Canadian Perspectives on Law and Society: Issues in Legal History



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Citation: Greg Marquis, “Doing Justice to “British Justice”: Law, Ideology, and Canadian Historiography” in Wes Pue and Barry Wright, Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carleton University Press, 1991), pp. 43-69.

In days of yore, from Britain’s shore,

Wolfe, the dauntless hero came,

And planted firm Britannia’s flag

On Canada’s fair domain.

Here may it wave, our boast, our pride;

And joined in love together

The Thistle, Shamrock, Rose entwine,

The Maple Leaf forever!
Maple Leaf, our emblem dear, the Maple Leaf forever!

God save our Queen, and heaven bless, the Maple leaf forever!


At Queenston’s Heights and Lundy’s Lane

Our brave forefathers, side by side,

For freedom, homes and loved ones dear,

Firmly stood and nobly died;

And those dear rights which they maintained

We swear to yield them never;

Our watchword ever more shall be

The Maple Leaf forever!


Alexander Muir, “The Maple Leaf Forever”
In an era when Canada had only a handful of progressive labour lawyers and no mainstream national civil liberties organization, the Communist-organized Canadian Labour Defence League (CLDL) raised funds, attracted thousands of members and defended trade unionists and leftists in the courts. In 1933 the CLDL held a convention in Toronto to discuss matters such as the recent “Red Scare.” The convention’s report attempted to explain the League’s failure to exploit local issues such as police corruption, political scandals and the notorious section 98 of the Criminal Code, on the basis of radical organizers’ distaste for “humanitarianism” or “sentimentalism”: “For instance, many workers, still believe in ‘British justice’ and ‘Democratic rights.’ We should make effective use of demands on these very questions, thus drawing the workers into the struggle against the [police] terror.”1 The report was addressing a thorny issue for early twentieth-century Canadian socialists, the rule of law, which was an important, if often latent and ambiguous, dimension [43] of political culture The standard sloganeering of the Worker and the Young Worker, organs of the Communist Party, was that legal rights were a bourgeois sham. Hence workers arrested on picket lines or at public meetings were considered “Political prisoners”, and the police, the judiciary and the bar were enforcers of class justice. The treatment of elements of the Toronto labour and socialist movements by the police and courts in the 1920s and 1930s lent credibility to such an instrumentalist view of the legal order.2 The CLDL 1933 report nonetheless advised organizers to remain sensitive to the superstitions of the masses regarding the rule of law:
Often, because we feel we are ‘advanced’, ‘people on a higher level’, etc., we do not take into account the moods, sentiments, and traditions of the workers, and arguing that they are ‘bad’ traditions, we therefore either ignore them or evoke resentment through tactics sneering at these traditions.3
The present article, an overview of Canadian criminal justice historiography, offers a similar warning to students of history. It makes two major suggestions. First, that historians in a number of fields would benefit from examining popular attitudes towards and expectations of legal authority.4 Second, that much of the “new history of the last fifteen years, particularly the social and working-class varieties, in the process of reinterpreting or rejecting liberal historiography, has emphasized coercion and control by the dominant classes and ignored or neglected the question of the popular legitimacy of state institutions. According to an influential interpretation in legal history, the dominant classes, acting through the state, with varying degrees of success, have indoctrinated the masses with these “moods, sentiments and traditions.” This interpretation must yield to a more sophisticated approach sensitive to the complexities and ambiguities of popular attitudes towards the law.
Perhaps because intellectual history, which traditionally relies on elite sources, is not currently fashionable, we rely on assumptions rather than systematic examination of popular ideologies in Canada’s past. The law and its administration were not remote for nineteenth-century British North Americans, but part of their orientation towards local affairs, government and the Empire. Justice, in the form of the constable, the alderman, the justice of the peace or the stipendiary magistrate, was a highly visible if decentralized sign of the state.5 Law was viewed as an instrument of control as well as a vehicle for political and social change –not merely by the elite but by much of the “ignorant” populace. It is significant, for example, that the Patriote Party of Lower Canada responded to popular rural demands by advocating magistrates appointed by the people.6 The law was also a reflection of culture. Lloyd Kramer, in a recent article that attempts to find common ground between social and intellectual history, suggests one solution in the mentalité methodology developed by French historians who explore “the unconscious, deep structural aspects of human thought and behaviour” found “in popular culture, [45] beliefs, ritual and ideologies.”7 In like manner Robert Gordon has suggested that legal historians should
treat legal forms as ideologies and rituals whose ‘effects’ – effects that include people’s ways of sorting out social experience, giving it meaning, grading it as natural, just and necessary, or as contrived, unjust and subject to alteration are in the realm of consciousness.8
The challenge is to reconstruct a “demotic intellectual history” to complement the institutional approach of much criminal justice historiography.9 This article adopts the nineteenth-century term “British justice,” which links law and legal institutions to political culture, to suggest a promising category of analysis for such inquiries.

