Baker Canadian Legal History



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Robert Leckey 2001

Baker Canadian Legal History

Overview

  1. Creating a Sub-discipline


Flaherty, “Writing Canadian Legal History: An Introduction” (1981) 1–

  • go beyond narrow aspects of legal development to focus ultimately on general relationships between law and society—marry theory and practice

  • Horwitz’s instrumental conception of law—American legal system becoming an instrument in the hands of society’s newly powerful commercial groups

  • subsequent pressure towards legal formalism intended to preserve the advantages already secured

  • notion of internal and external legal history: internal legal historian stays within the box; the external historian writes about the interaction between the boxful of legal things and the wider society (Gordon)

  • legislatures have been the dominant institution in Canada (Hurst)


Ogilvie, “Recent Developments in Canadian Law: Legal History” (1987) 12–

  • Baker: examines how the L.S.U.C. exercised its monopoly over legal education in the nineteenth century: monopoly neither delegated nor shared

  • L.S.U.C. conducted the most sophisticated and intensive programs in the world

  • professional formation: production of a governing élite of lawyers

  • (1) legal education in Ontario developed because the L.S.U.C. took its monopoly seriously so that university law schools on American model didn’t appear

  • (2) academic standards were high and emphasis on meritocracy

  • (3) attempt deliberately to create a legal élite

  • (4) program was distinctly Upper Canadian, indigenous and relatively uninfluenced by foreign models

  • Ontario legal education didn’t become colonial until the twentieth century

  • cultural discontinuity in Ontario legal culture: early nineteenth century, indigenous, eclectic legal culture; by end of century replaced by Imperial ideal, leading to an anglophilic following of English legal precedents and turning away from the indigenous legal culture

  • in midst of great social and economic change, easy to slip into the Imperial mode and legal formalism

  • Ontario courts seeing the regulation of industrialization as the proper role of the legislature—the same élite populated the legislature anyway


Masciotra, “Quebec Legal Historiography” (1987) 19–

  • doctrinal interpretation implies that law’s meaning lies exclusively in legal texts—implies law is a self-contained language—law’s existence is a given and only the meaning of particular laws is in question

  • this positivist and doctrinal approach leaves questions for legal scholars and historians


Belley, “La nouvelle histoire du droit” (1986) 29–

  • perspective nettement pluridisciplinaire

  • legal historians now interested by toutes les manifestations de la pensée juridique et du droit en action, tous les points de rencontre entre le droit et la société, tous les contacts significatifs entre gens de justice et gens ordinaires

  • external attitude of legal historians: move away from doctrinal scholarship to a scientific approach tracing the relations between law and society, between legal thinking and culture, between the letter of the law and its real effects

  • the development of commercial activity continued despite the non-compliance with laws (Ferguson)

  • legal pluralism (Arthurs)


Lewthwaite, Loo & Phillips, “Introduction” (1994) 34–

  • internormativity/legal pluralism: community controls more immediate and effective than juridical ones

  • formal law appealed to only when informal control failed

  • complexity of relationships among deviance, order, law, authority


Marquis, “Doing Justice to British Justice: Law, Ideology, and Canadian Historiography” (1988) 41–

  • (1) need to examine popular attitudes towards and expectations of legal authority; (2) historiography emphasizing coercion and control by the dominant classes ignores the question of the popular legitimacy of state institutions

  • the complexities and ambiguities of popular attitudes towards the law

  • law as a reflection of culture—“British justice” links law and legal institutions to political culture

  • despite class inequalities, British justice and liberty were deeply enshrined in popular culture—the law’s instrumentality co-existed with a significant degree of popular legitimacy



  1. Engaging Canadian History


Berger, The Writing of Canadian History: Aspects of English-Canadian Historical Writing Since 1900 (1986) 50–

  • historians no longer see themselves as the interpreters of national character; more likely to champion a class, party, ethnic or racial group, locality or gender than the nation as a whole

  • Careless defending region, culture, and class as forms of group identity as legitimate as the nation state

  • historians no longer seeing narrative biography as a model—abdicating role of interpreting the national character

  • social history representing a more intense involvement with anonymous social processes and underlying structures—most social historians Marxists

  • alarming subdivision of social history into miniscule specialties

  • new social history runs danger of falsifying the past by fragmenting reality beyond experience


Rudin, “Revisionism and the Search for a Normal Society: A Critique of Recent Quebec Historical Writing” (1992) 71–

  • irony that while political initiatives focus on the distinctiveness of Quebec, historians indicate a “normal” society whose past could be grasped in the context of urbanization and industrialization in ways common to the West

  • linguistic and cultural concerns taking a back seat to emphasis on Quebec’s adherence to general pattern of economic and social development

  • drive for normalcy leading historians to reject the nineteenth-century model

  • predisposition to focus on structural factors—economic forces

  • historians rejecting the guiding role of the church, the importance of ethnic conflict, the emphasis upon rural values—focus on class conflicts during industrialization, urbanization

  • need to find a balance between the two models

  • Ouellet emphasized the fundamental cleavage in society as ethnic/linguistic

  • revisionists see division on principally class lines—rejecting any identification of the lower classes with the francophone majority

  • English-speakers had advantages unexplained by structural factors

  • consistent political differences between French and English speakers

  • worth exploring the real differences in social, economic and political terms

  • urbanization, denial of rural life—reluctance to admit just how rural Quebec was into the twentieth century—in fact francophone Quebec did urbanize relatively recently

  • francophone Quebec also more profoundly Catholic than has been recognized

  • refusal by Heintzman to locate antipathy towards governmental action in the dominance of the church

  • reluctance to admit to unique aspects conflicting with the modern conception as modern, vibrant, pluralistic


Owram, “Intellectual History in the Land of Limited Identities” (1989) 82–

  • two solitudes of historical writing: (1) clerical orientation focussing on Franco-Catholic “nationalisme”; (2) Laurentian school writing on national development from the St. Lawrence valley

  • Careless: true theme of the history is region building

  • need to unite these regional histories



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