My Continuing Legal Education

I. Introduction

Once upon a time, a long, long time ago, I was a student here at the Faculty of Law. That distant time was the late 1950s, only a handful of years after 1949, the glorious moment, so we were told, when Caesar Wright, Bora Laskin, and John Willis resigned from Osgoode Hall and joined the faculty. This event was central to the school's sense of itself, from its intellectual mission to its gossip.

By the time I was a student, Willis had been gone from the school for a few years, but my classmates and I saw Wright and Laskin, the two who remained, as Titans. We understood that something wonderful had happened in 1949 and that, because of what they had done, our education would be not just better but somehow special. We were told little about the other side of this watershed. We knew that Osgoode Hall had been, and then still was, a trade school, bereft of any intellectual substance. About our own school, the school they transformed, we knew nothing except that its dean had been an Irishman who had the gift of blarney but no legal education. And we knew even less about anywhere else. All we knew firmly was that 1949 was the beginning. This story still flourishes. The banner of a celebration a few years ago proclaimed that 1949 was the beginning of 'modern legal education.'

Now, more than forty years since I was a student, I know now that this story was wrong. It was history written by the winners. I know now that there was good scholarship before 1949; I know now that much of it was done by a generation of teachers who worked in the 1930s; I know now that Wright, Laskin, and Willis were themselves part of that generation; and I know now that Willis was their jewel. They produced a wide range of impressive scholarship and introduced changes that continue to shape legal thinking. They rejected the past, especially the late nineteenth century – both its ways of thinking about law and its politics. In its place, they sought new ways of thinking about law that would be, in their words, 'functional' and 'realistic,' and that would serve the changing needs of their own, modern, society. Moreover, they sought to be participants in making this new world, not merely the observers and recorders they believed their predecessors to have been. This mood and the accomplishment were captured by Willis in a single phrase sometime in the 1970s, when I told him that I was interested in this period and he exclaimed that it was 'when the world was turned upside down.'¹ I seek to recapture that accomplishment in this paper, and I shall emphasize Willis because he was the jewel and because this conference honours him.²

II The common law

Most of the writing by my scholars was about common law, an emphasis that is hardly startling. They believed that their job was not only to educate lawyers but also to support their daily work as practitioners and judges. Because the welfare and regulatory state was still in its beginnings, the bulk of this work was directed at the ordering of private affairs, and the common law and the interpretations of a few statutes that consolidated or modified it.

The dominant assumptions about this common law and its ways of thinking were derived from England, particularly from the late nineteenth century. Its basic elements were principles, arranged among subjects such as contracts and property and ideally consistent with each other. These principles changed over time although the process of change and the values at stake were rarely explored. Even though they changed, the principles were stable enough to enable making decisions. Courts determined disputes by finding the facts and then selecting and applying the appropriate principle. The outcomes might be contested, but they could and must be reached by reasoning from the...