THE ENGLISH INHERITANCE
Any study of Canadian attitudes towards the law and uses of the legal system must begin with the English cultural heritage, particularly the powerful view of British institutions as the bulwark of liberty. An 1880 Ontario government publication, for example, promised prospective immigrants from the old country no less than “All the protection and safety that British law can ensure.”10 One has but to recall former generations of Canadian school textbooks for a glimpse of these Whiggish ideals.11 To date these sentiments, in their most exaggerated form, have been explored by intellectual historians in the writings and speeches of late nineteenth and early twentieth-century Canadian imperialists. According to Carl Berger, Canadian imperialism combined an awareness of Canadian nationality and “an equally decided desire to unify and transform the British Empire so that this nationality could attain a position of equality within it.”12 Historians should now turn to the hypothesis that emotional attachment to British institutions, which included a particular view of history, was not confined to the middle and upper classes but influenced the social experience of the urban and rural masses.13
In the British constitutionalist tradition legal rights were not separated from political rights; both had been wrested from a tyrannical monarchy. Although these “ancient rights and privileges” were for most of history ignored or honoured selectively, the culture of constitutionalism stressing the benefits of English law was an important ideological force in the eighteenth and nineteenth-century British world.14 According to Anne Pallister, the key to this tradition was veneration of an idealized past that included emotive symbols such as Magna Carta:
The equation of law and liberty, the belief that the law of England protects rather than restricts the freedom of the individual, which is the central feature of the Charter, still lies at the heart of English political and legal thought and practice; and the Charter provides a standard of political ethos against which official action in its effects upon the individual can be measured.15
Magna Carta and other symbols, moreover, became “the property of both conservative constitutionalists and radical agitators.”16 These traditions were evident in the independence movements of Britain’s rebellious eighteenth-century North American colonies, whose leaders were well versed in Whig history and ritualistic invocations of freedom as the birthright of Englishmen. As Bernard Bailyn illustrated in The Ideological Origins of the American Revolution, American Whigs by 1760 were reaching back into history, appropriating “national” myths such as the Norman Yoke, Magna Carta and the Glorious Revolution, to legitimize their constitutional dispute with Britain.17 American Loyalists, seeking to uphold the British connection and a “balanced” constitution, countered with like rhetoric.18 Similarly, despite national differences among Great Britain, the United States and Canada, the Victorians praised the spirit of Magna Carta as the heritage of all English-speaking peoples.19 The Victorian search for cultural roots, including early manifestations of political liberty and legal rights, was also a reaction to industrialism.20
The rhetoric of British liberty can be interpreted in more than one way. A Marxist might explain that the great constitutional struggles that captivated Whig historians represented a debate of limited parameters, involving factions of the dominant classes, one representing landed property, the other commercial and industrial capitalism. That legal ideology can be used to buttress the status quo should come as no surprise. Douglas Hay, in an influential article, has argued that the law replaced monarchy as the principal ideology legitimizing the eighteenth-century English state. In Hay’s functionalist interpretation, elite management of ideology is the key to state power.21 An earlier article, “Patrician Society, Plebeian Culture”, by E.P. Thompson examined eighteenth century paternalist relations and the importance of law as “public theatre” in maintaining the hegemony of the state.22 Although the law was used as an ideological weapon to reinforce class relations, it was not, in the opinion of Thompson, merely an instrument for maintaining control and consent. The legal ideology of the dominant classes could also become the rallying cry of popular resistance:
And finally, far from the ruled shrugging off this rhetoric as hypocrisy, some part of at least was taken over by the plebeian crowd, of the ‘free-born Englishman’, with his inviolable privacy, his habeas corpus, his equality before the law.23
Thus various social groups could combine self-interest with a vision of constitutional rights, often in a utopian frame of reference.

REPUBLICANISM
A second tradition which influenced nineteenth-century British North Americans was American republicanism. As Morton Rorwitz has recently suggested, the growing literature on eighteenth- and nineteenth-century American republicanism, much of it from the point of view of mechanics and artisans, [47] offers a new direction for legal historiography.24 The new variant of republican historiography, exemplified in Sean Wilentz’s Chants Democratic: New York City and the Rise of the American Working Class, has been praised by New Left historians for seeking a relationship among social, political and intellectual history and damned by certain political historians for failing in this endeavour. This new historiography, influenced by the culturalist approach of E.P. Thompson and writing on classical republicanism, is an attempt to reclaim traditional republican rhetoric and ideology from consensus or liberal pluralist views of American political culture. Thus special attention, according to critics too much attention, is devoted to language, ritual and symbolism.
Critics’ suggestions that republicanism had more than one meaning should not rule out its usefulness as an organizing principle in American historiography. In this literature patriotic speeches, fife and drum corps and displays of proletarian nationalism take on new meanings.25 The radical artisans of Wilentz’s ante-bellum New York thus reinterpreted republican ideals of “commonwealth, virtue, independence, citizenship and equality” in their struggle against the merchant interest.26 They were not, according to Wilentz and others suffering from “false consciousness” but utilizing republican ideology on their own terms. The role of law in this tradition, as Horwitz points out, remains to be explored, yet the findings will likely stress ambiguity in the legal order’s operation and image. In a study of working-class ideology in nineteenth-century Cincinnati, for example, Steven J. Ross illustrates how law was invoked by the elite in a public order campaign aimed at plebeian culture and by workers demanding their rights, such as an eight-hour day.27 As with the concept of the free-born Englishman, the ideal of the republican citizen enjoying constitutionally-protected rights both legitimized and questioned the political and social order.

