Who's Afraid of Canadian Legal History?

I Introduction

The 'new legal history' has flourished in Canada over the last three decades, ever since André Morel and John Brierley began their pioneering work in the history of Quebec law in the 1960s¹ and R.C.B. Risk published his 'Prospectus for the Study of Canadian Legal History' in 1973.² A recent survey of the field describes this body of scholarship as

striking in its diversity in substance, theoretical context and methodology, ... a far cry from the concerns of traditional English 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.... [T]he focus of contemporary legal historical scholarship in Canada ... extend[s] well beyond the courts and their denizens to law and legal culture in all its complexity.³

Legal history in Canada is a thriving branch of 'law and society' scholarship, one that has the power to enrich contemporary legal scholarship and legal education, to inform research in Canadian studies, and to provide a new dimension to the writing of Canadian history.

Practitioners of Canadian legal history enjoy fruitful interaction with scholars in the United Kingdom, France, Belgium, the United States, Australia, and New Zealand, and interchange with scholars from Africa, Asia, the Caribbean, and Latin America is likely to follow. Virtually all Canadian law schools now offer courses devoted wholly or partly to Canadian legal history, and the University of Victoria Faculty of Law has created an innovative Canadian-Australian legal history course offered simultaneously in both countries via the Internet. The social history of law is featured in the curricula of many history departments, and many graduate students in history, law, and other disciplines now incorporate legal historical themes in their work to a greater or lesser extent. Many challenges remain: the integration of a kaleidoscope of smaller studies into larger national and international narratives is only beginning;⁴ the field still tends to be somewhat marginal in law faculties and history departments; much of the best Canadian work is published in edited collections, which are not included in electronic databases; and few Canadian primary materials are made available on the Web so as to facilitate comparative research by scholars in other countries.⁵

The focus of this article is not where Canadian legal history might or should go, however, but where it has been. In investigating the prehistory of the 'new legal history' in Canada, it explores how post-war English-Canadian legal scholars (c. 1945-1970) thought about the history of law in Canada and examines why they wrote and taught so little about the subject.⁶ I consider this generation principally through the ideas, publications, and correspondence of Bora Laskin, C.A. Wright, and Horace Read, though George Curtis, W.R. Lederman, F.R. Scott, and Wilbur Bowker would also fit comfortably within this group. Before 1945 there was a good deal of writing about Canadian legal history. It was mainly by lawyers and judges rather than university-based scholars, and often it did not conform to rigorous scholarly standards, though Canadian constitutional history attracted the attention of professional historians from an early date.⁷ After 1970, one finds a renewed interest in the history of Canadian law among legal scholars, historians, sociologists, and criminologists. By contrast, the period between 1945 and 1970 may be termed a scholarly desert in this respect, a period when the model of English medieval legal history was finally rejected but no new approach arose to replace it. Legal history largely disappeared from the law school curriculum and did not feature in the research agenda of established scholars. This story played out in a broadly similar way all around the common law world - the Australian legal historian Andrew Buck suggested that I could have titled my paper simply 'Who's Afraid of Legal History?' - but I will focus here on the Canadian version.

There are several explanations for the lacuna explored here. One is the increasingly utilitarian demands placed on legal education in the post-war years...