The Question of “Legal Conservatism” in Canada: A Review of Essays in the History of Canadian Law

Review article The Question of ''Legal Conservatism'' in Canada: A Review ofEssays in the History ofCanadian Law DAVID KETTLER David H. Flaherty, ed. Essays in the History of Canadian Law, Volume I. Toronto: University of Toronto Press, 1981. That the history of such legal institutions as property and contract was intimately tied to the history of economic and political developments in civil society was a commonplace in the "philosophical history" of the eighteenth century, notably in Scotland. But that commonplace soon became curiously obscured in discussions of the law, even in the intellectual settings as influenced by Scottish academic culture as English Canada; and it is only now being cautiously recovered. The aim of the current literature exemplified by the book under review is to restate the commonplaces in forms which will allow critical revision of the conjectural generalizations which governed earlier versions of social history of law. The approach had been adapted during the past hundred years in the Marxist school, of course, but this adaptation was designed to undermine the legitimacy claimed for legality in modern political systems, treating law as an ideological reflex of the prevailing configuration of class domination. Such use of the social approach to the history of law may itself help to explain why much legal scholarship has found it alien, indiffere~t to the problems and reasonings which appear constitutive of the law. Despite the availability of contrasting, less reductionist social theories of law, lawyers and legal historians, at least in Canada, have until recently considered social treatments to be overgeneral, inattentive to the nuances which distinguish cases, to the subtlety of legal reasoning, and to the considered development of legal doctrine. It is, therefore, of more than casual interest to find that a recent collection of 136 Canadian essays in legal history, presenting authors who are for the most part strongly intrigued by current refinements internationally in the "law and society" approach, should be published by the distinguished company of the Osgoode Society, with the blessings of the Honourable Roy McMurtry. The original flourishing of such an approach in Scotland, it is reasonable to conjecture, had much to do with a desire to make sense of new legal needs and new legal departures in the first generations after the Act of Union. Lord Karnes, who stimulated work along these lines by Adam Smith, Adam Ferguson, and John Millar, was not only a leading agricultural improver and outstanding personality among those given the task of "civilizing the Highlands" after the '45, but also himself a prominent jurist and judge. May we hope that the high patronage of the present turn to "law and society" in the Canadian study of legal history means that we are similarly to have a new age of legal creativity, if not quite a Canadian Enlightenment? The question gains pertinence because several of the strongest essays in the collection under review concern the "conservatism" of Canadian law during years of dramatic commercial and industrial development, and they associate "conservatism" with unwillingness to recognize the historically variable functions of legal concepts and doctrines and to adapt judgments to such recognition. The issue has been stated by R.C.B. Risk in an essay written some years ago and republished here by the editor as seminal for the new Canadian inquiry. Comparing jurisprudence in Ontario during the first half of the nineteenth century with its American counterpart, Risk concludes that "our courts - and our entire legal community " tended to serve "as a legal colony, forbidden and eventually unwilling to consider its own legal destiny openly" (125). Risk's comparisons draw heavily on the work of the American legal historians, James Willard Hurst and Milton J. Horwitz, who have emphasized the "flexibility" and "instrumentalism " with which American courts during that period adjusted the common law of property, contracts, and torts in order to facilitate, as Hurst put it, the "release of Revue d'etudes canadiennes Vol. 'JB, No. I (Printemps 1983 Spring) energy'' in the economic domain, making shifts in favour of entrepreneurial needs and designs and subordinating older, more static conceptions of property and contract. Risk cites, for example, the contrast between American rulings following the Charles River Bridge case, which...