser, ‘All the privileges which Englishmen possess: Order, Rights and Constitutionalism in Upper Canada’ in R Fraser (ed), Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography (1992) xxi-xcii. The rule of the two colonies was complicated by their ethnic and political makeup – Lower Canada with a traditional conservative Francophone, largely rural majority co-existing with an aggressive Anglophone, largely urban commercial minority and in Upper Canada, Loyalists from the former American colonies living cheek by jowl with later land hungry immigrants from the United States and British settlers reflecting a wide span of political views and social status.
[35] F Murray Greenwood and Barry Wright (eds), Canadian State Trials, Volume 1, Law, Politics, and Security Measures 1608-1837 (1996). Sadly, Murray Greenwood passed away in 2000, but the project continues as he would have wished.
[36] Ibid 3-51.
[37] See Constance Backhouse, Petticoats and Prejudice: Women and the Law in Nineteenth Century Canada (1991). Backhouse does an equally impressive job in de-constructing Canadian racism and its impact on the law in her latest book, Colour Coded: A Legal History of Racism in Canada, 1900-1950 (1999). See also Lori Chambers, Married Women and Property in Victorian Ontario (1997). For other impressive work that blends both feminist and Foucauldian readings, see Mariana Valverde, The Age of Soap, Light and Water (1991); Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City, 1880-1930 (1995); Carolyn Strange and Tina Loo, Making Good: Law and Moral Regulation in Canada (1997).
[38] See Sid Harring’s recent penetrating study of the treatment of Canada’s First Nations by the law during the nineteenth century, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (1998). See also H Foster ‘Sins Against the Great Spirit: The Law, the Hudson’s Bay Company and the Mackenzie River Murders, 1835-1839’ (1989) 10 Criminal Justice History 23; ‘Long Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas 1763-1859’ (1990) 34 Am J Legal History 1; ‘Forgotten Arguments: Aboriginal Title and Sovereignty in the Canada Jurisdiction Act Cases’ (1992) 21 Manitoba LJ 343; ‘The Queen’s Law is Better than Yours: International Homicide in Early British Columbia’ in J Phillips, T Loo and S Lewthwaite (eds), Essays in the History of Canadian Law, Vol V (1994) 41-111; ‘Letting Go the Bone: The Idea of Indian Title in British Columbia, 1849-1927’ in H Foster and J McLaren (eds), Essays in the History of Canadian Law, Vol VI, 28-86; ‘British Columbia: Legal Institutions in the Far West from Contact to 1871’ (1996) 23 Manitoba LJ 293; ‘A romance of the Lost: Tom MacInnes’ Role in the History of the B C Indian Land Question’ in G Blaine Baker and J Phillips (eds), Essays in the History of Canadian Law, Vol VIII (1999) 171-212; J Borrows, ‘A Genealogy of Law; Inherent Sovereignty and First Nations Self-Government’ (1992) 30 Osgoode Hall LJ 291; ‘With or Without You: First Nations Law (in Canada)’ (1996) 41 McGill LJ 629; James (sakej) Youngblood Henderson, ‘The Struggle to Preserve Aboriginal Spiritual Teaching and Practices’ in J McLaren and H Coward (eds), Religious Conscience, the State and the Law: Historical Contexts and Contemporary Significance (1999) 168-188; ‘Mikmaw Tenure in Atlantic Canada’ (1995) 18 Dalhousie LJ 196.
[39] For a taste of the significance of these workshops see R Gordon and D Sugarman, ‘Richard C B Risk: A Tribute’ in Baker and Phillips (eds), Essays in the History of Canadian Law, Vol VIII, (1999) 3, 5-7. Among other legal historians who lectured at workshops were Morton Horwitz, G Edward White, Dirk Hartog, John Beattie, Connie Backhouse and David Flaherty. Interestingly, these programs and the beneficial effect they had coincided with a critical and insightful study of legal education in Canada. See Consultative Group on Research and Education in Law, Law and Learning: Report to Social Sciences and Humanities Research Council (1983) (the ‘Arthurs Report’).
[40] Such as the work of Lou Knafla in history at Calgary, Russ Smandych in sociology at Manitoba and of Barry Wright from the Department of Legal Studies at Carleton University.
[41] Although the courses are separately listed at the three institutions, the course materials that are all available on the web are common.
[42] Once facility with on line discussion has developed, students move onto interactive modules in which discussion in groups comprising students from each of the three schools is set off by a series of provocations. These modules are more focused than the earlier ones and cover five themes: crime and morality; Aboriginal-settler relations; immigration and citizenship; labour unrest; and, the cultures of the legal profession. Video conferencing is also used to introduce the three groups of students to each other. Apart from the merit of providing a forum for reflection among and communication by students on two continents, the programme also allows for the pooling of faculty expertise and the participation of other legal historians elsewhere in the world as commentators and resource experts.
[43] For fuller accounts of the programme and its challenges, see D Harris, et al, ‘Community Without Propinquity – Teaching Legal History Intercontinentally’ (1999) 10 Legal Education Rev 1; Ozcan, ‘Webbing the Pacific – Teaching an Intercontinental Legal History Course’ (2000) 18(2) Law and History Rev 445.
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