CANADIAN HISTORIOGRAPHY
It has been argued that American legal historians associated with law schools “tend to pick up mainstream intellectual opinion ten to fifteen years late.”28 If this trend is duplicated to any extent in Canada, where legal history in now enjoying a renaissance, then researchers would be wise to examine the historiographic trends of the last two decades. Historiography, the “history of history,” is concerned with the methodology, theories and presentation employed in historical research and writing. In Canada, historians who explore legal and criminal justice topics face familiar national stereotypes, particularly those relating to our supposed pragmatism, conservatism and love of order. This interpretation invariably involves favourable comparisons of Canadian social order with that of the more unruly United States.29 As S.D. Clark noted three decades ago, patriotism in colonial Canada “remained always closely identified with efforts to maintain the established political order.”30 Historians writing in the Whig tradition in the late nineteenth and early twentieth centuries naturally focussed on our peaceful evolution “from colony to responsible government to independence”, noting the occasional rebellion, riot or strike, but generally stressing the deferential nature of Canadian politics and a respect for law and order.31 In a parallel development, French-Canadian historians remained concerned with the struggles and achievements of French Canada. In the 1920s and 1930s, the influence of American progressive historiography, which explained politics in terms of conflicting economic interests, modified the constitutionalist Whig version. There developed an extensive and influential literature on economic history and political economy. In the three decades after 1940, English-Canadian historians concerned themselves with relations with the United States, Canada’s emergence as a “middle power” and Quebec’s challenge to national unity. Despite the increasing sophistication of the profession, historians continued to operate within a liberal framework in that they focussed for the most part on conflicts among ethnic groups, political parties, regions and nations, not social classes.
During the 1970s historians began to uncover examples of violent strikes, social conflict, and repression of progressive political groups, much of it instigated by the state. Social historians, reacting against the biographical political emphasis of post World War II Canadian historiography, turned to history “from the bottom up”, utilizing new sources and methodologies such as the manuscript census and quantitative analysis. In the search for a wider context, historians employed national character interpretations less frequently. Political history writing, concerned mainly with leaders, political parties and elections, was judged to be unfashionably narrow and conservative. The antidote seemed to be studies of social structure, immigrants, the family, education, social welfare and the role of women. Urban and regional history, once regarded as species of antiquarianism flourished. Many social historians examined official ideology and institutional responses in the areas of charity, education, public health and punishment. A popular thesis or assumption was that public education, police forces, asylums, temperance societies and relief of the poor constituted a web of “social control” institutions aimed at imposing “middleclass values.”32 With the establishment of women’s studies journals and university courses, women’s history, originally a sub-field of social history, emerged as a separate field in its own right. Legal history conferences, for example, now devote entire sessions to papers on women and the law. Although women’s history adopts gender as its central organizing principle, as a child of social history it is also sensitive to social class.33
Some of the most innovative – and controversial – studies of the past decade have been on class formation and the activities and culture of the working class under industrial capitalism. Inspired by such mentors as E.P. Thompson, Eric Hobsbawm and the late Herbert Gutman, “working-class” historians have gone beyond labour history’s traditional economic and institutional focus. Their main concern is identifying an autonomous working-class culture that resisted new work and social disciplines, only to be checked by the full flowering of industrial capitalism.34 These historians, influential among graduate students and younger academics, interpret culture as a unifying process for the working class. Their intention is to elevate class formation and class struggle to the place of central organizing principle in Canadian social history.35 Much of this “committed” literature, by exaggerating the exploits [49] of organized labour or the uniqueness and vibrancy of working-class culture, borders on romanticization. Working-class historians, nonetheless, have raised questions of central importance to political and legal historians, such as the extent to which the growth of the state was a response to conflicts amongst social classes.36
By the early 1980s social history, or at least many of its subfields, appeared to have lost its sense of direction and, in the opinion of many, was fragmented and particularistic.37 Chad Gaffield, writing in 1986 on the historiography of Canadian education, one of the worst offenders in the “social control” genre, noted: “The talk now is of synthesis, of integration, of coherence.”38 Coherence was not a problem in the Marxist framework of the new working-class historiography. A recent Canadian attempt at imposing order on social historiography is the five-volume revisionist series Readings in Canadian Social History, edited by Michael Cross and Gregory Kealey, which represents a marriage of l970s social and working-class history.39

