- A History of Law in Canada, Volume One: Beginnings to 1866 by Philip Girard, Jim Phillips, R. Blake Brown
A History of Law in Canada intends to fill a gap in the legal history of Canada by providing an examination of “the three pillars of Canadian law together – Indigenous law, common law, and civil law” (17). This is a very ambitious undertaking, made all the more so since its audience is very broad: “anyone – scholars, journalists, legal professionals, members of the public – wishing to know more about the history of law in northern North America” (17). With these purposes in mind, the authors begin their project with a general introduction to the idea of legal pluralism and the foundations of the three legal traditions that are the focus of their study. These introductory chapters serve as an excellent primer [End Page 145] and provide a firm foundation on which the balance of the volume rests. They will be especially valuable for readers unfamiliar with legal history.
The chapters that follow outline the law and its development in each of the three traditions over a period of roughly three and a half centuries, from the time of the arrival of Europeans in the lands that became Canada until the 1860s. The range of subjects addressed in these chapters is enormous, including law-making, the development and evolution of institutions, criminal law, family law, law relating to the economy, gender and race, and more besides. In general, developments within the three traditions are presented in separate chapters, though there is at times a degree of overlap as what happened in one sphere affected another.
Since the scope of this work is so large, the authors have based much of what is presented on the already published work of other legal scholars. This might seem to suggest that History of Law in Canada is merely a compilation – that it is little more than the recapitulation of what other authors have already told us about the history of law in Canada. However, this is very much not the case. The authors make a number of original contributions to the study of the history of law in Canada.
The most obvious of these is the identification of three periods into which the legal history of the pre-Confederation era can be usefully divided: 1500– 1701, 1701–1815, and 1815 to the 1860s. The reasons for the departure from better known watershed moments – Britain’s conquest of New France in 1763, for example – are persuasively argued and reflect the fact that development of the law has not always moved in lockstep with political, economic, or other aspects of Canadian history. At the same time, however, the authors are very much aware that the law did not develop in a vacuum, as is evidenced by a discussion of such things as colonial policies, relations between the European powers, often involving Indigenous peoples, and the United States.
The identification of important themes within Canadian legal history and the critical surveying of the published literature relating to these themes is also a significant and valuable contribution, especially for readers unfamiliar with that substantial body of work. Also useful is the identification of areas where further work is needed to improve our understanding. The most important of these is the study of Indigenous law, which the authors note is currently in a period of rapid development, so much so that the authors suggest that were another version of History of Law in Canada to be prepared in ten years it might present a significantly different view of Indigenous law (12). And there are other areas as well that would benefit from more study to advance our understanding: for example, with respect to procedure (436) and the economy (619).
One curious feature of History of Law in Canada is the decision of the authors (or their publisher?) not to include a bibliography. It may have been thought that this was obviated by...