A History of Canadian Legal Thought: Collected Essays (review)

Unless they have made a habit of reading law journals – typically the domain of law professors, lawyers, and judges – many Canadian historians will have missed the career of R.C.B. Risk, now professor emeritus in the Faculty of Law at the University of Toronto. This is a shame, since for the past thirty years Risk has written nearly twenty ground-breaking articles in Canadian legal history. Sensing the oversight, the Osgoode Society for Canadian Legal History has gathered twelve of Risk's best essays in A History of Canadian Legal Thought: Collected Essays. As the volume's editors, G. Blaine Baker and Jim Phillips, point out in their introduction, republishing these articles promises to introduce Risk's work to the wider audience it so richly deserves.

Risk, of course, is already well known to the small but expanding cadre of Canadian legal historians. For them, Collected Essays offers the opportunity to revisit Risk's writing, to marvel at the sweep of his scholarly imagination, and to revel in the many insights captured in his crafted prose. Reading these essays together also highlights the larger themes that thread through Risk's body of work. Among the most important of these is the idea that Canada possesses a legal culture laden with meaning and worthy of study. If that claim seems somewhat prosaic today, it is in large part because of Risk's pioneering work in the field.

Canadian legal culture was forged at the intersection of British and American influence, but the blend – dynamic and shifting – produced its own distinctive patterns of values and ideas. Nowhere is this more apparent than in Risk's intellectual history of Canadian constitutional law. In a number of essays, Risk charts how constitutional ideas about federalism, provincial autonomy, individual rights, and good government took shape in the century following Confederation. From Edward Blake's claims that constitutional liberty entailed the right of provinces to govern themselves, to the Depression-era scholars demanding a stronger federal government to build the welfare state, to more recent conceptions of balance as a guiding principle, Risk finds 'no still point' in our ideas about constitutional law. At a time when most Canadian legal scholars search for immutable meanings under the Canadian Charter of Rights and Freedoms, Risk reveals how fluid and contextual our understandings of constitutional law have been over the course of Canadian history.

Blake is just one of the many intriguing figures brought to life in Risk's work. Indeed, resurrecting the forgotten legal thinkers of our past is another of Risk's principal achievements. Joining better-known luminaries such as Frank Scott and Bora Laskin in Risk's work are 'dimly remembered' figures such as Augustus Lefroy, John Ewart, W.P.M. Kennedy, and John Willis, among others. Through biographical sketches and close readings of their writings, Risk recreates critical aspects of the intellectual history of Canadian legal thought, while also adding texture to our political history, and personality to the history of Canadian legal education. Social historians may find all of this a bit remote for their tastes, but Risk's history is necessarily one of elites – the scholarly lawyers, law professors, and (to a lesser extent) judges and politicians who have shaped Canadian legal thought.

Other criticisms have more traction. A more apt title, to my mind, would have been A History of English-Canadian Legal Thought, for Risk rarely mentions intellectual developments in French-speaking Quebec and seldom incorporates the writings of its legal scholars into his analysis. Francophone lawyers had strong feelings about federalism and shifting conceptions of liberty too, to say nothing of the distinct tradition of writing surrounding Quebec's codified private law. The most that can be said is that Risk has left this work for others. Given my regard for the material, I found the proofreading errors distracting, especially considering that many of...