Mainstream legal historians, wishing to guard their professional autonomy, have expressed reservations towards the utility of social history approaches to the study of law. This is particularly true of scholars associated with law schools.40 There is no doubt that legal or criminal justice historians can learn from social and working-class historiography. Enthusiastic legal history researchers seeking methodological or theoretical inspiration, should not, however, approach the latter literature in an uncritical fashion. Practitioners in these fields, in my opinion, have misrepresented the past through their obsession with social/class conflict and neglect or dismissal of “elite” institutions and ideology.


In a recent review essay, “Law in ‘the round’,” Brian Young criticizes Canadian legal historians for, amongst other things, failing to “recognize the centrality of law to class relations.” Young’s hypothesis that “legal history is an integral part of the larger history of social relations” makes sense, as does his examination of works not commonly thought of as legal history.41 The social relations in which he is interested, however, are those of conflict, control and popular resistance. Admittedly, conflict should not be ignored. But the evidence offered by some historians is reminiscent of the hospitality of Procrustes; the subject’s missing parts are often the most interesting. Such is the case with a Michael Cross article, “The Laws are Like Cobwebs: Popular Resistance to Authority in Mid-Nineteenth Century British North America,” which adopts a simplistic instrumentalist or social control interpretation of the law. Cross makes a direct connection between the transformation of the economic base from commercial to industrial capitalism with the modernization of the institutional and social superstructure, including “modern school systems, responsible government, more effective municipal institutions, police forces, penitentiaries, reformed judicial systems and criminal codes.”42 In the process he suggests, unconvincingly, that social violence was all but epidemic in colonial Canada. Further research may well validate the hypothesis that rural society in particular was characterized by an undercurrent of violence. The episodic approach of Cross pales in comparison to [50] John Weaver’s case study of crime and punishment in Upper Canada’s Gore District during a period of social disorganization.43 Yet both studies, because they look for conflict and disrespect of the law, ignore the equally important

tradition of voluntary, orderly behaviour.


There is a more sophisticated criminal justice historiography emerging, one that examines not only class conflict, strategies of control and popular resistance, but also the role of ideology in reproducing class relations. Paul, Craven’s article “Law and Ideology: The Toronto Police Court 1850-80” adopts Douglas Hay’s thesis on the law as an ideology legitimizing the state. Craven does not examine the actual workings of the court but discusses how it was portrayed in the local press, which in his opinion was consumed by the “respectable” working and middle classes.44 Historians who delve into the local press and other sources in the attempt to apply social control theories to petty justice have encountered a complex situation. Instead of class resistance the lower courts engendered, if not mass support, at least a degree of popular legitimacy. The paternalism of justices of the peace, aldermen and police magistrates and the settlement of disputes out of court went a long way in limiting the legal order’s coercive impact. Moreover, there is little evidence that the bulk of urban workers and rural dwellers had much sympathy for the brawlers, drunks, vagrants and wifebeaters who filled the lower criminal courts. Class feeling was more likely to surface in matters of civil law enforcement – relations between landlords and tenants, masters and servants and creditors and debtors.45
Historians are also beginning to look at Canadian policing. Because of a fascination with the Royal Canadian Mounted police, the history of municipal law enforcement has been neglected.46 Yet there is a parallel between the two traditions of policing. Although the Mounties as a national symbol enjoyed more prestige, both they and locally controlled police experienced considerable popular support. In light of the class biases of police departments, how was this legitimacy maintained? Nicholas Rogers, writing in the tradition of 1970s social and working-class history, portrays the nineteenth-century Toronto police force as “the coercive agency of moral reform, the task force for the new respectability,” an institution integrated into the “authority structures of Toronto, alongside schools, charities, prisons, asylums and benefit societies.”47 Rogers pinpoints police reform, the attempt to create a non-partisan, disciplined, professional force removed from neighbourhood and working-class influences, as a means of instilling police hegemony over the working class. Yet the police were equally popular – or unpopular – in cities where police reform lagged behind, such as Saint John and Charlottetown and, in the case of Montreal, where the police were not commonly thought of as champions of moral reform. Despite the importance of the themes of 1970s social history, my own work on these cities and on the early twentieth-century Toronto police finds the moral reform argument unsatisfactory. I also question the assumption that the police were smoothly integrated into a system of “authority structures.” As future case studies will [51] reveal, policing, like dispensing justice in the lower courts, was more ambivalent than l970s social history literature suggested.48
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